Fishburne v. Ferguson

Citations

• 85 Va. 321
• 7 S.E. 361
• 1888 Va. LEXIS 39

Syllabus

<p>1. Res Judicata&emdash;Rule.&emdash;When one sets up in a subsequent suit as a bar thereto a former judgment, he must show that the matter alleged as cause of action in said subsequent suit was either actually litigated, or might have been, under the issues in the former suit. Blackwell v. Bragg, 78 Va. 529.</p> <p>2. Idem&emdash;Case at bar.&emdash;Bill to set aside deed of plaintiff’s ancestor on ground of mental incapacity. Decree annulled the deed. Later, grantee brought a bill for specific performance of a parol contract of the ancestor, made when of sound mind, to convey the same land, said contract not having been interposed as a defense to the former suit by way of cross-bill or otherwise.</p> <p>Held:</p> <p>The decree was not a bar to the second suit.</p> <p>3. Specific Performance.&emdash;Specific performance of agreements is matter of sound judicial discretion, and will not be decreed unless certain, fair and just in all parts, nor in cases of fraud or mistake, or of hard or unconscionable bargains, or when such a decree would be inequitable under all the circumstances. Halsey v. Peters, 79 Va. 66.</p> <p>A Idem&emdash;Contracts enforceable&emdash;Case at bar.&emdash;Defendant’s ancestor, a diseased, childless widower, sixty-six years old, induced his niece and her husband, the former having been reared in his family and the latter his protege, to sell their home and occupy his, and take care of him until his death, by his oral agreement, made when in sound mind, to convey his house and lot and the furniture therein to them. This was in April, 1880. They fully performed their part of the agreement. In September, 1880, he made them such deed. But in a suit by his heirs after his death, he was adjudged not to have been competent to make the deed at its date, and the deed was annulled. Afterwards, the niece and her husband brought suit to enforce specifically the parol agreement;</p> <p>Held :</p> <p>The agreement should be specifically performed by his