The Papers of John B. Minor, 1845-1893

Case Stated by Walter G. Hudgins of Bowling Green, to Mr. Holcombe.

Tennent is insolvent, with many judgments agst him, & has been carrying on business in his wife's name.

His wife's father was also insolvent & died so.

Afterwards his wife's grand-father died, & by his will "devised" 1/12 part of his estate to two of his sons, in trust for Tennent's father in law, who died before the testator, leaving Mrs Tennent & another daughter him surviving.

Tennent & wife had not filed a bill "to subject her share of her g fathers estate to her separate use &c."

The question is what is the proper cause for Tennent's creditors to pursue?

Hudgin says he has "put executions in the sheriff's hands."

At the first blush, it appears to me that the rights of the creditors, as well as the mode of proceeding, will depend very much on whether the property, "devised" by Mrs Tennents g father's will be real or personal.

In either case it passes to Mrs T & her sister (...) it could have done to their father, had hesurvived the (...) tor, (V. C. 517. C 122. § 13) and consequently is an equitable estate in fee simple in their (...) legal title being vested in their uncles, the trustees.

Supposing the property to be real.

covenant to [faith?] the said Thomas H. Campbell, that he, then said Joseph A. Jones, will warrant specially, title to all of the slaves, and perishable estate held by the said James Jones upon the day of his death, & bequeathed to his widow, Mrs Catharine Jones for life, with remainder one, as in the said will set forth."

The question submitted to me is, whether if Mrs Catharine Jones should by will, in pursuance of the power vested in her, give any of her husband's slaves to Joseph A. Jones, the benefit of the disposition would enure to Campbell?

A deed with general warranty, it is universally agreed, estops the grantor turn claiming the property thereby converged, by any title which he may afterwards acquire, notwithstanding he may {afterwar} have had nothing in the subject at the time of the conveyance, and that upon the principle of [avoiding?] circuity of action. Some authorities, indeed, held that upon the subsequent acquisition of the better title, the same passes by the mere effect of the original conveyance, to the granter. But without giving into that controversy, it is sufficient to [observe that it is undisputed law that the granter in such case, cannot efficiently claim the property, by virtue of his subsequently obtained title.

2 Th [?] Lit. 416, [?] (I); [Id?] 457 Rawlins' Case 4 Co. 53. 2 Lim. [?ig]. 356, 2 Smith's lead. Cas. 474, 507, 571, [&?]. Wells & Austin Tullann. & [?]. 707. Somes' [?] v Skinner 3 [?] 52 Jackson v [?] [?] Johns. 102, 108. Jackson v [Wight?] 14 Johns. 193 Jackson v Stevens 16 Johns. 110 Jackson v Bradford 4 Wend. 619 Blanchard v Brooks 12 [?], 47

It seems also pretty well established that a conveyance with special warranty against the granter only, and all persons claiming under him, or even with general warranty, if nothing be conveyed but the exist- ing title or claim, does not at Law a estop a grantor from setting up another title subsequently acquired.

2 [?] Dig 356-7 Wynn v Harman's [?] 5 [?]. 163 Blanchard v Brooks 12 [?] 67

J. H. F. refuses to make the first payout] (1/2 due 1st Jan. 1859) until J. R. makes him a deed in his own name. This J. R. was willing to do from the 1st to the 18th of Jany JHR being then present & ready to make the deed either to JR or JHF as he should be directed. J. H. F.'s plea up to that time was that he did not have the money. On the 18th [illegible line] himself ready to make his payment provided JR would make him a deed in his own name. (the [tiitle being still in J.H.R.) J. H. R. upon having had left a deed from himself to J.H.R. which however he was not willing to recover. J. R. there upon wrote him a note containing these propositions. 1st to give him J.H.R.'s deed & take his bond with security for the last payment or 2nd Eexecute a receipt to him for the amt. paid & good security thereto holding himself bound to make a deed in his own name when the whole amt. was paid.

By J.R. Can I sue Mr F in Equity immediatly for the penalty ($500]) or must I wait until the last payment is due to see whether he intends to settle at all or not? I do not doubt that I am bound to make him a deed in my own name but the question is, am I bound by the articles to execute the deed before he pays the full amt. of the purchase money, & if not am I bound to wait until the last payment becomes due before I can proceed [vs?] him for either the first payment or penalty

In short has he not broken the contract & if so am I not intitled to claim the penalty & first payment immediately.

