Carter v. Carter

Citations

• 82 Va. 624
• 1886 Va. LEXIS 81

Syllabus

<p>1. Chancery Practice—Pleadings—Demurrer.—It is a fundamental rule that where a bill in equity fails to show in the party suing an ’ interest in the subject matter and a proper title to institute a suit concerning it, the bill is demurrable.</p> <p>2. Idem—Issues out of chancery—Appealable.—Legal discretion lies in the chancellor to direct or refuse an issue to be tried by a jury ; but the appellate court must judge whether or not such discretion has been soundly exercised, whenever the ruling impliedly involves a settlement of the principles of the cause.</p> <p>S. Idem—Issues not allowable, when ?—Case at bar.—When plaintiff avers that certain deeds were procured by the fraud of the prior grantee from their common grantor, when she was mentally incapable of conveying, and both the grantor and the prior grantee, by their answers, positively deny every material averment, and plaintiff fails to furnish two witnesses, or one and corroborating circumstances in support of the bill, or even to throw the burden of proof on the defendant, and to render the case doubtful by conflicting evidence, no issue should be directed.</p> <p>4. Undue Influence—Definition.—The influence to vitiate an act must amount to coercion destroying free agency. It must not be mere desire to gratify the wishes of another ; for that would be very strong ground to support the act in question. It must be proved that the act was procured by this coercion, by irresistible importunity, and was done merely for sake of peace; so that the motive was tantamount to force or fear.</p>