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https://www.courtlistener.com/api/rest/v3/opinions/8481429/ | LOMAX, J.,
delivered the opinion of the Court.
Upon the first question adjourned, this Court is unanimously of opinion, that two or more persons may be jointly indicted for retailing ardent spirits without a license.
Upon the second question, a majority of the Court is of opinion, that the judgment of the Hustings court of Danville for several fines of thirty dollars against each of the plaintiffs in error, is correct.
*Upon the third question adjourned, a majority, of the Court is of opinion, that judgment should be rendered in the Circuit court affirming the judgment of the Hustings court of Danville. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481430/ | ALLEN, J.,
delivered the opinion of the court.
James Stone andSerlie his wife presented a petition to a judge of the Circuit court, alleging that a female infant child, the daughter of the female petitioner by *a former husband, was illegally retained in the possession and custody of the appellant, John J. P. Armstrong, the paternal grandfather of the child, and prayed that a writ of habeas corpus ad subjiciendum might be awarded them. The petition was verified by affidavit, and the judge, by his order referring to the petition, awarded to the infant the writ, which issued in the usual form, and was made returnable before the Circuit court of Jackson county at a special term. On the return day the cause was docketed and continued, and on a subsequent day the appellant appeared and moved to quash the writ, the order awarding it, and the petition of the relators. This motion the court overruled, being of opinion that it was not competent to make such motion until a return was made to the writ, and that after the return it would be competent to make any defence of which he might avail himself on a motion to quash. The appellant thereupon made a return and produced the infant; and the evidence on both sides being heard, the court directed the child to be restored to the custody of its mother, the female petitioner. From this decision the defendant below has appealed.
The first error assigned is the refusal of the court below to quash the proceedings, because it is alleged the petition should have been made by the infant by her next friend.
This objection is based upon the provisions of the Code, p. 613, which it is argued varies from the act contained in 1 Rev. Code 468, § 1, which enacted that whenever *53any person detained in custody, whether charged with a criminal offence or not, shall, by himself or by some other person in his behalf, apply, &c., and show by affidavit or other evidence, probable cause to believe that he is detained in custody without lawful authority, &c. The Code provides that the writ shall be granted to any person who shall apply for the same *by petition, showing by affidavit or other evidence, probable cause to believe he is detained without lawful authority; omitting the words by himself or some other person in his behalf, found in the act of 1819.
We think there is no substantial difference between the two enactments. Both acts depart, in many particulars, from the act of 31 Charles 2, which was limited to cases of detainer for criminal or supposed criminal matter, all other cases of unjust imprisonment being left to the habeas corpus at common law; whereas our act extends to all cases where a person is detained without lawful authority. 2 Tuck. Com., book 2, chap. 68. In all such cases, therefore, the provisions of the statute come in place of the common law; and as it was the leading intent of all the statutory provisions on this subject to extend and simplify this great and efficacious remedy for all illegal confinement, the words of the statute should be liberally construed so as to carry' out that intent. Whether the application or petition be preferred by the party himself, or in his name or by another in his behalf, probable cause to believe he is detained by unlawful authority must be shown by' affidavit or other evidence. When this is shown the writ is awarded to him, and the application would be treated as made by him unless disavowed. Where the person alleged to be detained illegally labors under disabilities, it would seem to be more appropriate to issue the writ on the petition of the person asserting the claim to the custody, than upon the petition of the person detained by his next friend. In either mode there is a person liable for the costs, and from whom the bond provided for in the 3d section may be required. The party contesting the claim sustains no injury, is deprived of no benefit, whether the one mode or the other be adopted, and should not be permitted to defeat the writ by mere personal objections. *It is objected that the petition is in the name of the husband and wife, and that although the mother might be entitled to the custody of the child, the right is personal, and does not devolve on the second husband; and therefore he improperly joined in the petition. It may be conceded that there is no devolution of authority to the husband; but until it is also shown that a second marriage forfeits the right of the mother, there is nothing in the objection ; for she could not institute any proceeding to assert the right unless her husband united. The enactment in the Code 533, $ 7th, does not apply to this case. There may be a guardian during the lifetime of the father or mother, or both of them. That section, as a general rule, gives the custody of the ward and the care and management of his estate to the guardian, but provides that the father, if living, and if dead, the mother, while she remains unmarried, shall, if fit for the trust, have the custody of the person of the minor and care of his education. This is not a controversy between the mother and a regularly appointed guardian for the custody of the minor, in which case only would the statute apply.
It is further argued that it is not the function of a writ of habeas corpus to try rights of property or settle questions of guardianship, but simply to release from improper confinement; and if it appear there is no improper restraint upon the minor, the court should not interfere.
It is true that a contest for the guardianship could not properly' be determined upon a writ of habeas corpus. The law has prescribed another form for settling such controversies. In England the chancellor, representing the king as parens patria;, has jurisdiction to determine controversies concerning the guardianship of a minor, and may control the right of a father to the custody of his child. De Manneville v. De Manneville, 10 Ves. R. 52. But the courts of law and the *judges thereof possess no such authority. Ex parte Skinner, 17 Eng. C. L. R. 122. In that case Ch. J. Best said, that no authority had been cited to show that the court had jurisdiction to take a child out of the custody of the father and deliver it over to the mother. Being in the legal custody of the father, if he abused his parental authority, the chancellor might interfere. The same proposition is advanced in The People v. Chegary, 18 Wend. R. 637. In the case of De Lacy v. Antoine, 7 Leigh 438, this court declared, that if, on the return, there was probable cause to believe that the petitioner was detained as a slave, the right to freedom should not be determined on a habeas corpus.
Whilst, therefore, it'is undoubtedly true that the proper office of the writ is to release from illegal restraint, and where the party is of years of discretion and sui juris, nothing more is done than to discharge him; yet, if he be not of an age to determine for himself, the court or judge must decide for him, and make an order for his being placed in the proper custody. And to enable it to do so, must determine to whom the right to the custody belongs. The custody of the minor will be assigned to the person having the right, unless it appeared he was an improper person to take it. There being no legal guardian whose rights are involved in the present controversy, and the father being dead, the mother, by reason of nurture, is entitled to the custody as of right, 4 Comyn’s Dig. title Guardian, D; Ratcliff’s Case, 3 Cope 37. Mellish v. De Costa, 2 Atk. R. 14. And as she seeks by this writ to have the child placed in her custody, the case is one *54in which the court can use its discretion whether, under all the circumstances, it is best for the infant to assign it to the custody of the mother. The jurisdiction of the court or judge to determine who has the right to the custody of the minor upon'a habeas corpus, *has been uniformly affirmed. King v. Delaval, 3 Burr. R. 1434; King v. Greenhill, 31 Eng. C. L. R. 153. Where the person entitled has the custody and abuses it, the power of the court is limited, and the remedy for the abusé must be administered in another form. But where he has- not the custody, and is seeking to be restored to it, the court will exercise its discretion according to the facts, consulting the wishes of the minor, if of years of discretion; if not, exercising its own judgment as to what will be best calculated to promote the interests of the child, having due regard to the legal rights of the party claiming the custody.
In the present case, the mother was entitled to the custody as her legal right: the right was not lost by her intermarriage, there being no legal guardian to the child; and the facts and circumstances disclose nothing which should induce the court, in the exercise of a sound discretion, to deprive her of the custody. The defendant and wife áre proved to be persons of exemplary character, warmly attached to their grandchild, 'who has been treated by them with great kindness and affection. But they aré in the decline of life, in doubtful circumstances as to solvency, and somewhat dependent on their own children for a home. The mother and her second husband are shown to be persons of excellent moral character. They have been married two years and have no children; and the husband is an industrious young' man, whose father is In good circumstances. The mother, after the death of her first husband, who left no estate, supported herself by teaching school and her own labor; and during ' that' period the child was left in the care of the defendant. The Child is in her seventh year, too young to judge for herself upon such a state of facts. The judge, in the exercise of a sound discretion, could not hesitate in saying, in the language of the chancellor in Mellish v. De Costa, 2 Atk. R. 14, that the child had a ^natural right to the care and nurture of her mother. The conduct of the mother in permitting the child to remain with the defendant whilst she herself was laboring for her own support, does not impair her right to the custody. Owing to the chahge in her condition, the interest of the child will probably be promoted by the custody being restored to her;
Judgment affirmed.
PARENT AND CHILD.
I. Parent and Child.
A. Rights of Parent.
B. Personal Services.
C. Transactions between Parent and Child.
II. Bastardy.
A. Definition.
B. Presumption of Legitimacy.
C. Construction of Statute of Legitimacy.
D. Capacity of Bastards to Inherit.
E. Bastardy Proceedings against Putative Father.
Cross References.
Infants, appended to Caperton v. Gregory, 11 Gratt. 505.
Seduction.
I. PARENT AND CHILD.
A. RIGHTS OF PARENT.
Right of Parent to Custody of Child. — See mono-graphic notes on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398; and “Divorce” appended to Bailey v. Bailey, 21 Gratt. 43. See also, Stringfellow v. Somerville, 95 Va. 701, 29 S. E. Rep. 685.
Remedy. — The writ of habeas corpus is the proper remedy for the ascertainment and enforcement of the legal or proper custody of an infant. Green v. Campbell, 35 W. Va. 698, 14 S. E. Rep. 212. See mono-graphic note on “Habeas Corpus.”
Father’s Right of Action for Loss of Child’s Services. —The father has the right to the custody of his infant child, with the correlative duty of maintenance, from which there results a right to the child’s services; hence, the father is entitled to maintain an action for loss of its services against any one who wrongfully interrupts the rendering of them, or makes the full rendering of them during minority impossible. The loss of service is the gist of the action. Taylor v. C. & O. R. Co., 41 W. Va. 704, 24 S. E. Rep. 631; State v. Reuff, 29 W. Va. 751, 2 S. E. Rep. 801.
Employment of "llnor without Parent’s Consent,— Where one knowingly engages a minor in a dangerous employment, without the father’s consent, express or implied, and the minor is injured in such employment, he is responsible to the father for the consequent loss of the minor’s services. This is certainly true when it is against the known will of the father, as in the principal case. Taylor v. C. & O. R. Co., 41 W. Va. 704, 24 S. E. Rep. 631.
Imputation of Negligence. — In Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455, it was held that the negligence of parents and guardians was not to be imputed to infant children and wards, disapproving of the doctrine laid down in Hartfield v. Roper, 21 Wend. 615; Norfolk, etc., R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454; Dicken v. Salt Co., 41 W. Va. 511, 23 S. E. Rep. 582; Trumbo v. Street-Car Co., 89 Va. 780, 17 S. E. Rep. 124; Roanoke v. Shull, 97 Va. 419, 37 S. E. Rep. 34.
Lewis, P., said obiter in Norfolk, etc., R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454, that if the suit were by the parent for the loss of service caused by the injury to the child, the contributory negligence of the plaintiff would be a good defence, but it is not to be considered where the suit is by the child or his personal representative. Gunn v. Ohio, etc., R. Co., 42 W. Va. 676, 26 S. E. Rep. 546.
Release of Claim to Child’s Services.
Emancipation of Child. — Though the father is entitled to the custody of his child’s person and to his services during infancy, yet it is competent for the father, notwithstanding he is indebted and insolvent at the time, to release to his son all claim to the latter’s services; where the father consents to the son’s becoming a partner, this is a relinquishment of all claim to the services of the son, during the existence of the partnership, in the business in which the *55son is actively engaged. Penn v. Whitehead, 17 Gratt. 503; Trapnell v. Conklyn, 37 W. Va. 242, 16 S. E. Rep. 570; Jackson v. Jackson, 96 Va. 165, 31 S. E. Rep. 78.
Child’s Right to Sue for His Wages. — Where the father of a minor does not claim and never has claimed his wages, the minor himsélf máy recover his wages after he comes of age, where he establishes his fight to them in other respects. Jackson v. Jackson, 96 Va. 165, 31 S. E. Rep. 78.
B. PERSONAL SERVICES. — "In all cases where compensation is claimed for services rendered near relatives, as a father, brother, grandfather, etc., the law will not imply a promise, and no recovery can be had unless an express contract, or what is equivalent thereto, is shown. It is not enough to establish a moral obligation to pay for them, but an actual promise must be proved, or facts from which such promise can be reasonably inferred, established by evidence so clear, direct and explicit, ás to leave no doubt as to the understanding and intention of the parties. Loose declarations to neighbors or friends, or even to the claimant himself, are not enough, particularly when such relative is deceased. It must be shown that the deceased intended to, and did assume a legal obligation to the complainant for such services, of such a character that it could be legally enforced against him. Expressions of commendation or gratitude, or of an intention to remember him in his will, cannot, unless brought home to the knowledge of the claimant, and shown to have been the consideration upon which the services were rendered, to the knowledge of the deceased, be made the basis of a. contract obligation. An action cannot be predicated upon intentions merely.” Jackson v. Jackson, 96 Va. 165, 31 S. E. Rep. 78: Harshberger v. Alger, 31 Gratt. 52; Stansbury v. Stansbury, 20 W. Va. 31; Broderick v. Broderick, 28 W. Va. 378; Riley v. Riley, 38 W. Va. 283, 18 S. E. Rep. 572; Beale v. Hall, 97 Va. 383, 34 S. E. Rep. 53.
Uncle and Nephew. — Where a minor lives with his uncle as a member of his family, the uncle furnishing him with food, raiment, and shelter, and the minor rendering to his uncle his services, without any contract or mutual understanding as to compensation for support or wages to be paid, such minor cannot recover from his uncle, nor from his personal representative, the value of the services thus rendered, though the value of such services may have been greater than the value of such support. Riley v. Riley, 38 W. Va. 283, 18 S. E. Rep. 569.
Father-in-Law and Son-in-Law. — No compensation will be allowed a son-in-law for nursing his father-in-law, in the absence of a contract express or implied, since, considering the relation between the parties, the services are such that no compensation ought to be expected. Williams v. Stonestreet, 3 Rand. 559.
Conversely, No Action by Father against Son. — On the other hand, no action can'be maintained by a father against a son for his board and that of his horse, in the absence of any express contract or engagement to pay for them; hence, an express contract by the son founded on such antecedent services is void for want of consideration. In this case, a deed of trust.by the son, to secure the father was held fraudulent as to creditors of the son. Stoneburner v. Motley, 95 Va. 784, 30 S. E. Rep. 364.
Presumption Ceases after Emancipation of Children. —When children leave their father, marry, and set up in life for themselves, the presumption that he gives them their support, ceases. When they come back to the parental roof to live, with adequate means for their support, unless he chooses to give them board, they are under the same obligation to pay their way as anybody else, and, under such circumstances; the law presumes a promise from a benefit accepted. Bell v. Moon, 79 Va. 354.
Or Where Father and Son Deal with Each Other as Strangers. — Where the plaintiff avers that he is the natural son of the testator, but there is no proof that the testator, during his lifetime, by any act or word ever acknowledged that any such relationship existed, and there is no evidence to show that they ever dealt with each other, or treated each other in their business relations, otherwise than as strangers; and it appears from the hill and is not denied in the answer, that the plaintiff at the request of the testator lived with his family on the testator’s farm and worked for him, that on leaving him, he sued the testator for his labor and recovered, which suit was settled by the testator executing to him his obligation for $400, that afterwards, when testator had become very old and feeble and unable to work his farm, the plaintiff a-t the testator’s request, sold some land he had purchased, and moved on the testator’s farm- again, and with his own means and labor put it into a saleable condition: held, that the plaintiff was entitled to recover for his property and labor expended on testator’s farm. Broderick v. Broderick, 28 W. Va. 378.
Expectation of Compensation induced by Representations of Other Party Sufficient. — Where a minor, residing with a near relative, other than her parents, is led to believe, by the kindness, conduct, and conversations, in jest or earnest, of such relative, that she is to receive compensation for her future services rendered in promotion of his business, in some form, and, in expectation of such compensation, she faithfully performs such services, and he afterwards discharges her without compensating her in the manner in which he led her to believe he would do, and denies all liability to her, she is entitled to recover the actual value of such services, in an action of assumpsit, even though such relative testifies that such promises were made in jest, and he had no expectation or intention of recompensing her for her services, but was only acting towards her in loco parentis. Plate v. Durst, 42 W. Va. 63, 24 S. E. Rep. 580.
Express Contract for Compensation. — If a father promise to pay a son for caring for and supporting him it creates a valid demand in favor of the son. Harris v. Orr, 46 W. Va. 261, 33 S. E. Rep. 257.
Services Performed in Expectation of a Legacy.— Where there is ah express agreement between a father and a son that the father will devise the home place to the son, or in some testamentary way compensate him for his services, if the son will attend to and take care of him for life, and' the son performs his part of the agreement, he is entitled to recover upon a Quantum meruit for his services if the father’s part‘of the contract is unperformed, It is a valid contract, though not in writing, not forbidden by the statute of frauds, and not barred by the statute of limitations, until the prescribed period has fun since the death of the promisor before the bringing of the suit. Cann v. Cann, 40 W. Va. 138, 20 S. E. Rep. 916; Jones v. Jincey, 9 Gratt. 720.
Evidence Showing Absence of Express Contract.— Where the evidence shows that 'the grandfather promised his grandson, that if he would stay over with Mm,' he Would pay him, and the plaintiff stays, *56this negatives any presumption that there was any antecedent contract for compensation. Jackson v. Jackson, 96 Va. 165, 31 S. E. Rep. 78.
Will Admissible Evidence to Show Rendition of Services. — A will of the testator is admissible evidence to show that the services had been actually rendered, where the will gives a certain sum for services rendered by the plaintiff. Stansbury v. Stansbury, 20 W. Va. 23.
Statute of Limitations. — Even if a daughter has a valid claim for services rendered her mother, as it accrued in the lifetime of her mother, and the statute began to run then, the claim will be barred by the statute when she does not bring action till six years after her mother’s death, and though her claim were an equitable claim against her mother’s equitable separate estate, the claim will be barred in the same time as at law. Harshberger v. Alger, 31 Gratt. 52.
insufficient Acknowledgment of the Claim. — The following words in a will are not a sufficient acknowledgment of the debt to take it out of the statute of limitations: “I give to Abraham $8,800.00 in the value of the land, $3,000.00 for his services rendered.” The acknowledgment is coupled with a qualification which shows that the debt was satisfied at the same time that the promise was made. The land is given in satisfaction of the claim, if the satisfaction is renounced, the acknowledgment is likewise. Stansbury v. Stansbury, 20 W. Va. 23.
G. TRANSACTIONS BETWEEN PARENT AND CHILD.
Contracts between Parent and Child. — Contracts between parent and child are regarded in equity with a jealous eye, hence in all cases, where the bona Mes of the transaction is brought in question, it is requisite that the proof be clear, cogent and convincing. Saunders v. Greever, 85 Va. 252, 7 S. E. Rep. 391.
So where a son claims the personal property of his father under a parol purchase; though the property is listed for taxation in the son’s name, this only raises a prima facie presumption of ownership in the son, which may be overcome by other evidence, especially when it appears that it was so listed merely to avoid an execution levy for a surety debt. Saunders v. Greever, 85 Va. 252, 7 S. E. Rep. 391.
Gifts between Parent and Child. — A court of equity will furnish its aid in making effective a gift of land, by a father to his child when the gift is evidenced by an unsealed instrument, executed by the father and formally delivered to the child. Marling v. Marling, 9 W. Va. 79. See monographic note on “Gifts.”
Undue Influence. — A reconveyance from a daughter to her father obtained from the daughter by working upon her affection for her father, who was old and feeble and of whom she was very fond, and obtained when she was in a strange place and without giving her the opportunity for deliberation or counsel, will be set aside on the ground of undue influence. Davis v. Strange, 86 Va. 793, 11 S. E. Rep. 406.
When Conveyance Presumed to Be in Satisfaction of a Debt. — Where a father, being indebted to his children, afterwards conveys property to them, which is more than equal to the amount of the debt, this conveyance will be presumed to be in satisfaction of the debt, if there are no circumstances to prove a contrary intention. And although the property conveyed, and the debt, are not ejusdem generis, the oné may be a satisfaction of the other, if the intention of the testator be apparent that such should be the effect. Kelly v. Kelly, 6 Rand. 176.
Payment by Father of Child’s Debts. — If a father make payments in part of a gaming debt of his son, and never reclaim them in his lifetime, but provide by his will a fund for payment of the balance, they should not, after his death, be claimed of his son’s estate, but considered as payments, or advancements, to the latter; as payments, to the amount of any previous existing accoun ts of the son against the father; and beyond that amount, as advancements to the son. Carter v. Cutting, 5 Munf. 223.
Undutiful Litigation Discountenanced. — A court of equity will not countenance the unjust litigation of an undutiful son against his mother, though she is his legal guardian. Myers v. Myers (W. Va.), 35 S. E. Rep. 868.
Naturalization of Parent. — Under § 2172, Rev. U. S. Statute (1873), the children of persons naturalized under any law of the United States, being under the age of twenty-one, shall, if dwelling in the United States, be considered citizens thereof; but the second clause of that section, providing that “the children of parents, who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof,” does not apply to children who are over twenty-one when their father was naturalized, even though the father was naturalized before these statutes went into effect. In any event, the word "now” refers to the 3’ear 1802, when the statute was originally enacted, hence would not apply to the child of whatever age of a father naturalized in 1866. Dryden v. Swinburne, 20 W. Va. 89.
II. BASTARDY.
A. DEFINITION. — A bastard in Virginia is “one born out of wedlock, lawful or unlawful, or not within a competent time after the coverture is determined; or, if born out of wedlock, where parents do not afterwards intermarry, and the father acknowledge the child; or who is born in wedlock when procreation by the husband is for any cause impossible.” 1 Min. Inst. (4th Ed.) 438; Smith v. Perry, 80 Va. 567.
B. PRESUMPTION OF LEGITIMACY. — The presumption of the law is in favor of the legitimacy of the child where recognized by the husband, unless procreation by the husband was impossible for any cause, from his being beyond the seas, and the like. Smith v. Perry, 80 Va. 563; Scott v. Hillenberg, 85 Va. 245, 7 S. E. Rep. 377.
“With respect to procreations during marriage, the presumption is, that all persons born during marriage are legitimate. This presumption can be destroyed only by contrary proof, demonstrating that the child is not the child of the husband; which, again, can only be done by showing that, from his continued absence from his wife, at or about the time of procreation, or from the impotency of his body, it is impossible that he should be the father. This presumption, in favor of legitimacy, is so strong, and the exceptions thereto are held under such strictness, that, where a man was divorced from his wife, propter perpetuam generandi impotentiam, and then married another woman, who had issue during the marriage, that issue was holden to be his, on the ground that a man may be habilis et inhdbilis diversis temporibus. It is not, therefore, a mere circumstance of probability that will operate in this case to bastardize the issue. Such issue will *57be held to be legitimate, unless it be conclusively shown, that a person, other than the husband, must necessarily and unavoidably have been the father. This doctrine applies, a fortiori, it is believed, to cases of procreation before the marriage.” Roane. J., in Bowles v. Bingham, 3 Munf. 601.
Evidence to Repel Presumption Must Be Clear and Positive. — The presumption of legitimacy is not rebutted by proof of circumstances, which only create doubt and suspicion. To repel the presumption of legitimacy in any case, the evidence must be clear and positive. Scott v. Hillenberg, 85 Va. 245, 7 S. E. Rep. 377.
What Evidence Insufficient. — Where the parents of the supposed bastard lived together as husband and wife and reared the child as their own, and the pretended father only sets up his claim, after the child's death, in order to succeed to his property, though respectable witnesses assert their belief that he is the father, on the ground that the mother did have an older child by the pretended father, who was acknowledged to be his child, nevertheless, this was held insufficient and the presumption of legitimacy prevailed. Smith v. Perry, 80 Va. 563.
Nonaccess of Husband Must Be Proved beyond Reasonable Doubt — Nonaccess of the husband to the wife must be proved beyond all reasonable doubt; so where the preponderance of evidence is in favor of the legitimacy of the issue, the question will be decided in favor of legitimacy. Scott v. Hillenberg, 85 Va. 245, 7 S. E. Rep. 377.
Husband’s Declarations. — A husband's declarations that a child horn in wedlock is not his, are not sufficient evidence to prove it illegitimate; notwithstanding it was born only three months after the marriage, and a separation, between his wife and himself, soon after took place by mutual consent. Bowles v. Bingham, 2 Munf. 442.
Mulatto Child of White Parents. — Where husband and wife are both white persons and a child is born of the wife during their wedlock and cohabitation; upon the trial of an issue, whether this child is the legitimate child of the husband, evidence that the child is a mulatto, and that, in the course of nature a white man and a white woman cannot procreate a mulatto, is admissible and proper, Tucker, P., saying: “It is not this or that particular impossibility that bastardizes the child. The essence of the rule is, that if it be impossible that the husband can be the father, the child is a bastard. The cases of the husband being beyond sea, imprisoned, impotent, and the like, are but instances of the application of the rule. Even nonaccess, if proved, though the parties are in the same kingdom, will suffice. How, then, if the impossibility rests upon the laws of nature itself? Shall it be less regarded? Shall the white child of á white couple be bastardized, upon questionable proof that the husband was rendered impotent by disease; and shall we legitimate a negro because he was born in wedlock? The learned judges give no countenance to such opinions.” Watkins & Wife v. Carlton, 10 Leigh 575.
O. CONSTRUCTION OF ACT LEGITIMATING THE ISSUE OF VOID MARRIAGES, LEGITIMATES THE ISSUE OF A SECOND MARRIAGE, THOUGH FIRST HUSBAND TS STILL ALIVE.— Under the statute which declares that “The issue of marriages deemed null in law shall nevertheless be legitimated,” Code Va., § 2554, the issue of a woman by a second marriage, which took place during the lifetime of her first husband, are legitimate. Stones v. Keeling, 5 Call 143. approved in Heckert v. Hile, 90 Va. 390, 18 S. E. Rep. 841, where the issue of a .second marriage born before the dissolution of the first marriage, were held legitimate, and the case of Greenhow v. James, 80 Va. 636, was held not to be in conflict with this decision nor that of Stones v. Keeling, supra.
Legitimation by Subsequent Marriage and Recognfc tion.
Act of 1785 Retroactive. — A child born out of wedlock in the year of 1776 was legitimated by the subsequent intermarriage of his parents and acknowledgment by his father in 1778. under the act of 1785, taking effect 1st Jan. 1787, providing that: “Where a man, having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.” Sleigh v. Strider, 5 Call 439.
Such Issue Are Entitled to Share in the Distribution of Their Father’s Estate. — An illegitimate child, born before the first of January, 1787, of parents who intermarried also before that period (the father, who died in 1799, having recognized the child by his will as his own, though born before wedlock), is entitled to an equal distribution of the father’s unbequeathed estate, with his other children born after the marriage, being legitimated by the act of 1785. Rice v. Efford, 3 H. & M. 225.
Such Issue Deemed “Issue of the Marriage.” — Issue bom before the intermarriage of their parents, are to be deemed “issue of the marriage,” where the parents afterwards intermarry, so as to prevent them from being mere volunteers under a marriage settlement. Coutts v. Greenhow, 2 Munf. 363.
But this decision was discredited, or at least held not to apply where such subsequent intermarriage was illegal, or where the parties, being a white person and a negro went out of the state to be married, though the marriage was valid where celebrated. Greenhow v. James, 80 Va. 636.
Effect of Recognition before Marriage, or after Death of the Person Born Out of Wedlock. — Where a bastard marries and dies, leaving a legitimate child: and then the parents of the bastard marry and the father of the bastard, before the father's marriage, and in the lifetime of the bastard, recognizes her as his child; and so recognizes her after his marriage. which is after the bastard’s death, it was held that the child of the bastard may inherit through his mother, from her father. Ash v. Way, 2 Gratt. 203. See present statute, Code Va. 1887, § 2553, which provides that recognition maybe before or after marriage.
Statute Does Not Apply to a Subsequent Void Marriage. — The provision of the Code of Va. 1887, §2553, that “If a man haying had a child or children by a woman, shall afterwards intermarry with her, such child, etc., if recognized by him before or after marriage, shall be deemed legitimate,” does not apply to a marriage made absolutely void by the terms of the statute, e. g., a marriage between a white person and a negro. Lewis, P., and Richardson, J., dissenting. Greenhow v. James, 80 Va. 636.
Construction of Act Legalizing the Harriage of Negroes. — The Act of Assembly of February 27, 1866, “To legalize the marriageof colored persons then cohabiting as husband and wife” applies to the issue of such marriages, whether born before or after the passage of said act, and whether there had been any formal marriage ceremony or not. Smith v. Perry, 80 Va. 563. “This law, in effect, antedates the marriage, and makes it valid from the time the *58relation began, and their children are legitimate whether recognized or not, if the cohabitation continued until the day of the passage of the law, and it was not in the power of the father to bastardize the children begotten by him, if he was still cohabiting with the mother. Where the connection and cohabitation has ceased before the passage of the law, the legitimacy of the child depends upon the recognition of the father.” Lacy, J., in Smith v. Perry, 80 Va. 563.
To Be Construed Liberally. — Such a law, being remedial, must be construed so as to advance the remedy and extend the relief. Smith v. Perry, 80 Va. 567.
The Question of Bastardy, Settled in Other Respects, as in Case of Valid Harriage. — Where in a case under that law it is charged that the supposed bastard was begotten by one not the husband, the question of bastardy must be settled as that question would be, when bastardy is charged against a person born during coverture or recognized during coverture,' though born before. Smith v. Perry, 80 Va. 563.
D. CAPACITY OP BASTARDS TO INHERIT AND TRANSMIT INHERITANCE.
May Transmit Inheritance on the Part of Their Mother. — Under the statute of Virginia directing the course of descents, 1 Rev. Code, ch. 96, Code 1887, § 2552, bastards are capable of transmitting inheritance on the part of their mother; and where a bastard dies intestate, leaving no children or descendants, but leaving his mother surviving, and two bastard brothers, by other fathers, the estate will pass to the mother and the two bastard brothers; but the two bastard brothers, being regarded as of the half blood only, will each inherit only half so much as the mother. Garland v. Harrison, 8 Leigh 368; Hepburn v. Dundas, 13 Gratt. 219; Thomason v. Andersons, 4 Leigh 118.
Parker, J., in Garland v. Harrison, 8 Leigh 368, said; “I have no doubt that it was intended by the 1 Rev. Code, ch. 96. § 18, Code 1887, § 2552, to bestow upon illegitimate children the same capacities of inheriting from and through their mother, and passing inheritance to and through her, as they possess under the 19th section, Code 1887, § 2553, relating to subsequent legitimation, in respect to both parents; that is to say, to make them in all respects the legitimate children of their mother.”
Take with Legitimate Children as “Children” of Their flother. — Upon a devise to a daughter for life, and at her death the property to be equally divided among her children, an illegitimate child of the daughter will take with her legitimate children; Bennett v. Toler, 15 Gratt. 588. See Thomason v. Andersons, 4 Leigh 118.
E. BASTARDY PROCEEDINGS AGAINST PUTATIVE FATHER.
Residence of Woman, — The law does not require that the woman, who makes the complaint, should have resided a year in the county before the birth of the child, but, “for the preceding year,” i. e., for a year preceding her complaint. Tennant v. Brookover, 12 W. Va. 337.
flay Make Complaint before Any Justice of Her County. — It is not necessary for the warrant to show in what district or township the woman resided, nor that she resided in the same district or township in which the justice, before whom she made the complaint, resided.' If she had resided for a year in the county, she might go before any justice in any township thereof and make the accusation. Neither was it necessary for the warrant to be returned before the justice of the township or district, in which the accused is found. The law requires the justice, if it be a proper case, to issue a warrant directed to the sheriff of, or constable in, any county where the accused may be, requiring him to be apprehended and taken before a justice of any township of the county, in which he may be found. Tennant v. Brookover, 12 W. Va. 337.
Charge Must Be in Writing. — But if it appears that the charge before the magistrate by the mother of the bastard child was not taken down in writing, according to the provisions of the act, the judgment must be reversed and the complaint dismissed. Howard v. Overseers, 1 Rand. 464; Mann v. Com., 6 Munf. 452.
One or flore of the Overseers of the Poor Must Be Parties to the Proceedings. — A person accused of being the father of a bastard child, cannot lawfully be bound to support such child, unless it appear that the Warrant was issued by the magistrate upon the application of the overseers of the poor, or one of them, or that they, or one of them, were parties to the cause in the court making the order against such person. Mann v. Commonwealth, 6 Munf. 452.
It Must Appear That Child Has Been or Is Likely to Be Chargeable to the Parish. — Under the 18th section of the act of 1792, “providing for the poor,” etc., a person is not to be bound to support a bastard child, unless it appear that such child' has either actually been, or is likely to be, chargeable to the parish. And where the bastard child has never been placed on the parish list, but has been supported without any engagement of the overseer of the poor respecting it, the court is not authorized to enter a retrospective judgment, compelling its alleged father to pay for its previous maintenance. Fall v. Overseers of Augusta County, 3 Munf. 495.
But It Is Immaterial Whether Anything Has Been Actually Paid for the Support of the Child or Not.— Where the county court makes an order against the putative father of a bastard child, that he shall pay to the overseer of the poor twenty dollars a year for seven years, though the overseers of the poor may never have paid anything for the support of the child, they are entitled to recover these annual sums from the putative father. Willard v. Overseers of Poor of Wood County, 9 Gratt. 139.
Proceedings Hay Be Instituted by a Married Woman. —An order of the county court that the putative father of a bastard child, whose mother was a married woman, who had been deserted by her husband should pay to the overseers of the poor a certain sum annually for six years, commencing from the birth of the child, was held proper, though the statute applies in terms only to single women. 2 Rev. Code 1819, p. 272; Code 1873, p. 923, § 1; Lyle v. Overseers, 8 Gratt. 20.
After Judgment Rendered and Bond Given, the Defendant Cannot Be Rearrested. — In a proceeding in bastardy against the putative father, after the defendant has been arrested, the case tried before a jury, and verdict rendered, and judgment rendered upon the verdict, and the'defendant has given bond, approved by the court, to insure compliance with the order of the court as to the payment of money for the maintenance of the child, the cause is ended, and the law does not authorize the rearrest of the defendant to compel him to comply with the judgment of the court,-or to 'give a new bond to secure such compliance. Barbour County Court v. O’Neal, 42 W. Va. 295, 26 S. E. Rep. 182.
*59Accrued Installments Payable When Judgment Rendered. — It is not error for the court to render a judgment ordering the defendant to pay a certain amount tor the maintenance of a bastard child at the end of every year, and requiring the defendant to give bond for the performance of the order, though one of the installments became due six months before the judgment was rendered; for though he cannot go back and pay the first installment, yet he can pay it when he executes the bond. Tennant v. Brookover, 12 W. Va. 337.
Mother has Power to Compromise the Proceedings.— Under the statutory provisions of this state, a bastardy proceeding can only be instituted by the mother of the child; and unless the county court assumes the prosecution thereof, and orders the suit to proceed in its name, she -has the right to compromise and dismiss the same. Failure regularly to continue such suit from term to term, or require a renewal of his recognizance, operates as a discharge of the accused, and such proceeding can only be renewed by the mother in the manner provided by law. Billingsley v. Clelland, 41 W. Va. 231. 23 S. E. Rep. 812.
Note Given in Compromise Valid. — A note given to a woman in compromise of a bastardy proceeding is binding and valid, and on sufficient consideration, and the payment thereof cannot be avoided on the ground that the compromise of such proceeding is contrary to public policy, or against public morals. Nor can the innocence of the putative father be set up as a defence against the recovery of such note, in the absence of fraud on the part of the obligee in procurement thereof. Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. Rep. 812.
Jurisdiction of Courts in West Virginia.
Act of Dec. 9, 1873, Not Applicable to Causes Then Pending in Circuit Courts.- The Act of Dec. 9, 1873, “To amend and re-enact chapter 80 of the Code,” touching the maintenance of bastards, was not retrospective and did not take away from the circuit courts their jurisdiction to try warrants of bastardy, which had issued and under which recognizances had been taken, requiring defendants to appear in said courts, before the passage of said act, but the proceeding should conform as far as possible to that act. Tennant v. Brookover, 12 W. Va. 337.
Evidence.
Complainant’s Chastity Not in issue. — in a prosecution for bastardy against the putative father of a bastard child, under the provisions of chapter 80 of the Code, the character of the complainant for chastity is not involved in the issue. Swisher v. Malone, 31 W. Va. 442, 7 S. E. Rep. 439.
Admissibility of Evidence of Previous Sexual Intercourse of Complainant — Must Be Capable of Affecting Paternity of Child. — Upon the trial in such a proceeding the defendant will not be permitted to introduce evidence to prove that the complainant has at any time had carnal connection with other men, unless such connection has occurred within such a period before the commencement of her gestation that it is possible that one of such other persons may have been the father of the child. Swisher v. Malone, 31 W. Va. 442, 7 S. E. Rep. 439.
Inadmissible Where Defendant Admits Having Had Intercourse with Complainant.-If a single woman, j having been delivered of a bastard child, on her ( oath, charge a certain man with being its father, ( and aver that there is no possibility of her being mistaken, it is competent for the person accused to invalidate her testimony by proving that, about nine months before its birth, she was guilty of criminal intercourse with other men. But if the defendant admit that he, also, had criminal intercourse with her about the same time, such proof should be rejected, and he may be confined to proof of the general character of the mother. Fall v. Overseers of Augusta County, 3 Munf. 495.
Inadmissible Merely to Impeach Complainant’s Testimony — if upon such trial the complainant upon the witness stand, in her examination in chief or upon cross-examination, has testified that she has never had connection with any man other than the defendant, he cannot, for the purpose of impeaching her testimony, or of showing that he is not the father of the child, introduce testimony tending to show that she has had such carnal connection with other men, unless it has occurred so near the commencement of her gestation that some person other than the defendant may be the father of the child. Swisher v. Malone, 31 W. Va. 442, 7 S. E. Rep. 439.
Costs — To Whom Given. — The defendant cannot assign it as error that the court gave the costs to the overseers of the poor for the use of the plaintiff instead of to the plaintiff herself since it does not concern him. Tennant v. Brookover, 12 W. Va. 337.
Appellate Jurisdiction.The superior courts of law have jurisdiction to grant writs of supersedeas to orders of the county or corporation courts, binding persons accused of being the fathers of bastard children, to support such children. Mann v. Commonwealth, 6 Munf. 452.
When Appellate Court Should Itself Render Judgment. — In a bastardy proceeding, the county court having decided in favor of the putative father, and the overseers of the poor having spread the facts upon the record by an exception, and taken an appeal to the circuit court, that court, upon reversing the judgment of the county court, should not send the cause back for a new trial, but should render a judgment in favor of the overseers of the poor for the amount appearing to be due, but without interest. Willard v. Overseers of the Poor of Wood County. 9 Gratt. 139.
Irregular to Admit New Evidence in Appellate Court.
—On an appeal from an order of a county court, providing for the support of a bastard child, it is irregular for the appellate court to receive new evidence of the fact, which was not before the county court, but the judgment of the lower court will not be reversed for this error alone. Howard v. Overseers,
1 Rand. 464.
Bastardy Proceedings Now Abolished in Virginia,— “This provision for the maintenance of bastard children being applicable only to white women, an apprehension arose that it was in conflict with the provision of the Civil Rights Act of 1866 (Rev. Stats. U. S. p. 348, §§ 1977 et seq.), or to amendment XIV. of the United States Constitution, and under the influence of that groundless apprehension, the whole doctrine tonching the charging of putative fathers with the maintenance of bastards has been repealed. (Acts 1874-5, p. 94, ch. 112.) The apprehension is deemed to be groundless, because the proceeding is not for the benefit of the mother, who is not legally bound to support the child, but for the relief of the county.” 1 Min. Inst. (4th Ed.) ch. 9, p. 148. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481351/ | [Cite as State v. Howard, 2022-Ohio-3958.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0034
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN D. HOWARD WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 TR-C 000874
DECISION AND JOURNAL ENTRY
Dated: November 7, 2022
HENSAL, Judge.
{¶1} John Howard appeals a judgment of the Wayne County Municipal Court that denied
his motion to suppress. For the following reasons, this Court affirms.
I.
{¶2} Trooper Josiah Custer testified that he was on patrol at night in Wooster Township
when he observed the right two wheels of a vehicle go off the roadway as it was making a left turn
from U.S. 30 onto Fry Road. The trooper turned his lights on and then watched the vehicle drive
on the yellow line between the lanes of traffic on Fry Road. According to Trooper Custer, his
patrol vehicle has a dash camera that begins to record from 60 seconds before he activates his
lights. He testified that, because of the angle of the camera, it did not capture the violation he
observed. He explained that, whereas the camera captures the vehicle “kind of off towards the
right[ ] side of the road, kind of coming back,” he “was able to see the entire culmination of the
events where [the vehicle] actually did go off the road.” The trooper acknowledged that the right
2
tires of the vehicle appear to be off the roadway at the 1:25 mark of the video and that its left tires
are completely on the double yellow line at the 1:28 mark.
{¶3} After making his observations, Trooper Custer stopped the vehicle, which was
being driven by Mr. Howard. Upon further investigation, Trooper Custer arrested Mr. Howard for
operating under the influence (“OVI”). He also cited him for a marked lanes violation. Mr.
Howard moved to suppress the evidence against him, arguing that Trooper Custer did not have
reasonable articulable suspicion to stop him. Following a hearing, the municipal court denied the
motion, finding that Trooper Custer had probable cause to stop Mr. Howard’s vehicle.
Specifically, the court found that Mr. Howard committed a traffic violation prior to the stop, which
was going off the right side of the roadway while making a left turn onto Fry Road. The court
found that a violation was visible at the 1:25 mark of the dash camera video. The court also found
that the trooper conducted field sobriety tests appropriately and that there was probable cause to
arrest Mr. Howard for suspected OVI. The court further found that Trooper Custer substantially
complied with the regulations for urine screening.
{¶4} Following the denial of his motion to suppress, Mr. Howard pleaded no contest to
one count of OVI. The municipal court found him guilty of the offense and sentenced him to 120
days in jail. It also fined him $1,200 and suspended his driver’s license for five years. Mr. Howard
has appealed, assigning as error that the municipal court incorrectly denied his motion to suppress.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS BECAUSE THE ARRESTING OFFICER DID NOT HAVE
REASONABLE ARTICULABLE SUSPICION TO STOP AND DETAIN HIIM.
3
{¶5} Mr. Howard argues that the traffic stop was unconstitutional because Trooper
Custer did not have reasonable articulable suspicion to stop and detain him. A motion to suppress
evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, ¶ 8. “When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the credibility
of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court
“must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “Accepting these facts as true,
the appellate court must then independently determine, without deference to the conclusion of the
trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,
124 Ohio App.3d 706, 710 (4th Dist.1997). Accordingly, this Court grants deference to the trial
court’s findings of fact but conducts a de novo review of whether the trial court applied the
appropriate legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶
12 (9th Dist.).
{¶6} “[A] traffic stop is constitutionally valid if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to commit a crime.”
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7. The officer “must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” (Alteration in original). State v. Jenkins, 9th Dist. Lorain No.
15CA010826, 2016-Ohio-5190, ¶ 6, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). “[T]he
propriety of an investigative stop by a police officer must be viewed in light of the totality of the
surrounding circumstances.” Mays at ¶ 7, quoting State v. Freeman, 64 Ohio St.2d 291 (1980), at
paragraph one of the syllabus. “[I]f an officer’s decision to stop a motorist for a criminal violation,
4
including a traffic violation, is prompted by a reasonable and articulable suspicion considering all
the circumstances, then the stop is constitutionally valid.” Id. at ¶ 8.
{¶7} According to Trooper Custer, he stopped Mr. Howard because he saw him commit
a marked lanes violation. Ohio Revised Code Section 4511.33(A)(1) provides that, if a road “has
been divided into two or more clearly marked lanes for traffic, * * * [a] vehicle * * * shall be
driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be
moved from such lane or line until the driver has first ascertained that such movement can be made
with safety.”
{¶8} At the conclusion of the suppression hearing, the municipal court found that,
because the dash camera was mounted in a particular location, it could not capture everything that
Trooper Custer saw, including when Mr. Howard turned left while the trooper was still on Route
30. The court found credible the trooper’s testimony that he saw Mr. Howard travel off the right
side of the roadway. The court also explained that, when Mr. Howard’s vehicle does come back
into view of the dash camera “you can see the * * * back right tire at least kind of popping out of
the portion that the truck, the back of the truck bounces a bit as it is coming back out of the portion
of the roadway where it had been off previously.” Following the hearing, the municipal court
issued a written decision that incorporated its findings from the suppression hearing. It also wrote
that Mr. Howard committed a traffic violation before the stop, “namely going off the right side of
the roadway while making a left turn * * * [t]his is visible at approximately one minute twenty
five seconds (1:25) on [the video].”
{¶9} Mr. Howard argues that the video belies the municipal court’s finding that he
committed a traffic violation. Trooper Custer testified, however, that the violation was not
captured by the dash camera, which the municipal court found credible. As Mr. Howard’s vehicle
5
re-enters the view of the dash camera as the trooper turned onto Fry Road to follow him, Mr.
Howard’s vehicle is on the far right side of the roadway and the back of the vehicle bounces in a
way that is consistent with part of the vehicle coming back onto the roadway. Accordingly, upon
review of the record, Mr. Howard has not established that the municipal court’s factual findings
are not supported by competent credible evidence.
{¶10} Mr. Howard also argues that he could not commit a marked lanes violation on Fry
Road because it is not divided into two or more clearly marked lanes for traffic. Mr. Howard
appears to mistakenly believe that the roadway in question must have multiple lanes headed in the
same direction. Section 4511.33(A), however, indicates that it applies whenever a roadway “has
been divided into two or more clearly marked lanes for traffic” or whenever “traffic is lawfully
moving in two or more substantially continuous lines in the same direction[.]” Fry Road is
divided into multiple lanes, one for northbound traffic and one for southbound traffic, which are
separated by a double yellow line. As the State has argued, although there was no fog line along
the right side of the road, a vehicle travelling partially off the roadway would not be driving
“entirely within a single lane or line of traffic” as required by Section 4511.33(A)(1).
{¶11} Mr. Howard has also challenged the credibility of Trooper Custer, particularly how
the trooper ended up behind him as he was turning on to Fry Road. Mr. Howard argues that the
trooper was not just on routine patrol but spotted a vehicle that looked like his as it exited the
parking lot of a bar and decided to follow him. The trooper lost the vehicle at one point and had
to travel at 100 miles per hour in order to catch up. The municipal court, however, was in the best
position to evaluate whether Trooper Custer was credible when he testified that he saw Mr. Howard
commit a marked lanes violation.
6
{¶12} Upon review of the record, we conclude that the municipal court did not err when
it determined that the trooper had reasonable articulable suspicion to initiate a traffic stop.
Accordingly, Mr. Howard has not established that the trial court incorrectly denied his motion to
suppress. Mr. Howard’s assignment of error is overruled.
III.
{¶13} Mr. Howard’s assignment of error is overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
7
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
BRENT L. ENGLISH, Attorney at Law, for Appellant.
DAVID R. LUTZ, Prosecuting Attorney, and SHANNON PARKER, Assistant Prosecuting
Attorney, for Appellee. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481432/ | MONCURE, J.
I concur in the opinion of Judge Bee, that the demurrers to the declaration, and to the second and third counts, were properly overruled. But I also think that the demurrer to the first count was properly overruled; and therefore dissent from his opinion on that part of the case.
The demurrer to the first count admits the contract to have been as therein set out; and we cannot therefore infer that it was otherwise from the rest of the declaration, or from considerations dehors the declaration itself. What then is the contract which the first count sets out? It is that Jones on his part agreed to sell and deliver to Kennaird and Murdock a raft of logs in the Ohio river about a half of a mile below their landing, in consideration whereof Kennaird and Murdock, on their part, promised to pay him the sum of 90 dollars, to wit, 3 dollars in hand as earnest money, and the residue when they should be afterwards requested, deducting therefrom, however, the expense of navigating and floating the said logs to their landing which they might incur over and above the services *of the said Murdock and a negro in his employ; and also promised that they would cause the said raft to be navigated and floated to their landing as soon as the state of the river would permit. The plaintiff then avers that he did accordingly sell and deliver to the plaintiffs the raft of logs, and had at all times since been ready and willing to pay the expense aforesaid; and that the defendants did pay the said sum of 3 dollars in hand as earnest money, but had failed and refused to pay the residue of the said sum of 90 dollars, less the expense aforesaid, although often requested so to do. According to the terms of the contract as set out, Jones fulfilled his part of it by the sale and delivery of the raft. Kennaird and Murdock then became bound to pay 3 dollars in hand, and the residue of the 90 dollars, less the expense aforesaid, when afterwards (that is after the sale and delivery) requested, and to cause the raft to be navigated and floated to their landing as soon as the state of the river would permit. They paid the 3 dollars, but failed to pay the residue of the 90 dollars, less the expense aforesaid, though often requested: and for this breach the plaintiff counts. The only question in the case is, whether the said residue was payable on request, or after the raft should be floated to the defendants’ landing? The *88plaintiff expressly avers that it was payable on request, and the demurrer admits the averment to be true. It is quite probable that it was expected by the parties that, before such request would be made, the raft would be floated to the defendants’ landing; that it would be so floated in a very short time, and that thus the actual expense of the operation, over and above the services of said Murdock and his negro, would be ascertained, and could be deducted from the said residue. It is quite probable that both parties would have preferred this, as a deduction of the actual was preferable to that of the estimated expense; and that, therefore, the plaintiff was willing that the said ^residue should be payable on request, instead of being paid in Hand; intending not to request it for a short time, by which time it was expected that the raft would have been floated to the defendants’ landing. If the plaintiff should be disappointed in his expectation that the raft would be floated in a short time, either by its being washed away, or by the state of the river, or other cause, he did not mean to deprive himself of the right, which the contract expressly gave him, to demand payment of the said .residue; deducting-in that case the estimated instead of the actual expense. The defendants did not stipulate for time to float .the raft to their landing as a term of credit for the purchase money: that was expressly payable on request; and it would have been unreasonable, as well as against the terms of the contract, to have withheld the whole purchase money after request, merely for the purpose of deducting therefrom the actual instead of the estimated expense. If the plaintiff chose to make such request before the raft was floated, and the defendants were riot in default for not having floated it, the jury in estimating the expense would of course take care to allow enough to .cover it. But they could have had no difficulty in estimating the expense of floating a raft of - logs a half a mile on the Ohio river in a proper state of water over and above the services of two men. They would have had to have made such estimate, it is admitted, if the defendants had delayed for a reasonable time to float the raft, or if it had (as it may have been) washed away by a flood. They seem to have actually made such estimate in the case, and allowed 10 dollars for the expense. That they might be required to do so, was contemplated by the parties by the very terms of their contract; though it was desirable to both, as before stated, that the actual instead of the estimated expense should be deducted, but not so desirable as to make the floating of the raft by the defendants a Condition precedent to the right of the plaintiff to demand the purchase money.
But it is asked, why did the defendants promise to cause the raft to be floated to their landing as.soon as the state of the river would permit, if he might be required to pay the purchase money before? We..ca.H“ not be required to assign a motive for one of the terms of the contract when they are all plainly stated. It may have been convenient to the plaintiff to have the raft taken from his landing as soon as possible. It was doubtless desirable to him, as before stated, to ascertain the actual expense of the operation before the deduction was made, if it could be done in a reasonable time; and he therefore required a promise from the defendants to perform the operation as soon as the state of the river would permit. There may have been other motives which the record does not disclose. But these are matters of conjecture only, and cannot affect the case.. It is enough that the defendants promised to pay the money on request; and it is no answer to say that he also promised something else. He may or. may not have performed that other thing: at all events, the plaintiff charges no breach of promise in that respect.
It is also said that if the true construction of the contract be as supposed, the plaintiff might have relied alone on the common counts. This may be true, but yet it does not follow that he might not also rely on a special count, and thus have two strings to his bow.
I am for affirming the judgment.
ALLEN, DANIEL and SAMUELS, Js., concurred in the opinion of Lee, J.
Judgment reversed.
ASSUMPSIT.
I. Definition and Nature of Action.
II. Persons Entitled to Sue.
III. Grounds of Action.
1. Simple Contracts.
a. In Writing-.
b. By Parol.
2. Specialties.
3. Implied Contracts.
4. Torts.
IV. .When the Action Does Not Lie.
1. In General.
2. Against Governmental Agencies.
3. Where There Is No Contract.
4. Who Cannot Recover.
V. The Pleadings.
1. The Declaration.
a. Sufficiency.
•b. Amendments.
c. Common Counts.
(1) - In General.
(2) Recovery in General.
(3) The Money Counts.
(a) When Proper.
(b) Recovery under.
(c) Request.
(4) The Account Stated.
(5) On Special Contracts.
d. Special Counts.
(1) In General.
(2) When Proper.
(3) Averments.in.
e. Joinder, of Counts.
(1) When Proper.
(2) When Improper.
*89f. The Allegations.
(1) In General.
(2) Construction of.
(3) Matters of Defence Omitted.
(4) Sufficiency.
(5) Of Promise.
(6) Of Consideration.
(7) Of Breach.
(8) Of Demand.
(9) Of Damages.
g. Omissions.
(1) Material.
(2) Immaterial.
(3) When Cured.
h. Bill of Particulars, Account and Affidavit.
i. Surplusage.
2. The Pleas.
a. In Abatement.
b. The General Issue.
c. Special Pleas.
(1) Sufficiency and Materiality.
(2) Statutory Recoupment.
(3) Set-Ofi.
(4) Payment.
(5) Statute of Limitations.
(a) In General.
(b) To What Time It Relates.
(c) Answer to Plea.
(d) Form of Plea.
(6) Pleas Provable under the General Issue.
3. The Replication.
4. Demurrer.
Vi. Evidence.
1. Presumption.
2. Admissibility, Competency and Relevancy.
3. Sufficiency.
4. Under the Common Counts.
5. Under the General Issue.
VIT. Variance between Allegation and Proof.
3. When Material.
2. When Immaterial.
VIII. Verdict.
1. Form.
2. Operation and Effect.
3. For Excessive Amount.
4. When Set Aside.
IX. Judgment.
1. Form.
2. In Joint Actions.
3. When Valid.
4. When Invalid.
Cross References to Monographic Notes.
Costs, appended to Jones v. Tatum. 19 Gratt. 720. Interest, appended to Fred v. Dixon, 27 Gratt. 541.
I. DEFINITION AND NATURE OF ACTION.
Definition. — The action of assumpsit is defined to be at common law an action for the recovery of damages for the nonperformance of a contract not under seal nor of record. It is not sustainable unless there has been an express contract, or unless the law will imply a contract. State v. Harmon, 15 W. Va. 115.
Nature Is Equitable. — The action of assumpsit is in some sense an equitable action, and is applicable to almost every case where money has been received by one, which in equity and good conscience ought to be refunded. Hughes v. Frum. 41 W. Va. 445, 23 S. E. Rep. 604; Jackson v. Hough, 38 W. Va. 236, 18 S. E. Rep. 575.
And it is immaterial whether the title to the money be legal or equitable; if the plaintiff has title thereto he may recover the money in this action. Thompson v. Thompson, 5 W. Va. 190.
As was said by Nelson, J., in Eddie v. Smith, 13 Wend. (N. Y.) 490, “The principles of this action are liberal, beyond that of any known to the practice of the courts.” Or by Mr. Justice Blackstone, “It is applicable to almost every case where a person has received money which, in equity and good conscience, he ought to refund.” It is equally beneficial to the defendant, because the defence to the claim as well as the claim itself is governed by the same principles. Thompson v. Thompson, 5 W. Va. 190.
II. PERSONS ENTITLED TO SUE.
Guardian for Money Due Ward.-A guardian may bring assumpsit in his own name, upon a draft or order payable to himself as guardian, for money due his ward. Jolliffe v. Higgins, 6 Munf. 3.
Executor on Action Accrued after Testator’s Death.— It is proper for an executor to bring an action of assumpsit for money in his own name, or as executor, where the cause of action does not accrue until after the death of the testator. Lawson v. Dawson, 16 Gratt. 230.
When Corporations Hay Sue and Be Sued. — When a charter for a corporation has been granted by a circuit court pursuant to § 1145 of the Virginia Code, and the tax thereon has been paid, the corporation has a legal existence, and may sue and be sued in assumpsit on its contracts. Coalter v. Bargamin, (Va.), 37 S. E. Rep. 799, 6 Va. Law Reg. 756.
III. GROUNDS OF ACTION.
1. SIMPLE CONTRACTS.
a. In Whiting.
Repudiation of Contract — Action Lies before Balance Is Due. — An action of assumpsit may be brought to recover damages for failure to accept goods sold under a special contract, when the defendants repudiate the contract, before the time has elapsed when he was allowed to pay the balance due. James v. Adams, 16 W. Va. 245.
Recovery Had from All Makers of Promissory Note.— In an action of assumpsit on a promissory note, the declaration in which contains the common counts for money loaned, the plaintiff may recover of all the makers, although only one of them received the money from the note, and the others were sureties. Bank of Wheeling v. Evans, 9 W. Va. 373.
Agreement for Use of Land Not by Deed. — It was held in Goshorn v. Steward, 15 W. Va. 657, that the action of assumpsit for the use and occupation of lands, is maintainable under § 7, ch. 93. of the W. Va. Code, where the agreement is not by deed.
Contract with a Town — The action of assumpsit will lie against a town for the recovery of money due the plaintiff for work done under a contract for the town, notwithstanding void certificates have been issued and accepted for such work. Johnson v. The Town of Alderson, 33 W. Va. 473, 10 S. E. Rep. 815.
When Assignor of Bond Liable to Assignee — Promissory Note. — The assignor of a bond is liable to the assignee in an action of assumpsit, if the assignee has used due diligence to recover the money from the obligor, and has failed to do so. The assignor of the promissory note was liable to the assignee before the statute of Anne, in case payment was not made by the maker, when demanded. Mackie v. Davis, 2 Wash. 219, 1 Am. Dec. 482.
*90The assignor of a bond assigns it by endorsing bis name in blank for the purpose of enabling the assignee to buy goods on the face of the endorsement.H sells goods to the assignee on the faith of the endorsement, and before the time of payment for the goods arrived the obligor of the bond becomes insolvent. H may maintain an action of assumpsit against the assignor either as such of as guarantor of the bond; Hopkins v. Richardson, 9 Gratt. 485.
In an action of assumpsit by an assignee against a remote assignor of a bond or note, under the statute, 1 Rev. Code, ch. 125, §6, the plaintiff may recover under the general counts for money had and received, and for money paid, laid out, and expended. Drane v. Scholfield, 6 Leigh 386.
Agreement Indemnifying Constable from Removal of Property. — When three persons enter into a written agreement to indemnify a constable “agreeably to law” from any loss by removing property under an execution from premises of landlord, the latter claiming it liable for rent, and this agreement is delivered to the officer on the day and at the place of sale, and the three signers acknowledge it as their act, this is a joint assumpsit to indemnify the officer, and the sale of it by him is a consideration to support the assumpsit as to all of them. Crawford v. Jarrett, 2 Leigh 630.
Special Contract for Work and Labor — Compensation in Honey. — Where the terms of a special contract in writing for work and labor not under seal have been performed, the stipulated compensation, if payable in money, may be recovered in an action of general indebitatus assumpsit. Brown v. Ralston, 9 Leigh 532.
Lost Foreign Bill of Exchange. — If A purchase of B a foreign bill of exchange, which is afterwards lost before it is presented, and B refuses to give a second bill, A may bring indebitatus assumpsit for the purchase money. Murray & Co. v. Carret & Co., 3 Call 373.
Contract with Agent for the Undisclosed Principal— Either Hay Sue. — Where a contract not under seal is made with an agent, and in his name for an undisclosed principal, either the agent or the principal may sue upon it in an action of assumpsit. Where the agent has no beneficial interest in the contract, the declaration may be amended so as to show that the action is brought for the benefit of his principal. National Bank v. Nolting, 94 Va. 263, 26 S. E. Rep. 826.
On Endorsed Negotiable Note. — The payee in a negotiable note made the following indorsement on it: “For value received we hereby guarantee the payment of the within note at maturity, waiving demand, notice of nonpayment, and protest.” This operated as an indorsement with enlarged liability, and the action of assumpsit may be maintained on such note together with other negotiable notes by the same maker, and with the simple indorsement of the same payees jointly against the makers and indorsers. Nat. Exch. Bank v. McElfresh, etc., Co. (W. Va.), 37 S. E. Rep. 541.
Lease of Premises — Only a Portion of Lessees Hake Entry — All Are Liable. — Where two of four joint lessees entered upon certain premises, under a written agreement, made with the owner of the premises, and signed by ail of them, but the other two did not make actual entry upon and occupy the premises, the occupancy of the first two was the occupancy of all four, and upon the terms designated in the agreement; and they are all lessees of the landlord, regardless of their relations to each other, and as such lessees they are responsible to the landlord in an action of assumpsit for the use and occupation of the land. Goshorn v. Steward, 15 W. Va. 657.
Initial Carrier Liable for Excess Charged by Connecting Carrier. — It is provided in Virginia by statute (Code of 1887, § 1295) that when a common carrier accepts for transportation anything directed to a point beyond its own terminus, it shall be deemed thereby to assume an obligation for i ts safe carriage to such point of destination, unless released or exempted by contract at the time of acceptance, and the action of assumpsit will lie to recover from the initial carrier the excess of freight above the guaranteed rate, which had been paid to the connecting carriers. Va., etc., Co. v. Louisville, etc., R. Co., 98 Va. 776, 37 S. E. Rep. 310, 6 Va. Law Reg. 738.
Assignment of Judgment — Inducement.—Assumpsit may be brought against the assignor of a judgment, which is afterwards reversed, notwithstanding the assignment was by a sealed instrument, for in such a case the sealed instrument is not the ground of the action, but only the inducement thereto. Arnold v. Hickman, 6 Munf. 15. See Baird v. Blaigrove, 1 Wash. 170.
b. ByPabol.
Agreement Altering Prior One under Seal. — A parol agreement, made subsequent to one under seal, may be declared upon in assumpsit, though it should alter the terms of the written agreement. The agreement is only the inducement to the real grounds of the action, the subsequent assumpsit stated in the declaration. Baird v. Blaigrove, 1 Wash. 170.
Agreement to Pay Honey in Discharge of Bona Fide Claim. — In a dispute between parties over a bona fide claim by one against the other, and there is in law some foundation for the claim, the one claimed to be subject to a liability agrees to pay a sum of money, or to do anything else, and such promise is based on a sufficient consideration and may be enforced in an action of assumpsit. Davisson v. Ford, 23 W. Va. 617.
Use and Occupation of Land on Promise to Pay Certain Sum. — Independent of the statute, 11 Geo. II, ch. 19, the action of assumpsit lies at common law for the use and occupation of land, by permission and assent of the plaintiff on an express promise to pay the plaintiff a certain sum, or in general terms to pay him to his satisfaction for such use and occupation. Eppes v. Cole, 4 H. & M. 161, 4 Am. Dec. 512.
Agreement by Purchaser under Deed of Trust to Re» pay Excess Paid by One of the Debtors to the Creditors Secured. — A debt owed by two debtors jointly was secured by a deed of trust upon the land of one of them. The other debtor paid more than his share of the debt. The land was sold and the purchaser agreed to pay a certain sum, and in addition the excess of the share of the debt paid by the debtor who did not give any security for the debt. The purchaser failed to pay this excess, and the debtor who had paid it brought assumpsit against him for it. It was held that the action could be maintained, in Skinker v. Armstrong, 86 Va. 1011, 11 S. E. Rep. 977.
Promise to Waive Discharge in Bankruptcy, and Re-assume Old Debt.' — A verbal promise to pay a debt will be sufficient to bind one discharged in bankruptcy, if the promisor intended deliberately to waive the protection of his discharge and to rebind himself legally to pay the old debt. The action of assumpsit will lie on this verbal promise. Horner v. Speed, 2 P. & H. 616.
*91Payment Promised by Third Person for Subsistence Furnished a Married Woman Whose Husband Was Living. — A plaintiff in assumpsit is entitled, to recover upon a parol agreement of the defendant, that if the plaintiff would furnish and supply a certain married woman and her infant children with board, washing and lodging for a certain time, he, the defendant, would pay him for it. The plaintiff averred and proved that he furnished the board, washing and lodging accordingly. The plaintiff may recover although the woman's husband be in the commonwealth at the time, and bound to furnish her and her children necessaries, and the defendant is not morally or legally bound, except by his promise. Lanier v. Harwell, 6 Munf. 79.
Promise to Indemnify Auctioneer if He Will Not Hake a Resale. — The plaintiff In an action of assumpsit was employed by A and B to sell land at public auction, and sold it to C as the highest bidder. A, considering the sale inferior, directs the plaintiff to sell it again. B promises to indemnify the plaintiff if he will not resell it, to which he agrees. He is then sued by A and B and damages are recovered against him. The consideration of the promise made by B is both legal and sufficient to support an action against him upon his promise of indemnity. Carr v. Gooch, 1 Wash. 260.
Promise to Deliver Prisoner tinder Ca. Sa. or Pay the Debt. — A debtor is taken in custody by a ca. sa. sued out by his creditor. N. and W. promise the creditor that if he will release the debtor they will deliver him up again under the process, or will pay the debt. They fail to deliver him, and in an action of assumpsit brought by the creditor against them on this promise, he is entitled to recover the amount of the debt. Noyes v. Cooper, 5 Leigh 186.
Agreement of Appellee to Pay Costs, etc., if Appeal Is Dismissed. — if the appellant promise the appellee, that if the latter will agree to have the appeal dismissed, the appellant will pay him the full amount of the debt, damages and costs then due upon the appeal, and the appellee consents thereto and the appeal is dismissed as agreed, the appellee may maintain assumpsit on this promise. Spotswood v. Pendleton, 2 Call 209.
Wrongful Discharge under Contract. — Where a decedent wrongfully discharges one who is bound by parol contract to work for him for a stipulated time, the action of assumpsit may be brought against his personal representative for breach of contract at common law. ff the defendant dies while the action is pending, it may be revived against her personal representative. Lee v. Hill, 87 Va. 497, 12 S. E. Rep. 1052.
Minor Living with Relatives — When Recovery for Services. — Where a minor, residing with a relative, is led to believe that she will be paid for her services, and in expectation of compensation, faithfully performs such services, but is afterwards discharged without the reward she expected, and the relative denies all liability to her, she is entitled to recover the actual value of such services in an action of assumpsit, even though the defendant testifies that his promises were made in jest, and that he had no expectation or intention of recompensing her for her services, but was only acting towards her in loco parentis. Plate v. Durst, 42 W. Va. 63, 24 S. E. Rep. 580. Compare Riley v. Riley, 38 W. Va. 283, 18 S. E. Rep. 569.
Express Contract for Attorney’s Fees by Married Woman Living Apart from Husband. — Where there is an express promise by a married woman living apart from her husband to pay an attorney for obtaining a divorce for her, she is liable to him in an action of assumpsit, where he gave credit to her alone. Peck v. Marling, 22 W. Va. 708.
2- SPECIALTIES.
Statutory Provisions in Virginia. — It is now provided in Virginia by statute that the action of assumpsit may be maintained in any case where the action of covenant will lie. Acts 1897-98, p. 103; Pollard’s Supp. § 3246a.
In West Virginia the Action May Be Brought on a Sealed Instrument to Pay Money. — Under section 10, of ch. 99, of the W. Va. Code of 1868, an action of assumpsit may be maintained on a sealed writing, promising to pay money, if it be signed by the party to be charged or his agent. In such case where the count is on a sealed instrument, the same particularity in pleading is required, as if the declaration was in covenant. Kern v. Zeigler, 13 W. Va. 707.
An action of assumpsit is not allowed at common law on a bond, nor by the W. Va. Code 1868, ch. 99, § 10, upon a bond which is not a sealed instrument in writing containing a promise, undertaking or obligation to pay moneys, and a demurrer will properly lie to the declaration in assumpsit brought on another kind of bond. State v. Harmon, 15 W. Va. 115. See § 10, ch. 99, W. Va. Code 1899, containing same provision.
Guaranteeing Repayment of Borrowed Money. — The action of assumpsit will lie on a writing under seal guaranteeing the repayment of money borrowed, which is evidenced by the bond of the borrower, and is secured by a collateral mortgage which is to be repaid in monthly installments and payment of monthly dues on stock, and providing that after six months’ default in monthly payments, at the option of the lender the principal debt shall at once become due and the mortgage foreclosed. The contract of the guarantor is secondary and he will not be liable upon his guaranty until resort has been made to the mortgage, also to the bond, unless the principal being insolvent, renders further pursuit fruitless. Middle States, etc., Co. v. Engle, 45 W. Va. 588, 31 S. E. Rep. 921.
Interest Coupons. — Under § 10, ch. 99, of the W. Va. Code a municipal corporation is liable in an action of assumpsit for recovery upon interest coupons, even if under seal, attached to bonds which it has issued by legislative authority to aid in the construction of a railroad. Brown v. Town of Point Pleasant, 36 W. Va. 290, 15 S. E. Rep. 209.
3. IMPLIED CONTRACTS.
Failure of Consideration. — Where money has been paid under an agreement for a consideration which has wholly failed, there can be no doubt that the action of assumpsit is the proper remedy for Us recovery. Newberry Land Co. v. Newberry, 95 Va. 111, 27 S. E. Rep. 897; Garber v. Armentrout, 32 Gratt. 235; Buena Vista Co. v. McCandlish, 92 Va. 297, 23 S. E. Rep. 781.
Where the purchaser under a deed from a husband and wife is deprived of the property therein conveyed by reason of the deed being declared a nullity as to the wife, she recovering possession of the property, the grantee may bring assumpsit to recover back the purchase money paid for the property in an action of assumpsit for money paid under an agreement, the consideration of which has wholly failed. Garber v. Armentrout, 32 Gratt. 235. See Johnson v. Jennings, 10 Gratt. 1; Newberry Land Co. v. Newberry, 95 Va. 111, 27 S. E. Rep. 897; Robinson v. Welty, 40 W. Va. 385, 22 S. E. Rep. 73.
*92Same — Rescission—Refusal to Comply. — Where a contract of sale is not by deed, and no conveyance has been made, the vendee can recover back in an action of assumpsit what he has paid on the contract, when the consideration has failed, or the contract has been rescinded, or the vendor refuses to comply with his part of the contract. Bier v. Smith, 25 W. Va. 830.
Same — Modes of Recovery. — Where money has been paid on a contract which has been wholly rescinded or the consideration of which has wholly failed, the usual and better mode of recovering back the money paid under the agreement is on the common money counts of money had and received in an action of assumpsit, but it may be recovered on a special count which must properly set out the fact that the consideration has wholly failed, and did not result from fraud or illegal conduct on the part of the plaintiff. Johnson v. Jennings, 30 Gratt. 1; Buena Vista Co. v. McCandlish, 92 Va. 302, 23 S. E. Rep. 781; Haigh v. U. S., etc., Assoc., 39 W. Va. 802.
Tort Waived and Assumpsit Brought on Implied Promise. — The well-settled doctrine is that after a tortious taking of goods the owner may bring trespass for the taking, or waiving the trespass he may bring trover for the conversion, or if they have been sold and the money received or otherwise appropriated or consumed, he may waive the tort altogether and bring an action of assumpsit for their value upon an implied promise to pay. Maloney v. Barr, 27 W. Va. 381; McDonald v. Peacemaker, 5 W. Va. 439.
Pro Tanto Benefits of Partial Performance of Special Contract. — it was held in Balt., etc., R. Co. v. Polly, 14 Gratt. 447, that “indebitatus assumpsit will lie to recover the value of work done under a special contract, if it be fully executed on the part of the plaintiff, and nothing remains to be done under it butthe payment of a sum of money by the defendant.” Even when the contract is not fully executed, and the plaintiff has only partially performed, the general weight of authority holds that under proper circumstances the plaintiff may recover in assumpsit on the defendant’s implied promise to pay pro tanto for the benefit received. See Graves’ Notes on Pleading, p. 113, and authorities there cited.
Work and Material under Contract Required by Statute of Frauds to Be in Writing. — Where a special contract cannot be enforced, because it is not in writing, as required by the statute of frauds, still the plaintiff may recover from the defendant in an action of assumpsit on an implied contract for the work which was done and the material furnished under the contract. McCrowell v. Burson, 79 Va. 290.
Where Agent Detains Money of Principal. — Wherever an agent secures the payment of money belonging to his principal, and detains it, he is liable in an action of assumpsit for its recovery. This rule will apply to anyone, who knowing the facts, collects money belonging to another, and keeps possession of it. Thompson v. Thompson, 5 W. Va. 190.
For Rent Paid to Wrong Person. — A decree was made for the sale of a tract of land on credit. Before the decree a contract had been made for the rental of the land, and in conformity to the contract a lease was made for a year. During this year sale was made under the decree, which was confirmed and the conveyance given to the purchaser. If in this case rent has been paid to the representative of the former owner, the purchaser of the land under the decree may recover it from him by an action of assumpsit for money had and received. Taylor v. Cooper, 10 Leigh 317.
Fees from Usurper of Public Office. — Where a person has usurped an office belonging to another, and taken the fees of that office, an action of assumpsit for money had and received will lie at the suit of the party entitled to the office against the intruder for the recovery of such fees. Booker v. Donohoe, 95 Va. 359, 28 S. E. Rep. 584.
Use and Occupation of Land. — The action of assumpsit for the use and occupation of land by permission of the plaintiff, may be brought on an implied as well as on an express promise. Sutton v. Mandeville, 1 Munf. 407, 4 Am. Dec. 549.
Money Paid Tax Collector under Protest. — Under the provisions of Acts 1881-2, p. 37, the proper remedy to recover money paid to a tax collector under protest, after he had refused to accept coupons in payment of taxes, is by assumpsit. Brown v. Greenhow, 80 Va. 118. This section was repealed by Acts 1893-4, p. 381
Honey Received from Security When Principal Debt Has Been Paid. — Where bonds were assigned to a vendor, not in payment of the land, but merely as security for the purchase money, after the purchase money had been paid, an action of assumpsit will lie to recover so much money as the vendor had received from the bonds. Brockenbrough v. Ward, 4 Rand. 352.
Illegal Salary Paid Attorney General. — Where a sum of money was illegally paid to the attorney general as salary by the auditor, and received by the former without authority of law, the commonwealth is entitled to recover the same in an action of assumpsit. Com. v. Field, 84 Va. 26, 3 S. E. Rep. 882.
Goods Procured by Fraud. — Indebitatus assumpsit will lie for the value of goods which the defendant by fraud procured from the plaintiff to sell to an insolvent person, and which the defendant has gotten into his possession. The law in such a case will imply a promise to pay for the goods from the circumstance of their having been the plaintiff’s property and having come into the defendant’s possession. Maloney v. Barr, 27 W. Va. 381.
Attorney’s Fees for Obtaining Divorce for Woman Living Apart from Husband. — Where a wife, living apart and separate from her husband, employs an attorney and obtains a divorce, she is liable to an action of assumpsit on an implied contract for what his services are reasonably worth, if the husband is not liable to him for these services. Peck v. Marling, 22 W. Va. 708.
Attachments — Reversal of Judgment Quashing First Entitles That Creditor to Proceeds of Sale Paid Second Attaching Creditor. — Two attachments against an absconding debtor are levied on the same property, the first is quashed, but on appeal this judgment is reversed. Pending the appeal an order is made selling the property under the second attachment and the proceeds are paid over to the creditor in that attachment. The action for money had and received, will lie by the first attaching creditor against the creditor in the second attachment for the proceeds of the sale. Caperton v. McCorkle, 5 Gratt. 177.
4. TORTS.
Ground for Assumpsit. — Tort when there is apromise to pay for the injury may be the ground of assumpsit and will support an action founded on the promise. King v. McDaniel, 4 Call 451. This case cites and distinguishes Winston v. Francisco, 2 Wash. 187, where no assumpsit was alleged, “and the court held that the omission of an averment of a *93promise to pay was fatal as it was the very gist of the action.
Same — Seizure of Cattle. — Where cattle were taken by the defendant, who was an officer in the confederate army, and who offered to pay for the same in cotton, and on the refusal of the owner to accept the same, left certificate in relation to the pay for the plaintiff, and seized the cattle. This is a proper case for assumpsit and not for trespass, the tort being waived. McDonald v. Peacemaker, 5 W. Va. 439.
IV. WHEN THE ACTION DOES NOT LIE.
1. IN GENERAL.
Mere Fact That Article Is Worthless. — The mere fact that an article proves to be worthless will not entitle the purchaser to recover the price paid in an action of assumpsit. Mason v. Chappell, 15 Gratt. 572.
Mere Fact That Article Fails to Equal Representations of It. — The mere fact that an article sold does not come up to the representation made respecting it, is not ground to assume that it was not the genuine article sold, so as to entitle the plaintiff to recover in an action of assumpsit for a failure by the vendor to comply with his contract. Mason v. Chappell, 15 Gratt. 572.
Specific Article Ordered — No Implied Warranty.— Where a specific article is ordered and furnished there is no implied warranty on the part of the vendor that it is suitable for the purposes to which the purchaser intends to apply it, although the purchaser states his purpose to the vendor, and in such a case the latter was not held liable in an action of assumpsit for the purchase price, in the absence of fraud or an express warranty, however unfit and defective the article may turn out to be. Mason v. Chappell, 15 Gratt. 572.
For Breach of Express Warranty, General Assumpsit Does Not Lie. — The action of general indebitatus assumpsit does not lie for the breach of an express contract of warranty. Robinson v. Welty, 40 W. Va. 385, 22 S. E. Rep. 73; Houston v. McNeer, 40 W. Va. 365, 22 S. E. Rep. 80.
Assumpsit for Money Paid, etc. — Will Not Lie Unless Honey or Equivalent Be Paid. — The principal and his surety are bound in a bond to the obligee, which bond the obligee gives to the surety as an advancement to his daughter in marriage when the surety marries the obligee’s daughter. The surety cannot upon these facts support an action of assumpsit against the principal for money paid, laid out and expended, by him for the principal’s use, or any of the common money counts, for to maintain assumpsit for money paid, laid out and expended, money or some equivalent for money must be in fact paid. Butterworth v. Ellis, 6 Leigh 106.
2. AGAINST GOVERNMENTAL AGENCIES.
Comity Court. — The action of assumpsit will not lie against a county court, upon an order issued by said court upon the sheriff of a county, in favor of the owner of such order. Ratcliff v. County Court of Wayne Co., 33 W. Va. 94, 10 S. E. Rep. 28.
Turnpike Company Organ of State — Where a turnpike company is composed exclusively of officers of the government, having no personal interest in it or in its concerns, and acting only as the organ of the commonwealth in effecting a great public improvement, an action of assumpsit will not lie against the president and directors of the company. Sayre v. N. W. Turnpike Road, 10 Leigh 454.
Tax Collector Who Has Paid Honey to Treasurer. — The action of assumpsit for money had and received does not lie to recover taxes paid by a taxpayer to the collector, who in accordance with statutory provisions has turned the money over to the treasurer. Mallan v. Bransford, 86 Va. 675, 10 S. E. Rep. 977.
3. WHERE THERE IS NO CONTRACT.
Services Rendered by Minor to Uncle. — Where a minor lives with his uncle and is furnished with clothes and is supported by him, and the minor renders services without any understanding or contract as to compensation therefor, he cannot recover in an action of assumpsit the value of the services thus rendered, although they may have been greater in value than the support which he received. Riley v. Riley, 38 W. Va. 283, 18 S. E. Rep. 569. Compare Plate v. Durst, 42 W. Va. 63, 24 S. E. Rep. 580.
Money Paid Out by Attorneys Received under Decree of Competent Court. — Where money was received by attorneys for the plaintiff under execution by due process of law from a court of competent jurisdiction, which was received as his and disposed of as he directed, when the decree in the suit was subsequently reversed on appeal, a defendant who did not appeal cannot recover from the attorneys in an action of assumpsit, there being no privity between them. Green v. Brengle, 84 Va. 913, 6 S. E. Rep. 603.
Corporation Not in Existence at Date of Original Sale Not Made for Its Benefit Cannot Recover under That Contract. — Where the vendees in a contract for the purchase of real estate subsequently sell it to a corporation which was not in existence at the date of the contract, and the purchase was made only for their own benefit and not for the corporation, the latter, not being in privity with the vendor, cannot maintain an action of assumpsit to recover money paid to the vendor under that contract, the consideration for which had wholly failed. Newberry Land Co. v. Harman Newberry, 95 Va. 111, 27 S. E. Rep. 897.
4. WHO CANNOT RECOVER.
Creditor — When.—The father of a surety agreed with the creditor, who was suing the principal debtor, that if he would dismiss his suit against the latter at his own costs, he (the father) would pay the debt with interest. The creditor dismissed the suit generally. It was held in an action of assumpsit by the creditor against the father on his conditional promise to pay the debt, that the plaintiff was bound to perform the condition strictly in order to enforce the promise, and that he cannot recover, having dismissed the prior suit generally instead of at his own costs. Couch v. Hooper, 2 Leigh 557.
Same — Subsequent Ratification Not Averred. — And though the father subsequently approved the general dismissal of the suit, the plaintiff not having averred this subsequent ratification in his declaration, that fact cannot avail him. Couch v. Hooper, 2 Leigh 557.
Jailor Cannot Sue Creditor of Debtor for Prison Fees When Debtor Can Pay. — Where an action of assumpsit for money had and received was brought against the creditor of a debtor for the expenses of the latter while imprisoned on a writ of ca. sa., the jailor cannot demand the prison fees of the creditor if the debtor is able to pay them, and the presumption is that he is able to pay them, until the contrary is shown. Rose v. Shore, 1 Call 540.
No Recovery by Plaintiff When Defendant Received Proceeds oí Saleas Agent of Heirs. — The plaintiff in an | action of assumpsit for money had and received ( cannot recover of the defendant, when the latter *94did not receive the proceeds from the sale of certain salt as administrator of the owner, hut only as the agent of his heirs, who therefore are the ones responsible to the plaintiff, the assignee of the money due on the sale of the salt. Brooks v. Hatch, 6 Leigh 534.
Beneficiary under Contract but Not a Party to It.— Upon a parol contract between S and R whereby the latter on consideration moving entirely from the former promises to pay to the daughter of the former a sum of money after his death, the daughter cannot maintain assumpsit for the money. The representative of the promisee only can maintain an action at law. Ross v. Milne, 12 Leigh 204, 37 Am. Dec. 646.
Landlord Cannot Recover Rent for Land from Which He Has Evicted Tenant. — In an action of assumpsit fortheuseand occupation of a farm for a year, it appears, that the landlord entered on a meadow a part of the premises, within the year, and mowed and carried away the hay without the consent and against the will of the tenant, who, nevertheless, continued to occupy the farm during the rest of the year. The disturbance of the tenant by the landlord in this case amounts to an eviction from that portion of the premises, and suspends the whole rent; the landlord thereby losing the benefit of the entire contract. Briggs v. Hall, 4 Leigh 484.
Militiaman Who Has Paid Substitute Subsequently Discharged. — If a member of militia employ and pay a substitute to perform his tour of duty, and thereupon the substitute be discharged by the commanding officer, the former cannot recover back the money paid in an action of assumpsit, upon the ground that the defendant after commencing the march was discharged as a supernumerary, and therefore never performed the tour of duty. Keys v. McFatridge, 6 Munf. 18.
Defendant Who by Special Plea Defeats Recovery of Purchase Price Cannot Recover Other Damages in Another Action. — Wh ere the defendant in an action of debt for the purchase price of an animal, succeeds by a special plea under § 3299 of the Va. Code in defeating the action to the extent of the price paid for breach of warranty, he cannot subsequently maintain an action of assumpsit for other damages and expenses incurred on account of the breach of the warranty. Huff v. Broyles, 26 Gratt. 283.
V. THE PLEADINGS.
1. THE DECLARATION.
a. Sueeiciency.
Declaration in Individual Capacity Construed as Executorial. — Where a declaration in assumpsit was commenced in the name of the plaintiff, executor of the intestate, it being necessary to sue as executor, although it alleged that the defendant was indebted to the plaintiff and promised to pay to the plaintiff, yet, in support of the justice of the case, the declaration may be construed as in the plaintiff’s character of executor. Lawson v. Lawson, 16 Gratt. 230.
Action for Breach of Contract. — It is sufficient for the declaration in an action of assumpsit for damages for breach of contract to allege a distinct promise, a valuable consideration for the promise and 3, breach of it. Payne v. Grant, 81 Va. 164.
b. Amendments.
Of Declaration on Policy of Insurance — Properly.—In an action of assumpsit on a policy of insurance for loss by fire claiming a certain sum as damage, or for loss of certain property, an amended declaration may be filed claiming larger damages, or on additional property, under the same policy, by the same fire. Bentley v. The Standard Fire Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584.
Entitles Party to Continuance. — The plaintiff in an action of assumpsit, files by leave of court an amended declaration to which the defendant atonce files his plea. The plaintiff is entitled of right to a rule to reply and it is an error for the court to refuse him a continuance and put him to a nonsuit. By § 4, ch. 171, W. Va. Code 1860, a month is given to parties to a suit to declare, plead, etc., and it is immaterial whether the case be at rules or in term. Bank v. Mathews, 3 W. Va. 26.
By Consent after Issue Joined — No Plea in Abatement to Same Variance between Original Declaration and Writ. — If the plaintiff be permitted to amend his declaration in assumpsit by consent of parties after issue joined on a plea to the action, the defendant ought not to be permitted to plead in abatement any variance between the amended declaration and the writ, which equally existed between the writ and the original declaration. Moss v. Stipp, 3 Munf. 159. See Payne v. Grim, 2 Munf. 297; Bradley v. Welch, 1 Munf. 284.
Plaintiff under Leave to Amend Files New Declaration —Plea to First Declaration Not Withdrawn Is Applicable to Second — Verdict Good. — The -defendant pleads the general issue to a declaration in assumpsit, and the plaintiff under leave to amend files a new declaration as a substitute. The defendant does not plead again, and the jury is sworn to try the issue, which results in a verdict for the plaintiff. As the plea to the first declaration was applicable to the new declaration, and was not withdrawn, it must be understood that the defendant rested his defence on the same plea, and the verdict is good. Power v. Ivie, 7 Leigh 147.
To Amend Declaration for Variance from Writ, Latter Referred to without Oyer. — A variance between the writ and the declaration in assumpsit cannot be taken advantage of without craving oyer of the writ, yet it may be referred to in order to amend it, without oyer. Stephens v. White, 2 Wash. 203.
c. Common Counts.
(1) In General.
Concluding with a “Whereas” Valid. — qt has always been a general rule in pleading, that facts necessary to constitute the cause of action should be directly and distinctly stated in the declaration, and should not be left for inference from other facts therein, and arguments, inferences and matters of law should be excluded. But a general indebitatus assumpsit count in a declaration concluding and “whereas, the defendants, afterwards to wit: on the day and year aforesaid, in consideration of the premises respectively, then and there promised to pay the said sum of moneys respectively to the plaintiff on request. Yet they have disregarded their promises, and have not paid any of said moneys, or any part thereof, to the plaintiff’s damage $1,000, and therefore they bring suit,” was held good on general demurrer. Burton & Co. v. Hansford, 10 W. Va. 470; Sayre v. Edwards, 19 W. Va. 352; Patton v. Elk, etc., Co., 13 W. Va. 259.
Same — Violation of General Rule of Pleadings. — If in the common indebitatus count in an action of assumpsit the promise is stated after a. whereas, though the promise is the very gist of the action, yet such a count so framed will be held good on demurrer. See Burton v. Hansford, 10 W. Va. 470. The reason of this is, because the judges of England have prescribed for such a count in an action of assumpsit. *95and the Virginia courts have upheld this form of pleading in assumpsit, although It is in apparent violation of the general rule of pleading that facts necessary to constitute the cause of action should he stated directly. Sheppard v. Ins. Co., 21 W. Va. 368.
(2) Recovery in General.
Freight for Goods Lost by Act of God Recovered by Carrier. — A common carrier contracts to deliver a crop of wheat at an agreed price per bushel. A large proportion of the crop is delivered in good order, but from the unavoidable effects of a storm, a small part is delivered in a damaged condition, and another small portion is lost. In an action of assumpsit by the carrier for the freight, he is entitled to recover under the common indebitatus count, the agreed price for the whole quantity so delivered or lost. Galt v. Archer, 7 Gratt. 307.
No Recovery on Note Not Negotiable Where Suit Brought.' — An action of assumpsit was brought on a note which was negotiable at the place where it was made, but was not negotiable by the law of the state in which the suit was brought and where the liability of an assignor was different from that of an endorser. The facts averred in the count were not sufficient to make the defendants liable as assignors, in that it was not shown that the maker was insolvent at the time it became due, or that due diligence had been used to collect it. Under such circumstances there cannot be a recovery under the common counts in assumpsit. Nichols v. Porter, 2 W. Va. 13.
(3) The Money Counts.
(a) When Proper.
To Recover Commission for Sale of Land. — Where the plaintiif in an action of assumpsit sold land of the defendant without his knowledge, but the latter ratified the sale, agreeing to give the plaintiff one-half of one of the bonds for deferred payments of purchase money, but refused to do so when it was paid, an action of indebitatus assumpsit for money had and received, not for services rendered, was proper, having the common money counts. Jackson V. Hough, 38 W. Va. 236, 18 S. E. Rep. 575.
Money Paid for Another under Compulsion of Law.— Whenever the plaintiff in an action of assumpsit shows that he, either by compulsion of law or to relieve himself of liability, or to save himself from damage, has paid money which the defendant ought to have paid, the count for money paid will be supported, whether there be any privity of contract between the plaintiff and defendant or not. As where the promise was to a third person for the benefit of the plaintiff. Nutter v. Sydenstricker, 11 W. Va. 535.
(b) Recovery under.
Forfeiture of Insurance Policy — Recovery of Premiums Paid. — Where a contract of insurance is forfeited by failure to pay the annual premium, which is prevented by reason of the war between the stales, the insured is entitled to have refunded so much of the premiums actually paid after the company retains an amount sufficient to compensate it for the risk which it incurred while the policy was in force, and the action brought by the plaintiff in such case should be assumpsit on the implied promise of the company to pay what ex aeauo et bono is due and the declaration need contain nothing but the money counts. Abell v. Ins. Co., 18 W. Va. 400.
Bank Notes Given for Safe Keeping Can Be Recovered. — A sum of money in bank notes was given by a sick man to his wife for safe keeping. A few days later he died. The widow refused to deliver them to the executor, saying she intended to keep them. He sued her in an action of assumpsit for the money, the declaration containing only the common counts, and it was held that he was entitled to recover. Lawson v. Lawson, 16 Gratt. 230.
Holder May Sue Endorser of Promissory Note, Otherwise When for Accommodation. — As a general rule indebitatus assumpsit for money lent, or for money paid and expended, or for money had and received, lies against an endorser for the holder of a promissory note, and the endorsement is prima facie evidence to support those money counts; yet if it be found by special verdict that the endorsement and the discount of it was done for the accommodation of the maker, and the defendant received no part of the proceeds, in such case the holders cannot recover against the defendant on the money counts in assumpsit. Bank of U. S. v. Jackson, 9 Leigh 221.
Nonnegotiable Paper — Assignee May Recover from Assignor. — An assignee may recover against the assignor of nonnegotiable paper on the common counts for money had and received in an action of indebitatus assumpsit. Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 604, overruling Nichols v. Porter, 2 W. Va. 13.
(c) Request.
When the Request Is Express, When Implied. — In an. action of indebitatus assumpsit for money had and received, which has been paid for the use of the-defendant, the request necessary may be either-expressed or implied. It will be implied where the plaintiff has been compelled to do what the defendant was legally compellable; where the defendant has adopted and enjoyed the benefit of the consideration, and where the plaintiff voluntarily does, what the defendant was legally compelled to do, and the defendant afterwards in consideration thereof expressly promises. In certain cases the request will be implied where the plaintiif voluntarily does what the defendant is only morally compelled to do, and there is a subsequent promise by the defendant. Nutter v. Sydenstricker, 11 W. Va. 535.
(4) The Account Stated.
No Account Necessary When Insimul Computassent Count Gives Defendant Sufficient Notice. — If the proof offered by the plaintiff be such as to sustain the count of insimul computassent. it is of no importance whether there be any account filed or not; for this count does so describe the plaintiff’s demand, as to give the defendant sufficient notice of the character thereof. Fitch v. Leitch, 11 Leigh 471.
Construction of § 86, Ch. 128, 1 Rev. Code. — Section 86, of ch. 128, 1 Rev. Code provides that “in every action of indebitatus assumpsit, the plaintiff shall file with his declaration an account, stating distinctly the several items of his claim against the defendant; and on failure thereof, he shall not be entitled to prove before the jury any item which is not so plainly and particularly described in the declaration, as to give the defendant full notice of the character thereof.” It was held, in Fitch v. Leitch, 11 Leigh 471, construing this statute, that if the proof offered by the plaintiff is such as to sustain the count of insimul computassent, it is of no importance whether there be any account filed or not, for this count so particularly describes the plaintiff’s demand, as to give the defendant notice thereof.
Count of Account Stated in Insurance Policy Sustained by Proof of Adjustment — A general insimul computassent count in a declaration in an action of *96assumpsit brought for recovery under a policy of insurance is sustained toy proof of an adjustment of the amount due from the defendant to the plaintiff on account of the loss by fire of the property insured. Stolle v. Ins. Co., 10 W. Va. 546.
(5) On Special Contracts.
When Plaintiff flay Declare Generally on Special Contract. — Wherever the plaintiff has done everything which was to toe executed on his part before making his demand, and nothing remains but a mere duty on the defendant’s part to pay money, the plaintiff need not declare specially, tout may recover on a general count in assumpsit. Moore v. Supervisors, 18 W. Va. 630; Davisson v. Ford, 23 W. Va. 619; Jackson v. Hough, 38 W. Va. 236, 18 S. E. Rep. 575.
The plaintiffs and defendants entered into a special contract, by which the plaintiffs were to make certain sections of the defendants’ railroad, in a special manner, to toe completed toy a specified time, under the supervision of the engineers of the defendants. The plaintiffs failed to complete it in the time specified, but with the consent of the defendants continued the work until it was completed. In an action of assumpsit under the common counts, the plaintiffs are entitled to recover. B. & O. R. Co. v. Lafferty, 2 W. Va. 104.
Same — Pro Tanto Benefits Received and Accepted.— Where work, which has been done by a plaintiff under a special agreement, but not in a stipulated manner, and was yet beneficial to the defendant, has been accepted and enjoyed toy him, the plaintiff cannot recover upon the contract from which he has departed; but he may- recover on the common counts for the reasonable value of the benefit which the defendant has derived from what he has done. B. & O. R. Co. v. Lafferty, 2 W. Va. 104.
Same — Special Contract Must Be Fully Executed.— The plaintiffs bring an action of assumpsit for work and labor done, and declared under the common counts. If it appeared from their evidence that the work was done under a special contract in full force, they can only recover the contract price, on proving the contract fully executed on their part. Balt., etc., R. Co. v. Polly, 14 Gratt. 447.
Same — Special Contract Mutually Abandoned.— Where a contract partly performed, has been abandoned by mutual consent, the plaintiff may resort to the common counts alone for what he has done under the special agreement. Balt., etc., R. Co. v. Lafferty, 2 W. Va. 104.
Same — No Recovery before All Purchase Money Is Due. — The plaintiff in an action of assumpsit on a special contract to recover damages for failure to accept and pay for property sold thereunder, cannot recover on the common counts, the action toeing brought before all the purchase money is due. James v. Adams, 16 W. Va. 245.
d. Special Counts.
(1) In General.
Terms of Contract Sued on Binding. — When a party declares in assumpsit attempting-to recover upon a special contract, he is bound by its terms; to hold otherwise would clearly involve a legal absurdity. B. & O. R. Co. v. Rathbone, 1 W. Va. 87.
(2) When Proper.
Money Paid by Fraudulent Inducements. — Where the purchaser of real estate, which is subject to liens, is induced by false and fraudulent representations of a mortgagee in a fraudulent and voidable mortgage on said real estate to pay off said mortgage with a part of the-purchase money, the purchaser may recover back the money so paid in a special countin general indebitatus assumpsit, setting forth specially the facts creating the liability and averred as the consideration of the promise. It may also be recovered back on the common count in general indebitatus assumpsit for money had and received, accompanied with a sufficient bill of particulars. Robinson v. Welty, 40 W. Va. 385, 22 S. E. Rep. 73.
Executory Contracts. — Where the contract sued on continues executory the plaintiff in assumpsit must declare specially; tout where it has been executed, and nothing remains but the payment of the price by the defendant, the plaintiff may declare generally using the common counts, or may declare specially on the original contract. B. & O. R. Co. v. Lafferty, 2 W. Va. 104.
For Price of Land Sold. — The action of general indebitatus assumpsit will not lie for the price of a tract of land, but a special action ought to be brought stating the circumstances of the contract. Hoskins v. Wright, 1 H. & M. 378.
Special Usage of Bank. — where a bill is made payable at a bank, at which there is a special established usage that bills payable there should be presented on the fourth and not on the third day of grace, this special usage must be alleged by a special count in the declaration in an action of assumpsit upon such bill, otherwise proof of presentation on the fourth day of grace will not be permitted. Jackson v. Henderson, 3 Leigh 196.
Recovery of Oil from Common Carriers Not In Wrongful Possession Nor Tortlously Disposed. — The declaration in an action of assumpsit brought to recover the value of oil claimed toy the plaintiff, contained no good counts except the common counts. The oil was in possession of-the defendant (a common carrier), at the time the action was brought, and not wrongfully, nor had it been sold or in any way tortiously disposed of. There also toeing no evidence of such sale or disposal, It was erroneous to instruct the jury that they should find for the plaintiff if they believed the oil belonged to him, as he is not entitled to recover the value of the oil under the common counts -for oil sold and delivered to the defendant, or for money had and received for the plaintiff’s use! there being no special count covering the case. Dresser v. Transportation Company, 8 W. Va. 553.
(3) Averments in.
Building Contract — Unnecessary to Set Out Dimensions. — In an action of assumpsit brought by a contractor against a county for the price contracted to toe paid for building a jail, it is not necessary to set out in a special count the dimensions, or a description of the building in the declaration. Carroll County v. Collier, 22 Gratt. 302.
Same — Necessary to Aver Time of Completion.— Where in a declaration in an action of assumpsit by a contractor against a county for the price contracted for building a jail, the contract as set out in a special count fixes a time within which the jail is to be completed, but there is no averment that it was completed within that time. The count was held to be defective. Carroll County v. Collier, 22 Gratt. 302.
Defendant Absent from Place of Performance.— Where a contract was to be performed on a certain day and at a certain place, if the plaintiff in his declaration in assumpsit alleges in a special count that the defendant was not at the place of performance, but was out of the state on the day specified, it will be a sufficient allegation on his part to declare that he was ready and willing to perform his *97contract, and on demurrer to the count will toe good. Kern v. Zeigler, 13 W. Va. 707.
Condition Precedent — Excuse for Nonperformance. "Where an action of assumpsit is brought on an entire contract under seal, in which the covenants are dependent and the pleader sets forth the contract in a special count, it is not sufficient for the plaintiff to aver his readiness and willingness to perform the condition precedent contained in the contract, tout he must go further and show a sufficient excuse for his nonperformance. Jones v. Singer Mfg. Co., 38 W. Va. 147, 18 S. E. Rep. 478.
Promise in Writing to Pay Debt of Another — Consideration.- A special count containing a promise of one party to pay the indebtedness of another, which is in writing, must set forth the consideration in declaring upon it, as such a promise in order to toe binding must toe founded upon a consideration. Winkler v. C. & O. R. Co., 12 W. Va. 699.
Agency Violated — 'Instructions of Principal. — In an action of assumpsit toy a principal to recover from his agent the value of goods sol'd toy him to insolvent persons on credit, in violation of his instructions, it is not necessary in the declaration to aver an express contract that the defendant should sell for cash only. It is sufficient to aver in a special count that the plaintiff had instructed the defendant not to sell on credit. Maloney v. Barr, 27 W. Va. 381.
e. Joinder of Counts.
(1) When Proper.
In Action to Recover Goods Embezzled. — In an action of assumpsit brought to recover goods or money which had been embezzled toy an agent, a special count which sets out the embezzlement may toe joined with the common counts in the declaration. Maloney v. Barr, 27 W. Va. 381.
Action on Insurance Policy. — -In an action of assumpsit on an insurance policy for recovery for loss toy fire, there may toe included in the declaration with a count under sec. 61. ch. 125, in the W. Va. Code, the common counts or other counts proper in that form of action. Bentley v. The Standard Fire Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584.
Recovery of Taxes Paid under Protest. — It was held, in Brown v. Greenhow, 80 Va. 118, not to toe improper to join a special count with the common money counts to recover in assumpsit taxes paid to a collector under protest.
On Special Contract of Bailment. — A general indebtatus assumpsit may toe joined with a count in assumpsit upou a special contract of bailment, setting out the promise and undertaking of the defendants, the consideration on which it was founded, the breach of that promise toy the defendants and their neglect and carelessness, and the loss to the plaintiff occasioned thereby. Kennaird v. Jones, 9 Gratt. 183.
Promises of Executor with Those of Debtor. — in an action of assumpsit against an administrator d. b. n., counts upon promises made toy the executor or a former administrator of the deceased debtor, as such, may toe joined with counts on promises toy the deceased debtor himself, to save the statute of limitations. In such case the counts upon the promises -of the executor or former administrator, must distinctly aver the promises to have been made as executor or administrator, or they will toe toad on general demurrer. Bishop v. Harrison, 2 Leigh 532.
Recovery of Attorney’s Pees. — A firm of attorneys made a contract in writing with a client, which provided that the firm were to receive $100 certain and if the suit referred to was decided in favor of their client then they were to receive $200 extra. The attorneys in an action of assumpsit set out the agreement and alleged that their client dismissed the suit without their consent, and thereby hindered them from prosecuting it to a final decision although they were willing and ready so to do. The declaration also contained the common counts for work and labor, and an account stated. On a demurrer to the declaration and each count thereof it was held that they were sufficient and that the plaintiffs upon issue joined on nonassumpsit may recover, in addition to the $100 certain, such damages for their time and labor as they are reasonably worth, provided the whole recovery shall not exceed the entire amount stipulated in the contract. Polsley & Son v. Anderson, 7 W. Va. 202.
Special Count Alleging Usurpation of Office. — A declaration in assumpsit contains the common counts, and also a special count reciting the election of the plaintiff as county clerk, and that the defendant wrongfully and illegally intruded into the office, and received and collected certain fees to which the plaintiff was entitled. This discloses a consideration which supports the promise alleged to have been made toy the defendant to pay the sum of money demanded in the declaration, and is not a count upon a tort, and the joinder is proper. Booker v. Donohoe, 95 Va. 359, 28 S. E. Rep. 584.
(2) When Improper.
Joinder of Tort Count with Contract Count. — it is well settled that causes of action arising in tort cannot toe joined with causes of action arising from contracts except in rare instances. Thus, a declaration is toad on general demurrer which joins a count to recover damages for the breach of contract, with one to recover damages for a tort. At page 398, 4 Min. Inst. (2d Ed.), the author states this proposition in the following language: “It must toe observed that causes of action in tort cannot toe joined with causes arising out of contract. Thus trespass on the case in assumpsit cannot toe. joined with trespass on the case in trover and conversion; nor debt with trespass vietarmis.” Gary v. Abingdon Pub. Co., 94 Va. 775, 27 S. E. Rep. 595.
Count against Executor in Representative with One in Individual Capacity — Misjoinder—if in a declaration in assumpsit against an executor for a legacy, there toe one count against him in his representative, and another against him in his individual character, this is a misjoinder of action, which is fatal on general demurrer. Kayser v. Disher, 9 Leigh 357.
f. The AliiEGAtions.
(1) In General.
AII Necessary Circumstances Should Be Stated Clearly. — It is an elementary rule in pleading that the declaration in assumpsit must allege all the circumstances necessary for the support of the action, and contain a full, regular and methodical statement, with such precision, certainty and clearness that the defendant may toe distinctly informed of the grounds of the action. All beyond this is surplusage, and where the declaration fails to conform in its averments to this rule it will toe insufficient on general demurrer. Patton v. Elk, etc., Co., 13 W. Va. 259. See White v. Romans, 29 W. Va. 571, 3 S. E. Rep. 14.
Words “Trespass in the Case” Cannot Change Form of Action. — Where there are three counts in a declaration in assumpsit, the first two of which are plainly assumpsit counts, the fact that the plaintiffs in the other count say that complaint is made of a plea of “trespass in the case,” instead of trespass on the case in assumpsit,” cannot change the form of *98action, nor affect the result upon demurrer. Gray v. Kemp, 88 Va. 201, 16 S. E. Rep. 225.
No Difference in Description of Express and Implied Contracts. — While the contract sued on must he truly set out in every declaration in assumpsit, it is well understood for purposes of pleading that there is no difference between an express and an.implied contract, and that in every case, where the agreement is not in writing, the same identical words of description are employed to describe an implied as well as an express promise. Payne v. Grant, 81 Va. 164.
(2) Construction of.
Construction of Averment of Shipment of Goods as Per Agreement. — The averment in each of the counts in a declaration in assumpsit brought for the recovery of damages under a contract to carry goods, that they were delivered for shipment as they had agreed to furnish them, must be construed as averring that the goods were furnished within a reasonable time after the making of the contract. Southern Railway Co. v. Wilcox (Va.), 39 S. E. Rep. 144, 7 Va. Law Reg. 381.
Averment of Acceptance Offer — In an action'of assumpsit on a simple contract an averment in the declaration that the offer was accepted necessarily implies that it had not been withdrawn, for there could he no acceptance of an offer which had been withdrawn. Southern Railway Co. v. Wilcox (Va.), 39 S. E. Rep. 144, 7 Va. Law Reg. 381.
Effect of Allegation of Performance of Conditions.— If the plaintiff in his declaration in assumpsit on an insurance policy, allege that he has on his part performed all the conditions of the policy, and has violated none of its provisions, he must be regarded as meaning such as have not been waived. Such as have been waived are in effect as if they had never been inserted in the contract. Levy v. Ins. Co., 10 W. Va. 560. See Ins. Co. v. Sheets, 26 Gratt. 858.
(8) Matters of Defence Omitted.
Hatters of Defeasance May Be Omitted. — It is sufficient for the plaintiff in an action of assumpsit to state in the declaration so much of the terms beneficial to him in a contract for the breach of which he sues, and he need not state matters in defeasance of his action. But wherever circumstances existed, the omission of which will defeat the plaintiff’s right of action, prima facie well founded, it must be a matter of defence, and should be shown by the opposite party. Simmons v. Insurance Co., 8 W. Va. 474.
Lien of Subcontractor under Mechanics’ Lien Law. —It is not essential for the subcontractor in his declaration in assumpsit against the owner under the mechanics’ lien law to allege that his account was approved by the general contractor; or that he after ten days’ notice failed to file objection; or that it had been ascertained to be due the subcontractor from the general contractor. Va. Code 1873, ch. 115; Code 1887, secs. 2479-80. His claims to a lien are not made to depend by the law upon the admissions of the general contractor, or his failure to dispute the account "within ten days. These may he matters of defence, but they do not constitute any part of the plaintiff’s case, and are not necessary to the declaration. Norfolk, etc., Ry. Co. v. Howison, 81 Va. 125.
Application for Insurance Policy — Warranty.—Where no part of an application for insurance is set.out in the policy, and no reference is made in the . policy to the application, or any warranty therein, it is unnecessary for the plaintiff in an action of assumpsit brought on the policy, to state such warranties; they are matters of defeasance which should more properly come from the other side. Simmons v. Insurance Co., 8 W. Va. 474.
(4) Sufficiency.
Performance of Condition Precedent. — Where a condition precedent must be performed before liability will attach under a contract, in an action of assumpsit on this contract, it is sufficient for the declaration to contain a general allegation that the plaintiff has performed the condition precedent according to its true intent and meaning, and it is not sufficient to allege only that the plaintiff was ready and willing to perform his part of the contract. Kern v. Zeigler, 13 W. Va. 707.
Insurable Interest. — it is well settled that a policy of insurance is a contract of indemnity and that the assured must have an interest in the property insured, and hence in an action of assumpsit brought on such a policy the declaration must allege distinctly an insurable interest, when the policy is taken out, and also when the property was destroyed and damaged by fire. It is not a sufficient allegation that the property of the plaintiff was insured by the defendant. Quarrier v. Insurance Co., 10 W. Va. 507; Sheppard v. Insurance Co., 21 W. Va. 368. See Travis v. Peabody Ins. Co., 28 W. Va. 583.
Certificate of Magistrate, Notary, etc., Condition Precedent to Recovery — Kind of Officer Should Be Stated. — where the declaration in assumpsit in a policy of insurance states as a condition precedent that the assured should produce a certificate under the hand and seal of a magistrate, notary public, or commission of deeds, etc., fair pleading requires that the kind of officer should he stated in the declaration, so that the court may determine whether it was the proper officer. The production of the certificate of the proper officer is a condition precedentand must be complied with, unless waived by the defendant. Simmons v. Insurance Co., 8 W. Va. 474.
(5) Of Promise.
Should Be Charged Positively, Not by Recitals. — The plaintiff in assumpsit must charge the promise by the defendant positively and not by way of recital only, for if the declaration be defective in this respect it is a fatal error and cannot he cured by verdict. Sexton v. Holmes, 3 Munf. 566. See Syme v. Griffin, 4 H. & M. 277.
Same — Warranty.—in an action of assumpsit to recover damages for defective machinery which the plaintiff had purchased, paid for, and returned as useless, the plaintiff must charge the promise, that the machinery would perform the work for which it was intended, positively, and not by way of recital. Wolf v. Spence, 39 W. Va. 491, 20 S. E. Rep. 610.
Written Agreement — Express Promise — Recitals Insufficient. — An express promise ought to be laid in the declaration in an action of assumpsit upon a written agreement ; a mere recital of the writing, though a true copy, is not sufficient. Wooddy v. Flournoy, 6 Munf. 506. See Cooke v. Simms, 2 Call 39.
. Of an Executor. — Where an action of assumpsit is brought by a legatee against an executor fora legacy, on the executor’s promise to pay it, the declaration should charge the promise of the executor in his individual, not in his representative, character,, and the attachment in such case must be de bonis propriis. Kayser v. Disher, 9 Leigh 357.
Loose Conversations Not Sufficient to Raise a Promise. — Loose conversations of an executor are not *99snfficient to raise an assumpsit as a new promise, or as an acknowledgment, so as to revive an old debt of the testator. Henderson v. Foote. 3 Call 248.
Promissory Note — Express Promise Necessary. — in an action oC assumpsit brought upon a promissory note, there must be an express assumpsit laid in the declaration ; merely reciting the note in haec verba is not sufficient. Cooke v. Simms, 2 Call 39.
Promise to “Settle” Not Equivalent to Promise to Pay. — In an action of assumpsit against an executor for a debt of his testator on an open account, all the items of which appear to have been due more than five years before the testator's death, the plaintiff proves that the testator within five years after the date of the account promised to “settle” the account. Such a promise does not amount to a promise to pay, or such an acknowledgment of the debt, as would take the case out of the general statute of limitations. Aylett v. Robinson, 9 Leigh 45.
(a) Of Consideration.
Must Be Alleged and Proved. -A consideration must be set forth in a declaration in assumpsit in support of the defendant's promises sued on; it forms an essential portion oi the contract, on which its validity depends. It must be truly stated, and proven as stated, or the plaintiff will fail for variance. If the entire consideration is stated, the entire consideration must be proved, or there will be a variance. Davisson v. Ford, 23 W. Va. 617; Beverleys v. Holmes, 4 Munf. 95.
No Averment of Sufficient Consideration. — A, executor of B, writes to C, a creditor of B, that as soon as he is able to dispose of his crops, he will pay the claim, or will let him have any property in his possession at a moderate valuation. This will not bind A in his own right, without an averment of assets, or a forbearance to sue, or some other consideration sufficient to support an action of assumpsit Taliaferro v. Robb, 2 Call 258.
Want of Consideration Immaterial — Failure of Attorney to Sue. — Where the declaration in an action of assumpsit states that the plaintiff by the advice of the defendant, his attorney, instituted a suit against a third person, and the said attorney undertook to conduct the suit to the best of his skill, and yet mismanaged it by failing to file a declaration, etc., the want of a consideration is not material. Stephens v. White, 2 Wash. 203.
Special Contract — Entire Consideration Should Be Substantially Stated. — in an action of assumpsit on a special contract to recover damages for failure to accept and pay for property under that contract it is necessary that the entire consideration and the act to be done in return for it be stated in substance in the declaration ; and if the proof establishes a contract materially different from the one alleged in the declaration, the court on motion should exclude the evidence from the jury. James v. Adams, 16 W. Va. 245.
Same — Sufficient Consideration Must Be Stated. — If a count in assumpsit upon a special contract between the plaintiff and defendant allege no sufficient consideration moving from the former to the latter, the action will not be sustained upon the ground of the promise and undertaking imputed to him. Hale v. Crow, 9 Gratt. 263.
Promise to Indemnify — Sufficient Consideration — The plaintiff in a declaration in assumpsit made as agent a lease of lands seized in tail to D, who assigned to S, and bound himself with D in a bond to S to obtain a confirmation of the lease from the defendant, the issue in tail. The defendant promised to make the lease, and for years received rent from S. and then turned him out of possession. S then recovered damages from B on his bond. On suit by D against the plaintiff the same damages were recovered from him; pending this suit the defendant promised to indemnify D and the plaintiff against the suit of S. The consideration stated in this-declaration is sufficient to maintain . the action against the defendant for breach of promise to' indemnify. Fields v. Spotswood, 1 Wash. 280.
Same. — A mill was devised to B on condition that he should pay to G $250. B accepted the devise provided G would indemnify him from any loss that, might be caused by overflow to the mill due to the erection of a dam below it. In an action of assumpsit by b against G. the declaration setting out this-contract shows sufficient consideration to support the promise of indemnity, and it is not necessary to allege in the declaration notice to the defendant of injury resulting from the erection of the dam. Chapman v. Ross, 12 Leigh 565.
Promissory Note — Consideration Must Be Stated and Proved -Common^Law Rule. — At commop. law the plaintiff in an action on a promissory, note must declare upon the contract, as in assumpsit, stating and proving the real consideration at large. The note, though it could not be declared on, might he given in evidence in support of the contract stated, as in a count for money lent. Peasley v. Boatwrigh, 2 Leigh 198.
Same — No Averment of Consideration — A judgment of the lower court holding that the action of assumpsit can be maintained in Virginia ón a promissory note, without averring a consideration in the declaration, was affirmed by a divided court in Jackson v. Jackson, 10 Leigh 448.
Assignment of Bond without Consideration as Collate era! Security-Assignor Not Liable. -A bond is assigned without consideration, and. the, assignee transfers it to H as collateral security, for goods purchased on credit, with the understanding that if the assignor does not acknowledge, his liability on said bond, H may return it and look put for other security. The assignor assures H in writing that he was aware of nothing that would affect his liability on the bond. When the time for the payment of the goods arrived the obligor in the bond was insolvent. This was held not to be a sufficient consideration to support an action of assumpsit by H against the assignor. Hopkins v. Richardson, 9 Gratt. 485.
(7) Of Breach.
When Several Counts-How Breach. Should Be Charged. — In an action of assumpsit, if there be several counts in the declaration, the defendant should be charged, as having failed, to pay the several sums of money aforesaid, and. every part thereof; if this be not done, but the breach charged at the end of the last count be that he, hath not paid “the said sum of money,” and it appear upon a demurrer to the evidence, that the evidence adduced by the plaintiff applies to .the first count, judgment ought to be given for, the defendant. Ellis v. Turner, 5 Munf. 196.
Agreement for Sale of Land — Breach Sufficiently Charged.- in an action of assumpsit upon a written agreement for the sale of a tract of land, which sets forth the agreement of the vendor to give to the vendee possession and a conveyance free of encumbrances by a certain day, for which the vendee agreed to pay to the vendor a part of the purchase money on that day, and secure the balance by deed of trust or such security as might be required, and *100the conveyance was not to he executed until the payment was made and the security given; the declaration in this action sufficiently charged a breach by stating that the plaintiff was on that day in lawful and peaceful possession of the land, and ready to give the defendant possession with a proper conveyance free from, encumbrances, but that the defendant failed to make the payment and give the security. Moss v. Stipp, 3 Munf. 159.
(8) Of Demand.
By Creditor on Debtor Unnecessary. — A demand on a person for whose benefit a promise is made is not necessary to be laid in the declaration, as he is the debtor, and must seek his creditor and pay him. Pasteur v. Parker, 3 Rand. 458.
Not Necessary When Defendant Undertakes to See Money Paid to Plaintiff. — When the defendant undertakes to see money paid to the plaintiff, it is his business to look to the performance himself, without any notice from the plaintiff, and in an action of assumpsit it is not necessary for the declaration to contain an averment of notice and request by the plaintiff. Austin v. Richardson, 3 Call 202.
Demand against Sheriff. — Indebitatus assumpsit will lie against a sheriff for money received by him, or his deputy, under an execution; but the declaration ought to be so far special, as to distinguish the demand from one against him in his private capacity. Overton v. Hudson, 2 Wash. 172.
(9) Of Damages.
Several Counts — General Allegation at End of Declaration Sufficient. — ‘It is not necessary to allege at the end of each count in a declaration in an action of assumpsit to recover damages for the breach of a contract, that damages have been incurred by the failure of the plaintiff to perform his promise named in the count. A general allegation at the end of the declaration, that the plaintiffs have sustained damages by the failure of the defendant to perform his several promises named in the declaration to the certain amount, is sufficient. James v. Adams, 16 W. Va. 245.
Not Proper When Promise Is to Perform an Act. —In the declaration in an action of assumpsit based on a promise not to pay money but to perform some act, it is neither necessary nor proper to allege the nonpayment of the damages, for the object of the suit .is to recover these damages, when they shall have been ascertained by a jury. Davisson v. Ford, 23 W. Va. 617.
Greater Damages Cannot Be Recovered Than Are Laid in Conclusion of Declaration — Interest.—In an action of assumpsit greater damages cannot be recovered than are declared for and are laid in the conclusion in the declaration, but this restriction is confined to the amount of damages, the principal recovery, and does not affect the interest that may be allowed thereon by the jury. Georgia, etc., Ins. Co. v. Goode, 95 Va. 751, 30 S. E. Rep. 366; Cahill v. Pintony, 4 Munf. 371.
Recovery of Damages above Those Specified in Proofs of Loss. — The plaintiff is not limited in his recovery in an action of assumpsit on a policy of fire insurance by the . amount of loss specified in the proofs of loss, in the absence of fraud. Bentley v. The Standard Fire Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584.
g. Omissions.
(i) Material.