13 [Nat.?] K. [illegible] [Evg. Enanth?] {Mr. [Baibrer?]} {'' [McLeavs?]} {'' Chiltin} {'' [LW. Lewis?]} {'' [Bingan?]} {'' Binkner}

3.

Articles of agreement made & entered into this the 30th day of October 1858 between J. R. of this first part and J. H. F. of the second part, both of the County of Rockingham & State of South Carolina: Witnesseth that the condition of this alligations is as follows to wit: the said J. R. hath this day bargained & sold to the said J. H. F. a certain tract or parcel of land to be cut off the tract called Oregan Hill now owned by J. H. R. and including the Sawmill Seat and begins at [J. C. W.'s corner?] on Cattle road: (Boundaries explained and plot for the same) Supposed to contain one hundred acres more or less for the sum of two dollars per acre the one half of which said amount well and truly to be paid on or before the first day of January 1859 and the ballance four months thereafter. And the said J. R. binds himself his heirs &tc. upon the payment of the purchase money herein stipulated a good & lawful title to make to the aoce specified lands & promises.

Now know ye that if either of the contracting parties shall fail to comply with the above written contract each agree with the other that the failing part shall well & truly pay to the other party five hundred dollars, good and lawful money, provided the said land has not been previously disposed of by the said J. H. R. For the true payment of the above stipulated, the contracting parties agree to bind themselves, their heirs & assigns, in witness whereof we have here unto set our hands & Seals this the day & date first above mentioned

J.R. - Seal J.H.F - Seal

Rents, about $3,450. Entrance-charges (Matriculation fee to), about 5,750. Charges for Diplomas, say about 250. Miscellaneous sources, say about 200. $9,630.

Thus it appears, that even with the annuity of $15,000, there will be a deficit, with the present number of students, of $3,550, which must be made up by limiting the expenditures, (necessary though they be), on some of the items that will best bear temporary diminution, e.g Repairs, Library, Insurance &c. until the increase of students shall bring the revenue to the required standard.

There is but one other way, besides a State appropriation, to maintain the University, and that in to assess an additional charge on each student, sufficient to raise the amount required, i.e with the number now here, about $65 a head! So oppression an addition to the expense would diminish the number of students, which would necessitate a still heavier burden, until, after perhaps some sickening fluctuations of future, the Institution must sink into irretrievable ruin.

Arguments in favour of Continuing the Annuity. The argument involves several topics, of which some of the most prominent only, will be refered to. First: The usefulness of the University as the Principal Education- al establishment of the Commonwealth.

No intelligent citizen of the State who is old enough to recollect what the condition of education was in Virginia 40 years ago, and will compare it with what it is now, can fail to acknowledge the wonderful improvement & advance which has taken place, nor it is believed, will any one deny that the University was the [source?] & [Spring?] whence it proceeded. Schools and Colleges have alike felt the healthful influence it excited and impact now an [instruction?] immea- surably superior in Kind & in degree, to that which formerly was

the best. The University itself, has steadily advanced under the generous impulse which began with it, and may now challenge a comparison with the best Institutions of America, not to say of Europe also.

Nor are the advantages confined by the University solely intellect- tual. It has achieved and is achieving Moral triumphs of a character to make the heart of the Christian Patriot glow with exultant thankfulness, whilst he anticipates for the rising youth of the State, and of the South, a place of education where to the highest attainments in knowledge, are added the profoundest appreciation, and the habitual practice of truth, uprightness, and every manly virtue.

1860-61 more than one third of the students, (upwards of 60 in number), were [professins?] of religion, of when almost all were zealously pious, and such was the good order, and so prevailing the purity of those ten amongst the young men, that it may [?] be said that a youth not already tainted with vice, would have been not less safe in their midst, than in his father's house. Falsehood especially, and want of [frailness?] towards the authorities, had for many years been incited with such severity of reprobation by the students themselves as to have been well-nigh banished rom their midst. In short all the robust and manly [?] flourished vigorously under the benign & vigilant guardianship of the public sentiment of the noble youths here assembled, and are flourishing still. The moral and religious, as well as the intellecttual traditions of the Institution, were kept alive during the war, by the handful of [halt?] & maimed young soldiers who resorted thither, and now the industry, zeal, and propriety of conduct which have marked the students of the present session, almost exceed belief, as it is believed to exceed all parallel. One of their number, mingling largely with his fellows, lately remarked that since the beginning of the session, he did not remember to have seen an art, or scare to have heard a sound, to "Hear the grace and blush of modesty."

