1877. March Term.

Grigsby & als.

V.

restricted the incompetency to such matters as the other party, if not incapacited, might be qualified to speak to, as acts and declarations imputed to him, or transactions in which he acted a part, and left untouched his competency as to other matters; and such Simpson, ass'ee, &c. restriction might comport with the spirit of the act; but the legislature has not so said, and the court is not disposed to extend the operation of the act beyond its terms and express provisions; and the incompetency of parties to testify in their own favor in such cases being declared by the act in express terms, they must be held incompetent to testify to any matter bearing upon the issues in the cause."

These views, so recently expressed by the unanimous judgment of the court, are decisive of the questions raised in the case before us.

The court is therefore of opinion, that the circuit court did not err in excluding the witnesses, Grigsby and Cockerelle, both of whom were obligors in the bond payable to Moss, who was dead, which bond was the subject of the suit.

Nor does the fact, that Cockerelle was the administrator of Moss, affect the question of his competency. He stood in a double relation. He was a defendant obligor in the suit, and he was administrator of the deceased obligee. The fact that he occupied this latter relation did not relieve him from restrictions of incompetency applicable to him in the former. Both Cockerelle and Grigsby were incompetent, because both were obligors in the bond payable to Moss, in which the suit was brought, and Moss was dead.

The court is further of opinion, that the circuit court did not err in excluding the memorandum in writing and figures proved to be in the handwriting of E. R. Fred. It was proved that the plaintiff had no know

ledge of, and had never seen this paper, and it was in fact an offer to introduce the declaration of Fred, which was clearly inadmissible.

Upon the whole case, the court is of opinion there is no error in the judgment of the circuit court, and that the same be affirmed.

JUDGMENT AFFIRMED.

1877. March

Term.

Grigsby &als.

v.

Simpson, ass'ee, &c.

1877. March Term.

Bichmond.

CARTER, Trustee, &c. v. McARTOR & als.

April 5.

Absent, Anderson, J.

I. For the principles on which a court of equity will act on an application to correct a mistake in a deed, see the opinion of Staples, J.

II. In March 1844, by an agreement in writing, D sells a tract of land to M, for which M is to transfer to D bonds of K, secured by a deed of trust on real estate, and gives his bond for the balance of the purchase money, payable in ten years with interest; and M is to convey the land in trust to secure the payment of the bonds of K, and the balance of the purchase money. In December 1844, M conveys the land in trust to secure to D a bond of $6,000, payable in ten years with interest, but no reference is made in the deed to the bonds of K. The real estate on which the bonds of K are secured diminishes in value, and when sold by D in 1852, brings only one-third of the amount due on the bonds. In 1858 C, trustee, claiming under D, files his bill against M and others, claiming that by mistake the deed of trust executed by M omitted to secure the K bonds. A witness who drew the agreement, but was not present when the deed was drawn and executed, says he in 1845 called attention to the mistake, and was told the agreement was sufficient to bind the land-HELD:

1. The presumption is, that the intention to secure the K bonds by the deed was relinquished before the deed was drawn and executed; and the evidence is insufficient to rebut that presumption.

2. The parties having known, as early as 1852, that the real estate on which the K bonds was secured was not sufficient to discharge them, and they having delayed until 1858 before they filed their bill, they are precluded by their laches from any relief.

By a memorandum of agreement under seal bear

1877.

March

Carter, Trustee,

V.

McArtor & als.

ing date the 12th of March 1844, between Daniel Hitt of the first part, Robert McArtor of the second part, Term. and Richard De Butts of the third part, all of the county of Fauquier, it was witnessed that De Butts had sold to Hitt and McArtor, to be equally divided between them, two parcels of land containing three hundred and nineteen acres, at $50 per acre. And De Butts agreed to purchase of Hitt a tract of two hundred and thirty-five acres, at the same price, and to pay Hitt the difference. And for the moiety of the land, of one hundred and fifty-nine acres, purchased by McArtor, he was to pay as follows: six bonds of W. A. Kerchival, supposed to amount in all to $1,150 or $1,200; also one negro woman and two children at $600, and the balance in ten years, with interest payable semi-annually. And McArtor was to guarantee the prompt payment of the Kerchival bonds, and to give a deed of trust upon the land to secure the payment of the whole purchase money, including the amount of the Kerchival bonds.

The Kerchival bonds and the negro woman and children were delivered to De Butts, and he having conveyed the land to McArtor, McArtor and wife by deed bearing date the 18th of December 1844, conveyed the land to Thomas N. Latham, in trust to secure the payment to De Butts of a bond of $6,000, bearing date April 1st, 1844, and payable with interest in ten years. In this deed no allusion is made to the Kerchival bonds.

In May 1855, Richard De Butts conveyed to Edward Hall this bond for $6,000, with other property, in trust for the separate use of Mrs. Sarah M. C. De Butts; and Richard H. Carter was subsequently substituted in the place of Hall.

In March 1858, Richard H. Carter, as trustee for

March

Carter, Trustee,

V.

McArtor

Mrs. De Butts, instituted a suit in equity in the cirTerm. cuit court of Fauquier county, against Robert McArtor, Mr. and Mrs. De Butts, Latham and Kerchival. In his bill he set out the agreement and deed of trust aforesaid, and says that from some mistake, & als. omission, accident, or some other cause, McArtor failed to secure on the said land the ultimate payment of the said Kerchival bonds, with the interest on the same, which, by the terms of said agreement, he bound himself to do. That after his appointment as trustee as aforesaid, De Butts assigned and delivered to him the said bonds. That when McArtor assigned them to De Butts they were secured by deed of trust on certain property in the village of Paris, executed to L. P. Payne as trustee, under which an informal sale was made, when the property was bid in by McArtor at $450. But this sale proving invalid, another sale of the property was made under a decree of the court in a suit brought by De Butts, at which sale, on the 20th of December 1852, the said De Butts became the purchaser at $500, leaving a large balance, which he states, still due upon the bonds. That at the time of the delivery by McArtor to De Butts of the said bonds, Kerchival was utterly insolvent, and so continues; that it would have been vain to attempt to coerce the payment of the money mentioned in the bonds by process of law when they fell due; and the property conveyed in the deed of trust was wholly inadequate to secure them.

The prayer of the bill is, that McArtor may be decreed to pay the amount due upon said bonds, and in default of payment, that the land aforesaid, upon which he bound himself to secure the payment, may be decreed to be sold for the satisfaction thereof; and for general relief.