Promise to Pay Debt of Another — Omission to -Allege Nonpayment by That Other Fatal. — A special count in a declaration in assumpsit brought on a promise of one person to pay the debt of another, which shows a consideration for the promise, but does not allege that the other has not paid the debt, if fatally defective. Winkler v. C. & O. R. Co., 12 W. Va. 699.
Judgment Arrested When Omission to Allege Consideration for Assignment of a Bond. — In an action of assumpsit against the assignor of a bond a consideration for the assignment should be set forth in the declaration, and if it be omitted judgment may be arrested. Hall v. Smith, 3 Munf. 550.
Omission of Promise to Pay Incurable by Verdict.— In an action of assumpsit the gist of the action is the promise to pay, and if this be not averred, the omission is not cured by verdict. Winston v. Francisco, 2 Wash. 187.
Requirement of Insurance Policy Must Be Alleged in Action on Policy — Omission Fatal. — A policy of insurance requires that after a loss, payment will be made sixty days after proof and notice are given the company in a certain manner. In an action of assumpsit brought on this policy it is necessary for the declaration to allege in this manner, and that proof and notice were given in accordance with the directions of the policy. Failure to make these allegations is fatal on general demurrer to the declaration. Quarrier v. Insurance Co., 10 W. Va. 507.
Adjustment of Loss with Insurance Company — What Omissions in Allegations Fatal. — where an adjustment has been made with an insurance company of the loss caused by a fire, it is necessary for the declaration in an action of assumpsit based thereon to allege that this adjustment was made with the defendant company, and that it promised to pay the amount of the adjustment, and a failure to make these allegations is fatal to the declaration on general demurrer. An allegation that the adjustment was made with an agent of the company is insufficient. Quarrier v. Insurance Co., 10 W. Va. 507.
Relinquishment of Right of Administration as Per Agreement. — A declaration in assumpsit stated that the plaintiff, being a creditor of a deceased person, had moved the proper court to grant him administration of his estate, and the defendant, alleging that he was a creditor also, assured him that if he would with draw his said motion, and suffer the defendant to have the administration, he (the defendant) would pay his debt out of the first money that should come to his hands as administrator. It also stated that the plaintiff then agreed to relinquish his right as administrator, and the defendant then and there administered upon the estate, but it did not aver that the plaintiff relinquished his pretension to the administration, in conformity with the said agreement. Such a declaration is altogether defective and cannot be aided by verdict. Daniel v. Morton, 4 Munf. 120.
(2) Immaterial.
Omission of Word “Surety” Immaterial. — When there are two signatures to an obligation to pay money, and it is expressed that one signs as surety, theword “surety” being annexed to his signature, both are jointly bound, and a declaration in assumpsit against both need not notice the suretyship, because it is immaterial. Riley v. Jarvis, 43 W. Va. 43, 26 S. E. Rep. 366.
Presentment for Payment — Sec. 1, Ch. 99, Code West Virginia. — A count in a declaration in assumpsit on a promissory note, omits to state that it was presented at the bank, where it was payable, for payment. But by Code of Va. 1849, ch. 144, § 1, re-enacted *101by § 1, ch. 99, Code of W. Va. 1868 (§ 1, ch. 99, Code of W. Va. 1899), it is provided, that it shall not be necessary to aver, or prove presentation for payment, at the time and place, specified in a note, in order to recover of the makers. Bank of Wheeling v. Evans, 9 W. Va. 373.
Omission to State Cause of Action Arose in Jurisdiction of Court — No Error. — in an action of assumpsit in the superior court of the county, the declarations laying the venue in a different county, and omitting to state that the canse of action arose within the jurisdiction of the court, is not error sufficient in arrest of judgment. Buster v. Ruffner, 5 Munf. 27. See Turberville v. Long, 3 H. & M. 309.
Omission of Damages Unimportant. — it appears from numerous authorities that it is unimportant that the damages are left blank in the declaration in an action of assumpsit, but if the gist of the action be blank, it is a fatal omission. Blane v. Sansum, 2 Call 495; Stephens v. White, 2 Wash. 203; Taylor v. M’Clean, 3 Call 557; Craghill v. Page, 2 H. & M. 446; Digges v. Norris, 3 H. & M. 268; Winston v. Francisco, 2 Wash. 187.
(3) When Cured.
On Collateral Promise — Omission to Allege Notice, Performance and Failure to Pay Cured by Statute of Jeofails. — in a declaration in assumpsit on a collateral promise, the plaintiff should aver notice to the grantor, of the performance of the act contemplated by the promise, and perhaps of the failure to pay by the person in whose favor the undertaking was made. The omission of these averments will be cured by the statute of jeofails after verdict. Pasteur v. Parker, 3 Rand. 458.
Money Count — Sum Received Blank Cured by Verdict. —A count for money had and received in an action of assumpsit was held good after verdict, although the sum received was left blank. Hall v. Smith, 3 Munf. 550.
Action Sounding in Damages — Omission to Lay Damages Cured by Verdict. — 'The omission to lay damages in the declaration in an action of assumpsit, though it is an action sounding in damages, is cured after verdict by the statute of jeofails. Stephens v. White, 2 Wash. 203.
h. Bill of Particulars, Account and AotidaVIT.
No Part of Declaration. — The account which the statute requires to be filed in an action of assumpsit setting forth the items of the plaintiff’s claim, is not a part of the declaration, and there can be no plea to it. Booker v. Donohoe, 95 Va. 359, 28 S. E. Rep. 584: Riley v. Jarvis, 43 W. Va. 43, 26 S. E. Rep. 366. See George Campbell Co. v. George Angus & Co., 91 Va. 438, 22 S. E. Rep. 167.
Former Law. — The former rule of law was that the account filed by the statute (Va. Code 1873, ch. 167, § 13, Va. Code 1887, § 3248), with the declaration in assumpsit, is a part of declaration, and is subject to demurrer. Wright v. Smith, 81 Va. 777. This case has been overruled in numerous cases. See George Campbell Co. v. George Angus & Co., 91 Va. 438, 22 S. E. Rep. 167.
Demurrer Does Not Lie for Defects Therein — Proper Practice. — The defects in a bill of particulars cannot be taken advantage of by a demurrer to the declaration. They are not within its scope, and it does not lie for such a purpose. Abell v. Penn., etc., Ins. Co., 18 W. Va. 400; Sheppard v. Ins. Co., 21 W. Va. 368. Where a sufficient bill of particulars is not filed, the proper practice is to apply to the court to require the plaintiff to file an amended and sufficient account; and if he fail to do so, to move the court to exclude evidence of any matter not described sufficiently to give him notice of its nature and character. George Campbell Co. v. George Angus & Co., 91 Va. 438, 22 S. E. Rep. 167. See also, Moore v. Mauro, 4 Rand. 488.
Office — May Supply Defects in Declaration. — The office of a bill of particulars is to give a fuller and a more particular specification of the matter contained in the declaration, and is to be read in connection with it, hence the bill of particulars supplies defects, if any, in the declaration. George Campbell Co. v. George Angus & Co., 91 Va. 438, 22 S. E. Rep. 167.
Must Conform to Claim in Declaration -if the declaration in an action of assumpsit contained no count, which is based on the claim specified in the bill of particulars filed therewith, the items contained in it cannot be proven, and no recovery can be had therefor. Riley v. Jarvis, 43 W. Va. 43, 26 S. E. Rep. 366.
When Court Will Allow Amendment. If substantial justice is promoted by allowing' the plaintiff to amend his bill of particulars filed with a declaration in assumpsit, and it appears that this amendment operated no surprise to the defendant, the court acts properly in permitting the amendment and in refusing a continuance on account of it. Anderson v. Kanawha Coal Co., 12 W. Va. 526.
Application for Time for Defence to Bill of Particulars Should Be Made in Lower Court, — Where a motion by the defendant to require the plaintiff to file a bill of particulars was denied at the term where it was made, but before trial at the next term, the plaintiff appeared and filed a bill, in which the items of his claim were fully and clearly set out, no objection can be raised in the court of appeals that the defendants desired time for the preparation of their defence, as such application should have been made in the court below when the cause came on for trial. Central Lunatic Asylum v. Flanagan. 80 Va. 110.
Specific Payments before Suit Must Be Set Out in Bill of Particulars. — in an action of assumpsit no specific or partial payment before the suit is brought can be proved, unless its nature and the several items thereof are set out in the bill of particulars filed with the general issue. Shanklin v. Crisamore, 4 W. Va. 134.
Insufficient Account. — Where an account filed with a declaration in assumpsit under § 3248 of the Va. Code, only mentions the sums paid, not giving any information about them, this account is insufficient where the items are not plainly described in the declaration. Johnson v. Fry, 88 Va. 695, 12 S. E. Rep. 973, 14 S. E. Rep. 183.
Sec. 3249 of Va. Code Construed — Authorizing Court to Order a Statement by Plaintiff or Defendant. — The object of § 3249, of the Va. Code which authorizes the court in any action to order a statement to be filed of the particulars of a claim, or the grounds of defence, is to give the defendant definite information of the claim against him, and to give the plaintiff more particular information of the defence than is generally disclosed by a plea, so as to enable the parties to prepare more intelligibly for trial and to prevent surprises. It was enacted in the interest of justice and is a most serviceable statute for this attainment. But such statement does not constitute the issue to be tried, and it was notintended that it should contain the formality or precision of a declaration or plea, but is entirely *102informal. It is not subject to demurrer, but when insufficient the court should require it on motion to be amended; or else strike it out. Columbia Accident Assoc. v. Rockey, 93 Va. 678, 25 S. E. Rep. 1009.
What Sufficient under 1 Rev. Code —Under the statute, 1 Rev. Code, ch. 128, § 86, an account filed with a declaration‘in assumpsit for goods sold, charging goods sold “per account rendered,” with proof that the account was rendered is sufficient. Robinson v. Burks, 12 Leigh 378.
Under 1 Rev. Code, 510, concerning proceedings in civil suits, -fete., an account filed in an action of indebitatus assumpsit, which gives notice of the character- of a claim is sufficient, although it may be made up of various items of which no notice is given. Moore v. Mauro, 4 Rand. 488.
Date of Account Immaterial if Declaration Gives It.— If in describing an account which is filed with it, the declaration in an action of assumpsit gives its date, it was not'an error because the account itself was not dated, where it was presented as a debt at the date of the suit, and a verdict was rendered accordingly. Kenefick v. Caulfield, 88 Va. 122, 13 S. E. Rep. 348.
Items of Account Barred — Directions to Jury to Disregard. — Where an action of assumpsit is brought against an executor or administrator on an account, items of which bear date more than five years before the death of the testator or intestate, it is not necessary that the court should actually expunge those items; but, if they decide that it shall: be done, and direct the jury to disregard them, it is sufficient. Hoskins v. Wright, 1 H. & M. 378.
Must Be Intelligible to Defendant — Description.—In an action of assumpsit, if the plaintiff proceeds under the Statute, Va. Code 1873, ch. 167, §4 (§3285, Va. Code 1887), a copy of the account sued upon, which is served upon the defendant, must be intelligible to him and inform him of the precise nature of the claim of' the plaintiff, and its extent. Burwell v. Burgess, 32 Gratt. 472.
If No Objection Is Made in Lower Court None Can Be Made in-Appellate Court. — If the defendant in an action of assumpsit did not object to the account being proved, which was sued on, in the lower court, he cannot object in the appellate court, because there was no statement of the errors in the account sued on. Varner v. Core, 20 W. Va. 472.
Sec. 3286 of Va. Code — Account with Affidavit Filed with Declaration — No Pleas by Defendant without Affidavit-Waiver or Estoppel. — Where the plaintiff files with his declaration in assumpsit an account verified by his affidavit which is served upon the defendant with the writ, and the case goes to judgment in the office, unless the defendant shall file during term a plea in bar Verified by his affidavit, this judgment will become final with the expiration of the term. But the statutory requirement that the defendant shall not be permitted to file his plea in such case unless Accompanied by his affidavit (Va. Code 1887, § 3286), was imposed for the benefit of the plaintiff in order to prevent him from delay by dilatory pleas, and may be waived by him either expressly or by implication, or he may by his conduct be es-topped from taking advantage of it, as when he takes issue of such plea. Lewis v. Hicks, 96 Va. 91, 30 S. E. Rep. 466; Spencer v. Field, 97 Va. 38, 33 S. E. Rep. 380.
i. Surplusage.
Joint -Plaintiffs — Description as Partners. — In an action of assumpsit, where the plaintiffs are described as partners, but have a joint right of action, the description of them as partners, may be regarded as surplusage. Wilson v. Carter Oil Co., 46 W. Va. 469, 33 S. E. Rep. 249.
Effect. — Any allegations in a declaration which are surplusage, do not vitiate the count, and may be rejected. Patton v. Elk, etc., Co., 13 W. Va. 259.
Agreement to Saw Lumber — Averment of Title In Defendant Need Not Be Proved. — An action of assumpsit was brought upon a contract whereby the plaintiff agreed to cut and saw a large quantity of lumber for the defendant from a tract of land, which was represented to be the property of the defendant. The count in the declaration shows the breach of the contract in refusing to pay for the lumber delivered. An averment that title to the land was in the defendant is surplusage and need not be proved.
2. THE PLEAS.
a. In Abatement. — See monographic note on “Pleas in Abatement” appended to Warren v. Saunders, 27 Gratt. 259.
For Nonjoinder of Proper Defendant. — In assumpsit, the nonjoinder of a cocontractor as defendant can be taken advantage of only by plea in abatement, verified by affidavit, where the omission does not appear on the face of the declaration ; and defendant after pleading the general issue, cannot, at the trial, take advantage of such nonjoinder, on the ground of variance between allegata and probata, though it appears that plaintiffs knew of the joint liability before bringing the action. Wilson v. McCormick, 86 Va. 995, 11 S. E. Rep. 976; Rutter v. Sullivan, 25 W. Va. 427; Prunty v. Mitchell, 76 Va. 169.
b. The General Issue.
With Proper Conclusion Trial May Be Had without Similiter. — If the plea of nonassumpsit properly conclude to the country theNplaintiff has the right to proceed to trial on it, without the formal addition of a similiter, as though issue had been formally joined upon it. Wellsburg v. Kimberlands, 16 W. Va. 555. See W. Va. Code, ch. 125, § 25. Douglass v. Land Co., 12 W. Va. 506; Balt., etc., Co. v. Faulkner, 4 W. Va. 180; Brewer v. Tarpley, 1 Wash. 363.
Issue “Not Guilty” — No Repleader after Fair Trial.— In an action of assumpsit the plea filed was “not guilty”; after a fair trial of the case has been had, all the facts and circumstances of the case have been inquired into, and averdict and judgment have been rendered for the plaintiffs, the court will not allow the defendant the benefit of his own mistake, and award a repleader. While the plea is informal, it is now too late for it to be taken advantage of. Gray v. Kemp, 88 Va. 201, 16 S. E. Rep. 225. See Hunnicutt v. Carsley, 1 H. & M. 153.
Joint Plea — When Additional Plea Is Offered Issue on Which Is the Same Improper to Refuse. — Issue was taken on the joint plea of nonassumpsit filed by two defendants in an action of assumpsit. One of them asked leave to withdraw the plea as to himself, and file a separate one that they did not assume. This was refused, and he then asked leave to file such plea in addition, which was also refused. These rulings were held correct, as the issue on both pleas would be the same. Steptoe v. Read, 19 Gratt. 1.
Plea of “Nil Debet” — After Joinder of Issue and Verdict Error Cured. — Where a plea of nil debet was filed in an action of assumpsit, this plea might have been demurred to. But where the plaintiff did not do so, but chose to join issue upon 'it, after the rendition of a verdict, the appellate court will regard the issue as tried precisely as if the proper general issue rather than the improper one had been made up, and the case will be reviewed as if an *103issue had been made up on a plea of nonassumpsit. Smith v. Townsend, 21 W. Va. 486.
c. Special Pleas.
(1) Sufficiency and Materiality.
On Assigned Bond — Pleas Insufficient to Bar Recovery. — Assumpsit is brought in the name of D for benefit of V against a defendant as assignor of a bond. The defendant pleads that after assignment to plaintiff, and before bond became due, the plaintiff assigned unto one V all his right, title and interest, and that after assignment and before commencement of the action, the plaintiff took the oath of insolvency, and was discharged as an insolvent, whereby all his estate became vested in the sheriff. Neither of these pleas is a sufficient bar to prevent the plaintiff from maintaining the action. Dunn v. Price, 11 Leigh 203.
Delivery of Barrels under Agreement — Sufficient Plea In Bar. — Where an action of assumpsit was brought upon an agreement for the delivery of a quantity of hour barrels at the defendant’s shop at certain times, with a stipulation that if the plaintiff was not ready to receive them, the same should be counted in the presence of a third party and be thereafter the property, and at the risk of the plaintiff, it was a sufficient plea in bar that the defendant was ready at the appointed times to deliver the barrels to the plaintiff, who was not then ready to receive them, and that the defendant according to the agreement counted the barrels, and at the time stipulated had them ready to be delivered to the plaintiff, and then and there required the plaintiff to receive the same, which he entirely neglected to do. Jones v. Stevenson, 5 Munf. 1.
Action in Insurance Policy — Defence of False Representations and Promises by Assured — Plea Rejected.— To an action of assumpsit on a policy of insurance, on a stock of goods, a plea was filed that the owner of the property insured made false representations to the defendant’s agent when the policy was issued, as to the value of the goods, and false promises to keep the stock up to a certain value. This plea makes no good ground for defence, as the defendant's liability varies with the value of the .stock, and any objection made to it should be rejected. Travis v. Peabody Ins. Co., 28 W. Va. 583.
Immaterial Plea — Confederate Notes.-H during the Civil War draws an order on the auditor of Virginia for interest due him, in favor of the cashier of a bank in Richmond, who collects the amount, and deposits the same to the credit of the drawer, as so much cash or dollars. In an action of assumpsit, the common counts are filed, and in addition to the plea of nonassumpsit, the defendant files a special plea alleging that the deposits were made in confederate treasury notes, and that H agreed that the same might be paid and returned to him. The plea is immaterial. Harrison v. Farmers’ Bank of Va., 6 W. Va. 1.
(2) Statutory Recoupment.
In both Virginia and West Virginia, in any action on a contract the defendant may file a plea alleging any such failure in the consideration of the contract, or fraud in its procurement, or any such breach of any warranty to him of the title to real property, or of the title or soundness of personal property, as would entitle him either to recover damages at law from the plaintiff, or the person under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract, and every such plea must be verified by affidavit. Va. Code 1878, tit. 51, c. 168, § 5, p. 1098; Va. Code 1887, c. 140. § 3299, p. 785; West Va. Code, c. 126. § 5, p. 813; Fleming v. Toler, 7 Gratt. 310; Shiflett v. Orange Humane Soc., 7 Gratt. 297; Isbell v. Norvell, 4 Gratt. 176; Pence v. Huston, 6 Gratt. 304; Watkins v. Hopkins. 13 Gratt. 743; Burtners v. Keran, 24 Gratt. 42; Keckley v. Winchester Union Bank, 79 Va. 458; Huffman v. Alderson, 9 W. Va. 616; Black v. Smith, 13 W. Va. 803; Wellsburg First Nat. Bank v. Kimberlands, 16 W. Va. 555; Morrow v. Bailey, 2 W. Va. 326: Jarrett v. Nickell, 4 W. Va. 276; Fisher v. Burdett, 21 W. Va. 626; Quaker City Nat. Bank v. Showacre, 26 W. Va. 48; Douglass v. West Virginia Cent. Land Co., 12 W. Va. 502; Bias v. Vickers, 27 W. Va. 456.
Recovery by Defendant under § 3299, Va. Code — Bar to Subsequent Action. — A party who filed a special plea under § 3299 of Va. Code for breach of warranty, may recover all damages he has sustained thereby, which he could recover in the action for the breach; but if he only claims a part of the damages he has sustained, and then brings an action of assumpsit for the other damages, the former judgment is a bar to the action. Huff v. Broyles, 26 Gratt. 283.
(3) Set-Off.
When Proper to Reject — Defence to Whole Action.— In an action of assumpsit based on a written contract, the defence goes to the whole action, and alleges the procurement of the contract by fraud and deceit, which, if proven, will defeat the action. A recoupment of damages is therefore not applicable, and the rejection of special pleas and set-offs filed for this purpose was proper. Dillon Beebe’s Son v. Eakle, 43 W. Va. 502, 27 S. E. Rep. 214.
When No Recovery by Defendant in Absence of Set-Off. -In an action of assumpsit the declaration contains only the common counts, and a bill of particulars aggregates a certain sum. Issue is joined upon the defendant’s plea of nonassumpsit and no account of set-off is filed by him. Under a rule of the court the case is submitted to arbitrament, and an award is made in favor of the defendant for a sum of money. No set-off having been filed with the defendant’s plea, the only matter in dispute in the case is the demand of the plaintiff in his declaration and bill of particulars, and this was the only matter submitted to arbitration. Hence an award in favor of the plaintiff is erroneous. Swann v. Deem, 4 W. Va. 368.
Action by Administrator — floney Paid by Surety Since Death of Principal. — In an action of assumpsit by an administrator for a debt due his intestate in his lifetime, the defendant cannot set-off a debt due him for money paid as the surety of the intestate since his death. Minor v. Minor, 8 Gratt. 1.
(4) Payment.
Must Conclude to the Country. — The general plea of payment in an action of assumpsit denying the necessary general allegation of nonpayment must in every case conclude to the country. Douglass v. Central Land Co., 12 W. Va. 502.
Payment after Action Is Brought — Specially Pleaded. —In an action of assumpsit payment after the action is brought must be specially pleaded. Shanklin v. Crisamore, 4 W. Va. 134.
Payment before Action Is Brought. —The common-law rule provides in West Virginia that in an action of assumpsit payment before the action is brought need not be specially pleaded. Shanklin v. Crisamore, 4 W. Va. 134.
(5) Statute of TAmitations.
(a) In General.
Extension of Period by W. Va. Act 1866 — Does Not Apply to Assumpsit. — it was held in Gore v. McLaugh*104lin, 3 W. Va. 489, that the act of February 27, 1866, in relation to the statute of limitations, extending the time in which actions of trespass and case might be commenced in certain counties of the state, includes only actions of trespass and trespass on the case, and does not apply to actions on the case in assumpsit nor to actions ex contractu.
Time Excluded from Operation of Statute. — The time excluded by law from the operation of the statute of limitations in assumpsit, is from the 17th of April 1861 to the 1st of March, 1865. Balt., etc., Co. v. Faulkner, 4 W. Va. 180; Gore v. McLaughlin, 3 W. Va. 489.
(b) To What Time It Relates.
The Bringing of the Suit. — The plea of nonassumpsit within five years relates to the time of the bringing of suit, and not to the time of the filing of the plea. Henderson v. Foote, 3 Call 248, distinguishing Smith v. Walker, 1 Wash. 135.
If General to Piling of Plea. — The plea of non assumpsit within five years, if general, will refer to the time of the plea pleaded, whereas it ought to refer to the institution of the suit, and if it concludes to the country the plaintiff will be precluded from bringing himself within the benefit of some of the exceptions to the act of limitations, by a replication. Smith v. Walker, 1 Wash. 135.
(c) Answer to Plea,
Sale of Slaves Recovered within Five Years Prior to Action. — in an action of assumpsit against an administrator, he pleads the statute of limitations. It is no answer to the plea, that the defendant’s intestate sold to plaintiff slaves in payment of the debt declared on, and that the defendant, since the death of his intestate, had, as administrator, sued for, and upon the title alone, without regard to intestate’s indebtedness to the plaintiff, had recovered the said slaves from the plaintiff within five years before the action brought. Johnson v. Jennings, 10 Gratt. 1.
(d) Form of Plea,
Debt Discharged in Bankruptcy — New Promise.— Where a debt is discharged in bankruptcy within five years after it is incurred, and a suit is brought on a new promise to pay it within five years after the new promise, a plea is bad that five years have elapsed since the original cause of action, or since the discharge inbankruptcy, and should be rejected. Horner v. Speed, 2 P. & H. 616.
Breach of Contract for Occupation of Land. — In an action of assumpsic for the use and occupation of land, where the cause of action arises from the breach of the contract, and not at the time of the making of the same, the plea that the defendant did not assume, as in the declaration set forth, within five years prior to the commencement of this suit, is not a proper plea. It should have been that the action did not accrue within five years prior to the commencement of this suit. Atkinson v. Winters (W. Va.), 34 S. E. Rep. 834.
(6) Pleas Provable under the General Issue.
Rejection Discretionary with the Court. — It is not an error for the court to reject special pleas setting up matter in defence to the action of assumpsit, when the plea of nonassumpsit has been filed, and the matter of the defence of such plea may be given in evidence under the plea of nonassumpsit, as their rejection could not have prejudiced the defendant. Bennett v. Perkins (W. Va.), 35 S. E. Rep. 8; Crews v. Farmers’ Bank, 31 Gratt. 348; Fire Assoc. v. Hogwood, 82 Va. 342, 4 S. E. Rep. 617; Va., etc., Ins. Co. v. Buck, 88 Va. 517, 13 S. E. Rep. 973; Hale v. W. Va., etc., Co., 11 W. Va. 229; Balt., etc., Co. v. Laffertys, 14 Gratt. 478; Fant v. Miller, 17 Gratt. 47; Balt., etc., R. Co. v. Whittington, 30 Gratt. 805; Balt., etc., R. Co. v. Polly, 14 Gratt. 453; Brown v. Town of Point Pleasant, 36 W. Va. 290, 15 S. E. Rep. 209.
Where it is apparent from the character of the evidence that it had been introduced' by the defendant under the general issue, it is not error to reject special pleas provable thereunder, setting up the ‘same defence. George Campbell Co. v. George Angus & Co., 91 Va. 438, 22 S. E. Rep. 167; Southern Ry. Co. v. Wilcox, 7 Va. Law Reg. 381; Richmond, etc., Ry. Co. v. New York, etc., Ry. Co., 95 Va. 386, 28 S. E. Rep. 573.
In West End Co. v. Claiborne, 97 Va. 734, 34 S. E. Rep. 900, it was said that special pleas should be rejected when they contained defences which could be made under the general issue.
But in the recent case of Ches., etc., R. Co. v. Rison (Va.), 37 S. E. Rep. 320, 6 Va. Law Reg. 665, it was held that it was not error to permit the defendant to plead specially matters provable under the general issue, but not amounting to it. Phlegar, J., said; “Whileit has been held by this court not to be error to reject special pleas alleging matter which could be given in under the general issue (Fant v. Miller, 17 Gratt. 67; Va., etc.. Ins. Co. v. Buck, 88 Va. 517, 13 S. E. Rep. 973), no case has been found which was reversed because such pleas were admitted.” For collection of cases on this point see foot-note to Fant v. Miller, 17 Gratt. 67.
In Maggort v. Hansbarger, 8 Leigh 532, which was an action, of assumpsit, Parker, J., delivering the opinion of the court, said: ‘T know of no rule which inhibits the party from pleading specially what he might give in evidence under the general issue, unless the matter pleaded amounts to the general issue, that is, denies the allegations which the plaintiff is bound to prove. But where the cause of action is avoided by matter ex post facto, it may always be specially pleaded, whether it could be given in evidence under the general issue or not.”
Special Pleas Amounting to General Issue Should Be Rejected. — When the effect of a special plea is to deny that the plaintiff in assumpsit ever had such a cause of action as is alleged in the declaration, it is equivalent to the general issue, and will be rejected on objection. Travis v. Peabody Ins. Co., 28 W. Va. 583; Balt., etc., R. Co. v. Polly, 14 Gratt. 447; Bank of Wheeling v. Evans, 9 W. Va. 373.
Special Plea in Discharge of Action May Be Filed. —But special pleas containing matters in discharge of the action might be filed; nevertheless, their rejection by the lower court will be no ground of reversal on appeal, where the case is decided on demurrer to the evidence, as no injury could have resulted to the defendants, all their defence being admissible under the general issue of nonassumpsit. Bank of Wheeling v. Evans, 9 W. Va. 373.
While a special plea, setting forth matters in discharge of the action, may be filed when the plea of nonassumpsit has been filed, yet when the matters set up in said plea may be given in evidence under the general issue, it is not error to reject such plea. Dillon Beebe’s Son v. Eakle, 43 W. Va. 502, 27 S. E. Rep. 214.
Rejection of Special Plea with Leave to Plead General Issue Not Error. — In indebitatus assumpsit, if the defendant, after office judgment and a writ of enquiry, offers to plead in abatement that the matter of the suit was contained, in a covenant under-seal, and the court reject the plea, but give leave to plead the general issue, it will not be error; *105for the defendant might have given the special matter in evidence under the general issue, and if it had been refused, might have filed an exception to the opinion. Porter v. Harris, 4 Call 485.
3. THE REPLICATION.
To Plea of Feme Covert — That She Lived Apart from Her Husband. — The defendant to an action of assumpsit on the common counts pleads that she was a married woman at the time of making the promises and undertakings declared on. The plaintiffs replication alleges that at that time she was living apart and separate from her husband. This is a good replication. Peck v. Marling, 22 W. Va. 708.
Defendant Hay Waive Objection to Want of Replication — In an action of assumpsit the defendant plead nonassumpsit, on which plea issue was joined. He also filed a special plea for damages, but no replication was made to this, thereby entitling the defendant to nominal damages, and the jury tried the “issues joined.” No objection to the want of a replication was made by the defendant, neither was any evidence offered to support the special plea, and judgment was rendered for the plaintiff. § 3300 of the Va. Code declares that every issue on a special plea of set-off shall he upon a general replication that the plea is not true. The failure to file the replication in this case did not invalidate the proceedings, but by not objecting the defendant consented to the trial, and he was in no position to complain of the irregularity. Briggs v. Cook (Va.), 38 S. E. Rep. 148.
4. DEMURRER.
To Whole Declaration When One Count Is Good.— Where a general demurrer is filed to the whole declaration in an action of assumpsit, if any one of the several counts therein he good, or if one of several divisible matters in a single count be good, the general and familiar rule is that the demurrer must be overruled. Wright v. Smith, 81 Va. 777. See also, Power v. Ivie, 7 Leigh 147; Hollingsworth v. Milton, 8 Leigh 50; Henderson v. Stringer, 6 Gratt. 130; Ferrill v. Brewis, 25 Gratt. 766; Gray v. Kemp, 88 Va. 201, 16 S. E. Rep. 225; Nutter v. Sydenstricker, 11 W. Va. 535; Sheppard v. Peabody Ins. Co., 21 W. Va. 368.
No Ground if Bill of Particulars Is Vague. — A failure to file a bill of particulars with a declaration in assumpsit, or if the bill is too vague and indefinite when filed, is no ground for demurrer. Sheppard v. Ins. Co., 21 W. Va. 368. See Abell v. Ins. Co., 18 W. Va. 400; Choen v. Guthrie, 15 W. Va. 113.
No Demurrer without Issue Joined. — In an action of assumpsit it is an error to permit the defendant to cross-examine the witnesses, or to demur to the evidence, without any plea having been filed or issue joined in the case. Petty v. Frick Co., 86 Va. 501, 10 S. E. Rep. 886.
Joinder of Absolute and Conditional Promise to Pay— Demurrer Improper. — In an action of assumpsit brought on a new promise to pay a debt which has been discharged in bankruptcy, it is no ground of demurrer to the declaration that two counts are joined in the same declaration, one on an absolute promise to pay, and the other on a conditional promise to pay when able. Nor is there any ground of demurrer to the first count that it declared on the new promise, and not on the original cause of action, for in such case the declaration may be in either form. Nor does a demurrer lie to the second count, that it does say in what the ability to pay consists. Horner v. Speed, 2 P. & H. 616.
Count in Tort Not Demurrable if It Contains Sufficient Matter to Maintain Assumpsit. — A declaration in assumpsit contains three counts, two of which are clearly in assumpsit, the third count is demurred to on the ground that the matter set forth therein is a tort, for which the action of assumpsit is not the proper remedy. But if sufficient matter is stated therein to maintain the action of assumpsit, the demurrer will be overruled. Hoppess v. Straw, 10 Leigh 348.
Declaration Is Sufficient if It Contains in Effect All Allegations Prescribed by Statute —A declaration in assumpsit on an insurance policy, not being intended to adopt the form prescribed by ch. 66 of the Acts of 1877, but that of the common law, will be held sufficient on demurrer where it in effect contains all the allegations prescribed by the statute. Travis v. Insurance Co., 28 W. Va. 583.
A declaration in asvsumpsit on a life insurance policy which is drawn in substantial conformity with the statute (Va. Code 1873, ch. 167, sec. 14), and sufficiently and accurately sets out the interest of the assured is good, and a demurrer to it was properly overruled. Valley, etc., Life Assoc. v. Teewalt, 79 Va. 421.
No Demurrer to Affidavit Denying Partnership,— Section 41, of ch. 125, of the W. Va. Code as amended by ch. 76, of the Acts of 1875, provided that where plaintiffs or defendants sue or are sued as partners and the names of the partners are set out in the declaration, it is not necessary to prove the partnership, unless with the pleading putting the matter in issue there be an affidavit denying such partnership. In an action of assumpsit brought by partners the defendants pleaded nonassumpsit and filed an affidavit denying the partnership. A demurrer to the affidavit was held immaterial pleading, and it was not error to try the case without noticing the demurrer. Rutter v. Sullivan, 25 W. Va. 427.
Insufficient Allegation. — In an action of assumpsit on a promissory note, the count alleges by the defendants, the makers, “a promise to pay the further sum of $6,000 (meaning and intending thereby $4,000), whereby the makers became liable to pay $4,000.” This count was held bad on general demurrer. Bank of Wheeling v. Evans, 9 W. Va. 373.
Amendment of Count Demurrer to Which Erroneously Sustained in Lower Court. — Upon a demurrer to a count of a declaration in an action of assumpsit on the ground of duplicity, the demurrer is sustained, and thus the plaintiff, with the leave of the court amends the count. He cannot object in an appellate court that the court below erred in sustaining the demurrer. Hopkins v. Richardson, 9 Gratt. 485.
VI. EVIDENCE.
1. PRESUMPTION.
Possession of Personal Property Presumptive of Ownership. — In an action of assumpsit for breach of marriage contract, letters were admitted in handwriting of the plaintiff and addressed to respectively “Miss Mary,” “Dear Mary” and “Dear Mollie.” It was objected that the possession of these letters by the defendant did not constitute prima facie evidence of ownership in herself, and that she would have to prove by other competent testimony that she was the identical person to whom they were addressed. The well-settled doctrine is that possession of personal property is prima facie evidence of title and ownership and it is clear that possession of these letters by the defendant raised a strong presump*106tion that they were intended for her, and it was for the plaintiff to rebut this presumption. Tefft v. Marsh, 1 W. Va. 38.
Of Checks as Evidence. — A check, which is offered in evidence under the money counts in an action of assumpsit, is only prima facie evidence of money lent, etc., and the presumption raised by the check is rebutted when it is proved that no money had come into the hands of the defendant. Blair v. Wilson, 28 Gratt. 165.
2. ADMISSIBILITY, COMPETENCY AND RELEVANCY.
Admissions of Cocontractor Binding — Account.— Admissions by a cocontractor as to the correctness of an itemized account-presented to him by plaintiffs, relating to the subject-matter of the contract are binding on defendant, and are admissible against him in an action of assumpsit. Wilson v. McCormick, 86 Va. 995, 11 S. E. Rep. 976.
Parol Evidence — Admissible to Show Contract a Guaranty. — in an action of assumpsit on assigned bonds, given as security for the payment of the purchase price of a tract of land, the defendant was declared against in one of the counts as an assignor, and in the others as a guarantor. In this case parol testimony is admissible to show the contract to be a guaranty, if such was the understanding, and recovery may be had upon it when so proved. Welsh v. Ebersole, 75 Va. 651.
Same — Admissible to Show Agency. — Where the paper sued on in an action of assumpsit is of doubtful meaning, being signed by the defendant, parol testimony is admissible to show that the defendant was the agent of a chief commissary in the Confederate army, and that the plaintiff knew that the defendant only bought as his agent. Walker v. Christian, 21 Gratt. 291.
Not Admissible under Insufficient Bill of Particulars, —If an insufficient bill of particulars is filed, evidence under it will not be admitted in an action of assumpsit. Minor v. Minor, 8 Gratt. 1.
Under § 4, Ch. 120 of W. Va. Code — Evidence of Specific Payments Hay Be Objected to Where No Bill of Particulars. — On a failure of the defendant to file with his plea of payment any bill of particulars, it is clear that under ch. 120, § 4 of the W. Va. Code, the plaintiff could have objected to the admission of any proof of any specific partial payment on the ground of surprise. But if he permits them to be proved, he thereby waives all objections, and they may be considered by the jury. Smith v. Townsend, 21 W. Va. 486.
Corporate Deed Admissible to Prove a Corporation.— In an action of assumpsit against a private corporation, a deed of the corporation signed in the corporate name by the secretary, under its corporate seal, duly acknowledged by the secretary, reciting that it is a corporation formed according to law, is admissible as evidence to prove the legal existence of the defendant as a corporation. Anderson v. Kanawha Coal Co., 12 W. Va. 526.
Written Agreement Admissible to Prove Occupation of Land and Terms of Rent. — In an action of assumpsit brought for the use and occupation of a tract of land, the written agreement for the rental may appear in evidence as proof of the occupation of the land by the plaintiff, and of the terms of the rent. Atkinson v. Winters (W. Va.), 34 S. E. Rep. 834; Goshorn v. Steward, 15 W. Va. 637.
Admission of Bailee Competent to Prove Him Liable for Loss of Slave. — The bailee of a slave, who was hired for farm work, without the permission of the 1 bailor carried him on a voyage down the Ohio river where he was drowned. The admissions of the bailee to third persons that he had no authority to take him on the voyage, and that he would be liable in case the slave be lost, are competent evidence against him in an action of assumpsit for damages for the loss of the slave. Spencer v. Pilcher, 8 Leigh 565
To Prove Wages of Slave Customary Hire for Farm Labor. — in an action of assumpsit brought for recovery of damages for the loss of a slave who was drowned, it was held relevant and admissible evidence to show that the amount of his hire was the usual and customary price for farm labor, and not for voyages down the Ohio river, where the bailee had wrongfully taken him. Spencer v. Pilcher, 8 Leigh 565.
Third Person Furnished Goods — Competent Witness. —In an action of assumpsit for goods furnished to a third person, such person is a competent witness for the plaintiff. Ware v. Stephenson, 10 Leigh 155.
Action on Assumpsit of Testator — Assumpsit of Executor Not Evidence. — in an action of indebitatus assumpsit brought against the administratrix of the intestate upon a store account, the declaration contained two counts, one for goods sold and delivered, and the other the quantum valebant, and in both instances charged the assumpsit of the testator. To this declaration the plea of nonassumpsit was filed, and on the trial of the issue upon the assumpsit of the testator the assumpsit of his executor cannot be received in evidence to establish the demand. Quarles v. Littlepage, 2 H. & M. 401.
Statement by Third Person Not Evidence in Action on Collateral Promise. — in an action of assumpsit on a collateral promise, a statement or account in writing by a third person showing the amount for which the defendant is liable is not evidence, although that person was the agent employed by the defendant in performance of the contract. Pasteur v. Parker, 3 Rand. 458.
Joint Defendants — One Not Competent to Prove Himself Alone Bound —In an action of assumpsit on a joint, or a joint and several contract against two defendants, one of them is not a competent witness to prove that he was the only party to- the contract, and alone bound by it. Steptoe v. Read, 19 Gratt. 1.
Examination of Same Witness in Prior Suit between Same Parties No Ground for Exclusion —In an action of assumpsit the testimony of witnesses offered to prove the items in the plaintiff’s account, ought not to be excluded from the jury on the ground that, in an action of debt between the same parties, the record of which action is not exhibited, determined during the pendency of the action of assumpsit, one of those witnesses was examined touching the same items claimed by the plaintiff, to repel or set off the credits then claimed by the defendant. Robertson v. Depriest, 6 Munf. 469.
Plaintiff Incompetent — § 23, ch. 130, Code W. Va. 1868. — In an action of assumpsit brought to recover for work and labor done by the plaintiff for the decedent of the defendant, it was an error to permit the plaintiff to testify in her own behalf, in accordance with provisions of the 23d §, ch. 130 of. thé W. Va. Code of 1868. Owens v. Owens, 14 W. Va. 88.
Settled Account — No Evidence to the Items. — The defendant in an action of indebitatus assumpsit upon a settled account cannot go into an enquiry concerningthe justice of the several items of demand stated in the account. Lyne v. Gilliat, 3 Call 5.
*107Action on Rescinded Contract under Seal — Admissible Evidence. — In an action of assumpsit for the recovery oi money on a rescinded contract, the plaintiff may introduce the contract which is under seal. Its introduction not being for the support of the form of action, but as evidence to support the plaintiff's case, it is competent for the court to permit the plaintiff to offer it as evidence. Buena Vista Co. v. McCandlish, 92 Va. 297, 23 S. E. Rep. 781.
Action on Contract for Building a House — Evidence Admissible to Show Work Defective, etc. — A contract under seal is made between a builder and another person for the erection of a house, with provisions that if it is not finished by a certain time deduction shall be made from the amount agreed to be paid equal to the rent for the period of delay. Before work is commenced a parol agreement is made between the parties changing the work to be performed. Advances are made to the builder, and after the completion of the work there is a disagreement between the parties, and the builder brings an action of assumpsit for the balance due him in three counts, indebitatus, Quantum meruit, and insimul computassent. The defendant pleads nonassmnpsit and set-off. It was held, that evidence is admissible to prove that the work done according to covenant was defective and insufficient, and that the house was not completed by the time agreed, and the rent which would have been received had it been completed; and the plaintiff's claim can be diminished by the amount of such damages arising thereby. Davis v. Baxter, 2 P. & H. 133.
Assumpsit of Debtor in Five Years flay Be Shown.— The act of 1792, 1 Rev. Code, p. 167, which makes it the duty of the court “in an action upon an open account against an executor or administrator, to cause to be expunged from such account items appearing to have been due five years before the death of the testator or intestate,” relates only to open accounts and does not extend to settlements or assumptions, and therefore plaintiff in an action of assumpsit, in order to take his case out of the act, may give in evidence an assumpsit of the testator or intestate, within five years, to pay a stated balance. Brooke v. Shelly, 4 H. & M. 266.
Verdict and Evidence Submitted to Court — Judgment Given on Merits Whether Evidence Admissible or Not. —If the jury submit it to the court whether evidence annexed to their verdict supports either count in the declaration, and it appears that the plaintiff has not a right to the money claimed, judgment shall be given against him on the merits, whether the evidence was admissible under that form of declaring or not. Wood v. Luttrel, 1 Call 232.
Action for Work Done — Written Contract Must Be Produced, or Accounted for and Contents Proved. — If it appears from the plaintiff's evidence in an action of assumpsit for work and labor done, that the work was done under a written contract, it must be produced, or its nonproduction accounted for. and its contents proved, before the case can be further proceeded with. Balt., etc., R. Co. v. Polly, 14 Gratt. 447.
3. SUFFICIENCY.
What Sufficient to Charge Assignor of Nonnegotiable Paper. — in an action of assumpsit by the assignee against the assignor of a nonnegotiable instrument, the plaintiff to maintain his action must show that the maker was insolvent at the time the instrument was made or the contents fell due, or that he has used due diligence to recover from the maker and has failed, or that from some cause such a suit would have been of no avail. Merchants’ Nat. Bank v. Spates, 41 W. Va. 27, 23 S. E. Rep. 681.
Proof of Plaintiff’s Demand Necessary — Admission of Defendant. — The plaintiff in a declaration in assumpsit must prove the amount of his demand, although the defendant admits that he owed a debt. This admission is not sufficient to charge the defendant with the whole demand of the plaintiff. Quarles v. Littlepage, 2 H. & M. 401.
Engineer’s Estimate Conclusive by Contract — Proof of Fraud Sufficient to Recover. — in an action of assumpsit for work and labor by a contractor on a railroad, against the company, under a special contract which provides that the final estimate of the engineer shall be conclusive upon the parties, if the plaintiff proves that the final estimate made by the engineer was fraudulently made, he may recover without proving further that he was unable to procure such final estimate as is required by the contract after demand on the company, or other proper exertions on his part. Balt. & O. R. Co. v. Polly, 14 Gratt. 447.
Acknowledgment of Defendant — Promise to Settle— Not Sufficient to Justify Verdict. — On a plea of nonassumpsit within five years, it was proved that the defendant within that time acknowledged the items in the plaintiff’s account to be just, but said that he had some offsets ; and that at a subsequent time, the defendant promises the plaintiffs to settle all their accounts fairly, and would not avail himself of the act of limitation. It was held that this proof was not sufficient to justify a verdict for the plaintiff. Sutton v. Burruss, 9 Leigh 381, 33 Am. Dec. 246.
Recovery of Lost Note Sufficient to Show It Genuine —Possessory Interest of Finder. — In an action of assumpsit brought by the finder of a bank note against a gratuitous bailee, to whom he had delivered it, it was held that such bailee was not liable for the loss of the note unless it was the result of gross negligence on his part, and that to entitle the plaintiff to recover he must show that the note was genuine and of the value claimed. In the absence of any claims of the rightful owner the finder has such a possessory interest in the note as will entitle him to recover the sum from the bailee, if he refuse to redeliver it. Tancil v. Seaton, 28 Gratt. 601.
4. UNDER THE COMMON COUNTS.
Check Admissible under Money Counts — Evidence of. — In an action of assumpsit the declaration in which contains the money counts, a check may be offered in evidence thereunder, and if there is no other evidence in the case, it is of itself sufficient to entitle the plaintiffs to recover on those counts. Blair v. Wilson, 28 Gratt. 165.
Evidence of Special Agreement Not Allowed under Common Counts. — fn an action of general indebitatus assumpsit for services rendered as an overseer, or a Quantum meruit for likewise services, the plaintiff cannot give in evidence the proof that the defendant had employed him as overseer, and was to pay him a certain quantity of tobacco. In such case he should declare upon the special agreement. Brooks v. Scott, 2 Munf. 344.
But Special Contract Must Appear from Plaintiff.— The defendant in an action of assumpsit cannot arrest the plaintiffs in the making out of their case, by appearing to show that the work sued for in the common counts, was done under a special contract, it not appearing from the plaintiff’s evidence that there was any such contract. Balt., etc., R. Co. v. Polly, 14 Gratt. 447; B. & O. R. R. Co. v. Laffertys, 14 Gratt. 478.
*108Money Counts — Necessary That the Money Be Actually Received. — Money levied by the sheriff upon a judgment which is afterwards reversed, cannot be recovered back by general indebitatus assumpsit for money had and received, without proof that the money was actually received by the plaintiff, or applied to his use. Isom v. Johns, 2 Munf. 272.
Hire of Slaves by Copartners — What Writing by One Sufficient for Recovery. — Where the declaration was upon a general indebitatus assumpsit for the hire of five slaves, for which the defendants, being copartners, promised on the 1st of January 1811, to pay the plaintiff the sum of $350, when they should be thereunto afterwards required, the plaintiff should not recover upon a writing signed by one of the defendants, certifying that he had hired of the plaintiff five slaves at the price of $350, and that this should entitle the plaintiff to the other defendant’s bond for the same, payable on the 1st of January, 1811. Wooddy v. Flournoy, 6 Munf. 506.
Account Stated — Witness May Testify That Defendant Acknowledged the Debt and Promised to Pay.— The plaintiff in assumpsit filed with his declaration an account commencing in these words: “1833, Jan’y 1. To balance due per account rendered, $1,405.07,” which account he produced at the trial, and a witness was introduced to prove, that, at the date of this item, the plaintiff delivered to the defendant a full bill or account to the amount of $1,405.07, and that the defendant acknowledged the same, and promised to pay it: It was held, that such proof may be received under the insimul computassent count. Fitch v. Leitch, 11 Leigh 471.
When inadmissible Evidence Would Have Been Admissible under Common Counts. — When a special contract is sued od in an action of assumpsit, and the proof varies materially from the declaration and is hence inadmissible, the proof, however, would have been admissible, if the declaration had contained a common indebitatus count. Davisson v. Ford, 23 W. Va. 617.
5. UNDER THE GENERAL ISSUE.
General Rule — Exceptions.—Under the plea of nonassumpsit in all actions of assumpsit, whether founded on an implied or express promise, any defence whatever which tends to deny the liability of the defendant may be admitted in evidence. The statute of limitations, bankruptcy and tender are believed to be the only defences which may not be proved under this plea, and they are excepted because they do not contest that the debt is owed, but insist only that no action can be maintained for it. 4 Min. Inst. (3d Ed.) 770; Va., etc.. Ins. Co. v. Buck, 88 Va. 517, 13 S. E. Rep. 973; Morgantown Bank v. Foster, 35 W. Va. 357, 13 S. E. Rep. 996. And by § 3298 of the Code of Virginia it is provided that: “In a suit for any debt the defendant may at the trial prove, and have allowed against such debt, any payment or set-off which is so described in his plea, or in an account filed therewith, as to give the plaintiff notice of ’its nature, but not otherwise.” See also, § 4, ch. 126 of Code of West Virginia, and Smith v. Townsend, 21 W. Va. 486.
Failure of Consideration May Be Proved under the General Issue — § 3299, Virginia Code Construed. — In an action of assumpsit the defence of failure of consideration was set up under the general issue. It was claimed that this could only be done by special plea under § 3299 of the Va. Code, verified by affidavit, and in this case the'requirements of the statute had not been conformed to, nor was it verified by affidavit. Prior to the enactment of this section in 1831, according to the practice at common law, it was competent to prove under the plea of nonassumpsit, failure of consideration, or anything which proved that no existing debt was due, with a few exceptions. (Columbia Accident Assoc. v. Rockey, 93 Va. 684, 25 S. E. Rep. 1009, and cases there cited.) The object of this statute was to enlarge the right of defence existing at common law by enabling defendants to make such defences to sealed instruments; and also to recover against the plaintiff any excess of damages he might have sustained, in order to settle all the rights of the parties under the contract in one suit. It does not impair any previous right, nor take away the right of any defence which the law had previously permitted to be made. Columbia Accident Assoc. v. Rockey, 93 Va. 678, 25 S. E. Rep. 1009. The contrary view is maintained in 1 Barton’s Law Pr. (2d Ed.) 491; 4 Min. Inst. (3d Ed.) 770, 798‘, and in Keckley v. Union Bank, 79 Va. 458, where it was suggested that failure of consideration could not be proved under the general issue, but had to be filed as a special plea under § 3299, and verified by affidavit.
No Prejudice in Rejecting Plea, Evidence under Which Provable under General Issue. — Where the evidence to sustain a special plea, the issue upon which has not been properly made up, was admissible under the general issue which had been pleaded, in an action of assumpsit a judgment on a verdict will not be reversed for such irregularity, because such error could not in any manner prejudice the defendant, as no evidence could have been- received under such special plea, except such as could have been received under the plea of nonassumpsit. Douglass v. Central Land Co., 12 W. Va. 502.
Accord and Satisfaction. — The defence of accord and satisfaction may be given in evidence under the plea of nonassumpsit, and it is not necessary that such a defence shall be pleaded specially. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555.
Usury. — Under nonassumpsit usury may be given in evidence. Bank of Wheeling v. Evans, 9 W. Va. 373.
Illegality of Contract. — In an action of assumpsit the defence that the contract was illegal is clearly admissible under the general issue. Southern Railway Co. v. Wilcox (Va.), 39 S. E. Rep. 144, 7 Va. Law Reg. 381; Va. F. & M. Ins. Co. v. Buck, 88 Va. 517, 13 S. E. Rep. 973.
Fraud. — Under the general issue j oined in an action of assumpsit, brought upon an award founded on parol submission, it is competent to prove at the trial that the submission of the defendant to the arbitration was procured by fraud. Bierly v. Williams, 5 Leigh 700.
Award Pending Suit Inadmissible. — An award made pendente lite cannot be given in evidence upon the plea of nonassumpsit. Harrison v. Brock, 1 Munf. 22.
Specific or Partial Payment before Suit. — The common-law rule prevails in West Virginia that in an action of assumpsit payment before the action is brought may be given in evidence under the general issue. A general payment before the suit is brought may be proved without a bill of particulars, but no specific or partial payment before suit is brought can be proved unless its nature and the several items thereof are filed with the plea. Shanklin v. Crisamore, 4 W. Va. 134.
Existence of Corporation Must Be Proved. — In Virginia and West Virginia on an issue joined on a plea of nonassumpsit in an action of assumpsit against a *109private corporation, it is necessary to prove the existence of such corporation. Anderson v. Kanawha Coal Co., 12 W. Va. 526, citing Grays v. T. P. Co., 4 Rand. 578: Rees v. Conococheague Bank, 5 Rand. 329; Taylor v. Bank of Alex., 5 Leigh 475; Jackson v. Bank of Marietta, 9 Leigh 244; Hart v. B. & O. R. Co., 6 W. Va. 336.
Assumpsit of Partner on Dissolution. — If there be several partners, and one of them after the partnership is dissolved assumes a partnership debt, but afterwards pleads the act of limitation jointly with the other partners, to an action of assumpsit brought upon an account stated, the assumpsit may be given in evidence, for the plea of nonassumpsit admits that the defendants did once assume. Brockenbrough v. Hackley, 6 Call 51.
Evidence Inadmissible at Variance with Agreement Sued on —A declaration in assumpsit brought upon a written agreement had no allegation concerning a note attached to the agreement, varying its terms. When the agreement was offered in evidence under the general issue it had the said note attached to it, and it was held inadmissible evidence, as there was a fatal variance between the agreement declared on and the agreement offered in evidence, unless it appeared that the note was attached without the knowledge or consent of the plaintiff, and hence was no part of the agreement. Newell v. Mayberry, 3 Leigh 250, 23 Am. Dec. 261.
Affidavit and Set-Off — Evidence of Latter Admissible When No Plea of Set-Off. — The defendant to an action of assumpsit pleads nonassumpsit, and with it files affidavit of set-off, and the set-off, which is a note. Though there is no plea of set-off or bill of particulars. the evidence in relation to the set-off is properly admitted. Bell v. Crawford, 8 Gratt. 110.
Action on Assumpsit of Testator — Assumpsit of Executor Inadmissible. — In an action of assumpsit upon the case against an executor charging an assumpsit of the testator, and on the plea of nonassumpsit by the testator within five years, an assumpsit of his executor cannot be given in evidence, to prevent the operation of the act of limitation. Fisher v. Duncan, 1 H. & M. 563. See Quarles v. Littlepage & Co., 2 H. & M. 401, and the cases there cited.
Bailment-Character of Bailee Inadmissible. — in an action of assumpsit brought to recover a sum of money in gold, which had been delivered to the defendant for safe-keeping, the only plea filed was nonassumpsit. The defence was that he had been robbed of it, while the plaintiff tried to prove a fraudulent appropriation by defendant. In this case evidence of the general character of the defendant is not admissible, and his failure to produce evidence of his good character is no ground for inference unfavorable to his integrity. Danville Bank v. Waddill, 31 Gratt. 469.
Same — Robbery.—In an action of assumpsit to recover a sum of money in gold which had been delivered by the plaintiff to the defendant for safekeeping in bank, under the plea of nonassumpsit the defendant was allowed to prove that he had been robbed. Danville Bank v. Waddill, 31 Gratt. 469.
Action against Corporation — Bill of Exchange Drawn by It Admissible — In an action of assumpsit against a private corporation it is proper to receive in evidence, on the trial of the issue of nonassumpsit, the bill of exchange drawn by the defendant on its agent, in favor of the plaintiff, and particularly described in the bill of particulars filed with the declaration, which contains the common money counts. They are clear admissions by the defendant of the justice of the plaintiff’s demand, and were made by the defendant in the most solemn manner. To reject them would be obvious error. Anderson v. Kanawha Coal Co., 12 W. Va. 526.
Honey Counts — Evidence of Source of Funds Admissible. — In an action of assumpsit for various sums of money lent to or paid for the defendant’s intestate, though payments or set-offs cannot be proved withont an account of such payments or set-offs filed, yet defendant under the general issue may prove that the money sued for or any part of it was not lent to or advanced for the intestate, but was paid out of money of the intestate in the hands of the plaintiff. Johnson v. Jennings, 10 Gratt. 1.
Action for Balance Due on Account with a Tanner— What Admissible. — In an action of assumpsit there were two counts, one for the agreed price of goods sold, and the other, quantmn valebant for the same. The proof under the general issue is that the plaintiff (a tanner) received raw hides from the defendant, and credited him for the value, and sent him in return tanned leather and charged him with the value thereof. The debt claimed is the balance due on these dealings, and the proof is properly applicable to, and sustains the declaration. Gore v. Buzzard, 4 Leigh 249.
Sec. 3298, Va. Code Construed — Account Filed as Defence with General Issue. — In Johnson v. Jennings, 10 Gratt. 1, it was held, in construing § 3298 of the Va. Code of 1887, enacting that, “In a suit for any debt, the defendant may at the trial prove and have allowed against such debt any payment or set-off which is so described in his plea, or in an account filed therewith, as lo give the plaintiff notice of its nature, but not otherwise,” that in the absence of such an account as contemplated by the statute, under the plea of nonassumpsit evidence will not be admitted to prove specific payment. Approved in Rich., etc., Co. v. Johnson, 90 Va. 777, 20 S. E. Rep 148.
VII. VARIANCE BETWEEN ALLEGATION AND PROOF.
1. WHEN MATERIAL.
Common Counts — Goods Paid for by Check. — Where an action of assumpsit is brought for goods sold and delivered, the declaration filed contains only the common counts, the bill of particulars is filed, and the only count in the declaration to which the evidence applied, was that for goods sold and delivered. If it is shown that the goods were absolutely paid for by a check, the demand upon the account is thereby extinguished, and there is no count in the declaration upon which the plaintiffs can recover. Blair v. Wilson, 28 Gratt. 165.
Qualification of Liability Must Be Noticed in Declaration. — Where the contract of the defendant, who is sued thereon in an action of assumpsit, contains as a part of it a provision qualifying his liability, the plaintiff in the declaration must notice such provision, or there will be a fatal variance. When this provision however in the written instrument is distinct from the clause on which the debt is charged, it is a matter of defeasance which should come from the other side. Simmons v. Insurance Co., 8 W. Va. 474.
Insurance — Omission to State Hour When Policy Began. — The declaration in an action of assumpsit brought on the insurance policy alleges that the policy was not in force “from the said 6th day of January 1870, until the 6th day of January 1871,” *110whereas the policy states, “from the 6th day of January 1870, at noon to the 6th of January 1871, at noon.” This is a material variance between the policy described and the policy produced. Simmons v. Insurance Co., 8 W. Va. 474.
Same — Declaration Must Conform to Requirements of Policy. — The declaration in an action of assumpsit on an Insurance policy states that the money was “to be paid to the plaintiff in sixty days after notice and proof of the same,” etc., while the policy states “the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proofs of the same made by the assured and received, at this office,” etc. This is a material variance. Simmons v. Insurance Co., 8 W. Va. 474.
Entire Consideration Must Be Stated. — In an action of assumpsit founded on special contracts to recover damages for the failure and refusal to perform the same, generally the entire consideration must he stated, and the entire act to be done in virtue of such consideration; and generally in actions on special contracts, if any part of the contracts vary materially from that which is stated in the declaration it will he fatal, as a contract is an entirety. In cases of such material variance, on motion of the defendant’s counsel the evidence of the plaintiff should he excluded from the jury, hut the variance must be manifest. James v. Adams, 16 W. Va. 245. See James v. Adams, 8 W. Va. 568.
Count of General Law Merchant — Days of Grace. — In an action of assumpsit brought on a hill of exchange drawn in Virginia, and payable at the bank of Marietta, Ohio, the declaration counted on the general law merchant, and the general issue was joined. Proof of presentation on the fourth day of grace does not support the issue on the plaintiff’s part, as the general law merchant requires presentation on the third day of grace. Jackson v. Henderson, 3 Leigh 196.
Value of Cattle before and after They Had Been Killed. —Where the declaration in assumpsit contained a special count, which alleged that the defendant was to pay the plaintiff the value of certain cattle before they had been killed, and the evidence showed that the defendant promised to pay for the carcasses thirty dollars a head, this was held to he a fatal variance. Davisson v. Ford, 23 W. Va. 617.
Description of Article Sold. — In an action of assumpsit on a contract for the purchase of a stock of goods, if there be a material variation, in describing the article sold, between the declaration and the proof, such variation Is material and fatal to the suit. James v. Adams, 16 W. Va. 245.
Contract Proven Must Be Some One Alleged. — It is clear that in an action of assumpsit against a party on a promise or contract made by him to pay the plaintiff a certain sum of money, recovery cannot he had, if the contract proven is not the one stated in the declaration, but a joint contract made by the defendant and another. This is a variance. Davisson v. Ford, 23 W. Va. 617.
Account Stated for $6oo — No Evidence Allowed to Prove One for $500. — If a declaration in assumpsit contains only the insimul computassent count, stated for $600, without a hill of particulars, the plaintiff cannot introduce evidence to prove an account stated for $500. Under the ruling of Minor v. Minor, 8 Gratt. 1, such evidence was properly excluded as irrelevant to the issue under the pleadings as they were. Mann v. Perry, 3 W. Va. 580.
No Recovery in Action on Negotiable Note unless Negotiable When Suit Is Brought —In an action of assumpsit brought upon a negotiable note, if a note when offered in evidence is not negotiable by the law of the state where the suit is pending, the plaintiff is not entitled to recover. Nichols v. Porter, 2 W. Va. 13.
Evidence Should Be Excluded if It Pails to Support Issue. — The defendant to an action of assumpsit plead the general issue. After the introduction of the plaintiff’s evidence, the defendant moves to exclude it from the jury on the ground of a material variance between the proof and the declaration. This should be done if it clearly appears that the evidence offered by the plaintiff fails to support the issue on his part. Dresser v. Transportation Company, 8 W. Va. 553.
Bill of Lading Should' Not Go to Jury ¡I Not Applicable to Any Count. — if the plaintifi declares in assumpsit against a common carrier, without regard to the special contract between them manifested by bills of lading, the latter, not being applicable to any of the counts in the declaration, ought not to he allowed to go to the jury as evidence in support of the same. B. & O. R. Co. v. Rathbone, 1 W. Va. 87.
2. WHEN IMMATERIAL.
Nonjoinder of Cocontractor Not Appearing in Declaration. — It is well settled that the nonjoinder of a cocontractor as a defendant cannot he taken advantage of under the general issue in an action of assumpsit, on the ground of a variance between the allegata and the probata, when the omission of the co-contractor does not appear on the face of the declaration. Wilson v. McCormick, 86 Va. 995, 11 S. E. Rep. 976. See Prunty v. Mitchell, 76 Va. 169.
Variance in Damages in Writ and Count. — In an action of assumpsit, the writ lays the damages at $500, and the count lays them at $600. For want of appearance a judgment was entered by default, and the jury assessed the damages. The variance between the writ and the count was held to he immaterial. Dabneys v. Knapp, 2 Gratt. 354.
What Variance in Name of Plaintiff Immaterial.— Where the writ states the initial letter of the middle name of one of two plaintiffs to he P, while the count in the declaration in assumpsit states it to be B, but in both the writ and the count the partnership name of the plaintiffs is given, the variance is immaterial. Dabneys v. Knapp, 2 Gratt. 354.
It is no variance between the writ and the declaration in assumpsit, if the writ states the first Christian name of the plaintiff by the initial letter, and the count in the declaration states the name in full. Dabneys v. Knapp, 2 Gratt. 354.
When Variance immaterial. — Where the declaration in an action of assumpsit states an agreement that the plaintiff would rent and furnish a house at X, and board the defendant and his clerks for so much each, and the agreement proved was that he would board the defendant and his clerks at X for the sums stated In the declaration, the variance between the averments and the proof is not material. Wroe v. Washington, 1 Wash. 357.
Omission of Word “Treasurer” Immaterial When Defendant Was Personally Liable. — The defendant as treasurer of a jockey club agreed to rent for its use a piece of ground from the defendant, and bound himself in writing to pay the rent. The plaintiff brought an action of assumpsit on the parol agreement, and gave in evidence the written agreement not under seal, corresponding with that stated in the declaration, except, that in the latter the de*111scription as “Treasurer” is omitted. The variance is not material, as he was personally liable, and it was unimportant to give him his title. McWilliams v. Willis, 1 Wash. 199.
Action on Contract Made by Agent for Disclosed Principal flay Be Brought against Principal — No Variance. —There is no variance between the allegation and. proof where the declaration alleges a contract with the defendant, and the evidence shows that it was made through an agent for his principal, the defendant, who was disclosed. The account filed in the case was against the defendant and the agent, and the plaintiff offered to strike out the agent’s name. But the defendants objected and this was not done, and for these reasons the decision that there was no variance was free from error. Richmond, etc.. Ry. Co. v. New York, etc., Ry. Co.. 95 Va. 386, 28 S. E. Rep. 573.
Date of Presentment of Note Stated under Scilicet Not Material. — in a declaration in assnmpsit on a bill of exchange, brought by the holder against the endorser, it was alleged that it was presented for payment, “when the bill became due and payable according to the tenor and effect thereof, to wit, on the 27th of December 1816. at the bank of Marietta in Ohio,*’ where it was payable and dishonored. The 27th of December was not the third but the fourth day after time of payment, but as it was averred that the bill was presented when it became due and payable according to its tenor and effect, and the date of the presentment was stated under a scilicet, the date stated was not material, and the plaintiff might have proved presentment on the third day of grace. Jackson v. Henderson, 3 Leigh 196.
Date of Judgment Not Material When Question of Time Was Not Involved. — When a declaration in assumpsit alleges that a certain judgment was rendered on the 30th of May 1870, and the record produced shows that it was rendered on the 31st of May 1870, it was objected that the record was inadmissible for this variance. The variance was held not material as the question involved was not when it was rendered, but whether it had been rendered. Sayre v. Edwards, 19 W. Va. 352.
Omission of One Commissioner in Order of Court Immaterial Where Three Were Appointed. — The declaration in an action of assumpsit brought against a county by a contractor for the price of building a jail, states that the county court appointed three commissioners to let out the building of the jail, and names the commissioners. The order of the county court offered in evidence by the plaintiff only names two of them. This was held no material variance and the order was admitted in evidence. Carroll County v. Collier, 22 Gratt. 302.
Consideration — Written Promise Not Mentioning It Admissible. — The plaintiff in his declaration in assumpsit brought on the promise of the defendant to pay the debt of another alleges a particular consideration, A written promise of the defendant which was produced in evidence, contained no mention in the consideration. This was no variance between the allegata a.ndprobata, as the written promise is proper evidence and the consideration may be proved by evidence aliunde. Colgin v. Henley, 6 Leigh 85.
Allegation of Credit Required and Proof of Note Given Will Not Prevent Recovery. — If the declaration in an action of assumpsit on a contract for the sale of property alleges that the defendant was required to pay a certain sum in cash and the balance on a certain credit, and the evidence shows that the defendant was required to pay the stated sum in cash and was to give his note for the balance, this is not a sufficient variance to destroy the right of the plaintiff to recover. James v. Adams, 16 W. Va. 245.
VIII. VERDICT.
1. FORM.
General Verdict Assessing Entire Damages on Several Counts Not Erroneous, — A general verdict in assumpsit, which assesses entire damages on several counts, none of which are defective, is not erroneous. Buster v. Ruffner, 5 Munf. 27.
In Current Money. — in an action of indebitatus ussu-nvpsit for a certain sum in pounds sterling of the value of a certain sum in current money of Virginia, for so much advanced by the plaintiffs to F. and S. at the request of the defendant, the damages were laid in current money. The verdict by the jury in current money was correct. Barnett v. Watson, 1 Wash. 372.
When It Pursues the Issue. — After the plea of non-ass-umpsit, the verdict of the jury that the defendant has not paid the debt and assessing damages occasioned by the nonperformance of that assumpsit, substantially pursues the issue. Barnett v. Watson, 1 Wash, 372.
On Good Cause of Action — Motion to Arrest Judgment Overruled. — Where a good cause of action is set out by a declaration in assumpsit, and no objection is made to the form or substance of the verdict, a motion in arrest of judgment by the defendant will be overruled. Travis v. Peabody Ins. Co., 28 W. Va. 583.
2. OPERATION AND EFFECT.
Omission of Facts Necessary to Plaintiff’s Recovery Not Cured by Verdict. — Where matters which are collateral to the fact in issue, and necessary to the right of the plaintiff, are omitted in the pleadings, they cannot be presumed to have been proven, and therefore their omission could not be cured by verdict at common law. Bailey v. Clay, 4 Rand. 346.
Money Counts Presumed Proved. — If in an action of assumpsit on an inland bill of exchange, there be two money counts in the declaration, and the court gives an improper instruction to the jury with regard to the bill of exchange, after verdict it will be presumed that the money counts were proved, where the bill of exceptions to the instruction does not state there was other evidence. Willock v. Riddle & Co., 5 Call 358.
Misjoinder of Issue Cured. — It being stated in the record that issue was joined, the fact that there was. a misjoinder of the issue is cured after verdict in an action of assumpsit by the statute of jeofails. Moore v. Mauro, 4 Rand. 488.
A misjoinder of issue upon a plea of payment in an action of assumpsit, where the plaintiff could not reply anything to this plea, except what had been alleged in his declaration, the blunder in the making of the issue, would have been cured after verdict by the statute of jeofails. Douglass v. Central Land Co., 12 W. Va. 502. See Moore v. Mauro, 4 Rand. 488; Southside R. Co. v. Daniel, 20 Gratt. 344; Simmons v. Trumbo, 9 W. Va. 363.
Failure to Allege Performance of Condition Cured. —In the declaration in an action of assumpsit founded on an agreement for sale and conveyance of property, the failure to allege the performance of a precedent condition will be cured by verdict. Bailey v. Clay, 4 Rand. 346.
Plea of “Not Guilty” Cured. — If to a declaration charging a tort, with an assumpsit upon it, the *112defendant pleads not guilty, it will be good after verdict, notwithstanding the double aspect of the declaration, and the irrelevancy of the issue of the assumpsit. King v. McDaniel, 4 Call 451.
Omission of Gist of Action Not Cured. — Only that which must have been necessarily proved from the matter stated in the declaration will be presumed after verdict, and therefore the total want of an averment of a fact, which constitutes the gist of the action, will not be cured after verdict by the statute of jeofails. Chichester v. Vass, 1 Call 83, 1 Am. Dec. 509.
Omission of Names of Partners Cured. — On the authority of Murdock v. Herndon, 4 H. & M. 200, and Totty v. Donald & Co., 4 Munf. 430, it seems that a verdict will cure the defect in a declaration in assumpsit on behalf of a mercantile company, brought by the name of the firm and omitting to mention the names of the partners.
When Omissions of Averments Cured. — The declaration in an action of assumpsit upon a marriage promise, by which the defendant agreed to give the plaintiff, if he should marry his granddaughter, as much of his estate as he should give. to any of his own children, should state the quantity and quality of the estate given by the defendant to his own children, and when the gifts were made. A verdict, if rendered, might cure the omission of such averments, but it will not do so where all the pleadings are defective. Smith v. Walker, 1 Wash. 135.
3. FOR EXCESSIVE AMOUNT.
Excess of Damages over Amount in Declaration May Be Released. — Since the act of January 20, 1804, as explained and amended by the act of January 29, 1805, if the jury in an action of assumpsit find for the plaintiff a larger sum than the amount of damages laid in the declaration, with interest from a day fixed in their verdict, the plaintiff may release the surplus, beyond that amount, and take judgment for the balance, with interest as aforesaid. Cahill v. Pintony, 4 Munf. 371.
4. WHEN SET ASIDE.
Against Two Jointly for individual Items. — On trial of an action of assumpsit against two defendants jointly containing the common counts, a bill of particulars was filed as an account against both of them. The evidence under nonassumpsit shows that some of the items in the bill of particulars are against the defendants individually. A verdict can only be found on the items in the account which are charges against the defendants jointly. This is not a case within the 19th § of ch. 131 of the W. Va. Code, and the verdictbeing against both for items against them individually, it will be set aside. Enos v. Stansbury, 18 W. Va. 477.
In Favor of Defendant Not Appearing. — An action of assumpsit is brought against two defendants jointly, and a writ of inquiry of damages was awarded against them. Only one appeared and set aside the office judgment and pleaded nonassumpsit. Issue was joined and a verdict was found for both of the defendants. The court overruling a motion for a new trial entered up judgment in favor of both defendants without executing a writ of inquiry against the other defendant. It was clearly erroneous to give a verdict in favor of a defendant who had not appeared, and the verdict of the lower court was set aside. Enos v. Stansbury, 18 W. Va. 477.
When No Issue Joined on Plea. — To an action of assumpsit the pleas of nonassumpsit and the act of limitations were filed. To the first plea plaintiff replied generally, and specially to the second, but the defendant put in no rejoinder. In the transcript of the record it was said that a jury was impanelled to try the issues joined. But the court of appeals decided that no issue was joined on the second plea, and therefore a verdict for the plaintiff be set aside and a new trial directed. Totty v. Donald & Co., 4 Munf. 430.
Variance between Declaration and Agreement Proved. — Where a declaration in assumpsit charges a common carrier for loss or damage in general terms, and an agreement is proved which shows that the transportation was at the plaintiffs risk, thus imposing a different liability from that charged, and a verdict is rendered against the defendants, it should be set aside and a new trial granted because of the variance. B. & O. R. Co. v. Rathbone, 1 W. Va. 87. See sec. V, supra,
IX. JUDGMENT,
1. FORM.
In Actions against Executors. — In an action of assumpsit by a legatee against an executor for a legacy, one count in the declaration alleges a promise made by the defendant, as executor, to pay the legacy. This is a count against the executor in his representative capacity, upon which the judgment can only be de bonis testatoris. Kayser v. Disher, 9 Leigh 357.
Same. — In an action of assumpsit against executors for money had and received by them to the plaintiff’s use, it seems that the judgment should be de bonis propriis, and not de bonis testatoris. Martin v. Stover, 2 Call 514.
2. IN JOINT ACTIONS.
Common-Law Rule — Statutory Modification. — The common-law rule that in a joint action against several parties there can be but one final judgment, and it must be for or against all the defendants, is the same whether the contract be joint, or joint and several, or whether it is founded on several and distinct contracts. Steptoe v. Read, 19 Gratt. 1; Gibson v. Beveridge, 90 Va. 697, 19 S. E. Rep. 785. See also. Taylor v. Beck, 3 Rand. 316; Moffett v. Bickle, 21 Gratt. 280; Muse v. Farmers’ Bk., 27 Gratt. 252. For statutory provision for the recovery of money by motion from any number of those liable in a joint contract, see § 3212 of the Va. Code of 1887.
The common-law rule above mentioned has been modified by statute, which provides that in such an action the plaintiff may have judgment against any other or others from whom he would have been entitled to recover had he sued them only, although he may be barred as to one or more of them. Va. Code 1887, § 3295. But in an action of assumpsit where the only plea was a joint one of nonassumpsit, and the plaintiff dismissed the suit as to one of the defendants, and there is nothing on the record which shows that the defence was merely personal to the defendant as to whom suit was dismissed and did not concern his codefendant, the statute has no application and it is not an error to refuse to allow an amendment to the -declaration. Gibson v. Beveridge, 90 Va. 696, 19 S. E. Rep. 785.
When One Proves Defence to Foundation of Entire Action. — In an action of assumpsit against two defendants on a contract, although one of them confesses judgment, yet if the other proves a defence, which goes to the foundation of the entire action, there must be a final judgment in favor of both defendants. Steptoe v. Read, 19 Gratt. 1.
*113When One Defendant Defends after Suit Was Abated as to Him. — An action of assumpsit was instituted, against a firm, one member of which appeared and plead nonassumpsit. Afterwards another member of the firm, against whom the suit had been entered abated, entered himself a defendant, and without filing a plea, united in defending the action. A judgment entered against the two is proper, as they did not discover by plea in abatement who the other partners were. Barnett v. Watson, 1 Wash. 372.
Against One after Suit Abated as to Other. — In an action on the case in assumpsit brought against two partners to recover a partnership debt, the writ was executed on only one, and as to the other it was returned “no inhabitant of the city,” and the suit was entered abated as to him. Though the declaration charges that the defendant assumed with another, a fact which as to that other is not tried, yet this does not vitiate the defendant’s assumpsit which found against him, and the judgment against one partner on the joint contract is not erroneous. If the defendant wishes to take advantage of the omission to .sue both, he should have pleaded in abatement and pointed out the other partner. Brown v. Belches, 1 Wash. 8.
3. WHEN VALID.
Court Has Jurisdiction — No Affidavit as Required by Statute. — Sec. 3386 of the Va. Code provides that when in an action of assumpsit for money, an affidavit is filed with the declaration, stating that the amount claimed is justly due, etc., no plea in bar shall be received unless supported by an affidavit. Where in an action of assumpsit the plaintiff has proceeded in accordance with this statute and the defendant has not filed his plea of nonassumpsit with affidavit, which is stricken out and a subsequent plea with affidavit is rejected, final judgment for the plaintiff is not void as the court had jurisdiction of the parties and the subject-matter. Grigg v. Dalsheimer, 88 Va. 508, 13 S. E. Rep. 993.
Demurrer Improperly Sustained — No Injury to Plaintiff. — Where there are common counts in a declaration, and a special count be included, all the facts alleged in which could be as well proven by the plaintiff under the common counts, and the court improperly sustains a demurrer to such special count and the record shows that at the trial of the case the plaintiff sustained no injury by reason of the court sustaining the demurrer to the special count, the appellate court will not reverse the judgment below because of such error. Moore v. Supervisors, 18 W. Va. 630.
Improper Evidence Admitted. — In an action of assumpsit for various sums of money lent to or paid for the defendant's intestate the issues being on nonassumpsit, and the statute of limitations, and the verdict being for the defendant alone on the latter plea, the admission of improper evidence having reference to the issue on the first plea only, and which could have no influence on the issue on the last plea, is not ground for reversing the judgment. Johnson v. Jennings, 10 Gratt. 1.
Demurrer Improperly Overruled — Judgment in Other Court. — To a declaration in assumpsit containing two counts the defendant pleaded the general issue and afterwards filed two additional pleas to the first count. On demurrer to the pleas the lower court held them good and entered judgment for the defendant on the first count. Subsequently the issue tried on the second count, and verdict and judgment were rendered for the defendant on that count. The appellate court held that while there was error in overruling the demurrer, defendant was entitled to the benefit of the verdict and judgment on the second count. Dunn v. Price, 11 Leigh 203.
On Demurrer Plaintiff Proved Not Entitled to Recovery.— When the defendant to an action of assumpsit demurs to the evidence, and by demurrer shows that the plaintiff ought not to recover, the court cannot set it aside and award a new trial, but ought to enter judgment for the defendant. Knox v. Garland, 2 Call 241.
4. WHEN INVALID.'
No Issue — Trial by Court. — There were two pleas filed by the defendant to an action of assumpsit, one the general issue, and the other the plea of the statute of limitations, on neither of which was issue joined. The trial was held before the court instead of the jury, under § 38, ch. 162, Code of Va. 1860. Judgment was rendered for the plaintiff. The court occupied precisely the relation to the case a jury would have done, and trial without issue joined is erroneous in either case. Balt., etc., R. Co. v. Faulkner, 4 W. Va. 180.
Same — No Plea Filed. — It is not an error to set aside a judgment given in an action of assumpsit where no plea has been filed, and no issue made up. Johnson v. Fry, 88 Va. 695, 12 S. E. Rep. 973, 14 S. E. Rep. 183.
In New Trial Not in Accordance with Conditions.— A new trial is granted to the defendant in an action of assumpsit on condition that he pay the costs of the first trial, and agree that any future trial be tried solely by the issue already made up by nonassumpsit, without any additional plea. On trial of the cause in another court the defendant on motion is permitted to file another plea. This cannot be granted and the judgment will be reversed, and the cause sent back to be tried on nonassumpsit, or any new matter which has occurred since the new trial was granted. Prunty v. Mitchell, 30 Gratt. 247.
On Erroneous Instructions. — in an action of assumpsit brought upon a paper, purporting to be a bill of exchange, but which is not a bill of exchange, and which does not import a valuable consideration, nor a promise by the drawer to the payee to pay, if the money is not paid by the drawee, the court instructed the jury that they might infer a consideration moving from the plaintiff to the defendant. The court erred and the judgment will be reversed, as the jury could only regard it as their duty to make the inference, and hence peremptory upon them, regardless of the weight of evidence. Averett v. Booker, 15 Gratt. 163.
In an Action against Intermediate Number of Obligors in a Bond. — The action of assumpsit on a joint and several bond must be brought either against all the obligors generally, or one of them singly, and not against any intermediate number. If an error in this respect appears on the record, the judgment will be reversed, notwithstanding such error was not pleaded in abatement. Leftwich v. Berkeley, 1 H. & M. 61.
In an Action When No Consideration Laid. — in an action of assumpsit, if no .consideration for the promise be laid in the declaration, judgment ought to be arrested, notwithstanding it be founded on a written agreement. Moseley v. Jones, 5 Munf. 23. See Hall v. Smith, 3 Munf. 550.
On Demurrer without Trial of Issue. — Where issue was joined in an action of assumpsit on the plea of *114the general issue, two special pleas were filed by the defendant, to which the plaintiff demurred. It was an error for the court to overrule the demurrer and give final judgment for the defendant, as no final judgment should have been given without the issue on the plea of nonassumpsit having been tried, or otherwise disposed of. Morgantown Bk. v. Foster, 35 W. Va. 357, 13 S. E. Rep. 996. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481433/ | *ALLEN, J.
The appellant entered a caveat in the Circuit court of Carroll against the issuing of a grant to the appellee. The caveat rests upon the ground of the better right in the cav.eator to the land-surveyed. Unless he can show such better right, the judgment in favor of the caveatee must be affirmed, though it might appear that as against a party showing a right his entry and survey were defective.
It appears from the facts found by the jury, that the land embraced by the entry and survey of the caveatee lies within the boundaries of a grant to Thomas Ruston and John D. Blanchard, dated the 11th December 1795. That, on the 5th September 1795, the said Thomas Ruston conveyed the whole tract to his son Thomas Ruston, Jr., and two daughters, Mary and Charlotte Ruston, which deed appears upon its face to have been merely voluntary. It contains no covenant of warranty, and it bears date and was acknowledged before the emanation of the grant. On the 12th of June 1839, the commissioner of delinquent and forfeited lands for Grayson county made a report to the judge in vacation, of lands forfeited to the Giterary fund for the nonpayment of taxes charged thereon, and for the failure to enter them on the books of the commissioner of the revenue for said county; which report being examined was affirmed, and ordered to be recorded ; and the commissioner was directed to proceed to sell the several tracts of land mentioned in the report. Amongst those tracts is one moiety of the tract granted to Ruston and Blanchard, re*115ported in the names of Mary and Charlotte Ruston (the two daughters of Thomas Ruston), and the other moiety in the name of Thomas Ruston. On the 5th of September 1839, the commissioner returned to said court his report of sales made in pursuance of the order of the judge aforesaid, from which it appeared that the two tracts reported in the names of Mary and Charlotte *Kuston, and of Thomas Ruston, had been exposed to sale, and had been purchased by R. Raper, D. Graham and F. Allison. No further order seems to have been made by the court in the premises after the return of the report of sales. The 8th section of the act to amend and explain the laws concerning western land titles, and for other purposes, passed March 30, 1837, Sess. Acts, page 9, provided that it should be the duty of the court, by whose order the sale was made, to direct its commissioner to convey to the purchaser, who should have paid up the whole amount of the purchase money. But such order of the court was rendered unnecessary by the act concerning delinquent lands, passed March 15, 1838, Sessions Acts, page 16; the 9th section of which authorizes the commissioner to receive the purchase money, and provides that the purchaser shall be entitled to his deed for the land so purchased and paid for, upon application to the commissioner. On the 19th of November 1840, the commissioner, professing to act under the authority of said proceedings, made a deed to a certain George Walton for the use of and in trust for Francis Allison, sr., and for all persons holding an interest in the Wythe lead mines, and now operating under the name and style of the Wythe lead mines companj’’. The deed recites the proceedings, the sale made in pursuance thereof, of one of the tracts in the names of Mary and Charlotte Ruston, for the nonpayment of taxes charged thereon, the other in the name of Thomas Ruston, forfeited for non-entry on the commissioner’s books; that F. Allison, sr., and the persons having an interest in the lead mines became joint purchasers according to certain proportions, which are specified, and the parties named; and the purchase money having been paid, and the purchasers having expressed a desire, in order to promote their convenience, that the legal title should be made to Walton *for the use and benefit of Allison, and the persons having an interest in lead mines, the said Walton being one of those described as having an interest, the commissioner proceeds to convey the land to Walton in trust for Allison, and the persons having an interest in the lead mines, in the proportions before named and described. D. Graham, who, by the commissioner’s report of sales, appears to have been one of the joint purchasers, is not named in the deed, nor does it appear what has become of his interest. These are all the facts touching the right of the caveator; nothing is found respecting the possession of the premises, or whether any person has ever entered under the Ruston and Blanchard patent. Nor does it appear what has become of the interest of Blanchard in the land granted. If the caveator could connect himself with the patent ‘of Ruston and Blanchard, then although it might appear he was but a tenant in common of an undivided interest in the land; such interest would perhaps be sufficient' to authorize him to enter a caveat against the issuing of a grant upon a survey of part of the land embraced within the limits of the grant. No partition having been made setting off his individual share, his interest in the whole would constitute such a better right as to entitle him, for the benefit of himself and cotenants, to resort to a caveat to prevent the emanation of a grant to á subsequent locator, who had entered the same as waste and unappropriated land.
But in this case it seems to me the caveator has utterly failed in connecting himself with the Ruston and Blanchard title. The commissioner to make sales under the delinquent land laws, under which these proceedings were had, has no interest in thé subject of sale. He acts like a commissioner to make sales under a decree of the Chancery court, and is clothed with a *mere naked authority. Having no, interest in the land conveyed, the deed of the commissioner could avail nothing where his authority to make it did not appear, unless there had been such a long acquiescence and possession under the deed as to justify a presumption in favor of the deed, as was the case in Robinett v. Preston, 4 Gratt. 141. In this case no such presumption can be raised. The caveator has rested his right upon the deed and the proceedings which led to it. In such a case, and as against a stranger setting up an adverse claim to the title asserted, the recitals in the deed are no evidence. Carver v. Jackson, 4 Peters’ R. 1, 83; Wiley v. Givens, 6 Gratt. 277. In the case of Masters v. Vaner, 5 Gratt. 168, a decree of the Chancery court and the marshal’s deed were offered in evidence. The decree did not describe the specific land directed to be conveyed ; but it was described with sufficient certainty in the deed. This court held that the recitals in the marshal’s deed were no evidence as against a‘ third person asserting an adverse claim, of the authority of the marshal to convey the specific tract; and that as the decree left it uncertain, it was necessary to produce the whole record, or so much thereof as would show that the land conveyed was the land embraced in the suit, before the deed could be used as evidence. In the case under consideration, the report of sales set out that Raper, Graham and Allison were the purchasers. By the 8th section of the act of March 30, 1837, it was the duty of the court to direct the commissioner to convey to the purchasers upon the payment of the purchase money; and the 9th section of the act of 15th March 1838 declares that the purchaser shall, on application to the commissioner, be entitled to his deed upon the payment of the purchase money. By each act the authority of *116the commissioner is limited to a conveyance to the purchasers. *The deed in this case is to a stranger, if regard be had to the record of the proceedings, which are relied on as authorizing the commissioner to convey. The name of Walton nowhere appears as purchaser, or as having any interest in the subject. The recitals of the deed must be looked to as furnishing evidence, not only of his authority to make the deed to a stranger to the proceedings, but also of his authority to make it to him as trustee for himself and others, according to certain proportions therein named. But the conveyance does not show, even by way of recital, what disposition has been made of thé interest of D. Graham, one of the joint purchasers, or why his name has been omitted. But for the recitals it would be a conveyance by an officer vested with a naked authority, undertaking to convey to a person having no connection with the proceedings from which he derived his authority, and who does not appear, from any legal evidence as against the caveatee, to have had any interest in the subject. The deed aloné would not preclude the persons who purchased at the sale from calling for a proper deed. The apparently unauthorized act of the commissioner could not destroy théir rights. Were they before the court, or had the caveator established a right to claim under the sale by the commissioner, the regularity of that sale and the interest which passed by it would be proper subjects of enquiry. The sale being in the names of the' children of Thomas Ruston, it would be necessary to ascertain the effect of the deed to them. And the sale having been made of the entire tract, a question might arise-, which has been discussed in other cases, whether all interest forfeited to the commonwealth, either in the name of the person reported by the commissioner, or of any other persons, passed by such sale to the purchaser. But as the caveator has failed to show, by legal evidence, any ^right whatever to the land surveyed, or any portion of it, even supposing the sáfe to have been regular, and to have entitled the purchasers upon procuring their deed to the land sold, the judgment in favor of the caveatee should, I think, be affirmed with costs.
DANIEL and LEE, Js., concurred in the opinion of Judge Allen.
MONCURE, J., dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481437/ | SAMUELS, J.
Joseph McReynolds, by his last will, devised that his wife Rebecca McReynolds, during her life, should' have the use and profits of all Bis real estate, as a home and support for her during her life, and, after her death, to pass unencumbered in absolute fee simple to his son Isaac, who is the appellant here. The personal estate, after payment of his debts, the testator directed to be divided into eight equal shares, one of which he gave to each of his seven living children, and one to the children of a deceased son. The widow waived and renounced the provision made for her by the will of her husband, and claimed her dower in the real estate, and her distributive share in the personal estate, as if her husband had died intestate. After this renunciation, the widow’s dower not having been assigned to her, she continued for some years to occupy the land. 1 Rev. Code, ch. 107, § 2, p. 403. A bill was then filed by some of the children of Joseph McReynolds for the purpose of assigning the widow’s dower, and making partition of the other two-thirds, and seeking an account of the rents and profits thereof. The Circuit court approving the principles asserted in the bill, by its decree directed *131an assignment of one-third of the real estate as dower; a partition of the two-thirds into eight parts among the eight children of Joseph McReynolds or their heirs or vendees, and an account of the rents and profits of the two-thirds from the time of the waiver and renunciation. Prom that decree an appeal is taken to this court. I am of opinion the Circuit court erred in its decision *in regard to the rights of the parties as created and defined by the will of Joseph McReynolds, and as subsequently varied by the waiver and renunciation of Rebecca McReynolds the widow. The true construction of the will gave to Rebecca McReymolds an estate for life in all the testator’s land, with remainder in fee to Isaac McReynolds. The waiver and renunciation placed the widow in precisely the same condition she would have occupied if her husband had died without a will. She had the right to occupy the mansion house and land belonging thereto without rent, until her dower was assigned. In this case the only land owned by the testator was the land belonging to the mansion house. She might occupy the land herself, or allow another to do it for her. It was, therefore, error to direct an account of rents and profits whilst it was so held either by her or by Isaac McReynolds with her permission. After the waiver and renunciation the widow became entitled to a distributive share of one-third of the personal estate after payment of funeral expenses and just debts, and to dower in one-third of the real estate. 1 Rev. Code, ch. 104, § 26, p. 381; 1 Rev. Code, ch. 107, § 11, p. 403. The remaining two-thirds, as a consequence of the waiver, would have passed at once into the possession of the remainderman, if no equity attached in favor of other persons. 6 Bac. Abr. title Remainder and Reversion, letter G., p. 756, 7 and 8; 2 Rolle’s Abr. 415, pl. 4, 5, 6, 7, 9; Moor’s Reports 519. The widow, by her renunciation of the will, disappointed the legatees to the extent of one-third of their respective legacies; by her waiver she gave up a life estate in two-thirds of the real estate. Ramiliar principles of equity authorize and require courts of chancery jurisdiction to sequestrate the property thus given up, and appropriate its profits to indemnify the legatees for their disappointment. Kinnaird’s ex’or v. Williams’ adm’r, 8 *Leigh 400; Dillon v. Parker, 1 Swanst. R. 359; Gretton v. Haward, 1 Swanst. R. 409. The widow in this case having asserted her rights in opposition to the will, the interests which the will attempted to confer on her should be applied to indemnify the legatees for their loss, if any, consequent upon her taking a distributive share of the personal estate. The general rule, if allowed- to prevail in this case, would require the sequestration of Rebecca McReynolds’ life estate in the two-thirds of the land until the avails might indemnify the disappointed legatees, and then allow her to enjoy them until her death. The case before us, however, is withdrawn from the operation of the general rule by the statute, which puts an end to all her interest under the will, when she waived its provisions. After the legatees shall have been indemnified for their disappointment, the two-thirds should pass into the hands of Isaac McReynolds, the remainderman.
Applying these principles to the case, I am of opinion to affirm so much -of the decree as directs the assignment of dower to Rebecca McReynolds; to reverse so much of it as directs an account of the rents and profits of the remaining two-thirds of the land, and as directs a partition thereof amongst the heirs of Joseph McReynolds, with costs to the appellant; to remand the cause to the Circuit court with directions to ascertain to what amount, if any, the legatees in Joseph McReynolds’ will have-been disappointed by the renunciation of. the widow, and to cause the rents and profits during Rebecca McReynolds’ lifetime, of two-thirds of the land to be applied as far- as may be necessary to indemnify those 'legatees ; and after full indemnification to the legatees, or after Rebecca McReynolds’ death, whichever shall first occur,to place the land in the hands of Isaac McReynolds. *The decree was as follows: - It seems to the court here, that so much of the decree of the Circuit court.‘as directs an assignment of dower to Rebecca McReynolds in the estate of her late husband, Joseph McReynolds, is correct. But it further seems to the court here, that there is error in that part of the decree which directs an account of the rents and profits of the remaining two-thirds of Joseph McReynolds’ land, and which directs partition thereof. It is therefore adjudged, ordered and decreed that so much of said decree as is hereby declared to be correct, be affirmed; and so much of it as is declared to be erroneous, be reversed and annulled; and that the appellees pay to appellant his costs expended in prosecuting his appeal here. It is further adjudged, ordered and decreed that the cause be remanded to the Circuit court, with directions to ascertain to what amount, if any, the legatees named in Joseph McReynolds’ will, have been disappointed by the renunciation of , the widow; and that for a period not exceeding the lifetime of Rebecca McReynolds, the rents and profits of the two-thirds of .the land left, after assigning dower, be..taken under the control of the court, and applied to indemnify the legatees for such .disappointment. After indemnification to the legatees, or after the death of Rebecca McReynolds, whichever shall first occur,,it is further adjudged and ordered that the land be placed in the hands of Isaac McReynolds, the remainderman. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481438/ | DANIEL, J.
The case turns on the effect of the sealed memorandum of the 8th April 1847 endorsed on the bond. In the written notes of argument filed by the counsel of the respective parties, it is ’ contended on the part of the plaintiff in error, that the memorandum constitutes a new agreement wholly distinct from the bond of submission, and that the remedy for any failure to keep it is by an action of covenant on the agreement, and not by a suit on the bond; and, as authority in support of this position, the cases of Freeman v. Adams, 9 John. R. 115, and Brown v. Goodman, in a note to 3 T. R. 592, are referred to. Whilst, on behalf of the defendant in error, it is contended that the memorandum is to be considered, by relation to the date of the bond, as constituting part of the condition, and that the proper remedy for a breach is that which has been pursued, to wit: suit *on the bond; and the cases of Shermer v. Beale, 1 Wash. 11, and Gordon v. Frazier, 2 Wash. 130, are cited as showing that the latter construction is in accordance with the decisions of this court.
The case of Freeman v. Adams, it must be admitted, is a direct authority in support of the views of the appellant. It will be seen, however, on an examination of the opinion of the court in that case, that it rests entirely on the case of Brown v. Goodman, mentioned above, and the case of Evans v. Thomson, 5 East’s R. 189. And, in the case of Creig v. Talbot, 2 Barn. and Cres. 179, 9 Eng. C. L. R. 56, which was similar in all its features to that of Freeman v. Adams, Brown v. Goodman and Evans v. Thomson were very fully reviewed, and shown to furnish no authority for the proposition that an action could not, in such case, be maintained on the bond. The declaration in the case of Creig v. Talbot, after setting out the condition of the bond, stated that before the time therein limited for the making of the award had expired, the parties, by a deed endorsed on the back of the bond, agreed to give the arbitrators further time for making the award, and that an award was made within the extended time; and alleged nonperformance. Upon demurrer, the court were unanimous in holding that the action was maintainable. The judges in delivering their opinions, said that the legal effect of *133the endorsement was not to drive the par+y to his action on that, but to vary the day mentioned in the condition of the bond, and to introduce as a term into that condition the extended period of time for making the award; that it was not the purpose of the parties to substitute the second deed in lieu of the bond, as a new and independent agreement of reference, but merely to vary the defeasance or condition, and to keep the bond in force as a subsisting security. Bay ley, J., said that the case was clearly distinguishable from Brown v. *Goodman, because there the submission was by deed, and it did not
appear that the consent to enlarge the term was by deed; and he might have also added, that it did not appear that such consent was endorsed on the deed. Evans v. Thomson, he proceeded to show, instead of being authority against the right to maintain the action on the bond, was a strong case in its favor. Upon the authority of that case, the deed endorsed on the bond, he said, might be considered as virtually incorporating in it all the antecedent terms contained in the condition of the bond (with the alteration of the time within which the award was to be made), and might then be treated as a defeasance to the bond substituted in lieu of the original condition; and that the endorsement did not affect the bond as a security for the performance of the award, but only subjected it to a new defeasance. This decision was followed by the Supreme court of New Hampshire in the case of Brown v. Copp, 5 N. H. R. 346. The same doctrine also prevailed in the case of Penman v. Gardner, 1 Brevard’s R. 498, decided by the Constitutional court of South Carolina.
It will be seen that Creig v. Talbot differs from Shermer v. Beale, in this : that whilst, in the first mentioned case, the endorsement is held as incorporating the antecedent condition of the bond, and thus constituting in the whole a new defeasance, in the last it was held, in the language of the court, that ‘‘the endorsement is to be considered as incorporated with, and as part of the condition of the bond, so as to constitute one entire agreement, and to be taken by relation to the date of the bond, so as to bring it within the original rule. ” The effect of each decision on the precise question before us is, however, exactly the same. For, whether we regard the endorsement as drawing to it the original condition, and making a new defeasance, or, by the fiction of relation, treat the *endorsement as incorporated into the condition, in either case the original condition and the endorsement, as modified the one by the other, must be read as one entire agreement; and the bond still stands as a security for its performance.
The principles of Shermer v. Beale have been recognized by this court in the case of Gordon v. Frazier, 2 Wash. 130, and also in the case of Stone v. Hansbrough, 5 Leigh 422, and may be now regarded as well settled law in this state: And they seem to me to rule this case. I think the judgment ought to be affirmed.
The other judges concurred in the opinion of Judge Daniel.
Judgment affirmed, but without damages, the petition for the supersedeas having been presented before the 1st of July 1850, though not granted until after that date. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481567/ | Samuels, J.
The action of debt will lie only for a-sum certain, or which may be rendered certain. Upon the argument of this case it seemed to me that the paper writing upon which the- suit is brought cannot be construed into an admission of indebtedness in the sum of one thousand one hundred and thirty-seven dollars and thirty-five cents, nor into an acknowledgment of being bound to the supposed obligee in that *121amount j nor into a promise or obligation to pay that amount. That all that is written therein is perfectly consistent with the fact that Davis was not indebted to Mead in any amount whatever. Subsequent reflection and investigation have confirmed my first impressions, and I am of opinion to reverse the judgment, and enter judgment for the plaintiff in error upon the demurrer, for that the writing set out upon oyer imposed no obligation upon Thomas Davis, the plaintiffs’ intestate. The court here, of four members, being equally divided in opinion on this question, the judgment of the Circuit court thereon cannot be reversed for the supposed error in the decision thereof.
Holding, then, for the purposes of this case, that the action of debt is well brought on this paper, it remains to consider whether it is counted upon in the declaration according to its legal effect. In order to decide this, we must look to the whole paper, commencing with the words “ A list of rents,” &c. and ending with the word “ Seal,” and the scroll annexed to the name of Thomas Davis. The legal effect of all this, as the declaration alleges, is to bind Thomas Davis in his lifetime, and his administrators after his death, to pay Hannah Mead one thousand one hundred and thirty-seven dollars and thirty-five cents, as and for a debt of that amount; and to estop the obligor and his representatives from' alleging that the debt was more or less ,• yet the paper on its face contains the reservation for the benefit of either party, that “in the foregoing statement all errors to be corrected.” This seems to be an affirmation that errors did exist in the process by which the balance of one thousand one hundred and thirty-seven dollars and thirty-five cents was arrived at; or, at least, that errors might exist therein. If error did exist, by the terms of the obligation it was to be corrected; and this reservation applies to every entry upon the statement by which the amount of one *122thousand one hundred and thirty-seven dollars and thirty-five cents might be affected; for instance, to ■ the first entry: “ 1816 — Jeremiah Adams — Rent per annum, $ 80 ; money received, $ 80.” If, in fact, the rent had been one hundred dollars, and had been received, the sum of twenty dollars should be added to the one thousand one hundred and thirty-seven dollars and thirty-five cents; so, if money entered upon the statement had been paid over to the obligee, it is error to retain it in the statement so as to require it to be paid a second time. Thus the reservation may be made to enure to the benefit of the plaintiff, by averring in the declaration errors in the statement to her prejudice, and proving them at the trial; so the defendants, by. pleas averring specific errors in the entries, or any of them, or any omissions to the prejudice of the obligor, and proving them on the trial, will secure the benefit of the reservation. A bond which contains a substantial provision for the relief of parties thereto, as above stated, is not identical in legal effect with a simple bond for payment of money absolutely, and by estoppel preventing any allegation from either party to vary the amount. There is such a variance between the bond declared on and that set out upon oyer, that the demurrer should, for that cause, have been sustained.
I am of opinion to reverse the judgment, and remand the cause, with directions to the Circuit court to permit the plaintiff below, upon terms prescribed by law, to amend her declaration, by inserting averments either that no error existed requiring correction, or that error did exist to be specified in the averments; and giving the defendants below permission to plead specifically any errors to their prejudice, and any other proper pleas. And if the plaintiff shall not so amend her declaration, that the court give judgment for the defendants below upon the demurrer to the declaration.
*123Lee, J.
To constitute a good and valid obligation, the law does not require any particular set form of words to be employed. Any words which sufficiently declare the intention of the party and denote his being bound or which expressly or impliedly acknowledge a debt as due from him to another will constitute a good bond: because it is only in the nature of a contract or a security for the performance of a contract which should be construed according to the intention of the parties. 7 Bac. Ab. (Bouvier’s ed.) 241; 1 Tuck. Comm. 275; 2 Thomas’ Co. Litt. 566, n. S. And I think the paper writing set out in the declaration sufficiently complies with these requisites to constitute a valid obligation. It is headed “ A list of rents for Hannah Mead from 1815 to 1830 made 27th of May 1829 and again on the 8th of March 1831.” Then follow in parallel columns the different years, the names of the tenants, the rent per annum, the money received, the balance of rents not collected. These different sums are added up and the results stated in figures at the foot of each column. The paper then proceeds to state in words the amount of the whole rents thus ascertained, the amount not collected, and the amount that had been collected. From the amount of the collections, it states that the sum of seventy-four dollars and fifty cents is deducted for commissions and the sum of two hundred and seventy-eight dollars and twenty-one cents for land taxes, lawyers’ and clerks’ fees &c. as per account rendered, leaving the net sum collected eleven hundred and thirty-seven dollars and thirty-five cents. A provision is then added that all errors in the foregoing statement were to be corrected, and the paper was signed and sealed by Davis and delivered to Hannah Mead. From the terms of the writing it seems to me that the necessary and unavoidable inference is that the money collected for Hannah Mead had been collected by Davis, and *124that the net balance stated remained in his hands unpaid. It was therefore an acknowledgment under his seal that so much was still due her and was therefore a subsisting debt to pay which a promise is raised by implication of law. I do not see how the terms of the paper can be reconciled with the hypothesis that Davis may have owed Hannah Mead nothing. That the moneys received were collected by some one as agent of Hannah Mead, is apparent, and if Davis were not the agent why would he make a statement of the business in such-terms as would be appropriate only to the party who was the agent and give to it the solemnity not only of his signature but his seal also ? And while a portion of the amount collected is accounted for as applied to commissions and clerks’ and lawyers’ fees &c. no intimation is afforded that the net balance or any part of it had been paid over to Hannah Mead or any person for her. If it had been intended as a mere statement of his transactions as agent by Davis part of which consisted in the payment over by him of the large balance found in his hands, whilst he was accounting for the smaller sums applied to' commissions and fees he would not have failed to state how that large balance was disposed of; nor if the paper was not intended as an acknowledgment of a subsisting debt could there have been any necessity or reason for the provision that errors were to be corrected.
I think therefore the paper set out in the declaration does constitute a good and valid obligation binding Davis to the payment of the balance stated and that it was properly so considered in the Circuit court.
Nor do I think the paper produced varies from the description given of the writing set out in the declaration. That it should be described according to its legal effect, is conceded; but I think it is so described so far as necessary on the part of the plaintiff. It is *125true in the paper produced there is a distinct provision with which it ends that all errors in the statement were to be corrected, and the declaration takes no notice of this provision. But it is plain that it is to be construed not as an affirmance that there were errors in the statement, but that if there were, they should be corrected; and in the absence of any allegation of the existence of errors to the prej udice of either party, the paper stands as a valid and binding obligation for the net sum collected of eleven hundred and thirty-seven dollars and thirty-five cents, the same demanded in the declaration. To give it this effect it eould not be necessary that the declaration should aver that there were no errors. If in fact there were errors to the prejudice of the defendant in the action, that would be matter of defense more proper to come from that side than to be the subject of negative averment on the part of the plaintiff; and what is matter more properly coming from the other side need not be stated by the pleader because it is not necessary he should anticipate the answer of his adversary which according to Hale, C. J. is “like leaping before one comes to the stile.” See Sir Ralph Bovy's Case, Vent. 217; 2 Saund. 62, b; 1 Chit. Pl. (Phil. ed. 1828,) p. 205; Steph. Pl. 354.
I do not perceive the force of the argument that as this paper contains upon its face a reservation for the benefit of both parties that all errors were to be corrected if varies materially from that described in the declaration because the latter imports a debt certain of eleven hundred and thirty-seven dollars and thirty-five cents and estops the obligor from alleging that it was more or less. But the party cannot be estopped when the right to show the debt to be less is expressly reserved by the paper itself, and to say there is a variance because this right is not referred to in the declaration and the existence of errors negatived would *126be to assail the well established mode of pleading on a bond with a condition where the declaration simply demands the penalty leaving the defendant to plead the condition and his performance of it.
I think therefore the declaration was good and that the demurrer was properly overruled.
Several other questions have been raised in this case but as the other judges are of opinion the declaration is defective in not negativing the existence of errors in the statement, it is unnecessary to express any opinion upon them.
Moncure, J. concurred in the opinion of Samuels, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482011/ | MONCURE, P., and CHRISTIAN, J.,
dissented.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the decree of the circuit court dissolving the injunction is erroneous. It is therefore ordered and decreed that the said decree be reversed and annulled, and that the appellees pay to the appellant his costs expended in the prosecution of his appeal here. And the cause is remanded to the circuit court of Pittsylvania county, with instructions to reinstate the injunction, and for further proceedings to be had therein in conformity with the principles declared in the opinion filed in the record.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482012/ | MONCURE, P.,
delivered the opinion of the court.
This is a writ of error to a judgment of the hustings court of the city of Richmond, rendered in March, 1879, in favor of the commonwealth against the plaintiff in error William P. Nuckolls, convicting him of a misdemeanor.
*Such conviction was upon an indictment containing two counts. In the first it was charged, that within twelve months next preceding the indictment, at the said city, and within the jurisdiction of the said hustings court, he unlawfully did keep and exhibit gaming tables commonly called A B C and E O tables, faro bank, wheel of fortune, keno table, and tables of the like kind, being under denominations to the grand jurors unknown; the games then and there played on the tables aforesaid being games played with cards. In the second count it was charged, that within the period, and at the place aforesaid, he unlawfully was a partner and concerned in interest in the keeping and exhibiting of gaming tables as aforesaid.
The said indictment was founded on the Code, page 1212, ch. 194, § 1, which is in these words: “A person who shall keep or exhibit a gaming table, commonly called A B C or E O table, or faro bank, or keno table, or table of the like kind, under any denomination, whether the game or table be played with cards, dice or- otherwise, or who shall be a partner or concerned in interest in the keeping or exhibiting such tables or bank, shall be confined in jail not less than two nor more than twelve months, and be fined not less than one hundred, nor more than one thousand dollars. Any such table or faro bank, and all the money, stakes or exhibits to allure persons to bet at such table, may be seized by order of a court, or under the warrant of a justice; and the money so seized, after deducting therefrom one-half for the person making the seizure, shall be forfeited,” &c., “and the table and faro bank shall be burnt.”
The plaintiff in error was convicted on the said indictment on the 17th day of December, 1878, but the judgment was after-wards reversed, and a new trial was awarded by this court; on which new trial he was again convicted by the said hustings court, which overruled his motion for a new trial, and rendered judgment against him according *to the verdict in March, 1879, to which this court awarded a writ of error as aforesaid; and that is the case which this court has now to dispose of. The questions arising in the case are presented by five bills of exceptions, which were made parts of the record in the progress of the trial, and will now be considered and disposed of in the order in which they were taken and are numbered.
_ I. It is stated in the first bill of exceptions that during the trial of the case, after the attorney for the commonwealth had made his opening statement, and the attorney for the accused had done the same, the prisoner, by his counsel, moved the court to require the prosecuting attorney to furnish him a statement or bill of particulars showing when, how and where the offence of which he is accused was committed, the same not being sufficiently specified in the indictment; which motion the court overruled on the ground *295that the indictment had been passed upon by this court, and that this was a motion unheard of in a criminal case, as far as the court is advised; to which ruling of the court the prisoner excepts.
Without assigning any other reason than that assigned by the hustings court, which is deemed sufficient for its action in this respect, this court is of opinion that there is no error in such action.
II. It is stated in the second bill of exceptions that on the trial of the cause the commonwealth introduced as the first witness one J. P. Jeter; whereupon the prisoner, by his counsel, moved the court to permit him to take down the evidence in the cause in writing; but there having been at the time of such motion no exception taken to any portion of the testimony, and the court having stated to the counsel that as soon as any exception was taken which would require the statement of the evidence to be set forth in writing, it would, according to its custom, stop the trial, and in the presence of the witnesses have the bill or bills *of exceptions, with the evidence,, prepared, &c., the court overruled said motion; to which ruling of the court the prisoner excepted.
This ruling of the court was plainly right.
III. It is stated in the third bill of exceptions that on the trial of the cause the commonwealth introduced a witness — M. J. Griffin — and asked him to explain to the jury, if he could, how the game of “keno” was played; thereupon the attorney for the prisoner asked the witness if he was an expert at the game of keno; to which the witness answered no, but that he had played it twice, and seen it played two or three times. The attorney for the commonwealth then asked the witness if he knew how the game was played; to which the witness answered that he did; and then the said attorney asked the witness to explain to the jury what he knew of the game; and thereupon the prisoner objected to the witness stating to the jury what he knew of the game, on the ground that the witness was not an expert; but the court overruled the objection, and allowed the witness to state what he knew of the game; to which ruling of the court the prisoner excepted.
The evidence objected to was certainly admissible. The weight of it was of course a subject for the consideration of the jury. The evidence of an expert, if there can be an expert in such a matter, and the witness was not in fact such an expert, still his evidence, to the extent of his knowledge on the subj ect which he explained, was admissible, and it was uncontradicted by the evidence of any expert introduced as a witness by the prisoner. There was, therefore, no error in the action of the court in overruling the said objection.
IV. In the fourth bill of exceptions precisely the same question is presented in regard to the game of faro as in the third bill of exceptions is presented in regard to the game of keno, and the facts in regard to the two games in this case are the same, or similar. For the reason already ^assigned in regard to the third bill of exceptions. there is, therefore, no error in the action of the court below in regard to the fourth bill of exceptions.
V. In the fifth and last bill of exceptions is presented the only difficulty arising in the case, which, however, is certainly a very serious difficulty, and the question we now have to solve is, whether such difficulty be not in fact insurmountable.
It is stated in that bill of exceptions that on the trial of the cause, after the jury had returned their verdict into court — “we, the jury, find the prisoner guilty” — the prisoner, by his counsel, moved the court to set the said verdict aside, because the same was contrary to law and the evidence, and grant him a new trial; which motion the court overruled; and the prisoner excepted. On his motion, the court certified the facts proven on the trial; which, so far as it seems to be material to state them here, are in substance as follows:
“The commonwealth first introduced one J. P. Jeter, who proved that as sergeant of police, by direction of chief of police of the city of Richmond, on Saturday night, 10th day of November, 1878, at about 10 o’clock at night, he, in company with two other policemen, went to house No. 20, located on Fourteenth street in said city, the lower part being occupied by one John Pitt as a tailor’s shop; that he went up stairs and knocked at the door; he heard some one say, ‘here come our oysters’; that he was dressed in citizens, clothes at the time. The door was opened by the prisoner, who asked him to come in. He went in saying to the other policemen, ‘Come on, boys’; that on entering the room he saw two round tables, a sideboard, a stove and some chairs, and nine or ten men; that the room was nicely carpeted, and divided from the front part of the house by a partition extending from the floor to near the ceiling, with an open door in it; around one of the tables five men were seated playing cards, he thought the game of poker *or draw-bluff; that one of these men made two plays after he entered the room and had taken hold of the bone or ivory chips he found on the table with which they were playing the game, but he could not say that this man knew him; that the prisoner was not playing, or had anything to do with the game that he knew of; that he found in the drawer of a sideboard a quantity of chips like those the men were playing with, on a small tray, and about nine dollars in money; that as he was about to open this drawer to search it,' the prisoner said to him, there is nothing in there; after he found the tray and money he asked for the owner of it, or the proprietor of the house, not certain which, to come up and see it counted, but no one claimed to be either; that ifi the front room he found a bed and two trunks, one of which the prisoner claimed as his own and promptly opened it, that it might be searched; but the other he said belonged to a man who had gone down the street; that he did not know his name; that Black was not present in either room; that he asked prisoner for the key to open the other trunk, saying if not opened he would have to break it open; when prisoner loaned him a bunch of keys, *296but none of them would fit; that one of the policemen tried his keys, but they would not open the trunk; some one of them called the name of Black, and he said to Wm. P. Nuckolls, the prisoner, if this is Black’s trunk, tell me, I know where to find him, and I will go and get the keys from him; if you do not tell me I shall have to break the trunk open; prisoner then said, ‘yes, it is Black’s trunk’; that he went to hunt for Black, could not find him, and returned to the station house and picked the lock of the trunk; found in the trunk, which was afterwards claimed by Thomas G. Black, a cloth called a faro layout cloth; that this cloth was folded up and creases remained in the cloth where the folds were; that he found Black next morning in the same room and arrested him.
_*“It was also proved by one D. W.. Rider, that he was playing in the game at the time of the arrest; they were playing a friendly game of draw poker; that he liad played this game at the same place one time before the arrest; that he saw both Thomas G. Black and William P. Nuckolls there each time; that neither of them was his associate, though he knew them both, and had known Nuckolls for some time; that he went to this room to play because he was invited to go there, and understood he could play a game there; but before be began to play he obtained a stack of 20 chips from Black, that he purchased a second stack from Black; he paid one dollar for first stack, but returned Black the other without paying anything for it; that no one had any advantage over him as a player in this game; but whenever threes, or a better hand than threes, were held by any player, and his hand was called, one chip was laid aside by the winner for the keeper of the room; that the game was played by the deal passing around to the left from one to the other of the players, the dealer always dealing out to the others one card at a time until each player held five cards; that the player sitting to the left of the dealer then put upon the middle of the table one chip, and the player sitting to his left could then put up one or more chips, or decline to bet if he wished, each player in his turn doing the same thing until all had exercised this privilege; after this, each player beginning at left of dealer, would say how many cards he wished to draw from the pack, discarding that number from one up to five from those held in his hand; when each player had been _ furnished, the betting began again, beginning at the left of the dealer, each player again having the right to bet or retire from that deal by discarding his cards; that when the betting was ended, the winner was he who held the highest hand, though sometimes a winner would succeed in scaring or bluffing off the other players by outbetting them; that the highest hand at this game was, first the *highest card when neither held a pair; next highest hand was the highest pair when neither player held two pair; the next highest hand was two pair over one pair; the next highest hand was the highest-two pair when each held two pair; the next highest hand was threes of one kind; the next highest hand was a flush, and this was when five cards of one suit was held, say five hearts or five diamonds; the next highest hand was a full, that is, three of one number and a pair of another; the next highest hand to this, and the highest in the game, was fours, and this was when fours of one kind was held, say four kings or four aces; and that in this game it was agreed between the players, before they began to play, that when threes or a better hand was called, one chip was to be laid aside for the keeper of the room; that this agreement was generally made by the players before they commenced a game, and was a voluntary contribution to pay for use of gas, fuel, and room; that he did not suppose they coukl play in this room without giving something, as no one could provide a room for nothing; that on the night in question they had been playing from three to four hours, and had laid by, .he supposed, from ten to fifteen chips, and that the chips were valued at five cents each; that neither Black nor the prisoner had been playing in the game, or hgd anything to do with it,' so far as he knew, except that the chips had been purchased from Black, who for convenience was to furnish the chips and keep the money until the close of the game, paying for them the same he received for them, except that he was not required to pay for or redeem those laid aside for the keeper of the room during the game; that sometimes one of the players was selected to do this for convenience; that in this game there were none playing but friends, and no one could come into the game without their consent, and none but a friend or some one personally known to one of the players would have been permitted to come into the game; that *during their play at times both Black and prisoner were out of the room at the same time; that a part of the money found in the drawer was his, and balance belonged to his friends who were playing in the game, except so much as might be due for chips laid aside for th.e keeper of the room;, the money was same paid to Black for the chips they were playing with; that he heard the officer ask for the owner of the money or proprietor of the house to come up and see the money counted, but said nothing; and that if the game was played long enough, the keeper of the room, under this arrangement, was compelled to get nearly all of the money; that he could, by no possibility, lose anything in the game, and must, under the arrangement, get a chip whenever ‘threes or a better hand’ — i. e., ‘threes,’ a ‘flush,’ a ‘full,’ or ‘fours’ — were held by any player and that player was ‘called’; and that it was simply a question of-time for him to get all, or nearly all, of the-money around the table.
