J I~ fo Record No. 1957

') \ \ J I~ fo

Record No. 1957 In the

Supreme Court of Appeals of Virginia at Richmond

J. S. THOMPSON AND JUDY C. THOMPSON

v.

EDNA C. THOMPSON

FRO;\f 'I' l l !·~ CJRC' l 11' C'Ol R1' or 'I' ll I•: C:O L; X '!' \" OF CA i\fl'RF.LT"

"The hriefs shall he printed in t}1JC not less in size than small pica, and shall be nine inches in length and s ix inches in width, s.o as to conform in dimensions to the printed rC'cords nlon2: with which they nre t o be bonncl, in nccorclance with Act of .\ ssembly , approved ~Iarch 1, 1903; and the cl~rks of this court arc directed not to receive or file a ln·ief not conforming in all respects to the aforementioned rNJUiremen ts. ''

T he foregoing is printed in small pica t ype for the information of conm;cl. I 71 w M =?6/~erk

/

IN THE

Supreme Court of Appeals of Virginia AT RIOHMOND.

Record No. 1957

J. S. THOMPSON AND JUDY C. THOMPSON

versus

EDNA ·C. THOJ\IPSON.

To the Honorable Judges of the Suprerne· Court of Appeals of Virginia: .

Your petitioners, J. S. Thompson and Judy C. Thompson, respectfully represent that they are aggrieved by a decree entered by the Circuit ·Court of the County of Campbell, Virginia, against them in a suit in chaN.cery therein dependi~g wherein Echia C. Thompson was plaintiff and J. S. Thompson and Judy C. Thompson were defendants. The decree complained of was entered on the day of October, 1937. A transcript of the record is herewith presented from which it will appear that J. S. Thompson and Judy C. Thompson brought an ejectment ag·ainst Edna C. Thompson, in the Circuit Court of Campbell County to recover possession of the house and lot that Edna C. Thompson occupied. Before the trial of this suit, however, Edna C .. Thompson filed her bill against the said J. S. Thompson and Judy C. Thompson and had the court to enjoin them from prosecuting their ejectment suit.

The bill in this case was to have the court to compel specific performance of an oral contract which it is alleged Herman C. Thompson had with Judy C. Thompson and R. D. Thompson, which is hereinafter fully set out. The court held that this contract had not been proved and it could not be

2 Supreme Court of Appeals of Virginia.

specifically performed. This appelt,rs from the opinion ·of the court :filed with the decree which is in these words :

"The plaintiff seeks ·sp·ecific performance of an ·alleged contract for the conveyance of a tract of land on the ConcordLynchburg Road, near Six Mile Bridge, upon which her husband and predecessor in title erected a store and filling station. The alleged consideration which was to be paid by said bus band is $100.00. The defendants rely upon the laches of both the plaintiff and her husband who conv:eyed to her, in a separation agreement, all his 'right, title and interest' in the premises. It is also contended by the defendants that said contract comes within the inhibition of section 5141 and of the Statute of Frauds. Without going further into the facts and arguments thereon, it is sufficient to say that said grounds of defense are sustained by the evidence. Even if it be granted that the consideration was to be the sum of $100.00, the contract is too vague and uncertain, the proof thereof too doubtful, and the description of the land to be conveyed, too indefinite to enable the ·Court to compel specific performance.''

The court was correct in its holding, as 'vill more fully appear hereinafter. The decree is erroneous, the error appearing on the face of the decree and also in the opinion of the court, which opinion in part is as follows:

"This is not to say, however, that the plaintiff is altogether to be denied relief in equity. It is clear from the evidence that the defendants knew of the store being erected on their property, and acquiesced in its being done and in the store being· operated by the plaintiff and her husband until a valu· able business was built up, and to enable them now to cast her out and to take possession of the property without compensation for the improvements would be to operate an injustice upon her which equity will not permit. And the Court of Equity having· taken jurisdiction in' the matter will proceed to render final adjudication of the rights of the parties without compelling them to resort to their remedies at law. It is plain that the store has enhanced the value of the property, although the defendants claim they would rf!.ther it were not there. There is conflict as to the value of the improvements, but taking· the evidence as a whole, the Court thinks a fair adjustment of the rights of the parties will be made by requiring the defendants to pay the plaintiff $900.00, upon which heing done the injunction _will be dissolved and

J. S. and Judy 0. Thompson v. Edna C. Thompson. 3

the suit dismissea, eaeh side paying its own costs. ·A decree may be drawn accordingly.''

F1rom the foregoing facts, your petitioners submit that they were greatly aggrieved by the erroneous ruling of the court, to-wit:

1. Because the court entered the decree against them. 2. Because the court did not dismiss the bill of Edna C.

Thompson. 3. Because the court decreed that Edna C. Thompson

should be paid nine hundred dollars. 4. Because the court had no right to fix the amount to be

paid, if anything, that should have been left to a jury. 5. Because the court was not authorized under the plead

ing to make such a decree. 6. Because the opinion of the court shows that the nine

hundred dollars covered the loss of business which could not be recovered.

7. Because the court had no evidence to show any value had been added to the land. _

8. Because the court did not allow anything for the use of the land by Edna C. Thompson or her husband.

Your petitioners are advised and respectfully represent that the court failed to give them the right due them by entering the decree against them.

This suit was to enforce a contract claimed to have been made by Mrs. Judy C. Thompson and her husband, R. D. Thompson. The court held that there was not any contract that could be enforced by the complainant. This appears in the opinion of the court. After this finding the bill should have been dismissed, but instead the court, in the opinion, said, ''This is not to say, however, that the plaintiff is altogether to be denied relief in equity". The court did not state whether equity was under the common law or under the statute of Virginia. What relief can a court of equity give, in a case like this one, at common law Y

In Graeme v. Cullen db als., 23 qratt., at pages 296-7, Mon-cure, P ., said: ·

''There being nothing in the statute law to sustain the . claim, let us now see if there be any established principle of law or equity which can sustain it.

"If there be any such it must be found laid down fu Story's Eq. J u. §385-390; or in 2 I d. §799a, 799b, and 1237 and

4 Supreme Court of .Appeals of Virginia.

1238; all of which sections were cited and much relied on by counsel for appellants. The sections cited from 1 Story's Eq. relate to the ground of fraud, which will be considered presently. Those cited from 2Id. relate to the ground we are now considering. In §799a, it is said, that if a plaintiff in equity seeks the aid of the court to enforce his title against an innocent person, who has made improvements on land, supposing· himself to be the absolute owner, that aid will be given to him only upon the terms that he shall mak~ due compensation to such innocent person, to the extent of the benefits which will be received from these improvements. In §779b, after referring to ·the more liberal rule of the civil law in favor of a bona fide possessor of land, whose title is . defective, and who claims compensation for improvements made by him upon the land in good faith against the true owner, who asserts his title to it, the writer says : 'But courts of equity seem not to have gone to this extent, but to have confined themselves simply to the administration of the equity cases where their aid has been invoked by the true owner in support of his equitable claims. They have never enforced, in a direct suit by bona fide possessor, his claim to meliorations of the· property from which he has been evicted by the true owner.' To the same effect are §1237. and 1238; and in the latter it is said: 'In all cases of this sort, ho·wever, the doctrine proceeds upon the ground, either that there is some fraud, or that the aid of a court of equity is required; for if a party can recover the estate at law, a court of equity will not, unless there is some fraud, relieve a purchaser or bona fide possessor on account of money laid out in repairs and improvements.' ''

In Effinger v. Hall, 81 Va., at pages 101-2, Judge Lewis said:

"It is a general rule .of the common law, subject to some exceptions, as in the case of fixtures, that everything annexed to the freehold becomes a part thereof, and passes with the recovery. Improvements are therefore made at the occupant's peril, except that in an action against him by the rig·htful owner for mesne profits; the rule has been so far ·modified, independent of statutes, as that the former is permitted to set off against the plaintiff's claim the value of his improvements, but not in any case to exceed the amount of the rents and profits. 2 J(ent 's Com. 334; Jackson v. Loomis, 4 Cow. 168; Graeme v. Cullen, 23 Gratt. 266; Parsons v. Moses, 16 Iowa 440.

''A different and more liberal rule, however, borrowed from

J. S. and Judy C. Thompson v. Edna C. Thompson. 5

the civil la,v, prevails in equity. By that rule the rights of the parties are determined on the equitable principles that, he who seeks equity, must do equity, and that one shall not be permitted unjustly to enrich himself at the expense of another. But to entitle a party in equity to an allowance for improvements, he must have been a bona fide possessor under a defective title, supposed by him to be good; or, as defined in Green v. Biddle, 8 Wheat. 1; a bona fide possessor is one, 'who not only supposes himself to be the true proprietor of the land, but who is ignorant that his title is contested by any other person claiming a better right to it'. And this is so, because the claim for improvements, inde-

- pendent of statutes, is founded upon equitable grounds, and it would be manifestly inequitable to compel the true owner to pay for improvements which were not directed, nor, perhaps, desired by him, and which were made by the occupant with knowledge of the former's claim.''

At common law, the occupant of land could not sue the owner of the land for improvements made by him while he thought he was the bona fide owner, but, if the owner is suing for rent, or damages for the use of the property, the occupant may offset such claim by his improvements. 31 C. J. 313, Sec. 14. On the same page is Section 15, which is in these words : ·

"Under Civil Law. Even prior to the modified common law rule it was the rule under the civil law, upon the broad principle of equity, that no one ought to enrich himself at the expense of another, that, where one made permanent im~ provements of land in his possession under a bona fide belief of ownership, he was entitled to full compensation therefor, less a fair compensation for rents and profits during the period of his occupancy, before the owner of the property could recover the same. ''

This rule is our statute in Virginia, as will more fully appear hereina-fter. Section 16, page 314 of 31 C. J., contains this : ''Courts of equity, following the civil law rule, • • • . '' This same book at page 315, Section 17, has this:

''According to some authorities a bona fide occupan~ 's right, in equity, to compensation for his improvements applies to him as defendant only, and does not give him the right to recover the value of his improvements after eviction by a direct affirmative suit against the owner of the. property, although he made them innocently or through mistake,

"'l

6 Supreme Court of !\.ppe~s of Virginia.

• • • . '' In note 11 Graeme v. C·ullen, 23 Gratt. 260, and Morris v. Terrell, 2 Rand. 6, were cited by the author to sus-tain the text. ·

It clearly appears 'that the suit of Edna C. Thompson brought was. an affirmative suit and therefore could not come within the common law. In Nixdorf v. Blount, et al., 68 S. E., at page 259, Judge Whittle said:

''The right to allowan.ce for improvements, under the Virginia statute, which is an innovation on the common law is confined to cases in which the improvement was made under a title believed .to he good, a1;1d that is not predicable of a purchaser with notice of the inc~brance.''

From the foregoing, it is submitted that Edna C~ Thompson had not any ·right to relief under the common law, or equity, and not having that relief, did she have any under the statute of Virginia 7 . Chapter 225 of the Code of Virginia gives the law on "allowance for improvements". Section 5491 of the Code .is in these words :

"How defendant may apply therefor, and have judgment suspended.-Any defendant against whom a decree or judgment shall be rendered for land, where no assessment of damages has been made under the preceding chapter, may, at any time before the execution of the decree or judgment, present a petition to the court r~nderfug such decree or judgment, stating that he, or those under ·whom he claims while holding the premises under a title believed by him or them to be good, have made permanent improvements thereon, and praying that he may be allowed for the same over and above the , value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the al-legation, suspend the execution of the judgment or decree, and impanel a jury to assess the damages of the plaintiff, and the allowance to the defendant for such improvements.''

A strict construction must be placed on this statute, as was said by Judge Fauntleroy in Hollingworth v. Funk-houser, 8 S. E., at page 596: ·

"Yet the statute, being in. derogation of the common law, is to be strictly construed to promote the . ends of justice.''

It, therefore, requires the proceeding to come strictly withi:p the provisions of the statute for any relief provided therein.


It seems that a judgment or decree must hav:e been rendered for the possession of the land and a petition then :filed before the court to have the execution of the judgment or decree suspended, "and impanel a jury to assess the damages of the plaintiff, and the allowance to the defendant for such improvements''.

This statute has been before this court several times, and in the case of Branham v~ Artrip, 79 S. ~· 391, Judge Har-rison, speaking for the court said: ·

''It has be~n repeatedly held that the statute relied on ap• plies only to actions of ejectment, or to cases in which a decree or judgment is rendered against a defendant for land. Graeme v. OuUen, 23 Gratt. (64 Va.) 266; Woods v. Krebbs, 33 Gratt. (74 Va.) 685; Effinger v. Hall, 81 Va. 94; Flana;ry v. Kane, 102 Va. 547, 558, 46 S. E. 312, 681. The case at bar is not an ejectment suit, but ·a chancery suit for the specific enforcement of an· alleged parol contract, and no decree has been rendered therein· against the defendant for land.''

The case of Branha;m v. Artrip is on all fours with this case. The facts are given by Judge Harrison, on page 390, as follows:

''The appellant instituted an action to recover of the ap• pellee the possession of· a certain lot of land in Dickinson County. Appellee thereupon filed the bill in. this case, pray• ing that appellant be enjoined from prosecuting his action at law, and praying for the specific performance of an oral contract alleged in· the bill. The circuit court refused to specifically enforce the contract alleged, because it was too indefinite and uncertain, but entered a decree directing that possession be delivered to the appellant upon the terms that he should pay appellee the value of the improvements he had put upon the land less the rental value of the same. From that decree this appeal was taken.''

The petitioners herein instituted an ejectment suit in the Circuit Court of Campbell County against Edna C. Thompson. She then ·filed the bill in this case, praying that petitioners be enjoined from prosecuting the ejectment suit; and also praying for specific performance of an oral contract alleged in her bilL The Circuit Court of Campbell County refused to specifically enforce the alleged contract, but entered a decree directing th~ p~yment. of nine hundred. dollats


by the petitioners to Edna C. Thompson and retained the injunction until this sum was paid.

In the Branham case, Judge Harrison said:

"We are of opinion that the grounds necessary to justify · the specific performance of the alleged contract were wholly wanting in the case, and that the circuit court properly refused to enforce it. We are, however, further of opinion that when the court reached that conclusion it should have dismissed the bill, leaving the parties to their remedies, if any, at law.''

From this state of the law, it clearly appears that the Circuit Court of Campbell should have dismissed the bill in this case on reaching the conclusion that the alleged contract could not be specifically enforced. It is submitted that under the opinion of this court in the Branham case, the court below erred in not dismissing the bill in this case. .And, moreover, this court should reverse the court below and dismiss the bill and enter up judgment for the petitioners. This court had this same question before it on June 11, 1936, in the case of Truslow v. Ball, et al., 186 S. E. 71. At pages 74-75, Chief Justice ·Campbell, speaking· for the court, said:

''At common law all building·s and improvements in the way of fixtures annexed to the freehold became a part of it and inured to the benefit of the owner of the land. This was true even though the person making the improvements did so under color of title' and acted in a bona fide belief of ownership. Graeme v. C'ldlcn, 23 Gratt. (64 Va.) 266.

''This has been changed to some extent by statute Va. ~Code 1930, Sections 5483, 5491. .A defendant can now re· cover for permanent improvements, when and only when he makes the improvements while 'holding the premises under a title believed * * * to be good'. The courts have held that this section has no. application to one who is not a bona fide purchaser, and that a person with notice actual or constructive, of infirmity in his title, cannot recover. 81nith v. Woodwa;rd, 122 Va. 356, 94 S. E. 916; JJf a Donald v. Roth.geb, 112 Va. 749, 72 S. E. 692, Ann. Cas. 1916B·, 63; Nixdorf v. Blount, 111 Va. 127, 68 S. E. 258.

"In interpreting these sections, it is also held that they apply only to actions of ejectment or to cases in which a judgment or decree is entered against the defendant for land. Flanary v. Ka;ne, 102 Va. 547, 46 S. E. 312, 681. And that they do not apply in suits to enforce parol contracts to convey real estate, Branham v. A'l·trip, 115 Va. 79 S. E. 390."


The case of Branham v. Artrip was cited with approval in the opinion in the Truslow case, and that case is law in this state at this time. From the facts and law as hereinabove stated, the court below should be reversed and the bill dismissed. This further appears to be true from the fact that the court is required under the statute to submit the question of improvements to a jury. This was not done in this case, and therefore the decree was erroneous. Section 5494 of the Code of Virginia was not complied with in fixing the damage or value of the improvements. This statute contains this: ''.And not exceeding the amount to which the value of the premises is actually increased thereby at the time of the assessment. ' '

The complainant below did not offer any evidence to show the improvements increased the ·value of the petitioners' land. But they offered evidence to show what the improvements cost when constructed. Nine hundred dollars was the amount Herman Thompson testified he paid for the improvements when made, and the court took that sum for the allowance without deducting anything for the use of the place, as the statute required. In a note to Section 5494 of the Code, this ap-pears: ·

"Sufficiency of proof.-Compensation ca.n only be allowed· upon clear and full proof of the amount to which the value of the premises is actually increased thereby at the time of the assessment. Hollingworth v. F-unkhouser, 85 Va. 448, 8 S. E. 592.''

In Porter v~ Shaffer, 133 S. E. 617, ,Judge Chin~ said:

"And the general rule also is that, when improvements are erected on the land of another under circumstances that would entitle the party making the improvements to recover compensation, the measure of such compensation is governed by the benefit accruing· to the owner of the land from the improvements erected thereon, and not by the cost of the im .. provements or the expenditures made.''

The reason for allowing the nine hundred dollars by the court below is given in the opinion as follows:

''It is clear from the evidence that the defendants knew of the store being erected on their property, and acquiesced in its being done and in the store being operated by the plaintiff and her· husband until a valuable business wa~ built up, and to enable them now to cast her out and to take possess~on


of the property without co~pensation for the improvements would be to operate an injustice upon her which equity will not permit."

This finding is wrong. The petitioners did not do or say anything which authorized the building. J. S. Thompson did not own any interest in the land at the time of making the improvements and he could not have been required to speak or object to the improvements. Judy C. Thompson owned the property when the improvements were made. Mrs. Judy C. Thompson saw the building being built, and she did not object to it being built, but did not consent for it to be built. This question has been discussed and passed on by our Court of Appeals.

In Effinger v. Hall, 81 Va., p. 94, Judge Lewis said:

"In Wallace v. Qu,igly, 6·Watts 87, there was held one who takes a title, when he knows, or ought to know, that it is defective, is not entitled to compensation for improvements as against the- true owner even though the latter saw the improvements in progress and did not object. If a contrary principle, said the court 'vere 'tolerated or sanctioned, owners of lands might be in danger of being improved out of their titles and rights to them; * "" # and this in a case where

. the· purchaser had notice of the real owner's rights, would be monstrous'.'' · -

It clearly appears that the court below was in error in decreeing. ·the payment of nine hundred dollars by the petitioners, and was clearly right in holding the alleged oral contract could not be specifically enforced.

The original and amended bills say that R. D. Thompson conveyed to his wife, Judy C. Thompson, and children the whole tract of land in 1897. The children conveyed their interest to their mother in 1926. .After that conveyance, Judy C. Thompson and R. D. Thompson conveyed to Herman C. Thompson, in 1926, the four and a half acres. The contract now before the court is set out in the original bill, on page 2, in these words :

"That in the year 1927, the. said R. D. Thompson and Judith C. Thompson, his wife, agreed with the said Herman C. Thompson that if the latter would construct a storehouse on a· portion of the aforesaid land, fronting on the said highway (now Route 460), and conduct a general merchandise business thereon, they, the said R. D. Thompson and the said


Judith C. Thompson, would execute a deed con~eying to .the said Herman C. Thompson a sufficient parcel of land whereon the said storehouse was to be built for the convenient use of the said storehouse, and, that acting upon the said proposal and in pursuance of the aforesaid agreement, the said Herman C. Thompson did construct, at his own expense, a storehouse on the said land, at a cost of the sum of, to-wit, $2-500.00, and over a period of years, to-wit: from the year 1927 until the year 1934, did conduct a general mercantile business therein, but that the said Hermal). C .. Thompson was never g·iven a deed to the said parcel of land by the· said R. D. Thompson and Judith C. Thon1pson, his wife, and the bou,ndaries of the said parcel. of land were never laid off, although the said R. D. Thompson several times suggested to the said Herman C. Thompson that the latter have a proper deed prepared conveying the said parcel of land to the said Herman C. Thompson, so that the same might be executed by the said R. D. Thompson and Judith C. Thompson, his wife.'' ,

The amended bill contains this :

''But your complainant respectfully represents that there are two matters in connection with the aforesaid bill and the rights of your complainant which were not specifically set up in the aforesaid bill, although it should have ·been, towit, the consideration for the contract alleged between Herman C. Thompson, the husband of your complainant, and R. D. Thompson and Judy C. Thompson, his wife, one of the defendants in this cause. Also the further matter that your complainant had, before the time of the institution of the ejectment action in this cause,. offered to pay to the defendants in this cause the consideration involved in the aforesaid contract.

''Therefore, your complainant does herein now. allege that the consideration for the contract between Herman C. Thomp.; son and R. D. Thompson and Judy C. Thompson, his wife, alleged in the original bill in this cause, was the sum of $100.00, to be paid by the aforesaid Herman C. Thompson to the aforesaid Judy 0. Thompson and R. D. Thompson, her husband; and . .

"Furthermore, your complainant does allege that prior to the institution of this action, and before any demand was made upon her or the aforesaid Herman C. Thompson for the aforesaid $100.00, she did offer to pay to the aforesaid Judy C. Thompson and the aforesaid James Stafford Thompson, now the holders of the legal title to the aforesaid land, the aforesaid R. D. Thompson having died ~n the meantime,


the aforesaid $100.00 as stipulated in the aforesaid contract.''

The complainant, to prov:e this contract, has introduced certain testimony. The first witness John W. Harvey, said he knew about R .. D. Thompson conveying the land to his wife and children. On page 2 of complainant's depositions, this appears:

'' Q. Subsequent to that time, Mr. Haryey, did Mr. Thompson or did he not .operate this same farm until the time of his death?

''A. Yes. '' Q. Did he appear to consider it his own, "A. I suppose so. I don't know anything about it. He

managed it and had it worked:''

Mr. R. C. Worley, the next witness, on page 5 of complainant's evidence, was asked this question:

"Q. Mr. R. D. Thompson said to you, 'I gave Herman the land and a place to put the store but I am not going to put any money in it'?

''A. Yes; Herman was sitting there at the time.''

T. R. Thompson, the next witness for complainant, record page 7, was asked:

'' Q. Do you happen to know anything regarding any arrangements had between your brother Herman Thompson and your parents or either of them regarding the land on which the storehouse was built?

''A. I heard Pa say many times he was going to give Herman the acre of land that the store was on.

'' Q. Did your mother also know of that arrangement about the plat of land,

''A. I don't know. I never heard her say."

This same witness, record page 8, was asked:

'' Q. At that time did you hear your mother say anything with reference to giving a deed to this land on which the storehouse is or refusing to give a deed to it Y · · ''A. No, sir. I heard at the time they separated that she wouldn't give a deed to something.''

On cross examination, record page 9, of complainant's evidence, this witness wa.s asked this question:.

J. S. and Judy 0.· Thompson v. Edna C. Thompson. 13

'' Q. Your father was paralyzed in the fall of 1926 and was paralyzed for a great many years before he died and Stafford had charge of the farm. Is that true Y

"A. Yes, sir."

H. H. Drinkard, the next witness for the complainant, was asked, record page 11 :

'' Q. Do you know anything about what the terms of the contract were between Mr. Thompson or Mrs. Thompson with Herman with reference to the land on which this new store was located Y

''.A. No more than what Herman told me. '' Q. Answer the question. ''.A. He told me that his dad told him to move up there

and build anywhere and cut off the land and his dad would give him. a deed to it. That is all I know about it.''

W. R. Giles, the next witness, on record page 15, was asked:

"Q. Do you know what the contract 'vas between Mrs. Judith C. Thompson and Herman and Mr. R. D. Thompson and Herman with reference to the land on which this storehouse was built?

"Q. Please answer the question, Mr. Giles. ''.A. 1\tir. Herman Thompson at the time he built the store

was talking to me and said 'Pa is going to give me a deed to where I build the store on the new highway.' ·

'' Q. Was that before the store was built~ ''.A. That was before the store was built. I was there after

the store was built too and I asked l1im if he had the deed. Mr. Herman Thompson said his pa 'vould give him a deed to the piece of land which 'vould amount to about an acre. East of the store there was a garage built and the land was to go above the garage back to the pasture fence, behind the store and back to a small building that he had erected on the west side of the store to the highway, and that would amount to about an acre.''

Preston Cox, .the next witness for complainant, was asked, record page 17:

"Q . .All right, tell us about thatf ''.A. Well, I passed by the store twice every day, going to

and from work. One day I wasn't thinking about what was happening but Herman ealled me and asked me to take a walk with him. He said his pa giv:e him a place to put the store

14 Supreme Court of Appeals· of Virginia.

and he wanted me to help him clear up the -land and fix around. He wanted to put the store on the other side of the highway on the right-hand side and· I said he ought to put it on this side, on the left side going to Concord. He said that would right 'cause the sun would face the door and over on the other side the sun would be behind him. He planned out the place right and began to make preparations and I had a partner with me that worked on the track and we hoped him ~ around and he got in shape to build the store. Since that I have hoped him all along.

'' Q. Did you ever hear R. D. Thompson say anything about this transaction Y

''A. He sat down and said mo:r.:e than twice (I used to be his barber) and he said he give that boy the place and he ought to behave himself and make some money. up there. I used to ask Mr. Herman what he was going to do. I would say 'why don't you get yourself straightened out' and he would say 'pa will give me a deed to this property'. It went on then for a good bit after that I called his 'tention to it and he would say that was all right 'cause he thought what his pa said was it. That is all I can tell you along that line about where he located himself.''

This appears on page 18 of record, where this witness was asked:

. '' Q. How much land was Mr. Thompson supposed to g~ve or sell Herman Y

''A. I really couldn't tell you that. The only information I got was out of Herman when we got out and worked together.

'' Q. How much land was there in the space that you cleared outY

"A. About one acre of land."

John Wade, the next witness, offered by complainant, record evidence for con1plainant, page 20, . was asked:

"Q. Do you kno'v anything about what the understanding was between :Nir. R. D. Thon1pson and Jvirs. Judith C. Thompson and Herman with reference to the land on which this store is located Y

''A. I don't know anything about Mrs. Judith C. Thompson. I heard Jvlr. R. D. Tho1npson say on several occasions and on one special occasion something about it. He and I were sitting on the porch waiting for Mr. Herman Thompson to come and open up the store. He said if he had known

J. S. ~d Judy C, Thompson v~ Edna C. Thompson. 15

that J\{r. Herman Thompson was going -to start such things as. he did that he would not have let him have the place. Mr. R. D. Thompson said that he Wished Herman would get the deed straightened out because he was not going to live al-ways. .

"Q. You also heard him say that if he had Imown Herman would act like that he would not have given him the place but that it was Herman's and he could do as he pleased with itf '

'~.A.. Yes, sir." ' a

IT ' It clearly appears that not a single word or act is shown ag~st Mrs. Judy· 0. Thompson by these witnesses. The whole evidence of these witnesses shows what R. D. Thompson ~nd Herman Thompson had told them about the giving of the land by R. D. Thompson to Herman Thompson for the store. Not one word from Mrs. Judy C. Thompson, or about her giving the land. There was not a word about a sale of the lot from these witnesses. These witnesses never said anything about what R. D. Thompson· said about the location of the lot, or the description of it. The witness Preston Cox said Herman started to build the store on the right side of the road and he got him to go on the left side and build. This shows there had not been any agreement on the location by even R. D. Thompson. There is not one word about R. D. Thompson acting as agent for Judy C. Thompson in the pleadings, or from the witnesses. The whole of the eviilence should be excluded for the following reasons:

t Because it fails to connect Mrs, Judy C. Thompson ·with the giving of the lot.

2-. Because the whole of the evidence shows the -contract was not in 'vriting·.

3. Because there is not any description of the land that was given.

4. Because the evidence of what R. D. Thompson and Herman Thompson said was hearsay.

5. Because the agency of R. D. Thon1pson for Judy C. Thompson is not proven, or charged in the bills.

In the year 1932 the question of the requirement of a promise to give real estate to be in writing was before our court. In Mann v. Ma;nn, 165 S. E., p. 524, Judge Hudgins, speaking for the court, said: · ··

''Prior to the adoption of Section 2413 of the Code of 1887, Sec. 5141 of the present Code, an oral promise to give or

16 . Supreme Court of Appeals of Virginia

devise land, followed by possession and improvements, was sufficient to support a right to a conveyance of the same from the heirs or devisees of the donor, but since the adoption of this section, such a promise must be in writing before it can be enforced.'' Citing ·w ohlford v. lV ohlford, 93 S. E. 629; Frizzell v. Frizzell, 141 S. E. 869, and several other cases.

From the cases cited, it clearly appears that the evidence of the oral gift by R. D. Thompson cannot be upheld, if the court should hold that the provision of. Section 5141 should not apply. This was clahned in the case of Mann v. Mann, supra, and Judge liudgins, in that case, at page 524, said:

''If the oral promise to make the conveyance is supported by valuable consideration, it is a contract of sale and not a promise to giye. ''

Judge Chinn, in the opinion in the case of Frizzell v. Frizzell, s_upra, in dealing with a similar situation, had this to say:

''Since, therefore, a consideration is alleged for the promise sought to be enforced * * * we do not think the contr~ct now under consideration comes within the inhibition of the above-mentioned statute (5141), as did the contract in Wohlford v. Wohlfm·d, but it belongs to that class of cases to

· which the rules of law pertaining to the specific performance of parol contracts for the sale of land are applicable.'' See also the case of MoLin v. Richm,ond, 114 Va. 244; 76 S. E. 301.

The statute of frauds is a complete bar to the specific performance of a parol contract for the conveyance of land, unless the facts alleged and proven bring the case within the following well-nstablished rules:

'' (1) The parol agreement relied on must be certain and definite in its terms.

'' (2) The act proved in pf:trt performance must refer to, 1·esult from, or be made in pursuance of "the agreement proved.

"(3) The ag-reement must ha:ve been so far executed that ·a refusal of full execution would operate a fraud upon the party and place in a situation which does not lie in compen:sation."

1The case of Wright v. Puckett, 22 Gratt. 370, stated the law


as given in Mfl.'IVn v. Moon, supra, in the June Term,'1872. The court held with the case of Wright v. Puckett, supra, in H e'l'lr ley v. Cottrell Real Estate Ins. db Loa;n Co., et al., 43 S. E. 191.

The allegation of the bill does not give any description of the lot planned to be conveyed. If there had been a deed with no more description than the allegation sets out, the deed would not be good. 18th C. J. 182-3 contains this:

''If there is a conveyance of a part of the tract, such part must be so distinguished that it may be definitely ascertained and identified, and when a deed calls for a part of a larger tract of land, and there is no identification of the part intended to be conveyed by measurement or quantity, and nothing further in the deed by which the part may be identified, there is an uncertainty vitiating the deed.''

The allegation only describes the land claimed in this language, '' 'vould execute a deed conveying to the said Herman C. Thompson a sufficient parcel of land whereon the said storehouse was to be built for the convenient use of the said storehouse". This fails to be certain and definite as is required by the case of Mann v. Mann, supra. The syllabus in M cLim, et al., v~ Rich1nond, et al., 76 S. E. 301, contains this: "To uphold title to realty under a parol gift, the agreement must be certain and definite.''

In Wiley v. Colston, 10 S. E. 507, the syllabus contains this:

''In a suit to enforce specific performance of a parol contract for the sale of land, complainant must establish the contract set forth in his bill by a preponderance of evidence.''

In Blankenshi1J v. Spencer, 7 S. E. 433 (W. Va.), the syllabus has this:

"Upon a bill filed by B.. against S. to enforce specific execution of a parol contract for the conveyance of a parcel of land sold by S. to B., described ·as a certain piece of land containing 67th acres, being the lower end of a certain survey sold and conveyed to S. by W., and adjoining the lands of H. and R. in the district of F., in the county of G., in the state of West Va., shown by extrinsic evidence to contain 117 acres, held: (1) that the description of the boundaries of the 671/2 acres, as described in said parol contract, is too vague and indefinite to authorize a court of equity to enforce the specific performance thereof, and that the bill filed for that purpose should be dismissed.''

18 Supreme Court of Appeals of Virginia

In Pickens, et als., v. Bt.out,. et oJ,., 68 S. E. 354 (W. iV~), the syllabus has this:

''To be enforc.eable in equity, a contract of purchas~ of land must be complete, fixing the price and terms as well as the identity of the land.'' ·

In Hamilton v. Newbold, 153 S. E. 681, the syllabus contains this:

''Parol contract for sale of land must ·be definite and certain before it can be specifically enforced.''

In Parker v. Murphy, 146 S. E. 254, the syllabus contains this:

"A contract relating to the sale of land, which is incomplete, uncertain, or indefinite in its material terms, will not be specifically enforced by a court of equity.'' ·

In Porter v. Shaffer, 133 S. E. 616, Judge Chinn said:

''Nor can a court of equity specifically enforce the verbal contract set up by the bill in this case, under the prayer for general relief, upon the ground of part performance of said contract. The principles are: (1) That-the .contract must be clear, definite and unequivocal in all its terms, and established by clear and satisfactory proof.''

To establish a fact by .clear and satisfactory proof requires the proof to be beyond a reasonable doubt, or it must be more than a preponderance of the evidence.

From the foregoing it clearly appears that there is not any description of the land that was agreed on by R. D. Thompson and Herman Thompson. The bill does not charge R. D. Thompson to be the agent of Judy C. Thompson, and the witnesses did not testify that he was acting as her agent. Mrs. Edna C. Thompson must have proved R,. D. Thompson was an agent for Mrs. Judy C. Thompson before any conversation of his could be put in evidence. 10 Enc. of Ev., at page 6, contains this: ''The burden of proving the existence of the relation of principal and agent is upon the :party claiming it to exist.'' On page 7 this appears : ''.A purchaser who relies upon parol authority of an agent to sell real estate

·must establish the authority by clear, certain and specific evidence.'' ·

In Fisher v. White, 26 S. E. 575, Judge Buchanan said:


"Neither are the admissions or statements of an alleged agent that he was the agent of another evidence of that agency, but that fact must be proved by other evidence. If it is desired to establish it by the agent himself, he must be called as a witness.'' ·

In Hoge v. Turner, 32 S. E. 295, Judge Riely said:

"It is settled law that the declarations or acts of an agent cannot be receiv~d to prove his agency. That fact must be proved by other evidence, and must be :first established before his declarations or acts are admissible as evidence.'.'

In Poore v. Magruder, 24 Gratt. 201, Judge Anderson said:

''The statement of Little, 'that Peters told him that he was the agent of Moon, is not evidence to. prove the agency. It would be monstrous to hold that one man was bound by the acts or declarations of another until his agency is established. Neither the declarations of a man, nor his acts, can be given in evidence, to prove that he is the agent of another. 1 Phil. Ev., 5th Amer. Ed., Marg. p. 515, Note 144, and cases cited. Peters would be a competent witness to prove his agency, but it could not be proved by his unsworn declaration."

