complained; and upon their application | said Rusmiselle, on the 13th day of June, the court below, under the provisions of 1882, had conveyed certain real estate menCode, § 571, exonerated the estate from the tioned-and now sought to be subjected as assessment by the order complained of. stated-to a trustee for the benefit of his The executors, the defendants in error, have wife, Mary E. Rusmiselle; that she had removed to dismiss the writ of error as im-cently died intestate, and that the trust had providently awarded, because, they say, now expired, and the said land was now subthe matter in controversy is merely pecun-ject to the debts of the surviving husband, iary, and, the amount involved being less the fee-simple to the said land being vested than $500, the case is not within the juris- in him by reason of the death of his wife diction of this court. We do not think so. intestate. George B. Rusmiselle answered The correctness of the assessment depends that the real estate in question was not his; upon the right of the city to tax the bonds that two of the lots belonged to his wife bein question, (for, if the right exists, the levy fore her marriage to him, and were included made by the city council is sufficiently com- in the deed made by him of the third lot, by prehensive to embrace them,) and thus mistake, and, as he never had any interest there is drawn in question a franchise, i. e., in them, his deed conveyed nothing; but the right of the city to levy a tax; and con- the third lot was purchased with his wife's sequently the case is within the jurisdiction money, and for that reason was properly of the court, and the motion to dismiss hers; and that all interest he could have must be denied. Const. art. 6, § 2; Code, § had in these lots had terminated by the 3455. death of his wife. On the 21st day of June, 1886, a decree was rendered for the necessary accounts: (1) Of what the estate consisted, real estate and personal property; (2) the amount of the debts binding the same; (3) to whom the real estate descended; (4) what was the interest of George B. Rusmiselle therein, and what debts of his bound his interest, if any? Thereupon the appellant filed her petition, claiming to be a creditor, and asking for leave to present the same before the commissioner,-which was a claim against Mrs. Rusmiselle,—and claiming that the lands in question were liable for the debts of Mrs. Rusmiselle, and not of the said George B. Rusmiselle. appellees filed their petition, claiming to be the heirs at law of Mrs. Mary E. Rusmiselle; claiming that the lands belonged to her,

As to the merits, we are of opinion that the order is right. The fact that the executors reside, and did reside, in the city of Staunton, when the levy and assessment were made, does not affect the case. There being no statute in this state to the contrary, the situs of the property in question is at the last domicile of the testator, namely, Middle River district, and there it is taxable, and not elsewhere. Burroughs, Tax'n, 224; Cooley, Tax'n, 270; 1 Desty, Tax'n, § 68, p. 333. The judgment must therefore be affirmed.

THOMAS V. ARMSTRONG et al.

The

(Supreme Court of Appeals of Virginia. Sept. and had descended to her heirs at law, whom

17, 1889.)

STATUTE OF Frauds.

An agreement to leave a person a support after the death of the promisor, in consideration of services to be rendered during the balance of her life, being performed by the promisee, and being dependent for full performance upon a contingency that may happen within a year, is not within Code Va. § 2840, cl. 7, prohibiting an action upon an agreement not to be performed within a year, unless the same is in writing.

Code Va. § 2840, provides that no action shall be brought on any agreement not to be performed within a year, unless the same is in writing, etc.