“The commonwealth then introduced one M. J. Griffin as a witness, who proved that he had seen the games of ‘keno’ and ‘faro’ played on other occasions and gave an account of those games, but as neither of those games was played by the prisoner or others on the occasion to which this pros*297ecution applies, and as the game which was played on that occasion was not a game or table of the like kind with faro bank or keno table, or any of the games or tables specified in the section on which this prosecution is founded, it is unnecessary to insert here the facts proved by this witness, which seem to be irrelevant to this case.
“The commonwealth also proved by a witness, one B. W. Hancock, that be was playing in the game at the Júme of the arrest on the night named; that when he went into the room he found four men playing, and he said to Nuckolls, I should like to get into that game, when Nuckolls said to him the game is made up, I believe, I don’t know *whether you can get into it or not, but I will ask them; that Nuckolls then asked the players if they had any objection to his (Hancock’s) coming into the game; and they signified their assent, when he paid Nuckolls a dollar and got from him a stock of chips and commenced playing; that he had seen the game played often, and that it was a rule of the game as played_ at such places, and had always seen something taken out for the use of the keeper of the room whenever threes or a better hand was held and called; that they generally took out twice as much as the chip was worth for the room whenever threes or a better hand was held and called; that on this occasion they were setting aside ten cents whenever threes or a better hand was called and shown; that sometimes, when neither bettor held a pair, the player having the highest card would win, and then nothing was set aside; the next highest hand to the highest card was when a single pair was held, when the man holding the highest pair would win, and then nothing was laid aside for the room; that the next highest hand was when two pair beat one pair, and then nothing was laid aside for the house; that sometimes a player would win without showing the cards he held, by simply betting enough to scare off his opponent, and then nothing was laid aside for the house; that the next highest hand above two pair was when a player held three of one kind, and then if a winning was made by a call and showing the threes, the chip was taken from the winner and laid aside for the room; that the next highest hand above threes was a flush, and if a winning was made by showing the flush the chip was laid aside for the room; that the next highest hand was a full, and the next highest hand above a full was when fours were held, and in each of these cases a chip was laid aside for the room, but that fours were very seldom held. He also proved that part of the money found in the drawer was his.
“The commonwealth also proved by a witness, one *Thomas G. Black, that he was the renter of the room in question, and the owner of all the furniture, and also of the faro lay-out, but that had not been used for two years; that he did not know who was the owner of the chips found there with which the game was played; that he and William P. Nucholls, the prisoner, were jointly interested in the game; that he had been tried and acquitted for the same offence, and that Nuckolls had told him that he (witness) could clear him (the prisoner) by coming into court and swearing that he was not interested in the game; which he refused to do; that Nuckolls got one-half of what was made on the game, and he (witness) got the other half.
“For the defence it was proved by one witness, John Pitt, that he rented out premises in question — rented it to Thomas G. Black; that Black paid both the rent and gas bill, and that he never knew Nucholls in the transaction, or that he had anything to do with it; that he rented the rooms to Black for a sleeping apartment and never knew that any gaming was carried on in there.”
The game proved to have been played in this case was certainly not one of the games specified in the statute, Code, p. 1213, ch. 194, § 1. It was not a keeping or exhibition of “a gaming table, commonly called A B C or E O table, or faro bank, or keno table.” And if the case comes within the terms, intent or meaning of the statute, it can only be because the game proved to have been played in this case was the keeping or exhibition of a table of the like kind with those specified in the said statute.
.Was it a case of the like kind as aforesaid? In what does the likeness consist? The record does not show. Can the accused be said to have been a keeper or exhibitor of a gaming table in the meaning of the statute? He may have owned or had an interest in the tables on which the game was played. He took no part in playing the game, was not always present while it was played, and had no ^interest in it except that he had a chance to receive a portion of the winnings, under an agreement with the parties to the game to compensate him for the use' of the house and the tables which were used in carrying on the game. The amount received under this agreement does not appear, so far as it is disclosed by the record, to have been an extravagant compensation for such use; but whether so or not, does not seem to affect the question we are now considering. The game played in this case was poker, or draw poker.
In regard to what is a table of the like kind with those specified in the statute, according to its true intent and meaning, there are two decisions of this court which seem to settle the matter beyond all controversy. They are, The Commonwealth v. Wyatt, 6 Rand. 694, decided in 1828; and Huff’s case, 14 Gratt. 648, decided in 1858.
In Wyatt’s case, supra, it was unanimously held by the late general court, in an opinion delivered by Daniel, J., that “the distinctive feature in the character of the games called ABC and E O and faro bank, is that the chances of the game are unequal, all other things being equal, and those unequal chances are in favor of the exhibitor of the games or tables. If other games resemble those standard games in that distinctive feature, they come within the terms of the 17th Section of the gaming act, (corresponding with *298the 1st section of the present gaming act), being ‘gaming tables of the same or like kind’, and are liable to the penalties denounced against those standard games, whatever may be the denomination of those other games, and whether played with cards, dice, or in any other manner.”
In Huff’s case, supra, it was unanimously held by this court, in an opinion delivered by Allen, P., that “an indictment for gaming under the 1st section of chapter 198 of the Code, (corresponding with the 1st section of the gaming act in the present Code), must charge the playing *of one of the games specified; or it must show by averment that the gaming charged is of the like kind as those specified — that is, that the chances of the game are unequal, all other things being equal.”
These two cases clearly show that the game proved to have been played in this case was not a game of the like kind with any of those specified in the statute, as it was clearly not one of the games so specified. The accused was not an exhibitor of a gaming table such as seems plainly to be contemplated by the statute — a gaming table against which the betters at the game risk their money. He had no interest in the game, except as a means of compensation for the house, the tables and the gas, which were used in carrying on the game. It does not appear that such compensation derived in that way exceeded what might reasonably have been charged directly for the same consideration. At all events, it is not perceived how that mode of receiving such compensation can convert what would otherwise be a lawful act into one which would be highly penal. If it be deemed reasonable and proper that the owner of a house, receiving compensation in that way for the use of his house and his tables for gaming purposes, should be punished as an exhibitor of a gaming table under section 1 of chapter 194 of the Code, page 1212. it ought to be plainly so declared by statute, instead of being_ left as a matter of such forced and violent inference.
In the argument of this case before this court the Arkansas Code and reports were referred to, which seem to have an important bearing upon the case. In the said Code of 1858. page 369, chap. 51, art. 111, § 1, it is declared, in language very similar to that of our Code, that every person who shall set up. keep or exhibit any gaming table, &c., commonly called A B C, E O, &c., or any faro bank or other gaming table, &c., of the like or similar kind, &c., shall be deemed guilty of a misdemeanor, and *be fined not less than $100 and imprisoned not less than thirty days nor more than one year. The subsequent sections of the same article embrace the residue of the statute against gaming.
In Stith v. State, 13 Ark. R. 680, it was held by the supreme court of that state that the owner or occupant of a house, &c., cannot be indicted under the fourth section of the gaming act for permitting poker or any of the small games of cards mentioned in the 8th section of the act to be played in his house, &c., but only for suffering some of the games, tables, cardé, &c., embraced in the previous sections to be played, &c., therein. The Chief Justice, in delivering the opinion of the court in that case, uses this strong and appropriate language: "An attentive perusal of the statute makes the conclusion almost irresistible that the first seven sections are intended to relate exclusively to the banking games, whether called by the names specified or by any new name or device. They are usually exhibited by persons whose occupation it is to prey upon the community, and who are therefore peculiarly obnoxious to the laws, which be-sign also to punish with equal severity those who allow them to be exhibited in their houses.” Id. 682.
See also Barkman v. The State, Id. pp. 703 and 705, and The State v. Hawkins, 15 Id. 259.
The court is therefore of opinion that the said^ hustings court erred in overruling the motion of the prisoner to set aside the verdict because the same was contrary to law and the evidence and grant him a new trial, as mentioned in his said fifth bill of exceptions. And for that cause, the said judgment is reversed, the said verdict set aside, and the cause remanded to the said hustings court for a new trial to be had therein, in conformity with the foregoing' opinion.
*The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in any of the rulings of the said hustings court excepted to by the first, second, third and fourth bills of exceptions, made parts of the record of this cause,
But the count is further of opinion, for reasons stated as aforesaid, that there is error in the ruling of the said court excepted to by the fifth of the said bills of exceptions, made part of the said record, and that the said court erred in overruling the motion of the plaintiff in error to set aside the verdict of the jury because the same was contrary to law and the evidence and grant him a new trial; this court, being of opinion that according to the facts certified in the said fifth bill of exceptions to have been proved on the trial of the said cause in the hustings court, the accused, the said plaintiff in error, was not guilty of the offence with which he was charged, and of which he was convicted on the said trial.
Therefore, it is considered, ordered and adjudged that the said judgment of the said hustings court be reversed and annulled, the said verdict be set aside, and the cause remanded to the said hustings court for a new trial to be had therein, in conformity with the foregoing opinion.
Which is ordered to be certified to the said hustings court of the city of Richmond.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481441/ | MONCURE, J.,
delivered the opinion of the court.
This was a proceeding under our statute, 2 Rev. Code of 1819, p. 234, § 3, to discontinue a public road. Two questions arise in the case.
First. Is an appeal to a Circuit court demandable as of right from an order of a County court discontinuing a public road? We are of opinion that it is, and that the case is both within the words and meaning of the act of assembly, Sup. Rev. Code, p. 145, § 30, which declares that appeals to a Circuit court shall be demandable as of right from the orders of a County or Corporation court, in controversies concerning mills, roads or the like. This opinion is not in conflict with the cases of Hill v. Salem and Pepper’s Ferry Turnp. Co., 1 Rob. R. 263, and Hancock v. Richmond and Petersburg Railroad Co., 3 Gratt. 328; in which it was decided that an appeal is not demandable of right to a Circuit court from an order of the County court affirming or disaffirming the report of commissioners appointed to assess the damages which would result from opening a road established by an act of incorporation. It is true, that in the latter case, Baldwin, J., in delivering the opinion of the court, said “that the law authorizing appeals as of right from orders of the County courts in controversies concerning roads, is applicable only to a controversy concerning the establishment of a road. ’ ’ But these words are to be construed in reference to the case in which they were used, and cannot be regarded as implying that the law is not also applicable to a controversy concerning the discontinuance of a road. As was said in '’‘reference to that case by Allen, J., in The Chesapeake and Ohio Canal Co. v. Hoy & als., 2 Gratt. 523, “it merely decides that in the particular case an appeal was not demandable as of right.” The learned judge (Baldwin) was contradistinguishing controversies concerning the establishment of a road, from collateral controversies concerning damages occasioned by a road already established, as the road in that case had been by the act of incorporation; and intended only to say that an appeal was demandable of right in the former,, but not in the latter cases. Wherever the existence of a public road is involved in a controversy (whether it be to establish or discontinue the road), the law authorizing appeals as of right applies to the case.
Secondly. Is it premature in a County court to entertain an application to discontinue a public road after it has been ordered to be established and opened, but before it is actually opened, or put in a condition to be traveled or used by the public? We are of opinion that it is not. After a road has been ordered to be established and opened, it may be actually opened at any time that may suit the convenience of the county, and can only be discontinued in the mode prescribed by law. Suppose that a road is ordered to be opened ; but after the lapse of years, and before it is actually opened, public and private convenience requires it to be discontinued. Can it not be discontinued without first incurring the labor, expense and inconvenience of opening it? We think that it can. There is nothing in the terms of the law, and it would certainly be most *137unreasonable, to require the road to be actually opened for the purpose only of being discontinued.
The result of the foregoing opinion is, that the judgment must be reversed, and the case remanded to the Circuit court for further proceedings to be had therein.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481443/ | SAMUELS, J.
The record in this cause is encumbered with a large quantity of matter not pertinent to the subject really in controversy. Separating the portions of the record.on which the cause must be decided from the mass in which they are involved, the case is as follows:
Henry Tiffany, the appellee, obtained a judgment in the Eederal court for the western district of Virginia at September term 1839, against the appellant, William Carroll; and one Daniel Eelton, at the September term 1843 of the Circuit Superior court of law and chancery for Preston county, obtained a decree *against the same William Carroll for the payment of money. Felton forthwith sued out a ca. sa. on his decree, had Carroll arrested thereon, who relieved himself from custody by taking the benefit of the acts of assembly for the relief of insolvent debtors. Henry Tiffany then filed his original bill against William .Carroll, Amos Carroll, John Scott and Benjamin Morton, charging them with confederating for the purpose of hindering, delaying and defrauding complainant and others, the creditors of William Carroll, in the collection of their debts; alleging that a certain tavern-house in the town of Kingwood in Preston county, nominally bought by the defendant Scott, was paid for by money furnished by the defendant William Carroll, and that it was held in secret trust for him; that the money used in paying for the tavern-house was derived from a contract made by William Carroll with the County court of Barbour county for the erection of a court-house for that county; and seeking to subject the tavern-house, or the money derived from the contract aforesaid, to the satisfaction of complainant’s demand. The defendants, and especially the defendant Scott, were interrogated minutely in the bill in regard to this subject; in regard to all which they answered, explicitly denying the fraud imputed, and giving a version of the transaction which entirely exculpated the alleged confederates from all the charges made against them.
Regarding the original bill as filed to enforce the lien of the judgment and to remove impediments out of complainant’s way, the bill on its face presents a case of which the court might take cognizance. The objection made by the appellants here that the suit was prematurely brought, cannot therefore be sustained.
After the original bill was filed, the complainant sued out a ca. sa. on his judgment at law, on which his debtor, William Carroll, was arrested and discharged *from custody, under the acts of assembly for the relief of insolvent
debtors. Thereupon complainant filed a supplemental bill setting forth this additional fact, and asserting his claim to the money arising from the court-house contract. This money was the object of complainant’s pursuit, either as money or as invested in the tavern-house aforesaid. The result of the controversy must depend upon the true construction of the contract for building the court-house. William Carroll, when wholly insolvent, entered into an inchoate contract with the County court for building the court-house, and by the terms of the contract he was required to give security for the performance of the work. Whilst the subject was in suspense, awaiting Carroll’s compliance with the terms of the contract, before it should become binding on either party, Felton’s ca. sa. was issued, and Carroll was arrested and discharged as above stated. In Carroll’s condition it was impossible for him to give the security, and thus make the contract binding. It was agreed, however, between William Carroll, Amos Carroll and the County court, that William Carroll should assign his inchoate contract to Amos Carroll, and that Amos should give the security and take the contract on himself. The securities who signed the bond were willing to become bound as such for Amos Carroll, but were not willing to be bound for William Carroll. Although William Carroll also signed the bond, it is perfectly clear that the subject was thus fully understood. The fact of the assignment is entered upon the minutes of the proceedings had in the County court. After the assignment to *140Amos Carroll, he sold the contract to Hall for a profit of 1000 dollars, which is the money in controversy here.
A correct analysis of this contract will show that in equity Amos Carroll should he regarded as the contractor; he was bound to indemnify William Carroll *for his undertaking; he stood in the relation of principal to the securities; he alone was looked to by the court and all others for performance of the work. Nor could the charge of fraud be predicated on the fact of the assignment to Amos Carroll. In William Carroll’s hands the contract was merely inchoate, and could be of no value whatever to his creditors. From his insolvency, he could not have given the security to make it binding. He had no assignable interest which could pass at the time of. his discharge under Felton’s ca. sa. At the time of his discharge under Tiffany’s ca. sa. his interest had already been assigned in pursuance of the terms of the arrangement, by which alone he was able to make the contract at all.
On the whole, lam of opinion that neither complainant nor any other creditor of William Carroll was in any degree injured by the assignment to Amos Carroll; that whether the price for which Amos Carroll sold the contract to Hall be represented by Hall’s bonds or by the tavern-house, it is beyond complainant’s reach. I am of opinion to reverse the decree with costs to appellants; dismiss the original and supplemental bills, and that the costs of the Circuit court be paid by the appellees.
The other judges concurred.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481444/ | MONCURE, J.,
delivered the opinion of the court.
Several very interesting questions were discussed in this case, which it will be unnecessary, if not improper, at this time to decide. Among other objections taken by the appellants’ counsel to the decree of the Circuit court is that of want of proper parties; which we are of opinion is fatal. The suit -was brought to recover of an administrator the distributable balance due by him. The only distributees were the widow and child of the decedent; and neither of them was a party. Both were necessary' parties. In general one distributee cannot maintain a suit to recover his distributable share without making the other distributees parties. Story’s Eq. Pl., § 89; Richardson’s ex’or v. Hunt, 2 Munf. 148; Sheppard’s ex’or v. Starke, 3 Id. 29. So that if this suit had been properly brought in the name of either of the distributees, it could not have been sustained without making the other a party. But it is properly brought in the name of neither; and a fortiori, it cannot be sustained. If the appellee intended *to assert in the suit the claim of his wife as a distributee, he should have made her a coplaintiff with himself. If he intended to assert the claim of his ward as a distributee, the suit should have been in the name of the infant by his next friend, and not in the name of the guardian, even though he be described in the bill as “guardian of the ward.” A guardian is not authorized to file a bill in his own name to obtain possession of the property of his ward, but must file it in the name of the ward as his next friend. This was expressly decided by this court in the case of Lemon, guardian, v. Hansbarger, 6 Gratt. 301; and also by the Court of chancery of New York in the case of Bradley v. Amidon, 10 Paige’s R. 235. The wife was also a proper party, because she was one of the administrators and a co-obligor in the administration bond given by them.
But the counsel for the appellee contended that this objection, not having been made in the court below, now comes too late. But it was not waived in the court below; the want of parties appeared on the face of the bill; and in such cases it is well settled that the objection is fatal in the appellate court, though not taken in the court below. 2 Rob. Pr. 276, 433, and cases cited; Richardson’s ex’or v. Hunt, 2 Munf. 148; Sheppard’s ex’or v. Starke, 3 Munf. 29.
The decree must therefore be reversed for want of proper parties. But ought the bill to be dismissed, or the case remanded, and permission given to amend the bill and make the proper parties? In the case of Lemon, guardian, v. Hansbarger, 6 Gratt. 301, the bill was dismissed: and that would be the proper course in this case if the appellee had no further connection with, or interest in, the case than as guardian of the infant. A bill filed by a sole plaintiff having no interest whatever in the subject matter of the suit, must be dismissed. Bradley v. Amidon, 10 Paige’s R. 235. But *the appellee was otherwise interested in the case. He was interested as husband of one of the distributees, and was therefore a proper party to the suit. He should have joined his wife with him, who was also a proper party. But his omission to do so, though a defect, is not a radical one, and may be cured by amendment. It may be said that he sued in auter droit, as guardian and not as husband. But he cannot sue as guardian; and the words ‘ ‘guardian of Robertson Hanger, an infant under the age of 21 years, ’ ’ are mere descriptio personae, and do not change the personal character of the suit. It is only the individual suit of the appellee. The bill states a case and asserts a claim in which not only the infant, but the appellee and wife are interested. By striking out the descriptive words, and inserting the name of the wife, and that of Robertson Hanger, by his next friend if he be yet an infant, or making him a defendant, the defect of the bill would be cured.
We are therefore of opinion that the decree should be reversed, and the cause remanded in order that proper parties may be made, and further proceedings had therein.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481445/ | MONCURE, J.
This was a suit brought by Swoope, executor of Leas, against Eidson, for the specific performance of a contract under seal for the sale of “the plantation on which said Leas resided in his lifetime, supposed to contain 260 acres, at 15 dollars per acre,” payable by installments. Performance was resisted on the ground of mistake as to a parcel of land containing fourteen acres, which it was alleged was embraced in the lines by which the plaintiff sold and defendant purchased; and was of such value, intrinsically and relatively to the balance of the tract, as to entitle the defendant, if he could not get the said parcel of land, to have a rescission of the contract, or at least such an abatement of the purchase money as would compensate him for the injury. After a survey was made and sundry depositions were taken in the *cause_, it came on for hearing; when the Circuit court, being of opinion that the contract was entered into under a mutual mistake of the boundaries of the land materially affecting and impairing the value of the land to the purchaser, yet not to such an extent as that it might not be compensated for by an abatement from .the purchase money, or as would justify the court in rescinding the contract or refusing specific performance upon any terms, decreed the execution of the contract upon the terms of compensating the defendant by an abatement from the purchase money for the injury resulting from the mistake; which the court from the testimony in the cause estimated and assessed at 500 dollars. From this decree the plaintiff appealed to this court. The case was submitted without argument at the last term, when the court being of opinion that the contract was not entered into under a mutual mistake, reversed the decree of the Circuit court, and decreed the execution of the contract without any abatement from the purchase money. But afterwards during the same term, the decree was set aside and the case reinstated on the docket for' argument. During the present term, the case has been fully argued and now comes up for reconsideration.
It is now well settled that a mutual mistake of the parties in a matter which is part of the essence of the contract and substance of the thing contracted for, will be corrected by a court of equity, and may be good ground for rescinding the contract or executing it on equitable terms of compensation, according to circumstances, even though the contract be in writing, and required to be so by the statute of frauds. 1 Story’s Eq. Jar., § 134, 144, 152, 142; 1 Munf. 330; 6 Id. 283; 3 Rand. 504; 6 Id. 552; 3 Leigh 113. There is no doubt but that if the contract in this case was in fact entered into under a mutual mistake of the boundaries of the land, the mistake was in a matter "which was part of the essence of the contract and substance of the thing contracted for, and the defendant was entitled to relief in some form or other, whether in the form of a rescission of the contract, or of compensation for the injury, is a question which need not and is not intended to be decided in this case. Supposing compensation to be the proper form of relief, the sum of 500 dollars would not seem from the evidence to be an extravagant assessment. In the view we take of this case, the only question which it will be necessary to decide is, whether in fact there was any such mistake?
To obtain relief on the ground of mistake in a written contract, and especially a contract coming within the purview of the statute of frauds, the mistake should be fully and clearly proved. Thompson v. Jackson, 3 Rand. 504. “In all such cases,” says Story, “if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract, so as to make it conformable to the precise intent of the parties. But if the proofs are doubtful an *143unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief, upon the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy.” 1 Story’s Eq. Jur., § 152. And again he says, “Relief will be granted in cases of written instruments only where there is a plain mistake clearly made out by satisfactory proofs. It is true that this, in one sense, leaves the rule somewhat loose, as every court is still to say what is a plain mistake, and what are proper and satisfactory proofs.” — “But the qualification is most material, since it cannot fail to operate as a weighty caution upon all judges; and it forbids relief whenever the evidence is loose, equivocal, contradictory, or in its texture, open to doubt _ or opposing pre_ umptions.” Id., i 157. Let us now see whether the alleged mistake in this case is fully and clearly proved according to the requisition of the rule above stated.
Leas in his lifetime was seized of a tract of land in Augusta, containing 375 acres. Before his death he sold and conveyed 115 acres of the tract by metes and bounds to Engleman, leaving the residue of 260 acres unsold at his death. After his death, and in less than a year after the sale to Engleman, the sale was made by his executor Swoope to the defendant Eidson. In the contract of sale the property sold is described as “the plantation on which said Leas resided in his lifetime, supposed to contain 260 acres, ” which was precisely the quantity remaining of the original tract after deducting what had been sold to Engleman. The parcel of land in controversy containing fourteen acres, had in fact been embraced in the sale and conveyance to Engleman. But the defendant contended that it had been embraced in the sale to him. One of the dividing lines between the land sold to Engleman and the residue of the tract was designated in a plat filed in the case as the line A Q. The defendant contended that in the sale to him, the lines designated in the same plat as A Z, and Z X were represented as the true dividing lines, instead of the line A Q. The parcel of land in controversy is between these three lines and the outer line of the whole tract. The material part of the answer which sets up this ground of defence is in these words: "When the complainant as the executor of the said Leas, offered the farm for sale, and respondent thought of purchasing, the boundaries of the tract were of course subjects of enquiry and examination, and respondent was shown the marked lines A Z, Z X as the true lines in that direction; these lines complainant caused to be shown to all who enquired about the boundaries, and it was by these lines that complainant sold and respondent purchased.” If this statement in the answer had been sustained by the evidence, the defendant *would have maintained his defence, and been entitled to relief. His counsel in this court argued that the statement was directly responsive to the bill; and was therefore not only evidence, but was of such weight that it must be disproved by at least two witnesses, or one and corroborating circumstances. The portion of the bill to which this statement was supposed to be an answer is that in which the plaintiff, after setting out the contract, and the refusal of the defendant fully to perform his part of it, uses these words : "pretending, if your orator has correctly understood him, that he was entitled under said contract to a portion of another tract of land which had been sold and conveyed by said Leas in his lifetime to Engleman, who had, under said purchase, held possession of said land for many years before the death of said Leas.” These words of the bill were not intended as part of the statement of the plaintiff’s case, nor to charge that the defendant was in fact entitled according to his pretension ; nor was the defendant interrogated in any way in regard to such pretension. They were merely intended, as is very common in bills, to suggest the pretension on which the defendant sought to evade his obligation, and not to admit the truth of the pretension, nor to afford the defendant an opportunity to make it evidence against the plaintiff by affirming it. Therefore, even if the answer had been directly responsive to the allegation, if any, imported by these words of the bill, it would not have made the matter of the pretensions evidence against the plaintiff. What is that allegation? That the defendant pretended, &c. The only-direct response to that allegation which could be evidence against the plaintiff, is. that the defendant did or did not pretend;' not that he was or was not entitled under his contract to the land in controversy. But the answer does not respond to the allegation even in this latter form. It does not directly say that the *defendant is, entitled under his contract to the land in controversy; on the contrary, it in effect admits that Engleman was entitled to the-land under his prior deed. But it affirmatively states, that by certain lines the “complainant sold and respondent purchased. ’ ’ It behoved the defendant therefore to sustain this statement by full proof. Did he do it? I think not. There is not a particle of evidence to show that either the plaintiff or the defendant knew anything of' the disputed lines at the time of the sale;; on the contrary, it appears’ from the testimony of Wright, that the plaintiff knew nothing about them. There is not a particle of evidence to show that the plaintiff, or anybody else, ever showed these lines to the defendant, or gave him any information about them at or before the time the contract was entered into. The defendant made no attempt to prove his allegation, that he “was shown the marked lines A Z, Z X as the true lines in that direction, ’ ’ and that “it was by these lines that complainant sold and respondent purchased.” This was the very gist of his defence.
If the fact had been as stated, it would: *144probably have been susceptible of easy proof. He does not pretend that the plaintiff had shown him these lines. He says “the boundaries of the tract were of course subjects of enquiry and examination, and he was shown the marked lines, &c., as the true lines in that direction.” By whom were they shown to him? He does not say, and does not prove. He says, “these lines complainant caused to be shown to all who enquired about the boundaries.” By whom did complainant so cause them to be shown? The defendant does not sa.y, and does not prove. On the contrary, the plaintiff proved by Engleman, who was naturally supposed to be the person referred to by the defendant, that he did not show these lines to the defendant before his purchase, and was never authorized by the plaintiff to *do so. The defendant seems to have taken a general view of the land, and was willing to buy it at 15 dollars per acre without reference to the precise locality of the lines. Brown proved that plaintiff asked defendant if he had seen the land and was satisfied, and defendant responded affirmatively. If defendant desired to know the boundaries before he purchased he could have had a survey, or at all events could have had them shown to him in such a way as to enable him to prove the fact beyond all controversy. If he considered the precise locality of the boundaries a matter of any importance, he.should, and doubtless would, have pursued that course. The whole evidence in this case strongly tends to prove that neither the plaintiff nor the defendant had any information about the lines in question, until the survey, was made preliminary to the execution of the deed, about twelve months after the sale, and after the defendant had received possession of the land; and that this controversy has arisen from what transpired at that survey in consequence of a mistake which had been made in laying off the land of Engleman. Eeas, It seems, intended to have 120 acres laid off to Engleman. The survey was accordingly made, and the lines marked; the lines A Z, Z X being two of them. But on calculating the quantity of land embraced in the lines, it was ascertained to be only 100 acres. The line A Q was then projected on paper by the surveyor, instead of the lines A Z, Z X, which increased the quantity to 115M acres, for which a deed was accordingly executed, but was not recorded until after Beas’ death, and indeed after the survey made in consequence of the sale to the defendant. The line A Q was never actually run or marked. The surveyor and Beas seem alone to have been acquainted with or noticed the fact that the unmarked line A Q had been substituted for the marked lines AZ, Z X. Engleman himself ^remained under the impression that the latter were the true lines, though the quantity of his purchase was of course known, and though the line A Q was described in his deed as the true line. When, therefore, the parties assembled on the ground to make the survey for the defendant, it was not strange that Engleman should have shown the lines A Z, Z X to the surveyor, and that all parties were agreed as to the fact that they were the true dividing lines. But as soon as the calculation of quantity was made, the mistake was discovered and rectified; and a deed was executed accordingly, and tendered by the plaintiff to the defendant. There is no doubt but that if the defendant before he made his purchase, had applied to Engleman to show him the dividing lines, he would have shown him the lines A Z, Z X, as he did to another person who had come as he supposed to buy the land. But the defendant did not so apply. The defendant’s counsel argued that it was the duty of the plaintiff as executor, and the interest of the defendant as purchaser, to inform themselves as to the boundaries of the land before the sale; that the natural way of obtaining the information was to make enquiries of the coterminous proprietors; that by making such enquiries they would have been informed that A Z, % X were boundary lines; and therefore it should be presumed that such information was received by each of them before the sale. The argument is plausible, but not sound. The premises are not admitted, and the conclusion is a non sequitur. The plaintiff might properly have agreed to sell, and the defendant to buy, the tract at 15 dollars per acre, without knowing the precise locality of all the boundaries. Or if it was their duty or interest first to obtain such information, the fact that they obtained it, if they did so, is susceptible of proof, and should have been proved, rather than be left to depend on mere presumption. The ^failure to produce such proof affords a stronger presumption against the defendant than the one relied on in his favor. But surely such a presumption as is relied on, if it be of any weight at all, cannot mount up to that full and clear proof which is required as the foundation of relief against a written contract on the ground of mistake.
I consider this case’ a plain one, and would not have felt justified in delivering so long an opinion upon it, but for the facts that I differ from the learned judge who pronounced the decree in the court below; that the decree entered at the last term was set aside, and the case reinstated for argument, at the instance of one of the judges of this court, because he entertained doubts as to the correctness of that decree; and that the case has accordingly been argued by counsel with much ingenuity during the present term. It only remains for me to say, that I am for re-entering the decree which was entered and set aside at the last term.
The other judges concurred in the opinion of Moncure, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481446/ | *MONCURE, J.
I do not concur in the construction placed by the court below on the marriage contract and memorandum thereto subjoined as part thereof in this case, but am of opinion that the memorandum was intended to reserve to the husband, in the event of his surviving the wife, a life estate in all the property of which the jus disponendi is given to her by the contract. Still I am for affirming the decree. The administrator of the wife is not accountable for any property which may have been disposed of by her in her lifetime; such disposition being as binding on him as on her. The claim of the husband for such property, if any, is against the person who has it in possession. The court was therefore right in dismissing the bill, so far as it claimed relief for any such property; and also in decreeing the payment of the administrator’s costs, he not being in any default.
DANIEL, J.
I think the judge of the Circuit court has given the true construction to the marriage articles entered into between the appellant and his deceased wife, Catharine M. They were carelessly and in-artificially drawn, and the effort to interpret their meaning should be freed as far as possible from the restraint of technical rules.
_ In the body of the instrument, which is signed by the appellant only, he makes, in anticipation, a full surrender and release of all the rights which he might otherwise have acquired in the estate of his intended wife, real and personal, in possession or expectancy, and concedes to her the power to dispose of the same, after marriage, “in as full and ample a manner” as if she had continued a feme sole. Then follows the memorandum, which bears date on the same day with the original instrument, and is signed by both of the parties. It is short, and is in these words: “It is further understood and agreed upon between us, that ^should she die first, I am to retain the property and have the use of it during my natural life, but at my death it is to go to the person or persons which it may be'her will or desire should have it.” I concur with the judge of the Circuit court in thinking that the office of the language employed in the memorandum is fully performed in giving to the husband surviving a life estate in such of the property as remained undisposed of by some act or instrument of the wife operating and taking effect in her lifetime, and which she should dispose of by will or other instrument,to take effect after her death.
The body' of the articles and the memorandum bear date on the 6th February 1834. There is a further memorandum or endorsement of date 20th July 1834, signed by the appellant only, and which is in these words: “It is hereby understood and agreed that the provisions of this contract are not intended to exclude my wife Catharine M. from her right of dower in my estate, should she survive me.” It is argued by the appellant in his petition for an appeal, that all the parts of the instrument must be taken together; that by the last memorandum the dower rights of the wife are fully .secured to her; that it is equally clear that it was the intention' of the parties, as the husband had secured the dower rights of the wife in consideration thereof, that there should be secured to him a life estate in the separate property of the wife: and that while the full benefit of the articles is claimed for the wife against the husband, it is but right that he should have extended to him the benefits of the provisions as against the property of the wife.
It is true that where there is any doubt as to the true import of the language employed by the parties in one part of an instrument, other parts may be looked to and con-suited, and may furnish much aid*in disclosing the true motives and intentions of the parties, and in resolving the doubt. But I do not think that there is any reasonable doubt here as to what the parties meant and intended by the agreement and memorandum of the 6th of February 1834. The wife would have been entitled to dower whether the memorandum of the 20th July had been added or not, there being nothing *147in the preceding- articles or memorandum from which a purpose on her part to waive or abandon that right can be inferred. With this in view, and looking to the order of time in which the several parts of the instrument were executed (regarding the memorandum of the 20th July in this aspect of the case as part of the instrument), the fair inference is that the first parts of the agreement were made uninfluenced by any agreement on the part of Eidson to enter into such a stipulation as that embraced in the said last mentioned memorandum, and that it was afterwards endorsed out of abundant caution, and to shut out all possible implication that the right of dower was surrendered by anything contained in the marriage articles. In this view I do not see how the said memorandum can reflect any light on the preceding parts of the agreement, or exert any influence on their construction. But there is another, and to my mind a conclusive reason, why the said memorandum should not be looked to as disclosing any motive or consideration to bear on the construction of the instrument favorably for the pretensions of the appellant. It is not stated in the bill or answer when the parties were married, but the fair inference to be drawn from the language of the memorandum is that it was endorsed after the marriage. “The provisions of this contract are not intended to exclude my wife,” &c. If so, the endorsement, however it might bind the husband, could neither be regarded as part of the '^original contract nor as explanatory thereof, so as to affect injuriously the claims and pretensions of the wife. Tabb v. Archer, 3 Hen. and Munf. 399.
Upon the whole, I see no reason to question the correctness of the interpretation of the contract given by the judge of the Circuit court, or of the decree which he has rendered.
It is true that there was a balance appearing due the appellant on the settlement of the administration account for which he obtains a decree. The administrator, however, was in no default, the suit having been brought within five or six months after his qualification. Costs were, therefore, properly given to the appellee as the party substantially prevailing.
I am for affirming the decree.
The other judges concurred in the opinion of Daniel, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481447/ | LEE, J.
Jacob Lamb filed his bill in the Circuit court of Augusta county, alleging that in the year 1841, being desirous of borrowing money, he applied to a certain Adam Wise of Rockingham county for a loan. That after some negotiation, Wise agreed to lend him the sum of 1200 dollars, upon which he was to pay the interest as it should annually accrue, and for the accommodation he was also to pay the said Wise, in addition to such interest, an usurious premium of 300 dollars. That with a view to cover and conceal the usurious character of the transaction, at the instance of the said Wise he executed two bonds to Jonathan Lamb, the son of the said Jacob, one for the sum of 1200 dollars, bearing interest from its date, which was the 10th of May 1841, and the other for the sum of 300 dollars, of the same date, both payable three years thereafter, the last named without interest ; and that said bonds were at the same time assigned by the said Jonathan to the said Wise, though the assignments were untruly dated on the 14th, instead of the 10th. And that with a view still farther to cover up the transaction, the said Wise by agreement executed his bond to the said Jonathan Lamb, instead of advancing the money at the time, and subsequently, with the consent of the said Jacob, discharged the same and took it up. The bill then alleges that there was no other consideration for said bonds, and the whole arrangement thus made was a mere shift and device to evade the statute against usury. It further alleges that Wise assigned said bonds to one David Griffith, who afterwards assigned them to one Elijah Hogshead, who instituted suit upon them in the County court of Augusta. That he had intended to plead usury in said action, but that in consequence of the absence of his *counsel, and of information which had been received that no business would be done at the term during which he should have made this defence, the plea was not put in, and judgments were rendered against him for the amount of both bonds. The bill therefore makes Wise, Jonathan Lamb, Griffith and Hogshead defendants; calls on Wise to answer all the allegations of the bill specially, and prays that the court would render such a decree and afford him such measure of relief as the law and the principles of a court of equity will entitle him to demand.
It appears that an injunction was allowed to the judgment mentioned in the bill, but the order granting the -same is not copied into the record, nor does it otherwise appear when the same was allowed.
The defendant Wise answered the bill. He denies that the complainant applied to him for a loan in the year 1841, or that there was any negotiation or communication whatever between them for a loan, or that he had agreed to let him have 1200 dollars on loan, as stated in the bill, the interest thereon payable annually, or that there was any agreement for a usurious premium beyond interest, upon any loan. He alleges that such was not the substance of any contract between them, and that there was no shift or device of the nature stated in the bill, resorted to for the purpose of covering up a usurious transaction. He alleges that before the said bonds were assigned to him by Jonathan Lamb, he had learned both from him and from complainant, that such bonds existed, and that one or both of them proposed that he should purchase them; that he at first declined, though, without knowing or suspecting that the bonds were accommodation bonds, or without consideration, but had at length agreed with Jonathan Lamb, whom he looked upon as the bona fide holder of the bonds, to give him 1200 dollars for them; the money to be paid as soon as he could get it, which *would be in a few days, and for which he was to give his own note to Jonathan, bearing interest from its date; the said Jacob Lamb agreeing, for the purpose of enabling his son thus to cash the bonds, to secure their payment by a deed of trust on real property. He denies that a false date was given to the assignments of the bonds, with any improper design, and thinks they were made on the same day on which the deed of trust was executed, which was the 17th of May 1841. He repeats his denial that his purchase of said bonds was, either in form or substance, a loan of money; and avers that if they were without consideration it was unknown to him, and only known to the Lambs; and that the transaction was on his part a fair and bona fide purchase of the bonds at a reasonable discount. *149On filing his answer (to which there was a general replication), the said Wise gave notice of a motion to dissolve the injunction which had been allowed, to be made at the then next term.
The defendants Griffith and Hogshead also severally answered the bill, and gave notice of a motion to dissolve. They say that they have no personal knowledge whatever of the charges contained in the bill; that they bought the bonds respectively for fair consideration, without knowledge of any such equity as that set up in the bill, but believed them to have been executed on a full and fair consideration. The defendant Griffith also states that after the bonds had been assigned to him he called on the complainant and so devised him, and that complainant admitted they were all right, and said they should be paid when they became due. Both defendants put the allegations of the bill in issue, and call for strict proof thereof.
Sundry depositions were taken and filed on behalf of the complainant; and, on the 12th of June 1845, *the defendants moved to dissolve the injunction. This motion was heard on the bill, answers, exhibits and depositions of witnesses : whereupon the court, by an order of that day, dissolved the injunction as to the principal of the judgment for the 1200 dollars, but overruled the motion as to the damages, interest and costs upon that judgment, and as to the whole judgment for the 300 dollars. On the 15th of November 1845, the defendants moved the court to dissolve the injunction also as to the 300 dollars judgment, and as to the damages, interest and costs upon the judgment for 1200 dollars ; and this motion having been heard as that at the former term, was overruled by the court; and an issue was then directed to be made up and tried by a jury, to ascertain and determine whether the two bonds in controversy, dated on the 10th of May 1841, were executed upon a usurious consideration, as alleged by the bill. Subsequently this issue was tried by a jury, and a verdict was rendered to the effect that the said bonds were in fact executed upon a usitrious consideration, as alleged by the bill. And the cause coming on to be finally heard on the 13th of June 1849, oil the papers formerly read, and the verdict of the jury upon the issue that had been directed, the court pronounced its decree perpetuating the injunction as to the judgment for the 300 dollars and costs, and as to the damages, interest and costs upon the judgment for the 1200 dollars, and for costs in favor of the complainant against the defendants, including those incurred on the trial of the issue. And from this decree Wise applied for and obtained an appeal to this court; and complains that the Circuit court erred in overruling the motion to dissolve both at the June term and the November term 1845, and also in directing at the latter term the issue to be tried by a jury. He also alleges that the verdict was defective in not ascertaining the extent of the alleged *usury, and was therefore too vague and uncertain to warrant the decree pronounced by the court; and that said decree was furthermore erroneous in not allowing him the legal interest at least upon the principal sum due.
The depositions of Jonathan Lamb, the obligee and assignor of the two bonds of Jacob Lamb, had been taken and filed in the cause; but the defendants excepted to its being read as evidence in the cause: And it is very clear that it was not competent testimony, this court having expressly decided that in a controversy between the obligor and assignee of a bond on a question of usury, the obligee is not a competent witness to prove the usury. Gilliam v. Clay, 3 Leigh 590. The testimony of Jonathan Lamb being then out of the case, the only testimony before the chancellor at the hearing of the motion to dissolve the injunction in June 1845, was the evidence of the witnesses Long, Crawn and Hill. Long proved merely that the Lambs resided within two or three miles of Wise, and that Jacob Lamb’s wife was a cousin of Wise; that he thought Jonathan Lamb was worth little or nothing in 1841; and that he had heard Jacob say, some twelve months previously, that he had sold his homestead to his two sons, Jonathan and David.
Crawn merely proved that in 1841, Jonathan Lamb was regarded as worth little or nothing; that about that time he had sold him a lot of oats, but that he required security for the amount, more, however, because of his supposed unwillingness than his want of ability to pay.
Hill proved that in 1841 and 1842 Jonathan Lamb had little or no property, and was generally scarce of money; that Jacob Lamb, for eight or ten years previously, always had an abundance of property in his possession, but was always hard run for money; and that he would not have thought it probable that Jacob *Lamb could have owed Jonathan in 1841 a bona fide debt of 1500 dollars. He also stated that he had heard Jonathan Lamb’s character for truth and honesty spoken of unfavorably.
Now, giving to this testimony its fullest weight and widest latitude for inference, it is impossible to say that it makes out the charge of usury contained in the bill, or overthrows or even shakes the positive, direct and express denial of that charge, and of the facts and elements in which the supposed usury was alleged to consist. In truth it amounted to nothing more than proof of certain circumstances, which, aided by and in connection with other and more pointed and cogent proofs, might tend to make out a case of usury; but which, by themselves and unaided, were exceedingly trivial and of very little weight, and all perfectly reconcilable with the answer of Wise, and the fairness of the transaction that was called in question. *150They served to raise, at the most, but a bare ' suspicion as to the fairness of the transaction. In effect the case presented on the motion to dissolve upon those proofs, was the ordinary one of a bill, all the material allegations of which were met by a full, direct and explicit denial in the answer, and no evidence adduced to sustain them, or to destroy the effect which the law gives to such an answer. Such an answer is not only evidence for the defendant, but it is conclusive in his favor, unless overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other facts and circumstances equivalent in weight to a second witness; and where not so overcome, the court will neither make a decree nor send the case to be tried at law, but will simply dismiss the bill. Story’s Eq. Jur., § 1524; Thornton v. Gordon, 2 Rob. R. 719; Beatty v. Smith, 2 Hen. and Munf. 395; Smith v. Brush, 1 John. Ch. R. 459; Lenox v. Prout, 3 Wheat. R. 520; Pryor v. Adams, 1 Call 382; Alam v. *Jourdan, 1 Vern. R. 161; Pember v. Mathers, 1 Bro. Ch. R. 52. In cases of injunction, if, upon hearing the motion to dissolve, the .court is of opinion that it was improperly granted, or where the facts on which the plaintiff’s equity rests are denied, or the case made by the complainant is not supported, the injunction should be dissolved, 3 Dan. Ch. Pr. 1896; Ches. & O. C. Co. v. Balt. & O. R. R. Co., 4 Gill and John. 1; Livingston v. Livingston, 4 Paige’s R. 111; Wakeman v. Gillespy, 5 Paige’s R. 112. It is true it is said by Judge Story, in Poor v. Carleton, 3 Sumn. R. 75, that extraordinary circumstances may exist in a particular case which would not only justify but demand, in the exercise of a sound discretion on the part of the court, the continuation of a special injunction, notwithstanding the denial in the answer of the whole merits of the bill. In this case, however, no circumstances of an extraordinary character are to be found, calling for the exercise of the discretion of the court in continuing the injunction against the defendant’s motion to dissolve; and I am of opinion they were clearly entitled to a dissolution of the same, both at the June term and at the November term, when their motion to that effect was made and repeated.
And while I cannot perceive any sufficient ground for overruling the motion to 'dissolve the injunction, I am equally unable to find in the case sufficient reason for the order directing an issue to try the question of usury. It is true that directing an issue to be tried by a jury is said to be a matter -of discretion in the court of equity, to - be exercised upon due deliberation; and the expense and delay which it involves- are only to be incurred where the court, in the exercise of a sound discretion, may think it- necessary, except in certain particular cases in which, by statute or practice, it is- made - a matter of right; as a bill by an heir at law impeaching a will, or (in England) one by a *rector or vicar to try the validity of a modus or composition in lieu of tithes. Short v. Lee, 2 Jac. and Walk. 464, 495. But it is well settled that a mistake in the exercise of the discretion of the court upon this subject, is just ground of appeal. That discretion is to be exercised upon sound principles of reason and justice, and the appellate court must judge whether it has been so exercised in a given case. Stannard v. Graves, 2 Call 369; Nichol v. Vaughn, 5 Bligh. Par. Cas. N. S. 505; Dale v. Roosevelt, 6 John. Ch. R. 255; Townsend v. Graves, 3 Paige’s R. 453; Gardner v. Gardner, 22 Wend. R. 526; Belknap v. Trimble, 3 Paige’s R. 577, 601. The general rule laid down upon this subject is, that whenever a material matter of fact in the cause is strongly controverted in evidence, the court may properly direct an issue; as where a material fact positively denied by the answer is supported by the evidence of a single witness with corroborating circumstances, the court will give the defendant, if he ask it, an opportunity of trying the question upon an issue. But in such a case the defendant may decline an issue, and the court is then bound to give judgment upon the whole evidence before it. East India Company v. Donald, 9 Ves. R. 275. So where the evidence is conflicting, or.there is contradictory evidence between persons of equal credit and equal means of information, and the evidence is so equally balanced that it becomes doubtful which scale preponderates, an issue will be proper. 2 Daniels’ Ch. Pr. 1285. There is a class of cases, as has been intimated, in which the court will direct issues, although there be no contradictory testimony, where the parties are invested at common law with certain rights, of which the matter in issue is intended to divest them. Of these are the cases already referred to, of an heir at law seeking to set aside a will by which he is disinherited, and who by practice in England, *and by statute in Virginia, is entitled to an issue devisavit vel non, and of a rector or vicar in England, who, by the practice, is held entitled to an issue to try the validity of a modus or composition set up in lieu of tithes. 3 Daniels’ Ch. Pr. 1287; Banks v. Booth, 6 Munf. 385; Van Alst v. Hunter, 5 John. Ch. R. 148; Rogers v. Rogers, 3 Wend. R. 503, 515. But in all others cases, whether an issue should be directed or not, must depend on the sound discretion of the chancellor. Where an important fact is left doubtful by the testimony, the court ought to direct an issue. Marshall v. Thompson, 2 Munf. 412; Bullock v. Gordon, 4 Munf. 450; Nelson v. Armstrong, 5 Gratt. 354. But I apprehend that where the facts upon which the equity of the bill rests are directly denied and controverted by the answer, and the plaintiff’s case 'is wholly unsupported by proof; or if there be evidence on his part, it is wholly insufficient to make out his case against the positive denial of the *151defendant, (without considering at all any evidence that may be offered by the defend ant,) it is clearly improper to direct an issue. There are, it is true, some -few cases to be found in which issues- appear to have been directed because the proofs offered by the complainant were not deemed entirely satisfactory to the court. In the case of Moons v. De Bernales, 1 Russ. R. 301, and Kaison v. The Same, Ibid., the evidence offered by the plaintiffs was not sufficient proof of their title to the bales of wool in controversy in the causes, and issues were directed by the master of the rolls. But in these cases the defendant admitted by his answer that he had sold the wools and received the money, and set up no adverse claim, but merely called for proof of plaintiff’s title. In the case of Townsend v. Graves, 3 Paige’s R. 453, the chancellor, in delivering his opinion, speaks of issues being directed in cases where there was a want of evidence. What particular cases *he intended, however, is not explained, and what he said upon the point was entirely obiter. These cases seem to be in direct conflict with the rule as laid down by the Lord Chancellor in Savage v. Carroll, 1 Ball and Beat., 283, 550. He there states it to be, that where there is contradictory testimony in a case that raises a doubt in the mind of the court: that is to say, where the case is fully proved by the party on whom the onus of proof lies, but that proof shaken or rendered doubtful by the evidence on the other side, there the court will direct a reference or an issue to ascertain the fact. But where there is no evidence whatever, to direct an issue would be to hold out an opportunity to a party to supply the defect by fabricated testimony, and introduce mischiefs intended to be guarded against by the rules of the court.
In the case of the New Orleans Gas Light and Banking Co. v. Dudley, 8 Paige’s R. 452, it was held that a question of usury arising out of disputed facts, upon the determination of which the complainant’s right to relief depended, was a -proper case for granting an issue before the testimony in the cause was taken : but this was under the provisions of the statute passed in that state (New York) in 1838, making it the imperative-duty of the court to direct an issue upon the application of either party in every case in which an issue of fact suitable for the trial of a jury could be framed. And the chancellor, in delivering his opinion, said that the court, prior to the act of 1838, was not authorized to grant an issue except in a few specified cases, until after the testimony was taken; and then it was not the practice to direct an issue unless there was conflicting evidence so as to create a doubt in the mind of the chancellor, upon some matters of fact. And he added that it might be necessary for the court to direct an issue in that case upon the hearing, if there were such a conflict in testimony as to-render it doubtful '^whether the transaction referred to (the sale of certain property) was or was not a mere device to obtain an usurious advantage. He referred to the cases of Marshall v. Thompson, 2 Munf. 412; Bullock v. Gordon, 4 Id. 450; Douglass v. McChesney, 2 Rand. 109. In other cases, the failure of the plaintiff’s proof, or its insufficiencj' to overcome the direct denial of the defendant’s answer and make out his case, is distinctly considered as not a proper case for an issue. In Pember v. Mathers, 1 Bro. Ch. R. 52, the lord chancellor says, where the defendant in express terms negatives the allegations of the bill, and the evidence is only of one person affirming the allegations so negatived, the court will neither make a decree nor send the case to a trial at law. So where the party seeking specific performance fails to prove the terms of the agreement he relies upon, the court will not direct an issue to ascertain the terms. Savage v. Carroll, 2 Ball & Beat. 451. Nor is a party entitled to an issue or an enquiry to establish a case relied on by his pleading, but omitted in proof. Savage v. Carroll, 1 Ball & Beat. 283, 548. Judge Story lays down the doctrine in almost the same terms as stated by the lord chancellor in Pember v. Mathers, Story’s Eq. Jur., § 1528. In 2 Madd. Ch. Pr. 443, the rule is stated to be, that if the defendant plainly and precisely deny an assertion in the bill, and one witness proves it as positive^, clearly and precisely as it is denied, no decree for relief can be made. Whatever may be the practice elsewhere as to the cases appropriate for an issue, and in which the discretion of the chancellor is wisely and properly exercised in directing it, there can be little doubt that in Virginia, where the allegations of the bill are expressly and directly denied in the answer, and are wholly unsupported by proof, or supported by the evidence of one witness only, the court should not direct an issue, but should dismiss the bill. Pryor v. Adams, 1 Call 382; *Paynes v. Coles, 1 Munf. 396, (Judge Roane’s opinion.) And the case of a bill seeking relief against usury constitutes no exception to the rule; and the propriety of directing an issue in such a case depends upon the same considerations which apply in others of whatever character. Whether the object of a bill of that character be to obtain relief upon the principle of Marks v. Morris, or under the third section of the act of 1819, if the alleged usury be denied in the answer, proof is indispensable; and if it be not produced the result is the same as in any other case. All that the court can do, and what it properly should do, is to dissolve the injunction (if one have been allowed) and dismiss the bill. Gilliam v. Clay, 3 Leigh 590. And the proof which is required to avert this result, must be as in other cases, the testimony of two witnesses, or if there be but one, his testimony must be supported by corroborating circumstances. Thornton v. Gordon, 2 *152Rob. R. 719. In the case of Grigsby v. Weaver, 5 Leigh 197, which was a bill for relief against a contract alleged to be usurious, the date of the loan became a very material matter to determine the question of usury. The defendant had been specially called on to give the information to fix this date. He stated in his answer that he had taken no memorandum and could not speak as to the time: and the plaintiff could bring no witness to prove it. The chancellor directed an issue. Judge Carr, in delivering the opinion of the court, said: “Issues are not directed to enable parties to get a new supply of evidence where they have not enough, but where there is clashing and conflicting evidence leaving the fact in doubt and rendering it necessary to weigh the character and credibility of witnesses,” — “In this case,” he proceeded, “there is no clashing. The point was to fix usury in the bond of May 1817. To show this- usury, the date of the loan must-be somehow -fixed. The defendant said he *could not speak as to the time, and the plaintiff could bring no wit-, ness to speak as to this date. Here there was a clear defect of proof; a failure to establish the very point on which the usury and the quantity of it depended. It is the bounden duty of a plaintiff who calls for the solemn judgment of the court, to furnish that court with something like certainty to rest that judgment upon ; he may draw this from the defendant if he can; he may prove it by witnesses; he may establish it by documents; but in some way he must shew it or he fails, and his bill should be dismissed.” “This is,” he adds, “in my mind, that case; instead of an issue, the bill ought to have been dismissed for defect of proof.” Judge Brooke, in his opinion, expressed similar views, and thought the chancellor, instead of directing an issue, should have dismissed the bill. .The case of Thornton v. Gordon, 2 Rob. R. 719, was an injunction to stay the sale of property conveyed to secure to a debt alleged to be usurious, and the complainant averred his readiness to make full proof of the allegations of his bill, and disclaimed all benefit of a discovery from the defendant. The defendant filed his answer denying the allegations of the bill. The complainant offered the testimony of but a .single.witness, pnsup- . ported .by corroborating circumstances. The court held that to deny the allegations of the bill by his answer, .was the.privilege of the defendant from his position as defendant, called on to answer and make up an. issu.e,, and that the plaintiff could not, by waiving a discovery,-deprive.him of the benefit of it. That benefit consisted in putting the complainant to proof, of bis cause by two witnesses or one witness and corroborating circumstances. -That not having been furnished, the court was of, opinion not that, an issue .should, be directed, but that the. injunction .should be dissolyed. and th.e bill dismissed.. . And in the.case of Read v. Cline’s heirs, decided, during *the present term of this court, supra 136, the same doctrine held by Judges Carr and Brooke,, in the case of Grigsby v. Weaver, was distinctly asserted. That was a bill to set up a lost title bond, and to obtain a decree for a conveyance of the land alleged to have been sold according to its terms. The complainants were put to proof of the allegations of their bill, but the -evidence offered was very unsatisfactory as to the facts, whether such a title bond ever existed, or if it did, whether it had been assigned to the ancestor of the complainants, as they claimed, and whether it had been lost, as alleged, and also as to the contents of the bond, and whether the defendant had notice of its existence before his purchase; and the court below directed an issue to ascertain those facts. The defendant appealed, and this court held that as there was no clashing or conflict in the testimony, but simply a failure on the part of the complainants to meet the call made upon them for full proof of the allegations of their bill, and to make out their case, it was not such a case as rendered an issue necessary or proper; and that the court below, should have dismissed the bill, instead of directing an issue for the purpose; and it was so decreed here accordingly.
With these views, and upon the authority of the cases which I have cited, I am of opinion that the Circuit court erred in directing the issue by its order of the 15th of November 1845, and that instead of directing such issue it should have dissolved the injunction, and if the case was were ready for final hearing, have dismissed the bill.
But the jury, upon the trial of the issue, have found a verdict affirming that the transaction impeached by the bill was in fact usurious as therein alleged; and the question arises what decree the court should render upon the whole case, including the verdict so found. It may be argued that the defendant, *not. having form- . ally and expressly objected to the order directing the issue, nor taken an appeal from it at the time to this court, but having gone to trial of the issue before the jury, may be. regarded as having waived all objection to the order for the issue, and that the irregularity, if any in its direction, has been thus fully cured ; that the error of the court, if it did err in directing the issue, was but. in the exercise of the discretion with which it was invested, and that the .decree granting relief conformably to the verdict should not for this cause be now disturbed. Ractum valet, fieri non debet. But I do not concur in this reasoning. The defendant asked, for the dissolution of the injunction, to which, as I think, upon the case before the court, he was justly entitled. The court overruled his motion, and proceeded not upon his .motion .nor that of the complainant, but because, it thought it was proper so to do,,to direct an issue to try the question of usury. The. defendant could but submit *153to the order. He was not required to express any objection, and although he might have appealed from it to this court as an order to a certain extent settling the principles of the case, and if erroneous, improperly involving him in the delay, trouble and expense necessarily incident to a trial by jury (as held by this court in the case of Reed v. Cline’s heirs.) Yet he was not bound to take his appeal at that time. He had a right, if he chose to await the final hearing of the cause, to take a part in the trial before the jury, or, if he pleased, wholly to abstain from doing so, and take his chance, if the verdict should prove adverse, to obtain redress non obstante veredicto, upon the final hearing of the cause; or, if he failed in the Circuit court, by an appeal to the court of appellate jurisdiction. Whether he took a part or not in the trial of the issue before the jury, does not appear, as the record of that trial is not embraced in the record before us; but *whether he did or did not I think immaterial, as either way, I conceive he lost no right which he could otherwise claim, nor is to be held as acquiescing in the irregular order directing the issue. But this I regard as no longer an open question or a subject of further discussion. In the case of Pryor v. Adams, 1 Call 382, the bill was filed to compel payment of the amount of depreciation on a bond which the complainant had held on the defendant, and of which he had consented to receive and had received payment in depreciated paper money, and had surrendered up the bond upon an express promise which he alleged the defendant made at the time, to pajr the depreciation. The defendant in his answer denied the alleged promise. The chancellor held that the allegations of the bill which were denied by the answer had not been proved by the evidence, and dismissed the bill with costs; but he afterwards, during the same term, set aside that decree and directed an issue to determine whether the defendant, at the time the money paid in discharge of the bond in the bill mentioned was received or after, agreed to allow the depreciation. The issue was tried, and the jury found that the defendant had agreed to allow it. The court thereupon decreed that the defendant should pay the amount of the depreciation and the costs, and the defendant appealed. And it was held in the Court of appeals that the complainant having failed to overcome the defendant’s denial in his answer and to support the allegations of his bill by proof, the first decree dismissing the bill was right and should be affirmed ; and that notwithstanding the verdict for the plaintiff, the order directing the issue and all the subsequent proceedings should be reversed: and it was so decreed accordingly. In the case of Collins v. Jones, 6 Leigh 530, an issue was directed and a verdict was found in favor of the complainants, and relief thereupon decreed. This court held that the issue was '^improperly directed; and that notwithstanding the verdict in favor of the complainant, the decree should be reversed, the injunction dissolved, and the bill dismissed: and it was so decreed accordingly. These cases have never been overruled, nor, so far as I am aware, even questioned in any subsequent case, and I regard them as binding authorities of themselves, and as prescribing a rule having its foundation in just reason and a wise policy; and they seem to me directly to rule this case. I am of opinion, therefore, that the Circuit court erred in decreeing relief to the complainant on the final hearing of the cause; and that it should then have repaired the error previously committed, by dissolving the injunction notwithstanding the verdict, and dismissing the bill.
With regard to the questions of the measure of relief to be afforded in a case of this kind, and the sufficiency of the verdict to authorize the decree pronounced by the court, I deem it unnecessary to express any opinion, as, in the view which I take of the case, neither of those questions properly arises in the cause; the complainant not having shown himself entitled to any relief, or to an issue to try the question of usury when the order for it was made by the court.
I am of opinion that the decree should be reversed with costs to the appellant; that the order directing the issue and the verdict of the jury should be set aside; that the injunction should be whout dissolved, and the bill dismissed with costs to the defendants in the Circuit court.
The other judges concurred in the opinion of of Lee, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481448/ | *ALLEN, J.
It is objected in this case that the bond upon which the proceeding was had, is void on account of its uncertainty; or if not, and if all the obligors are to be treated as deputy sheriffs, this proceeding cannot be sustained, because the remedy by notice is given by the statute against the deputy and his sureties, and not against one deputy for the default of another deputy. As to the first question there would seem to be nothing in it. The bond from a deputy to the high sheriff is not a statutory óbligation; no particular form is prescribed. We may conjecture from the appearance of the paper that some of the obligors signed as deputy sheriffs, and others as their sureties; or that the bond was drawn originally to be signed by certain persons appointed deputies and others as their sureties; and that the blank spaces were left to be filled ttp with the names of the deputies for whose acts the others intended to become responsible. However this may be, the paper was executed and delivered as a complete instrument in its present form. Certain persons are named in the penalty as obligors, though all so named do not sign the bond. The condition recites that the obligee hath this day admitted the above bound his deputies in the office of sheriff; and provides for the faithful performance of the duties of their respective offices as such deputies. There is nothing on the face of the bond to indicate that all named in the penalty were not appointed as deputies, and the obligors having sealed and delivered the bond in its present shape, are estopped from denying the fact. The notice is to Samuel Cox, jr., the first person named in the penalty, and the first signer as deputy, and to the others as surviving obligors; treating the first named as principal, for whose default and misconduct in his office of deputy, the representative of the sheriff had been held liable, and proceeding against his co-obligors as sponsors for his acts. If the legal effect of their ’''undertaking be, that the other obligors become responsible as sureties, the notice may be maintained, although they are not expressly named as sureties in the bond. Deputy sheriffs have no joint interest in, or an entire authority over, the whole office; and therefore there is no case in which one is responsible for the acts of the other, merely in virtue of their offices; there is neither a joint right nor a joint responsibility, and they can only be held liable for the acts of each other in consequence of an express undertaking. As therefore they do not and cannot be made to stand as principals in respect to the acts of others, and as the bond makes them by its terms responsible for each other, each *156one must be regarded as principal so far as his own acts are involved, and the remaining obligors as his sureties. This is the rule laid down in the case of Morrow v. Peyton, 8 Leigh 54, and applied to the case of administrators who have a joint and entire authority and control over the whole assets, and who it was conceded from their joint authority would be considered as principals when they united in the act or in some way participated in or sanctioned it. The case of Morrow v. Peyton it is true is in conflict with the principles announced in Kirby v. Turner, 1 Hopkins’ Ch. R. 309, in which it was held that as guardians were jointly liable for their joint acts, and each separately for his own acts, their rights were not varied by having given a joint and several bond with a suretj', and that they were not by such bond made sureties for each other: the bond of all in such case being considered as the bond of each one, with a surety for the fidelity of all and each. The decision proceeds upon the ground that the bond is a statutory bond; that the law requiring a bond did not change the common law relation of'the parties, and therefore that a joint and several bond must have the effect of separate bonds. In Brazier v. Clark, 5 Pick. R. 96, it was held that if two *executors enter into a joint and several bond, both are responsible for all acts done by either during the continuance of the joint executorship. But if one died, and the survivor thereafter committed waste, the estate of the deceased executor should be held discharged. This is a modification of the principle as laid down in Kirby v. Turner.
The common law liability of each on the' bond, for the acts of the other during the continuance of the joint executorship as growing out of the contract of the parties, is admitted: but when the survivor succeeded to the whole authority, he alone and those who were securties for him were reponsible. And this construction is given because it could not be supposed the legislature in requiring bond, intended to change the common law liabilities of the executors. To the same effect is the case of Towne v. Ammidown, 20 Pick. R. 535. All these cases are founded upon a construction of the statute requiring these bonds; it being considered that the statute did not change the legal relation of the parties; and although the terms of such a bond might literally import -a- different legal effect, they should be construed according to the intention of the law, and have effect according to the duties they were meant to enforce.
In Clark & wife v. Williams, 6 Gill. & John. 288, the court held that where executors give a joint and several bond they afe jointly and severally responsible, each for the acts of the other. The judge, in delivering the opinion of the court, remarked that they could not adopt the anomalous character attempted to be given to the bond, treating it as the separate bond of each, in which the sureties are' bound for both, but the adiftinistrators were not responsible for' each other.
In Liddersdale v. Robinson, 2 Brock. R. 160, Marshall, Ch. J., decided that where an administration bond is *joint,.one administrator is responsible for his coadministrator. And in Green v. Hanberry, 2 Brock. R. 403, the same judge held that on such a bond each was surety for the other, and liable for the whole.
The weight of authority would therefore seem to be in favor of the principle of Morrow v. Peyton, in respect to the bonds of administrators and executors. The authority of this case has been recognized and followed since in other cases determined in this court. And as the legislature has not thought proper to interfere with the rule there laid down, although there has been a general revision of the laws since that decision, it ought not now to be considered as an open question.
But the present is a stronger case for the application of the principle than the cases referred to. The bond is a common law obligation not taken by any legal functionaries, but given' upon a contract between the parties. The penalty creates a present debt defeasible by matter subsequent, and all are responsible for that debt if the condition is not performed; and it is difficult to perceive in what mode any party to the bond could defend himself in an action at law for a breach of the condition by any of the parties to it.- A plea that it was not the joint bond of all would contradict the terms of the ' instrument. I think the obligor committing the default is liable as principal, and the co-obligors as his sureties; and such being the legal effect of the bond, the high sheriff-had aright to proceed by notice under the statute. Though some of the persons named in the penalty did not sign it, the parties who did sign it are to be considered as the obligors who are bound, and are recited to have been admitted as deputies ; and if any have signed who are not named in the penalty, that circumstance does not vitiate the bond or discharge them from its obligation. Luster v. Middlecoff, 8 Gratt. 54; Berry v. Homans’ committee, 8 Gratt. 48.
*It is argued that no foundation was laid for the introduction of the bond as evidence because the judgment against the high sheriff for the default of the deputy, was not accompanied by the whole record; and no proof was given of the appointment of the high sheriff or his qualification, or of S. Cox as his deputy, nor of the default of the deputy.
It was not incumbent on the appellee to produce the whole record on the trial of the notice; it was sufficient to produce so much thereof as showed that the sheriff had been subjected to a liability for the default of the deputy Cox; White v. Clay, 7 Leigh 68; Wynn v. Harman, 5 Gratt. 157; and this sufficiently appeared upon the record of the judgment exhibited. That recited that the motion against the appellee was on a notice for the failure of Samuel Cox, deputy for Jonathan Thomas, late *157high sheriff, to pay over money collected i on executions therein described. And although the deputy and the other obligors are not concluded by the judgment and its recitals, it is prima facie evidence against them.
The bond itself estops the obligors from denying the fact that Thomas was sheriff and Samuel Cox was deputy. 1 Greenl. Evi. § 22, 26; Rainsford v. Smith, Dyer’s R. 196 a. In Cutler v. Dickinson, 8 Pick. R. 386, a bond given by the administrator to a judge of probat with the usual condition, was offered in evidence. It was objected to because it appeared on examining the records of the probat office, that there was no decree or other evidence of the appointment of the administrator except what resulted from the bond ; and according to a case referred to in the argument, the law required probat decrees to be recorded. The court held that the obligors were estopped by the recital in the bond to deny the appointment of the administrator. So parties were estopped from denying that there was such injunction, or judgment or decree *as their bond recites and describes. Allen v. Luckett, 3 J. J. Marsh. R. 165; Stockton v. Turner, 7 Id. 192; Kellar v. Becler, 4 Id. 655. In all those instances the matter recited, and which the parties were estopped by their bond from denjúng, ought regularly to appear of record.
It is not necessary to carry the principle in this case as far as it was done in the cases cited. If in the case of a mere statutory bond, it should be held that the authority of the officer to take it must be shown, and that the recitals would not be evidence of such fact, the bond here is a common law obligation, and no question as to the authority to take it can arise. I think the court did not err in overruling the objection to the bond and receiving it in evidence.
Nor do I think there was any error in rendering judgment upon the facts as set out in the second bill of exceptions. It is said the notice describes a judgment as rendered by the Circuit court of Grayson on the 4th April 1846, and the judgment given in evidence does not show in what court nor at what time it was rendered. This is a mere clerical omission in copying the judgment into this record. All the proceedings were in the same court, and the judgment was read in evidence without objection. The award incorporated in the judgment, shows it was made under an order entered in the cause depending in the court described in the notice; and as the award which was made the basis of the judgment was dated on the 4th of April 1846, and appears to have been confirmed on the day it was returned, the objection docs not seem to have been well founded in fact. The submission to arbitration did not destroy the right of the high sheriff to recover. The award constituted in part the evidence on which the court rendered judgment. The liability of the deputy sheriff was shown by the return on the execution, which was also in evidence; and *from the face of the award it would seem that the submission was for the benefit of the deputy to enable him to produce his credits. The notice to produce credits is stated to have been given to him, and those allowed were exhibited by him. The judgment therefore, in the absence of all proof to the contrary, shows that the defaulting deputy had notice of the proceeding against the representative of his principal and did attend to the defence. Upon the whole, it seems to me there is no error in the judgment of the Circuit court.
The other judges concurred in the opinion of Allen, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481449/ | ALLEN, J.
This is a proceeding by the representative of Jonathan Thomas, late sheriff of Grayson county, to recover from Samuel Cox, his deputy, and his co-obligors in a bond to the sheriff, the amount of a judgment recovered against the administratrix of the sheriff by the surviving executor of William Bourn deceased, on account of the default of the deputy. The proceeding was had upon the same bond referred to in the former case between these-parties, and the same objections to the validity of the bond were relied on, and were then disposed of.
In this case it does not appear from the evidence as set out, that the execution with the return of the deputy was produced. The judgment" against the administratrix of the sheriff, recites that the notice *against her was to recover money collected by the deputy on an execution which issued out of the County court of Grayson on the 29th day of August 1833, in favor of William Bourn, which came to the hands of Samuel Cox as deputy of Thomas, the high sheriff of the county, who had returned that- he had received the amount of the execution. The whole evidence consisted of the notice, the judgment aforesaid, and the bond, the execution of which was proved. And in the absence of all other proof the- judgment furnished prima facie evidence against the deputy and his sureties of the- facts therein recited, and showed that the representative of the sheriff had been subjected to a liability for the default of the deputy, as in the notice alleged.
Nor is there anything to show that the recovery of the creditor against the sheriff or his administratrix, was barred by the statute of limitations. It does not appear when the proceeding was instituted against the representative of the sheriff, or what defence was made to the notice. It was-sufficient for the defendant in error -to make out a prima facie case entitling her to recover. If the statute of limitations or any other matter would have constituted a valid defence, the proof should have come from the plaintiffs in error. The judgment against the administratrix must be presumed to be correct in the absence of all proof to the contrary.
The last objection to the recovery is of a more serious-character. It appears upon the face of the judgment that the execution *159upon which the money was collected issued from the County court of Grayson, and the judgment was rendered by the Circuit court. By § 48 of act 1 Rev. Code S42, the creditor is authorized to recover by motion in the court from which the execution issued, the amount collected, with interest at the rate of fifteen per centum per annum from the return day *'of the execution until paid. The question then arises whether the judgment, supposing-it to have been pronounced on a notice commenced in the Circuit court, was a mere nullity originally. In the case of the Marshalsea, 10 Coke 76 a, it was resolved that when a court has jurisdiction of a cause, but proceeds erroneously, no action lies against the party who sues, or the officer who executes the precept of the court. But, if the court had no jurisdiction, the whole proceeding is coram non judice, and actions will lie against them without any regard to the precept. If the court has cognizance of the cause, advantage cannot be taken of an erroneous judgment collaterally ; for although the error be apparent, the judgment remains in force until reversed. Drury’s case, 8 Coke 141 b; Tarlton v. Fisher, Doug. R. 671. The only question then would seem to be whether the subject matter was within the jurisdiction of the court; if it was, if the jurisdiction of the court extended over that class of cases, it was the province of the court to determine for itself whether the particular case was one within its jurisdiction. The Circuit court is a court of general jurisdiction, taking cognizance of all actions at law between individuals, with authority to pronounce judgments and to issue execution for their enforcement. The jurisdiction of the court to take cognizance of. all controversies between individuals in proceedings at law, need not (as in the case of courts of restricted and limited jurisdiction), appear on the face of the proceedings. Where its jurisdiction is questioned it must decide the question itself. Nor is- it bound to set forth on the record the facts upon which its jurisdiction depends. Wherever the subject matter is a controversy at law between individuals, the jurisdiction is presumed from the fact that it has pronounced the judgment: And the correctness of such judgment can be enquired into only by some appellate tribunal. The execution which *would issue on the judgment in the case under consideration, would not disclose to the officer the nature of the proceedings on which the judgment was founded. There was no necessity to set forth in the judgment on what evidence it was rendered; and being a judgment for a pecuniary recovery which the court had general jurisdiction to render, the sheriff would have been bound to execute it, and the execution would have been his justification. In Grignon’s lessee v. Astor, 2 How. U. S. C. R. 319, it is said “that the true line of distinction between courts whose decisions are conclusive if not removed to an appellate court, and those whose proceedings are nullities if their jurisdiction does not appear on their face, is this: a court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered; whose record is absolute Verity, not to be impugned by averment or proof to the contrary, is of the first description.” Of that description is the Circuit court, and its decision in controversies at law is evidence of itself to show jurisdiction and its lawful exercise. The subject matter being within the jurisdiction of the court, it is immaterial by what form it is exercised; they do not affect the jurisdiction of the court. Thus it is said in the case of the Marshal-sea, if the Court of common pleas holds plea in an appeal of death, and the defendant is attainted, it is coram non judice. But if the same court in a plea of debt award a capias against a duke, which by law does not lie against him, and that appear in the writ itself, although the writ be against law, yet as the court has jurisdiction of the cause, the sheriff arresting by force of the writ is excused: So also if the Court of common pleas holds plea in debt without original, it is not void, for they are judges of those pleas, and it cannot be said the proceeding is coram non judice. So here the judges *of the Circuit court are judges of pleas against sheriffs, whether carried on by action at common law or by notice under' the statute; though in a given case, they may err in determining on their jurisdiction. In the case of Prigg v. Adams, 2 Salk. R. 674, in an action for false imprisonment, the officer justified under a ca. sa. on a judgment of the Court of common pleas, upon a verdict of five shillings upon a cause of action arising in Bristol. The plaintiff replied an act of parliament creating a court in Bristol, and declaring that if any person brought any such action in any court at Westminster, and it appeared upon trial to be under 40 shillings, no judgment should be entered upon it; and if entered it should be void. Yet the court held it only voidable, and sustained the plea. The principle of that case is decisive of this. There, although the act of parliament declared the. judgment-void, yet as a court having jurisdiction of the subject matter had rendered it, though the error appeared on its face, it could be corrected only in an appellate tribunal. The case of Prigg v. Adams is cited and relied on by President Tucker in Fisher v. Bassett, 9 Leigh 119; and the same principle was affirmed in that case: the court holding that as the General court had jurisdiction to grant letters of administration, although the state of facts was not such as. to give the court jurisdiction to grant administration in the particular case, yet the-grant was not a void but only a voidable act. The judgment in this case must be considered as conclusive for another reason : Both parties appeared, and the defendant either submitted to the jurisdiction, or it was decided against him. In such case *160President Tucker, in Fisher v. Bassett, observes, that the question whether the general jurisdiction of the court over matters of that description embraced the particular case having been decided by its judgment, can never be raised again except by proceedings in error.
*The objection to the validity of the judgment is not well founded for another reason: It does not certainly appear that the proceeding commenced in the Circuit court. It may have been instituted in the County court and removed to the Circuit court, or have been retained in the Circuit court upon a reversal of a judgment of the county court. The court in favor of the judgment would if necessary be bound to presume that such was the fact, and it was the duty of the other side to have produced the whole record to repel such presumption, if he intended to raise the question. I think there is no error in the judgment, and that it should be affirmed.
MONCURE and LEE, Js., concurred in Judge Allen’s opinion.
DANIEL, J., concurred in affirming the judgment. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481450/ | ALLEN, J.,
delivered the opinion of the court.
The bill in this case is filed to set aside two deeds executed by Shadrach Greer to his son Isaac Greer. They are assailed upon two grounds: First, that by reason of extreme old age and disease, his memory and judgment were so much impaired as to disqualify him from making a valid disposition of his property by deed or will; and second, that the appellant procured the deeds from him by the exercise of undue influence over a mind weakened by the infirmities of age and sickness. Upon the hearing of the cause, issues were directed to ascertain whether at the time of executing the deeds the grantor was of sound mind and capable of executing such deeds. 2d. Whether the deeds were procured to be executed by fraud. After an ineffectual effort to try the issues, the court perceiving from the time consumed that it would be impracticable to dispose of them within any reasonable period, and believing that there was no real conflict of testimony making the intervention of a jury essential, and the parties moreover agreeing that the court should decide the whole case without the intervention of a jury, set aside the issues. The case being thereafter fully matured, the court proceeded to hear it, *and to pronounce the decree from which the appeal was taken.
It was determined in the case of Samuel v. Marshall, 3 Leigh 567, that if the evidence on a question of fact, though various and conflicting, be such as ought to satisfy the chancellor’s conscience as to the truth of the case, he need not direct an issue to try the fact. In this case there was no such conflict of testimony as to the facts put in issue by the pleadings, as to render the aid of a jury indispensable; and under the authority referred to, the court, even without the consent of parties, would have been justified in setting the issues aside.
The deeds in this case contain an entire disposition of the estate of the grantor, and stand in the place of, and seem to have been regarded by the grantor in the nature of a testamentary disposition of his property. The principle which has been applied to last wills in respect to the state of mind and degree of capacity, sufficient to make a valid devise or disposition of property, is equally applicable to the case of this grantor. Mere weakness of understanding is no objection toa man’s disposing of his estate. “A man of mean understanding, yea, though he incline to the foolish, is not prohibited to make a testament.” Swinburne 127, 8. “Courts cannot measure the size of people’s capacities, nor examine into the wisdom and prudence of men in disposing of their property.” Jarman on Wills 52. In Shelford on Bunacy, p. 37, it is said: “A person being of w'eak understanding, so he be not either an idiot or a lunatic, is no objection in law to his disposing of his estate. Courts will not measure the extent of people’s understanding and capacities. If a man be legallj" compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions. ’ ’ It not being ^pretended that the grantor here was non compos mentis, laboring under a total or temporary deprivation of reason, there can be no question of his legal capacity to make a valid disposition of his estate, if, in the language of Washington, J., in Stevens v. Vanclieve, 4 Wash. C. C. R. 262, “he was capable of recollecting the prox^erty he was about to dispose of, the manner of distributing it, and the objects of his bounty,” and if the particular act was-attended with the consent of his will and understanding. For although the person may labor under no legal incapacity to do a valid act or make a contract, yet if the whole transaction, taken together with all the facts, mental weakness being one of them, showed that consent, the very essence of the act, was wanting, it would be void. Stewart v. Lispenard, 26 Wend. R. 255. Of this description was the case of Samuel v. Marshall and wife.
As to undue influence; the influence resulting from affection and attachment, or the mere desire of gratifying the wishes of another, if the free agency of the party is not impaired does not affect the validity of the act. Where a legal capacity is shown to exist, that the party had sufficient understanding to clearly comprehend the nature of the business, that he consented freely to the special matter about which he was engaged, and no fraud or undue influence is shown to have been used to bring about the result, the validity of the disposition cannot be impeached, however unreasonable or imprudent or unaccountable it may seem to others. It is not the propriety or impropriety of the disposition, but the capacity to make it, and the fact that it was freely made with the full assent of the grantor, that must control the judgment of the court. It would be a useless consumption of time to enter upon a careful analysis of the great mass of testimony contained in this voluminous record. Almost every case of this kind must depend on the peculiar circumstances ^attending it. The facts *162in one case can but rarely serve to illustrate or elucidate another. By the consent of parties, the judge below was substituted in the place of the jury; he had heard much of the evidence in the fruitless attempt to try the issues, and was well 'qualified from his long acquaintance with the inhabitants of the county to weigh properly the weight of the testimony. A decree pronounced under such circumstances upon the facts of the case, is entitled to the highest respect. But the force of that- decree in regard to the questions really involved in the -issue, is somewhat impaired from the fact, that the judge in the opinion filed, expresses the belief that the deeds were executed upon a secret trust to secure the property from the grasp of certain creditors of Jesse, one of the sons of the grantor, and with the expectation that the appellant would distribute the property according to the provisions of his wills, the last of which had been executed a short time before these deeds. The judge details at length the facts, from which he inferred the motive of the grantor in making the deeds. Such a motive, if the facts justified the inference, would seem to evince a degree of intelligence, utterly inconsistent with the position upon which the decree rests, the incompetency of the grantor. On a careful review of the whole testimony, we are of opinion that it fails in establishing such a degree of imbecility as to show that the grantor was incompetent to make a perfectly valid disposition of his estate by deed or will. The evidence, so far as facts bearing on the question of competency are deposed to, proves that the grantor was a man of much vigor of mind, notwithstanding his advanced age. That although there were occasions on which it appeared his memory was slightly impaired, yet the solid powers of his understanding remained unaffected. The proof shows that he superintended and directed the preparation of the deeds; *that his mind and memory were sufficiently sound to enable him to understand and fully comprehend the business he was engaged in; and there is no evidence whatever to prove that any undue influence was exerciséd to induce him to execute the conveyances.
The court is therefore of opinion that the decree of the Circuit court is erroneous. Reversed with costs. And this court proceeding, &c., bill dismissed with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481451/ | LEE, J.,
delivered the opinion of the court.
It appears to this court that the several grounds of objection successively taken by the intestate of the appellant Edins, and upon which he sought to arrest the collection of his bonds for the purchase money of the land bought of George; Hughart and assigned to the appellee McClung, prior to the decree of the 19th of October 1842, on the original bill of the said Young against George Hughart and others, and the cross bill filed in that cause by the appellee. McClung, were either unsupported by proof or successfully removed by the measures adopted by the parties interested, as disclosed by the record of said cases. The loss of a portion of the land, including a valuable coal bank, by reason of an outstanding paramount title, was wholly unsupported by proof; and in fact the equity *set up in the original bill upon that foundation was not relied upon by the said Young in his supplemental bill. The encumbrance which it was charged rested upon the land by reason of the vend- or’s lien for the unpaid balance of purchase money due to the said Boardman from George Hughart, Young’s vendor, was effectually removed by the pajmient of that balance by the said Charles Hughart for and in the name of his father, to John A. North, the agent of the said Boardman, in October 1836. And the difficulty which had been interposed, founded upon the defective character of the conveyance from Joseph E. Caldwell, as the agent and attorney in fact of the said Boardman, for the land in controversy to George- Hughart, was met by the cross bill filed by William McClung convening the said Young, George Hughart and the executors and heirs at law of the said Board-man (who had in the mean time departed this life) before the court, with a view to obtain by its decree a new and perfect conveyance of the legal title to the land from the heirs of the said Boardman to the said George Hughart, and through him to vest the same in the said Young. And all the questions which had been raised by the said Young in his original and amended and supplemental bills touching his obligation to complete the contract for the purchase of the said land from the said George Hugh-art, and to pay the bonds given by him for the purchase money therefor, which had been assigned to the said McClung, must be regarded certainly, as between the said Young on the one hand and the said George Hughart and McClung on the other, as finally and forever settled and adjudicated by the decree of the 19th of October 1842. That decree affirmed that the alleged loss of part of the land, including the coal bank, by reason of an outstanding paramount title thereto, was not sustained by proof; .and that if it had been proven, it was a claim sounding *purel3> in damages, and not the subject of relief in a court of equity; and that the clouds which rested upon the title to the land by reason of the matters alleged in the bills had been removed, and that a good title could then be had to the same, for which due provision was thereby made.
It further appears to this court whether the appellant Bowyer, the surety of the said Young in the forthcoming bonds given by him upon the judgments upon his three bonds, for the purchase money of the said land, assigned to the said McClung, not being a party in either of the causes in which the decree of the 19th of October 1842 was pronounced, was or was not bound by that decree, is a question not material to be decided in these causes; because if it be affirmed that the said appellant Bow-yer did not so stand in privity with his principal Young, by virtue of such his suretyship as aforesaid, as to be concluded by the decree of the 19th of October 1842, even in the two cases commenced and prosecuted by him conjointly with Young, and after his death with his administrator, who were concluded by that decree, yet it appears that the original and supplemental bills of the said Bowyer and Young, filed in the Circuit court of Eayette, and subsequently transferred to the Circuit court of Greenbrier, and the original bill filed by the appellants Bowyer and Young’s administrator, in the Circuit court of Green-brier in March 1847 (which constitute the two cases in those names now in judgment), exhibit copies of the proceedings of the case of the said Young, and the cross bill of McClung, which resulted in the decree of the 19th of October 1842, and also of the case of Charles Hughart against the said George Hughart and Joseph H. Caldwell, and they are expressly made part and parcel of these cases. Thus the court on the hearing of these causes, on the 23d of October 1849,. had all the proceedings in the *other causes before it expressly made part of these causes by .the appellants Bowyer and Young themselves, presenting all the facts and circumstances of the whole case, and was called upon to decide as between Young and Bowyer on the one hand, and George Hughart and McClung on the other, the same questions which had been determined by the decree of October 1842, between the latter and the said Young, together with another question presently to be noticed upon the same state of facts and proofs, though presented in a somewhat different state of pleadings; and if the court was right in its adjudication of those questions by its decree of the 19th of October 1842, as in the opinion of this court it was, it did not err in coming to the same conclusions in the decree of the 23d of October 1849. It is true these causes were heard in part upon a demurrer to the amended and supplemental bills in the one case, and a demurrer to the original bill in the other; and it may be said that those *168bills upon their own allegations showed ample equity, and a proper case for relief, and that the demurrers therefore should have been overruled and the defendants put to answer as to the facts. But considering the allegations of these bills in the connections which they themselves establish with the other causes, and as illustrated by all the facts and circumstances of the whole controversy thus invoked into these causes, it appears to this court that the whole case might have been as safely and correctly passed upon by the court, and the legal effect of those facts and circumstances as accurately perceived and determined as if the same had been presented to the court by full answers, stating all the facts again in terms.
Thus in effect it appears to this court that after the decree of the 19th of October 1842, there remained for discussion between these parties but the single question presented by the claim of Charles Hughart, to *be substituted to the rights of Boardman and his lien upon the said land, by virtue of the payment made by him to North, the agent of Board-man, of the balance of the purchase money due from George Hughart in October 1836. And it appears to this court that this claim of the said Charles Hughart was without any just foundation whatever; that the said payment made by him to North was for and in the name and behalf of his father, the said George Hughart, and for the very purpose of satisfying the debt due to the said Boardman, and extinguishing the lien which he might, otherwise assert upon the land; and thus facilitate the collection of the bonds of Young, which had been assigned by his father to the said McClung. And that therefore no lien was created by subrogation or otherwise in favor of the said Charles Hughart, upon the said land, by reason of such payment, at least against the said Young, the purchaser, and McClung, the holder of the bonds assigned by the said George Hughart. And thus as the said Young could successfully resist any attempt on the part of the said Charles Hughart to set up any such lien, the mere claim on. his part did not constitute any sufficient ground for the interference of the court of equity to stay the collection of the purchase money.
It further appears to this court that this claim of the said Charles Hughart to a lien upon the said land for the amount of purchase money paid by him to North, was in no sort established as against the said Young and the said McClung, nor in any degree strengthened by the bill filed by him against the said George Hughart and the said Joseph H. Caldwell to assert said lien, and the decree pronounced in his favor for sale of the land, on the 4th of April 1844. To this cause the said Young and McClung were no parties, and they could not be bound by the acts or omission of the said George Hughart after the sale of the *land by him to the said Young, and after his assignment of Young’s bonds to McClung, or by the decree which the said Charles Hughart was thereby enabled to obtain. The record of this decree as against them, could only serve to prove the fact that such decree had been rendered and the legal consequences of that fact, and was not evidence of its legal antecedents or the facts or rights in virtue of which it was pronounced. It was as it respects them, res inter alios acta. And thus it created no other or better equity in favor of the said Young upon Which to resist the collection of the purchase money claimed by McClung, than did the naked and unfounded claim of Charles Hughart unaided by a bill or a decree. It is true it does appear that the deed from the commissioner Joel McPherson to the said George Hughart, and that from the latter to the said Young for the land in question, were both executed after the institution of the suit of the said Charles Hughart and during its pendency; and it may be said that the said Young quoad that suit must be regarded as a pendente lite purchaser, and as taking the land subject to the decree to be pronounced in that cause. But it is to be observed that although these deeds were made after the suit of Charles Hughart had been commenced, they were executed in virtue of contracts made long anterior, passing the equitable title, and of a decree of a court of competent jurisdiction giving effect to and enforcing those contracts, and that that decree directing those deeds to be executed, was pronounced before the institution of said suit, assuming, although the record does not show the precise time, that the bill of the appellant Bowyer and the answer of Charles Hughart thereto, correctly state that Charles Hughart’s bill was filed in November 1842. It may therefore, with great reason and justice, be insisted that the deeds to George Hughart and Young, when executed, had relation back to the dates of the ^respective contracts in virtue of which they were decreed, or at least to the date of the decree, and that the said Young is not therefore to be affected by the consequences attending a purchase pendente lite in other cases, but is to be held entitled in equity to protection against any claim set up on that principle under Charles Hughart’s decree.
But there is another view in which, as it appears to this court, the said Young could successfully resist any pretensions set up against said land by virtue of Charles Hughart’s decree. Charles Hughart’s suit was, as disclosed by the facts in evidence in these cases, commenced and prosecuted, and the decree obtained, under such circumstances of suggestion of falsehood and suppression of truth, of imposition practised on the court by which it was rendered, and of confederacy and collusion with the defendant George Hughart, that the said decree may and must of necessity, for the protection of the rights of Young and McClung, be held wholly inoperative and ineffectual as to them. George Hughart, in *169his answer to Young’s first Greenbrier bill, admits that there was a balance of purchase money due from him to Boardman, but states his wish and intention to discharge it in due time, so as to secure a good title to the complainant, and repels the charge made in the bill that he had ever intimated a contrary intention; and he denies that Young had ever requested him to pass over his bonds for the benefit of Boardman. Charles Hughart, in his answer to Bowyer’s bill, admits that he was instrumental in aiding his father to pay off the debt due Boardman, and he took from North a receipt endorsed on the deed of trust purporting that the money had been received of George Hughart, transmitted through or by the hands of Charles Hugh-art. It is clear that he knew of the pend-ency of the suits in Greenbrier, and that the object of paying the money to North was *to settle the difficulty by reason of this outstanding balance of purchase money, and show his father entitled to a clear title to the land; and this object he actively aided to accomplish. Bor upwards of six years after he had acquired his alleged right by substitution, and until after the object of getting rid of the Greenbrier suits and relieving his father from any liability on his assignment of the bonds to McClung had been accomplished by the decree of the 19th of October 1842, or until such a liability had become of no consideration by reason of the insolvency of the said George Hughart, he remains, as far as is disclosed by the records in these cases, perfectly silent upon the subject of his supposed claim; but very shortly after this decree was rendered he files his bill alleging that the payment made by him was on his own account, at the request of his father, but with an agreement that he was to hold the deed of trust for his indemnity. To this bill he makes neither the executors of Boardman, to whom the debt would have been payable if not paid, and to whose rights he claimed to be entitled by subrogation, nor his heirs at law, in whom the legal title to the land still remained, nor the said Young, the purchaser in possession, nor the said McClung, the assignee of Young’s bonds, parties defendants, though the only persons really interested; those whom only he did name as defendants, George Hughart and Joseph Caldwell having no interest whatsoever that could prompt them to make any defence. Of the history of the whole affair and of the facts showing the propriety of making the persons named parties defendants in the cause, it cannot be supposed for a moment he was not fully conusant. Indeed he does not deny in his answer knowledge of any of them. George Hughart, though conusant of all the facts, makes no answer or disclosure in the cause. Though he had taken the benefit in the Greenbrier *cases of the payment to North as a payment made by himself with money transmitted by or through Charles Hughart, and serving to extinguish the debt and the lien on the land, and though he could have shown who the parties really interested were, yet he remains profoundly silent, and the said Charles Hughart is enabled to obtain a decree for the amount of his claim and for a sale of the land. But considering all the facts and circumstances disclosed by the record attending the institution and prosecution of that suit, it appears to this court that the claim of the said Charles Hughart to a lien on said land could not in good faith be preferred, that it was without just foundation, that there was concealment of facts which he ought to have disclosed and suggestion of matters not founded in truth, that there was concert of action and collusion between him and the said George Hughart, and that the persons really interested who should have been made parties were improperly omitted; and that, therefore, the decree thus obtained cannot in equity and good conscience be permitted to affect any who might be aggrieved and defrauded thereby; but must be, whenever and wherever necessary to protect the rights of the said Young and McClung, held invalid and ineffectual. That a decree obtained by fraud, imposition or collusion, will be held ineffectual and relieved against for the benefit of those who were defrauded, is a doctrine well sustained by authorities. Richmond v. Tayleur, 1 P. Wms. 734; Barnesly v. Powel, 1 Ves. sen. 119; Reigal v. Wood, 1 John. Ch. R. 402; Bradish v. Gee, 1 Amb. R. 229, 1 Madd. Chy. 300. And in the case of Gifford v. Hort, 1 Sch. & Lef. 386, it was declared by the lord chancellor to be a fraud and imposition upon the court to fail to bring parties known to be interested before the court, and that a decree under such circumstances would not have any effect to defeat the rights of such parties. *Thus it appears to this court that the said Young had full and ample means of defence against any claim that might be set up to or against the land purchased by him of George Hughart, founded on the decree of Charles Hughart, whenever and in whatever form preferred; and that the mere possibility that some such unfounded claim might be set up constituted no sufficient ground for the interference of the court to delay the collection of the purchase money, which had been assigned to the said McClung.
It further appears to this court that notwithstanding the decree in favor of Charles Hughart for the sale of said land may and must be held invalid and ineffectual as against Young and McClung, for the reasons which have been assigned, yet it by no means follows that the same is in like manner to be held void as against the appellant Bowyer; but that whether he can now be relieved against the consequences of his own voluntary act in purchasing said land at the sale under that decree, by reason of the character imputed to Charles Hughart’s suit, is a question admitting of and inquiring a different consideration. In England it seems that *170where lands are decreed to be sold by the Court of chancery, the court in most instances undertakes to sell a good title, and therefore it is common to make a reference, to see if a good title can be made to the purchaser; and he will not be compelled to take one that is defective. Marlow v. Smith, 2 P. Wms. 198; Shaw v. Wright, 3 Ves. R. 22; Coffin v. Cooper, 14 Ves. R. 205; Coop. Rep. 138; Sugden on Vend. 105, § 21; 113, § 47; Daniels’ Chan. Pr. 1455. In Virginia the course has-been different. Here, as to all judicial sales, the maxim caveat emptor strictly applies. The court undertakes to sell only the title, such as it is, of the parties to the suit, and it is the duty of the purchaser to ascertain for himself whether the title of these parties may not be impeached or superseded by *some other and paramount title; and if he have just grounds of objection for want or defect of title, he should present them to the court before the confirmation of the report of the sale. Threlkelds v. Campbell, 2 Gratt. 198; Worsham v. Hardaway, 5 Gratt. 60. The same rule would seem to be recognized in Maryland. Brown v. Wallace, 4 Gill. and John. 479; Ridgly v. Gartrell, 3 Har. and McH. 440; The Monte Alleger, 9 Wheat. R. 644; Finley v. U. S. Bank, 11 Wheat. R. 304. And it is- not only the duty of the purchaser to look to the title of the parties in the cause, but also to see that all who have an interest in the property and whose rights ought to be bound by the decree, have been made parties, and have been so concluded by the decree under which he buys. Brown v. Wallace, 4 Gill. and John. 479, opinion of Bland, chancellor; S. C., 2 Bland’s Ch. R. 585, 600; Bonnett v. Hamill, 2 Sch. and Lef. 577. The Court of chancery employs its officer to investigate titles, but does not warrant them. Toulmin v. Steere, 3 Meriv. R. 223, Lord Chancellor Eldon’s opinion. Now if the maxim caveat emptor should apply in the ordinary cáse of a judicial sale in which the purchaser might or might not have knowledge of the facts not disclosed in the case in which the decree was rendered, but which might be necessary to determine who should be the proper parties, and whether any and what title would pass by the sale, it should certainly be applied with still greater stringency where it appears that the purchaser must have had conusance of all the facts and circumstances within the particular case .and without, which were necessary to determine the operation and effect of the decree. If ordinarily a clear and strong case should be made to entitle a purchaser to relief against his contract under a judicial sale, after the report of sale has been confirmed by the court, the appellant Bowyer would seem to be urgently called *on to make out such a case here.' It is insisted that he does make out such a case by showing that the decree under which he bought was obtained by fraud and collusion, and is therefore void; and he alleges that he was ignorant at the time of his purchase of the fraudulent character of the said decree, and has only since discovered that he can acquire no title under said purchase; and thus it is intended to be inferred why he did not object to the commissioner’s report of the sale. It appears that Charles Hugh-art’s decree was rendered on the 4th of April 1844; the sale was made on the 11th of July 1844, and on the 2d September 1844 was reported to the court, together with the bonds of Bowyer and his sureties for the purchase money, and in the regular course of business was confirmed without objection on the part of Bowyer, and a deed directed to be made to the purchaser, and leave given the complainant to withdraw and collect the bonds. The said Bowyer had become the surety of the said Young in forthcoming bonds on all of the three judgments recovered against him by the said McClung, and thus had become liable for the whole of the unpaid purchase money for the land, with interest and costs. As far back as October 1835, he knew of the pendency of the two injunction bills which had been filed by Young iii the Circuit court of Greenbrier, to stay proceedings on the two judgments recovered against him in that county, and to obtain relief against the contract made by him for the purchase of the land of George Hughart; for in that month the bill filed by him and Young conjointly, in the Circuit court of Fayette county, is prepared and sworn to, for the purpose of staying proceedings on the third judgment, the Fayette judgment, upon the grounds and equities therein set-up; and in that bill he refers to the two Greenbrier injunctions and the proceedings therein, and makes them part thereof. *An injunction is obtained on that bill to the Fayette judgment; and the case is then suffered by Young and Bowyer to sleep upon the docket of the Fayette court until after the decree of the 19th of October 1842, dissolving the injunctions and- dismissing the bills in the Green-brier case. The grounds of equity set up in the Fayette injunction bill were the same as those alleged in the Greenbrier bills; and after they had been dismissed, and the supposed equities which they set up had failed, the said Young and Bowyer then filed a supplemental bill to their original bill in the Fayette court, setting up, as a new ground for relief against the contract for the purchase of the land, the alleged claim of Charles Hughart to a lien, and the decree which he had obtained for the sale of the land, the purchase thereof by the said Bowyer, and the confirmation of the sale. It is plain that the reason why the Fayette case of Young and Bowyer was suffered to sleep on the docket from April 1836, until after the decree of the 19th of October 1842 on the Greenbrier case, was that the parties were awaiting the decision in that case of the same questions and liabilities involved in the Fayette bill. Bowyer was liable for the whole debt as *171surety; he knew of the pendency of the Greenbrier bills, the object of which was to rescind the contract, and in effect thus relieve hirn of ail liability; the land was in Greenbrier county till the formation of the county of Fayette, and until the same event, it may be inferred that both Bow-yer and Young were citizens of Greenbrier county, and that they continued for some time after citizens of Fayette; the counsel prosecuting Bowyer and Young’s bill in Fayette county, appears to be the same counsel who was prosecuting Young’s injunction bills in Greenbrier; Bowyer was awaiting the decision in the.se, by which his liability might be wholly discharged; and under all the circumstances it would seem impossible *to believe that he was not during the pendency of those cases kept duly advised by the counsel in all the cases, his own with the rest, of their progress, and upon their determination of the facts and circumstances which brought about so adverse a result, and which it might be expected would be followed by a similar result in the Fayette case, setting tip the same equities and pretensions. It is not certainly shown, and can he but matter of inference, that Bowyer was apprised of the pendency of Charles Hughart’s suit prior to the decree; but it is certain that he was apprised of the suit and the decree before and at the time of the sale of the land by the sheriff. And it has been shown that he must have been fully advised of all the facts and circumstances bearing upon Charles Hughart’s claim and the state of the title to the land, by which he would be fully enabled, upon a proper examination of Charles Hughart’s case, to ascertain the futility of his pretensions, the want of the proper parties to the cause, and the fraudulent character of his whole proceeding. Yet though deeply interested, because the decree subjected to sale the very land to which alone he could look for indemnity against his liability as surety of the said Young, in a debt then amounting, with interest and costs, to 600 dollars perhaps or upwards, he applies for no injunction, nor takes any other measure to arrest the sale, but encourages it by becoming a bidder, and at length becomes the purchaser himself, at the reduced price of 258 dollars 66 cents, and for that amount in installments he gives bonds and security, as required by the decree; the sale is reported to the court, and in the regular course of business confirmed by the court, without objection on his part upon any ground whatever. Shortly after this has been done, the said Young and Bowyer file their supplemental bill in the Fayette case, setting up the supposed loss and *eviction of the land under Charles Hughart’s decree and the purchase by Bowyer, and praying the court totally to rescind the contract between Young and George Hughart, to enjoin perpetually the judgment in that court for a part of the purchase money, and to decree in favor of Young for the amount which he had already paid upon the contract: and this was followed at intervals by two new original bills filed in the Greenbrier court, praying new injunctions to the two Greenbrier judgments, the first by Young in his own name, the other by Bowyer, and the appellant jjdins as administrator of the said Young, who had in the mean time departed this life, and as alleged by Bowyer totally insolvent; and asking the same relief as in the supplemental bill filed in Fayette.
How, the question at once presents itself, why did not Bowyer, if he was aware of the pendency of Charles Hughart’s suit, take some steps to arrest a case, the object of which was to subject to another but unfounded claim, the very land to which alone he could look for indemnity against the heavy liability which he had incurred as surety for Young, who was wholly insolvent? Or if he was ignorant of the pend-ency of this suit prior to the rendition of the decree, why did he not seek by an injunction or otherwise to prevent a sale of the land till he could have an opportunity of contesting Charles Hughart’s claim? Or having failed to adopt a measure of that kind, why did he encourage the sale by becoming a bidder, buy in the land himself, and suffer the sale to be confirmed by the court without objection of any kind? The ready and satisfactory answer, rendered altogether probable by the circumstances disclosed by the records, is that Bowyer did not deem it advisable or expedient to prevent a decree and a sale of the laud, or a confirmation of the sale. He had become liable for the whole debt, amounting, with interest and costs of various suits, to ^upwards of 600 dollars. Young was in insolvent circumstances if living at the time of Charles Hughart’s decree, or if dead, had died as Bowyer alleges, utterly insolvent (Bowyer says Young died before Charles Hughart’s decree was pronounced, and assigns that as one reason why resistance was not made to the proceeding; but this must be incorrect, because, after the confirmation of the sale, a bill was filed in the name of Young in the Greenbrier court, and sworn to on the 1st of April 1845, so that the death of Young must have occurred between that date and the 3d of September 1846, when it was suggested on the record) : all the grounds of equity previously set up against the enforcement of the contract had failed, as adjudicated by the Greenbrier decree, and it was no doubt expected that it would be followed by a similar decree in the Fayette case; and Bowyer must have seen or thought he saw in Charles Hughart’s decree the material of a new and perfect equity, which might be set up against the enforcement of said contract, and a rescission thereof operating a release of his liability, so long in vain pursued, at length by this means likely to be accomplished. To arrest Challes Hughart’s proceeding, or prevent a sale or its confirmation by the court, would of course destroy this nascent *172equity in the germ. He carefully abstains from doing either; and after the supposed new equity had become fully matured by the final decree confirming the sale and directing a deed to be made for the land, he loses little time in coming forward and setting it up, conjointly with Young as a complete answer to the claim for the purchase money, and for the completion of the contract. 'That ground of relief proves equally unavailing with those previously relied on, and upon its utter failure, as pronounced by the decree of October 23d, 1849, and immediately thereafter, to wit, on the 24th of November 1849, and upwards of five years after the *confirmation of the sale under Charles Hughart’s decree, he turns around and files this bill, seeking to be relieved from his purchase of the land at that sale. This bill was sworn to on the day before the decree of the 23d of October 1849, but seems to have been evidently prepared in anticipation of the result which it announced.
It appears therefore, to this court, considering the conduct of the parties and all the circumstances disclosed in these cases, that the appellant Bowyer was not only informed of the history and progress of the Green-brier cases, but that he was also most probably apprised of the pendency of Charles Hughart’s bill and of its nature and objects ; or if ignorant of these before the decree was pronounced, yet that he was made aware of that decree in full time to have taken measures to protect himself against it; and failing in so doing, and bidding in the land himself, if he desired to assail the decree and avoid its effect as to himself, it was his duty to bring the subject before the court upon the return of the report of the sale at the latest, and to seek his discharge from his purchase on the ground that he could get no title; at that time, being in possession, as it appears to this court, of all the facts and circumstances which would be required to expose the fraudulent character and utter futility of Charles Hughart’s pretensions. And it further appears to this court, that no new matter not known to the said Bowyer at that time or which he might not most readily have learned by proper enquiry, has since come to his knowledge, excepting that disclosed by the decree of the 23d of October 1849, pronouncing the utter insufficiency and failure of the new equity erected upon the decree of Charles Hughart, to serve the purpose of offering effectual resistance to the completion of the contract and the payment of the purchase money. That whoever were or might have been deceived and *defrauded by that decree, the appellant Bowyer was not of the number; and that there has been on his part, if no active participation in the proceedings in Charles Hughart’s suit, at least such passive acquiescence in the same, and such readiness manifested to turn them to account if they could be rendered available, to defeat McClung’s claims and relieve him of his liability, and such a standing by during their consummation by the sale and its confirmation, with a full knowledge of the facts and circumstances of the whole case, amounting to the grossest laches, if not premeditated with a particular view to the use that might be made of them, as must deny him the aid of a court of equity in the form now invoked; that he has not made out such a case as should induce a court of equity to depart from the rule applying the principle of caveat emptor to all judicial sales, and denying relief against a purchase upon whatever ground of defect or want of title where the facts were or might have been known to the purchaser; but he suffers the sale to be confirmed without making them known to the court or raising any objection; and that however unfounded were the pretensions of Charles Hughart, yet that between him and Bowyer, the court should not interfere, but leave them to their rights and remedies at law; and that Bowyer must be held here to abide by the results of the venture made by him voluntarily and with his eyes open, in buying the very land that constituted the sole subject of his indemnity against his liability as surety for the said Young.
And it further appears to this court that the failure of the commissioner to make the deed to the appellant Bowyer conformably to the decree confirming the sale in the case of Charles Hughart, and of the court to put him in possession of the land, constitutes no sufficient ground to stay the collection of said Bowyer’s bonds for the purchase money. He does not seek to *rest the relief he asks on this ground. He repudiated the purchase as he alleges, when he discovered that he could not get a good title under the decree. It does not appear that he ever demanded a deed, or even that he was willing to receive one for the land from the commissioner, and give the required lien for the purchase money; but the contrary is to be inferred from the allegations of his bill. But it was not the intention of the court by its order, to make the execution of the deed a condition precedent to the payment of the bonds for the purchase money, nor did the terms of the sale make it such. The court directed the commissioner to make a deed and to require a lien on the land for the purchase money, and gave leave to the complainant himself to withdraw the purchaser’s bonds and collect them. He was not therefore to be delayed in the receipt of the money decreed him by the failure of the officer of the court to obey its order by making the deed to the purchaser; and if he failed or neglected to perform that duty, it was the purchaser’s business to apply to the court to compel him by attachment or otherwise. As to the possession of the land, no order was asked for by Bowyer to place him in possession, and none therefore made by the court. He was left to obtain possession by legal process, or if necessary, by an application to the court to enforce its decree if possession were improperly held by any one bound by it.
But the court is of opinion that inasmuch *173as Young and Bowyer had the right at the time they filed their bill in the Fayette court praying an injunction to the Fayette judgment, to apply to a court of chancery to stay the collection of the purchase money till the difficulties in relation to the title to the land should be removed, and as those difficulties were not removed and the said George Hughart placed in a situation to make to Young a good title until after the Fayette bill had been filed, the court, in dissolving the injunction *in that case, should have declared such dissolution to be without damages, as had been done by the decree of the 19th of October 1842, as to the Greenbrier judgments. And for the same reason the said Young and Bowyer would have been entitled to recover the costs of the Fayette suit except that inasmuch as at the time they filed their bill in that case to obtain the injunction, there was a case or cases pending in the Green-brier court brought by Young, involving the same controversy and setting up the same equities, they could have obtained the injunction they sought upon application to that court by petition, supplemental bill or otherwise, and it was a needless and improper multiplication of suits and of costs to institute a new and distinct suit in the Fayette court; but that though for this reason they were not entitled to recover the costs of the Fayette suit, yet costs should not have been decreed against them, but the bill in that case should have been dismissed without costs to either party.
As to the decree of the 3d of April 1848, it appears that it was in fact reversed and annulled by the decree of the same court (the Fayette court), pronounced on the 3d of April 1849, upon a petition of review filed by Bowyer and Young’s administrator under the law then in force; so that nothing remains for this court to review in the decree of the 3d of April 1848, and it is unnecessary to express any opinion in regard to it.
The court is therefore of opinion that the said decree of the 23d of October 1849 is erroneous in omitting to declare the dissolution of the injunction in the case first named (that commenced in Fayette and transferred to the Greenbrier court) to be without damages, and also in decreeing the costs of that suit to the appellee McClung; and that to that extent it must be reversed with costs to the appellants, and a decree pronounced declaring such dissolution of said injunction *to be without damages, and dismissing the bill in that case without costs in the Circuit court to either party; and that in all other respects the said decree be affirmed.
And the court is further of opinion that there is no error in the order of the Circuit court made on the 10th of September 1850, in the case of the appellant Bowyer against the said Charles Hughart and John Guinn dissolving the injunction that had been previously allowed, and that the same be affirmed with costs to the appellees. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481452/ | MONCURB), J.,
dissented.
The decree in the first and second causes was as follows:
The court is of opinion that there is error in the said decree of the 23d of October 1849, in _ failing to express and declare that the dissolution of the injunction awarded in the cause first named, by the Circuit court of Fayette county, on the 2d day of April 1836, should be without damages; and also in this, that said decree awards to the said McClung his costs expended in that cause; this court being of opinion that as the complainants had just right to go into the Court of chancery to stay the enforcement of the judgment recovered in the Circuit court of Fayette county until the difficulties touching the title to the land purchased of George Hughart by the said Young should be removed, and those difficulties having only been removed after they had commenced their suit and obtained their injunction, the dissolution of the same should have been without damages; and that for the same reason, they would have been entitled to recover their costs in that suit, except that in the opinion of this court, a new original suit was unnecessary for the purpose of obtaining an injunction to the Fayette '^judgment, there being already at that time a cause pending in the Circuit court of Greenbrier, instituted by the said Young, setting up the same equities alleged in the Fayette bill, and involving the whole controversy concerning said land, and in which an injunction to the Fayette judgment might have been obtained until the settlement of the controversy, upon proper application by petition, supplemental bill, or otherwise; but though not entitled to recover costs in the Fayette case, yet that the costs of the defendants, or either of them, should not have been decreed against them. And the court is of opinion that there is no other error in the said decree of the 23d day of October 1849.
And the court is further of opinion, that the decree of the 3d of April 1848, having been in fact reversed and annulled by the order and decree of the same court (the Circuit court of Fayette county), pronounced on the 3d of April 1849, upon a petition of review previously filed and allowed, there remains in said decree of the 3d of April 1848 nothing for this court to review.
Therefore, it is adjudged, ordered and decreed, that the said decree of the 23d of October 1849, so far as it relates to the cause first named (that removed from the Circuit court of Fayette to the said Circuit court of Greenbrier), be reversed and annulled, and that the appellee William McClung do pay to the appellants their costs by them, in the prosecution of their appeal aforesaid, in this court expended. And this court, proceeding to pronounce such decree as the said Circuit court ought to have rendered, touching and concerning the said cause first named, it is adjudged, ordered and decreed, that the said injunction, awarded therein on the 2d day of April 1836, be and the same is hereby dissolved, but without damages, *174and that the bill in said cause be dismissed, but without costs’ to either’ *party. ’ And it is further adjudged, ordered and decreed, that said decree of the 23d of October 1849 be in all other respects affirmed.
And it is further adjudged, ordered and decreed, that as to the said decree of the 3d of April 1848 the said appeal be dismissed.
Which is ordered to be certified to the said Circuit court of Greenbrier county. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481453/ | SAMUELS, J.
This cause stands upon exceptions to reports of the account between John Armstrong and the female complainants, late his wards, and of the account between Andrew Beard and Joseph Beard, administrators with the will annexed of John Armstrong, deceased, and the estate of the decedent.
The guardianship accounts are stated in alternative forms, exhibiting different results, from a difference in the charges entering into those accounts: One is marked “first statement;” the other “second statement.”
The first exception by defendants to the report marked “first statement,” is because credit on the guardianship account is withheld from Armstrong’s estate for the support and education of the wards during Armstrong’s guardianship. This exception is met by complainants, by alleging that Armstrong promised to support and educate his wards without charge. There is proof in the record tending to show that Armstrong did so promise; yet as he was under no previous obligation to support and educate them at his own expense, a promise to do so was made without ^consideration, and would not be binding on him. The office he held made it his duty to take care of the persons and property of his wards, and to provide for their support and education out of the profits of their estate. A mere promise to persons having no authority to contract on the subject, and for no consideration, does not affect the rights of the guardian to have compensation. Hooper v. Royster, 1 Munf. 119. I am of opinion the exception should have been sustained.
The third exception is because 1279 dollars 9 cents, paid to complainant J. J. Walkup by Armstrong’s administrators, is not credited to the estate against the wards as of the 9th of October 1847, when it was paid. This exception places in a clear light the error committed in stating the account jointly throughout, between all the female complainants on one side, and Armstrong’s estate on the other. A correct mode would have been to state the account of each ward separately, either from the beginning or from the time when the claims of the wards ceased to be the same in amount. This payment to Walkup should be credited as of the day it was made, and applied to only such of the claims as he had authority to receive. It does not appear that he had authority to receive the money due complainant Sarah Jane Elliott: by crediting this payment on the aggregate of all the debts, her claim is improperly reduced in amount.
Defendant’s first exception to the amount of the administration on Armstrong’s estate, presents a question of no importance to them. Although the assets in the hands of the administrators should have been applied to pay debts in the order of their dignity, yet as the debts of the first dignity exceed the amount of the personal estate, and also bind the lands in the hands of the heirs, the creditors whose debts of inferior dignity have been paid, could, if not paid, have subjected the real assets by a bill to marshal assets, or ^otherwise; and as the land descended to defendants is bound for all the debts so far as they appear in the record, it is immaterial to defendants in what order they are paid.
Defendants’ 2d, 3d, 4th and 5th exceptions are taken with so little precision, that it is difficult if not impossible to understand what is objected to; moreover, it does not appear upon what proof the entries excepted to were made. These exceptions were properly overruled.
Complainants’ exceptions to the report marked “second statement,” have been overruled by the decision already made on defendants’ first exception to the guardianship account.
, The court erred in giving a joint decree-in favor of all the complainant’s for the aggregate of all their debts against defendants, notwithstanding it is stated to have been doné by consent of complainants. Elizabeth Margaret Elliott was an infant and therefore incapable of giving consent; nor-*176could her next friend give such consent for her. Under this joint decree, complainants J. J. Walkup,or Sarah Jane Elliott might receive the whole amount thereof, and thus the infant be left with no further security for her debt than that afforded by the individual responsibility of the party so receiving it.
I am of opinion to reverse the decree for the errors indicated, and to affirm it in all other things.
The other judges concurred.
The decree was as follows:
The court is of opinion that the Circuit court erred in not allowing the estate of John Armstrong deceased, a reasonable credit for his expenditures in the support and education of his wards, so as not to exceed the profits of their estate in his hands as guardian. *And in this, that after the claims of the female complainants ceased to be identical as to amounts, the accounts were still stated as joint only; and in this, that the sum of 1279 dollars 9 cents, paid to complainant Josiah J. Walkup, October 9th, 1847, was credited against the aggregate of all the claims under complainants, instead of crediting it against that of Walkup and wife, and that of his ward, which alone he had any authority to receive; and in this, that a joint decree was rendered in favor of all the complainants for the aggregate of all their demands, instead of rendering a separate decree in favor of Elizabeth Margaret Elliott, the infant, for her separate portion of the money due. And the court is further of opinion that there is no other error in the decree appealed from. Therefore it is adjudged, ordered and-decreed, that so much of the decree as is herein declared to be erroneous be reversed and annulled, and that the appellants recover of the appellees the costs of appellants expended in the prosecution of their appeal here; and that in all other things the said decree be affirmed; and that the cause be remanded to the Circuit court for further proceedings to be had according to the principles of this decree.
The principal case is cited in Holland v. Trotter, 22 Gratt. 139. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481454/ | MONCURE, J.,
delivered the opinion of the court.
The question first presented for our decision in this case is, whether a court of equity had jurisdiction to enjoin the judgments obtained at law by the appellee against the appellant and his father and brother, on the grounds stated in the bill.
The claims asserted in the bill as setoffs to the judgments being independent of and unconnected with the claims on which the judgments were obtained would not at common law have been good setoffs in a suit at law upon the latter; and not *being mutual (the former being separate and the latter joint), would not, in such a suit, have been good setoffs under the statute of setoff which was in existence when the new Code took effect. Nor would they have been good setoffs in equity, either before or since the said statute, unless upon the ground of the intervention of some peculiar equity, such as the insolvency of the party against whom they were asserted. Story’s Eq. Jur., § 1434, 1437; Gilliat v. Lynch, 2 Leigh 493, and cases cited by Judge Green, p. 504, 5. But by the new Code, p. 654, § 4, it is provided, that “although the claim of the plaintiff be jointly against several persons, and the setoff is of a debt not to all, but only to a part of them, this section shall extend to such setoff, if it appear that the persons, against whom such claim is, stand in the relation of principal and surety, and the person entitled to the setoff is the principal.” Under this provision the claims asserted in the bill, or most of them, would have been good setoffs in the suits at law in which the judgments were obtained, and which were instituted after the Code took effect. But the appellant alleges in his bill that he was prevented by unavoidable accident from pleading his setoffs at law, and therefore seeks to have the benefit of them in equity. The allegation is not denied in the \ answer, and, on a motion to dissolve, must be taken to be true. All or nearly all the claims asserted as setoffs in the bill, if well founded, are recoverable by action at law; and such as may not be are recoverable by suit in equity. It was said, in the petition for the appeal and the argument of the case, that if the appellant be left to his remedy at law, the statute of limitations will be a bar to his claims. Without meaning to admit that the fact, if so, would make any difference, it is sufficient to say that the fact in this casé appears to be otherwise. All the said claims, except that for the metal *furnished William Morris & Co., arose within five years before the judgments were rendered; and though some of the items of the account for metal bear date a few months more than five years before, yet it is expressly averred ‘ in the bill that the metal was sold on a credit of 12 and 18 months, which would make the account due and the cause of action thereon accrue within five years before the judgments were obtained. It is not alleged in the bill that the appellee is insolvent, but the fact appears to be otherwise. Nor is the intervention of any other circumstance alleged as ground for equitable interposition than the accident before mentioned.
