88 Va. 149 | Va. | 1891
Lead Opinion
delivered the opinion of the court.
A transcript of the record of the said bill of review, and a transcript of the record of the original cause in which the said bill of review was filed, show the following case : In September, 1882, Stephen Watts, as executor of Charles B. Reynolds, deceased, and in his own right, filed his original bill in the circuit court of Floyd county, against Iiarvey A. Reynolds, charging that the said Harvey A. Reynolds was indebted to C. B. Reynolds, deceased, in the sum of $1,600, due by four bonds filed with the bill, of $400 each, for unpaid purchase-money for land sold and conveyed by said Charles B. Reynolds, in 1869, to the said Harvey A. Reynolds, for which a vendor’s lien vras reserved in the deed filed with the bill, which he prayed to enforce.
Harvey A. Reynolds answered the bill, setting out that he had bought of Charles B. Reynolds in 1869, thirty or forty acres of a-tract of “ Wiley” land and one-half of the “ Guerrant” land, owned by the said C. B. Reynolds, for $5,000; and had paid all of the said purchase-money except the four bonds filed with the bill; that no lines or boundaries for the division of the Guerrant land were pointed out, mentioned, fixed or agreed to at the time of the said sale in 1869; and that it was not divided, and no division was- marked across it, until 1872, when Charles B. Reynolds instructed a surveyor, Stephen Guerrant, to lay oft' to Harvey A; Reynolds, one-half of the Guerrant land, telling him that he had sold to him one-half of
The court below, by its decree of May, 1884, was of opinion that the contract between C. 33. Reynolds and Harvey A. Reynolds was a contract of hazard according to the boundaries in the deed, and refused to allow any abatement of the purchase-money on account of the loss of 102 acres less than one-lialf of the Guerrant land. From this decree of the circuit court of Floyd county, an appeal was allowed to this court; and this court, by its decree of June 25th, 1885, affirmed the said decree of the circuit court of Floyd. After the cause went back to the court below for further proceedings, and the land of appellant was sold under the decree of May, 1884, but the purchase-money not collected, the defendant, Harvey A. Reynolds, at the Uovember term, 1886, by leave of the said circuit court of Floyd county, filed his bill of review in the cause, founded upon after-discovered evidence, material and sufficient to change the decrees of the circuit court and of this court, and which he never knew of before, and could not have known
The case is here upon appeal from this decree, and the question presented for the decision of this court now is, Did the circuit court err in denying the relief prayed for in the bill of review, and in dismissing- the bill ?
In the case of Connolly v. Connolly and others, 32 Gratt., Judge Burks delivered the opinion of this court, in which, after stating the requisites of a bill of review based upon the ground of after-discovered evidence, it is decided that “ a bill founded on after-discovered evidence, with the requisites just stated, may be filed to review a decree even after it has been affirmed by an appellate court.” Citing J. B. Campbell’s Executors v. A. C. Campbell’s Executors, 22 Gratt., and cases cited; Singleton v. Singleton and others, 8 B. Monroe. In the case of Campbell’s Executors v. Campbell’s Executors, supra, Moncure, P., delivered the opinion of this court, in which it is said, on page 673, “ That a decree of the Court of Appeals, which has been certified to and entered as the decree of the court below, may be reviewed and, corrected, or reversed, on a bill of review filed in the latter court, founded on new matter, seems to be true.” * * “ But while it is no doubt true that a bill of review may be allowed in such a case, * * * the new matter, to be sufficient ground for the reversal of the decree, ought to be very material and newly-discovered and unknown to the party seeking relief at the time the decree was rendered, and such as he could not then have discovered by the use of reasonable diligence. This is necessary even in an ordinary case of a bill of review of a decree of the same court in which the bill is filed on the ground of hew matter. A fortiori, it must be necessary when the object is to reverse a decree of the Court of Appeals, in favor of the finality of
