Opinion
09-28-1811
Marshall v. Thompson
Peyton Randolph, for the appellant, and Call, for the appellee.
This being a suit in chancery to recover arrears of an annuity, for the life of Mary Anne Thompson, the plaintiff, secured by a defective bond, executed by Daniel Marshall, the defendant, the 26th of January, 1789; (the sum payable, annually, being 121. 10s. and the penalty of the bond only 251.) the bill alleged that an action at law was brought on the bond to recover the first annual payment; and that, in consequence of a receipt produced by the defendant, (which the plaintiff denied to have been executed by her,) a nonsuit was advised by her attorney, to which she accordingly submitted; the answer insisted that the plaintiff, freely, voluntarily and fairly, gave the defendant, on the 2d of February, 1789, the receipt in question, as a full and complete discharge; and the testimony on the subject leaving it doubtful whether such receipt was fairly obtained; the county court of Nottoway, on the 3d of June, 1803, decreed " that the defendant do pay to the complainant the sum of 121. 10s. with 5 per cent. interest thereon from the first day of February, 1790, and the farther sum of 121. 10s. for every year since that period, with interest, as aforesaid, on each sum, from the first day of February of each year, in regular succession, to the first day of February last," and costs; which decree being affirmed by the superior court of chancery for the Richmond district, September 12, 1806; the defendant appealed to this court.
Decrees reversed, and cause remanded.
The case was submitted, without argument, by Peyton Randolph, for the appellant, and Call, for the appellee.
OPINION
Friday, October 4th. The following Opinion of the Court was pronounced by Judge Roane.
" The court is of opinion that, if the agreement stated in the bill as the ground thereof has not been relinquished on the part of the appellee's intestate, she should not have been limited by the decree of the courts below to the annuities which had actually fallen due before the date, but that liberty ought to have been reserved to her, thereby, to apply to the court, from time to time, to extend its decree, so as to embrace all the annuities thereafter falling due during her life. The court is also of opinion that, under the actual testimony exhibited in this cause, it would have been proper to have directed an issue to inquire whether the receipt of the 2d of February, 1789, was fairly obtained, with a full knowledge of its contents, on the part of the appellee's intestate, and whether it was then understood by her to extend to the whole bond."
Note. The suit (having abated by the death of the appellee) had been revived against her administrator. --Note in Original Edition.
Decrees of both courts reversed, and cause remanded to the superior court of chancery for an issue to be directed, and farther proceedings to be had, agreeably to the foregoing principles, in order to a final decree.