Pugh v. Mccue

• Decision Date: 23 January 1890
• Citation: 10 S.E. 715,86 Va. 475
• Court: Virginia Supreme Court
• Parties: Pugh v. McCue.

10 S.E. 715

(86 Va. 475)

Pugh

v.McCue.

Supreme Court of Appeals of Virginia.

Jan. 23, 1890.

Judgment—Collateral Attack.

A deed cannot be excluded from evidence in ejectment on the ground that the decree in pursu ance of which it was executed was entered when one of the purchasers was dead, as the decree, which directed the deed to be made "to the said purchasers" or their vendees, imports that he was then alive, and cannot be collaterally attacked where the record discloses nothing to the contrary.

Caskie & Coleman, for plaintiff in error. S. V. Southall, for defendant in error.

Lewis, P. This was an action of ejectment in the circuit court of Nelson county, wherein F. R. Pugh, plaintiff in error here, was plaintiff, and J. C. McCue was defendant. It appears from the record that in a suit in equity in the said court several years before the late war, under the style of "Beith's Adm'r v. New comb et als., " a decree was entered for the sale of certain lands, and that sale was made; that one of the tracts of land, containing 207 acres, was sold to James M. Bowen, and another parcel, containing about one acre, situate near Afton, (which is the land in controversy,) was sold to Charles Rodes; that subsequently Rodes sold the last-mentioned parcel of land to Bowen, and put him in possession thereof; that in November, 1862, a decree was entered in the cause, appointing Robert Whitehead a commissioner to convey the land "to the said purchasers, or to those to whom they may have sold, " and that, in pursuance of this decree, Commissioner Whitehead, by deed dated January 13. 1863, conveyed the land to Bowen. The defendant claims title to the premises in controversy through Bowen, and at the trial, to maintain the issue on his part, he offered in evidence the deed from Whitehead to Bowen, wherein most of the foregoing facts are recited. The plaintiff, who claimed through Bodes, objected to the introduction of the deed, on the ground that when the decree directing the deed to be executed was entered Rodes was dead; but the circuit court overruled the objection, and admitted the deed, not as a conveyance of the legal title, nor as evidence of color of title in Bowen, but as evidence of a claim of title by Bowen; and this ruling, which was excepted to by the plaintiff, is the subject of the first assignment of error.

It is insisted that, so far as Rodes' interest was concerned, the deed from Whitehead, and the decree directing it, were void for the reason just...