The only question, therefore, is whether the appellant, having a plain remedy at law, or in equity, for the recovery of his claims well founded, can have the appellee’s judgments enjoined until the said claims can be established in order that they may be setoff against the said judgments, merely upon the ground that the appellant was prevented by accident from pleading the claims as setoffs at law. We are of opinion that he cannot. The statutes of setoff, “having been passed for the benefit of defendants, are not compulsory; but a defendant may waive his right of setoff, and bring a cross action for the debt due to him from the plaintiff. ” Babington on Setoff, p. 3, 6 Law Libr. The same author says, that “where the defendant, at the time of pleading, is not prepared to prove his cross demand, it is not prudent for him either to plead or give notice of setoff; for if, at the trial, he should attempt to prove his cross demand and fail in doing so, he cannot afterwards maintain an action for the amount.” Id.
When a defendant is prevented by accident, surprise or other cause from proving his setoff, the practice is to withdraw it in order that the judgment may not be a bar to an action for the amount. And a defendant who, *under such circumstances, should suffer a judgment to be obtained against him without withdrawing his setoff, would no more be entitled to relief in equity against the judgment on the ground of accident or surprise, than a plaintiff would be entitled to like relief on a like ground, who failed to suffer a nonsuit. Suppose a defendant fails to plead his set-off, or having pleaded, withdraws because he cannot prove it; and after judgment rendered against him discovers evidence sufficient to sustain his claim, which he *178could not by reasonable diligence have discovered before, would a court of equity enjoin the judgment until he could establish his claim in order that it might be set off against the judgment? Would he not, on the contrary, have to resort to his "action at law for the recovery of his claim? And does not the same principle apply to this case? The appellee has been in no default. He has had no agency, fraudulent or otherwise, in preventing the appellant from pleading the setoffs at law. If he had had, that would probably have been a good ground for a court of equity to interpose and enjoin the judgments, until the cross demands could be established and set off against them. But he resorted to his plain actions of debt, on two plain bonds of the appellant and his sureties, and by due diligence obtained his judgments. Why should he be enjoined from enforcing those judgments by execution, until the appellant can establish cross demands which are entirely unconnected with the judgments, and for which plain remedies at law or in equity exist? True, the appellant had an election of remedies. The statute of setoff gave him a cumulative remedy ; and he has been prevented by inevitable accident from availing himself of the statutory remedy. But this has been the result of his misfortune, if misfortune it be, and not the act of the appellee; and his common law remedy, which is a plain and simple one, remains to *him. Should he not be left to that remedy, as he would have been if he had elected not to plead his setoffs, or having pleaded, had elected to withdraw them? Should he be permitted, instead of resorting to that plain common law remedy, to come into a court of equity, enjoin judgments on plain bonds, the justice and obligation of which are not denied, until various complicated and disputed cross demands can be litigated and determined, and to have those demands decided by a forum different from that to which the decision of most if not all of them properly belongs? It has been a favorite policy in this state, especially of late, not to afford relief in a court of equity to a party who has a plain remedy at law, except in cases of concurrent jurisdiction. In all other cases, he must avail himself of his" legal remedy. If, without his default, he be deprived of all remedy at law, equity may relieve him; but if any legal remedy remain to him, though he may have lost by his misfortune, and without the fault of his .adversary, other concurrent legal remedies, he- must resort to his remaining legal remedy. This policy is illustrated by the cases cited by the counsel for the appellee, especially Cabell v. Roberts, 6 Rand. 580; Collins v. Jones, 6 Leigh 530; Faulkner’s adm’r v. Harwood, 6 Rand. 125; Haden v. Garden, 7 Leigh 157; Allen v. Hamilton, supra 255; to which may be added Slack v. Wood, supra 40. The precise question under consideration seems never before to have been adjudicated by this court. In the case of Morgan v. Carson, 7 Leigh 238, the plaintiff in equity alleged that he was prevented by surprise from pleading setoff at law. This court decided the case against him on the ground that the allegation of surprise was not proved; and of course it was not necessary to decide whether, if proved, it would have entitled him to equitable relief. Judge Carr, however, added (by way of exclusion of a conclusion), that he did not think the *excuse alleged in the bill for the failure to make defence at law, would have been sufficient to sustain the jurisdiction, even if it had been proved, which it was not. The case was assumpsit on a quantum meruit, for work and labor done, and was altogether unfit for a court of equity. If the learned judge had been of opinion that where a defendant in a suit at law is prevented by accident from pleading setoff, he is. entitled to relief in equity against the judgment, notwithstanding he has a plain remedy by action at law, he would have sustained the jurisdiction in the case referred to. But he was of opinion that the matter of the setoff must be of such a nature as to give the court of equity jurisdiction otherwise than on the ground of surprise. That case came on for final hearing, and the question was whether a court of equity could give any relief at all. If it had been proper to enjoin the judgment, that would have given the court jurisdiction of the case, without reference to the nature of the claim. In regard to the cases cited by the counsel for the appellant in this branch of the case, viz: Foushee v. Lea, 4 Call 279; Hord v. Dishman, 5 Id. 279; Ross v. Pynes, 3 Id. 490; Ambler v. Wyld, 2 Wash. 36; Knifong v. Hendricks, 2 Gratt. 212, it is sufficient to say that the parties who complained of the judgments at law in those cases, would have been entirely without remedy but for the interposition of a court of equity.
But the counsel for the appellant contends that as no exception to the jurisdiction of the court was taken in the answer, it was the duty of the court to decide the case on its merits; and in support of that position he relies on the provision in the Code, p. 648, % 19, which provides that “when the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for want of such jurisdiction shall be allowed, unless it be taken by plea in abatement; and the plea shall not be received after the ^defendant has demurred, pleaded in bar, or answered to the declaration or bill,” &c. The former law declared that “after answer filed no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made; nor shall the court ever thereafter delay or refuse justice, or reverse the proceedings for want of jurisdiction, except,” &c. 1 Rev. Code 1819, p. 214, § 86. Notwithstanding the strong language of that law, this court, in Pollard v. Patterson’s adm’r, 3 Hen. & Munf. 67, unanimously decided that the statute meant to embrace those cases only in which the bill showed on its face proper *179matter for the jurisdiction of equity, and the exception had to be taken by plea; and that the omission to plead gave equity no power to decree in favor of the plaintiff, if the case appeared upon the face of the bill to be a mere legal question. The construction of the statute adopted ill that case has ever since been followed. Stuart v. Coalter, 4 Rand. 74; Hickman v. Stout, 2 Leigh 6; Morgan v. Carson, 7 Id. 238. The last case was similar in its nature to this. The defendant made no objection to the jurisdiction of the court of chancery, but in his answer defended himself upon the merits. The case was heard, and a final decree made, upon the merits; and jret the decree was reversed because it appeared on the face of the bill that the court had no jurisdiction. The case of Van Lew v. Bohannan, 4 Rand. 537, has been sometimes considered as an authority to show that if a defendant in his answer defends himself on the merits without objecting to the jurisdiction of the court, he thereby waives such objection, and jurisdiction may be taken of the case. But in that case the defendant in his answer admitted facts which, if they had appeared to the court of law, would have there produced a different result; and the court had nothing to do but, on the admissions in the answer, to perpetuate *the injunction. It was not like a case in which the matters set up in the bill are controverted by the answer, and must be litigated and determined m the court of chancery before relief can be given.
The provision in the new Code seems not to have been intended to make any change in the law as it was in the Code of 1819, and according to the construction put upon it in the case of Pollard v. Patterson’s adm’r. That provision expresses what the law of 1819 implied, and uses words which were not in that law, but convey a meaning which that law was construed to import. Those words were, “When the bill shows on its face proper matter for the jurisdiction of the court, no exception for want of jurisdiction shall he allowed,” &c. In the case under consideration, the bill did not show upon its face proper matter for the jurisdiction of the court. It asserted claims cognizable only at law, and for the recovery of which a plain legal remedy existed; or, if any of them were cognizable in equity, they were entirely unconnected with the judgments sought to be enjoined; and no ground was stated which could give the court jurisdiction of the case as an injunction suit. It was proper, therefore, to dissolve the injunction on the ground that on the face of the bill the court had no jurisdiction to award it.
It was further contended by the counsel for the appellant that the appellee had no right to make the motion to dissolve at the time at which it was made, as his answer had been filed in the paper, but not at rules or in court, only two days before the motion was made. If there is not sufficient equity on the face of the bill to support the injunction, the defendant may apply at once, and without any answer, for a dissolution. 2 Rob. Pr. 241 and cases cited; also Slack v. Wood, supra 40. Where there is sufficient equity on the face of the bill, an answer must be filed by the defendant; "‘after which a motion to dissolve may be made at any time ; at least there is nothing in the law of the land to prevent it. By rules of court an answer to an injunction bill is generally required40 be filed within a certain time after the execution of the subpoena, or the defendant is not allowed to move a dissolution until a certain time has elapsed after the answet'is filed. But these rules are subject to the discretion of the court to which they belong, and if disregarded by such court, its decree cannot on that ground be reversed. Of them the appellate court can take no judicial cognizance. It does not, however, appear in this case when the subpoena was executed.
For the foregoing reasons, and without expressing any opinion on the merits of the claims asserted in the bill, we are for affirming the order of the Circuit court, with costs to the appellee.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481455/ | LEE, J.,
delivered the opinion of the court.
The decree pronounced in this cause on the 24th of April 1848, on the hearing of the case on the bill and amended bills taken as for confessed as against all the defendants, exhibits and depositions filed, required the defendant Bishop to pay to the complainant the amount claimed in the bill, with interest and costs, within sixty days, and on his failure so to do, directed a sale of the land in-the bill and proceedings mentioned for satisfaction thereof, by a commissioner named for that purpose. The amount not having been paid within the time specified, the commissioner sold the land as directed, and reported his sale to the court; and the court by its final decree, pronounced on the 23d of September 1848, confirmed the report, and directed the proceeds of the sale to be paid over to the complainant ; and gave a further decree against the defendant Bishop, personally, for a balance found to remain unsatisfied by the sale of the land. After the decree of the 24th of April 1848 had been prepared, considered by the court, and directed to be entered in the order book, the defendant Seymour tendered an answer, prepared after the decree had been rendered, (that is directed to be entered,) in which he contests the complainant’s right to recover in the case at all, and also claims preference for the deed of trust under which he claimed over the lien set up by the complainant. The court, however, refused to permit him to file his answer, and the decree recited that the cause was heard as on the bills taken for confessed as to him as well as the other defendants. And after the final decree was pronounced, the defendants, Bean and Seymour, obtained an appeal to this court.
The act of the 7th of March 1826, altering proceedings *in the courts of chancery, (Supp. Rev. Code 1819, p. 130,) authorizes a complainant to bring his cause to a hearing after subpoena served on the defendant, and no answer, plea or demurrer filed within four months (afterwards reduced to two months,) thereafter, without a decree nisi served on the defendant; but provides, “that the defendant may, at any time before final decree, be allowed to file his answer, or plead or demur, but the cause shall not be sent to rules, or continued therefor, unless upon good cause shown.” And the question arises as to the construction of the terms, “may be allowed to file an answer,” &c. in this proviso; whether they are to be regarded as imperative, and as conferring an absolute right, which the court cannot withhold; or whether the court may exercise a discretion upon the subject, giving leave to file an answer after the four months, or refusing it according to the circumstances of the case.
The general rule in the construction of statutes is, that the term “may,” when used in a statute, means ‘ ‘must” or “shall,” in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the powers shall be exercised. 7 Bacon’s Ab. (Gwil. Ed.) 451, title “Statute” I; Drage v. Brand, 2 Wils. R. 377; Roles v. Rosewell, 5 T. R. 535; Newberg Turnpike Company v. Miller, 5 John. Ch. R. 113; Bolling v. Mayor of Petersburg, 3 Rand. 563, 580. And considering the subject to which the power conferred by the provisio in question of allowing an answer to be filed, notwithstanding the .expiration of the four months (or two months) of subpoena served, and that it involves what may be considered the natural right of every defendant in a cause to make his defence, the court has no hesitation in saying, that the term “may” in this proviso is imperative, and to be construed as meaning “must” or “shall,” and that the court has *no discretion to refuse to permit an answer to be filed when tendered within the time limited by the act, if otherwise proper to be received. And the remaining question is, when does this time expire? When shall it be said there is “a final decree” within the meaning of the proviso, after which the defendant cannot claim to file his answer? In this case, it seems that the court had received the case when submitted for decision, had examined the papers, and settled the terms of the decree, and a decree had been prepared and considered by the court, and directed to be entered in the order book; but before it had been entered, and on the same day it was directed to be entered, the answer was tendered. And without intending to decide whether if the decree had been entered in the order book and signed by the judge, but during the same term the defendant had asked' leave to file an answer, or whether if he had tendered his answer at the next term of the court, before the final decree confirming the report of sale was pronounced, *181he ought or ought not to have been permitted to file it, yet the court is of opinion, that in the exact circumstances of this case, and the decree not having been entered in the order book, the defendant was entitled to file his answer, the complainant not objecting to it for insufficiency, or indeed for any cause, but the court refusing leave to file it, because it regarded it as tendered too late.
It may be urged that this construction of the act referred to will be productive of much inconvenience, by permitting parties unduly to delay making their defence until after a cause has been heard by the court, and the decree settled and prepared, and nothing remaining, except to enter it in the order book. But it is not often perhaps that a party will be willing to run the risk of such delay in preparing his defence; and whatever may be the inconvenience, the *court can only construe the statute as it is, leaving the remedy, if any be required, to the legislature.
Without therefore deciding any other question in the cause, the court is of opinion that the Circuit court erred in refusing leave to the appellant Seymour to file his answer when tendered, and that for that cause the decree must be reversed with costs to the appellants, and the cause remanded to the said Circuit court, with directions to permit the said Seymour to file his answer, and for further proceedings therein to be had.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481456/ | SAMUELS, J.
I am of opinion the Circuit superior court of law and chancery for Wood county should have rendered no decree in the case until it had caused the persons holding the titles to the lands sought to be charged, to be made parties to the suit. As a moiety of their lands if subjected to the lien of complainants’ judgment, can only be so subjected after apply*182ing the. personal estate of Alexander Henderson, if any, to the part payment thereof,. these persons have a direct interest in the. questions connected with the personal property. . It was improper therefore, to decide in regard to the personal property in their absence. And moreover the decree in regard to the land would be wholly inoperative against those who held the titles but who are hot parties to the suit.
The, decree should be reversed with costs to the appellant, and the cause remanded with directions to make parties such persons as hold titles to the land conveyed by Alexander Henderson to George W. Henderson by the deeds bearing date the 5th and 7th days of December 1825, and for further proceedings to be had therein.
The-other judges, concurred..
The decree was as follows:
The court is of opinion that the Circuit court of Wood county erred in rendering any decree affecting the real or personal property sought to be charged 'without having before it as parties the persons holding titles to the lands cpnveyed by Alexander Henderson to George W. Henderson by the deeds bearing date the 5th and 7th of December 1825. It is' therefore adjudged, ordered and decreed that the said decree be *reversed and' annulled, that the appellant recover of the appellee his costs expended in this court, to be levied of the assets in her hands to be administered; and the cause is remanded to the Circuit court of Wood county with directions to cause the persons above' mentioned to be made parties, and for further proceedings to be had therein. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481458/ | ALLEN, J.
The final decree allowed to the appellee Hagy certain offsets against the Iwo bonds executed by him to Snead, for the purchase money of the 100 acres of land. The bonds were dated according to the allegations *of the bill, on the 26th and 27th of August 1839; and were assigned, one of them to Greenway & Co. and the other to L. Smith on the 29th of the same month. Suits seem to have been brought by the assignees, immediately after the notes became payable. No defence was made to the action at law, and the office judgments being confirmed, the appellee during the same term of the court, obtained this injunction. It is contended on behalf of Snead’s assignees, that the offsets were legal, and should have been set up at law; that the appellee has shown no good reason for failing to rely upon them at law, and they should not therefore be allowed in equity. The principal offset was the note to Orr in which the appellee Hagy was a surety for Snead. It was past due when Hagy executed his bonds to Snead, but the debt had not then been arranged with Orr. Finding afterwards that he would be compelled to pay the debt, he settled with Orr, and lifted the note on the 10th of January 1840. When his notes were assigned by Snead, Hagy had no claim to a legal offset against the notes. The setoff was merely equitable, and there might be some doubt whether by his own act in adjusting this debt, he could convert that, which at the date of the assignment was an equitable, into a legal offset, of which he could have availed himself at the trial at law. However that may be, it seems to me the case was proper for a court of equity on other grounds.
Hagy had made a contract with Snead for the purchase of a portion of a tract of land held in common by Ragsdale and Snead, and received from them a title bond dated the 3d of August. On the same day Hagy paid to Snead in cash, and transferred paper to him amounting together to 423 dollars 88 cents, and took from Snead his note in which it was stated that the amount thereof was to be discharged in land at 8 dollars per acre. The parties did not know at the time *the quantity of land which the boundaries described in the title bond would contain; and the substance of the arrangement was, that after deducting the price of the land sold when the quantity was ascertained, the residue of the sum of 423 dollars 88 cents was' to be discharged in land at the same price.
Before the quantity described in the title bond was ascertained, Hagy and Snead entered into another contract, whereby the former purchased of Snead the tract of one hundred acres, at 8 dollars per acre, and executed his two bonds for the sum of 776 dollars of the purchase money: how the residue of the purchase money was adjusted, does not appear from the record. Before these bonds became due, difficulties arose as to the title of both tracts sold to Hagy. The land was part of a tract of two hundred and ninety acres, which had theretofore been purchased of Jacob Clark, one of the heirs of Benjamin Clark, by Benjamin Fulcher. In July 1839, Fulcher sold the land to Snead and Ragsdale for 3000 dollars, of which 1000 dollars was paid on the day the contract was completed, and the residue was to be paid in two installments, for which bonds were given; and a deed for the land was executed by Fulcher to Snead and Ragsdale, and placed in the hands of a third person, to be held as an escrow, and delivered upon the payment of the purchase money. Soon after the contract of purchase, there was some understanding or agreement, as appears by the answers of Snead and Ragsdale, by which Snead was to take the land and pay the purchase money; and it was no doubt after this understanding and whilst Snead exercised the control over the whole tract, that he undertook to sell off a portion to Hagy, and to put him in possession of the part so sold to him, although no partition had been made between Snead and Ragsdale. In his answer, Ragsdale avers that before their purchase from Fulcher, Snead had become largely indebted *to him, and that he did not begin to suspect Snead’s solvency, until some short time after the purchase. But that so soon as his fears about the circumstances of Snead were excited, he informed both Snead and Hagy that he would unite in no conveyance or sale of the land until he was made safe as well in reference to the purchase mone3',J as in relation to the individual debt of Snead; and that matters so stood until the 11th of November 1839, when they entered into the contract of that date filed with his answer; which recites that Ragsdale had purchased from Snead a tract of 150 acres of land, and Snead undertook to procure a good title to be made to .Ragsdale, on the payment of 10 dollars per acre. The amount of Snead’s interest in this contract, Rags-dale alleges was to be credited on Snead’s private debt.
In consequence of these arrangements, it is insisted for Ragsdale, that he is entitled to the whole of 150 acres, and furthermore that he is also entitled to a moiety of the 100 acres sold by Snead to Hagy, under their joint purchase, as he had not united in the sale.
Besides the claim of Ragsdale to a moiety at least of the 100 acres, the tract in consideration of which the two bonds were executed, it appeared that a portion of the purchase money was still due to Fulcher, the vendor of Snead and Ragsdale; but the amount so in arrear was uncertain, and has only been ascertained upon the settlement of transactions between these parties, of an involved and complicated nature.
In addition to this, it was alleged that there was a considerable portion of the purchase money still unpaid by Fulcher to his vendor Jacob Clark. That the claim had been transferred to John M. Preston, who had instituted and was then prosecuting a *191suit in the County court of Washington county, to subject the land to the payment of this debt.
Such was the position of Hagy when sued upon the *bonds he had executed for the price of the 100 acres. The legal title was outstanding and his vendor could make him no title. No partition had been made between Snead and Ragsdale, and the latter under the joint purchase, claimed a moiety of the land as his. There was an admitted balance of the purchase money due to the immediate vendor of Snead and Ragsdale. A claim was asserted and a suit was depending to subject the land to the payment of a debt alleged to be due to a more remote vendor; and Snead, it is averred in the bill, and appears to be admitted throughout the recort^, was at that time insolvent. Hagy was compelled to resort to a court of equity to clear up the difficulties about the title; and that being his position, was it incumbent on him to set up his offsets in the action at law? The right to enjoin the payment of the purchase money where there is an incumbrance on the land purchased, is well settled. In Virginia, an injunction will be sustained after a conveyance, although there has been no actual eviction, but upon proof of a better title to the land in a third person. Ralston v. Miller, 3 Rand. 44.
There could be no doubt, therefore, if the bonds had remained in Snead’s hands, that a court of equity would have enjoined the payment until the difficulties about the title had been removed. It was uncertain, when the suits were instituted and the judgments confirmed, whether Hagy would get anything by his purchase. The alleged incumbrances for the purchase money covered the whole tract; and if the pretensions of Ragsdale were well founded, there would be little left for Hagy under his purchase from Snead. Though Snead might hold his bonds, which at law constituted a debt, it was still necessary to go into equity to ascertain whether in fact any debt existed. His bill, therefore, prayed that the contract of purchase should be rescinded, and his obligations canceled in *the event of his being unable to get a good title to the land.
In this state of uncertainty, it would have been improper to have relied on his offsets at law, for it would have been an admission that there was a valid debt against him to the extent of the offsets, whereas he owed nothing unless he could get the land. That was the principal controversy, and that could be settled in equity alone. When it was so settled, and a debt ascertained to be due, it would be proper to enquire into the offsets. If the offsets had been offered and allowed at law, and it turned out that no title could be made, he would be driven to another action to recover the amount of the offsets for the failure of the consideration ; and thus by requiring him to rely on his offsets at law, on the penalty of losing them entirely, he might be compelled to surrender bonds and securities constituting evidences of debt, and be driven to recover the money back in an action of assumpsit for the failure of the consideration. A portion of his offsets arose out of the contract in relation to the land itself. He had paid 423 dollars 88 cents on his first purchase. The land when surveyed, in the progress of this suit, was found to contain 43% acres, amounting, at 8 dollars per acre, to 348 dollars; leaving a balance, which, by the terms of their arrangement, was to be paid in land. This was an offset which could only be ascertained and fixed by a survey. Under every view of the case, it seems to me the court of chancery was the proper forum to decide upon the validity of the debt; to ascertain whether anything was due; and then as an incident to the principal subject of which it clearly had jurisdiction, and to avoid multiplicity of actions, to pass upon the offsets, no matter what was their character. But where, as in this case, a portion arose out of the contract of sale and purchase, and another portion was an equitable offset at the date of *the note and the assignment, it would have been competent for a court of equity to have allowed them,, although not relied upon at law. If Snead were the party claiming the benefit of the judgments, I do not think he could be heard to make this objection; and unless Hagy has done something to waive his equity, as regards the assignees of Snead, they can occupy no higher position. It is not alleged or proved that they were induced to take the assignments in consequence of any assurances from the obligor. They stand like all other assignees, and take the obligations assigned to them subject to all the equities which affected them in the hands of Snead. There is nothing whatever to distinguish their case from that of other bona fide assignees who have paid their money for that which turned out to be of little or no value. The obligor has been guilty of no laches in the assertion of his equity. Suit was instituted, and judgments recovered at the earliest possible period after the notes fell due. He interposed no delay, and at the first term after the notes became payable, filed his bill, convening all the parties to settle the difficulties about the title, and to ascertain whether anything would be due from him, and to distribute it amongst those entitled to it, according to their rights. I think the court had jurisdiction to allow the offsets claimed by the appellee Hagy, and that there was no error in the decree directing an account of such offsets, and overruling the 1st, 2d and 3d exceptions of the assignees Greenways and Smith to the second report of M. C. Lynch, allowing some of said offsets. An objection was made in the argument here' to allowing a credit for the sum of 423 dollars 88 cents," the full amount of cash and notes advanced and transferred to Snead at the time of the first purchase, because the bill suggests a doubt whether one of the notes so transferred, a note on Clevinger and- Clarke for 90 dollars, had been *192made. The commissioner in *his report sets forth facts, which unexplained justified him in treating it as a payment to Snead; and as there was no exception to the report crediting Hagy with the 423 dollars 88 cents, it is too late to raise the objection here.
Nor do I think there was any error in so much of the decree as held that the appellee Hagy was entitled to a conveyance from Ragsdale, as well for the 100 acres for which he held Snead’s title bond as for the 43% acres for which he held the title bond of both. The allegation in Ragsdale’s answer that when he became a party to the contract of the 3d of August 1839, by signing the title bond, it was agreed between Hagy, Snead and himself, that the contract of the 26th of August 1839 should be canceled, is an affirmative allegation, unsupported by proof. His pretension to claim the 150 acres in virtue of his contract with Snead of the 11th November 1839, and a moiety of the 100 acres as a joint purchaser with Snead, it appears to me is unfounded. It appears from the facts in the case, that Snead made the contract with Fulcher, and Ragsdale subsequently united with him in the purchase. It is alleged in the bill that when the appellee Hagy purchased, Snead seemed to be exercising exclusive control over the land purchased, and had placed him in possession, which he continued to hold without interruption. The answers of both Snead and Ragsdale admit that there was an understanding between them that Snead was to take the entire tract and pay the purchase money. It was. during this arrangement that Snead sold a portion of the land to Hagy. One of the purchases was sanctioned by Ragsdale, by his uniting in the title bond, though the whole consideration had been paid to Snead. It furthermore appears from the report of the commissioner that Snead had advanced more of the purchase money to Fulcher than the value of the land sold by him to *Hagy. Under these circumstances, and if there had been no other arrangement between Snead and Ragsdale, the latter should riot be permitted to disturb the sales made by his cotenant, sanctioned in part by himself, and made at a time when by his own agreement, the whole subject had been committed to the control of his cotenant; and when too, more than a moiety of the land remained undisposed of, exceeding in value the amount paid by him on the joint purchase. The agreement of the 11th November 1839, though somewhat obscure in its terms, when construed by the light of surrounding circumstances, so far from disaffirming, impliedly sanctions the sales made by Snead. Finding that Snead was unable to comply with the arrangement to take the whole tract and pay the purchase money, Ragsdale agreed to take what remained unsold upon the terms mentioned in the agreement. In consequence of the arrangement under which Snead had claimed the whole tract, the new agreement recited that Rags-dale had purchased the 150 acres from him, and made no allusion to their joint ownership under the purchase from Fulcher. The 150 acres was the residue after deducting the portion sold to Hagy. The court rightfully construed these transactions as being equivalent to an equitable partition, and properly held that the purchase should be apportioned between them according to the value of the lands held by each, taking Snead’s portion to be the land sold by him to Hagy. Nor do I think there was any error in overruling the 2d exception of the appellant Ragsdale to the first report of the commissioner. His first and third exceptions were in effect sustained by the decree of the 25th May 1847. Nor was there any error in overruling his exceptions to the second report of the commissioner, or in so much of the decree as ascertained that there was a balance of 219 dollars 61 cents due to Fulcher on account of the purchase money, *with interest from the 15th December 1840 until paid; and that Snead had overpaid the sum of 256 dollars 33 cents beyond his proportion of the purchase money. But it seems to me the Circuit court erred in holding that this surplus overpaid by Snead should enure to the benefit of Snead’s assignees, to compensate them in part for that portion of their debts which was lost by allowing Hagy’s offsets. The assignees had no lien on this fund; their notes were a lien on the land sold to Hagy, but that lien did not attach to the land retained by Ragsdale. For the sum so overpaid, Snead would stand in the place of the vendor, and could subject Ragsdale’s portion; Tompkins v. Mitchell, 2 Rand. 428; but his assignment of Hagy’s bonds did not transfer this lien to his assignees. If a portion of the debts assigned be lost, the assignees stand like other general creditors, with no right to subject any specific fund of the assignor to their indemnity. In the present case, it appears from the admissions of Snead and the evidence in the record, that he was debtor on private account to Ragsdale in a much larger sum than the amount of purchase money overpaid by him. He cannot therefore require Ragsdale to pay the excess to him, or charge it on Ragsdale’s portion of the land if the latter chooses to give him credit for the amount on their private accounts. This is a matter for adjustment between themselves, and not involved in the present controversy. The appellee Hagy was only so far interested in the accounts between Snead and Ragsdale, as they related to the payment of the purchase money of the land sold to him; and when it was shown that Snead had paid so much of the purchase money as was equal in amount to the value of the land, he had established all that was necessary to his case. I think the court also erred in not charging the balance of the purchase money due to Fulcher on the 150 acres of the land held by Ragsdale, and in *omitting to decree a sale of it unless the money should be paid to the commissioner of the court within some limited *193time; as Hagy should not be delayed in procuring his legal title by the omission of Ragsdale to pay the balance of the purchase money.
As to the suit by Preston to subject the land to the lien of a remote vendor, the record does not disclose what disposition was made of it. This matter seems not to have been noticed farther in the progress of the cause by the parties or the court, and it has probably been determined against the validity of the claim, as was stated by the counsel.
The other judges concurred in the opinion of Allen, J.
The decree of the court is as follows:
The court is of opinion that the Circuit court erred in holding that the overpayment of the purchase money by the appellee Snead should enure to the benefit of Smith and of the Greenways, the assignees of the bonds executed to him by the appellee Hagy; and in decreeing that the appellant should pay the sum of 256 dollars 33 cents, with interest, to the commissioner of the court, to be apportioned between the assignees ratably. The assignees had no lien on that fund, and could not object to the same being applied by Snead to the payment of his individual debt to Ragsdale, or to prevent the latter front setting off the private debt due to him by Snead, against the amount aforesaid ascertained by the decree to have been overpaid by Snead. This was a matter to be adjusted between Snead and Ragsdale, their private accounts not being in issue in this controversy.
The court is further of opinion that as the appellee Hagy went into chancery to ascertain the amount of and to clear up the incumbrances, to the end that he might obtain a title to the land purchased by him, the *court should have gone on and rendered a decree against the appellant for 219 dollars 16 cents, the balance of the purchase money due to Fulcher, with interest from the 15th December 1840 till paid; and unless paid within a prescribed period, the 150 acres of land belonging to Ragsdale should have been subjected to sale for the payment thereof, so that upon the payment of said incumbrance, the deed executed ' by Fulcher to Snead and Ragsdale could have been delivered for recordation, or a decree could have been entered for the execution of a new conveyance by Fulcher or a commissioner in his behalf to Snead and Ragsdale, if the deed delivered as an escrow at the time of the purchase could not be produced; and a' decree also pronounced for a conveyance to the appellee Hagy, by Ragsdale and Snead, or by a commissioner in their names, for the 143% acres described in the title bonds made exhibits with the bill.
It is therefore adjudged and ordered that said decrees, so far as the same are herein declared to be erroneous, be reversed and annulled, and that in all other respects the said decrees be and the same are hereby affirmed. And it is further adjudged and ordered that the appellant Recover ‘ of the appellees, except the appellee Hagy, his costs about his appeal; and it is further adjudged and ordered that the appellee Hagy recover of the appellant his costs by him about his defence here expended, he being the party substantially prevailing, so far as his interests were affected by said appeal. And this cause is remanded for further proceedings according to the principles aforesaid, in order to a final decree.
ASSIGNUENTS.
I. Definitions.
3. In General.
II. Who Is an Assignor.
1. Competency.
III. What May Be Assigned.
1. Original Doctrine.
2. Choses Ex Contractu in General,
a. Insurance Policies.
Id. Assignments of Leases.
c. Assignments of Bonds.
d. Possibilities and Expectancies.
3. Choses Ex Delicto.
IV. What Constitutes an Assignment.
1. No Particular Form Necessary.
a. Intention.
b. Assignment by Separate Writing.
c. May Be Made by Parol.
2. Necessity for Delivery.
3. Operations of Certain Assignments.
a. Order on a Fund.
b. - Bills of Exchange.
c. Power of Attorney Coupled with an Interest.
d. Mere Promise to Pay.
4. Partial Assignments.
5. Consideration.
6. Notice.
V. Effect of Assignment.
1. Assignee Tates Subject to Equities.
a. Latent Equities of Third Persons. ■
2. What Passes by Assignment.
a. Assignment of the Chose Carries the Security.'
3. Eights and Liabilities of Parties.
a. Assignor Loses Control by Assignment.
b. Eight to Go against Assignor.
bb. Warranties of Validity Generally,
cc. Failure to Collect from Obligor.
ccc. Diligence — General Eule.
c. Priority of Assignments.
i. Right to Sue.
a. At Law.
b. In Equity.
c. Effect, in General, of Statutes.
cc. Upon Equity Jurisdiction.
5. Estoppel.
VI. Pleading and Practice.
1. Allegations of Payment.
2. Proof of Assignment.
3. Statute of Limitations.
4. Action of Assumpsit.
5. Parties.
VII. Evidence.
1. Scope of Section.
2. Effect of Death of One Party.
3. Possession as Evidence of an Assignment.
VIII. Eecordation of Assignments.
*194Cross References to Monographic Notes.
Assignments for the Benefit of Creditors.
Attachments, appended to Lancaster v. Wilson, 27 Gratt. 624.
Bankruptcy and Insolvency, appended to Dillard v. Collins, 25 Gratt. 343.
Bills, Notes and Checks.
Bonds, appended to Ward v. Churn, 18 Gratt. 801.
Estoppel, appended to Bower v. McCormick, 23 Gratt. 310.
Injunctions, appended to Claytor v. Anthony, 15 Gratt. 518.
Insurance, Life and Accident, appended to McLean v. Piedmont, etc., Life Ins. Co., 29 Gratt. 361.
I. DEFINITIONS.
1. IN GENERAL.
An Assignment Differs from a Surrender. — An assignment of an estate for life or years is a transfer of the whole interest of the assignor to some one other than the immediate reversioner or remainderman, holding an estate which was larger than that of the assignor, but when the transfer is made to the person holding the immediate reversion or remainder in fee, it operates as a surrender. Scott v. Scott, 18 Gratt. 150.
An Assignment Differs from a Lease. — “By alease a lessor grants an interest less than his own, reserving to himself a reversion; but by an assignment, he parts with the whole property. If a man convey the whole of his interest by deed, it is an assignment, not a lease, although by the deed he reserves rent to himself, and the deed contains covenants which are not in the original lease or conveyance.” Scott v. Scott, 18 Gratt. 177.
Indorsement — Assignment.—indorsement is a term usually applied to. the transfer of negotiable paper, while assignment is applied to the transfer of choses in action, not negotiable.' Freeman’s Bank v. Ruckman, 16 Gratt. 126.
An assignment, as to bonds and notes, implies more than indorsement; it means indorsement by one party with intent to assign, and an acceptance of that assignment by the other party. Marietta Bank v. Pindall, 2 Rand. 465.
Passage of Title. — The legal title to bonds and notes, not negotiable, passes by assignment only; and as to them, indorsement is not the same as assignment. Bank of Marietta v. Pindall, 2 Rand. 475.
In Welsh v. Ebersole, 75 Va. 658, the court said: “The cases of Bank of Marietta v. Pindall, 2 Rand. 475, and Freeman’s Bank v. Ruckman, 16 Gratt. 126, seem to fully establish the doctrine that indorsement of the obligee’s name upon the bond accompanying the transfer may be declared on as a common-law assignment, and that an averment that the instrument was endorsed and delivered is in effect an averment that it was assigned. Both of these cases, however, were decided upon a demurrer to the declaration. They do not establish that such an indorsement may not be treated as a guaranty if such was the agreement of the parties."
Chose in Action. — A balance in bank to the credit of a depositor is, strictly speaking, a chose in action. It is often treated, however, as ready money, and whether it is to be treated as one or the other depends upon the circumstances of the particular case. Koss v. Kastelberg, 98 Va. 278, 36 S. E. Rep. 377.
A chose in action is the money, damages or things owing; the bond or note, etc., is but the evidence of it. First Nat. Bank of Richmond v. Holland, June 20, 1901 (Va.), 39 S. E. Rep. 126.
Assignment — Subrogation.—“In the first place, we must be careful to distinguish between an assignment of the mortgage debt, and a mere right of subrogation to the lien of the -mortgage creditor. Assignment is the act of the parties, and depends generally upon intention. Where the nature of the transaction is such as imports a payment of the debt, and a consequent discharge of the mortgage, there can, of course be no assignment, for the lien of the mortgage is extinguished by the payment. * * Subrogation is, however, a very different thing from assignment. It is the act of the law, and a creature of a court of equity, depending not upon contract as assignment does, but upon the principles of equity and justice.” Gatewood v. Gatewood, 75 Va. 410, 411, opinion of Staples, J. See also, Bankers’ Loan, etc., Co. v. Hornish, 94 Va. 608, 27 S. E. Rep. 459.
Assignment of Bond and Negotiable Note. — “There is a marked distinction between the effect of an assignment of a bond and of a negotiable note or bill of exchange. In case of a bond, it is, at law, a valid security for its amount, even as between the parties, although there is no consideration for it. It is therefore a subsisting security before it is transferred. A negotiable note or bill of exchange, on the contrary, is not a valid or subsisting security, as between the parties, if it be not made upon consideration; and acquires validity only from its first negotiation. The assignor of a bond is in no event liable to repay anything more than the consideration he received; and that not by force of the contract, but upon the general principle, that the consideration of the contract having failed, he is bound to restore what he has received.” Green, J. Whitworth v. Adams, 5 Rand. 377.
Assignment — Guaranty.—A guaranty is not an absolute undertaking as in case of suretyship, but a conditional one to answer for the debt, default, or miscarriage of another. The guaranty payment of a bond or note is an undertaking, on the part of the guarantor, that he will pay the debt if the principal does not. A guaranty may embrace negotiable instruments and common-law obligations for the payment of money. On the other hand, assignments relate only to nonnegotiable instruments. The assignor agrees that the assignee shall recover the full amount of the bond from the debtor, and if he fails to do so after using due diligence, he, the assignor, will make it good. In case of assignment the assignee’s right of recourse rests on the ground that a valuable consideration was received, which fact, however, is open to proof, whereas, in case of guaranty, the guarantor is liable, whether he received any consideration or not. Welsh v. Ebersole, 75 Va. 656, opinion of Staples, J.
Import of an Assignment. — “An assignment presupposes a property in the assignor, and a recovery may be had against him on the failure of the obligor on the ground of a debt due by him to the assignee; of which, the draft, called the assignment, is an evidence.” Cunningham v. Herndon, 2 Call 523. See also, Mackie v. Davis, 2 Wash. 219.
Great Case on Assignments. — It was said in Merchants’ National Bank v. Spates, 41 W. Va. 27, 23 S. E. Rep. 682, by Holt, P., delivering the opinion of the court: “The case of Mackie v. Davis, 2 Wash. 219, was decided in 1796, and has been a leading case in Virginia and in this state on the general doctrine of the assignment of nonnegotiable instruments. *195and the general doctrine there discussed has from that day to this, been followed, expanded, and applied in many cases.”
II. WHO IS AN ASSIGNOR.
Although the defendant advises the plaintiff to take a certain note, and expresses his confidence that the maker and surety are good, and that in the event of the plaintiff's marriage he will buy the note from her should she then need money, still this will not make him an assignor of the note. Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 604.
Holder of Instrument. — Even if the obligee of a valid instrument, who endorsed it in blank, is conclusively presumed to be an assignor, no such presumption can attach to one who was never the holder of the instrument, to whom it was never delivered as a valid obligation, and whose only connection with it was to endorse his name upon it. Welsh v. Ebersole, 75 Va. 652, 659.
Assignee Not a Purchaser. — The assignee of purchase money bonds, secured by a vendor's lien, is assignee oí a chose in action only and not such a purchaser of land for value as will be protected by Code of Va. 1873, ch. 182, § 8, but he stands in the shoes of his assignor and is only entitled to his rights and remedies. Gordon v. Rixey, 76 Va. 694.
Surviving Partners. — Surviving partners are not assignees, in law, of their deceased partners, and § 23 of ch. 130 of the Code of West Virginia does not apply to actions against such survivors, when a party defendant is a witness to prove payment to a deceased partner during his life. Carlton v. Mays, 8 W. Va. 245.
1. COMPETENCY.
Insolvent Debtor. — “An insolvent debtor may, notwithstanding his insolvency, make a valid assignment of a chose in action owned by him, and the bona fide assignee for value of such chose in action takes title thereto, superior to the lien of a fieri facias against such debtor. It is immaterial whether the debtor intended to commit a fraud in making the assignment or not, if the assignee has no notice of such intent, or of the existence of the fieri facias, and pays valne.” Shields v. Mahoney, 94 Va. 487, 27 S. E. Rep. 23.
Tenants in Common. — Where bonds are executed to two persons, and the joint interest appears on the face, it is impossible that a purchaser from one of them could have been misled, and hence he only takes such interest as his assignor possesses, for though each may sell his own interest, neither could dispose of the interest of the other without his consent. Brown v. Dickenson, 27 Gratt. 690.
Partners. — One partner has no assignable interest in the debts of the firm until the firm debts are paid, but one partner can assign firm assets to pay firm debts. Kenneweg v. Schilansky, 45 W. Va. 521. 31 S. E. Rep. 949.
Firm Paper. — In the absence of any express stipulation to the contrary, one of several partners may assign a chose in action, due the firm, as each partner possesses equal and general authority, to make such transfers, when within the scope and objects of the partnership, and in the course of its trade and business. Clarke v. Hogeman, 13 W. Va. 718.
Intoxication — An assignment under seal, for valuable consideration, ought not to be avoided on the ground that the party was intoxicated at the time, if his assent was afterwards given, when not disabled by intoxication or otherwise. Moreover, the intoxication must be such as to render the party incapable of business, in order to vacate his assent to the assignment. Arnold v. Hickman, 6 Munf. 15; Mettert v. Hagan, 18 Gratt. 231.
III. WHAT MAY BE ASSIGNED.
1. ORIGINAL DOCTRINE. — By the ancient common law, a chose in action was not assignable, and the assignment had no effect at law or in equity. But in later times, as courts of equity 'protected assignments mad e in satisfaction of a precedent debt (but not voluntary assignments, or those for a consideration then paid, owing to the rule against maintenance), courts of law also adopted this distinction, and took notice of the equitable rights of the assignee, when a suit was brought in the name of the assignor for his benefit. Later, however, courts of equity protected all assignments for a good consideration, and the courts of law followed their example. Garland v. Richeson, 4 Rand. 268; Brown v. Dickenson, 27 Gratt. 693, opinion of Staples, J.; Stebbins v. Bruce, 80 Va. 389.
Reason for Rule. — The reason choses in action were not assignable at ancient common law is that, “it would be the occasion of multiplying of contentions and suits, of great oppression of the people, and chiefly of the terre-tenants, and the subversion of the due and equal execution of justice.” Stebbins v. Bruce, 80 Va. 399.
2. CHOSES EX CONTRACTU IN GENERAL.— The rule is now well settled that choses in action are assignable at law, and that courts of law will protect the rights of the assignee, so far as not to permit the assignor to dismiss the suit or release the action. Garland v. Richeson, 4 Rand. 260. See also, Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 585.
Patents. — A patent for lands, from the crown, may be assigned. Lee v. Tapscott, 2 Wash. 276.
Warrants. — Warrants and survey.s of land may be assigned, but not entries. Morrison v. Campbell, 2 Rand. 206.
Unsettled Account. — At common law an unsettled account was not assignable. But under the law as it exists at present, such accounts are assignable, and suits maybe brought thereon in the name of the assignee. St. Lawrence Boom & Mfg. Co. v. Price (W. Va.), 38 S. E. Rep. 527.
Running Account — An ordinary running account between parties, showing a balance due by one party to the other, is assignable under the statute which authorizes the assignee of any bond, note or writing, not negotiable, to sue thereon in his own name. Va. Code 1887, § 2860; Code of W. Va., ch. 99, § 14; Porter v. Young, 85 Va. 51, 6 S. E. Rep. 803. See also, Stebbins v. Bruce, 80 Va. 389.
Bills of Exchange — Statute of Anne. — Bills of exchange, by the law merchant, were always assignable, and “did not owe this quality to statutory provisions,” says Judge Roane in Norton v. Rose, 2 Wash. 249, but the statute of Anue made promissory notes assignable in like manner as bills of exchange, thus putting these two classes of instruments on the same footing in England, but not with us, as the statute of Anne was never in force here, hence they remained as at common law, except in so far as we have changed the common law by statute. Caton v. Lenox, 5 Rand. 40.
Executory Contracts. — An agreement to sell wood, under which the vendee has made certain advances, may be assigned by the latter as an ordinary running account. Porter v. Young, 85 Va. 49, 6 S. E. Rep. 803.
*196Agreement to Convey. — An agreement for the conveyance of lands may be assigned, and moreover the assignor will not be held liable on a certificate as to the goodness and quality of the land, upon proof of their forgery, no fraud or knowledge of fraud being shown on his part, and where the assignment was "without recourse.” Crawford v. McDonald, 2 H. & M. 189.
Agreement to Build Party Wall. — where a party covenants that whenever he, his assigns, or grantees use a certain party wall, they will pay half the expenses of its construction to whomsoever may be assigned the right to collect the same, and further covenants that it shall run with the land; a lien is thereby created on the land, which will bind it in the hands of subsequent purchasers, until discharged, and the promise to pay being personal to the owner of the lot constructing the wall, such owner may assign the same to anyone he wishes; and such assignee may maintain a suit to enforce the payment of such liability. Parsons v. Building Ass’n, 44 W. Va. 335, 29 S. E. Rep. 999.
Equitable Liens. — An equitable lien is assignable, and may be enforced in a court of equity by the assignee. Schmertz v. Hammond (W. Va.), 35 S. E. Rep. 945.
Mechanics’ Lien. — It seems to be settled that a building contract secured under a mechanics’ lien law may be assigned in equity at least before the work is done and that the assignee may maintain an action thereon in his own name and he succeeds to all the rights of the mechanic. A contract of this character is embraced in the statute which allows the assignment of all bonds, bills, and promissory notes, and other writings obligatory whatsoever, and provides that the assignee may maintain an action thereon in his own name. To hold otherwise would be an injury to the builder as impairing the value of his lien, and the owner cannot be injured as the assignee'stands in the shoes of the obligee, and must allow all just discounts, not only against himself, but against the assignor before notice of the assignment. Hence no reasons of public policy forbid the assignment of such contracts. Iaege v. Bossieux, 15 Gratt. 83, 76 Am. Dec. 195. See also, Schrieber v. Bank (Va.), decided March 14, 1901, 38 S. E. Rep. 134.
Broken Covenants. — “It must be noted, that no covenant which is broken is capable of being after-wards assigned at law. When, therefore, a covenant is violated, the suit must be brought by the party at that time interested,, and not by one to whom the land may afterwards have come by assignment.” 2 Min. Inst. (4th Ed.) 717; Wash. City Sav. Bk. v. Thornton, 83 Va. 164, 2 S. E. Rep. 193; Dickinson v. Hoomes, 8 Gratt. 396; Marbury v. Thornton, 82 Va. 705, 1 S. E. Rep. 909. But see May number of Va. Law Reg. 1901, p. 67.
Homestead Exemption. — A householder who has set apart as exempt, under what is known as the homestead law, á chose in action, may assign the same as collateral security for a debt, and his assignee will take priority over an execution issued on the debt in which the homestead is not waived, though the assignee had notice of the execution. Williams v. Watkins, 92 Va. 680, 24 S. E. Rep. 223.
Coupon Bonds. — If the contract of guaranty is not negotiable at law along with the bond and coupons, it is assignable in equity, and an interest in it passes in equity to each successive holder of the bond or coupon. In order to give effect to the manifest intention of the parties, the right to enforce the guaranty, unless lost by laches or otherwise, must be held to be coextensive with the right to enforce payment of a bond or coupon. The guaranty as an accessory to the bond or coupon, follows it and adheres to it in equity, and the right to enforce the guaranty must be determined by the right to demand payment of the bond or coupon. Arents v. Com., 18 Gratt. 750, 768.
a. Insurance Policies.
Fire Policies — Before Loss. — Stipulations avoiding the policy on the ground of an assignment before loss without the consent of the insured are valid. Such stipulations, however, may be waived by the insurer. Stolle v. Aetna F. & M. Ins. Co., 10 W. Va. 546. The rule that a policy is not assignable without the consent of the insurer applies to absolute assignments. A parol agreement to assign will not avoid the policy. Wheeling F. & M. Ins. Co. v. Morrison, 11 Leigh 354.
After Loss. — Although the policy provides that it shall be void if assigned without the consent of the insurer, such assignment is valid if made after the loss. Nease v. Aetna Ins. Co., 32 W. Va. 283, 9 S. E. Rep. 233; Bentley v. Standard Fire Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584; Stolle v. Aetna F. & M. Ins. Co., 10 W. Va. 546.
Life Policies. — The assignment of a policy of life insurance to a party not having an insurable interest in the life of another, is as objectionable as the taking out of a policy in his name, because such a practice as this would be made a cover for mere speculative risks, and would evade the law against wager policies. But when the assignment is not made for such purposes, a policy of life insurance, without restrictive words, is assignable by the assured for a valuable consideration, equally with any other chose in action, and payment may be enforced by the assignee. Roller v. Moore, 86 Va. 512, 10 S. E. Rep. 241.
Absolute Assignment of Life Policies. — Where the assured makes an assignment absolute on its face, of a policy of life insurance, and it appears that in former transactions about the same matter the policy was held by the assignee as security for advances made by him for premiums and assessments on the policy, then it will stand merely as security for the advances made by the assignee. Roller v. Moore, 86 Va. 512, 10 S. E. Rep. 241.
The assignee of a life insurance policy, upon the life of a person in whom he has no insurable interest, but whose premiums he has paid, has a claim under the policy for an amount necessary to reimburse him for the premiums he has paid, if the policy is not void- in its inception. The residue of the proceeds of the policy belong to the estate of the insured. New York Life Insurance Co. v. Davis, 96 Va. 737, 32 S. E. Rep. 475; Tate v. Commercial Building Ass’n, 97 Va. 74, 33 S. E. Rep. 382, in accord. See also, Bank v. Speece (Va.), 37 S. E. Rep. 843.
b. Assignments or Leases. — A covenant to pay taxes is a covenant that runs with the land. An assignment of the term by the lessee creates a priority of estate between the lessor and assignee after the acceptance of the leasehold estate by the latter, and an assignee of the lease is fixed with notice of its covenants, and takes the estate of his assignor cum onere, and each successive assignee of the lease, because of priority of estate, is liable upon covenants maturing and broken while the title is held by him. West Virginia C. & P. R. Co. v. McIntire, 44 W. Va. 210, 28 S. E. Rep. 696.
Leases Involving Personal Trust. — A deed confer*197ring upon skilled miners the privilege to raise ore, and to use any timber or water power anywhere on a tract of land, and to have and to hold the land as long as they deem it worthy of searching for minerals, and in which they agree not to use the land for any other purpose, is a lease which is not assignable, the personal skill of the miners being contracted for. Hodgson v. Perkins, 84 Va. 706, 5 S. E. Rep. 710. See also, Barksdale v. Hairston, 81 Va. 764.
c. Assignments of Bonds.
How Assigned. — .-Bonds and notes may be assigned by mere transfer, without endorsement, in which case, however, only the equitable title passes, and possession thereof creates a prima facie case of ownership. The assignment of bonds or notes, however, is usually affected by an endorsement on the back thereof, declaring the assignment, without the name of the assignor subscribed. The mere endorsement of the name, however, will suffice, as the holder may afterwards write the assignment above it. Bell v. Moon, 79 Va. 351.
Bonds with Collateral Condition. — A bond, with a collateral condition, was not assignable before the act of Dec. 1795, which allows bonds of this nature to be assigned, and permits the assignee to sue in his own name, and therefore the assignee of such a bond, could not maintain an action on it prior to that time. Craig v. Craig, 1 Call 483; Henderson v. Hepburn, 2 Call 233.
An assignment, made after the act of 1795, by which bonds with collateral conditions were made assignable, is good, though the bond was dated before that act. Meredith v. Duval, 1 Munf. 76.
Prison Bounds Bonds. — An endorsement of his name on a prison bounds bond by the sheriff, before action brought upon, is a sufficient assignment thereof. And the action may be maintained by the creditor as assignee without writing out the assignment; or the assignment may be written out in the progress of the trial after the jury is sworn. “Courts will consider that as done which may be done, and will not even require the formality of writing out a full assignment or endorsement at the time of the trial. This is the uniform practice in regard to ordinary bonds and notes, and is convenient and legal. There is no difference between a prison bounds bond and an ordinary bond, in this respect. The law directs the sheriff to assign and deliver the prison bounds bond to the execution creditor, and obliges the latter to receive it. ” McGuire v. Pierce, 9 Gratt. 167.
A bond for keeping the prison rules, though taken to the sheriff as such, and to his “executors, administrators and assigns,” instead of to him and his successors in office, as it should be, may be as-: signed by him to the creditor, and a suit may be maintained upon it. Meredith v. Duval, 1 Munf. 76.
Transfer of Title to a Bond. — Title to a bond can . only be transferred to another by a written assignment, or by delivering it to that other with the intent of transferring it. And the fact of such delivery must be shown, for without it there is no complete and valid assignment. Arnold v. Barrow, 2 Pat. & H. 1; Lewis v. Mason, 84 Va. 731, 10 S. E. Rep. 529.
Title of Assignee of a Bond. — The assignee of a bond under the statute of 1795, does not acquire the legal title to the debt, but an equitable right, which, by virtue of the statute, he may assert at law in his own name, and he has his election to sue, at law, in his own name, or in that of the original obligee for his benefit. Garland v. Richeson, 4 Rand. 266; Dunn v. Price, 11 Leigh 210; Feazle v. Dillard, 5 Leigh 31.
Suit by Assignee of a Bond. — The assignee of a bond cannot sue as obligee, but must set forth the assignment in his declaration. Gordon v. Browne, 3 Hen. & M. 219.
d. Possibilities and Expectancies. - A mere possibility or expectancy cannot be assigned either at law or in equity, and therefore, if when such order is given, there be neither an actual debt nor any contract, engagement, or arrangement, between the drawer and the drawee out of which a debt could arise, such a draft cannot operate as an equitable transfer of any subsequent debt. The First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 592.
Proceeds of Pair. — The proceeds of a fair about to be held by an agricultural society, on their grounds, is not assignable, because it has neither an actual nor a potential existence. Huling v. Cabell, 9 W. Va. 522, 27 Am. Rep. 562.
Operation of Such Assignment at Law and in Equity. —“A contract for the sale of personal property, which the vendor does not own, will not take effect upon the goods when subsequently acquired, so as to pass a legal property in them to the purchaser, without some new act of the vendor after the property is acquired. At law, it is not a valid assignment. But the doctrine of equity is different. A sale, assignment, or mortgage, for a valuable consideration of chattels or other personal property to be acquired at a future time, operates as an equitable assignment, and vests an equitable ownership of the article in the purchaser or mortgagee as soon, as they are acquired by the vendor or mortgagor, without any farther act on the part of either; and this ownership a court of equity will protect and maintain at the suit of the equitable assignee.” In a contest, however, between an equitable claimant and a subsequent bona fide purchaser for value, holding the legal title, the latter must prevail. Pom. Equity Jur., § 1288; Braxton v. Bell, 92 Va. 229, 23 S. E. Rep. 289; Bank v. Turnbull, 32 Gratt. 695, distinguished and dictum disapproved.
Potential Existence. — "That which in every sense, is nonexistent — a nonentity — cannot be sold, is not property; but it need not have, in every sense, a perfect, tangible existence, to be regarded in law as capable of ownership. So it have a potential existence is enough. A man may not sell fruit from trees, or wool from sheep, which he does not, at the time, own, but otherwise if he then owns the trees or sheep. Their ownership gives potential existence to the fruit and wool and lambs, though as yet the trees have not blossomed, and the wool grown, or the ewes become pregnant. But a mere contingent possibility not coupled with an interest, is not the subject of sale, as all the wool one shall ever have, or the sheep which the lessee has covenanted to have at the end of the term. If rights are vested, or possibilities are distinctly connected with the interest or property, they may be sold.” Wiant v. Hays, 38 W. Va. 681, 18 S. E. Rep. 808, opinion of Brannon, J.
What Is a Potential Interest — Examples.—A mere possibility or expectancy of acquiring property, not coupled with an interest, does not constitute a potential interest, within the meaning of the rule, which allows potential interests to be assigned. The seller must have a present interest in the property, of which the thing sold is the product, growth, or increase. Having such an interest, the right to *198the thing sold, when it shall come into existence, is a pr-esent. vested right, and the sale is valid. Thus, a man may sell wool grown upon his own sheep, but not upon the.sheep of another; or the crops grown upon his own land, but not upon the land of another. A mortgage of goods, which the mortgagor does not own.at,the time, though he acquires the property afterwards, is void. The weight of authority seems to be that a crop of grain, not yet sown has no potential or, actual existence, and cannot be assigned, Huling v. Cabell, 9 W. Va. 528.
Expectant Interest. — “An expectant heir may, in the lifetime of his ancestor, sell, assign, or release his expectant interest in the estate of the latter, whatever it may turn out to be upon his death, and a court of equity will enforce the contract if made in good faith and for valuable consideration.” 2 Am. & Eng. Enc. Law, 1029. See Lewis v. Madisons, 1 Munf. 303.
Future Interests. — By a sale of timber trees standing, to b.e chosen by the vendee, an interest passes which the vendee may assign, and his assignee has the same right to elect, and to specify the particular trees that, the vendee had when he made the purchase. And if, after the assignee has chosen and marked the trees, the vendor fells and converts them tó his use, the assignee may maintain an action of, trover against him to recover. McCoy v. Herbert, 9 Leigh 548, 33 Am. Dec. 256.
Future Saláry — Public Officers. — An assignment by an assessor or other public officer of his salary or compensation for future service, or continuing and yet incomplete service, not yet payable, is contrary to public policy, and invalid. Only past service is assignable, and the plaintiff must show that the service had been performed at the date of the service. It is hard to see why public policy should not prohibit the assignment of pay for past as well as future services, but, at any rate, the books do draw this .distinction. Stevenson v. Kyle, 42 W. Va. 229, 24 S. E. Rep. 887.
No Subsisting Contract of Service. — “If an assignment of future wages were made, when there was no contract of services, even though there had been prior to that such contract of service, the assignment would be inoperative, as it would be an assignment of that which had no potential existence, the future wages in such case being a mere possibility coupled.with no interest.” The First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 593. Of this nature was the assignment in Huling v. Cabell, 9 W. Va. 528, which the court held inoperative.
3. CHOSES EX DELICTO. — While a right of action for mere personal torts, such as assault and battery, false imprisonment, malicious prosecution, defamation and deceit, which die with the party and do not survive, cannot be assigned, a right of action to recover damages for an injury to property, real or personal, may, however, be assigned. N. & W. R. R. Co. v. Read, 87 Va. 185, 12 S. E. Rep. 395; Dillard v. Collins, 25 Gratt. 346.
Test of Assignability, — Those tort actions are assignable that survive to or against the personal representative, if one of the original parties die. Those tort actions survive that are for wrongs to property, real or personal, or which grow out of breaches of contract, but not for wrongs done to thepersow oxreputation, or any purely personal wrong, apart from property or contract. Tyler v. Ricamore, 87 Va. 466, 468, 12 S. E. Rep. 799; Lee v. Hill, 87 Va. 497, 12 S. E. Rep. 1052; N. & W. R. R. Co. v. Read, 87 Va. 185, 12 S. E. Rep. 395. Actions for breach of promise to marry do not survive at common law, nor under the Virginia statute, Code Va., §§ 2654-5, and the breach of the implied contract of a medical practitioner or of an attorney to exercise skill in his profession does notsurvive at common law, and other injuries of a personal nature, although arising ex contractu. See Grubb v. Sult, 32 Gratt. 203; Flint v. Gilpin, 29 W. Va. 740, 3 S. E. Rep. 33.
It would seem, according to the common-law principle that actions which are survivable are likewise assignable; that in Virginia and West Virginia all actions for personal injuries are assignable. 3 Va. Law Reg. 609; Code of Va., § 2906; Acts 1893-4, p. 83; Code of W. Va., ch. 103, § 5.
Right of Action for Injury to Property. — it is well settled that a right of action against a railroad company for negligently setting fire to another’s property is an assignable chose in action, and the assigneemay maintain an action thereon in his own name. Tyler v. Ricamore, 87 Va. 466, 12 S. E. Rep. 799.
A right of action against the common carrier for injury to goods in the course of transportation, or for not delivering goods, is such a right of action as is assignable. N. & W. R. R. Co. v. Read, 87 Va. 190, 12 S. E. Rep. 395.
Fraud. — “While large classes of things in action are assignable even at law, there are certain species belonging to a class otherwise assignable, the assignment of which, either at law or in equity, is prohibited from motives of public policy; for example, an assignment which violates the policy of the law against champerty and maintenance. Hence the assignment of a mere right of action to procure a transaction to be set aside, on the ground of fraud, is not permitted.” 3 Pom. Eq., § 1276. Jeffries v. Improvement Co., 88 Va. 862, 14 S. E. Rep. 661.
In the case of Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. Rep. 821, Dent, J., uses the following language; “I concede, that an assignment of a naked right to sue for a fraud is not assignable, as, where one by fraud acquires the property of another, the mere right to sue for it is not assignable, and a second purchaser from the vendor of the property cannot have the right to set aside the deed to the first purchaser, procured by fraud. So he could not set aside a judgment procured by fraud against his vendor.”
Slander. — A right of action, such as slander, which affects the character, and hence is merely personal, dies with the party, and is not assignable. Dillard v. Collins, 25 Gratt. 343.
IV. WHAT CONSTITUTES AN ASSIGNMENT.
1. NO PARTICULAR FORM NECESSARY — To constitute an assignment of a debt or other chose in action in equity no particular form is necessary. Any order, writing, or act, which makes an appropriation of a fund, will amount to an equitable assignment of the fund, and taking all the surrounding circumstances into consideration, if it appears that the assignor intended to assign a particular fund to the assignee, and the assignee so understood and accepted it, then it is sufficient to pass to the assignee the debt so secured. Tingle v. Fisher, 20 W. Va. 500; Bentley v. Standard F. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584; Feamster v. Withrow, 9 W. Va. 296; Atwell v. Towles, 1 Munf. 175; Cunningham v. Herndon, 2 Call 530; Switzer v. Noffsinger, 82 Va. 518.
“It seems well settled that, in order to constitute a valid equitable assignment, all that is necessary *199is an order from the person to whom the money is due or coming, on the person in whose hands or under whose control it may be, to pay it to the payee.” Building Ass'n v. Coleman, 94 Va. 433, 26 S. E. Rep. 843.
The person to whom a bond was payable gave a written order to his creditor on the obligor’s administrator for the balance "of the bond. The administrator declined to accept the order, but nevertheless made several payments on account thereof. Held, that the assignment was a valid equitable assignment of the bond, and was enforcible in equity by the assignee. Switzer v. Noffsinger, 82 Va. 518.
Formal Reassignment Unnecessary — Where the agreement upon which an action of covenant is predicated appears to have been assigned to a third party by a written assignment attached thereto, and said written assignment appears to have been canceled by lines drawn across the same, said agreement being in possession of the plaintiff, it is error to dismiss his action for want of a formal reassignment of the agreement before the institution of the suit. Scraggs v. Hill, 37 W. Va. 706, 17 S. E. Rep. 185.
a. Intention.
Necessary Intention. — Although an assignment does not require any particular form of words, and though it may be oral or written, still there must be some act importing a particular intent to sell and assign ; the party must intend to dispose of the debt, as an act of sale, called an “assignment” and become bound as an assignor. It is a sale of the debt and he must intend to assume the place of the seller. There must be a sale, called an “assignment.” Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 604.
Intention Operates as Assignment. — Words which show an intention of transferring or appropriating a chose in action to or for the use of another, if based on a valuable consideration, will, in the contemplation of a court of equity, operate as an assignment. Tatum v. Ballard, 94 Va. 370, 26 S. E. Rep. 871.
Proof of Intention. — Though the orders do not specify clearly the funds out of which they are to be paid, yet as in all equitable assignments, anything, which indicates an intention to assign, will suffice, and as an oral declaration may he effectual for that purpose, parol evidence may be admitted to show the intention of the parties. The First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 588.
Assignment Like a Sale. — Assignment of a chose is a sale, like a sale of a chattel. There must he an intent to divest the seller of all right and title, and vest it in the assignee. No formal words are necessary. Anything which shows an intention to assign on the one side, and an intent to receive on the other, will operate as an assignment, if sustained by sufficient consideration. Where no statute requires it, the assignment need not be in writing. Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 587.
Transfers without Assignment. — It not unfreqnently happens, however, that transfers of bonds are made without assignment. In such cases, though the transfer passes the right to the bond, in case of a suit thereon, the suit must be brought in the name of the obligee, or last assignee of the bond; and in case the person in whose name the snit is brought should interfere to the prejudice of the holder, by dismissing the suit or by receiving the money, a court of equity would not only prevent it by injunction, but even a court of law will inquire who is the real owner, and forbid the obligee, or other person who has passed away his right, from interfering with the transferee. Bell v. Moon, 79 Va. 351.
Payment of Another’s Debt without Assignment Thereof. — Where a purchaser of land, pursuant to his contract, pays a lien on the land, binding his vendor’s estate in it, and such contract is abandoned by the parties, and the vendor becomes unable to enforce it, though no assignment was in fact made when the lien was lifted, still the right of substitution exists, and equity treats the case as though an assignment had in fact been made, according to the well-known maxim that “equity regards that as done which ought to be done.” James v. Burbridge, 33 W. Va. 272, 10 S. E. Rep. 396.
b. Assignment by Separate Wrtting.-A separate instrument may assign a debt and its lien. Turk v. Skiles, 45 W. Va. 82, 30 S. E. Rep. 236.
Delivery of Separate Writing. — If the written assignment of the bond, upon a separate paper, is transferred and delivered to the assignee, this is sufficient to pass the equitable title to the note, and the delivery of the note is not necessary to make a valid assignment thereof. Tatum v. Ballard, 94 Va. 370, 26 S. E. Rep. 871.
c. May Be Male by Parol. — As a general rule, a valid equitable assignment of a debt or other chose in action, whether evidenced by writing or not, may be made by parol as well as by deed, and it is not important whether it be by writing or mere words. Wilt v. Huffman, 46 W. Va. 473, 33 S. E. Rep. 279; Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 606; Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584.
Oral Assignment of an Account. — “An assignment of an account may be made by oral agreement, without writing, or any written statement of the claim assigned, and, if founded on a valid consideration, vests in the assignee a right to proceed in his own name for the collection of the debt. So also an oral assignment of a portion of a debt for a valid, consideration is valid.” This language was used in Risley v. Bank, 83 N. Y. 318, and approved in Wilt v. Huffman, 46 W. Va. 473, 33 S. E. Rep. 280.
A parol assignment of an open account in consideration of which more goods are shipped and further credit is given is a good equitable assignment, although not afterwards reduced to writing, as promised. Kenneweg v. Schilansky, 45 W. Va. 521, 31 S. E. Rep. 949.
Verbal Assignment Revocable. — A verbal direction to another man to pay the debt of a third person out of his funds, being without consideration, is void, and though, if complied with before countermand, the party cannot complain, yet it may he countermanded at any time. Beers v. Spooner, 9 Leigh 153.
Parol Agreement to Assign. — A parol agreement to assign a policy of fire insurance, which contains a provision that it is to have no effect if assigned, will not avoid the policy. Wheeling F. & M. Ins. Co. v. Morrison, 11 Leigh 354.
2. NECESSITY FOR DELIVERY. The rule emeat emplor applies to the assignee of dioses in action, and especially is this so, when the assignor has not the chose in possession to deliver to the assignee. The courts have uniformly decided that as to choses the rule applies. Daily v. Warren, 80 Va. 522; Brown v. Taylor, 32 Gratt. 138.
Delivery Not Essential Where There Is No Written Evidence of Debt. — When there is no written obligation or evidence of debt, an oral assignment of the *200debt, without any delivery, either actual or symbolical, is sufficient. Wilt v. Huffman, 46 W. Va. 473, 33 S. E. Rep. 279.
Verbal Assignment without Delivery. — A verbal agreement to assign a bond as indemnity, by a party who afterwards becomes a bankrupt, is good as against the assignee in bankruptcy, although the written assignment and delivery does not take place until after the declaration of bankruptcy. Tucker v. Daly, 7 Gratt. 330.
Delivery of Evidence of Contract Sufficient — It was once held that the assignment of an instrument must be of as high a nature as the instrument assigned. But this rule has been very much relaxed, if not overthrown; and, indeed, it has been determined that the equitable interest in a chose in action may be assigned for valuable consideration by a mere delivery of the evidence of the contract, and it is not necessary that the assignment should be in writing. Scraggs v. Hill, 37 W. Va. 706, 17 S. E. Rep. 187.
Direction to Trustee to Pay. — When the payee of a note secured by a deed of trust directs the trustee to sell the property, and pay over the proceeds to another, this constitutes a good equitable assignment of the note to that other. Lambert v. Jones, 2 Pat. & H. 144.
Order on Another to Deliver, — The delivery of an order to an assignee, drawn on a third person, directing such third person to deliver a certain .bond to this assignee, is tantamount to. the delivery of the bond, where this order is given by the defendant, and accepted by the plaintiff, in lieu of an actual-delivery of the bond. Daniels v. Conrad, 4 Leigh 401.
Certificate of Stock. — “It is well settled by the modern authorities, that choses in action not negotiable, and negotiable paper not endorsed, may be the subject of a gift, and that a delivery which vests in the donee the equitable title is sufficient without a complete transfer of the legal title. The delivery, therefore, of a certificate of stock, unendorsed, by the donor to the donee, with intent to transfer title by way of gift, is effectual as an equitable assignment, although no legal title passes for want of an endorsement and transfer on the books of the bank.” First Nat. Bank of Richmond v. Holland, June 20, 1901 (Va.), 39 S. E. Rep. 126.
Insurance Policy. — If the assured, in a policy on his own life, intending to make a valid gift thereof to a third person,' without consideration, executes an assignment thereof in duplicate, whereby the benefit of said policy is assigned to such third per.son, and delivers one of the assignments to the insurance company for its protection, and not as agent of the assignee, and fails to deliver either the policy or the assignment thereof to the assignee, this is an incomplete gift, and cannot be enforced by the assignee either at law or in equity. Spooner v. Hilbish, 92 Va. 334, 23 S. E. Rep. 751.
Military Certificate. — An assignment, by a person not the owner, of a lost military certificate, which is transferable by simple delivery, to a person for value and without notice, is a void assignment. Wilson v. Rucker, Wythe 296.
Draft in Attorney’s Hand. — A note or draft that is. in the hands of an attorney for collection may' be assigned by the party entitled to it, by transfer of the attorney’s receipt with the words : “I assign the within claim,” written on the back of it. Clarke v. Hogeman, 13 W. Va. 728. See Elam v. Keen, 4 Leigh 333. The latter case held that a valid gift of bond, which was in suit, might be made by the transfer of the attorney’s receipt.
Nonnegotiable Note. — The assignment of a nonnegotiable note may be by delivery and writing the name of the assignor across the back of the instrument. This does not transfer the legal title, but the assignee, the equitable owner, may sue in his own name by virtue of the statute. Merchants’ Nat. Bank v. Spates, 41 W. Va. 27, 23 S. E. Rep. 682.
3. OPERATIONS OF CERTAIN ASSIGNMENTS.
a. Order, on A Fund. — It is well settled that an order drawn on a particular fund, operates as an assignment of the fund not only as between the drawer and payee, but also as it regards the drawee, though not assented to or accepted by him, and will render him equitably answerable to the payee for a failure or-refusal to appropriate the fund to the payment of the drafts. First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 588; Anderson v. De Soer, 6 Gratt. 363.
Acceptance Necessary at Law. — No action at law can be maintained against the drawee of a fund without his acceptance. Switzer v. Noffsinger, 82 Va. 518.
Potential Existence. — A fund on which an order is drawn must have a real or potential existence in the hands of the drawee. Stevenson v. Kyle, 42 W. Va. 229, 24 S. E. Rep. 886; First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555.
An order on the whole or part of a fund is an assignment of the whole or part of such fund. Stevenson v. Kyle, 42 W. Va. 229, 24 S. E. Rep. 886; First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555.
Actual Existence of Fund Unnecessary. —Moreover, it is a settled principle that one may draw on the credit of a fund which is not in existence, but which will arise at a future day, and such draft is an equitable assignment of that fund, and constitutes a lien on it in the hands of him who may have possession of it. The assignment is good, even though the funds, on which the orders are drawn, be uncertain and precarious. Thus, it will be seen that contingent interests and possibilities, are assignable in equity, though not in existence at the time. Brooks v. Hatch, 6 Leigh 534; First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555; Huling v. Cabell, 9 W. Va. 525.
.Remedies in Case of Refusal to Accept. — It is well settled, that where one man having funds in another’s hands, draws on him an order, directing them to be paid to a third party, for value, such order, according to the doctrine of equitable assignment, will pass title to the payee. And in case the drawee refuses to accept the order as he may do, three courses remain for the holder to pursue; he may either return it, in which case the parties are in statu quo or he may sue the drawer upon it; or he may retain it, give notice to the person on whom it is drawn not to part with the fund, and sue in equity. S. V. R. R. Co. v. Miller, 80 Va. 821.
The payee of a draft or order, purporting to be for money lodged by the drawer in the hands of the drawee, belonging to such payee, may recover of the drawer, upon the drawee’s refusing payment (timely notice of such refusal being given) though such draft or order be not negotiable as a bill of exchange ; being drawn on a particular fund, — not in favor of the payee “or order,” nor in terms “for value received.” Jolliffe v. Higgins, 6 Munf. 3.
The payee of an order drawn upon the debtor of the drawer, may consider the order as an equitable *201assignment of so much of the debt; and where a debt is due for land for which the vendor has a lien, the payee may file a bill to enforce that lien. Knisely v. Williams, 3 Gratt. 265.
Fund Must Be Designated. — An order drawn on a conditional assignee of a fnnd is not an equitable assignment, nor does the promise of an assignee of a fund to pay it when received to the assignor’s creditor constitute an equitable assignment of the fnnd, and, moreover, it does not create a lien on the fund. To constitute an equitable assignment, there must be an assignment or transfer of the fund, or some definite portion of it, so that the person owing the debt or holding the fund on which the order is drawn can safely pay the order, and is compellable to do so, though forbidden by the drawee. Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. Rep. 596, and cases cited.
b. Bills of Exchange. — a bill of exchange drawn by a legatee under a will upon the executors, for value received, directing them to pay to the order of the drawee a specific sum, the amount of the legacy, out of the funds in their hands, destined by the testator for the payment thereof, is an equitable assignment of the legacy. Anderson v. De Soer, 6 Gratt. 363.
When Accepted. — If a bill of exchange is drawn on one who accepts it on the faith of the funds of the drawer in his hands, he acquires an equitable interest in those funds, and is entitled to set off his liability on the acceptances, against his obligation to pay those funds, and to retain them pro tanto for his indemnity. Lambert v. Jones, 2 Pat. & H. 144.
Right of Holder of Bill of Exchange. — The holder of a bill of exchange, with several endorsements in blank, has a right to strike out the names of the endorsers subsequent to the first, and to write over the name of the first endorser an assignment to himself; for the bill, without such assignment, will be considered as his property, by his having it in his power to make it. Moreover, even after protest, the bill of exchange does not lose its negotiable character, and may be assigned, or transferred without assignment. Ritchie v. Moore, 5 Munf. 388.
c. Power of Attorney Coupled with an Interest. — “If it appears from a power of attorney that it is intended to give an authority coupled with an interest, it may operate as an assignment of a chose in action, but not otherwise.” 2 Am. & Eng. Enc. Law, 1067; Clayton v. Fawcett, 2 Leigh 19.
d. Mere Promise to Pay. — A mere promise to pay money out of a particular fund as soon as the debtor can procure its payment, does not.operate as an equitable assignment either at law or in equity. Eib v. Martin, 5 Leigh 141; Feamster v. Withrow, 9 W. Va. 296.
Agreement to Pay from Particular Fund. — An agreement by a debtor to pay a debt out of the proceeds of the sale of a particular piece of property does not constitute an assignment of, or lien upon, such proceeds, but is only a personal covenant of the debtor. Nor can such an agreement affect the purchaser of the property who was ignorant of it, nor an assignee of the bonds given for the purchase price who had no notice of it. Evans v. Rice, 96 Va. 50, 30 S. E. Rep. 463.
Agreement to Assign. — When a stranger pays the debt of another, he may take an assignment of it from the creditor, and enforce the debt against the debtor, and if, when he pays the amount, the creditor agrees to assign him the debt, though no assignment in writing is made, the stranger will be regarded in equity as an equitable assignee of the debt, and the transaction will be regarded as equivalent to a purchase of the debt. Crumlish v. Central Imp. Co., 38 W. Va. 390, 18 S. E. Rep. 459; Neely v. Jones, 16 W. Va. 625; Beard v. Arbuckle, 19 W. Va. 142. In the latter case a sheriff, with executions in his hands, paid the debt of the creditor, without any intention of extinguishing the debt, and the court held, that he would have the same rights and remedies against the debtor, that a mere stranger would have, whether he took an assignment of the judgment or not.
4. PARTIAL ASSIGNMENTS — RULE AT LAW— An order drawn on a particular fund or debt, for but a part of such fund or debt, will not be recognized in a court of law as an equitable assignment pro tanto, unless it is accepted by the drawee. First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555.
Undivided Part of Chose. — A defendant executed an instrument reciting that, “in consideration of the confidence I have in, and the regard I have for, my nephews (the plaintiffs), I hereby give them one-fourth part of my personal estate, consisting of money due me from my several mercantile concerns, as well as private debts.” Held, that as the property attempted to be given was an undivided fourth part of certain choses in action, the plaintiffs took merely an equitable title in such part, not entitling them to any remedy at law. Hogue v. Bierne, 4 W. Va. 658.
Reason for Rule. — The reason for the rule is that, a single cause of action cannot be split up and assigned, at law, in parts without the consent of the debtor, because it may subject him to a multiplicity of suits, and to many embarrassments and responsibilities not contemplated in his original contract. Of course, if the debtor consents, such an assignment will be held good even in a court of law. St. Lawrence, etc., Co. v. Price (W. Va.), 38 S. E. Rep. 526. See also, Tyler v. Ricamore, 87 Va. 466, 12 S. E. Rep. 799.
Rule in Equity. — There is no objection, however, to the partial assignments of demands in equity, and it is well settled that such an assignment will operate in equity as an assignment pro tanto of the fund, though not accepted, and the rights of all may be adjudicated in one suit, hence, as to the defendant, the action is not split up. First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555; St. Lawrence, etc., Co. v. Price (W. Va.), 38 S. E. Rep. 526; Tyler v. Ricamore, 87 Va. 466, 12 S. E. Rep. 799; S. V. R. R. Co. v. Miller, 80 Va. 821; Brooks v. Hatch, 6 Leigh 534.
Assignments in Toto and pro Tanto Contrasted. — If an order is drawn on a particular fund or debt for but a part of such fund or debt, though not accepted, the order will be an equitable assignment of the fund or debt pro tanto, and may be enforced in a court of equity ; but a court of law will not recognize such equitable assignment pro tanto by permitting the payer to bring suit at law in the name of the drawer against the drawee. But an order drawn on a particular fund for the whole thereof is a good equitable assignment of the fund, though the drawer does not accept it, and a court of law will so far extend to it its recognition as to permit the payee of such an order to institute a suit at law in the name of the drawer against the drawee. First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 588.
*202Draft as Assignment Pro Tanto — Acceptance.—A draft on a particular fund or debt for but a part of such fund or debt, though not accepted, is an equitable assignment pro tanto thereof, but a court of law will not recognize such an assignment pro tanto by permitting the payer to bring a suit at law in the name of the drawer against the drawee. First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555.
Check as Assignment Pro Tanto. — A check operates as an equitable assignment#?’# tanto from the time it is drawn and delivered, as between the drawer and the payee or holder. Hulings v. Hulings, 38 W. Va. 351, 18 S. E. Rep. 620; Brooks v. Hatch, 6 Leigh 534; Bell v. Alexandria, 21 Gratt. 6.
5. CONSIDERATION — It is said in 2 Min. Inst. (4th Ed.) p. 325, that a valuable consideration is an indispensable element to a valid assignment when the legal title does not pass; the reason given for that view is that an equitable assignment can only be given as an executory contract, and neither law nor equity will enforce an executory contract unless it be sustained by a valuable consideration. But see Elam v. Keen, 4 Leigh 333.
Consideration Need Not Be Adequate. — A bond may be assigned for much less than its nominal amount, and such assignment will be enforced in a court of equity as well as in a court of law, if no fraud or usury appears in the transaction. Kenner v. Hord, 2 Hen. & M. 14. See also, Hansbrough v. Baylor, 2 Munf. 36. In the latter case it *was held that if a bond be assigned without any consideration, but to be used as an article of traffic to raise money, the bona fide purchaser (though at a large discount) of such bond, without notice of the purpose for which it was executed, is entitled to recover the full amount.
Written Assignment Does Not Import Consideration. —A written assignment of a claim does not necessarily import a valuable consideration, and if it be fairly inferable from the circumstances, that the assignment was a gift, the assignor cannot be held responsible to make good the claim, to the immediate assignee or to his assignees for value. Wood v. Duval, 9 Leigh 6.
New Contract. — An assignment of a certificate of deposit, within the confederate lines, if made within federal lines, is a new contract, and is valid, if for valuable consideration. Morrison v. Lovell, 4 W. Va. 346.
Past or Present Consideration. — Whether the assignment of a bond was for a past or present consideration, the liability of the assignor is the same in either case. Barksdale v. Fenwick, 4 Call 492.
Consideration Valuable — Presumption of Assent.— The assent of absent persons to an assignment will be presumed unless their dissent be expressed, if the assignment be made for valuable consideration to them and he valuable to them, nor can we think that a distinction between a deed of trust to a trustee and an assignment direct to the creditor himself is founded in reason. 1 Barton’s Ch. Pr. (2d Ed.) 580.
Allegation of Consideration. — In assumpsit by the assignee against the assignor, the declaration should allege a consideration for the assignment. Hall v. Smith, 3 Munf. 550.
Bond. — Where a bond is transferred and delivered to another, it is a valid executed gift, though there was no consideration for the gift. Dunbar v. Woodcock, 10 Leigh 628.
Presumption of Consideration. — A share of the proceeds of a testator’s estate being bequeathed zo a feme covert, and her husband having assigned the same, a bill is filed by the assignee, alleging that the assignment was in consideration of $1,500; the executor and the feme both answer, but do not deny the consideration or call for proof of it; and the deed purports to be for the said consideration. Held, it seems that, there being no snch denial or call for proof, the deed is prima facie evidence of the allegation of the bill. Browning v. Headley, 2 Rob. 340.
Notice of Consideration. — la a suit in equity the plaintiff calls upon the defendant, as assignee of a bond, to say, whether he had notice of the consideration thereof, when he received the money due thereon; and, in answer, he says, that he had no such notice when he took the assignment. Held, the answer is not to be considered as admitting notice at the time of receiving the money. Edgar v. Donnally, 2 Munf. 387.
Burden of Proof. — The grantee in a deed for land, which is absolute on its face, but in truth a mortgage, having sold the land, and taken from the purchaser bonds for the purchase money, and a deed of trust to secure the same, and then having transferred the bonds to one who claims to be the assignee thereof for valuable consideration, but appears to have taken the assignment under circumstances calculated to throw strong suspicion on the transaction, held, it is incumbent on the assignee to prove that the assignment was for value. Breckenridge v. Auld, 1 Rob. 148; Barton v. Brent, 87 Va. 385, 13 S. E. Rep. 29.
6. NOTICE.
As between Successive Assignees. — It is unnecessary to give notice to the debtor, in order to perfect the claim of the first assignee of a chose in action against a subsequent assignee of the same debt. Tingle v. Fisher, 20 W. Va. 510.
Reason for Rule. — Notice need not be given to a subsequent assignee of a prior assignment, as neither of the assignees acquired by the' assignment a legal, but only an equitable title, and the maxim, qui prior est tempore potior est jure, applies. In order for this maxim to apply, however, both assignments must be valid, and the equities equal. Clarke v. Hogeman, 13 W. Va. 730.
As between Debtor and Assignee. — But to acquire a perfect title to a fund it is essential that notice of the assignment be given to the debtor; for, until notice, the assignment is subject to all the equities of the debtor against the assignor. Switzer v. Noffsinger, 82 Va. 518; Stebbins v. Bruce, 80 Va. 389.
Contra. — Though it is always the best and safest course to pursue to give notice to the debtor of the assignment, still notice is not at all material, and the assignment is good without it. Turk v. Skiles, 45 W. Va. 82, 30 S. E. Rep. 236; Clarke v. Hogeman, 13 W. Va. 730.
Legal Effect of Notice to Obligor. — The legal effect of notice to the obligor is not to oblige him to disclose to the assignee the defences he may have, but to preclude him from setting up any additional defence he may thereafter acquire against the assignor, for it has been held repeatedly that the statute- did not intend to abridge the rights of the obligor, nor to enlarge those of the assignee beyond suing in his own name. Stebbins v. Bruce, 80 Va. 400; Gordon v. Rixey, 76 Va. 704; Norton v. Rose, 2 Wash. 233; Garland v. Richeson, 4 Rand. 266; Feazle v. Dillard, 5 Leigh 30.
After a bona fide assignment of a bond, and notice thereof to the obligor, the latter cannot be restrained by an attachment in chancery at the suit of a creditor of the obligee from paying the debt to the assignee, notwithstanding the subpcena with the *203usual endorsement by the clerk was served upon him, before he received such notice, and afterwards (but before he answered the bill) the court made an order “restraining him from paying the debt which he owed the defendant.” Tazewell v. Barrett, 4 H. & M. 259.
Notice in Case of Negotiable and Nonnegotiable Paper. — As regards notice there is a material distinction between a negotiable note, and choses in action, not negotiable. In the latter case notice must be given by the assignee to the debtor of the assignment to prevent him from making payment to the assignor, for without such notice, he has no reason to presume that the original creditor is not still his creditor, and payment to him would be according to his contract, and in the due and ordinary course of business. As the assignee’s title is only equitable, and enforceable in the name of the assignor, until notice, he has no equity agaiDst the debtor, which can be recognized and protected either by a court of law or equity. But if notice were required in case of negotiable instruments, the purpose l'or which they were created would be defeated and frustrated, as free circulation in the mercantile world is essential to the transaction of business, and that is the oñice that these notes perform, and that is what they were designed to do. Choses in action, not being designed for circulation, notice by the assignee is required to protect him against a payment to the original creditor. Davis v. Miller, 14 Gratt. 12, opinion of Moncure. J.
V. EFFECT OF ASSIGNMENT.
1. ASSIGNEE TAKES SUBJECT TO EQUITIES — It is settled law that the assignee of a nonnegotiable chose in action takes it subject to all the equities of the debtor against the assignor existing' at the date of the assignment; or which arise after the assignment and before the debtor has notice of it, and this is so though the assignee has taken the assignment for value, bona fide, and without notice of the equity. But the rule was not intended as a shelter for fraud, and so it applies only where the debtor has an equity of relief or ground of defence based on honest transactions between himself and the assignor. Picket v. Morris, 2 Wash. 255; Norton v. Rose. 2 Wash, 233; Feazle v. Dillard, 5 Leigh 30; Etheridge v. Parker, 76 Va. 247; Stebbins v. Bruce, 80 Va. 397; Commercial Bank v. Cabell, 96 Va. 552, 32 S. E. Rep. 53; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 880; Goff v. Miller, 41 W. Va. 683, 24 S. E. Rep. 643; Stoner v. Harris, 81 Va. 456.
No assignment of a judgment will deprive a prior endorser of any rights and equities he may have or be entitled to. against a subsequent endorser. Conaway v. Odbert, 2 W. Va. 25.
The assignee of a nonnegotiable obligation can take no rights which his assignor did not possess, and generally make no defence he could not make. Prim v. McIntosh, 43 W. Va. 790. 28 S. E. Rep. 742.
Assignee in Same Situation as Assignor. — The assignee of a bond is not in a better situation than the assignor, for the holder can only sell and transfer such interest as he has. Thomas v. Linn, 40 W. Va. 123, 20 S. E. Rep. 880; Stockton v. Cook, 3 Munf. 68. See also, Meredith v. Salmon, 21 Gratt. 762.
A debtor of the bank purchasing debts due from the bank after a decree lor an account, is only entitled to stand in the shoes of his assignor, and receive his proportion of the assets realized. Finney v. Bennett, 27 Gratt. 365.
But an assignee of a bond taken in payment of the purchase money of land, although he may have notice of fraud in the sale of the land, cannot be placed in a worse condition than his assignor, the vendor, with reference to the payment of such purchase money. Highland v. Highland, 5 W. Va. 63.
In Board v. Wilson, 34 W. Va. 609, 12 S. E. Rep. 778, it is held : “The assignee of a single bill, which was executed for the purchase money of land, has the right to assert and enforce the vendor’s lien in a court of equity, whenever such vendor would be entitled to enforce the same.” See also, Poe v. Paxton, 26 W. Va. 607.
flay Be in Better Condition, — It will sometimes happen that the assignee will get a better title than the assignor had, by the operation of an estoppel. Thus, where one made his bond toSanother for the accommodation of the latter, in order that the bond mightbe assigned to a third person, to raise money for the obligee’s benefit, the obligor cannot, in a . suit brought against Mm by the assignee, set off a note for the same amount held by Mm against the assignor and executed for the very purpose of being used as a set-off, since this would be a fraud upon the assignee. Etheridge v. Parker, 76 Va. 247.
Unpaid Subscriptions. — The assignor of shares of stock is still liable for unpaid subscriptions, whether the installments accrue before or after assignment. Hamilton v. Glenn, 85 Va. 901, 9 S. E. Rep. 129.
Equities Must Be Clearly Established — Although the assignee of a bond, with or without notice, takes it subject to all the equity of the obligor, yet such equity must be clearly and manifestly established by proof, before it shall affect an assignee without notice ; especially if the obligor, after the assignment, promises payment of the full amount of the bond to the assignee. Mayo v. Giles, 1 Munf. 533.
What Equities May Be Pleaded. — “The action brought in the name of the assignor for the benefit of the assignee is open to all equitable defences, but only to those which are equitable; that is, the debtor may make all defences which he might have made if the suit was for the benefit of the assignor, as well as in Ms name, provided these defences rest upon honest transactions, which took place between the debtor and the assignor before the assignment, or after the assignment, and before the debtor had notice or knowledge of it. The same rule holds as to the equities existing between an assignor and Ms assignee in respect to a chose in action held for value and without notice by a subsequent assignee. The latter takes the exact position of his vendor (assignor),"etc. Prim v. McIntosh, 43 W. Va. 790, 28 S. E. Rep. 743.
Purchase Money Bonds. — The assignee of a purchase money bond secured by a vendor’s lien, has all the equities of the obligor against the assignor. Russell v. Randolph, 26 Gratt. 705.
a. Latent Equities of Third Persons. — Though it is well settled that the assignee of a bond takes it subject to any equity of the obligor, that attached to it in the hands of the obligee, still he does not take it subject to any equity ol a third person not party to the bond, of which he has no notice. Moore v. Holcombe, 3 Leigh 597; Hunter v. Lawrence, 11 Gratt. 111; Broadus v. Rosson, 3 Leigh 12; Stoner v. Harris, 81 Va. 456.
Private Agreement. — One who lends his credit to another in the form of a note, to be sold to raise funds, cannot set up against the assignee of that note, any private agreement unknown to the assignee, *204as a defence to the payment of that note. Etheridge v. Parker, 76 Va. 252.
Secret Liens. — An assignee cannot be affected by a latent equity in the hands of a third person of which he has no notice, and a secret implied lien cannot be set up against a bona fide assignee of the bonds. Gordon v. Rixey, 76 Va. 704; Moore v. Holcombe, 3 Leigh 597.
The right of a bona fide assignee, for valuable consideration, of a note negotiable at the bank of Virginia, to recover against the maker and indorsers of such a note, is not to be affected by any equity, of which he had no notice when he received it. McNiel v. Baird, 6 Munf. 316.
2. WHAT PASSES BY ASSIGNMENT.
a. Assignment op the Chose Carries the Security. — It is a well-settled principle of law that the assignment óf a chose in action or a debt, by force of law as an incident thereto, carries the deed of trust or mortgage which secures the debt. The same principles apply to the vendor’s lien, resulting from the retention of the legal title. Of course the above rule applies only in the absence of any express stipulation to the contrary, or a fair and reasonable implication that the benefit of the lien was not to pass. Tingle v. Fisher, 20 W. Va. 506; Gwathmeys v. Ragland, 1 Rand. 466; Gregg v. Sloan, 76 Va. 499; McClintic v. Wise, 25 Gratt. 448; Stimpson v. Bishop, 82 Va. 200; Machir v. Sehon, 14 W. Va. 777; Camden v. Alkire, 24 W. Va. 680; James v. Burbridge, 33 W. Va. 276, 10 S. E. Rep. 397; Grubbs v. Wysors, 32 Gratt. 127, 131; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 878; Jenkins v. Hawkins, 34 W. Va. 799, 12 S. E. Rep. 1090.
Assignment of Bond Carries Trust Deed, — The assignment of a bond carries with it the trust deed and vendor’s lien on the property securing the bond. Lightfoot v. Green, 91 Va. 513, 22 S. E. Rep. 242; Jenkins v. Hawkins, 34 W. Va. 799, 12 S. E. Rep. 1090; Schofield v. Cox, 8 Gratt. 533.
Assignment of Note Carries the Security. — The assignment of a purchase money note carries with it the lien given in security thereof. Briggs v. Enslow, 44 W. Va. 499, 29 S. E. Rep. 1008.
Assignment of Note Carries Remedies. — The assignment of a promissory note, carries with it all the remedies of the assignor, including the right to attack a fraudulent conveyance, because “when choses in action could not be assigned, because to allow their assignment tended to beget maintenance and champerty, there may have been something in the contention of the appellants that the assignment of the notes to the plaintiff did not carry with it the right to attack the fraudulent conveyance, though equity limited the restriction long ago; but many, many years ago, the Virginia legislature made debts assignable, and the law is well settled that the assignee can sue in his own name, or he can sue in the name of the assignor, without power in the assignor to prevent him.” Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. Rep. 820.
The better rule seems to be, however, that the assignment of a promissory note carries with it all the remedies of the assignor, including the right to successfully attack a fraudulent conveyance, and if the assignor was not entitled to such remedy he could not transfer such right by assignment. Prim v. McIntosh, 43 W. Va. 790, 28 S. E. Rep. 742.
Assignment of the Debt Carries Lien. — When the debt is assigned to a third person, the assignment carries with it the lien, which is a mere incident to the debt. Gordon v. Rixey, 76 Va. 694.
Assignment “Without Recourse.” — Upon the question whether the vendor’s implied equitable lien for purchase money would pass by an assignment of the debt, the authorities are conflicting. Although some of the cases decide that an assignment of the debt, even without recourse, carries with it this lien, like any other lien; but the majority of the cases, if not the weight of authority, seems to be decidedly the other way; at least unless it appears that the assignor intended to assign the lien as well as the debt; in which case it seems that both would pass to the assignee, even though the assignment were without recourse to the assignor. When, however, the assignment is not without recourse, the weight of authority is that the lien continues in full force notwithstanding the assignment, and passes thereby to the assignee. Mayo v. Carrington, 19 Gratt. 120. See Jenkins v. Hawkins, 34 W. Va. 799, 12 S. E. Rep. 1090.
If a vendor of land, retaining the title, assigns one of the bonds given for the purchase money, and brings his ejectment against the purchaser, and recovers the possession, he recovers in subordination to the assignee. The assignee by the assignment having acquired the benefit of the lien, whatever itmay be, is entitled to all the remedies of the vendor to enforce it. He cannot be deprived of any of these remedies by any act of the vendor. If the bond in the hands of the assignee is not paid, he may go into a court of equity to enforce the lien. McClintic v. Wise, 25 Gratt. 459.
Assignment of a Mortgage. — Since the possession of the mortgagor, continuing by the mortgagee’s permission, is to be considered as the possession of the mortgagee, it follows that where the latter could recover in ejectment, his deed assigning the mortgage will enable the assignee to recover in like manner. Chapman v. Armistead, 4 Munf. 382.
Assignment of Debt without Mortgage. — As the debt is the principal thing, and an assignment of it carries with it the mortgage, therefore so long as a recovery on the note or bond given for the debt is not barred, the right to enforce the lien of it created by the mortgage or trust deed on the land continues and may be enforced by suit in equity, a mortgage being regarded merely as a security for the debt. Camden v. Alkire, 24 W. Va. 680; Hale v. Pack, 10 W. Va. 145.
Assignee of a Vendor’s Lien, — An assignor of a chose in action, secured by a vendor’s lien reserved on real estate, cannot sue in equity to enforce the lien for the benefit of his assignee. The assignee of a vendor’s lien is an assignee of a mere chose in action, and the assignment carries no interest in the land upon which the debt is secured. Penn v. Hearon, 94 Va. 773, 27 S. E. Rep. 599.
Mutual Assurance Society. — If buildings insured in the Mutual Assurance Society against fire, are mortgaged, the policy of insurance is ipso facto assigned to the mortgagee, for it is a covenant real, running with, and entered into, for the purpose of upholding the estate. Farmers’ Bank v. Mut., etc., Society, 4 Leigh 69.
Question of Intention. — Where, upon the question of whether the assignment of a bond secured by a deed of trust to the trustee was intended by the payee to pass the ownership of the bond, the evidence is conflicting, the decree of the circuit court will be affirmed. Ayres v. Wells (Va.), 1 Va. Dec. 692, 9 S. E. Rep. 326.
Conflict of Laws — Compulsory and Voluntary Assignments. — The general rule is well established that a *205bona jide and voluntary assignment of personal property and dioses in action wherever situated or found pass to the assignee at the time of the assignment, and so will have priority over subsequent liens, although neither such liens nor the debtors (in case of chose in action), had notice of the assignment at the time the lien was created, unless it comes in conflict with some positive or customary law of the state or place where such property or choses in action may be located or found. But it is equally well established that coercive and involuntan' assignments do not operate beyond the territory and jurisdiction of the state or sovereign under whose laws such compulsory assignment was made. Bank v. Gettinger, 3 W. Va. 316; Harrison v. Bank, 9 W. Va. 431.
3. RIGHTS AND LIABILITIES OF PARTIES.
a. Assignor Loses Control by Assignment. — The assignor of a judgment, or the claim on which it is founded, upon which judgment was recovered, has no control over it, nor of an execution issued thereon, taken out by the assignee, after a valid assignment is once made of it, and the assignor has no further interest in the claim; and of course no subsequent assignment of the judgment, recovered on such claim, can give any right to such subsequent assignee. In other words, after an absolute bona jide assignment for valuable consideration of all the assignor’s interest in a chose in action, the assign- or’s control over it ceases immediately. Clarke v. Hogeman, 13 W. Va. 718; Mackie v. Davis, 2 Wash. 230.
Assignor Cannot Interfere with Suit. — “And now, in all cases, the courts of law in England protect the rights of an assignee, suing in the name of the assignor, so far as not to permit the assignor to dismiss the suit or release the action.” Garland v. Richeson, 4 Rand. 266. opinion of Green, ,T.
Assignee Hay Sue for Specific Performance. — The assignee for value of a note given for the purchase money of land, may maintain a suit against his assignor, the vendor and the vendee, for a specific performance of the contract, in a case proper for such relief, for his benefit; and obtain satisfaction of the amount due him by subjecting the land to sale for the payment thereof. Hanna v. Wilson, 3 Gratt. 243.
Assignees Severally Liable. — Where a purchaser of land from a guardian executed his bond for deferred payments in such proportions as the guardian required, with a view to enable the guardian to transfer the bonds to others for his own purposes, it was held that if the assignee proved unable to pay, the purchaser of the land was bound to reimburse the sureties on the guardian’s bond, or to pay the amount to the ward in case the money could not be made out of the sureties or the assignees, each of the said assignees being severally liable for what he received. Broadus v. Rosson, 3 Leigh 25; 2 Barton’s Ch. Pr. (2d Ed.) 743.
Neither bills of review nor petitions for rehearing lie for assignees. Armstead v. Bailey, 83 Va. 242, 245, 2 S. E. Rep. 38.
Set-Off. — A is indebted to B by a bond payable January 1820, which, after it is due, is assigned by B to C ; but before notice of assignment, A becomes surety for B in a bond to D payable February 1822; then B becomes insolvent. Held, A is entitled, in equity to set off the amount of the bond in which he is B's surety to D, though not yet due (unless he is indemnified against his suretyship), against his own bond to B, in the hands of C his assignee. Feazle v. Dillard, 5 Leigh 30.
Declarations of Assignor after Assignment. — It is well settled that the declarations of an assignor after assignment, are inadmissible in evidence against his assignee. Brock v. Brock, 92 Va. 173, 23 S. E. Rep. 224; Barbour v. Duncanson, 77 Va. 76; Smith v. Betty. 11 Gratt. 752; Daily v. Warren, 80 Va. 512; Hodnett v. Pace, 84 Va. 873, 6 S. E. Rep. 217.
Whether Oral or Written. — Declarations, either oral or written, of an assignor, that a chose in action has been paid are inadmissible, unless made before the assignment. Ginter v. Breeden, 90 Va. 565, 19 S. E. Rep. 656; Lewis v. Long, 3 Munf. 136.
Acknowledgments of Payment. — The acknowledgments of an assignor that he has been paid his debt are no evidence against the assignee, unless they were made anterior to the assignment, and it is equally true, whether his acknowledgment is written or oral, and the onus probandi is on the debtor. Moreover a receipt is nothing but a written acknowledgment, and the date of it is not even prima facie presumed to be true, for if this were true every paper would prove itself, and the assignee would be put at a decided disadvantage, as the parties know the true date, whereas the assignee cannot know. Wilcox v. Pearman, 9 Leigh 147.
Statement after Assignment by Obligee. — The assignee being absent, statements made by the obligee of a title bond, after its assignment, detrimental to the rights of the assignee, are certainly not competent evidence as against him, and cannot affect his rights. Coldiron v. Asheville Shoe Co., 93 Va. 364, 25 S. E. Rep. 238.
Statements after Assignment as to Offsets. — Statements made by an assignor of a common-law instrument to the holder after the assignment, that there is no offset or objection to the said bond, nor anything to affect his liability as assignor, is a mere nudum pactum, and not binding, and hence will not be sufficient consideration to support an action of assumpsit by the holder against the assignor. Hopkins v. Richardson, 9 Gratt. 485.
b. Right to Go against Assignor.
bb. Warranties of Validity Generally. — By an assignment of a judgment, even though it be without recourse, the assignor warrants that it is what it purports to be, that he has done and will do nothing to prevent the assignee from collecting it, and that it has not been paid; but he is not answerable for the insolvency of the judgment debtor. The term “without recourse” does not relieve the transaction of such implied warranty. Findley v. Smith, 42 W. Va. 299, 26 S. E. Rep. 370.
Assignment of Invalid Claim — Statute of Limitations. — Where there is an assignment of an invalid county order, there is a breach at once of the implied warranty that it is a valid subsisting debt, and the right of action accrues immediately to the assignee to recover back the money paid by an action for money had and received. The statute of limitations in such case is five years, and it begins to run from the date of the breach of such implied warranty of the validity of the instrument assigned, unless something appears to avoid the commencement of the running of the statute at that date, but ignorance or neglect of one’s right will not avoid its running, unless such ignorance or neglect was due to the conduct of the assignor. Merchants’ Nat. Bank. v. Spates, 41 W. Va. 27, 23 S. E. Rep. 682.
Reversal of Assigned Judgment. — if a judgment of a county court be assigned, and afterwards re*206versed by the superior court of law, the assignee may thereupon sue the assignor, without carrying the case to the court of appeals. Arnold v. Hickman, 6 Munf. 15.
Forged Instruments. — Where an agreement under seal for the conveyance of land was assigned without recourse, accompanied by the delivery of a paper purporting to be a grant, together with certificates as to title, which papers proved to be forgeries, it was held that the assignor was not liable, there being no proof of fraud or knowledge of fraud on his part. Crawford v. M’Donald, 2 H. & M. 189.
Warranty of Debtor’s Insolvency. — It is well settled that the obligation of the assignor is that he warrants the solvency of the debtor and the existence and justice of the debt. Upon the assignee using or exercising due diligence to collect the debt, and failing, because of the inability of the debtor to pay, or because the debtor shows that he ought not, in law, to be required to pay the same, and thus defeats a recovery, then the law raises an implied promisé, on the part of the assignor, to repay the price which he received for it. A suit, however, is not always necessary to entitle the assignee to recover back the money paid upon the assignment, but he must show that a suit would be unproductive of good, and that the assignor has suffered no loss for want of such suit; such as the notorious insolvency of the debtor or some reason why a judgment could not be had. Slifer v. Howell, 9 W. Va. 397.
Implied Warranties. — Where a nonnegotiable note is assigned, calling for the payment of money, the assignor, by writing his name across the back and delivering it, warrants by implication, unless it is otherwise agreed, that it is a valid and subsisting debt, that the maker of the instrument is solvent, or will be when the claim falls due, and his right to assign. Merchants’ Nat. Bank v. Spates, 41 W. Va. 27, 23 S. E. Rep. 681.
cc. Failure to Collect from Obligor. — In the absence of proof of an express agreement to the contrary, the assignment of a bond imports a guarantee that the assignee shall receive the full amount of the bond from the obligor (when the money paid for the assignment was the face value of the bond), and further imports the right of the assignee to resort to the assignor for any part thereof which he shall fail to collect from the obligor with the exercise of due diligence. Peay v. Morrison, 10 Gratt. 149; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 878; Jenkins v. Hawkins, 34 W. Va. 799, 12 S. E. Rep. 1091.
Implied Promise by Assignor. — The law raises an implied promise by the assignor to the assignee, that if the assignee (using due diligence), fails to recover of the obligor or maker, the assignor will repay him the consideration which he received for the paper. This implied promise, however, is decided to extend only to the immediate assignee, and to give to no other a right of action against the assignor, so that no other assignee could sue a remote assignor. Caton v. Lenox, 5 Rand. 42.
Undertaking of Assignor. — In a note by the editor (appended to Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593), in 2 Va. Law Reg. 612, it is said: “The assignor is not bound by the note or by his assignment of it, in the absence a of special agreement to that effect, to pay it, as in the case of the endorser of a negotiable note. His undertaking is to refund or repay the value of the consideration he has received for the assignment, if the assignee, by the exercise of due diligence, cannot recover the debt assigned. The implied contract between the assignor and assignee of a nonnegotiable note is different and quite distinct from the contract between the maker and payee of such note; hence the waiver of exemption as to the obligation of the note does not embrace the obligation arising out of the assignment. This was decided by the court. The same rule would apply to the assignment of a bond or any other nonnegotiable instrument. The distinction pointed out is of much importance in business transactions.”
Covenant against Liability. — A bond may be assigned in general terms with a verbal agreement that the assignor shall not be responsible; and, thereupon, he will not be responsible even to a subsequent assignee having notice of such agreement. Stubbs v. Burwell, 2 H. & M. 536.
But in the absence of an express stipulation to the contrary, the assignor’s liability is the same whether the assignment be general or special. Goodall v. Stuart, 2 H. & M. 105.
Assignment without Recourse. — An assignment without recourse of a bond exempts the assignor from all liability by reason of the insolvency of the obligor, and if the bond is genuine and the amount of money it calls for was owing and unpaid at the time of the assignment, the assignee is not entitled to recover the bond by reason of any failure or inability on his part to make the money. He takes upon himself all risk of collecting the money, providing it was in fact what it seemed to be, a genuine, valid, subsisting debt. Houston v. McNeer, 40 W. Va. 365, 22 S. E. Rep. 80; McSmithee v. Feamster, 4 W. Va. 673.
Fraud by Assignor. — Where a bond was assigned without recourse, and the assignee sued to recover his money back, on the ground of fraudulent representation, it was held that to avoid such contract the-representation must be. of a material fact and be false within the knowledge of the assignor, and be made with intent on his part that the assignee should act upon it, and the assignee must have, in ignorance of its falsity, relied upon it and been thereby misled to his injury and damage. Houston v. McNeer, 40 W. Va. 365, 22 S. E. Rep. 80.
One who, knowing an obligation to be void for usury, transfers it, without disclosing the defect, is. guilty of a deceit which renders him liable to the-transferee. Fant v. Fant, 17 Gratt. 11.
Proof of Fraud. — A subsequent assignee, who asserts that he took his assignment for value, without notice of the prior assignment, and, moreover, charges the previous assignment with being fraudulent, is, of course, bound to prove it, as it is his. own case. Daily v. Warren, 80 Va. 512.
Taking a Forthcoming Bond. — The taking of a forthcoming bond, on a judgment and execution against, the obligor of an assigned bond, is not such a satisfaction of the judgment, as will preclude the assignees from having recourse against the assignors. Smith v. Triplett, 4 Leigh 590.
ccc. Diligence — General Rule. — The general rule is,, that the assignee of a bond or promissory note-must use due' diligence to recover the amount of it. from the obligor or maker, before he can resort to the assignor. A suit is in general necessary, but there are circumstances which will excuse the assignee from bringing suit. Caton v. Lenox, 5 Rand. 31; Mackie v. Davis, 2 Wash. 219; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 880.
Upon an assignment for value, the presumption is that the assignor is'liable to the assignee if, by the: *207exercise of due diligence, the money is not collected from the obligor. Gordon v. Rixey, 76 Va. 706.
Statute of Anne. — Antecedent to the statute of Anne, the assignee could recover against the assignor if payment of the note was demanded from the maker and he refused. And in this country, as bonds and notes are governed by the same principles, the above-stated rule will apply to bonds also. Mackie v. Davis, 2 Wash. 219, 230.
Suit Must Be Sufficient. — It is not sufficient for the assignee of a promissory note to bring a suit against the maker, which fails on account of the informality in the proceedings; but he mnst bring a sufficient suit, before he can charge the assignor. Bronaugh v. Scott, 5 Call 78.
The assignee of a note of hand, mnst sue the maker, before he can resort to the assignor. Lee v. Love, 1 Call 497. See also, Barksdale v. Fenwick, 4 Call 492.
Duty of Assignee When He Does Not Sue. — If an assignee attempts to excuse himself for not suing, for examide, relying on the fact that the instrument assigned is invalid, then he should immediately demand the money from the assignor with an offer to return the instrument, that the assignor might take measures to recover from the maker. Merchants’ Nat. Bank v. Spates, 41 W. Va. 27, 23 S. E. Rep. 683; Wilson v. Barclay, 22 Gratt. 534, approved in ahoye case.
Various Excuses for Not Bringing Suit, — There are many cases in which no suit need be brought against the maker, as where the note was a forgery, and the assignor has received the money from the assignee, or where the assignor practiced a fraud upon the assignee, or where exchange notes were given between the maker and assignor, as a consideration for each other, and the note given by the assignor has never been paid, nor sued upon. Caton v. Lenox, 5 Rand. 31.
Insolvency. — The assignee cannot recover merely on default of the debtor, but only after legal recourse against him has been exhausted, unless It appear that before the bond fell due the debtor became insolvent, or unless it appear from some 'cause that a suit against him would be unavailing. Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 878; Drane v. Scholfield, 6 Leigh 390. See Dunn v. Price, 11 Leigh 210.
When the obligor of a bond becomes insolvent before the bond becomes due. a suit against him is unnecessary to establish the right of the assignee to recover of the assignor, as such a suit against the obligor would be unavailing. Peay v. Morrison, 10 Gratt. 149.
The assignee, as a general rule, cannot recover against the assignor the amount paid for the assignment unless due diligence is used without effect against the debtor. But it is never necessary to pursue the debtor, if such pursuit would be unavailing by reason of the debtor’s insolvency at the time of the assignment, or when the instrument falls due, or if it be null and void. Merchants’ Nat. Bank v. Spates, 41 W. Va. 27, 23 S. E. Rep. 682.
Insolvency at Time of Assignment. — It was held in Coiner v. Hansbarger, 4 Leigh 452, that where a bond, payable on demand, was assigned for valuable consideration, and the obligor was insolvent at the time of the assignment, then it is not necessary that the assignee should bring suit on the bond against such obligor, in order to entitle him to recourse against the assignor, but the latter is immediately liable to the assignee upon the contract of assignment.
Notorious Insolvency of Maker. — The assignee of a bond or note is not bound to sue the maker, if he be notoriously insolvent, before he can resort to the assignor. Saunders v. Marshall, 4 H. & M. 455.
It was held, in Broun v. Hull, 33 Gratt. 23, that “as assignees, plaintiffs are under no obligation to make any demand upon the maker, and give notice to the defendant of nonpayment, but they are bound to exercise due diligence in suing the maker, obtaining judgment and execution, which is a condition precedent to their right upon the defendant, unless, indeed, the makers were notoriously insolvent. The defendants, moreover, had the right to show that the plaintiffs had not used due diligence and that the maker was not notoriously insolvent.”
“An assignor is not liable as an endorser, of paper not negotiable according to the laws of this state, although it may have been negotiable under the laws of the placewhere it was made. Therefore, in order to make an assignor liable for its payment, it must be averred and shown that the maker was insolvent at the time it became due, or at the time of the assignment, if assigned after it became due, or that due diligence has been used to collect it, or that it could not have been made by the use of due diligence. Nor can there be a recovery under such circumstances under the common counts in assumpsit.” Nichols v. Porter, 2 W. Va. 13. The statement in Nichols v. Porter, that recovery cannot be had under the common counts in assumpsit, has been overruled in Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 605.
Express Agreement by Assignor. — An express agreement by the assignor of a bond, to be responsible for the payment thereof, should the obligor prove insolvent, does not vary the nature of the undertaking, nor affect the assignor’s liability, as, without an express stipulation to the contrary, he would have been so liable by mere operation of law. Goodall v. Stuart, 2 H. & M. 105.
Bankruptcy — It is generally necessary for the assignee of a promissory note to sue the drawer, in order to charge the endorser, but to this rule there are exceptions, where the plaintiff can show a discharge of the drawer under the former bankrupt laws of the United States, or the insolvent law of the state or that the drawer was actually insolvent, so that a suit would have been wholly unavailing. Brown v. Ross, 6 Munf. 391.
As a general rule the assignee cannot recover from the assignor the amount paid for the assignment, unless due diligence is used without effect, against the debtor; but it is in no case necessary to pursue the debtor, if it be clear that such pursuit would be unavailing, as if the obligor being insolvent at the time of the assignment, or when the note falls due, or where the note is a forgery, or where the maker is a married woman. Morrison v. Lovell, 4 W. Va. 346.
Pursuit of Maker Out of State. — The weight of authority and reason seems to sustain the contention that an assignee is not bound to pursue the maker out of the state, in order to constitute due diligence on his part, but if he elects to leave the state and sue the maker, he is bound to use due diligence, and if he holds up a claim for a long time and allows the maker to become insolvent, then the assignor will be absolved. Drane v. Scholfield, 6 Leigh 386.
Writ Must Be Produced. — in an action by an assignee against an assignor of a bond, the point in dispute *208being whether the assignee has used due diligence in suing the debtor, if the plaintiff produce a transscripfof the proceedings'in á suit which he brought against the obligor, showing the time when the declaration was filed, but not the date of the writ, and the defendant demur to the evidence, the court not interfering nor requiring a copy of the writ to be produced; such demurrer should be set aside and a venire de novo awarded. Taliaferro v. Gatewood, 6 Munf. 320.
Assignee Must Pursue Security with Diligence. — It is a perfectly well-settled rule of law that the assignee must use due diligence to make the money out of the maker or obligor before he can come against the assignor, and where the debt assigned is secured by a specific lien, it is the duty of the assignee diligently to enforce such lien before he can have any recourse against the assignor. If he fails to pursue this course, it is incumbent upon him to show clearly that the security was worthless, and that no loss or damage has resulted from his lack of diligence. The assignee cannot delay' upwards of two years, without any excuse, to pursue the security. Carper v. Marshall, 98 Va. 438, 36 S. E. Rep. 526; Wilson v. Barclay, 22 Gratt. 541, approved.
Judgment upon an Award. — A suit by an assignee of a bond against the obligor being referred to arbitration, the arbitrators find the debt to have been discharged by payments to and set-offs against the assignor, and make an award in favor of the obligor, upon which judgment is entered, whereupon an action is brought by the assignee against the assignor. Held, that though the assignor is at liberty to controvert the facts, found by the award, and show that the judgment is erroneous, yet, until the contrary is shown, the judgmentwill be presumed to be right, and is sufficient therefore to establish the liability if the assignor, and to support an assumpsit founded on such liability. Scates v. Wilson, 9 Leigh 473.
Return of “No Effects.” — A return of “no effects,” by a sheriff on an execution in favor of an assignee of a bond against the obligor is generally held sufficient to charge the assignor; so in an action against the assignor, evidence of the obligor’s insolvency is inadmissible. Goodall v. Stuart, 2 H. & M. 105; Minnis v. Pollard, 1 Call 227. See also, Hooe v. Wilson, 5 Call 61.
But in a suit by the assignee against the assignor of a bond, if it appear that after the judgment against the obligor, a fieri facias was returned nulla bona, and that afterwards the assignee sued out a capias ad satisfaciendum, upon which the return was “executed on the body of the defendant, who stands committed to the prison bonds, as per bond,” etc., the plaintiff cannot recover but must be considered as having brought his action against the assignor prematurely ; because, for aught that appears in the records, the obligor is still in custody under the ca. sa., or may have paid the debt. Johnston v. Hackley, 6 Munf. 448.
