Nicholas v. Austin

Citations

• 82 Va. 817
• 1 S.E. 132
• 1887 Va. LEXIS 152

Syllabus

<p>1. Witnesses—Husband and wife—Suit for separate estate.—In suit by wife for her separate estate, husband joined for conformity and not bound for costs. Wife is competent to testify in her own behalf, but he is not for her. Hayes v. M. I. Co., 76 Va. 225.</p> <p>2. Estoppel—Parol contracts.—Where parol dispensation with performance of agreement under seal is supported by a consideration, it will be enforced in equity. U. S. v. Howell, 4 W. C. C. R. 620.</p> <p>3. Idem—■Acquiescence.—Silent acquiescence, misleading a party to his disadvantage, works an equitable estoppel.</p> <p>4. Idem—Case at bar.—N. gave his bonds to A. for land. They contained a clause that they were not transferable until the land was free of encumbrances except the dower of A.’s wife. She declined to execute conveyance unless one bond was given her in lieu of her dower. This being agreed to, she asked if the clause against transfer would keep her out of the money. She was told in N.’s presence, and with his acquiescence, that it would not, and that the other bonds were ample to pay all liens and leave her the bond. Thus assured, she executed the conveyance, and the bond was assigned her. Afterwards, N. refused to pay her the bond, saying he had used all the purchase money to pay the encumbrances, and that the bond was not transferable.</p> <p>Held :</p> <p>N. is estopped from making such defence.</p>