Scott v. Rowland

Citations

• 82 Va. 484
• 4 S.E. 595
• 1886 Va. LEXIS 63

Syllabus

<p>1. Witnesses—Competency—Husband and wife.—Where land is deeded to husband and wife and the survivor, neither is competent to testify in a suit wherein the validity of the deed is in controversy.</p> <p>2. Equitable Jurisdiction and Relief—Chancery practice—Case at bar.—In 1878, in suit under Code 1873, ch. 148, sec. 1, against S.,. a non-resident, R. got judgment and an order to sell the attached. land. S. and wife got sale enjoined, their bill stating that in 1872, S., then not in debt, bought at judicial sale the land for $4,300, paid $1,500, and becoming unable in 1873 to pay balance, his'wife paid it with her own funds on agreement the purchase should enure protanto for her separate benefit; but that commissioner had conveyed it to him and her and the survivor. She asked that her part be . laid off to her. R. answered, denying that she paid anything, and prayed that his answer be treated as a cross-bill, the deed be set aside as null, and the land sold to pay his judgment. The circuit court excluded the depositions of S. and wife, and being of opinion that they had failed to prove their averments, and that the land was liable to the judgment, decreed sale. At same term the court permitted S. and wife to file demurrer and answer to R.’s answer, taken as a cross-bill, the same failing to allege any grounds why the deed should be annulled. In 1879 commissioners reported sale. S. and wife excepted to its confirmation, and filed bill of review of the former decree. The circuit court overruled the demurrer and the exception, confirmed the sale, and ordered commissioners to pay the net proceeds to R. On appeal here—</p> <p>Held :</p> <p>1. R.’s answer was improperly treated as a cross-bill, as proper relief was attainable on the bill and answer.</p> <p>2. Demurrer to cross-bill should have been sustained, as it contained no averment that the deed was voluntary or fraudulent.</p> <p>3. Burden of proof was on Mrs. S. that she paid more than half of the purchase money,