Upon the pleadings and proofs in the original cause the question was whether C. B. Reynolds had sold to Harvey A. Reynolds one-half of the Guerrant. tract of land, or only so much thereof as was embraced in the boundaries of the deed. The circuit court decreed that the boundaries in the deed which was accepted by Harvey A. Reynolds, made it a contract of hazard and a sale in gross, and this construction was affirmed by the decree of this court upon the record then presented. The couusel for the appellees, commenting upon the newly-discovered 'testimony presented by the bill of review, asks, “ Would it have produced a different result on the first trial, or is it. of a different character and kind from that taken on the first trial to overthrow the words of the deed from C. B. Reynolds to Harvey Reynolds ? ” We answer this question with an emphatic affirmative. All the characteristics of after-discovered evidence as a basis of a bill of review, obtain in the evidence presented by the record now under review; it was discovered after the decree was rendered in the circuit, court, and after it was affirmed by this court; it could not have been discovered before by the exercise of reasonable diligence ; it is material, and such as, if true, ought to produce on the trial of the issue, a different, result, and one in consonance with the demands of justice; and it is not merely cumulative. It consists of the full, clear, and positive testimony of the Rev. James M. Price, Captain William P. Thompson, Mr. M. G. Angel, and Mr. Aaron Beckner, all highly respectable white men of Franklin county, the life-long friends and neighbors of C. B. Reynolds, who all swear that the facts within their knowledge were never made known by them to Harvey A. Reynolds until after the decision of the case, in the Supreme Court of Appeals, and the discussion in the neighborhood about, the suit and the sale of Harvey A. Reynolds’ land to
The evidence in the record shows that C. B. Reynolds was a wealthy land-owner in Franklin and Floyd counties, who had no wife or children or descendants liviug; that Harvey A. Reynolds, who had been his former slave and, up to his death in 1875, his trusted friend and business manager, was an illiterate but industrious, thrifty, and worthy colored man, between whom and C. B. Reynolds there existed kindness, affection, and perfect confidence. In January, 1869, C. B. Reynolds sold to Harvey A. Reynolds, upon long time and easy terms, one-half of his Peter Guerrant tract of land' in Floyd county, with thirty acres of his Wiley tract adjoining, for $5,000. At the time of the said sale it was not known how many acres were contained in the Guerrant tract, and the evidence is clear and conclusive that the boundaries of the land sold, simply by the designation of one-half of the Guerrant tract, were not then named* referred to or fixed, nor was even any division line indicated or agreed upon. More than two years after, to-wit, in February, 1882, C. B. Reynolds instructed Stephen Guerrant,' a surveyor, to go upon the land and survey and lay' off one-lialf of the Guerrant land to Harvey A. Reynolds, to whom, he told the said Stephen Guerrant, he had sold it. Guerrant reported to C. B. Reynolds that he had surveyed and laid off one-half the Guerrant tract, and that the lines or boundaries indicated and expressed in the deed which he prepared would give to Harvey A. Reynolds one-half of the Guerrant tract. This he expressly said and assured to Harvey A. Reynolds, who, under that information and belief, accepted the deed, which C. B. Reynolds had executed under the same information and belief in the competency and integrity of the said Stephen Guerrant, surveyor. A mutual mistake, into which both the grantor and grantee in the said deed were deceived by the statements and misrepresentations made by the said Stephen Guerrant, who had, as the event and the evi
This mistake, or, more accurately speaking, this imposition, upon both O. B. Reynolds and Harvey A. Reynolds, was never known or discovered by either C. B. Reynolds or Harvey A. Reynolds until C. B. Reynolds sold the residue one-half of his Guerrant tract to one ~W. H. PofF, who refused to buy it except by the acre, and C. B. Reynolds had it surveyed by the said Stephen-Guerrant and found that it contained 562 acres. This disclosure of the fact that the deed which he had made to Harvey A. Reynolds, as prepared by Stephen Guerrant, did not convey to him one-half of the Guerrant tract greatly surprised and distressed him; and he expressed, openly and frequently, his purpose to repair the injustice done to Harvey A. Reynolds ; but which he did not do because of extreme ill-health, suffering, and death away from his home, in Lynchburg, whither he had gone for treatment.