From these authorities i-t clearly appears tl1at neither the acts nor declarations of R. D. Thompson were binding on Mrs. Judy C. Thompson.' It clearly,, appears that R. D. Thompson's statements were hearsay, or not admissible, and without any binding effect on the defendants in this case. And what Hermal). told the witnesses could not be given in evidence. Anything Herman Thompson told them would be hea\·say, and, therefore, not binding on the defendants. The complainant could have put Herman on as a witness. The evidence of the aforesaid witnesses should be excluded. There are no witnesses, except Mrs. Edna C. Thompson, who mentioned anything llbout Mrs. Judy 0. Thompson having any knowle.dge of the agreement about the building of the store. On page 25 of complainant's evidence, Mrs. Edna C. Thompson .was asked this:

'' Q. Did you happen to know anything about the arrangement of the building of the new store and the land on which

· it was built Y ''A. His mother came to the old store one morning and he

went out and talked to her about the place and asked if he could put the store up. They were standing back of the steps


talking and when he came to dinner he said his ma said he could have the place to put the store up. She came down to the old store for the mail.

'' Q. Did I understand correctly that you heard Mrs. Thompson say that to him?

''A. Yes ; and she has told me too. ''Q. Did you ever heard ·any conversation between R. D.

Thompson or Mrs. Judith C. Thompson regarding the deed to the land?

''A. I have heard bot~ of them say they didn't see why Herman wouldn't get a deed to the place. They said that was no business way to act. They said the children would come in and claim what he had put up there.''

On page 26 of the evidence this witness was asked:

'' Q. Had there been any negotiations between you and them regarding the land or' getting a deed to the land?

''A. Well, she told me that she would have been glad to give Herman a deed to the land a.t one time but that she wouldn't give it to him now to save his life. That was right in her own hous~ that he shouldn't get it now if he wanted it.

''Q. Who told you that! ''A. Mrs. Thompson. ''Q. State whether or not you offered them $100.00 for the

land. ''A. Stafford didn't ask me for any money. We could stay

there and run the store. I offered to rent to him or sell it to him. I offered him $100.00. since this come up for the land.''

On page 30 this witness was asked on cross examination:

''Q. There never 'vas any written contract between R. D. Thompson or Mrs. Judith C. Thompson with Herman with reference to selling or giving him this property 7

''A. All I heard was she said she would sell it to Herman fot: $100.00. He never paid it. ·

*

'' Q. When you had your negotiations for a settlement with Herman you knew the property had been conveyed to Staf .... ford, didn't you Y

''A. Yes; in 1933 it was conveyed to Stafford.


'' Q. You knew Herman's mother had refused to make any deed!

"A. Yes."

There is not shown a contract to sell. The answer, ''All I heard was she. said she would sell it.to Herman for $100.00. He never paid it,'' was- an offer to sell and not a sale. There was not any description of the property to be conveyed. Mrs. Edna C. Thompson knew the property had boon conveyed to Stafford in 1933. When she undertook to get a settlement with Herman Thompson in September, 1934, she knew that Mrs. Judy C. Thompson had refused to make Herman a deed at that time. She was not deceived by any one, and, therefore, she cannot get a Court of Equity to give her property which Herman did not have, and could not get.

The defendants introduced ten witnesses, who testified Mrs. Edna C. Thompson said she wasn't getting the store. The first witness, Mrs. Bernice Jones (Record, p. 3, of the defendant's evidence), also on p. 4, Booker Drinkard, and on p. 6 D. A. Ferguson so testified. On Record, p. 12, D. A. Ferguson, in answer to a question, said: ·

'' Q. Did you hear her say anything about the building or the house?

''A. No more than she said the building didn't belong to her; that all he left her was the stock of goods, and the fixtures in the place.' ' ·

B. M. Jones, the next witness, testified to the same effect (Record, p. 17). Mrs. Ossfe Woodall, the next witness, testified. likewise (see Record, pp. 22-24)! Mrs. A. W. Sweeney testified to the same effect (see Record, pp. 30-31). Cheron Thompson, the next witness, stated the same thing (see Record, pp. 32-33).

Herman Thompson executed his settlement with the complainant on the 15th day of September, 1934, and he was asked about the land in dispute (see Record, p. 44).

''Q. Did you have any' title to the building or any land there?

"A. No, sir."

On page 46 of this record this witness further testifies :

'' Q. Did you have at any time any agreement or understanding with your mother that you were to· have a deed to this property-this real estate Y

22 ·Supreme Court of Appeals of Virginia

"A. No, sir. '' Q. Did you ever discuss the matter with her in any man-

ner, shape or form Y ''A. Never did. "Q. As to· purchasing this land or getting a deed to itT "A N . • · . o, s1r. . . . ''Q. Mrs. Edna C. Thompson has testified that on one' or

more occasions down at the store she heard Mrs. Thompson tell you that she was going to make you a. d'eed to th~s storehouse, and so much grounds. Did any such conversation take place between you and your· mother Y

''A. No, sir, not between my 1p.other. ''Q. At that time or any other timeT "A. No, sir."

This witness was asked:

'' Q. Was it your intention or purpose to convey to her the storehouse and the land that it was on f

"A. No, sir, not the land it was on and the storehouse. She knew as much about it as I did.''

On p. 68 ·of the record of defendant's evidence this witness was asked: ·

,·,Q. How much land was your Father going to deed you for the $100.007

''A. He never said. He said cut off a little lot, and I reckon we would have gotten together, you know, and got Mr. Poston to cut it o:ff. He· told me to get Mr. Poston.''

This last statement of this witness shows there was not any agreement even With R. D. Thompson about the lot. The witness was to get Mr. Poston to cut ,.off a little lot which was never done. This witness said Mrs. Edna C. Thompson is not correct in her statement that she heard his mother tell him she was going to deed him the lot. His mother never talked to him about the lot at any time. This witness on his cross examination (Record, pp~ 68-69) was asked:

''Q. As a matter of fact, you had purchased from your father the land, but had not gotten a deed Y

''A. Hadn't purchased it. Couldn't purchase it until you buy it.'' (See p. 78 Defendant's Evidence.)

The evidence is conclusive that between Herman C. Thomp· son and his witness, this property did not belong to R. D.


Thompson; and that no· contract with respect to same was ever executed or entered into by Mrs. 'Judy C. Thompson.

The paying of the tax by .the defendant, ¥rs. Judy C. Thompson, on this land which was increased after the building was put upon it from $64.20 to $77.92 (an increase of $13.68) shows that it was recognized by the pl~intif:f that the title was not in her husband's name ..

Mrs. Judy C. Thompson said she never agreed to convey the land to Herman, nor did she authorize R. D. Thompson to make any contract on her behalf for the sale of the land. R. D. Thompson never told her anything about any agreement for a deed to Herman. She never talked to Herman about the building of the store or selling the land to build it on.

Mrs. Edna C. Thompson is not correct in saying that she, Mrs. Judy C. Thompson, had talked to Herman about giving a deed to. the lot nor did she ever talk to her about giving a deed to the lot.

There is ·the evidence that Stafford Thompson offered to sell a.t a price, and figure to give to Edna C. Thompson all that the property should bring over that price, as a friendly settlement, and not because she had any right or interest in the place. He had another brother, who had married a sister of Mrs. Edna C. Thompson, and a sister who had married her brother.

From all the eVidence it clearly ·appears that Mrs. Edna C. Thompson has not any interest in the land.

We confidently submit that the complainant, Edna C. Thompson, is not entitled to the relief prayed for in her bill; that she knew that she had no title to the building at the time she took her deed. · The fact that she took a General Warranty Deed to the Home Place and a deed conveying only such ''right, title and interest'' as Herman Thompson had to the store building, shows that she was not claiming any real interest in the store building, and we, th~refore, submit that the court was right in not enforcing the contract.

This case should end by this court reversing the lower court, and entering a decree dismissing the bill. There is another reason why the case should be dismissed as to J. S. Thompson, namely, J. S. Thompson had no interest in the land at the time the store was built, and did not get any until 1933 when the whole place was conveyed to him by a G~neral Warra~ty deed. _

From the foregoing it is submitted that the court erred in entering the decree against the petitioners. Your petitioners, therefore, pray that an a.ppeal may be awarded them in ·order that said decree, for the cause of errors, above set forth, may be brought before you and t~e whole matter and the decree


contained may be reheard, and the decree be reversed and annulled, and that the same may be superseded.

And your petitioners will ev:er pray, etc. This will be treated as original brief. Petitioners' coun

sel desire opportunity to present this petition orally. A copy of this petition was delivered to W. H. Jordan for

S. J. Thompson and W. H. Jordan, counsel for Edna C. Thompson, on the 18th day of November, 1937.

A. S. HESTER, B. B. CAMPBELL,

Attys. for Petitioners.

We, B. B .. Campbell and A. S. Hester, attorneys and counsellors, practicing in the Supreme Court of Appeals of Vir-· ginia, do certify that in their opinion the judgment and decree complained of in the foregoing petition should be reviewed by the said Supreme Court.

A. S. HESTER, B. B. CAJ\1:PBELL.

Filed Nov. 29, 1937. H. B. GREGORY.

Appeal and supersedeas awarded. Bond, $1,000.00.

12/2/37. H. B. GREGORY.

Received Dec. 3, 1937. M. B. W.

RECORD

VIRGINIA:

Pleas before Hon. Don P. Halsey, Judge of the Circuit Court of Campbell County, at the Court House of said County, on the 13th day of October, 1937, in the 162 year of the Commonwealth.

Be it remembered, that heretofore, to-wit, on the 12th day of May, 1937, in said Court, came Edna C. Thompson by Wm. Harrison Jordan and S~ J. Thompson, her at.torneys, and filed her bill in chancery against James Stafford Thompson and others; which sa.id bill and exhibits therewith, are in the following words and figures, to-wit:


page 2} BILL.

In the Circuit Court of Campbell County, Virginia.

Edna C. Thompson, Complainant, v.

James Stafford Thompson and Judith C. Thompson, also sometimes known as Judy C. Thompson, Defendants.

To the Honorable Don P. Halsey, Judge of the Circuit Court of Campbell County: ~

Your complainant, Edna C. Thompson, respectfully represents that she is a resident of the County of Campbell, State of Virginia, and is the wife of Herma.n C. Thompson and is the mother of two children born of the said union;

That the said children are Vernell Thompson, age 21 years, and Hazel Thompson, age 12 years ; that the said Vernell is married to Russell Godsey, and that the other child is now living with and has always lived with your complainant, and that your complainant has the care, custody and maintenance of her; that the said Herman C. Thompson is the son of R. D. Thompson, now deceased, and of the defendant Judith C. Thompson, his widow (also sometimes known as J uda C. Thompson and as Judy •C. Thom.pson), and that amongst other sisters and brothers the said Herman C. Thompson has a brother named James Stafford Thompson;

That many years ago, to-wit, on December 5th, 1889, the said R. D. Thompson, father of the said Herman C. Thompson, purchased a tract of land in the said County of Campbell, jointly with one L. W. Drinkard, from Robert J. Davis, Commissioner, as will appear f~om a copy of a deed her~with

filed, marked "E~hibit A", and prayed to be read page 3 ~ as a part of this bill, which aforesaid deed is recorded

in the Clerk's Office of the Circuit Court of Campbell County, in Deed Book 51, page 139;

That later, to-wit, on the 14th day of April, 1897, the aforesaid R. D. Thompson, being in straitened financial condition, conveyed a one-half undivided interest in and to the aforesaid tract of land to Juda C. Thompson, his wife, and her children by the said R. D. Thompson,_ for a nominal consideration and for the apparent purpose of protecting himself and his family in time of :financial distress, a copy of which said deed is filed herewith, marked "Exhibit B ", and prayed to be read as a part of this bill, which· deed is recorded in the Clerk's Office of the Circuit Court of Campbell County, in


Deed Book 64, page 7 4, and that the aforesaid land remained in the name of Juda C. Thompson for a period of years, although the aforesaid R. D. Thompson was the real owner thereof, and at all times used the aforesaid land as his own, paid taxes on the same, and asserted dominion over it, and considered the farm as his own; ~

That in the year i927 the said R. D. Thompson and Judith C. Thompson, his wife, agreed with the said Herman C. Thompson that if the latter would construct a storehouse on a portion of the aforesaid land, fronting on the said highway (now Route 460), and conduct a general merchandise business thereon, they, the said R. D. Thompson and the said ~udith C. Thompson would execute . a deed conveying to the said Herm.an C. Thompson a sufficient parcel of land whereon the said storehouse was to be built for the convenient use of the said storehouse; and that, acting upon the said proposal and in pursuance of the aforesaid agreement, the ·said Herman

C. Thompson did construct, at his own expense, a page 4 ~ storehouse on the said land, at a cost of the sum

of, 'to-wit, $2,500.00, and over a period of years, to-wit, from the year 1927 until the. year 1934, did conduct a general mercantile business therein, but that the said Herman C. Thompson· was never given a deed to the said parcel of land by the said R. D. Thompson and Judith C. Thompson, his wife, and the boun:daries of the said parcel of land were ·never laid off, although the said R. D. Thompson several times suggested to the said Herman C. Thompson that the latter have a proper dee~ prepared conveying 'the said parcel of land to ~he said Herman C. Thompson, so that the same might be execut.ed by the said R. D. Thompson and Judith C. Thompson, his wife;

That on, ~o.:.wit, the 27th d~y of ~ebruary, 1926, all of the said children of R. D. Thompson and Judith C. Thompson, his wif~, conveyed all their right, title and interest in and to the aforementioned tract of land to Judy C. Thompson (sometimes called Judith C. Thompson), in consideration of the love and affection which the aforesaid children bore to their mother, that the said deed was executed for the purpose of allowing the aforesaid Judith C. Thompson and R. D. Thompson, her husband, to use the aforesaid trac.t of land in

. their old age for secu~ing a livelihood and support, a copy of which said deed is filed herewith, marked ''Exhibit C' ', and made a part of this bill, which said deed is recorded in the Clerk's Office of the Circuit Court of Campbell County in Deed Book 164, page 158; and that thereafter, to-wit, on the 6th day of May, 1933, the said Judith C. Thompson and R. D.

J. S. and Judy C. Thompson v.- Edna C. Thompson. 27

Thompson, her husband, -conveyed unto the said page 5 ~ James Stafford Thompson, their ·son, a tract of land · , in the said County of Campbell, containing 101

acres, more or less (which is a one-half undivided interest in the original tract mentioned herein after a division was had between the .said L. W. Drinkard and R. D. Thompson), as will- appear from a copy of a deed herewith filed, marked ''Exhibit D';, and prayed to be read as a part of' this bill, which said deed is recorded in the aforesaid Clerk's Office in Deed Book 164, page 162; that the said tract of 101 acres includes a parcel of land whereon is situated the storehouse aforesaid and that the real consideration for the said conveyance ·was that the said James- Stafford Thompson should pay off _the indebtedness which they at the same time were placing against the said place, and should provide maintenance and support to the said grantors ·for the rest of their natural lives, reserving to themselves a life estate therein;

That on-the same date, to-wit, May 5, 1933, the said Judith C. Thompson and R. D. Thompson, her husband, conveyed the said tract of land by deed of trust to .P. G .. Cosby, Jr., Trustee, to secure a Q.ebt. of $600.00 to . the Pilot Building & Loan Association, as will appear from a copy of said deed of trust herewith filed, marked "Exhibit E'', and prayed to be read as a part of this bill, which aforesaid deed of trust is recorded in the- aforesaid Clerk's Office in Deed Book 164, page 160. · _ ·

That thereafter, to-wit, in the fall of 1934, your complainant filed in the Circuit Court of the said County of Campbell a bill for a divorce from the said HermBtn C. Thompson, asking for a divorce, alimony and support money for the two said children; that su1>sequent to the filing of the aforesaid 'bill

. for divorce an agreement was entered into between page 6 ~ the aforesaid Herman C. Thompson and your com-

. plainant, providing for a settlement of the property rights between the parties aforesaid, a copy of which aforesaid agreement, marked ''Exhibit F'', is filed herewith and prayed to be made a part of this bill; but that the said suit for divorce was never prosecuted to a conclusion;

That one of the provisions of the aforesaid agreement was .that the said Herman 0. Thompson, in settlement of their property rights, and in lieu of dower and support money for' the said children, should convey to your c-omplainant certain real estate and personal property, and that one of the items of t~e property to be so conveyed was the following:

''All of the right, title and interest that the said Herman C. Thompson may have in and to the storehouse and tract of


land on which it is· situated, near Six Mile Bridge, fronting on the public highway between Lynchburg and Concord, in which said storehouse said Herman C .. Thompson has heretofore conducted as a general me1·cantile business;''

and that pursuant to the aforesaid agreement, the aforesaid Herman C. ThompsQn did convey the aforesaid property to your complainant by deed dated on the 15th day of September, 1934, and recorded in the Clerk's Office aforesaid in Deed Book 167, page 8, a copy of which said deed is filed herewith, marked "Exhibit G", and prayed to be made a part of this bill;

That thereupon, your complainant immediately took charge of said storehouse and the stock of merchandise therein and conducted in her own name the said general mercantile business, and that your complainant has successfully conducted the said business continuously ever since taking charge of the same, and has built up a profitable and valuable business from which she has been enabled to earn a living for· herself and her

said children; page 7 ~ That, to-wit, on the 26th day of April, 1937, one

James Stafford Thompson, who is the James Stafford Thompe9n above mentioned, instituted an action of ejectment against your complainant in the Circuit Court of Campbell County, claiming that your complainant wrongfully withholds from them a certain tract or parcel 'of land lying and being in Campbell County, Virginia, ·near Six Mile Bridge, and describ~d as foJlows:

"That certain storehouse and :filling station and the tract on which they are situated, near Six Mile Bridge on the new public road on the highway between Lynchburg and Concord, and just above the old road and Moore's Filling Station on the left of the said new road toward Concord on saiel. road;"

that the· said storehouse and tract of land is the same as that hereinbefore mentioned, a copy of the notice and declaration in which said action of ejectmen.t is herewith filed, marked "Exhibit H", and prayed to be read as a part of this bill, and that your complainant has been advised and believes that she has no adequate defense at law to the said action of ejectment;

That said action of ejectment will be :filed on the 3rd day of the May Term, 1937, of the Circuit Court of Campbell County, to-wit, on May 12, 1937, at which time an effort will be made br the plaintiffs in the said action of ejectment to have your complainant ejected from the said storehouse and parcel of land, and to deprive your complainant of her


rightful interest therein; that your complainant has been advised and believes that she is entitled to have the boundaries of the said parcel of land fixed and to a deed conveying to her the fee simple title thereto; that, if the said plaintiffs prosecute the said action of ejectment to a conclu~ion, the mercantile business now conducted by your complainant in the

said storehouse will s~ffer irreparable injury, and page 8 ~ your complainant and her said child will be deprived

of their livelihood; that the aforesaid Judy C. Thompson neither owns nor has any interest in any property in the County aforesaid, or elsewhere, so far as your complainant is advised, except the life estate reserved in the land conveyed to James Stafford Thompson as aforesaid, and, the aforesaid Judy C. Thompson being a person advanced in years, the aforesaid life estate is of very doubtful, if any, value, and, therefore, an action at law against the aforesaid Judy C. Thompson would not be adequate relief for your complainant, she being virtually insolvent.

In consideration whereof, and being remediless, save in a court of equity wherein matters of this kind alone are cognizable, your complainant prays that the said James Stafford Thompson and the said Judith C. Thompson be made parties defendant to this bill, and be required to answer the same, but not under oath, the oath being hereby waived; that proper process issue; that all proper orders and decrees be entered and inquiries directed; that the said James Stafford Thompson and the said Judy C. Thompson be forever enjoined and restrained £rom prosecuting the sa,id action of ejectment against your complainant; that the boundaries of the said parcel of land whereon is situated the said storehouse be defined, and that your complainant be decreed a fee simple title to the said parcel of land, or that she be awarded damages against the said James Stafford Thon;tpson and the said Judith C. Thompson, in lieu of her rights in said parcel of land and storehouse, and as damages for interference with her said

mercantile business, and that your complainant may page 9 ~ have all such further, othe1~ and general relief as

the nature of her case may require, or to equity shall seem meet.

And your complainant will ever pray, &c., &c.

EDNA C. THOMPSON.

State of Virginia, City of Lynchburg, to-wit:

Edna C. Thompson, being duly sworn, deposes and says that she is the complainant in the foregoing bill in equity,

30 .Supreme Court of, Appeals of Virginia

and that the matters and things therein. stated are true to the best of her knowledge and belief.

EDNA .C. THOMPSON.

Subscribed and sworn to before me this lOth day of May, 1937,

ELLA MARIE JONES, Notary Public for the City of Lynchburg, Va.

page 10} To James Stafford Thompson· and Judith C. · Thompson, also sometimes known as Judy C.

Th~mpson: ·

PLEASE TAKE NOTICE That on Wednesday, May 12, 1937, at 10 :00 A. M., or as soon thereafter as counsel may be heard, I shall move the Judge of the -Circuit Court for the Colinty of Campbell, Virginia, for an injunction against you, and each of you, enjoining and restraining you from prosecuting a certain action in ejectment now pending in the said Circit Court ·of Campbell, wherein you are the plaintiffs and I am the defendant. -

Respectfully,

EDNA C. THOMPSON, by W. H. JORDAN,

Lynchburg, Virginia, May lOth, 1937.

Counsel.

Legal service of the. foregoing notice is hereby accepted this lOth day of May, 1937.

page 11}

JAMES STAFFORD THOMPSON and JUDITH C. THOMPSON,

by A. S. HESTER, -Counsel.

EXIDBIT ''A''.

This Deed, made this 5th day of December, 1889, between Robt. J. Davis, Commissioner in the case of Winfree & Loyd, &c. v. Olney and others, in the Circuit Court of· Lynchburg, of the one part, and R. D. Thompson and L. W. Drinkard, of· the other part; ·

J. S. a:pd "J.udy C. TboPlpson v. Edna C. Thompson. 31

WITNESSETH: That whereas such procaedings were had in said case, tha.t being a decree of the said Court, at the De~ernber Term, 1886, C. M. Blackford, Robert J. Davis and L. S. l{arve, the Commissioners who made the sales of the real est~te in said case ·w~re directed to sell the tract of land herePY conveyed, at public auction, on the premises, on the same tarms set forth at the May Term, 1885., by the decree of that date, to-wit, fifteen per centum of the purchase mo:p.ey to be paid in cash, and the residue on a credit of one, two and three years, &c., and the said Commissioners, in pursuance of said decree, proceeded to sell said tract of land at public auction, on the premises, on the 6th day of March, 1889, and the said R. D. Thompson and L. W. Drinkard became the purchasers thereof, at the price of $9.00 per acre, the tract so sold being Lot No. 2, in the lot or map annexed, containing 240 A. 20 P. and said Commissioners made repor.t of said sale to the said Court, ill said case at the May Term thereof, 1886, and the Court thereupon entered a decree in said case by which it confirmed said sale, and appointed said Robert J. Davis, a Commissioner, and directed him on payment of the purchase money therefor, by proper deed, with special warranty, to convey the same to the purchasers, and whereas the said Thompson

and Drinkard having made the cash payment on page 12 ~ said land at the time of sale, and having give:p.

their bonds for the deferred payments, in pursuance of the Comrs. of Sale, and now havi:p.g paid said purchase money in full by making said deferred payments ;

Now, Therefore, the said Robert J. Davis as Commissioner aforesaid, in consideration of the premises and of the purchase money for said lot or tract of land, paid as afores~id, doth grant, with special warranty, unto the said R. D. Thompson and L. W. Drinkard, the said tract of land purchased by them, lying in the County of Campbell, about five miles from Lynchburg, the same being Lot No. 2 in the map or plat of W. Peet, D. S. C. C. hereto annexed, as made in October and January, 1885, and March, 1886, and bounded and described as shown by said map, containing 240 A. oR. 20 P., adjoining Lot No. 1 (containing 119 A. 3 R. 35 P.), as described on said map, which was sold to Pettyjohn, said map being a map of both lots and said land. being a part of the tract of land conveyed by G. H. Ashlin and wife to Harvey Allen Olney.

Witness the following signatur~ and seal: . ROBERT J. DAVIS, .

Commissioner in the case of Winfree 6u Loyd, &c., v. Olney and others.

(Map here given and metes and bounds described.)


City of Lynchburg, to-wit:

I, J. W. Whittaker, a Notary Public in and for the City of Lynchburg, in the State of Virginia, do certify that Robt. J. Davis, Commissioner in Winfree & Loyd v. Olriey and others, whose name is signed to the writing above, bearing date on the 5th of December, 1889, hf,ts acknowledged the same before me, in my County aforesaid.

Given und~r my ha1;1d this 5th day December, 1889.

J. W. WIDTTAKER, Notary Public.

page 13 r In Campbell County Court Clerk's Office, Deer. 9, 1889.

This deed with plat was presented, and upon the annexed certificate of acknowledgment, admitted to record.

Teste:

RO. W. WITHERS, Clerk.

page 14 ~ EXHIBIT ''B''.

· THIS DEED, made and entered into this the 14th day of April, 1897, between Richard D. Thompson, of Campbell ·County, Virginia, party of the first part, and J uda C. Thomp-son, his wife, and her children by the said R. D. Thompson,

. party of the second part, all of Campbell County, Virginia;

WITNESSETH: That for and in consideration of the natural love and affection which he hath for his .wife and children, and also in consideration of $600.00, the receipt of which is hereby acknowledged, a part of which in money, and balance in provisions and property, he, the said R. D. Thompson, hath bargained and sold, and by these presents do bargain and sell and convey unto J uda C. Thompson, during her life, and the remainder to the heirs of R. D. Thompson;

All his right, title and interest in and to the following real estate, lying in Campbell Oounty, Virginia, on the South side of the Concord Turnpike, and bounded on the East by Beaver Creek; on the South by Gough's Old Mill Road; on the West by Jesse Pettyjohn, and the North by said Turnpike. · Said -.tract contains about 240 or 250 acres of land, it being one-


half interest in the tract which the said Thompson and Drinkard bought of Chas. M. Blackford, Commissioner, which deed is duly recorded in the Clerk's Office of the County Court of ·Campbell, Virginia; to have and to hold unto her, the said J uda C. Thompson, during her· natural life, and the remainder to the said Thompson's children ;

with General Warranty. As witness the following signature and seal :

R. D. THOMPSON. (Seal)

page 15 ~ State of Virginia, County of Campbell, to-wit:

I, W. S. Peet, a Justice of the Peace for the County aforesaid, in the State of Virginia, do certify that R. D. Thompson, whose name is signed to the foregoing writing, bearing date on the 14th day of April, 1897, personally appeared before me, in my County aforesaid, and acknowledged the said writing to be his act . and deed.

Given under my hand this 14th day of April, 1897.

Virginia.:

W. S. PEET, N ota.ry Public.

In Campbell County Court Clerk's Office, April21, 1897.

This deed was presented and upon the annexed certificate of acknowledgment, admitted to record.

Teste:

S. C. GOGGIN, Clerk.

page 16 ~ EXHIBIT ''C''·

THIS DEED, made this the 27th day of February, 1926, between Ossie Woodall and Frank A. Woodall, her husband, Thos. R. Thompson and. Norma Thompson, his wife, Alice L. Carson and B. A. Car~on, her husband, Reeva I. Cardwell and Burton Cardwell, her husband, Herman C. Thompson and Edna Thompson, his Wife, Mary Douglas Carson and Adrian Carson, her husband,1 Alma Bernice Jones and B. M. Jones,

I

34 Supreme Cqurt of Appeals of Virgini~

her husband, Lucy Beatrice Rosser, Verlie M. Sweeney and Alfred W. Sweeney, :tler. husband, Theron. Thompson, unmarried and James Stafford Thompson, unmarried, parties of the first part; and Judy C. Thompson ( someti:J;nes called Ju~th C. Thompson), wife of R. D. Thompson, party of the second part; ·

·WITNESSETH: . .

That the said parties of the first part, for and -in consideration of the natural love and affection which they have for their mother, Judy C. Thompson (sometimes called Judith C. Thompson), wife of R. D. Thompson, of Campbell County, Virginia, do hereby grant, bargain, give and .convey unto the said Judy C. Thompson, with special warranty of title:

All of their right, title and interest at law or in equity in and to a certain tract or parcel of land lying and being in Rustburg Magi~terial District, in said Campbell County, containing, by a survey made by J o'4n E~ Poston, Surveyor, in May, 1925, 101-304/1000 acres, more or less, and being the same tract of land which was cut off and allotted to the said · Judy C. Thompson and her eleven (11) children by ·a dood of partition between L. W. Drinkard and the said Judy ·c. Thompson and children, dated the 28th day of September, 1925, not yet recorded, but to be recorded in the Clerk's Office of said County before this deed is recorded.

The description of said tract of land contained page 17 ~ in said deed of partition, by metes and bounds as

set out in the survey of the said J no. E. Poston, Surveyor, is here made a part of this deed, as much so as if it were here set out in full, and reference is here made to it for a more particular description of the said land .

• It is the intention of the parties of the. first part to this

deed to release and convey unto their said mother, the said Judy C. Thompson, all of their interest in said land conveyed to them jointly with their said mother in the said deed of partition, so that she may own the same in severalty. .

And the said parties of the first part covenant that they have the right to convey their respective interests in said land to the grantee; that they have done no act to . encumber the same; that the said grantee shall have quiet and peaceable possession thereof, free from all encumbrances, a11:d that they, the said parties of the first part, will execute such other and further assurances of title thereto as may be requisite ..

J. S. and Judy 0. Thompson v. Edna C. Thompson. 35 I .

Witness the following signatures and seals : . I .

OSSIE WOODALL, ~RANK A. WOODALL, ALICE L. CARSON, A. B. CAE,SON, NORMA A. THOMPSON, TOM R. THOMPSON, REEV A I. CARDWELL, BURTON CARDWELL, HERMAN C. THOMPSON, EDNA C. THOMPSON, MARY DOUG:QAS CARSON, T. A. CARSON, ALMA ,BERNICE JONES, B. M. JONES, LUCY BEATRICE ROSSER, VERLIE M. SWEENEY, ALFRED W. SWEENEY, '!'HERON THOMPSON, JAS. STAFFORD THOMPSON.

page 18 r Virginia,: City· of Lynchburg, to-wit:

(Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal) (Seal)

I, Wm. 1\L Murrell, a Notary Public in and for the City aforesaid, in the State of Virginia, do certify that Ossie Woodall, Frank A. Woodall, Reeva I. Cardwell, Burton Cardwell, Herman C. Thompson, Edna Thompson, Alma Bernice Jones, B. M. Jones, ~ucy Beatrice Rosser, Verlie M. Sweeney, Alfred W. Sweeney and James Stafford Thompson, whose names are signed to the writing above, bearing date on the 27th day of February, 1926, have acknowledged the same before me, in my City aforesaid.

My commission expires on the 8th day of December, 1928. Given under my ~and this the 9th day of April, 1926.

WM. M. MURRELL, N. P.

Virginia, Campbell County~ to-wit:

I

I, Kate C. Cross, ia Notary Public in and for the County of Campbell, in the State of Virg·inia, do certify that Norman A. Thompson and Tom R. Thompson, whose names are signed to the writing above, bearing date the 27th day of February,

I

I

I


1926, have acknowledged the same before me, in my said County.

My commission expires on the 4th day of March, 1930. Given under my hand this the 29th day of J.\!Iarch, 1926.

KATE C. CROSS, N. P.

Virginia, Amherst County, to-wit:

I, W. M. Bryant, a J.P. in and for the County of .Amherst, in the State of Virginia, do certify that Alice L. Carson, B. A. Carson, 1\'Iary Douglas Carson and Adrian Carson, whose

. names are signed to the writing above, bearing date page 19 ~ on the 27th day of February, 1926, have acknowl

edged the same before me, in County. Given under my hand this 29th day of March, 1926.

W. M. BRYANT, J. P.

Virginia:

In Campbell Circuit Court Clerk's Office, May 5, 1926.

This deed was presented, and upon the annexed certificate of acknowledgment, admitted to record at 9 o'clock A. M. The same being stamped with $1.00 U. S. I. R. Documentary stamp, cancelled according to law.

Teste:

State of West Virginia, County of Mercer, to-wit:

C. W. WOODSON, Clerk.

I, Frank B. Rodefer, a Notary Public in and for the aforesaid Sta.te and County, do hereby certify that Theron Thompson, whose name is signed to the foregoing and attached deed, ·bearing date of February 27,1926, has acknowledged the same before me, on this 27th day of July, 1928, in my said State and County aforesaid.

Given under my hand and notarial seal, on this the 27th day of July, 1928.

My commission expires March 8, 1938.

FRANK B. RODEFER, N. P. Notarial Seal.


Virginia: j

I

In Campbell Cire1iit Court Clerk's Office, May 6, 1933. I

This deed was presented, and upon the annexed certificate of acknowledgment, ~admitted to record at 11 o'clock A. M., the same being startiped with $1.00 U. S. I. R. Document~ry stamp, cancelled according to law.

Teste: C. W. WOODSON, Clerk.

page 20 ~ EXHffiiT ''D''.

THIS DEED, made this 5th day ,of May, 1933, between Judy C. Thompson and R. D. Thompson, her husband, parties of the first part; and JAMES STAFFORD THOMPSON,

. their son, party of the second part;

WITNESSETH:

That for and in consideration of the sum of $5.00 cash in hand paid, and other valuable considerations, receipt of all which is hereby acknowledged, the said parties of the first part do hereby covenant; bargain, sell and convey, with general' warranty of title, unto the said party of the second pa.rt, the following described 1 real estate, situate, lying and being in Rustburg Magisterial District, in the County of Campbell, State of Virginia, to-wit:

All that certain tract of land containing 101 acres more or less, situated in the vicinity of Six Mile Bridge, and fronting on State Highw~y No. 10; it being the same property which was conveyed to the: sa.id Judy C. Thompson and her children, by L. W. Drinkard,! by ·deed dated September 28, 1925, and recorded in the Clerk's Office of the Circuit Court of Campbell County, in Dee& Book No. 146, at page 219; and which was conveyed to the/said Judy C. Thompson by Ossie Woodall and others, by deed dated February 27, 1926, and recorded in said Clerk's Offic~, in Deed Book No. 146, at page 222, and which deed is to be i-ecorded along with this deed; except two small parcels, one df 4.65 acres which was conveyed by sai~ parties of the first ! part to Herman C. Thompson, by dee(! dated November 2, 1927, and recorded in said Clerk's Office, in Deed Book No. 151; at page 319; and a parcel of about one acre, which was conveyed by said parties of the first part to B. M. Jones and Altna B. Jones, his wife, by deed dated No-

38 Supreme Court of App.eals of Virginia.

vember 1, 1927, and recorded in said Clerk's Office, in Deed Book No. 151, at page 320, leaving approximately 95 acres in said tract. ·

Reference is here made for a more particular description of the property herein ~onveyed, to all of the aforesaid deeds and the deeds therein mentioned; it being the intention of this deed to convey all of said 101 acres, except the two par-

cels of 4.65 and 1 acre, above mentioned. But the page 21 ~ said parties of the first part do hereby reserve to

themselves and to the survivor hereof, a life e"state in the property herein conveyed.

