Jones Et Ux v. Degge

• Decision Date: 31 December 1888
• Parties: Jones et ux. v. Degge.
• Court: Virginia Supreme Court

5 S.E. 799

(84 Va. 685)

Jones et ux.

v.Degge.

Supreme Court of Appeals of Virginia.

December 31, 1888.

1. Equity—Decree—Want of Replication—Code Va. 1873, Ch. 177, § 4.

Under Code Va. 1873, c 177, § 4, providing that no decree shall be reversed for want of replication, where the defendant has taken depositions as if there had been a replication, a decree will not be set aside, where the objection of want of replication was taken by way of exceptions to the commissioner's report, which was overruled, and defendants afterwards took depositions upon which in part the cause was heard.

2. Fraud—Conflicting Testimony—Proof.

On a plea of fraud in the procurement of the note sued on, defendant's testimony as to the fraud upon which defendant chiefly relied was directly contradicted by plaintiff. An unsuccessful attempt was made to impeach plaintiff's credibility Held, that the allegation of fraud was not sustained.

3. Husband and Wife—Suit on Joint Note of—Competency to Testify.

In a suit against a husband and wife to subject the wife's separate estate to the payment of the joint note of the two, neither the husband nor wife is a competent witness, though no relief is sought against the husband.¹

4. Same—Suit on Joint Note of—Insolvency of Husband—Decree.

In a suit against a husband and wife, on their note, on which the wife appears as surety, the allegation of the bill that the husband was insolvent and had no property was not denied in the answer, and was sustained by proof. Held, that a decree against the wife's separate estate need not provide that the husband's property be first exhausted.

5 Sale—Inadequacy of Consideration—Relief in Equity.

Equity will not relieve the makers of a note given for the purchase money of a newspaper for mere inadequacy of consideration, unless the inadequacy is such as to shock the conscience, and of itself amount to fraud.

Appeal from corporation court of Norfolk; D. Tucker Brooke, Judge.

D. I. Godwin & Son and H. F. Woodhouse, for appellants. Borland & Wilcox, for appellee.

Lewis, P. This was a suit in equity to subject the separate estate of a married woman to the payment of a certain negotiable note for $500, executed jointly by herself and husband on the 14th of February, 1885. The note was given for a debt due by the husband to the plaintiff for the purchase of a one-half interest in a weekly newspaper known as the "Sunday Gazette, " published in the city of Norfolk. The separate estate consisted of several houses and lots situated in Norfolk, which, shortly before her marriage in 1884, were conveyed to a trustee for the sole and separate use of the wife, with power of disposition by her direction to the trustee. The bill alleges that the husband is insolvent, and has no estate of any description, real or personal, and the prayer of the bill is that the rents and profits of the separate estate, or so much thereof as may be necessary, be subjected to the payment of the note above mentioned, which is past due and wholly unpaid. Both husband and wife are made defendants to the bill, with a prayer that they be summoned to answer the same. The defendants answered jointly, and subsequently an amended bill was filed making the tiustee in the deed of settlement a defendant, who also answered. The husband and wife defended in their answer on the ground of failure of consideration and fraud. They averred that the contract of purchase, on account of which the note sought to be collected was given, was procured by the misrepresentations of the plaintiff as to the value and prospects of the paper which was the subject of the contract, and therefore that payment of the note ought not to be decreed. The defense set up in the answer of the trustee was that the estate of the husband ought to be first exhausted before decreeing against the estate of the wife, because the note was signed by her as surety for the husband. No replication appears to have been filed except to the answer of the trustee, but testimony was nevertheless taken on both sides. When the cause came on to be heard, the court below, being of opinion that the note constituted a charge on the separate estate, appointed a receiver to rent out the real estate mentioned in the bill until such time as the rents and profits realized therefrom would be sufficient to pay the note. No decree was rendered against the husband.

1. The appellants, the husband and wife, contend that insamuch as there was no replication to their answer in the court below, the averments of the answer must be taken as true, and therefore the decree must be reversed. This position, however, is not well taken. It appears that objection on the grourd of a want of replication was made, by way of exception to the commissioner's report, and overruled, after which the defendants proceeded to takedepositions, upon which in part the cause was heard. The case is therefore within the statue which provides that "no decree shall he reversed for want of replication to the answer where the defendant has taken depositions as if there had been a replication." Code 1873, c. 177, § 4; 1 Barb. Ch. Pr. 416.

2. The question as to the competency of the husband as a witness in the case has also been discussed; but as his deposition was admitted, and the appellee is not complaining, the question is of no practical importance so far as the present case is concerned. We are of opinion, however, that as the husband and wife were joint makers of the note, neither was a competent witness, though no relief as against the husband is prayed for in the bill. In Hayes v. Association, 76 Va. 225, which was a suit on a policy of insurance for the benefit of the wife, it was held that she was a competent witness, because the husband was not beneficially interested in the suit, and was joined as a party with her simply because the statue, commonly known as the "Married Woman's Act, " required it. And in Farley v. Tillar, 81 Va. 275, which was an action of unlawful detainer against the wife as a sole trader in which the husband was joined as a defendant, it was for the same reason held that she was a competent witness, but that he was not. The difference between those cases and the present is that here the husband and wife are jointly and directly interested, and hence neither can testify without testifying for or against each other, which the common law, unaltered in this particular by statute in Virginia, forbids. Frank...