23 S.E. 69 | Va. | 1895
delivered the opinion of the court.
It is claimed by the appellants that the circuit court erred in reading and considering the deposition of Joseph Maphis, taken on February 21, 1888, and the depositions of T. W. Allen, J. B. Ham man, Israel Allen, W. Fitzmoyer, A. Overboltz, and W. H. Ham man, taken on October 10, 1888, all of which depositions were taken by the appellees. The ground of the objection is that the record does not show that the depositions were taken in the presence of the guardian ad litem of the infant parties. It was necessary that the guardian ad litem should have notice of the taking of the depositions, in order that he might represent and protect the interests of the infants, and the record shows that notice was given to him. But it is insisted that this is not sufficient, and that it was illegal for the court to consider the depositions, unless it appeared that they were taken in the presence of the guardian ad litem. Reliance for this petition was had upon sections 2435 and 2619
The foregoing shows the character of the evidence, and the nature of the argument of counsel for the complainants, to establish that there was no consideration for the conveyance from Morgan Moore to his mother, or that the consideration was inadequate. Indeed, what has been referred to constitutes their chief reliance. It is neither clear nor satisfactory, but speculative and unreliable, and falls short of the degree of proof of fraud that is required. On the other hand, the evidence tends strongly to show that there was adequate consideration for the property conveyed. It was conceded in the oral argument that from the evidence $26,000 was a fair valuation
Upon a consideration of all the evidence, both that which has not been commented upon as well as that which has been referred to, we are of opinion that the complainants failed to prove that the conveyance from Morgan Moore to his mother was without any or adequate consideration. The consideration being taken, then, to be adequate, there is an entire absence of fraud. There is not the slightest evidence that when Morgan Moore made his deed to his mother he did so upon any agreement, suggestion, or expectation that she would settle the property conveyed on his wife and children. As evidence of a fraudulent purpose
There is no error in the refusal of the circuit court to order a trial by jury of the issue as to whether there was usurious interest or not in the loans from Israel Allen to.Morgan Moore. . The suit of Morgan Moore et al. v. Israel Allen et al., in which the question of usury was raised, was not brought until August
These sections each read as follows: “No depositions shall be read in the suit against any infant or insane party, unless it be taken in the presence of the guardian ad litem or upon interrogatories agreed on by him.”