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use about 100 acres only. It was observed
by the court: *'The act must receive a rea-
sonable construction— one that will carry out
the object and purpose of the charter, and
at the same time protect the public from im-
position by the mere pretenses of the corpo-
ration, that its interests require 400 acres of
land to be held subservient to a tract of lOO
acres in actual use." ^ On the other hand,
such portions of existing burial grounds a&
are not actually in use but are within the
same enclosure, and likely to be at any time
devoted to interments, naturally come within
a law exempting cemetery property from
taxation.*^^ But such would not be the case
where only one acre out of forty was used for
burial purposes.*^^ It has been held in New
York, that it is proper to assess the expense
of a sidewalk laid alongside a cemetery to
the cemetery association, rather than a por-
tion to lot owners, where such owners simply
have the right of interment, the fee remain-
ing in the cemetery association.^ Such is the
law also in England.^ And it has further-
more been decided in New Jersey that, where
the charter of a cemetery provides ^'that the
premises, burial lots, vaults, monuments and
other erections and fixtures of said cemetery
shall not be subject to any assessments, taxes^
and fines, unless otherwise ordered by the
board of chosen freeholders of the county of
Essex," such provision has none of the
characteristics of a contract with the State,

» Appeal Tax Court of Baltimore v. Baltimore Cem-
etery Co., 60 Md. 482; Hoboken v. North Bergen, 4a
N. J. L. 146.

» People V. Cemetery Co., 8« 111. 887.

« Hoboken v. North Bergen, 48 N. J. L. 146.

41 Mulray v. Churchman, 52 Iowa, 288.

<s Buffalo City Cemetery v. City of Buffalo, 46 N. T.
505.

tf Beg. v. St. Mary Abbotts, 12 A. & E. 824; Beg. y»
Abney Park Cemetery Co., L. R. 8 Q. B. 515.



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being eimply an attempt to delegate to a
subordinate public body, the power to tax
the cemetery which if not valid is unques-
ably repealable.^ But where the charter of
a cemetery company contains a clause which
states that the ground '^when used as a place
of sepulchre shall be exempt from taxation
excepting for State purposes," such exemp-
tion will cover an assessment for the con-
struction of a sewer.^ But it has been held
in Kentucky, that '*a municipal corporation
has no power to charge a cemetery company
with the cost of grading and paving an adja-
cent street, and that a courts of equity will
not decree a sale of a lot in such a cemetery
to enforce such a lien, and this on the ground
^*that the court ought not to offer that for
sale which it will not allow to be used by the
purchaser for any purpose, that can be of
the slightest value to him," in the face of a
statute prescribing penalties in all cases
where graves, tombs, monuments, etc., shall
be multilated or destroyed.^*

Solon D, Wilson.



** State (Mount Pleasant Cemetery Co., Prosecutor)
V. Mayor, etc. of Newark, 18 Am. & Eng. Corp. Cas.
206.

« Olive Cemetery v. Philadelphia, 93 Pa. St. 129.
See also Dolan & Fay v. Mayor, etc. of Baltimore, 4
Gill (Md.) 894.

« City of Louisville v. Nevin, 2 Cent. L. J. 108. But
see Lima v. Lima Cemetery Assn., 5 Am. & Eng. Corp.
Cas. 547.



JUDGMENT — RES ADJUDICATA — EQUITY -
CONTRACTS-SPECIFIC PERFORMANCE.



FISHBURNE V. FERGUSON.



Supreme Ccutt of Appeals of Virginia, August 23, 1888,

1. Judgment — Bes A^djudicata. — A decree of a
eourt of equity, cancelling a deed of real estate be-
cause of insanity of the grantor, existing at the date
of its execution, does not conclude the rights of the
grantees to claim in a subsequent suit the specific
performance of the agreement to convey such real
estate, made by the grantor before he became insane,
where such relief could not have been granted under
the pleadings in the former suit.

2: Equity— Contracts— Specific Perfocmance. — An
oral agreement, made by a childless widower, sixty
years old, to his niece and her husband, to convey his
home to them, in consideration that they would give
up their own home and live with and care for him in
his old age, will be specifically enforced in equity
upon the performance of such consideration by the
promisees, who have also made valuable improve-
ments upon the property.



