Orr v. Pennington

• Decision Date: 25 June 1896
• Citation: 24 S.E. 928,93 Va. 268
• Parties: ORR. v. PENNINGTON.
• Court: Virginia Supreme Court

24 S.E. 928

93 Va. 268

ORR.

v.PENNINGTON.

Supreme Court of Appeals of Virginia.

June 25, 1896.

Appeal—Assignment of Ekkok—Sufficiency— Motion to Dismiss—Equity—Laches —Undue Influence.

1. A petition for appeal, averring that there was manifest error in dismissing a bill, and rendering judgment for costs against petitioner, does not contain an assignment of error, as required by Code, § 3464, providing that the petition for appeal shall assign errors.

2. Where an appeal has been granted on an insufficient petition, it will not be dismissed on the ground of such insufficiency, three years having elapsed, and the right to appeal having expired.

3. In an action to set aside a conveyance on the ground of undue influence, it appeared that the grantor was plaintiff's father, the grantee being a younger brother; that the deed was executed in April, 1883, the grantor dying a month later; that the grantee took and held possession until his death, in 1888. In the bill, which was filed in 1892, it was alleged that complainant was unable to secure the necessary evidence prior to that time; but it appeared that the witnesses upon whom he relied were members of his own family, family servants, and the physician who attended the grantor. Held, that complainant was guilty of gross laches, justifying a dismissal of the bill.

4. A deed made in consideration of love and affection, or a mere desire to gratify the wishes of another, will not be set aside for undue influence, unless it appears that there was actual coercion or impairment of free agency.

Appeal from circuit court, Lee county; H. L. K. Morison, Judge.

Bill by William A. Orr against one Pennington, administrator of the estate of R. S. Orr, to set aside a deed on the ground of undue influence. There was a decree dismissing the bill, and complainant appeals. Affirmed.

Bullitt & McDowell, for appellant.

Pride-more & Sewell, Duncan & Mathews, and Blair & Blair, for appellee.

BUCHANAN, J. Upon the calling of this cause, the appellee moved the court to dismiss it, because the petition praying for the appeal contained no sufficient assignment of error.

The only assignment of error in the petition for the appeal is as follows: "Your petitioner avers that there was manifest error in dismissing said bill, and rendering said judgment for costs against your petitioner; and he therefore prays an appeal from the said decree, and that a supersedeas be awarded."

This Is not such an assignment of error, we think, as is required by section 3464 of the Code. The petition required is a pleading, and should state the case which the party applying for the appeal wishes to make in the appellate court. It ought to assign clearly and distinctly all the errors relied on for a reversal of the case, so that the opposite party may know what questions are to be raised in the appellate court, and not have new questions sprung upon him at or just before the hearing of the cause, when there may not be sufficient time or opportunity for meeting them. It is not necessary nor proper that the assignments of error should be argued at great length, and long quotations made from text-books and decisions, in the petition, as is sometimes done. This is the province of the brief or note of argument.

The petition for an appeal in this case ought not to have been considered until the statute had been complied with; but, the judge to whom the petition and transcript of the record were presented having considered it, and granted an appeal, we do not think that the motion to dismiss, made more than three years after the appeal was granted, and after the statute has barred the right of appeal, if a new petition has to be filed, should be sustained. The motion to dismiss must be overruled.

The object of this suit was to set aside a conveyance made by a father to his son, upon the ground that the father was mentally incapacitated from disposing of his property when the deed was made, or, if not of unsound mind, that, being weak in body and mind from disease, he was unduly influenced by his son to make the conveyance.

The conveyance was made in April, 1883.

The grantor died in May following. The grantee took possession of the property under the deed; held and occupied it until his death, in August, 188S. In May, 1892, this suit was instituted, —nine years after the conveyance was made and the right of appellant accrued. No reason is assigned in the bill why the suit was not instituted earlier. In the proof and in the argument, the claim is made that, while the appellant believed before his father's death that the grantee had unduly influenced him to make the deed, he was unable, until recently before the suit was brought, to get the necessary evidence to show this. The record does not show that the appellant made any effort or exercised any diligence to ascertain whether the deed was executed under circumstances which rendered it voidable. There is no evidence that the grantee concealed, or endeavored to conceal, anything connected with the transaction. The witnesses who were examined in the case by the appellant were the justices...