A. C. Braxton, for appellant. Wm. Patrick, for appellees.

they were. The commissioner reported an account of the real estate, and that it belonged to Mrs. Rusmiselle, and not to her husband, and had descended to her heirs subject to her debts, among which he reported the debt of the appellant; and it is concerning this debt that this controversy is, which, indeed, is the only debt set up against her estate in this suit. This claim is as follows: Soon after the close of the late war, Mrs. Rusmiselle was a widow,— her name then being Everett,-and living in the village of Middlebrook, and owning the real estate mentioned; that her family consisted of herself and her aged mother, who soon became blind and helpless; that she procured the services of the appellant, Miss Annie H. Thomas-then a healthy young LACY, J. This is an appeal from a decree woman, with some little means, and 23 of the circuit court of Augusta county, ren-years of age-to come and live with her and dered on the 8th day of December, 1888. serve her, and who lived with her for the The case is as follows: On the 13th of period of 19 years, upon the faith of her March, 1886, one James E. Beard, claiming promise to leave her a support when she to be a creditor of George B. Rusmiselle, died, and also let her have the use of what filed his bill in the circuit court of Augusta money she had. Miss Annie H. Thomas county against the said George B. Rusmi- not only lived with the said person, but was selle and others, to subject the land of the her sole and efficient servant, not only said Rusmiselle to the payment of his said waiting on her old mother in her blindness debt, which amounted to the sum of $487, and her declining years, but upon her, all and which accrued by reason of a decree of this time, and during five years of declining the circuit court of Augusta county for the health and subsequent fatal illness, and was same, rendered against said Rusmiselle, as her cook, laundress, house-servant, maid of prncipal debtor, and said Beard and one W. all work, for herself and her sickly husband, W. Call, as sureties, on the 16th day of No--she having married the said George B. vember, 1883, and which had been paid, in part, by said Beard,-setting forth that the

Rusmiselle in the mean time,-and on occasions, for considerable periods, with board

FUDGE et al. v. PAYNE et al. (Supreme Court of Appeals of Virginia. Sept. 17, 1889.)

REFORMATION OF DEED-EVIDENCE.

where it alleges that at the time it was made it was 1. A bill in equity will lie to reform a deed, "fully understood, and it was so agreed," between the parties to the deed, that the term "Loop, "used in the deed to describe the lands conveyed, included and embraced certain lands which the vendee afterwards found were not generally understood to be known and described as contained in the "Loop." 2. Paroi evidence is admissible, in such case, to explain and vary the deed, on the ground of mutual mistake.

ers in the house. The commissioner reported
this agreement for a support when Mrs.
Rusmiselle died to be by parol, and to have
been fully performed on the part of the ap-
pellant, and binding upon the estate of Mrs.
Rusmiselle, and to be, upon the evidence, in
amount $150 per year; and the prospect of
life of Miss Thomas, then 46 years of age,
to be such as to make the present value of
this support to be $12.089 for $1-making
$150X12.089, equal to $1,813.35, with inter-
est from January 4, 1886, but the interest
to be offset by the rent of the house while
occupied by Miss Thomas. The circuit court
held that this contract, even if proved, “is
not enforceable by reason of the statute of
frauds, which requires such contracts to be
in writing;" and decreed a small sum for
services for five years before suit brought,
up to the death of Mrs. Rusmiselle, to be
reduced by the rental value of the real es-
tate during the time the same was occupied
by Miss Thomas after the death of Mrs.
Rusmiselle. The report responded, also, to
other accounts and inquiries, ordered by the
court's decree, which appear, however, im-
material here. From this decree Miss Thom-ish, for appellees.
as applied for and obtained a supersedeas
from this court.

3. The deed conveyed the land "generally known as 'The Loop." "This description was universally understood not to convey the land in controversy. The vendee lived in the immediate vicinity of "The Loop" before his purchase, was well ance fenced the land on the line generally underacquainted with the land, and after the conveystood to be the true one. Held, that the deed would not be reformed to include lands other than those "generally known as "The Loop,'" though the vendee testified that he and the vendor intended to convey them by the deed, which the vendor denied. E. Pendleton, for appellants. R. L. Par