Subject to the aforesaid life estate reserved in said premises, the said parties of the first part do hereby covenant that they are seized in fee simple of t4e property herein conveyed; that they have the right to convey the same; that they have done no act to encumber the same ; that the said party of the second part shall have quiet and peaceable possession of the said property, free from all encumbrances, and that they will execute such other and further assurances to the title thereto as may be deemed pertinent.

Witness the following signatures and seals.

. State of Virginia,

JUDY C. THOMPSON, (Seal) R. D. THOMPSON. (Seal)


I, D. H. !{izer, a Notary Public in and for the City aforesaid, in the State of Virginia, do hereby certify that Judy C. Thompson and R. D. Thompson, her husband, whose names are signed to the foregoing deed, bearing date on the 5th day of Ma-y, 1933, have each acknowledged the same before me, in my City aforesaid. .

My commission expires on the 14th day of November, 1933. Given under my hand this 5th day of May, 1933.

D. H .. KIZER, N. P.

Virginia:

This deed was presented, and upon the annexed certificate of acknowledgment, admitted to record at 11 o'clock A. M. The same being stamped with $2.50 U. S. I. R. Documentary Stamp, cancelled according to law.


J. S. and Judy C. Thompson 'v. Edna C. Thompson. 39

page 22 ~ I EXHIBIT "E "· '

THIS DEED, madJ this 5th· day of May, 1933, between Judy C. Thompson and R.~ D. Tho~ps·on, her husband, parties of the first part; P. G.' Cosby, Jr., TRUSTEE, party of the second part and THE PILOT BUILDING & LOAN ASSOC., INC., of Lynchburg, :Va., party of the third part;

I

WHEREAS, the s~id parties of the first part are indebted to the said Pilot Building & Loan Assoc., Inc., of Lynchburg, Va., in the sum of $600.00, money loaned this day, the payment thereof, together With the interest thereon, as hereinafter set out, the said parties of the first part are desirous to secu..re;

I

NOW, THEREFORE, THIS DEED WITNESSETH:

That for and in consideration of the sum of $1.00, receipt of which is hereby acknowledged, the said parties of the first part do hereby grant, bargain, sell and convey unto the said party of the second part, with covenants and general warranty, and against all encumbrances, together with the improvements thereon, and the appurtenances thereunto belonging, the following described real estate, situate, lying and being in Rustburg Magisterial District, in the County of Campbell, State of Virginia, to-wit:

All that certain tract of land, containing 101 acres, more or less, situated in the vicinity or Six Mile Bridge, and fronting on State Highway No. 10; it being the same property which was conveyed to the said Judy C. Thompson and her children by L. W. Drinkard, by deed dated September 28, 1925, and recorded in the Clerk's Office of the Circuit Court for the said County of Campbell, in Deed Book No. 146, at page 219; and whichjwas conveyed to the said Judy C. Thompson by Ossie w OOdflll and others,. by deed dated February 27, 1926, and recor<lled in said Clerk's Office in Deed Book No. 146, at page 2~2, and which deed is to be re-recorded

along with this deed of trust; except two small page 2R ~ parcels, dne of 4.65 acres, which was conveyed by

the said i parties of the first p~rt to Herman C. Thompson, by deed; dated November 2, ·1927,- and recorded in said Clerk's Office, in Deed Book No. 151, at page 319; and a parcel of abo~t one (1) acre,.,vhich was eonveyed.by the said parties of the ; first part to B. M. Jones and Alma B. Jones, his wife, byj deed dated November 1, 1927, and recorded in said Cler}{'s Office, in Deed Book No. 151, at page


320, leaving approximately 95 acr~s in said tract. Reference is here made to all of the aforesaid deed and deeds therein mentioned for a more particular description of the property herein conveyed. It being the intention of this deed to convey all of the said 101 acres tract of land, except the two parcels of t.65 acres and 1 acre, above mentioned.

IN TRUST, NEVERTHELESS, and for the following purposes:

That if the said parties of the first part shall, on the lOth day of each month after the date of this deed of trust, pay to the said Pilot Building & Loan Association, Inc., at its Office in the City of Lynchburg, Virginia, the monthly interest on $600.00, at th~ rate of 6% per annum, together with any premium due, and dues of :fifty cents per month per share, as provided by the by-laws of said Association, until Six (6) sharP.s of the capital stock of said Association shall have reached the par value of $100.00 per share, and shall then re-pay to said Association the sum of $600.00, together with interest, and shall otherwise carry out, in full all the terms of this trust, then, in such event, this deed of trust shall be released at the costs of the said parties of the first part, either by said Trustee, or the Secretary or Attorney of the said Pilot Building & Loan Association, Inc.

It is understood and agreed that all payments made against stock are and shall be considered as payments on said loan, and such are not withdrawable.

And the said parties of the first part agree to keep the said property insured against fire, in at least the sum of

$600.00, for the benefit of this trust; to keep the page 24 r premiums on such insurance promptly paid; and

to promptly pay and meet each payment of interest, premiums and dues, and to pay the said sum of $600.00 as herein provided, and as the same shall become due; and should there be failure in any of these particulars, the debt herein secured shall, itself, become due and payable, and its payment may be forthwith enforced, as hereinafter set out.

It is further understood and agreed that should there be failure to carry out any of the above stipulations; the said party of the second part, shall, when requested so to do by the said party of the first part, or its assigns, sell, at public auction, on the premises, the property herein conveyed as a whole, or in two or more lots or parcels, as said Trustee, in his discretion, may deem mo~t beneficial for this trust, to the highest bidder, or bidders, for cash, after :first advertising

J. S. and Judy C. Thompson v. Edna C. Thompson. 41 I

the time, place and terms of sale, in at least three issues of some newspaper published in the City of Lynchburg, Va., for a period of at least ten days from the date of the first advertisement; and with the proceeds of such sale, the said Trustee shall pay, first, the costs of executing this trust, including a Trustee's commission of 5% on the gross amount of such sale, and the costs of' sale ; second, he shall pay to said Association the said sum of $600.00, or ·so much thereof as then remains unpaid, together with all accrued interest and premiums thereon; and, third, the balance, if any, the said Trustee shall turn over to the said parties of the :first part, their heirs or legal representatives. _

Should the said property fail to bring a sufficient sum of money to pay said debt, interest, premiums, and costs of sale,

the said parties of the first part hereby covenant, page 25 ~ promise and agree to pay, on demand, to the said

party of the third part, such deficiency. The said parties of the :first part hereby waive the benefit

of the homestead and' all other exemptions, as to this debt. It is further understood that any sums expended by said

Association for insurance, taxes and assessments, on the property herein conveyed, shall be added to and become a part of the debt herein secured, from the dates of such payment, which sums, with interest and premiums, as aforesaid, shall be payable to said ~ilot Building & Loan Association, Inc., on demand. - '

In Testimony whereof, the said parties of the :first part have hereunto set their hands and seals, this the day and year first above written.

1

JUDY C. TI-IOMPSON, R. D. THOMPSON.

State of Nirginia, City of Lynchburgr to-wit:

(Seal) .(Seal)

I, D. H. l{izer, a N;ot.a.ry Public in and for the City aforesaid,_in the State of Virginia, do hereby certify that Judy C. Thompson and R. D.l Thompson, her husband, whose names are signed to the fotegoing deed, bearing date on the 5th day of May, 1933, hdve each acknowledged the. same before me, in my City afore~aid. .

My commission expires on the 14th day of November, 1933. Given under my h~nd this 5th day of May, 1933.

D. H. KIZER, N. P.

42 Supreme Court of .Appeals of Virginia.

Virginia:

In Campbell Circuit Court Clerk's Office, May 6, 19?3.

This deed was presented and upon the annexed certificate of ackriowledgment, admitted to record at 11 o'clock 4. M.

Teste:

.C. W. WOODSON, Clerk ..

page 26 ~ ''EXHIBIT F.''

This Contract, Made and entered into this lOth day of September, 1934, by and bet~een HERMAN C. THOMP&ON, party of the first part, and MRS. EDNA C. THOMPSON, party of the second part,

WHEREAS the party of the first part and the party of the second part are husband and wife, and the party of the second part has instituted a suit for an absolute divorce from the party of the first part, which s·uit is now pending in the Circuit Court of Campbell Co~nty, Virginia; and ·

WHEREAS the parties hereto have agreed upon a settlement of their property rights and wish to· effectuate the same between themselves and without the intervention of the court;

NOW, THEREFORE, THIS CONTRACT WITNESSETH:

(1) That the party of the first part will convey by a good and sufficient deed unto the party of the second part the dwelling house and tract of land on which it is .situated, containing about 4-65/100 acres, wherein' the party of the second part now resides, near Six Mile Bridge, in Campbell County, Virginia. ·

( 2) The party of the first · part here by promises· and agrees to transfer and deliver to the party of the second part, to be held as and for her own and free from all clailns by the party of the first parl, at the close. Qf business on September the 15th, 1934, the stock of merchandise and any and all rights that he may have in the .storeho~se wherein the said stock of merchandise is located, fronting on the public highway near Six Mile Bridge, Campbell County, Virginia.

(3) The party of the first part covenants and agrees that he will pay all bills for merchandise which may now be out-


standing, or which may accrue before the said stock of merchandise is turned over. to the party of the second part under this agreement. .

( 4) The party of the second part, in consideration of the obligations hereby assumed by the party of the first part,

promises and agrees to prosecute to a speedy conpage. 27 ~ elusion the said divorce suit now pending and that

she will ask no award of alimony in the said suit, and that she will and does hereby forever relinquish any and all claims to the payment of alimony by the party of the

· first part. . . . ( 5) It is agreed that the party of the second part shall

have the care and custody· of the two infant daughters of herself and the party of tlie first part, Hazel and Vurnell,

. and the party of the second part agrees to support and maintain them: .

(6) The party of .the first part promises and agrees to pay the cost of the said divorce suit, including an attorney's fee of $50.00 to counsel for the party of the· second part, which is to be inserted in the decree of divorce if and when ob-tained. ·

Witness the following signatures and seals:

State of Virginia,

HERMAN C. THOMPSON, (Seal) EDNA c~ THOMPSON. (Seal)


I, Ella Marie Jones, a Notary Public in and for the City of Lynchburg, State of Virginia, do hereby certify that Herman C. Thompson and Edna· C. Thompson, whose names are signed to the foregoing writing bearing date on the lOth day of September, 1934, have each acknowledged the same before me in my said city.

::1\Iy commission expires. on the 3rd day of July, 1938. Given under my hand this 12th day of September, 1934.

ELLA MARIE JONES, Notary Public.

page 28 ~ "EXHIBIT G" THIS DEED, Made-this 15th day of September in the year

1934, by arid between HERMAN C. THOMPSON, party of the first part, and EDNA C. THOMPSON, the wife of· the said Herman C. Thompson, party of the second part, both of the County of Campbell, State of Virginia;

44 Supreme Court of Appeals of Virginia ..

WITNESSETH

That in consideration of the sum of bne ($1.00 Dollar, cash in hand paid, the receipt whereof is hereby acknowledged, the party of the first part doth give, grant and convey unto the party of the second part, with General Warranty of Title, all of the following described real estate and personal prop-: er.ty, situated near Six Mile Bridge in Rustburg Magesterial District, Campbell County, State of Virginia, to-wit:

(1) That certain lot or parcel of land, together with the buildings and improvements thereon, beginning at a point on the Lynchburg and Concord Tu.rnpike, near a spring branch and culvert; thence S. 53%, E. 17 4' to a point near a spring, N. 6014 E. 296' to Beaver Creek, thence with the creek N. 15%, W. 101', N. 43% E. 92', N. 51 E. 92', N. 64% E. 76~', N. · 51% E. 50', N. 65% E. 45' to a point near the turnpike bridge, thence with the Lynchburg and Concord Turnpike N. 15%, E. 86' N. 431.4 W. 277', S. 671_4 W. 71', S. 3914 ,V. 50', S. 35 W. 296' S. 3714 W. 392' to the beginning; containing 4 65/100 acres as per plat and survey by John E. Poston, dated September 23, 1927, which said plat is attached to and made a par-t of the deed from Judy C. Thompson and husband hereinafter mentioned; it ·being the same land that ·was conveyed to the grantor herein by deed from Judy C. Thompson and husband, dated November 2, 1927, and recorded in Campbell County Clerk's Office in Deed Book 151, page 319, and by deed of quitclaim from Theron Thompson, unmarried, dated July 14th, 1928.

(2) All of the right, title and interest that the said Herman C. Thompson may have in and to the storehouse and tract of

land on which it is situated, near Six Mile Bridge, page 29 ~ fronting on the public highway between Lynch

burg and Concord, in which said storehouse the said Herman C. Thompson has heretofore conducted a general merchandize business.

(3) The stock of merchandize, furniture and fixtures located in the storehouse aforesaid, licenses, good 'viii and all other property appertaining to the said business.

The party of the first part covenants with- ;respect to the said real estate described in the paragraph numbered ( 1), above, that he is seised in fee· simple of the sa;me ; that he has the right to convey the same; that he has done no act to encumber the same ; that the grantee shall have . quiet and peaceable possession thereof, free from all encumber-


ances; and that he will execute all such other and further assurances thereof as may ·be requisite.

Witness the following signature and seal:

HERMAN C. THOMPSON. (Seal)

State of Virginia, City of Lynch~urg, to-wit,

I, Ella Marie Jones, a Notary Public in and for the city and state aforesaid, do hereby certify that Herman C. Thompson, whose name is signed to the foregoing deed, bearing date on the 15th day of September, 1934 has aclmowledged the same before me in my said city.

My commission expires on the 3rd day of July, 1938. Given under my hand this 24th day of September, 1934:

Virginia:


In Campbell Circuit Court Clerk's Office, October 24, 1934.

This deed was presented and upon the annexed certificate of acknowledgment, admitted to record at 9 o'clock, A. M. The same being stamped with $1.00 U.S.I.R. documentary stamps, cancelled according to law.

Teste C. W. WOODSON Clerk.

page 30 ~ EXHIBIT ''H''

In the Circuit Court of Campbell County, Virginia.

DECLARATION AND NOTICE.

James S. Thompson and Judy C. Thompson v.

Edna C. Thompson

James S .. Thompson and Judy C. Thompson, Plaintiffs, complain of Edna C. Thompson, Defendant, of a plea of trespass, for this, to-wit: That heretofore, to-wit, on the 15th day of September, 1934, the said plaintiffs were seized and possessed in fee simple of a certain tract, lot or parcel of land lying and being in Campbell County, Virginia, near SiX Mile Bridge and described as follows :


That certain storehouse and filling station and the tract of land on which they are ·situated, near Six Mile Bridge, on the new public road or highway between Lynchburg and Concord, and just above the old road and Moore's Filling Station, on ·the left of said ·new road towards Concord on said road. ·

And the said plaintiffs say. that they, being so ·seized and possessed of the said ·storehouse, filling station and tract or parcel of land, the said defendant afterwards, to-wit, on the 15th day of September, 193~, entered "into the same, and that she unlawfully withholds from the said plainti~s the possession thereof, to the damage of the said plaintiff·s of Five Thousand Dollars ($5,000.00), and, therefore, they bring this suit. ·

BY ---· ·---··------··-·---·-Counsel.

A. S. HESTER, p. q.

page 31 ~ To Edna C~ Thompson:

You are hereby notified that the foregoing declaration in ejeetment against you will be filed at the May term of the Circuit Court of Campbell Corinty, Virginia, on the 3rd day of the term thereof, to-wit, on the 12th day of May, 1937.

. . ·····-··--···-····-····-····-····-····-···-····-······-··-···-···-···-··-·

BY ... ·-···-----·--·-·--··-····-··-··-·-·---···--·-Counsel.

A. S. HESTER, p. q.

page 32 ~ In the Circuit Court of _Campbell County, Virginia.

Edna C. Thompson v.

May 12, 1937

INJUNCTION.

James Staffo~d Thompson and Judy C. Thompson.

This day can1e the complainant, Edna C. Thompson, by counsel, and upon motion leave· is granted· her to file her bill of complaint in this cause, which· bill is also treated as h~r

J. S. and Judy C. Thompson v. E~a q~·~~ompson.· •7

petition for an injunction against the defendants, J ame~ Stafford Thompson and Judy C. Thompson, and th~ same is accordingly filed. ·

On consideration whereof, and it appearing to the Court that due notice of .the filing of the said petition has been served upon the defendants, James Stafford Thompson and Judy· C. Thompson, and it appearing to the Court that the complainant is entitled to .a temporary· injunction, as prayed for; it is ordered that an injuncti9n do issue against the said James Stafford Thompson and Judy C. Thompson, enjoining and restraining them from prosecuting their action of ejectment against the complainant, Edna C. Thompson, from

- this date until June 14, 1937, at which time said injunction shall stand dissolved, unless sooner enlarged by this Court.

But before the said injunction shall become effective, the complainant shall enter into bond in the sum of $300.00, conditioned according to law.

The bond required has been given according to law.


page 33 } Virginia:

In the Circuit Court of Campbell County.

ANSWER.


James Stafford Thompson ·and Judith C. Thompson, also sometimes Imown as Judy C. Thompson, Defendants.

The answer of James Stafford Thompson and Judith (or Judy) C. Thompson to a bill of complaint filed against them in the Circuit Court of CampQell County, Virginia, by Edna C. Thompson.

These respondents reserving to themselves the benefit of all just exceptions .to the said bill of complaint, for answer thereto, or to so much thereof as they are advised that it is material they should answer, answer and say:

That it is true as stated in said bill .that Edna C. Thompson resides in Campbell County and is the wife of Herman· C. Thompson ~nd the mother of two children; that their names and ages are correctly given in said bill; that the said children have liv~d with their m9ther since the separation of


their mother and father; that it is true that Herman C. Thompson is the son of R. D. Thompson, now deceased, and of Judith (or Judy) C. Thompson, his widow, one of the defendants in this case, and that James Stafford Thompson is a brother of Herman C. Thompson.

That •the deeds of conveyance 1nentioned in said bill are correct so far as the defendants know, but it is not true that R. D. Thompson conveyed the property to his wife, the said Judith (or Judy) C. Thompson, and children-, .as stated in said bill, but the property was conveyed in fee simple to her

without any reservations on the part of her buspage 34 ~ band and that he had no title or interest therein

further than being her husband ; aJld that he was not her agent to make contracts or sell her property to any one ; that it was not considered by him or any one else as being his property; that one-half interest of which was conveyed to the said Judith (or Judy) C. Thompson by L. L. Drinkard and wife.

That it is true as stated in said bill that Judith C. Thompson and R. D. Thompson, her husband, conveyed the property to James Stafford Thompson1 with General Warranty of title, except the four and one-half acres conveyed to Iferman C. Thompson and one acre to Jones, for the consideration as mentioned in said bill, namely, to pay off the indebtedness of six hundred dollars ($600.00) secured by deed of trust, and to furnish maintenance for his father and mother for their natural lives, and they reserved to themselves a life estate therein; that the deed of trust given P. G. Cosby, Jr. trustee, is correct as stated in said bill .

. That these respondents do not know whether the suit was brought against Herman C. Thompson by Edna C. Thompson as stated in said bill, but they do kno\v that an agremnent was made by which Herman C. Thompson conveyed the four and one-half acres of land with the store and dwelling house thereon to Edna C. Thompson, also the stock of goods or merehandise in the ne\v storehouse built by the said llerman C. Thompson and all the right that he had to the ·building.

That it is true that the ejectment suit has been brought against the plaintiff by these respondents as stated in said

bill, returnable as stated in said bill ; that the said page 35 ~ Edna C. Thompson has no title or right to the

store building, or any interest therein; she knew · at the time she took the .contract or deed that she was only getting the stock of goods in said store, as her husband, the said Herman C. Thompson, never had any deed or title to the land on which the said store stood, and she was fully notified at that time ~f her husband, Herman C. Thompson, having no

J. S. and Judy C. Thompson v. Edna C~ Thompson. 49

title to- the said properly; that· the said Judith (or Judy) C. Thompson at no time ever agre~d with Herman C. Thompson to build the storehouse on the property; that she was never asked about it one way or the other and that ·her husband, the said R. D. Thompson, never asked her anything about selling or conveying any property to He:rman C. 'Fhompson, neither did she ask. him to make any kind of an agreement for her to convey to Herman C. Thompson the land on which the storehouse was built; if Herman C .. Thompson ever had any agreement of any kind with her husband, R. D. Thompson,. she ha.s no knowledge of it as he never told her anything· about it.

That. the storehouse was built by the said Herman C. Thompson in the. year :1927 as stated in said bill, but not at a cost of $2,500.00 but at a cost of $900.00, that being the contract price of the builder or contractor who built the same; that the value of the property of the respondents instead of being increased by the building of the storehouse, it depreciated the value of the whole tract of land to the amount of the cost of this building, as the storehouse was put in front of the ·home house thereby making it le~s desirable ; and if Edna C. Thompson should establish her right for damag~s

by reason of the construction of the storehouse, page 36· ~ such d'amages would be less than the rent that

should be paid for the land on which the sto'rehouse stands.

That each allegation of said bill not herein admitted to be true is denied and strict proof required to prove the same.

And now, having fully answered the said complainant'~ bill, these respondents pray to be hence dismissed.

JAMES ·sTAFFORD THOMPSON, JUDITH C. THOJ\.fPSON,.

By A. S. !lESTER, Their Counsel.

A. S. HESTER, Atty. for defendants.

State of Virginia, City of Lynchburg,. To-wit:

James Stafford! Thompson, being du_ly sworn, deposes and says that he is one· of the de.fendants in the foregoing· cause; and that the matters· and things therein stated are true· to tlie best of his· knowledge and. belief.

JAMES· STAFFORD; THOMPSON.


Subscribed and sworn to before me this 11th day of May, 1937.

JEAN T. HESTER, Notary Public For the City of Lynchburg, V a.

page · 37 } In the Circuit Court of ~Campbell County, Virginia.

AMENDED BILL.

Edna C. Thompson, v.

James Stafford Thompson and Judith ·c. Thompson (sometimes known as Judy C. Thompson).

To the Hon. Don P. Halsey, Judge of the Circuit Court of Campbell County, Va.

Your Complainant, Edna C. Thompson, respectfully represents that on the 12th day of May, 1937, she exhibited in this Court her original bill of complaint against J·ames Stafford Thompson and Judith C. Thompson, wherein she set forth that she is the owner and operator of a storehous~ and of the land on which the said storehouse is .situated, neM" Six Mile Bridge, Campbell County, Virginia, and that an action of ejectment has been filed against her in the Circuii:- Court of Campbell County, on, to-wit, the 26th day of April, 1937, and .thereupon she prayed that an injunction issue restraining the aforesaid defendants from proceeding in the aforesaid action of ejectment. And the said James Stafford Thompson and Judith C. Thompson appeared and answered the said bill, etc., and the same was set for hearing, and a temporary injunction was granted in the aforesaid cause, pending a final disposition of the aforesaid matter on its merits.

But your complainant respectfully represents that there are two matters in connection with the aforesaid bill and the rights of your complainant which were not specifically set up in the aforesaid bill, although it should have been, to:..wit,

the consideration for the contract alleged between page 38 ~ Herman C. Thompson, the husband of your conl-

plainant, and R. D. Thompson and Judy C. Thompson, his wife, one of the defendants in this cause. Also the further matter that your complainant had; before the tin1e of the institution of the ejectment action in . this cause, offered to pay to the defendants in this cause the consideration involved in the aioresaid contract.


Therefore your complainant does herein now allege that the consideration f-or the contract between Herman C. Thompson and R. D. Thompson and Judy C. Thompson, his wife, alleged in the original bill in this cause, was the sum of $100.00, to be paid by the aforesaid Herman C. Thompson to the aforesaid Judy C. Thompson and R. D. Thompson, her husband; and, ·

Furthermore, your complainant does allege that prior to the institution of this action, and before any demand was made upon lier or the aforesaid Herman C. Thompson for the aforesaid $100.00, she did offer to pay to the aforesaid Judy C. Thompson and the aforesaid James Stafford Thompson, now the holder.s of the legal title to the aforesaid land, the aforesaid R. D. Thompson having died in the meantime, the aforesaid $100.00 as stipulated in the aforesaid contract.

Wherefore, your complainant prays that the said James ' Stafford Thompson and the said Judith C. Thompson may be made parties defendant to this amended bill; that the said James Stafford Thompson and Judith C. Thompson be. required to answer this amended bill, but not under oath, the oath being hereby expressly waived; and that your complainant may have all such further, other and general relief in the · premises as the nature of her case may reqUire, page 39 r or to equity shall seem meet.

S. J. THOMPSON, W. H. JO~DAN, P. q.

page 40 ~ Virginia:

EDNA C. TH0~1:PSON, By Counsel.


ANSWER OF JAMES STAFFORD THOMPSON TO AMENDED BILL.

Edna C. Thompson, v.

James Stafford Thompson and Judith C. Thompson (sometimes known as Judy 0. ·Thompson).

The separate answer of James Stafford Thompson to an amended bill of complaint exhibited against him and another in the Circuit Court of Campbell County, Virginia, by Edna C. Thompson:

This respondent, reserving to himself the benefit of all just exceptions to said an1ended bill of complaint, .for answer


thereto or so- much thereof as he is advised it is· material that he sho;uld answer, answering· says:

This respondent says that on to-:wit: the 5th day of May, 1933, his mother Judith C. Thompson conveyed to him the real estate comprising her home 'and 101 ac~es of land as set forth in complainant's original bill of coin plaint; and that the consideration for said conveyance was that he . was to assume the payment of a deed of trust for $600.00 on said real estate, and was to support his mother and father during their lives, his mother retaining and reserving a life. interrest therein.

Respondent purchased this land with good faith anu is faithfully carrying out his part of the contract set forth therein.

Respondent denies that there was ever any contract between the saic;l Judith C. Thompson and Herman

page 41 } C. Thompson fo~ the sale or conveyance of the real estate on which said store building was erected

and calls for strict proof of any such contract or agreemen-t. Respondent further says that both the said Herman C.

Thompson and complainant, Edna C. Thompson, knew at the time of the settlement of their differences that the title to this property vested in his co-respondent, the said Judith C. Thompson, and that the said Herman C. Thompson could not make any title thereto ; and further says that at the time the said Herman C~ Thompson erected the store building on said premises he knew that the title to the real estate was in his mother, and that no supposed contract or agreement with his father could affect her rights to said real estate ..

. Respondent neither denies nor admits that ·recently the said complainant offered to pay the said Judith C. Thompson the sum of $100.00 or any other sum for said real estate, and calls f,ar .strict proof; and he avers that even if he did so she had the same right to refuse toi sell or convey the said real estate to the said Herman C. Thompson or anyone else that she had before that time.

Respondent says that on the 5th day of May, 1933, said real estate including· the site on which said store building was erected was conveyed to him by the aforesaid deed from his mother and father, and was promptly recorded in the Clerk's Office of' CampbeU County in Deed! Book 164!, page 116~ and not until the 15th day of September, 1934, was the deed' made

from the said Herman C. Thompson to the com .. page 42 } plainant, his said wife ; and that eaeh~ of said- par

ties were aware of saicl. deed and 1mew that this


res'Pondent had the legal title to said land, including the land OU.----·-··-····-··--····-··--···•

And respondent says that a short time before the: ~ject-ment snit was brought by respondent and his mother a paper wa8 presented to him which stated that complainant was the owner of the store building and the land on which it was situated, with request that he sign same, and this respond~nt, as well as his mother, refused to sign any such paper because both he and complainant knew she had no such interest in said real estate and had theretofore repeatedly stated that she had no such interest.

Further answering, this respondent says that he is the owner in fee simple title to said real estate, subject to the life interest therein of his co-respondent, and that complainant has no interest therein.

Respondent is willing that complainant remove the said storehouse and such improvements as have been put on said real estate by Herman C. Thompson as he believes the. pres.ence of said storehouse on said land has materially depreciated the value of the residue of said farm.

Respondent denies each and every material allegation both in complainant's original bill of complaint, and in her amended bill of complaint not specifically herein admitted, an<;! calls for strict proof. .

And now having fully answered, this respondent prays to be hence. dismissed with his costs by him in this behalf expended.

.A. S. HESTER B. B. CAMPBELL

page 43 } Virginia:

JAMES STAFFORD THOMPSON, By Counsel .


ANSWER OF JUDITH C. THOMPSON TO . ·AMENDED BILL.

Edna C. Thompson, 1J.

James Stafford Thompson and Judith C. Thompson (sometimes known as Judy C. Thompson).

The separate answer of Judith C. Thompson to an amended bill of complaint exhibited against her and another in the

54 Supreme .Court of .4-_ppeals of Virginia

Circuit Court of Campbell County, Virginia by Edna C. Thompson. .

This respondent, reserving to herself the benefit of all just exceptions to said amended bill of complaint, for answer thereto or so much thereof as she is advised it is material that she should answer' answering· says :

' '

As heretofoJ'e .set forth in her an~wer to complainant's original bill of complaint, she specifically denies that there was ever any contract or agreement in any manner, shape or form, either verbal ·or written, between this respondent and Herman C. ThoJllpson, the husband of the complainant by which the said Herman C. Thompson 'vas to acquire any title to the lot of land in controversy in this suit; that any agreement or supposed contract between the said Herman C. Thompson and his father, R. D. Thompson, if such were made, was without any authority whatsoever from this respondent, who waa the owner of the real estate set forth and described in the bill, and is therefore void and without any . binding· effect upon her.

Respondent further says that at the time, to-,vit: in the year 1927, when the said Herman C. Thompson constructed

the storehouse on respondent's land he 'veil knew page 44 r that his father did not own this land, and that it

would be necessary to have a contract with this responde-nt who was then the owner in fee simple of the entire tract of land. And on February 27th, 1926, shortly prior to the erection of the said building, the said Herman C. Thompson and his wife, who is complainant in this ·bill, along with the other children of the said R. D. and Judith C. Thompson, conveyed by fee simple title the entire tract of land including the land now occupied by said store to the said Judith C. Thompson without any reservation whatever of any land to themselves, and therefore knew ·where the title 'vas, and that no title could be obtained from R. D. Thompson.

While respondent, Judith C .. Thompson, knew that her son, Herman C. Thompson, 'vas erecting the storehouse she did not make any objection thereto because she knew that she would be able to control the situation and that the said Herman C. Thompson would have no control over the real estate and no right to sell the same, and she was willing that he occupy the same so long as conditions should be satisfactory to herself.

Respondent further says that she had no idea of ever conveying said real estate to her son or to anyone else. And respondent also says that having conveyed a portion of her land fronting on the main Highway to her son-in-law, R. B. -

I


Jones, if she be compelled to accede to the preposterous demand of the complainant in this suit the frontage to be taken by the complainant's claim would practically cut off her entire farm and home from access to the public highway. She further says that the present storehouse as now located on

her property, if it should pass beyond her control, page 45 } would decrease the value of her home more than

the value of the building thereon; and that she has never, at any time, had the remotest idea of losing title to and control of this frontage. She has permitted her said son to use and occupy this land, subject entirely to her control and right to eject him or anyone who might claim under him, should she so find it advisable. -

Some years after said deed was made to her in February, 1926, by her said children, respondent becoming advanced in years and in need of money, contracted with her co-defendant and son, J. Stafford Thompson, to sell him the entire farm; and on May the 5th, 1933, she borrowed on said property the sum of $600.00 and on the same day conveyed to the said .J. Stafford Thompson said property in consideration of his assuming said obligation and of taking care of and supporting herself and husband during their natural lives, and reserving to herself a life interest in said real estate; and that said real estate now belongs to J. Stafford Thompson with a life estate reserved by this respondent.

This respondent's attitude has been consistent in that she has never. released control and right to possession over the entire real estate during her lifetime, and she certainly would not have under any circumstances agreed to cut herself off from· the main highway by the sale or conveyance of the real estate on which said storehouse is erected.

Respondent further says that the said complainant knew at the time her husband conveyed to her "all right, title and interest'' which he might have in said store building; that he had no title and could convey no title to said real estate; that

at the time or about the time negotiations were page 46} being had by which complainant obtained a deed

from the said Herman C. ThompRon that she then and there refused to execute any such deed conveying said real estate to anyone. ·

This respondent and her co-respond~nt have continually paid the taxes on said real estate, including the increased taxes thereon on account of the increase in value placed upon said storehouse by the Tax Assessor. · .

While respondent denies that the ·said Herman C. Thompson ever had any title to the said real estate and was not in any position to convey a valid title thereto to his said wife,

5'6 Supreme Court of Appeals of· Virginia

respondent is willing that the said complainant remove said store building .and all of the suppo·sed improvements placed thereon by the said Herman C. Thompson, ~and avers that if they will do so her real estate will be enhanced in val~e.

Respondent further says that complainant's bill of complaint does not allege any contraet, verbal or otherwise, showing any amount of land to be conveyed to the said Herman C. Thompso·n, what its bounda.ries and description are, whether it be one-half acre, one acre or more; and that a Court of equity cannot make a contract between the parties where there is no such contract.

Respondent denies each and every material allegation both in complainant's bill of complaint and in her amended bill of complaint not specifically herein admitted and calls for strict proot ·

And now having fully answered, this respondent prays to be hence dismissed with her costs· by her in this behalf expended.

A. S. HESTER B. B. CAMPBELL

page 4 7 ~ Virginia:

JUDITH C. THOMP.SON, By Counsel.

In the Circuit Court ·of Campbell County.

AFFID.A VIT.

_ Edna C. Thompson, 9omplainant, v.

James Stafford Thompson and J 11dith C" Thompson, also sometimes known as Judy C. Thompson, Defendants.

State of Virginia, City of Lynchburg, to ... wit---

This day Herman C. Thompson personally app~a.red before me, Jean T. Hester, a Notary Public in and for the city and state aforesaid, in m.Y city aforesaid, and made oath that his tnothe:r, Mrs. Judy C. Thompson never agreed for him· to build the storehouse on her property, which he built as claimed by Edna C. Thompson in heJ: suit against James Stafford Thompson and Judith C. Thompson, or Judy C. Thompson; that he never talked with his mother about the matter of building the said storehouse on her property before he built

J. S. and Judy C. Thomps'On v. Edna C. Thompson. 57

it, not;_ did she at any time agree for him to have the land on which the storehouse was built; but before building the storehouse he did talk with his father., R. D. Thompson, -about buy- ' ing a lot on which to bUild a storehouse and his father told him he could get a lot for one hundred dollars ($100.00) and for him to cut the lot off and pay the h1Uldred dollars and take the lot; that nothing was said about the· size or shape of the lot; that affiant never paid the hundred dollars, nor did he cut the lot off; that he did not know whether his mother, Mrs. Judy C. Thompson, knew of the offer that his father, R. D.

Thompson made him; that he knew that his mother page 48 } owned the property at the time that he built the

said storehouse, and he knew that he did not hav:~ any right to the possession, or title to the lot or land on which the storehouse was built, never having had any kind of an agreement or understanding with his mother. The storehouse that was ·built in the year 19~7 was. built for the sum of $900.00. That prior to the building of the storehouse he had a store on the Lynchburg-Concord Road about three or four hundred yards from the place on which this storehouse was built, which store was on the four and one-half acre.s of land which had been deeded to him by his father and mother; there was also on this tract of land a good two-story dwelling house in which he and his family lived.

