Carter v. Hough

• Decision Date: 15 December 1893
• Citation: 16 S.E. 665,89 Va. 503
• Parties: CARTER v. HOUGH et al.
• Court: Virginia Supreme Court

16 S.E. 665

89 Va. 503

CARTER

v.HOUGH et al.

Supreme Court of Appeals of Virginia.

Dec. 15, 1893.

Second Appeal — Questions Determined on First Appeal.

Matters finally determined by suit on appeal cannot be reopened where such matters were either actually adjudicated, or could have been adjudicated, in such suit, Pauntleroy, J., dissenting.

Appeal from circuit court, Loudoun county.

Action by Hough, Gray & Co. and others, lien creditors, against Benjamin G. Carter. From decrees of the circuit court dismissing the amended petition of Kate E. Carter, said petitioner appeals. Affirmed.

C. H. & R. H. Lee, for appellant.

J. W. Foster and J. H. Alexander, for appellee.

Lacy, J. This is an appeal from decrees of the circuit court of Loudoun county, rendered, respectively, on the 25th day of October, 1890, and the 30th day of April, 1891. The case is a sequel of the case of Carter v. Hough, heretofore decided in this court, and reported in 86 Va. 668, 10 S. E. Rep. 1063. The suit was by lien creditors of the appellant, Benjamin G. Carter, to subject his real estate to their liens by judgments and deeds of trusts. Among these were judgments confessed by Benjamin in favor of his mother, Elizabeth O. Carter, for large amounts, and these were assigned by the said Elizabeth to a certain trustee— First, to pay the expenses of the trust; secondly, to pay certain designated debts; thirdly, to pay certain other named debts; fourthly, to pay any other debt of Benjamin for which Elizabeth was surety; fifthly, to hold the residue as Benjamin might appoint by writing under seal, and in default of, or until, such appointment, to pay the income therefrom to Benjamin, the grantor reserving the right to revoke the same. In that suit Kate E. Carter, the appellant in this case, filed her petition, setting forth that Benjamin had borrowed $3,000 of her, and secured the same upon his already much incumbered real estate; alleging that it had been represented to her by the counsel of Benjamin that the liens, all told, on his lands, amounted to only $2,400, and that the said Benjamin afterwards contracted the large judgments of E. O. Carter, though said Elizabeth's were prior liens to hers. The court rendered certain decrees in the said suit, from which the said Benjamin appealed, which will be found fully set forth in the said case on the said former appeal, and all of which were affirmed; and it is not deemed necessary to review that case here again. It appears that by that it is set forth that under the deed in trust of July 24, 1878, Benjamin Carter had appointed the claim of Kate E. Carter, and had procured his aged and infirm mother to revoke the said trust deed, as she had reserved the right to do therein, and then assign the same to him, to use as he saw fit, in disregard of the said trusts. In this he was restrained by the court, and the action of the circuit court was approved by this court. This case was decided here in March, 1890, but in September,...