Stuart v. Heiskell's Tr.S

• Decision Date: 13 June 1889
• Parties: Stuart et al. v. Heiskell's Trustees et al.
• Court: Virginia Supreme Court

9 S.E. 984

(86 Va. 191)

Stuart et al.

v.Heiskell's Trustees et al.

Supreme Court of Appeals of Virginia.

June 13, 1889.

Res Judicata—Execution.

1. Where, in a suit to correct a mistake and for an accounting, the court below held that the payment by the grantee in a deed of certain incumbrances on the land should be considered payments on the price, which decree was affirmed in that respect on appeal, on a second accounting, under the decree of the appellate court, the question whether the payments of the incumbrances were payments on the price or to be treated as set-offs is res judicata.

2. Where a decree is rendered in favor of a com-plainant in an original bill, and also a complainant in a cross-bill, it is not error to direct execution to issue to them severally for the sums due them respectively.

Appeal from circuit court, Washington

county.

Routh & Stuart, for appellants. White & Buchanan, for appellees.

Lewis, P. The first assignment of error in the petition for appeal is that the circuit court erred in treating as payments, instead of set-offs, the sums paid by the appellants in discharging incumbrances on the Claiborne interests in the King Salt-Works. The facts in relation to the matter are these: In October, 1862, Thomas L. Preston conveyed, with general warranty, to the appellants his interest in the said salt-works, and at the same time left in their hands $3,000, for the purpose of removing incumbrances on the property conveyed. It afterwards turned out, however, that the Claiborne interests conveyed by Preston were greater than they were supposed to be when the deed was executed, —that is, they were 11-540 instead of 6-540, as was supposed; and, this being a mutual mistake of the parties, it was held by the court below, whose decree in this particular was affirmed by this court on the last appeal in this cause, (80 Va. 789,) that it was proper to correct it, and that Preston was entitled to compensation accordingly. After the case went back to the circuit court, it was referred to a commissioner, as directed by the said decree, to take an account between Preston and the appellants, charging the latter with what was due by them on account of the Claiborne interests, and "crediting them with any incumbrances paid off and discharged by them" on the said interests. The amount ascertained to be due by the appellants on account of those interests was $3,240.74, and with this sum, together with the $3,000 left in their bands by Preston, they were charged as of October 1, 1802, and credited by all sums paid by them in discharging incumbrances as aforesaid. These sums were treated by the commissioner, whose report was confirmed, as payments, and not as...