Given under my hand this the 11th day of May, -1937 •

page 49 } Virginia:

. JEAN T. HESTER, Notary Public. .

In the Circuit Court for the County of Campbell.

June 14, 1937.

DECREE.

Edna C. Thompson; Complainant, v.

James Stafford Thompson and Judice C. Thompson, ::Pefendants.

This cause came on this day to be heard upon the complainant's bill of complaint and the exhibits therewith filed, and upon the answer of the defendants, James Stafford Thompson and Judice C. T_hompson and the exhibits therewith fill3d~ with general replication thereto, and was argued by counsel!

58. .Supreme Court of Appeals of Virginia

Upon eonsideration whereof, and by consent of parties, the Court doth adjudge, order and decree that the temporary injunction heretofore awarded in this cause on the 12th day of May, 1937, be and is hereby enlarged and continued to the 28th day of June, 1937.

page 50 } In the Circuit Court for the County of Campbell, Virginia.

June 28, 1937.

ORDER.


James Stafford Thompson, et al., Defendants.

This cause came on this day to be further heard upon the papers formerly read and upon the motion of the complainant, this day made, to enlarge and continue the injunction heretofore a'varded in this cause, in which motion the defendants join, and was argued by counsel:

On consideration whereof, and by consent of all parties, the court doth adjudge, order and decree that the temporary injunction heretofore awarded in this cause o:q_ the 12th day of May, 1937, and enlarged and continued until the 28th dav of June, 1937' be, and the same hereby is, enlarged and continued to the 8th day of July, 1937.

page 51 ~ And on this day, to wit:

Virginia:

In the Circuit Court of Campbell qg.u:p.ty.

Oct. 13, 1937. "'

DECREE.



· This day came the complainant, by counsel and moved theCourt for leave to file her amended bill in this cause, and the same was accordingly filed, and came as well the defendants,


by counsel, and moved the Court for leave to file their separate answers to said amended bill, and the same were ac-cordingly filed. ,

And thereupon this cause came on this day to be again heard on the complainant's original bill of complaint with exhibits therewith filed, upon the demurrer and answers of the defendants to said original bill of complaint and the complainant's general replication to said answers, upon the complainant's amended .bill of complaint, the answers of the defendants thereto· ancl the complainant's general replication to said answers, upon all of the orders and decrees heretofore entered herein, and upon the depositions of witnesses taken and filed herein on behalf of both the complainant and the defendants, and was argued by counsel.

Upon consideration whereof the Court, after having considered all of the pleadings, and the evidence submitted, and the arguments of counsel, being of opinion for reasons set forth in its written opinion filed herein, marked ''Court's Opinion'' for identification, and hereby made a part of the record, that the complainant .is not entitled to specific ·per-

formance of the alleged contract set up in her bill, page 52 ~ doth so decide, and doth adjudge, order and decree

that specific performance of the alleged contract set up in her bill be, and the same is hereby, denied.

The Court, being further of opinion from the evidence taken, and for reasons set forth in its said written opinion, that the plaintiff as the assignee of Herman C. Thompson, her husband, is entitled to compensation for improvements put upon the premises by her said husband and that a fair and just compensation for said improvements amounts to the sum of Nine Hundred ($900.00) Dollars, doth further adjudge, order and decree that the complainant do recover of and from the defendants the sum of $900.00, (without interest until she vacates the property) that the injunction heretofore granted in this cause be renewed and continued until the payment of the said sum of money, and that upon the payment of the same the said injunction will be dissolved and this cause dismissed.

The Court doth adjudge, order and decree that each side pay its own costs, by them in this behalf expended.

The defendants having taken exceptions to so much of this decree as awards damages to the complainant for the reasons that no damages should be allowed the complainant under the pleadings and proof taken, as well as to the action of the Court .in allowing the complainant to use and occupy the premises until its judgment shall have been satisfied, and having indicated an intention to apply to the Supreme Court

00 Supreme Court of .App.eals of Virginia

of Appeals of Virginia for an appeal and supersedeas, the Court doth adjudge, order and decree that -execu

page 53 ~ tion upon the judgment entered in this cause be suspended for a period of sixty days, upon com

plainant's entering into and acknowledging .a bond before the Clerk of this Court with surety to be approved by said Clerk in the penalty of $200.00, conditioned according to law.

And the .Plaintiff excepts to so much of this decree as denies her the right of specific performance.

page 54~ DEPOSITIONS.

Edna ·C. Thompson, Plaintiff, v.


The depositions of Edna C. Thompson and others, taken before me, Ella Marie Jones, a Notary Public in and for the .City of Lynchburg, State of Virginia, on Wednesday morning, May 26th, 1937, between the hours of 10:00 o'clock A. M. and 5:00 o'clock P. M. of that day, at the of.fice of W. H. ,Jordan, 507 Krise Building; Lynchburg, Virginia, pursuant to the annexed notice, to be read as evidence on behalf of the plaintiff in the chancery suit now pending in the Circuit Court of the County of Campbell, Virginia, under the style of Edna C. Thompson t'. James Stafford Thompson and Judith C. Thompson.

Present: S. J. Thompson, E8quire, and W. H. Jordan, Esquire, counsel for the plaintiff; A. S. Hester, Esquire, and B. B. Campbell, Esquire, counsel for the defendants .

. The first witness,

JOHN W. HARVEY, being duly sworn, deposes and says:

By Mr. Thompson: Q. Mr. Harvey, where do you live! A. I live in Campbell County, Virginia . . Q. Where in Campbell County? A. At Beaver Creek, Lynchburg Route Three. Q. ·no you know Mrs. Edna C. ThompsonY A:. Yes. Q. Do you know Herman C. Thompson, her husbandt

A. Yes. · page 55 ~ Q. ·Did you know R. D. Thompson, the father of

Herman Thompson t

J. S. and Judy C. Thompson: v .. Edm.a C.. Thompson. 61

A. Yes. Q. Do you know. Judith C. Thompson, his wife! . A. Yes. Q. How long have y<Hl liyed in the community with these

people! A. I was raised there. Ever since they bought thai farm

they o~ . Q. About how long have they owned that farm Y A. I can't tell you exactly. Mr. Thompson had two ehil- .,..

dren when he came there. Q. Approximately what time .was it! A. He bought the farm, in the fall. Q. What year! .A. I can't tell you. Q. Was it thirty or forty years ago! A. Yes, sir. . Q. Do you know anything about the transaction wherein

Mr. R. D. Thompson conv:eyed his interest in this farm to his wife7 ·

A. He told me-

By Mr. Hester: We want te object to this question and answer.

By Mr. Thompson: On what grounds? By Mr. Hester : On the grounds that it has no connection

with this case. By Mr. Thompson: Please answer the question, Mr. Har

. vey.

·A. He told me about it after it was done and he told me why he did it. He said he was running the farm

page· 56~ and running a sawmill business in Buckingham I think and that the man he had managing the saw

mill brought him in debt and he conveyed his property' to his wife and children to save his home. He knew at the time that if his creditors pressed him he would lose his property; that if they closed down on him he would lose his home.

Q. Subsequent to that time, Mr. Harvey, did Mr. Thompson or did he not operate this same farm until the time of his death?

A. Yes. Q. Did he appear to consider it as his own 1 A. I suppose so. I ·don't know anything about it. He

managed it and had it worked~ ..

By Mr. Campbell: Counsel for the de:fienaants· except to, a:N. of the questions asked this witness and his answers thereto and move that his deposition be stricken from the record on

62 .Supreme Court of Appeals of Virginia

the ground that it clearly shows that Mr. R. D. Thompson for the purpose of saving his home, conveyed this property to his wife and children; that the deed to his wife and children cannot be attacked in this manner.

By Mr. Thompson: Counsel for the plaintiff state the reason for the foregoing question was to show that the property in question in reality was the property of R. D. Thompson at the time of the transaction in question in this suit and the deed, if voidable, was voidable as to creditors only.

Q . .Are you willing for the notary to sign your name to this deposition 7 .

page 57 ~ A. Yes.

And further this deponent saith not.

The next witness,

JOHN W. HARVEY, By ELLA MARIE JONES,

Notary Public.

R. C. WORLEY, · being duly sworn, deposes and says :.

By Mr. Thompson: Q. Mr. Worley, did you build any part of the storehouse

formerly belonging to Herman C. Thompson Y .A. I built the storage room on the back side. Mr. Booker

Drinkard and I together. Q. What did it cost to build that storage room? .A. I don't know what the material cost. The labor cost

about $25.00 and $12.00. I worked five days for $5.00 a day. Q. You were a contractor .at that time? A. -Yes. Q. What do you estimate to be the cost of the material in

that building Y A. I suppose about $100.00. Material wasn't as high as

it is now. Q. I understand that was the storage room added on to

the storehouse after the storehouse was built? · .A. Yes, sir. Q. Attached to it? A. Yes. Q. Mr. Worley, did you ever hear Mr. R. D. Thompson at

any time during his Ffe say anything about the land on which the store was built?


page 58 } By Mt·. Campbell: We object to that question on the grounds that Mr. R. D. ~hompson is dead,

is not a party to this suit and has no interest in the subject matter of this suit and that any answers to this question would be purely hearsay testimony. . ·

By Mr. Thompson: Q. Please answer the question Y t.A. Herman came to see me about building the new store

house and I told him it would cost about $1,000.00. I had plenty of work to do at that time and about ten days later . went down there and he had give the job to someone else that would cost $900.00. Capt. Dick said Herman ought not to have gone back on his work. Herman said he was S'()rry he did because the fellow had run up on him. ·Capt. Dick said he had wanted me to build it and wasn't agoing to put any money in it. I was talking to Herman and Herman was talking. We 'vere in the store when he said he wished he had let me build it. Old man Dick said "If I had had anything to do with it I would have let you build it. I thought Herman was a man of his word''. Herman just laughed. Old man Dick told me then that he had let Herman have the land to build on but he wasn't going to ,put anything in it.

Q. Mr. R~ D. Thompson said to you "I gave Herman the land and a place to put the store but I am not g~ing to put any money in it''f

.A. Yes; Herman was sitting there at th~ time.

By Mr. Campbell: The counsel for the defendants except to the foregoing testimony of· this witness on the grounds heretofore stated and on the grounds that R. D. Thompson had no interest in this real estate and that any agreement

or statement made by him bad no binding effect page 59 } on his wife and children, who were the owners of

this property at this time; that the testimony is hearsay, inadmissible and incompetent for any purpose set forth in the complainant's complaint.

By Mr. Thompson: Q. Do you authorize the notary to sign your name to this

deposition Y • A. Yes .

.And further this deponent saith not.

R. C. WORLEY, By ELLA MARIE JONES;

Notary Public.

44 Supreme Co11rt of Appeals of' Virginia

The 11ext witness,

T. R. THOMPSON,. being duly swor:a.,. deposes and says :

By Mr. Jordan: Q. You are Mr. T. R. Thompson? A. Yes. Q. Are you a son of the lateR. D. Thompson and a brother

of Herman C. Thompson Y -A. Yes. Q. Mr. Thompson, did you ever live on the farm that be

longed to your father at ·one time and was later conveyed to your mother and her children near Six Mile Bridge Y

A. Yes. Q. About what year was it that you lived on the farm Y A. It was eig·hteen or twenty years since I lived there. Q. How long did you live there Y A. Seven years. · Q. Who else was living on it at that timeY

A. It was two families of colored people. page 60- ~ Q. Were your parents living there at that timeY

A. Yes. Q. Were any of tlie other children besides yourself living

on itY A. Yes. Q. Which ones Y A. Stafford was there. Q. Tell us please who was in charge of the farm during

the- time you were there Y .. · A. Pa was in charge, Mr. R. D. Thompson. Q. Did he exercise control o.ver the farm Y A. Yes, sir. Q. Do you know who paid the taxes on the farrri during

that time? · A. Pa paid them. Q. I believe that some- years ago there was another store

house on· the farm fronting on the old road. That was before the storehouse that is now in questiQn was built. ]s that true o:r not Y

A. Yes, that is true. Q. Where were you living at the time the new storehouse

was builtY A. Up at the old fur~ace place. · Q. About how far is that frQm the new storehouse Y A. About ~ mil~

J. S. l:lnd Judy C. Thompson v. Edna C. Thompson. 65

Q. Did you know·when the new storehouse was being builtY A. Yes. Q. How far from the new storehouse was the dwelling

house in which your parents lived! . . .A. It was something like 200 yards.

Q. Is th~ new storehouse in plain view of the page 61 } dwelling house in which your parents lived f

A. Yes. Q. Was your mother, Mrs. Judith C. Thompson, living in

the dwelling house at that time? A. Yes. Q. Do you happen to know whether or not both of your

parents and your brother Stafford knew that the storehous~ was being built at that place?

A. Yes. Q. Do you happen to know anything regarding any ar

rangements had between your brother Herman Thompson and your parents or either of them regarding the land on which the storehouse was built?

A. I heard Pa say many times he was going to give Herman the acre of land that the store was on.

Q. You knew then that Herman was to get a deed to that plot of land? ·

A. Yes. Q. Did your mother also know of that arrangement about

the plot of land? A. I don't know. I never heard her say. . Q. After your father's death did you ever hear her, your

mother, make any remark about giying a deed to the land to Herman?

A. No, sir. Q. Did you ever hear her say anything about refusing to

give a deed to the land to Herman? A. No, sir.

Q. You have stated that you were one of the page 62 } children of ~fr. R. D. Thompson Y

A. Yes. Q. And I take it that you are one of those mentioned in

the deed conveying the land to your mother and her children?

A. Yes, sir. · · Q. At the time that this new storehouse was being erected

and just before the erection, was any objection made by any of the children to the storehouse being built Y

A .. Not to my knowing. ' Q. Mr. Thompson, the records show that this land was originally owned by your father and that it was later put. in

66 Supreme Court of Appeals o~ Virginia:

the name of your mother and her children. Do you happen to know why that was done Y .

A. I have heard him say that he got in debt fooling with a sawmill and .fixed the land that way to save it.

Q. I believ:e it is a fact that your father later paid off all those debtsf

A. Yes, sir. Q. It is a fact, I believe, Mr. Thompson, that your brother

Herman and his wife, who is the plaintiff in this case, separated about two and one-half years agoY

· A. Yes, sir. Q. At that time did you bear your mother say anything

with reference to giving a deed to this land on which the storehouse is or refusing to give a deed to itt

·A. No, sir. I heard at the time they separated that she wouldn't give a deed to something.

Q. You didn't hear your mother say itt page 63 ~ A. No, sir.

Q. You stated that you heard that your mother had declined to give a deed to the land. Did you hear what reason was given by her and whom she refused to give the deed tot

A. She refused to give the deed to his wife. Q. Wby7 A. Because she didn't like her I reckon. Q. Did she give a reason too that Herman had or bad not

conducted himself properly t · A. I don't know.

By Mr. Campbell: The coJ.Insel for the defendants make exceptions to this and move that it be stricken from the record for the reasons heretofore assigned and for the reason that the testimony of this witness is incompetent, irrelevant, inadmissible and heresay, and contradicts the record as shown by deeds, the record showing .that at the time of the separation Mrs. Thompson herself had conveyed this land away and could not make any deed to Herman or anyone else, but without waiving the objections to this witness's evidence, it is our desire to ask him this question.

By J\Ir. Hester: Q. Was there any writing about this contract or the sale

of this lot to your in other Y A. Not as I know of. Q. You never heard of anyY A. No, sir.

j, I


Q. At the time of the separation who had charge of the managing of the farm Y ,

page 64 } A. Stafford. Q. And he had been managing it when the store

was builtY A. Stafford was working the place. Q. Your father was paralyzed in the fall of 1926 and was

paralyzed for a great many years before he died and Stafford had charge of the farm. Is that truet.

A. Yes, sir. Q. What is your age? A. Forty-nine years of age.

By Mr. Jordan: Q. Do you authorize the notary to sign your name to this

deposition Y A. Yes.


The next witness,

T. R. THOMPSON, By ELLA MARIE JONES,

Notary Public.

B. H. DRINKARD, being duly sworn, deposes and says :

By Mr. ·Thompson: Q. Where do you live Y A. At Six Mile Bridge. Q. Is tha\ in Campbell County? A. Yes. Q. How far do you live from what is known as the Her-

man Thompson StoreY A. About one-half a mile. Q. How long have you lived in that community!

A. Twenty-five years. ; , page 65 } Q. Did you have ·anything to do with the build-

ing of this store or the additions to itY A. Yes. Q. You worked on all the buildings there Y A. Yes. · Q. Do you know anything about the cost of the erection

of the storeY A. I was working for Mr. Alvis. He was the contractor.


Q. You don't know of your own knowledge? A. No, sir. Q. Did you help to make any additions· to the store? A. Yes. · Q. What was that? A. Another room on the back end of the porch and a con

crete cellar. Q. Do you know the cost of any of that? A. The cellar cost around $100.00. The building cost about

$130.00. Q. Having lived there in the community, you were there

when the Thompson store was over on the old road Y A. Yes. I helped to build that. Q. Do you know anything about what the terms o~ the

contract were between Mr. Thompson or Mrs. Thompson with Herman with reference to the land on which this new store was located Y .

A. No more than what Herman told me.

By Mr. Campbell: I object to this as hearsay, irrelevant and improper.

By Mr. Thompson: Q. Ans,ver the question. .

page 66 } A. He told me that his dad told him to. move up there and build anywhere and cut off the land and

his dad would give him a deed to it. That is all I know about it.

Q. Just what time was that, 1\{r. Drinkard, ·with reference to the time the new store was put up¥

A. It has been ten or twelve years. Q. When did the conversation take place? A. Down at the old store when I was working for him.

It was before he started to build the new store: Q. You were living there at your place where you live

now at the time Herman and his wife separated! A. Yes. Q . .Since Herman left, who has been operating the storeY A. Mrs. Edna Thompson, his wife, has been. Q. What kind of a business does Mrs. Thompson have

there Y I mean by that is it a paying business? Does she have a good trade Y

A. She has a good trade.

By Mr. Campbell: Exception is taken to this question on the grounds that it is incompetent a:nd irrelevant. ·


By Mr. Thompson: Q. Is she apparently conducting a successful mercantile

business? A. Yes. '

By Mr. Campbell: The defendants by counsel move to strike out the testimony of this witness on the grounds here

tofore assigned and without waiving the said expage 67 } ceptions to the immateriality of this testimony,

proceed to cross examine the witness.

By Mr. Campbell: Q. Mr. Drinkard, you were present when an agreement was

effected between Herman and his wife Y A. Yes. Q. That occurred at Mr. Hester's office? A. Yes. Q. Do you recall that Herman Thompson's wife objected

to the agreement on the grounds that she was not getting anything except the fixtures and stock of goods and not this store building?

A. I suppose that was all she got. Q. And so stated, didn't she1 :A. I don't remember. Q. Didn't she in her statement at that time Sf\y also that

she wasn't getting the land Y A. I don't know about that. Q. Don't you recall what she said about it Y A. No, sir. Q. What did take place at Mr. Hester's of.fiee with refer-

ence to that Y A. I don't remember. Q. Don't you remember anything that took place in there Y A. I don't believe I was there when the deed was signed. Q. Weren't you there when they talked about it and she re-

fused it several times before the deed was signed Y A. I was there several times. Q. Didn't she refuse it when you were there on the grounds

that she wasn't getting the land but the stock of page 68 } good's and fixtures Y

A. I don't remember that. Q. Why did she refuse Y A. I don't know because I don't remember much about

that. . Q. You remember her refusing that don-'t you Y A. No, sir. Q. Don't you recall that the time you were there Mrs.


Herman Thompson was present, Mr. Herman Thompson was there and Stafford Thompson was there and that the matter was discussed and that she would not be getting anything but the stock of goods a~d fixtures?

A. She didn't get much stock of goods. Q. I am asking you? A. No, I don't remember. Q. You don't remember what took place in your presence

down there? A~ Not particular. Q. What did you go down there for? A. They brought the deed down there, to the house. Q. I am talking about in Mr. Hester's office. At the house

didn't she refuse it because she wasn't getting anything but the stock of goods and :fixtures?

A. I don't know whether she did or not. · Q. You don't know what took place at Mr. Hester's office'

or at the house f . A. No, sir. Q. Hasn't she a deed to four acres of land and the old

house? A. Yes. Q. What kind of land is that?

A. That is down on the river. That is not conpage 69 ~ nected with the storehouse at all.

Q. That is on the old road f A. That is down on the river .. · Q. What kin are you to Mrs. Thompson? A. No kin. Q. Any relation to her by marriage or otherwise! .A. I am kin to Herman.


deposition Y · .A. Yes.


B. H. DRINKARD, By ELLA MARIE JONES,

Notary Public.


The next witness,

W. R. GILES, being duly sw?rn, deposes and says:

By Mr. Thomps.on: Q. Mr. Giles, where do you 'live! A. At Six Mile Bridge. . Q. What is your occupation Y A. Section foreman for the C. & 0. Railway. Q. How long have you liyed there! A. Twenty-two years. Q .. Are you acquainted with Herman Thompson Y A. Yes. Q. Were you acquainted with his father, R. D. Thompson't A. Yes. Q. Are you acquainted with Mrs.· Judith .C. Thompson T

A. Yes. . page 70 ~ Q. Were you living there at the time the new

storehouse was built by Herman Thompson on the new highway y

A. Yes. Q. Do you knqw what the contract was between Mrs. J u

dith C. Thompson and Herman and Mr. R. D. Thompson and Herman with reference to the land on which this storehouse was built?

By Mr. Campbell: Counsel for the defendants except to this question on the grounds that it is clearly shown that there was not any contract or agreement.

By Mr. Thompson: Q. Please answer the question, Mr. Giles. A. Mr. Herman Thompson at the time he built the store

was talking to me and said "Pais going to give me a deed to where I build the store on the new highway".

Q. Was that before the store was built! A. That was before the store was built. I was there after

the store was built too and I asked him if he had the deed. Mr. Herman Thompson said his pa would give him a deed to the piece of land which would amount to about an acre. East of the store there was a garage built and the land was to go above the garage, ·back to the pasture fence, behind the store and back to a small building that he had erected on the west side of the store to the highway, and that would amount to about an acre. '·


Q. Mr. Giles, do you know why Mr. R. D. Thompson conveyed his property to his wife and children?

~. R. D. Thompson told me that he went down the coun'· try and began to running a sawmill and he had

page 71 ~ others in the store which were running it for him and the sawmill put him in debt and they were

about to take his farm for the debts and to save himself he made the farm over to his wife. and children.

Q. Did he ever tell you whether he paid those debts Y A. He said he paid them all. He owed Mr. Cosby, a shoe

man here in Lynchburg, the most money. Q. Do you kno'v how long it was that Herman Thompson

built his home down on the old road before he got a deed to the landT

A. He built the home on the old road in 1915 and did not get the deed until about 1926.

By Mr. Campbell: The defendants by counsel take exception to the testimony of this witness and move that it be stricken from the record on the ground that it is heresay, immaterial and incompetent to establish any issue raised in this procedure and for the further reason that the testimony shows conclusively that this farm was conveyed to the wife and children of Mr. Thompson and cannot be attacked in this manner.

By Mr. Thompson: Q. Do you authorize the n~tary to sign your name to this

deposition f · · A. Yes, sir.


W. R. GILES, By ELLA MARIE JONES,

· N~tary Public.

The next witness,

PRESTON COX, being first duly sworn, deposes and ~ays :

page 72 + By Mr. Thompson: Q. Where do you live f

A. Six Mile Bridge. Q. How long have you lived thereT A. Since 1892.


Q. Were you living there at the thne Mr. R. D. Thompson moved up there! · ·

.A.. I wasn't there when he moved there but when his son moved the store. ,

Q. Had you known Mr. Thompson and his family since 18927

.A.. I have lived inside a mile ever since. Q. Did you deal at the storeY A. Yes, I bought goods from him before he built any store

at all. Q. Do you deal with Mrs. Edna C. Thompson! A. Yes, sir. Q. Do you know when Herman Thompson built the new

store up on the road Y A. I think I do.

· Q. All right, tell us about that . .A.. Well, I passed, by the store twice every day, going to

and from work. One day I wasn't thinking about what was happening but Herman called me and asked me to take a walk with him. He said his pa give him a place to put the store and he said he wanted me to help him clear up the land and fix around. He wanted to put the store on the other side of the highway on the right-hand side and I said he ought to put it on this side, on the left side going to :Concord. He said that would be right. 'cause the sun would face the door and over on the other side the sun would be

behind him. He planned out that place right and page 73 r began to make preparations and I had a partner

with .me that worked on the track and we hoped him :Dx around and he got in shape to build the store. Since that I have hoped him all along.

Q. Did you ever hear R. D. Thompson say anything about this transaction Y

A. He sat down and said more than twice (I used 'to be his barber) and he said he give that boy the place and lie ought to behave himself and make some money up there. I used to ask Mr. Herman what he 'vas agoing to do. I WtQuld

·say "Why don't you get yourself straightened out" and he would say ''Pa will give me a deed to this property". It went on then for a good bit after that and I called his 'ten'tion to it and he would say that was all right 'cause he thought what his pa said was ''it". That, is all I can tell you along that line where he located himself.

Q. Living there in the community, you know the general situation ;-who managed the farm and worked and looked after itT


A. Mr. R. D. Thompson. It has always been Mr. R. D. Thompson.

Q. Did you ev:er hear anything about Mrs. Judith Thompson owning the farm Y

A. No, sir. But I remember one time he made a little assignment and he spoke about that several times to me but he got that straightened up and got that through.

Q. How much land was Mr. Thompson supposed to give or sell Herman t

A. I really couldn't tell you that. The only information I got was out of Herman when we got out and worked together.

Q. How much land was there in the space that you cleared .out!

A. About one acre of land.

page 74 ~ By Mr. Campbell: The defendants by counsel take exceptions to each question and answer of

this witness on the ground that it is immaterial, irrelevant, incompetent and purely heresaJI and in no way binding upon the defendants in this case and without waiving the said ex-ceptions we proceed to cross examine this witness. ·

By Mr. Campbell: Q. You say that R. D. Thompson told you that he made a

little assignment. What was that! A. He made one like any of us would do if someone ran

up on you and you would put him off until the debt would be paid. .

Q. He was about to lose the farm if J;te didn't do something and to save the farm he made this deed to his wife and children!

A. Yes, sir.

By Mr. Thompson: • · . Q. Do you authorize the notary to sign your name to this deposition?

A. Yes.


PRESTON COX, By ELLA MARIE JONES,

Notary Public.

J. S. and Judy C. Thompson v. Edna C. Thompson. .75

The next witness,

JOHN WADE, being duly sworn, deposes and says :

By Mr. Thompson: _ Q. Where do you live Y .A. Campbell County, near Six Mile Bridge. Q. Do you know Mrs. Edna C. Thompson Y .A. Yes, sir. ·

Q. Do you know bir. Herman Thompson! page 75 ~ A. Yes, sir.

Q. Did you know Mr. R. D. Thompson Y A. Yes, sir. Q. Do you know Mrs. Judith C. Thompson Y A. Yes, sir. · Q. Do you recall the time when Mr. Herman Thompson

built the new store on the new highway? A. Yes. I was in West Virginia when he built it but I

came home soon Etfter that. Q.· Do you know anything about what the understanding

was between Mr. R. D. Thompson and Mrs. Judith C. Thompson and Herman with reference to the land on which this store is located Y

.A. I don't know anything about Mrs. Judith C. Thompson. 1 heard Mr. R. D. Thompson say on several occasions and on one special occasion something about it. He and I were sitting on the porch waiting for Mr. Herman Thompson to come and open up the store. He said if he had known that Mr. Herman Thompson was going to start such things as he did that he would not have let him have the place. Mr." R. D. Thompson said that he wished Herman wo~d get the deed straightened out because he was going to live always.

Q. Y vu also heard him say that if he had known Herman would act like that he would not have given him the place but that it was Herman's and he could do as he pleased with it?

A. Yes, sir. Q. You still live in that communityt A. Yes. Q. Who runs the store now?

A. Mrs. Edna C. Thompson. page 76 ~ Q. What kind of a business is she operating!

Is it successful or not t A. It seems to be successful .

. Q. Where do you live now? .A. On Mrs. Edna Thompson's place.


Q. Prior to the time that Mr. Herman Thompson and Mrs. Edna Thompson separated, were you living on the sam~ place?

A. About two and one-half years before they separated. Q. Did you ever have_ any trouble with Herman Y A. No, sir.

By Mr. Campbell: The defendants by counsel except to each of the questions and answers of this witness and move that his testimony be stricken from the record on the grounds that it is immaterial, incompetent, irrelevant and hearsay and does not tend to establish any contract between Herman Thompson and the owner of this property in question.

By Mr. Thompson: Q. Do you authorize .the notary to sign your name to this

deposition 7 A. Yes.


The next witness,

JOHN WADE, By ELLA MARIE JONES,

Notary Public.

WILL ALVIS, being duly sworn, deposes and says :

By Mr. Thompson: Q. Mr. Alvis, where do you live 7 A. I live at Appomattox.

Q. What is your business Y page 77} A. :Carpenter.

Q. Did you about the year 1926 or 1927 erect a store building for Mr. Herman ThompsonY

A. I sure did. Q. What did it cost him to erect that building Y A. I think it was $1,600.00 and a few dollars. It wasn't

much over that. Q. Who paid you 7 A. Herman- C. Thompson. He paid me all at one -time. Q. Your contract did not include the back porch and base-

ment, did itY '.A. No, sir. Q. Where is the storehouse located Y

J. S. and Judy C. Thompson v. Edna C. Thompson. 77.

A. It is just on top of the hill just the other side of Mr. Moore's filling station.

Q. Is that the same storehouse that was operated as service station and store for several years Y

A. Yes.

By Mr. ·Campbell: The defendants by counsel except to the testimony of this witness on the grounds that it is incompetent, immaterial and inadmissible and insufficient to prove any issue in this case and without waiving the said excep..: tions, but. expressly insisting thereon, proceed to cross examine this witness.

By Mr. Campbell: Q. Isn't it a fact that your contract with Herman Thomp-·

son was $900.00 instead of $1,600.007 A. No, sir.

· Q. How did he pay you Y page 78 ~ A. In currency money.

Q. Did you hav:e a written contract with him T A. No, sir. . Q. Mr. Worley has testffied that he agreed to do that for

$1,000.00 and that you took it for $900.00 or that you would do it for $900.00 and Mr. Worley would do it for $1,000.00.

By Mr. Thompson: . Q. Do you authorize the notary to sign your name to this



WILL ALVIS, By ELLA MARIE JONES,

Notary Public.

The next witness,

EDNA C. THOMPSON, being duly sworn, deposes and says:

By Mr. Jordan: · Q. I believe you are Mrs. Edna C. Thompson, the plaintiff

in this caseY · A. Yes. Q. I believe you are the wife of Herman Thompson, who is

the son of the late R. D. Thompson and of Mrs. Judith C.

78 Supreme Court of Ap~als ·of Virginia.

Thompson and is the brother of James Stafford Thompson. Is that true T

A. Yes. Q. Have you any children! '.A. Two. Q. Please state their names and ages 1 A. Vernell, a daughter, age twenty years old, and Hazel,

a daughter, age twelve years.

page 79} By Mr. Campbell: Counsel for the defendant desire to ex-cept to each and every answ:er of this

witness along the line that she now pursues but will make a special exception thereto at the conclusion of her evidence.

By Mr. Jordan: Counsel for the complainant insist that if there are any objections to this witness's testimony that they be made as the questions are asked and any objections to questions already asked be made at this time.

By Mr. Hester: In reply· to that counsel for the defendants desire to say that when the evidence is ended we will move to strike ou,t all the evidence and except to ·that that is o bj ectiona ble.

By Mr. Jordan: Counsel for the complainant reply that it is impossible for counsel for the defendants to make any exceptions to questions until the questions are propounded and counsel fail to see the point of the present. exception by counsel for the defendants unless the grounds for those exceptions are stated, which pas not been done.

By Mr. Jordan: Q. I believe your oldest daughter is married to Russell

GodseyT A. Yes. Q. How long has she been married T A. About seventeen months. Q. Are you and your husband living together? A. No, sir.

Q. When did y9u separate? page 80 ~ A. September 15, 1934.·

Q. Since your separation, where have your two children lived 1

A. With me. Q. When were you married 7 · A. June 30, 1915. Q. After your marriage, 'vhere did you liveT A. Right where I live now. Q. Please state whether or not the land on which you now

.live was formerly a part of the larger tract of land owned

J. S. and Judy C. Thompson v, Edna 0- Thompson. 79

by M:t\ :a. D. Thompson at one time and later by his wife and children? .

A. It was. Q. Was the. h.ouse in which you now live built about the

time you were married Y , A. It was built in April and May, 1915. Q. Was that land on which you live conveyed to your bus

bandY . :A. It was in 1926. Q. Do you happ.en to know whether or· not at the . time this

d~elling house was built there was any arrangement or understanding about a deed being made to the land to your husband!

A. He said. his dad give him a piece of land to build the . house on.

Q. How· far is the dwelling house that you live in from the other dwelling house in which Mr. R. D. Thompson and his family lived f

A. I don't know. It is nearly one-half a mile. It is. in· sight.

Q. At the time that you went there to live in 1915, who was running the big farm?

A. Mr.- R. D. Thompson. Q. How long did he continue to run it y·

A. Until a couple of years before he died. page 81 ~ Q. About when was thatt

A. About 1927 or 1928. I have records to show he paid some hands off in 1928. - . .

Q. You and your husband were liv~g together in 19277 A. Yes. Q. When was the new storehouse built t A. In 1927. Q. Did you happen to know anything about the arrange

ment of the building of the new store and the land on which it was built 1

A. His mother came down to the old stor~ one morning and he went out and talked to her about the place and asked if he could put the store up. They were standing back of the steps talking and when he come to dinner he said his :ina said he could have the place to put the store up. She came down to the old store after the mail. ·

Q. Did I understand correctly that you heard Mrs. Thompson say that to him Y

A. Yes, and she has told me too. Q. Did your husband build the new storehouse on the

new highway 7 A. Yes.


Q. Did he run a general store there from the time it was. built up until the time you and he separated?

A. Yes. · Q. How much land was to go with the storehouse Y

A. Herman told me around one acre. Q. Do you happen to know of your own knowledge what

the new storehouse cost Y A. I just know what Mr. Alvis told me. I heard Herman

say it cost around $2,000.00. page 82 ~ Q. Did your husband ever get a deed to the land

on which the storehouse is f . A.r No, sir. Q. Did you ever hear any conversation between Mr. R. D.

Thompson or Mrs. Judith C. Thompson regarding a deed to the IandY ·

A. I have heard both of them say they didn't see why Herman 'vouldn 't get a deed to the place. They said that was no business way to act. They said the children would come i~ and claim what he had put up there.

Q. I believe in the fall of 1934 you filed a bill asking for a divorce in the ·Circuit Court of C'ampbell County and Mr. A. S. Hester was your lawyer f

A. Yes. Q. Was any decree of divorce ever granted in that case? A. No, sir. Q. There is filed with the papers in this case a copy of

the contract entered into between you and your husband at that time for the settlement of your property rights. There was such a contract entered into between you and him at that time?