Lacy, J., delivered the opinion of the eourt :
This is an appeal from a decree of the circuit
court of Koanolce city, rendered at the April term,
1888. On the first Monday in February, 1886, the
appellants filled their bill in the hustings court for
the city of Roanoke, against the appellees, to have
specifiic performance of a parol agreement made
about the 1st day of April, 1880, by which Isham
M. Furguson had contracted with them, to give
and grant unto tliem his house and lot of six acres^
of land, and the furniture therein, upon the con-
dition of their giving up their own home, and
living in his, the said Furguson's, house, to pro-
tect, provide for, and talse care of the said Furgu-
son, an old man, then diseased, childless, and a
widower, much distressed and upset by the recent
death of his wife; which asn^eement was consum-
mated by the delivery ot possession to the said
plaintiffs, and their change of circumstances, by
abandoning their own home, and by the sale of it;
and the expenditure by them of large sums of
money in erecting and constructing valuable im-
provements on the said house and lot, with the
approbation of the said Furguson; such as refenc-
ing the said lot, erecting a small house thereon,
and roofing the dwelling-house with slate, and*
repainting the same, which cost them ^1,000.
And that they cared for the said Furguson in
sickness and in health until his decease. That he^
the said Isham M. Furguson, was in sound mind,
and competent to contract when this contract was
made; and afterwards, on the 15th of September^.
1880, when his mind was perfectly sound, he vol-
untarily executed a deed of conveyance, conveying
to them the said house and lot and furniture in^
effectuation of the said parol contract. That the
said Isham M. Furguson having had an attack of
mental aberration about the Ist of May, 1880, and
another, lasting a few hours, about the 10th of
August, 1880, after his death, his brolhers and his
sister, the two Furgusons, and Mrs. Tench,,
brought suit in the county of Franklin to set aside
the said deed of conveyance to the appellants,.
Fishburne and wife, upon the ground that the
grantor therein, their brother, Isham M. Furgu-
son, was insane and incompetent to execute it, ii^
which they succeeded, and the same was se
aside, and the decision aflSrmed on appeal by thi
court. 4 S. £. Rep. 575. But that there was no
evidence adduced, and none can be adduced^
tending to show any unsoundness of mind on the
part of Isham M. Furguson at the time the parol
agreement was made; and, the deed having been
set aside for a cause which did not vitiate nor in
anywise affect the parol agreement to convey,
that they were entitled, upon well settled pHnci-
pies, to have the said agreement, which was upon^
a valuable consideration and fully executed on
their part, specifically performed. The defend*
ants demurred to the bill, and depositions were
taken in the cause; whereupon, for reasons per-
sonal to the judge of Roanoke city, which ren-
dered it improper in his opinion for him to preside
at the trial, and decide the cause, it was removed



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to the circuit court of Boanolce;' wheii the said
circuit court, at the December term, 1886, over-
ruled the demurrer so far as it rested upon the
ground that this suit had been coqcluded by the
suit to set aside the deed; but so far as it rested
upon an alleged variance between the contract set
up in the bill, and the one set forth in the deed
alleged to be in furtherance of the said agreement,
sustained the said demurrer, and granted leave to
amend. An amended bill having been filed, and
the defendants having filed their answer, by de-
-cree in the cause rendered at the April term, 1888,
the demurrer was overruled, and the bill of the
plaintiffs dismissed for reasons which the decree
recites are in writing and made a part of the
record, but which do not appear therein. Where-
upon, the appellants, Fishburne and Callie, L.,
his wife, applied for and obtained an appeal to
^his court.

It is sought to maintain the decree of the circuit
court — First, upon the ground that the decision in
the Franklin county case is conclusive of this
^case, and the question here is res adjudicata; and,
secondly, because the contract sought to be en-
forced is not such as a court of equity should en-
force, because it is not fair and equal ; that full
possession did not accompany it, and because the
conduct of the parties procuring it was not such
as would entitle them to the aid of & court of
equity; and, if fair, certain, and just in all its
parts, still is not sufficiently proved.