The assignee of a bond cannot recover against the assignor upon a declaration stating that the plaintiff brought suit and obtained a judgment which was enjoined upon a bill claiming equitable discounts, on account of certain dealings and transactions between the obligor and the assignor before the assignment; and that the plaintiff was thereby entirely debarred from collecting the debt; without stating that the injunction was made perpetual, or what proceedings took place thereon. McClung v. Arbuckle, 6 Munf. 315.
Return of Nulla Bona Conclusive Evidence of Insolvency. — in an action between the assignees and assignors the sheriff’s return of nulla bona on the execution against the obligors in the forthcoming bond, though amended after the assignees’ action and five years after the return, so as to show the insolvency of both the surety and principal, is conclusive evidence of such insolvency. The insolvency of the debtors might be proved by other evidence, but the assignees have a right to the conclusive evidence of the sheriff's return. Smith v. Triplett, 4 Leigh 590.
When assignees have recovered judgment on an assigned bond, and sued execution against the obligor, and that execution is returned nulla bona, they are entitled to recourse against the assignors, and it is no defence for the assignee to show neglect or malfeasance in the sheriff; the assignors, as parties injured may sue the sheriff for such misconduct;, the assignees are not bound to sue him, before they can have recourse against the assignors, upon the contract of assignment. Smith v. Triplett, 4 Leigh 590.
Allegation of Return “Nulla Bona” Sufficient. — When a declaration against an assignor sets forth the return of nulla bona against the obligor, which is prima facie evidence of his inability to pay, then it is unnecessary to state in the declaration that the obligor was insolvent. Barksdale v. Fenwick, 4 Call 492.
Pursuit of Maker’s Bail. — when the assignee has ascertained the insolvency of the maker, that is all he is required to do, so as to have recourse to his assignor, and he need not pursue his bail to insolvency before going against the assignor, for if this latter were necessary it would likewise be necessary in all cases to ascertain by suit, whether the maker could give bail. Caton v. Lenox, 5 Rand. 48.
The assignee of a bond may recover of the assignor, after suing the obligor and obtaining a judgment and execution with a return of nulla bona; notwithstanding his attorney directed that appearance bail be not required of the obligor. Harrison v. Raines, 5 Munf. 456.
What Is Due Diligence. — To charge either the guarantor or assignor due diligence must be used. The assignee being entitled to recover of the assignor on the grounds of failure of consideration, it will devolve on him to show (unless it be otherwise arranged by agreement) that he used due diligence to collect the debt of the debtor,' and used it in vain. What is due diligence is not susceptible of a precise definition. An immediate suit duly followed up by an execution, etc., is always due diligence, even though it may not be the surest way to make the money. Immediate suit, however, is not indispensable if the assignee can show that' by reason of the debtor’s insolvency or for other reasons a suit' would be un-' availing. Payne v. Huffman, 98 Va. 372, 36 S. E. Rep. 476; 3 Min. Inst. (4th Ed.) 437.
Depends on Circumstances. — But what is due diligence on the part of an assignee depends, very often, on circumstances. Barksdale v. Fenwick, 4 Call 492.
Laches. — Where an assignment of money has been made by an order upon another, which order is accepted, it is the duty of the assignee to use due diligence to collect the money from the acceptor, and upon a failure, to give notice to the drawer and assignor so that they may take proper steps for their security, and they cannot resort to the assignor and drawer, after they have been doing *209nothing for years to enforce their right against the acceptor. Wood v. Duval, 9 Leigh 6.
Delay of Two Years. — Where an assignee delays for two years to sue the maker of a note it is not such diligence as the law says an assignee must use. In such a case he cannot recover against the assignor, where there is no proof of the maker’s insolvency at the time the note matured or shortly thereafter. Thompson v. Govan, 9 Gratt. 695.
Waiver of Diligence. — The necessity for using diligence to enforce the payment of an assigned bond, may be waived by the terms and conditions expressed with sufficient clearness in the assignment. Lightfoot v. Green, 91 Va. 513, 22 S. E. Rep. 242.
In general the guarantor contracts to pay if, by the exercise of due diligence, the debt cannot be made out of the principal debtor. Still if it appears to have been the intention of the guarantor to make himself liable on the default of the principal debtor, without the use of the ordinary means to compel payment by him, or proof of his insolvency, he will beheld liable accordingly. His contract, in such case, is a guaranty of payment, or of punctual payment, by the principal debtor, and not merely a guaranty of solvency, or of ultimate payment, after the usual means of enforcing if are employed. Arents v. Com. 18 Gratt. 750, 770.
Waiver May Be Proven by Parol. — After assignment certain bonds are placed in the hands of an attorney for collection, by the assignee, but with instructions to sue on them or not just as the assignee directed, and these instructions the attorney followed. Upon the attorney’s being offered as a witness, an objection was raised that he was incompetent to prove any matter as excuse for due diligence, because it would vary the contract which the law implies that the assignee will use due diligence. Jfeld, the rule as to the use of due diligence, is intended for the benefit of the other assignor, and may be waived by him, as was done in this case, and the waiver may be proven by parol testimony. The assignor will still be liable to the assignee, although the debt may have been lost by the failure to use diligence. Hall v. Rixey, 84 Va. 790, 6 S. E. Rep. 215 See also, McLaughlin v. Duffield, 5 Gratt. 133.
Burden of Proof. — “In questions concerning due diligence, the burden of proving it is always upon that party whose interest it is to establish it. ” Drane v. Scholfield, 6 Leigh 393.
Diligence Question for Jury. — What is due diligence in the assignee of a bond or promissory note, is a question to be decided by the jury. Bronaugh v. Scott, 5 Call 78; Mackie v. Davis, 2 Wash. 219; Barksdale v. Fenwick, 4 Call 492.
Grounds for Recovery When Consideration Fails.— In an action by an assignee against his assignor he is entitled to recover, not on the ground of the assignment, for the transferror of the bond is equally liable by sale of the bond, even without assignment, but on the principles of natural justice that if a man buys of another that which afterwards turns out to be worthless, he is bound to refund the price. The consideration having failed, he must pay back the money. Hence, the assignor is never liable for more than the price paid by the assignee for the bond, with interest and the cost sustained in prosecuting the obligor. Moreover, the assignee who sues the remote assignor can recover from him only so much as he has received from his immediate assignee. Goff v. Miller, 41 W. Va. 683, 24 S. E. Rep. 644; Whitworth v. Adams, 5 Rand. 377.
Consideration for Assignment — Measure of Recovery. —The assignee’s right of recourse upon the assignor rests upon the ground that there was a valuable consideration for the assignment. In all cases, however, the actual consideration maybe shown, and this constitutes the measure of-recovery by the assignee against the assignor. Welsh v. Ebersole, 75 Va. 651; Mackie v. Davis, 2 Wash. 219; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 878.
Where there is no proof of the consideration for an assignment, the measure of damages recoverable on recourse against the assignor is the value of the thing assigned. Barley v. Layman, 79 Va. 518.
Extent of Assignor’s Liability. — “As to the extent of the assignor’s liability, I think it can only reach the sum actually received, in case the obligor is able to prove it. If he cannot do this, it is sufficient to be presumed that he received an equal sum with that due on the bond. If incautiously, the consideration actually received be not stated in the assignment, and it cannot otherwise be proved, a court of equity is open to the assignor, and he may there seek a discovery of that fact.” Per Carrington, J., in Mackie v. Davis, 2 Wash. 231.
An assignment of a chose as collateral security for a debt will enable the assignee to recover from the debtor the whole liability under it, though, as between the assignor and assignee, part of it may belong, after recovery, to the assignor. Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584.
Consideration Most Be Alleged. — Where the plaintiff is only entitled to recover from a defendant the consideration received by him from his immediate assignee, then it is necessary for him to allege in his complaint the consideration for the assignment, otherwise the complaint is to be rejected as insufficient. Goff v. Miller, 41 W. Va. 683, 24 S. E. Rep. 643; Hall v. Smith, 3 Munf. 550.
Presumption of Law — Note as Evidence. — in a proceeding by the assignee against an assignor to recover on the contract implied by the assignment, the note is a necessary piece of evidence in support of the proceeding in order to prove the assignment, and to enable the court to fix the measure of the plaintiff’s recovery, for, in the absence of proof to the contrary, the law presumes that the assignor received for the note a sum equal to that specified in it. The statement of the fact of such inspection in the entry of the judgment, however, is wholly unnecessary, but the expression of it does not render the judgment reversible, nor show that the judgment was rendered on the note and not on the contract implied from the assignment. Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593.
c. Priority or Assignments.
Priority of Parties Depends on Order of Assignment. —His well settled that the assignees of choses in action partake of the lien attached thereto in the order of their assignment, and not according to the dates of maturity of such choses. Turk v. Skiles. 45 W. Va. 82, 30 S. E. Rep. 234; Gordon v. Fitzhugh, 27 Gratt. 835. and note-, Taylor v. Spindle, 2 Gratt. 44; Gregg v. Sloan, 76 Va. 497; Gwathmeys v. Ragland, 1 Rand. 466.
Where all the creditors and purchasers of the assignor stand on the same footing in point of merit, and can claim no preference over each other on that ground, it naturally follows in such case that he who is first in time shall be first in priority. Bank v. Gettinger, 3 W. Va. 317; Tingle v. Fisher, 20 W. Va. 510; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 881; Schofield v. Cox, 8 Gratt. 533.
*210Bonds secured by the vendor’s lien, and assigned at different times to different persons, are to be satisfied out of the proceeds of the land, upon which they are secured, in the order of their assignment. Paxton v. Rich, 85 Va. 385, 7 S. E. Rep. 531.
An assignment of a legacy takes effect from its date, and the assignee is entitled to priority of satisfaction, as against creditors who have attached the legacy in the hands of the executors subsequent to the date of the assignment, although it is not shown that the assignment had been delivered to the assignee prior to the service of the process of foreign attachment. Thompson v. Graves, 1 Pat. & H. 101; Anderson v. De Soer, 6 Gratt. 370.
Set-Off —In accordance with the view that the date of assignment of bonds determines the question of priority it has been held, that the purchaser who pays off a prior lien on land bought by him, in order to protect his own title, may set off the same against his own purchase money bonds in the hands of several assignees in the inverse order of their assignments (preferring such assignments as are for value to such as are not), and if some of the bonds are assigned, and some are not, the unassigned bonds would be liable to the right of set-off before the assigned bonds, though the former were payable before the latter. Armentrout v. Gibbons, 30 Gratt. 645; 2 Barton’s Ch. Pr. (2d Ed.) 1141.
4. RIGHT TO SUE.
a. AT LAW.
Assignee May Sue in Name of Assignor. — It is well settled, that when á chose in action, such as a bond, note or accepted order, on a third person is transferred and delivered to a creditor, as collateral security for a debt, it is the right of the debtor to sue upon such chose in action at law, and if necessary to use the name of the legal owner of such chose in action. He must use reasonable care and diligence to make it available, and if his negligence, laches, omission or wrongful act causes loss on such chose in action, the creditor must bear the loss. Whitteker v. Gas Co., 16 W. Va. 721; Stebbins v. Bruce, 80 Va. 389; Tyler v. Ricamore, 87 Va. 466, 12 S. E. Rep. 799.
A stranger that has acquired an equitable right to the benefit of an execution by an assignment, or to the property upon which it is levied, may, in most cases, by virtue of such equitable right, sue out and conduct the process, or object to its validity or regularity ; but he cannot do so by proceedings in the case, in his own name, but must do it in the name of a legal party to the process. Wallop v. Scarburgh, 5 Gratt. 1.
Assignee Must Sue in His Own Name. — The legal title to a nonnegotiable instrument does not pass by assignment, but the equitable owner by assignment may sue in his own name under the statute. Code of W. Va., ch. 99, sec. 14; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 880; Garland v. Richeson, 4 Rand. 266; Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584; Tyler v. Ricamore, 87 Va. 466, 12 S. E. Rep. 799.
Assignee of a Draft. — The assignee of a note or draft does not acquire the legal title to the debt, but an equitable right, which he may assert at law in his own name by virtue of the statute, or in that of the original payee for his benefit; and it is not necessary, that the record should show, that the suit is for the benefit of the assignee. Clarke v. Hogeman, 13 W. Va. 728; Brown v. Dickenson, 27 Gratt. 690, opinion of Staples, J.
Right of Remote Assignee to Sue at Law. — Under the provisions of sec. 2861 of the Va. Code, a remote assignee has the benefit of the promise implied by law from an assignor to his immediate assignee, i. e., that if he fails, by due diligence, to recover from the maker or obligor, that the assignor will repay the consideration he has received for the chose in action assigned, and gives to the remote assignee, as well as to the immediate assignee, the right to recover upon such implied promise. In other words, the right which he previously had in equity the statute gives to him at law. See Code of W. Va., ch. 99, sec. 13; Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593. See Drane v. Scholfield, 6 Leigh 386.
A statute authorizing the last assignee to maintain an action at law against a remote assignor does not preclude such assignee from maintaining the action in the name of his assignor for his own benefit. Dunn v. Price, 11 Leigh 203.
The last assignee of a promissory note cannot maintain an action against a remote endorser; there being neither priority nor consideration between them. Dunlop v. Harris, 5 Call 16; Hooe v. Wilson, 5 Call 61.
Assignee Can Sue Only When Assignor Could. — It is important to observe that under the statute giving the assignee the right to maintain in his own name any action which the assignor might have maintained, the assignee cannot maintain the action except where it might have been maintained by his assignor. Thus, where there are two firms with a common member, and one of the firms is indebted to the other, if the creditor firm assign its claim to a third person, such third person cannot maintain an action against the debtor firm, at law, because his assignor could not have maintained it — it being a well-settled rule that one firm cannot sue another at law, where there is a common member, since such common member would be both plaintiff and defendant — an anomaly which the courts of law will not sanction. Va. Code, sec. 2860; Aylett v. Walker, 92 Va. 540, 24 S. E. Rep. 226.
Need Not Allege for Whose Benefit Suit Brought.— Though in the declaration and summons it is advisable to declare that the assignor sues for the use of the assignee, omission to do so is immaterial, as the declaration of such use is no part of the pleadings. The cause is complete without it. But where it is so stated in the declaration and summons, it is notice to the debtors to prevent payment to the assignee, and judgment for costs may be given against the beneficiary. Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 585; Clarke v. Hogeman, 13 W. Va. 728; Clarksons v. Doddridge, 14 Gratt. 42.
b. In Equity. — The assignee of a chose in action has not a right, in all oases, to come into a court of equity, upon the mere ground that he cannot sue in his own name; but it must appear that he is prevented from suing at law in the name of the assignor, or that the assignor himself would have had a right, if he had not assigned, to go into a court of equity. Moseley v. Boush, 4 Rand. 392.
In the case of Penn v. Hearon, 94 Va. 773, 27 S. E. Rep. 599, Cardwell, J., said: “In a note to the case of Kane v. Mann, 93 Va. 239, 24 S. E. Rep. 938, decided by this court, and reported in 2 Va. Law Reg. 433, the learned and lamented editor (Judge Burks) says that it has been decided by many cases, and seems a well-settled rule, that the complainant must be the party owning the beneficial equitable interest, and that he cannot sue for his benefit in the name of another who has a mere barren legal title.” See also, 3 Va. Law Reg. 745.
Suit on Promise. — If a promissory note or other *211chose in action calling for money be assigned, and the party liable therefor promise its payment to the assignee, such assignee may sue on it at law in his own name, without statutory authority, as he has legal title thereto; whereas, without such promise, he would take only an equitable title, the legal title remaining in the assignor. Bentley v. Ins. Co., 40 W. Va. 729, 23 S. E. Rep. 584; Cleaton v. Chambliss, 6 Rand. 86.
“Courts of law also permit and protect assignments of choses in action to a certain extent. If the debtor assent to the assignment, and promises to pay the assignee, an action may be brought in the name of the assignee in his own name; but otherwise he must bring it in the name of the assignor.” Scraggs v. Hill, 37 W. Va. 706, 17 S. E. Rep. 187.
Who Could Sue upon Implied Promise. — “Prior to the statute authorizing a recovery from an assignor, an assignee had the right, upon the principles of the common law, to recover from his immediate assignor under the contract implied from the assignment, that the assignor would repay the consideration he had received for the chose in action assigned, if payment thereof, by the use of due diligence, could not be obtained from the obligor or maker. This implied promise was not considered, however, to extend at law to any other than the immediate assignee, and consequently no assignee could recover at law from a remote assignor.” Long v. Pence. 93 Va. 587, 25 S. E. Rep. 593. Riely, J., See Mackie v. Davis, 2 Wash. 219.
c. Effect, in General, of Statutes. —It has been settled by many decisions that the effect of the statute — allowing the assignee of any bond, note or writing, not negotiable, to maintain thereon in Ms own name any action which the original obligee or payee might have maintained, but that he shall allow all just discounts, not only against himself but against his assignor, before the defendant had notice of the transfer or assignment — is not to give the assignee of nonnegotiable paper a legal title, so that equities are cut off against him, but only to permit him to enforce in his own name an equitable title at law, subject to all prior equities, just as when he sued in the assignor’s name. Code Va., § 2860; Code of W. Va., ch. 99, § 14; Clarksons v. Doddridge, 14 Gratt. 44; Iaege v. Bossieux, 15 Gratt. 98; Whitteker v. Gas Co., 16 W. Va. 717; Tingle v. Eisher, 20 W. Va. 509: St. Lawrence Boom & Mfg. Co. v. Price (W. Va.), 38 S. E. Rep. 527; Tyler v. Ricamore, 87 Va. 466, 12 S. E. Rep. 799; Bentley v. Ins. Co., 40 W. Va. 729. 23 S. E. Rep. 584; Davis v. Miller, 14 Gratt. 13.
It is well settled that the only effect of the early statutes, passed in 1705 and 1730, was to so far change the common law, as to enable the assignee to sue in his own name, taking the paper subject to all the equities of the maker or obligor. Norton v. Rose, 2 Wash. 233; Mackie v. Davis. 2 Wash. 219; Caton v. Lenox, 5 Rand. 42; Garland v. Richeson, 4 Rand. 266; Feazle v. Dillard, 5 Leigh 30; Gordon v. Rixey, 76 Va. 704; Stebbins v. Bruce, 80 Va. 400.
Common Law Not Abrogated by Statute. — It is a familiar principle that, though an assignee of a chose in action may himself sue, in his own name, still suit may still be in the name of the assignor as at common law. Bentley v. Ins. Co., 40 W. Va. 729. 23 S. E. Rep. 585. See also. Garland v. Richeson, 4 Rand. 266; Clarke v. Hogeman, 13 W. Va. 718.
May Sue in Assignor’s Name or in His Own Name. - It was held, in Dunn v. Price, 11 Leigh 209, that because the act of 1807, provides that “hereafter the assignee shall be entitled to recover from any previous assignor or assignors,” it does not follow that he can no longer sue in the name of his assignor for his own benefit; he may sue either in his assign- or’s name, and for his own benefit, or in his own name under the statute. If he pursues the former course, the court of law will take notice of his equitable right, will permit the action to proceed in the name of the assignor, for his benefit, and will protect it against the interference of the assignor. The court furthermore said, that Garland v. Richeson, 4 Rand. 266, is pregnant with proof that a party may proceed under the statute or as at common law; and that the argument in that case is a fortiori in this.
It is evident that under the W. Va. statute, ch. 99, § 14, a right is merely conferred upon the debtor which he did not possess before under the common law when it provides that the assignee of any bond,, note, account, or writing, not negotiable, may maintain thereupon any action in his own name, without the addition of “assignee, which the original obligee or payee might have brought,” etc.; but the right so conferred must be regarded as merely cumulative, and does not in any manner detract from the remedy prescribed under the, common law. See Scraggs v. Hill, 37 W. Va. 706, 17 S. E. Rep. 187.
May Recover against Immediate or Remote Assignor. —Under ch. 99, sec. 15 of Code of W. Va., an assignee, by way of recourse, may recover against his immediate or any remote assignor of nonnegotiable paper. Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 604; Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593.
Statute Applies to Nonnegotiable Paper. — The statute which declares “the assignee of anyboxxd, note or writing not negotiable, may maintain any action thereupon in his own name, which the'original obligee or payee might have brought, butshall allow all just discounts.” etc., applies only to writings not negotiable; and its only effect is to authorize the assignee of such writings to sue at law in his own name. The legal title still remains in the assignor, in whose name the suit at lawra ay be brought. But by no just construction can this statute be made to include negotiable notes whether before or after maturity, for the language of the statute expressly excludes them. Davis v. Miller, 14 Gratt. 13.
cc. Upon Equity Jurisdiction. — In 2 Va. Law Reg. 384, the editor says: “The remedy provided by sec. 2860 of the Va. Code of 1887 (see Code of W. Va., ch. 99, sec. 14, for a similar provision), for actions by assignees of nonnegotiable choses in action, in their own names, is not exclusive of the j urisdiction of equity to grant relief, save in so far as the jurisdiction is excluded by sec, 2862 (Code of W. Va., ch. 99, sec. 16, makes identically the same provision). The latter excludes equitable jurisdiction only in the case of ‘suits upon a bond, note, or writing by an assignee.’ So that equity still has jurisdiction of suits by assignees of choses iix action, other than bonds, notes or writings, though under sec. 2860, the assignee of any chose in action (whether in writing or not) may maintain an action thereon in his own name.”
Code of Va. 1873, ch. 141, sec. 19, providing that equity shall not have jurisdiction of suits on bonds, notes, etc., by the assignee or holder thereof, was not intended to affect the principle that, when the court has once rightly obtained cognizance oí the controversy and of the acts of the parties, i.ts power *212is effectual for complete relief. Walters v. Bank, 76 Va. 12, 18.
Equity Jurisdiction Still Remains. — The pre-existing right of an assignee of a bond, to demand payment of the same in a court of equity has not been emerged or impaired by the statutory right, since given him, to sue at law in his own name, upon the assignment. The latter remedy is cumulative and additional to the former. Winn v. Bowles, 6 Munf. 25.
Where a case was within the jurisdiction of a court of equity before the statute, and there is nothing in the act expressly excluding the cognizance of that court, it is to be construed as merely cumulative, and to give a concurrent remedy to the court of law. Galt v. Calland, 7 Leigh 600, per Tucker, J.
Remedy at Law Adequate. — But it is provided by Code of Va., sec. 2862, Code of W. Va., ch. 99, sec. 16, as follows: “A court of equity shall not have jurisdiction of a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appear that the plaintiff had not an adequate remedy at law.”
5. ESTOPPEL. — An assignor, who, by his silence, assurances, or representations, causes another party to take an assignment of a bond, will be equitably estopped from saying that the representations, etc., were false, where the assignee had a right to rely, and did rely on them to his injury. Nicholas v. Austin, 82 Va. 817, 1 S. E. Rep. 132, 5 Va. Law Reg. 115.
Estoppel by Assurances of Payment. — “In cases of assignment it is settled law, that if, before the assignee takes it, he applies to the obligor, informs him of his design to buy, and receives assurances that there is no objection to the bond, and that it will bp,duly paid, the obligor cannot afterwards set up, against the assignee, the defence of payment or illegal consideration.” Per Tucker, P., in Davis v. Thomas, 5 Leigh 4.
The assignee of a bond, given for a gaming consideration, stands in no better situation than the obligee would have done; but it is otherwise both at law and in equity, if he be induced by assurances of payment from the obligor to become the purchaser of the bond. Buckner v. Smith, 1 Wash. 296; Hoomes v. Smock, 1 Wash. 389.
An endorsee, who purchases a negotiable note, without notice of any equity between the maker and endorser, is not affected by such equity; especially where, before the assignment, the maker gives assurances to the endorsee, that the note will be duly paid. Lomax v. Picot, 2 Rand. 247.
Estoppel by Promises Express or Implied. — Where a debtor expressly or impliedly promises to pay a debt, after notice of the assignment, he is estopped from setting up any defence he had against the assignor. Stebbins v. Bruce, 80 Va. 389; Feazle v. Dillard, 5 Leigh 30.
Estoppel by Silence. — But mere silence will not operate to estop a party from setting no defences. Stebbins v. Bruce, 80 Va. 389.
Gaming Consideration. — “Though, upon a bill in equity by the obligor against the obligee and his assignee, it be fully proved, by evidence unobjectionable on the part of the defendant, that the bond of the plaintiff was given for a gaming consideration, still it is clear that the obligor cannot be discharged from his .liability to the assignee, where the evidence satisfactorily shows that neither the assignee nor his agent, previous to the assignment of the bond, ha'd any knowledge of its having been executed for money won at play, and that the agent was induced to purchase it by the plaintiff’s assurances that there was no objection to its payment, and that it would be duly paid. Under such circumstances the plaintiff cannot be exonerated from his indebtedness to the innocent assignee, and the only question he can be permitted to make is what is the amount of that indebtedness. Is it the whole sum for which he is bound, or is it the sum paid by the assignee to the assignor for the assignment ?” Per Baldwin, J., and Allen, J. Pettit v. Jennings, 2 Rob. 676.
But the assignee of a bond for money won at gaming cannot recover, though the assignment was for valuable consideration, and though he had no notice of the origin of the bond, unless the obligor, before the assignment, induce him to take the bond by promising to pay him the money. Woodson v. Barrett, 2 H. & M. 80.
VI. PLEADING AND PRACTICE.
1. ALLEGATIONS OF PAYMENT — BEFORE NOTICE. — In an action upon an assigned bond the declaration must aver nonpayment by the defendant to the assignor before notice of the assignment, and a mere averment of nonpayment, without more, is insufficient, and the defect is not cured by the verdict. Green v. Dulany, 2 Munf. 518.
The assignor and assignee of a bond being made defendants to a bill exhibited by the obligor, for an injunction and for general relief, he alleging that he paid the money to the assignor without notice of the assignment; of that allegation he afterwards disproved, whereupon the injunction is dissolved, and the bill dismissed as to the assignee : the cause ought yet to be retained, and further proceeded in, to give the complainant relief against the assignor. Ruffners v. Barrett, 6 Munf. 207.
In debt on bond, by the administrator of the assignee of the obligee against the administrator of the obligor, the declaration should aver nonpayment by the defendant or his intestate to the assignor, before notice of the assignment, or to the plaintiff’s intestate in his lifetime, or to the plaintiff after his death. Mitchell v. Thompson, 2 P. & H. 424.
Plea of Payment. — In debt on an assigned bond, the assignee being plaintiff, if the defendant pleads that he has paid the debt to the plaintiff (without pleading payment to the assignor before notice of the assignment) it is not allowable to give in evidence any set-off against, or payment to the assignor. Hatcher v. Cabell, 6 Rand. 252.
Payment to Whom. — In debt on a bond, in behalf of the survivor of two joint assignees, a declaration, charging that the defendant had not paid the debt to the obligee, or to the plaintiff, without averring, also, that he did not pay it to the other assignee in his lifetime, is bad on general demurrer. Nicholson v. Dixon, 5 Munf. 198.
. In an action of debt upon an assigned bond, the declaration ought to charge a failure to pay the money to the obligee, and to each of the assignees, as well as to the plaintiff; and if it only charges a failure to pay the plaintiff, it is too defective to maintain the action, which defect will not be cured by the verdict. Braxton v. Lipscomb, 2 Munf. 282. See also, Norvell v. Hudgins, 4 Munf. 496.
How Question of Payment Ascertained. — Where the debtor is sued by the assignee, it is of course important to him to be satisfied that the plaintiff is in fact the assignee, so that the defendant may be protected against the assignor, on payment of the judgment to the assignee. If the defendant desires to question the validity of the assignment, he may *213have a rule issued against the assignor to appear in the suit and avow or disavow the assignment. Clarksons v. Doddridge. 14 Gratt. 42; Triplett v. Goff, 83 Va. 784, 3 S. E. Rep. 525.
2. PROOF OF ASSIGNMENT — A bill is filed by the assignees, and the answer calls for proof of the assignment which is alleged in the bill. Held, it is error to decree for the plaintiffs, without such proof. Tennent v. Pattons, 6 Leigh 196; Corbin v. Emmerson. 10 Leigh 663; Lynchburg Iron Co. v. Tayloe, 79 Va. 675.
But in a bill by an assignee against the obligor and assignor, where the assignment is not questioned by the assignor, no necessity exists for proving it as against the obligor. Mayor v. Carrington, 19 Gratt. 74.
military Certificate. — The assignment of a military certificate to the plaintiff, ought to be proved, for the property in these papers will not pass by delivery, without assignment. The bare possession is not enough. Johnson v. Pendleton, 5 Call 128; Wilson v. Rucker, 1 Call 500, and Wythe 296, approved and followed.
Proof of Assignment under Statute. — By statute, where the declaration, bill, or other pleading alleges the assignment, proof thereof is dispensed with, unless with the plea, putting it in issue, there be filed an affidavit denying the assignment. Va. Code 1887, ch. 159, sec. 3279; Code of W. Va., ch. 125, sec. 40.
An allegation that the note was “sold and transferred,” is not sufficient to dispense with proof of the fact, not being within the statute, which has no application to a transfer of a note by mere delivery, but only to endorsements or assignments in writing. Clason v. Parrish, 93 Va. 24, 24 S. E. Rep. 471, 2 Va. Law Reg. 188, 191, and note; Phaup v. Stratton, 9 Gratt. 615. See also, Robinson v. Dix, 18 W. Va. 528; Maxwell v. Burbridge, 44 W. Va. 248, 28 S. E. Rep. 702.
Bond Offered in Discount —A receipt or assignment of a bond, offered in discount, must be proved at the trial. Without this the avowant could have no pretence to introduce it. Turberville v. Self, 4 Call 580.
Variance —Declaration on a bond was given to A, and by him assigned to the plaintiff. The bond produced in evidence had had an assignment indorsed to B which was stricken out, except the signature of the obligee, above which was indorsed the assignment to the plaintiff. The court held that there was no variance between the declaration and the bond. Drummond v. Crutcher, 2 Wash. 218.
3. STATUTE OF LIMITATIONS. — One of two assignees, claiming the same judgment, cannot plead the statute of limitations as against the other. Clarke v. Hogeman. 13 W. Va. 718.
Time of Accrual of Action. — Upon a plea by the assignor that the action against him did not accrue within five years, it is found that though the debt originally due from the obligor has been discharged by payments to and set-offs against the assignor, yet the assignee did not know, until after judgment in his suit against the obligor, that nothing was due; and it is also found that five years have not elapsed since the judgment. Held, that as part of the debt was discharged by the set-off, it was only the judgment which established the set-off as a payment, and until the judgmentwasrendered, the action did not accrue against the assignor. Scates v. Wilson, 9 Leigh 473.
4. ACTION OF ASSUMPSIT — “In an action by the assignee against the assignor, the right of recovery is founded in every case npon the implied contract created by the assignment, and the remedy for the enforcement of the right is the action of assumpsit.” Long v. Ponce, 93 Va. 588. 25 S. E. Rep. 593; Caton v. Lenox, 5 Rand. 31; Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 880.
Reasons Why Assumpsit Lies. — An assignee may recover against an assignor of nonnegotiable paper, on the common count for money had and received in indebitatus assumpsit. “Recovery can be had based on the assignment of a chose in action turning out insolvent, and this is true whether there has been an express or implied undertaking to stand good for it in case of a failure to collect, for the law says that it shall be refunded on the ground that there has been a failure of consideration, and in legal contemplation the money is received for the use of the party who paid it.” Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 605. Nichols v. Porter, 2 W. Va. 13, so far as it relates to this feature is overruled by the principal case. Drane v. Scholüeld, 6 Leigh 395, opinion of Tucker, J.; McWilliams v. Smith, 1 Call 125, opinion of Roane, J. The latter case is pointedly decisive of the question logically, the court saying: “This note with its assignments, was certainly proper evidence on the general count for money had and received.” See also, Mackie v. Davis, 2 Wash. 219.
When the Action Will Lie. — The assignee of a promissory note must first sue the maker, before he can resort to the assignor, and until he sues the maker, he cannot recover against the assignor upon the counts in indebitatus assumpsit for money had and received, or for money paid, laid out, and advanced, which will lie against the assignor of a bond, and is the proper action, when the proper steps have been taken. Lee v. Love, 1 Call 497; Mackie v. Davis, 2 Wash. 229, 230, opinion of Roane, J.
Where an assignor endorses his name in blank on a bond for the purpose of enabling' the assignee to obtain credit thereon, and buys goods on the faith of his endorsement, he will be liable to the holder thereof, in an action of assumpsit, either as assignor or guarantor of the bonds, where the maker is insolvent. Hopkins v. Richardson, 9 Gratt. 485. See Welsh v. Ebersole, 75 Va. 659, 660, in which Staples, J., comments upon the above case.
5. PARTIES-GENERAL RULE — The general rule is, that where it is necessary to adjudicate the rights of the assignee, the assignor, or if he be dead, his personal representative, must be made a party to the cause. Vance v. Evans, 11 W. Va. 342, 382; Corbin v. Emmerson, 10 Leigh 663; Lynchburg Iron Co. v. Tayloe, 79 Va. 675.
Personal Representative Necessary Party. The case of Owens v. Riely’s Executors, 1 Va. Dec. 136 decided at Staunton, Va., at the September term, 1878, but not reported, is stated as follows, in 1 Barton’s Ch. Pr. (2d Bid.) p. 172: “There was a contention between two creditors who had presented their claims for audit before a master commissioner, who was acting under a decree rendered in a general creditors’ suit, and in which neither of them was named as a party. The fund was not sufficient to pay all the debts, and the creditor whose debt was not disputed excepted to, the commissioner’s report auditing the other debt, because that creditor claimed as assignee of another, and yet produced no evidence of the assignment except the mere possession of an unendorsed bond, which was not payable to bearer. The counsel for *214both parties agreed in argument that, owing to the difficulty of making the personal representatives of the alleg*ed assignor parties to the suit, the case could properly be tried without their presence. This, however, the court of appeals refused to do, but reversed the cause, and sent it back to the circuit court, with directions that the representatives of the alleged assignor should be made parties to the suit, or else be summoned before the master commissioner.”
Assignor of Hortgage. — The assignee of a mortgage may maintain a suit to foreclose, without making his assignor a party, if the legal title has been conveyed to him. Newman v. Chapman, 2 Rand. 93.
Unknown Assignees. — In a bill to set aside a deed as to one and his assigns, and it does not appear that there are any assigns, it is unnecessary to make them parties. Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 603.
An assignee of an interest in a portion of the purchase money, is the proper party to a bill of specific performance. Davis v. Henry, 4 W. Va. 571.
Parties to a Petition. — Where one files a petition in a pending cause to assert a claim as assignee to a debt reported therein, the assignor must be made a party to the petition and summoned to answer. Daily v. Warren, 80 Va. 517.
Assignment of Whole Interest of Assignor. — If an assignment purports to transfer the whole interest of the assignor, and there is nothing in the pleadings or proof to induce the belief, that it did not really do so, the assignor is not a necessary party to the suit on the claim assigned. Scott v. Ludington, 14 W. Va. 393; Omohundro v. Henson, 26 Gratt. 511; Vance v. Evans, 11 W. Va. 342; Tatum v. Ballard, 94 Va. 375, 26 S. E. Rep. 871; Corbin v. Emmerson, 10 Leigh 663, distinguished in James River & K. Co. v. Littlejohn, 18 Gratt. 53, on the ground that the question of the assignment was not before the court. Daily v. Warren, 80 Va. 517; James v. Burbridge, 33 W. Va. 272, 10 S. E. Rep. 397; Lynchburg Iron Co. v. Tayloe, 79 Va. 674, opinion of Lacy, J.
The assignor of a chose in action is not a necessary party to a bill by the assignee to enforce the chose in action against a third party, if the assignment, pleadings, and proof tend to induce the belief that the assignor’s whole interest was transferred, and the validity of the assignment was not denied. James River & K. Co. v. Littlejohn, 18 Gratt. 53, 82.
Assignment Absolute and Unconditional —An assignment being in writing, unconditional and absolute, and the extent and validity of it being neither doubted nor denied, the assignor is not a necessary party. Findley v. Smith, 42 W. Va. 299, 26 S. E. Rep. 371; Chapman v. Railroad Co., 18 W. Va. 184; James v. Burbridge, 33 W. Va. 272, 10 S. E. Rep. 396.
Note Endorsed for Collection. — It was held, in Lynchburg Iron Co. v. Tayloe, 79 Va. 676, that as the note sued on by the alleged assignee in this cause not having been assigned to him by the alleged assignor, but endorsed only for collection, it is necessary to make the said alleged assignor a party to any proceedings having for their object the disposition of the said note.
The assignor and assignee of a judgment may unite as coplaintiffs in a suit in equity to recover a debt. Neely v. Jones, 16 W. Va. 627, 645.
It was held, in List v. Pumphrey, 3 W. Va. 672, that where after a cause is revived, the said administrator de bonis non assigns the judgment which is the subject-matter of the suit, to an assignee, and the suit proceeds in the name of the new administrator without the assignee being made a party, still the cause might so proceed until final judgment.
Equity Deals Only with the Real Parties. — It is a well-settled rule that an assignor of a chose in action, though secured by a vendor’s lien reserved on real estate, cannot sue in equity for the benefit of his assignee to collect the debt. The reason for the rule is that equity deals only with the real parties in interest, and if they are not before the court no proper decree can be made in the cause. But where the beneficial owner has been made a party to the suit by the cross bill of the respondents, and has filed its answer thereto, a demurrer to the original bill should not be sustained. Hurt v. Miller, 95 Va. 32, 27 S. E. Rep. 831. See also, Penn v. Hearon, 94 Va. 773, 27 S. E. Rep. 599.
VII. EVIDENCE.
1. SCOPE OF SECTION. — Only such matters of evidence will be treated under this section, as do not properly fall under the other general heads.
2. EFFECT OF DEATH OF ONE PARTY. — The evidence of an assignor of choses in action, which contains declarations and conversations with a deceased party, as to the justness of such claims, is incompetent. Code of W. Va. 1868, p. 619, sec. 23; Middleton v. White, 5 W. Va. 572. See also, Ginter v. Breeden, 90 Va. 565, 19 S. E. Rep. 656; Mason v. Wood, 27 Gratt. 783.
One Not a Party to the Bond. — But one not a party to a bond, but who has agreed with the obligor to pay it, and has received from him money for that purpose, is a competent witness to prove payment, though the obligee is dead. Wager v. Barbour, 84 Va. 419, 4 S. E. Rep. 842.
Release Will Not Make Assignor Competent. — When an assignor and assignee of a chose in action are both parties to a suit brought to recover money due upon such chose in action, and the debtor is not living, the assignor is incompetent to testify as a witness in such suit in favor of his assignee. Even though a release is made by the assignee to the assignor, from all and every liability to recourse or otherwise, as assignor of the chose in action, this does not make the assignor a competent witness to testify in favor of his assignee. White v. Heavner, 7 W. Va. 324.
3. POSSESSION AS EVIDENCE OF AN ASSIGNMENT.
Mere Possession Not Evidence of Title. — But where there is no written assignment, the mere possession of the instrument would not be sufficient evidence of title to authorize the debtor to pay to the holder, the principle being that the mere possession of a common-law instrument, in the absence of other circumstances, is not sufficient evidence of title. Brown v. Taylor, 32 Gratt. 135, 5 Va. Law J. 1; Tate v. Tate, 85 Va. 205, 7 S. E. Rep. 352.
It is said, in 1 Barton’s Ch. Pr. (2d Ed.) p. 560, that while it is true that the mere possession of a note or bond is not prima facie proof that it was assigned, yet the delivery of the instrument by which the debt is secured will amount to an equitable assignment of it if there be proof that it was so intended, at least if there be a valuable consideration therefor. Mr. Barton seriously questions the proposition laid down in Bell v. Moon, 79 Va. 341, that possession of bonds and notes makes a prima facie case of ownership. See also, 10 Va. Law J. 450; Morrison v. Grubb, 23 Gratt. 342.
Possession by Personal Representative —Where the assignment of a bond is made to one who afterwards *215becomes personal representative, possession of the bond ' and production is no evidence of delivery. Lewis v. Mason, 84 Va. 731, 10 S. E. Rep. 529.
Effect of Lapse of Time — Where time has barred an action for deceit against the obligees of a bond, the assignee is not therefore an incompetent witness for the holder of the bond against the obligors. Fant v. Fant, 17 Gratt. 11.
Remote Assignor Competent Witness, — Where a note, not negotiable, is endorsed by several persons in succession, the last assignee could only sue the maker and his immediate assignor, and not a remote assignor, before the Act of Assembly of 1807, hence, before that act, a remote assignor, might have been a competent witness, to prove that the immediate assignor was discharged, in a suit between him and the last assignee. Caton v. Lenox, 5 Rand. 31.
Guarantee Uncalled for — Assignee Competent. — The assignee of a bond transfers it for value, without assignment, but undertakes verbally to guarantee it, if the transferee calls on him to do so, to enable him to dispose of it. The transferee disposes of the bonds without calling for the guaranty. The assignee is no longer liable on the promise to guarantee, and is therefore not an incompetent witness for the holder against the obligors. Fant v. Fant, 17 Gratt. 11.
Proof of Handwriting of Prior Assignors. — 3n a suit against the assignor of a bond, the handwriting of the assignors prior to his own, need not be proved upon the trial of the cause, because this action is founded principally on the priority that exists between the assignor and assignee, hence, it will be seen very readily that mesne or intermediate endorsements need not be proved. McWilliams v. Smith, 1 Call 123; Mackie v. Davis, 2 Wash. 219.
Answer oí One Assignor as Evidence against Other. —We find it laid down in the books, in the strongest terms, that the answer of one defendant is not evidence against his codefendant, and there is no authority which makes the answer of a vendor or assignor an exception from the general rule, even though the bond assigned be alleged to have been given on a gaining consideration, and this fact cannot be established by the answer of the codefendant (assignor) against the other defendant who is the assignee. Petit v. Jennings, 2 Rob. 676. See, in accord, Hoomes v. Smock, 1 Wash. 389; Dade v. Madison, 5 Leigh 401.
Privileged Communications. — Communications by assignor to attorney of assignee are not privileged when the attorney was acting for his client. Hall v. Rixey, 84 Va. 790, 6 S. E. Rep. 215.
VIII. RECORDATION OP ASSIGNMENTS.
Assignments of Choses Need Not Be Recorded. — Assignments of choses in action, whether general or special, are not required tobe recorded, and, hence, such recordation, if made, would not constitute constructive notice to third persons. Gordon v. Rixey, 76 Va. 701; Daily v. Warren, 80 Va. 512; Gregg v. Sloan, 76 Va. 500; Bickle v. Chrisman, 76 Va. 678; Ginter v. Breeden, 90 Va. 570, 19 S. E. Rep. 656; Kirkland v. Brune, 31 Gratt. 126, and note; Fleshman v. Hoylman, 27 W. Va. 728; Tingle v. Fisher, 20 W. Va. 497, 511; Renick v. Ludington, 20 W. Va. 511; Bank v. Gettinger, 3 W. Va. 317; Turk v. Skiles, 45 W. Va. 82, 30 S. E. Rep. 236.
The record of a deed of trust, by which bonds are assigned, does not constitute notice to the obligor of the assignment. Terry v. Wooding, 2 P. & H. 178.
Where a lien creditor, who as to a prior unrecorded deed, is a subsequent purchaser for value and without notice, assigns his claim to an assignee, who has notice of the deed, the assignee is as fully protected as the assignor had been. Cox v. Wayt, 26 W. Va. 807.
Meaning of “Goods and Chattels” in Recording Acts. —It seems to be perfectly well settled that the words “goods and chattels,” contained in the Virginia and West Virginia recording acts, do not apply to choses in action, but only to visible, tangible, movable property. Code of W. Va., ch. 74, sec. 5; Va. Code 1887, sec. 2414; First Nat. Bank of Richmond v. Holland, June 20, 1901, 7 Va. Law Reg. 204; Kirkland v. Brune, 31 Gratt. 126; Turk v. Skiles. 45 W. Va. 82, 30 S. E. Rep. 236; Tingle v. Fisher, 20 W. Va. 498; Fleshman v. Hoylman, 27 W. Va. 728. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481459/ | SAMUELS, J.
The contract between William Ralston, Elizabeth Ralston and David Ralston, of the date June 3d, 1819, is vague and indefinite in regard to the subjects involved in this suit. It seems from the plat of the land as divided by that contract, that the way provided thereby was intended for the benefit of Elizabeth Ralston in a small degree, and that it was highly important, if not indispensably necessary, to the enjoyment of David Ralston’s portion of the land. William Ralston however, could fully enjoy the land assigned him in the partition without this way, and his interest therein, if any, must have been very small. In regard to the acre of land which Elizabeth and David respectively were to convey to William, the selection ‘was left to Elizabeth and David; and as they might locate those acres detached from each other and in remote and inconvenient places, as McCue after-wards did, it is difficult to perceive what substantial interest of William Ralston could be promoted by a specific performance of the agreement in regard thereto. Thus the case stood between the parties to the original agreement. But the relations of those parties and the condition of the property itself have been since changed, and other parties have acquired an interest in the subject. William Ralston united in the deed of March 8th, 1829, conveying thereby all his interest in the two-thirds of the land held by them, of which the two acres in question formed a part. He made no reservation of those two acres nor of the way, but united in the deed for the purpose of enabling David and Elizabeth to sell and convey. He also sold and conveyed to David Ralston the 18 acres 3 roods and 28 poles of land lying south of the creek, to which part only of all his land the way could be of any advantage. He stood quietly looking on when the sale was made to Pence, giving no notice of the equitable claims now asserted. After all this, at the end of nearly twenty years from the date of the original contract, and at the end of nearly sixteen years after his reversionary estate had vested in possession, he filed his bill for specific execution of the contract in regard to the two acres of land and in regard to the way; and this too against McCue, a purchaser, having no actual notice, who had purchased of Pence’s executor, whose testator had also purchased without actual notice. Against each of these purchasers complainant makes out a doubtful case of constructive notice.
On consideration of the whole case, I am of opinion that complainant’s claim is too old and stale to be enforced by. a court of equity; that in the beginning he had too little interest in the subjects now in controversy *to call for the interposition of such court; that the change
in the relations of the parties owning the land, and in the condition and title of the land itself, make it improper to grant the relief prayed; that the deed of March 8th, 1829, passed any claim complainant may have had to the two acres of land; that the alleged right of way was at first of little or no value to complainant, and having parted with the land to which the way is said to have given value, and having allowed the way to be obstructed or closed for years, it must be held that this right of way, if not entirely lost, has become a mere personal right. The general principles governing courts of equity in regard to specific performance of contracts may be found in the cases. Anthony v. Leftwitch, 3 Rand. 238; Pigg v. Corder, 12 Leigh 69; Bryan v. Loftus’ adm’r, 1 Rob. R. 12.
I am of opinion to reverse the decree and dismiss the bill, giving the appellant a decree for the costs in both courts, but without prejudice to the right of the appellee to the way in the proceedings mentioned, if he have any such right which may be asserted in a court of common law jurisdiction.
The other judges concurred in the opinion of Samuels, J.
Decree reversed and bill dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481461/ | DANIEL, J.
I think that the judge of the Circuit court of Botetourt did not err in his opinion and decree of April 1839, in holding, “that as by the terms of dissolution Wood was to pay the debts of the firm, and for that purpose took all the property, real and personal, it was not competent for the retiring partner (Niday) to acquire an incumbrance on any part thereof, to the prejudice of the rights of a creditor of the firm.” The truth of the proposition of law involved in so much of the opinion is obvious, and was not seriously controverted in the arguments of the appellant’s counsel here. It is, I think, also evident, that regarding the testimony in the view most favorable to the cause of the appellant, and estimating the personal property at the highest valuation which any of his witnesses place upon it, there is a sufficient amount and more than a sufficient amount of partnership debt shown to be embraced in the bond and deed of trust of the 4th of October 1834, to absorb any surplus that could *arise out of the avails of the trust fund, after satisfying the prior and well established lien of Wiley.
If I am correct in this view, it is manifest that there is no longer any question (except that of costs) arising out of the interlocutory decree of 1839, and the final decree of 1843 in the original suit, which Niday could now ask us to consider; the real object of that suit being not to determine any controversy as to the personal liability *226of Niday for the debt claimed by Harvey & Co., but to enjoin a sale of the property under the deed of trust, till the amount and priority of the several liens could be ascertained and adjusted; and then to have a disposition of the fraud according to the respective rights of the several claimants. There is, I think, however, a manifest error in the final decree in regard to the costs of the suit, which Niday has a right to have corrected. In any aspect of the case he came properly into court. There were clouds over the title of the property which he had a right to have removed; conflicting claims to the fund, which he has a right to have settled before a sale should take place. Having thus come properly into court, he ought not to have been subjected to payment of costs, but ought, on the contrary, to have had a decree for costs.
The main matter of controversy, which it is of moment now to Niday to have considered, is that which arises out of the cross bill filed by Harvey & Co. in 1842. After applying so much of the proceeds of the trust fund as was applicable thereto to the payment of the bond for 2485 dollars 5 cents, there remains a large balance due upon it; and Wood, who is shown to be wholly insolvent, has left the state. In this state of things Harvey & Co. seek by their cross bill to make Niday personally responsible for his balance. They allege that Niday and Wood were partners, and that the claim of 2485 dollars 5 cents, for which Wood gave his individual bond, was a debt contracted with them by *said Wood arid Niday, as partners. They refer to the proceedings in the original suit of Niday, and to the opinion of the judge expressed in the interlocutory decree of 1839, holding that the bond was taken for a debt contracted by the firm of Wood & Niday, and that the execution of his individual bond by Wood did not operate, in equity, a discharge of his copartner Niday.
Niday in his answer admits that the bond was given in part for debts due by the firm, but alleges that much the larger portion of the consideration on which it was founded was the individual indebtedness of Wood. He states that a dissolution of the firm of Wood & Niday took place in August 1834; and that by the terms of the dissolution Niday' was to give up his certain interest in the partnership property, and Wood, in consideration thereof, agreed to become solely responsible for the debts: That in October 1834, after the dissolution of the firm, Harvey, with a view of securing the debt from Wood, proposed taking a deed of trust upon the said Wood’s property, including the iron works property: That Wood refused to give the deed, unless Harvey would consent to release Niday from the several notes and claims which had been executed in the name of Wood & Niday to Harvey & Co., and would surrender up the said notes, to be canceled: That Harvey thereupon agreed to surrender the said notes, and release Niday from the payment thereof, provided certain individual debts due from Wood to Harvey & Co. were also embraced in a bond to be given by the said Wood, and secured by such deed: That this condition was assented to by Wood, and the bond and deed of trust accordingly executed. He calls upon the plaintiffs to produce their account against the firm of Wood & Niday, and all the evidences of debt which they may have against them, and also to furnish proof of the indebtedness of Wood & Niday to the ^amount of the bond; and he also contends, that as the claim of the plaintiff is founded on simple contract, and more than five years have been permitted to run before the filing of the cross bill, he is now protected by the statute of limitations, which he asks to be permitted to rely on as fully as if it was especially pleaded.
The judge of the Circuit court in his decree has carried out the views of Harvey' & Co., and made Niday personally' responsible for the debt. In this I think he had erred. I think that the execution of the bond and deed of trust, taken in connection with the attendant circumstances and the subsequent conduct and declarations of Harvey, ought to have been regarded by the court as operating an extinguishment of all personal liability on the part of Niday,- as well in equity as at law. It was argued by the counsel of the appellees that this question was adjudicated by the interlocutory decree of 1839 rendered in the original suit; and that as the said decree had never been set aside, the court was bound, when it came to render the decree in the cross suit, to act in conformity with it, and to hold Niday personally responsible for the debt. I do not think so. It is true that the judge in rendering the decree of 1839 did express the opinion, that as it appeared by the testimony in the cause that the debt due to Harvey & Co. was contracted by the firm of Wood & Niday', the settlement of the account, and the execution by Wood of his separate bond and deed of trust, would not operate in equity as a discharge of his copartner. It is also true that Harvey and Mitchell, in their joint answer to Niday’s bill, aver, that by taking the individual bond of Wood, they did not relinquish their recourse against 'Niday, as one of the partners of the firm of Wood & Niday; and that Harvey' in his separate answer says that the firm of Harvey '& Co. never intended, by taking Wood’s bond for the balance due from Wood & Niday, to thereby release Niday, or *lessen their security in any way; and that he is advised that the firm of Harvey & Co. will have a just and legal claim upon the complainant (Ni-day) himself for any balance of their debt not paid by the proceeds of the sale under the deed.
Still, when we look to the object of Niday’s suit, the character of the allegations made in his bill, and the relief sought, it is obvious that no issue was properly made as to the effect of the execution of the bond and deed of trust upon his personal liability for the debt; and that in order to deter*227mine which should be first satisfied out of the proceeds of the trust fund, Niday or Harvey & Co., it was not necessary to decide whether the execution of the bond and deed of trust by Wood extinguished the liability of Niday, or still left him personally responsible for the debt. The expression of any opinion as to the effect of the execution of the bond and deed of trust upon the personal liability of Niday being thus out of the real issue between the parties when the decree of 1839 was rendered, I do not think that the said decree can be relied on as concluding Niday in a proceeding subsequently instituted by Harvey & Co., with a view to obtain a personal decree against him for the debt. The question as to Niday’s continuing liability for the debt, was first fairly presented for decision in the cross suit; and when the original and cross suits came on to be finalty heard together in 1843 it was I think competent for the court, notwithstanding the interlocutory decree of 1839, and without any formal motion for rehearing it, to look fully into the whole case, to refer to all the evidence bearing on Niday’s liability that had been taken in the original suit previous to the rendition of the said interlocutory decree, and also to the deposition of Looney that seems to have been taken a short time thereafter, and to decide the question of Niday’s liability, untrammeled by what was *said by the judge in reference thereto, in rendering the before mentioned interlocutory decree of 1839.
Looking at the case thus presented, it seems to me that Niday should have been regarded as no longer bound, either at law or in equity, for the payment of the debt.
It has been held in some cases that a bond given by one partner for a simple contract debt due from a firm, to the creditor, and accepted by the latter, operates of itself, an extinguishment of the simple contract both at law and in equity; that the giving and acceptance of the bond amounts to a release at law of the other partner, and an extinction of the simple contract debt; and that though equity will interpose its aid when a remedy is wanting at law, the demand continuing, yet it cannot revive a debt which in law is extinguished. The case of Williams v. Hodgson, 2 Har. & John. 474, is one in which this doctrine is fuly maintained.
It may however, I think, be stated as the well settled doctrine of this court, that whilst the mere acceptance of such higher security by a creditor from one member of a firm for a partnership debt due by simple contract, destroys the right of the creditor to proceed at law against the member who was not a party in giving such higher security; yet that a court of equity will look at the orig-inal character of the debt, and will not withhold relief against the member not uniting in the higher security, merely because of the merger and destruction of the legal remedy against him; but will treat that simple contract as a debt still subsisting in foro conscientiaa, unless it is shown that the creditor intended by accepting such higher security to abandon all recourse upon his original demand. In other words, that in a court of law the higher security operates per se a destruction of the simple contract; about that in a court of equity, whether such is-to be the effect of the transaction, is a question to be decided *by proof of the intention of the parties. If by taking such higher security it was not the design of' the parties that the social debt should be wholly extinguished, equity will still hold -all the partners bound. If on the other hand, the higher security is given and accepted as a substitute for the original simple contract of the firm, and with the intention to absolve the firm, all remedy upon the latter is gone in equity as well as at law.
Testing the case by these principles, it seems to me that Nidaj^’s defence to the cross bill is fully sustained. The 'proofs tending to show that in giving and taking the bond and deed of trust, the parties intended that Niday should be ho longer looked to for payment of the debt, are numerous, and when taken all together, are to my mind conclusive:
1st. Niday, though residing in the neighborhood, is not consulted as to the arrangement. The individual bond of Wood is taken, payable twelve months after date, and the deed of trust, which is not to be closed till the end of a year after its date, embraces horses, oxen, wagons, and all the stock of goods then on hand and which might be on hand at the expiration of the time for closing the deed; property which, from its nature, was liable to be wasted and consumed, or greatly deteriorated in value by the use.
2d. It is proved that Harvey placed a high value on the real estate embraced in the deed, and that he desired to purchase it, and also to purchase paper on Wood, declaring that it would be as good to him as cash.
3d. It is proved by Taylor, the trustee in the deed of trust of the 21st August, executed by Wood in part for the security of Niday, that in a conversation held between himself and Harvey just before he obtained the bond and deed of trust of the 4th October 1834, Harvey stated that Wood owed a large debt which he *had then come to see if Wood would make arrangements to secure; and further stated that if Wood would give him a deed of trust on his property he would give him time. That he then informed Harvey of the existence of this deed of trust of the 21st of August, and at his request showed it to him, and that Harvey read it and made remarks upon its contents. That deed, among other things, recited that by the terms of the dissolution Wood was to remain in possession of all the partnership effects, real, personal and mixed, as his oWn property, and was to be responsible to all the creditors of the said Wood & Niday, and also to the said Niday for all the debts due by the firm of Wood & Niday, and also for the private debt due by Wood to Nidajn *228The agreement between Niday and Wood that Wood alone should be responsible for the debts of the firm, could not of course, by itself, affect the right of any creditor of the firm to prosecute his demand against Niday. either at law or in equity. But proof of its existence,'accompanied by full knowledge of its provisions on the part of Harvey, is strong, if not conclusive, to show that Harvey as well as Wood, by the arrangement of the 4th October, designed to release Niday from all further responsibility for the debt.
4th. Niday, in his answer, avers that it was part of the understanding between Wood- and Harvey that the latter should deliver up to be canceled all the notes held by Harvey & Co. upon the firm of Wood & Niday; and he calls for the production of the account and all the evidences of debt held by the plaintiff, against the firm of Wood & Niday. The account is produced, and it appears therefrom and the evidence in relation thereto, that Harvey & Co. did hold several notes on Wood & Niday. These notes are not produced. Does not the failure to produce them and to account for their nonproduction, go far to sustain the statement of Niday, and to show that by the understanding and arrangement ^'between Wood and- Harvey, he was not to be regarded as any longer bound for the debt?
Sth. By the deposition of Booney it is proved that in a conversation with Harvey in December 1835, the latter stated that if he had known that Niday was good he would not have released him from the payment of a debt against him and Wood. The particulars of the conversation, it is true, are not detailed, nor is there anything said referring the statement of Harvey to the particular debt in question. If, therefore, this deposition stood unaided by the other circumstances in the case, it would perhaps be unsafe to attach much importance to it in determining the rights of the parties. No other debt, however, is shown to have been due from Wood & Niday; and it is not shown that Harvey had released Niday from any other liability. Taking the deposition, therefore, in connection with the other proofs in the cause, it cannot be treated otherwise than as evidence of Harvey’s understanding of the effect of the transaction between him and Wood as a release of Niday from the debt secured by the bond and deed of Wood.
Without further .comment on the proofs and circumstances in the cause, it seems to me that they disclose such a dealing with Wood on the part of Harvey; such a trusting to and giving of time to him, without consulting Niday; such a relying on the individual liability of Wood, as shows that his obligation and the means provided for its payment were alone looked to for the satisfaction of the debt: And in declaring that the execution and acceptance of the bond and deed of trust of the 4th October 1834 operated to release Niday, as well in equity as at law, we shall be giving effect to the real intention and understanding of the parties concerned.
It is argued that such a course on the part of this court would conflict with its former decisions; and we *are referred to Williams v. Donaghe’s ex’or, 1 Rand. 300; Sale v. Dishman’s ex’or, 3 Leigh 548; Galt’s ex’or v. Calland’s ex’or, 7 Leigh 594; and Weaver v. Tapscott, 9 Leigh 424. It is true that in each of these cases it was held that the giving by one of the partners of his individual promise or obligation for a debt of his firm, and its acceptance by the creditor, did not, under the circumstances, release the other partner in equity. But in neither of these cases were the circumstances attending the transaction similar to those found in the case under consideration. In the case of Williams v. Donaghe’s ex’or, no higher security was in fact taken. An account due by a firm was closed by the individual note of one of the partners, so that there was no release of the simple contract, either at law or in equity. There was no circumstance to show that the creditor intended, by taking the note, to look along to the individual responsibility of the partner giving it. It was alleged in the bill that the partner who gave the note (which was payable twelve months after date) was about to leave the state, and that the other partner was a nonresident, but a man of wealth and owning large possessions in the state. The court said that the debt did not cease to be the debt of the firm because of the execution of the note; and that the nonresidence of one of the partners gave jurisdiction to the court; and gave relief.
In Sale v. Dishman’s ex’or, a quantity of corn had been delivered by Sale to the firm of Berryman & Dishman, in pursuance of a covenant which had been signed and sealed by Sale, and by Berryman alone, in the name of the firm of Berryman & Dishman; but it appeared that Dishman had advised Berryman to purchase the corn. Dishman died before the debt was paid, and shortly after his death, in a settlement between Sale and Berryman the surviving partner, a balance was found due on account of the corn; for this balance Berryman *gave his bond to Sale, who, however, declared at the time he took it, that he would not give up his recourse against Dishman’s estate. Some four years after the execution of the bond Sale filed his bill, alleging the insolvency of Berryman, and seeking a decree against the executors of Dishman. This court reversed a decree of the chancellor dismissing the bill, and sustained the demand. They held that it was clearly the intention of the parties that the firm should be liable on the original contract; and neither the death of Dishman, nor the taking of the bond of Berryman, absolved the estate of Dishman in a court of equity. As to the effect of the execution of the bond, Judge Tucker said that “the implication that the taking of Berryman’s bond was intended to absolve the partnership, was not only weakened by the fact *229that he was the only surviving partner, but was expressly repelled by Sale’s declaration at the time that he would not give up his resort to Dishman’s estate.”
In Galt’s ex’ors v. Calland’s ex’ors, the bond was executed by Bullock, in the name of the firm of Galt, Bullock & Co. It was given for money loaned to him for the firm, and upon its credit. It was shown that the creditor was regularly credited by the amount on the books of the firm, and that Galt had often inspected the books, seen the credit, and made remarks on the heavy balance. There was not only the absence of any proof to show that Bullock alone was looked to, but the presence of the most convincing circumstances to show that the creditor and the partners of the concern all regarded and recognized the debt as a debt of the firm.
In Weaver v. Tapscott, the bond was given by Trimble, with Tapscott as security for the hire of slaves to be employed as boatmen, for the benefit of the firm of Weaver & Trimble. There was no circumstance in the case from which it could be inferred *that the firm of Weaver & Trimble was discharged, and that the individual responsibility of Trimble was looked to. Judge Tucker said that the bond was the only ground of such inference, and that lost all its force when it was considered that it was most probahjy adopted in conformity with general usage in the hire of slaves, and in compliance with the notions and requisitions of the owner.
There is, I think, nothing in either of these cases which militates at all with the conclusions to which I have arrived in this ; and I think that the Circuit court, instead of rendering a decree in favor of Harvey & Co. in their cross suit against Niday, ought to have dismissed their bill with costs.
It does not seem to me, however, that there is any error apparent on the face of the decree entitling Niday to a bill of review, nor do the facts which he states, with respect to the deposition of Campbell, bring his case within the scope of that relief which is given by a court of equity, on the score of newly discovered matters. I think, therefore, that the decrees of the 3d October 1844, and the 16th September 1847, should be both reversed, and the bill of review dismissed at Niday’s cost.
The other judges concurred.
The following is the decree of the court:
In the original suit, the court is of opinion, that Niday came properly into court to enjoin the sale under the deed of trust of the 4th October 1834, till the cloud over the title of the real estate therein embraced could be cleared up, and the ( priorities of the competing liens on the trust property adjusted and settled; and therefore that it was error in the Circuit court, after having properly entertained his bill for this purpose, and given him relief on that score, to dismiss *the bill at his costs. The decree of the 6th October 1834 is, therefore, for that cause reversed. And this court proceeding, &c. the bill is dismissed at the costs of the appellees, Harvey & Co.
In the cross suit, the court is of opinion that the execution of the bond and deed of trust of the 4th October 1834 by Wood, and the acceptance thereof by Harvey, under the circumstances disclosed in the record, operated to absolve Niday, as well in equity as at law, from all further personal liability on account of the debt of the firm of Wood & Niday, for which the said bond was given. That the Circuit court therefore, instead of rendering a decree against Niday for the balance due on said bond, ought to have dismissed the bill of the appellees with costs. The decree in the cross suit therefore of the 6th October 1843, is reversed. And this court proceeding to render, &c., the bill is dismissed at the costs of the appellees.
The court, however, is also further of opinion that there is no error of law apparent on the face of either of said decrees of the 6th October 1843, which entitled Niday to a bill of review, and that the facts alleged by him in his bill of review and proved, in reference to the deposition of Campbell, do not fall within the scope of that relief which is afforded by the court in cases of the discovery of new matter. And that the Circuit court therefore erred in giving relief to any extent on the bill of review. The decrees of the 3d October 1844 and of the 16th September 1847, are therefore both reversed. And this court proceeding, &c., the bill of review is dismissed at Niday’s cost.
The court is further of opinion that Ni-day is entitled to his costs in this court, and decrees accordingly. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481462/ | MONCURE, J.
I am of opinion that Harper and Weston are entitled to a grant for the 7429 acres, 2 roods and 12 perches of land claimed by them, and am therefore compelled to dissent from the opinion of the court in these cases.
A caveat is substantially and emphatically an equitable proceeding; and these being cross caveats, in which the caveators claim on the ground of “a better right,” the decision of their conflicting claims must depend on the result of a comparison of their respective *equities; unless, indeed, it shall appear that there is no equity on either side; in which case it would be. proper to dismiss both caveats according to the opinion of the court.
If the parties have any equity to compare, all will agree that that of Harper and Weston is superior. They seem to have acted bona fide. They discovered that there was a tract of waste and unappropriated land in the Dismal Swamp, and desired to acquire title thereto in the mode prescribed by law. They did not, and until there was a survey could not, know the quantity of land contained in the tract. ‘ ‘From the nature and situation of the land, lying as it does in an almost impervious swamp, often covered with water,” it was difficult, if not impossible, to make anything like a correct estimate of the quantity. They had two land warrants amounting together to 1110 acres, which they say they supposed would cover it; and accordingly, by virtue of those two-warrants, they made an entry for the said tract on the books of the principal surveyor of Norfolk county, on the 7th of December 1844, minutely setting out in the entry the abuttals of the land. And one of them stated to the surveyor at the time of making the entry, that if there was any land within the boundaries of the entry above the quantity expressed in their warrants, he intended to purchase additional warrants to cover the surplus. The surveyor, or his deputy, proceeded in due time to make the survey; but after making some progress, it was ascertained that the quantity of the tract would greatly exceed that of the two warrants. Before the survey was concluded, and perhaps as soon as it had progressed far enough to enable them to ascertain what amount of additional warrant it would be necessary to purchase to cover the surplus, they purchased two other warrants, amounting to 6400 acres, *243more than enough to cover the surplus, and handed *them to the surveyor for that purpose; who made an entry by virtue thereof on the 11th of September 1845, “for all the unappropriated land contained within the bounds of the entry made by them December 7th, 1844; said entry,” as was stated in the latter entry, “having been surveyed and found to contain more land than their warrants contained at that time.” The survey was finished on the 11th of October 1845, and the plat and certificate thereof were duly returned into the land office, it being stated in the certificate that the survey was made in pursuance of the two entries which were made by virtue of the warrants aforesaid. On this state of facts is founded the claim of Harper and Weston to a patent for the land in controversy.
What are the facts on which the claim of Baugh and Seguine is founded? On the 29th of July 1845, long after the first, and shortly before the last entry of Harper and Weston, Baugh and Seguine made an entry in the books of the same surveyor, by virtue of a warrant for 6000 acres, for all the unappropriated land contained within the same boundaries specified in the first entry of Harper and Weston, stating in the entry that it was intended to comprehend all the vacant land that might be left after Harper and Weston should have surveyed 1110 acres, entered by them December 7th, 1844, within the same boundaries. Before and at the time of making their said entry, Baugh and Seguine knew of the said claim of Harper and Weston, to all the unappropriated land within the said boundaries; and Seguine declared that his object in making the said entry was to retaliate upon the said Harper for some loss to which he supposed Harper had formerly subjected him. On the 7th of August 1845, Baugh and Seguine made another entry in the books of said surveyor, by virtue of a warrant for 1190 acres, for all the unappropriated land contained within *the bounds of their entry of July 29th, 1845, after said entry should be satisfied. A survey was made in pursuance of these two entries of Baugh and Seguine, in the spring of 1846, and the plat and certificate thereof were returned into the land office. When the surveyor was about to commence the survey for Baugh and Seguine, Harper and Weston were requested to select a location for 1110 acres, the quantity of land mentioned in their warrants, upon which they made their entry of December 7th, 1844; but they refused so to do, and claimed the whole land by virtue of their entry and survey. Baugh and Seguine then had 1110 acres of the land laid off for Harper and Weston, and the balance surveyed for themselves under their entries and warrants aforesaid; and they now claim to be entitled to a patent for the said balance.
Such are the conflicting claims involved in these cross caveats; and the bare statement of them is sufficient plainly to show that Harper and Weston have superior equity, and “the better right;” unless it can be made to appear that their first entry was void, and the entries of Baugh .and Seguine valid, or that all the entries are void.
The majority of this court is of opinion that all of them are void, for uncertainty. It must probably be conceded, on the authority of the cases cited in that opinion, that the first entry of Harper and Weston is void for uncertainty; and it follows that the two entries of Baugh and Seguine are void for the same cause. But why is the last entry of Harper and Weston void? There may have been uncertainty as to the precise location of the 1110 acres under the first entry, but there could have been none as to the location of the whole quantity contained in the boundaries under both, the entries. The professed and manifest object of Harper and Weston was not to acquire title to 1110 acres, but to all the land in the prescribed ^boundaries. Their warrants and entries w'ere but machinery used to effect this acquisition. The first entry was, of necessity, conjectural, and intended to be conditional; or, at all events, to be helped out by another entry or other warrants if necessary. If the second entry does not, as it probably cannot, relate back to the first, so as to override intervening conflicting entries, it ought at least to take effect from its date, and draw down the first entry to its assistance,, so as to entitle the parties to a patent or a survey made under both entries. Their first entry, and both of the entries of Baugh and Seguine being void, it was perfectly competent for them, on the 11th of September 1845, to make one entry under all their warrants, which were more than sufficient to cover all the land. If they had done so, all would admit that they would have been entitled to the land. Did they not do so, in substance at least, if not in form also? What more could they have done than they did do? What more can they do than they have done, if now they must run a race with Baugh and Seguine for priority of entry? If after the decision of these cases they shall enter for all the lands under all their warrants before Baugh and Seguine make a similar entry, they will then certainly be entitled to the land. Have they not already done so, in substance at least, if not in form also? Has not every requisition of the law been already complied with, and every, object which the law has in view, been already attained? The law prescribes no form of entry. It requires the party to lodge the warrant with the surveyor of the county in which the land lies, and to direct the location thereof so especially and precisely as that others may be enabled with certainty to locate other warrants on the adjacent residuum. If this was not done by the first conjectural entry, was it not done by the second entry? Did not the second entry locate the whole- land under ‘^all the warrants; and was it not plain after the second entry, that there was no adjacent residuum within the *244prescribed boundaries? Look to the form of the second entry and the reason therein assigned for making it: that is, the first ‘ ‘entry having been surveyed and found to contain more land than their warrants contained at that time.” Showing that the object of Harper and Weston, from the first, was to cover the whole land and have but one survey and patent, however many warrants and entries might be necessary to be used in effecting the object. The survey is then completed, and the plat and certificate, under both the entries and all the warrants, are returned into the land office for a patent. Do they not afford sufficient ground for a patent? Has not the applicant, plainly and irrevocably, appropriated his warrants and applied them to this identical land; and is not the contract between him and the commonwealth complete, remaining only to be finally executed on the part of the commonwealth by the issuing- of the patent? Look to the form prescribed by law for the patent. It issues upon the survey and mentions the consideration money, the date of the survey, and the bounds of the land as therein set out. All the information required for the issuing of the patent is furnished by the plat and certificate; the amount of consideration, the numbers and amounts of the different warrants, the date of the survey, and the bounds and quantity of the land. What then' can the register say against the issuing of the patent; and what better case can be made before him? There was never intended to be more than one entry of this land by Harper arid Weston. Their object, as we have seen, was to acquire the land by one proceeding and title. Their second entry, as it is called, is but a repetition of the first, under the authority of their subsequently acquired as well as their former warrants. There is a unity of object in both *of the entries. They are not conflicting, and it seems to be incongruous to call them two entries. Harper and Weston did not wish to yield the advantage they may have acquired by their prior entry; and it was not necessary for them to do so in order to give validity to the second, as an entry under all the warrants. The first entry, if void at all, was void not because it was not sufficiently specific as to the tract of land which was intended to be thereby acquired, but because_ Harper and Weston had not paid for as much land as was embraced in the tract, and therefore had not then a right to appropriate the whole tract. When, however, they had purchased other warrants sufficient, with those they before had, to cover the whole, and made their second entry, connecting it, as they did, with their former, all ground of objection to their right was removed.’;. .Hull justice had then been done to the commonwealth by paying for all the land in the tract, and full legal notice had then been given to all other persons wishing to acquire the same land, not only of the identity of the tract, but of its having been fully paid for. The second entry, in the form in which it was made, as effectually gave this notice as if the first had been formally withdrawn and the second made as an original independent entry under all the warrants.
These views of the question seem to me to be reasonable, and are opposed to no decision that I have seen, unless it be the case of Young v. Wilson, 1 A. K. Marsh. R. 609, cited in the opinion of th'e majority of the court. If that case were plainly opposed to the views I have expressed, I would not be inclined to follow it, great as is my respect for the court by which it was decided. Nothing short of a ‘ ‘binding authority” would induce me to say, that to entitle Harper and Weston to a patent for the land they claim, it is necessary for them to do over again what they have in effect ^already done, especially when the consequence might be a loss of all the land to them and a corresponding gain to their adversaries. It does not appear from the report of that case, according to my recollection of it, that the two warrants under which the two entries were made, were together sufficient in quantity to cover all the land embraced in the bounds of the entries. Indeed the contrary would rather seem to be inferrible from the facts stated. Nor does it appear, if I remember rightly, that the party intended from the first to acquire title to a specific tract of land, and used his warrants and entries only for the purpose of effecting that intention. He may have intended by his first entry only to acquire title to the number of acres mentioned in his warrant; but finding that some land would be left in the entry after satisfying the warrant, he may then have intended by his second entry to appropriate so much of the residue as his second warrant would cover. He may have contemplated separate surveys and patents. These features, if they exist, as I suppose, in that case, rendered the entries void for uncertainty, according to the cases cited in the opinion of the majority. But none of them exist in these cases, in which, as we have seen, the forms of the entries, and the whole res gestae plainly manifest an intention on the part of Harper and Weston from first to last to acquire title to the identical tract of land in controversy, which their warrants were more than sufficient to cover.
I am therefore for declaring that Harper and Weston are entitled to the land in controversy, and that a patent should be issued-to them therefor, and not to Baugh and Seguine for any part of it. As to the form of the judgment which ought to be rendered by this court in the cases, I might have some difficulty. Perhaps I would have to agree with the rest of the court in dismissing both caveats. Of course I would concur *in the dismission of the caveat of Baugh and Seguine, for we all agree that they show no right, and must go out of court, whether their adversaries have any right or not. As to the necessity or propriety of dismissing the caveat of Harper and Weston, there may be room for *245doubt. The only reason specifically assigned by them for their caveat is their prior entry of December 7, 1844. No reference is made in the caveat to their entry of September 11, 1845. They no doubt supposed that the controversy depended on the relative priority of the conflicting entries. They did not anticipate that any of them would be considered by this court as void for uncertainty, and therefore they did not see the propriety of relying on an entry subsequent to those of their adversaries. The assignment of reasons in their caveat, was in fact however a mere matter of form. The grounds of their claim were well understood by their adversaries, who had previously entered a caveat against the issuing of a grant to them on a survey, plat and certificate which fully set out those grounds. The two caveats were tried by the same jury, who found the same special verdict, mutatis mutandis, in each case. All these entries and all other material facts were found in the verdicts. Judgments on the verdicts were pronounced by the same court at the same time. And the judgments now come up together to be reviewed by us. Substantially they are one case, and involve but one question; and it might be admissible, under the peculiar circumstances, to dispose of them as one case, and to regard everything appearing in one as part of the other also. This however is a question of little importance and only involves a matter of costs. It would perhaps be more correct to regard the cases as separate, and to dismiss the caveat of Harper and Weston also, upon the ground that the reasons assigned therein are insufficient. But whatever may be the proper form of the judgment to *be given by us in the cases, it ought, I think, expressly to declare that Harper and Weston and not Baugh and Seguine are entitled to a patent for the land; and thus to put an end to all controversy on the subject between the parties.
ALLEN, J.
This is a contest for land under adverse claims. The appellees filed their caveat against the issuing of a grant upon an entry and survey made for the appellants; and the appellants thereafter filed their caveat against the issuing of a grant to the appellees. Each caveat is filed upon the ground of better right in the caveators to the land in controversy, and sets out the nature of the right on which the caveators respectively claim the land. The 17th section of the general land law, 1 Rev. Code 325, provides that every person having a land warrant, and being desirous of locating the same on any particular waste and unappropriated lands, shall lodge such warrant with the chief surveyor of the county, &c. ; and he shall direct the location thereof so specially and precisely, as that others may be enabled, with certainty, to locate other warrants on the adjacent residuum ; which location shall bear date the day on which it shall be made, and shall be entered in a book, &c. The 38th section, p. 329, gives the caveat, providing amongst other things, that if any person shall obtain a survey of land to which another hath by law a better right, the person having such better right may enter a caveat to prevent his obtaining a grant, until the title can be determined ; such caveat expressing the nature of the right on which the plaintiff therein claims the said land. In the construction of this statute it has been always held, so far as I can perceive, that the caveator must show a better right to the land in controversy. He cannot recover upon the ground of the weakness of his adversary’s claim; and that in such controversies the validity of the plaintiff’s *title is necessarily the first subject of enquiry. Hunter v. Hall, 1 Call 206; Walton v. Hale, supra 194; Hendricks v. Bell, 1 Bibb’s R. 138; Justices of Allen County v. Allen, 2 A. K. Marsh. R. 31; Whitley v. Shirley, 3 Id. 131. The law required the caveat to express the nature of the right on which the plaintiff claims the land. The object of the caveat is in part to notify the caveatee of the grounds on which the caveator claims the better right, that he may come prepared to controvert it; and it would be a surprise on him to permit the caveator to abandon at the trial the right which he had set forth in his caveat as that under which he claimed, and prove a different right. Such a course would lead to injustice, and is in conflict with the terms of the statute, which requires the nature of the better right to be expressed in the caveat. In the case of the Justices of Allen County v. Allen, 2 A. K. Marsh. R. 31, the court held in the construction of the act regulating proceedings in caveats in that state, which enjoins upon those entering caveats to express therein the cause why a grant should not issue, that the plaintiff can only rely on the points set forth in the caveat as to the cause thereof. The principle of that decision would apply with greater force to the construction of the provision in the act of 1819. The caveator cannot be ignorant of the better right under which he claims, and he is subjected to no hardship in being required to rely a,t the trial upon the right so expressed. But he may be ignorant of all the objections to the claim of the caveatee.
The location, to comply with the law, must be made so especially and precisely, as that others may be enabled, with certainty, to locate other warrants on the adjacent residuum. The entry confers an equitable right to a portion of the public domain; it withdraws it as long as the entry is in force, from other waste and unappropriated land; its calls should therefore be so ^special and precise, as to enable other adventurers, by the use of proper diligence, and the application of those rules of construction established by the courts, to ascertain by a survey and lay off the land so appropriated. The calls of the entry must give notice to subsequent locators, what land has been appropriated. The fact that the locator may be able by proof to identify the land will not suffice, *246if there is nothing in the calls of the entry to point to and set apart some specific tract of land. In McArthur v. Browder, 4 Wheat. R. 488,- it was argued that as the words of the entry were the words introduced into the grant, if they were too vague to appropriate the land when used in the entry, they must- be too vague to appropriate it when used in the grant. In commenting on this argument, Ch. J. Marshall, in delivering the opinion of the court, remarked: “When lands are granted, a description which will identify them is all that is necessary to the validity of the grant. But identity is not all that is necessary to the validity of an entry. The law requires that locations should be made with such certainty that subsequent purchasers may be enabled to locate the adjacent residuum. All grants are founded on surveys: They recite surveys; -and all that is required in ejectment is to prove that the land claimed is that which was surveyed. More is required in a contest respecting an entry". Nothing is more common than for courts to declare an entry void for uncertainty, notwithstanding the clearest proof that the land claimed and that located are the same. ’ ’
Bearing these rules in mind, it remains to enquire whether the caveators in each of the caveats under consideration have that better right, the nature of which has been expressed in the' caveats filed by them respectively. The better right so expressed depends upon the validity of the locations made by them; and in determining that question the entries must be considered *in the order in which they were made. It appears from the facts found by the jury, that the appellants Harper and Weston, on the 7th of December 1844, by virtue of two land warrants belonging to them, one for 920 acres, the other for 190 acres, making together 1110 acres, entered for all the unappropriated land contained within the following boundaries, viz :- Beginning at a blackgum standing near the intersection of two ditches, &c., &c; '(describing the land by metes and bounds), the boundaries being the lines, (with' perhaps one exception), of adjacent tracts' called for, to the beginning; the quantity supposed 1110 acres. It is further found that the appellants claimed the whole of the land within their entry of the 7th December 1844, as waste and unappropriated at the time they made their entry. That there was no evidence showing that the same-or any portion thereof was otherwise than waste and unappropriated at that time, and that the quantity of land within the bounds of the said entry of December 7, 1844, as ascertained by the survey, was 7429 acres, 2 roods and 12 perches; and the certificate of survey is found and made part of the verdict. The first question which arises upon-the facts so found is, whether this entry was sufficiently special and precise to comply with the requisitions of the statute; and if not, how far it is aided by the other facts found by the jury? Any person may acquire-title to so much of the waste and unappropriated land of the commonwealth by paying the price fixed by law. -Upon payment of the price a warrant is granted by the register, specifying the quantity of land, and authorizing a surveyor to lay off and survey the same. This warrant the purchaser is to lodge with the surveyor when he locates it; and the surveyor, after making his survey, is to deliver to his employer a fair and true plat and certificate of survey, expressing, among other things, the quantity contained, and *also the nature of the warrant and rights on which such survey was made. The locators, when they made their entry of the 7th December 1844, were the owners of warrants amounting to 1110 acres; that quantity of land they had purchased and were entitled to withdraw from the public domain. By their entry they located and described a body of land containing within the boundaries specified 7429 acres, 2 roods and 12 poles. It is manifest that the surveyor would not have been authorized to survey for them that quantity of land under the warrants lodged with him. If the fact appeared on the plat and certificate of survey, it would show upon its face a want of authority in the surveyor to make it. If not authorized to survey the whole, how could he survey a part so as to satisfy the calls of the entry? Each call is entitled to the same consideration. There is nothing to confine the locator to one in preference to the others. A subsequent locator could not, by the use of any diligence, be enabled with certainty to locate other warrants on the adjacent residuum. The law conferred no authority on him- to require the first locator to designate which of the calls of his entry he would abandon or adhere to. The consequence would be that any adventurer, though the purchaser of but 100 acres from the commonwealth, could by making his entry by specific boundaries, and including a much larger quantity therein, withdraw the excess from the public domain for an indefinite period, and until it suited his convenience to acquire land warrants sufficient to cover all.
The validity of such an entry has been the subject of judicial decision in numerous cases in Kentucky, where, as Judge Tucker remarked in Hardman v. Boardman, 4 Leigh 386, we can trace back the interpretation of this law almost to the time when it began first to be put into operation. The first case on this point which I find, is the case of Bush v. Jameson, 3 *Bibb’s R. 118. It seems to be the leading case on this question, and so far as I have been able to trace it, has been recognized and followed in all the subsequent cases in the Kentucky Reports involving the same proposition. The entrj- there called to begin at a beginning corner of another survey, to be bounded by three lines described in the entry, and to include all the vacant lands in the boundaries described for quantity. The court, after some remarks on the want of certainty in the description, says: “Another objection occurs *247to the entry which we are clearly of opinion is fatal. The two traces and the line of the survey called for, compose a triangle of nearly equal sides, in which is contained more than three times the quantity called for in the entry. That no one could lawfully appropriate more than the quantity to which he was entitled, is a position too clear to admit of controversy; otherwise the absurd consequence would follow, that upon a warrant of 1000 acres or less the whole vacant land of the county might have been appropriated. ’ ’ It had been urged that the line of the survey, the first line called for in the entry, should be taken as the base, and the survey extended so far along the two traces as would include the quantity. This was decided to be inadmissible, “as by the terms of the entry all the vacant land in the boundaries mentioned was included in the location; that there was no reason for preferring the line of the survey, first called for in the entry, to the other sides of the triangle. From necessity one line of a survey must be made before another ; and there was nothing to indicate any intention in the locator to prefer the line first called for as a base, to the other lines. That the case differed materially from the case of an entry which gives a definite base, and calls for an indefinite extension of the lines from the base, so far as will include the quantity of vacant land. In the latter case, the lines extending *from the base being indefinite as to their extent, may be limited by construction ; but in the case then before the court, all the lines of the triangle being equally definite, no one of them more than another can be controlled by construction.”
In Marshall v. Russell, 1 A. K. Marsh. R. 271, the boundaries called for contained about double the quantity of land to which the entry was entitled. The court refer to Bush v. Jameson, and hold that in conformity with that decision the entry could not be sustained, though a surplus of a few acres ought not to vitiate the whole entry. That if the whole of the boundaries were described by sensible objects, so that there could be no reason for one to yield to or control the other, the entry could only be good for so much as would be covered in common by surveys of the proper quantity made upon each of the boundaries. But if the boundaries were so extensive that surveys might be made on different parts of the boundaries without covering any land in common, the entry would be good for none. See also Young v. Wilson, 1 A. K. Marsh. R. 609; State v. McDowel, 2 A. K. Marsh. R. 184; Helm & Reed v. Crawford, 3 A. K. Marsh. R. 570.
In the entry under consideration specific boundaries are called for, and the locator designed to appropriate all the land included therein. Every call is entitled to equal consideration. An inspection of the plat and certificate of survey shows that the boundaries were so extensive that surveys of the quantity called for might be made on different parts of the boundaries without covering any of the land in common. The entry could be sustained at any one of the several places called for in the absence of the others; and the calls make the whole too uncertain to attach itself to any particular. For all or arty of these causes, the cases referred to show that the entry is bad for uncertainty.
*The decisions of the courts of Kentucky upon the construction of the land law of May 1779, from which the provisions of the act of 1819 on this subject are derived,'have always been regarded with the highest respect by this court and the Supreme court of the United States, though not entitled to the weight of authority. Upon the point presented by the entry of the appellants of the 7th December 1844, the construction put upon the law seems to me to be the only one it will bear, and should be followed. That entry tested by the principles established by all the cases referred to, must be regarded as being void for uncertainty. If the entry does not comply with the law and is void for uncertainty, I do not perceive how it can be aided by any other facts found by the jury.
In their caveat the appellants claim to have the better right to the whole of the land embraced in the entries of the caveatees, that the land embraced in the entries of the caveatees was not waste and unappropriated, because the appellants had made an entry on the 7th of December 1844, embracing all the lands subsequently entered by the caveatees. The nature of the right on which the appellants claimed the land is expressed to be their entry of the 7th of December 1844; and that failing them, nothing remains upon which their caveat can rest. But if we could look beyond the nature of the right expressed in their caveat, there is nothing, as it seems to me, which could affect the judgment of the court upon the caveat filed by them.
It is found that one of the appellants at the time he made his entry with the principal surveyor, on the 7th of December 1844, stated to him, that if the boundaries contained more land than the quantity expressed in their warrants, he intended to purchase additional warrants to cover the whole. That the appellants never waived their title to any portion of the land contained *within the boundaries of their entry of the 7th December 1844, but frequently and publicly spoke of the land as being valuable, and of their claim to the whole; and that the appellees before their entry, knew of the claim of the appellants to all the unappropriated lands within said boundaries; and that one of the appellees declared that his object in making the entry of the appellees was to retaliate on one of the appellants for some loss he supposed said appellant had subjected him to.
These matters are, as it seems to me, beside the controversy, and have no bearing upon the rights of the parties. The field for acquiring a right to the waste land of the commonwealth, is open to all; a declaration of an intention to purchase a warrant *248is of no avail, he must be the holder of the warrant before he can take any step to acquire any portion of unappropriated land. When he enters, he does so at his own hazard. It is a race of diligence between the different adventurers. Notice of an intention to enter, or of an entry which is void on its face, cannot affect the conscience of the subsequent locator. Neither the intention to enter nor the void entry can confer any right, and he must show a better right. Nor can the motives which may have operated ón the adverse claimant have any influence upon a question like this, upon the trial of a caveat; a remedy not devised to investigate questions of fraud, nor appropriate for such enquiries; but mainly intended where the better right is the point in question, and the land has not been previously granted, to enquire which party, if either, has so proceeded under the land law, as to entitle himself to a patent. Questions of fraud in fact,, whereby one party got the legal advantage to the prejudice of another’s equitable right, could be more properly determined in another mode of proceeding, in which a direct issue could be raised.
*But it is argued that other facts were found by the jury which will in some way aid the defective entry of the appellants. It is found that the appellees, caveatees in the cross caveat filed by the appellants, made two entries embracing the land in controversy, one dated the 29th of July 1845, and the other the 7th of August 1845, and that the appellants having ascertained that the boundaries called for in.their entry of the 7th December 1844, included so large an excess over the quantity their warrant authorized them to locate, after the entries of the appellees, viz: on the 8th of September 1845, purchased more land warrants, and on the 11th of September 1845, made an entry in pursuance of these warrants in these words: ‘ ‘September 11th, 1845, Samuel Weston and John Harper this day enter by virtue,” &c. (reciting the two warrants of the 8th September,) ‘‘for all the unappropriated land contained within the bounds of the entry made by them December 7th, 1844, said entry having been surveyed ánd found to contain more land than their warrants contained at that time.
This does not purport to be an amended entry. It is a new, separate and distinct entry, which if valid, could have been surveyed and carried into grant, although the first entry had been withdrawn or abandoned. It was not the intention of the appellants to interfere with or withdraw their first entry, and then re-enter ’ under all their warrants. This would have been abandoning-the priority which they supposed their first entry gave them, .and have let in the entries of the appellees. Even if it had been designed as an amended entry, and so appeared on its face, it could only retain its original character, so far as it was unchanged by the amendment, and so far as it was changed, it would be a new entry, so that at last supposing the entries of the appellees to have been valid, this subsequent, entry treating it as an amendment, *could not have availed in this contest; for as to all, except the quantity expressed in the warrants recited in the first entry, it was a new entry subsequent to the entries of the caveatees and appellees.
But the entry itself, treating it as it was manifestly designed, as a distinct entry, made in virtue of the warrants therein recited, and having no other connection with the first, except so far as it calls for the objects named in the first, is liable to the same objection for uncertainty. It calls for all the unappropriated land within the bounds of the'first entry. The first entry is shown not to have appropriated any particular part; and until it could be fixed upon some particular part of the land included in the bounds called for, no one could point out the surplus to be covered by the second entry. The first entry might be invalid, or be withdrawn or abandoned; and in that event, the second would be equally uncertain with the first; there being a large surplus within the boundaries, and nothing to show what particular portion was covered by the entry.
The question arising on this point has, like the first, been decided by the courts of Kentucky. In the case of Young v. Wilson, 1 A. K. Marsh. R. 610, the boundaries described in the first entry contained nearly double the quantity of the entry. The second called to include the surplus land within the boundaries described in the first entry. The court say: ‘‘The first entry could not appropriate the whole of the land thus described; and as it pretends to appropriate no one part in preference to any other, it is manifestly void for uncertainty, according to the principles settled in Bush v. Jameson. The second entry, considered as a separate and distinct one, for the quantity therein mentioned, is upon the same principles, equally uncertain and void. But it is contended that the two entries should be taken together as one entry, for the *whole quantity mentioned in both, having effect from the date of the second entry. To thus consolidate the 'two entries, would be confounding things which are separate and distinct, and doing that for the locator which he has not thought proper to do for himself. For the second entry only purports to be a location of the quantity of 330 'acres, and does not profess to modify in any manner the first entry, but leaves it as was originally made.” I have given the words of the court, as' the case in all its material circumstances, is precisely like the present; and as it seems to me, disposes of the questions in conformity with the clear requisitions of the law. I think the appellants have failed to establish either the right expressed in the caveat, or to show by the facts found, any better right in themselves to the land in controversy, or any part of it.
And as it regards the appellees, the caveators in the first caveat, the authorities *249referred to are equally decisive against the validity of their entries. They caveat on the ground of the better right, and the nature of their right as expressed, is a claim by virtue of two entries. The first dated the 29th July 1845, for 6000 acres for all the unappropriated land contained within the following boundaries: “Beginning, (describing the boundaries called for in the entry of the appellants of the 7th December 1844,) quantity supposed 6000 acres. The above entry is intended to comprehend all the vacant land that may be left in the above named boundaries after Harper and Weston shall have surveyed 1110 acres entered by them December 7, 1844, within the same boundaries.” This entry is liable to the same comments as the second entry of the appellants. Its locality depends upon the locality of the entry of the appellants; and like it is too uncertain until identity can be given to the first. The entry under consideration cannot be said to appropriate any one part in preference *to the other. The second entry of the appellees was intended to cover a surplus remaining after satisfj’ing the entry of the appellants of the 7th December 1844, and the first entry of the appellees, and is still more uncertain than their first; for locality cannot be given to it until locality is given to the two preceding entries, as it is made dependent on both. I think therefore that all the entries, as well of the appellants as of the appellees referred to and found by the jury in each case, were invalid and void for uncertainty; and that a judgment should have been entered, (both causes having been heard together,) declaring that the entries as well on the part of the caveators as the caveatees in the original and cross caveat were void for uncertainty; and dismissing each caveat with costs to the caveatees.
DANIEL, LEE and SAMUELS, Js., concurred in the opinion of Allen, J.
Judgments reversed: And both caveats dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481464/ | *ALLEN and DANIEL, Js.,
dissented on the last question considered
by Judge Bee, for the reasons stated in the opinion ‘ of Judge Allen in the preceding case of Phaup &c. v. Stratton. They concurred on the other questions.
Judgment affirmed.
BILLS, NOTES, AND CHECKS.
I. Definitions.
II. Requisites and Validity.
1.. Form.
2. Negotiability.
3. Capacity and Authority; of Parties.
a. Agents.
b. Partners.
c. Alien Enemies.
4. The Consideration.
a. Presumption of Consideration.
b. Legality and Sufficiency.
c. Failure of Consideration.
5. What Law Governs the Validity.
III. Acceptance of Bill of Exchange.
IV. Transfer.
1. By Indorsement.
2. By Assignment.
3. By Delivery.
V. Rights of Holder.
1. What Constitutes Holder in Due Course.
a. Value.
b. Bona Fides.
2. Right of Holder in Due Course.
3. Paper Transferred, Overdue.
4. Presumptions in Holder’s Favor.
5. Effect of Fraud or Duress.
6. Effect-of Usury.
7. Effect of Alteration.
VI. Diligénce Required of Holder.'
1. Of Negotiable Paper.
a. Presentment' for’ Acceptance.’
b. ’ Presentment for Payment
(1) . Necessity Of Presentment.
(2) Mode of Presentment.'
(3) ‘ Time of Presentment!
(4) Place of Presentment:
c. Protest. '
(1) Necessity of Protest.
(2) Time of Making Protest.
(3) ’ Protest as Evidence.
d. 'Notice’of’Dishonor.
CO ’Necessity of Notice.
(2) Mode of Giving'Noti'ce.
(a) Where Parties Reside in Samé Town.
(b> Where Parties Ré'si’de iñ Différ ent Towns.
(3) What Amounts to Sufficient Sérvice by Mail.
(4) Time of Giving Notice.
(5) Place of Giving Notice.
"e. Excuses for Want of' Presentment, Protest, ’ and Notice.
2. Of Nonnegotiable’ Paper.'
VII: Liabilities of Parties.
1! The Maker.-
2. The Drawer of a Check.
3.. Indorsqrs.
4. Irregular Indorsers.
5: Assignors.
6. Transferrer without Indorsement.
'7. Accommodation Parties.
VIII. Discharge and,Payment.
1. By Execution of a New Note.
2. To Whom Payment May Be Made.
3. In What Currency Payment May Be Made.
4. Effect of Payment by Particular Parties.
5. Tender of Payment.
6. Discharge of Parties.
7. /Equities Arising upon Payment by Parties Secondarily Liable,
a. Contribution.
’b. Subrogation.
IX. Actions.
1. Who May Bring Action.
2. Against Whom-Action May Be Brought.
3. The Declaration.
4. The Pleas.
5. ’Set-Off.
*2836. Evidence.
a. Admissibility.
b. Weight of Evidence.
c. Competency of Witnesses.
7. The Judgment.
8. Relief in Equity.
Cross References to Monographic Notes.
Action of Debt, appended to Davis v. Meade, 13 Gratt. 118.
Agencies, appended to Silliman v. Fredericksburg, etc., R. Co., 27 Gratt. 119.
Assignments, appended to Ragsdale v. Hagy, 9 Gratt. 409.
Banks and Banking, appended to Bank v. Marshall, 25 Gratt. 378.
Bonds, appended to Ward v. Churn, 18 Gratt. 801.
Interest, appended to Fred v. Dixon, 27 Gratt. 541.
Usury, appended to Coffman v. Bruffy, 26 Gratt. 698.
Í. DEFINITIONS.
Bill of Exchange. — A bill of exchange may be defined as an open letter of request, addressed by one person to another, desiring him to pay a certain sum of money to a third person mentioned therein, or to his order, or it may be made payable to bearer. Fitzhugh v. Love, 6 Call 5; Dunlop v. Harris, 5 Call 28.
Promissory Note. — Promissory notes are instruments . purporting an absolute promise, by the maker, to pay to a person therein named, or his order, a sum of money therein named. Dunlop v. Harris, 5 Call 28.
Check. — A check .is an .inland bill ¡of exchange drawn on a bank or other house of deposit. Purcell v. Allemong, 22 Gratt. 739.
II. REQUISITES AND VALIDITY.
1. FORM.
Must Be Absolute and Certain. — A bill of exchange or promissory note, müst be for money certain in amount, and payable absolutely and at all events. But it is not essential either to the character of a bill of exchange or of a promissory note that it should be negotiable. Averett v. Booker, 15 Gratt. 163.
So an order drawn on a particular fund or debt, and for the whole thereof, is not a bill of exchange because not payable absolutely, its payment being subject to the contingency that the fund shall remain in existence; Such an order only operates as equitable assignment of the fund on which it is drawn. First Nat. Bank v. Kimberlands, 16 W. Va. 555; Jolliffe v. Higgins, 6 Munf. 3; Riffe v. Gerow, 29 W. Va. 462, 2 S. E. Rep. 104; Shinn v. Board of Education, 39 W. Va. 497, 20 S. E. Rep. 604.
And an order drawn by a legatee under a will upon the executors, for value received, directing them to pay to the order of the drawee a specific sum, the amount of the legacy, out of the funds in their hands, destined by the testator for the payment thereof, Is an equitable assignment of the legacy and not a bill of exchange. Anderson v. De Soer, 6 Gratt. 363.
Order to Pay Out of a Certain Fund. — An order to payout of a specified fund, or an order to pay the payee a certain amount on account of work and labor done by the drawer for the drawee, is not a bill of exchange. Pitman v. Breckenridge, 3 Gratt. 127; Bank of Wellsburg v. Kimberlands, 16 W. Va. 555; Averett v. Booker, 15 Gratt. 163.
And an order to “pay four hundred dollars out of funds that'may be dhe me as per onr contract” is not absolute, but conditional; and the acceptor’s liability thereon is dependent on the contingency that the amount shall be due to drawer according to the terms of the contract between the drawer and drawee. Riffe v. Gerow, 29 W. Va. 463, 2 S. E. Rep. 104.
And the following instrument does not constitute a bill.of exchange, nor import a valuable consideration, and no promise is raised thereby, in favor of the-payee against the drawer, from the failure of the drawer to accept or to pay: “Lynchburg, Dec. 8, 1852, $1,080.59. The trustee of Norvell and Averett will pay to William T. Booker the sum of one thousand and eighty dollars and fifty-nine cents, with interest from the first of March, 1850, out of any moneys in his hands belonging to me. William B. Averett.” Averett v. Booker, 15 Gratt. 163.
Agreements for Attorney’s Fees. — But an agreement-in a note to pay attorney’s fees for collection does not destroy,its negotiability but such stipulation is a - penalty, and not enforcible. Rixey v. Pearre, 89 Va.. 113, 10 S. E. Rep. 498. But where no objection is made to such penalty in the trial court, an -objection in the appellate court comes too late. Ronald v. Bk. of Princeton, 90 Va. 813, 20 S. E. Rep. 780.
Must Not -Be under Seal, — A single bill under seal is not a note, but a specialty; and,, therefore, the drawers and indorsers .of ,such single bill, though It be made payable and. negotiable at a bank in the state, cannot be sued-jointly in debtor in assumpsit. Mann v. Sutton, 4 Rand. 253; Laidley v. Bright, 17 W. Va. 779. But where an instrument has scrolls attached opposite the signatures which are intended as substitutes for seals, this is not sufficient to make them sealed instruments, unless the seals are recognized in the body of the instrument, and they still reta-in their original character and may be declared on as simple bills or notes. Peasley v. Boatwright, 2 Leigh 195; Jenkins v. Hurt, 2 Rand. 446; Cromwell v. Tate, 7 Leigh 301; Clegg v. LemessUrier, 15 Gratt. 108.
2. NEGOTIABILITY.
Negotiability of Paper Payable at a Particular Bank —Statute,—By the Code of 1860, ch. 144, §7, it was provided, that, “every promissory note, or check fon money, payable in this state at a particular bank, or at a particular -office thereof for discount and deposit, or at the place of business of a savings institution or a savings bank shall be deemed negotiable.” Under this statute a note made by residents of Alexandria and indorsed by the president of-the Bank of the Old Dominion where it was discounted, was held negotiable although it did not appear upon its face that it was payable in the state of Virginia, as it was competent to show this by extrinsic evidence. McVeigh v. The Bank of the Old Dominion, 26 Gratt. 785.
Payable at Either of Two Banks. — So in Freeman’s Bank v. Ruckman, 16 Gratt. 126, a note which was payable at either of two banks in this state was held not negotiable under this statute because it did not appear from its face to- be payable at a “particular bank in this state.”
Name of Bank Written in after Negotiation. — But under this statute a note which on its face was not negotiable because not payable at a particular bank, but which had a blank space left for the insertion of the bank, was held to be negotiable, where it was shown that the parties intended it to be negotiable and thought that they were executing negotiable paper, and there was a usage shown to leave notes *284blank as to the bank at which they were payable, and for the holder to fill such blank. Woodward v. Gunn, Va. Law J., 1878, p. 243, 1 Va. Dec. 293.
Later Statute — Bank Must Appear from Paper. — But the revisors of the Code of 1887, with full knowledge of the construction placed upon this statute by the court, altered the language so as to read, “Every promissory note which on its face is payable in this state at a particular bank,” etc. Under this statute a note dated “Harrisonburg, Va.,” and payable at the “First National Bank of Harrisonburg,” was held not to be negotiable, because it did not show on its face that the bank at which it was payable was in this state. Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593.
Bank Out of Existence. — Under this statute an indorsement of an overdue note payable at a bank which had ceasedto exist more than five years before the indorsement was made, was held to be merely an assignment of common-law paper and such indorsement was not to be governed by the rules of the law merchant. In this case it was held that the "assignee of the paper was bound to exercise due diligence in suing the maker and obtaining judgment and execution against him, as a condition precedent to his recourse against the indorser, unless the maker was notoriously insolvent. Broun v. Hull, 33 Gratt. 23.
Bank Must Be an Incorporated Institution. — And under this statute, which is the law of West Virginia as well as of Virginia, it has been held that the bank at which the paper is payable must be an incorporated institution in order for the paper to be negotiable. Bank v. Hysell, 22 W. Va. 142.
Negotiable Instruments Law. — Under the negotiable instruments law which is now in force in Virginia, any paper which contains words of negotiability is negotiable if it possesses the other requisites of negotiable paper, such as certainty, etc. § 1, Negotiable Instruments Law.
Paper Payable at a Bank Out of Virginia — Statute.— Under act of March 22, 1837, a note for a sum certain, payable to- order, and negotiable and payable at a bank out of the state of Virginia, is a note negotiable at a bank in Virginia, and therefore is placed on the same footing as foreign bills of exchange, with the like remedy for recovery thereof against the maker and indorsers jointly, and with the like effect, except as to damages. Hays v. Northwestern Bank of Virginia, 9 Gratt. 127.
3. CAPACITY AND AUTHORITY OF PARTIES.
a. Agents.
The General Rules of Agency Are Applicable. — The principles which ordinarily govern the authority of agents are applicable to agents to draw or indorse bills of exchange, promissory notes and checks. The principal is bound by the acts of the agents within the authority which he has actually given them, which not only includes the precise act which he expressly authorized them to do, but also whatever usually belongs to the doing of it, or is necessary to its performance. Beyond this, he is*bound by the acts of the agent within the apparent authority which the .principal himself knowingly permits the agent to assume or which he holds the agent out to the public as possessing. Hooe v. Oxley, 1 Wash. 19; Mann v. King, 6 Munf. 428; Hopkins v. Blane, 1 Call 361; Smith v. Lawson, 18 W. Va. 212; Richmond, etc., R. Co. v. Snead, 19 Gratt. 354.
Acts within the Apparent Scope of Authority. — Thus a power of attorney in due form, authorized the party “to draw checks, indorse notes, and generally to do all and every act and deed, towards the execution of the donor’s business at a certain bank.” This power was deposited in the bank to be inspected, when called for, by any person interested in matters relating thereto. The donor was held bound to make good to a bona fide purchaser for a valuable consideration, an indorsement of a note negotiable at the said bank, which the party made in his name as attorney; notwithstanding the real object of the power, verbally declared at the time of its execution, was to authorize the attorney to renew certain accommodation papers then in the bank, and not to endorse any other paper. Mann v. King, 6 Munf. 428.
Excess of Authority. — But where an agent is authorized to draw bills of exchange only for certain specified purposes, this is a special agency, and if the agent exceeds his authority and gives bills of exchange for purposes not specified in his authority, they do not bind the principal. Hopkins v. Blane, 1 Call 361.
And a party who deals with an agent, with knowledge or means of knowledge that he is exceeding his authority by indorsing the name of his principal for his own benefit, is not entitled to recover from the principal. Stainback v. Bank, 11 Gratt. 269.
Effect of a General Power of Attorney. — A general power of attorney to draw, indorse, and accept bills, and to make and indorse notes does not authorize the attorney to draw a bill in the joint names of himself and principal. And such a power does not authorize the attorney to draw a bill in the name of his principal upon a person having no funds of the principal in his hands, and if such bill is accepted and paid by the drawee for the accommodation of the drawee, there is no implied obligation of the principal to repay him. Stainback v. Read, 11 Gratt. 281.
And in the absence of anything to show a different intention, a power of attorney'to draw, indorse or accept bills; and to make and indorse notes, negotiable at a particular bank in the name of the principal, must be construed as giving authority to act only in the separate individual business of the principal; and an indorsement of a bill by the agent for his own benefit in the name of his principal does not bind the principal. Stainback v. Bank, 11 Gratt. 269.
Authority to Execute a Joint Note No Authority to Execute an Individual Note. — Where several persons united in a power to authorize another to indorse their names upon a bill drawn in favor of one of them, it was held that the power given did not warrant several and successive indorsements, but only a joint indorsement of and for them all, so that they should be jointly bound as indorsers to the holder, and equally and jointly bound among themselves. Bank of U. S. v. Beirne, 1 Gratt. 234, 42 Am. Dec. 551.
How the Agent Should .Sign. — Where a negotiable instrument is made by an agent for his principal, the agent, in order to exempt himself from liability must not only ñamé his principal, but he must express by some form of words that the writing is the act of the principal, though done by the hands of the agent. A mere description of the general relation which the person signing the paper owes to another, without indicating that the particular signature was made in the execution of the agency, is not sufficient to charge the principal or to exempt the agent from personal liability. Exchange Bank *285v. Lewis County, 28 W. Va. 273. Thus, the mere addition of the word “president” to the signature of the president of the corporation on negotiable paper does not bind the corporation. Scott v. Baker, 3 W. Va. 285; Rand v. Hale, 3 W. Va. 495.
And a note signed “J. B., Agent for Lewis county” is not the note of Lewis county, but the individual note of the agent. Exchange Bank v. Lewis County, 28 W. Va. 273.
President of a Bank. — A president of a bank has no inherent authority to indorse or transfer negotiable paper belonging to the bank, but such authority may be implied by his habit, known to the directors, of doing acts of the same general character. Smith v. Lawson, 18 W. Va. 212.
Implied Authority of a Bank Cashier. — The cashier of a bank has yrima facie authority by virtue of his office to transfer negotiable promissory notes belonging to the bank in the transaction of the nsual business of the bank, and his transfer of such a note to a party, who receives it in good faith, confers a valid title to the note on the transferee. Smith v. Lawson, 18 W. Va. 212.
Transfer by Cashier for Improper Purpose. — But the cashier's prima fade authority to transfer the negotiable notes of a bank will not make such transfer valid, if it be proven that the transferee knew that the transfer was made by the cashier not in the usual course of business and for an improper purpose. Smith v. Lawson, 18 W. Va. 212.
Authority of Cashier Restricted by Charter. — And so where the management of the affairs of a banking corporation is entrusted by its charter to aboard of directors, unless specially authorized by the charter, the cashier of such banking corporation has no power to assign the discounted bills and notes to a depositor in payment of his deposits without authority from the board of directors. Lamb v. Cecil, 25 W. Va. 288.
Implied Authority of Treasurer of a Corporation.— The treasurer of a corporation has as an incident of his office the authority to draw checks unless such authority is taken away or restrained. But the power to bind the corporation by indorsing negotiable notes is not inherent in the treasurer, and he that takes such notes by indorsement from an officer of the corporation does so at his peril. Davis v. Rockingham, etc.. Co., 89 Va. 290, 15 S. E. Rep. 547.
President of Railroad Company. — The authority of a president of a railroad company to make contracts for necessary labor for the company is incident to his office, and he may furnish evidence of the amount payable under the contract, either before or after the performance of the service, and put that evidence in the form of a due bill or promissory note, in his discretion, unless his authority is restricted by special legislation, or by regulations of the company known to the other contracting party. Richmond, etc., R. Co. v. Snead, 19 Gratt. 354.
Bills by Railroad President in Unusual Form.— And the fact that the president of a railroad company usually gave notes of the company on printed forms, and signed them as president, was held not sufficient to prevent a recovery against the company upon a due bill, not upon a printed form, and not signed as president, but was a mere circumstance to be weighed by the jury in determining whether or not the consideration passed to the company so as to make them liable. Richmond, etc., R. Co. v. Snead, 19 Gratt. 354.
Parol Evidence to Show Benefits Received by Principal. — "Where the president of a railroad company signed in his own name a bill for “labpr performed on cottage lot of railroad company,” parol evidence was held admissible to ascertain whether the work was performed for the president or for the company. Richmond, etc.., R. Co. v. Snead, 39 Gratt. 354.
Note by Agent of Confederate States. — A note given by an agent of the late confederate government, and binding himself for the price of cattle purchased for the support of the armies of .such government and for the purpose of aiding and carrying on the war against the United States is a valid contract, and may be enforced against the obligor, after the end of the war. Ruckman v. Lightner, 24 Gratt. 19.
Agent for Negotiation — Scope of Authority. — The delivery of an incomplete negotiable note by the maker to a third person to be negotiated does not constitute the latter the agent of the former to make alterations, in parts of the note already complete, which are necessary to give effect to the note for the purpose for which it was intended. Hoffman v. Planters’ Nat. Bk. (Va. 1901), 7 Va. Law Reg. 570.
Parol Testimony Inadmissible to Show Agency.— Where there was nothing on the face of anote to indicate that it was made by a party acting as agent, parol evidence was held inadmissible to show that the maker made the note in payment for cattle for the confederate government for which he was agent. Ruckman v. Lightner, 24 Gratt. 19.
Express Ratification. — if one promises to pay a note, to which his name has been signed by one assuming, without authority, to act as his agent, it is an adoption of the act of the agent, and in law, is equivalent to an antecedent authority to execute the note. Devendorf v. W. Va., etc., Co., 17 W. Va. 135.
But an express ratification of an insolated act beyond the authority of agent, is not sufficient to charge the principal for like acts in the future. Thus a letter authorized the addressee and another to use the name of the sender as indorser. With this letter in his possession the addressee indorsed the name of the sender upon his bills in such manner that it did not appear by the paper to have been done by an agent. Some of these bills were protested, and afterwards the donor of the power by an indorsement on the letter, said ; “The above is my signature and letter, the legal liabilities of which I hereby acknowledge.” The addressee again indorsed the name of the donor of the power of other bills in the same manner. The donor of the power was held not liable upon these indorsements. Union Bank of Maryland v. Beirne, 1 Gratt. 226.
Implied Ratification of Power. — And where in consequence of a notorious agency, the agent is in the habit of drawing bills, which the principal has regularly paid, this is such an affirmation of his power to draw, that the principal will be bound to pay other bills drawn by the agent, though the agent makes a misapplication of the money raised by such bills. Hooe v. Oxley, 1 Wash. 19, 1 Am. Dec. 425.
While the courts should generally refuse to allow a recovery against one person on a negotiable instrument made by another, on proof that the latter was acting as his agent, yet a person may make the signature of another his own by using or allowing it to be used as such in the course of his business, and he will and should, under such circumstances when clearly proved, be as much bound as if his own name was affixed to the bill or other negotiable instrument in question. But the court in applying this principle should be careful to limit its application to the class of cases to which it properly belongs, and not so apply it as to ignore other *286well-established principles applicable to negotiable instruments. Devendorf v. W. Va., etc., Co., 17 W. Va. 135.
b. Partners.
Firm Paper Given for Partner’s Private Transaction. —Where a third party takes from a partner his signature of his firm upon his own private individual transaction he cannot hold the firm without proof of authority, adoption, or ratification of the act. And the taker of the note under such circumstances must prove the assent of the other partners, for prima facie such a transaction is a fraud, both on the part of the debtor and the creditor. Tompkins v. Woodyard, 5 W. Va. 216.
Power of Partners to Make an Indorsement for Accommodation. — The power of partners to bind one another by commercial paper does not extend to indorsements or other contracts for the accommodation of a third person. Hence, the rule is well settled that when one member of a partnership becomes an accommodation maker or indorser, for the benefit of a third person, in the name of the firm, without the assent, express or implied, or the subsequent ratification of his copartners, such paper cannot be enforced against them or the firm by the holder who takes with knowledge of its accommodation character. Tompkins v. Woodyard, 5 W. Va. 216.
Renewal of Note after Retirement of Some Members of Firm. — Where a partnership note is given, and renewed after the dissolution of the partnership by the remaining partner in the old firm name, such renewal does not bind the retiring partner, neither does its acceptance, discharge the preexisting debt; not being valid as to the retiring partner, the consideration fails, and the old debt remains. The renewal of the note in the firm name is strong evidence that the promisee did not intend to release the other partner and hold, the partner’ who’ executed it liable alone. Parker v. Cousins, 2 Gratt. 372; Miller v. Miller, 8 W. Va. 542.
Thus, in Miller v. Miller, 8 W. Va. 542, a note was made by a firm and indorsed at a bank for the firm’s accommodation by a party who did not know all of the members composing the firm. After the execution of this, note one of the members of the firm withdrew, the indorser not being notified of his withdrawal. The note was'renewed at the request of the firm and the indorser again went on the note. Upon the maturity of the note and the failure of the firm to pay it, it was retired by the indorser. In an action by this indorser against the firm, the members of the firm, including the party who had withdrawn prior to the renewal of the note, were held liable to the indorser for the money paid by him upon his indorsement.
Sealed Obligation by One Partner Held a Note in Equity. — A partner, instead of executing a promissory note for a sum of money lent the firm, executed by mistake a penal obligation, in the name of the firm, under seal. Upon a suit in equity upon the instrument, it was held that although at law there was no remedy on the sealed obligation, except against the partner who executed it, yet equity had jurisdiction to correct the mistake, and hold all the partners as much bound as if there was no seal and it was an ordinary promissory note. Galt v. Calland, 7 Leigh 594.
Notes between Partners in Settlement of Partnership flatters. — The execution of a negotiable note by one member of the partnership to the other, for the balance found due to him upon,a settlement of the partnership accounts, is conclusive upon such partner as to the correctness of such settlement in the absence of accident, mistake or fraud in making such settlement. Mahnke v. Neale, 23 W. Va. 58. See post, “Evidence.”
c. Alien Enemies. — War operates as an interdiction of all commercial and other pacific Intercourse and communication with the public enemy ; and every species of private con tract made with subjects of the enemy during the war is unlawful. The late rebellion was war, and citizens on opposite sides were alien enemies, and their relations under the constitution were suspended and superseded for the time.by new relations under the laws of war. A check drawn by a citizen of one belligerent upon a, citizen of the other during this war was unlawful and void. Billgerry v. Branch, 19 Gratt. 393; McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
And a note made in June 1861, by a person resident within the confederate lines,' and discounted by a bank located within the Union lines, was illegal and void; unless it was given in renewal of a note made before the war, and by an agent acting under authority conferred before the war- McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
4. THE CONSIDERATION.
a. Presumption oe Consideration.
Possession Prima Facie Imports Consideration. — In an action upon a bill of exchange or a promissory note, the party may recover without averring or proving that- any valuable consideration has been received for it. Such a bill is presumed to stand on valuable consideration, and prima facie imports it. Averett v. Booker, 15 Gratt. 163.
The possession of a bill or a note is prima facie evidence of ownership, and also that the holder received it upon - a valuable consideratiou paid therefor in the usual course of trade. As a general rule, therefore, even where there is a failure of consideration or other equitable defence as between the defendant and the drawee or the payee of the bill or note or his immediate indorser, he cannot call upon the plaintiff to prove when or upon what consideration the bill or note upon which the suit is brought was transferred to him, or how it came into his hands. Bank of Spencer v. Simmons, 43 W. Va. 79, 27 S. E. Rep. 299; Ford v. McClung, 5 W. Va. 156; Averett v. Booker, 15 Gratt. 163; Peasley v. Boatwright, 2 Leigh 195; Snead v. Coleman, 7 Gratt. 300; Crawford v. Daigh, 2 Va. Cas. 521.
Checks — Presumption of Consideration. — The drawing and delivery of a check imply the indebtedness of the drawer to the payee to the amount of the check, and in an action upon a check it is not necessary to aver in the declaration any further consideration. McClain v. Lowther, 35 W. Va. 297, 13 S. E. Rep. 1003.
