106 Va. 369 | Va. | 1907
delivered the opinion of the Conrt.
Jannette Morgan answered this bill. She admits the execution of the deed by Powell and Booker to David B. Morgan, and that the balance due was to be paid in two equal installments of $1,250 each, secured by deed of trust; that she became the purchaser from David B. Morgan before the deferred install■ments of purchase money had been paid, but claims that the lien had been fully satisfied to G. V, Booker, the holder and rightful owner thereof. She denies that G. Y. Booker ever endorsed and delivered the second of said notes to Dannie B. Booker, his wife, or that the same was ever delivered to W. 0. Booker; and further denies that the note has at any time been endorsed and delivered to W. O. Booker, and that she ever had any knowledge of complainant’s ownership of the note. She denies that she ever paid the complainant any part of the note at any time, but says that she and her husband together made
TJpon the issues thus raised evidence was taken. W. O. Booker, in his deposition, states that he loaned his brother $800, and that for that consideration the note was endorsed and delivered to him; that the name of Pannie B. Booker was on
In his bill, it will be recalled, that he claimed to have become the owner of the note about the time Jannette Morgan, became the purchaser of the land on -which it constituted a lien, and her deed bears date the 15th of May, 1894. According to his deposition, therefore, he became the owner of the note in the latter part of 1890 or the early part of 1891, and certainly before it fell due; while in his bill it is stated that he became the owner of it not earlier than the 15th of May, 1894. The statement of W. O. Booker with respect to the consideration is by no means satisfactory, and the same is true of the proof as to the mental condition of G. Y. Booker at the date of the deed of release signed by him.
Upon the whole case we are of opinion that as the evidence is conflicting, the credibility of witnesses is involved, and a charge of fraud is to be determined, the proof is not sufficiently definite and certain to satisfy us that the ends of justice have been attained by the decree of the Corporation Court, and in order that the subject may be more fully investigated, an issue should be framed and tried before a jury to ascertain whether or not W. 0. Booker was in good faith the owner and holder, for value, of the note in controversy, upon the trial of which issue W. O. Booker is to hold the affirmative.
We are further of opinion that W. O. Booker will be a competent witness upon the trial of that issue. The question here does not involve an inquiry into the execution of the note, nor its original validity. The subject of investigation is the payment of that note. Beither the estate of G. Y. Booker, nor that of his wife, is interested in the result of the issue to be tried. Appellant claims that the note has been paid, and in proof of it vouches a release from G. Y. Booker; W. 0. Booker asserts that it has not been paid, and relies upon the transfer of the
Tbe decree complained of will be reversed, and this court will enter such decree as tbe Corporation Court should bave entered.
Reversed.