It is necessary, first, to consider whether this
-suit is concluded by the suit referred to In Frank-
lin county ; for, if the question is res adjudicata^
the whole matter end there; for, when a matter is
adjudicated and finally determined by a compe-
tent tribunal, it is considered as forever at rest.
This is a principle upon which the repose of soci-
. ety materially depends, and it therefore prevails
with very few exceptions throughout the civilized
world. This principle not only embiaces what
actually was determined, but also extends to every
other matter which the parties might have liti-
gated in the case; and when the facts which con-
stitute the cause of action or defense have been
between the same parties submitted to the con-
«ideration of the court, and passed upon
by the court, they cannot again be the
proper subject for an action or defense, unless
the finding and judgment of the court are opened
up or set aside by competent authority. This
principle of law extends still further in quieting
litigation. A party cannot relitigate matters
which he might have interposed, but failed to do
in a prior action between the same parties, or
their privies, in reference to the same subject-
matter. Bates V. Spooner, 45 Ind. 493, 7 Eob. Pr.
172; Hopkins V. Lee, 6 Wheat. 109. Courts of
justice do not, in stating the rule, always employ
the same language; but when every objection
urged in the second suit was open to the party,
within the legitimate scope of the pleadings in
the first suit, and might have been presented at
that trial, the matter must be considered as hav-



ing passed in rem jttdicatemy and the former judg-
ment in such a' case is conclusive between the
parties. Aurora City v. West, 7 Wall. S2, 103;
Lee V. Kingsbury 13 Tex. 68; Blackwell v. Bragg,
78 Va. 529. Mr. Wells, in his work on this sub-
ject, says (section 252) : "The first step in deter-
mining whether the matter might have been
decided in the prior action is to ascertain whether
it was relevant or not; that is, whether it was
within the scope of the pleadings. So that, when
one sets up, in a subsequent suit, a former jddg-
ment, he must show that the matter alleged by
the other party either was actually litigated, or
that it might have been under the issues; it being
only matters involved in the issues that are re-
garded as res adjudicata, ^^ And the general lan-
guage of a decree will be restrained to the issue
niade, and the subject-matter under consideration
when it was rendered.

The original record in the Franklin suit, by
Furguson's Adm'r and others v. Jacob A. Furgu-
son and others, was by consent brought here with
this cause, so that the depositions therein may be
read in this cause. Upon looking into that suit,
the bill is filed to set aside and annul the convey-
ance of September, 1880. An issue was directed
out of chancery to try the following issues : (1)
Whether the deed in the proceedings mentioned,
from Isham M. Furguson to T. T. Fishburne and
C. L. Fishburne, was obtained by fraud or undue
influence. (2) Whether or not, at the time of the
execution of the said deed, the grantor, Isham M.
Furguson, was incapable, by reason of disease,
old age, or other causes, of clearly understanding
the purport and object of the- deed. The jury
found the following verdict, which was recorded
and approved by the court : "We, the jury, find
for the defendants on the first issue; but find that
Isham M. Furguson, on the 13th September,
1880, was incapable of understanding the purport
and object of the deed executed by him on that
day to Tipton T. Fishburne and Callie, his wife,
and we therefore find for the plaintiffs on the
second issue. ^* On appeal, the decree of the court
below rendered on this verdict was affirmed.

It appears from the foregoing statement of the
issues and judgment thereunder in {he first suit
that the sole question in issue there was as to the
validity of the said deed, and the sole finding
therein was that the said deed was not valid and
binding on the grantor and those claiming as his
heirs at law, because of his mental incapacity at
the time of its execution. The question as to the
validity of this deed was the sole question in the
case to be determined, and the question in this
suit as to the parol partly executed contract, for
the conveyance of the said house and lot, etc.,
was not in anywise pertinent to the issue. If ev
dence of it had been offered, it must have be^^:
excluded, under the scope of the pleadings in that
case; and whenever any attempt was made to
refer to this, in the course of taking the testimony,
it was promptly objected to as irrelevant. It was
excepted to, and properly ruled out, as it could



