Cheatham v. Cheatham's Ex'r

• Decision Date: 28 January 1886
• Citation: 81 Va. 395
• Parties: CHEATHAM v. CHEATHAM'S EX'OR. CHEATHAM'S EX'OR v. CHEATHAM.
• Court: Virginia Supreme Court

81 Va. 395

CHEATHAM v. CHEATHAM'S EX'OR.

CHEATHAM'S EX'OR v. CHEATHAM.

Supreme Court of Appeals of Virginia.

January 28, 1886

Two appeals taken from decrees of circuit court of Lunenburg county, rendered in the same cause, under the style of Cheatham v. Cheatham's Executor and others. The decree from which the first appeal was taken was rendered November 18, 1878. The decrees from which the second appeal was taken were rendered June 18, 1881, and November 11, 1881.

Opinion states the case.

Irvin & McKenny and W. W. Henry, for the appellants.

H L. Lee and Pegram & Stringfellow, for the appellees.

OPINION

LACY J.

The case is as follows: In 1876 Susan F. Cheatham filed her bill in the circuit court of Lunenburg county, alleging that Thomas Cheatham, late of the said county, but now deceased was her husband; that before her marriage with the said Cheatham she was the widow of John T. Merriman, deceased, under whose will she was possessed of two tracts of land, one situated in Lunenburg county and one in Charlotte county, and considerable personal property; that before her marriage with the said Cheatham a contract was entered into between them, conveying this property to one W. B. Chappell, in trust " for the said Susan F. Merriman and her assigns until the solemnization of the said intended marriage; then upon trust that the said W. B. Chappell, his executor, & c., shall permit the said Thomas Cheatham, during the joint lives of himself and the said Susan F. Merriman, his intended wife, to receive and take all the issues, rents and profits of the same, to and for the joint use and benefit of the said Thomas Cheatham and Susan F., and the child or children of the said Susan F., and the benefit and support of the issue of the said intended marriage, and from and after the death of the said Thomas Cheatham, the whole of the property hereby conveyed shall vest in the said Susan F.; and in the event the said Thomas Cheatham should survive the said Susan F., at her death the same shall vest in her heirs-at-law, or to whomsover she may devise the same by her last will and testament." That the said Thomas Cheatham had died, having first made a will, under which one William A. Wilson had qualified as his executor. That before her marriage, the sum of $980 had accumulated from the profits of her farm, and was in the hands of the said Chappell, which was paid over to Cheatham upon the marriage; that said Cheatham had cut, during the coverture, bark from her land worth $261.75; that said Cheatham sold one of her tracts of land for $700, and received the money therefor, and afterwards contracted to sell, and did deliver possession of her mansion-house tract for the sum of $3,000, received a part of the purchase money therefor, and took bonds for the deferred payments, which bonds were in the possession of his executor, Wilson; and that the executor of the said Cheatham be required to pay to her these several sums, and deliver to her the uncollected bonds given for the purchase of the said land.

In the month of May of the following year Susan F. Cheatham filed an amended bill, stating that $585 was the price of her Charlotte land, and not $700, as she had stated; that Webb & Stokes were the purchasers of the Lunenburg land, and that E. E. Hundley was the purchaser of the Charlotte land; that as to the Lunenburg land, that she could not now state that any part of the purchase money had been paid; that she was willing to confirm the sale to them upon the bonds being turned over to her, and whatever money had been paid being paid to her by her husband's executor; that the deed she had made to Hundley was only a pretended deed, made by her under her husband's control and authority over her; that the deed could not be enforced against her, and Hundley had no title whatever to the said tract of land, and that she was not willing to make him a deed except upon his paying the money again to her, or upon the payment of the same to her by her husband's executor.

Cheatham's executor answered this bill, stating that the said Susan F. was the administratrix of her first husband, John T. Merriman; that upon her marriage her powers were revoked, and that the said Thomas Cheatham qualified on the Merriman estate; that the Merriman estate was much indebted; that the personal property was appraised at $391.25, and sold by Cheatham at $512; that Cheatham paid $1,660.93 for this estate, as his settled accounts showed; that the sale to Hundley was made by her, and her husband had no concern with it; that if she wished to set aside the sale to Hundley, Hundley should be made a party to the suit; that as to the sale of the other tract, her husband was only a formal actor, and that the bonds of the purchasers, Webb & Stokes, were not in his possession, but where they had always been, in the hands of Susan F. Cheatham, which she well knew; that the money realized from the sale of the Hundley land was used by Susan F. Cheatham for the education of her daughter by the first marriage, at costly and expensive seminaries, and not used by Thomas Cheatham, who was a man of large means, and had no occasion whatever to use his wife's money.

The matters of account in dispute having been referred to a commissioner, he reported three accounts, numbered respectively one, two and three.

No. 1 was an account of Cheatham as administrator of John T. Merriman, deceased, showing a balance due Cheatham of $276.33; No. 2 was an account of debts claimed by Susan F. Cheatham against the estate of Thomas Cheatham, deceased, showing a total of $1,987.20. In this account was included the sales of the Charlotte land of $585 principal, and $209.33 interest. No. 3 was an account of the outlay made by Thomas Cheatham for the education of M. E. Merriman, the daughter of Merriman, amounting to the sum of $2,243.52.

Webb & Stokes asked to be admitted parties defendant to the bill, and filed their answer declining the purchase made by them, upon the ground that the contract or agreement of purchase made by them was, under the marriage settlement aforesaid, a nullity; that they could not compel compliance on the part of Mrs. Cheatham, and asking that the same be declared a nullity, and the amount paid by them refunded to them.

At the same term a decree was rendered by the court directing that E. E. Hundley be made a party defendant, and summoned to answer the bill in the cause; declaring that the agreement of sale to Webb & Stokes was a nullity; directed that Webb & Stokes deliver the real estate bought by them up to Mrs. Cheatham; that an account be taken of the rents and profits of the said land during the time it was in the possession of the said Webb & Stokes, and make enquiry of waste and damages, & c.; that the administrator of Merriman pay to the executor of Cheatham $276.63, the amount found due by account No. 1; and offsetting the amount of account No. 3--$2,243.52--with the amount stated in account ...