Syllabus-Statement. Wytheville. STUART, PALMER & Co. v. HENDRICKS & ALS. JUNE 25TH, 1885. CHANCERY PRACTICE-Report of Commissioner.-The principle is well established, that when a question of fact is referred to a commissioner, depending upon the testimony of witnesses conflicting in their statements and differing in their recollection, the court must, of necessity, adopt his report, unless in a case of palpable error or mistake. Bowers v. Bowers, 29 Gratt. 697. Appeal from decree of circuit court of Russell county, entered August 18, 1882, in the cause of W. A. Stuart, G. W. Palmer and Joseph Jacques, partners, in the name of Stuart, Palmer & Co., complainants, against A. L. Hendricks and als., defendants. The bill was filed in the court below to enforce the lien of a judgment recovered by the plaintiffs, and amounting originally to the sum of $1400. The bill admits that various payments have been made on the judgment, but alleges that a balance of $500, or more, is yet due and unpaid. This allegation the answers deny; and upon the issue thus made, the cause was referred to a commissioner for inquiry and report. The commissioner reported a balance due by the defendants of $313.25, and along with his report he returned the evidence upon which it was based. The plaintiffs excepted to the report, but the exceptions were overruled, and a decree was entered in their favor for the balance ascertained by the commissioner. From this decree they obtained an appeal. VOL. LXXX-76 Opinion. Routh & Stuart, for the appellants. White & Buchanan, for the appellees. LEWIS, P., delivered the opinion of the court. The sole question is, whether the defendants are entitled to a credit of $500, which they claim to have paid in the spring or fall of 1878. Upon this point the evidence is conflicting, but preponderates on the side of the defendants. The principal debtor, J. J. Dickenson, testifies, that in a conversation with J. F. McElheney, the plaintiffs' attorney, in the spring or fall of 1878, the latter said to him: "Give me $500, and if on settlement it overpays the judgment, I will return you the excess;" and thereupon, he says he paid him $500, and took his receipt, which he has lost, and which he has been unable to find, though diligent search has been made for it. This receipt he thinks he showed to the defendant, J. H. Dickenson, and the latter testifies that his impression is, that among the receipts showed him was one for $500, paid on the plaintiffs' judgment. He also testifies, that on more than one occasion, McElheney assured him that the judgment had been settled. And the witness, W. H. Burns, testifies, that since the institution of the present suit. McElheney informed him that the judgment had been settled, or nearly so. On the other hand, McElheney testifies, that in his conversation with J. H. Dickenson, he did not mean to say that the judgment had been paid, but that he had agreed to look for payment to J. J. Dickenson. He also testifies, that he does not remember to have received from the latter a payment of $500 on the judgment, nor does he believe that any such payment was ever made. He gives a list of the credits, and their respective amounts to which he thinks the defendants are entitled, as disclosed by an examination of his books, but admits that one of his books is lost, and was probably destroyed by fire. He is positive, however, that he paid every dollar he received on the Opinion. judgment to one of the plaintiffs, W. A. Stuart; and the latter testifies, that he received from McElheney no such payment as that upon which the defendants rely. In this state of the proofs, the commissioner allowed the defendants the credit in question, and his action was confirmed by the decree complained of. The case was thus materially strengthened for the defendants. For the principle is well established, as declared by this court in a recent case, that "when a question of fact is referred to a commissioner, depending upon the testimony of witnesses, conflicting in their statements and differing in their recollection, the court must, of necessity, adopt his report, unless in a case of palpable error or mistake." Bowers' adm'r v. Bowers, 29 Gratt. 697. And the reason is obvious: "The commissioner is confronted with the witnesses; he sees their deportment, their manner of testifying, their capacity for recalling past occurrences, whereas the court, which only sees the testimony on paper, is denied these tests of accuracy and fidelity." Id.; 2 Daniel's Chy. Pl. & Pr. 1299; Adams' Eq. (5th Amer. ed.), p. 726, note 2. The decree is affirmed. DECREE AFFIRMED. Syllabus-Statement. Wytheville. LITTERALL V. JACKSON & ALS. JUNE 25TH, 1885. 1. SPECIFIC Performance-Requisites.-The first requisite of a contract to entitle one to its specific performance in equity, is certainty and defi niteness in its terms. Wright v. Pucket, 22 Gratt. 370. 2. IDEM-Married women-Contracts-Lands.-It is well settled that a court of equity will not decree against a wife performance of her contract to convey her lands; nor against wife or husband performance of his or their contract to convey her lands. 3. PERSONAL Representative-Powers.-An administrator, as such, is without authority to make sale of his intestate's real estate. 4. JURISDICTION-County courts.-County courts possessed general jurisdiction concurrent with circuit courts until the enactment of sections 2 and 3 of chapter 124, Code 1873, except as to sale of lands of persons under disabilities. Appeal from decree of circuit court of Wythe county, entered 11th December, 1883, in a cause wherein George W. Litterall, the appellant here, was complainant, and George W. Jackson and als. were defendants. Opinion states the case. Robert Crockett, for the appellant. James A. Walker, William Terry and Jos. W. Caldwell, for the appellees. RICHARDSON, J., delivered the opinion of the court. Opinion. This is a triangular contest in respect to the ownership of the land in controversy, it being so much of the 2058-acre survey granted by the commonwealth to D. B. Saunders, on the 1st day of February, 1851, as is east of the "Low-Gap" road in the county of Carroll. All of said 2058-acre survey is embraced within an older, larger survey, known as the Ruston survey, containing 240,000 acres, and, at the time of the grant for said 2058 acres, owned by the Wythe Union Lead Mines Company. At the time of the emanation of the grant to D. B. Saunders for said 2058 acres, the Lead Mines Company had been and was engaged in serious litigation involving their title to said Ruston survey, and said company threatened to commence litigation with D. B. Saunders in respect to said 2058 acres. But, to prevent vexatious and expensive litigation, the Lead Mines Company entered into an agreement with said D. B. Saunders that in the event said company should, in the then pending liti gation, establish their title to said "Ruston survey," then the said company should relinquish to said Saunders the said 2058 acres, embraced in said "Ruston survey," for the stipulated sum of $340, to be paid by said Saunders to said company. Said company did establish its title to said "Ruston survey," but D. B. Saunders died without having carried the agreement in respect to said 2058 acres into effect. D. B. Saunders died intestate, leaving a widow and two chil dren, to wit: Martha A., intermarried with S. G. Saunders, and Mary, who intermarried with E. T. Osborne; and said S. G. Saunders administered upon the estate of the decedent. After his qualification as administrator, S. G. Saunders, being advised of the understanding and agreement between the Lead Mines Company and his intestate (the said company agreeing to and acquiescing therein), executed his individual bond, with E. T. Osborne as surety, to said Lead Mines Company, or its authorized agents, for the sum of $340; which bond was dated the 11th day of June, 1866, and was made payable one day |