LACY, J. This is an appeal from two deIt is assigned as error here that the circuit crees of the circuit court of Alleghany councourt held this contract void under the stat-ty, rendered on the 28th day of August, ute of frauds, not being in writing, and be- 1886, and on the 30th day of March, 1887. ing a contract not to be performed within The case is as follows: On the 20th of July, a year. The contracts contemplated by 1869, John L. Peyton sold to James C. Kinthe statute are such as, by their terms, are caid 2,000 acres of land, in the Falling Spring postponed beyond a year; but when the valley, in Alleghany county, at the price agreement is to be postponed upon a con- of $12,000; $4,000 to be paid in cash, and the tingency, and it does not appear within the residue on long credits. On the 4th day of agreement that it is to be performed after August, 1869, the said James C. Kincaid the year, then writing is not necessary, for sold to the appellees Payne and Oliver a the contingency might happen within the part of this land for $2,000; this being deyear. If by its terms, or by reasonable con- scribed in the said contract as "lying and struction, a contract not in writing can be being in the Falling Spring valley, county fully performed within a year, although it of Alleghany, containing five hundred and can be done only by the occurrence of some seventy-eight acres, more or less, and genimprobable event, as the death of the per-erally known as 'The Loop.'" On the 13th son referred to, it is not within the statute; of August, 1869, James C. Kincaid sold to so, if it can be performed on one side with- William M. Flanagan (whose interest was in the year. See the case of Seddon v. Ro-subsequently acquired by the appellants) senbaum, 9 S. E. Rep. 326, and cases there another parcel of the same land. This was cited. This contract was fully performed by contract in writing, as was also the by Miss Thomas, who went to live with sale to the appellees. Subsequently the said Mrs. Rusmiselle, and assumed the position John L. Peyton brought his suit in chancontracted for on her part. The full perform-cery to subject the lands sold to Kincaid to ance on both sides was not postponed be- the payment of the balance of the unpaid yond the year, but was contingent upon the purchase money. In this suit the unpaid death of Mrs. Rusmiselle, which might have balance of the purchase money was colhappened within the year. It is not, there- lected, the deed having been filed by John fore, such a contract as is not to be per- L. Peyton in the papers of the cause, subformed within the year by its terms, and so ject to the order of the court, when this rewas not required by the statute to be in sult was attained. This deed, which conwriting; and we think the circuit court of veyed the said land to Kincaid, was withAugusta erred in holding that it was void drawn, by order of the court granting such by reason of the statute of frauds. leave, and recorded for the benefit of the vendees of Kincaid, and Kincaid made a deed to the appellants. And a dispute arising between the appellants and the appellees, concerning a part of the land conveyed to the appellants by metes and bounds, whereby 144 acres so included in the tract sold to the appellants were claimed by the appellees as belonging to them as a part of "The Loop." The appellants Fudge and McClintic instituted their suit of ejectment against the said appellees Payne and Oliver for the recovery of the said 144 acres. Pending the progress of this suit (one hearing

We think, upon the proofs in the record, that the agreement is distinctly proven by several witnesses, and there is no just reason why it should not be enforced. The finding of the commissioner is according to the correct principle, and a decree should have been rendered by the circuit court for the amount found by him, and the circuit court erred in sustaining the exceptions to his report upon this ground, and the same will be reversed and annulled, and a decree will be rendered here such as the said circuit court ought to have rendered.

Besore sued Besore and Patterson on a pass on grows out of the plea and amended bond executed April 28, 1873, in which Be-plea on the question of duress. The plainsore was principal, and Patterson security, tiff in error (defendant in the court below) conditioned that, whereas Mrs. Besore set up, as one of his defenses, that his prinhad filed her libel for divorce and bill quia cipal was coerced into signing the bond timet against Besore, under which he had sued on, by duress of illegal imprisonment. been arrested, if he should pay such amount To this plea he offered an amendment, in as might from time to time be ordered by which he alleged that the duress of his the court as alimony and counsel fees to principal was unknown to him at the time Mrs. Besore, then this bond to be void, he signed the bond as surety. This amendetc. The plaintiff alleged that an order ment was, on motion, disallowed or strickwas afterwards passed for alimony and en by the court; and the court also held counsel fees, which remained of force over that the duress of the principal was not an two years, when a total divorce was available defense for the surety. Excepgranted her; and that Besore had paid tions were taken to these rulings; and the only the counsel fees and alimony for six question for our decision is, if the principal months, leaving a balance still due her. signed the obligation sought to be enforced Besore was not served. Patterson was under such duress as would release him served on April 6, 1877, and pleaded, among from liability thereon, would the duress of other things, that the bond was given by the principal be an available defense for the the principal under duress, he having been surety, if he signed without knowledge of arrested by the sheriff, and confined for the duress? The answer to this question some time in jail, the sheriff demanding is found in the head-note, which was dicthat he should give a bond before he should tated by the learned chief justice of this be released, and he gave the bond for the court. This answer is fully sustained by purpose of being relieved of imprisonment; reason and authority; for "it is of the esbut that the sheriff had no authority to ar-sence of a contract of suretyship that there rest him, or confine him in jail, or demand of him a bond before releasing him, there being no order of court authorizing the sheriff to do so, and no allegation in the bill that would authorize the court to order the sheriff to arrest the principal, confine him in jail, or demand of him any bond of the character of that sued on. On May 9, 1877, the case came on for a hearing, and the defendant further pleaded, among other things, that the bond was given by Besore under duress, and defendant signed it as security for him, with no knowledge of the circumstances which required him to give a bond, or that he was under duress at the time, etc. On demurrer, the latter plea was stricken, as insufficient in law to constitute a defense, and this was assigned as error. Under the evidence introduced and the court's charge, the jury found in favor of the plaintiff. A motion was made by defendant for a new trial, on the ground, among others, that the charge contained the following instruction: "Whether Besore was under arrest or not, if Patterson voluntarily signed that bond, and he was under no arrest, and there was no illegal imprisonment as to him,-no threats made as to him, he could not take advantage of it, and he must pay the bond if he signed it. Look to see if Patterson signed it. If he did, whether Besore was under arrest or not, he not being here, Patterson cannot take advantage of it." The motion was overruled, and this also was assigned