A. He deeded me the store and fixtures. and the home if I would free him and take care of the children.

Q. Have you been taking care of the children Y · A. I certainly have. Q. vVhere have you gotten the n1eans for taking care of'

yourself and children! A. At the store. Q. Have you been running the store as your own since you

and your husband separated? · A. I have.

page 83 ~ Q. Has it been successful? A. Very successful.

Q. Have you as good a trade there as your husband had there?

A. I have had better trade than the last two years he stayed there. He had a good trade at one time.

Q. I believe that an action of ejectment was instituted


against you by James ·Stafford Thompson and his mother. Is that true? . .

A. Yes, sir. Q. Had there been any negotiations between you and them

regarding the land or getting a deed to the land T . A. Well, she told me that ~he would have been glad to

give Herman a deed to the land at one time but that she wouldn't give it to him now to save his life. That was right in her own house that he shduldn't get it now if he wanted it.

Q. Who told you that? · A. Mrs. ·Thompson.

Q. State whether or not you offered them $100.00 for the IandY

A. Stafford didn't ask me for any money. We could stay there and run the store. I offered to rent to him or sell it to him. I offered him $100.00 since this come up for the land.

Q. Was that done through your. lawyer 7 A. Yes. Q. Was that offer of $100.00 made after they gave you

notice to move off the place and before the ejectment suit was started!

A. Yes. Q. Tell us, Mrs. Thompson, about any negotiations that

you had 'vith Stafford Thompson within the last few months since this matter has come up.

A. We never had any trouble until last summer page 84 ~ until they moved up yonder to the s·ervice station.

Q. Where is it Y A. On Boonsboro Road. It is Peakland Service Station. Q. What trouble 'vas it you spoke of as started? A. Theron ca.me down there drunk every week and would

come in the store and curse me for everything he could think of and dared everybody in the store out. It was no~ only one time but four or five different times. I mentioned it to Stafford about it the way Theron was doing. I asked ~Ir. Phelps what to do about it.

By Mr. Campbell: Counsel for the defendants specially except to the foregoing line of questioning and the answers thereto on the ground that they cannot possibly have anything to do with the issue involved in this case.

By Mr. Jordan: · Q. What did Stafford have to say when you complained

about the way Theron was behaving there at your storeY


A. He said you know how Theron carries on when he gets whiskey in him. That day 've put him under peace bond. I said I didn't know what to do with him.

Q. Who is Theron, is he a brother of Stafford? .A.. Yes. . Q. Does he live at the place on Boonsboro Road with Staf

ford and with Mrs. Judith C. ThompsonY .A. Yes. Q. What caused Stafford or his mother so far as you

kno'v to tell you to get off the land and out of the storehouse?

.A. I don't know. I have never had a cross word with her. I thought as much of her as anyone could think of

page 85 }- their mother-in-law. I didn't know about it until the first of .April. I got a notice from Kizer.

Q. Was he representing Stafford Y A. Yes. I handed that over to Mr. Thompson. Q. The notice told you to vacate the store the first of .April Y .A.. Yes. Q. Was that just ·after you had complained to Stafford

about the way Theron had behaved in your storeY .A. Yes. Q. As I understand it then you complained to Stafford

about his brother's conduct in ·your store and the next thing you knew about it you g·ot a notice to move out of the storehouse. Is that true Y

A. Yes. Q. Mrs. Thompson, when· the new storehouse was built,

where were Stafford and his mother living? A . .At the home place. Q. How far approximately is the home place from the new

storeY · A. A couple of hundred yards. Q. Is the new storehouse in sight of that dwelling house Y A. Yes. Q. Could you see the new store being built from the house

in which .Stafford and his mother lived Y A. Yes. You could see the top. Q. Did Stafford and his mother know that the new store

was being erected? A. Yes. Q. Have you ever had any negotiations with Stafford with

reference to selling the entire place down there? A. He asked me last summer what I would take

page 86 }- for the store and I told him I would take $1,000.00 for it. He wanted to sell the whole place. They


agreed to give it to me if they sold the place and all together. · Q. You had that agreement? -

A. Yes. Q. You spoke of McDaniel in the real estate business here. A. McDaniel from Acree & Peck. Q. Mrs. Thompson, did you know anything about the Lee

property which belonged to 1\{r. R. D. Thompson or to his wife that was conveyed to Herman?

A. It is not the Lee place. An old colored man lived on my property and lived there before the place 'vas surveyed off. It was sixty-five or one hundred acres of land. I left that house a little while after it 'vas surveyed and we asked Mr. Dick why didn't he give Herman the house where old George Lee lived. She said (Mrs. Judith Thompson) Herman didn't need that hill and she wanted to keep that house and let the colored people live in it to help her. He said he would give it to Herman to do what he wanted to with it.

Q. About what year was that? A. In 1926 when the land was cut off. Q. Was that a part of the original tract of one hundred

acres? A. Yes.

By J\IIr. Campbell: Counsel for the defendant except to the entire testimony of this witness on the grounds that it is irrelevant, immaterial, incompetent and hearsay and that it does not tend in any legal way to establish any contract that is enforceable between the owners of the property and

. Herman Thompson and clearly shows that no right page 87 ~ was ever given to Herman Thompson by which any

claim against him could be enforced by the defendants or anyone else and without waiving the said exceptions but insisting· thereon, the counsel for the defendants proceed _to cross examine the witness.

By Mr. Campbell: Q. !rfrs. Thompson, there never was any written contract

between you and Stafford Thompson Y A. No. Stafford always said his word was good as any

thing else could be. He said he was a man of his word. Q. There never was any written contract between R. D.

Thompson or Mrs. Judith C. Thompson with Herman with reference to selling or giving him this property?

A. All I heard 'vas she said she would sell it to Herman for $100.00. He never paid it. ·

Q. You offered to pay it later and she wouldn't accept it f


A. I certainly did. Q. When you had your negotiations for a settlement with

Herman you knew the property had been conveyed· to Stafford, didn't you 7

A. Yes, in 1933 it was conveyed to Stafford. Q. You knew Herman's mother had refused to make any

deed¥ A. Yes. After Herman carried on like he did she was afraid

he might marry someone else and bring them down there; someone she wouldn't like. She said Herman ran the store without a deed and I could too. And as long as I wanted it and behaved myself.

Q. As a matter of fact then in your divorce proceedings and settlement effected with Herman, Mr. Jordan was representing Herman and wasn't l\{r. Hester representing Stafford and you together Y

A. He represented me. I don't think Stafford bad· anything to do with it.

page 88 ~ Q. Did you pay Mr. Hester anything? A. No ; I-Ierman was supposed to pay Mr. Hes

ter. Q. At that time Stafford did say that the property was

his and that Herman had no right to convey anything but the stock of goods?

A,. (No answer.) Q. He stated at that time didn't he that the store and the

ground it was on belonged to him Y A. He said. he didn't see why Herman didn't get a right

to it; that that was no way to do business. Q. Did Stafford say you could stay as long as you behaved

yourself? A. Yes.

By Mr. Jordan: · Q. Have you behaved yourself while you lived there? A. Yes. Q. Did Stafford at any tim~ offer to make you a deed to

the storehouse and land Y A. He said when Herman left and he asked her to make

a deed to the place. She said no, that Herman hadn't be-haved himself. ,

Q. Do you know where Herman is now living? A. They sav he is out yonder with his mother and Staf

ford. Out at Peakland Service Station is the place. I don't know. I heard it.

By Mr. Campbell: Counsel for the defendant move the


Court to strike out all of the evidence introduced on behalf .. of the complainant on the grounds heretofore assigned and upon the further grounds that the evidence clearly shows that the title to this property is not in . Herman Thompson and

· that Herman Thompson had no right at the time page 89 ~ of the agreement between him and Edna Thomp-

son set up in this case to make any agreement with reference to this real estate. The evidence clearly shows and the exhibits filed with the bill show that the title to this property is not in Herman Thompson. The evidence further shows that years ago R. D. Thompson, to avoid losing his farm by creditors, conveyed the same to his wife and children and thereby he and all others claiming under him as a matter of law are estopped to dispute the title conveyed by him. The evidence shows that the only claim that the plaintiff has interposed to establish her right is based on hearsay testimony and on an attempt to establish a conveyance of real estate without any writing to support her contention and that upon the whole testimony of these witnesses no case has been made out giving her the relief prayed for. ·

By Mr. Jordan: Counsel for the complainant observe that the foregoing statement goes far beyond the bounds of an objection and is really an argument of the case on the part of the defendants. The counsel move that the cost of sucli extended argument be charged to the account of the defend-ants. ··

MRS. EDNA C. THOMPSON, being recalled, deposes and says :

By Mr. Jordan: Q. Mrs. Thompson, when you took over the storehouse and.

business did you find there an account book kept by your husband, Herman C. Thompson, during the time that he operated the business?

A. I found that book. It has been there all the time. Q. Please say whether or not any entries in that book show

any payments made by Mr. Herman C. Thompson for the account of his father in settlement of taxes on the farm Y

A. It does. page 90 ~ Q. Please refer to the page and entry and sho'v

it to the counsel for the defendants. A. (Passing the account book to the counsel for the de

fendants.) On page 174 there is an entry dated December 12, 1927, paid furnace taxes and the James R~ver tax.

Q. What does that mean? · A. James River tax is $64.24 and also he paid Mrs. Thomp

son's capitation tax amounting to $1.50.


Q. Is that entry made in Herman's handwriting? A. Yes. Q. Is that the account of R. D. Thompson Y A. Yes. He kept the account of the money and there is

where he paid out the money to different men. Q. Are there any other taxes paid Y A. 1928 taxes were paid. That is on page 178 (pointing

out the entry to the counsel for the defendants) and is dated December, 1928, and is for $77.92.

Q. Was that for taxes paid on the one hundred acre farm in 1928?

A. Yes. Q. Was this charged to R. D. Thompson on this bookY A. Herman kept his money for him and he got it. Q. The money was paid out by Herman and charged to

the account of his father against this $1,000.00? He paid Stafford what was left, amounting to $13.79 in 1933¥

A. Yes.

By Mr. Campbell: Q. Mrs. Thompson, this book seems to show an account

running over a good many pages, in fact from 171 through page 180, showing cash payments made to or for

page 91 } Mr. R. D. Thompson by Herman Thompson. Do I understand you to mean that all of these en

tries here show the repayment to Mr. R. D: Thompson of the $1,000.00 which Herman owned him.

A. That is the way I look at it. Q. On page 171 in 1927 he left $55.00 with him. A. On page 174 he left with H. C. Thompson $55.00. Mr.

Thompson left it with Herman and he gave him $70.00 of ·wheat money to keep for him.

Q. All that his book shows is dealing with the money that Mr. R. D. Thompson left with Herman. Is that true?

A. Yes, that is right. · Q. A.nd the payment of the taxes was the payment for

Mr. R. D. Thompson's money, wasn't it? A. Yes, sir.

By Mr. Jordan: . . . Q. Do you authorize the notary to s1gn your name to this

deposition? A. Yes. And further this deponent saith not.

EDNA C. THOMPSON, By ELLA MARIE JONES,

Notary Public.

J. S. and Judy C. Thompson v.Edna C. Thompson. 87

The next witness,

W. J. BENNETT, being duly sworn, deposes and says :

By Mr. Thompson: Q. Mr. Bennett, where do you live? A. 127 Fredonia Ave., Lynchburg, Virginia. Q. What is your business? A. I am in the real estate business.

Q. Are you acquainted with Mr. James Stafford page 92 ~ Thompson Y

A. Yes. Q. Did you ever hav:e the property in which he and his

mother are interested in near Six Mile Bridge listed with you for sale?

A. Yes. . Q. Please state when that was and what the terms were. A. The first time it was a year ago. This is the first con-

tract (producing a typewritten sheet of paper) I drew up for them.

Q. It was about a year ago. A. It was about a year ago that ~Ir. Stafford Thompson and

Mr. Jones, a brother-in-law, were in my office to list the property and I made that listing on it at the time for Mrs. Herman Thompson and Mr. Jones signed. He had a piece of property connected and they wanted to sell it all as a whole. It was in 1936. .

Q. What at that time were you given to understand, that Mrs. Edna Thompson had an interest in this property or did not have an interest in itY

A. I understood she had an interest. Q. Do you recall what provision was made in the listing

with you with reference to what was to be paid to Mrs. Thompson for her interest in the land 1

By Mr. Campbell: This question and answer is excepted to because the contract is the best evidence~

By Mr. Thompson: Q. Please answer the question. A. $1,000.00. Q. Who told. you that Mrs. Thompson was to get $1,100.00

for her interest Y page 93 ~ A. Mr. Stafford Thompson and Mr. Jones.

Q. I hand you herewith a property listing agree-


ment and ask you if that was the one prepared in your office? 'A. Yes. · Q. What became of this particular contract 7 A. The next time Mr. Jones came back in the office with

that contract it was unsigned. Q. Was the contract when it was brought back, whole as

it was when it left your place 7 A. Part of it had been taken off. Q. You refer to the part where the signature should beY A. No, the signature should be over here. Q. Did you have any conversation with Mr. Stafford

Thompson relative to why this contract was not signed and returned to you 7

A. No, sir. Q. Has this property been listed with you since that time? A. No, I can't say it was but I had sale for it since then. Q. !lave you had any conversation with Mr. Jones and Mr.

Stafford Thompson relative to a _sale qf this property since that time!

A. Yes. Q. I hand you here a property listing agreement which is

dated April 6, 1937, and ask you if this agreement was made out in accordance with the instructions of Mr. James Stafford Thompson?

A. Yes. Q. I note at the bottom of this property listing agreement

this statement-''!, Edna C. Thompson, agree to the following terms and conditions. I now own and operate. a store build

ing on the above property and agree to sell my page 94 }·store building, also my interest in said land which

the store and other buildings are now on for the sum of $1,000.00 and agree to pay to Bennett-Crouch Company 10% commission on the said sale. Also agree to vacate the said property in thirty days from the date of this sale.'' Was this notation made on this property listing agreement at the request of Mr. James Stafford Thompson?

A. I went out to see him after I got the offer on the property and I told him about it and he agreed to accept $3,100.00 for his interest in that property and to pay me 10%. H~ also stated if Mrs. Edna Thompson would agree to sell her interest in the store and vacate and if I would get her to sign it, he would sign it. The next morning I went down and got her to sign the paper and went back to see Mr. Stafford Thompson and he refused to sign it.

Q. Why did he refuse to sign. it? Did he give you any reason at that time for refusing to sign it Y

A. I don't think he gave any particular reason. He just

. I

'


refused to sign the contract. He· said he decided not to sell. Q. I will ask you if you will :file this first property listing

agreement marked "Exhibit 1-W. J. B .. " Y A. I do.

By Mr. Campbell: Q. Mr. Bennett, Exhibit 2 appears to be j.n the form of a

contract dated April 6, 1937. You· had your first conversation with reference to this contract with Mr.' Stafford Thompson!

A. Yes. Q. Then you :fixed up an agreement and took it down to

Edna C. Thompson and then you brought it back with her signature on it and Mr. Thompson refused to sign

page 95 ~ it? A. Yes.

Q. Did Stafford tell you that he would take $3,100.00 for that property for his interest Y

A. Yes. Q. He didn't tell you Edna had any interest in it. A. He-Q. He told you he would take $2,700.00 net to him and that

if it brought any more than that Edna could have it Y A. No, he didn't tell me that. He just told me to get her

to agree to sell her interest in it. I could sell it for $4,100.00. Q. Then you made a contract with him and undertook to

make it with her for $3,100.00 Y A. $4,100.00. Q. As far as he was concerned it was $3,100.007 A. Yes Q. Mr. Stafford Thompson never did sign any such con-

tract¥ A. No, sir. Q. He never did sign the other one f A. No, sir. · Q. I notice that part of the first exhibit is torn off. Do

you know what was torn off! A. I don't remember what that part was. It was brought

back with that part torn off. I just filed it. Q. Did it have any such thing on it as an interest of Edna

C. Thompson 7 A. Yes. Q. Was that what was torn o:ffY A. I don't know.

Q. Take the two contracts and look at them to-page 96} gether and see. '

A. I can't recall the wording. I do recall this


though. There was something for Mrs. Edna Thompson to sign and something for Stafford to sign and Mr. Jones, and that part of it is torn off.

Q. There is nothing on it about Mrs. Thompson now~ A. It was on there when it left my office. Q. When it was brought back it was torn off and he refused

to sign itY · A. Mr. Jones brought it back to. the office and said Mrs.

Edna Thompson refused to sign it and to go ahead and sell their houses if I could.

Q. There is a dwelling house and a building on this original Thompson property. w·as that included in the sale?

.A. Twenty acres, dwelling house and storehouse. Q. There is a dwelling house that had been deeded to Her

man C. Thompson. Was that included? A. No, that is down near the river. This is the home place. Q. That included was the Thompson place and Mr. Jones'

place? A. Yes. This torn one says that. Q. Of course you don't know anything about the title to this

property? A. Nothing in the world. Q. How long was it between the time you went to Stafford

about this last proposed sale and the time that he refused to sign it?

A. I would say eighteen or twenty hours. I was out there one night between 11 :00 and 12 :00 and next morning went down and got Mrs. Thompson's signature and went back to see him about 5 :00 the following day.

Q. Do you contend he changed his mind from page 97 r one night to the next morning?

A. I don't know. Q. Why couldn't you get him to sign it that night? A. He said he would sign it if she would. . Q. The next morning· she signed it and he ·wouldn't sign it Y A. Yes. Q. You didn't pay him anything for it? A. No, sir.

By Mr. Thompson: Q. Who was with you when you went out there on April

5th to talk to 1\tir. Stafford Thompson? A. Dr. I{ing was with me. Q. Was he with you on the following afternoon! A. No, sir.

,

:.J. S. and Judy C. Thompson v. Edna C. Thompson. 91

Q. Do you authorize the notary to sign your name to this deposition Y

A. Yes. ·


The next witness,

W. J. BENNETT, By ELLA MARIE JONES,

Notary Public.

T. J. IITNG, being duly sworn, deposes and says :

By Mr. Thompson: Q. Dr. King, where do you live? A. No. 127 Fredonia Avenue, this city. Q. Did you go with l{r. Bennett out to the filling station

on Boonsboro Road early during the month of April when he had a conversation there relative to a sale of a piece of

property down about Six Mile Bridge. page 98 ~ A. I went with him and heard the conversation

about the sale of the property. Q. Would you recall the man he had the conversation withY A. Yes. He is over there. Q. Dr. King, will you just in your own way tell 'vhat the

conversation was between Mr. Bennett and Mr. Thompson that night?

A. They did quite a bit of talking about the sale of the property and finally agreed if someone, some other party, would accept $1,000.00 that ~{r. Thompson would be willing to accept $3,100.00 for this piece of property and Mr. Bennett asked him if he would sign the contract right then and he said if she would sign it to bring it back and he would be willing to sign the contract.

By Mr. Campbell: Q. Of course you didn't know that there was a dispute as

to the rights between the parties. A. I didn't know a thing in the world about it. I just

happened to be along. Q. Mr. Thompson here was the gentleman Y A. Yes. Q. Did he tell Mr. Bennett that he was willing to take


$2,700.00 for what he owned and net hi;m $2,700.00 and all over that the other party could have? '

A. He said all he wanted was to net him $2, 700.00.. But he eaid to sell it for $3,100.00 and deduct the commission for selling it.

Q. And so you didn't know what the paper was that Bennett had over there Y

A. He ha.d some paper. I wasn't that close to him. Q. You don't know? .

A. No, sir page 99 ~ Q. Did the transaction take place in the carY

A. It took place in the filling station. Q. Where were you Y · A. Mr. Thompson was behind the counter and Mr. Bennett

and I were on the other side. Mr. Bennett showed him a paper. I don't know what it was.

By Mr. Campbell: Counsel for the defendants except to the testimony of W. J. Bennett and of Dr. King and move that the same be stricken from the record because it is immaterial, irrelevant and further for the reason that the contract to sell the land cannot be set up by any such parol testimony.


deposition t A. Yes.


T. J. KING, By ELLA MARIE JONES,

Notary Public.

EDNA C. THOMPSON, the witness, being recalled, deposes and says: ,

By Mr. Jordan: Q. Mrs. Thompson, you have been running the business

in this storehouse for about two and one-half years I believe you told us this morning Y

A. Yes. Q. Can you tell us what profits you have made from this

business during this period Y How much per year? A. About $800.00 or $900.00.

J. S .. and Judy C. Thompson v. Edna C. Thompson. 93

Q. Is the profit that comes out of the business page 100 ~ in the way of cash?

A. Yes, it is cash. Q. Do you or don't you get your living for yourself and

faniily out of the storeY A. Most of it. A few things I get in town. Q. About how much in the way of merchandise per month

do you take out of the stock of goods for your family to live on?

A. Between $20.00 and $25.00. Q. Is that item of goods that you take out amounting to

$20.00 or $25.00 included in the $800.00 or $900.00 that you get out of it Y

A. Yes. Q. Do you get $800.00 or $900.00 and your living out of

the storeY A. I get that and most of it is the board. I get very few

clothes. . Q. You told us that you got $800.00 or $900.00 profits.

You told us also that you took some $20.00 or $25.00 a month out in goods. Is the $20.00 or $25.00 per month in addition to the $800.00 or $900.00 or is that included in the $800.00 or $900.00?

A. After I :figure up what I take in every month then I take my ~ocery bill off of that.

By Mr. Campbell: The counsel for the defendants make the same exception to her evidence that we made before.

By Mr. Jordan: Q. Do you authorize the notary to sign your name to this



· EDNA C. THOMPSON, By ELLA MARIE JONES, N. P.

page 101 } State of Virginia, City of Lynchburg, to-wit:

I Ella Marie Jones, a Notary Public in and for the city and State aforesaid, do hereby certify that the foregoing depositions were duly taken, reduced to writing, and signed by the witnesses, respectively, before me, at the plac~ and time therein mentioned, pursuant to the annexed notice.

94 · .Supreme Court of Appeals of Virginia

In witness whereof I have hereunto set my hand at Lynchburg, Virginia, this 27th day of May, 1937.


Amount due Ella Marie Jones, Notary Public:

To cost of depositions To notary's fees

Total

Paid by the complainant, Edna C. Thompson.

21.00 3.00 .

24.00

ELLA MARIE JONES, N. P.

page 102 ~ ''EXHIBIT 1-W. J. BENNETT.

Listing No. 92.

Property Listing Agreement

-,vith

BENNETT-CROUCH CO.

Lynchburg, Va.

No. Acres, 20 plus 1. Price, $3,900.00 plus 3,200. Owner's Full Name, J. S. Thompson & B. M. Jones. Phone

No ...... . o,vner's full Address, Lynchburg, Va., R. F. D. 3. Miles

from Lynchburg 4:lh. Location. County? Campbell. State, Virginia.

(County) On (State) Highway. No'v near improved highway? On

Macadam, Yes. Nearest village f Six ~Iile Bridge. Distance in Feet high-

way frontage, 2,000. · Name R. R. depot, James River. Distance, lh lVI. Suitable

for Rd. Stand, yes. Nearest Large City? Lynchburg. Distance, 4% J\L Dis.

to motor bus? on. Give names, distance nearest lake, etc., James River, Rock

Tavern Swim Pool. Nearest Store, on the place. Creamery? 4lh. Cannery?

. . . . . . Dis. to School, 6 M.

· J. S. and Judy C. Thompson v. Edna C. Thompson. 95

Children carries to school? yes. Den.· of nearest church, Epis. & Meth.

Farm. Total acres 1 20. No. acres tillable Y 15. Fields level or rolling, Rolling. · Character of soil? red

& gray. Raised what crops? Tobacco, wheat, corn, hay and vege

tables. No.· acres in pasture, 5. How is pasture watered? Creeks

& branches. Wild Game? Rabbits, birds, turkeys & quail. No. acres woodland? No. Estimate No. cords wood, 128

cu. ft. Y • • • • • • l{inds ..... . Estimate No. ft. saw timber . . . . . . Kinds Y • • • • • • Price

per MY ••..•• Distance to sawmill? . . . . . . Water power available on

farm f •.••.. Fruit. No. Apple trees? . . . . . . Pears Y • • • • • • Peaches'

. . . . . . . Cherries 7 . . • • • . • Plums . . . . . . . Grapes ...... . Family orchard.

1 hous~ 6 rooms & bath Bungalo,v. House. Occupied by 1 yes. No. Stories, 2. No. rooms Y 7.

Gen. Condition, good. Brick, frame? both frame. Roofed withY B. with comp.

Color, Painted Ivory. Good cellar Y • • • • • • shingles, other house with tin. House foundation of Brick, concrete. .Any hardwood floors,

B-yes. How heated, stoves .. Size piazzas or porches Y yes. Water Supply: Well Y .... :. Spring . . . . . . . . Gravity

. . . . . . How lighted, Electricity. Bath, yes. Tiled . . . . . . Electricity available T yes. Tele

phone? Yes. Fireplace, yes. Water system in Bungalow, available for

other house. Value? $9,000.00. How OldY Bung. 8 yrs. old, other 30 yrs. N arne large shade trees, Popular & Locust. House on hill top, Yes. Barn. Cattle, yes. Horse, yes. No. co,v·ties, 6. Silo ..... .

Tobacco, 2. Garage for 4 cars. Size and condition of all other build-

ings? ..... . Poultry Hquse, yes. No. Hens Capacity, 75. Buildings

Ins. for, $4,000.00. Taxes last year, $75.00. Amount Mortgage, $2,500.00. Can Mortgage remain, yes. Rate of interest, 5%. In

present family since built. Price, $7,100.00. Possession how soon .•••.•.


Remarks: 1 acre; Bungalow, 6 rooms & bath, Lights, Double garage. 20 acres, 7 room house, store building, 2 tobacco barns.

page 103 r Lynchburg, Va., ............ , 1937.

TO BENNETT-CROUCH CO.

In consideration of your listing for sale and endeavoring to sell the real estate described on the reverse side hereof, I hereby authorize ¥ou to sell same at the price of ......... . Terms . . . . . . . . . . . . . . . . . . . Deferred payments to bear 6% interest and be secured by a deed of trust upon the prop-erty; and I further grant you the sole and exclusive right to sell said property for a term of ............ from date, and

. thereafter as a non-exclusive agency, until I notify you said property has been sold, or until I shall have given you fifteen days' written notice of the withdrawal of the property. But this notice ·shall be void and the contract in full force should I within six months after 'vithdrawal of the property frmn your hands, sell same to any one whom you have interested, or whose attention as a purchaser was called to said property as a result of your services prior to this notice. of withdrawal.

Upon your securing a purchaser, ready and willing to buy said property as said price· and terms, or any other price and terms 'vhich I may hereafter accept or agree to accept, I agree to pay' you a commission on the gross price at which the same is sold or exchanged for other property of ten per cent ................. and convey or cause to be conveyed with good title by general warranty of deed, said property to any purchaser designated by you.

The undersigned further agrees not to give to any one during the term of this contract a better price or terms than given you, and agrees to assist and co-operate with you in the sale of said property. ·

WITNESS MY hand and seal this ..... day of ........... , 19 ..

(L. S.)

By ...... • ........................ .

·Accepted:

BENNETT-CROUCH CO., By ................................ .


·page 104 ~ ''EXHIBIT 2-. W. J. BENNETT.''

Listing Property Listing Agreement No. B-1.

with

BENNETT-CROUCH CO.

Lynchburg, Va.

No. Acres, 20 more or less. Price, $3,100.00. Owner's Full N arne, J. S. Thompson. Phone No. 1597. Owner's full Address, Peakland, Bonesboro Rd. Miles from

Lynchburg ..... . Location. County? Campbell. State, Virginia.

(County) On (State) Highway. Now near improved highway! on.

Macadam, yes. Nearest village? Concord. Distance, 6 m. Feet highway'

frontage ...... . N arne R. R. depot, Lynchburg. Distance, 3 · m. Suitable

for Rd. Stand, yes, is. Nearest Large City? Lynchburg. Distance, 3 m. Dis. to

motor busY on. Give names, dist~nce nearest lake, etc., James R. on. Nearest Store, at. Creamery? . . . . . . CanneryY ..... .

Dis. to School, 6 m. Children carries to school? yes. Den. of nearest church

Farm. Total acres? 20. No. acres tillable? ..... . Fields level or rolling, both. Character of soil Y ..... . Raised what crops? . . . . . . · N:o. acres in pasture ...... How is pasture watered Y ..... . Wild Game? . . . . . . . . . . . . . . · No. acres woodland? ...... Estimate No. cords wood, 128

cu. ft. Y . . . . . . Kinds . . . . .. Estimate No. ft. saw timber . . . . . . IGnds Y • • • • • • Price

per MY ..... . Distance to sawmill? . . . . . . Water power available on

farm Y ..... . Fruit. ·No. Apple trees Y yes. Pears Y yes. Peaches Y yes.

Cherries? yes .. Plums . . . . . . Grapes ..... . House. Occupied by? yes. No. Stories, 2. No. rooms? 7.

Gen. Condition, fair. Brick, frame? frame. Roofed with? metal. ·color, Painted. Good cellar ? • • • • • • • • • • • •••• House foundation of . ... . . . Any hardwood floors


How heated . . . . . . Size piazza.S or porches Y ..... . Water Supply: Well? well. Spring . . . . . . Gravity ...... .

How lighted ..... . Bath . . . . . . Tiled . . .. . . . Electricity available? yes. Tele-

phone! yes. Fireplace .................. . Value? . . . . . . How Old? ..... . Name large shade trees, yes. House on hill top .......... . Barn. Cattle, yes. Horse, yes. No. cow ties . . . . . . Silo

. . . . . . Tobacco, 2. Garage for ...... cars. Size and condition of all other

buildings Y store and necessary outbuildings. Poultry House . . . . . . No. Hens Capacity . . . . . . Build-

ings Ins. for, $ ....... . Taxes last year . . . . . . Amount Mortgage ..... . Can Mortgage remain . . . . . . Rate of interest . . . . . . In

present family since ..... · ... Price, $3,100.00. Possession how soon, thirty days. Remarks: I, Edna C. Thompson agree to the following

terms and conditions. I now own and operate a store building on the above property, and agree to sell my store building also my interest in said land which the store & other buildings are now on for the sum of ONE THOUSAND DOLLARS ( $1,000.00) and agree to pay the Bennett-Crouch Co. a 10% commission on sa.id sale. Also agree to vacate the said property in thirty days from date of sale.

EDNA C. THOMPSON. (Seal)

page 105 }- Lynchburg, Va., April 6, 1937.

TO BENNETT-CROUCH CO.

In consideration of your listing for sale and endeavoring to sell the real estate described on the reverse side hereof, I hereby authorize you to sell same at the price of $3,100.00. Terms . . . . . . . . . . . . . . . . . . . . Deferred payments to bear 6% interest and be secured by a deed of trust upon the property; and I further grant you the sole and exclusive right to sell said property for a term of Sixty days from date, and thereafter as a non-exclusive agency, until I notify you said prop-erty has been sold, or until I shall have given you fifteen ( days' written notice of the withdra:wal of the property. But i

this notice shall be void and the contract in full force should I within six· months after withdrawal of the property from your hands, sell same to any one whom you have interested,·

\


or whose attention as a purchaser was called to said property as a result of your services prior to this notice of .withdrawal.

Upon your securing a purchaser, ready and willing to buy said property as said price arid terms, or any other price and terms which I may hereafter accept or agree to accept, I agree to pay you a commission on the gross price at which the same is sold or exchanged for other property of ten per cent commission and convey or cause to be conveyed with good title by general warranty of deed, said property to any purchaser designated by you.

The undersigned furt11er agrees not to give to any one during the term of this contract a better price or terms than given you, and agrees to assist and co-operate 'vith you in the sale of said property:

WITNESS MY hand and seal this ...... day of .......... . 19 ..

. ........................ (L. S.) ............................

By . . . . . .. • ...................... .

Accepted:

BENNETT-CROUCH CO., By . . . . . ......................... .

page 106 r Virginia:

In the Circuit Court of the County o{ Campbell, June 2nd, 1937.


James Stafford Thompson and Judith C. Thompson (also known as Judy C. Thompson), Defendants.

Depositions of Mrs. Bernice Jones and others taken on the 2nd day of June, 1937, between the hours of 9:00 A. M. and 6:00 P. ~I., at the office of A. S. Hester, Krise Building, Lynchburg, Virginia,. by col!-sent o.f parties, notice. of t~e taking of said depositions being wa1ved, to be read In eVIdence on behalf of the defendants in that certain suit in equity pending in the Circuit Court of the County of Campbell, Virginia, wherein Edna C. Thompson is complainant and James Stafford Thompson and Judith C. Thompson are defendants.

100 .Supreme Court of Appeais of Virginia.

Present for Complainant: S. J. Thompson and W. H. J orda.n and Mrs: Edna C. Thompson in person.

Present for Defendants : A. S. Hester and B. B. Campbell and the defendants in person.

Note: Without waiving the exceptions taken by the defendants to the insufficiency' and otherwise inadmissibility of the testimony heretofore taken on behalf of the plaintiff, the defendants, by counsel, proceed to examine witnesses. · ·

. MRS. BERNICE JONES, a witness of lawful age, being first duly sworn, deposes as follows:

page 107 r DIRECT EXAMINATION.

By Mr. Hester : . Q. Mrs. Jones, where do you live and what is your age? A. I live on Cabell Street now in Lynchburg and my age is

thirty -seven. Q. What relation are you to any of these parties¥ A. I am not any relation to them at all. Q. You are kin to them, aren't you? You are the daughter

of Mrs. Thompson? A. I am a daughter of Mrs. Thompson, of course, and sister

to Stafford and Herman Thompson. Q. Do you know this store in dispute down at Six Mile

Bridge where Herman built down there? A. Yes, sir, I do. Q. Do you know Mrs. Edna C. Thompson? A. I do. Q. Do you remember about the time she and her husband

separated Y · A. I do. Q. Do you know anything about the settlement that was

made between them? Do you know anything about the terms of the settlement or anything of that kind of your own knowledge?

A. No, I do not, more than I have heard it. Q. Did you ever heard Mrs. Edna C. Thompson make any

statement as to what she was getting¥ A. I certainlv have. Q. Please state what that was. A. She said she was getting the stock and fixtures of the

store and of course he left her his home place. Q. And she got the home place?

(

J. S. and Judy C. Thompson v. Edna C. Thomps~n. 101

A. Yes, sir. page 108 }- Q. Did she state at the time she was getting it

whether she was getting the store or any part of the store?

A. She said she wasn't getting the store.

By Mr. Jordan: Counsel for the plaintiff objects to the foregoing question, or line of questioning, on the ground that the contract entered in between Herman C. Thompson and the complainant is the best evidence of what the complainant was actually getting under the contract and the contract is in evidence in this case.

By Mr. Hester: In reply, counsel for the defendants desire to submit that the contract does not deal with the question that is now before this Court and therefore it is not the best evidence because Mrs. Edna C. Thompson knew at the time that she was not getting any title or interest in the store because her husband, Herman C. Thompson, had none.

Q. How many times did you hear Mrs. Edna C. Thompson say that she did not get any interest in the store but only got the stock of goods and the :fixtures Y

By Mr. Jordan: Same objection.

A. I don't recall exactly how many times but I know it was quite a number of times I heard her say it. I would say a dozen or more times at least. Of course, I was living down there at the time up on the hill from her.

