Lowe v. Trundle
| Decision Date | 22 November 1883 |
| Citation | 78 Va. 65 |
| Parties | LOWE v. TRUNDLE AND ALS. |
| Court | Virginia Supreme Court |
Appeal from decree of circuit court of Loudoun county, rendered 5th May, 1880, on the petition of Henry Jenkins, administrator of Charles T. Jenkins, deceased, filed in the causes of Trundle v. Lowe, and of Follen's Administrator v. Lowe. The object of the petition was to cancel an assignment of two judgments, amounting to $1,350, and solvent, which, under circumstances of fraudulent misrepresentation, E. M. Lowe had procured from petitioner for the inadequate consideration of $200.
The matter being heard on the petition, the answer thereto, the deposition and the record of the said causes, the court decreed the rescission of the assignment, and E. M. Lowe appealed from the decree to this court. Opinion states the facts.
J M. Orr, C. P. Janney, and W. H. Payne, for the appellant.
H W. Thomas and H. Heaton, for the appellees.
This is an appeal from a decree of the circuit court of the county of Loudoun, rendered at its April term, 1880, on the petition of Henry Jenkins, administrator of Charles T. Jenkins, deceased in the consolidated causes of Trundle v. Lowe and Follen's Adm'r v. Lowe. These were creditors' suits brought to subject the real estate of Ann E. Lowe and the appellant, Enoch M. Lowe, to the judgment liens which bound it. There were several reports of liens returned, in none of which, however, was any report made of two judgments which had been obtained by the said Henry Jenkins, as administrator of the said Charles T. Jenkins, against the appellant, Enoch M. Lowe, and others, at the November term, 1858, of the circuit court of Fairfax county, and which were docketed in the county court of Loudoun county, on the 8th day of December, 1870. At April term, 1877, Henry Jenkins, administrator of Charles T. Jenkins, filed his petition in the suit of Trundle v. Lowe, in which he sets out the before mentioned judgments; asserts that they are subsisting liens on the real estate of the said Lowe, and asks that they be paid. Not, however, until the January term, 1873, were these judgments reported as liens, when, upon the urgent request of the counsel for the administrator, made in writing, they were reported as a first lien upon the funds then in the hands of the commissioner and ready for distribution. In the meanwhile, on the 15th November, 1878, the appellant went to Waterford, a distance of fifty miles from his home, and procured from the said Henry Jenkins an assignment of these judgments to Charles P. Janney, as trustee of his wife, Martha E. Lowe, for the sum of $200, paying one-half thereof in cash, and giving his note at twelve months for the residue.
About the last of January, 1879, the said administrator learned from his attorneys, Messrs. Thomas & Wells, that the money was ready to be paid over to him, but was claimed by Janney; whereupon he filed his bill, praying that the assignment might be set aside and annulled, and that his attorneys might be restrained from paying over the amounts of the judgments to Janney. The court awarded the injunction; directed the bill to be treated as a petition in the cause of Trundle v. Lowe; and after it had been answered by the appellant, entered the decree appealed from, by which it sets aside and annuls the assignment of the judgments, and directs the amounts of the judgments to be paid to Henry Jenkins, administrator as aforesaid.
In so decreeing, we think the circuit court of Loudoun was manifestly right. Mr. Kerr, in his work on Fraud and Mistake, at section II, says, " If a man represents as true that which he knows to be false, and makes the representation in such a way or under such circumstances as to induce a reasonable man to believe that it is true, and is meant to be acted on, and the person to whom the representation has been made, believing it to be true, acts upon the faith of it, and by so acting sustains damage, there is fraud to support an action of deceit at law, and to be a ground for the rescission of the transaction in equity."
In Grim v. Byrd, 32 Gratt. 300,...
To continue reading
Request your trial
-
Hodgkiss v. Consolidated
...paid in an oil and gas lease, and in fact paid, was a mere nominal consideration which was insufficient to support the contract. In Lowe v. Trundle, 78 Va. 65, it was held that mere inadequacy of consideration is not of itself sufficient for recision of a contract unless so gross as to shoc......
-
Hodgkiss v. Northland Petroleum Consol.
...paid in an oil and gas lease, and in fact paid, was a mere nominal consideration which was insufficient to support the contract. In Lowe v. Trundle, 78 Va. 65, it was held that inadequacy of consideration is not of itself sufficient for recision of a contract unless so gross as to shock the......
-
Whittaker v. Sw. Va. Improvement Co. * (Holt
...412; 2 W. & T. L. Cas. P't IT, 1263; Pom. Cont, 290, 292, 293, 306, 308; 7 W. Ya. 392; Pom. Eq. Juris. § 892; 64 Am. Dec. 662; 75 Va. 460; 78 Va. 65; 32 Gratt, 300; 13 Pet. 26; 31 Gratt. 418; 1 Sto. Eq. Juris. 206, 208, n. 1. I Shannon, Judge: This is a chancery suit brought in the Circuit ......
-
Jefferson Standard Life Ins. Co v. Hedrick
...the fraud is constructive; in the other it is actual." See also Crump v. United States Mining Company, 7 Grat. 352, 48 Va. 352; Lowe v. Trundle et al., 78 Va. 65; Jordan v. Walker, 115 Va. 109, 78 S.E. 643; Trust Company of Norfolk v. Fletcher, 152 Va. 868, 148 S.E. 785, 73 A.L.R. 1111; Uni......
-
Fair Is Fair-reshaping Alaska's Unfair Trade Practices and Consumer Protection Act
...§§45.50.471 - 45.50.561 (2010). [2] Dan B. Dobbs et al., Prosser and Keeton on Torts § 105, at 727 (5th ed. 1984). [3] Lowe v. Trundle, 78 Va. 65, 67 (1883) (citation [4] Jarvis v. Ensminger, 134 P.3d 353, 363 (Alaska 2006) (citing City of Fairbanks v. Amoco Chem. Co., 952 P.2d 1173, 1176 n......