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Kesner v. Trigg U.S. 50 (1878)

handle is hein.slavery/ussccases0446 and id is 1 raw text is: KESNER V. TRIGG. charge, leaving open only the question as to the extent of the infringement. They also except to the master's report; but the exception is not well founded, and the amount of profits found being quite reasonable, it is clear that the decree of the Circuit Court is correct. Decree affirmed. KESNER v. TRIGG. 1. In Virginia, a party cannot avail himself of the defence of usury, without aver- ring and proving it, and he is required to pay the principal of his debt. 2. Where a party at the time of contracting a debt, executed to secure the pay- ment thereof, a deed of trust of lands to which he had a perfect record title, and a third party subsequently makes claim that he had, at the date of the deed, a title to them, - Held, that the trustee and cestui que trust must be con- sidered as purchasers; and if they had no notice of such claim, the lands are subject to sale to satisfy the debt. If the sale yields a surplus, the rights of such third party thereto will be the same as they were to the land. 3. A post-nuptial contract, made upon sufficient consideration, and wholly or par- tially executed, will be sustained in equity. 4. By the common law, if the husband and wife sell and convey her lands, the money which he receives therefor, without any reservation of rights on her part, will belong to him. APPEAL from the Circuit Court of the United States for the Western District of Virginia. Philip Kesner, of Washington County, Virginia, an adjudi- cated bankrupt, surrendered real estate, viz. : - One-half interest in 150T6T acres of land lying in Washington County, Virginia, near Cedarville, with improvements thereon. Life-estate in the other one-half of the above tract, $800. The other half of this tract belongs to the petitioner's wife. Afterwards, on the 6th of August, 1873, by leave of the court he filed an amended schedule, varying the description of his land, -viz.: - All the petitioner's interest in a tract of 150TI- acres of land lying in Washington County, Virginia, near Cedarville, conveyed to petitioner by George Dutton, in consideration chiefly of his wife's lands, near Lyon's Gap, in Smyth County. [Sup. Ct.

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