Res Judicata. Set-off, Larger than Plaintiff's Claim. Recovery of Surplus

1899 The Virginia Law Register  
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more » ... out Early Journal Content at JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact The present language of the New York standard policy, "while located and contained as described herein and not elsewhere," is intended to obviate the effect of these decisions, and the ruling in the principal case gives effect to that intention. The reasoning, however, upon which the former construction was based, applies with but little less force to the new form, and we shall not be surprised to find many courts adhering to the former construction. TRUSTS AND TRUSTEES-WRONGFUL CONVEYANCE -REMAINDERMAN- LACHES. -Land was conveyed to a trustee to be held "for the benefit of A during her natural life and at her death to the issue of A by her husband B," with power of sale and reinvestment on similar trusts, at the request of A in writing. Subsequently the trustee and the life-tenant united in a conveyance of a portion of the property to C, through whom, by several mesne conveyances, one of the defendants claimed title. The deed in question recited a consideration of $3,000 "to the said A (life-tenant) in hand paid." Subsequently the trustee wrongfully quit-claimed to the life-tenant and her busband the remaining portion, and contemporaneously therewith, she and her husband, in consideration of $3,500 'paid to the husband of A' (naming him) conveyed the same to another of the defendants. Some forty years after these transactions, the life-tenant died, whereupon the remaindermen instituted suit to recover the property-alleging that the trustee and life-tenant had committed a devastavit of the estate; that the conveyances aforesaid were not made for the purpose of reinvestment, and that the purchase money had been paid not to the trustee but to the life-tenant and her husband, and that the defendants and their predecessors in title were charged with notice thereof by the recitals in the deeds themselves. Defendants amongst other defenses set up the laches of the remaindermen. Held, that while ordinarily there can be no adverse possession against remaindermen, or laches in respect to their interest, until the falling in of the particular estate, yet in this case, the conveyances by the trustee, howsoever wrongful, carried full legal title to his grantees, thereby divesting the remaindermen of their title and creating an adverse possession against them in such grantees. Robinson v. Pierce (Ala.), 24 South, 984. The decision seems right on principle. The opinion by Head, J., contains a masterly discussion of the questions (1) whether full legal title was in the trustee; (2) whether his wrongful conveyances, showing the breach of trust on their face, carried full legal title to the grantees; and (3) assuming that legal title passed, whether possession was adverse to the remaindermen, during the life of the particular tenant. Each is answered in the affirmative. See in this connection Taylor v. King, 6 Munf. 358; Harris v. Harris, Id. 367; Gibson v. Jones, 5 Leigh. 370. RES JUDICATA-SET-OFF, LARGER THAN PLAINTIFF'S CLAIM-RECOVERY RES JUDICATA-SET-OFF, LARGER THAN PLAINTIFF'S CLAIM-RECOVERY OF SURPLUS.-Plaintiff sued defendant for money collected as attorney. Defendant pleaded a set-off larger in amount than the plaintiff's claim, but under the existing rules of practice, no recovery could be had over against the plaintiff for the surplus; and, under the instructions of the court, the jury allowed so much of the defendant's set-off as was necessary to extinguish the plaintiff's demand. In a subsequent suit by the same plaintiff against the same defendant on 1899.] 1899.] 1899.] 55 55 55 NOTES OF CASES. NOTES OF CASES. NOTES OF CASES.
doi:10.2307/1097923 fatcat:gsglyxnlwbcxlipobvbsy5hvu4