It will not -be possible to extend in this opinion, without Swelling it to unnecessary length, all the evidence, newly-discovered, and presented under the bill of review; but. the testimony of W.' P. Thompson (which is only a sample of the others) will fully expose the action and motive of the fraud and abuse of confidence practiced by Stephen Guerrant upon both the grantor and grantee in the deed which he imposed upon them; and of which he subsequently took his own advantage. W. P. Thompson says : ‘‘ I knew Charles B. Reynolds for many years, in fact from my childhood, until he went to Lynchburg in 1875, where he died. "When I first knew him he lived in Floyd county. About the year 1842 he fixed his residence in Franklin county, in my .immediate neighborhood, where he remained until shortly before his death. Before the war he was a man of large property, consisting mostly of land and slaves; and even after the war he had a good estate.
The testimony of the three other after-discovered witnesses is as full and clear, and as positive and direct, on all points, as that of the witness, W. P. Thompson, above detailed; and they all say that C. B. Reynolds expressed his surprise and indignation at the fraud practiced upon both him and Harvey Reynolds by Stephen Guerrant, and asseverate his desire and purpose to redress the injustice done to Harvey Reynolds, by giving him credit for the value of the land he did not get, upon his purchase-money bonds. That having sold the land to Poff, this was the only way in which he could correct the wrong.
We are of opinion that the after-discovered evidence, which was before the circuit court under the bill of review, entitled the appellant, Harvey A. Reynolds, to the relief prayed for in his bill; and that the decree of the said court, of the 19th of
Dissenting Opinion
(dissenting), said :
This is the same case which was decided at the June term of this court, 1885, under the name of Reynolds v. Watts, etc., Watts being the executor of Charles B. Reynolds, deceased; the appellee then and the appellee now. The case as it is stated in the opinion of the court at that term is as follows:
“ Lacy, J. This is an appeal from a decree of the circuit court of Floyd county, rendered at the May term, 1884. In October, 1882, 'the appellee Watts, executor of Charles B. Reynolds, deceased,.instituted this suit against the appellant, seeking to charge the lands of the appellant with the payment of the residue of the purchase-money due and unpaid thereon to the said Charles B. Reynolds, deceased. The said land having been sold to the said appellant by the said Reynolds, deceased, a lien was retained in the deed to secure the payment of the purchase-money unpaid, being evidenced by the four bonds of the purchaser, two of which had been assigned to .the appellee, Watts, and two of which were due to the estate of the said Charles B. Reynold's, deceased. The appellant answered, setting forth that the land had .been- purchased in 1869, and that the unpaid purchase-money claimed in the bill had never been paid, but that he was entitled to an abatement in the purchase-money because of a falling off in the quantity of land of one hundred and fifty-five acres, which, at $11.19 per acre, would be $1,7-34. That the bonds sued for only*159 amounted to $1,600 in the aggregate, upon one of which a credit of $81 appeared; and that the estate of Chas. B. Reynolds was indebted to him for overpayment in the s\im of $215; and filed set-offs in addition to the amount- of $500 and $31.09, without interest, and asked for a decree against the estate, of Chas. B. Reynolds. That Chas. B. Reynolds- had sold to him one-half of what was known as his ‘ Guerrant Land,’ which contained eight hundred and fifteen acres, from which four acres had been sold off. That he was thus entitled to have over four hundred acres of this' land; and that subsequently he had bought of Chas. B. Reynolds another tract of land of one hundred and fifty-four acres, out of the other half of the Guerrant land, at $7.50 per acre. The deeds in question, and the other deeds conveying other portions of the Guerrant land, are exhibited, and the testimony of numerous witnesses filed in the record. The land was surveyed, and the report of a commissioner filed to whom it had been referred for an account of the purchase-money remaining unpaid, etc. And on the first day of May, 1884, a decree was rendered in the cause, in which the circuit court, allowing the offsets claimed and proved, decreed against the appellant for the balance due to the estate of Chas. B. Reynolds, deceased, and for the balance due on the assigned bonds, and held the same to be a charge upon the land, and decreed a sale of the land to pay the same, unless the said appellant should pay the said balance within ninety days from the rising of the court, and refused to make any deduction for the alleged loss of land. From this decree an appeal was allowed to this court. -There are no disputed questions of law in the case, the principle upon which the case must be decided being well settled and conceded on both sides.