When Proof of Consideration Is Required. — It is never necessary to aver consideration for any engagement on a bill or note, or to prove the existence of such consideration, unless a presumption against it be raised by the evidence of the adverse party, or unless 'it appear that injustice will be done to the defendant, or that the law will be violated if the plaintiff recover. Bank of Spencer v. Simmons, 43 W. Va. 79, 27 S. E. Rep. 299.
“For Value Received.” — The words, “for value received,” in a note, prima facie establishes a valuable consideration, where it becomes necessary to prove such consideration. Williamson v. Cline, 40 W. Va. 194, 20 S. E. Rep. 917.
*287b. Legality and Sufficiency.
Note Given in Compromise of Bastardy Proceedings. —A note given to a woman in compromise of a bastardy proceeding is binding and valid, and on sufficient consideration, and the payment thereof cannot be avoided on the ground that the compromise of such proceeding is contrary to public policy, or against public morals. Nor can the innocence of the putative father be set up as a defence against the recovery of such note, in the absence of fraud on the part of the obligee in procurement thereof. Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. Rep. 812.
Notes Payable in Confederate Honey. — A note made payable in confederate money was illegal and void and no payment of it could be enforced. Nor does it matter that it was made within the military lines of the late so called Confederacy, as a question of illegality is to be tested not by the pretended authority of the late insurrectionists, but by the laws of the lawful government of the country. Where the parties to a contract to be paid in confederate money, are in pari delicto, a court of equity will equally withhold its aid from the guilty party who would invoke it to get rid of such illegal contract executed. Brown v. Wylie, 2 W. Va. 502; Calfee v. Burgess, 3 W. Va. 274. But notes given in renewal o C notes which were given for confederate money, were held valid in McLaughlin v. Beard, 5 W. Va. 538.
Notes Given for Hire of Slaves. — During the year 1861, slavery was recognized as existing both by the United States and Missouri, and slaves owed no allegiance to either. There could be no demand for their services by the United States or the state, which could occasion a failure of the consideration of notes, made in the state of Missouri, and given for the hire of slaves. Booker v. Kirkpatrick. 26 Gratt. 145.
Usurious Considerations. — Every subsequent security given for a loan originally usurious, however remote or often removed, is void. Coffman v. Miller, 26 Gratt. 701; Drake v. Chandler, 18 Gratt. 909. But a new note made by a different person is purged of usury, unless the transaction was merely intended as an evasion of the usury statute. Coffman v. Miller, 26 Gratt. 701; Keckley v. The Union Bank, 79 Va. 464.
Usurious Notes Sold through a Broker to Innocent Purchasers. — But where the maker of a negotiable note payable to his own order, indorsed it and sold it through a third person at a greater rate of interest than that allowed by law, the transaction was held not usurious, where the purchaser did not know the character of the note or that it was sold for the benefit of the maker. Bailey v. Hill, 77 Va. 492; Taylor v. Bruce, Gilmer 42; Whitworth v. Adams, 5 Rand. 333; Brummel v. Enders, 18 Gratt. 873.
Forbearance — Recovery of Usurious Consideration.— A sale at a greater discount than the legal interest, of negotiable notes made and indorsed in blank for the purpose of raising money, by a broker for the maker to a purchaser ignorant of that purpose is not usurious. But payment of illegal interest after maturity of notes for forbearance is usury, and the usurious premium may be recovered back. Moseley v. Brown, 76 Va. 419.
Double Charges of Interest in Renewals. — Where it is agreed to renew a note every sixty days for the same amount upon paying the discount, and upon the renewals interest for every sixty-fourth day is charged twice, the notes are not usurious. Parker v. Cousins. 2 Gratt. 372.
Fraudulent and Voluntary Transfers Void as to Creditors. — Negotiable paper, like any other property, may be the subject of fraudulent transfer, as the law merchant cannot protect a transaction mala Jides from the operation of statutory law. Hence, the transfer of an overdue negotiable note with the fraudulent intent to delay, hinder, or defraud the maker of such note out of a just set-off, is void as to such set-off, unless made to a bona fide purchaser of value, without notice of such intent. Davis v. Noll, 38 W. Va. 66, 17 S. E. Rep. 791.
And every gift, assignment, or transfer of a negotiable instrument, on consideration not deemed valuable in law, is void as to existing creditors in the hands of such donee, assignee, or transferee, but not in the hands of a bona fide holder for value. Davis v. Noll, 38 W. Va. 66, 17 S. E. Rep. 791. See monographic note on “Fraudulent and Voluntary Conveyances'’ appended to Cochran v. Paris, 11 Gratt. 348.
Inadequacy of Consideration Must Be Gross to In= validate the Instrument — Where the parties are competent to contract, relief will not be decreed on the ground of inadequacy of consideration, unless the inequality be so gross as to shock the conscience, and of itself to amount to proof of fraud. Jones v. Degge, 84 Va. 685. 5 S. E. Rep. 799; Matthews v. Crockett, 82 Va. 394.
So in a suit to enjoin the defendant from disposing of certain notes executed to him by the plaintiff, and to set aside a sale evidenced by the notes, a contention by the plaintiff that the contract of sale was unconscionable is of no force when it appears that the property will yield from 12 to 22 per cent, on the investment. Loftus v. Maloney, 89 Va. 576. 16 S. E. Rep. 749.
Payment of Interest Is Sufficient for an Extension.— Payment of interest in advance, though at a usurious rate, is sufficient consideration for an agreement to extend the time of payment. Glenn v. Morgan, 23 W. Va. 467.
Want of Consideration in Original Note No Objection to One Given in Renewal. — A party who gives a renewal note after discovering that the representations which led him to sign the first were false, cannot plead want of consideration of the first as a defence to the second. Keckley v. Bank, 79 Va. 458.
Forbearance to Sue. — Forbearance to sue is valuable consideration, and if a creditor take from his debtor and surety a note giving further time for payment, this is a valid consideration to bind the surety. Williamson v. Cline, 40 W. Va. 194, 20 S. E. Rep. 917.
c. Failure of Consideration. — Failure in the consideration does not affect the validity of a negotiable note in the hands of a bona fide holder for value. But the maker, upon paying the holder the amount of the instrument may recover it from the payee if the consideration between them has failed. Wilson v. Lazier, 11 Gratt. 477. For a full discussion of consideration, see monographic note on “Consideration.”
5. WHAT LAW GOVERNS THE VALIDITY.
General Rule. — The general rule is that all instruments made and executed in a country, take effect and are to be construed, as to their nature, operation and extent, according to the laws of the country where they are made and executed. But where the contract is either expressly or tacitly to be performed in any other place than where the same was made and executed, the general rule is in conformity to the presumed intention of the parties, that the contract as to its validity, nature, obligation and. *288interpretation is to be governed by the law of the place of performance. Hefflebower v. Detrick, 27 W. Va. 16.
Thus, a paper signed in blank was sent to Maryland to be there filled up. It was filled up there, and at the same time, and place was indorsed by the payee to the holders, for value; the note being in fact for the accommodation of the payee. This was held a Maryland contract and to be governed by the Maryland law, though the note was headed from a town in Virginia. Fant v. Miller, 17 Gratt. 47.
Place of Performance. — A note made in Massachusetts and payable at either of the banking houses in Wheeling, Va., is to be governed by the law of Virginia. Freeman’s Bank v. Ruckman, 16 Gratt. 126.
No Place of Performance Named. — Where no place of performance is named in an instrument it is presumed that it is payable where made, and that law will govern. Wilson v. Lazier, 11 Gratt. 477; Heffiebower v. Detrick, 27 W. Va. 16.
Law Existing at the Time of Making Contract Gov« erned. — The rights and obligations of the parties to negotiable paper are governed by the law as it was when the contract was made, and not by the law as it was when the contract becomes payable. The ordinance of the Virginia convention on the 24th of June 1861, dispensed with demand, protest and notice upon all checks, bills and notes payable at a bank located in any city or town if at the time of maturity of such instruments, the town or city was occupied or invested by the public enemies. By an act of the legislature passed on the 10th of May 1862, this ordinance was amended so as to require notice of the dishonor of the bill or note to be given within ten days after the removal of the obstruction created by the presence of the enemies. A note was made and indorsed on the 11th of December 1861, payable at a bank in Fredericksburg in six months. When it fell due the town of Fredericksburg was in possession of the United States forces, but they left in a few months; but no notice of nonpayment was given at any time to the indorsers. The rights and obligations of the parties, were held to be governed by the ordinance which was in operation when the note was made and indorsed; and notice of nonpayment was not necessary to bind the indorsers. Duerson v. Alsop, 27 Gratt. 229.
Making and Indorsing Each Governed by Lex Loci Contractus. — Making a note and indorsing or assigning it are distinct contracts, each governed by the law of the place of the contract. Nichols v. Porter, 2 W. Va. 13.
Presumption as to Law of Foreign State. — In an action by an indorsee against the drawer of a bill of exchange, it was found.by special verdict, that the bill was drawn in Maryland on a person in Virginia, and no law of Maryland was found, declaring such a bill an inland bill. It was held that the court could not take judicial notice of any law of Maryland to that effect, unless it be expressly found ; and such bill being a foreign bill of exchange, according to the general law merchant, it would be so regarded. Brown v. Ferguson, 4 Leigh 37.
Lex Fori Governs Questions of Evidence. — The law of the state where an action is brought determines what is evidence of presentment and dishonor of promissory notes and inland bills of exchange. Corbin v. Planters’ Bank, 87 Va. 661, 13 S. E. Rep. 98.
So where the law of a state where a note is made, declares that it shall be void unless it is stamped, it is void everywhere and an action cannot be maintained upon it in another state. But if in such case the law only declares that the note shall not be available as evidence, an action may be maintained .upon it in another state. Fant v. Miller, 17 Gratt. 47.
Presumption as to Place of Performance —In Hefflebower v. Detrick, 27 W. Va. 16, it was held, that a promissory note purporting on its face to be made at a place within that state and not specifying any place of payment, would in the absence of proof be presumed to have been made and to be payable within that state.
III. ACCEPTANCE OF BILL OF EXCHANGE.
Definition — Acceptance Is the act by which the drawee of a bill of exchange signifies his undertaking to pay,the bill. Bigelow on Bills, Notes, and Checks 36; Christian v. Keen, 80 Va. 369.
Nature and Effect. — An acceptance is an engagement to pay the bill according to the terms of the acceptance. The effect of the acceptance is to give credit to the bill, and to render the acceptor liable as the maker of a note ; it implies an acknowledgment that he has effects of the drawer in his hands, and the circumstance that there were no effects in the hands of the acceptor is of.no consequence, for by making himself a party to the instrument he has contributed to its currency and that perhaps was one reason, on which the holder parted with his money. Bennett v. Maule, Gilmer 305.
Acceptance Is Conclusive as to Signature of Drawer. —It is a well-established rule of commercial law, that the drawee of a bill of exchange is presumed to know the handwriting of the drawer, and if he accepts or pays the bill, although the drawer’s name has been forged, he is bound by the act and cannot recover back the money so paid. Johnston v. Com. Bank, 27 W. Va. 343.
Right of Acceptor to Charge Bill to Drawer before Payment. — Acceptance of a bill does not entitle the acceptor to charge it in account against the drawer from the date of the acceptance, unless he pays the whole money at the time, or discharges the drawer from all responsibility. Braxton v. Willing, 4 Call 288.
When Acceptor May Sue Drawer on His Acceptance. —And the acceptor of a bill of exchange does not become entitled to sue the drawer of the bill upon acceptance. When he has paid the bill, and not be.fore, he may recover back the amount from the drawer in an. action for money had and received. Christian v. Keen, 80 Va. 369; Braxton v. Willing, 4 Call 288.
Acceptance on Faith of Funds. — Where a bill of exchange is drawn on one, who accepts it on the faith of funds of the drawer in his hands, he acquires an equitable interest in those funds, and is entitled to set-off his liability on the acceptances, against his obligation to pay those funds, and to retain them pro tanto for his indemnity. Lambert v. Jones, 2 P. & H. 144.
Where the Consideration for Acceptance Fails. — The general acceptance of an order binds the acceptor, in favor of a payee who took the note bona fide and for a valuable consideration, notwithstanding the consideration, which induced the acceptance, after-wards fails, without any fault on the part, of the payee. Corbin v. Southgate, 3 H. & M. 319.
Effect of a Promise to Accept. — Where the drawee of a bill of exchange promises to accept a bill of exchange drawn on him, this promise to accept is not binding unless supported by a valuable considera*289tion, or unless some party has taken the hill on the faith of his promise to accept. Brown v. Ferguson, 4 Leigh 37.
Action against Acceptor.— Formerly an action of debt would not lie against the acceptor of a bill of exchange. Wilson v. Crowdhill, 2 Munf. 302; Smith v. Segar, 3 H. & M. 394. But under the Virginia statute (1 Rev. Code, ch. 125, § 4), an action of debts lies by the payee against the acceptor. Hollingsworth v. Milton. 8 Leigh 50.
IV. TRANSFER.
1. BY INDORSEMENT.
Definition of Indorsement. — Indorsement is a term known in law, which by the custom of merchants, transfers the property to the indorsee. Fitzhugh v. Love, 6 Call 5.
Necessity of Indorsement.™Bills payable to bearer may be transferred by the delivery, but to transfer those payable to order it is necessary, in addition to delivery, that there should be something by which the payee may appear to express his order. This additional circumstance is an indorsement. Fitzhugh v. Love. 6 Call 5.
Effect of Indorsement. — The effect of indorsing the payee’s name upon a negotiable instrument is perfectly understood in the commercial world. It is in the nature of a warranty that the maker will pay the note upon presentment at maturity, and if not so paid, he, the indorser, will upon due and reasonable notice of the dishonor of the note, pay the same to the holder. The term “indorsed,” when applied to bills of exchange and other negotiable instruments, imports a transfer for the legal value. But with respect to bonds and other securities not negotiable, the equitable title passes by assignment only. Welsh v. Ebersole, 75 Va. 651.
Indorsement in Full. — An indorsement in full is one which mentions the name of the person in whose favor it is made, and to whom or to whose order the sum is to be paid. For instance, “Pay to B or order,” signed “A,” is an indorsement in full by A, the payee or holder of the paper, to B. An indorsement in full prevents the bill or note from being indorsed by any one but the indorsee, and none but the special indorsee or his representative can sue upon it. Spence v. Robinson, 35 W. Va. 313, 13 S. E. Rep. 1004.
Effect of a Blank Indorsement. — A. blank indorsement is in legal effect a direction to the maker or drawee to pay the amount of the instrument to bearer, and therefore renders the paper transferable by delivery, without further indorsement. It also carries the right to any holder to insert his own name above the blank indorsement, and thus make the paper payable to himself. This will, however, release all subsequent indorsers. 1 Daniel, Neg. Instr. 694, 694a; Rees v. Conococheague Bank, 5 Rand. 329; Orrick v. Colston, 7 Gratt. 189; Frank v. Lilienfeld, 33 Gratt. 377, 385; Ritchie v. Moore, 5 Munf. 388; Jordan v. Neilson, 2 Wash. 164.
But a blank indorsement upon á note, does not per se transfer a title, but is an authority for the holder, either to hold it as the agent of the indorser, or to claim it as his own by assignment, at his election. without any further act to be done by the assignor. The blank indorsement is conclusive proof of the assent of the indorser to transfer the note to the holder, if he elects to lake it as a transfer. The assent and election of the holder to treat the indorsement as a transfer, was held to be as well proved by suing upon it in his own name, as if he had written over it an assignment to himself, as it is the assent of both parties to the transfer, which perfects it, and not the form in which the assent is evidenced. Rees v. Conococheague Bank, 5 Rand. 326.
Modes of Filling Blank Indorsements. — A paper signed in blank, and indorsed in blank, may be filled up either as a common promissory note or a negotiable note; and the person who indorsed it in blank will be liable on his indorsement to a holder for value. If the paper is filled up as a common promissory note to a third person, who advances the money to the maker, he may treat the indorser as an original security of the note. If after the note is filled up and delivered to the payee, the holder fills up the indorsement without a guaranty, he may afterwards erase it, and proceed against the indorser as original security. Orrick v. Colston, 7 Gratt. 189.
Blank Indorsement May Be Filled during Trial. — And the plaintiff’s attorney may fill up a blank indorsement and make it payable to the plaintiff during the trial of a cause. Hooe v. Wilson, 5 Call 61.
What Is Equivalent to Blank Indorsement. — An indorsement by one of two payees of a negotiable note to the other by which the indorser “assigns and transfers all right, title and interest” in the note to such other is equivalent to a blank indorsement of the note, and carries with it the consequences of an indorsement without restriction or limitation, and cannot be varied or contradicted by evidence of any contemporaneous parol agreement between the parties. Citizens’ National Bank v. Walton, 96 Va. 435, 31 S. E. Rep. 890.
Right to Strike Out Indorsements.— The holder of a bill of exchange, with indorsement in blank, may strike out the indorsement subsequent to the first, and may write over the first indorsement an assignment to himself, or the bill, without such assignment, will be considered the property of the holder, he having the power to make it. Ritchie v. Moore, 5 Munf. 388, 7 Am. Dec. 688.
But where there were two indorsers to a promissory note, the last indorsee struck out the second indorsement, and filled up the first to himself. It was held, that he could, not charge the first indorser upon an execution against the maker returned “no effects” because there was no privity between them. Hooe v. Wilson, 5 Call 61.
lndorsement“WitboutRecourse.”-in Ober v. Goodridge, 27 Gratt. 878, a number of negotiable notes were transferred “without recourse.” It was held, looking to all the circumstances of the case, that the words were to be construed in their literal sense; and that the transferrer was not liable for the failure to recover from the indorser. If the transferee intended that the words should be used in this instance in their restricted and limited sense, he should have been careful to express his meaning, or have it expressed in plain and unmistakable terms.
Restrictive Indorsement. —Where the payee of a bill of exchange indorses it “Pay to A or his order only” such indorsement restricts the negotiability of the instrument, and the drawer may prove that no consideration was paid for the instrument when sued upon it. Power v. Finnie, 4 Call 411.
Indorsement Enlarging Liability of Indorsers. — in Nat. Bank v. McElfresh, etc., Co. (W. Va.. 1900), 37 S. E. Rep. 541, the payees in a negotiable note made the following indorsement on the back of it: “For value received we hereby guaranty the payment of the *290within, note at maturity, waiving demand, notice of nonpayment, and.protest,” which was followed by their signatures. It was held, that this operated as a transfer of the note, and as an indorsement thereof with enlarged liability.
Indorsement after Maturity. — The indorsement of negotiable notes, though 'made * after maturity, passes the legal title without notice to the maker. But in case of transfers of choses - in action not negotiable, only the equitable title passes, and the maker may make payments to the payee or obligee until he has notice of the transfer. Davis v. Miller, 14 Gratt. 1; Smith v. Lawson, 18 W. Va. 212.
Effect of Indorsement after Haturity. — When a note is indorsed after it becomes due it is considered as a note newly drawn by the person so indorsing it. Broun v. Hull, 33 Gratt. 29.
Indorsement of Overdue Paper Does Not Relate Back. —The indorsement of an overdue note does not relate back to the date of a note ; but is a new and independent contract only taking effect-from the time it is made, and must be determined by the laws and circumstances then existing. Broun v. Hull, 33 Gratt. 23.
Necessity of Delivery to-Complete the Transfers. — It is an elementary principle that delivery is essential to perfect the transfer of a promissory note. Until delivered to the payee it has no vitality; and not only must there be a delivery, but there must be an acceptance by the payee. Wright v. Smith, 81 Va. 777; Howe v. Ould, 28 Gratt. 1; Rowan v. Chenoweth (W. Va. 1900), 38 S. E. Rep. 544; Grasswitt v. Connally, 27 Gratt. 19.
Constructive Delivery Is Sufficient. — Delivery of a promissory note is essential to its efficacy, and if not delivered in the lifetime of the maker, it cannot be delivered after his death. But delivery may be constructive as well as actual, and where it is clear that the maker of a note intended it to be a finished note and binding on him, without further act on his part, it will so operate, though not actually delivered in his lifetime. Rowan v. Chenoweth (W. Va. 1900), 38 S. E. Rep. 544; Howe v. Ould, 28 Gratt. 1.
What Amounts to Constructive Delivery. — Thus, the payee of a note indorsed it in blank and deposited it with a bank as collateral security for a loan, and afterwards sold the same for value and gave an order on the bank therefor to the purchaser, who presented the order to the bank and was informed that the president was absent from town. Some days later the purchaser had an interview with the president at the bank, and was told by him' that the loan for which the note was pledged was nearly paid, and that he would deliver the note to the purchaser but for the service of attachment upon the bank. The loan was after-wards paid in full. Before the sale of the note an attachment had been served upon the maker at the suit of a creditor of the payee, but the purchaser had no notice thereof at the time of the purchase. After the sale and notice to the bank by him, an attachment was served on the bank by another creditor of the payee. It was held, that these circumstances amounted to indorsement- and constructive delivery to the purchaser, and that he was entitled to the note as against the attaching creditor. Howe v. Ould, 28 Gratt. 1.
Evidence to Show Want of Delivery. — And to establish the fact that there was no delivery of a note sued on, or delivery thereof for a special purpose only, parol evidence is admissible. When such evidence in connection .with written evidence shows for the purpose for which the note was delivered has failed, there is no liability on the maker. Solenberger v. Gilbert, 86 Va. 778, 11 S. E. Rep. 789; Ronald v. Bank of Princeton, 90 Va. 813, 20 S. E. Rep. 780.
2. BY ASSIGNMENT.
Assignment Defined. — Assignment, as to bonds or notes, implies more than indorsement. It means, indorsement by one party, with intent to assign, and an acceptance of that assignment by the other party. Bank v. Pindall, 2 Rand. 465.
No Form of Words Necessary to Constitute an Assignment. — No particular form is necessary to constitute an equitable assignment of a debt or chose in action. An order for value appropriating the fund is sufficient, No action can be maintained against the drawee without his acceptance. Notice to the debtor is essential to perfect the title. Until such notice, the assignee is liable to all equities between the debtor and assignor. Switzer v. Noffsinger, 82 Va. 518.
Assignment of Note Carries Security, — Where a note is secured by a deed of trust or mortgage, the assignment of the note carries with it the benefit of the security, unless excluded expressly or by fair and reasonable implication. Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 878; Briggs v. Enslow, 44 W. Va. 499, 29 S. E. Rep. 1008.
What Is Sufficient Averment of Assignment. — The declaration in an action upon a note averred that the payee of the note indorsed and delivered it to the plaintiff; the note not being negotiable but assignable. This was held as sufficient averment of its assignment. Freeman’s Bank v. Ruckman, 16 Gratt. 126.
Law Governing the Assignment. — The declaration averred that the note sued on was made in Boston, and on the same day and year was indorsed and delivered to the plaintiff, a bank corporation under the laws of Massachusetts. Upon a demurrer the court considered the assignment made in Massachusetts, where it might legally have been made. Freeman’s Bank v. Ruckman, 16 Gratt. 126.
Assignment Written on Back of Attorney’s Receipt. —In Clarke v. Hogeman, 13 W. Va. 718, a note was placed in tbe hands of an attorney for collection. The party entitled to the note wrote the assignment .of “the within claim” on the back of the attorney’s receipt. This was held a valid assignment of the note.
Note Secured by Deed of Trust — What Amounts to Assignment. — The payee of a note which was secured by a deed of trust, directed the trustee to sell the property, and pay the proceeds to a third party. This was held to be a good equitable assignment of the note to such third party. Lambert v. Jones, 2 P. & H. 144.
Injunction to Assignment. — The grantee of land who had been defrauded by his grantor charged in a bill in equity that his grantor had transferred his negotiable notes given for the purchase price of the land to a third person without consideration, and prayed the court to enjoin such third party from transferring the notes to a bona fide holder. The court enjoined such third person for assigning the notes and ordered the same cancelled to protect the grantee. Dickenson v. Bankers’ Loan, etc., Co., 93 Va. 498, 25 S. E. Rep. 548.
Bill of Exchange flay Be Transferred after Protest.— A bill of exchange does not lose its negotiable character by being protested; but after protest such bill may be assigned or transferred without- assignment. Richie v. Moore, 5 Munf. 388.
*291Principles Which Govern Assignments of Bills and Notes. — The principles which govern the transfer by assignment of bills and notes which are not negotiable, are the same which govern the assignment of ordinary choses in action.' The assignment is controlled in all cases by the rules of the common law, and the assignee acquires no better title to the instrument than that possessed by his assignor. Davis v. Miller, 14 Gratt. 1; Clarke v. Hogeman, 13 W. Va. 718. For a full discussion of this subject, see monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
3. BY DELIVERY. — An instrument which is payable to bearer, or which has been indorsed in blank, may be transferred without any formal indorsement or assignment. The title to such instrument passes by the delivery of the instrument and no other act is necessary to give the holder title to the instrument. Howe v. Ould, 28 Gratt. 1; Myers v. Friend, 1 Rand. 12; Branch v. Commissioners, 80 Va. 427.
V. RIGHTS OF HOLDER.
1. WHAT CONSTITUTES HOLDER IN DUE COURSE.
a. Value.
Necessity for a Valuable Consideration. — In order to constitute one a holder for value in the due course of trade, he must have taken the instrument upon a valuable consideration. Smith v. Lawson, 18 W. Va. 212; Davis v. Miller, 14 Gratt. 1.
Transferred as Collateral or in Payment of PreExisting Debt. — The best-considered as well as the most numerous authorities regard the creditor, who received the bill or note of a third party from his debtor either in payment of, or as collateral security for his debt, as entitled to the full protection of a bona fide holder for value, free from all equities which might have been pleaded between the original parties. Devendorf v. W. Va., etc., Co., 17 W. Va. 135; Hotchkiss v. Fitzgerald, etc., Co., 41 W. Va. 357, 23 S. E. Rep. 576; Shepherd v. Anderson, 2 P. & H. 203.
Collateral for a Valid Pre-Existing Debt. — Where a negotiable instrument is transferred as collateral to secure a valid pre-existing debt, by being properly indorsed and delivered, or by delivery only when indorsed in blank or made payable to bearer, so that the transferee becomes a party to the instrument, and he takes the same before maturity, in good faith and without notice of equities, he thereby becomes, without more, a holder for value in the usual course of "business. Hotchkiss v. Fitzgerald, etc., Co., 41 W. Va. 357, 23 S. E. Rep. 576.
But the holder of a negotiable note, which has been transferred to him, as collateral security for a debt, by a person who could not have recovered against the maker in an action on,the note, cannot recover in an action of debt on the note against the maker, more than the amount of the debt for which the note was taken as security. Shepherd v. Anderson, 2 P. & H. 203.
Pre-Existing Debt Prima Facie a Valuable Consider-alien. — a valid pre-existing debt is prima facie a valuable consideration for the transfer before maturity of a negotiable note in the hands of a bona fide holder for value, without notice of latent equities between the maker and first indorser, although such note be held merely as collateral security for the payment of such debt. Mercantile Bank v. Boggs (W. Va. 1900), 37 S. E. Rep. 587,
Same — Under Negotiable Instruments Law. — A preexisting debt constitutes value for a transfer of negotiable paper. If the transfer be made merely as collateral, the transferee is a holder for value to the extent of the amount due him. §§ 25 and 27 of the Negotiable Instruments Law; Payne v. Zell, 98 Va. 294, 36 S. E. Rep. 379.
Conflict of Laws — Cases Distinguished. — These cases may appear to be in conflict with Prentice v. Zane, 2 Gratt. 262, and Union Trust Co. v. McClellan, 40 W. Va. 405, 21 S. E. Rep. 1025, but upon examination of. these cases it will be found that in each case the instrument in question was subject to the laws pf the state of Pennsylvania, and the court applied the Pennsylvania law regardless of the fact that the law of the forum was otherwise. See Hotchkiss v. Fitzgerald, etc., Co., 41 W. Va. 359, 23 S. E. Rep. 576.
Transfer in Consideration of Paying Debts of the Indorser. — Negotiable notes made for the accommoT dation of the payee were indorsed by him to that holders in consideration of money previously advanced by them to him, of money advanced to him at the time of the transfer, and of notes of the payee. falling due at a future day, which they undertook to pay, and did pay as they became due; all of whieft amounted to the full amount of the notes soindorsed to them. The holders were held to be holders for; value. Fant v. Miller, 17 Gratt. 47.
Instrument Pledged as Collateral — Right to Sue Pledgor. — Where notes of third parties are given as collateral security for the payment oi the maker’s note, the holder has the right to proceed to recover upon the collateral securities notwithstanding the note of the maker. Nothing short of its satisfaction would prevent a recovery by the creditors. Lazier v. Nevin. 3 W. Va. 622.
Instruments Pledged as Collateral - Right of Pledgee to Sell. — Where a note or accepted order of a third person, is transferred and delivered to a creditor as? collateral security for a debt, the debtor may sue upon the chose in action at law, and if necessary, sue in the name of the legal owner. Unless a power, to,sell is superadded to the agreement, whereby such chose in action is pledged as a collateral security, the creditor has no right to sell such chose in action and he cannot come into a court of equity to ask a sale thereof. Whitteker v. Charleston, etc., Co., 36 W. Va. 717.
b. Bona Files.
Meaning of “Bona Fide Holder.” — The term “bona fide holder” means a holder who has acquired the instrument without notice of equities. Absence of knowledge or notice of equities is the essential thing inthe matter of bona fides, and where a party is not chargeable with either knowledge or notice of eqnir ties affecting an instrument of which he is the holder, he is a "'bona fide holder.” Smith v. Lawson, 18 W. Va. 212; Roberts v. Tavenner (W. Va. 1900), 37 S. E. Rep. 576; Frank v. Lilienfeld, 33 Gratt. 377; Cussen v. Brandt, 97 Va. 1, 32 S. E. Rep. 791.
Nothing Short of Mala Fides Will Invalidate the Holder’s Title. — The law is well settled, that to invali: date the title of the holder of a negotiable instrument (not absolutely void by statute law), indorsed in blank, and acquired for value, in due course of trade and before maturity, it is not sufficient to show circumstances in the acquisition of the note affecting such holder with suspicion merely, or that he was guilty of ordinary negligence, or even gross negligence, but it is necessary to show that he was guilty of mala fides. Frank v. Lilienfeld, 33 Gratt. 377; Smith v. Lawson, 18 W. Va. 212.
Evidence to Show Mala Fides. — Gross negligence in the receipt of a note may be evidence of mala fides,
*292and as such may he received in evidence, but it does not of itself show mate Mes, and the holder cannot be deprived of his right to recover, unless he acquire the note mala fide. Smith v. Lawson, 18 W. Va. 212.
“Notice” Used in This Connection Heads Knowledge. —In order to stand upon a better footing than his transferrer, the holder must acquire the instrument without notice of fraud, defect of title, illegality of consideration, or other fact which impeaches its validity in his transferrer’s hands; and the word “notice” in this connection signifies the same as knowledge. Roberts v. Tavenner (W. Va. 1900), 37 S. E. Rep. 576.
Facts Sufficient to Charge a Purchaser with Notice. —A party who acquires a note with full knowledge of facts, which in law show that the party from whom he took the note had no authority to transfer it, cannot be regarded as acquiring it bona Me, though under a misconception of law he may have supposed that the party from whom he acquired ,it had a right to make the transfer. Smith v. Lawson, 18 W. Va. 212.
So in Cussen v. Brandt. 97 Va. 1; 32 S. E. Rep. 791, a party who purchased from an agent to collect, one of a series of negotiable notes secured by a deed of trust on real estate and payable in the order of their maturity, was postponed to the holder of the note thereafter maturing, where the note sold bore the indorsement “for collection” which was still legible, though erased, this being sufficient to put him upon inquiry.
Purchaser from an Unauthorized Bank President Not a Bona Fide Holder. — And 'the holder of a note to whom it has been transferred for valuable consideration by the president of a bank, who had no authority to transfer it, is not a bona Me holder of the note, and the maker of the note may dispute his title to it in an action brought on the note. Smith v. Lawson, 18 W. Va. 212.
Actual Notice of Equities. — And so where an agent indorsed a note for the benefit of his principal, and was assured by the principal that he should not be held responsible upon such indorsement, he was held not liable to pay the money at the suit of the person, to whom the note was indorsed with notice of such equity. Chalmers v. McMurdo, 5 Munf. 252.
Purchaser from an Agent for Collection. — The purchaser of overdue negotiable paper, from an agent for collection, acquires only such title as the agent had. Cussen v. Brandt, 97 Va. 1, 32 S. E. Rep. 791.
Personal Representative of an Accommodation Indorser. — The personal representative of an accommodation indorser of a negotiable note protested for nonpayment, can only acquire the note, whether by purchase or payment, in his fiduciary character. And he cannot in any event, either by purchase or payment, acquire larger rights than his testator or intestate would have had, had he paid the note in his' lifetime and after protest. Burton v. Slaughter, 26 Gratt. 914.
2. RIGHTS OF HOLDER IN DUE COURSE.
Title Acquired by a Bona Fide Holder for Value.— Where negotiable paper is transferred before maturity to a bona Me holder for value, he takes it free from all equities existing between the antecedent parties of which he had no notice; such holder often acquires a better right than that of the indorser under whom he claims. Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328, 19 L. R. A. 754, and note, 37 Am. St. Rep. 897; Davis v. Miller, 14 Gratt. 1; Smith v. Lawson, 18 W. Va. 212; Leonard v. Dougherty, 22 W. Va. 536.
And a bona Me holder of negotiable paper who purchased it for value in the ordinary course of business before maturity and without notice of equities which impeach its validity between antecedent parties, has title thereto unaffected by such equities and may recover on the note, although it was without legal validity between the antecedent parties. Bank v. Johns, 22 W. Va. 520; Leonard v. Dougherty, 22 W. Va. 536; Lomax v. Picot, 2 Rand. 247; Norton v. Rose, 2 Wash. 233; McNiel v. Baird, 6 Munf. 316.
Reason for Rule That Equities Do Not Affect a Bona Fide Holder. — The holder of a bill of exchange, or promissory note, is not to be considered in the light of an assignee of the payee. An assignee must take the thing assigned, subject to all the equities to which the original party was subject. If this rule was applied to bills and promissory notes, it would stop their currency. Norton v. Rose, 2 Wash. 233.
Holder of Lost Paper. — When a note payable to bearer, which has once become operative by delivery has been lost or stolen from the owner and has subsequently come to the hands of a bona Me holder for value, the latter may recover against the maker and all indorsers on the paper when in the hands of the loser, and the loser must sustain the loss. Branch v. Commissioners, 80 Va. 427.
Right of Holder of a Note Cut in Two. — where a bank note was cut In two, and one-half sent by mail and lost, it was held that the holder of the remaining half had a right to demand payment at the bank, upon presentation of the half in his possession, proving ownership, and giving bond and adequate security for the indemnification of the bank. But where these prerequisites were not complied with, and the bank was sued In consequence of refusing payment, the holder was not allowed to recover interest or costs, even though he performed the conditions after the suit was brought. Farmers’ Bank v. Reynolds, 4 Rand. 186. See also, Bank of Va. v. Ward, 6 Munf. 166.
Right to Tack a Note to a Hortgage. — -A creditor by a mortgage or deed of trust, has not a right, without a written agreement, to tack to such mortgage a deed of trust and note of the debtor, in exclusion of another mortgage or deed of trust, bearing date either before or after such note. Colquhoun v. Atkinsons, 6 Munf. 550.
3. PAPER TRANSFERRED OVERDUE,
Valid Transfer May Be Made after Maturity. — A negotiable note may be transferred any time while it remains a good, subsisting, unpaid note, whether before or after maturity: and, in the latter case, even though it be protested for nonpayment, and bears upon its face the stamp of dishonor. Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328, 19 L. R. A. 754, and note, 37 Am. St. Rep. 897.
Title of indorsee of Overdue Paper. — But in case of a transfer of overdue paper the holder takes it as a dishonored instrument, subject to all the defences and equities to which it was subject in the hands of his immediate indorser, whether he has any notice thereof or not; such holder takes nothing except the title and right of his Immediate indorser. Cottrell V. Watkins, 89 Va. 801, 17 S. E. Rep. 328, 19 L. R. A. 754, and note, 37 Am. St. Rep. 897; Davis v. Miller, 14 Gratt. 1; Smith v. Lawson, 18 W. Va. 212.
Overdue Note Secured by Trust Deed. — in Karn v. Blackford (Va. 1894), 20 S. E. Rep. 149, after the acceptance of a note, the payee, in a composition of creditors of the maker, agreed that the note should be paid according to the terms of a trust deed. A *293party who acquired the note after maturity was held to hold the same subject to the provisions of the trust deed, though the deed was unrecorded when the note was acquired.
Indorsee of Overdue Paper Not a Bona Fide Holder.— And one who purchases a note after maturity is not a tona fide holder, and takes it subj ect to the defence of payment in whole or in part. Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328; Davis v. Miller, 14 Gratt. 1; Arents v. Com., 18 Gratt. 750.
Indorsee Does Not Take Subject to Set-Off. — But a tona fide purchaser for value of an overdue negotiable instrument holds it subject to only such equities as attaches to the note itself at the time of the transfer. He takes it in the same manner that he would take any other personal property. The right of set-off was unknown to the common law. but is of modern statutory creation, and is neither an equity nor a lien recognized by the law merchant as attaching to a negotiable instrument. Hence, a tona fide purchaser of an overdue negotiable note is not required to take notice of existing set-offs in the absence of legislative enactment; and this, though the indorsee gave no consideration for the paper, and had notice of, and took the paper on purpose to defeat the set-off. Davis v. Noll, 38 W. Va. 66, 17 S. E. Rep. 791; Davis v. Miller, 14 Gratt. 1; Ritchie v. Moore, 5 Munf. 388. 7 Am. Dec. 688.
Title of Indorsee of Overdue Accommodation Paper.— While it is a general rule that if the paper be overdue at the time of transfer, that circumstance of itself is notice, and the indorsee can acquire no better title than that possessed by his indorser, yet, if the indorser’s title was unimpeachable, the fact that the paper was executed for accommodation, without consideration, and that the indorsee knew it. is no defence, even where the paper was overdue at the time of the indorsement, it being considered that parties to accommodation paper hold themselves out to the public, by their signatures, to be bound to every person who shall take the same for value, to the same extent as if paid to him personally. If the holder receive the paper after maturity from an indorser, who took it tona fide before maturity, there is no question as to his right to recover. Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328, 19 L. R. A. 754, and note, 37 Am. St. Rep. 897.
Same — He Stands in His Endorser’s Shoes —An indorsee of an accommodation note, taken after maturity, with or without knowledge of its consideration, may enforce it against prior parties to the same extent as if it had "been executed for value, if his immediate indorser was entitled toso enforce it. Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328, 19 L. R. A. 754. and note, 37 Am. St. Rep. 897.
And if a person for whose beneiit accommodation notes were made, pays them off as they fall due, but, instead of cancelling them passes them to a third person, they cannot be enforced by him, and if they are enforced by means of the sale of property under a trust deed given to secure their payment, such sale is fraudulent and will be vacated in equity. Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328.
Overdue Paper Is Negotiable. — In Virginia it is provided 1)3' statute (see Va. Code, § 2860). that, “the assignee of any bond, note orwriting notnegotiablemay maintain thereupon any action in his own name which the original obligee or payee might have brought, but shall allow all just discounts, not only against himself, but against the assignor, before the defendant had notice of the assignment.*’ In Davis v. Miller, 14 Gratt. 1, it was argued that this statute was applicable to negotiable paper which had been transferred after maturity; but the court held that the statute did not include such paper.
4. PRESUMPTIONS IN HOLDER’S FAVOR.
General Rule. — The general rule is that the holder of a negotiable instrument, regular upon its face, is presumed to have acquired it before maturity for value and without notice of any infirmity in the paper. Piedmont Bank v. Hatcher, 94 Va, 229. 26 S. E. Rep. 505; Duerson v. Alsop, 27 Gratt. 229; Wilson v. Lazier, 11 Gratt. 477; Dashiell v. Bank (Va. 1895), 22 S. E. Rep. 169; Vathir v. Zane, 6 Gratt. 246.
Possession Prima Facie Evidence That the Holder Gave Value — And the mere possession of a negotiable instrument is prima facie evidence that the holder took it for value, and that he came by it honestly. A total failure of the consideration of a negotiable instrument does not impose on the innocent holder the burden of proving that he gave value for it. But where the evidence raised a suspicion of fraud in the procurement of the note, then the holder is bound to show that he gave value for it. Wilson v. Lazier, 11 Gratt. 477; Dashiell v. Bank (Va. 1895), 22 S. E. Rep. 169; Vathir v. Zane, 6 Gratt. 246.
Burden of Proof, Not Shifted by Failure of Consideration. — A total failure of consideration of a negotiable note does not impose on the innocent holder the burden of proving that he gave value for it. Wilson v. Lazier, 11 Gratt. 477.
Fraud Is Never Presumed but ilust Be Proved. — And the general rule, that fraud is never presumed, but must always be proved by clear and satisfactory evidence, is applicable to negotiable instruments. In a suit to set aside a note on the ground of fraud, the possession of instruments being grima facte proof of ownership, the burden of proof is on the plaintiff to show that the note has been fraudulently obtained. Dashiell v. Bank (Va. 1895), 22 S. E. Rep. 169.
Presumption That Holder Is Holder for Value Fails in Certain Cases. — But under certain circumstances the presumption that the holder of a negotiable note is a holder for value, fails, and the burden of proof shifts upon him to show that he is such. Thus, in Duerson v. Alsop, 27 Gratt. 229, a holder of a note indorsed for the accommodation of the maker, gave no notice to the indorser or his personal representative that he held the note, ior eight years after maturity of the note. The holder made no effort to collect from the maker, though for the greater part of the time he was able to pay it. Under these circumstances the presumption that the holder of the note was a holder for value failed, and the burden of proof was held to be upon him to show that he gave value for the note.
So if the maker or party primarily liable for its payment, or any party bound by the original consideration, proves that it was obtained by fraud or illegality in its inception, or if the circumstances raise a strong suspicion of fraud or illegality, the burden of proof is shifted, and the holder of the note must show that he acquired it bona fide for value in the usual course of business while current, and under circumstances which create no presumption that he knew of the facts which impeach its validity. Piedmont Bank v. Hatcher, 94 Va. 229. 26 S. E. Rep. 505; Vathir v. Zane, 6 Gratt. 246.
Fraud in Procurement Shifts Burden of Proof. — And where a note is shown to have been procured by fraud in the procurement on the part of the payee, the holder in order to entitle himself to recover, *294must prove that he is a bona Me holder for value. Vathir v. Zane, 6 Gratt. 246.
Misappropriation of the Instrument by Payee — Burden of Proof. — And where it is shown in evidence that a negotiable note was made and delivered to the payee at his instance, and for his accommodation for a specific purpose, and that such payee, without the knowledge or consent of the maker, used such note for a different purpose, the burden is on the holder to show that he received it in the ordinary course of business, before maturity, for value, and without notice of its wrongful misuse by the payee, before he can recover from the maker. Union Trust Co. v. McClellan, 40 W. Va. 405, 21 S. E. Rep. 1025.
5. EFFECT OF FRAUD OR DURESS.
Fraud in Esse Contractus — West Virginia Rule. — A bona Me holder of negotiable paper has avalid title and can recover against the maker thereof, unless at the time he purchased the note it was absolutely void, although the maker was induced to sign such note by fraud, not intending to sign such a note but a paper of entirely different character. In such case the question of negligence in the maker forms no legitimate subject of inquiry. Bank v. Johns, 22 W. Va. 520; Leonard v. Dougherty, 22 W. Va. 536, overruling Morehead v. Bank, 5 W. Va. 74.
Noté in Renewal of a Note Obtained by Fraud. — Where a plea avers that the defendant had been induced by the plaintiff to make a note, for which the note in suit is a renewal, and which was given for another’s debt, by representing to defendant that that debt was amply secured by a deed of trust on real estate, while the plea on its face shows that the note was renewed several times after the defendant knew that the deed of trust would not satisfy the debt, and that the defendant had changed the debt by dropping the original debtor, and giving the note in suit; such facts constitute no defence to the note in the suit. Keckley v. The Union Bank, 79 Va. 458.
Fraudulent Concealment of Facts, — In the sale of a lease of a house and tenement, the vendor failed to show the lease to the vendee, and did not inform him of a covenant therein, that in case of destruction of the house by fire, the lease should terminate and become void. This was held such a concealment as to vitiate the contract, and the house being destroyed by fire, a court of equity relieved the vendee by in joining the vendor from collecting the purchase money, and by directing his notes for the same to be given up and cancelled. Snelson v. Franklin, 6 Munf. 210; McNiel v. Baird, 6 Munf. 316.
Threat of Prosecution of riaker’s Son unless He Executed Note, Is Not Duress. — The maker of a note forged the name of two parties as indorsers on the note, one of whom was his son-in-law. The holder of the note discovering the forgery informed the son-in-law that unless he procured the maker to make a new note with the parties whose names had been forged as indorsers, that he would prosecute the maker. The new note was accordingly given and the prosecution did not take place. The note was repeatedly renewed and a note was given by the indorser (the maker having dropped off) for the balance, after sundry payments. These facts were held not to constitute such duress as would avoid the note. Keckley v. The Union Bank, 79 Va. 458.
6. EFFECT OF USURY.
Usury in Transfer Does Not Affect Bona Fide Holders. —A note which was valid in its inception, was afterwards indorsed by a party to whom it had regularly come, to a third person, at a greater discount than legal interest. This transaction was held not to be usurious, as an intermediate indorsement of a note, for a usurious consideration as between indorser and indorsee, does not vitiate the note in the hands of a subsequent bona Me holder without notice of the usury. Whitworth v. Adams, 5 Rand. 333; Taylor v. Bruce, Gilmer 42; Bailey v. Hill, 77 Va. 492.
Usury No Defence to Note in Hands of Bona Fide Holder. — Since the passage of the act now embodied in § 2818 of the Code, which declares that usurious contracts shall be deemed to be for an illegal consideration, as to the excess beyond the principal sum loaned orforeborne, the plea of usury cannot be sustained in an action on negotiable paper brought by a bona Me holder for value, who acquired the same before maturity in due course of trade. The only effect of such plea is to cast the burden of proof on the plaintiff to show that he is a bonaMe holder for value. When he has shown this he is entitled to recover. Lynchburg Nat. Bk. v. Scott, 91 Va. 652, 22 S. E. Rep. 487.
Purging a Transaction Affected with Usury by Taking a New Note. — in an action of assumpsit upon a negotiable note it was set’up by a special plea that the note was made for a balance of a note given by one party to the suit, for the aggregate of sundry notes, one of which was-undue, and that there was no allowance made for that fact in ascertaining such aggregate, and that interest having been twice exacted for the sum of the undue note, the note for the aggregate was usurious, and tainted the note sued upon. It was held, that the failure to include the present worth only, instead of the face value of the undue note, did not constitute usury in the note for the aggregate: but if it did, the taking of the note in suit was such change of parties as purged the transaction of usury, and the new note was valid. Keckley v. The Union Bank, 79 Va. 458.
7. EFFECT OF ALTERATION.
Alteration Renders Instrument Invalid unless Consented to. — Where a person puts his name to paper, which is full in form, for a certain sum, payable at a certain time and place, for the accommodation of another who is to become a party to the same when it shall be negotiated, his liability is limited by the precise terms of that paper. An alteration after-wards, which is material, without his consent will make it a contract which he never executed and which it is manifest he never intended to execute; and it is a new contract to which he can in no sense be treated as a party; and he cannot be bound by it. But a party to the instrument, or one of several parties to the instrument, may consent to the alteration and the party so consenting will be bonnd. Bank v. Lockwood, 13 W. Va. 392; Batchelder v. White, 80 Va. 103; Dobyns v. Rawley, 76 Va. 544; Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74.
But'the objection that a material alteration has been made in anote in suit cannot be made for the first time in the appellate court. Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476.
Changing Name of Payee. — And an unauthorized change of the name of the payee of a negotiable note is such a material alteration as renders the note void as to the maker. The fact that the note was incomplete when altered, does not affect the result. §§ 124 and 125 of the Negotiable Instruments Law as ,to the alteration of such instruments, is simply declaratory of the former law on the sub*295ject. Hoffman v. Planters’ Nat. Bank (Va, 1901), 7 Va. Law Reg. 570.
Changing an Ordinary Promissory Note into a Nego=* tiableNote. — And changingan ordinary promissory note into a negotiable note without the knowledge or consent, either expressed or implied, of the promisor is such a material alteration as vitiates the note. Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74.
Instruments Delivered in Blank and Completed Fraudulently — Rule of the Law flerchant. — The authority implied by a signature to a blank note, and the credit given, are so extensive, that the party so signing will be bound, although the holder was only authorized to use it for one purpose and has perverted it to another. But the holder cannot alter the material terms of theinstrumentby erasing what is written or printed as part of the same ; or pervert its scope and meaning by filling blanks and stipulations repugnant to what is clearly expressed in the note before it is delivered by the indorser in blank. Frank v. Lilienfeld, 33 Gratt. 377: Guerrant v. Guerrant (Corporation Court,of Danville), 7 Va. Law Reg. 639. See also, Brummel v. Enders, 18 Gratt. 877.
Thus, a negotiable note signed in blank and indorsed in blank by several persons, was delivered to another to raise money on for his own accommodation. The party to whom it was delivered filled it up so as to make it payable sixty days after date, and having put his own name on it as last indorser, delivered it to the plaintiffs to deposit in bank to take up a note which they had indorsed for him. The plaintiffs after offering it to the bank for discount, altered the word “sixty*’ to “thirty,” so as to make the time of payment thirty days earlier. This alteration was made with the assent of the last indorser, but in the absence and without the knowledge of the drawer and other indorsers. The plaintiffs were allowed to recover on the note against the drawer and all of the indorsers, notwithstanding the alteration. Douglass v. Scott, 8 Leigh 43.
Same — Rule by Negotiable Instruments Law. — While it is a rule of the law merchant that where a negotiable instrument is intrusted to another with an unfilled blank, the person in possession has authority, so far as concerns a holder in due course, to complete it, consistently with the written or printed terms of the instrument, although he may thereby violate his actual authority, this rule has been altered by the Negotiable Instruments Law, in the case where the holder takes the instrument before the blank is filled. In such case, he is put on notice, and must ascertain the real authority of the person iutrustedwith the incomplete instrument, and takes it at his peril. Guerrant v. Guerrant (Corporation Court of Danville), 7 Va. Law Reg. 639; Hoffman v. Planters’ Nat. Bank (Va. 1901), 7 Va. Law Reg. 570.
Alteration of Check by Holder — Bank Is Still Liable if Drawer Is Not Negligent — A bank is responsible to a depositor for the payment of a check which has been altered in a material particular after signature, unless the negligence or laches of the drawer has laid the foundation 'for the error of the bank. The depositor, however, is only chargeable' with the duty of ordinary care and diligence. Merely giving a stranger a check in exchange for money is not such negligence on the part of the drawer as will excuse the bank on which it is drawn for paying the check after it has been raised to a larger amount by the drawee without authority. National Bank v. Nolting, 94 Va. 263, 26 S. E. Rep. 826.
Change by Agreement of Parties Is Not an Alteration. —Where the parties to a bill or note agree to a , change of any of its terms, they cannot complain of such change as an alteration. They have as much right to change as to make the contract. Schmelz v. Rix, 95 Va. 509, 28 S. E. Rep. 890; Bank v. Lockwood, 13 W. Va. 392.
VI. DILIGENCE REQUIRED OF HOLDER.
1. OF NEGOTIABLE PAPER.
a. Presentment jtor Acceptance.
Must Be Presented for Acceptance within Reasonable Time. — in order to hold the drawer of a bill of exchange liable the holder must present the bill to the drawee for acceptance within a reasonable time. In case of bills payable at sight, in states where such paper is entitled to grace, or of paper payable at a given time after sight, the courts have declined to lay down any rule prescribing what is a reasonable time in which theymustbepresented for acceptance, leaving the question in every case as it arises, to be determined by its peculiar circumstances, and if the bill is not presented within a reasonable time the drawer is discharged, although the party continue solvent and no damage is caused by the delay. One of the circumstances affecting the question of what is a reasonable time, in such case, is whether the bill has been put in, and kept in circulation, for if it has been kept in circulation the delay of a year or even more, would not necessarily amount to negligence. But if the holder retains possession of the bill for an unreasonable time and thus locks it up from circulation, he makes it his own, and has no remedy against antecedent parties from or through whom he derived title. Thornburg v. Emmons, 23 W. Va. 325.
Should Be Presented within Business Hours. — In cases where it is necessary to present a bill of exchange to the drawee for acceptance, the presentment should be made during the usual hours of business. Nelson v. Fotterall, 7 Leigh 179.
To Whom Presentment Should Be Made. — The presentment of a bill of exchange for acceptance should in all cases be made to the drawee himself or his duly authorized agent. Nelson v. Fotterall, 7 Leigh 179.
Presentment to Clerk. — It seems that it is not necessary to prove that the clerk at the drawee’s counting house is the clerk of the drawee authorized to accept or refuse acceptance of bills drawn on the drawee. Nelson v. Fotterall, 7 Leigh 179. But parol evidence has been held admissible to show that the clerk was authorized to refuse acceptance. Stainback v. Bank, 11 Gratt. 260; Nelson v. Fotterall, 7 Leigh 179.
b. Presentment eor Payment.
(l) Necessity of Presenim.&7bt.
To Fix Liability of Drawer and Indorsers. — In order to charge an indorser of a bill or note or the drawer of a check, it is necessary that the instrument should be presented for payment or some good, excuse shown for the failure to make such presentment. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; Waring v. Betts, 90 Va. 46, 17 S. Rep. 739.
To Fix Liability of Maker and Acceptor —But in order to sustain an action against the acceptor of a bill of exchange or the maker of a promissory note payable at a time' and place specified in the acceptance of note, it is not necessary to aver or prove a presentment and demand at the time and *296place so specified. Armistead v. Armisteads, 10 Leigh 512.
To Fix Liability of the Drawer of a Check. — Presentment of a check to a hank for payment is not absolutely necessary in order to hold the drawer. But the fact that a check is presumed to he drawn on funds makes it extremely important to the drawer that the check should be promptly presented for payment and the drawer notified if there is a refusal to pay, so that he may inquire into the cause of the refusal. Therefore, it is a general and well-established rule that where the holder of a check fails to present it for payment within a reasonable time, during which time the bank fails, the drawer is discharged to the extent of the prejudice he may suffer through such failure. But where a check is presented for payment, and payment refused, and notice is given to the holder at any time before the hank fails the drawer is not discharged, if it be shown that he is not prejudiced by the delay; and if prejudiced he is only discharged pro tanto. Purcell v. Allemong, 22 Gratt. 739; Bell v. Alexander, 21 Gratt. 1; Cox v. Boone, 8 W. Va. 500; Compton v. Gilman, 19 W. Va. 312; McClain v. Lowther, 35 W. Va. 297, 13 S. E. Rep. 1003.
Former West Virginia Doctrine Overruled. — It has been held, that unless a check is promptly presented at the hank for payment, the drawer is discharged from liability whether any injury has been sustained by him by reason of the failure to present or not. Ford v. McClung, 5 W. Va. 156. But this case is overruled in Compton v. Gilman, 19 W. Va. 312.
Presumption of Injury to Drawer of a Check. — Where a check is not presented in time, and notice of nonpayment is not given, injury to the drawer will be presumed; but a check is always presumed to be drawn on actual funds; and while if the holder has been guilty of laches in not presenting it in due time, or in failing to give notice of nonpayment, it becomes incumbent upon him to show that the drawer has not been injured by the dereliction, yet, on the other hand, if he shows that the drawer had no funds in the hank against which he drew, the burden of proving actual damage is shifted upon the drawer, and in the absence of such proof the plaintiff is entitled to recover. McClain v. Lowther, 55 W. Va. 297, 13 S. E. Rep. 1003.
Where Presentment Is Impossible Holder Must Notify Drawer. — Where the holder of the check is not able to present the check by reason of the removal of the bank and the condition of the country, he should give notice of the fact to the drawer, and offer to return it. If he fails to do this the drawer is not liable. Purcell v. Allemong, 22 Gratt. 739.
(2) Mode of Presentment.
Instrument Must Be at Hand. — Presentment of the bill or note and demand of payment should be made by an actual exhibition of the instrument itself ; or at least the demand of payment should be accompanied by some clear indication that the instrument is at hand ready to be delivered, and such must really be the case. This is requisite in order that the maker or acceptor may be able to judge of the genuineness of the instrument and of the right of the holder to receive payment, and that he may immediately reclaim possession of it upon paying the amount. Waring v. Betts, 90 Va. 46, 17 S. E. Rep. 739.
Formal Exhibition of Instrument Not Necessary unless Required. — But where, on demand for payment of a note, exhibition of the instrument is not asked for, and the party on whom the demand is made declines to pay on other grounds, a formal, actual presentment of the instrument is waived. Waring v. Betts, 90 Va. 46, 17 S. E. Rep. 739.
Paper Payable at Bank and Held by That Bank for Collection. — So where paper is payable at a hank and is held by that bank for collection, presentment in the ordinary way — by exhibiting the paper — is not required ; the maker or acceptor must have provided funds there with which to pay, and if he has not done so, it only remains to say that the note has not been paid, to show or to indicate the dishonor. All that can he done, or ought to be required, is that the books of the hank should he examined to ascertain whether the maker had any funds in their hands; and, if not, there is a default which gives the holder a right to look to the indorser for payment. Peabody Insurance Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Where Personal Presentment Is Impossible. — Though the holder of a check is disabled, so that he cannot go in person to present the payment, yet, if he could have sent it by mail, he will not be excused for not presenting it. Purcell v. Allemong, 22 Gratt. 739.
(5) Time of Presentment.
Paper Payable at a Particular Time Must Be Presented at That Time. — When a note is made payable at a particular time due diligence requires that it shall be presented at that time and it is incumbent on the holder of the note to show a compliance with this on his part by suitable averments in his declaration, and by proper proofs at the trial. To charge the indorser it is indispensable that the notes should be presented for payment, and payment thereof demanded at the time designated in the note, and that due notice he given him that the demand is ineffectual; and it is necessary to prove that the presentment for payment was then made, otherwise the indorser will he absolutely discharged. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Paper Payable on Demand Must Be Presented within Reasonable Time —A note payable on demand or on call is payable at once, and interest and the statute of limitations commence to run from its date. But in order to charge the indorser of a negotiable note so payable, it must be presented for payment within a reasonable time. No fixed rule can be laid down as to what will constitute a reasonable time, but this must be determined by the facts of the particular case. Bacon v. Bacon, 94 Va. 686, 27 S. E. Rep. 576.
What Amounts to Presentment within a Reasonable Time. — A creditor received on account of his debt, at his own dwelling on Wednesday evening, his debtor’s check on a hank in a town fifteen miles away. The mail for that town closed at the postoifice nearest to and three or four miles from the creditor’s residence at 7:30 o’clock the next morning, and the nextfollowing mail closed on the same hour on Saturday, arriving at the town in which the bank was located between eleven A. M. and noon. The check was not sent by either mail. The bank stopped payment at noon on Saturday. It was held, that there was no laches in not sending the check on Thursday, nor on Saturday, because if the creditor had then sent it to his agent, the latter would have had at least all that day in which to present it, and that, therefore, the debtor was not discharged. Cox v. Boone, 8 W. Va. 500.
Time of Payment Limited — Hust Be Presented before the Expiration of That Time. — Under the authority of an ordinance a city issued notes for the purpose of raising money. The time within which these *297notes were redeemable was limited in the ordinance. Some of these notes not having been presented for payment within the prescribed time, it was held, that the holders of them were not entitled to set them off against taxes due the city, after the fund which had been provided for their payment by the city had perished, and after the expiration of the time limited fortheir redemption. Miller v. Lynchburg, 20 Gratt. 330.
Presentment on Fourth Day of Grace Insufficient in Absence of Usage —Where a bill is payable at a place or bank, at which there is a special established usage, that bills there payable shall be presented on the fourth and not on the third day of grace, such special usage must be alleged in the declaration upon such bill, otherwise proof of presentment on the fourth day of grace is not admissible. Jackson v. Henderson, 3 Leigh 196.
Presentment during War Illegal. — Presentment and demand of payment of a check made by a resident of Vicksburg upon a bank in New Orleans while commercial intercourse between Vicksburg and New Orleans was prohibited by the proclamation of the president, was illegal. Billgerry v. Branch. 19 Gratt. 393.
Presentment Hast Be Made during Business Hours.— Where presentments made at the place of business of the maker it must be during such hours when such places are customarily open, or at least, while some one is there competent to give an answer. Waring v. Betts, 90 Va. 46, 17 S. E. Rep. 739; Nelson v. Fotterall, 7 Leigh 179.
Paper Payable at Bank Must Be Presented during Banking Hours. — When an instrument is payable at bank it must be presented during banking hours; and the payer is allowed until the expiration of banking hours for payment Waring v. Betts, 90 Va. 46, 17 S. E. Rep. 739.
Paper Not Payable at Bank or Place of Business. — But when the note is not made payable at bank, but to an individual, presentment may be made at any reasonable time during the day during what are termed business hours, which, it is held, range through the whole day to the hours of rest in the evening. Waring v. Betts, 90 Va. 46, 17 S. E. Rep. 739.
(4) Place of Presentment.
Paper Payable at a Particular Place Must Be Presented There. — Where paper is payable at a particular place due diligence requires that it shall be presented at that place, and it is incumbent upon the plaintiff to show compliance with this rule at the trial by suitable evidence. To charge the indorser it is indispensable that the instrument in question should be presented atthe place therein designated, and nnless this is shown by satisfactory evidence the indorser will be absolutely discharged. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Same — West Virginia Statutory Rule. — But under Code of 1868 of West Virginia, ch. 99, sec. 1, a declaration against the maker of a promissory note payable at a particular place, need not aver presentment for payment at the time or place specified. Merchants' etc., Bank v. Evans, 9 W. Va. 373.
Presentment at Bank Excused Where Bank Has Cessed to Exist. — Although the note is made payable at a bank, presentment and demand for presentment at the bank within banking hours is excused if the bank has ceased to exist, and in such case presentment to and demand on the indorser of such note and manager of the bank made at his residence at 5:30 P. M. is sufficient to charge him. Waring v. Betts, 90 Va. 46, 17 S. E. Rep. 739.
Presentment to Cashier Must Be Made at His Bank.— In an action on a negotiable note payable at a bank, it is not sufficient to show that such note was presented for payment to the cashier of the bank at which it was payable, unless it further appears that such presentment was made to the cashier at the hank. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Paper Payable at One Bank and Negotiated at Another. — A note negotiable and payable at the Farmers’ Bank of Virginia, was in fact negotiated at the bank of the United States, with the knowledge and assent of the maker and indorser. Presentment of the note at the latter bank was held not sufficient to charge the indorser, though he assented to the negotiation of the note there: nor could any usage of the bank of the United States dispense with due presentment at the Farmers' Bank where it was payable. Watkins v. Crouch, 5 Leigh 522.
Presentment at Bank Not Necessary to Charge the Maker. — In an action against the maker arid indorser of a note negotiable and payable at the Farmers' Bank of Virginia, it was held not necessary to aver and prove due presentment of the note and demand of payment at the bank, in order to entitle the plaintiffs to recover of the maker, but it was necessary, in order to entitle them to recover against the indorser. Watkins v. Crouch, 5 Leigh 522.
Presentment at the Office of an Authorized Agent.— A bank upon the cessation of its banking operations in a city, to wind up its affairs in that place put its notes, etc., falling due at that place in the hands of a private banker in that city, for collection, and made his office its office of discount and deposit, and of this the maker and indorsers of the note had notice. The presentment and demand of payment at the office of this private banker was held a sufficient presentment and demand. Crews v. Farmers’ Bank, 31 Gratt. 348.
Note Negotiable at a Bank Not Necessarily Payable There. — In an action of debt on a promissory note, by the indorsee against the maker, the declaration stated that the note was only made negotiable at the bank of Virginia, and averred that the note at maturity was duly presented at the bank, and protested for nonpayment. The note offered in evidence, was made negotiable at the bank, and there was no proof that it was presented at the bank for payment. It was held, that a note made negotiable at a bank is not necessarily payable there also, and so the averment of presentation at the bank was wholly immaterial, and need not be proved. Barrett v. Wills. 4 Leigh 114.
c. Protest.
(i) Necessity of Protest
To Fix Liability of Parties to Foreign Bills of Ex= change. — By the law merchant, which is a part of the common law, protest of a dishonored foreign bill of exchange is ordinarily indispensable, and the attorney’s certificate of protest proves itself; that is, it is prima facie evidence of presentment and nonacceptance or nonpayment. But the rule does not extend to promissory notes and inland bills. As to those, the protest is not regarded as an official act. and accordingly, in the absence of statute, is not receivable as evidence of dishonor. Corbin v. Planters’ Bank, 87 Va. 661. 13 S. E. Rep. 98; Peabody Ins. Co. v. Wilson, 39 W. Va. 528, 2 S. E. Rep. 888.
To Fix Liability of Indorsers of a Note —West Virginia Rule. — But in Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888, the court said: “As in the case *298of foreign bills of exchange, so now, by virtue of our statute, due diligence requires that, if a negotiable note be dishonored for nonpayment, the holder is required to protest the same in order to charge the indorser. * * * In order to charge the indorser, itis not only necessary to aver and prove that the note at its maturity was presented for payment, and payment thereof demanded, at the place of payment designated in the note, but it must also be averred and proved that the note was protested for nonpayment and that notice of the dishonor of the note was duly given to the indorsers.”
To Enable the Holder to Bring a Joint Action. — And in order to hold an indorser of a negotiable note liable in an action of debt, with the maker, it must appear that the note was duly and formally protested for nonpayment, and that the indorser was duly notified of such nonpayment and protest. Shields v. Farmers’ Bank, 5 W. Va. 254.
Where Instrument Is Not Protestable by Virginia Law. — In the absence of proof that a bill or note sued on in Virginia was protestable by the law of the state where it was made payable, the presumption prevails that it was not. Corbin v. Planters’ Bank, 87 Va. 661, 13 S. E. Rep. 98.
(2) v Time of Making Protest — Protest cannot be made until after the instrument becomes payable, and where a bill of exchange is protested for nonpayment and notice thereof given to the drawer before the bill according to its tenor and effect becomes payable, such protest and notice are premature, and fix no liability on such drawer to pay the bill, and the drawer’s liability upon the bill is the same as if no protest had eyer been made. Thornburg v. Emmons, 23 W. Va. 326.
But in a doubtful case it is proper for the jury to determine whether the protest was made after dishonor or not. . Thus in an action of assumpsit by an indorsee against the drawers of a foreign bill of exchange drawn by merchants in Virginia on Liverpool, it appeared that the bill was presented to the drawee at Liverpool, and acceptance refused, on the 27th of March,.and that the bill was put into the hands of a notary for the purpose of protest on the 28th. It was held a proper question for the jury to 'decide, upon the evidence, whether the refusal of the drawee to accept was within or after business hours of the 27th, so that the bill could be put into the notary’s hands on that day, or not until the next day. Nelson v. Fotterall, 7 Leigh 179.
(3) Protest as Evidence.
To Prove Dishonor. — A protest of a foreign bill of exchange, in a foreign county is proved by the notarial seal. The protest is not conclusive, hut only prima facie evidence of the dishonor of the hill. Nelson v. Fotterall, 7 Leigh 179.
But where a promissory note or inland bill is payable in another state, the notarial .certificate of protest thereof made in that state is not evidence of dishonor, in an action brought thereon in the state of Virginia. Corbin v. Planters’ Bank, 87 Va. 661, 13 S. E. Rep. 98.
As Evidence of Dishonor by Failure to Accept.— Where the protest of a foreign hill of exchange, stated that the notary took the hill to the counting house of the drawee and there exhibited it to a clerk of the drawee and demanded acceptance thereof; and that the said clerk replied that the same could not be accepted, it was held, that the protest was sufficient to bind the indorser, and parol evidence was admissible in an action by the holder against the indorser to prove that the clerk was authorized to refuse acceptance. Stainback v. Bank of Virginia, 11 Gratt. 260.
Of Facts Stated Therein. — Under W. Va. Code, sec. 7, ch, 51, sec. 8, ch. 99, the protest of a negotiable instrument is prima facie evidence of the facts “stated therein, or at the foot, or on the back thereof, in relation to presentment and dishonor, and notice thereof.” Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S.E. Rep. 888; Walker v. Turner, 2 Gratt. 534.
To Prove Presentment, Dishonor, and Notice. — But when the protest is the only evidence relied on to establish due presentment, dishonor, and notice, such protest must contaiu averments sufficient to show that everything requisite has been done on the part of the holder or his agent to authorize the demand upon the indorser. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
To Prove Notice. — And where a protest simply states that notice of dishonor was sent by mail to the indorser, directed to their “several addresses,” such certificate, in the absence of all other evidence is insufficient to prove due notice. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
But in Slaughters v. Farland, 31 Gratt. 134, a certificate of a notary that he gave notice of a protest of a note for nonpayment sent hy mail to the place of residence of the indorser while there was a mail communication between the place of starting and the residence, though not hy the direct route, was held to he sufficient evidence of notice.
Copy of Protest. — A copy of a bill of exchange and notarial protest, with an affidavit of the payee that the original was lost or mislaid, was held not to he legal evidence to charge the drawer. Wright v. Hencock, 3 Munf. 521.
Aiding Protest by Extrinsic Evidence. — Where the protest itself did not state that notice of the dishonor .of the note was given to the indorser, the affidavit of the notary stating that notice had been given, was held not competent evidence. Walker v. Turner, 2 Gratt. 534.
In an action of debt upon a negotiable note the plaintiff offered in evidence the protest of the notary, which stated the due presentment and demand of the note, the failure to pay, the protest for nonpayment, and the fact that notice of the protest had been forwarded to the makers of the note. It omitted to state that the notice had been forwarded to the indorser, who was the defendant. He then offered in evidence the ex parte affidavit of the notary, that he had forwarded it by mail, informing him of the protest and dishonor of the note. It was held, that such affidavit was not admissible to prove notice, in a case where the protest did not state that notice of the dishonor had been sent to the indorser. Walker v. Turner, 2 Gratt. 534.
Effect as Evidence Determined by the Court. — a notarial certificate of protest is in the nature of documentary evidence, and the proper construction as well as the legal effect thereof, as an instrument of evidence of the facts stated therein, are questions of law, to he determined exclusively by the court. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Inferences on Demurrer to Evidence — Virginia Rule. —In an action of debt against the indorsers of a protested note discounted at the hank, the protest of the notary stated that “he placed in the postoffice of this place four written notices, one directed to the payer, and one directed to the two indorsers, at Blacksburg, Virginia, informing them,” etc. On de*299Ttrarrer to the evidence it was held, that as the jury would have been warranted to infer from this evidence that the residence of the defendants was in Blacksburg the court must make the same inference upon a demurrer to evidence. Linkous v. Hale, 27 Gratt. 668. This case overrules the law as laid down in a headnote to Raine v. Rice, 2 P. & H. 529.
Same — West Virginia Rule. — But this case is disapproved by the West Virginia court, and it is held, that where the only evidence introduced to prove presentment, dishonor, and notice is contained in the notarial certificate of protest, the court, upon a demurrer to evidence, will not infer that any step was regularly taken, or that any fact existed, which is not certified to in the protest. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
And so where a certificate of protest simply states that notice was addressed to the indorser at a certain place, without adding that such place was the postoffice or residence of the indorser, the court, upon a demurrer to evidence, will not infer that such was the fact, and such certificate is, therefore, insufficient to prove due notice. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Protest without Notarial Seal Admissible in Evidence. — And the want of a notarial seal is not sufficient to prevent the receipt of a certificate of protest signed by a notary of this state in evidence. Second Nat. Bank v. Chancellor, 9 W. Va. 69.
d. Notice oe Dishoxok.
(i) Necessity of Notice.
Knowledge without Notice Not Sufficient. — Notice of dishonor means notification of dishonor; and knowledge of nonpayment of the instrument by the party to-be charged is not sufficient. Bank of Old Dominion v. McVeigh. 29 Gratt. 546; Brown v. Ferguson, 4 Leigh 37.
To Fix Liability of Drawers and Indorsers of Bills of Exchange.-The drawer of a bill of exchange, or order, is not directly liable to the payee or indorser, but his implied obligation or contract is to pay, in the event the amount is not paid by the drawee. The general rule is well established, that drawers and endorsers are entitled to prompt notice of the nonacceptance or nonpayment, in order that the former may look after his funds, and withdraw and secure the same, and that the latter may take the necessary steps to secure himself; and that upon the failure to receive such notice, they are discharged from liability; and the bill or order, as between the drawer and payee or indorsee, will be considered paid. Ford v. McClung, 5 W. Va. 156: Brown v. Ferguson. 4 Leigh 37; Thompson v. Cumming, 2 Leigh 321; Willock v. Riddle, 5 Call 358; Davis v. Poland, 92 Va. 225, 23 S. E. Rep. 292; Early v. Preston, 1 P. & H. 228; Wood v. Luttrel, 1 Call 232.
To Fix Liability of Indorsers of Notes.- So the indorser of a note is entitled to notice of dishonor of the instrument and a failure to use due diligence in giving him notice will discharge him. May v. Boisseau, 8 Leigh 181; Bank of Old Dominion v. McVeigh, 29 Gratt. 546; Brown v. Ferguson, 4 Leigh 37; Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; Davis v. Poland, 92 Va. 225, 23 S. E. Rep. 292.
To Fix Liability of Drawer of Check. — The contract of the drawer of a check differs materially from the contract of the drawer of a bill of exchange. In order to hold the drawer of a check liable, the holder is not absolutely bound to present the check for the payment promptly, and the drawer is not absolutely entitled to notice of its dishonor. But the fact that a check is presumed to be drawn against deposited funds makes it of great importance that a check should be presented, and that the drawer should be notified of its nonpayment, in order that he may speedily inquire into the cause of refusal and be placed in a position to secure his funds which are deposited in bank. Therefore, where the holder of a check fails to present the check at the bank for payment within a reasonable time, or fails to give notice to the drawer of its dishonor, the drawer is discharged to the extent that he is prejudiced by such failure. Bell v. Alexander, 21 Gratt. 1; Purcell v. Allemong, 22 Gratt. 739; Cox v. Boone, 8 W. Va. 510; Devendorf v. W. Va. Oil, etc., Co., 17 W. Va. 174; Compton v. Gilman, 19 W. Va. 312.
To Fix Liability of flaker and Acceptor. — The contract of the maker of a negotiable note is an absolute one and it is of course never necessary to prove notice of dishonor to him, as he necessarily knows of the dishonor of the instruments through his own failure to pay; and the same is true of the acceptor óf a bill of exchange. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888: Hays v. Northwestern Bank, 9 Gratt. 127; Hansbrough v. Gray, 3 Gratt. 356; Watkins v. Crouch, 5 Leigh 522.
To Fix Liability of Irregular Indorsers. — Where a negotiable promissory note is first indorsed by a stranger and then delivered to the payee, such irregular indorser, according to the West Virginia rule, is prima facie an original promisor or guarantor as the holder may elect. His liability is not governed by the strict rules of the law merchant, but is determined by the manner in which the holder elects to treat him. If the holder elects to treat him as a joint maker or guarantor, instead of an ordinary indorser, protest and notice of nonpayment are not necessary in order to bind him. Miller v. Clendenin, 42 W. Va. 416, 26 S. E. Rep. 512.
It has not been decided in Virginia whether an irregular indorser is entitled to notice of dishonor or not; but it is certainly necessary now under the provisions of sec. 63 of the Negotiable Instruments Law. See Call v. Scott, 4 Call 402; Fitzhugh v. Love. 6 Call 5; Frank v. Lilienfeld, 33 Gratt. 377. See infra, “Liabilities of Parties — -Irregular Indorsers.”
To Fix Liability of Accommodation Maker. — The maker of a note made for the accommodation of the payee, is not released by the failure to protest the note and give him notice of dishonor, though it is known to the holder that he is an accommodation maker of the note. Hansbrough v. Gray, 3 Gratt. 356.
To Fix Liability of the Endorser of Notes Made for His Accommodation. — Where notes are made for the accommodation of the payee, the payee is liable upon his indorsement without having been served with notice of protest and dishonor. McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
To Fix Liability of Accommodation Indorser. — An indorser is chargeable without notice if he indorsed for the drawer for accommodation only, and had no expectation that the drawee would pay. Farmers’ Bank v. Vanmeter, 4 Rand. 553.
To Fix Liability of Endorser of a Nonnegotiable In=> strument. — And it is a well-settled rule that a party whose name appears on the back of a nonnegotiable instrument, as assignor or indorser, is not entitled to notice of the dishonor of the instrument. Pitman v. Breckenridge, 3 Gratt. 127.
Notice of Failure to Accept Necessary. — In case of the dishonor of a bill of exchange by a failure *300of the drawee to accept, it is just as essential that the holder have notice of the dishonor by such failure to accept, as it is for him to have notice of the failure to pay when presented for payment. Thompson v. Cumming, 2 Leigh 321.
Not Necessary to Notify All in Order to Hold One.— Where there are several indorsers to a negotiable instrument, the holder does not have to give notice of protest to all of them in order to bind one. Those who have received notice of protest are bound notwithstanding the fact that there are others who have not been notified. Cardwell v. Allan, 33 Gratt. 160.
Condition Precedent to Recovery. — The burden of proof that due presentment of a note for payment has been made, and due notice of protest thereof given to the indorser, or that due diligence has been used to give such notice, rests upon the plaintiff; and clear proof on his part of such presentment, dishonor, and notice is a condition precedent to his right to recover against the indorser. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; Early v. Preston, 1 P. & H. 228.
Injury Implied from Failure to Give Notice. — In case of failure to give notice to the drawer of a bill upon its dishonor, the law implies injury to the drawer. Ford v. McClung, 5 W. Va. 156.
Penalty for Failure to Give Notice of Protest of Inland Bill. — The penalty for not giving notice of the protest of an inland bill of exchange, is the loss of interest and damages; but the principal is nevertheless recoverable. Willock v. Riddle, 5 Call 358.
(2) Mode of Giving Notice.
(a) Where Parties Reside in Same Town.
Personal Service Necessary. — The best evidence of notice is proof of personal service on the party to be affected by it, or by leaving a copy at his dwelling house. Depositing a notice in the postoffice affords but presumptive evidence of its reception, and is permitted to be substituted' for the former only where the latter would be too inconvenient or expensive. Hence, when the convenience of the public post is not needed for the purposes of the transmission, as where the parties reside in the same city or town, there is no reason for its use, or for waiving the more stringent and certain evidence of notice. Therefore, where the parties reside in the same city or town the general rule is that notice must be delivered in person to the party to be charged, or left at his residence or place of business. Brown v. Bank of Abingdon, 85 Va. 95, 7 S. E. Rep. 357; Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
And this rule holds good even though the party to be charged resides outside of the town, but in the vicinity, if he receives his mail at this town. And in the absence of proof of a usage known to him at the time of entering into the contract notice must be left at his residence or dwelling; and notice deposited in the postoffice is not sufficient to charge him in the absence of proof of its actual receipt. Brown v. Bank of Abingdon, 85 Va. 95, 7 S. E. Rep. 357; Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Distinction between Different nodes. — The distinction between the different modes of giving notice is this : That where the holder and indorser reside in different places, if the holder deposit the notice in the postoffice in due season, he has no further burden on him as to the actual receipt of it by the latter ; but when the parties both live in the same town, the sender of the notice is bound to show that it was actually received by the indorser in due season, or left at his dwelling house, which in that case, is deemed equivalent to personal service. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
(b) Where Parties Reside in Different Towns.— Where the parties live at a distance from each other and in different cities or towns, so that personal service would be inconvenient and expensive, notice sent by mail to the nearest postoffice is sufficient to bind the party. Brown v. Bank of Abingdon, 85 Va. 95, 7 S. E. Rep. 357; McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
(3) What Amounts to, Sufficient Service by Mail.
Deposit in Postoffice Sufficient. — The deposit of the notice in the postoffice, properly addressed and in proper time, is all that is required to charge the party so notified, and the sender has no further duty on him as to the actual receipt. Friend v. Wilkinson, 9 Gratt. 31; Farmers’ Bank v. Gunnell, 26 Gratt. 137; McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
Party Equal Distance from Two Postoffices. — Where an indorser resided in a country district passing under a particular name, and having a postoffice within it; and being the same distance from that office and another out of the bounds of the district, a notice of protest sent to the first-mentioned office, was held sufficient, though in fact he was accustomed to receive his letters and papers from the other office. Rand v. Reynolds, 2 Gratt. 171.
Letter Deposited in Mail during War. — Where the holder and indorser resided in different localities at the time of the dishonor, and for months before and afterwards, the usual and ordinary intercourse by mail being intercepted by a state of war, itwas held that the holder did not prove due diligence by simply proving that he deposited in thispostofflceattheday of dishonor of the note, a notice of dishonor addressed to the indorser at his place of residence. Farmers’ Bank v. Gunnell, 26 Gratt. 131.
And so notice of dishonor of a check deposited in the postoffice at New Orleans while that city was under permanent federal occupancy and control, and addressed to Petersburg, Va., during the pend-ency of the Civil War was of no avail, unless it was shown that the law or a general usage required the letter containing the notice to be preserved by the postmaster until the restoration of mail communication, and then forwarded to its destination. Billgerry v. Branch, 19 Gratt. 393.
Notice Sent by One of Two Equally Good Routes. — A bill drawn in Petersburg, Va., on a house in London, was protested for nonacceptance on the 5th of April 1843. The next Cunard steamer sailed from Liverpool for the United States on the 19th of that month, and notice of the dishonor of the bill was sent by that steamer. At that time these steamers carried the mail between the two countries under a contract with the British government, and it was the usual mode of transmitting letters. There were, however, regular lines of sailing packets between London and Liverpool and the United States, for which letter bags were made up at the London post-office, and such packets sailed from London or Liverpool on the 7th, 10th and 17th of April 1843. But it was probable that the steamer of the 19th would arrive before any of them. The notice was held sufficient. Stainback v. The Bank of Virginia, 11 Gratt. 260.
Notice Addressed to “Legal Representative” of Party. — An indorser on a negotiable note died intes*301late before the note became due. When the note became due it was regularly protested for nonpayment, and no person haying then qualified as administrator on the estate of the indorser, the notary on the same day deposited in the postoffice of the town in which the note had been made payable, and discounted, the notice of protest directed to “the legal representative, ” of the indorser. This was held sufficient notice. Boyd v. City Sav. Bank, 15 Gratt. 501. The reason upon which this case is based is, that as no person had qualified as administrator on the estate, there was no one on whom personal service could be made, and it was, therefore, excused.
(4) Time of Giving Notice.
Where Parties Reside In Different Places. — If the
party to be charged reside at a different place from the holder, the notice must be sent to him by the first mail which leaves after the day of the dishonor is passed, and does not close before early and convenient hours of the day succeeding the day of dishonor. directed to him at the place of his residence, or to his nearest postoffice, or to the postoffice where he usually receives his mail matter, advisinghim of the protest. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; Corbin v. Planters’ Nat. Bank, 87 Va. 661, 13 S. E. Rep. 98; Brown v. Ferguson, 4 Leigh 37
But where a note was due on the 14th of the month in New York, and on the 17th the holder received notice of its dishonor in Richmond, Virginia, which on the same day he forwarded to the indorser, there is no proof of due notice of dishonor, as it does not appear when the notice was mailed in New York. Corbin v. Planters’ Nat. Bank, 87 Va. 661, 18 S. E. Rep. 98.
Any party to a bill of exchange, or a notary who protests it may give notice of its dishonor; and such notice will be sufficient, if it be sent by the notary on the day after or the next mail day after protest; or by any party thereto, on the day thereafter, or the next mail day after such notice is received by mail-excluding Sundays in both cases. Early v. Preston, 1 P. & H. 228.
Where Parties Live in Same Place. — Where the indorser lives in the same place where the note is payable, notice of protest given him on either the same day the demand is made or the next day is sufficient. Brown v. Ferguson, 4 Leigh 37.
Notice by Successive Indorsers. — If due notice is given by the holder to his immediate indorser, who, on receiving „ notice, transmits notice reasonably to his immediate indorser, the holder may recover against the latter, although he has never given him any notice, as notice by an indorser whose liability has been fixed inures to the benefit of all subsequent parties to the instrument; and this, regardless of the fact that the prior indorser did not receive notice as soon as he would have received it, had it been sent him by the holder, for the holder has a reasonable time to give notice to his immediate indorser, and this indorser has the same time in which to give notice to his predecessor, and so on. Big Sandy Nat. Bk. v. Chilton, 40 W. Va. 491, 21 S. E. Rep. 774; Brown v. Ferguson, 4 Leigh 37.
Successive Indorsers — Agent for Collection. — Every party to a bill of exchange is entitled to one full day, to give notice to the party next before him, of the dishonor of the instrument. This rule is applicable even to a party who is a mere agent for collection, and who indorses the bill only for the purpose of collection. Brown v. Ferguson, 4 Leigh 37.
Each Party Must Exercise Due Diligence. — Over diligence of one party to a bill does not supply the under diligence of others ; and though the drawer or indorser sought to be charged, in fact receives notice as early as he would regularly be entitled to it, yet the holder, in order to charge him, is bound to show due diligence in each and every party through whose hands the bill has passed. The onus probandi, in such case, lies on the plaintiff, to prove due diligence, and not on the defendant to prove negligence. Brown v. Ferguson, 4 Leigh 37.
Burden Proving That Notice Was flailed in Proper Tisne.- in an action upon a bill of exchange by an indorsee against an indorser, it appeared to be a proper case in which to send notice of protest by the mail, and it also appeared that such protest had not arrived at as early a date as in the regular course of the mail it might have come if started at the proper time. The burden of proof was held to be upon the plaintiff to prove that it was put into the mail at the proper time. Friend v. Wilkinson, 9 Gratt. 31.
Unreasonable Delay. — Wherever there is an unreasonable delay in giving notice to the indorser he will be discharged. A delay of two months is unreasonable, and a notice if sent there is of no effect to charge the indorser. Bank of Old Dom. v. McVeigh, 29 Gratt. 546.
Nonsecular Days Must Be Proved. — The courts will not take judicial notice of the fact that the next day after the protest, or receipt of notice thereof, is not a mail day; or the time it requires for a letter to go by mail between two given points. Such matters if material, must be proved. Early v. Preston, 1 P. & H. 228
Notice of Protest of Foreign Bill under Act of 1848.— If notice of the protest of a foreign bill of exchange be given within eighteen months from the date of the bill, it will be sufficient under the act of 1848 (see Hen. Sts. 85), unless there be particular circumstances to warrant a departure from the general rule. Stott v. Alexander, 1 Wash. 331.
“Due Diligence” a Question of Law. — The question of due diligence in serving notice of dishonor of negotiable paper is a question of law, and if there be doubt or difficulty, in making proper deductions from the evidence, it must be solved by the court, as if the jury had not passed on the evidence. Early v. Preston, 1 P. & H. 228; Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Excuses for Delay in Giving Notice. — Where the holder and indorser reside in different states or countries at the time of the indorsement and maturity of the note, and war arises between such states or countries between those periods, and continues to exist at the time of such maturity, the impossibility which thus arises of their givingsuch notice is a legal excuse for not doing so. The excuse, however, is not permanent, but is only for a delay until the impossibility ceases when due notice must be given. McVeigh v. Bank of Old Dom., 26 Gratt. 785; Farmers’ Bk. v. Gunnell, 26 Gratt. 131; Tardy v. Boyd, 26 Gratt. 631.
(5) IHace of Giving Notice.
flust Be Left at Place of Business or Residence, or Deposited in Postoffice. — Notice served by delivering a copy at the residence or place of business of the indorser is always sufficient to bind him whether he actually received it or not; and where the parties reside in different towns notice sent by mail addressed to the postoffice which is nearest to the indorser’s residence or place of business, is sufficient. *302Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; McVeigh v. Bank of Old Dom., 26 Gratt. 785.
But notice of dishonor of a note left with a servant at the residence of an indorser, who was at the time a refugee in the confederate lines, was not sufficient, as the statute directing how notices may be given does not apply to notice of dishonor of negotiable paper. McVeigh v. Bk. of Old Dom., 26 Gratt. 785.
Temporary Residence. — Where a party has an actual domicil and -a temporary residence it is a general rule that notice sent to such -temporary residence will bind him. But where the party to be charged has ceased to reside at his temporary place of residence, notice there will be insufficient. Thus, where notice was left at the dwelling house of a member of congress in Washington after the adjournment of congress and after he had left, the city, notice there was held to be insufficient. Bayly v. Chubb, 16 Gratt. 284.
Notice Sent to Wrong Place alter Due Inquiry.— Where the holder using due diligence to ascertain the place of residence of the indorser is wrongly informed, and transmits notice by mail according to such information, the liability of the indorser becomes thereby fixed and absolute; and the holder is not bound to give any other notice, even though he may afterwards be informed correctly as to the residence of the indorser. McVeigh v. Bank of Old Dom., 26 Gratt. 785.
e. Excuses for Want of Presentment, Protest, and Notice.
Notice Hay Be Expressly Waived. — The consequences of neglect to give notice may be waived by the person entitled to take advantage of the failure, but the act which is to operate as a waiver must be the act of the indorser himself. May v. Boisseau, 8 Leigh 181; Dey v. Martin, 78 Va. 1.
Waiver Is Intentional Relinquishment of a Known Right. — Where an indorser of a negotiable note executed a trust deed to thé holder in ignorance of the fact that the holder had extended time to the maker, by which extension the indorser is released, the trust deed was enjoined. Giving the trust deed did not amount to a waiver, as a waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. Dey v. Martin, 78 Va. 1.
Unequivocal Promise to Pay Is a Waiver. — Although a promise to pay by an indorser, with full knowledge of all the facts, and of the laches of the holder, may be held in point of law to amount to waiver of the right to notice, yet this rule must be taken with this qualification ; the promise tobe obligatory must be deliberately made in clear, explicit language, and must amount to an admission of the right of the holder, or of a duty and willingness of the indorser to pay. If, therefore, the conduct or acts of the indorser be equivocal, or the language used be of a qualified or uncertain nature, the indorser will not be held responsible. A conditional promise to pay, or an offer to pay in a certain manner, is not binding, as a waiver of the rights acquired by the laches of the holder, if the terms be not accepted. Tardy v. Boyd, 26 Gratt. 631; Pate v. McClure, 4 Rand. 164.
Offer to Pay in Depreciated Currency. — But an offer by an indorser to pay the debt in depreciated currency, which offer is refused, is not sufficient to excuse notice, for as soon as the offer to pay in such currency is refused the parties stand upon their , former footing, the offer not constituting a waiver. Tardy v. Boyd, 26 Gratt. 631.
Acknowledgment of Debt by the Indorser — If the drawer of a protested bill of exchange, being applied to in behalf of the holder for payment, acknowledges the debt to be just and promises to pay it, saying nothing about his having received notice, the holder in an action of debt upon the bill, against such drawer, is not bound to prove that notice' was given him of the protest. Walker v. Laverty, 6 Munf. 487; Pate v. McClure, 4 Rand. 164.
. Thus, in an action on a bill of exchange, the defendant required proof of notice of protest for nonpayment of the bill. The plaintiff introduced a witness, who proved, that-he applied to -the defendant for payment of the said bill, who acknowledged that the debt was a just one, and said he would pay it; nothing was said as to his receiving notice. The defendant moved the court to instruct the jury that unless the acknowledgment was made, with the knowledge of all the facts in the case, as to the laches of the holder of the bill, the evidence of acknowledgment was not to be received. The court refused to give such instruction, and instructed the jury that such acknowledgment was a waiver of notice. This instruction was held proper on appeal. Pate v. McClure, 4 Rand. 164.
Where Residence of Indorser Cannot Be Found by Due Diligence. — Where the holder uses due diligence to ascertain the place of residence of the indorser at the time of the maturity of the note without being able to do so, he is altogether excused for giving such notice, and the liability of the indorser then becomes fixed and absolute, and the holder is under no obligation to give such notice even though he may afterwards discover the place of the residence of the indorser. McVeigh v. Bank of Old Dom., 26 Gratt 785.
Where Indorser Receives Assets of Maker. — The assignment of property by the maker of a note to the indorser to relieve him against his contract of indorsement is not a sufficient excuse for failure to make presentment, and give the indorser notice of dishonor, unless the property so assigned is adequate to indemnify the indorser against all possible loss by his contract of indorsement. Watkins v. Crouch, 5 Leigh 522.
Conveyance in Trust by Indorser to Secure His Contract of Indorsement. — Where an indorser of a negotiable instrument executes a deed of trust to a trustee as collateral security for his contract of indorsement, the property conveyed by the deed of trust may be subjected and sold, anditisnotincumbent upon the holder of the instrument to give the indorser notice of protest of the instrument in order to subject this property. Cardwell v. Allan, 33 Gratt. 160.
Knowledge of Insolvency by Drawee Not Sufficient Excuse. — Knowledge of the insolvency of a drawee of a bill, or of the fact that the bill will be dishonored, does not excuse the holder from notifying the drawer of protest for nonpayment. Until the drawer or indorser receives such notice, he has no reason to conclude that resort will be had to him. Brown v. Ferguson, 4 Leigh 37.
Promise to Accept Counter Draft No Excuse. — A promise of a drawer of a bill of exchange to accept a bill to be drawn on him by the drawees, to enable him to take up his bill, has not the effect of a waiver of notice to such drawer. Brown v. Ferguson, 4 Leigh 37.
*303Where Drawer Has No Reasonable Grounds to Draw. —Where the drawer of a bill o f exchange has no reasonable grounds to draw he is not entitled to notice of the dishonor of the instrument. But it is not necessary that the bill should be drawn on funds in order to entitle the drawer to notice. Thus, where the drawer had no funds with the drawee, he was held entitled to notice of dishonor where the previous course of dealing between the parties furnished reasonable ground to draw. Thornburg v. Emmons, 23 W. Va. 325.
Fraudulent Indorser Is Not Entitled to Notice. — An indorser, who unites with the drawer to deceive the holder, by representing a bill as one that will probably be accepted, with a knowledge that it will not, is guilty of a fraud, which deprives him of the right to insist upon notice. Therefore, an indorser who indorsed a bill of exchange for the accommodation of the drawer, for the purpose of procuring a discount at the bank, and who had no expectation that the bill would be paid by the drawee, was held not entitled to notice. Farmers’ Bank v. Vanmeter, 4 Rand. 553.
War a Temporary Excuse. — -A state of war which intercepts intercourse by the ordinary and usual course of mail between the holder and the indorser of a note, excuses the holder from giving notice of dishonor so long as such interruption continues: but due diligence on the part of the holder requires that he should forward notice to the indorser as soon as interruption ceases. Farmers’ Bank v. Gunnell, 26 Gratt. 131; McVeigh v. Bank of Old Dom., 26 Gratt. 785; Tardy v. Boyd, 26 Gratt. 631.
Law Dispensing with Notice Unconstitutional as to Existing Instruments. — The ordinance of Virginia convention passed June 24, 1861. which provided that in cases specified the parties to negotiable instruments in such cities and towns (as before specified), shall remain bound after the maturity of such instruments, without demand, protest or notice as if the requirements of the law in that respect had been complied with, was as to instruments made and discounted before its passage, in violation of the constitution of the United States, which declares that “no state shall pass any law impairing the obligation of the contract, ” Farmers’ Bank v. Gunnell, 26 Gratt. 131.
Verdict of Jury Should Find Exc&ses. — Upon the question whether or not the drawer has received or is entitled to notice of the dishonor of the instrument, a special verdict of the jury in such case ought to find the causes which would excuse the delay in giving notice, if any such existed. Brown v. Ferguson, 4 Leigh 37.
2. OF NONNEGOTIABLE PAPER.
Must Bring Suit against Maker Generally. — The general rule is that due diligence must be used by the assignee, in bringing suit against the maker, before the assignor can be sued. But there are many cases in which no suit need be brought against the maker, as where the note was a forgery, and the assignor has received the money from the assignee, or where the assignor practiced a fraud upon the assignee, or where exchange notes were given between the maker and the assignor, as a consideration for each other, and the note given by the assignor has never been paid by him nor sued upon. Therein no obligation on the assignee to pursue the bail of the maker before suing his assignor. Caton v. Lenox, 5 Rand. 31; Lee v. Love, 1 Call 497.
Holder Cannot Set Off a Claim against Maker. — -So in Mandeville v. Patton, 3 Call 9, it was held that the assignee of a promissory note negotiable at the bank of Alexandria, could not offer it as set-off, to a suit brought against him by the assignor, upon a note in writing to deliver to the plaintiff goods and groceries to a certain amount, because in such case the assignee must first proceed against the maker.
Must Sue the Maker within a Reasonable Time. — And in Thompson v. Govan, 9 Gratt. 695, an assignee of a note who had delayed suing the maker for two years, was not allowed to recover the amount of the note in an action against the assignor, in the absence of proof of the maker’s insolvency at the time, or shortly after the note fell due.
Must Bring a Valid Suit against Maker. — And it is not sufficient exercise of due diligence on the part of the assignee of a promissory note to bring a suit against the maker, which fails because of informality in the proceedings; but he must bring a sufficient suit, before he can charge the assignor. Bronaugh v. Scott, 5 Call 78.
Record of Suit against the flaker Must Be Certain. In order for the holder of a promissory note to sue the assignor he must show that he has*used due diligence to collect the note from the maker. Where the evidence of the holder’s due diligence consists of the record of a suit brought against the maker, this record must be certain to every intent. Hooe v. Wilson, 5 Call 61. In this case an assignee in blank of the payee of the promissory note indorsed it in blank to a firm under a special agreement. One of the partners filled up the blank indorsement to himself, brought suit against the maker, obtained judgment, and issued a JL fa. which was returned, “no effects.” This partner then brought suit against the assignor. It was held, that the record of the suit against the maker was not proof of a suit upon the note assigned, by the defendant, because that record stated an assignment to that partner individually, while in fact the assignment was made to the firm, and the partner individually had no title to the note.
Exceptions to Necessity of Suing Maker. — As a general rule it is necessary for the holder of a promissory note to sue the maker before he can proceed against the indorser; but to this rule there are exceptions. One of the instances in which it is not necessary to proceed against the maker is where he has been discharged in bankruptcy under the bankrupt laws of the United States, or the insolvent laws of a state, or that the drawer was actually insolvent, so that a suit against him would have been wholly unavailing. Brown v. Ross. 6 Munf. 391.
The object of the suit by the assignee against the maker of a note, is to ascertain his ability to may the money. If his inability can be ascertained, to every reasonable certainty, by any other means, there is no necessity of a suit against him, and recourse may be had, in the first instance, under such circumstances, to the assignor. Therefore, where the maker of a note was notoriously insolvent. the assignee was allowed to proceed against the assignor in the first instance. Saunders v. Marshall, 4 H. & M. 455. See Caton v. Lenox, 5 Rand. 31.
And where exchange notes have been given between the maker and assignor of a note as a consideration for each other, and the note given by the assignor has never been paid by him, nor sued upon, the assignee need not bring suit against the maker in order to charge the assignor. Catón v. Lenox, 5 Rand. 31.
Assignee Must Proceed against Acceptor. — a party *304having a claim for a debtin suit, assigned that claim for a valuable consideration, and wrote á letter to his attorney entrusted to prosecute and collect the claim, informing him of the assignment, and requiring him to pay the money when collected, to the assignee. The attorney accepted the order, payable when collected. He afterwards collected the money, and became insolvent before paying it over to the assignee. It was held, that the assignor and drawer were not liable to the assignee, unless he had used due diligence to recover the money from the acceptor of the order, and given the assignor and drawer notice of the acceptor’s failure to pay. Wood v. Duval, 9 Leigh 6.
Burden of Proving Due Diligence. — In an action by an assignee against the assignor of a promissory note, the plaintiff, in order to maintain his action, must show that the maker was insolvent at the time the note was made, or fell due, or that he has used due diligence to recover from the maker, and failed. Drane v. Scholfield, 6 Leigh 386. In this case the maker of the note had removed to an adjoining state. Whether or not the assignee was hound to pursue the maker in the adjoining state in order to entitle him to proceed against the assignor, was left undecided. But It was held, that whether he was bound to pursue the maker or not, he might elect to do so; and as he had made his election to do so, and failed to commence or prosecute his suit against the maker, he had no recourse against the assignor. See monographic nole on “Assignments” for a full discussion of this subject.
Statute of Limitations. — Action upon a note is barred by the statute of limitations'by the lapse of five years after date of the note, before the bringing of the action. Watson v. Hurt, 6 Gratt. 633.
VII. LIABILITIES OF PARTIES.
1. THE MAKER.
Maker’s Contract Is Absolute. — The contract of a maker of a negotiable note Is an absolute one. His contract is to pay at all events and he is liable for the amount of the note without presentment, demand, protest, or notice thereof. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888; Hansbrough v. Gray, 3 Gratt. 356; Hays v. Northwestern Bank, 9 Gratt. 127; Watkins v. Crouch, 5 Leigh 522.
Note in Singular Number Signed by Two Is Joint and Several. — A promissory note in the singular number, but signed and sealed by two persons, is joint and several. Holman v. Gilliam, 6 Rand. 38.
Haker Conclusively Presumed to Know His Own Signature. — If one pays a forged note purporting to be made by him he cannot recover back the amount. Johnston v. Com. Bank, 27 W. Va. 343.
Surety in a Note Treated as Principal. — Where one of two or more makers of a joint and several promissory note is surety, he is liable to the payee as principal; and except in special cases provided by statute, the holder of such note has the same legal rights against such surety as he has against the principal debtor. Merchants’ Nat. Bank v. Good, 21 W. Va. 455.
Where Maker Leaves the State Statute of Limitations Stops Running. — And where a party makes a negotiable note payable in one state and then leaves that state and goes to another state and continues to reside there, he will be considered as a person who has obstructed the payee in the prosecution of his right of action on such note during his absence from the state, and, under the statute, the time which he has been absent from the state is to be excepted from the operation of the statute of limitations. Hefflebower v. Detrick, 27 W. Va. 16.
Survivor of Joint Makers Alone Liable under Statute. —The surviving obligor in a joint note, made before the act of 1786 (Rev. Code, p. 31), is alone liable to an action at law; nor can the note be set up in equity against the representatives of the deceased obligor, but on the ground of a moral obligation antecedently existing on his part to pay the money. Chandler v. Hill, 2 H. & M. 124.
Liability of Maker for Interest. — In an action in Virginia upon a note made in Maryland, on which more than six per cent, interest was charged, the plaintiff may recover the principal and six per cent, interest, and where a separate note was given for the excess of interest, which is still in the hands of the plaintiff unpaid, he will be permitted tore-cover the principal of the note sued on and six per cent, interest thereon. Fant v. Miller, 17 Gratt. 47.
2. THE DRAWER OP A CHECK. — The liability of the drawer of a check is different from that of the maker of a note, in that it is not an absolute liability, and it is different from that of the drawer of a bill of exchange in that it is more binding. The drawer of a check is absolutely liable to pay the check unless he is prejudiced by the laches of the holder, and this is the only peculiarity of the liability of the drawer of the check. Bell v. Alexander, 21 Gratt. 1; Purcell v. Allemong, 22 Gratt. 739; Cox v. Boone, 8 W. Va. 510; Devendorf v. W. Va. Oil, etc., Co., 17 W. Va. 174; Compton v. Gilman, 19 W. Va. 312. See ante, "Notice — Necessity of Notice.”
3. INDORSEES.
Indorsee’s Contract Is Conditional. — The contract of an indorser of a negotiable note is conditional. His undertaking is that if, upon due diligence having been used against the maker, the money is not paid, he will become liable for it. The due diligence is a condition precedent to a right of recovery against him. Being only collaterally and conditionally responsible, the Indorser must he dealt with with the utmost strictness. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. Rep. 888.
Indorsement Both a Transfer and a Contract. — An indorsement on a note, bill, or draft is not merely a transfer, but is a fresh and substantive contract, embodying all the terms of the instrument indorsed, and binding the indorser, though the instrument be void. Nichols v. Porter, 2 W. Va. 13.
Indorser Considered as Drawing a New Bill. — The indorser of the note is not only considered as warranting the note, but as drawing a new bill; and thereby rendering himself immediately liable to every indorsee to whom it may, for a valuable consideration, be assigned. Every subsequent indorser is considered in the same light: and the bona fide owner of the note, if he does not receive payment of the maker, may, at his election, bring suit against him, or against any indorser, however remote. If he recovers against a remote indorser, snch indorser has the same remedy against the maker of the note, or any prior indorser, as the owner of the note had against him. The currency and credit of such notes is aided by such a construction; for then, the more indorsers, the more security. Dunlop v. Harris, 5 Call 16.
Liability as between Immediate Parties Prima Facie Merely. — But as between the immediate parties, or as to any party having notice, the liability of one whose name isindorsed on negotiable paper Is.arana facie merely, and he may show any facts and circumstances, as against his immediate indorsee, *305which would constitute a good defence to any other written contract. Hence, he may prove that the party whose name is indorsed below him, really indorsed before him, in point of time. Quarrier v. Quarrier, 36 W. Va. 310, 15 S. E. Rep. 154; Faulkner v. Thomas (W. Va.), 35 S. E. Rep. 915.
Order of Liability Is Successive Not Joint, — When several persons indorse a bill or note in succession, the legal effect is to subject them, as to each other, in the order they indorse. The indorsement imports a several and successive, not a joint, obligation, whether the indorsement be made for accommodation, or for value received, unless there be an agreement aliunde different from that evidenced by the indorsements. When the successive indorsements are for accommodation of other parties, the indorsers for accommodation may make an agreement to be jointly and equally bound, but whoever asserts such agreement must prove it. In cases, therefore, in which no such agreement is proved, the indorsers are not bound to contribution amongst themselves, but each and all are liable to those who succeed them. 1 Daniel, Neg. Inst. § 703; Willis v. Willis, 42 W. Va. 522. 26 S. E. Rep. 515; Bank of U. S. v. Beirne. 1 Gratt. 234; Nat. Bank v. Bates, 20 W. Va. 210; Stovall v. Border Grange Bank, 78 Va. 188.
Joint Indorsement Does Not Always Import Joint Liability. — But the name of the payee of a bill cannot be endorsed thereon jointly with that of other persons, so as to make them all jointly liable as indorsers; and, therefore, a power authorizing an attorney to indorse the names of the principals jointly on a bill is not complied with by making the bill payable to one of the principals and indorsing upon the same the names of all the principals. Bank of U. S. v. Beirne, 1 Gratt. 539.
Positions of Indorsers’ Names Changed without Con» sent. — The third indorser indorsed a note on the faith of the solvency of a prior indorser. On the renewal of the note, the order of the endorsements were changed, without the consent of this third indorser, who for the convenience of renewing the note, had left his blank indorsement with the makers. It was held, that a court of equity would grant him relief as against the indorser who should have preceded him. Slagle v. Rust. 4 Gratt. 274.
Time of Indorsement as Affecting Indorsers’ Liability. —The first indorser of a note in point of time, is not, of course, first responsible. If the payee of a note writes his name over that of a person who indorsed the same in blank before delivery, but did so only on the ground of the payee’s responsibility as first indorser, the payee will be liable as such in point of contract, though second in point of time. Chalmers v. McMurdo, 5 Munf. 252, 7 Am. Dec. 684.
Agreements between Indorsers as to Their Ultimate Liability — It is not a fraud in the holder of a bill of exchange, to make an arrangement with one of the indorsers, by which it is agreed that the whole burden shall be thrown upon the other indorsers, and that the indorser first mentioned is to be liable only in case they should be unable to pay., Farmers’ Bank v. Vanmeter, 4 Rand. 553.
Parol Evidence Inadmissible to Vary the Liability of the Indorser. --In an action by an indorsee against his immediate indorser, upon a protested bill of exchange. parol evidence of an agreement made between them, at the time of the indorsement, which would vary the legal liability of the indorser under his indorsement, is inadmissible. Woodward v. Foster, 18 Gratt. 200.
Effect of Indorsement of a Void Instrument. — Although a bill or note be declared void by statute, so that the drawer or maker is discharged from liability to any subsequent holder, yet any person who indorses such paper to a dona fide holder for value is liable on his indorsement, notwithstanding the invalidity of the instrument; because by indorsing he represents that the paper is genuine, and warrants that it will be paid. Moffett v. Bickle, 21 Gratt. 280; Nichols v. Porter, 2 W. Va. 13.
Transfer of Note after Protest Does Not Affect Indorser’s Liability.- -The liability of an indorser of negotiable paper is not affected by the fact of its transfer to a party responsible therefor after it has been protested for nonpayment. Nichols v. Porter, 2 W. Va. 13.
Law of Place of Transfer Governs Transfer. — The assignor of an instrument is not liable as an indorser, if the paper is nonnegotiable according to the laws of the state where it was transferred, although it may have been negotiable under the laws of the place where it was made. Nichols v. Porter, 2 W. Va. 13.
4. IRREGULAR INDORSERS.
Irregular Indorser Defined. - An irregular or anomalous indorser is a person, not the payee in the instrument, who places his name upon the back of it before it is delivered to the payee. He is not an indorser in the true sense, as the object of placing his name upon the paper is not to effect a transfer of it, but is generally intended to operate as additional security for the paper. Frank v. Lilienfeld, 33 Gratt. 377; Miller v. Clendenin, 42 W. Va. 416, 26 S. E. Rep. 512.
Relation to the Instrument May Be Shown by Ex» trinsic Evidence.' — When a negotiable promissory note made payable to a particular person or order, is first indorsed by a third person, and then delivered to the payee, such indorser is prima facie an original promisor or guarantor, as the payee may elect, or the payee may by indorsing his name above that of such third person, and transferring the note, make him a second indorser in the commercial sense. But the true nature of the transaction, and the understanding of the parties to it at the time, may be shown by parol proof, and such proof may destroy this right of election by the payee, and the third person backing such note maybe held liable only as an original promisor, or as a guarantor, or as an indorser, according to the nature of the transaction, and the original understanding of the parties to it. If it is shown by evidence that such third person signed his name on the back of such a note at the time it was made as security for the maker and for his accommodation, to give him credit with the payee, such proof does not alter the right of the payee to hold him bound as original promisor, or avS guarantor, or as indorser, as he may elect, but strengthens his prima facie right to elect; such option may be exercised at any time by the payee, and so long as he holds the note, may be changed at his pleasure, even after the institution of a suit by him against such third person. If it be shown that the understanding between such third person and the payee at the time of the transaction, was that such third person should be bound only collaterally, such understanding will destroy the right which the payee would have otherwise had, of electing to hold him bound as original promisor. Watson v. Hurt, 6 Gratt. 633; Orrick v. Colston, 7 Gratt. 189; Kearnes v. Montgomery, 4 W. Va. 29; Burton v. Hansford. 10 W. Va. 470; Long v. Campbell, 37 W. Va. 665. 17 S. E. *306Rep. 167; Roanoke, etc., Co. v. Watkins, 41W. Va. 787, 24 S. E. Rep. 612; Miller v. Clendenin, 42 W. Va. 416, 26 S. E. Rep. 512.
And this rule applies to irregular indorsers of nonnegotiable paper, as well as to irregular indorsers of negotiable paper. Watson v. Hurt, 6 Gratt. 633; Orrick v. Colston, 7 Gratt. 189; Kearnes v. Montgomery, 4 W. Va. 29.
Extrinsic Evidence to Show Intention of Parties. — So where it appears that it was the intention of a party to be bound as an ordinary indorser when he placed his name upon the instrument, his liability is not affected because of the peculiar position of his name upon the paper, but he will be held to the liability which he intended to assume. Frank v. Lilienfeld, 33 Gratt. 377.
Indorsement Hade for , Additional Security. — So in Call v. Scott, 4 Call 402, a party who placed his name upon a bill of exchange as an irregular indorser was allowed to recover the amount of the bill from the drawer, upon proving that he only endorsed the note as security.
Extrinsic Evidence Inadmissible to Change the Contract. — A blank indorsement by a person who is not the payee of a note, and who is not a regular indorsee, imports a guarantee, and this guarantee cannot be altered by proof of a parol agreement, at the time of the execution of the note, that the note was not to be paid until the happening of a contingent future event. Watson v. Hurt, 6 Gratt. 633.
5. ASSIGNORS. — An assignor of nonnegotiable paper is not liable for its payment, unless it be shown that the maker was insolvent at the time the note fell due, or at the time of its assignment, if assigned after it became due, or that due diligence has been used against the maker without recovering the money, or by the use of due diligence the money could not have been made. Nichols v. Porter, 2 W. Va. 18. The liability of the assignor will be found fully treated in a monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
6. TRANSFERRER WITHOUT INDORSEMENT. —One who, for value transfers a negotiable note without an indorsement, thereby guarantees the genuineness of the instrument, but not the solvency of the parties thereto. In such case, it is immaterial whether the person making the transfer received the consideration for his own use, or for the use of another, unless he is acting as agent, and discloses not only his agency, but the name of the principal for whom he is acting. Lyons v. Miller, 6 Gratt. 427, 52 Am. Dec. 129. '
7. ACCOMMODATION PARTIES.
Accommodation Paper Not Binding until Negotiation. —Although a negotiable note on its face imports a debt due from the maker to the payee, and the indorsement imports a debt from the first indorser to the second, yet an accommodation note is not available as a security for money, until It is issued or negotiated to some real holder for valuable consideration. Until such note is so negotiated, it is a mere blank piece of paper, in no manner binding on the makers or indorsers. Whitworth v. Adams, 5 Rand. 342; May v. Boisseau, 8 Leigh 193. An indorser on an accommodation note has a right to retract his indorsement at any time before the negotiation of the note to a bona fide holder for value. And his right to retract such indorsement is not affected by a conveyance of property to him by the maker of the note to indemnify him against his indorsement. May v. Boisseau. 8 Leigh 192; Berkeley v. Tinsley, 88 Va. 1001, 14 S. E. Rep. 842.
And although the paper has been pledged for a certain sum, an accommodation indorser, while of course remaining liable for the amount advanced, may revoke his indorsement and prevent the further discount of the instrument. Berkeley v. Tinsley, 88 Va. 1001, 14 S. E. Rep. 842.
Accommodation Indorsers Liable Successively in Absence of Contract. —It is the established rule that the parties to ordinary commercial paper negotiated for value in the regular course of business are liable to each other in succession as their names appear upon the instrument. In the absence of special agreement, the same rule applies to successive accommodation parties, and a subsequent accommodation indorser who has been compelled to meet the obligation may maintain an action upon the instrument against any prior accommodation party and recover the whole amount paid. Robertson v. Williams, 5 Munf. 381; United States Bank v. Beirne, 1 Gratt. 265; Hogue v. Davis, 8 Gratt. 4.
Where several indorsers of negotiable paper have indorsed it for the accommodation of the maker, they are responsible in the order of their indorsements, unless there has been an agreement among them to be jointly and equally bound ; and the burden of proving such an agreement is upon the prior indorser who seeks the benefit of it. Hogue v. Davis, 8 Gratt. 4.
Order of Liability Changed by Agreement. — Where an accommodation indorser or security of a note, on which judgment has been obtained, purchases real estate from the principal debtor who retained the lien for the purchase price, and it is a matter of contract between them, at the time of the sale, that the indorser or surety shall assume the. payment of the judgment, the relation of the parties inter se is changed. -The indorser or surety becomes the real debtor, and the principal debtor the surety ; and the latter has the right to require that the lien of the judgment shall be enforced against the real debtor for his exoneration. Rhea v. Preston, 75 Va. 757.
Indorser for Accommodation Is a Surety. — .All indorser of a negotiable note who indorses for the accommodation of the maker, is a surety of the maker, and if time of payment is extended by the holder to the maker by a binding agreement without the consent of such indorser, the indorser is thereby released. State Sav. Bank v. Baker, 93 Va. 510, 25 S. E. Rep. 550; Dey v. Martin, 78 Va. 1.
What Is Not an Accommodation Note —in a contract for building a house it was agreed between the contractor and the employer, that the house should be paid for in notes of the employer, to be delivered to the contractor as the work progressed, and at times when a third party should say that the contractor had completed enough work to entitle him to the notes. The first note was properly issued. Before the contractor was entitled to the second note, it was delivered to him by the employer at the request of the contractor. This note though given to the contractor to accommodate him is not an accommodation note in the legal sense, but is a note founded upon a valuable consideration and is enforceable. Ould v. Myers, 23 Gratt. 383.
Right of Accommodation Indorser Who Pays after Protest —An accommodation indorser of a negotiable note who pays the note after protest, has only the right of a surety, to be fully indemnified for his payment on account of his principal. This indemnity is fully secured by the payment to him by the *307principal of the value paid by the surety. Burton v. Slaughter, 26 Gratt. 914.
V2H. DISCHARGE AND PAYMENT.
1. BY EXECUTION OF NEW NOTE.
Execution of New Note No Payment unless So Intended —The general rule is that the debtor’s own note does not operate as the payment of an antecedent note unless so intended by the parties. In the absence of such intention, express or implied, the note is treated as a conditional payment merely. Hopkins v. Detwiler, 25 W. Va. 734; Lazier v. Nevin, 3 W. Va. 622; Miller v. Miller, 8 W. Va. 550; Poole v. Rice, 9 W. Va. 73; Dunlap v. Shanklin. 10 W. Va. 662; Bantz v. Basnett, 12 W. Va. 772; Sayre v. King, 17 W. Va. 562; Bank v. Good, 21 W. Va. 455; Farmers’ Bank v. Mut. etc., Soc., 4 Leigh 88; Moses v. Trice, 21 Gratt. 556; Lewis v. Davisson, 29 Gratt. 216; First Nat. Bank of Parkersburg v. Handley (W. Va. 1900), 37 S. E. Rep. 536; Morriss v. Harveys, 75 Va. 726; Hess v. Dille. 23 W. Va. 90; Taylor v. Bank of Alexandria, 5 Leigh 471.
Where the Debt Is Passed into Judgment Same Rule Applies — And if the note is passed into judgment, the same rule applies; the new note is considered simply as a conditional satisfaction of the judgment, and upon the dishonor of the former, the latter revives and may be enforced at law or in equity. When the parties provide for the extinguishment of the judgment, it maybe fairly presumed that they contemplate the extinguishment of the debt upon which it is founded. Where a substituted note was accepted in satisfaction of a judgment the court presumed in the absence of evidence to the contrary that it was accepted in satisfaction of the debt represented by the judgment. Morriss v. Harveys, 75 Va. 726; Feamster v. Withrow, 12 W. Va. 611.
Several Small Notes Given for a Large One —And where several small promissory notes were given for a large one. they were held to be no satisfaction for the larger one. unless paid, and suit was allowed to be maintained on tne larger one. McGuire v. Gadsby, 3 Call 234.