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not have been introduced under the pleadings in
that cause. But it is suggested that it might
have been brought in by way of defense to the
action by a cross-bill, by the defendants setting
it up against the plainti^. But this would have
been, in effect, the institution of a new suit, mak-
ing new pleadings, which would have been inde-
pendent of the pending suit; and the original bill
might have been dismissed, and the cross-bill
remain unaffected, and the court might have pro-
ceeded to decree upon the issues in the cross-bill.
A cross-bill is proper whenever the defendants,
or either of them, have equities arising out of the
subject-matter of the original suit, which entitle
Uiem to affirmative relief which they cannot ob-
tain in that suit. Ragland v. Broadnaz, 29 Grat.
420. In a subsequent case, decided in the court
of at>peals of West Virginia (Land Co. v. Vinal,
and Viual v. Land Co., 14 W. Va. 637), the subject
is elaborately treated by Green, J., and upon this
subject the foregoing case is followed. Such a
bill is an auxiliary suit brought by the defendants
for their purposes, and such they might have
brought if they were so advised ; and the contro-
versy would have been a distinct controversy,
arising under the issues therein, upon which the
court might have decreed after the original bill
had been dismissed or otherwise disposed of.
They were not obliged to bring their suit in this
way, however. The question thus to be raised
was distinct from the issue made by the suit
against them, and the decision of that suit, there-
fore, in nowise affected their rights in this regard,
which stood on wholiy distinct and unconnected
ground. And they have a right now to maintain
this suit, upon the same or kindred principles
which entitled them, if they had been so advised,
to have filed their cross-bill in the other suit.
They had a right to take either course, but, it
woidd seem, not both. If they had pursued the
one and brought the matter into that suit, and it
had been decided, it would have been res adjudt-
tatay and they would have had no right to pursue
the other. The case of Stearns v. Beckham, 31
Grat. 3S1, is referred to by counsel, and is a case
in point. On the 29th of November, 1862, the
vendor agreed to sell, for 9100,000, a tract of land,
and i^ceived ^45,000 in cash, with the under-
standing that the residue, ^55,000, should be paid
in ten days. On the 3d of December following
the vendor was stricken with paralysis; but the
matter was carried on, and the ^55,000 was paid,
and the deed made and possession given of the
land. Thus the matter stood for some years,
when the grantor, growing worse, a committee
was appointed for him, and in September, 1866,
the said committee instituted his suit to set aside
the deed, on the ground of mental incapacity of
the grantor at the time of its execution, and also
to have the contract rescinded, because of im-
proper Influences exercised over him, and the
inadequacy of consideration. The court set aside
the deed, and directed that the vendees should
surrender the land, unless within ninety days they



should file a bill for the specific execution of the
contract, which bill for specific execution was
filed; and in that case, whUe the contract was
not specifically executed, the vendees were re-
quired to make restitution of the money they had
received, which was declared to be a lien on the
land. Notwithstanding the cancellation of the
deed because of imbecility of tbe grantor at the
date of its execution, such action was held not to
have concluded or to have adjudged the rights of
the parties to claim the specific execution, of the
agreement made imder different circumstances;
that is, before the stroke of paralysis which
wrought the imbecility. So, in this case, the
cancellation of the deed, because of incompetency
existing at the date of its execution, does not af-
fect in aujTwise a contract made and performed
before any incapacity or insanity had set in; and
we think the plaintiffs have a right to maintain^
this suit.

Upon the question as to whether this contract is-
such as should be specifically performed in the^
light of the decided cases, we have no doubt. An
agreement, to be entitled to be carried into specif-
fic performance, ought to be certain, fair, and just
in all its parts. It is not considered as a matter
of right in either party ; but it is matter of dis- .
cretion in the court; a matter of sound and rea^
sonable discretion, which grants relief according
to the circumstances of each particular case.
Courts of equity will not decree a specific per-
formance in cases of fraud or mistake, or of hard
or unconscionable bargains ; or when the decree
would produce injustice; or when it would com-
pel the party to an illegal or immoral act ; or
when it would be against public policy ; or wheu
it would involve a breach of trust; or when a
performance has become impossible; and gener-
ally not in any cases when such a decree would
be inequitable, under all the circumstances. 2
Story, Eq. Jur. § 769; Sudg. Vend. ch. 3, § 4, p.
123. In this case an old man sixty-six years of
age, a widower, and childless, finds himself, upon
the death of his wife, lonely and unhappy in their
former home. He has relatives who appear to
have been anxious to get a share of hid property
at his death, but they do not fill the measure of
his need. His wife's neice, the appellant Mrs.
Fishburne, had been reared in his house from
early childhood, had been married a short time
before his wife's death to T. T. Fishburne, who
was a protege of his, and they together had gone
to live in their own home. Needing womanly
ministrations aboi^t his home, he said this foster
child was most suited to his wants. She knew
his ways; he knew her; there was nothing strange
between them ; and he asked her to give up her
home, and come to his house, and with her hus-
band make it a home for him, provide for him^
feed him in health, nurse him in sickness. He
might live for years; he might survive a short
time only. For this care and nurture he could
not offer hire or wages. He wanted a daughter^
not a servant; and he agreed to give this property