Q. About how far from her? A. Right close to Mama there. Q. About how far was that Y A. I imagine about a block or maybe a couple of blocks like

our city blocks run. · page 109 } Q. Do you know anything about whether Mrs.

_ Edna C. Thompson tried to get her mother-in-law to make a deed to the property of your own knowledge f I don't mean from what your mother said but from what Mrs. Edna C. Thompson said, or of your own knowledge.

A. No, I believe not.

By Mr. Thompson: Counsel for the complainant moves to strike t~e evidence of this witness on the ground that it is immaterial, irrelevant and not admissible in this case for the reason that the evidence covered by this witness is embraced in the contract between the parties, which is the best evidence;


By Mr. Hester: Q. Mrs. Jones, are you willing for the Notary to sign your

name to your deposition when it is written out Y A. Yes, sir.


MRS. BERNICE JONES, Deponent.

By C. R. McCARTHY, Notary Public.

BOOKER DRINKARD, a witness of lawful age, being first duly sworn, deposes as follows:

DIRECT EXAMINATION.

By Mr. Hester: - Q. Mr. Drinkard, I believe you testified the other day for the complainant, Mrs. Edna C. Thompson Y

A. Well, yes, sir. Q. Now, I want to ask you this question: Did you go with

anyone to see Mrs. Judith C. Thompson about getting her to sign a deed to the store before or· about the time

page 110 ~ it was settled between Herman C. Thompson and wife?

A. Well, I was up there. Q. Up where? A. Up at Mrs. Thompson's house. Stafford come after me

to go up there and I went up there with Frank Woodall and she asked me if I was all right. I was sick at the time. Anyhow, he took the paper and went in the house for her to sign it, you know, and she said she wouldn't sign it; that Herman run it without a deed and Edna could too,-that she could do the same or something of the kind. I don't remember exactly.

Q. Did you hear Mrs. Thompson make that remark or was tha.t what somebody said Y

A. That was what Mr. Woodall told the lawyer when he came back with the papers?

Q. What lawyer Y A. Mr. Jordan, I think. Q. Mr. W. H. Jordan? A. Yes, sir. · - . Q. Was Mrs. Edna C. Thompson present when that state-

ment was made? A. Yes, sir, she was there on the porch.


Q. Was she informed at that time that she was getting nothing but the stock of goods and the fixtures in the storeY

A. I reckon she was. I don't remember about that.

CROSS EXAMINATION.

By Mr. Jordan: Q. As I understand it, Mr. Drinkard, you say Stafford came

after you¥ A. Yes, sir.

Q. ·To go with him where Y page 111. ~ A. Up to the house.

Q. Up to his mother's homeY A. Yes, sir. Q. And who went up there with you and Stafford Y A. Nobody but us. Mr. Woodall was there and carried the

paper in the house to Mrs. Thompson. Me and him went on up the hill together. It ain't but a little ways.

Q. You didn't go in the house yourself Y A. No, I didn't go in the house. I was sitting on the front

porch. Q. You didn't hear any statement made by Mrs. Judith C.

Thompson at that timeT A. No, sir. Q. You say Mrs. Edna C. Thompson was present when some

statement was made. What statement was that and where was it made?

A. I think she made it on the porch. I mean I think she was on the porch when Frank came back with the papers and told her she wouldn't sign it; that Herman run it without a deed and she could too. That is the way I understood it.

Q. All that is what Mr. Woodall told you? A. Yes. Q. 1\fr. Woodall is the one who went in the house to see

Mrs. Judith Thompson? · A. Yes, sir. Q. And none of the rest of you went in to see her Y A. Stafford might have been with him. It has been so long

ago. Q. Did Mrs. Edna C .. Thompson go in the house? A. She might have. I say she might have went in the

house. I couldn't say for certain, it has been so long.

page 112 ~ Note : Counsel for the complainant moves to strike out the testimony of this witness on the

ground that it is incompetent, irrelevant and is entirely hearsay.


RE-DIRECT EXAMINATION.

By Mr. Hester: ·Q. You do know that Mrs. Edna C. Thompson knew that

Mrs. Thompson and them weren't· signing any deed Y A. I don't know. I guess she did. ·

By Mr. Jordan: Same objection.

By Mr. Hester: Q. Was Mr. Frank Woodall talking to her T .A. He was talking to all of us. Q. .And she could hear it as well as the rest of you 1 .A. Yes, sir. Q. Who is Frank Woodall Y .A. Mrs. Judith Thompson's son-in-law.

RE-CROSS EXAMINATION.

By Mr~ Jordan:

Note: Without waiving objections heretofore made to this witness' testimony counsel for the complainant proceeds to further examine him.

Q. Mr. Drinkard, you stated that Stafford came after you and got you to go up to ~Irs. Judith Thompson's home with him on this occasion Y

A. Yes, sir. Q. Was Stafford trying to get his mother to sign the deed

in question Y A. I don't know. I didn't hear any conversation like that

. I don't know what it was. He just come after me page 113 ~ to go up there and wanted me to be up there when

they straightened up the thing some way or the other.

Q. Did Stafford or Mr. Woodall or any of them have a deed with them ready for her signature Y

.A. They had a paper. I reckon it was ready. Q. Did you read the paperY A. No, sir. I don't know whether it was an agreement

paper or what it was. It was something he wanted Mrs. Thompson to sign and .she wouldn't sign it. ·

By Mr. Hester: -Q . .Are you willing for the Notary to sign your name to your

depositions when it is written out.

J. _S., and Judy C. Thom;r>son v. Edna C. Thompson. 105

A. Yes, sir.


BOOKER DRINKARD, Deponent.


D. -A. FERGUSON, a witness of lawful age, being first duly sworn, deposes as follows: ·

DIRECT EXAMINATION.

By Mr. Hester: Q. Mr. Ferguson, how old are you Y A. Twenty-two. ' Q. Where do you live Y A. Six Mile Bridge. Q. What do you do? A. Work on a farm down there. . Q. Are you acquainted With Mrs .. Judith C. Thompson and

Stafford Thompson and Edna C. Thompson Y page 114 ~ A. Yes, sir.

Q. How long have you been knowing them Y A. I have been knowing Mr. Thompson every -bit of ten

years. . Q. How long have you been knowing the other two Y A. Well, I have been well acquainted with them for some

time-going on six years now. · Q. You know Mrs. Edna C. Thompson Y A. Yes, sir. . . Q. Do you ~ow the store that the business is being trans

acted in down there by 1\lrs. Edna C. Thompson now Y A. Yes, sir. Q. That was the store where Mr. Herman C. Thompson used

to do business Y A. Yes, sir. Q. Do you know anything about the time of the. separation

between Mr. Herman Thompson and Mrs. Edna Thompson? A. Yes, sir. . Q. You were not present nor had any personal knowledge

of the transaction between them Y . . . A. No, sir.


Q. Did you ever have a conversation with Mrs. Edna C. Thompson. ·

A. Not exactly. I was around in the store talking to her. I stayed around the store a lot.

Q. You stayed in the store-worked there? A. No, I would just go around there and sit around there

sometimes. Q. Did you ever hear her make a statement-in your presence

about what she got or owned as a result of the settlement from her husband Y

page 115 ~ A. Yes, sir. She said the only thing she got that he left. her was the stock and the fixtures.

Q. What do you mean by the stock and fixtures, the stock of goods?

A. Yes, sir. Q. Did you hear her say anything about the building or the

house? A. N 6 more than she said the building didn't belong to her;

that all he left her was the stock and :fixtures in the place. Q. Did you hear her make that statement several times? A. Yes, sir, I was sitting around there and heard her make

it several times. · Q. Were you out at the Peakland Filling Station where Mr.

Thompson is conducting a filling .station or was staying when Mr. Bennett and Dr. King came thereY

A. Yes, sir. Q. Will you please, in your own way, tell what was said

there by Mr. Bennett Y A. Well, I wasn't real close by them and I really don't

hardly know what he said, but he was talking about the contract or something like that.

Q. Did he have a contract 7 A. No, sir. Q. Did he produce a contract Y A. No, sir, he never showed the contract at all. Q. You know he didn't show him any paper and Mr. Thomp

son didn't sign any paper? A. I know he didn't show him any paper at all. Q. If he had a contract he didn't produce it to ask hin1

·to sign itf A. No, sir.

page 116} CROSS EXAMINATION.

By Mr. Thompson: Q. Mr. Ferguson, you live down close to Six Mile Bridge,

don't youY

I

J. S. and· Judy C. Thompson v. Edna C. Thompson. 107

A. Yes, sir:. Q. You are the same Mr. Ferguson Mrs. Thompson had to

get. the officers to get you to stay away from her place Y A. Yes, sir. Q. These statements that she made that you have men-

tioned-when were they made Y A. About the fixtures. Q. The fixtures, store and so forth Y A. I don't know exactly the time but right after Mr. Her-

man left there. Q. Who 'vas present T A. Well, Mr. ''Jigger'' Thompson, he was there. Q. The one they call Theron T A. Yes, sir. Q. You didn't hear the statements between ~Ir. Bennett

and Mr. Thompson Y A. No, sir, but he never did show the contract at all. He

never did sign it. Q. Were you working out there at that time? A. Yes, sir. Q. For Mr. Thompson Y A. Yes, sir, I was working there for Mr. Thompson at the

time. Q. Are you still working for him 7 A. No, sir, I left right after that. Q. You left right after that Y A. Yes, sir. . _

Q. Were you in the filling station or outside Y page 117 ~ A. In the filling station.

Q. How close were you to them Y A. Right over the counter from them, behind the counter. Q. About what distance? A. Oh, about as far as across this table (about 6 feet). Q. Who was on the same side of the counter with you Y A. Wasn't anybody. Q. You were over behind the counter Y A. Yes, sir. Q. And Mr. Stafford Thomp~on and Mr. Bennett and Dr.

IGng were over on the other s1de Y A. Yes, sir. Q. And if Dr. King sa.ys that he saw a contract there he is

mistake. Is that right Y A. Yes, sir.

Note: Counsel for the complainant moves to strike the evidence of this witness so far as it relates to statements made by Mrs. Edna C. Thompson relative to the provisions of the

108 Supreme .Co~rt of 'Appeals of Virginia.

contract between herself and Herman C. Thompson on the ground that it violates the best evidence rule, the contract itself being the best evidence of the understanding between the parties.

By Mr. Hester: Q. Are you willing for the Notary to sign your name to

your deposition when it- is written out f · A. Yes, sir.


D. A. FERGUSON, Deponent.


page 118 ~ B. M. JONES, a witness of lawful age, being :fir~t duly sworn,

deposes as follows:

DffiECT EXAMINATION.

By Mr. Hester: Q. Are you the husband of Mrs. Bernice Jones . .A. Yes, sir. Q. How old are you Y A. Forty-two. . Q. What business are you in Y A. Shoe Worker. Q. Where do you live nowf A. Cabell Street. Q. What relation are you to the parties to this suit, to Mrs.

Judith C. Thompson and Stafford Thompson and Mrs. Edna C. Thompson Y ,

A. Mrs. Judith. Thompson is my wife's mother. Stafford is my wife's brother and Mrs. Edna Thompson is my wife's brother's wife.

Q. Now, do you know anything about the settlement or transaction that took place about the deed to this place from Mrs. Judith C. Thompson to Herman C. Thompson Y

A. The home place f · Q. Yes. · A. The title to my property was transferred at the same

time. There was a flaw in the title to that due to the fact that Theron Thompson's hadn't signed the original deed from the children. conveying the property to Mrs. Thompson and


this thing was overlooked and when I bought my lot from them I had a house put up on it and got a loan from the building and loan people and they found this flaw in it. Then I had to go ·to West Virginia and look up Theron Thompson and get him to sign this deed and at the same time sign a quit claiin deed to Herman's place, 4~ acres and his home

place and an old store building. page 119 ~ Q. What I am trying to get at now is the new

. store house. Do you know anything about that 1 A. That wasn't put up until after that. Q. It wasn't put up until afteJ; thatY A. No, sir. Q. Now, do you know anything about Herman C. Thompson

having any contract with his mother or anything about that house 7 Do you know anything about a thing of that kind?

A. No, sir. · Q. Were you present at any time when Mrs. Edna C.

Thompson-just about the time of the settlement between her and Herman C. Thompson-made a statement about what she was getting Y

A. I wasn't present when they had the settlement. I just heard it mentioned there at home when we were all together talking about it. .

· Q. Did you hear ~irs. Edna C. Thompson make any statement about itY

A. I heard her say what she got; that she got the home place and the stock and fixtures in the store.

-Q. Did she say she got any interest in the storehouse or anything of the kind?

A. No, sir, she didn't get that unless Mrs. Thompson would agree to stay there, which she agreed to do.

Q. Do I understand you to say she kne'v at the time she 'vasn't getting anything except the stock of goods and the :fixtures in the storeY

A. That and the home place. Q. The home place of 4.9 acres Y A. That is my understanding of it. Q. And that is ·what she said Y · ·

A. That is wliat I understood her to say. page 120 ~ Q. Now, where you present out here on the tirst

night 'vhen Mr. Bennett and Dr. King came to the Peakland place Y

A. No, sir.- . Q. Were you there the next night when they brought a

contract there signed by Mrs. Edna C. Thompson for Mr. Stafford Thompson to sign Y

A. Yes, sir.


Q. State what was said there at that time. A. Mr. Bennett came out there with the contract signed by

Mrs. Thompson saying he had a buyer for this about twenty acres of land and the home place down there and the store building.

Q. Where did he say the man was Y A. He said he was down at the Virginian Hotel. Q. Did he give his name Y A. No, he wouldn't give his name and he wanted Stafford

to sign this contract which was written in such a way that he wouldn't sign it and we talked to Mr. Bennett and told him that there was some controversy about that place and that she had no right to that place no longer than Mrs. Judith Thompson wanted her to stay there ; that she had no legal right to it, and this statement "you have got here" we told him, "says she has or claims the land and buildings. Now, if you have got a buyer for the place bring him out here or get him to sign an offer for the place''. ].fir. Bennett said he wouldn't do it. He said, ''Well, I don't think you have got a buyer". Mr:Bennett said if he didn't get the paper signed that he was going to sell him another place and he told him he better sell him another place because it wasn't no way to handle it the way he wa.nted it handled.

Q. That was Stafford talking to Mr. Bennett? · page 121 ~ A. Stafford and I both were talking to him.

Q. Who else was talking Y A. Theron was present, I think. I don't know whether

anybody else was around or not. I don't think so. · Q. Who was with Mr. Bennett at that time Y A. No one that I can recall.

By Mr. Thompson: Counsel for the complainant moves to strike out the evidence of this witness so far as it relates to any statements made by ~Irs. Edna C. Thompson relative to the contract between herself and Herman C. Thompson on the ground that it violates the best evidence rule, the contract between the parties. being the best evidence obtainable is filed with the papers in this cause; and without waiving this objection, or any other objection that ma.y be made, counsel for complainant proceeds to question the witness.

CROSS EXAMINATION.

By Mr. Thompson: . . Q. Now, did you say that It was your understanding from

what ].tfrs. Thompson said that she only got the storehouse,


stocks of goods and :fixtures so far as the storehouse a.nd :filling station is concerned, and that is all she got there?

A. From what I understood in the talk in the house-! had no part in the settlement at all-she got the stock and :fixtures but not the building.

Q. That is what you understood from. the talk around the house!

A. Yes, sir. Q. And you are not willing to say on your oath that Mrs.

Thompson herself made that particular statement, page 122 ~ are you Y

A. I have heard her say it, yes, sir. Q. You have heard her make that particular statement? A. Yes, sir.

By Mr. Hester: Q. Tell which Mrs. Thompson you are talking about Y A. I have heard both of them say it, talking it over. We

were all together and it was discussed backward and forwards every day.

By Mr. Thompson: Q. Where was it discussed, at the house? A. At home, yes, sir. Q. Mrs. Edna C. Thompson lived in the house with Mrs.

Judith C. Thompson for some time after the separation, I believef

A. Yes, sir. Q. Now, you say that you were present when Mr. Bennett

brought the contract out for Stafford to sign Y A. ~es, sir. Q. Did Stafford get his pen and start to sign that contract Y A. I didn't see him do that. Mr. Bennett had a pen which

he got out for him to sign it with. We had no pen there at the place.

Q. Now, as a matter of fact, Mr. Jones, didn't Mr. Thompson take the pen and start to sign the contract and then you said to him, "Stafford, don't sign that contract.· Edna hasn't got anything down there and she is not entitled to anything and you can put her out without paying her anything"! Didn't you make that statement¥

A. No, sir.

By ~fr. Hester: Q. Are you willing for the Notary to sign your name to

112 Supreme Court of .Appeals of Virginia

your deposition when it is written out T page 123 ~ .A. Yes, sir .

.And f~rther this deponent saith not.

B. M. JONES, ... Deponent.


. . MRS. OSSIE WOODALL, a witness of lawful age, being first duly sworn, deposes as follows:

DIRECT EXAMINATION.

By Mr. Hester: Q. Mrs. Woodall, what relation are you to these parties Y A. A sister to Stafford and Herman. · Q. And a daughter of Mrs. Judith C. Thompson Y A. Yes, sir. Q. And sister-in-law to Mrs. Edna C. Thompson Y A. Yes, sir. Q. You are more than twenty-one years oldY A. Yes, sir. · Q. You live here in Lynchburg? A. Yes, sir. Q. You know anything about any contract that Herman C.

Thompson had with your mother about the buying of this place?

A. No, sir, I just know that if he did Mama didn't know anything about it.

Q. You don't kno'v anything about it of your own knowledge, do you¥

A. No, sir. I didn't know anything about that part. Q. Do you know anything about the settleme:p.t with Mrs.

Edna C. Thompson and Herman C. Thompson Y A. No, I don't know anything about that. Q. Were you present at honie at any time when Mrs. Edna

C. Thompson said or it was said in her presence page 124 ~ tha.t she was not getting anything but the stock

of goods and fixtures in the storeY .A. I certainly was. Q. When was that? A. The week that we were fixing up the papers. Q. That is when they were fixing up the papers? A. Yes, sir. Q. You knew that was all she was getting? A. Yes, sir, and she knew it too. It was said in her presence


and we talke_d it. over together and she said she thonght,we were talking It over at the dinner table and she said that they had been getting along together and didn't see why they couldn't continue to get along and 'Mama said she didn't see any reason either, but he wasn't going to make the store over to her.

Q. All of yon were very friendly and in sympathy with her at the time the settlement was made between her and your brother, Herman Y

A. We certl!inly did. I did everything for her that I could. I thought a lot of her until she has acted like this. I wouldn't have thought she would have done it.

Q. Did you hear her make that statement several times Y A. ~he made it s~veral times that Herman hadn't given her

anything; that he d1dn 't leave her but three dollars in the cash drawer and she didn't consider he had left her anything, nothhig but the fixtures and a few things that were hard to sell in the store.

Q. He did leave her the house and four acres of land? A. Yes, sir, he left her that.

By Mr. Jordan : Counsel for the complainant interposes an objection to the testimony of this witness and

page 125 ~ moves that the same be stricken from the record on the ground that so far as it tends to· show what

. passed to Mrs. Edna C. Thompson under the contract is in violation of the bes~ evidence rule, the contract itself· being already in the record.

By Judge Campbell: The foregoing objection has been made several times and counsel for the defendant calls atten'tion to the fact that the contract referred to between Herman Thompson and Edna C. Thompson does not purport to convey any fee simple title or any further title than Herman Thompson had, and that this witness and that this evidence shows that Mrs. Edna C. Thompson accepted it knowing Herman had no title thereto.

By :h1:r. Jordan: Without waiving the foregoing .objections to this witness's testimony counsel for the complainant proceeds to examine the witness :

CROSS EXAMINATION.

By Mr. Jordan: · Q. Mrs. Woodall, you stated a moment ago that you thought

a great deal of Mrs. Edna C. Thompson? A. Certainly I did. . Q. And you sa.y ''I sympathized with her up until she acted

like this". Now, just what do you mean by that?


A. She is trying to take something that don't belong to her. That is the way I feel about it, something that was no more hers than it was mine. I don't see how anybody could say it was hers or how she could claim it. She didn't try to claim it before she went down there. Why did she after she got in the store cl~im, or try to claim the storehouse or build-

ing. I don't understand it. I never was so page 126 r shocked in my life as when I heard she was try

ing to take the store or claim it. Q. When did you :first hear she 'vas tryll!g to take the

store? A. I don't know exactly, but last summer some time. Q. What did she do last summer showing she was trying

to take the store? A. Well, she told my son that the lawyers told her that

they couldn't put her out and that she could have the store. Q. You didn't hear her make that statement? A. I didn't hear her make it myself but my son did. She

told him.

Note : Counsel for the complainant objects to the foregoing answer .and moves that it be stricken from the record as being purely heresa.y.

By Judge Campbell:· Counsel haS asked this witness when she heard it and she has simply told him in response to his question.

By Mr. Jordan: Q. As a matter of fact, Mrs. Woodall, wasn't the first move

regarding possession of this storehouse taken by your brother, Stafford, and your mother some time during the past spring when they gave notice to Mrs. Edna C. Thompson to vacate the house?

A. Why certainly, why wouldn't it be theirs. Q. I say, wasn't that the first move made by either pa.rty1 A. No, sir. She had been to see a lawyer before that and

had told them they couldn't put her out. She is the one that went to see a lawyer and they hadn't bothered her until she started to saying such things as that; that the store belonged to her and they couldn't put her out.

Q. What lawyers had she been to see Y · A. Martin, for one and I don't know who else.

page 127 r Q. Did you go with her' ' A. No, I did not.

Q. How do you know she had b~en to see Martin¥ A. Because she told me so. I got it right from her lips. Q. When was that?


.A.. Last summer. I couldn't tell the very day. Q. What time last summerY A. I don't know but along in the middle of the summer. Q. Whereabouts Y A. She told me ov:er the telephone and told me down there

at the store. I used to go by there and would go in and talk to her and would be as nice as I could be. I went to see her. Nobody 's been any nicer to her than I have been and. she knows it.

Q. Did you continue to go to see her after that 7 A. I went in the store every time I would pass. I \Vould

buy drinks from her and would stay in there and talk to her.

Q. You don't know what time last summer this took place f A. No, I couldn't be positive about that. Q. Who else was present at the time these conversations.

took place! A. Nobody. Q. Just you and she 1 ll. l{es, sir. . Q. You weren't present, Mrs. vVoodall, but Mrs. Edna C.

Woodall has already testified. in this matter that she knew nothing about any controversy about the store until this past spring when she received notice from Mr. D. H. Kizer, the then la,vyer for Mr. Stafford Thompson and your mother, notifying her to vacate the storehouse. It is your contention,

I presume, that she is in error about this 1 page 128 ~ A. Yes, sir.

Q. Do you happen to have any knowledge of any legal proceedings such as an action of ejectment started by your mother and brother to get Mrs. Edna C. Thompson out of this store 1

A. Not until after she made the first move, went to see the lawyers :first and tried to find out whether she could stay there or not.

Q. You don't happen to know? A. I don't know anything about that.

By ~Ir. Hester: Q. ·.Are you willing for the Notary to sign your name- to

your deposition when it is written out 1 A. 1Ces, sir.


}fiRS. OSSIE WOODALL, Deponent. Bv ·C. R. McCARTHY,

.. Notary Public.

l16 Supreme Court of Appeals of Virginia

MRS. A. W. SWEENEY, a witness of lawful age, being first duly sworn, deposes as follows:

DIRECT EXAMINATION.

By Mr. Hester: Q. Mrs. Sweeney, what relation are you to these parties Y A. I am a sister to Herman ~nd Stafford Thompson. Q. And a daughter of Mrs. R. G. Thompson f A. Yes, sir. Q. Mrs. Sweeney, you are more than twenty-one, I reckon? A. Yes, sir. Q. And you live in the City of I.Jynchburgf A. Yes, sir.

Q. Do you know anything of any arrangement page 129 ~ or about any contract or anything of the kind be

tween Herman and his mother about this store f A. No, not a thing.

. Q. Do· you know anything about Mrs. Edna C. Thompson taking this storeY

A. I do, and she knew when she went there the building didn't belong to her.

Q. ·What did she say she was g·etting when she went there? A. She said she was getting the home and the stock in the

~tore. Q. What do you mean by th~ home! A. I mean her home place. Q. The 4.9 acres of land down on the old road? A. Yes, sir. Q. And she was getting- the stock. in the store t A. The stock in the store. Q. What do you mean by that? A. I mean the fixtures and the stock of goods that he left

in there. Q. Did you hear her make that statement? A. Yes, sir, I heard her make that statement. Q. Did she make it only once or several times Y A. Well, she only made it once to me. Q. Did you ever hear her _make that remark more than

once? A. Yes, I have heard her make it more than once but she

told.me just a few days after he left, after her husband left, that that is what he left her.

Q. The stock of goods 7 . A. The stock of goods and her home.


Q. And the fixtures in the store 1 page 130 ~ . .A. And the fixtures.

Q. But she had no interest in the store T A. No, she knew she didn't hav:e any interest in the build

ing.

By Mr. Thompson: Colinsel for the complainant moves to strike the evidence of this witness on the ground that it violates the best evidence rule insofar as it relates to statements made by Mrs. Edna ·C. Thompson relative to the contract between her and her husband, Herman C. Thompson, the contract between the parties being in evidence in this· cause is the best evidence obtainable.

By Mr. Hester: Q. Are you willing for the notary to sign your name to

your deposition when it is written out t .A. Yes, sir.


~IRS . .A. W. SWEENEY, Deponent. By: C. R. McCARTHY. • THERON THOMPSON,

a witness of lawful age, being first duly sworn, deposes as follows:

DIRECT EXAMINATION.

By Mr. Hester: Q. Mr. Thompson, are you related to the parties to this

suitY . A. Yes, sir. Q. In what way? A. I am a brother-in-law. Q. Brother-in-law to all of them Y A. No. _ Q. You are a brother-in-law to Mrs. Edna C. Thompson

and a son of whoT . page 131 } A. Mrs. Judith C. Thompson.

Q. And a brother to Stafford and Herman Y A. Yes, sir. Q. How old are you 7 A. Thirty-one. · .. Q. Mr. Thompson, do you know anything about any con

tract between your brother, Herman C. Thompson, and


your mother about the purchase of this lot where the storehouse is on?

A. They didn't have any that I know of. Q. Do· you know whether Mrs. Edna C. Thompson knew

at the time that she was getting the stock of goods and merchandise up there, and the house and lot 'vhere her home is, whether she was getting the storehouse or not?

A. She said she wasn't getting anything but the stock and :fixtures. ·

Q. .She said she ·was not. Just tell in your own language what she was getting.

A. The stock and fixtures. Q. Was she getting the store? A .. No. Q. Did you hear her make that statement more than once? A. I heard her make it seyeral nights down there while

sitting there in the store. Q. Did she ever make any claim of owning the store? A. No, sir. · Q. ·Were you present at the :filling station out here when

Mr. Bennett and Dr. King came out there? 'A. Yes, sir.

. Q. State, if you know, what was said by them? page 132 ~ A. Mr. Bennett came out there and 'vas talk

ing to Stafford about selling the place and said he would go down and get Edna to sign and then he would come back out there to see him.

Q. Did he have a contract, a paper in his hands, to show him that night? ..

A. The :first time he came out there he did not. If he had one he didn't show it.

Q. Were you there on the second night when he came? ·A. Yes, sir. Q. What was said then? A. Well, he showed Stafford the papers that he had and

Stafford looked at them and told him he wouldn't sign them. · Q. Why did he say he wouldn't sign it? A. He said lie had it in there the store and land belonged

to her. Q. What did he mean by that? Why did he object to that? A. He said it didn't belong to her. He told Mr. B·ennett

it didn't. Q. Did Mr. Bennett say where his purchaser was, where

he had him or where he wasT A. Said he was down here at the hotel. Q. What did he say about that? A. Said if he didn't sign it that night that he would have


to go ahead and show him some other property and Stafford told him to go ahead; that that was the thing to do; that he didn't want to hold him up but he wasn't going to sign it.

By Mr. Thompson: Counsel for complainant moves to strike the evidence of this witness so far as it relates to statements made by Mrs. Edna·C. Thompson relative to the contract between herself and Herman C. Thompson on the ground that it violates the best evidence rule, the contract

between these parties being in evidence, is the page 133 ~ best evidence obtainable, and without waiving the

above objection counsel for the complainant proceeds to examine the witness.

·CROSS EXAMINATION.

By Mr. Thompson: . Q. Theron, you had some trouble with Mrs. Edna C. Thomp

son last winter, didn't you Y · A. I didn't have it with her. I had it with Godsey.

Q. She had to have you arrested because you were raising a disturbance around the storeY

A. She didn't do it. Mr. Godsey done it? Q. In her store 1 A. No, I was at the house. Q. But you had been at the storeY A. Yes, but I had been away from there two hours. Q. You and Mr. Ferguson had been down to the store to

gether? A. No, I hadn't seen Ferguson that night. Q. Hadn't you been down there the previous night with

Mr. Ferguson? A. No, sir. Q. You were never there with 1\!Ir. Ferguson? A. Oh, yes, I have been with him there lots of times but

not in no argument though. ' Q. Now, prior to that time had there been any trouble be

tween Mrs. Edna C. Thompson and Stafford Thompson and your mother?

A. I don't know. Q. You didn't know of any? A. No, sir. ·

· Q. You were all perfectly friendly up to that page 134 ~ time, weren't you Y

A. I wasn't here at that time. Q. I mean when you were here. When you came in you

didn't hear of any trouble between them Y Mrs. Thompson

120 Supreme Court of .Appeals of Virginia

was operating the store and you went on down to the store just like you always had all your life. Isn't that rightY

A .. No, when I came back here, the same evening I came in Stafford was going to the courthouse then to see something about it.

Q. ·The evening you came in Y A. The evening I came from Pulaski. Q. He had gone to the courthouse to see about it Y A. Was getting in the car to go when I got there. Q. When was that? A. I don't know what day .. Q. What month Y A. I couldn't tell you that. Q. A year agoY . A. It was sometime last summer. Q. You came back here last summer? ~. Yes, sir. Q. A1;1d you have been back here ev:er since Y A. I went back. Q. When did you come from Pulaski the last time Y A. I don't know exactly when it was. Q. Was it in April or March Y A. It wasn't neither one of them. Q. February? A. I don't know exactly what- month it was or what day. Q. Was it since Christmas? A. Yes, sir.

Q. Now, when you came back was that the time page 135 } .Stafford was leaving to go to Rustburg to see

about this matterY · A. Not this last time. I just came home one day and left .

the next. Q. When was it that Stafford was getting ready to go to

Rustburg? · A. I don't know what day it was. Q. You say it was the day you came home. I am going

to ask you if it wasn't since Christmas when you came home and Stafford was getting in the car to go to Rustburg to ·see ·about this matter 7

A. ·No, sir. Q. When was it 7 A. I don't know. It was along last summer. Q. Last summer 7 A. I don't know what time it 'Was. I didn't pay any at

tention to it as far as that is concerned. Q. Do you ·know whether at tha·t time he had asked Mrs.


Edna Thompson to get out of the store or anything of the kind?

A. I couldn't tell you because I didn't talk to him a.ny. Q. You didn't talk to him any at allY A. No. He was getting in the car to leave to go out there. Q. When you came back here since Christmas,-Whatever

time it may have been,.:_you went down to Mrs. ThopJ.pson's store just like you had been doing all your life, didn't you Y

A. Yes. Q. Talked to her and talked to others around therel ..A. Yes, sir. Q; At that time you didn't hear or .Stafford didn't tell you

about having any trouble· with Mrs. Thompson 1 A. I heard them talking but I don't remember what they

said. Q. Now, at the time that Mr. Bennett came out to the fill

ing station the first time,-! mean by that when page 136 ~ the last' contract was mentioned,-who was pres

ent at that time 1 A. Stafford, Dave Ferguson and myself and some' other

gentleman. I don't know who he was. Q. Now, where were you standingf A. I was sitting there on a stool. Q. Sitting on a stool. A. Right beside the counter. Q. On which side? A. The outside. Q. The same side with Dave Ferguson? A. The same side Mr. Bennett was on. Dav:e ·was on the

inside. Q. Where ·was Stafford 1 A. He was on the inside. Q. Stafford and Dave .Ferguson were on the insid~ and

Mr. Bennett and you and the other fellow were on the· outside? .

·A. Yes, sir. Q. And you are positive no contract was there and that·

Mr. Bennett didn't have any contract there Y A. He didn't show it if he did. Q. Did you hear them discuss the details 1 , A. I heard them talking about it. · · · Q. Did Stafford come to an understanding with Mr. Ben

nett as to what he would take for twenty acres of .land, including the store and the land on which the store is located down thereY

A. I think he told him what he would take for it. Q. What was it?

-·

122 .Supreme Court of .Appeals of Virginia

.A. I don't remember. Q. Did you hear it f

A. I heard it but I don't remember now how page 137 ~ much it was.

Q. You can't give us any idea what the amount was?

.A. No, I know when he came back there the last time he had it more than he told him. I heard Stafford tell him so.

Q. He had it more than .what Y A. He had it more than he asked for it. Q. He was going to give more than he asked for it' A. Yes, sir. -Q. Then, if Stafford was going to g·et more than he asked

for it why did Stafford refuse to sell it Y .A. Because he had it in that thing that the land and store

belonged to Edna and he said that it didn't belong to her and he wouldn't sign it.

Q. Did .Stafford say that night that if he would get $2,-750.00 for him that Edna could have the balance that the place brought f

A. The first time he was there Y Q. Yes. A. I don't remember whether he did or not. Q. Do you remember any such conversation as that? A. I don't know. Q. Was Edna's name mentioned? A. Yes, sir, her name was mentioned. Q. As a matter of fact now, Theron, ·didn't they discuss

the matter and agree that if 1\{r. Bennett would get a certain price for the place that $2,750.00 was what Stafford was to have and the balance }frs. Edna Thompson could have?

A. I don't know how that thing worked out. Q. It was recognized by Stafford and all the rest of you

that Mrs. Thompson had an1interest there in the store, wasn't it?

A. I couldn't tell you. page 138 ~ Q. N ~,v, when Mr. Bennett came back the sec-

ond time you say you were present? A. Yes, sir. Q. Who else was present? A. Mr. Jones and myself. Q . .Anybody else? -A. I don't know whether that fellow came back with him

or not. I don't believe he did. He might have though. Q. You spoke of the other fellow awhile ago, the fellow

you mentioned, did he come with Mr. Bennett out there¥ A. I thiDk he did.


Q. You think he did. You don't know his name T . A. No, sir. I heard them call his name but as far as know-

ing him I didn.'t know him. Q. Was he a doctor T A, I don't know. He might have been a preacher. Q. Didn't call him "Doctor", did they? A.· Not as I know of.

RE-DIRECT E-XAMINATION.

By Mr. Hester: Q. Mr. Thompson, have you testified to what you did

against Mrs. Edna C. Thompson because of the fact that you wer~ arrested down there for spite?

A. No, sir, I didn't have anything against Edna. It was Godsey. Godsey was the .one that had me arrested.

Q. What you have testified to is what you kno'v and not for any spite work at all?

A. That is right. Q. Do you consent for the notary to sign your name to

· your deposition when it is written out? page 139 ~ A. Yes, sir.