Where the New Note Is That of a Stranger. — But where the new note is that of a third party not previously bound for the debt the taking of such new note and the surrender of the old, will t)e treated prima facie as a discharge of the old note, and a release of the maker thereof from personal liability. But where the debt is a lien on land of which the maker of the new note has become the purchaser and as a part of the consideration therefor assumed to pay said debt, such new note given by such purchaser and surrender of the old note will not extinguish the lien on the land or he regarded as a payment of the debt, hut will discharge the old note and operate prima facie as a release of the makers of the old note from responsibility of the old debt. Hess v. Dille, 23 W. Va. 90.
Part Payment and Execution of New Note for Residue. — So where a part of a debt is paid before a note becomes due, and a new note is executed by the debtor for the residue, and the express agreement made between the parties that the old note shall he surrendered, such agreement is founded upon a valuable consideration and extinguishes the old note, and no suit can be brought thereon. Bantz v. Basnett. 12 W. Va. 772.
Note Made by New Parties and Agreement to Surrender Old Note. — In Dages v. Lee, 20 W. Va. 534, the acceptance by a creditor, of a note of a partner and his wife with an express agreement to surrender the evidence of the partnership debt, was held to operate as a discharge of the partnership debt. And the neglect of the creditor to surrender the evidence of the partnership debt according to his agreement, did not constitute a failure of consideration of the note, or release the makers.
Where There Is an Agreement to Accept the Note in Payment. — But, of course, where there is an express agreement between the parties to accept the new note in full satisfaction of the old this agreement will control Merchants’ Nat. Bank v. Good, 21 W. Va. 455; Hopkins v. Detwiler, 25 W. Va. 734; Morriss v. Harveys, 75 Va. 726; First Nat. Bank of Parkersburg v. Handley (W. Va. 1900), 37 S. E. Rep. 536; Poole v. Rice, 9 W. Va. 73; Dunlap v. Shanklin, 10 W. Va. 662; Hess v. Dille, 23 W. Va. 90; Moses v. Trice, 21 Gratt. 556.
Agreement to Accept in Pull Satisfaction Procured by Fraud. — But whether a note is that of one previously hound, or of a stranger, it will not be regarded as a n absolute payment or extinguishment of the precedent debt, even when so expressly received, ü the agreement to so accept it was procured by fraudulent concealments and misrepresentations. Poole v. Rice, 9 W. Va. 73; Merchants’ Nat. Bank v. Good, 21 W. Va. 455.
Surrender of Old Note Creates No Presumption of Payment. — And the fact that the old note is surrendered in such case, does not of itself raise a presumption of an agreement to accept the new note in full satisfaction of the old, and especially is this true where the creditor would thereby lose some security which he held for the debt. Hess v. Dille, 23 W. Va. 90; Merchants’ Nat. Bank v. Good, 21 W. Va. 455.
Note Secured by a Mortgage or Trust Deed.- The same principle is applicable in case of notes secured by a mortgage. Here no change in the form of the instrument which evidences the debt will affect the mortgage. Nothing short of payment of the debt will discharge the mortgage. Hopkins v. Detwiler, 25 W. Va. 734.
Execution oí Consolidated Note for Individual Notes. — Where stockholders of a corporation borrow money for the purposes of the corporation and execute their individual notes for the amount borrowed, upon which they appear indifferently as makers and indorsers, and make a verbal agreement between themselves that should the corporation fail to pay the debt they should share the loss ratably, and subsequently take up these individual notes and execute a consolidated note for the whole amount the execution of the consolidated note effects no merger of the parol agreement, and this agreement may still be enforced between the parties. The execution of the consolidated note operates not only as a renewal of the obligation to the creditor, but impliedly as a renewal and continuance of the verbal agreement between the makers and indorsers, modified so far only as to make it correspond with the date and terms of the new note. Kimmins v. Oldham, 27 W. Va. 258.
Renewal Notes —Upon a sale of land it was agreed, that the vendor was to convey it to the purchaser when the first payment should be made. At the time of making the contract the purchaser made a note to a third party for the amount of the first payment. This party indorsed the note and delivered it to the vendor who had it discounted, When the note matured the third party representeto the vendor that the purchaser had gone to Cincinnati for money to pay the note, and could not *308get back in time to meet the payment, and that he wanted to renew the note. A new note was accordingly made with the vendor as indorser, and by it the first note was taken up. Upon the maturity of the note the vendor was compelled to take it up. It was held, that the first note was not received by the vendor as a payment on the contract, and that the renewal by the third party did not discharge the purchaser from liability for the first payment. Stephenson v. Rice, 12 W. Va. 575.
Judgment Note as Additional Security — Where a judgment note is given as an additional security to an original promissory note there is no merger. The party claiming the judgment note as collateral may show such fact by parol evidence. Witz v. Fite, 91 Va. 446, 22 S. E. Rep. 171. In this case a plea that a j udgment note was executed in satisfaction of a prior promissory note was held defective as it did not allege that it was.accepted in satisfaction of such note. In no case will a note be discharged by the execution of an instrument of a higher nature, unless the parties intended to effect a merger thereby. Bowles v. Elmore, 7 Gratt. 385.
Usurious Notes No Payment. — Where usurious notes are given for a valid pre-existing note these usurious notes do not cancel the valid note, but that remains still unsatisfied, the new notes being nugatory and void. In such case the creditor is.remitted to his original title thereto and remedy therefor. Parker v. Cousins, 2 Gratt. 372.
2. TO WHOM PAYMENT MAY BE MADE.
Note Deposited in Bank for Collection May Be Paid to Bank — If a note deposited for collection in a bank where it is made payable, is not paid at maturity, but being protested is permitted by the holder to remain in the bank, however long or for whatever motive he may permit it thus to remain there, it may, as a general rule, be safely paid to the bank by the debtor, provided he has not notice that the bank in fact has no authority to receive the money. Alley v. Rogers, 19 Gratt. 366.
Payment at Branch Bank. — The provision in the Code of Virginia, that, “though a bank had a branch * * * all its notes should be received in payment of debts to the bank, whether contracted at the parent bank, or a branch,” applied only while the debts remained due to the bank. When a negotiable promissory note discounted by the Farmers’ Bank of Virginia had been assigned by the bank to trustees, for the payment of antecedent debts, and the maker, having notice of the assignment, after-wards acquired notes of the bank, he could not, with these, pay his debt so assigned, or set them off against it. Farmers’ Bank v. Willis, 7 W. Va. 31.
Where notes were discounted at the Bank of the Old Dominion in Alexandria, payment of these notes made to a branch of that bank, in another town, in confederate money, under an act of assembly authorizing it, the branch not having the notes at the time, was held not to constitute a payment of the notes; though after the war the' bank took possession of all the assets of said branch, including the funds so paid. McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
Payment to Mother Bank. — The mother bank has a right to receive the payment of any debt due the branch, even though contracted with a branch bank, as a negotiable note discounted by a branch bank ; and the mother bank may authorize one of its own officers to receive payment of such a note or confirm the receipt of payment of such a note, if it had previously been done by such officer without express authority. Smith v. Lawson, 18 W. Va. 212.
Payment to Assignor of an Instrument Transferable by Delivery Invalid. — By the indorsement, or transfer by delivery when payable to bearer, of a negotiable note, though after maturity the legal title passes without notice to the maker, and therefore a payment to the assignor or transferrer, who no longer holds the legal title, is not a good payment, though the party making the paymenthad no notice of the assignment or transfer. Smith v. Lawson, 18 W. Va. 212.
Payment of an Overdue Note to Party Who Held It at Maturity. — Payment of an overdue note to one who held it at maturity, but who had transferred it after maturity, and before such payment, of which transfer the one making the payment had no notice, was held not to discharge the maker ; and it made no difference that a written assignment was made separate from the note, it having been previously indorsed by the payee, and being, therefore, transferable by delivery. Smith v. Lawson, 18 W. Va. 212.
Right of Bank to Set Off Deposits. — A joint note, signed by several parties, for $6,000, was presented to a bank for discount by the principal in the note. The bank discounted it for $4,000 only, and the cashier indorsed it “discounted for $4,000 only, and should be so read.” This was done without the knowledge of the sureties in the note. It was held that they were notwithstanding bound, the transaction being equivalent to a'discounting of the note for $6,000 and a repayment by the principal of $2,000 thereon ; and that its not being paid at maturity, general deposits made by the principal, after its maturity, could not without his directions so to apply them, be regarded as payments on this note. Merchants’, etc., Bk. v. Evans, 9 W. Va. 373.
Bank Not Required to Appropriate Deposits to Payment. — when a note of which the bank is the holder becomes due and payable and the bank has not sufficient funds to the credit of the maker to satisfy the note, it is not required to appropriate the deposit to the payment of the note, nor in such case is it required to appropriate subsequent deposits to its payment. Bacon v. Bacon, 94 Va. 686, 27 S. E. Rep. 576.
Deposit in Bank before Maturity Does Not Amount to Payment. — Defendant offered to pay his note to the plaintiff, but at the plaintiff’s request the note was renewed, upon the understanding that it should be deposited in bank for collection. Subsequently the defendant deposited in his own name the amount of the note in the bank, which was burned, with its contents, before the note had matured or been deposited. It was held, that the defendant was liable for the amount of the note. Moses v. Trice, 21 Gratt. 556.
3. IN WHAT CURRENCY PAYMENT MAY BE MADE.
Notes Made with Reference to Confederate Money as a Standard of Value. — During the late war, a firm being indebted to a bank by note, accepted the offer of a third party to take up their note at the bank. This party took up the note paying confederate money, which was the only money having any circulation in Virginia at that time. The firm executed their note to this party without mentioning the currency in which such note was to be paid. It was held that the note was payable in confederate money, as in the absence of stipulation to the contrary, it would be presumed that the parties con*309tracteü with reference to it. Ashby v. Porter, 26 Gratt. 455.
Upon a sale of land at public auction during the late war, nothing was said at the time of the sale as to the kind of money which should be paid for the land. The land was sold for its value estimated in confederate money as of that date, and the purchaser made a cash payment in that money, and gave his negotiable notes payable in one and two years, with a’ deed of trust to secure them. The vendor received payment of the first note when it became due, in the same money and sold the second note to a third party, who paid for it in the same currency. When this second note became due the maker tendered payment in confederate notes, which was refused. The sale was held to have been made with reference to confederate notes as a standard of value, and the purchaser of the note though a holder for value took it as it was held by the payee. Lohman v. Crouch, 19 Gratt. 331.
Promise to Pay a Sound Money Note in Depreciated Currency No Discharge. — But a perfectly valid debt evidenced by a negotiable note, and payable in sound currency, cannot be discharged by a mere promise without consideration on either side to pay in confederate currency; especially is this true, where the promise has not been performed and no attempt has been made to perform it. In such case an action may be brought on the note though it is in possession of the maker, it not having been surrendered with an intention to discharge it. Lewis v, Davisson, 29 Gratt. 216.
Acceptance of Payments in Depreciated Currency Does Not Amount to Ratification. — Upon a sale of land the purchaser paid one-fourth cash and gave his notes for the balance, payable in one, two and three years. Nothing was said at the time as to the currency in which the notes were to be paid; but the vendor accepted payment of the first two notes in confederate currency. The vendor was held not bound to take confederate currency for the last note; but was entitled to be paid in the legal money of the country. Omohundro v. Crump, 18 Gratt. 703.
Paper in Bank during War — Nonresident Owner. — As to notes deposited in bank for collection during the war, when confederate money was the only currency, they might have been properly paid in such money, at least without notice that other money was demanded. But in the case of a nonresident owner, the bank had no authority to receive payment of the note in depreciated currency, and such payment was void and the notes still remained due. Alley v. Rogers, 19 Gratt. 366.
4. EFFECT OF PAYMENT BY PARTICULAR PARTIES.
Payment by Parties Primarily Bound. — When one who is primarily bound for the payment of a note takes it up, it is a payment and extinguishment of the note, no matter what his intention may have been; but if a note be taken up by a stranger who is neither a party to the paper, nor in any way bound for its payment, it becomes a question of fact, to be determined upon the evidence in the case, whether the transaction constitutes a payment or a purchase. Cussen v. Brandt, 97 Va. 1, 32 S. E. Rep. 791.
Payment by Indorser. — Payment of a dishonored note by an indorser, does not extinguish its negotiability as to him and all parties liable thereon to him. But it discharges the liability of subsequent indorsers, whose liability will not be revived by his putting the note in circulation again. Davis v. Miller, 14 Gratt. 1; Cottrell v. Watkins, 89 Va. 801, 17 S. E. Rep. 328; Smith v. Lawson, 18 W. Va. 212.
Payment after Dishonor — And payment by the maker and indorser of a negotiable note, after it has been protested for nonpayment, taken up by the payee and transferred by him to his creditor as collateral security for a larger debt, such payment being made without knowledge of the transfer, is not a good defence to an action brought on the note by the transferee and holder against the maker. Davis v. Miller, 14 Gratt. 1.
Payment at Bank by Stranger — Payment of a note at a bank is either a sale or a discharge thereof. It cannot be a sale without the bank’s consent. Where the note is paid by a stranger bound for its payment at maturity, the note is thereby actually discharged, and cannot be reissued by him. so as to bind the parties thereto or to keep alive a trust deed executed to secure it, except with the knowledge and consent of those parties. Citizens’ Bk. v. Lay, 80 Va. 436.
5. TENDER OF PAYMENT. — Where an offer of payment of a note is made on condition that the holder will surrender collateral security and other liabilities, the offer is not a proper tender where the party making it has no right to make such a demand for the collateral, and. therefore, the tender does not stop interest on the note. Fidelity, etc.. Co. v. Engleby (Va. 1901), 37 S. E. Rep. 957.
6- DISCHARGE OF PARTIES.
Accommodation Maker.--The maker of an accommodation note is not discharged by the omission of the holder to enforce the collection thereof, until the payee, for whose accommodation the note was made, becomes insolvent, though the holder had looked to the payee for payment. Hansbrough v. Gray, 3 Gratt. 356.
Extension Releases Indorser unless He Has Waived His Rights. — Where the holder of a note extends time to the principal by a binding agreement without the consent of the indorser, however immaterial the extension may be, and even if it is to the advantage of the indorser, he is nevertheless discharged from liability on his indorsement unless he has waived his rights, because by the extension, the holder impairs the remedy which the indorser would have over against the principal to save himself from loss. Dey v. Martin, 78 Va. 1; Merchants’, etc., Bank v. Evans. 9 W. Va. 373. These cases overrule the case of Bennett v. Maule, Gilmer 305.
Suspension Hust Be Binding and for a Definite Time. —Butin order to discharge a surety by indulging the principal, it must be shown amongst other things, that there was an agreement or promise, upon valid consideration, to indulge the principal for some definite time, or at least for a time not altogether indefinite. The partial payment by the principal without an agreement to extend as to the balance is not suificient to discharge the surety, though the principal expected that in consequence of the payment he would not be immediately pressed for the balance, and in fact, he was not so pressed. Bacon v. Bacon, 94 Va. 686, 27 S. E. Rep. 576; Merchants’, etc., Bk. v. Evans. 9 W. Va. 373; Dey v. Martin, 78 Va. 1.
Extension of Time to Second Indorser Does Not Affect First.- — An indorser of anote is not released from liability by an agreement of the bolder with a subsequent indorser to extend the time of payment. Wright v. Independence Nat. Bk., 96 Va. 728, 32 S. E. Rep. 459.
*310Agreement to Extend upon Condition That the indorser Consents. — Where the holder of a note agrees to an extension of the time of the payment on condition that the indorser consents to the extension, the indorser is not thereby released. Winfree v. Bank, 97 Va. 83, 33 S. E. Rep. 375.
Extension of Time to Maker of Notes Delivered as Collateral. — where the negotiable note of two or more makers upon which there is an accommodation indorser, is delivered as collateral for the note of one of the makers, and both notes are given to secure the same debt, delivered at the same time, and as parts of the same transaction, all payments made on either note should go to the credit of both, and the extension of the time to the principal of the collateral note, by a binding agreement with the creditor, without the consent of the indorser, releases the indorser. State Sav. Bk. v. Baker, 93 Va. 510, 25 S. E. Rep. 550; Dey v. Martin, 78 Va. 1.
What Does Not Amount to a Discharge of Indorser.— After a holder of a note had delivered it to a bank as collateral security for a debt, he gave a plaintiff an order entitling him to the note when the debt was paid. Pending an action by the bank on the note the debt was paid, and the action was dismissed, and subsequently the note was delivered to the plaintiff pursuant to the said order. It was held, that the dismissal was not a retraxit precluding the plaintiff, who was not a party, from subsequently recovering from an indorser who was a party, and acquiesced in the dismissal; nor did the dismissal discharge the indorser because it extended time to the maker. Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476.
7. EQUITIES ARISING UPON PAYMENT BY PARTIES SECONDARILY LIABLE.
a. Contribution.
Contribution between Several Accommodation Indorsers. — Where several indorsements are made for the accommodation of the-drawer, one indorser has no right to contribution against the other indorsers unless there is a stipulation to that effect. Farmers’ Bank v. Vanmeter, 4 Rand. 553.
But when successive indorsers.are indorsed for the accommodation of the maker, though at different times and without mutual agreement, they are co-sureties and in equity liable to contribution. Stovall v. Border Grange Bank, 78 Va. 188.
Contribution between Cosureties. — A joint and several single bill was executed in the country by a principal and seven sureties, to enable the principal to borrow money from a bank. The principal upon coming to town and finding that the rules of the bank required a town surety, made application to a citizen to beccime such surety. This citizen having adopted a rule not to put his name on bank paper for any purpose, but being willing to accommodate the principal, applied to a friend to become bound on the paper, with an assurance that if the principal did not pay it off when it became due, he would pay it off for him. The friend, upon this assurance, put his name on the paper as co-obligor with the other sureties, without their knowledge. Upon the bill becoming due the principal made default in the payment, and it was paid off by the citizen. Upon a suit in equity brought by this citizen for contribution against the other sureties, it was held that this citizen was to be considered one of the eight sureties, having become such in the name of his friend, and that he was entitled to contribution from all except that friend. Stout v. Vause, 1 Rob. 169.
Nearly a month after the protest of a negotiable note on which two makers were bound, one of the makers for the purpose of paying the note, executed his two negotiable notes, dated on the day of their execution, and with one exception indorsed by new indorsers, and had the same discounted and the proceeds placed to his personal credit in bank. Out of the money thus obtained he paid the original note by his individual check, and the note was marked paid and delivered to him, and he assigned the same to an indorser on one of the new notes. This was held not a renewal of the first note, but an independent transaction, and the assignee of that note was entitled to demand of the other joint maker of it the payment of one-half thereof for the sole benefit of such assignee, and to the exclusion of the other indorsers of the new notes. Conrad v. Smith, 91 Va. 292, 21 S. E. Rep. 501.
Payment by Trustee after Claim Is Barred by Statute. — Where the trustee of one of two joint makers of notes and due bills pays the indebtedness after it had become barred by the statute of limitations, he cannot enforce contribution by the estate of the other joint maker. Turner v. Thom, 89 Va. 745, 17 S. E. Rep. 323.
b. Subrogation.
Indorser Paying a Note Subrogated to Holder’s Rights. — An accommodation indorser paying off a judgment against himself and the maker of a protested negotiable note is entitled to be subrogated to all the rights of the holder! He is under no obligation to appeal from the judgment, as he could not know that relief could be thus obtained. The law imposes no such unreasonable burden upon a surety. Bank of Old Dominion v. Allen, 76 Va. 200.
Indorser Stands in Holder’s Shoes. — And when an indorser pays off the debt, evidenced by the instrument, he has a right to proceed at once against the prior parties to the instrument to collect what he has so paid, and to enforce all the equities of the holder. But if the holder has suspended his own right to proceed, the indorser, who stands in his shoes cannot proceed, because of such suspension; the rights of the indorser being thus impaired by the holder, it operates as an exoneration of the indorser. Shields v. Reynolds, 9 W. Va. 483.
Surety Subrogated to Principal’s Rights. — In an action upon a promissory note, a second indorser having given an injunction bond and his surety in that bond having been compelled to pay the note, this surety was held to be subrogated to the right of the second indorser and was allowed to recover from the first indorser. Chrisman v. Harman, 29 Gratt. 494.
Surety May Enforce principal’s Liens. — And a surety whose principal is dead, may enforce for his exoneration any lien of the creditor on the estate of his principal, and may bring any suit in equity which the creditor can bring, for a settlement of the administration account on the estate of the deceased, and for the administration of the assets, whether legal or equitable; but the creditor must be a party that he may receive the money when it is recovered. Stephenson v. Taverners, 9 Gratt. 399.
And a surety, whose principal is dead, may file a bill guia timet against the creditor and the executor of the debtor, to compel the latter to pay the debt so as to exonerate the surety from the responsibility. Stephenson v. Taverners, 9 Gratt. 399.
Judgment against Maker Kept Alive for Indorser’s Benefit. — At different terms separate judgments were had against the maker and indorser of a negotiable note. On the judgment against the indorser, a judgment was obtained in the state of Illinois, *311which judgment was satisfied by the indorser. This satisfaction of the Illinois judgment did not extinguish the lien of the judgment against the maker, and as soon as the indorser paid it, he and his assignees were entitled to be subrogated to the lien of that judgment. Bank of Old Dominion v. Allen, 76 Va. 200.
Subrogation Cannot Create a Right Not Already Existing. — Where the first indorser on a note is indemnified against loss thereon by a deed of trust, but becomes discharged from his liability on the note by reason of want of notice of the dishonor of it, the holder cannot by substitution to his rights obtain the benefit of the property conveyed in trust to indemnify the indorser, inasmuch as the indorser has not been injured. Bank of Virginia v. Boisseau, 12 Leigh 387.
Where an accommodation indorser, who is indemnified by the maker of the note by a deed of trust, is discharged from his liability on the note by the laches of the holder, sucb holder can be subrogated only to the rights of the indorser; and the indorser having sustained no damage, and, therefore, having no claim on the trust fund, the holder can have none. Hopewell v. Cumberland Bank, 10 Leigh 206.
Breach of Covenant by Haker — Right of Indorsers against His Heirs. — The maker of a note conveyed land to trustees as security for the note, and to indemnify his accommodation indorsers thereon, and therein covenanted, for himself and his heirs, with the trustees and the holder of the note, that he was possessed of the absolute estate in the land, and that he would warrant and defend the same against all persons. The land being afterwards sold under a prior deed of trust after the grantee’s death, it vras held that the indorsers having paid the note were entitled to come into equity for satisfaction out of the real assets in the hands of the heirs, to the extent of the damages accruing from such breach of covenant. Haffey v. Birchetts, 11 Leigh 83.
IX. ACTIONS.
1. WHO MAY BRING ACTION.
Beneficial Owner of Instrument Transferrable by Delivery. — The beneficial owner of a negotiable instrument, which is payable to bearer or indorsed in blank, may institute a suit thereon in any court of law, in the name of any one who will allow his name to be used for that purpose; and where the defendant has no legal or equitable defence to the instrument as against the real owner thereof, he cannot be permitted to show that the nominal plaintiff, in whose name the suit is brought, is not the real party in interest. Bank of Spencer v. Simmons, 43 W. Va. 79, 27 S. E. Rep. 299.
Holder under a Special Indorsement Only One Who Can Sue. — But if a negotiable instrument, not payable to bearer, be endorsed specially to a particular person, while such person remains the holder and legal owner, the right of action is in him alone, and none but him or his personal representative can sue. Spence v. Robinson, 35 W. Va. 313. 13 S. E. Rep. 1004.
Holder of Instrument Indorsed in Blank. — And an action on a negotiable note indorsed in blank may be maintained in the name of the holder-, who is not the owner, by the owner's consent. Smith v. Lawson, 18 W. Va. 212.
Administrator of an Accommodation Indorser. — And the administrator of an accommodation indorser of a negotiable note protested for nonpayment, who takes up the note after the death of his intestate, may maintain either assumpsit on debt in his own name against the maker of the note, for the amount in value which he has paid for the note. Burton v. Slaughter, 26 Gratt. 914.
Action by Assignee of a NonnegotiabSe Instrument.— The assignee of a note or draft does not acquire the legal title to the debt, but an equitable right only, which by virtue of the statute he may assert at law in his own name, or in that of the original pa' ee, for his benefit; and it is not necessary, that the record should show, that the suit is for the benefit of the assignee. Clarke v. Hogeman, 13 W. Va. 718. See monographic note on “Assignments” appended, to Ragsdale v. Hagy, 9 Gratt. 409.
indorsee against Remote Indorser. — And in Virginia, an indorsee of a promissory note cannot maintain an action against a remote indorser for want of privity. Mandeville v. Riddle, 1 Cranch (U. S.) 290 (1803); Dunlop v. Harris, 5 Call 16.
Holders of Promissory Note against Indorsers.— Though, in general, indebitatus assumpsit for money lent, or money paid and expended, or money had and received, lies for the holders of a promissory note against an indorser, and the indorsement is prima facie evidence to support those money counts ; yet if it be found by special verdict, that the defendant indorsed the note, and the holders discounted it, for accommodation of the maker, and that the defendant received no part of the proceeds of the note so discounted, in such case the holders cannot recover against the defendant on the money counts. Bank of the U. S. v. Jackson, 9 Leigh 221.
Action by Owner of Note Which Has Been Destroyed. —An action at law can be maintained upon a note that has been destroyed. The evidence should, however, satisfy the jury beyond any reasonable doubt, that the note has been destroyed. Moses v. Trice, 21 Gratt. 556.
Action by Owner of Lost Instrument Transferrable by Delivery. — But an action at law cannot be maintained upon a lost negotiable note transferrable by delivery, whether due, or not at the time of the loss. The sole remedy of the owner is in a court of chancery, which can adjust the equities of the parties, and which can require suitable indemnity as a condition of relief. Moses v. Trice, 21 Gratt. 556.
But if at the time of the trial a recovery upon the lost note would be barred by the statute of limitations, the action may be maintained. Moses v. Trice, 21 Gratt. 556.
Attachment. — Upon a settlement of an account, the creditor took a negotiable note from the debtor, for the amount found due. The note was discounted at the bank for the creditor. While the note was in the bank and before it became due, the debtor absconded. It was held, that the creditor could not sue out an attachment against the debtor for the debt due upon the account. McCluny v. Jackson. 6 Gratt. 98.
But an attachment in chancery lies to secure a debt payable at a subsequent day, or to relieve the indorser of a note which has not become payable at the date of such attachment, which binds the property in the hands of the garnishee from the time of its service, so as to inhibit the absent defendant from making a transfer thereof, even for the benefit of a creditor whose claim is already due and payable. Williamson v. Bowie. 6 Munf. 176.
Payee of an Order Drawn on a Fund. — An order drawn on a particular fund or debt, and for the whole thereof, though not accepted by the drawer, *312is a good equitable assignment of the fund or debt, and it will be recognized by a court of law to the extent of permitting the payee of such an order to institute a suit at law in the name of the drawer against the drawee. First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555. On this subject, see generally, monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
Action by Holder of Accommodation Paper. — A promissory note negotiable at a bank was made and indorsed 'for the sole purpose of obtaining accommodation for the maker. This note was left with a second indorser to be lodged in bank for discount. This second indorser fraudulently put the note into circulation to raise money thereon for his own use. Itwas held', that the third indorser, knowing nothing of such fraud might'cause the note to be protested as to the maker and prior indorser, pay it himself, and thereupon maintain’his action against the maker and first indorser} notwithstanding the fact that no valuable consideration passed or was contracted for, between him and the second indorser, but he made the indorsement merely for the motive of enabling such second indorser to get the note discounted at the bank. Robertson v. Williams, 5 Munf. 381.
Payee in Representative Capacity — Authority to Sue. —The payee of a note, made’for the benefit of a company for which he was treasurer, transferred it to another. An action was brought in the name of the former for the benefit of the latter, and on the trial the payee testified that he did not authorize the suit to be brought in his name. This was not sufficient to prevent a recovery by the assignee in his action. Kimmins v. Wilson, 8 W. Va. 584.
2. AGAINST WHOM ACTION MAY BE BROUGHT.
Action against Acceptor by the Indorsee. — At common law an action of debt will not lie for the indorsee against the acceptor of a bill of exchange. Smith v. Segar, 3 H. & M. 394; Wilson v. Crowdhill, 2 Munf. 302. But under the statute (Code 1860, ch. 144, sec. 10), which provides, that an action of’debt may be maintained on a note or writing by which there is a promise to pay money, if the same be signed by the party who is charged thereby, or his agent, an action of debt will lie in the name of the indorsee on a bill of exchange again st the acceptor. Hollingsworth v. Milton, 8 Leigh 50; Regnault v. Hunter, 4 W. Va. 257.
Action against Acceptor by the Drawer. — An action of debt will lie for the drawer of a bill of exchange, who is also the payee, against the acceptor at common law. Regnault v. Hunter, 4 W. Va. 257.
Joint Action against Makers and Indorsers of a Foreign Note. — The makers and indorsers of a promissory note executed in another state, under the law of which it is negotiable, are not jointly liable to a holder who discounts it in Virginia, and such holder cannot, therefore, sue the maker and indorsers jointly. Corbin v. Planters’ Nat. Bank, 87 Va. 661, 13 S. E. Rep. 98, 24 Am. St. Rep. 673.
Against a Remote Party. — Where a note not negotiable, was indorsed by several persons in succession, the last assignee could only sue the maker’ and his immediate assignor, and not a remote assignor, prior to the Act of the Assembly of 1807. Caton v. Lenox, 5 Rand. 31; Dunlop v. Harris, 5 Call 16.
But under the provisions of § 2861 of the Va. Code, an action may be maintained by an assignee by a nonnegotiable note against a remote assignor thereof to recover moneyupon the contract implied by the assignment that he will repay the consideration received by him for the note, if by the use of due diligence it cannot be made out of the maker. Hence, an assignee may proceed by motion against the remote assignor for a like recovery under the very terms of § 3211 of the Code. Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593;, Drane v. Scholfield, 6 Leigh 386.
Against One of Two Partners. — A promissory note was executed by one of two partners in the firm name. One of the partners was an infant at the time of the execution of the note. An action brought against the adult partner only was held badly brought, as the act of the infant was voidable only, and was valid until disaffirmed. Wamsley v. Lindenberger, 2 Rand. 478.
Action of Detinue against Bona Fide Holder of Treasury Notes. — treasury note is, by the act of congress transferrable by delivery and assignment only. Myers v. Friend, 1 Rand. 12. In this case a treasury note indorsed in blank, was stolen from the mail, and subsequently passed into the hands of a bona fide purchaser for value. It was held, that the note could be recovered in an action of detinue, brought by the real owner against such bona fide purchaser.
Joint Instrument Seated as to One Party — Joint Action Proper. — An action of debt was brought by the administrator of the payee upon an instrument in these words: “On demand I promise to pay to David Keller, the just and full sum of '$200, for value received, as witness my hand and seal.
“Thomas McHtjeeman. [Seal.]
“Security: — David M. Riere.”
This instrument was held to be a joint and several promise as to both defendants, and prima facie the instrument was on its face as to the defendant McHuffman a single bill obligatory, and as to the defendant Riffe his promissory note, and a joint action was proper in such case. Keller v. McHuffman, 15 W. Va. 64.
Joint Action against Drawer and Indorsers of a Specialty. — A single bill, under seal, is not a note, but a specialtj'; and therefore the drawer and indorsers of such a bill, made “negotiable and payable” ata certain place, cannot be sued jointly thereon. Mann v. Sutton, 4 Rand. 253.
3. THE DECLARATION.
Necessary Averments — Generally.—In an action on a negotiable note against the indorser, the declaration must allege, that the note was duly presented for payment at the place where itwas payable, at the time when it became due and payable, and that it was not paid, and that thereupon the said note was duly protested for nonpayment, of all of which the indorser had prompt notice. Bank v. Hysell, 22 W. Va. 142. In this case a declaration which simply stated, “that the note was presented at the close of banking hours to the cashier of the bank where it was payable, for payment which was refused, and thereupon it was duly protested for nonpayment, and notice thereof was given said indorser,”, was held fatally defective, as it did not state when the note was presented for payment or where it was presented.
Must Aver the Place of Payment. — A negotiable note payable at a particular' office or bank, is a very different instrument from a mere promissory note payable generally, even when between the same parties and for the same amount. The place of pajunent regulates the rate of interest and sometimes determines ¿he character of the instrument *313as to its negotiability. These are matters of importance and make the place of payment a material part of the description of the note. It is therefore essential that the place of payment fixed by the note should be set out in the declaration on the note; and if this be not done, and the admission of the note in evidence is objected to, the court should exclude it on account of the variance between such note and the one described in the declaration. Damarin v. Young, 27 W. Va. 436; Bank v. Showacre. 26 W. Va. 48.
And where a note on its face is dated at a specified place, and is drawn in such form as to' make it a negotiable instrument at such place, the maker, when sued on such note by an innocent holder for value, will not be allowed to aver or prove that such note was not in fact made at the place at which it purports to have been made. Bank v. Showacre, 26 W. Va. 48.
Plañntiff first Allege That He Is the Payee or Holder. —And in an action of debt on a negotiable note the plaintiff must allege in his declaration, that he is the payee or indorsee or holder of the note. If he fails to make such allegation, though he alleges the drawing of the note and its indorsement by the payee in blank, the declaration is f atally defective on general demurrer. Bank v. Hysell, 22 W. Va. 142.
Necessity for Averment of Presentment. — A count in the declaration on a protested bill of exchange which did not aver presentment and demand of payment, was held bad on demurrer, and the overruling of such demurrer was held error. But in this case it was held that the appellate court would not reverse the judgment for such error, as the presentation and demand of payment was sufficiently alleged in other counts, and no injury could have resulted to the defendant therefrom. Early v. Preston. 1 P. & H. 228.
Averment of Time of Presentment Stated under Videlicet. — A declaration in an action of assumpsit on a bill of exchange, by the holder against an indorser, alleged that “when the bill became due and payable according to the tenor and effect thereof, to wit, on the 27th of December 1816, on the bank of Marietta in Ohio'' it was presented for payment. and dishonored. The 27th of December was not the third, but the fourth day after the time appointed for the payment of the bill. As it was' averred that the bill was presented when it became due according to its tenor and effect, and the date of the presentment was stated under a videlicet, the date so stated was held not material, and the plaintiff might prove presentment on the third day of grace. Jackson v. Henderson, 3 Leigh 196.
Averment of Nonpayment — And in an action of debt or assumpsit upon a promissory note it is indispensable to aver nonpayment, and that to every parti connected with the note entitled to receive payment, whether payee, assignee, decedent, or representative, or survivors of decedent, and each one of the parties jointly entitled to receive payment. Smoot v. McGraw (W. Va. 1900), 35 S. E. Rep. 914.
Averments of Demand and Notice in Case of Accom= modatlon Paper. — But where a declaration upon a note is special, and avers demand and notice to the indorser, the plaintiff may prove at the trial that the note was made and discounted for the accommodation of the indorser, and that he received the proceeds. The plaintiff may recover in the action, though no notice, or an insufficient notice, was given j to the indorser. McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
Averment of Time of Placing a Note for Collection.— In an action against a bank for negligence in failing to protest a note placed with for its collection, it is sufficient if the declaration avers that it was so placed with the bank before its maturity, though the date of placing is not specified. Roanoke Bank v. Hambrick, 82 Va. 135.
Amount of Cost of Protest. — A declaration in debt, under the law of Virginia, upon a protested bill of exchange for the principal, interest, damages and costs of protest, must aver the amount of those costs of protest. Wilson v. Lenox, 1 Cranch (U. S.) 194 (1803).
Declaration Must Demand Currency for Which Instrument Is Given. — in an action of debt upon a protested bill of exchange, drawn for sterling money, the declaration was for the current money value of the sum for which the bill was drawn. The declaration should have been for the sterling money, and judgment being for the sum so demanded, was reversed on a writ of error. Scott v. Call, 1 Wash. 115.
And thus, where a declaration stated that a bill was drawn for current money, without naming the sum of current money, it was held that the plaintiff could only recover current money. Proudfit v. Murray. 1 Call 394.
Interest Should Be Demanded in Declaration.— If a declaration upon a promissory note does not demand interest, and the defendant waives his plea, the court cannot give judgment for interest. Brooke v. Gordon, 2 Call 213; Hubbard v. Blow, 4 Call 224.
Where a bill of exchange had fallen due and been protested before the act allowing 3 per cent, damages, and interest upon the costs of protest, went into operation, such damages and interest are not recovered in action upon a'bill. Friend v. Wilkinson, 9 Gratt. 31.
Omission to State That the Bill Is Payable with Interest. — in Harper v. Smith, 6 Munf. 389, it was held that a judgment entered upon nil dicit in action of debt on a penal bill, ought not to be reversed on the ground that the declaration though describing the bill correctly as to the principal, penalty, and date, omitted to mention that the debt was payable “with interest from a day prior to the date’'; and that the judgment, in conformity with the penal bill, was entered for the penalty, to be discharged by the principal, with such interest, and costs.
Not Necessary to Aver Consideration —Under the Virginia statute, an action of debt may be brought upon a note in writing; and in such action it need not be averred or proved that there was any consideration for the note. The note itself imports consideration, as does a bond: the only difference being that in case of a bond the consideration cannot be inquired into, but in the case of a note it may. Peasley v. Boatwright, 2 Leigh 195; Snead v. Coleman, 7 Gratt. 300; Crawford v. Daigh, 2 Va. Cas. 521; Cheuvront v. Bee, 44 W. Va. 103, 28 S. E. Rep. 751; Jackson v. Jackson, 10 Leigh 452.
Declaration Must Negative Payment to Maker as Well as to Indorsee. — In an action by an indorsee, of a note against the maker, the declaration, failing to negative payment to the maker, as well as to the indorsee, is insufficient. Norvell v. Hudgins, 4 Munf. 496.
Declaration Must Lay an Express Promise. — in an action on the case upon a note of hand, there must be an express assumpsit laid in the declaration; *314merely reciting the note of hand in haec verba is not sufficient. Cooke v. Simms, 2 Call 39.
Effect of Averment That a Nonnegotiable Note Was “Indorsed.” — in a declaration upon a nonnegotiable note, an averment that a person “indorsed” it, instead of the word “assigned” it, is equivalent to the word “assigned” on demurrer. Smoot v. McGraw (W. Va.), 35 S. E. Rep. 914.
Variance between Declaration and Proof. — A declaration on a negotiable note, stated the indorsement and delivery as at the time of the making; and the proof was that the delivery was after the note fell due. This was held no variance; and if it was, could only be taken advantage of at the trial by a motion to exclude the evidence, or to instruct the jury to disregard it. Davis v. Miller, 14 Gratt. 1.
And so where an action of assumpsit was brought for goods sold and delivered, the declaration filed contained only the common counts. The only count in the declaration to which the evidence applied, was that for goods sold and delivered. It was shown that the goods were absolutely paid for by a check. The demand upon the account being thereby extinguished there was no count in the declaration upon which the plaintiff could recover. Blair v. Wilson, 28 Gratt. 165.
Variance in Descriptions. — A count in a declaration on a promissory note which alleged that the maker, by his promissory note, promised to pay the plaintiff $6,000 (meaning, and intending thereby $4,000), by reason whereof he became liable to pay $4,000, was held bad on general demurrer. Merchants’, etc., Bank v. Evans, 9 W. Va. 373.
Description of Paper Signed with Scroll as Unsealed, Is Correct. — An action of debt was brought upon an instrument, which was in form a promissory note for money, and which concluded “witness the hands” of the parties, but no actual seal was attached to the instrument, scrolls being placed opposite to the signatures and used by way of seals. This instrument was held rightly described in the declaration as a promissory note. Peasley v. Boatwright, 2 Leigh 195.
Error in Declaration Cured by Statute. — But if a declaration describe a note of several parties as several, while the note is joint and several, and no objection is made on account of the variance before judgment, though it be rendered on-demurrer to evidence, it is unavailing to reverse the judgment, by reason of sec. 3, ch. 134 of the Code of W. Va. Long v. Campbell, 37 W. Va. 665, 17 S. E. Rep. 197 (1893).
And if the demand in the declaration in an action of debt be for less than the right of recovery shown by the note described in it, it would be disregarded on demurrer by reason of sec. 29, ch. 125 of the Code, and as the variance does not aggrieve the defendant, but is to his benefit; and also, in the absence of a demurrer, it is cured after judgment by sec. 3, ch. 134 of the Code of W. Va. Long v. Campbell, 37 W. Va. 665, 17 S. E. Rep. 197 (1893).
Declaration for a Sterling Debt. — A sterling debt may be sued for without laying the value in current money; if it is laid, it is merely surplusage, and will not vitiate; but in such case, the damages should be laid in- sterling money, the verdict and judgment should be in sterling money, and the court is to fix the rate of exchange. Skipwith v. Baird, 2 Wash. 165.
Omission of Sum for Which Note Was Given. — In an action against the makers and indorsers bf a protested negotiable note, the accidental omission of the sum for which the note was given, in describing it in the declaration, was held no ground of demurrer, where the sum sufficiently appeared from other parts of the declaration. Archer v. Ward, 9 Gratt. 622.
Conformity of Declaration with the Writ. — In an action of a negotiable note it was held no error to demand interest in the declaration which was not claimed in the writ; but it was held error to claim in the declaration, costs of protest, when those costs were not demanded in the writ. Hatcher v. Lewis, 4 Rand. 152.
Conclusion of Counts. — Where an action of debt is based upon a single bill and simple contract for money lent, money received, or money paid, and the aggregate of all the counts is demanded, the usual conclusion need not be adopted to each count, and if the general conclusion of the declaration is in proper form it will be considered as applying to each count, as well as to all collectively. Somerville v. Grim, 17 W. Va. 803. Upon this subject, see generally monographic note on “Action of Debt” appended to Davis v. Mead, 13 Gratt. 118.
Profert Not Necessary. — In an action of debt on a bill of exchange, it is not necessary for the plaintiff to make profert of the bill in the declaration. Terrell v. Atkinson, 2 Wash. 143.
Demurrer to Declaration in Covenant on a Note.— Demurrer lies to a declaration in covenant on a trust deed executed merely as a collateral security for the payment of a promissory note. Such trust deed does not raise such note to the.dignity of a specialty, and the note is barred by a lapse of five years before suit brought. Wolf v. Violett, 78 Va. 57.
Counts Not Included in Bills of Exception Presumed to Be Proved. — In an action of assumpsit there were two money counts, and one upon an inland bill of exchange. The court gave an improper instruction with regard to the bill of exchange, but the bill of exceptions did not state that there was any other evidence.’ It was held, that it would be presumed after verdict, that the money counts were proved. Willock v. Riddle, 5 Call 358.
4. THE PLEAS.
Proof of Execution Not Necessary unless Put in Issue by a Sworn Plea —In an action of debt at common law upon negotiable paper the plea nil debet put in issue the execution of the instrument and all the transfers thereof. But in Virginia, by statute (Va. Code, § 3279), where the declaration avers the execution and transfer of the paper no proof thereof is required unless such plea is supported by an affidavit. Clason v. Parrish, 93 Va. 24, 24 S. E. Rep. 471.
Object of Statute Requiring Sworn Plea. — The ob j ect of this statute is to dispense with the proof of handwriting in certain cases, and it does not apply to a transfer of paper by mere delivery. Upon an averment of such transfer by a wife, proof of transfer by the husband without proof of his agency is insufficient, even on demurrer to evidence to maintain the issue on the part of the plaintiff tendered by the plea of nil debet. Clason v. Parrish, 93 Va. 24, 24 S. E. Rep. 471.
Genuineness Cannot Be Questioned unless Denied under Oath. — Where the declaration avers that the indorser indorsed a note by subscribing his name on the back thereon, and he not having filed an affidavit with his plea according to the statute, he will not be permitted to question the genuineness of the note, or to show that it was altered after it was indorsed by him. Archer v. Ward, 9 Gratt. 622.
*315Thus, in an action against the indorsers of a negotiable note, they pleaded nil debet, and filed an affidavit that at the time the note was indorsed and when it was protested it was not stamped, as required by an act of congress, and that it had been since altered by the collector of the United States revenue putting a stamp on it. As this affidavit did not deny their signatures, it was held not necessary for the plaintiff to offer proof of the signature before introducing the note. Crews v. Farmers' Bank, 31 Gratt. 348.
The Affidavit Required. — in Virginia the affidavit which the defendant is required to make is that the said instrument was not made by him as charged in the declaration, and it is not sufficient to make oath that the name subscribed is not in his handwriting, for, if so, a party who had caused the instrufo be signed by his name and in his presence by a third person, might raise an entirely immaterial question. Archer v. Ward, 9 Gratt. 622.
Burden of Proof Shifts after Filing of Sworn Plea,— Where the answer of the maker of a note denied that the payee indorsed it to the complainant as alleged in the latter's bill, and such denial W'as supported by affidavit as required by § 3279 of the Code, the burden of proof was held to be upon the complainant to show such indorsement, and in default thereof his bill was dismissed. Piedmont Bank v. Hatcher, 94 Va. 229, 26 S. E. Rep. 505.
This Statute Applies to Suits in Equity as Well as Actions of Law. — The statutes providing that the execution of the instruments shall stand admitted unless it is put in issue by a plea or an answer under oath apply to suits in equity based upon negotiable instruments. Simmons v Simmons, 33 Gratt. 451; James River, etc., Co. v. Littlejohn, 18 Gratt. 53.
Partnership Notes — Necessity for Sworn Plea Denying Partnership. — -In Virginia it is provided by statute (Code of 1887, § 8380): “That in all actions which may be hereafter commenced in the names of any persons composing a partnership, and the names of the several persons constituting such partnership shall be set forth in the declaration, the plaintiffs shall not be required to prove the existence of the said partnership, as described in said declaration, unless the defendant or some other person shall, by plea verified by affidavit, deny the existence of such partnership.” In Shepherd v. Frys, 3 Gratt. 442, it was held, that this statute applied to negotiable instruments which were signed in the name of the partnership. But the question whether the persons sought to he charged were members of the partnership or not, is still left open.
Thus, in an action of debt brought upon a negotiable note, signed with a partnership name, the declaration charged that the defendants subscribed the note by their partnership name. There was no affidavit by the deiendants or any of them putting the execution of the note in issue. They were held estopped from showing that the partnership had been dissolved before the note was made, and that the person making it had no authority to execute it for the other partners. Phaup v. Stratton, 9 Gratt. 615.
Failure of Consideration under the General Issue.— In Keckley v. The Union Bank, 79 Va. 458, it was held that a failure in consideration of a promissory note could not be shown under the general issue but must be specially pleaded under § 3299 of the Va. Code. But this case has been overruled, and it is now held that failure in consideration may be shown under the general issue. Columbia, etc., Association v. Rockey, 93 Va. 678, 25 S. E. Rep. 1009.
Upon this subject, see generally, monographic note on "Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
That Plaintiff Is Not a Holder for Value Hay Be Shown under General Issue. — And in an action of debt upon a negotiable note, the defence that the plaintiffs are not holders for value of the note, may be made under the plea of nil clébet. Fant v. Miller, 17 Gratt. 47.
Plea That Paper Was Unlawfully Issued by an Unchartered Corporation. — To an action of debt on a note alleged to have been made and discounted by the plaintiffs in Virginia, but made payable at a bank out of the state, a plea that the plaintiffs are an unchartered banking company, issuing and circulatingtheir own paper notes or bills as currency, contrary to law and public policy; and that they as a banking company discounted the said note, contrary to law and public policy, sets up a good defence to the action. So in such a case, a plea that the consideration of the note declared on was the bank paper of the plaintiffs unlawfully issued by them as currency, they being an uncharterd banking company, presents a good defence to the action. Hamtramck v. Selden, 12 Gratt. 28.
Plea of Payment Admits Execution of Instrument.— Where a plea oi payment was entered to an action on a bill oi exchange, it was held error to require the plaintiff to answer interrogatories which tended to show that the bill was not made for a debt due from the defendant in his individual capacity, but as president of an incorporated company, as the interrogatories were immaterial to the issue, the plea of payment having admitted the execution of the instrument. Rand v. Hale, 3 W. Va. 495.
Plea of Payment by Execution of Judgment Note. - -A plea that a judgment note was executed in satisfaction of anote given for the same debt is defective in not alleging that it was accepted in satisfaction of such note. Witz v. Fite, 91 Va. 446, 22 S. E. Rep. 171.
Where Pleas Conclude to Country Simüter Unnecessary. — in an action on a negotiable note, where the plea of nonassumpsit and payment properly conclude to the country, the plaintiff may, without the formal addition of the similiter, proceed to trial as though the issue had been formally joined. Wellsburg Bank v. Kimberlands, 16 W. Va. 555.
Where Defendant Pleads Nil Debet Instrument flust Conform to the Declaration. — Where the defendant in an action of debt on a note files the plea of nil debet, the note produced in evidence must correspon d with that described in the declaration. A note was described in the declaration as a note for three hundred and forty-two dollars payable two months after the date thereof, and the note offered in evidence was for three hundred and forty-two dollars and twenty-five cents, payable sixty days after date. This was held to be a fatal variance and the note was not admissible in evidence. Scott v. Baker, 3 W. Va. 285.
Promissory Note Cannot Be Pleaded In Bar. — In Lazier v. Nevin. 3 W. Va. 622, it was held that a prom issory note could not be pleaded in bar to an action upon a simple contract.
Plea of Nil Debet and Usury -Interrogatories. — En an action against the maker and indorsers of a negotiable note, they plead jointly nil debet and-usury; and file interrogatories to the plaintiff. 1. From whom did you get the note in suit? 2. If from de*316fendant C, what did you pay him for it? He answers to the first: I received the note from 0, who, so far as I had any knowledge, was the owner of it. He declines to answer the second question. Defendants move to strike out last part of answer to the first question. Held, the only object of the question was to ascertain the character in which 0 indorsed the note; and the answer is therefore responsive to the question. If that was not the object, the answer was immaterial. The pleas being joint, defendants were not entitled to an answer to the second question to reduce the amount of recovery against C; nor were they entitled to the answer whilst they relied on the defence of usury. Hogshead v. Baylor, 16 Gratt. 99.
5. SET-OFF.
The General Rule. — The right of offset, being of modern statutory creation, is neither an equity nor lien recognized by the law merchant as attaching to a negotiable instrument; and therefore the tona Jide purchaser of an overdue negotiable note is not required to take notice of existing offsets, in the absence of legislative enactment. Davis v. Noll, 38 W. Va. 66, 17 S. E. Rep. 791; Davis v. Miller, 14 Gratt. 1.
BUI Cannot Be Set Off against a Party without Notice. — And so in an action by an indorsee against the maker of a promissory note, it was held that the latter could not set off a bill of exchange on which the plaintiff was responsible, unless it appeared that the defendant had received such bill before notice of the indorsement of the note to the plaintiff. Ritchie v. Moore, 5 Munf. 388, 7 Am. Dec. 688.
Unliquidated Claim. — An action of assumpsit was brought against the assignor of a note to collect the amount of the note assigned, on the ground that the obligor was insolvent when the note fell due. At the trial the assignor alleged that the assignment was without recourse and proved that there was a written contract, which was lost, that the assignee was to attend a certain sale of real estate belonging to the obligor, which sale was to take place under a decree of the circuit court, and make his money, but the witness could not remember the exact terms of the contract. The assignor then offered to prove the value of the land, and that the assignee did not attend the sale. It was held, that the assignor could not set off the damage which he had sustained by the breach of this collateral contract, in an action on the note, such claim being for unliquidated damages. McSmithee v. Feamster, 4 W. Va. 673.
6. EVIDENCE.
a. Admissibility.
Revenue Law Requiring Stamp before the Instrument Can Be Admitted Is a Local Law. — A revenue law of a state, which requires a stamp upon the indorsement of an overdue bill or note before such indorsement can be given in evidence, is a local law and has no exterritorial effect. Such note may be given in evidence in the courts of another state although unstamped, as the laws of one state can furnish no rule of evidence for the courts of another. Lambert v. Jones. 2 P. & H. 144.
But under the act of 1812, requiring negotiable notes to be stamped, a note, negotiable at a bank, might be given in evidence if duly stamped, before it became payable, though not so stamped when it was executed. Hannon v. Batte, 5 Munf. 490.
Unstamped Bill or Note Is Admissible. — And a bill or note though unstamped, is admissible in evidence, the act of congress not applying to proceedings in state courts. And they are admissible in evidence in the United States courts unless the omission to stamp was with fraudulent intent. Hale v. Wilkinson, 21 Gratt. 75.
In Crews v. Farmers’ Bank, 31 Gratt. 348, revenue stamps were placed upon a note by a collector of revenue more than a year after it was made. This could only be done upon the payment of a penalty of $50. It was held, that the payment of a penalty did not tend to show that the failure to affix the stamp when the note was made was with an intent to evade the law, and the note was admitted in evidence.
Admissibility of Bill of Exchange. — In Anderson v. Kanawha Coal Co., 12 W. Va. 526, it was held that bills of exchange drawn by the defendant on its agent, in favor of the plaintiff and described with particularity in the bill of particulars filed with the declaration containing the common counts, ought to be received in evidence on the trial of the issue of nonassumpsit.
Parol Evidence to Show Relation of. the Parties.— Parol evidence, by the weight of authority, is admissible, in general, to show the real relation between the parties to a bill or note, and that the actual liability of the parties among themselves is not that which appears upon the face of the instrument; and this is upon the ground that the facts of suretyship is collateral to the written instrument, and does not contradict or vary it. Faulkner v. Thomas (W. Va.), 35 S. E. Rep. 915.
Therefore, a written obligation, after payment thereof, does not preclude the makers and indorsers from proving by parol evidence a contemporaneous oral agreement as an inducement thereto; fixing their ultimate liabilities among themselves in accord with the true consideration and purpose of entering into such obligation. Faulkner v. Thomas (W. Va. 1900), 35 S. E. Rep. 915.
Presumption of Payment Rebutted by Parol Evidence. —The fact that the joint maker of á note pays the same at maturity, and does not for a long time require an indorser to come in and contribute his moiety thereof under á verbal arrangement between the parties, but waits until the death of such indorser, and presents the same'against his estate, is strong circumstantial evidence in rebuttal of such agreement, but it is not conclusive, and may be explained and overcome by sufficient competent parol evidence. Faulkner v. Thomas (W. Va. 1900), 35 S. E. Rep. 915.
Answer to a Bill of Discovery as Evidence. — It is a general rule that a written evidence of indebtedness cannot be contradicted or altered by evidence of verbal arrangement. But where a bill in equity calls on the defendant for a discovery as to the transaction between the parties the answer must be treated not only as evidence, but as evidence introduced by the plaintiff. Thompson v. Clark, 81 Va. 422. As to admissibility of protest in evidence, see ante, “Protest.”
b. Weight or Evidence.
Execution of Noteas Evidence of Settlement. — It is a well-settled rule that the execution of a note in settlement of an account is conclusive upon all the items charged in it, unless some accident be shown. Parkersburg Nat. Bank v. Als, 5 W. Va. 50; Johnston v. Zane, 11 Gratt. 552.
Noteas Evidence in an Action by Assignee. — In a proceeding by an assignee of anote against a remote assignor to recover on the implied contract of assignment, the note is a necessary piece of evidence for the plaintiff in order to prove the assignments, *317and also to show the measure of the plaintiff’s re- ! covery. In the absence of proof to the contrary the law presumes that the assign or received for the note a sum equal to that specified in it. The fact that the note was seen and inspected by the court need not appear in the entry of the judgment, but the appearance of it does not vitiate the judgment, nor show that the judgment was rendered on the note, and. not on the contract implied from the assignment. Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593.
Note as Evidence in Action by Indorsee. — And in an action on a negotiable note, the note is a necessary part of the plaintiff’s evidence, and there can be no judgment for the plaintiff without the production of the note. If judgment be rendered for the plaintiff, and a writ of error awarded to that judgment, the record certified to the appellate court can alone be looked to to ascertain what evidence was introduced in the trial court. In an action on a note where the record failed to disclose the fact that the note was offered in evidence in the trial court the j udgment was reversed. The appellate court will never presume what the record fails to disclose. Davis v. Poland, 92 Va. 225, 23 S. E. Rep. 292.
Suits upon Lost Instruments — Evidence.—in order to maintain a suit in equity setting up a lost negotiable note and praying for a decree for the payment thereof, it is indispensable, where the loss of such note is controverted by the answer of the defendants, that the loss should at the hearing of the cause be established by competent and satisfactory proofs. Exch. Bank v. Morrall, 16 W. Va. 546.
Evidence of Ratification of Improper Act. — The fact that a cashier handed the plaintiff a renewed note in lieu of the old note which should have been protested, saying the latter was lost. and the plaintiff retained the former some time, is not conclusive evidence of the plaintiff’s ratification of the bank’s action, but is evidence from which the jury might or might not infer such ratification. Roanoke Bank v. Hambrick, 82 Va. 135.
Weight of Check as Evidence. — In an action of assumpsit a check may be offered in evidence under the money counts; and if there is no other evidence in the case, it is of itself sufficient to entitle the plaintiff to recover on those counts. But it is only grima facie evidence of money lent, paid and advanced, or had and received; and when it is proved that no money had come into the hands of the defendant. the presumption raised by the check is rebutted, and no recovery can be had on those counts. Blair v. Wilson, 28 Gratt. 165.
Check Presumed to Be Given in Payment of Debt.— And a check upon a bank implies that it was given in payment of a debt due by the drawer to the party in whose favor it is drawn, or for money loaned by the latter to the former at the time of the execution of the check. Though such implication may be repelled by evidence that the check was not so given, but was in fact given for a loan by the drawer to the payee, such evidence being in conflict with the apparent purport of the transaction, ought to be very strong to repel the implication and to establish the contrary fact. Terry v. Ragsdale, 33 Gratt. 342; Blair v. Wilson, 28 Gratt. 165.
While the giving of a check by the debtor to a creditor is generally presumed to be only a provisional or conditional payment of the debt for which it is given, yet such check may, by special agreement of the parties, be given and received in full payment and absolute discharge of satisfaction of the debt. Whether it was so given and received is a question of fact for the jury. Blair v. Wilson, 28 Gratt. 165.
Recital in Trust Deed as Evidence. — In Powell v. White, 11 Leigh 309, a recital in a deed of trust, that the cestuis que trust were liable as indorsers for the maker of the deed, and that the maker of the deed was willing and desirous to indemnify and secure them from all loss and damage and consequence of their becoming indorsers, by conveying property for the purpose, was held not to entitle the indorsers, after the death of the maker, to rank as specialty creditors, in the administration of his personal assets.
Weight of Evidence a Question for the Jury. — The weight of evidence is in all cases a question for the jury, and it is improper for the court to pass upon the weight of evidence, as this would be usurping the functions of the jury. Thus in an action on a promissory note, the court if requested, should instruct the jury, that twenty years haying elapsed between the time when the note became due and the institution of the action, they ought to presume it paid, unless evidence be offered of some acknowledgment of the debt, or of payment of interest, or part payment of principal, in the twenty years. The court cannot be justified in refusing to give such instruction on the ground that the defendant has not stated the evidence given in the cause in his application; or that in the court’s opinion the said principle of law does not apply to the case, under the circumstances appearing in evidence; for this would be undertaking to judge of the weight of evidence. Wells v. Washington, 6 Munf. 532. For weight of protest as evidence, see ante, “Protest.”
c. Competency op Witnesses.
Husband and Wife as Witnesses.- -Where a husband and wife are joint makers of a negotiable note, neither party is a competent witness in an action on the note although no relief is prayed for in the bill as against the husband. In such case the payee is also incompetent. Jones v. Degge, 84 Va. 685, 5 S. E. Rep. 799. See monographic note on “Husband and Wife.”
Plaintiff or Person for Whose Benefit Suit Is Brought. —And under § 3, ch. 130,, of the W. Va. Code, as amended by Acts of 1882, neither the plaintiff, nor a person for whose benefit a suit is brought, is a competent witness against a defendant, who is the survivor of himself and a deceased party who with him, was a joint maker of the promissory note on which the action was brought, in regard to any personal transactions or communication, between either of them, and such deceased party. Heffiebower v. Detrick, 27 W. Va. 16.
Indorser as Witness in Action against Haker. — But an indorser of a note, whether negotiable or not, is a competent witness in a suit between the holder and maker, to prove that the note was given for a usurious consideration. But where a joint action of debt was brought against the drawers and indorsers, under the act of the assembly allowing a joint action in such case, it was held that one of the indorsers could not render himself a competent witness, by a confession of judgment. Taylor v. Beck, 3 Rand. 316.
Parties Interested. — A negotiable note was indorsed by several parties for the accommodation of the drawer, and at the maturity the last indorser had to take it up. He, thereupon, brought an action against his immediate indorser. At the trial the defendant offered as a witness, the indorser immediately preceding him on the note, to prove that all *318of the indorsers had agreed at the timé of the execution of the note, to share equally the liability of loss on the note, should any occur, and that, as between themselves, they would be bound as joint securities only, and not be liable the one to the other as successive indorsers of negotiable paper. The trial court held that whether the plaintiff recovered or not, the witness’ interest would be the same except as to the costs, which the plaintiff might recover of the defendant, and that the witness might therefore testify, if the defendant would release him from all liability for costs. While the release was being prepared, it was discovered that the plaintiff had paid the money on the note more than five years before the trial, and hence, that if he failed to recover of the defendant in this suit, his recourse against the witness' would be barred by the statute of limitations, and the witness was not permitted to testify. Upon a writ of error it was held, that, the right of the witness to plead the statute in such an event, disturbs his equality of interest (if such equality existed before) in the subject-matter of this suit, and rendered him incompetent to testify, but his competency might be restored by an entire release to him, by the defendant, of all claim against him on account of his indorsers. Chapman v. Hiden, 2 P. & H. 91.
Party Interested to a Small Degree Is Incompetent.— In an action of debt against the maker and prior indorsers of a negotiable note, they pleaded jointly nil debet and usury. Before the trial the maker confessed a judgment, and there was a final judgment entered against him; and the two prior indorsers released him from all liability to them. As the maker was liable to the two last indorsers under the statute (Code, ch. 146, sec. 6, p. 587), for 5 per cent, damages for any .amount of the debt they might have to pay, he was held not a competent witness for the defendants to prove usury. Mills v. Central Savings Bank, 16 Gratt. 94.
Maker an Incompetent Witness to Prove Usury. — In .an action for debt against the maker and four indorsers of a negotiable note, they pleaded jointly nil debet and usury. Before the trial the maker confessed a judgment, and there was a final judgment entered against him, and the three indorsers released him from all liability to them. The maker was held still liable to the fourth indorser, and was not a competent witness for the defendants to prove usury. An agreement by the plaintiff not to take a judgment against the last indorser unless he recovered against all, did not release him so as to render the maker a competent witness. when released by the prior indorsers. Hogshead v. Baylor, 16 Gratt. 99.
7. THE JUDGMENT.
Judgment against Some and in Favor of Others. — in an action of debt by the holder of a negotiable note, against the maker and the four indorsers, upon the plea of usury by the indorsers, the jury found that the note was indorsed by the first three indorsers, for the accommodation of the maker, and was sold by him to the fourth indorser, at a usurious rate of interest; who afterwards and before it became due, indorsed it to the holder, for value. It was held, that upon this verdict, the court should render a judgment in favor of the maker and the first three indorsers, and against the fourth indorser, under the Code, ch. 177, sec. 9, p. 733. Moffett v. Bickle, 21 Gratt. 280.
An action of debt was brought under the statute, against the drawer and indorser of a protested negotiable note. Upon a demurrer by both defendants to the évidence offered by the plaintiff, in which demurrer the plaintiff joined, the court gave judgment against one defendant and in favor of the other. Raine v. Rice, 2 P. & H. 529.
When Final Judgment May Be Entered and When Writ of Inquiry Necessary. — A final judgment, when no plea is filed, may be rendered in the office at rules, for principal and interest, when the action is founded upon any instrument in writing for the payment of an ascertained sum of money. But where the plaintiff showed by a paper filed by himself, that the defendant was entitled to a credit, the jpdgment ought either to have been entered subject to such credit, or if the plaintiff refused to take judgment in that way, a writ of inquiry should have been awarded ; and where a judgment in such cáse was entered without the allowance of such credit, and without awarding a writ of inquiry, this was held reversible error. Rees v. Conococheague Bank, 5 Rand. 326.
Discontinuance as to a Patty Does Not Affect the Validity of Judgment. — A joint action was brought' against two partners as makers of a negotiable note, and two other parties as indorsers. One .of the partners filed a plea of nil debet, which plea was sworn to. On the motion of the plaintiff’s counsel the cause was discontinued as to the party so pleading. The other parties not appearing judgment was given against them by default. This judgment was held to be a valid judgment against the other parties, as the discontinuance of the action as to one of the parties did notamountto retraxit. A retraxit can only be entered by the plaintiff in person, and in open court. Muse v. Farmers’ Bank, 27 Gratt. 252.
Judgment against Parties Served with Process. — In a joint action against two makers an.d an indorser of a negotiable note, process was served upon one of the makers and the indorser, but was returned again and again as to the other maker, “not found” or “no inhabitant.” Upon a discontinuance of the action as to this maker, he was not thereby released from his liability on the note, and therefore the indorser was not released ; and the plaintiff was held entitled to judgment against the indorser and the maker who had been duly summoned. McVeigh v. Bank of Old Dominion, 26 Gratt. 785.
Confession of Judgment. — "Where two persons were indorsers at a bank for third parties who are insolvent, and, for the purpose of gaining an extension, one of the indorsers confessed judgment for the whole amount for which he was Háble, the third parties agreeing to give certain other collateral security ; and to procure the other indorser to likewise confess judgment, neither of which was done, it was held that the first indorser was liable on his confession of judgment, even though the bank had promised to obtain judgment against his coindorser, such promise being void. Kelly v. Taliaferro, 82 Va. 801, 5 S. E. Rep. 85.
Office Judgment Cannot Be Confirmed without Writer inquiry. — Where a joint action is brought against the drawer and indorsers of a negotiable note, an office judgment cannot be confirmed against all, or either of the defendants, without a writ of inquiry. In a suit against the drawer alone, a judgment might be rendered against him without the writ of inquiry, but when he is sued with the indorser, no judgment can properly he given finally against him, until a final judgment is also given against all of the defendants. Hatcher v. Lewis, 4 Rand. 152; Metcalfe v. Battaile, Gilmer 191.
*319Judgment against Second Indorser Not Conclusive on First. — A judgment obtained against a subsequent indorser is not conclusive against a prior indorser; but in order to make him responsible, where the subsequent indorser has paid the debt, his liability must be fixed as though no judgment had ever been obtained. When such liability is fixed, a security of the subsequent indorser in a forthcoming bond, is entitled to be subrogated into the shoes of his principal to the extent of that liability. Conaway v. Odbert, 2 W. Va. 25.
Judgment against Indorsers without the Intervention of a Jury Is Error. — A negotiable note is not considered to be a writing for the payment of money as to the indorser, but it is only a collateral contract to pay it under certain circumstances, and judgment against the indorser without the intervention of a jury is improper. Metcalfe v. Battaile, Gilmer 191.
Void Judgment — Note Still a Valid Security. — Though the judgment upon a note rendered by the court not having jurisdiction of the case is void, the notéis still a valid security. Linn v. Carson, 32 Gratt. 170.
8. BELIEF IN EQUITY.
What Is a Sufficient Allegation of Dishonor in Bill.— A charge in a bill in equity that a defendant indorsed certain notes and that “said notes are filed” as exhibits with the bill, does not make the certificates of protest annexed to the notes parts of the bill, and is not a sufficient allegation of dishonor to charge the indorser. Tidball v. The Shenandoah Nat. Bank, 98 Va. 768. 37 S. E. Rep. 318.
Notice of Dishonor a Necessary Allegation. — In a bill to subject a decedent’s estate upon his liability as an indorser oí a negotiable paper, notice of the dishonor of the paper is a necessary allegation in the bill. Tidball v. Shenandoah Nat. Bank, 98 Va. 768. 37 S. E. Rep. 318.
Parties Primarily Liable Necessary Parties in a Suit against Indorsers. — In a suit in equity to subject the estate of an indorser, persons primarily bound on the paper are necessary parties, as they may have defences unknown to the indorser, and, being first liable, equity will not, except under special circumstances subject the estate of the indorser until that of his principal has been exhausted. Tidball v. The Shenandoah Nat. Bank, 98 Va. 768, 37 S. E. Rep. 318; Horton v. Bond, 28 Gratt. 816.
Maker a Necessary Party toa Suit against Indorser.— And upon a suit in equity to subject the land ol an indorser to his liability as an indorser upon a negotiable note, the maker of the note is a necessary party, and in order to charge the indorser, it is necessary to aver and prove dishonor by the maker, and notice thereof to the indorser. Fidelity, etc., Co. v. Engleby (Va. 1901). 37 S. E. Rep. 957.
Assignor Must Be Made Party in a Bill by Assignee.— Where a bill in equity asks relief for a plaintiff as assignee of the rights of another, the assignor must be made a party to the cause, and the assignment averred and proved, though not denied in the answer. Corbin v. Emmerson, 10 Leigh 663.
Where a note was sued on by an alleged assignee which had only been indorsed for collection, it was held necessary to make the alleged assignor a party. Lynchburg Iron Co. v. Tayloe, 79 Va. 671.
Error to Decree Sale of Land of Last Indorser before That of Maker and Prior Indorsers. — On a bill by a judgment creditor to subject the land of his debtors to satisfy a judgment against them as makers and indorsers of a note whose liabilities inter sese are successive, it is error for the court to decree a sale of the lands of the last indorser before resorting to the lands of the maker and prior indorsers of such note, unless to require the plaintiff to exhaust the estates of those debtors, whose liabilities are prior to the last indorser, will in the opinion of the court unduly deiay the plaintiff in the collection of his debt. Nat. Bank v. Bates, 20 W. Va. 210.
No Adequate Remedy at Law. — A written agreement between the maker and the payee of a note, in relation to the contract in pursuance of which the note was made, having been lost at the time a judgment was recovered on the note, and without which the maker had no defence at law, it was held that equity had jurisdiction of the case. Vathir v. Zane, 6 Gratt. 246.
Jurisdiction of Law and Equity Concurrent in Case of Lost Instruments. — Equity has jurisdiction wherever a lost instrument is to be set up, notwithstanding courts of law now exercise jurisdiction in the same case. In such case, a court of equity, having jurisdiction for one purpose, will adjudicate the whole merits of the cause. Hall v. Wilkinson, 35 W. Va. 167, 12 S. E. Rep. 1118.
Better Rule to Offer Indemnity in the Bill in Case of Lost Note. — Where a bill in equity is filed setting up a lost negotiable note and praying a decree against the maker and indorsers for the debt, while it may not be indispensable, it is safer, and more in conformity with what seems to be a general practice to offer in the bill to give the proper indemnity under the direction of the court. Exch. Bank v. Morrall, 16 W. Va. 546.
Court Must Decree Indemnity — And in a suit in equity upon a lost negotiable instrument where the court decrees for the debt, it is indispensable for the court to decree ample indemnity for the protection of the makers and indorsers oí such notes, and each of them decreed against; and the court should provide in its decree that the plaintiff shall take no benefit thereof until such indemnity be given. Exch. Bank v. Morrall, 16 W. Va. 546.
Court May Fix Liability on Party First Responsible. —On a bill in equity exhibited by the holder of a promissory note against the maker, or the indorsers, the court may fix the debt on the person first responsible, in order to avoid circuity of action. Chalmers v. McMurdo, 5 Munf. 252.
Charging a Wife’s Separate Estate — Joinder of Par= ties. — Equity is the appropriate tribunal for changing a wife’s separate estate, and an indorser on her note may be joined as a party. And if from cause developed in the suit, the plaintiif fails in his remedy against that estate, he may have relief in the same suit against the indorser. Walters v. Farmers’ Bank, 76 Va. 12.
A Decree Which Does Not Decide the Rights of the Indorsers Inter Sese Does Not Work an Estoppel. — In a suit upon a note against the maker and indorser, a decree was rendered in favor of the first indorser : but it not appearing 3ipon the face of the record, nor by extrinsic evidence, that the adjudication was upon the merits and that it decided the respective rights of the indorsers as between themselves, it was held, that the siirety of the second indorser, who had been compelled to pay the note, was not estopped by that adjudication from recourse against the first indorser Chrisman v. Harman, 29 Gratt. 494.
Moulding the Decree to Fit the Particular Case. — The maker of a note negotiable at the Bank of Virginia, filed a bill of injunction against the payee and his assignee, on the ground of an equity affecting the payee only. It was held, that the court of equity *320having before it all the parties concerned, ought not to discharge the maker altogether, nor to turn over the assignee to a suit at law against the payee, but should decree against the latter in the first instance, that he should pay the amount of the note to the assignee, and the costs at law ; and liberty should be reserved to the assignee to apply to the court to dissolve the injunction as to the maker for so much of the said debt as he might not be able to recover from the payee ; in which case a decree ought also to be rendered in favor of the maker against the said payee, for so much thereof as he might be compelled to pay out as aforesaid. And the decree should further direct that the action at law in favor of the assignee against the payee if any be pending.be perpetually enjoined, exceptaste costs. In such case, the payee should pay to both the other parties, their costs in chancery, and j,n the court of appeals, upon a bill taken by himself and the assignee in the decision of which, both, the other parties substantially .prevailed. McNiel v. Baird, 6 Munf. 316.
Jurisdictional Amount of Appellate Court In Injunction Cases. — The amount in controversy on an appeal from a decree perpetually enjoining a sale under a deed of trust given to secure notes amounting to $500, from which a usurious discount of $52 has been deducted, is the whole sum secured, and the court of appeals has jurisdiction of the case. Schmelz v. Rix, 95 Va. 509, 28 S. E. Rep. 890.
Cancellation of Note Given by Incompetent Party. — A court of equity has power to decree the delivery up and cancellation of a promissory note given by an old man who .is clearly shown to be mentally incapable of transacting such business. Hiett v. Shull, 36 W. Va. 563, 15 S. E. Rep. 146.
Indorsers Right to File a Bill Quia Timet, — Where the holder of a note has recovered a judgment against the maker and the two indorsers and has issued execution on such judgment, the second and last indorser has not the right as. a matter of course to file a bill auia timet asking a court of equity to compel the payment of this judgment out of the sale of the real estate of the maker and first indorser, simply because he alleges that he is afraid that his own real estate .may be subjected to the payment of the judgment. Watson v. Wigginton, 28 W. Va. 533.
In Call v. .Scott, 4 Call 402, the drawer of a bill of exchange gave a mortgage to,indemnify anindorser against future liability, and the indorser was allowed to bring- a bill auia timet against the representative of the drawer to foreclose the mortgage and pay the whole of the bill of exchange. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481465/ | SAMUELS, J.
The case between the parties before the court on this appeal is this: The appellee, by suit in chancery in the court below, sought to recover of the appellants respectively, several sums of money, alleged to have been subscribed for the purpose of building a church. It is alleged in the bill that a number of individuals, including the appellants Scott and Nichols, and the testator of the appellant Galt, associated themselves together and agreed to subscribe certain sums of money, which were placed on a list opposite their respective names, for the purpose of building a church. It is not alleged, however, that the subscriptions or promises were made to Swain : Nor is it alleged to whom or at what time they were made. The bill States that complainant was informed (without asserting the fact) that the persons associated selected certain individuals to make the necessary contracts, and to do what was requisite for the building of the church. It charges that a lot of ground was purchased *321for the site of the building, and that certain individuals named in the bill, on behalf of themselves and other subscribers to the scheme, entered *into a contract with complainant for the carpenters’ work, and materials necessary to complete the church; which contract, after being partly performed by complainant, he was compelled to abandon by the default of the parties contracted with. It further alleges that another contract was afterwards made by complainant with another individual, acting for himself and others, for finishing the work at a certain price; that the work was finished, but the price not paid.
The defendants in their answers put the plaintiff on proof of the case as alleged in the bill. The plaintiff offered no proof whatever. The case must be decided upon the admissions in the answers. The defendants admit that they did subscribe certain amounts to be expended in the erection of the church. That these subscriptions were not made to complainant Swain, but to others; that certain terms or conditions attended the subscriptions ; that these terms were never complied with; that the offers contained in the subscriptions were not accepted within a reasonable time, and if accepted at all, it was without the knowledge of the defendants. That any contract which may have been made with complainant was without their authority, and they deny that it binds them.
On the facts stated in the answers, it must be held that a subscription, like any other promise or offer, may be conditional. If particular terms are prescribed, these terms in themselves are conditions -which must be complied with before the subscription is binding. To make such subscription binding it must be acceded to, as any other promise or offer, and the party apprised that his offer is accepted; and this must be done in a reasonable time. A subscription, like any other promise or offer, requires a consideration to support it, either of profit to the party promising or of loss to the other party. If a subscription be acceded *to on the terms in which it is made, and labor or money is expended on the faith thereof, the party making the subscription is bound thereby. Story on Contracts, 'i 453. Tor these reasons I am of opinion to reverse the decree and dismiss the bill as to the appellants. It would be improper to express any opinion on the questions between complainant and other defendants, not parties to the appeal.
ALLEN and LEE, Js., concurred in the opinion of Samuels, J.
MONCURE, J., dissented.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481466/ | *ALLEN, J.
On the 21st day of January 1842 George Morris and his son Tandy G. Morris, entered into an agreement which recited that George Morris had put into the hands of T. G. Morris certain bonds, one on Garland Ballard for 3067 dollars 26 cents, one on Uewis Collins for 1131 dollars 74 cents, and one on Mordecai Collins for 718 dollars 48 cents, all of which bonds were to be accounted for to the said G. Morris, in the way which the parties would state; and to prevent any difficulty between father and son, they agreed to refer the matter of payment of *322said bonds, and all other matters with regard to money transactions between them (making no exceptions as to dates) to the award of two arbitrators, who, if they could not agree, were authorized to select an umpire. The arbitrators entered upon the enquiry submitted to them, and not being able to agree upon all the matters in controversy before them, they selected an umpire ; and an award was made on the 28th January 1842, and signed by the two arbitrators and the umpire. By this award, the arbitrators and umpire, after reciting that they had been appointed to determine some differences between the said George and Tandy Morris, touching claims which George Morris had against his son on account of certain bonds assigned by George to Tandy, and claims of Tandy against his father on account of moneys due for services rendered, and articles furnished and moneys paid and advanced by Tandy to and for his father, decided that Tandy was entitled to and should receive from his father the sum of 1726 dollars 81 cents, with interest from the date of the award until paid.
On the 23d of June 1842, George Morris filed a bill of injunction in the Circuit court of Orange, in which he alleged that being old and infirm, and confiding in his son Tandy, he assigned him a bond on Mordecai Collins. That the bond was assigned for reasons set *forth in the bill, but with an express agreement that Tandy was to collect the same and pay over the money to him, deducting his costs and charges. That his son had recovered a judgment on the bond and issued execution: That learning that Tandy claimed the judgment as his own, he required him to retransfer it, but to his surprise, Tandy refused to do so, alleging he had purchased the bond. After some other details in relation to this bond, not material to be set forth, the bill prayed for an injunction to restrain his son from collecting the money, and for general relief.
Tandy G. Morris answered, denjúng that the bond was placed in his hands for collection only, but on the contrary, alleging that it was assigned to him for a valuable consideration paid to his father. On the 18th November 1842, the cause being heard on a motion to dissolve, the injunction was dissolved. The claim set up to the bond on Mordecai Collins, was the only claim preferred in this bill. It was one of the bonds recited in the articles of submission of the 21st January 1842, and had been passed upon by the award of the 28th of January. Yet, for some cause unexplained in the record, neither in the bill nor answer was any allusion made to the award.
After the dissolution of the injunction the appellant filed an amended bill, in which he gives a full and detailed statement of the controversy with his son, growing out of the assignment of the three bonds described in the articles of submission before referred to. He avers that at the time of making the assignment he took from his son an acknowledgment in writing, to the effect that he was to account for al-1 the money received on the bonds, and besides such acknowledgment, a written promise that he would when required give adequate security to pay what might come into his hands as the ostensible assignee of the bonds. The bill further details the circumstances which he thinks justifies him in charging his son with having purloined the said acknowledgment and promise in writing; sets forth the difficulties to which the loss of such testimony subjected him, the proposition of his son to arbitrate the controversy, and his reluctant assent to such arbitration, the circumstances attending the preparation of the submission bond, the proceedings of the arbitrators and umpire and their award, an office copy of which was filed with and prayed to be taken as part of the bill. The bill then avers that Tandy G. Morris founding himself upon the decision in his favor, had ever since claimed to be absolutely entitled to the bond on Mordecai Collins in dispute, besides claiming the large sum awarded to him, without venturing however to sue for it; and avers that it is obvious that as long as the award shall stand in force, it will afford his son sufficient pretext for claiming the amount of the bond of M. Collins as his own property, and will be an insuperable barrier to his obtaining relief in respect to that debt which he was seeking to recover by his original and amended bill. It then proceeds to set forth his various objections to the award, alleging that the arbitrators and umpire misconstrued the terms of the submission by going into an investigation of claims for services and other matters not having regard to the money transactions of the parties, and that the arbitrators were guilty of numerous other acts, which are elaborately detailed, of the grossest irregularity. That their proceedings evinced gross partiality to his adversary, and that the arbitrator and umpire who concurred in the award, were guilty of corruption. He therefore prays for the reasons assigned, that the award should be set aside and the copy delivered to T. G. Morris brought into court and canceled, and his right to the bond of Mordecai Collins be vindicated; and to save further litigation, that his right to the proceeds of the other two bonds, one on Lewis Collins, the other oh *Ballard, should also be vindicated. And the bill concludes with prayers for an account of the proceeds of said bonds, and for general relief.
The appellee in his answer, after responding to the various allegations of the appellant in regard to their dealings and controversy, which it is unnecessary in my view of this case further to notice, comes to that portion of the amended bill which seeks to impeach the award, and avers that the proposal to arbitrate came from his father; insists upon the awards being within the terms of the submission, and that everything decided by the award was contemplated and intended as the subject of reference' by both parties from the time *323of the submission down to the moment when the award was made. He denies that either the arbitrators or umpire acted irregularly or against the rules of law, or showed any partiality to the appellee, or were guilty of any corruption; and he insists that the award is right in all its parts, was rightly made up and announced; denies that it can be opened or reinvestigated ; maintains that it ruled and controlled the rights of the parties in the premises; and claimed the full benefit of it.
The parties being thus at issue upon the validity of this award, proceeded to take their testimony, some of it tending to prove and disprove the allegations of misconduct and fraud and forgery, reciprocally charged by the father against the son and the son against the father; and much of the evidence tending to sustain and repel the charges of irregularities, misbehavior, partiality and corruption on the part of the arbitrators and umpire. In this condition of the cause, an order was entered on the 4th of May 1844, by the consent of the parties, referring the cause to Charles S. Jones, whose award should be final, and should be made the decree of the court. The arbitrator was ' to govern himself by the following principles, agreed on *between the parties : He was to make up his award upon the pleadings, papers and evidence then filed in the cause, without further testimony, and without the interference of parties or others, except that if the arbitrator should be at a loss upon any point, or the counsel should certify that the examination of any witness was indipensable to having justice done to the party, the arbitrator should examine such witness in the presence of one of the counsel on each side and of no other person. The order contained a provision for arguments, directed the award should be completed and filed at least one month before the next term of the court, unless the parties should agree in writing to prolong the time; and further provided that if the arbitrator failed to render an award within the time and in the manner prescribed, or if he should render one, and such award should not for any reason be a final determination of the cause, then the parties were to stand in all respects precisely as they then stood, and in the same plight and condition; and the said Tandy G. Morris should be at liberty to insist on any objections to the jurisdiction of the court or the frame of the bill, and have the same benefit of the award referred to in the bill, as he then might have, so that the order in the event supposed should have no influence on the cause or the respective positions of the parties in reference thereto, but should be regarded as a nonentity. And here it may be as well, before tracing the history of the case farther, to enquire what was the extent of the submission to this arbitrator as contained in the order of the court. The original bill merely claimed the amount of the Mordecai Collins bond, and was silent as to the award; nor did the answer set it up in bar of the claim. But the amended bill brought the whole subject of controversy before the court. The bond on Mordecai Collins and two other bonds, are the bonds named in the submission of the 21st January 1842, the matter of payment of which they agreed to refer. The arbitrators in their award describe the claim of George Morris upon which they were acting, as a claim on account of certain bonds assigned by George Morris to his son; and upon this claim on the one side, with the rebutting claims on the other, they proceeded to act, and their award, if valid, finally disposed of the claims on both sides, by deciding that Tandy G. Morris was entitled to a certain sum which they awarded to him. The appellant therefore truly stated in the amended bill filed by him that it was obvious as long as the award should stand in force it would interpose an insuperable barrier to his obtaining any relief in respect to the bond on Mordecai Collins or either of the other bonds. His claim to the proceeds of these bonds had been passed upon by the arbitrators. It was res adjudicata, and could never be revived whilst the award continued in force. The validity of the award became, therefore, the main subject of controversy in the cause. No other question involved could be looked into until it was determined whether the award should stand. The appellee in his answer maintained its validity, claimed the benefit of it, denied the right of the appellant to go behind it, and insisted upon it as controlling the rights of the parties involved in that suit. This was the issue made up by the pleadings, and to this issue the testimony was mainly directed. In this state of things the parties, by a consent order, referred the cause to an arbitrator, whose award was to be final and to be made the decree of the court. What did they refer by this order? The cause as it then stood. And what question was involved in the cause? The pleadings which have been referred to show that the main, and until determined only way or the other, the sole question was the validity of the award. To leave no doubt as to their intent, they declare that he is to make up his award on the pleadings, ^papers and evidence then filed in the cause. The issue by the pleadings was as to the validity of the award; the prayer of the bill was to have it set aside and canceled; the award was a paper in the cause, and the evidence on each side was mainly directed to the issue thus made up by the pleadings. The arbitrator stood in the place of the court. He was the substituted and selected judge of the parties to decide that cause upon all the issues of law and fact raised by the pleadings; and a judge whose decision was io be final. It could not be pretended that, upon the issues as made by the pleadings in the cause, the court, if the case had been submitted for hearing, would not have been constrained to consider first; whether the award was or was not valid. *324If valid, upon the concession of the appellant in his bill, it barred all further relief. In like manner the main question submitted to the arbitrator was as to the validity of the award; and it was as competent for him, as it would have been for the court in the case supposed, to have rendered his award confirming the former award. The parties in. submitting a cause upon pleadings and proofs, raising principally the question whether an award was or was not valid, cannot be supposed to have intended to set aside the award entirely with a view to an enquiry into all the matters embraced in that award. That they did not so intend in this case is made more manifest- from the fact that they supposed it - possible the arbitrator might decide on the pleadings, papers and evidence then in the cause without further testimony. Provision, it is true, was made for further testimony, but he could, according to the terms of the submission, have acted finally on the case as it then stood. Yet the evidence in regard to some of the accounts acted upon by the arbitrators, and the vouchers in respect to most of the items contained in the statement furnished by the first arbitrators, were not then and have *not since been filed or placed in the record. If the last arbitrator had supposed any of the allegations going to the validity of the whole award were sustained, and the award should be set aside entirely, this evidence and these vouchers would have been necessary to enable him to make out a new award upon all the matters in controversy between the parties. The provision in the latter part of the order that it should be regarded as a nonentity in case no award, or one which did not finally determine the controversy, was made in the time and manner prescribed, does not change the construction of so much of the order as pointed out the duty of and conferred authority on the arbitrator. The reservation of the right to" have the same benefit of the award as if no such reference had been made, so far from showing an intention to abrogate .the award for the purposes of the reference, indicates a determination to insist upon it under all circumstances; before the arbitrator if he acted, if not, before the court.
Considering the submission, then, as leaving the award in full force, and authorizing the arbitrator to determine upon its validity in whole or in part, it becomes necessary to ascertain from the face of his award, how he has construed his authority. The arbitrator states in this award that he had examined the bond of submission to the first arbitrators, the award of the arbitrators and umpire, the bills and answers, pleadings of counsel and depositions to annul the award on one side and support it on the other; and after mature deliberation, he had come to the conclusion that there was no testimony in the cause to prevent the award from being the basis of his statements. He therefore adopted it, and charged the appellant with the amount, subject to a deduction for certain errors and omissions, which he proceeds to make, and ascertains the balance against the appellant by this mode of proceedings to be *951 dollars 81 cents, which, with interest, he -awards against him. He further awarded that Tandy G. Morris should assign to the appellant without recourse to him, a bond taken from Ballard for the alleged balance of his debt, a matter embraced in the controversy as raised by the amended bill, but not comprehended in the first award. It thus appears from the face of the award, that the arbitrator supposed that the principal matter referred to him was the validity of the award impeached by the amended bill. He states that he had carefully examined the submission, pleadings and evidence to annul it on one side and support it on the other. There is nothing to show that he took up the claims of the parties as a new question, and it is manifest he did not; for the first arbitrators made up their award from the statements of the parties and the vouchers laid before them. There is no evidence in the record of those statements in respect to the items of charge on either side, nor .were the vouchers exhibited to the last arbitrator. If we could look beyond the award to the deposition of the arbitrator, he states that he considered the first award binding on the parties on its face, but that they had a right to change it by any additional testimony, or by showing any error on its face, and so far as it appeared on its face or was shown by testimony to be incorrect, he corrected it.
Considering for the reasons already given, that it was the duty of the arbitrator, as it would have been of the court to which he was substituted, first to determine whether the award had been successfully impeached upon any of the issues made by the pleadings or the proof, that the want of authority, the irregularity, the partiality, the corruption of the arbitrators, were questions he had to pass upon, it seems to me the arbitrator did not misconstrue or exceed his authority in deciding upon the conduct of the first arbitrators; and if he thought the award could not be impeached *for any of the causes alleged in the pleadings or made out by the evidence, it was competent for him to adopt it as the basis of his award. This it appears from the face of the award he has done, and from his decision on the questions submitted to him, there is no appeal. Where the submission clearly shows, as I think .it does in this case, that the whole matter in controversy, and every question of law and fact arising in the cause was left to the arbitrator, who was substituted to the place of the court, and whose decision was to be final; and the arbitrator, without referring any question to the consideration of the court, makes a general award deciding the questions submitted to him, the award is conclusive. The rule of law and equity requires that the reasons for setting aside an award must appear on the face of it; or there must be misbehavior or corruption in the arbitra*325tors, or some palpable mistake. Though the court upon a review of the facts might arrive at a different conclusion from the arbitrator, it cannot for this reason set aside the award. The court can look to the testimony for the purpose of determining from the evidence and other circumstances, whether the error was so gross and palpable as to show misbehavior or corruption in the arbitrator, but not to correct any error of judgment to which in the view of the court, the arbitrator may have innocently fallen. Otherwise most awards, instead of ending, would be themselves the foundation of controversies, and courts would be called upon to exercise an appellate jurisdiction over the proceedings of arbitrators in the county upon proof of what may have transpired before them.
I think therefore that unless some error on the face of the last award or palpable mistake or misbehavior of the last arbitrator is shown, his award concludes every matter alleged as to the want of authority or misbehavior of the first arbitrators. Until his award is successfully impeached, the party should not be permitted to go behind it.
*No error or mistake appears on the face of this award. It was returned by the arbitrator to the fall term of the court in 1844, and lay until the spring term 1845. No rule or proceeding was taken to impeach it. An affidavit of counsel was filed tending to show some misunderstanding growing out of conversations before the submission as to the principles which should govern an arbitrator upon such a reference. The affidavit shows no misbehavior and presents no objection to the award. The presence of the appellee for a short time during the examination of a witness, is sufficiently accounted for both by the affidavit of the counsel and of N. Mills. He was called in it appears, on the suggestion of the counsel of the appellant, for the purpose of obtaining information of the time of a particular occurrence. The court properly overruled the objections presented by this affidavit, and pronounced a decree in conformity with the award.
After this decree, the appellant on the 7th of October 1846, filed by the leave of the court, a bill of review to the decree, in which he goes into all the matters of controversy between himself and his son, which were passed upon by the first arbitrators and concluded by their award. Nothing is alleged or shown impeaching the second award for misbehavior in the arbitrator, and upon the coming in of the answer, the court dismissed the bill with costs; a decision clearly right, if the arbitrator did not misunderstand the terms of the submission by the order of court; for if he acted in conformity therewith, there was no error in the decree made in pursuance of the award. I am of opinion that the decree appealed from should be affirmed.
DANIEL and LEE, Js., concurred in the opinion of Allen, J.
MONCURE and SAMUELS, Js., dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481467/ | MONCURE, J.
This suit was brought on an obligation of Robert Hawkins to John Perkins, dated the 4th day of May 1813, payable thirty days after date, for 1400 dollars, “for value received in flour.” John Perkins died before the 4th of April 1816, on which day administration on his estate was granted to Benjamin Perkins, Richard Perkins and James W. Dibrell of the Court of hustings of Lynchburg. In the spring of 1819, suit was brought on the bond in the Superior court of Campbell, by the said 'administrators of John Perkins against Robert Hawkins, who pleaded payment; on which issue was joined. On the *3274th of April 1821, the death of the defendant was suggested, and the suit was revived, by consent, against Nancy Hawkins, his administratrix. On the 6th of April 1824 a jury was sworn in the case ; but the plaintiff suffered a nonsuit. Pending that suit, to wit, on the 6th of August 1821, the letters of administration which had been granted on John Perkins’ estate were revoked, and on the 8th day of the same month administration de bonis non was granted to Richard Perkins, one of the three original administrators. On the 6th of April 1825, a second suit was brought on the bond ; which was brought in the County court of Bedford by Richard Perkins, administrator de bonis non of John Perkins, against Nancy Hawkins, administratrix of Robert Hawkins. The defendant pleaded payment and fully administered. The suit was regularly continued until March court 1828, when it was referred to arbitration by consent of parties. It was then regularly continued for an *award till the 27th day of October 1838, when, on the motion of the defendant, the order of reference was set aside; and on the 29th of August 1839 a nonsuit was entered. It appears from a certificate of the clerk annexed to a copy of the record of the suit, that “C. Anthony, the plaintiff’s attorney, having died, there was no counsel for the plaintiff at the time of rendering the judgment” of nonsuit. On the 4th of December 1843, a third suit was brought on the bond; which was brought in the Circuit court of Bedford, but in September 1844 was, by consent of parties, removed to the Circuit court of Eynchburg. Before such removal, to wit, in April 1844, the defendant demurred generally to the declaration, and the plaintiff joined in the demurrer. On the 7th of November 1844, the defendant pleaded severally, payment by her intestate in his lifetime, and by herself since his death; to which pleas the plaintiff replied generally; and issues were thereon joined. At the same time, it would seem, though it is not expressly so stated in the record, an account of payments and setoffs was filed in the suit, such as had been filed in each of the two former suits, consisting of
Bal. of Benj. and Jno. Perkins’ bond, dated 12 Dec. 1811, $836 08
Bal. of 5 hhds. of tobacco, per rec’t 8 Nov. 1812, £99 6s. lid.
Off advances, 30 0 00
----- 231 16
Draft on Vilbert and Peryear, per rec’t 25 May 1813, 600 00
At November term 1845, the defendant, by leave of the court, added to the above three other offsets, viz: 1st, a receipt of Benjamin Perkins to R. Hawkins for wheat receipts for 926 bushels 30 lbs. ; 2d, the price of a lot sold by Hawkins to Benjamin Perkins in the year 1818, amounting to 3200 dollars; and 3d, the costs *and damages of the two former suits and nonsuits. At the same term the plaintiff, by leave of the court, amended his declaration, and by consent of parties the cause retained its place on the docket. A bill of exceptions was taken by the plaintiff to the opinion of the court, granting leave to the defendant to file an additional account of payments and setoffs. Also, at the same term, the defendant pleaded severally, payment by her intestate to John Perkins, and his first administrators, and each of them; to which pleas the plaintiff replied generally, and issues were joined thereon. The trial of the issues commenced on the 4th and ended on the 12th of June 1846, when a verdict and judgment were rendered for the defendant. Eight exceptions were taken by the plaintiff and three by the defendant to opinions given by the court during the trial. An exception was also taken by the plaintiff to an opinion of the court overruling his motion for a new trial. A supersedeas having been awarded to the judgment, it is now to be determined whether or not the same is erroneous.
I will briefly consider the questions presented by the exceptions of the plaintiff, in the order in which they were taken.
The first exception was to the opinion of the court giving leave to the defendant to file an additional account of payments and setoffs. The reason assigned in the bill of exceptions for giving such leave was, “be- | cause of obtaining the justice of the case, and because the plaintiff had just amended his declaration;” and was, I think, sufficient. A defendant should be permitted to amend his pleadings, or add to his pleas, whenever justice requires it, if delay be not thereby occasioned, or a good reason be shown for not having done so sooner. 1 Rob. Pr. 231, and cases cited. No delay was occasioned by giving the leave in this case; the defendant being entitled to a continuance after the *plaintiff had amended his declaration. When leave | was given the plaintiff to amend his declaration, the cause would have been remanded to rules for that purpose, but for the consent of the defendant that it should retain its place on the docket.
The second exception was to the opinion of the court overruling the objection of the plaintiff to the reading of the deposition of Eittleberry Hawkins, because, as he alleged, “there was no affidavit ever made before the clerk of the County court of Bedford for the issuing of a commission to take the said deposition.” The deposition was taken on the 12th of December 1829, to be read as evidence, de bene esse, in the second suit which had been brought on the bond, and which had been referred to arbitration. It was taken in pursuance of a commission bearing date the 28th of July 1828, and of a written notice served on the plaintiff, who was present when it was taken, and cross examined the witness. It was read before the arbitrators, and relied on in the argument of the counsel for the defendant, without any objection from the plaintiff; and no objection appears ever to have been *328made to it by him until the trial of the third suit on the bond in June 1846; and then the only objection was, that no affidavit had been taken for the issuing of-the commission. The bare statement of the case is sufficient, I think, to show that the objection was rightly overruled by the court. It does not appear whether the commission was issued under the 15th or 19th sections of the act 1 Rev. Code 1819, p. 519 and 521. An affidavit was required by the former, but only an oath by the latter. If an affidavit was necessary in this case, it might well have been presumed, after the lapse of nearly 18 years, and under all the circumstances of the case, that it had been taken and lost. But it was not necessary to rely on that presumption as a ground for overruling the objection. It is enough that no objection *was made until after the deposition had been read as evidence before the arbitrators, and after the death of the witness. See Buddicum v. Kirk, 3 Cranch’s R. 293.
The third exception was to the opinion of the court overruling the objection of the plaintiff to the introduction of a record of the proceedings in a suit in the County court of Campbell, brought by Robert Hawkins against John Perkins, as evidence in this suit. Benjamin Perkins, who was a brother of John, seems to have had some connection with nearly all the offsets and payments claimed by the defendant; and it therefore became important for the defendant to prove that Benjamin was the agent of John. Accordingly, evidence was introduced. by the defendant, which tended to prove that Benjamin, who was the older of the two brothers, commenced business.in Lynchburg, probably about 1808, and John lived with him; that afterwards they did business in partnership till 1812, when it was dissolved; after which they did business separately and occupied different houses in the same town; and that at the time of the execution of the bond on which the suit was brought, and before, and after-wards, they were in the habit of transacting business for each other, as paying or receiving money, settling accounts, and generally such business as an agent would execute in the absence of his principal. The record in question was introduced as further evidence of the agency of Benjamin for John; and was, I think, admissible evidence thereof. The suit of Robert Hawkins v. John Perkins was brought in February 1812, the year preceding that in which the bond of Hawkins to Perkins above mentioned, was executed. John Perkins was preparing to defend the suit, when Benjamin Perkins, on the 9th of November 1812, agreed and settled it for him with Hawkins; and on the 25th of January 1814, Hawkins gave an order to the clerk to dismiss the suit *at his costs. No objection appears ever to have been made to this settlement by John Perkins, though he did not die until March 1816.
The fourth exception was to the opinion of the court overruling the objection of the plaintiff to the introduction of a deed from Robert Hawkins to Benjamin Perkins, dated 2d January 1818, conveying a lot of ground in Lynchburg, “in consideration of 3205 dollars in hand paid;” which deed the defendant offered in evidence, “as a circumstance tending to show a presumption of payment of the bond sued on.” I think the deed was admissible evidence for the purpose for which it was offered and admitted. The lapse of twenty years, without explanatory circumstances, affords a presumption of law that the debt is paid, even though it be due by specialty. 2 Greenl. Evi. § 528. In this case more than thirty-one years elapsed after the debt became due and before the institution of the last suit. It may be said that the institution and prosecution of the first and second suits are sufficient explanatory circumstances to repel the legal presumption. But payment may be inferred by the jury from circumstances coupled with the lapse of a shorter period than twenty years. Id. ; Best on Presumptions, § 137. And therefore on'the trial of an issue made up on the plea of payment, evidence tending to show on the one hand that the creditor was in want of money, and on the other, that the debtor had the means of payment when the debt became due and afterwards, is admissible evidence to be weighed by the jury with the other evidence in the case. Accordingly, evidence was given, without objection in this case, tending to show that John Perkins was doing an extensive business, requiring all his means, and needed all the money he could get to carry it on; and that Hawkins “was a man of considerable property, small family, (one child only,) industrious and economical; made large crops, (from *one to two thousand bushels of wheat,) and could have paid a debt of one or two thousand dollars in a year.” The deed in question .tended to show not only that Hawkins had ample means to pay the debt after it became due and before the first suit was brought, but that during that period 3205 dollars of his money,, a sum greatly exceeding the amount of the debt, was actually in the hands of Benjamin Perkins, one of the administrators of Tohn. From which and the other circumstances of the case the jury might have inferred that the debt was either paid out of that money, or was not because it had been previously paid.
The fifth exception was to the opinion of the court overruling the objection of the plaintiff to the introduction, as evidence, of a receipt from Benjamin Perkins to Robert Hawkins, in these words and figures:
“Lynchburg, 28th May 1813. Received from Mr. Robert Hawkins a draft on Messrs. Vilbert & Peryear, at 60 days after date, which when paid, will be placed to the credit of his bond to John Perkins.
Benj. Perkins.
Teste: John Moore.”
The signature of Benjamin Perkins was admitted to be genuine. Evidence was exhibited tending to prove that Benjamin *329Perkins was the agent of John, especially in his transactions with Hawkins; that John applied to Hawkins for a draft on Peryear of Richmond, for 600 dollars, on account of said Hawkins’ bond for a larger amount given for flour bought by him of said John Perkins; that said Hawkins promised to, call the next morning and give the draft; and that the draft mentioned in the receipt was paid at maturity. It did not appear that John Perkins ever objected to the draft as a payment (being the draft mentioned in the defendant’s list of ments and setoffs). The above statement *is sufficient to show that the receipt was admissible evidence. The sixth exception was to the opinion of the court overruling the objection of the plaintiff to the introduction, as evidence, of a bond of Benjamin and John Perkins for 836 dollars 8 cents, dated 12th December 1811, payable 25th December 1812, with two credits endorsed thereon, the execution of which bond was proved; (being the same which is mentioned in the defendant’s list of payments and setoffs). This bond was not a legal setoff to that on which this suit was brought, the debts not being mutual; but might, by the parties, have been applied as a payment on account of the latter; and the evidence strongly tended to show that it was so applied: at least the balance due thereon after deducting the two credits endorsed. There cannot be the least doubt about the admissibility of this bond as evidence, and I therefore deem it unnecessary to say anything more upon the subject.
The seventh exception was to the opinion of the court overruling the objection of the plaintiff to the introduction as evidence of a paper signed by Benjamin Perkins, in these words and figures:
"I have this day agreed to settle the within five hhds. tobacco for my brother John, at 27s. for each and every hundred, and have paid Robert Hawkins 100 dollars in part thereof. The balance is due and payable in ninety days from the date hereof, after said Hawkins’ deducting charges, say carriage to Richmond, &c., &c.
Benj. Perkins.
Witness: William Powler.
Bynchburg, 8 Nov. 1812.”
Then follows a statement of the number and weights of the 5 hhds. of tobacco, weighing together 7359 lbs., at 27s., ,£99 6s. 11d. (or 231 dollars 15 cents, which is *the first item in the defendant’s list of payments and setoffs). This paper was admissible in connection with the evidence which was exhibited tending to prove that Benjamin Perkins was the agent of John. That this tobacco was in fact purchased by John Perkins, is further shown by another paper introduced by the defendant as evidence, signed by John Perkins and admitted to be genuine, containing a statement of the numbers and weights of 5 hhds. of tobacco, corresponding precisely with the statement above mentioned, having the name of Robert Hawkins at the head of it, and endorsed thereon these words:
“Mr. Pox will please give Mr. Hawkins an account of sales of any part of the within tobacco that he may have sold.
J. Perkins. ’ ’
The latter paper is not referred to in the bill of exceptions now under consideration; and seems not to have been offered in evidence until after that exception was taken. It is set out as part of the evidence in the cause, all of which is contained in the bill of exception to the opinion of the court overruling the motion for a new trial. But still I think it may be considered in determining the question raised by this exception, notwithstanding the rule laid down in some of the cases that facts stated in one bill of exceptions cannot be noticed by an appellate court in considering another; unless indeed the first bill of exceptions should be referred to in and adopted as part of the second. 1 Rob. Pr. 347, and cases cited. The reason of that rule does not apply, and therefore the rule does not extend to a case like this, in which one of the bills of exceptions contains all the evidence which was given on the trial. This is obvious from what was said by Judge Carr in delivering the opinion of the court in Brooke v. Young, *3 Rand. 106. In that case there were two bills of exceptions taken to opinions of the court given on the trial In the first, it was stated that the evidence therein set out was all the evidence in the cause; and for that reason Judge Carr was of opinion that resort might be had thereto in deciding the question raised by the second bill of exceptions, in which a small part only of the evidence was contained. But he acquiesced in the opinion of his brethren who thought otherwise; “because, although the evidence stated in the first bill might be all, when it was sealed, there might be other important facts brought forward afterwards; and because, by thus supplying the defects of one exception from another, we may shut out evidence material for the other party not noticed in either bill. ” In this case the bill of exceptions containing all the evidence was taken after the trial was over, and therefore other important facts could not have been brought forward afterwards. No objection was made to the introduction of the latter paper. Considering the two papers together, the former was not only admissible evidence, but was favorable to the plaintiff. For while the latter tended to charge the plaintiff’s testator with the whole price of the tobacco, the former gave him credit for 100 dollars. And the price of 27s. fixed by the former does not appear to have been too high, nor ever objected to by the said testator. But with or without the latter paper, I think the former was admissible evidence.
The eighth exception was to the opinion of the court sustaining the motion of the defendant to exclude from the jury a draft of Benjamin Perkins on Anderson & Blair of Richmond, dated Bynchburg, January 16th, 1813, payable at sight to Samuel Garland or order, for 343 dollars 20 cents, en*330dorsed by S. Garland to William Barrett, and receipted by the latter *12th February 1813; which draft was offered in evidence by the plaintiff, as tending to prove the correctness of the following item in the account of Robert Hawkins with Benjamin Perkins, which was exhibited before the jurj', viz: “1813, January 19th. My draft on Anderson & Blair, in favor of Samuel Garland, £102 19s. 9d. ’ ’ No evidence was exhibited or offered to connect Robert Hawkins in any way with this draft; which was therefore inadmissible evidence against him.
The ninth exception was to the introduction of the paper called “wheat receipts,” and of the statements of the witness Miller in relation thereto, as evidence for any purpose in the case. The plaintiff had introduced and offered to prove before the jury an account of Robert Hawkins with Benjamin Perkins, amounting to £350 11s. 4d., credited by £91 12s. 3d,, commencing 3d July 1811, and ending 3d June 1813; to which the defendant objected, but the court overruled his objection, and he excepted. This account was probably introduced to repel to some extent the effect of the bond of Benjamin and John Perkins to Hawkins, and the deed from Hawkins to Benjamin Perkins, which had been introduced by the defendant, and was, I think, admissible for that purpose. The paper called “the wheat receipts” was introduced as tending to show that the said account, or so much of it as the plaintiff might prove to be due, should be credited by the price of the wheat mentioned in the receipts, and that the balance really due on said account, if any, was much less than appeared on its face. The said paper contains two columns of figures, which may represent bushels and pounds of wheat; and if they do, the aggregate amount is 926 bushels 30 pounds; annexed to which is a receipt in these words:
“Lynchburg, October 1812. Received from Mr. Robert Hawkins receipts for the within as annexed, ^agreeable to an agreement entered into this day. As witness my hand, as dated above.
Benj. Perkins.
Witness: Booker Shelton.”
The witness Miller, who was clerk and salesman of Benjamin Perkins in 1812 and for several years thereafter, stated that he “would take the paper to be a wheat receipt, the figures of which are in the handwriting of Richard Perkins. The receipt is in the handwriting of Benjamin Perkins, whose name it bears. Mr. Shelton, the subscribing witness, was once in the employment of Benjamin Perkins; the time not remembered. Mr. Shelton has long since been dead. His attestation to the receipt is his proper handwriting.” — “The wheat receipt is not credited in the account.”' — “Every regular merchant should have made the necessary entry on his books showing the exact transaction.” The witness made some other statements' in relation to the paper, which need not be noticed. I think the paper and statements of Miller in relation thereto were admissible evidence.
The tenth and last exception was to the opinion of the court overruling the plaintiff’s motion to set aside the verdict and judgment, and award him a new trial: 1st, because the court had suffered evidence to go to the jury on the trial which was illegal and improper (referring to the evidence excepted to by the eight last mentioned exceptions) ; and 2d, because the verdict was plainly contrary to and unsustained by the evidence, all of which, on either side, was set out in a paper marked FEE, which, as the court certified and directed to be entered of record, contained all the facts proved on the trial of the suit'. I have already disposed of the first ground of the motion in disposing of the previous exceptions, and am, therefore, of opinion that a new trial should not have been granted on that ground. The only remaining question is, whether *the second ground of the motion was well founded, and whether the verdict was plainly contrary, to, and unsustained by, the evidence. Without considering whether the facts proved on the trial were properly certified, but considering all the evidence on either side (in which there does not appear to be any conflict), as true, which is the most favorable view that can be taken of it for the exceptant, I am of opinion that the verdict was well warranted by the evidence. The defence relied on throughout this protracted litigation, which commenced in 1819 and has continued, with brief intervals, ever since, consisted of three items of payment or setoff which arose about the time of the date of the bond in May 1813, and were together about equal to its amount, the existence of which, as. good demands at that time, was either admitted or proved beyond controversy, with each of which Benjamin as well as John Perkins was in some way connected; and although John lived until March 1816, and Benjamin till a much later period, no attempt was ever made to show that either of these demands was otherwise settled than by apptying them as payments of the bond. The form, terms and consideration of the bond, the manner of business and situation of the parties, all render it improbable that the bond, if not settled, would have been permitted to stand so long without suit or demand. But, besides all this, is the eyidence of Eittleberry Hawkins, that one of the said three items of payment or setoff, to wit, the bond of Benjamin and John Perkins to Hawkins, was to go to the credit of the flour bond of Hawkins to John Perkins; that he was at the store of John Perkins with Hawkins when Perkins applied to Hawkins for a draft upon Peryear of Richmond for 600 dollars on account of his said Hawkins’ bond for flour; that Hawkins remarked he did not think he owed him so much, and asked him if he had credited *the bond for the previous payment; he said he had not, but would do so, and if the draft exceeded the balance due on the bond he would re*331fund to said Hawkins; and that said Hawkins promised to call the next morning and give the draft. It was proved that about ten days before the flour bond became due, such a draft was accordingly given by Hawkins to Benjamin Perkins for his brother John, and on account of the flour bond, and was paid at maturity: And, besides the evidence tending to show the general agency of Benjamin for John, it does not appear that the latter ever objected to the former’s agency in this matter, or pretended that he had not received the proceeds of the draft. I do not see how the jury could have found any other than a verdict for the defendant.
Upon the whole, I am for affirming the judgment.
The other judges concurred in the opinion of Moncure, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481472/ | ALLEN, J.,
delivered the opinion of the court.
It appearing that the father of the female appellant by his last will and testament, duly executed and admitted to probat, did, amongst other things, bequeath certain personal property therein described to his wife during her natural life or widowhood; that two of the executors named in the will took upon themselves the execution of said office; that one of said executors departed this life, and the surviving executor was removed from his office, and administration de bonis non with the will annexed was committed to Daniel Mason, who executed bond with the security and qualified as such administrator according to law; and it furthermore appearing by the report of the master commissioner, made out in pursuance of the interlocutory decree, that the w'hole of the personal estate of William Porter, the said testator, which came to the hands of said administrator de bonis non with the will annexed, was property held and enjoyed during her life by Sarah Porter, the widow of said William Porter, in virtue of the bequest aforesaid; and it also appearing that the testator by his will after the bequest to his wife as aforesaid, furthermore declared that in case she should not marry during her natural life, it was his will and desire that at her decease his executors should proceed to sell the whole of his estate, and divide the money arising therefrom as in the will directed ; this court is of opinion that the assent of the executors to the legacy to the widow during her natural life or widowhood, and her enjoyment thereof under said bequest during her natural life, was not a full administration *of the personal estate in this case. The will made no disposition of the specific properly in favor of any third person after the death or marriage of the widow, but on the contrary required the executors at her decease to sell the property, describing it as part of his estate; thus making it the duty of the personal representative, in execution of the will, to take and sell the said personal estate when the life estate terminated, as part of the assets of the estate. The court is therefore of opinion that when after the death of the widow the administrator de bonis non with the will annexed took possession of and sold the personal property bequeathed to her during her natural life or widowhood, he was acting in virtue of his office and in performance of the duty imposed upon him by his office and the will of the testator; and that the sureties in his official bond were liable for his faithful administration thereof: It being the duty of the administrator to pay over the proceeds arising from the sale of such properly amongst the residuary legatees in the mode prescribed in the will; and by the condition of their bond, they bound themselves that he should pay and deliver all the legacies contained and specified in the will as far as the goods, chattels and credits would extend. The court is therefore of opinion that the said decree is erroneous. It is therefore adjudged and ordered that the same be reversed with costs. And this cause is remanded to be further pro-ceded in according to the principles above declared in order to a final decree. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481473/ | SAMUELS, J.
The evidence not excepted to shows with sufficient clearness, that previous to the 1st of January 1836, John Boyce was indebted by bond to Robert I. Smith in the amount mentioned in the bond *and deed of trust of that date. Question, however, is made by the appel*355lants whether John Boyce was of sufficiently sound mind at that time to execute the bond and deed. The evidence clearly proves that the grantor at that time and before was laboring under monomania, but upon a subject in nowise connected with affairs, of this nature; that he was competent to transact other business, and was engaged therein; that general mania did not supervene until some time after. Partial insanity of this nature and degree could not invalidate the bond and deed. Shelford on Lunacy 260. If the evidence had established the incompetency alleged, the appellee would have been remitted to his rights and remedies on the bond previously existing by virtue of the act of March 17th, 1842, Sess. Acts, ch. 98. The appellants here are not materially concerned in the question whether the property shall be held liable under the deed of trust, or under the bond and the statute. When the original bill was filed, the complainant’s demand for more than the interest then due might possibly have been resisted on the principles of the case of Mayo v. Judah, 5 Munf. 495. At the time of the decree, however, the principal and interest had all become payable, and were properly decreed to the appellee. The decree omits to allow a credit for 7 dollars 22 cents, admitted in the bill to have been paid February 1st, 1836; correcting the decree in this particular, I am of opinion to affirm it in all other respects, with costs to the appellee.
The other judges concurred in the opinion of Samuels, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481474/ | MONCURE, J.
I will first consider the case of Jincey & als. paupers v. Winfield’s adm’r & als.
Since 1782 an owner of slaves has been authorized to emancipate them in either of two modes prescribed by law, one of which is by last will and testament. This right of the owner is subordinate to that *of his creditors to subject his estate to the payment of his debts; and by express provision of the act of 1792, slaves *357so emancipated are “liable to be taken by execution to satisfy any debt contracted by the person emancipating them, before such emancipation is made.” When slaves are emancipated by will they should not be sold for the payment of the testator’s debts, until all his other estate liable thereto has been applied to the purpose; and then should be sold only for such period as may be sufficient to raise an adequate fund to meet the deficiency; for “all are equally entitled to their freedom, and they should have it partially, if they cannot receive it absolutely. Patty v. Colin, 1 Hen. & Munf. 519. “No court would permit the executor to manumit some and make slaves of others, but the burden of servitude should be equally distributed.” Nicholas v. Burruss, 4 Leigh 294. A court of chancery has jurisdiction to adjust the rights of the creditors and of the freed men. It will enjoin the creditor’s execution, even after it is levied on the freed men, until it can ascertain, by proper enquiries, whether there be any other property which should be applied to their exoneration ; and will not utterly reject their claim ‘ ‘until it is found that no possibility exists of effectuating their emancipation.” That such is the law, and such the mode of its administration, will plainly appear by reference to the cases of Woodley v. Abby, 5 Call 336; Patty v. Colin, 1 Hen. & Munf. 519; Dunn v. Amy, 1 Leigh 465; Elder v. Elder’s ex’or, 4 Leigh 252; Nicholas v. Burruss, Id. 289; Parks v. Hewlett, 9 Leigh 511; Ruddle’s ex’or v. Ben, 10 Leigh 467.
There can be no doubt therefore but that the appellants in this case would have been entitled to the relief claimed in their bill, if they had filed it before they were sold under the executions. For in any view that can be taken of the case it is obvious that after ^applying the other estate of the testatrix to the payment of her debts, it would be only necessary to sell them for a comparatively short period, to raise an adequate fund to meet the deficiency: And if the debt due the administrator be set down at the amount at which it is fixed by the decree of the court, it is not improbable that, including the hires which have accrued since 1848, (the last year for which hires are credited to the estate in the administration account,) there may be already a sufficient fund in the hands or power of the administrator to pay all the debts, including the amount of the satisfied executions.
