Belton v. Apperson

Citations

• 26 Va. 207

Syllabus

<p>In June 1868 B filed his bill to enjoin a sale of real estate by A, the trustee in a deed given to secure the payment of a negotiable note for $1300. He says he supposed that C was the owner of the note, and charges usuiy in it, and sets it out. He makes C and A defendants, and calls upon them to answer on oath. He prays that they may be required to disclose the name of the holder of the note; that A may be enjoined from selling the property; that the note may be delivered up and can-celled, and A required to reconvey said real estate to the trustee to whom the same was conveyed for tire benefit of B’s wife and children. The injunction was granted; and in June 1869 A and C answered. C said he was a broker, and the note was put into his hands for sale, and he sold it to S; and he had no interest in it. Both C and A say they do not believe there was usury in the transaction: It was a sale not a loan.</p> <p>The cause stood upon the docket without any move in it, until December 1871, when B and his wife and seven infant children, by B as then-next friend, asked leave to file an amended and supplemental bill. In this bill they are plaintiffs, and S is made a defendant with C and A. They set out the bill and answers, state a conveyance of the property by B to trustee for B’s wife for life remainder to the children. They charge usury in the note, disclaim any discovery from defendants, ask for an issue, and if they prove the usury that the note may be declared null, the injunction perpetuated, and for general relief. Held :</p> <p>I. The rule in equity in regard to amendments, is, that they may be made when the bill is defective in its prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself. The plaintiff will not be permitted to abandon the entire case made by his bill, and make a new and different case by way of amendment. But this rule has been much trenched, upon, e