> To be inserted turn p 11.

A prejudice once existed against the University that it was for the rich alone. This however, is believed to have been dissipated by the fact, now become well Known to the public, that a very large proposition of the Virginian Students, and not the least distinguished of them, have belonged to families in very moderate, and often in indigent circumstances, who frequently themselves earn the money with which they defray their expenses. The system of State students, also, which was first devised and recommended by the faculty, nearly 20 years ago, has assisted to remove this unfounded prejudice, many persons educated on their foundation, having already attained to prominent and responsible position of eminent usefulness. And it may be observed here, in passing, that the authorities have thought themselves obliged to admit this year, as usual, notwithstanding the perfectly destitute condition of the University, as many State Students as applied, [compiling?] that the Gen. Assembly, on its part, would provide the sum necessary to maintain the Institution. Indeed it is right to State, (without designing to make a parade of what was only an indispensable dictate of patriotic duty, in the present didtress), that the Faculty have permitted no one, whether State Student, or other, to be denied admittance for want of means to pay tuition fees.

Can an Assembly of Virginians, having sons & brothers & kinsmen to educate induce to think of suspending, and thereby of permanently disabling, and probably destroying an Institution, the greatest in all the South, which then diffuses amongst the Youth of the land an aroma of truth, integrity and manly piety, as well as a national, well digested, & most extended basis of sound learning? And to [earn?]-what? Why about 1 1/2 cents for each individual of the population!

It is sometimes objected to the University that it admits students who have been denied entrance, for want of preparation in the languages, into the Freshman Class of the colleges. But this is a necessary consequence of the district organization of schools, the absence of a prescribed curriculum, and the system of [Slective?] Studies, to all which is as ascribable much of the fame and usefulness of the University. It undertakes to bestow, (and it appeals to the world if it does not bestow), the very highest admissible attainments in each separate department of knowledge, which the student may wish to pursue, but it does not, and cannot exact any attainments at all, in subjects which the student has no wish to learn. When one proposes to study nothing but Ancient & Modern languages, and Moral Philosophy, to hold him obliged, before he can begin with these subjects, to know something of Mathematics, would be absurd and incongruous. And so if he wishes only to learn Mathematics, Chemistry & Nat Philosophy, it would be ridiculous to exact from him a preliminary acquaintance with the languages.

Insert from opposite page. The small number of graduates is also reckoned against the University. The number of those who attain to the supreme and comprehensive degress of Bachelor of Arts, and Master of Arts, is indeed small, and yet if the world were made acquainted with the examinations to which candidates for these degrees were subjected, the surprise would rather be that the number is so great. But there is no lack of graduates in the second schools. for second years before the war, the ap-

gregate number in all the schools amounted to more than one third of the whole number of students! It is apprehended that no Institution in this country can compare with that re sult. Indeed by the general admission of that [?] class, who having been students elsewhere, as well as at the University, have had opportunity to compare its ranking with that of other seminaries, it stands, in the general assiduity and high moral bearing of its pupils, and in the effective work done by them, absolutely peerless. In 1860-'61, 226 diplo mat were awarded, and similar numbers in 1859-'60, and 1858-'9, & for several preceding years, and that too, under the rigorous exactions of examinations both written and oral.

Some have fancied that the animation of the University may be suspended for a time, without destroying its vitality. This is believed to be a fatal delusion. Doubtless as capable and as conscientious a faculty as now, could be ob tained. But would the subtle traditional influences [on?] mind & morals be [remind?]? Would the same [?] be [?] and steadily marked out by strangers, as by those who having come, one by one, into [?], have imbibed by degrees, that spirit of forbearance and firmness, of moderation [?], of indulgence and high exaction, the just commingling of which can be learned only by long experience, and an intimate fa miliarity with the genius low? Surely it would argue no small degree of rashness to anticipate it. But even were it so, would the confidence, respect, and consequent patronage from other States be restored? Would not new and [?] rivals spring up during the interval of intermitted life on the part of the University? Would not other channels be formed from which it would be [well?] [high?] impracticable to divert the streams of support which have hither to offended half its aliment to this Institution?

Secondly. The prestige and influence resulting to Vir- ginia, in {the} respect to his [?]-States of the South & West, from the