THERON THOMPSON, Deponent. By C. R. McCARTHY,

Notary Public.

HERMAN C. ·THOMPSON, a witness of lawful age, being first duly sworn, deposes as follows: ·

DIRECT EXAMINATION.

By Judge Campbell: Q. Mr. Th_ompson, yon are the husband of Edna C. Thomp-

son, are you not? A. Yes, sir. Q. A son of Mrs. Judith C. Thompson? A. Yes, sir. Q. And a brother of J. Stafford Thompson T A. Yes, sir. Q. Are you separated from your wife? A. Yes, sir. Q. When did that separation take place? A. 1933, I believe it was. I don't remember.


Q. Was there any agreement drawn up between you and her settling any part of your property on her Y

A. There was. It was not between me and her. Frank Woodall and Mr. ''Scratch" Jordan drew up the agreement.

Q. I meaJ!. did you sign any papers conv:eying to her .any interest that you had Y

A. Yes, sir. Q. I hand you a paper marked "Exhibit F" with the com

plainant's bill purporting to be a contract bepage 140 ~tween you and Edna Thompson bearing date the

lOth day of September, 1934. Did you sign that contract!

A. Yes, sir. · Q. Now then, I hand you a deed of gift marked "Exhibit

G" filed with the bill purporting to be a deed from you to Edna ·C. Thompson dated the 15th day of September, 1934. Did you execute that deed T ,

A. Yes, sir. Q. Now, this deed purports to convey all right, title and

interest that the said Herman Thompson may have in and to 'the storehouse and a tract on which it is situated near Six Mile B.ridge, f~ontin~ on t.he public road. between Lynchburg and Concord, In which said store the said Herman C. ·Thompson has heretofore conducted a general mercantile business. D~d you have any title to the building or any land there 7

A. No, sir. Q. At the time this agr:eement was drawn up bearing date

on the lOth day of September, 1934, what took place at that time Y Were you present Y

A. No, sir. Q. Do you know who drew· these papers f A. Mr. Jordan. Q. Who was representing you at that timet A. Mr .. Jordan. Q. Did you explain to Mr. Jordan and your wife also that

you had no interest in the building and land itself Y · A. No. · Q. Was there anything said about that 7 A. Not a word. Q. Then Mr. Jordan presented you this paper which you

signed? A. Yes, sir.

page 141 ~ Q. Now, I believe you did build this store on this property?

A. Yes, sir. Q. How much did it cost you 7 A. Nine hundred dollars.


Q. It has been testified to here by Mr. Alvis that you paid him a little over sixteen hundred dollars for the building of this store. In fact how much did you pay him and where did you get the money from? .

A. I came up here and got the money out of the Lynchburg National Bank and paid lVIr. Alv:is.nine hundred dollars. Mr. Worley made a bid onit, you know, for a thousand dollars and I went down to· see Mr. Alvis and Mr. Alvis made an offer to build it for seven hundred dollars and had Mr. Allen Martin who was a partner with him and he turned the papers over to Mr. Allen Martin, his partner, to look them over and he found a mistake of two hundred dollars. They came back up there then on a Wednesday night and ·said a mistake had been made of two hundred dollars and showed me where they made the mistake, and then that made it nine hundred dollars.

Q. Was that all you paid him 7 A. Yes, sir. I wouldn't have paid him more than Mr.

Worley was going to build the same building for. Q. Then there was some extra work on a basement and out-

house? -A. Yes, sir. Q. What did that cost you? A. Around about $150.00. I didn't keep no record of that,

and the basement about fifty or seventy-five dollars. Q. Did you have at any time any agreement or understand

ing with your mother that you were to have a deeq to. this property,-this real estate Y

page 142 t A. No, sir. Q. Did you ever discuss the matter with her

in any manner, shape or form 7 A. Never· did. Q. As to purchasing this land or getting a deed to itY A. No, sir. Q. Mrs. Edna Thompson ·has testified that on one or more

occasions down at the store she heard Mrs. Thompson tell you that she was going to make you a deed to this storehouse and so much ground. Did any such conversation take place between you and your mother 7

A. No, sir, not by my mother. Q. At that time or any other time Y A. No, sir. · Q. I believe. you built your home on this tract of land be

fore you received any deed for that, didn't you 7 A. Yes, sir. Q. How long did you live in it before you received a deed

for thatY


A. I don't know exactly. I reckon it was eight or· ten years, maybe.

Q. Do you know when you got a deed to that property Y A. 1924, I think. Q. Did you buy that or was it giyen to you by your mother Y A. No, sir, my father and mother gav:e it to me. Q. You did not pay any consideration for it? A. No. Q. How many brothers and sisters did you have at that

time, the time this conveyance was made to you of your 'homeY

· A. Three brothers and seven sisters. page 143 ~ Q. And you have the same number now?

A. Yes, sir. Q. Is your father dead or living? A. Dead. Q. Did he die before you began the construction of the

storehouse Y A. No, sir. Q. What was the condition of his health at the time you

began the building of the storehouse Y A. He was paralyzed. Q. He was paralyzed Y A. Yes, sir. . Q. Do you know how long before you started to build the

storehouse it 'vas that he was paralyzed Y A. About twelve months, I reckon. · Q. And at that time "\vho was running the farm Y A. He was running it himself. Stafford run it during the

time he was paralyzed. Q. In other words, he ran it up until he was paralyzed and

then Stafford came home and ran the farm Y A. That is right. , Q. There has been exhibited with the bill a deed dated the

27th of February, 1926, and purporting to have been executed oy all of the children of your mother and your father, together with their wives and husbands, conveying all of this property, including the land on which the store was built to J\IIrs. Julia C. Thompson. Is that correctf

A. Yes, sir. Q. Was it after that date that you built your storeY

A. Yes, sir. page 144 ~ Q. Then Mrs. Edna C. Thompson had united

with you in a deed prior to the building of the store conveying all of your right and all of her contingent right of dower to your mother Y

A. Yes, sir.


-Q. When did you begin building the storeY A. I think it was in the spring of '28. Q. And you say you never consulted your mother in any

way, shape or form about building the store or about getting any deed for itt

A. No, sir. Q. And did you have any discussi6>n with your father about

it? A. Yes, sir. Q. Was he paralyzed at the time of your discussion with

him? A. 1res, sir. 1

Q. What arrangement, if any, did you have with your father? -

A. I tried to get a lot up on Mr. '' Rodey 's'' place and he agreed to let me have it and after I looked into it, you know, and found he had borrowed some money from the government, you know, on a loan, and he couldn't give me a deed to it, then my father told me to come on back over there and build it oyer there. It was a better place over there and I started to build on the other side of the ~road and then decided that on the right-hand side coming towards Lynchburg would be the best place for it,-

By Mr. Hester: (interposing) Q. On which side Y .A.. On the left-hand side coming towai·d Lynchburg and

then decided to build it over on the right-hand side and he told me to build it right there, you know, so I went on to Mr. Alvis and them and got the contract to see how much it was· going to cost me to build it. He made me a bid on it,

like I told you, of $700.00 and then he made a mispage 145 r take in the figures and come up and showed them

to me, a $200.00 mistake, and I reckon I could have held him up to it but didn't try to do it. After I found out he had made a mistake I told him it would be 0. K., because Mr. Worley had already given me a bid of a thousand dollars. ·

By Judge Campbell: · Q. At that time was your father in poor health and para

lyzed? A. He 'vas paralyzed but he told me to go ahead and build

the storehouse there, you know, and cut off a lot just enough for the storehouse, and have it surveyed off, and he would give me a deed to it, but I never did do it and let it run and run on.


Q. Did he mark off any. boundary for you Y A. No, sir, he didn't. Q. Did he agree upon any boundary for you Y ..A. No, sir, there was nothing said about what size lot it

would be or how it would run and so forth, no, sir. Q. It has been sugg·ested by witnesses that somebody said

ab.out ·an acre would be 0 given to you in the testimony for the plaintiff?

A. lie never said he would give me nothing. He said I was to pay him for it but I never did do it.

Q. Did you ever pay him a dollar for it7 A~ No, sir, and never did have it cut off. Q. Suppose you would cut off an acre of land with that

store how close would. that come to the dwelling house Y A. I don't know how much an acre is. Q. How far is the dwelling house from the storeY A. About seventy-five yards. Q. Well, assuming that an acre is seventy yards square.

If you cut that off with that storehouse how close would it put you to that dwelling?

A. Right up at it. page 146 t Q. Who has paid the taxes on this entire lot

of land which was conveyed to your mother? A. I .suppose .Stafford has paid it, my brother. Q. Do you happen to know that after the building was put

on there that the taxes were increased? A. Yes, sir. Q. Did you pay those taxes yourself? A. No, sir. Q. Now, during this adjustment or settlement with your

wife did you have. any conference or conversation with· her at all?

A. No, sir. Q .. In other words Mr. Jordan was your lawyer and was

attending· to it for you, is that right Y A. Yes, sir. Q. Do you know whether or not your father ever cmnmuni

cated to your mother the fact· that he told you you could build on this land and that he would make you a deed to it?

A. No, I do not. Q. I believe you said you never discussed the matter one

way or the other with your mother Y A. No, sir. Q. At the time you .all signed this deed, or at the time you

signed this deed along with your wife, to your mother, was there any question raised then about you being entitled to a .deed to the storehouse?


A. No, sir. Q. Along about that time you did get a deed for 4.9 acres 7 A. Yes, sir. . ··

Q. Mr. Thompson, in this settlement that you. page 147 ~ made with your wife about what proportion of all

the property you had any interest in did you part with to her Y ·

A. About four thousand dollars. Q·. I mean what proportionate part? How m~ch did you •

have leftY A.· I had around about two thousand dollars. Q. In other words you estimated that at the time of this

settlement you were worth around six thousand dollars and you conveyed to her four thousand dollars of it? ·

A. Yes, sir. Q. Was it your intention or purpose to convey to her the

storehouse and the land that it was on Y A.. No, sir, not the land it was on and the storehouse. She

knew as much about it as I did.

By Mr. Jordan: Counsel for the complainant objects to the question and answer thereto on the ground that the contract between the parties and the deeds themselves speak for themselves, and it is not competent at this time for this witness to deny those documents.

Bv Judge Campbell: · .. Q. What was the value of the stock of goods in the store

at the time you turned it over to your wife? · A. About a thousand dollars. Q. What was the value of the fixtures 7 A. About five hundred dollars. Q. What was the value of the four and a half acres and

the buildings on that? A. I would say about twenty-five hundred dollars. Q. What kind of a dwelling house was it?

A. A seven-room house. page 148 ~ Q. Were there any other dwelling houses on it?

A. ·Two more. Q. Were those small tenant houses or not? A~ Yes, sir, just little small things. Q. What did the original house cost you, the dwelling

·house? A. That thing cost me around about twenty-five hundred

dollars, the house did, but you know it had been built there since about 1914, I believe.

Q. -Now, taking the value of the home property that was


owned by your mother and considering the house and lot of 4.9 acres which was conveyed to you as a gift, and taking into consideration the number of other brothers and sisters you had, state whether or not that lot with the buildings then on it would be equal to your porportionate part of the entire property 1

A. I think it would because that had a storehouse on it too down there, you know.

Q. What was the 4.9 acres worth without any buildings on it at that time, taking into consideration its location for business purposes, at the time it was conv:eyed to you?

A. Ask the question again. Q. I say what was the 4.9 acres worth at the time it was

given to you, taking into consideration its then location and the purposes for 'vhich it could be used Y

A. That is before I put the dwelling house on it. Q. The day it was given to you Y . A. I had the house on it when it was · giyen to me and got

the deed to it. Q. Did you tear down the store that was on it? A. Mter I built the store up on the Concord road I tore

that store down. page 149 ~ Q. At the time you took possession of it there

· was a storehouse on itt A. Yes, sir. Q. Did you conduct a business there Y A. Yes, sir. · Q. It has been in evidence here that you gave your father

a thousand dollars for a stock of goods. Was that the stock of g·oods in that storehouse Y

A. Yes, sir, one-third of it. I paid J\{r. Deacon a thousand dollars and paid my father a thousand dollars.

Q. You paid your father that money? A. Yes, sir. Q. At the time you bought that stock of goods and were

doing business in that store please state whether or not that was a good business stand Y

A. It was a good business stand. Q. The road since then has been changed Y A. Yes, sir. Q. You did not get a deed to that, I believe, until about

1926? A. Something like that. Q. What would that property be worth at the time you

got it, taking the house off of it. A. Be 'vorth four or .five thousand dollars. Q. Without the house 1

•

J. S. and Judy C. Tltompson v. Edna C. Thompson. 131

A. Just with the store. I was making about three thou-sand dollars a year. ·

Q. Did your mother own any other property except this twenty acres of land f

A. Not as I know of. page 150 ~ Q. This farm, I believe, is 101 acres 1 "

A. Yes, sir. Q. She does not own any other property that you know of? A. No, sir. Q. Have you ever talked with her or had any conversation

with your wife since you separated Y A. No, sir. Q. All the business matters were transacted through some

one else for you Y A.- That is right.

CROSS EXAMINATION.

By Mr. Thompson: Q. Mr. Thompson, you are the husband of Edna C. Thomp

son? .A. Yes, sir. Q. And the father of her two children f A. Yes, sir. Q. You love your children, don't you f A. Yes, sir.

By Judge Campbell: This line of questioning is objected to on the ground that it has nothing to do with the issues involved in this case.

By ~Ir. Thompson: Q. When you conveyed the storehouse and fixtures and

stock of goods did you anticipate at that time what your wife was going to do 'vi th the store f

A. No, sir. Q. Did you or did you not anticipate that she would op

erate the store? A. I didn't know.

Q. She had worked with you in your store prior page 151 ~ to that time, had she not?

A. Not with me. She would stay in there sometimes when I would come to Lynchburg. She might have stayed up there a few times but she used to stay at the old store.

Q. Stayed quite a bit in the old store and helped you in the store? ·

132 Supreme Court of ·Appeals of Virginia.,

A. Yes, sir. Q. Didn't you anticipate, Mr. Thompson, she would op-

erate that store. and take care of your children! . A. I couldn't know. Q. That was not a part· of your purpose when you con

veyed her the store?· A. No, I didn't have any idea whether she would stay there

or not. Q. Do you know of any other means whereby she could

earn a livelihood for herself and her children! · A. I reckon there is plenty of means, ain't there Y Q. Do you know of any other means? A. I don't know of any other. Q. She had no trade or vocation. The only thing she had

ever done was to be a housewife there with you and help you in the store. Wasn't that about all she had ever done in her life?

A. That is all. Q. Now, Mr. Thompson, what did you mean in your deed

to Mrs. Thompson on September .15th, 1934, you said this : ''All of the right, title and interest that the said Herman Thompson may have in and to the storehouse and tract of land on which it is situated near Six Mile Bridge, fronting on the public highway between Lynchburg and Concord, in which said storehouse the said Herman C. Thompson has heretofore conducted a general merchandise business.'' What

did you mean by that statement? page 152 ~ A. All interest I had in itt

. Q. Yes. A. I meant for her to have all interest I had in it. Q. You meant for her to have all interest you had in itT A. Yes, sir. Q. Now, you have previously told your counsel that you

knew you had no interest in it.· A. Certainly I knew I didn't have no interest in it. Q. If you knew you had no interest in it why did you deed

her something- yo11 knew you didn't have Y A. I deeded her the v:ery thing she knew that she wa·s

getting. Q. But why set apart separately from the merchandise,

separate!~ from the fixtures and the licenses and everything else, an item conveying the storehouse and the real estate on which it is located if you didn't have anything there? ·

A. I didn't have any real estate up there. Q. Now, you have stated that you intended to buy a piece

of land from Mr. Rode¥ A. That is "right.

•

J. S. and Judy C. Th9mpson v. Edna C. Thompson. 133

Q.' But you couldn't get title to it and your father told you to come on.back up there and build on his land. Is that right!

A. Yes, sir. Q. What did he tell you he was going to charge you for

that IandY A. One hundred dollars for the lot. Q. Did you believe and understand that if you came there

and built the store and gave your father one hundred dollars that he would deed you, that IandY Did you believe that.f

A. Certainly I did. Q. You could depend on what your father saidf

A. He couldn~t deed it to me, you know. page 153 ~ Q. You believed what your father told you t

A. Yes, sir, I believed what he told me. Q. Don't you believe now that had you at any time prior

to your father's death tendered him one hundred dollars and asked for a deed that you would have gotten a deed to that tract of land on which that storehouse is located!

A. I think I would. , Q. You think you would. All right, you built your store

house on the faith of that understanding between you and your father, didn't you Y

A. Yes, sir. Q. Now, you built your dwelling house over on the old road.

Who told you to build your house there Y · A. :My father. Q. Your father? Who gave you the deed to' itf A. My mother. Q. Did your mother give it to you or did your father give

it to you! A.- My mother had to sign it. Q. I understand that but a contract was made with your

father in his lifetime was just as good as if it was made with your mother, wasn't it, with regard to that property there?

A. ·No, it wasn't as good.as it would-be with her, you know. Q. You built your house on what your father told you Y A. Yes, sir. ·· Q. And a deed was delivered to you Y A. Yes, sir. . Q. You followed the same assumption when you went up

on the road and built your storehouse, that he would .get a deed to it for you? ·

A. No, they told me they were going to give page 154 ~ me that down there, but that there he said I would

have to pay for it. Q. In one place you were to pay and another you weren't f A. Yes, sir.

134 Supreme C01~rt of Appeals of Virginia.

Q. But your contract and unde;rstanding all the time was with your father! .

A.. ·That is right. Q. · As a matter of fact your father insisted from time to

time that you go ahead and have the deed prepared so he could give you the deed during his lifetime Y

A. Yes, sir, he told me to do that but he couldn't have given it to me.

Q. Yes, he could give it to you. There is no question about that.

By Judge Campbell: It wouldn't have been any good if the father had given it to him.

By Mr. Thompson: Q. Up until your father's death, or a month or two before

that, your father looked after the management of the homeplace, didn't heY I mean by that he overseered everything. Somebody else was doing the work but your father was really in charg·e?

0

A. No, sir, my brother was in charge. Q. Who did your brother account to, do you know? I am

not talking about the actual work, but who was head of the whole thing?

A. Stafford, he was running the farm. Q. Stafford was doing the work but wasn't he doing the

work for your father? A. I don't know but he paid the taxes and all and he run

the farm. There might have been an agreement between them but he was looking after it I know.

page 155 } Q. In 1927 didn't you pay the taxes Y A. No.

Q. Taxes on the farm Y A. No, sir. Q. Didn't you pay it and charge it to your father? A. I paid it but paid it out of his money. Q. In 1928 you paid it out of your father's money, didn't

you? 0

A. Yes, sir, that is what I owed him on that stock of goods. Q. Stafford wasn't paying the taxes then, was he? A .. No, but that was a long time back, you know. Q. That was after you had built the store? A. Yes, sir. Q. And it \vas while you were keeping money for your

father and paying out what he asked you to pay out for him f Is that right?

A. Yes, sir.

J. S. and Judy C. Thompson v. Edna C .. Thompson. 135

Q. I believe you paid your father a thousand dollars for his interest in the stock of goods in the old store and then your father gave you money to keep for him from time to time?

A. He just told me to keep it for him and I brought it up here and put it in bank.

Q. You and your wife did not discuss at the time of the separation agreement between you what she was to get at all, did youf

A. ;No, sir. Q. You left that with your attorney and with her, or who

ever her representative at that time might be. Was Frank Woodall her representative at that time?

A. No. Bill Bennett went up there on Thursday evening and then Frank came up and met J\{r. Jordan on Saturday evening.

Q. Frank was representing Mrs. Thompson 7 .A. Maybe so. ·

pag·e 156 ~ Q. I believe Mr. Hester was her attorney at that time?

A. Yes, sir. Q. Did you visit in the home of your father and mother

from time to time through the years while you were operating the store down there Y

.l\.. I went up there once or twice. We were all right there together.

Q. Right there together Y A. Yes, sir. Q. Did your father and mother discuss their business af

fairs with each other? A. I never did see it. Q. Ever heard them discuss any business affairs between

themselves f A. No, sir. Q. You didn't think it was necessary to consult your

mother 'vhen your father told you he would sell you this tract of land on which to build your store, did you Y

A. No. Q. You thought speaking to your father was sufficient?

Was your mother living there in the home house at the time the store was built Y

A. Yes, sir. Q. She knew the store was being built? A. Yes, sir. Q. And you remained in that store seven years and op

erated it after it was built before you left there? A. Yes, sir.

136 Suprep1e Court of Appeals of Virginia.

Q. And your wife has remained in that store from 1934 up to the present time. I believ:e that is correct, isn't it Y

A. She has remained there. . Q. Yes, and operated the store T

page 157 ~ A. Yes, sir. Q. Now, you spoke of your father being para

lyzed twelve months before you built the store. Your father's mind wasn't impaired at that time, was itt

A. Didn't seem to be. If it was I couldn't tell it. Q. His mind seemed to be perfectly good at that time and

how long before your father's death was his mind affected if everY

A. I couldn't tell you. I couldn't answer that. I don't know.

Q. Do you recall that his mind was affected at any time before his death Y

A. No. Q. How far is it from this store building of yours down

the road,-! mean, up to the old home house f A. I don't know. Do you know Y About seventy yards. Q. It has been estimated at two l}undred yards by some

other witness. . · . .A. I don't know. Q. Well, is it as far as from 8th Street to 9th Street here

on Main Street in Lynchburg? .A.. It ain't that far. Q. Is it half that far Y . A. I reckon it is something like that, making a guess at it. Q. Is it as far as from here up to the Municipal Building Y A. Just about that far, I reckon. Q. Just about as far as from here to the Municipal Build

ing? A. Yes, sir. Q. Did you take an inventory of your stock of goods when

you left it for Mrs. Thompsont A. No, sir. I counted some of the stuff. Q. You didn't take an inventory t

A. _No, sir. page 158 ~ Q. So this thousand dollars which you men-

tioned is just an estimate Y · A. Oh, there were a thousand pairs of shoes and rubbers

together. I just counted them . ....- Q. What kind of shoes were theyf

A. Different. kinds, you know. Q. Weren't they old stock of goods Y A. No, sir. Some of them were old. .Always accumulate

a few old shoes.

J. 8. and Judy C. Thompson v. Edna C~ Thompson. 137

Q. Some brought from the old storeY A. A few of the rubbers were, but all of them were ~ood

rubbers, "Ball-bearing", wasn't anything the 'matter with them. ·

Q. Do you know what your dwelling house that you deeded to your wife down on the old road is assessed at for· taxa-tiooY ·

A. No, I don't. . Q. If it should be testified to it is assessed at five hundred dollars are you in a position to say it isn't true! ·

A. How do 1 know whether it is true or not Y I know it is worth more than that.

Q. You are not in position to say it is ··not assessed at thatY

A. No, I don't loiow what it is assessed at. Q. It is five rooms in the house T A. Six rooms. . · Q. Judge Campbell asked you awhile ago about the prop

erty owned by your mother. What property does your mother own now, Mr. Thompso·n Y

A. I don't think she owns none now, does sheY Q. You say you don't think she owns any? · A, That was turned over to Stafford and she has a life in

terest in the 101 acres. That is all she ever had page 159 ~ in her own name. . ·

Q. And that is all she owns a life interest in, in that tract on which the store is located Y

A. All I know of. Q. How much land was your father going to deed you for

the $100.00? · A. He never said. He said ''cut off a little lot there''. I

reckon we would have got together, you know, and got Mr. Poston down there to cut it- off. He told me to get Mr. Pos~ ton.

Q. Mr. Poston is a surveyor, I believe¥ A. Yes, sir. Q. Lives out at Tyreanna Y A. Yes, sir. . . Q. At one time you did get some colored people to help

you in setting back some of the buildings that were there close to where your store was, kind of clearing out and locating your building, didn't you!

A. Got some colored people for what Y Q. Didn't you. get ''Press'' Cox up there and kind of show

him where the line was going to be and moved some building out of the way so it wouldn't be on your handY

A. No, I never said anything about where my line was


going to be. I might have got somebody help me move the old house where they were fixing to build that back room on.

Q. You had to move it back far enough so you thought it would be off the land you expected to get, isn't that right Y

A. Yes, expected. Q. As a matter of fact you had purchased from your father

the land but had not got a deed Y A. Hadn't purchased it. Couldn't purchase it until you

buy it. Q. You had agreed to pay $100.00?

A. I would have had to pay something on it. page 160 ~ Q. You agreed to pay $100.00?

A. He told me to give him $100.00 for it.


By Judge Campbell: Q. Was there ever an ag·reement by you and your father

or anybody else as to what land should be cut off, the shape of it or how much it was at all 7

A. No, sir. Q. Who was to cut it off? A. 1\tir. Poston. Q. Who was to attend to it being cut off, you or your

father? A. I expect both of us. We never did get the man down

there. Q. And I notice in this deed of settlement upon your wife

of September 15th, 1934, you conveyed the house and 4.9 acres to your wife with general warranty of title and second you conveyed all title, right and interest you may have in the storehouse and tract of land on which it is situated. Did you have any conversation with your attorney as to whether ·or no_t you owned the storehouse?

A. No, sir. Q. You know why in one case the land that you did own

and have a deed for it you conveyed with g·eneral warranty of title and the next piece of land which you claim you didn't own you conveyed all title, right and interest you may have in it?

A. That is right. Q. You know why you did that? Why you made a differ

ence between conveying one with a general warranty of title _,..- and the other with just such interest a~ you might have in it?

Do you know why that was done f A. Yes, sir. I owned one and didn't own the

page 161 ~ piece of property up there where the store was built on.


Q. Did your wife also know you didn't own that Y A. Yes, sir, she knew it.

RE~CRJOSS EXAMINATION.

By Mr. Thompson: Q. You mean when you say you didn't have any claim to

this storehouse and lot that you didn't have any deed to itt A. Didn't have any deed nor any claim to it. Q. If you didn't have any claim to it,-A. (Interposing) The only way I could have had any claim

to it was to have had that thing cut off, surveyed off, and get a deed and pa_y the money.

Q. And you felt that you had some claim there. You didn't know exactly what it was?

A. I knew it wasn't any claim. If I had had the thing cut off before my father died I wouldn't have had any trouble getting my father to sign it, but I didn't do it.

Q. When you made that deed you felt you had some right there?

A. No, I didn't. I knew I didn't. Q. Why did you put it in your deed Y A. I didn't read that thing over good. Q. You didn't read itT A. No, sir. Q. So you signed something you didn't know what was in? A. That thing says just w~at interest I had in it, didn't

it? I signed that. Q. You read that deed over before you signed it? A. I may have read it. Q. You read it before you signed it Y A. This here thing Y

Q. Yes. page 162 ~ A. To tell you the honest truth I don't know

whether I did. If I did it is all right and if I did:a 't it is all right.

Q. You are not in the habit of signing papers without ;reading them, are you f

A. I was letting him, Mr. Jordan, Stafford and them go ahead and fix this thing. They fixed it.

Q. It was your intention to convey to your wife every interest you had in the store and the land and everything so that she might make a living for herself and her children. Wasn't that what you told your attorney?

A. No, it wasn't that at all. I was to give her everything in the store, but the store, I ain't got no interest in that be- · cause they done give me my part down at the other place.

140 .Supreme Court of Appeals of Virginia.

He told·.me. to pay for that. That shows wasn't any interest in it. I just didn't have it cut off and didn't pay for it, but . I did have the other. He had give it to me and I built the buildings on it. .

Q. Your understanding is if you had paid the $100.00 that was aske(\ that you would have had title to this propertyf.

A. If we had signed the deed I would have, but he might not have done it. You nev:er can tell. But I thought so,but thinking don't always go.

By Judge Campbell: Q .. Are you willing for the notary to sign your name to

your deposition when it is written out Y A. Yes, sir.


·HERMAN .C. THOMPSON, Deponent . . . By C. R. McCARTHY, .

Notary Public.

page 163 r MRS. JUDITH· C .. THOMPSON, a witness of lawful age, being first duly sworn,

deposes as follows:

DIRECT EXAMINATION.

By Mr. Hester: Q. Yon are one of the defendants in this case, I believe Y A. I am.· Q. If it is not embarrassing 1 w~uld like for you to tell me

how old yon are Y A. I can trntlifully tell you. I am seventy-five years old.

That is not embarrassing at all. . · · Q. All right,~good. -Mrs~ Thompson, how many children

have youY A~ I have eleven. Q. And your husband has been dead how longY A. About four years, or three years. Q. What was the condition ·of his health for several years

before he died 7 A. Well, his health was right good until about ten years

before he died and he began to lose his left side, his left leg, but his body was· perfectly well.all·except that left side which gave way and he was in that fix :about ten years. ·

Q. Now, after he got in that condition did he manage and look after the farin Y ·

J. S. and Judy C. Thomp~on .. v. Edna C. Thompson. 141-

A. Before that he worked there'i"tnd went on and attended to his business like he always did and after he became para-lyzed on this left side Stafford looked after the farm. ·

Q. Now, it is stated in the bill,-A. (Interposing) Of course he looked after it with his eyes. Q. ·It is stated in the bill that in 1897 your ·husband was in

an embarrassed condition financially and conveyed his property to save his home to you' and his· children?

A. Yes, sir. · page 164 ~ Q. Now, is that a correct statement?

A. Yes, sir, he did that. Q. Did he afterwards pay all of his indebtedness Y A. Yes, sir, I heard him say time and again he paid every

penny he owed. ·Q. Now, did he after that time regard the property as his

or was· it yoursY A. It was mine and the children's and he knew it. Q. And he recognized it Y A. He recognized it, sure he did. Q. Now, who conveyed the· 4.9 acres to Herman Y Was it

him or was it you and the children Y A. What year was that? Q. 1926, I believe. A. Just he and me, I think, conveyed that to Herman. Q. Now in 1927 when the store was built or agreed to be

built had the children conveyed their interest to you Y A. I think they had. Q. Then you owned itt A. I think so. Q. You owned it then in fee simple. It ·was your property,

wasn't itT A. Yes, sir. Q. You knew when the store was built up there, the store

in front of your house Y A. Yes, sir. Q. You saw it being built there Y A. Yes, sir. Q. Did anyone ever ask you to allow Herman to build that

store there Y page 165 ~ .A. No.

Q. Did your husband ever ask you about itT A. He never did. Q. Did anybody ever say anything about it Y A. Nobody. · Q. Were you willing for it to be built? A. No, I wasn't willing but I didn't say anything, but I

didn't care for it to b~ put there. ·

142 Supreme Court of Appecls of Virginia.

Q. If he had cut a lot off would you have signed tbe aeeal A. No, I would not have signed it for that store down in

front of our door like that. Q. And your husband never talked to you about it one way

or the other Y A. No. I just heard him say he told Herman to put it up

down there and didn't say anything because I thought as long as Herman stayed there it would be all right and so long as he stayed there and conducted his business nicely it was all right and agreeable.

Q. But you were never going to convey a title? A. No, I never did want anybody else to own that place

down there and they weren't going to own it as long as I lived.

Q. Now, you heard Mrs. Edna C. Thompson testify that she heard you tell Herman down at his store on the old road down there before he built for him to go on up there,-or did you hear her testify Y

A. No, sir. Q. You weren't present f A. No, sir. Q. She has testified that you told Herman down at the store

for him to go up there and cut the lot off and you were going to deed it to him. Did you make any such statement as that?

A. No, sir, I did not. page 166 ~ Q. She also stated that you made that state

ment to her several times, or two or three times. A. I never made that statement to anyone at all. You

know I haven't. If I had I would say I had. Q. Did you ever make such a statement to her? A~ No, I haven't. I think I would have had mighty little to

do to make such a statement to her. Q. Do you know whether J\{rs. Edna C. Thompson knew at

the time that she had a settlement with her husband that · she was not getting anything but the stock of goods and the fixtures and the house and lot of 4.9 acres of land. Do you know whether she kne"T that or not Y

A. Certainly she knew it. Q. How do you know that? . A. I heard her say, "If Stafford will let me stay down

there like he did Herman and not charge n1e any rent I will take it".

Q. Did she make any claim to the property? A. No, she never made any claim to the property. Q. Have you and Stafford been paying the taxes on that

all the time Y A. Yes, sir, all the time. Nobody else.paid it.

J. S~ and Judy C. Thompson v. Edna C. Thompson. 143

Q. Y ~u were right friendly with her at the time of the separation between her and her husband 7

A. Just as friendly as I could be. Q. ~nd you were in sympathy with her and not in sympa-

thy w1th your son 1 A. That is right. Q. And your family generally was so? .A. Sure.

page 167 ~ CROSS EXAMINATION.

By Mr. Jordan: Q. Mrs. Thompson, you stated that for about the last ten

years of his life your husband was paralyzed on one side'but that he worked there and attended to his business.

A. What sort of business Y Q. That is what I am asking you. A. Well, he slopped the pigs, would bring in a little water

and bring in wood. That is what he did. Q. You used the words ''he worked there and attended to

his business". What do you mean by thatY · A. That was his business. That was all he could do. Q. What? A. I told you, slopping and attending to his pigs and such

as that around the house. Q. And you tell us that condition continued for about ten

years before his death 1 A. Ten years at least. Q. I believe your son, Herman, testified a few moments ago

in your hearing that his father's mind was clear up until the time of his death 1

A. It was clear up until about, I reckon about three months before his death. His mind would come and go then.

Q. Up until about three months before he died his mind was perfectly clear?

A. Perfectly clear. Q. It has been testified and I believe it is a fact that your

son, Herman, built his dwelling house on the four and a half acres tract of land about 1915 and that it was 1926 before he got a deed to it. Is that correct or not 7

. A. I reckon so. I know it was a pretty good page 168 ~ while.

Q. The four and a half acres that we speak of is sometimes known as the Lee Place, isn't it¥

A. What? Q. The Lee Place. A. There is no Lee Place that I know of.

144 Supreme Court of Appeals .of Virginia

. Q. ·Wasn't there a colored man by that name that the place was named after 1 ·

A. A colored man lived there that Herman built the house for. .

Q. His name was Lee 7 A. George Lee and Herman put the house there for him. Q. Didn't you at the· time that deed was made in 1926 say

that you didn't want that house put there but as long as your husband had gone ahead and told Herman to do it it was all right and you would execute the deed to it and did execute the deed to it?

A. To Herman, certainly I did. That was all right. Q. How did Herman happen to get a deed to the four and

a half acre tract f

By Mr. Hester: You mean 4.9 acres. By Mr. Jordan: Four and a half acres on which his home

was situated.

A. How do you generally get a deed to a thingf · Q. It was 'eleven years after the house was built that the

deed was executed. N o,v, how did he come to get it f A. It was brought to us to sign. ~Ir. Thompson wanted to

deed it to him and I signed it. Q. That is your.husband brought to you the deed to sign and

told you he wanted you to sign the deed conveying the property to Herman ~nd you went ahead and signed

page 169 ~ it f A. I went ahead and signed it.

Q. And the children had to sign it too, I believe, didn't they?

A. I don't think the children signed. I think just he and me.

Q. You and your husband executed the deed to Herman Y A. Yes, sir. Q. You say that you knew your husband told Herman to go

ahead and put the new storehouse there and you just didn't say anything about it Y

A. He just spoke of it and said he told Herman to put it there. He didn't ask me if it was all right with me. He never asked me about anything of the kind, 'vhether it was agreeable, and I didn't kick.

