1848. April Term. who when he had read it, remarked that an important word was omitted, and himself inserted the word Stubble "equally." Witness then read the agreement aloud, and enquired of the parties whether it embraced their Beazely. views; they said it did, and proceeded to execute it. field The cause came on to be heard in March 1840, when the Court made a decree appointing commissioners to divide the land, allotting to Beazely two equal third parts, taking into consideration the quality and improvements as they were in September 1835, when the agreement was made, as well as quantity, and to Stubblefield the other third part. From this decree Stubblefield applied to this Court for an appeal, which was allowed. Lyons, for the appellant, insisted: 1st. That the parol evidence was inadmissible to explain the agreement between the parties. That the agreement was plain and explicit both as to what each was to pay and to receive, and there was no latent ambiguity to be explained. 1 Greenleaf's Evi. part 1, $275-6, ch. 15, § 277; Boyer v. Martin, &'c., 6 Rand. 525; Crawford v. Jarrett's adm'r, 2 Leigh 630. 2d. That the parol evidence confirmed the agreement, and proved that the land was to be divided equally. Griswold, for the appellee, on the first point, admitted the general rule, that parol evidence was not admissible to vary or explain a written agreement; but said there were many exceptions to it; one of which is where there is a latent ambiguity. And he insisted that the words "equally divided," did not necessarily mean equal in quantity or value, but might and did often mean in just proportion or equitably; and that it was therefore proper to explain by parol evidence in what sense the words were used. He referred to Roberts on Frauds, p. 15, 16, 22, 27, 28, 32, 33; Reno's ex'or v. Davis, 4 Hen. & Munf. 283; Shelton's ex'or v. Shelton, 1 Wash 1848. April 53; Flemings v. Willis and wife, 2 Call 5; Ross v. Norvell, 1 Wash. 14; Bumbgardner v. Allen, 6 Munf. 439; Colpoys v. Colpoys, 4 Con. Eng. Ch. R. 210; Long v. Colston, 1 Hen. & Munf. 111; Rucker v. Low- field ther, 6 Leigh 259. 2. He examined the evidence, and insisted that the true agreement was that the land should be divided in proportion to what each party paid. ALLEN, J. delivered the opinion of the Court. The Court is of opinion, that the decree of the Court below is erroneous in directing partition of the land in the bill mentioned to be so made as to assign to said Beazely two equal third parts thereof; this Court being of opinion that by the agreement of the 29th September 1835, the said tract of land was to be equally divided between the parties by a line, to commence and run as designated in said agreement, so as to assign to said Beazely on the south or lower side of said line one equal moiety of said land, taking into consideration the quality thereof, and the improvements thereon as they existed on said 29th September 1835. Decree reversed with costs, and cause remanded for partition of said land to be made according to the principles aforesaid, and for a final decree. Stubble V. Beazely. Richmond. ROBINSON'S ex'ors v. DAY. 1. A party comes into equity, and states in her bill that she is the only child and distributee of her mother, and as such is entitled to certain slaves then in the possession of a third person who is about to remove from the Commonwealth and take the slaves with him, before she can qualify on her mother's estate; and asks that he may be restrained from 1848. April Term. 1848. April Robinson's ex'ors V. Day. taking the slaves out of the State. The injunction is granted, and the defendant appears and files a plea, in which he admits he has the slaves in his possession, and he claims them as his own; but he denies that he is about to remove from the State, or to remove the slaves; and he objects to the jurisdiction of the Court. Pending this suit, the plaintiff dies without children, and then third persons file a bill in the same Court, against the adm'r of the first plaintiff, and the defendant, setting up a claim to the slaves, under the will of another person, who had bequeathed the mother of the slaves to the plaintiff in the first suit for life, and then on her death without children, to the plaintiffs in the second suit. The defendant who claimed the slaves again appeared and objected to the jurisdiction of the Court. HELD: The Court has jurisdiction of the case. 2. A cause is ready for a decision as to the substantial parties, at a regular term of the Court. At a following intermediate term, the plaintiff amends his bill to make a formal party, who comes in and files his answer at the same term, and consents that the cause may come on to be heard. The Court may hear the cause at the intermediate term, though it is objected to by the substantial defendant, as