Kesner v. Trigg

APPEAL from the Circuit Court of the United States for the Western District of Virginia.

Philip Kesner, of Washington County, Virginia, an adjudicated bankrupt, surrendered real estate, viz.:--

'One-half interest in 150 8/100 acres of land lying in Washington County, Virginia, near Cedarville, with improvements thereon.

'Life-estate in the other one-half of the above tract, $800.

'The other half of this tract belongs to the petitioner's wife.'

Afterwards, on the 6th of August, 1873, by leave of the court he filed an amended schedule, varying the description of his land, viz.:--

'All the petitioner's interest in a tract of 150 8/100 acres of land lying in Washington County, Virginia, near Cedarville, conveyed to petitioner by George Dutton, in consideration chiefly of his wife's lands, near Lyon's Gap, in Smyth County.

'If his wife's claim to one-half is sustained, then he surrenders his petitioner's life-interest in that half.

'Petitioner's wife claims one-half of this land: value of the whole tract $2,400

'If his wife sustains her claim of one-half, will be 1,200

'Value of life-interest 800'

Kesner's assignee advertised the land; but Jane B. Kesner, his wife, filed her bill, and a temporary injunction was awarded forbidding the sale.

She claims that the whole land is her own property, and that there was a contract between her and her husband, not reduced to writing, by which she was to claim no interest in his property, and he none in hers; that an arrangement between one Thomas T. Hull, one George Dutton, and her husband, by which Dutton was to get Hull's land, Hull hers, and her husband Dutton's, was made, to which she assented, with the distinct understanding between her husband and herself, and in the belief, that she would have in the Cedarville land (the land surrendered by Philip Kesner) the same rights she had in her own land; that she was one of the three children of John Davis, who died intestate, leaving real estate at Lyon's Gap, which was divided, and one-third of it assigned to Kesner and wife, one-third to Moffett and wife, and one-third to Porterfield and wife; that Moffett and wife sold their third to Kesner and wife, who conveyed the two-thirds thus acquired to Hull's executor, by their deed, duly executed and acknowledged, May 26, 1852, and recorded 24th August, 1853; that the deed to the Cedarville land was made by Dutton and wife to Philip Kesner alone, on the 25th of January, 1851, and recorded Aug. 6, 1853; that the purchase-money paid to Moffett and wife was derived from the sale of certain slaves which the complainant received as part of her father's estate.

The bill further alleges that Philip Kesner executed a deed of trust, conveying the Cedarville farm, Jan. 29, 1862, to one Bekem, to secure the payment of a promissory note, of even date therewith, for $2,000, borrowed money, payable two years thereafter to one Greenway; that the money borrowed consisted of Virginia and North Carolina notes, which were greatly depreciated; that said debt is not a lien on the land, and that if it be set up as such, it should only be at its 'scaled value.'

The deed of said Kesner and wife to Hull's executor was acknowledged by her before two justices of the peace of the county, who state in their certificate that she was by them examined privily and apart from her husband, and that the deed having been fully explained to her, she acknowledged the same to be her act, and declared that she had voluntarily executed the same, and did not wish to retract it.

The remaining facts are stated in the opinion of the court.

The bill makes Trigg, the assignee in bankruptcy, Greenway, and other persons parties. The grounds therein set up for relief are denied by the answers. Upon final hearing, the bill was dismissed, and the complainant appealed to this court.

Submitted on printed arguments by Mr. James H. Gilmore for the appellant, and by Mr. John W. Johnston for the appellees.

MR. JUSTICE SWAYNE delivered the opinion of the court.