“ The whole case depends on the disputed question of fact as to whether the sale of the land was á sale in gross, -and in so far a contract of hazard, — that is, a tract of land'within designated boundaries, as to which a falling short in quantity will be no ground for relief, — or whether it was- a sale of land*160 at gross price, upon estimate of quantity influencing price, when a mistake has occurred, which if understood, would probably have prevented the sale, or varied its terms, which, upon well-settled principles, would have been ground for relief in equity. The appellant claims to have bought onelialf of the Guerrant land — ’about 400 acres — and thirty acres of another tract in 1869, boundary to be afterwards ascertained; that in 1872 line was run, deed made, and bonds executed, the price in gross being f5,000; that he was put in possession of the land at once, and so remained. His vendor died in 1876, and this suit, as has been said, was instituted in October, 1882. The last bond fell due in January, 1882, when, four bonds remaining unpaid, suit was instituted in the month of October of that year. The deed by which this land was conveyed described it ‘ as a certain tract of land containing a supposed boundary of three hundred and fifty acres, be the same more or less, and bounded as follows,’ setting out the boundary lines with great minuteness, giving courses and distances, with the words added, ‘ it being about one-half of the said C. B. Reynolds Guerrant land,’ and to the deed was appended this memorandum : {IST. B. All the land is sold in the boundaries excejft four acres, which was sold to I Huff, before this deed was made.’ It is clear from the evidence that at the time this sale was made the Guerrant land had not been surveyed, and was only known by the boundaries. Soon after the land not sold to appellant was surveyed, and turned out to contain 563 acres. This fact was then known to the appellant, and yet he never said anything about having bought by the acre, or with reference to the number of acres, until the vendor was dead— indeed, had been dead six years — and not until suit was brought to compel payment "of the unpaid purchase-money. And, although the land conveyed to appellant as about half of the Guerrant tract, contained, in accordance with the contract, thirty or forty-acres of the "Wiley tract, no mention whatever*161 is made of the thirty or forty acres in the deed, hut the two pieces are conveyed together, without distinction hy metes and bounds, as included within a boundary containing 350 acres, more or less. If only bought as one-lialf of the Guerrant tract, why was this thirty or forty acres included ? The evidence shows that, while the original agreement ivas for these two pieces of land, there was no deed made until the line was run and the boundaries laid off. The sale ivas for the gross sum of $5,000 for this marked and designated tract of land, and there was not a word said about the price per acre, and where the quantity is mentioned it is as 350 acres, more or less, within certain boundaries. There is no ground to suppose that the sale ivas other than a sale in gross of a designated piece of land at an agreed price.- The estimation of the quantity, so far as it went, was made by both parties, upon the same facts, wldcli were equally known to both. The vendor did not take upon himself to make any affirmation or representations in respect to quantity. The vendee knew as much about the land as the vendor, baling resided upon it, and known it just as long. The vendor spoke his real opinion, founded upon the very same information which his vendee had, and in which the latter concurred with him, without being influenced hy it, so far as the evidence shows. The vendor concealed no fact within his knowledge which could in any degree influence the opinion. The sale was a sale in gross, within unascertained boundaries, and consummated without a survey, by mutual agreement— was a contract of hazard, without any fraud, concealment, misrepresentation, or negligence on the part of the vendor. The error in the quantity, if there ivas any such, ivas mutual, and was not in relation to the substance of the tiling-contracted for, but in relation to the very hazard contemplated hy the parties — a contract in which the purchaser took the risk of quantity upon himself. This court has uniformly recognized the validity and obligation of such a contract, and in all cases where relief has been given, it has been founded on eircum*162 stances either of fraud, misrepresentation, or concealment, or mistake, in whole or in part, as to the substance of the thing contracted for.