to whom it was ready at the preceding regular term. Catharine Day applied to a Judge of the General Court to enjoin Abner Robinson from removing from the State a negro woman Maria and her five children, who the plaintiff claimed to be her property. In her bill she alleged that she was the only child of Elizabeth N. Page deceased, to whom the said slaves belonged; and that she, as the only child of said Elizabeth, was entitled to them. That she intended to qualify as administratrix of said Elizabeth N. Page, as soon as the Court sat, by which administration could be granted. That a certain George O. Day, the putative father of the plaintiff, had purchased Maria in 1810, then a small girl, and gave her to the said Elizabeth N. Page, who took possession of her and held her until the death of George O. Day, in 1811. That the said Maria and her children, as they were born, remained in possession of said Elizabeth until her death. That since her death, Abner Robinson had taken possession of said slaves and claimed them as his own. That he had already removed one of the said slaves, and was about to remove himself out of the Commonwealth; and plaintiff feared he would remove the other slaves. She therefore prayed for an injunction to restrain him from removing said slaves out of the Commonwealth, and that he might be compelled to deliver them to the plaintiff, The injunction was granted, and the sheriff was directed to take possession of the slaves, unless the defendant should give security in the penalty of 3500 dollars, with condition to have the slaves forthcoming, to abide the future order of the Court. Robinson appeared, and put in a plea and answer. In his plea, he admitted he had possession of the slaves, whom he claimed as his own; but he denied that he had any intention to remove out of the Commonwealth, or to remove the slaves; and he objected to the jurisdiction of the Court, on the ground that the plaintiff had a plain remedy at law. In his answer, he alleged that he purchased the slave Maria from Elizabeth N. Page, when she was but a girl of seven or eight years old; and he filed with his answer a paper executed by the said Elizabeth shortly before her death, by which she declared that Maria and her children were the property of Robinson. Pending the cause the plaintiff died, and it was revived in the name of Samuel Pleasants, high sheriff of the county of Henrico, and as such administrator of Catharine Day. After the death of Catharine Day, Samuel Day and Richard Day Taylor, filed their bill in the same Court against Pleasants, as the administrator of said Catharine and Abner Robinson, in which they alleged that George O. Day died in 1813, possessed, among other things, of the slave Maria. That by his will, which VOL. V. 1848. April Term. Robin son's ex'ors V. Day. 1848. April Term. son's ex'ors V. was duly admitted to record in the Hustings Court of the City of Richmond, he bequeathed to his natural Robin- daughter Catharine Day, the slave Maria and her increase for her life, and at her death, to her children, if she had any at her death; but if she died without chilDay. dren living at her death, then he gave the said slave and her increase to the plaintiffs. And he further provided that until the said Catharine arrived at the age of twenty-one years, or married, Elizabeth N. Page was to have the use of said slave to aid her to raise and educate the said Catharine. That said Catharine married, but died in 1837, without leaving children at her death. And charging that Robinson had possession of the slaves, claiming them as his own, they asked that he might be restrained from removing them out of the Commonwealth, and for general relief. Robinson answered the bill, calling for proof of all the facts alleged in the bill in relation to the title of the plaintiffs. He admitted he had a slave called Maria and her children in his possession. Maria, he alleged, he had bought more than twenty years before the filing of the plaintiff's bill, when she was a child in the possession of Elizabeth N. Page, and had held her as his own property ever since; and that he had held her children as his own since their birth. He insisted that having held adversary possession of these slaves for more than five years, by the laws of Virginia his title to them was thereby made perfect. He denied that he had any intention to remove them from the Commonwealth; and objected to the jurisdiction of the Court. The will of George O. Day very clearly gives the slave Maria and her increase to the plaintiffs, upon the death of Catharine Day without children living at her death; and the proofs establish that the Maria in the possession of Robinson, was purchased by George O. Day, and put into the possession of Elizabeth N. Page; and that Catharine died without children. |