Sims's Administrator v. Lewis's

5 Munf. 29 | Va. | 1816

February 7th, 1816,

Judge Roane

pronounced the court’s

opinion.

This court is of opinion that the origina! contract of sale by Warner Lewis to J. D. Armistcad >.-f the latid in controversy, as well as the bond given by the former to Jesse Sims, Is impeached of fraud by the answer of the appellee John Lewis, and put in issue by the parties; — that the issue directed in this case extends as well to the one transaction as to the other; and that the finding of the jury under that issue, taken in connexion with the pleadings and facts proved in the cause, is sufficient to justify a decree setting aside both contracts; more especially, as that verdict is supported by the evidence in the cause, and may have been founded, in part, on evidence riot spread upon the record.

The court is farther of opinion, that the appellant’s intestate Sims came properly into a Court of Equity, instead of proceeding at law, in the first instance, for damages; — on the ground that Warncr Lewis had conveyed away his property in trust, whereby there might be a difficulty in obtaining satisfaction of his judgment when recovered; and that there is no objection to the proceeding, as he included the executor of the said Warner, as a defendant, who was competent to contest the justice of the claim; and that this proceeding, while it avoids a circuity of action, obviates the objection, which Strongly exists, in favour of the preference of jury trial, in consequence of the power of the Court of Chancery to have the justice of the debt tried by an issue, as was done in the case before us.

The court is farther of opinion that, as both the transactions aforesaid have been found to have been made under circumstances of imposition sufficient to set aside and vacate the same in a Court of Equity, the appellant ought not, when coming into that court as a plaintijf, to be sustained even to recover back money paid under either of the said contracts ; but that, if he has any right thereto, he ought to be left at law to recover the same.

On these grounds the decree is affirmed.