“ It is not deemed necessary to review the evidence in detail. It is immaterial whether the reference to the one-half part of the Gfuerrant land in the deed is as to quantity or as to value in this case. It is sufficiently clear from the deed and the admitted facts that the sale was for the land within certain boundaries, uninfluenced by the estimate in the deed; that it was a contract for a sale in gross; and a contract of hazard. And the circuit court of Floyd having so held in the decree, complained of, the same'must be affirmed.”
At this hearing one of the judges of this court dissented in the following language, which states his views at that time :
“ I dissent from the opinion which has just been read. In my judgment, the decree appealed from is plainly wrong, and ought to be reversed. I think it fails to give effect to the intention of the parties, and in consequence does great injustice to the appellant here. That parol evidence is admissible in cases like the present to explain the true understanding of the parties is not only well established, but undisputed. As was said by this court in Mauzy v. Sellars, 26 Gratt. 641:
‘ That it is competent for a court of equity to correct a mistake in a deed or other writing upon parol evidence cannot now be questioned. Ho branch of equity jurisdiction is more fully established than this : none is sustained by a greater array of authorities, English and American.’ The application of this principle to the present case leaves no room for doubt in my judgment that the decree should be reversed. The bill was filed to enforce a vendor’s lien on the defendant’s land, and the single question is whether the latter is entitled to an abatement of the purchase-money as claimed in his answer. The original contract to convey the land was by parol. The deed was executed several years' thereafter. That at the time the contract of sale was entered into neither party knew the exact*163 quantity of land in respect of which they were contracting there can be no doubt. The Guerrant land, of which the land he sold to' the appellant was a part, had not then been conveyed to the vendor, but was supposed to contain about 800 acres. The deed to the latter, subsequently made, describes it as containing about 815 acres; and to my mind the evidence is conclusive that the parties contracted with reference to about one-lialf of that tract of land. Then, did the deed to the appellant convey the land for which he contracted ? If it did not, then clearly we have here presented the ordinary case of a mutual mistake, which calls for correction in a court of equity. But what says the deed? It purports to convey ‘ a certain tract of land containing a supposed boundary of 350 acres, be the sanie more or less.’ But it does not stop here. It gives the boundaries, as best the parties could, and then concludes as follows : £ It being about one-half of the said C. B. Reynolds’ part of the Guerrant tract.’ How, if these two statements of the deed are conflicting, then upon the familiar rule of construction that must be taken which is most strongly against the grantor. In point of fact, the deed conveyed, as was afterwards ascertained, less than one-half of Reynolds’ part of the Guerrant tract by 102 acres, and this the appellant contends is contrary to the intention of both parties to that instrument. In support of this contention many witnesses were examined, whose testimony is unimpeaclied; and if their statements are to be taken as true, as I think they must be, then the case of the appellant is established beyond a doubt. The witness, Enoch Reynolds, testifies that he was present when the contract was made, and heard the conversation between the parties. It was agreed, he says, that the appellant was to pay $5,000, and ivas to have one-half of Reynolds’ part of the Guerrant tract, and thirty-five or forty acres of the Wiley, tract; and he further says that Reynolds, the vendor, expressed the belief that his part of the Guerrant tract contained about 800 acres. After the land to the appellant was*164 sold, tlie residue of the tract was sold by Reynolds to one Charles Craig; and the latter testified that Reynolds represented to him that he had sold one-half of the tract to the appellant. Subsequently the land thus sold to Craig was again acquired by Reynolds, who offered to sell it to various persons as containing 400 acres, and at a much less sum than he obtained for the land he had sold the appellant. The witness, Robert P. Craig, testifies that he repeatedly heard Reynolds say that he had sold the appellant one-half of his part of the Guerrant land. And to the same effect is the testimony