Jenkins v. Liston

• Decision Date: 08 September 1856
• Citation: 54 Va. 535
• Court: Virginia Supreme Court
• Parties: JENKINS v. LISTON & als.

54 Va. 535

JENKINS v. LISTON & als.

Supreme Court of Appeals of Virginia.

September 8, 1856

Arbitrators having received a paper as evidence without the knowledge or consent of one of the parties to the arbitration, though they say tat their opinions were formed before it was received, their award is void.

John Jenkins died prior to June 1835, after having made his will which was duly admitted to probat in the County court of Preston county. By his will, after giving to his wife for her life a part of the tract of land on which he lived, and to his son Jonathan Jenkins, the land on which he lived, which was a part of the first tract, he says: " Thirdly. The lands I now live on, exclusive of that which I have bequeathed to my son Jonathan Jenkins, I give and bequeath to John Smith my son in law and Rebecca Smith, my daughter after my wife's decease, fully to be possessed and enjoyed by them during their natural lives; and after their decease to fall to their son, John Jenkins Smith. And in case of his death, the land is to fall to the rest of John Smith and Rebecca Smith's children." The land devised in this third clause of the will is stated in the bill to be between one hundred and fifty and one hundred and sixty acres.

In March 1836 John Smith and wife and John Jenkins Smith and wife united in a deed, by which they conveyed to Jonathan and Graham Jenkins all their interest in the land devised to them by John Jenkins, and covenanted to warrant the land against their respective heirs.

John Jenkins Smith died in 1841, in the lifetime of John Smith and his wife, leaving a widow and two children. John Smith survived his wife and died in 1853, leaving several children and real estate which, exclusive of his widow's dower was valued at his death at nine hundred dollars; and which pending this suit was valued at one thousand four hundred dollars.

In February 1854 Abraham Liston, who had married a daughter of John Smith, and Jonathan and Graham Jenkins, entered into a mutual bond, in which, reciting that there was a controversy between them concerning the will of John Jenkins and the purchase of real estate, they submitted the said controversy to the arbitrament of three persons named, or any two of them; and covenanted to abide by their award, in the penalty of two thousand dollars.

Two of the arbitrators on the 22d of February 1854 made an award in the case, by which they awarded that Jonathan and Graham Jenkins were to keep the farm, by paying to Abraham Liston seven hundred dollars, in specified payments: Or if they should be unwilling to keep it upon these terms, and should express said unwillingness by 6 A. M. on the next Friday, then they awarded the farm to Liston, upon condition of his paying the above sum of seven hundred dollars in the manner specified.

Within the time specified, Jonathan and Graham Jenkins gave notice to Liston, that they had agreed to abide the decision of the arbitrators and pay him seven hundred dollars. And on the 27th of February 1854 Liston wrote at the foot of the award that he bound himself to make a good and warrantee deed against the children of John and Rebecca Smith and none others, within twelve months from that time.

It appears that whilst the arbitrators were engaged in considering the case, a paper written by a person in Pennsylvania, was put into their hands as evidence in the absence of the Jenkinses. One of the arbitrators who made the award says he had made up his opinion before he saw this paper, and that he did not use the paper as evidence at all. The other says he had made up his opinion before the paper was shown to him, and that he did not consider it as evidence; but it strengthened him in the opinion that no fraud had been committed. The contents of the paper do not appear.

The Jenkinses having refused to execute the...