Morriss v. Va. Ins. Co

• Decision Date: 13 December 1888
• Citation: 8 S.E. 383,85 Va. 588
• Parties: Morriss v. Virginia Ins. Co.
• Court: Virginia Supreme Court

8 S.E. 383

(85 Va. 588)

Morriss

v.Virginia Ins. Co.

Supreme Court of Appeals of Virginia

December 13, 1888

1. Courts—Jurisdiction—Hustings Court—Chancery.

Under Code Va. 1873, c. 167, § 53, providing that any chancery cause may by consent be submitted to the judge of the court in which the cause is pending, for decision or decree, in vacation, a judge of the hustings court of Richmond, sitting as judge of the chancery court of that city, under act July 11, 1870, (Acts 1869-70, p. 427,) which authorizes the judge of the hustings court in certain cases to discharge any duty required by law of the judge of the chancery court, is, for the time, a judge of that court, and a decree entered by him in vacation is valid.

2. Infancy—Guardian ad Litem—Setting Aside Decree.

Where an infant is a party to a suit in chancery, and defends by guardian ad litem, and a decree beneficial to his interests is entered, as shown by the record, by consent of all parties, he will not be permitted to set it aside on the ground that he was incapable of giving consent.

3. Constitutional Law—Title of Act.

Act Va. July 11, 1870, entitled "An act to enlarge the jurisdiction of the hustings court, " which provides that in certain cases the judge of that court may act as a judge of the chancery court, is not repugnant to Const. Va. art. 5, § 15, providing that "no law shall embrace more than one object, which shall be expressed in its title. " Appeal from chancery court of city of Eichmond.

Bill of review filed by Chapman W. Morriss. The bill was dismissed at the hearing, and complainant appeals.

Staples & Munford, for appellant. Guy & Gilliam, for appellee.

Lacy, J. This is an appeal from a decree of the chancery court of the city of Richmond, rendered on the 5th day of August, 1886. The case is as follows: On the 25th day of February, 1873, one Charles Y. Morriss, as trustee, filed his bill in the said court, seeking the sale of certain lands held by him as trustee under the deed of one Robert F. Morriss and Emma, his wife, conveying the said real estate to him, the said Charles Y. Morriss, in trust, dated March 15, 1870. The deed was a settlement by the said Robert F. Morriss of the said real estate for the benefit of his wife and children, subject to his existing liabilities, and conveyed a tract of land in Henrico county, in the vicinity of the city of Richmond, containing 849 acres, and the personal property thereon, and a lot in the city of Richmond and the improvements thereon, situated at the south-east corner of Main and Tenth streets in the said city, and other real estate in Buckingham county, upon trust that the said trustee should hold the said property "for the separate use, benefit, advantage, and support of the said Emma Morriss and all her children by the said grantor, Robert F. Morriss, and allow her, the said Emma Morriss, during her life, to receive the profits or have the use thereof, and for the benefit after her death of the children she might have by her said husband, Robert F. Morriss, to be used for the use, maintenance, and support of the said children until the death of the said Robert F. Morriss, and then to be divided among the children; and upon the further trust that if at any time hereafter it be the wish of the said Emma Morriss to sell or dispose of the said property, or any part or parcel thereof, and reinvest the same, and she should so signify to the said trustee in writing, attested by three witnesses, then the trustee to sell and reinvest in other property, to be held under the said deed as the property conveyed and sold had been held. The trustee was authorized, upon like request of Mrs. Morriss, to borrow money and continue the liens already existing upon the real estate conveyed, or to create other liens, and, if either parcel of land should be sold to satisfy the lien thereon, then, at the like request of Mrs. Morriss, if any surplus remained after satisfying the lien for which it was sold, then "the said surplus should be applied to the satisfaction of the lien on the other piece as far as it would go, and to that extent to relieve the said property, " and, if not so applied, then to be reinvested by the trustee. The bill of the trustee set forth the deed in trust stated above. That at the time of the said conveyance there was a lien on the above-mentioned lot on Main street, to secure a debt due one George S. Brown, of Baltimore. This lien was secured by deed in trust, and the rents dedicated to the payment of the interest on the Brown debt, and the residue of the rents to be paid to Robert F. Morriss. The bill set forth that the rents were not sufficient to keep down the interest on the debt, and filed the deed, with a statement of the rents and the interest. That an advantageous offer had been made for the property, which it would be to the interest of the infants to accept, but that Mrs. Morriss was dead, and her request could not be obtained. That the arrears of interest were increasing the debt, and that by a sale at the offer made there would be a surplus after paying the Brown debt. That the trustee had made a sale, subject to the approval of the court, at $45,000, and the purchaser had assumed the Brown debt, and, upon approval by the court, would pay the residue of the purchase money in cash. Robert F. Morriss and the children, by guardian ad litem, were made parties defendant, and a sale as aforesaid prayed for. This was ordered accordingly, and the surplus, which was ascertained to be $14,000, was put in bank to the credit of the cause, and a deed directed to the purchaser, one E. T. Baird. This decree wasrendered upon the depositions of witnesses and the report of a master commissioner.

On the 17th day of June following the said Charles T. Morriss, trustee, filed his petition in the cause, setting forth that the tract of land in Henrico county, conveyed in the deed in trust, and mentioned above, was under a lien by trust deed for $16,000, created by the said Robert F. Morriss before the execution of the settlement on his wife and children; that it was now due, and that Robert F. Morriss could not pay it, and had no other property, and that the tract of land was about to be sold, and the sale would be attended with a ruinous sacrifice; that the farm was yielding a good income for the support of the children; that it was likely to increase in value, and that the surplus arising from the sale of the Main-Street lot was as much bound for the debt secured on the farm in Henrico as the farm was, the said debt having existed at the time of and before the execution of the deed of settlement; and that this surplus, in the hands of the court, should be applied to the debt on the farm held by the appellee company, and that the children had some property from another source, which would enable them to pay off the...