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to tue two ; to be a home for him and for them as
long as he lived, and for them when he died. He
was otherwise wealthy, and this was but a small
part of his estate. They fully performed on their
part*-left their home, changed their oircum-
fitances,, and, with unchallenged kindness and
affection, cared for him tenderly as long as he
lived. He made them a deed to the property;
but, before this was done, old age and disease had
made more rapid strides than he thought, and he
has been adjudged to be incompetent, by reason
of mental and bodily infirmity, to make a deed in
September, 1880. But there is not a hint in all
the evidence in the cause that he was in anywise
ftffected mentally or bodily wheii he made this
contract. All his maladies came long aftei wards.
He received, at the hands of Fishburne and wife
%all he bargained for; and much or little, speaking
generally, it was a great deal to him in his old
age, his loneliness and infirmity. It was what in
his right mind, in unimpaired mental and bodily
vigor, he aj^reed to give this house and lot for,
and to which he did give k deed. Why should
'this contract not be enforced? These parties have
•expended their money on it, and greatly improved
it. They have fully performed on their part, and
the contract should be specifically executed. The
principles upon which this should be decreed are
fully set forth in the late case of Halsey v. Peters,
79 Va. 66, and authorities cited. Burkholder v.
liUdlam, 30 Grat. 225. The first named case was
similar to this in its details, and the contract
was there specifically executed by decree of this
court.

The decree of the circuit court of Roanoke city
having dismissed the bill of the plaintiffs, the
same will be reversed and annulled, and a decree
rendered here in accordance with the foregoing
opinion.

NOTB.— The peace of society demands that there
-should be an end of litigation and for this reason the
doctrine of res adjudicata Is enforced, that a judgment
in a suit is conclusive upon parties and their privies.^

A question contested and determined in one case is
determined, so far as the parties to the same are con-
cerned, for all time and purposes.SIt cannot be ground
over and over again In another action, and a decision
on the merits of a^ question estops parties and privies
to maintain or allege anything to the contrary in any
other litigation between them.2

Much doubt and uncertainty exists in judicial de-
cisions as to the limits within which the conclusive
effect of a judgment is confined by law. It Is held In
one class of decisions, that the judgment is conclusive
as to all questions which are material to the issues as
formed by the pleadings, and which the parties had
an opportunity of bringing before the court.8

1 Greenleaf on Evidence, § 522.

« Neal v. Foster, 86 Fed. Rep. 82; Ootram v. Morewood,
8 Bast, 846; Cromwell v. County of Sac, 94 U. 8. 851 ; Wil-
son V. Dean, 121 U. 8. 625; Bigelow on Estoppel, 84;
Duchess of Kingston's Case, 50 State Trials, 588; Bank
•of United States V. Beverly, 1 How. 184; Parrish v. Fer-
ris, a Black. 606; Gelston v. Hoyt, 8 Wheat. 246; Hopkins
▼. Lee, 6 Wheat. 109; Stockton v. Ford, 18 How. 418;
fiarshman v. Knox County, 66 Cent. L. J. 176.

8 Aurora City v. West, 7 Wall. 82; Shenandoah R. Co.



The binding effect of a judgment has even been ex-
tended still further to indude matters not set forth in
pleadings so as to admit proof and call for an actual
decision upon them, and where in an action for specifie
performance the defendant has before action brought
disposed of part of the real estate and all the relief
asked in the complaint and granted in the judgment
was the conveyance of real estate not so disposed of,
that judgment is a bar to a subseqi^ent action to re-
cover damages for such disposition of real estate.4

The rule, now generally, If not universally, conceded
and supported by the preponderance of authority Is
that stated by Justice Miller, In his dissenting opinion
in the case of Aurora City v. West.*

"When a former judgment is relied on, it must ap-
pear from the record that the point in controversy
was necessarily decided In the former suit, or to be
made to appear by extrinsic proof that It was In fact
decided.*

A distinction is made between cases where the sec-
ond action between the same parties Is upon the same
demand or claim, In controversy in the former action,



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