*

*

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as error.

R. F. Lyon, Bacon & Rutherford, and R. W. Patterson, for plaintiff in error. J. H. Hall and Hardeman & Davis, for defendant in error.

BOYNTON, J.1 The official report of this case shows that a number of exceptions were taken to the rulings made and charges given by the trial judge. The only one we regard as necessary for this court to

In this case, SIMMONS, J., being disqualified, Judge BOYNTON, of the Flint circuit, was designated to preside in his stead.

should be some one liable as principal; and accordingly, when one party agrees to become responsible for another, the former incurs no obligation as surety, if no valid claim ever arises against the principal.' Chitty, Cont. (11th Amer. Ed.) 738. "The contract of suretyship is that whereby one obligates himself to pay the debt of another, in consideration of credit, or indulgence, or other benefit to his principal; the principal remaining bound therefore." Code, § 2148. It is also a recognized doctrine of the law of surety that whatever discharges the principal also discharges the surety; but this rule does not apply where the surety binds himself, knowing he has no remedy over against his principal. 1 Pars. Notes & B. 244. The same general rule is declared in Code, § 2149, with this exception thereto: "If, however, the original contract of the principal is invalid from a disability to contract, and his disability was known to the surety, he is still bound." This exception to the general rule is equivalent to declaring that if the principal was under a disability to contract, and this was unknown to the surety, he would not be bound. Duress is, or, rather, it imposes, a disability; and if the principal was coerced to make the contract by duress, and this was unknown to the surety, it would release the surety from liability. The following cases, to-wit: Strong v. Grannis, 26 Barb. 122; Osborn v. Robbins, 36 N. Y. 365; Thompson v. Lockwood, 15 Johns. 256; Speake v. U. S., 9 Cranch, 28; State v. Brantley, 27 Ala. 44; Ferry v. Burchard, 21 Conn. 597; Fisher v. Shattuck, 17 Pick. 252; Hawes v. Marchant, 1 Curt. 136; U. S. v. Tingey. 5 Pet. 129; Governor v. Williams, Dud. (Ga.) 244, 245,-sustain the rule "that duress of the principal is an available defense for the surety also." The reasons on which these decisions are bottomed are that duress is illegal; a contract procured by duress is corrupt in its origin; and the wrongdoer should not be allowed to take a benefit from his wrongful act. If there is an essential vice inherent in the contract, such as fraud or duress, the fraud or duress can