Q. Your husband told you that he had told Herman to go .ahead and build the new storehouse on the new road Y

A. Yes, sir. Q. That was before the store had ~ctually been started Y


A. I don't know about that. I don't know whether it had been started or not. ·

Q. Y oh didn't raise any objection to it. A. No, I didn't say anything. I had the objections in my

heart but didn't say anything. I didn't want it there but 'vouldn 't tell him so. He had a store on the road and I thought that was enough for him, but he wanted to come up there and I wouldn't say anything.

Q. You let your husband deal with the farm in 8J1Y fashion he saw fit then without your raising a.ny objection, isn't that true?

A. He generally done things right and to suit himself mostly. I didn't take his business in my hands at all.

Q. And if he chose to sell Herman a place to put the new ·store it was all right 'vith you?

page 170 ~ A. It wasn't so all right but I didn't say anything, I told you. You know very well I said I

wouldn't sign that deed, don't you f You brought it up there. Q. No, I don't recall it. I don't think any deed was drawn

in which your name was included. A. Ho'v come Frank come in there to tell me s~o? He said

you had come up to see me and talk to me and I said "it's no use for him to come in and talk to me because I am not going to sign for that store'' and you were sitting on the porch and heard it.

Q. I don't recall the incident, but tha~ was after Herman and his wife had separated, wasn't it?

A. Yes, sir, they had separated. Q. You made the remark, I believe, that if Herman had

stayed there at the store and behaved himself it would have been all right?

A. It would have been all right, of course it was, but I wasn't never· going to deed it.

Q. There would have been no objection on your part-? A. No. Q. And when you spoke of a deed being brought to you

to be signed that was after Herman and his wife had separated?

A. I reckon so because she was there. You all made that agreement out there on the porch.

Q. In other words, Herman had not acted all right at that time?

A. No, he had not. Q. Well now, Mrs. Edna C. Thompson has been occupying

the store since she and Herman separated in 1934, has she not?

A. I think so.


Q. And hasn't she been acting all right Y A. She acted all right until six or eight months ago.

Q. Then what happened t page 171 }- A. She got mad and fussing and raising

''scratch'.' down there and she and my daughter couldn't agree at all.

Q. Which daughter Y A. This one right over here. Q. There are three of them over there. Which one ar~ you

referring to 7 A. Mrs~ Jones. She got very disagreeable and made things

mighty unpleasant and we just naturally left home, just naturally left home to keep down a fuss. There was. always a fuss.

Q. Did you all live in the same home with her Y · A. We did awhile. She stayed with us from the time Herman left until the next June or July and she didn't want to leave then but she had to leave.

Q. And since July, 1934, then Mrs. Edna C. Thompson has been living at a different place from you and your family Y

A. Yes, sir. Q. Now, in what way was she able to make it so disagree-

able for you if you 'vere all living in separate houses Y A. She made it very unpleasant. · Q. In what wayY A. Talking so much. Q. About whom? A. About us all, carrying on worse than a wildcat. Q. When did that begin Y . A. Well, it began about six or eight months ago. Q. Six or eight months ago 7 A. Yes, sir. I don't think it could have been much longer. Q. That would put it about the first of last December! A. Oh, no, it was before that,-this last gone December.

Q. Yes. page 172 }- A. It was before that she was raising sand down

there in that bottom, making things mighty unpleasant. If she hadn't she would have still stayed right there, but she wasn't satisfied or she wouldn't have carried on like she did.

Q. Why was it necessary for you and your family to come in contact with her if you were living in separate places T

A. Well, we didn't come in contact more than we had to pass by her door coming and going and every time we passed we would hear something she had to say about us and she would go around through the neighborl1ood telling everybody


where we would go a~d when we would come back and meddle with our business a whole lot.

Q. You mean that is what other people would tell you Y A. Of course other people would tell us. She would tell

other people and they would tell us. Q. You were depending on what somebody else told you? A. She would have told us if we had gone down there. Her

and Mrs. Jones met on the hillside to make friends and I told her, "Bernice, will you go down there and make up with Edna and you and her live like folks ought to'' and she said, "Mama, if you say so I will go". She called Edna and the next thing they were just worse than ever. Now, who C!)uld live such lives as that? They were worse then, and we,of course, I never had any words with Edna in· my life.

Q. I believe Mrs. Jones is your daughter 7 A. Yes, sir, she is my daughter. Q. Yon say it was before last December that the situation

got so bad down near the storeY A. I think it was. Can I ask Bernice Y

Q. No. page 173 ~ .A. I don't know exactly when to save my life.

Q. Give us an idea as nearly as you can? A. What difference does it make, if I don't know Y Q. Then you say that you can't tell us. Is that what I

am to infer? A. I can't tell you exactly when the hard feelings began to

start. Q. Well, I didn't want you to tell me the exact date but I

would like to know as nearly as you can give it. You say it was before the first of last December?

.A. It was last summer sometime, I think. Q. Then 'vhy was it yon waited from last summer up until

March of this year to give her a notice to get out of the storeY A. That is somebody else's business. That wasn't mine. Q. You had no part in giving her a notice Y A. Yes, sir, I did. I wanted her out of there. She knew

we wanted her out of there. We told her enough and she knew she had to get out and she kept saying we· wanted her out and she was going to get out,-had made arrangements several times to get out. I had people to tell me she told them she had a place to go when she got out.

Q. She didn't tell you that? .A. No, sir, she hasn't spoken to me for over a year.

Note: Counsel for the complainant moves that all hearsay answers be stricken out.


Q. What property do you own, Mrs. Thompson? A. I don't own any now. I have my interest in that home

down there, my lifetime interest. \ Q. Aside from that lifetime interest in the real estate do

you own any other real estate or personal prop-page 17 4 ~· erty of any kind Y ·

A. No. Q. Mrs. Thompson, I believe you heard your son, Herman,

state that he paid in the neighborhood of nine hundred or a thousand dollars to have the store built originally?

A. Yes, sir. Q. You stated that your husband told you that he had told

Herman to go ahead and put the store there Y A. Yes, sir, I heard him say so. I don't remember he told

Herman he could put it there but he expected for Herman to pay him.

Q. Expected Herman to pay him a hundred dollars Y A. Yes, sir, that is what Herman said. Q. Expected for Herman to pay him for it. Is that what

your husband told you Y A. Yes, sir. Q. Was it your intention then to see Herman put his money

into building the store that cost a thousand dollars and you were to later take the store away from him Y

A. Take it away from him if I wanted to, if he didn't behave.

Q. Simply because he didn't have a deed Y A. Yes, sir, I was going to take it away from him.


By Mr. Hester: Q. ~1rs. Thompson, did you ever authorize your husband

to convey any land for you or sell any land for you Y A. No, sir. · Q. Did you ever authorize him to do anything with the land

one way or the other for you? A. No, sir. ·

Q. Did he ever ask you for permission to sell page 175 }- any of your lands?

1 A. Well, yes, sir, he said something about sell-

ing that hill down there once. A man wanted to buy it and put up a store down there on that hill called ''Lee's Hill'' and I told him I wasn't going to do it and I refused him and it was all right with him. Wasn't another word said and he said "I reckon it is best not to", but when he said he had turned it over to Herman then I was with him.

J. S. and Judy C. Thompson v. Edna C. Thompson. ·149

Q. That same place Y A. Yes, sir, the place down where the store was put up.

_. Q. I am going to ask you this: You knew he was putting It up there but did you ev:er consent and were you ever willing for him to go and build that store there at the new place Y

A. No. Q. And would you have signed a deed for it if your hus

band had brought it there to sign 7 A. No, s~r, and didn't I tell this man I wasn't going to

sign a deed to give it to Herman (indicating Mr. Jordan) Y He knows I told him that, and I wasn't going to do it be· cause I didn't want anybody else to have it.

Q. Are you willing for the notary to sign your name to your deposition when it is written out f

A. Yes, sir.


MRS. JUDITH C. THOMPSON, Deponent.

By C. R. McCAR.THY, Notary Public.

page 176 r JAMES STAFFORD THOMPSON, a witness of lawful age, being first duly sworn,

deposes as follows:

DIRECT EXAJ\ITNATION.

By Judge Campbell: Q. Mr. Thompson, you are one of the defendants in this

suit, are you not? A. Yes, sir. Q. There is a deed in evidence dated May 5th, 1933, by

Judy C. Thompson and R. D. Thompson, her husband, to James Stafford Thompson, their son, conveying a. tract of land described as leaving ninety-five acres after deducting therefrom 4.65 acres which was sold to Herman C. Thompson, and one acre to B. M. Jones and wife. There was reserved in that deed a life estate to the grantors and to the survivor in said real estate. Was this deed executed and delivered to you as purported?

A. Yes, sir. Q. Does this deed embrace the storehouse and land on which

it is built and which is in dispute in this caseY A. Yes, sir. Q. At the time that this deed was made was there any ques-


tion raised about whether or not Herman C. Thompson had any title either legal or equitable to the storehouse and th~ lot on which it stands T

.A. Not a word. Q. Do you know whether or not Herman Thompson and

his wife knew that this deed was being made to you by your mother? I

A. Yes, sir. Q. Was it discussed in the family before it was made t A. Yes, sir, I should think it was. Q. Were you living at home at that timeT

A. Yes, sir. page 177 ~ Q. Was there any consideration given by you

for the purchase of this land 7 A. Only to see after my mother and father. Q. Did you assume the payment of a deed of trust on this

property? A. Yes, sir. Q. Has that deed of trust. been paid? A. No, sir. Q. Is that your obligation and so recognized by you to take

care of that six hundred dollars? .A. Yes, sir. Q. And you say a part of the consideration was that you

were to take care of your mother and father T A. Yes, sir. -Q. Have you been doing that since that timeT A. Yes, sir. Q. Where does your mother live T A. She lives with Mrs. Jones no,v. Q. Has she been living with you T A. Yes, sir, up until we moved over to Mrs. Jones'. Q. How long have you been away from the home placeT A. I couldn't tell you exactly. Q. Are you living at Mrs. Jones'Y A.. No, I am staying out at Pealdand Service Station now.

I was living with her up until about six weeks ago or two months.

Q. And your mother was living witli you up until about six weeks or two months ago Y

A. Something like that. I co~ldn 't tell you exactly. Q. When did you move from the home house? A. I think it was last November. I wouldn't say for cer-

tain. I

page 178 ~ Q. Did she move at that time too Y A. Yes, sir.

Q. Did she go with you to your new home f

J. S. and Judy C. Thompson v. Edna C. Thompson. . 151

A. At the Peakland Service Station, yes, sir. · Q. Did Herman know that you were taking a deed to the

whole property Y A. Yes, sir. Q. Did he raise any question about it Y A. No. Q. Now, do you know anything about an agreement for a

settlement between Herman Thompson, your brother, and his wife, Edna C. Thompson T

A. I know the agreement that was drawn up between her and Herman.

Q. Did you take any part in that adjusfment? A. I don't know whether you would call it a part or not but

I was a party to it. I was present at least. Q. Were you present when the contract was drawn up be-

tween them 1 . A. I ·don't know about the drawing up. I was present when

it was signed, when Edna signed it. Q. Where did that take placeY A. In Mr. Hester's office or in Mr. Jordan's office. I

wouldn't say for certain which. Q. Was anything said at that time or before that about

whether or not Herman owned the store building and the land on which it was located?

A. Edna made excuses for not signing the agreement saying Herman was leaving her the stock and :fixtures but complained about the stock right much and she said the storehouse didn't belong to him and he couldn't make it over to her.

Q. At the very time this agreement was signed between them Edna made the statement that the store

page 179 ~ house didn't belong to him and she wouldn't be getting that Y

A. Yes, sir. She refused to sign it at first. Q. Now, where did that take place? Where was that state-

ment made? A. In Mr. Hester's office. Q. Who was present Y A. Drinkard, myself and Edna and Mr. Hester. Q. Have you ever at' any time acknowledged that Edna

owned any part of this property or had a right to take it against your will?

A. No. Q. Had she ever made ·any demand for it before an action of

ejectment was brought against her? · A. No.

152 .Supreme Court of .Appeals of Virgini~

Q. Were you present when the deed was taken to your mother's home for your mother to sign Y ·

A. Yes, sir, I was present. I don't recall that any deed was taken, Mr. Campbell, but we all went up there to see about whether it could be made over to her. I was })resent and Booker Drinkard. I think Booker had not gotten there and I started down the hill after him an<l n1et hhn coming and Frank Woodall was present.

Q. What year was th~t in Y A. The year of the separation or the agreement., I couldn't

tell you that now .. Q. Was it before or after your n1other had conveyed it to

you? A. Before she conveyed it to me,-no, it was after she

conveyed it to me. Q. So at the time that they went to your n1other 's house to

get her to sign a deed the property belonged to you? A. Yes, sir.

page 180 ~ Q. She had a life interest in it, I believe Y A. Yes, sir.

Q. Did you ever agree to sign any deed conveying an interest to Edna?

A. No~ Q. Now then, some testimony is here about a contract being

brought to you by Mr. Bennett. Do you recall that incident? A. Yes, sir. Q. Tell us just what happened the first time Mr. Bennett

came to see you. A. Mr. Bennett came out there and 1-:iaid he thought be had

a sale for the property down there nnd 'vould like to include the store with the home property, the twenty acres and home place, and I told him well if he had a sale for it at the price to go ahead and sell it. He said something llbout having a contract or could get one for the sale for the property but I didn't see any contract. Mr. Bennett didn't show any c-ontract to me. He said something about having a sale for it,-said he had some party that would take the property.

Q. Did you list your property with ~fr. Bennett? A. No, I never have listed it with him. There was some

talk about it at one time. · Q. Did you ever sign any contract with him to list your

property? A. No. Q. Did you tell him what you would take for your I>roperty? A. Yes, ~ir. Q. What did you tell him you would take? A. $2, 750.00.

I

I .

I


Q. Was that to be gross or net to you T A. Gross.

page 181 ~ Q. How much would you get for your property net?

A. $2,500.00. Q. In other words you would have been willing, so far as

you were concerned, to take $2,500.00 for the whole place there?

A. No, for the twenty acres and home place. Q. Did you know that Edna was claiming any part of this

property? A. No, I didn't know she was claiming any part of it but I

told her I would give her some part of it at the time. Q. At that time you were friendly with her Y A. Yes, sir. Q. And rather taking her part. As a matter of fact you em

ployed a lawyer for her and represented her in the matter? A. Yes, sir.

By Mr. Thompson: What do you mean by that? By Judge Campbell: To represent her in the separation

agr~ement. 0

Q. Do I understand you to mean· that if you could have gotten $2,500.00 net for that twenty acres, including the store, you would have been willing to have given her anything in excess of that at that time?

A. Yes, sir. Q. Now, Mr. Bennett came to your place twice, didn't heY A. Yes, sir.

0

Q. What happened the second time that he came? A. The second time he brought a contrac~ stating that

Edna's interest would be the storehouse and land the buildings which it contained.

Q. The contract had in it that Edna was to get what? A. Edna was to get a thousand dollars, I believe, for . the

land and the buildings upon it which was the storepage 182 r house and other buildings.

. Q. Had you ever authorized any such contract as that? ·

A. No, sl.r. Q. When that contract was presented to you what did you

do? A. I told Mr. Boennett I wouldn't sign that contract. I told

him I didn't recognize that Edna had that interest there; that the land and buildings didn't belong to her.


Q. You told him that the land and buildings belonged to you?

A. That is what I thought any way. Q. So you refused to sign that contract and have never

signed any contract giving her any· interest whatever? A. No. Q. At that time you were, I believe, endeavoring to help

Edna. all you could Y A. Yes, sir. Q. Did you offer to give her any money Y A. No. Q. Did you offer to pay her anything for her interest in

this property 1 · _ A. No, I told her she might hav.e what the store would

bring above what I was asking for that part of the property. Tha.t was done to make a peaceable settlement?

Q. Did you make her a proposition to pay her six hundred dollars or any other sum· of money Y

A. I made a proposition through my attorney here. Q. Was that by way of settlement or compromise or what? A. Settlement or compromise or any way you want to take

it, I recko~. Q. What was the inducement Y

page 183 ~ A. I thought it best not to have any hard feel-ings between the family if it could be avoided.

Three of our family married in that family, you know. I thought it the best thing to settle the thing as quiet and peaceful as we could and to settle it without any law. I tried every way I could to settle it without any law.

Q. Any offer you made was an offer merely to keep peace Y A. To keep peace, yes, sir.· Q. What do you mean by three of your family married into

their family? · . · A. Two of my brothers and one sister married into her

family. I certainly didn't want all this to go on if it could be avoided.

Q. Have you frequently or not talked with Edna about this store property and situation that it was in Y

A. I talked with her at first, yes, sir. Q. Did she know how the thing stood?· A. Yes, sir, she knew how it stood. Q. Did she make any claim to the storehouse or the land

on which it was 1 A. No. . Q. And I believe you said she stated in this office that she

wasn't getting t-hat Y A. Wasn't getting the building. She said she was only

J. S. and Judy C. Thompson v. Edna C~ Thompson. 155

getting the stock and :fixtures and it was a small stock at that.

Q . .As a matter of fact she lived in your home and your mother's ·home for pretty nearly a year after Hennan and she separated, didn't she? ·

A: Yes, sir. I don't know exactly how long it was but I think it was just about a year.

Q. When this deed was made to you on the 5th page 184 ~ of May, 1933, were you all on good terms at that

time? ..A. Yes, sir. . Q. And that deed you said was discussed in the home be-

fore it was made? A. Yes, sir. Q. Wa~ she living there at the time? A. She was living down at her home then.

CROSS EXAMINATION.

By Mr. Thompson: Q. You have lived there with your mother and father prac

tically all of your life, haven't you, Stafford T A. Yes, sir.· Q. You knew when Herman was building the store, didn't

youq A. Yes, sir. Q. Did you know anything about what the understanding

was between he and his father T A. No more than heresay. Q. Did you ever hear your father say anything about it

or hear Herman say anything about itT A. I heard my father and Herman. Q. What did they say about itt A. They said Herman was to pay one hundred dollars for

it, from what I understood. Q. That was before the land was deeded to you, wasn't itY A. Yes, sir. Q. And Herman did build this store and paid for it Y A. Yes, sir. Q. Now this land originally belonged to your father and

then was deeded to your mother and you children Y page 185 ~ A. Yes; sir. ·

Q. .And then in 1926 you children deeded your interest to your mother, didn't you Y ,

A .. Yes, sir. I don't know whether it was in 1926 or not but we deeded it to her.

Q. There was never any dispute in the family about these


affairs, was it? You were all together and you understood each other?

A. Yes, sir. Q. In 1933, when your mother and father deeded you the

property the store was there on the property and Herman was operating the stllre, wasn't heY

A. Yes, sir. Q. And you knew of the understanding between he and

his father about it 7 A. I had heard of it. I didn't know it. Q. But you heard your father say what it was 7 A. Yes, sir. Q. You didn't ask Herman to pay any rent, did you Y A. No, sir. Q. Did you ask him to pay the hundred dollars Y A. No, sir. · Q. So far as you know has any demand been made on either

Herman or his wife for the hundred dollars Y A. No, sir. Q. Now, at the time of the separation between Herman and

his wife it has been testified to here by you and by others that you and Mr. Woodall and Mr. Drinkard and probably Mr. Jordan here went up to your mother's home there to ask her about making a deed to Edna to this piece of property.

Is that correct? page 186 } A. Yes, sir, went up I believe to sign it over

to her or something to that effect. . Q. At that time you were willing to make a deed so far

as you were concerned 7 A. Yes, I may have done it. I can't say. Q. You went down and asked Mr. Drinkard to come up and

be a witness? A. I told him I would like for him to be up there. He told

me he was and hadn't got there. He had been with us all the time but he hadn't gotten there.

Q. You were anxious at that time to get the whole matter straightened out, let her have the deed for the store and have it all settled. Wasn't that your intention Y

A. I don't know about the deed for the store. I had to consult Mama about it anyway.

Q. She had a life interest, but so far as you were concerned you were willing to do it. The point is, if your mother had consented you would have consented, wouldn't you?

A. We just went up to discuss it between ourselves. I would no doubt have done it if she would. We went up to discuss the matter to see what could be done.


Q. What is.the balance due on the deed of trust at the Pilot Building and Loan Association Y

A. I couldn't tell you exactly but about five hundred dollars.

Q. Have you been keeping up the payments on it as they became duef ·

A. Yes, sir. Q. Do you recall what the six hundred dollars was used

for? A. No, I couldn't tell you that. It was about the time Papa

was sick and I think it was used, the biggest proportion, for him.

page 187 ~ Q. That deed of trust was made almost simul-taneously with the deed to youf

A. Yes, sir. Q. The deed and deed of trust were dated the same day T A. That was gotten through before it was turned over to

·me, but most of that money was used for Papa. Q. Now, I believe you say that you told Mr. Bennett that

if he would get you $2,750.00 net to you,-gross to you, that you would sign a deed to the twenty acres including the house and the storehouse in which Mrs. Thompson was operating. Now, the contract that he brought you which has been introduced in evidence here provided for a sale at the sum of $4,100.00, didn't it'

A. Yes, sir. Q. Now, $3,100.00, less Mr. Bennett's commission of 10%

would have given you your $2,750.00, wouldn't it? A. Would have given me more than that, wouldn't it? He

had it in the contract I was to get $3,100.00 when he came back.

Q. Less 10% commission Y A. Yes, sir. Q. Now, that couldn't have in any way harmed you, if he

had a sale of the land at that figure Y • A. I don't reckon it could if he had a sale but I· didn't figure

he had a sale from the way he talked. Q. Yon were willing to sell under those terms Y A .. I 'vouldn 't have signed that contract, 1\{r. Thompson,

after reading it. I told Mr. Bennett so. , , Q. Your objection was because it provided that she was to

get something? A. It provided that she owned the land and the store.

Q. That she should have $1,000.00 for her in-page 188 } terest Y -

A. I told him I didn't recognize she owned anything but to have a peaceable settlement I would give her over

':

.. '· :: _:.:.'.4

158 .Supreme Court of Appeals of Virginia.

and above what I was asking for the property. Q. And you did make her an offer of $500.00 in March or

April of this year in order to have a settlement Y .A. Yes, sir. Q. Now, in turn she made you an offer to .pay you one h,un

dred dollars for the land or else accept a thousand dollars for the store building, didn't she Y

.A. I think so. I don't know exactly about that. Q. That is your recollection, isn't it Y .A. I think so. I wouldn't swear to it. I didn't pay much

attention to it after she didn't accept the offer that I made. Q. And you say that you told Mrs. Thompson you would

give her part of what the place brought. When was that Y .A. I told her that on several occasions. When it was· I

couldn't tell you definitely. Q. In other words you felt like that you ought to give her

something out of the place Y . .A. Well, I felt like to settle that thing as pleasantly as I ·

could, and as I told you, not to have any hard feelings, I would have given her whatever the store would have brought, no matter what it was, even if it had been five thousand dollars.

Q. What do you think the store and land on which it is located would be worthY

.A. It ain't worth much unless it is included with the house tliere, with what little road trade there is. If you don't keep it on the home place it isn't worth much, and whoever gets hold of it will :find that out too, I expect.

Q. Just give us an idea what you think it would page 189 ~ be worth.

A. I think it ought to be worth what we were asking for it.

Q. A thousand dollars? A. Yes, sir, altogether. No,v, if anybody is going to buy

it off the home place I don't think it would bring it after they looked into the matter.

Q. Your idea is the store building if included with the twenty acres you mentioned is worth a thousand dollars more?

A. I don't know. The store is there and it takes away, I think, from the value of the property by being right there in front of it, but I wouldn't say that. It ·would have to be sold together according to my notion to get anything like the value 'of either.

Q. If sold together do you think it is worth $4,100.00 Y A. I don't know. That is more than we were asking for it. Q. Do you think it would be 'vorth that? A. Well, I have no right to say. I don't know.

J. S. and Judy C. Thompson v. Edna C. Thompson. 159 •

Q. What do you. think it is worth, the home place including the store and eve.rythingt

A. I thought it was worth what we were asking for it, $2,750.00 or I wouldn't have asked it, and when he come out there with a contract for $4,100.00 I told him I wasn't asking that and it wasn't any us·e of putting it up so high. He said if he cot:tld get that what was the objection a~d I said I didn't object if he had a sale for it.

Q. Would you today accept $2,750.00 for your interest in the twenty acres, including the home place and the storeY

A. Yes, sir.


By Judge Campbell: Q. How far is the dwelling house on the twenty acre tract

from the storehouse Y page 190 ~ A. Seventy-five yards,-that is, direct straight

to the house from the store. · Q. And around the road how far is it Y. A. One hundred and thirty-five yards, or about that. Q. Where does the road come out from the house. Does

it come by the storeY . A. Yes, sir, right in front of the store. Q. Do you regard that the placing of a store such as this one

in front of the dwelling house and that close to it would enhance the value of the whole property or not Y

A. I couldn't say as to that. If anyone wanted the whole thing together it might enhance the value some.

Q. Suppose somebody wanted the store and somebody else the storeY

A. I would say it wouldn't. · · Q. Would that depreciate the value of the balance of it? A. Yes, sir, it would. Q. How much would you say it would depreciate it Y A. As much as the store is worth. Take it right off the

front of the place and the Jones place has got the other part and it wouldn't touch the road at all.

Q. Now, to cut that off, the store and sufficient land to have for the use of the store you say would depreciate the balance of the property as much as the store is worth. · .

A. It would to me, I know. I wouldn't want any store there unless I owned it.

Q. An acre is seventy yards square. If you cut an acre off of there, including the store, how close would it come to the dwelling house?

A. I think it would go back beyond the dwelling house

160 Supreme Court of Appeals of. Virginia

some. I went up kind of diagonally when I page 191 ~ measured it. If you went straight back as you

would have to do from the store it would take in beyond the house.

Q. H·ow close would it go to the house f A. Right in the yard. You could take in the house if you

wanted it. Q. Did you ever hear anybody suggest, your father ·or Her

man, or ~nybody else where the boundry lines were to beY A. No, but I know he didn't intend anything like that. I

know that. Q. Did you know what land your father and Herman had

in mind as to the purchase there? A.· I never heard any suggestion as to that at all. Q. And you say Herman knew you were taking this deed

from your father? .A. Yes, sir. Q. And he raised no question about it. I mean from your

mother and raised no question about it? A. No, he didn't.

RE-CROSS EXAMINATION. ·

By Mr. Thompson: Q. Did you ever step the distance from the filling station

to the house f A. Yes, sir. . Q. And it was seventy-five steps~ A. Seventy-five steps from the corner of the store to the

corner of the house and 135 steps around the way you walk. Q. 1\{r. Thompson, you have stated that you wanted to set

tle this matter peaceably and for everybody to remain on good terms?

A. I did want to. I tried hard enough to. Q. No,v, I a~ going to have my client make you this propo

sition: We will pay you $2,750.00 for that land on page 192 } the left side of the road going towards Concord,

including the store building and about t'venty acres, I believe it is. Now, if you want to do . that we will do that.

A. Well, I couldn't do it·without my mother's.consent. As far as I am concerned you arc 'velcome to it.

Q. That is agreeable with you? A. That is agreeable to me. Q. I think Mrs. Thompson is here. I will ask her.

J. S. and Judy C. Thompson v. Edna C. Thompson. · 161

By Judge Campbell:- I think that is a proposition they might or might not want to think over.

By Mr. Thompson: Let me ask Mr. Thompson one other question:

Q. Mr. Thompson, your sister, Mrs. Jones, owns how much land there close to your old home place?

A. It is nine-tenths of an acre. · Q. How far is that house from the old homestead? A. Thirty or forty yards, I reckon. · Q. That is almost immediately in front of your home housei A. Yes, sir. Q. Do you consent for the notary to sign your name to your

deposition when it is written outY A. Yes, sir.


J. STAFFORD THOMPSON, Deponent. -

By C. R. 1\foCARTHY, Notary Public.

page 193 ~ By Judge Camp bell : We are through in chief.

State of Virginia, City of Lynchburg, to-wit:

I, C. R. ~IcCarthy, a Notary Public in and for the City aforesaid, in the State of Virginia, do hereby certify that the foregoing depositions of Mrs. Bernice Jones, Booker Drinkard, D. A. Ferguson, B. M. Jones, Mrs. Ossie Woodall, Mrs. A. W. Sweeney, Theron Thompson, Herman C. Thompson, Mrs. Judith C. Thompson, and J. Stafford Thompson were duly taken and sworn to before me at the time and place and for the purpose mentioned in the caption, and that the signatures of the witnesses to their respective depositions were signed by me as therein authorized.

Given under my hand this 17th day of July, 1937. My commission expires February 7th, 1939.

C. R. McCARTHY, Notary Public.

16~ Supreme Court of Appeals of Virginia

page 194 ~ Virginia:

In the Circuit Court. of Campbell CouAty.

OPINION OF THE COt.JRT.

Edna C. Thompson v.

James Stafford Thompson, et al.~.

The plaintiff seeks specific perform~:n()e of ~n all~ged contract for the conveyance of a tract of land on the ConcordLynchburg Road, near Six l\{ile Bridge, ttpon which her busband and predecessor in title erected a store and filling sta.,. tion. The alleged consideration which was to ~ paid by said husband is $100.00. The dofendants rely upon the laches of both· the plaintiff and her htJ.~b11nd who ~11veyeQ. to her, in a separation agreement, all his ''right, title and interest'' in the premises. It i~ also contended by the defendants that said contract comes within the inhibition of section 5141 and of the Statue of Frauds. Without going further into the facts and arguments thereon, it is sufficient to say that said grounds of defence are sustained by the evidence. Even if it be granted that the consideration was to be the su:m ()f $l00.00, the contract is too vague and uncertain, the proof thereof too doubtful, and the description of the land to be conv~y~d, too indefinite to enable the Court to comp~l spe()i:fic performance. 'l'his is not to say, however, that the plaintiff is altogether to he denied relief in equity. It is clear frorn th~ evidenc~ that the defendants knew of th~ store being erected on. their property, and acquiesced in its being done t1nd in the store being operated by the plaiptiff and her husband until a valuabl~ business was built up, and to enable them now to cast her O'Q.t and to take possession of th~ property without com-

pensation for the improvements would be to operpage 195 r ate &ll injustice -qpon her which equity win· not

perwit. And the Court of Eq-qity having takep jurisdiction in the matter will proceed to render :fin.a.l adjudication of the rights of the partie~ without compellip.g them to resort to their remedies at law. It is plain that the store has enhanced the value of the property, although the defendants claim they ·woJJld rather it were not there. There i~ conflict as to the value of the improvements, but taking the evidence as a whole, the Court thinks a fair adjustment of the rights of the parties will be made by requiring the defendants to pay the plaintiff $900.00, upon which being done the


injunction will be dissolved and the suit dismissed, each side paying its own costs·. A ·decree may be drawn accordingly.

page 196 r Virginia:

In the Clerk's Office of the Circuit Court of Campbell County, the 11th day of November, 1937. -

I

I, C. W. Woodson, Clerk of the Circuit Court of Campbell County, do hereby certify that the foreoging is a true transcript of the record in the chancery cause of Edna C. Thompson, plaintiff, and James Stafford Thompson and others defendants, lately pending in said Court; and I further certify that notice of application for a transcript of said record as required by Section 6339 of the Code of :Virginia, was duly given as appears by paper writings filed with the record in said cause.

Given under my hand this 11th day of November, 1937.


Fee for transcript, $60.00.


A Copy-Teste:

M. B. WATTS, C. C.

INDEX . ~p

Pet}:tioJ?. for Appeal ....... ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ~ord ... · .......................................... 24

---13ill of Gomplaint . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 25 Exhibit "A" With Bill-Deed, Robert J. Davis, Com

mis~ioner toR. D. Th~mpson and L. W .. Drinkard, December 5, 1889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Exhibit "B" With Bill-Deed, Richard D. Thompson to J ~da. C~ Thompson and children, April14, 18~7 ... :. . 32 ·

Exhi~~t ''C" With Bill-Deed, Ossie· Woodall and others to J:udy C. Thompson, ·February 27, 1926 ..........• 33

Exhibit ."D." With Bill-Deed, Judy C. Thompson and husband to James Stafford Thompson, May 5, 1933. . 37

Exhibit ''E" With Bill-· Deed, Judy C. Thompson and husband toP. G. Cosby, Jr., Trustee, and others, May 5, 1933 . . ... 0 ••• 0 0 • 0 0 0 0 ••••• 0 0 • 0 0 ••• .-. ~ 0 0 0 0 ••• 0 0 • 0 • 39

Exhibit "F" With Bill-Contract, Herman C. Thompson and Mrs. Edna C. Thompson, September 10, 1934. . . . 42

Exhibit "G" With Bill-Deed, Herman 0. Thompson to Edna C. Thompson, September 15, 1934 ............. 43

Exhibit "H"-Declaration and Notice, James S. Thomp-son, &c. v. Edna C. Thompson, May 12, 1937. . . . . . . . 45

Order Granting Injunction, 1\tlay 12, 1937. . . . . . . . . . . .. . . . . 46 Answer of Defendants ............................... 47 .Amended Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Ans,ver of James Stafford Thompson to Amended Bill. . . 51 Answer of Judith C. Thompson to Amended Bill .. · ...... 53 ·Affidavit of Herman C. Thompson .. · ................... 56 Decree, June 14, 1937-Temporary Injunction Enlarged .. 57 Decree, October 13, 1937--Appealed from .............. 58 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

John W. Harvey . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . 60 R. C. Worley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 T. R. Thompson . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 64 B. H. Drinkard ................................... 67 W. R. Giles ... -................................... 71 Preston Cox ............................... · ..... 72 John Wade ...................................... 75 Will Alvis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 76

.. &.• ·-.~

-.

INDEX . Page

Edna C. Thompson . . .................... : . .... 77, 92 W. J.. Bennett . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 ·T; -J.· King· .. ·. ~ ... ; ~ ~ ; ; .. ; . ~; .. ··. ~ ; .. · ........ · ....... ·. · 91 ·Mrs·. ·Bernice Jones • ~ ..... ; ~ ~ ;. ~ ;. • ~ • ~ •• • •• ; ....... ~ .. 100 -

~ Booker Drinkard • ~ .• ~ • ; ~ ... ~ .. ~ ·. ; . · .......... -..... 102 · D. .A.. Ferguson . . ................ ~ . . . . .. . . . . . . . . . . 105-B. M. J on.es . . ..................•. ·· ........... : ..... 108 ·Mrs~ Ossie· Woodall • • ... ; .•... · ..•................. 112 Mrs. A. W. Sweeney ....................•........ · .. 116 ·Theron Thompson· . . ................. · ........... ~ .117 Herman C. Thompson ............................ 123 Mrs~ Judith C. Thompson ......................... 140 James .Stafford Thompson . . ...................... 149

Exhibit 1, W. J. Bennett-Property Listing Ag·reement .. 94 Exhibit 2, W. J. Bennett-Property Listing Agreement. . 97 Opinion of the Court . . ............................... 162 Clerk's Certificate •........... ·.! ••••••••••••••••••••• 163

Documents

J I~ fo Record No. 1957