of other witnesses. The witness, Buckner, testifies that, in a conversation with Reynolds, after the sale to the appellant, he informed him that he had instructed the surveyor to run off* to the appellant all the Guerrant land but 400 acres. And vai'ious witnesses testify that after the sale to the appellant Reynolds offered to sell to them the residue of the tract, and represented it to contain 400 acres.' I am at a loss to imagine how stronger evidence than this could be adduced to show the real intention of the parties in respect to the transaction in question, when takeu in connection with the expressed object of the deed to convey ‘ about one-half of Reynolds’ part of the Guerrant tract.’ In opposition to this testimony are the depositions of four Avitnesses, one of whom is Mrs. Mary Jack, and another, Charles W. Aldridge. These Avitnesses testify to Avague and loose coiwersations AAÚth the appellant, and admissions by him, Avliich at the most are entitled to little Avoight, if any at all, as against the clear and positive eAddence Avhich Avas taken for the appellant. It appears, moreover, that Mrs. Jack and Aldridge are the wife and step-son, respectively, of one John O. Jack, AArho, apart from his hostility to the appellant, appears in no enviable light in the present controversy, if the uncontradicted testimony is to be taken as true. The Avitness, S. L. Walton, testifies that in a conversation with Jack, while the depositions in the suit Avere being taken, the latter said to him that if he (Jack) and his Avife and her son (Aldridge)*165 were summoned, Harvey Reynolds (the appellant) would be thrown; and further said that they ‘might make some money, probably a hundred or two,’ if Mr. Watts, the plaintiff, were informed, and would summon them. Prudently enough Jack himself was not summoned, and I deem it unnecessary to further comment upon the testimony of his wife and her .son, who were.
“ Xow, in view of the language of the deed, already quoted, construed, as it must he, in the light of the parol evidence in the case, I cannot hesitate to say that, in my judgment, this appellant, whom the record shows to be an ignorant, old, colored mau, of exceptional merit, and who, in the life-time of his ‘ old master,’ the appellee’s testator, was the object of his confidence and affection, and but for whose death this controversy most probably would never have arisen, has been most greviousty wronged by the decree complained of. JBy that decree, now affirmed by this court, he is required to pay the sum of nearly $2,000, or, in default thereof, his land to be sold, when, according to the evidence in the case, and the well-established law of this state, as I understand it, he justly owes not one cent. A late case on the subject is Yost v. Mallicote’s Adm’r, 77 Va. 610. Tn that ease the vendee, purchased and took a deed for a tract of land within certain metes and bounds, which was verbally represented to contain a certain number of acres, and probably more. Afterwards it was ascertained that the quantity of .land within the boundaries was less than had thus been represented. It was held, upon the evidence in that case, that the. vendee- -was entitled to an abatement of the purchase-money on the ground of mistake, although judgments on the bonds for the, purchase-money had been obtained at lawr. The present case, it seems to me, is equally strong for the appellant. The contract was entered into for the purchase of about one-half of the Guerrant land, as shown by the deed itself and the evidence of the witnesses. It is not denied that the land fell short more than 100 acres of*166 that quantity. It is equally certain that the price contracted, to he paid was an adequate consideration for the one-half of the tract the appellant supposed he was buying, and therefore a much larger sum than the quantity of land he actually got was worth. 'Why, then, should he not be entitled to an abatement of the purchase-money when summoned to answer in a court of equity.? The deed says that he was to have about one-lialf of the land. Three witnesses heard the vendor say he had sold him one-half of the land, and five witnesses (all white men) heard him say, after the sale was made, that he had but 400 acres left; and the evidence shows that he actually agreed to give all over 400 acres in the residue of the tract to the man who wrould insure that it contained as much as 400 acres. The fact is that, owing to the mistake of the parties, it really contained 562 acres. And the result is that the vendor not only retained more than 100 acres of land justly belonging to the appellant, but that now his executor, under what seems to me a mistaken view of the law and the facts of the case, is decreed to be entitled to recover a large sum of money besides. I had omitted to refer to the memorandum at the end of the deed, to which much weight seems to be attached in the opinion of the court. Its object and effect was simply to exclude from the operation of the conveyance four acres of the land which had previously been sold to another party, and nothing more. Its language is as follows : £ All the land is sold in the boundaries except four acres, which was sold to I. Huff before this deed was made.’ And that this is the correct view is conclusively shown, I think, not only by the evidence already referred to, but by the deposition of a witness who says the vendor informed him that the land had cost the appellant about $12 per acre. I have thus, in great haste and very imperfectly, expressed my views in this case. I have endeavored to present it fairly and impartially, and am satisfied that the case, as shown by the record, is even stronger for the appellant than I have presented it. Hut*167 enough has been said, I think, to show that the decree is erroneous and ought to be reversed.55
After the rendition of this decision a rehearing was applied for and refused by this court. Subsequently a bill of review was filed in the circuit court of Floyd county, having for its object a review and reversal of the decree of the said court above-mentioned, and the decree of this court affirming the same. The ground was newly-discovered evidence, -which could not with reasonable diligence have been discovered by the plaintiff'in said bill before the first trial, to the effect that C. B. Reynolds “ had admitted on four different occasions, to four different persons, just precisely what your orator contended for in the original clause, to-wit: that he sold your orator in 1869 the Wiley land, and one-half the Peter G-uerrant tract for $5,000; that C. B. Reynolds found out that he had made a mistake and intended to correct it; that these facts, within the knowledge of Rev. Tames M. Price, Captain William P. Thompson, Mr. M. T. Angelí, and Mr. Aaron Beckner, all highly respected white men of Franklin county, and friends and neighbors of Mr. C. B. Reynolds, never became known to plaintiff till decision of case in Supreme Court of Appeals.55 Alleging further that “ plaintiff' knew nothing of these admissions, and there was nothing to suggest itself to him before trial to go to said witnesses, or either of them, and ask them of such admissions, or whether they had any knowledge of said case.55 What this newly-discovered evidence was is set forth in the opinion of the majority, ante, page 155, to some extent as to the testimony of Captain "William P. Thompson. “ He [C. B. Reynolds] told me that he had sold one-half of a tract of land which he owned in Floyd, called the ‘ Guerrant Place,5 estimated to contain about 800 acres, to Harvey Reynolds, a former slave of his.55 This in 1869 or 1870. In 1875 he fell in with him, and he dwelt some time on a controversy he had with Guerrant. On cross-examination this witness was asked: “ Didn’t Harvey go to see you
There are filed fifteen letters, written by Harvey Reynolds to'
What is the lav/ upon the subject of new trials to be granted upon the ground of new evidence ? It has been often stated thus: (1) The evidence must have been discovered since the trial. (2) It must be evidence that could not have been discovered before the trial by the plaintiff or defendant, as the case may be, by the exercise of reasonable diligence. (3) It must be material in its object, and such as ought on another trial to produce an opposite result on the merits. (4) It must not be merely cumulative, corroborative or collateral. Opinion of Burks, J., in Wynne v. Newman, 75 Va. 817; 4 Minor, Inst., Part. I, pp. 758, 579, and cases cited; St. John’s Ex’ors v. Alderson, 32 Gratt. 140, 143. Judge Burks says in Wynne, v. Newman, supra: “Evidence newly discovered is said to be cumulative in its relation to the evidence on the trial when it is of the same kind and character ; ” citing Chief Justice Savage as saying in People v. Superior Court, 10 Wend. 285, 294: “ According to my understanding of cumulative evidence, it means additional evidence to support the same point, which is of the same character with evidence already produced.” The evidence introduced to sustain the bill of review was cumulative only, a large number of wdt-nesses had testified to the same thing on the former trial. At both trials it was stated by witnesses for Harvey Reynolds that C. B. Reynolds had in his life-time said these things; but
Decree reversed.