parol evidence to establish in truth the real | to suppose that Oliver should have been contract between the parties, notwith- utterly ignorant of this line along the mounstanding the erroneous written agreement, tain top in his own neighborhood, and that the mistake will not be presumed, because he should purchase this land, and yet be it is alleged; nor will the fraud which may solitary in his ignorance, while all others, be charged be regarded until it is clearly however indifferent in interest, should be proved. "The authorities all require that so familiar with it. And yet this is so. It the parol evidence of the mistake, and of is a concession at the bar of this court that the alleged modifications, must be most the true fact is not as the defendant alleges clear and convincing, in the language of it was mutually understood. But it is insome of the judges, the strongest possi-sisted that, having the best means of knowlble,'-or else the mistake must be admitted edge, and the greatest interest to know the by the opposite party; the resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error.' Opinion of Lord THURLOW in Lady Shelburne v. Lord Inchiquin, 1 Brown, Ch. 338; Calverley v. Williams, 1 Ves. Jr. 210; Bradford v. Bank, 13 How. 57, 66; Iron Co. v. Iron Co., 102 Mass. 45. CHAPMAN, J., in the last-named case, said: "The ordinary rule of evidence in civil actions, that the fact must be proved by a preponderance of evidence, does not apply to such a case as this. The proof that both parties intended to have the precise agreement set forth inserted in the deed, and omitted to do so by mistake, must be made beyond a reasonable doubt." In view of this well-settled principle, we will briefly consider the evidence in this case.

truth, he was so ignorant as to be deceived by his vendor in a matter well understood by all others. There is another ground upon which the defendant's claim is rendered very improbable; that is, that the loop lands really did not lie wholly east, nor wholly west, of this turnpike, but, being truly ascertained, at the wide end of the loop they crop the said turnpike a short distance to the west. And a slight variation of the parol agreement sought to be set up would be an agreement to sell all of the loop lands, as generally understood lying east of the said turnpike. But I do not think we are left to conjecture upon the subject. The parties, by their written agreement, resolve the question as to the dimensions of the loop, by the words, "as generally understood;" and it is extremely improbable that, if they had held in their minds any special definition different from the truth, they would not have set forth that special definition, rather than content themselves with a reference to the general understanding upon the subject. In our opinion, there is no evidence upon which to vary this written agreement between the parties, and that there is no proof of any mistake, and that this was not a case which called for equitable interference, and that the circuit court ought to have dismissed the bill of the plaintiffs, and allowed the plaintiffs in the ejectment suit to assert their rights in the common-law suit.

The controversy is, what did the parties intend to express by the term used in the written agreement, "The Loop?" In the first place, the language of the written instrument itself is potential in favor of the plaintiff in this question of construction. It answers the question, what is meant by the term "The Loop?" In clear terms it says, "generally known as 'The Loop;'" not, "what we agree is 'The Loop." The defendants allege that, although the written contract_says the lands "generally known as 'The Loop,'" they meant the lands east of the turnpike; and it appears in proof There are other interesting questions that the definition of the term they under- raised and discussed by the learned counsel stood to be correct, as alleged by the de- on both sides, but the foregoing is, we fendants, was never so understood before think, the true solution of the dispute inby anybody, but that the lands known as volved, and it is unnecessary to prolong "The Loop" were generally understood-the discussion_concerning the other quesindeed, universally understood-to be the tions raised. The decree of the 30th March, lands included in the loop formed by the 1887, giving the relief prayed for in the juncture of two mountains, diverging from amended bill, is erroneous, and the same the point of juncture in wide curves, and must be reversed and annulled, and a dethat the line is well known to run along cree will be rendered here dismissing the the mountain on the top of the ridge, and bill of the plaintiffs. exactly where the special calls in the plaintiffs' deed show it to be. The defendant Oliver sets forth very clearly in his bill his own mistake as very different from the fact as established, and yet it is proved that he had lived in the immediate vicinity of this tract of land called "The Loop," and before his purchase was well acquainted with the same, and after his purchase actually constructed a brush fence for cattle inclosure along the true line on the top of the ridge. The common vendor, Kincaid, denies any such supposed mistake, and proves the true line. I not only do not think the mistake is proved, but I think it is quite clear that the contention of Oliver is an after-thought, without any support from the proofs whatever. It is unreasonable

PATTERSON V. GIBSON.

(Supreme Court of Georgia. July 12, 1889.)

PRINCIPAL AND SURETY-DURESS.

1. A bond executed under duress of the principal is void as to the surety also, if the surety acted without knowledge of the duress; and knowledge of the fact of imprisonment does not necessarily involve knowledge of its want of legality.

2. It was error to strike a plea setting up a material part of this defense; to-wit, want of knowledge.

(Syllabus by the Court.)

Error from superior court, Bibb county; GUSTIN, Judge.

The following is the official report referred to in the opinion: On April 3, 1877, Mrs.