The only question then is, whether the sale under the execution vested the purchaser with such indefeasible rights in the negroes sold as to deprive the latter of the relief to which they would have been otherwise certainly entitled? I do not think that it did. Generally, if not universally, a bona fide purchaser of the subject of a specific legacy from an executor, or under an execution against the goods and chattels of the testator, would acquire a good title against the legatee, notwithstanding it might be a breach of duty in the executor to make the sale, or suffer it to be made. The law invests him with the personal estate of his testator, and makes it his duty to apply the same, first of all, to the payment of the testator’s debts. Strangers cannot know the situation of the estate, and should, therefore, be generally protected in their bona fide purchases from the executor. Specific legatees, who are injured by an improper sale of their legacies, may generally obtain indemnity out of the remaining estate or from the executor. But the right conferred by emancipation stands on different ground, and requires the application of different rules and principles from those which govern the case of a specific legacy. In the language of Tucker, P., in which all the other judges concurred, 9 Leigh 521, *“ Emancipation is not strictly a gift of property: It is the exoneration of a human being from the bonds which our institutions have fastened upon him, and which the beneficence of our times has authorized the master to remove.” It can make no difference that the executor has never assented to the emancipation of the slaves. They derive their right of emancipation from the will of their owner, and not the assent of his executor. Without such assent they may not be entitled to sue at law for their freedom, but may sue for it in equity, and will recover on showing that the debts are paid, or that there is other estate liable and sufficient for their payment, and having it applied to that purpose. The power of the executor to withhold his assent is given him that he may keep them together, to be ready, if necessary, to answer the claims of creditors; and in the mean time, of course, he may hire them out for that purpose. With or without such assent they are answerable for those claims, but answerable sub modo only, and upon condition that there is no other estate liable and sufficient for their payment. Subject to that liability they are free from the date or recordation of the will. They may be taken in execution if necessary, but should not be if there is other property liable thereto and sufficient for its satisfaction. They should not be sold absolutely, if a sale for a term would produce satisfaction ; nor should some be sold while others are left free, but the burden of servitude should be equally distributed. These, I think, are the relative rights of the freed men and the creditors; and if the former be sold in contravention of their rights, the sale may be set aside; at least upon the terms of refunding the purchase money and interest, and any expenses incurred on account of the freed men, after deducting hires and profits. The rule of caveat emptor applies to a purchaser of emancipated slaves, whether from the ^'executor or under an execution against the goods and chattels of the testator. The purchaser knows, or is presumed to know, that slaves may be emancipated by will; and if so emancipated, cannot be sold absolutely unless required for the payment of the testator’s debts. It is his buisness to enquire whether or not the slaves so purchased are *358emancipated. He is a purchaser of the slaves with express or implied, notice of their rights, which may be enforced against him, as against the executor or the execution creditor. If this were not so, the slaves, without their default, and without being required for the payment of debts, might lose forever the freedom intended to be bestowed upon them by their owner; and, unlike a specific legatee whose legacy is improperly sold, could obtain no indemnity; and the price of the slaves would enure to the benefit of the executor or the estate of the testator, contrary to his 'will that they should be free. On the other hand, the application of the rule of caveat emptor to the purchaser would do him no damage which due caution on his part might not avoid, and would rarely do him any damage at all; for he would be entitled to indemnity out of the estate of the testator or against the executor.'
But the case of Patty v. Colin, 1 Hen. & Munf. 519, is, I think, an express authority for affording relief against a purchaser, and seems to be'decisive of the question under consideration. There, the slaves who claimed their freedom,, belonged to .John Timberlake at his death, and were -bound for his debts, if his .remaining estate was insufficient for their payment. They were sold under execution against his goods and chattels; .and the purchaser at the sale sold them to Colin, a subsequent bona fide purchaser for valuable consideration; who," being a purchaser, in the second decree, was a fortiori' éntitled to protection, if, the, purchaser under the execution was so entitled. The ^slaves claimed' to have been emancipated, not by John Timberlake, but by his widow and residuary legatee; and their rights depended upon the contingency that there was sufficient other estate of each to pay their respective debts; or that there was sufficient other estate of the widow to pay her debts, including the debt to her husband’s estate for these slaves, which she pretended to have purchased from his executor,, but had not paid for. The court directed the proper accounts to be settled, and enquiries made,,' for the purpose of ascertaining whether there was any estate to be applied to the redemption of the paupers; and, if there should be, directed it to be so applied; but if not, confirmed the title of the purchaser. In that case, nothing was said about the assent of the executor to the emancipation of the slaves; and I think it is plain that no importance was attached to any such assent, if it existed; nor to any assent of the executors of John Timberlake to the legacy to his widow, so far as to give it any effect 'in impairing, the rights of the purchaser.
There might possibly be such laches or 'other circumstances in a case as to render it inequitable to disturb the rights of- a purchaser ; 'though a court of equity would be slow in imputing laches to persons of such ignorance and imbecilityl In this case there is no ground whatever for doing so; nor are there any other circumstances unfavorable to the claimants. They were sold just ten months after the will emancipating them was admitted to record, under executions issued upon judgments confessed by the administrator. The slaves were probably ignorant of the sale until about the time it was made. It had been advertised only at the court-house door, and but one month before the sale; and no person appears to have seen the advertisement, but one who was requested by the sheriff to read it. J. H. Ritzhugh testified that he was present at the sale, and heard several persons ask where the *negroes were advertised; had seen no advertisement himself; heard two others say they had seen none; and heard a good many people say it was not right to sell a portion of them to free the others. Of the thirteen negroes that were sold, eleven were infants, and most of them of tender years. They were sold for 845 dollars less than they were then worth; though they produced 239 dollars 61 cents more than the amount of all the executions. The bill was filed just a week, and the affidavit annexed thereto bears date but two days, after the sale. All the- diligence that could be expected in such a case has been used by the plaintiffs in this; and the purchasers halve no cause to complain of them on, that score. Théy do not pretend that they did not in fact .know that the negroes purchased by them had been emancipated ; though, they no doubt supposed that the sale was valid;
I will now consider the case of Jones v. Jincey, &c. I think there is ho error in the decree, of the Circuit,court in overruling the exception of the appellant, and sustaining the exception of the appellees to the commissioner’s report, and in instructing the commissioner to allow the appellant for his services from December 1841 to the time of his marriage in January 1842, at the rate of 408 dollars per annum; and for his services from the date of his marriage to January 1847, 100 dollars per annum; nor in the opinion therein expressed, that so much of his ciaim as was anterior to December 1841, was barred by the act of limitations.
The evidence in this case shows that the services for which compensation is claimed by the appellant were performed with a view to a legacy, and not in expectation of a reward in the nature of a debt. Ritzhugh proved that the appellant assigned as a reason for suing his aunt the testatrix, that she had made a will and set all her negroes free; said that he had left a good situation on the railroad to come and attend to *her business, and she could not expect him to attend to it for nothing, when she had left him nothing by her will; and that she had promised if he would come and live with her and attend to her business, she would do as well or better for him than he was then doing. John Winfield proved that while the appellant was living with the testatrix, he expressed a doubt whether she ever would make a will, and if she did not, he thought it probable he would not get' paid for his services. The witness *359and another went to see her, and proposed to her to make some provision for the appellant. Her reply was, that she would do as well for him as he would do for her, and she refused to do anything at that time. Adkins proved that he was at her house a short time before the appellant went there to live. She told him she had written to her nephew the appellant, to come to live with her. Witness replied that he thought it would be a pity to take him away from the employment he was then in. She stated that she thought he would lose nothing by it; that all she had was for him and his sister at her death. E. 1$. Jones proved that he was on a visit to his aunt the testatrix, in January 1842, when she told him that after the death of her brother (who had lived with her) she wrote for the appellant to come and live with her, and take charge of her matters; that she would do as well or better for him than he had been doing on the'Wilmington railroad; and that he had complied with her request, and was then engaged in doing her business. It was proved that the appellant, when he left the service of the railroad company, was receiving an annual salary of 480 dollars, and paid his own board, which was 72 dollars. The last two of the above named witnesses were introduced by the appellant. The foregoing is all the testimony tending to show, a contract for compensation, except that of Haney Winfield, another witness for the appellant, *who stated that she was at the residence'of the testatrix in 1839, a few days after the death of her brother; while there the appellant arrived. In a conversation with testatrix witness expressed a hope' that testatrix would do very well by Patrick, he having said that he was getting 500 dollars oti the railroad. Testatrix said she would give him more than that, and more than he could get anywhere else, as an inducement for him to leave the railroad and attend to her affairs. This testimony was given in 1849, ten years after the conversation occurred to which it refers; and it cannot be expected that the recollection of the witness should be very accurate as to the particular words used. A slight'verbal variation might have an important influence on the terms of the contract, if there was any, or in making a contract for'the parties if there was none. But admitting the conversation to' have occurred precisely as related, it is consistent with all the other testimony, which shows that there was in fact no contract, .but a mutual expectation that the appellant would receive his reward in the shape of a provision for him in the will of his aunt.
But though it has been held that an action cannot be maintained for services performed with a view to a legacy, and not in expectation of a reward in the nature of a debt, Chitty on Contracts 542 and cases cited, yet it has been also held that if performed at the request of the testator, or if he has promised to pay for the services, either before or after they were performed, an action is maintainable. Id. 543, cases cited in note. The services were performed in this case at the request of the testatrix, and as she did not compensate them in the mode expected by both parties, it is'right that he should receive reasonable compensation _ as a creditor of her estate. What compensation would be reasonable, under all the circumstances of the case, is the question to be decided. The court below referred the question as *to the appellant’s claim to a commissioner, who allowed 480 dollars per annum before, and 350 dollars per annum after, the appellant ceased to live with the testatrix. Both parties having excepted, the court, after applying the bar of the statute of limitations to_ the claim, and thus excluding so much of it as had accrued more than five years before the date of the appellant’s writ against the testatrix, allowed the same rate of compensation which had been allowed by the commissioner for so much of the period during which the appellant lived with the testatrix, as was not excluded by the bar of the statute, deducting, however, for board, at the rate of 72 dollars per annum; but allowed only 100 dollars per annum afterwards. I think the allowance made by the court was reasonable, and fully as much as the evidence sustains. There can be no doubt of the propriety of the application of the bárof the statute of limitations; and that the date of the appellant’s writ was properly fixed as the period when it ceased to run. The court, I think, was also right in fixing on the salary which the appellant was receiving from the raiíroad company when he came to live with the testatrix, (after making the proper deduction for board,) as the standard for measuring his compensation while he continued to. live with her. Tor although it was much moré than a reasonable compensation, looking either to the nature and amount of the services or their value to the testatrix; yet it was, perhaps, not unreasonable, looking to the facts that he gave up his situation in the employment of the railroad company to live with his aunt at her request; that she had repeatedly said he should lose nothing by doing so ; and that she desired his society, perhaps more than his services. But none of these facts apply to so much of the claim as is for services rendered after he ceased to live with her. The evidence shows that after the death of her brother she was left alone, and wanted the society of one of her *relations, as well as his assistance in the management of her business. She accordingly selected the appellant. It will be observed in referring to the testimony on both sides,’ that all her promises and declarations in regard to what she intended to do for him were in consideration of his coming to live with her: And John Winfield testified that the appellant left her alone, which she very much disliked; and she said to the witness that she desired the services of her nephew, the appellant, more to stay with her at night than any other time. He lived with her about two years, until January 1842, when he married, and ceased to live *360with her from that time till her death, in February 1847. Had he continued to live with her until her death, she would probably have made a satisfactory provision for him in her will, and we might never have heard of this suit. Having thus early ceased to live with her, there is no longer any reason for looking to any higher standard of value of his services afterwards rendered, than a quantum meruit.
What then was the value of his services After he ceased to live with her? The witnesses differed very much among themselves in opinion on this subject, varying in their estimates of a reasonable yearly compensation from SO dollars to 500 dollars. Most of the witnesses who placed a high estimate on the value of the services of the appellant, seem to have considered that he ought to be allowed at least as much as he had been receiving from the railroad company, without reference to the actual value of his services as an agent, of which some of them seemed to know nothing. It would be impossible, from these opinions, to come to any correct conclusion on the subject; and the better way of doing so is to ascertain the nature and extent of the services. The evidence shows that he had little or nothing to do with the management of her slaves or farming operations. She had two blacksmiths’ *shops and a boot and shoemakers’ shop, and was in the habit of hiring out one, and sometimes two slaves; the income of all which and her farm was about 400 dollars per annum. She was the only white member of her family, and was extremely frugal; but was an indulgent mistress, and a bad manager of slaves; and her income seems not to have exceeded, if it did not fall short of, her expenses. The appellant’s business chiefly was to keep the shop accounts, receive her income, and apply it to the payment of her expenses. It occupied a comparatively small portion of his time. He acquired by his marriage about twenty slaves, and a tract of land on which he afterwards resided, adjoining that of the testatrix. He attended to his own business as well as hers after his marriage; devoting but little time to hers, as one of the witnesses testified. The same witness thought he had the privilege of having his work done at her blacksmith and shoe shops free of charge. On the foregoing statement, I think that the allowance of 100 dollars per annum for his services after his marriage was ample. But this is not all. The appellant was the general receiving and paying agent of his aunt, and does not appear to have ever rendered her any account. In fact, she does not appear to have ever required any of him; at least until after he sued her, and was no doubt willing that he should retain what he might owe on such account, as compensation for his services. If anything had been due to him thereon, it would probably have been charged as part of his claim against the estate exhibited before the commissioner. That claim is exclusively for his services, and is credited by nothing. The testatrix, when she was sued by the appellant, said she owed him nothing, and relied on what she claimed would be due her on a settlement of his agency transactions, as a sufficient setoff against any claim he might have against her for his services: *and she was preparing to make her defence to the suit when she died. Besides the money received on account of her shops, hires, &c., he received in 1845 the price of a negro sold by her for 400 dollars. Though her income was equal, or nearly so to her expenses, a large portion of the latter, during the whole period of his agency, remained unpaid at her death; and was the consideration of bonds given by him as her agent, on which judgments were confessed by him as her administrator; being the judgments (or greater part in number and amount of them) for the satisfaction of which, thirteen of the emancipated slaves were sold under execution. It is probable, therefore, that a correct settlement of his accounts as agent would exhibit a balance against him to be applied to the credit of his claim for services; and if such a settlement could now be made, it would be proper to order it. But under the circumstances of the case, it cannot be expected, and the attempt to have it made would be attended with expense and delay, and probably be abortive. The fact however, that the appellant alone, if any person, can render an account of his agency; that he has rendered no such account; and that he would probably be found to be indebted thereon, could a correct settlement be made, serves further to show that he certainly has no cause to complain of the allowance made for his services by the court below.
Upon the whole, I am for reversing so much of the decree as dissolved the injunction awarded against the appellees Field and Ragland, and dismissed the bill as to the appellants Jincey and her children, and the children of Scilla, and as directed the commissioner to enquire into and report the fair market value of Scilla previous to her death, and affirming the residue thereof; and remanding the cause for further, proceedings, according to the terms of the decree, which has been agreed upon in conference.
*The other judges concurred in the opinion of Moncure, J.
The following is the decree of the court:
The court is of opinion that the appellants in the first of the above named cases are entitled to freedom; subject only to a charge for the balance which may remain unpaid of the debts of the testatrix Mary Winfield, after applying to their payment all her other estate, including the hires of the appellant since her death: that if such other estate be insufficient for the payment of said debts, the appellants should be sold for such term of years as may be sufficient to raise an adequate fund to pay the deficiency, so as to distribute the burden of servitude as equally as possible among them: that the sales of the appellants Jincey and her children to the appellee George Field, *361and of Scilla and her children to the appellee, John D. Ragland, are valid only in the contingency that all the estate, including the emancipated slaves, shall be required for the payment of said debts, and are invalid in any other event; in which latter case the only effect of said sales is to satisfy the said executions, and make the said purchasers creditors of the estate of the said testatrix by the amount of the purchase money paid by them respectively, with interest thereon from the time of such payment and of the expenses incurred, after deducting hires and profits received by them respectively on account of said negroes since the sale: that all proper accounts should be taken to effectuate the purposes aforesaid: that so much of the said decree of the Circuit court as directs the commissioner to enquire into and report the fair market value of the plaintiff Scilla previous to her death, and as dissolved the injunction awarded against the said Field and Ragland, and dismissed the bill as to the said Jincey and her children and the children of Scilla, is erroneous, and that there is no error in the *residue of the said decree. Therefore so much of the said decree as is above declared to be erroneous is reversed, and the residue thereof affirmed, with costs to the appellants in the first and the appellees in the last of the above mentioned cases. And the causes are remanded for further proceedings on the principles above indicated. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481475/ | MONCURE, J.
This is a writ of error to a judgment of the Circuit court of Cumberland, rendered in April last, convicting the prisoner William H. Dowdy of grand larceny, and sentencing him to imprisonment in the penitentiary for one year. The indictment contains ten counts, in each of which the subject of the larceny is stated to be "eleven hundred and forty pounds of tobacco, of the value of one hundred dollars, ” but each of which is different from the others in some incidental circumstance. The first is a common count for larceny, stating the owner of the property to be a person to the jurors unknown. The next six *are for receiving stolen tobacco, knowing it to have been stolen. And the last three arc for aiding John Bailey, a free man of color, in concealing stolen tobacco, knowing it to have been stolen. In all of the last nine, the property is stated to have been stolen by a person to the jurors unknown. In three of them it is stated as the property of Nathaniel M. Osborne, in the other three as the property of George McGlasson, and in the other three as the property of a person to the jurors uhknown. In three of the six counts for receiving, the property is stated to have been received of John Bailey, a free man of color; and in the other three of a person to the jurors unknown. All of the counts except the first are upon the 19th section, chap. 192, p. 729 of the Code, which is in these words: “If any free person buy or receive from another person, or aid in concealing, any stolen goods or other things, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted.” On the arraignment of the prisoner, and when the indictment was read to him, and before he had pleaded thereto, he moved the court to quash each count of the indictment; which motion the court over*362ruled. He then moved the court to quash the whole indictment; . which motion the court also overruled. And to the opinions of the court overruling said motions, the prisoner severally, excepted. ' He then demurred generally to the indictment and each count thereof; but the court overruled the demurrer, and he then pleaded not guilty. The prisoner was tried and found guilty; and exceptions wer.e taken to sundry opinions given by the court on the trial; but as the verdict was set aside and a new trial granted, it is unnecessary to take any notice of these exceptions.
On the second trial of the cause, four bills of exceptions *to opinions of the court given on the said trial, were made part of the record. The first states, that on the trial of the case, before the jury were sworn, and before they were charged,- the prisoner moved the court to compel the attorney for the commonwealth to elect under which count or counts'of the indictment- he would prosecute the prisoner; but the court overruled the motion, and permitted the said attorney to prosecute under the whole indictment. The second is in regard to a motion,of the prisoner to strike the name, of John M. Hamontrée from the panel of twenty-four jurors; 'which was overruled by the court, but which it is unnecessary to'notice ány further. The third states, that after the persons summoned under the first venire facias had been examined,. the court failing to m.ake up the panel of twenty.-four out oí the persons' so summoned, directed the sheriff- to ’ call the bystanders; among, whom Robert H. Amos was called, swórn and examinéd by ' the court, and, upon such examination stated that he was a freeholder in a .county adjoining Cumberland, but wás a resident, though hot a freeholder in Cumberland: and the prisofier.'excepted to the' said Amos because he was hot a freeholder in’the county of Cumberland, and not qualified according to law; but the court overruled the exception, decided that he was a juror free from exception,' and placed him on the panel of twenty-four.. "The fourth stated, that' after the persons summoned under the first venire facias had been examined, the court failing to make up the .panel of twenty-four out of the persons so summoned, directed a second venire to 'summon sixty persons ‘from the body of .the county,; bn which second venire John RT. Shepherd was summoned, and being sworn and examined by the court, he stated that he was not a freeholder; and the prisoner challenged the said Shepherd because he was not a freeholder and qualified as a juror' according to law; but the court ^overruled the said challenge, decided that he was a juror free from exception, and placed him on the said panel of twenty-four.. The prisoner was afterwards tried and again found guilty; and moved the court for a new trial, because the verdict was, contrary to the law and the evidence. 'But ¡the court overruled the motion, and the prisoner excepted, and his bill of exceptions was made a part of the record ; but it is unnecessary to notice it any further.
I think there is no error in the several opinions of the Circuit court overruling the demurrer; and overruling the motions of the prisoner to quash the indictment, and each count thereof; and to compel the attorney for the commonwealth to elect under which count or counts he would prosecute the prisoner. The law on this subject is thus laid down by Buller, J., in the case, cited in the argument, of Young v. The King, 3 T. R. 106: ’‘In misdemeanors, the case in Burrow shows that it is no objection to an indictment that it contains several charges. The case of felonies admits of a different consideration ; but even in such cases it is iio objection in this stage of the prosecution. On the face of an indictment every count imports to be for a different offence, and is charged as at different times; and it does not appear on the record whether the offences are not distinct. But if it appear before the defendant has pleaded or the jury are charged, that is to .be tried for separate offences, it has been the practice ' of the judges to quash the indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenge of the jury; for he might object to ajuryman’s trying one of the offences, though he might have no reason to do so in the other. But these are only matters of prudence and discretion. If the judge who tries the prisoner does not discover it in time, I think he may put the prosecutor to make his election on which charge he *will proceed. ” — “But if the case has gone to the length of a verdict, it is no objection in arrest of judgment. If it were it would overturn every indictment which contains several counts.” In the case of Kane v. The People, in the Court of errors of New York, 8 Wend. R. 211, the law is thus stated by the chancellor: “In cases of felony, where two or more distinct and separate offences are contained in the same indictment, the court, in its discretion, may quash the indictment or compel the prosecutor to elect upon which charge he will proceed; but in point of law, it is no objection that two or more offences of the same nature and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. It therefore forms no ground of a motion in arrest of judgment;' neither can it be objected by way of demurrer, or oñ a writ of error. It is every day’s practice to charge a félony in different ways in several counts, for the purpose of meeting the evidence as it may come out upon the trial; each of the counts on the face of the indictment' purports to be for a distinct and separate offence, and the jury very frequently find a general verdict on all the counts, although only one offence is proved; but no one ever supposed that formed a ground for arresting the judgment. If the different coufats are inserted in good faith, for the purpose' of meeting- a ’ single charge, the court will not even compel the prosecutor to *363elect; and in the case of mere misdemeanors which are only punishable by fine or imprisonment, the prosecutor is permitted to join and try several distinct offences in the same indictment.” To the same effect is the opinion of the Supreme court of Pennsylvania in The Commonwealth v. Gillispie, 7 Serg. & Rawle 479. See also 1 Chitty’s Crim. Law 249, cited by the counsel for the prisoner; and the opinion of Fry, J., in Mowbray’s case, 11 Leigh 649. pach count in the indictment in this case is a *good count; and each being for felony, there is no misjoinder; and the demurrer, therefore, was rightly overruled. Whether the court should have quashed the indictment, or compelled the prosecutor to elect on which count or counts he would proceed, depends upon whether the charges in the different counts “are actually distinct,” in the language cited by the counsel from Chitty, “and may confound the prisoner or distract the attention of the jury.” There are some cases of felony in which, even though the charges are distinct, the prisoner would not be confounded or the attention of the jury distracted; and in which, therefore, the charges may properly be included in the same indictment and tried together: As, for example, the case of forging and uttering the same instrument, which are distinct offences, and yet are often charged in different counts of the same indictment. The People v. Rynders, 12 Wend. R. 425; The People v. Gates, 13 Wend. R. 311; 2 Va. Cas. 337; Huffman’s case, 6 Rand. 685; Page’s case, 9 Leigh 683; Mowbray’s case, 11 Leigh 643. In the case first cited the court said, “That there would be an" incongruity in incorporating in the same indictment offences of a different character, such, for instance, as forgery and perjury, cannot be denied; and that in such case a court would refuse to hear a trial upon both, there can be no doubt; but when offences of the same character, differing only in degree, are united in the same indictment, the prisoner may and ought to be tried on both charges at the same time. Such is this case. The prisoner was indicted for forging the check, and also for publishing it as true knowing it to be false. These are different offences, and punished with different degrees of severity, but were properly united both in the indictment and trial. ’ ’
But though there are cases of felony in which several charges, though distinct, may properly be included in *the same indictment, I know of no case in which the several counts of an indictment were all for the same offence, and were in themselves good counts, where the indictment or any of the counts has been quashed, or the prosecutor compelled to elect on YYhich of them, he would proceed. In the prosecntion of offénces against property, or otherwise particularly effecting individuals, it is generally necessary to state in the indictment, and prove on the trial, the name of the owner of the property, or of the persons affected; or that he is a person to the jurors unknown, if that be the fact. But the doubts in regard to the ownership of property and names of persons, is often so great as to render it difficult or impossible for the prosecutor to know before hand how the matter will appear on the trial; and to prevent a variance on that merely incidental though necessary part of his case, he is allowed to vary the statement of the name in different counts. And the same may be said of other incidental circumstances not affecting the essence of the crime or changing its nature. In Mabry’s case, 2 Va. Cas. 396, the prisoner had been examined before the examining court for stealing three bags of cotton of the goods and chattels of Nathaniel Land; and was indicted in two counts for stealing the goods and chattels, first of Nathaniel Land, and secondly of a person unknown. The prisoner on his arraignment, moved the court to strike out the second count, because he had not been examined for the offence therein charged. The court overruled the motion, and the prisoner was found guilty of the larceny mentioned in the second, and not guilty’ of that mentioned in the first count. Parker, J., in delivering the unanimous opinion of the General court denying a writ of error, said: “The offence charged against the prisoner had, we think, been enquired into by the examining court. That offence was the larceny of three bags of cotton of a certain value. Por this *criminal offence he had been sent on to be tried in the Superior court. The property of the goods was merely an incident, and did riot enter into the essence of the crime,” &c. In the case under consideration the counts of the indictment are all for the same offence, to wit, the larceny of ‘ ‘eleven hundred and forty pounds of tobacco of the value of 100 dollars;” and they differ from each other only in the statement of names and other incidental circumstances. The statute under which all of them but the first was framed, declares that a person knowingly receiving, or aiding in concealing stolen goods, shall be deemed guilty of the larceny thereof. Code, 729, $ 19. The common counts for larceny would alone have been sufficient in this case; and by relying solely on them, the great length of the indictment would have been avoided. It would then have contained but three instead of ten counts: That is, for the larceny of the goods and chattels, 1st, of Nathaniel M. Osborne, 2d, of George McGlasson, and 3dly, of a person unknown. But while that would have been the preferable course, there can be no legal objection to the one which was pursued. Indeed the prisoner’s counsel do not seem to object to the indictment, because it contains special counts for larceny in receiving and aiding in concealing stolen goods. Their objection goes to the difficulty arising from the ownership of the property as charged in the different counts of the indictment. “One-half of the jury,” they’ say, “may have believed the prisoner guilty of receiving, &c., the goods of Osborne; whilst the other half may have believed him entirely innocent of that charge, but guilty of receiving, &c., *364the goods of McGlasson; and yet they unite in a general verdict of guilty.” Now it is obvious that the same objection might be made to every indictment for larceny containing several counts, stating the ownership of the property as in different persons. It might have been made to the indictment *in Mabry’s case. In that case one-half of the jury might have believed the prisoner guilty of stealing three bags of cotton of Nathaniel Band, and the other half might have believed him guilty of stealing the property of a person unknown. But the possibility of such a state of things as that does not render the joinder of such counts improper, or make it proper to compel the prosecutor to elect. Of course the jury would not be authorized to find the prisoner guilty in such a case, without being all satisfied that at least one of the counts is sustained by the evidence; and the court ought so to instruct them, if required.
But I think the Circuit court erred in overruling the prisoner’s challenge of John M. Shepherd because he was not a freeholder and qualified as a juror according to law. The 1st section of chap. 163 of the Code, p. 628, declares that ‘ ‘no person shall be qualified to serve upon a petit jury in any proceeding, civil or criminal, unless he is 21 years of age, and owns property, real or personal, of the value of 100 dollars.” If that had been the only law on the subject of the qualification of petit jurors, the prisoner’s challenge of Shepherd would have been properly overruled. But there is another law, which, I think, superadds the freehold qualification in cases of felony. That law is to be found in chap. 208, p. 774 and 775 of the Code. Section 4 provides that, “In a case of felony, in which a writ of venire facias is necessary, the writ shall command the officer charged with its execution to summon twenty-four persons, freeholders of his county or corporation, residing remote from the place where the offence is charged to have been committed, and qualified in other respects to serve as jurors, to attend the court,” &c. The twenty-four persons to be summoned under the venire are thus required to have the qualification of a freehold, besides being “qualified in | other respects.” Section 9 provides that *when any jurors summoned under a writ of venire facias fail to attend, or are challenged for cause, or if the whole array be challenged, the court shall cause the other jurors to be summoned in the county or corporation, until a panel of twenty-four jurors, free from exception, be completed,” &c. Section 10 provides that, “In a criminal case in a Superior court, if qualified jurors not exempt from serving, cannot be conveniently found in the county or corporation in which the trial is to be, the court may cause so many as nmy be necessary of such jurors to be summoned from any other county or corporation,” &c. It seems obvious to have been intended by the legislature that all the persons composing the panel of twenty-four jurors, whether summoned under the 4th, 9th or 10th sections aforesaid, should be freeholders, as well as qualified in other respects. Those summoned under the 4th section are, as before stated, expressly required to be freeholders. Why should not the rest be so too? Could it have been intended that part should be freeholders while the other part might not be so? The panel of twenty-four is rarely ever composed entirely of persons summoned under the original venire. So that if the freehold qualification was, as it seems to have been, considered important by the legislature, it would hardly in any case be more than partially secured by confining its requisition to the persons summoned under the original venire. But relative terms are used in the 9th and 10th sections, which plainly refer to the freehold qualification prescribed by the 4th, and imply that the jurors to be summoned under the former shall have that qualification as well as those summoned under the latter. Under the 9th section other jurors are required to be summoned in the county, &c., until the panel of jurors, free from exception, be completed; thus placing all the jurors on the panel on the same footing in regard to qualification. *And under the 10th section jurors are to be summoned from another county, &c., only in case qualified jurors, &c., cannot be conveniently found in the county, &c., in which the trial is to be; thus showing that all the jurors, whether summoned in or out of the county of the trial, are to be qualified in all respects, and therefore freeholders. John M. Shepherd was not a freeholder, and therefore was not a qualified juror; and the prisoner’s challenge of him should have been sustained. He appears not to have been one of the twelve jurors that tried the prisoner, and must therefore have been one of the eight stricken from the panel by the prisoner, or was one of those not selected by lot. But this does not alter the case: The prisoner may have stricken him from the panel because the challenge was overruled. The case in this respect is somewhat like, though stronger than, Lithgow’s case, 2 Va. Cases 297, in which it was held that if the court erroneously overruled a prisoner’s challenge to a juror for favor, and then the prisoner peremptorily challenge the juror, the error of the court is not cured by the subsequent exclusion of the juror, although the prisoner had not exhausted his peremptory challenges even to the last. See also Sprouce’s case, Id. 375.
It is unnecessary to consider whether the court erred in overruling the prisoner’s motion to strike the name of John M. Hammontree from the panel of twenty-four jurors, or his challenge of Robert H. Amos, or his motion for a new trial. And without deciding those questions, I am for reversing the judgment, setting aside the verdict, and remanding the case for a new trial to be had therein.
The other judges concurred in the opinion of Moncure, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481476/ | DANIEL, J.,
delivered the opinion of the court.
In addition to the four regular counts in the indictment for burglary and larceny, there is also the further charge or allegation that the prisoner “hath been convicted of a felony by him committed in the commonwealth of Massachusetts, one of the United States, and therefor sentenced to confinement in the penitentiary of the said commonwealth of Massachusetts, one of the United States.”
On the trial, the prisoner having been regularly arraigned, and having pleaded not guilty, the prosecution, after it had introduced evidence for the purpose of sustaining the allegations contained in the indictment, then exhibited two records, one of which showed that John W. Rand had, at the November term of the Municipal court of the city of Boston in 1843, been convicted of larceny, and sentenced therefor to confinement in the penitentiary of the state of Massachusetts lor the space of four years; and the other, that on an appeal before the Supreme judicial court, the said conviction and sentence had been regularly affirmed in the year 1844; and also introduced a witness, by whom it offered to prove that the prisoner was the same person named in the said records. To the introduction of this evidence the prisoner objected; but the court *366overruled the objection, and permitted the said records and proof of the identity of the prisoner to go to the jury; and the prisoner excepted.
The questions to be decided here all turn on the propriety or impropriety of permitting the introduction of this evidence.
From an early period in the history of our penal code, indeed from the date of the establishment of the penitentiary, ,it has been the policy of our law to visit *with increased punishment offenders who shall be convicted and sentenced for felonies committed, after having been once or oftener convicted and sentenced for like offences. Previously, however, to the revision of the criminal laws in 1848, the provisions for increased or additional punishment for second offences or convictions, only reached those cases where the accused had been before sentenced by some court in this state. In 1848 the law in this respect was changed, and the additional punishment prescribed for the second ' conviction made to extend to cases where the first conviction had been made in a court of any other of the United States. The law of 1848, with some slight change in its phraseology, is embodied in the code of 1849, and is to be found in the 25th section of chapter 199. It declares that “when any person is convicted of an offence, and sentenced to confinement therefor in the penitentiary, and it is alleged in the indictment on which he is convicted, and admitted, or by the jury found, that he had been before sentenced in the United States to a like punishment,' he shall be sentenced to be confined five years, in addition to the time to which he is or would be otherwise sentenced.” The exhibition of the charge, that the prisoner had been before convicted and sentenced in Massachusetts, and the offer to sustain the charge by proof, were doubtless designed on the part of the prosecution to be in pursuance of this law.
The effort on the part of the prisoner’s counsel to sustain his exception to the course of the court in regard to this portion of the prosecution, is placed mainly on three grounds:
First. That it is only by construction that the law can be made to reach a case like this; and that to give to it such construction would be to give to it a retrospective operation, which is inadmissible.
Secondly. That if the law, in plain and unequivocal *terms embraced the case, it would be an ex post facto law, inasmuch as it appears that the first conviction was had in Massachusetts in the year 1843, and the law under which it is sought to visit the prisoner with the additional punishment, was not passed till the year 1848; and therefore that in either of these aspects the testimony offered would be illegal, even though the charge were formally made in compliance with the construction above mentioned, or in accordance with the plain and obvious requirements of the law.
Thirdly. That the allegation was in no aspect well made, but was altogether defective and faulty, and that the court, on the motion of the prisoner to reject the evidence, should have excluded it, and instructed the jury wholly to disregard said allegation.
As to the first ground, no resort to construction is necessary to show that the terms of the law embrace all cases of a second conviction, whether the first conviction had been had since, or before, the passage of the law. Violence would have to be done to the plain and obvious import of the words employed, in order to restrict the operation of the law to the cases where the first conviction had taken place since its enactment. If a reasonable doubt arose out of the language used in the statute, whether the law contemplated the cases in which the first conviction was had before its passage, the charitable rules which prevail in the construction of such laws would perhaps require us to restrict its operation to those cases alone where, the first conviction had taken place since the passage of the law.
But no such doubt arises. To give the law the restricted operation contended for by the prisoner’s counsel, would therefore be, not to construe the statute, but to deny its authority and set at naught its plain requirements. This it is not competent for us to do, unless satisfied that the second ground of objection -taken is tenable, to wit, that the statute, so far as it is applicable to the case before us, is unconstitutional as being an ex post facto law.
Is it obnoxious to such objection? The first conviction, as has been before stated, was had in 1843, and the second offence is alleged and found to have been committed in 1852; whilst the law under consideration was passed in 1848 and re-enacted in 1849. In the increased punishment prescribed by the statute and to which the prisoner has been sentenced,, one which, in legal contemplation, is to be regarded as attached to the first or to the second offence? If to the latter, there is nothing in the statute on which to base the imputation of its being of an ex post facto character in its design or operation. The constitution withholds from the legislature the power to convert, b3* statute, into a crime, an act, which, at the time it was done, offended against no law; or to visit a criminal act even with penalties more severe than those which were attached to it by the law, when it was committed. No constitutional or other obstacle however, seems to stand in the way of the legislature’s passing an act declaring that persons thereafter convicted of certain of-fences committed after the passage of the act, may, if shown to have committed like of-fences before, be subjected to greater punishment than that prescribed for those whose previous course in life does not indicate so great a degree of moral depravity. One convicted under such a statute cannot justly complain that his former transgressions have been brought up in judgment against him. He knew or is presumed to have known, before the commission of the second *367offence, all the penalties denounced against it; and if in some sense the additional punishment may be said to be a consequence of the first offence, (inasmuch as there could be no sentence for such punishment in the absence of proof of the first conviction,) still it is not a ^necessary consequence ; but one which could only arise on the conviction for the second offence, and one therefore, which being fully apprised of in advance, the offender was left free to brave or avoid.
In Ross’ case, 2 Pick. R. 165, a like’question arose before the Supreme court of Massachusetts in construing a statute similar in its features to the one now under consideration. The statute alluded to was passed in 1817, and provided in substance that where a person had been convicted of a crime punishable by confinement to hard labor, he should, upon conviction of another offence punishable in like manner, be sentenced to a punishment in addition to the one prescribed by the law for such last offence. The second offence for which Ross was convicted, was committed after the passage of the act of 1817, and he had been convicted of a like offence in 1816, before the passage of the act; and the question raised in the Supreme court of Massachusetts was, whether the provision in relation to the .additional punishment was not, in that case, ex post facto and retrospective in its operation. It was argued, in behalf of the prisoner, that it was. The statute, it was said, incorporated a conviction of a crime committed before the passing of it, with a conviction after, and subjected the offender to additional punishment. This, it was argued, was retrospective ; for, when the crime was committed before the passing of the statute,the offender could not be apprised of the vengeance in store for him when it should be united with another crime. The court, however, were of opinion that there was nothing objectionable in the law. Parker, C. J., who delivered the ooinion of the court, said, that if it could be truly said that the party was punished under the statute for the first offence, the statute would be ex post facto; that a party ought to know, at the time of committing the offence, the whole extent of the punishment: *But he proceeded to show that the punishment was for the last offence committed, and was rendered more severe in consequence of the situation into which the party had previously brought himself; that the punishment' was enhanced from the character of the culprit. In the more recent case of Plumbly v. Commonwealth, 2 Metc. R. 413, decided by the same court, Ross’ case is cited with approbation. The court said that in the last mentioned case it was properly held that the law did not impose a second punishment for the first offence ; but imposed a higher punishment on one a second time convicted, because' the former punishment had proved inefficacious in doing the work of reform for which it was designed. These views are, we think, correct, and applying ’ them to the case under consideration, we are of opinion that the second ground taken by the prisoner’s counsel cannot avail him.
The third ground remains to be considered.
The allegation in regard to the first conviction does not state when it was had, but charges simply that “the prisoner hath been convicted of a felony by him committed in the commonwealth of Massachusetts,” &c. It might happen that a person who had committed a first and second offence should be tried and convicted of the second offence before he was tried for the first. If this allegation therefore is properly made, proof of such conviction of the second offence might serve as evidence to justify the infliction of the increased or additional punishment on the offender for his first offence; for’the term in which the charge is made would be fully satisfied by proof of any conviction of a felony before the exhibition of the indictment, without regard to the time when such felony was committed. The attorney general insists, that if such should be adjudged to be the true meaning and effect of the charge, it would in that respect, be still ^properly made, and in conformity with the true intent and object of the statute; that the statute is designed to impose increased punishment on those who by a second conviction are proved to be habitual offenders, no matter what may be the order of time in which these offences may have been committed. If this were the first statute of the kind enacted by our legislature, and we were to be restricted in construing it to a strict and literal interpretation of its language, these views would be entitled to great weight. Many laws of a like nature have however, (as has been already stated,) been previously passed by our legisla ture; and on looking at them, we find that in most, if not in all of them, it is required that the offence tobe visited with the additional punishment shall have been committed after a conviction for another felony. Thus in the law of 1796, (ch. 200, Code 1803, p. 355,) entitled “an act to amend the penal laws of the commonwealth,” providing amongst other things, for the establishment of the penitentiary, the punishment of death (except for murder in the first degree,) is abolished in the first section; and in the 24th-section it is declared, that “If any person convicted of any crime, which now is capital, or a felony of death without benefit of clergy, shall commit any such offence a second time, and shall be thereof legally convicted, he shall be sentenced to undergo an imprisonment in said penitentiary-house, at hard labor' during life,” &c. So again, in the 13th section of ch. 171, 1 Rev. Code 619, it is provided, that “If any person guilty of an offence punishable by confinement in the penitentiary, shall have been convicted thereof, &c., and shall afterwards commit any other offence, which by law, if there had been no such previous conviction, would have been punishable with confinement in the penitentiary for a period not *368less than five years; every such offender being thereof lawfully convicted, shall be punished by confinement in said penitentiary for life.”
*Similar language is employed in the 14th.and 15th-sections of the said last mentioned act. These provisions have been in some respects modified by subsequent enactments; but in none of them passed prior to the act under consideration, is there any such change in the language, in reference to the first and second offences, remembered, as would denote a purpose on the part of the legislature to alter or dispense with the requirement that a conviction for felony should precede the commission of the offence which is to be visited with the increased punishment.
The decision and reasoning of the Supreme court of New York in the case of The People v. Butler, 3 Cow. R. 347, applies with full force to the case before us. The statute under which the prosecution in that case was had, provides “that every person who shall hereafter be a second time or oftener convicted of petit larceny, shall be adjudged by the court who may give judgment thereon, to imprisonment in the state prison for any time not exceeding three years;” and it was contended on the part of the prosecution, that there was nothing in the phraseology of the statute which required the second crime to have been committed after the first conviction; and that the scheme of the law was to enhance the punishment for a series of offences, betraying a hardiness and depravity in guilt, whether the conviction was for' the first or the second offence. On the part of the prisoner it was argued in that case, that the statute intended that a conviction should precede the second offence; that the mischief was a want of reformation by the first punishment, and-that the previous conviction was required as evidence that the mild correction for one offence had failed of its effect: that the legislature intended that the culprit should first hear the monitory voice of the law before the heavier doom should be announced; and that the statute was based on the sound maxim, *that if gentle means would not avail, the more severe punishment should be applied.
The court held that the true construction was that contended for on behalf of the prisoner. Savage, C. J., in delivering the opinion of the court, after stating that there had been various laws on the subject, said: “The statutes providing for the punishment of second offences are worded differently, some of them declaring that every person who shall be a second time duly convicted or attained of any of the said felonies committed after the said first conviction,” and sometimes, ‘ ‘shall be a second time or oftener duly convicted or attainted.” He then proceeded to express the opinion of the court, that “the difference of phraseology in the several statutes was accidental; that the legislature meant the same thing in all, which was, that a conviction should precede the second offence; and in support of the opinion cites Hawkins, P. C., ch. 40, § 3, where the rule is laid down that “where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied that such second offence ought to be committed after a conviction for the first; for the gentler method shall first be tried which may perhaps prove effectual. ’ ’
The departure in the present law from the language heretofore generally adopted in former laws has not, we think, originated in any design to change this rule. On the contrary, we think it obvious that the present provisions are designed to carry out the policy hitherto apparent in our legislation, and to modify the law in this respect only so far as to make it embrace also the cases where the first convictions are had in other states.
With these views of the law, we think that the allegation or charge in question is not only defective in failing to set out the time and place of the first conviction, but is also faulty in this, that, under it as it now stands, a case which is not contemplated by the provisions of the law would satisfy the terms of the charge.
*Is this defect cured by the verdict? In Kirk’s case, 9 Leigh 627, decided by the General court in 1838, it was held that the defect in some of the counts of the indictment did not affect the validity of the rest; and that if any count was good, judgment might be given against the accused. The court said, (I use the language of Judge Allen, who delivered the opinion,) that every separate count was in the nature of a distinct indictment; and though in civil actions before the law was changed by statute, when the declaration contained several counts, some of which were good and others defective, and the jury gave entire damages, judgment could not be given, this rule did not apply to criminal cases. ‘ ‘The defect of some of the counts (he said) did not affect the validity of the rest, and if any count was good judgment might be given. The prisoner is not subjected to any inconvenience or liable to be taken by surprise by the operation of the rule. He is apprised by the indictment of the charges against him, and should be prepared to meet them; and if upon the trial he supposes that the evidence does not justify a conviction upon any of the counts, he can save the point by spreading the facts proved upon the record, and moving in arrest of judgment or for a new trial.”
In Mowbray’s case, 11 Leigh 643, decided in 1841, the same question was again before the General court, and a majority held that the rule of practice in criminal cases, that if an indictment contains several counts, some good and others faulty, and a general verdict of guilty be found, the bad counts will not affect the good, and judgment will be given on the latter, does not apply in Virginia to cases of penitentiary crimes; inasmuch as the jury is required not only to pass on the guilt of the accused, but also *369to ascertain the amount of the punishment; and the evidence on the bad counts may aggravate the punishment imposed by the *verdict. This case was followed by that of Clerk, 3 Gratt. 615, decided in 1846, in which it was held by the whole court that the common law rule that a good count in the indictment where there are other counts which are bad, will support a general verdict of guilty, is overruled in Virginia, as to offences which are punishable by confinement in the penitentiary. In this state of the law the act to reduce into one the several acts concerning crimes and punishments and proceedings in criminal cases, was passed March 14th, 1848. The 43d section of chapter 21 declares, that “a general verdict of guilty upon an indictment or information containing several counts, one or more of which is faulty, shall be good, and judgment shall be entered thereupon accordingly. But the accused on the trial may apply to the court to instruct the jury to disregard the faulty counts ; and it shall be the duty of the court to give such instruction.” This provision, with some slight changes in the phraseology, which it is not deemed necessary to notice, as they are not supposed to change the meaning of the law, is carried into the Code of 1849, and forms the 34th section of chap. 208, p. 778. We do not deem it necessary to express any opinion as to how far the question decided in the cases just mentioned are affected by this provision, farther than to say that one of its manifest designs is to furnish a prisoner arraigned on an indictment containing various counts, some of which are faulty, a means of protecting himself against any prejudice or injury that might arise from such faulty counts, to wit, by a motion, on his trial, to the court, to instruct the jury to disregard them; and that if the court should refuse, to the prejudice of the prisoner, to give such instruction, it would be an error which he would have a right to have redressed by an appeal.
Has such a motion been made by the prisoner and overruled by the court in this case? It is insisted by *his counsel that there has been ; that the motion by the prisoner to exclude the record of the conviction in Massachusetts and the testimony of the witness as to the prisoner’s identity, was, though not in terms, in substance and effect, a motion to the court to instruct the jury to disregard that portion of the indictment alleging such conviction. And in this position we think he is correct. In a case like this, when it is manifest that the only purpose for which such evidence could be introduced was to sustain the charge in relation to the former conviction, and the proofs offered constituted all the items of evidence essential to establish the charge, to wit, the record of the conviction and proof of the identity of the prisoner, the exclusion of the evidence would have been equivalent to striking out the charge, or instructing the jury wholly to disregard it. We have a similar law applicable to the proceedings in civil cases, and in the case of Cooke v. Thornton, 6 Rand. 8, it was held by a majority of the court, that a defendant going to trial on a declaration containing several counts, some good and others bad, might avail himself of the course pursued by the prisoner here. Judge Green said: “This court, in Roe v. Crutchfield, 1 Hen. & Munf. 361, adopted the rule laid down in the Duke of Bedford v. Alcocke, and declared that the defendant might still avail himself of the objection to the bad counts by moving the court to instruct the jury to disregard them, or by demurring to the evidence, or objecting to the evidence applicable only to the faulty counts, and taking an exception if it be admitted, so as to show that the evidence was only applicable to the bad counts. Such a motion to exclude the evidence would be in effect a motion to declare the counts to be bad and to be disregarded by the jury; for in any other view, to exclude evidence proper to support the matter put in issue by the pleadings, would be utterly inadmissible.” The reasoning as applicable to the case before us, *does not seem to admit of answer, and we think that the judge of the Circuit court ought to have excluded this evidence and instructed the jury to disregard the allegation or charge in question. Some discussion was had at the bar as to whether this allegation ought properly to be regarded as a part of the third count or as a distinct charge attached to no one count more than another. We do not regard the decision of this question as material. The allegation is so made that it might have been disregarded or stricken out of the indictment without affecting the other portions. The four counts in which the acts of burglary and larceny are charged would still have remained regular, formal counts.
What is to be the effect of this error of the court? On the one hand it is argued by the attorney general, that it should only affect so much of the judgment as relates to the additional punishment; and on the other hand it is insisted by the prisoner’s counsel, that it is cause for reversing the whole judgment, and remanding the case for a new trial. We can hardly say that the introduction of the evidence objected to was not calculated to prejudice the prisoner on the trial of the felony for which he was arraigned. In England they have statutes very similar to ours, prescribing additional punishment for second offences; and a practice prevailed, though not without the earnest opposition of some of the judges, of giving the evidence of the former conviction to the jury before they had passed on the guilt of the accused on the charge for the felony for which he was arraigned. In the case of Rex v. William Jones, 25 Eng. C. L. R. 453, Park, Judge, said: “That his custom had been never to allow the jury to know anything of the previous conviction till they had given their opinion on the charge upon which the prisoner was to be tried; because he thought that if the jury were aware of the ^previous con*370viction it was (to use a common expression) like trying a man with a rope about his neck. He proceeded to say, however, that the judges had had a meeting at which thirteen of them were present, and they held that his practice and that of another learned judge was wrong; and that the opinion of the judges was the previous conviction must be proved before the prisoner is called on for his defence. Archbold, in his Criminal Pleadings 823, says that in practice it was found that a prejudice was created in the minds of the jurors by a knowledge of the previous conviction, and that, to remedy this the statute 6 and 7 Wm. 4, ch. Ill, was passed. And that in pursuance of its provisions the practice now prevailing requires that the prisoner must be arraigned and the jury must be charged and the evidence proceed as if the indictment did not contain the averment of a previous conviction; and that this allegation must not be opened to the jury, or their verdict taken upon it, until after they have found the prisoner guilty of the subsequent felony; and then the prosecution must prove the previous conviction and identity of the defendant, and upon it likewise the jury must deliver their verdict. If, however, the defendant call witnesses to character, the previous conviction may be proved in reply, and the compound question will in that case be left to the jury in the first instance.
It was said by the attorney general that we have no such statute here as that just alluded to, and that it is the practice in our courts for the jurors to hear and pass upon the evidence in relation to the former conviction at the same time with that offered to prove the felony of which the prisoner is arraigned; and therefore, that the prisoner has been subjected to nothing which would not have been regular, if the allegation of the former conviction had been properly made. We do not think that the arguments of the prisoner, *founded on the supposed probable injuries done to him by the course pursued, can be met by the answer that if the proceedings had been regular such injury would have been sanctioned by the law and rendered irremediable. The statute and the practice under it cannot be made to legalize such injury, when the requirements necessary to be pursued in order to silence the complaints of the prisoner and constrain his submission, have not been observed.
In the case of The Commonwealth v. Briggs, 7 Pick. R. 177, the accused was charged with crime, and in the same indictment it was alleged that he had before been convicted of the like offence. The record of the first conviction was laid before the jury, who, without any proof of identity, found a general verdict, upon which judgment was rendered by the court below. In the Supreme court, notwithstanding the attorney general on motion entered a nolle prosequi of so much of the indictment as related to the former conviction, so that the sentence of punishment might be the same as if that allegation had been omitted by the grand jury, the judgment was reversed and verdict set aside, and a new trial awarded. The court said it was true that because of the nolle prosequi the prisoner could not be punished more thán if the charge respecting the former offence had been left out of the indictment; yet that the jury, assuming it as a fact that he had been before convicted, might and probably did consider that as tending to prove or render it more probable that he had committed the new offence; that a jury in such a case might suppose, from the way in which the record was laid before them, that it was plenary evidence of the former conviction of the defendant, though it was in fact deficient in an essential particular; and that having a convict on trial for an offence of a like nature, they might be satisfied with less evidence on the principal charge than they would require in the absence of proof of previous guilt.
*Having decided that the Circuit court erred in refusing to exclude the evidence objected to, a new trial seems to us to follow as the proper consequence. What influence the evidence may have had in deciding the question of the guilt or innocence of the prisoner of the charges of burglary and larceny, for which he was on his trial, no one can say. But it is not difficult to believe that, in a case of doubtful or conflicting evidence, such proofs might exert an influence on the minds of his triers prejudicial to the cause of the prisoner. And we think the error in permitting the evidence to go to the jury cannot be regarded as cured by the statement which it appears was made by the judge to the jury, that the records were admitted and were to be received for the sole purpose of showing that the prisoner had been previously convicted of a felony. Such a caution, though highly proper and calculated to guard the jury against yielding to any improper bias, could not wholly remove the unfavorable impressions which the introduction of the evidence must, most probably, have made on their minds. The allegation of the first conviction being faulty, the prisoner had the right to stand before his triers in the same plight as if such allegation had never been made. And if, upon his trial on an indictment containing no such charge, evidence such as that objected to had been introduced, there can be no doubt that its introduction would have been an error entitling the prisoner to a new trial. We think he is not the less entitled to it in the case as it stands.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481477/ | ALLEN, P.,
delivered the opinion of the court:
By the terms of the federal constitution, the United States are bound to protect each state against invasion, and no state is authorized to keep troops in time of peace without the consent of congress. The duty of providing for the common defence being thus imposed upon the United States, and the erection and maintenance of fortifications being necessary and proper to perform this duty, the constitution confers upon congress the power to exercise jurisdiction over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, &c. &c. Having thus in a great measure surrendered the .power of providing for her own protection against invasion, and her cost' being exposed to aggression, the state of Virginia was called upon to cede to the United States places proper for the erection of forts, so that the United States *might do that for the people of the state which she could not do herself.
On the 1st of March 1821, Sess. Acts, p. 102, an act was passed, entitled “an act ceding to the United States the lands on Old Point Comfort, and the shoal called Rip Raps.” The preamble of the act recites, 1 ‘that whereas it is shown to the present general assembly, that the government of the United States is solicitous that certain lands at Old Point Comfort, and at the shoal called the Rip Raps, should be, with the right of property and entire jurisdiction thereon, vested in the said United States for the purpose of fortification, and other objects of national defence.” And it is then enacted, “That it shall be lawful and proper for the governor, by conveyance, to transfer, assign and make over unto the United States the right of _property and title as well as all the jurisdiction which this commonwealth possesses over the lands and shoal at Old Point Comfort and the Rip Raps: provided the cession at Old Point Comfort shall not exceed two hundred and fifty acres, and the cession of the shoal at the Rip Raps shall not exceed fifteen acres: and provided also, that the cession shall not be construed or taken so as to prevent the officers of this state from executing any process, or discharging any other legal functions within the jurisdiction or territory herein directed to be ceded, nor to prevent, abolish or restrain the right and privthege of fishery hitherto enjoyed and used bj’’ the citizens of this commonwealth within the limits aforesaid: and provided • further, that nothing in the deed of conveyance required by the first section of this act shall authorize the discontinuance of the present road to the fort, or in any manner prevent the pilots from erecting such marks and beacons as may be deemed necessary:” With a further provision, “that should the United States at any time abandon the said *lands and shoal, or appropriate them to any other purposes than those indicated in the preamble to the said act, that then and in that case the same shall revert to and revest in the commonwealth. ’ ’
The evidence in the record shows that surveys of part of the lands at Old Point Comfort had been made under the direction of the officers of the United States in 1816 or 1817, and in 1818. And the law, by the proviso preventing the discontinuance of the present road to the fort, seems to recognize the then existence of a fort, which must have been in possession of the United States. After the passage of the act the United States proceeded to erect an extensive fortification on the point, but no conveyance was made by the governor, nor so far as the record discloses, any measures taken to designate the precise boundaries of the land embraced by the cession, until the year 1838.
On the 16th of May 1838, a communication from the acting secretary of war was addressed to the governor, requesting him to make a conveyance in the manner prescribed by the provisions of said act, and for the maximum quantity of land contemplated to be ceded; and referring the governor to Captain W. A. Eliason, the bearer of the communication, as being authorized by the department of war to mark out to the surveyors of other persons acting for the commonwealth of Virginia, the boundaries which for purposes of defence should be given to said cession.
This officer, on the 22nd of May 1838, addressed a letter to the governor, in which he remarked, that the limits of the ceded territory at Old Point Comfort should include all the neck of land on which Eort Monroe is situated, from the bridge to the main land; and extend as far in the northerly direction as the plat of two hundred and fift3r acres will allow ; that he could not say how far this would be, until he knew *how the law requires the survey lines to be run. That he believed the lines ought to include only the dry land at ordinal high water, and that the coterminus land from high to low water line pertained as a matter of course to the plotted land. He furthermore stated that the high tide limits could be readity defined; that it would not do to leave the land between high and low water in debate; it must attach to the land above tide; and it is to be desired that it does so without increasing the number of acres in the plot.
These papers were referred to the attorney general of the state, by the governor, for his opinion and advice. That officer, after stating that it did not appear from the papers before him, whether the commonwealth owned two hundred and fifty acres of land above high water, advised that all the commonwealth’s lands should *69be layed off by metes and bounds; that then the surveyor should lay off, under the direction of the United States or its officers, so much of the public land, not exceeding two hundred and fifty acres, at Old Point, as they may require. That this land should be laid off by metes and bounds, the courses as well and durably marked as they could be. That the officers of the United States should elect whether they would have the whole survey laid off above high water mark; or whether they would include in ifs boundaries the lands below high water mark. On the return of the survey a conveyance should be made by metes and bounds. That the grant to the United States must be limited by the metes and bounds laid off, and they could not take either property or jurisdiction over the adjacent lands below high water mark as pertinent to the plotted land.
Oil the 1st of June 1838, the governor, as appears from an extract from the executive journal, directed the surveyor of Elizabeth City county, under the direction of Captain Eliason, and in accordance with the '"’opinion of the attorney general, to make surveys of the lands and shoals mentioned in the act of cession, and return a fair plat and certificate of surveys to the executive. A survey was accordingly made by the survej'or, and a report returned to the governor. In the report so returned, the surveyor informs the governor that in pursuance of his directions, he applied to Captain Eliason to elect whether he would have the land ceded to the United States surveyed to high or low water mark; that he elected the former for the boundary, but requested the surveyor to spread the low water line, the mud flats and grass marsh on Mill creek, on the plat, which he had done. He further states that he began the survey at Old Point Comfort, at the southeast foot of the Mill creek bridge; and then pursued the ordinary high water mark on the Mill creek shore, until he came to the mouth of a small gut running up into the grass marsh. From thence he pursued a line between the high land and the marsh until he came to a piece of land taken up by Shelton. He then pursued this line, by a line of marked pines to the Chesapeake bay shore, at the ordinary high water; and then pursued the high water mark along the bay shore to the beginning; including an area of two hundred and seventy-eight acres one rood and ten poles, including also two acres ceded to the United States for a light-house. He then laid off two hundred and fifty-two acres for the United States, including the two acres for the light-house: and the report then gives the metes and bounds of the two hundred and fifty-two acres. The plat returned with the report shows that the land at the place described was a peninsula bounded on one side by the Chesapeake bay, on another by Hampton roads and Mill creek, having a water boundary all around the tract laid off for the United States, except upon four *of the lines called for. Of these, three run parallel with, and on the edge of the high land and grass marsh, which is principally covered at high water, leaving but one line of sixty poles in length, which divides the part so laid off from the adjacent land. The report gives the boundaries, describing the survey as commencing at the southeast foot of Mill creek bridge, the position of which is designated on the plat; thence with the meanders of the creek to the mouth of a small gut running into the marsh overflowed by high tide in the creek. From this point three lines are called for; the first terminating at a dead pine on the line between the highland and the marsh; the second calls for a pine; the third calls merely for course and distance; and the plat returned shows that these three lines run between the high land and the marsh, on the edge of the marsh. From the termination of the last line on the edge of the marsh, the survey calls for a. line of sixty poles to the bay shore at high water mark; and thence by various courses and disi anees to the beginning.
In the report, the surveyor says he pursued the high water mark along the bay shore to the beginning; and the fact that he did so appears from the plat returned. The meanderings of Mill creek are by fourteen courses, with distances on each course, amounting to five hundred and forty-nine poles; the three lines along the edge of the marsh call for one hundred and six poles; the line across the neck of land from the marsh to the bay shore at high water mark, is sixty poles in length ; the meanderings of the bay and roads are by sixteen courses, with distances on each, amounting to 864.20 poles, making the whole distance around the two hundred and fifty-two acres one thousand five hundred and seventy-nine poles, of which one thousand five hundred and nineteen poles appear from *the report and plat to have been a water boundary. The artificial boundaries made or marked and called for are the bridge, the dead pine and the pine.
The natural objects named are the mouth of the small gut running into the marsh, and the bay shore at high water mark, at the termination of the line across the neck between the marsh and bay.
The deed made by the governor bears no date, but an extract from the executive journal, dated the 29th of November 1888. recites that the governor executed a deed of cession to the United States for the lands at Old Point Comfort, and the shoal called the Rip Raps, pursuant to an act of the general assembly of March 1821; and the same was transmitted to Captain Eliasor. of the United States corps of engineers, to be recorded in the court of Elizabeth City county. On the 12th of December 1838, the deed was admitted to record in (he proper county. It recites the act of March 1st, 1821, with its various provisions, and conveys the land at Old Point and at the Rip Raps, subject to the provisions of the law. It describes the tract of two hundred *70and fifty acres at Old Point Comfort, as adjacent to and in part surrounding a tract of two acres theretofore granted by the commonwealth to the United States, and blends both into one tract of two hundred and fifty-two acres, the boundaries of which are described as beginning at the southeast foot of Mill creek bridge; and then gives the courses and distances, and other objects called for, as the same are set forth in the report of the surveyor returned to the executive. The deed in that portion of it describing the two hundred and fiftj’' acres at Old Point Comfort, does not in so many words, refer to the report of the surveyor, or plat returned by him. But in reference to the fifteen acres of shoal at the Rip Raps including the site of Port Calhoun, the deed contains this clause/ ‘The boundaries of the said tract of fifteen acres to *be ascertained by reference to a plat and description made by C. Hubbard, acting surveyor of Elizabeth City-county, dated the 17th July 1838, hereto annexed, marked A.”
Such is the title under which the defendant, an officer of the United States, relies to protect him and the United States in the possession of the property, to recover which this suit has been instituted.
The lessor of the plaintiff claims under a patent as for waste and unappropriated land, founded on a land office treasury warrant, and entered and surveyed under the laws of the state providing for the appropriation of the waste and unappropriated land of the state, and the grant thereof in private property to individuals; jurisdiction over the territory still remaining in the commonwealth.
The grant to the lessor of the plaintiff is dated the 28th of August 1851, and is for 264.72 acres, described as lying in Elizabeth City county, including the mud flats between low water mark on Mill creek, the Shelton patent and the tract of two hundred and fifty-two acres of land conveyed to the United States bjr the commonwealth of Virginia by deed, recorded in the clerk’s office of Elizabeth City county on the 12th dajr of December 1838, beginning at the east foot of Mill creek bridge, and thence along the United States land to the mouth of a small gut running into the marsh, the boundary of the United States land, and the Shelton patent.
The patent being long posterior in date to the act of cession and deed to the United States, and calling to be bounded by the lands of the United States, it becomes necessary to enquire into the extent of the grant to the United States. To ascertain this, it is important to determine whether the literal calls of the deed should alone be regarded as defining and designating the limits, by a fixed, unvarying, mathematical line, where nothing *else is called for, or whether it is competent to look at the law, and . the plat and report of the surveyor, made out in pursuance of the instructions of the governor, to enable him to execute a conveyance, to ascertain what was the land actually intended to be ceded and conveyed. There is no ambiguity apparent on the face of the deed. If anjr arises, it results from a comparison of the calls of the deed with the subject granted. By that comparison it appeared that the subject of the grant was a sandj' peninsula, varying by the action and operation of the tides and winds. Most of the calls in the deed were for magnetic lines and distances not terminating upon any monuments or marked boundaries. A survey made out according to the mathematical lines and calls of the deed would, with the exception of three objects, the. bridge and the two pines, represent no visible objects but the land and the water. The magnetic lines and courses would be found to pursue the general outline of high water mark ; the high water line not being a right line from station to station, as it would follow the slight indentations in the shore, so that a right line from station to station would at some places cross the mouths of small inlets and vary above and below the precise high water line. If by such comparison of the calls with the subject granted a doubt should arise as to whether a fixed line or a water boundary was intended, a survey made by the direction of the grantor, and which was his guide in making the conveyance, would be proper evidence to explain the ambiguity thus produced. Bowling v. Helm, 1 Bibb’s R. 88; Burton on Real Prop. 142.
In this case the deed of the governor refers to a plat and description made by C. Hubbard, acting surveyor of Elizabeth City county, dated the 17th of July 1838. The report of the surveyor in evidence in this cause bears 'date the 30th of July 1838. But it is obvious that the report was accompanied by a plat; for he *speaks of having made the surveys directed, and of having spread the low water line, and mud fiats and .grass marsh on the plat. The survey necessarily preceded the report, and accordingly, the certificate on the plat from the executive department shows that the survey was made on the 17th of July 1838. But the plat gives no courses and distances; they are found in the report, from which they were copied into the deed. There is no doubt, therefore, that the report as well as the plat were before the governor when he executed the conveyance, and were intended to be referred to in the deed; and whether actually referred to or not, yet as they were made out by the officer selected by the governor to enable him to execute the grant, it would be evidence as against the grantor as to the subject intended to be granted.
But this was not a transaction between individuals, but between state and state; and is to be considered and construed with reference to the character of the parties, and the object each had in view.
The act of -assembly contemplated a survey ; for as the cession was not to exceed two hundred and fifty acres, a survey was essential to ascertain the quantity of land, *71and to define the line of demarcation between the land ceded and the adjacent land, to show to what extent the jurisdiction ceded to the United States would reach. The title of the United States depends on the act of cession, and all that was done by the proper officers to carry it into execution. Until the quantity and locality of the land was ascertained, the title was incomplete ; and as congress can only exercise exclusive jurisdiction in such places within a state, when purchased by the consent of the legislature of the state, the deed of the governor would not of itself confer title and jurisdiction. The act, the survey made necessary by it, and the deed were all necessary to consummate the title; and all must be *regarded, though occurring at different times, as parts of one entire compact, resulting in the transfer of a portion of the soil and jurisdiction of the state to the United States for specified purposes, and subject to certain reservations contained in the act of cession. If we look at the deed as applied to the subject of the grant, and explained by the plat and report, we see that the descriptive part commences at the water mark, on one side of the tract, calls for fourteen magnetic courses and measured distances to the mouth of an inlet running up into the grass marsh. A reference to the plat shows that the three next lines pursued the line between the high land and the marsh, the ground of which is stated on the face of the plat to he below the water at high tide, although the grass is generally above ; so that all the lines from the beginning along Mill creek and the marsh correspond in general with the high water mark. The line across the neck commences at the edge of the marsh and terminates within the sixty poles called for, on the bay shore at high water mark; and from thence the lines run' round by magnetic courses and distances to the beginning. The tract of two hundred and fifty acres is described as adjacent to, and in part surrounding the tract of two acres heretofore granted by the commonwealth to the United States, and the boundaries comprehend and include the two hundred and fifty acres and the two acres in one tract of two hundred and fifty-two acres. The act of January 2d, 1798, ceded so much of the public lands at Old Point Comfort, not exceeding two acres, as should be sufficient to erect a light-house. The boundaries of these two acres do not appear; but from the position of the lighthouse, as indicated on the plat, it may be fairly presumed it was or was supposed to be in part a water boundary; and therefore the two hundred and fifty acres are described as adjacent to and in part surrounds *said tract of two acres, evidentlj- referring to the exterior or laud boundary so surrounded by the two hundred and fifty acres, and indicating that by blending the two tracts into one by a common boundary, there would be a continuous water boundary round the whole to the beginning.
The surveyor in his report furthermore certifies to the executive that the agent of the United States elected the high water mark for his boundary; but requested him to spread the low water line and the mud flats and grass marsh on Mill creek on the plat; which he accordingly did. The plat on its face indicates, by black and dotted lines, both the-high and low water line; and the surveyor certifies that he began at the southeast foot of the bridge, and then pursued the ordinary high water mark on the Mill creek shore to the mouth of the small gut running up into the grass marsh; and from thence he pursued the line between the high land and marsh to Shelton’s land ; from thence by a line of marked pines to Chesapeake bay shore at the ordinary high water mark; and then he pursued the high water mark along the bay shore to the beginning; including an area of two hundred and seventy-eight acres one rood and ten poles, including the two acres ceded for a light-house. He then laid off the two hundred and fifty-two acres for the United States, including the two acres: And the plat shows that this was done by running a line across the neck from the grass marsh to the baj' shore, cutting off 26.16 acres from the whole area of two hundred and seventy-eight acres one rood and ten poles between the line of the United States and the land of Shelton; but no other change was made in the plat in respect to the boundaries of the two hundred and fifty-two acres.
Prom these facts it appears that no monuments or marks were fixed to indicate the curves and indentations *of the creek or bay, and from the character of the land in question it would have been difficult if not impracticable to have fixed a boundary at high or low water mark as at the time of the cession or survey, which would point out at all future times the gradual and imperceptible encroachment of the waters at one place, and the gradual accretion of the land at another. The surveyor did not attempt to fix the boundaries by such artificial monuments. The running by the magnetic course and measured distance was essential to compute the quantity of land within the area. But the lines on Mill creek and the bay were open lines; and left open because the natural boundaries of the creek and bay, the waters of which he represented on the plat at high and low water mark, obviated the necessity of any artificial marks.
In the case of Starr v. Child, 20 Wend. R. 149, the deed called for a line to the Genesee river, and thence northwardly along the shore of said river to Buffalo street. The court held that there was no necessity for looking to extrinsic circumstances, for that the deed on its face invested the grantee with a fee simple to the bank of the river. The judge, in giving the opinion, remarks, “That the cases show, what it is difficult for the human mind to resist, that the parties never mean to leave a narrow strip between the land and the river, merely *72because some stake or tree, or even all the stakes or trees of the line, stand at a slight distance from the river. The expression of an intent to run the line along the stream, reaches a distinct natural monument which overcomes the others.” So in the case of McCullock’s lessee v. Aten, 2 Ohio R. 425, it is said, “That the fact that the marked corner called for stands four rods from the water, does not create any ambiguity in the terms, down the creek with the several meanders thereof. They import the water’s edge at low water, which is a decided natural ^'boundary, and must control a call for corner trees on the bank.”
In the case under consideration, no embarrassment arises from a conflict between artificial monuments and the line of high water mark, for no such monuments are called for. In Bruce v. Taylor, 2 J. J. Marsh. R. 160, the grant called to begin on the Ohio river, thence by courses and distances, without any marked lines or corners, to the mouth of a creek emptjdng into the Ohio, thence by courses and distances, without any marked lines or corners, to a stake; and thence for courses and distances round to the beginning. The court held, that as -three of the calls were on the river, as there were no intermediate marked lines and corners, and as the general description was “to lie on the Ohio river,”—“these facts alone would not leave room for any other legal construction of the patent, than that the Ohio river with its sinuosities is one of the lines of its boundaries.” In the same case they say that even if the lines and courses had been marked, and the patent had called for the river as a line of the boundary, this call would control the marked line: It being a universal rule that the actual boundary, whether natural or artificial, shall control repugnant course and distance. In that case, the original survey was exhibited, and showed the river as a boundary: “This, the court said, was decisive. The survey was the foundation of the patent: It is of record, and in that respect equal in dignity to the patent. It does not contradict but only renders fixed and certain some of the calls of the patent; and that it may be used to aid in supplying omissions, or in correcting mistakes in the patent.” <
All these remarks apply directly to the case under consideration. The lands at Old Point Comfort having been held as public lands, their position in relation to the surrounding waters was well understood by the *grantor. The law ceded the right of propertjr and title as well as the jurisdiction “over the lands at Old Point Comfort.'” It contemplated a survey, as that was necessary to ascertain the quantity; and as a conveyance was to be made by the governor, such survey would be naturally returned to the executive department, as his guide in describing the subject to be conveyed. The deed conveys the land at Old Point Comfort; it calls to begin on the water at the southeast foot of Mill creek bridge, and then for certain magnetic courses and measured distances to the mouth of a gut running up into the marsh; in all, fourteen calls without any artificial marks or corners or monuments. And on the other side it commences on the bay shore at high water mark, and thence calls for courses and distances sixteen lines, to the beginning; without a mark or corner on any of the lines. And in addition to this, the report of the surveyor sets forth that the officer of the United States elected the high water as his boundary; that he pursued the ordinary high water mark on the Mill creek shore; that he commenced at the ordinary high water mark on the Chesapeake bay shore, and pursued the high water mark along the bay shore to the beginning; and the plat returned exhibits the line of high water as the boundary of the land surveyed. All the circumstances which led the court to hold in the case of Bruce v. Taylor, that the legal construction of the patent, that the Ohio river with its sinuosities was one of the lines of the boundary, stand out with prominence in this case. To the same effect is the case of Rix v. Johnson, 5 N. Hamp. R. 520; and Angel on Water Courses, § 29, 30, where the authorities are reviewed. See also, Mayhew v. Norton, 17 Pick. R. 357.
I think, that having regard to the law, the report and survey and deed of the governor, the legal construction of the whole transaction was to make the *boundary of the land ceded to and conveyed to the United States a boundary by the line of ordinary high water mark, except on the line extending from the margin of the grass marsh across the neck to the bay shore at high water mark.
The attorney general, when consulted by thé executive, advised that the officers of the United States should elect whether they would have the whole survey laid off above high water, or whether they would include within its boundaries the lands below high water mark, and on the return of the survey the conveyance should be made by metes and bounds; being of opinion that the grant to the United States must be limited to the metes and bounds laid off, and that they could not take jurisdiction over the adjacent lands below high water mark,, as pertinent to the plotted land. And the governor directed survej-s to be made in accordance with this opinion. Prom whence it is inferred that by his deed the governor intended to convejq by a certain fixed, invariable line, which, though it coincided generally with the high water at the time it was surveyed, must at all times be run according to the magnetic courses and measured distances, without reference to its actual correspondence with the line of ordinary high water mark, or the gradual and imperceptible changes caused by the encroachments of the bay or the accretions to the soil. The attorney general was correct in saying that the grant to the United States must be limited by the metes and *73bounds laid off, if by laid off is meant the bounds called for. But he cannot be supposed to have meant that such bounds must be artificial, made by the hand of man. Artificial monuments a.re liable to destruction ; and surveyors seldom agree as to a precise mathematical line. The variation of the magnetic needle, uneven surfaces, and other causes, render it difficult, if not impracticable, to arrive at perfect accuracy; and hence natural or artificial *boundaries always control the mere magnetic calls. We are not, therefore, to suppose that a great natural boundary, as a river, or the shore of the bay, could not be adopted in a grant by a state to the United States. Convenience would seem to point out the latter as the most proper boundaries between two governments, where jurisdiction as well as property is regulated by the limits between them. "In a case of doubt,” say the Supreme court in Handty’s lessee v. Anthony, 5 Wheat. R. 374, quoting Vattel, “every country lying upon a river is presumed to have no other limits but the river; because nothing is more natural than to take a river for a boundary, when a slate is established on its borders ; and where there is a doubt, that is always to be presumed which is most natural and proper.” When, therefore, the officers of the United States elected the ordinary high water mark as the boundary, and the surveyor adopted it, and the deed conveyed to it, the land passes to the boundary so called for and adopted.
The attorney general and the agent of the United States differed as to the effect of such conveyance: The latter supposing it would give title and jurisdiction down to low water; the former, that title and jurisdiction would be fixed by the magnetic calls for courses and measured distances, no matter how the water line varied. And the question now is, what was the legal effect of the act done? And that is a matter for judicial decision. If it were a mere grant of property, the jurisdiction remaining in the state, the right of the grantee would extend to ordinary low water mark, under the express provisions of the act of assembly, 1 Rev. Code of 1819, ch. 87, p. 341; which declares that hereafter the limits or bounds of the several tracts of land lying on the Atlantic ocean, the Chesapeake bay and the rivers and creeks thereof, within this commonwealth, shall extend to ordinary low water mark; and the owners of said lands shall *have, possess and enjoy exclusive rights and privtheges to and along the shores thereof, down to ordinary low water mark. By the common law, the title of the proprietor extends to the ordinary high water mark.
The shore, or that space alternately covered and left dry by the rise and fall of the tide, being the space between high and low water marks, was in the king for the use of the public. The law of Virginia, so far at least as relates to the soil, has, as appears by the act referred to, been altered ; and the limits or boundaries of the land extend over and include the shore, by operation of law. This was the law in force when the cession of the land at Old Point Comfort was made, and the law being general, and speaking at every instant of time, it operated upon the grant to the United States, and extended the bounds down to ordinary low water mark; thereby annexing the right to the soil between ordinary high and low water mark as incident or appurtenant to the adjacent land.
The provisions of the act of 1819 have been incorporated in the Code, ch. 62, § 1, 2; and constituted the law when the patent of the plaintiff’s lessor was issued. But it is insisted that as ihe act ceded jurisdiction as well as property and title, that sovereignty cannot be yielded or granted by implication; arid therefore, whatever might be the rule in the case of a private individual, there could have been no intention on the part of the state to apply such a rule to a grant of this description.
The state, in granting, where nothing appears to the contrary, must be presumed to have granted with reference to the general law. If she had granted to an individual, the right of property would have extended to the low water mark. If the United States, with the consent of the legislature, had purchased from the individual, the whole proprietary right would have passed; and if jurisdiction had been yielded, it must have been coincident with the right of property. *The whole right of property was transferred by the act of cession and the conveyance under it; and the jurisdiction followed. If an island had been the subject of the cession, the grant of soil and property would as here, extend to low water mark, and jurisdiction would follow. This cession might be assimilated to a grant of an island; it was known to be a peninsula nearly surrounded with water. A line across the narrow neck and the surrounding waters, furnishing the best and most convenient boundary for property as well as jurisdiction; and there being nothing in the terms of the grant to limit the bounds as to property, all the incidents of such a property attach to it, including the right to the gradual accretions, which being imperceptible in their progress, tnay in the course of years increase the area beyond the quantity originally conveyed.
The legal effect of the deed, therefore, was to transfer to the United States the land to low water mark, with all the incidents of property so situated, and jurisdiction coincident with it, unless it should appear that in executing the transfer the governor has transcended the power conferred upon him by the law under which he was acting.
In giving an interpretation to such an act, the character of the parties to it, the purposes of the cession, and the situation and nature of the thing granted must all be looked to, and such construction given as will, if possible, carry out, and not defeat, the intention which led to the grant. *74The parties were two governments, both equally interested in the accomplishment of the object in view, the erection and maintenance of the proposed fortifications. The purpose of the parties in making and receiving the cession is set forth in the preamble of the act. It recites that it was shown to the general assembly that the government of the United States was solicitous that certain land at Old *Point Comfort and the shoal called the Rip Raps, should, with the right of property and entire jurisdiction thereon, be vested in the United States for the purpose of fortification and other objects of national defence. In proceeding to execute a grant having these objects in view, the grant must be interpreted as intending to pass with the subject all the means necessary to carry into effect the design of the parties to it, and to preserve and maintain the fortifications in a state of efficiency thereafter. The legislature must have contemplated such a cession as would give the government of the United States free access to and the command of either shore. To erect the fortifications, docks and wharves would be necessary; to render them efficient, a free communication between the two fortifications and unimpeded command of the shore and channel between the forts, was essential. To maintain discipline in a large garrison, and a proper police for the preservation of health and the safety of the public property, jurisdiction thereon in the words of the preamble, was required. All these objects would be defeated if the state had retained the right to the soil between high and low water mark, and to the alluvion that might be formed. She could not have intended to retain it for any purpose of her own. It was for her interest that the fortifications should be so erected as to accomplish the object intended, the protection of her own citizens from foreign invasion. Nor could she have contemplated a sale of it as private property, upon which houses might be erected masking the guns of the fort, and a conflict of jurisdiction brought about subversive of the police and discipline of the fort and garrison. Such a construction would defeat the declared purpose of the law. The nature of the property was well known to the state. It had been dedicated to the purposes of defence in the early history of the colony, and had continued *as public property up to the time of the cession ; a sandy peninsula projecting into the bay and connected with the main land by a narrow isthmus, the water furnishing a proper boundary and the most palpable and convenient line of demarcation between the two jurisdictions. These considerations necessarily imply that it was the intention of Virginia to -cede and of the United States to receive so much of the land at Old Point Comfort, including all the land on the point from shore to shore, as would be comprised in an area containing the prescribed quantity of two hundred and fifty acres. This implication is supported by the language of the act: The governor is authorized to make over, by proper conveyance to the United States, the right of property and title, as well as all the jurisdiction the commonwealth possesses over the lands and shoal at Old Point Comfort and the Rip Raps; provided the cession at Old Point Comfort shall not exceed two hundred and fifty acres: Thus implying that the lands at Old Point Comfort meant all the lands froiti the point upwards, so far as the government of the United States should require, so as not to include more than the prescribed quantity in the area cut off from the adjacent lands. The provisos that the cession should not prevent, abolish or restrain the right and privthege of fishery hitherto enjoyed and used by the citizens of this commonwealth within the limits aforesaid, 'or in any manner to prevent the pilots from erecting such marks and beacons as may be deemed necessary, show that it was not supposed any right in the soil in the part of the land at Old Point Comfort cut off from the adjacent land would be retained by the commonwealth. But contemplating a grant of property and jurisdiction to the water boundary, the rights and privtheges theretofore enjoyed and used were to be preserved unimpaired.
In giving a construction to the legal effect of the *conveyance, so as to carry both property and jurisdiction to ordinary low water mark, the intention of each party, the state in making and the United States in accepting the cession, is promoted; whilst any other construction would defeat the object of the parties and render the grant illusory. The legal construction of the effect of the conveyance extending the bounds of the grant from the line of ordinary high to ordinary low water mark, conforms to the general law and carries into effect the intention of the parties to the cession. By these transactions the state has parted with property and jurisdiction subject to the reservations and provisos contained in the act of cession, within the limits of the grant to the United States, on the Chesapeake bay, Hampton roads and Mill creek down to ordinary low water mark. As an incident to such grant, the alluvion formed by the imperceptible increase of the land belongs to the United States; and therefore, there remained nothing within the limits aforesaid which could be made the subject of grant by the commonwealth to another.
If, as it has been argued, the land was to be laid off all around its area by metes and bounds, by which was to be understood fixed, unvarying lines, ascertained by permanent monuments or mathematical calls, it would have been the same, whether the ordinal"}’' low water or the ordinary high water mark had been elected as the boundary by the agents of the United States. The lines corresponding with either at the time of election, would have been fixed and unvarying. It would have been difficult if not impracticable to have designated such. *75a line by artificial monuments, if low water had been selected, as every tide would have submerged them; and mathematical lines, the most uncertain of boundaries, must have been relied on. The low water mark on a sandy peninsula like this, will necessarily vary through the operation *of the winds and tides. As accretions, imperceptible in their progress, were formed, state jurisdiction would attach, varying as the alluvion increased, disappearing as it diminished. Even if there was more doubt as to the legal construction of the deed, the inconvenience of the construction contended for would be a strong objection to adopting it. In the language of the Supreme court in Handly’s lessee v. Anthony, 5 Wheat. R. 374, “In questions which concern boundaries of states, (and here jurisdiction is involved,) when great natural boundaries are established in general terms, with a view to public convenience and the avoidance of controversy, the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals."
Questions were raised at the trial, and have been argued here, as to the validity of the patent to the lessor of the plaintiff. It is insisted by the defendant that the lands at Old Point Comfort could not be entered, surveyed and patented as waste and unappropriated lands of the commonwealth ; that the acts of the government had separated these lands from the mass of waste and unappropriated lands, and reserved them for the public use as a site for fortifications and defence; and that this is a matter which any defendant sued by another claiming under a patent under the general law, may-set up to defeat this action.
It seems that as early as 1629-30, 6 Charles 1st, an act was passed by the assembly for the “raysing of a ffort at Poynt Comfort;” and certain persons named “by full consent of the whole assembly, were chosen to view the place,”—“and agree for the building, raysing and finishing of the same.” A fort seems to have been erected, and various regulations in regard to the fort are found in the 1st vol. of Hening’s Statutes, p. 166, 175, 215, 218. In 1639, an act was passed ‘^levying taxes to pay the captain of the fort and ten guards, and to build a new fort at Point Comfort. In 1671, Governor Sir William Berkeley, in reply to enquiries submitted by the lords commissioners of foreign plantations, reported that there were five forts in the colony, two in James river, but that they had neither skill nor ability to make or maintain them, &c. 2 Hen. Stat. 512.
It does not appear from anything in the Statutes at Large whether a fort was continued at the point during the residue of our colonial history or not. By the revolution the commonwealth succeeded to the rights and dominion of the crown. In May 1779 the act passed for establishing a laud office and ascertaining the terms and manner of granting waste and unappropriated lands; subjecting such lands to entry under land office treasury warrants, providing for the making and return of surveys, and for the issuing of patents. But in addition to the waste and unappropriated lands thus made the subject of entry, survey and grant in the mode prescribed, there were certain lands in the eastern part of the state which, by the acts of the agents of the crown or commonwealth, the proprietor of all the waste lands in the commonwealth, had been set apart and appropriated to public purposes. It does not appear that any specific grant or special act passed for such appropriation. They seem to have been dedicated to the public use, by being so used and enjoyed. When referred to in the laws, they are designated as public lands, and a specific mode of disposition was prescribed. Thus the act of May 1784, 2 Rev. Code of 1819, p. 414, directed that all public lands and other public property in or near the city of Richmond, except so much thereof as should be set apart by the executive for the use of the government, should be sold by certain commissioners named in the act. By another act, passed May 1784, 2 Rev. Code *415, all the public
lands in this commonwealth, except those thereafter mentioned, were directed to be sold by commissioners named in the act. By the 3d section, certain of those lands in and near Williamsburg and in James City were transferred to and vested in the president and x^rofessors of William and Mary university forever. By the 4th section, the commissioners were empowered to sell the lands commonly called Gosport, except such part as in their opinion may be necessary for the use of the public. In October 1784, 2 Rev. Code 419, another act passed in relation to the disposition of the public lands called and known by the name of Gosport, and authorizing the commissioners to convey to purchasers thereof an estate in fee simple. In October 1785, 2 Rev. Code 423, an act entitled “an act for the sale of certain public lands,” was passed, by which it was enacted “that the public lands in the counties of York and Elizabeth Citjq except a point of land in the last mentioned county, called Point Comfort, should be vested in certain commissioners by name, who were emxjowered to sell and convey the same to purchasers.” All these acts were passed after the general laud law of May 1779, throwing open the waste and unappropriated lands within the territory of this commonwealth to entry, survey and patent by all adventurers. Yet it is manifest that the legislature did not suppose that lands set apart for public purposes, or the public lands were embraced under the designation of waste and unappropriated lands. Special acts were passed for the sale of these public lands by commissioners, and the title of the state passed not by patent but by a conveyance of the commissioners specially authorized to execute deeds. The act last mentioned shows *76that the point of land in Elizabeth City county, called Point Comfort, was so held, not as waste and unappropriated land, liable to entry under a land warrant, but as public land, the title to which had vested in the commonwealth for special purposes. By the act of January 2d, 1798, 1 Rev. Code 1819, p. 48, the governor was authorized by deed to convey to the United States all interest in and right and title to, as well as all the jurisdiction which the commonwealth possessed over, so much of the public lands not exceeding two acres, situate in Elizabeth City, at a place commonly called Point Comfort, as should be sufficient to erect a light-house. Here again the land is treated as public land belonging to the commonwealth, the title to which was to be -transferred by deed. A proviso in this law continued to the citizens of the commonwealth the privthege they then enjoyed of hauling their seines on the shores of said land. And by the act of cession the commonwealth authorized the governor to transfer by deed her right and title as well as the jurisdiction she possessed over the lands and shoal at Old Point Comfort and the Rip Raps. As a general rule, all lands which had never before been patented are to be considered as waste and unappropriated, and are liable to location by any holder of a treasury warrant. But as the crown first and the commonwealth afterwards owned all the public domain, it was competent for either to set apart a portion thereof for specific purposes. The early proceedings of the colonial legislature show that this point of land was so set apart; and from the fact that no attempt appears tb have been made to take it up as waste land until recently, it would seem that the public right was universally acknowledged. The laws passed since the act of May 1779, recognize the existence of such public lands, provide for a specific mode of disposition, treat this as a portion of such public lands, and reserve it from sale, ánd the acts of 1798 and 1821 treat it as the public property of the state, when about to cede portions of it to the United States.
These various acts amount to a complete appropriation to the public use of the lands at Old Point Comfort, *held by the commonwealth, and excepted from the sale of other public lands by the act of 1785, and withdrew them from the mass of waste and unappropriated lands. They were not liable to entry, survey and patent as such; and the patent therefore passed no title whatever. The act of March 31st, 1851, Sess. Acts, p. 33, protecting the magazine at Westham and any stone quarry now worked by the state from grant, cannot be so construed as to subject all other lands owned by the state, and held for specific purposes, to location as waste and unappropriated: It may confer the immunity of public lands upon the property therein mentioned if it was waste and unappropriated before that act. On this ground the plaintiff showed no title; and it was cornpetent for any person to rely upon this defence. It is'not like the case of a contest between claimants to a portion of the waste and unappropriated land under conflicting claims. In such controversies, private rights alone come under review; and we give no opinion as to the right of a defendant in ejectment to object to the validity of the plaintiff’s patent in such a case. But where the right is vested in the commonwealth for the benefit of the public, as in the case of the public square in the city of. Richmond, the navigable waters and the soil under them held by the commonwealth for the common use, and expressly exempted from grant by the Code, ch. 62, § 1, it would be unreasonable and oppressive if the individual could not protect himself from an action of trespass brought by the patentee, until the patent had been repealed or shown to be invalid in some proceeding having that object directly in view.
These observations upon the rights of the parties dispose of all the questions raised by the instructions moved for on either side, and given or refused at the trial.
The first instruction asked for and refused, asserts *the proposition that the deed alone can be regarded to ascertain the rights of the United States. It has been already shown that the title of the United States depends upon the law, the proceedings had in 'execution of it, and the deed. They were all necessary to complete the cession, and must be looked to in order to find out what was intended to be granted and was in fact granted to the United States: The instruction was therefore properly refused.
The second instruction is rather an abstraction than an instruction bearing on the case, and for this reason properly refused as calculated to mislead the jury. The terms are obscure, but the first clause would seem to imply that where a latent ambiguity arises from a comparison of the calls of the deed with the subject of the grant, no evidence aliunde could be received to explain it. It is in such cases that evidence aliunde must be resorted to; and as has been already remarked, the law, the survey, report and deed must all be regarded in arriving at the intention of the parties, and to ascertain the extent of the cession. That instruction was properly refused.
The third instruction is based upon a state of facts not existing. Courses and distances are not alone called for in the deed. The southeast foot of Mill creek bridge, the mouth of the small gut running into the marsh, the dead pine, the line between the high land and the marsh, the pine, the bay shore at high water mark, are all called for; for this reason the instruction was properly refused, as calculated to mislead, and also because it asks for a legal construction of the effect of the deed, which the law did not warrant.
Nor did the court err in any of the instructions given to the jury at the instance of the defendant. From what has been already said, it appears that the deed, *77construed with reference to the law and acts *done in execution of it, gave to the United States a boundary, by operation of law, to the ordinary low water mark; and consequently the lessor of the plaintiff could acquire no title by his patent to any lands described in the deed, which lie above ordinary low water mark.
The third instruction, in regard to the lands covered by the waters of Mill creek at ordinary high tide, is to be taken secundum smbjectam materiam. So far as it comes in collision with the defendant’s grant, the patent could give no title, and as the grant to the defendant, by extending to ordinary low water on Mill creek embraced all that could be the subject of grant, the patent to the plaintiff’s lessor could give no title to .such lands.
T'he fourth instruction is similar, in the principle involved, to the third.
T'he fifil is equally free from objection, taking it secundum subjectarn materiam, which was the lands in controversy as claimed by the defendant. These lands had been granted, and property and jurisdiction parted with. They were, therefore, no longer waste and tmappropriated at the date of the entry on which the patent issued to plaintiff’s lessor; and upon the further ground, which was probably the meaning- of the court, that the lands at Old Point Comfort, extending to low water mark on the Chesapeake bay, Hampton roads and Mill creek, were public lands, and not liable to appropriation by entry, survey and grant, as part of the waste and unappropriated lands of the commonwealth.
We think there is no error in the judgment, and that it should be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481478/ | DANIEL, J.
It is no doubt true, as a general rule, that the right of a plaintiff in ejectment to recover, *rests on the strength of his own title, and is not established by the exhibition of defects in the title of the defendant, and that the defendant may maintain his defense by simply showing that the title is not in the plaintiff, but in some one else. And the rule is usually thus broadly stated by the authorities, without qualification. There are, however, exceptions to the rule as thus announced, as well established as the rule itself. As when the defendant has entered under the title of the plaintiff he cannot set up a title in a third person in contradiction to that under which he entered. Other instances might be cited in which it is equally as well settled that the defendant would be estopped from showing defects in the title of the plaintiff. In such cases, the plaintiff may, and often does recover, not by. the exhibition of a title good in itself, but by showing that the relations between himself and the defendant are such that the latter cannot question it. The relation between the parties stands in the place of title; and though the title of the plaintiff is tainted with vices or defects that would prove fatal to his recovery in a controversy with any other defendant in peaceable possession, it is yet all sufficient in a litigation with one who entered into the possession under it, or otherwise stands so related to it that the law will not allow him to plead its defects in his defense.
Whether the case of an intrusion by a stranger without title, on a peaceable possession, is not one to meet the exigencies of which the courts will recognize a still further qualification or explanation of the rule requiring the plaintiff to recover only on the strength of his own title, is a question which, I believe, has not as 3*et been decided by this court. And it is somewhat x'emarkable that there ax*e but few cases to be found in the English reporters in which the precise question has been decided or considered by the courts.
The cases of Read & Morpeth v. Erington, Croke *Eliz. 321; Bateman v. Allen, Ibid. 437; and Allen v. Rivington, 2 Saund. R. 111, were each decided on special vex'dicts, in which the facts with respect to the title were stated. In each case it was shown that the plaintiff was in possession, and that the defendant entex'ed without title or authority; and the court held that it was not necessary to decide upon the title of the plaintiff, and gave judgment for him. In the report of Bate-man v. Allen, it is said that Williams Sergeant moved, “that for as much as in all the verdict it is not found that the defendant had the primer possession, nor that he entered in the right or by the command of an3« who had title, but that he entered on the possession of the plaintiff without title, his entry is not lawful;” and so the court held.
And in Read & Morpeth v. Erington, it was insisted that for a portion of the premises the judgment ought to be for the defendant, in as much as it appeared from the verdict that the title to such portion was outstanding in a third party; but the court said it did not matter, as it was shown that the plaintiff had entered, and the defendant had entered on him.
I have seen no case overruling these decisions. It is true that in Haldane v. Harvey, 4 Burr. R. 2484, the general doctrine is announced that the plaintiff must recover on the strength of his own title; and that the “possession gives the defendant a right against every man who cannot- show a good title.” But in that case the circumstances under which the defendant entered, and the nature of the claim by which he held, do not appear; and the case, therefore, cannot properly be regarded as declaring more than the general rule.
The same remark will apply-to other cases that might be cited, in which the general rule is propounded in terms eaually broad and compx-ehensive.
In 2 T. R. 749, we have nothing more than the syllabus of the case of Crisp v. Barber, in which it is said *that a lease of a rectory-house, &c., by a rector, becomes void by 13th Eliz. ch. 20, by his nonresidence for eighty days, and that a stranger may take advantage of it. And that the lessee cannot maintain ejectment against a stranger who enters without any title whatever.
And in Graham v. Peat, 1 East’s R. 244, in which, upon a like state of facts, arising under the same statute, the plaintiff brought trespass instead of ejectment, it was held that his possession was sufficient to maintain trespass against a wrong-doer, the chief justice, Lord Kenyon, remarking, that “if ejectment could not have been maintained, it was because that is a fictitious remedy founded upon title.”
These two cases as reported may, perhaps, when taken in connection, be fairly regarded as holding that mere possession by the plaintiff will justif3^ the action of trespass against an intruder, but is not sufficient to maintain ejectment. If so, they are in conflict with the earlier decisions before cited. It is to be observed, however, of the first of these cases, that we *79have no statement of the grounds on which it was decided; and of the last, that it does not directly present the question whether ejectment could or could not have been maintained. And I do not think it would be just to allow them to outweigh decisions in which the precise question was fairly presented, met and adjudicated: The more especially, as the doctrine of the earlier cases is reasserted by Lord Tenterden in the case of Hughes v. Dyball, 14 Eng. C. L. R. 481. In that case, proof that the plaintiff let the locus in quo to a tenant who held peaceable possession for about a year, was held sufficient evidence of title to maintain ejectment against a party who came in the night and forcibly turned the tenant out of possession. In Archibold’s Nisi Prius, vol. 2, p. 395, the case is cited with approbation, and the law stated in accordance with it. In this country *the cases are numerous, and to some extent conflicting, yet I think that the larger number will be found to be in accordance with the earlier English decisions. I have found no case in which the question seems to have been more fully examined or maturely considered than in Sowden, &c. v. McMillan’s heirs, 4 Dana’s R. 456. The views of the learned judge (Marshall) who delivered the opinion in which the whole court concurred, are rested on the authority of several cases in Kentucky, previously decided, on a series of decisions made by the Supreme court of New York, and on the three British cases of Bateman v. Allen, Alien v. Rivington, and Read & Morpeth v. Rrington, before mentioned. ‘ ‘These three cases (he says) establish unquestionably the right of the plaintiff to recover when it appears that he was in possession, and that the defendant entered upon and ousted his possession, without title or authority to enter; and prove that when the possession of the plaintiff and an entry upon it by the defendant are shown, the right of recovery cannot be resisted by showing that there is or may be an outstanding title in another; but only by showing that the defendant himself either has title or authority to enter under the title.”
“It is a natural principle of justice, that he who is in possession has the right to maintain it, and if wrongfully expelled, to regain it by entry on the wrong-doer. When titles are acknowledged as separate and distinct from the possession, this right of maintaining and regaining the possession is, of course, subject to the exception that it cannot be exercised against the real owner, in competition with whose title it wholly fails. But surely it is not accordant with the principles of justice, that he who ousts a previous possession, should be permitted to defend his wrongful possession against the claim of restitution merely by *showing that a stranger, and not the previous possessor whom he has ousted, was entitled to the possession. The law protects a peaceable possession against all except him who has the actual right to the possession, and no other can rightfully disturb or intrude upon it. Whthe the peaceable possession continues, it is protected against a claimant in the action of ejectment, by permitting the defendant to show that a third person and not the claimant has the right. But if the claimant, instead of resorting to his action, attempt to gain the possession by entering upon and ousting the existing peaceable possession, he does not thereby acquire a rightful or a peaceable possession. The law does not protect him against the prior possessor. Neither does it indulge any presumption in his favor, nor permit him to gain any advantage by his own wrongful act.”
In Adams v. Tiernan, 5 Dana’s R. 394, the same doctrine is held; it being there again announced that a peaceable possession wrongfully divested, ought to be restored, and is sufficient to maintain the action ; and that no mere outstanding superior right of entry in a stranger, can be used availably as a shield by the trespasser in such action. It has also been repeatedly reaffirmed in later decisions of the Supreme court of Ñew York; and may therefore be regarded as the well settled law of that state and of Kentucky.
To the same effect are the decisions in New Jersey, Connecticut, Vermont and Ohio. Penton’s lessee v. Sinnickson, 4 Halst. R. 149; Daw v. Wilson, 2 Root’s R. 102; Ellithorp v. Dewing, 1 Chipm. R. 141; Warner v. Page, 4 Verm. R. 294; Ludlow’s heirs v. McBride, 3 Ohio R. 240; Newnam’s lessee v. The City of Cincinnati, 18 Ohio R. 327. In the case of Ellithorp v. Dewing, 1 Chipm. R. 141, the rule is thus stated: “Actual seizin is sufficient to recover as well as to defend against a Dstranger to the title. He who is first seized may recover or defend against any one except him who has a paramount title. If disseized by a stranger, he may maintain an action of ejectment against the disseizor, and in like manner the disseizor may maintain an acLion against all persons except his disseizee, or some one having a paramount title.”
In Delaware, North Carolina, South Carolina, Indiana, and perhaps in other states of the Union, the opposite doctrine has been held.
In this state of the law, untrammeled as we are by any decisions of our own courts, I feel free to adopt that rule which seems to me best calculated to attain the ends of justice. The explanation of the law (as usually announced) given by Judge Marshall in the portions of his opinion which I have cited, seems to me to be founded on just and correct reasoning; and I am disposed to follow those decisions which uphold a peaceable possession for the protection as well of a plaintiff as of a defendant in ejectment, rather than those which invite disorderly scrambles for the possession, and clothe amere trespasser with the means of maintaining his wrong, by showing-defects, however slighL, in the title of him *80on whose peaceable possession he has intruded without shadow of authority or title.
The authorities in support of the maintenance of ejectment upon the force of a mere prior possession, however, hold it essential that the prior possession must have been removed by the entry or intrusion of the defendant; and that the entry under which the defendant holds the possession must have been a trespass upon the prior possession. Sowden v. McMillan’s heirs, 4 Dana’s R. 456. And it is also said that constructive possession is not sufficient to maintain trespass to real property; that actual possession is required, *and hence that where the injury is done to an heir or devisee by an abator, before he has entered, he cannot maintain trespass until his re-entry. 2 Tucker’s Comm. 191. An apparent difficulty, therefore, in the way of a recovery by the plaintiffs, arises from the absence of positive proof of their possession at the time of the-defendant’s entry. It is to be observed, however, that there is no proof to the contrary. Mrs. Lewis died in possession of the premises, and there is no proof that they were vacant at the time of the defendant’s entry. And in Gilbert’s Tenures 37, (in note,) it is stated, as the law, that as the heir has the right to the hereditaments descending, the law presumes that he has the possession also. The presumption may indeed, like all other presumptions, be rebutted: but if the possession be not shown to be in another, the law concludes it to be in the heir.
The presumption is but a fair and reasonable one; and does, I think, arise here; and as the only evidence tending to show that the defendant sets up any pretense of right to the land, is the certificate of the surveyor of Buckingham, of an entry by the defendant, for the same, in his office, in December 1844; and his possession of the land must, according to the'evidence, have commenced at least as early as some time in the year 1842; it seems to me that he must be regarded as standing in the attitude of a mere intruder on the possession of the plaintiffs.
Whether we might not in this case presume the whole of the purchase money to be paid, and regard the plaintiffs as having a perfect equitable title to the premises, and in that view as entitled to recover by force of such title; or whether we might not resort to the still further presumption in their favor, of a conveyance of the legal title, are questions which I have not thought it necessary to consider; the view, which *I have already taken of the case, being sufficient, in my opinion, to justify us in affirming the judgment.
ALLEN, MONCURE and SAMUELS, Js., concurred in the opinion of Daniel, J.
LEE, J., dissented.
Judgment affirmed.
EJECTMENT.
I. Nature of the Remedy.
II. For What the Action Lies.
III. Title to Support the Action.
A. In General.
B. Adverse Possession.
IV. Parties.
A. Who May Bring the Action.
B. Against Whom the Action May Be Brought.
V. Demand and Notice to Quit.
VI. Defences.
A. Limitations or Adverse Possession.
B. Outstanding Title in a Third Party.
C. Equitable Defences.
VII. Pleading and Practice.
A. Forum of the Action.
B. The Declaration.
O. Pleas.
D. New Trials.
E. Appellate Proceedings.
VIII. Evidence.
A. Admissible Evidence.
B. Inadmissible Evidence.
C. Weight of Evidence.
IX. Verdict and Judgment.
A. Requisites and Construction of Verdicts
B. Special Verdicts.
C. The Judgment.
X. Mesne Profits and Improvements.
Cross References:
Adversary Possession, appended to Nowlin v. Reynolds, 25 Gratt. 137.
Unlawful Detainer, appended to Dobson v. Culpepper, 23 Gratt. 352.
I. NATURE OF THE REHEDY.
The action of ejectment is designed to try both the title and right of possession to the land in controversy. The plaintiff cannot recover without showing that he is entitled to the possession; and the defendant without having any right to the possession himself, may generally prevent a recovery by the plaintiff, by showing an outstanding right of possession in another. 4 Min. Inst. (3d Ed.) 444 et seq., Davis v. Mayo, 82 Va. 97; Olinger v. Shepherd, 12 Gratt. 471.
ÍI. FOR WHAT THE ACTION LIES.
Land Subject to Dower.—A plaintiff in an action of ejectment may recover land which is subject to the dower of a widow, if such dower has not been assigned; for, until the dower is assigned she has no right to the possession of any of the land. The plaintiff’s recovery in such case, however, is subject to the title of the widow. Chapman v. Armistead, 4 Munf. 382; Moore v. Gilliam, 5 Munf. 346.
Where Right of Easement Is in Defendant.—A recovery of a judgment in ejectment is subject to any easement in the public to use the land as a street or highway; and the right of the public to the easement is not drawn in question or in any way affected by the controversy between the plaintifi and the defendant as to the ownership of the fee. Warwick v. Mayo, 15 Gratt. 528.
Breach of Condition Subsequent in a Deed.—Where land is granted upon a condition subsequent, and there is a breach of the condition, the grantee’s estate is determined by this breach, and an action of ejectment can be maintained by the grantor against the grantee for the recovery of the land. Martin v. Ohio R. R. Co., 37 W. Va. 349, 16 S. E. Rep. 589.
*81But where a stipulation in a deed does not amount to a condition subsequent, the grantor cannot maintain ejectment upon nonperformance of the stipulation. Brown v. Caldwell, 23 W. Va. 187. In Carper v. Cook, 39 W. Va. 346, 19 S. E. Rep. 379, land was sold to the hoard of education for school purposes, and afterwards the board of education ceased to use the land for such purposes, and sold it to a third person. It was held that ejectment would not lie by the grantor, for the recovery of the land.
Incorporeal Hereditaments.—Under the Virginia statute which provides, that “a party haying an interest in or claim to land held adversely by another may sell and convey the same, and his grantee may maintain ejectment for it,” an action of ejectment may be maintained for the recovery of an incorporeal hereditament. Code of 1887. § 2418; Carrington v. Goddin, 13 Gratt. 587; Reynolds v. Cook, 83 Va. 817, 3 S. E. Rep. 710.
A grant of a right to quarry and remove limestone for certain specific purposes, has been held to be not a mere license, but an interest in or a right arising out of land, and as such, to constitute under the Va. Code, the foundation for an action of ejectment. Reynolds v. Cook, 83 Va. 817, 3 S. E. Rep. 710.
Laud Dedicated to Public or Charitable Uses.—Where land is reserved by a grantor in a deed, and dedicated to a public or charitable use, no title passes by subsequent conveyances of the tract out of which the reservation was made, though these conveyances he without reservation; and if a subsequent grantee takes possession of the land so dedicated by reservation, the dedicator may maintain an action of ejectment for it. Benn v. Hatcher, 81 Va. 25.
Action to Recover the Use of Certain Lands.- -According to the terms of a covenant annexed to a deed, the grantor of a tract of land had a right to its use, when it was not required or needed for the purposes of the grantee. In an action of ejectment brought by the grantor to recover the use of the lands which were unemployed by the grantee, it was held, that under the Virginia Code, §§ 2730, 2738, ejectment would not lie to recover the mere use of unemployed or unoccupied lands for an uncertain and indefinite period. King v. Norfolk, etc., Ry. Co., (Va. 1901), 7 Va. Law Reg. 403.
Where the Land Claimed Is Uncertain—Election.— Where there is an intention on the part of the grantor to except from the operation of a deed certain lands which would otherwise be covered by such deed, the land intended to he excepted must be described with certainty in order to withdraw it from the operation of the deed. Unless the land is described with certainty the grantor cannot maintain an action of ejectment for it. Butcher v. Creel, 9 Gratt. 201.
But uncertainty in the reservation of a deed may be cured by the election of the grantor made within a reasonable time; and after such election, the grantor may maintain an action of ejectment for the land which he elects to take. Benn v. Hatcher, 81 Va. 25.
Land Granted with Reservations to Prior Holders.— The commonwealth, by patent granted a tract of land containing 70.202 acres, within specified metes and bounds, by a survey! containing a surplus of 42,000 acres, held by titles haying legal preference to the warrants and rights, upon which the grant was founded. A reservation was therefore made in favor of those titles in general terms. It was decided thatnnder the terms of this patent, the grantee was entitled to recover in ejectment all the land within the metes and hounds thereof, except such as the defendants might show themselves entitled to, under the said reservation. Hopkins v. Ward, 6 Munf. 38. See also, Nichols v. Covey, 4 Rand. 365; Bryan v. Willard, 21 W. Va. 65.
Land Forfeited for Nonpayment of Taxes. The heirs of a patentee of land forfeited for nonpayment of taxes and not redeemed, cannot maintain ejectment for it against a party who has entered upon it peaceably, though the tenant has no title to the land. Ushers v. Pride, 15 Gratt. 190.
III. TITLE TO SUPPORT THE ACTION.
A. IN GENERAL.
General Rule.—The general rule in ejectment is that the plaintiff must show a legal title in himself, and a present right of possession under it at the time of the commencement of the action. He must recover on the strength of his own title and not on the weakness of his adversary’s. As the party in possession is presumed to be the owner until the contrary is proved, it is necessary for the claimant in ejectment to show in himself a good and sufficient title to the land, to enable him to recover from the defendant. He will not be satisfied by the weakness of the defendant's claim. The possession of the latter gives him the right against every man who cannot establish a tille, and if he can answer the case on the part of the claimant by showing the real title to the land to be in another, it will be sufficient for his defence, although he does not pretend that he holds the land with this consent or under the authority of the real owner. Suttle v. Rich., etc., R. Co., 76 Va. 284; Nelson v. Triplett, 81 Va. 236; Russell v. Allmond, 92 Va. 484, 23 S. E. Rep. 895; Holly River Coal Co. v. Howell, 36 W. Va. 489. 15 S. E. Rep. 214: Reusens v. Lawson, 91 Va. 226, 21 S. E. Rep. 347; Atkinson v. Smith (Va.), 24 S. E. Rep. 901; Bradley v. Ewart, 18 W. Va. 598; Witten v. St. Clair, 27 W. Va. 762; Slocum v. Compton, 93 Va. 374, 25 S. R. Rep. 3; Low v. Settle, 32 W. Va. 600, 9 S. E. Rep. 922; McKinney v. Daniel, 90 Va. 704, 19 S. E. Rep. 880; Voight v. Raby, 90 Va. 799, 20 S. E. Rep. 824.
Exceptions to the General Rule.—A person in peaceable possession of land which is entered upon, and who is ousted by a stranger without title, may recover in ejectment upon the strength of Ms mere previous possession. The reason is, that actual seisin is evidence of title against all the world, except the true owner, and the law will not permit, that seisin to be wantonly invaded by one who himself has no title. Lee v. Tapscott, 2 Wash. 276: Suttle v. Richmond, etc., R. Co., 76 Va. 289; Witten v. St. Clair, 27 W. Va. 762.
A tenant let into possession under a lease is es-topped to deny the title of his landlord, and this estoppel may be relied on in ejectment. Here again, the estoppel is founded on a permissive possession, and is admitted to be a departure from the strict rule of law. which requires that the plaintiff in ejectment must recover on the strength of Ms own title, and not on the weakness of his adversary’s. Miller v. Williams, 15 Gratt. 213; Alderson v. Miller, 15 Gratt. 279; Suttle v. Rich., etc., R. Co., 76 Va. 289; Witten v. St. Clair. 27 W. Va. 763.
Equitable Title Insufficient.—It is a well-established rule that an equitable title is not sufficient to support. an action of ejectment. Ruffners v. Lewis, 7 Leigh 720; Suttle v. Rich., etc., R. Co., 76 Va. 284; Russell v. Allmond, 92 Va. 484, 23 S. E. Rep. 895: Slocum v. Compton, 93 Va. 374, 25 S. E. Rep. 3.
*82Title from a Common Source,—In ejectment, when both parties claim title from a common grantor, the rule is well settled that it is prima facie sufficient for the plaintiff to prove such common derivation of title, without proving that such person had title to the land in controversy. Bolling v. Teel, 76 Va. 487; Laidley v. Cent. Land Co., 30 W. Va. 505, 4 S. E. Rep. 705; Low v. Settle, 32 W. Va. 600, 9 S. E. Rep. 922; Carrell v. Mitchell, 37 W. Va. 130, 16 S. E. Rep. 453.
When Title Must Exist in Plaintiff.—The plaintiff must have title to the land in controversy at the commencement of the suit in order to support an action of ejectment. Suttle v. Rich., etc., R. Co., 76 Va. 284; Russell v. Allmond, 92 Va. 484, 23 S. E. Rep. 895. But it has been held that the conveyance of the land in controversy by the plaintiff pending an action of ejectment does not affect his right of recovery. Beckwith v. Thompson, 18 W. Va. 103.
What Is Sufficient Proof of Title.—A plaintiff in an action of ejectment may show his title by tracing it back to a grant from the commonwealth, or he may show such a state of facts as will warrant the jury in presuming a grant from the commonwealth. Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. Rep. 232. And he may recover under one or the other of two demises of the same land, from different persons. Hopkins v. Ward, 6 Munf. 38; See v. Greenlee, 6 Munf. 302.
B. ADVERSE POSSESSION.
Actual Possession under Color of Title.—A person having held actual possession of land for more than fifteen years under color of title, and being then ousted by another who is a mere trespasser without pretence of title, may recover In ejectment against such trespasser, though it does not appear that the land has ever been granted by the commonwealth. Middleton v. Johns, 4 Gratt. 129.
See generally, on this subject, monographic note on “Adverse Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
Temporary Possession Insufficient to Give Title.—It was held in Pasley v. English, 5 Gratt. 141, that a temporary possession of land, by cutting and sawing timber upon it, was not such adversary possession as would give title, and enable a party to sue in ejectment.
In ejectment, where it appeared from the evidence that the land in controversy was vacant when the defendant came to the possession of it peaceably and quietly, without any privity between him and the lessors of the plaintiff or those under whom they claimed, it was held that the plaintiff could not recover, upon the ground of the prior possession of the lessors, without proving twenty years uninterrupted adverse possession on their part or on the part of those under whom they claimed; or showing a right to the possession by the death and seisin, in the manner prescribed by the act of assembly, of some person under whom they claimed. Moody v. McKim, 5 Munf. 374.
Adverse Possession—Interlocks.—A plaintiff in an action of ejectment claiming title by adverse possession, though he recovers other parts of the tract claimed, cannot recover possession of an interlock which has never been in his actual possession and which has been occupied for a long time by the defendant. The plaintiff must show possession of the interlock or some portion of it for the period of the statutory bar before his claim will ripen into title. Breeden v. Haney, 95 Va. 622, 29 S. E. Rep. 328; Garrett v. Ramsey, 26 W. Va. 345; Congrove v. Burdett, 28 W. Va. 220.
Defect in a Deed Cured by Possession under It.—In ejectment, the jury haying found twenty years' possession in the plaintiff, an objection to one of his title deeds that it was not indented, and expressed no consideration, was not sufficient to prevent a judgment in his favor. Kinney v. Beverley, 2 H. & M. 318.
Grant Presumed from Possession.—Plaintiffs in an action of ejectment, claimed under possession taken by a party in 1792, and a continuous, open, and notorious possession by persons claiming under the party who originally took possession. The defendants had only been on the land a few years, not even under color of title, and they sought to defeat the action by showing an outstanding title In a third, person. It was held, that as against these defendants, a grant would be presumed to the person under whom the plaintiffs claimed. Carter v. Robinett, 33 Gratt. 429.
IV. PARTIES.
A. WHO MAY BRING THE ACTION.
Parties Entitled to Sue in Writ of Right Priorto 1850. —By the Code of Va. of 1849, the action of ejectment was enlarged to embrace all cases which were formerly covered by the writ of right. If a party was entitled to recover in a writ of right before the Code of 1849 wentinto effect, he is entitled to recover in the present action of ejectment under the provisions of that Code (ch. 135, 149). Mitchell v. Baratta. 17 Gratt. 445.
Cestui Que Trust.—A cestui que trust, after the purposes of the deed have been satisfied, may maintain ejectment, upon a demise in bis own name, although the legal estate Is still in his trustee. Hopkins v. Ward, 6 Munf. 38.
Trustees.—The fact that a cestui que trust may maintain ejectment, after the trust-is satisfied, does not deprive the trustee holding the legal title, of his right to maintain such an action. Hopkins v. Stephens, 2 Rand. 422.
Purchaser from a Trustee.—A conveyance of the trust property by a trustee, though in violation of the terms of the trust deed, passes an absolute legal title to the property, defeasible only in a court of equity, and the purchaser from the trustee may maintain an action of ejectment against the party in possession. Taylor v. King, 6 Munf. 358; Harris v. Harris, 6 Munf. 367.
Co-tenants ínter Se.—Ejectment may be maintained by one tenant in common against another; but in such case actual ouster must be shown by the plaintiff before he can maintain the action. The pro forma confession of ouster which a defendant was compelled to make under the old “consent rule” before being allowed to plead, was not sufficient to satisfy this rule. Taylor v. Hill, 10 Leigh 457.
Co-tenants against Third Persons.—A plaintiff in an action of ejectment cannot recover that to which he has not the legal title, therefore a co-tenant cannot recover the share of another co-tenant. If a partition has been made which is effectual, each joint tenant is still seised of his individual share of the whole, and that will be the extent of his recovery in an action of ejectment. Nye v. Lovitt, 92 Va. 710, 24 S. E. Rep. 345.
Action by a Grantor after "taking a Void Grant.—A deed of bargain and sale and release of land, from a person not in possession, to another in the same predicament, the land being at the time held by a *83third person with adverse title, passes nothing, and therefore does not divest the bargainor of his right to recover in ejectment. Hopkins v. Ward, 6 Munf. 38.
Assignee of a flortgagee.—The possession of the mortgagor, continuing by the mortgagee’s permission, is to be considered the possession of the mortgagee ; so that, where the latter could recover in ejectment, Ms deed assigning the mortgage will enable the assignee to recover in like manner. A final decree of foreclosure, in favor of the assignee of a mortgage, ought to put to rest any controversy between the parties thereto, on the ground of any supposed delect in the deed of assignment. Chapman v. Armistead, 4 Munf. 382.
Party Ciaisning: wilder a Decree.—A decree requiring the execution of a conveyance to a party, does not of itself vest title to the land in that party, and he cannot maintain an action of ejectment for it until there has been a deed executed to him. Aldridge v. Giles, 3 H. & M. 136; Nelson v. Triplett, 81 Va. 236.
Reversioner.-—Where there was a devise to a person and the heirs of his body, but if he died without heirs of the body, then a limitation over the heirs of the grantor; this was held to be a fee simple defeasible upon the devisee dying without heirs of the body ; and when the devisee died without heirs of the body, the heirs of the grantor were allowed to sue for and recover the land in an action of ejectment. Elys v. Wynne, 22 Gratt. 224. See also, Corr v. Porter, 33 Gratt. 278; Hyer v. Shobe, 2 Munf. 200; Burke v. Lee, 76 Va. 386.
Ejectment by the Heir -Presumption.—Where an ancestor dies in possession of land, the presumption of lawis that the heir is in possession after the death of the ancestor ; and in the absence of all evidence on the point, the heir may maintain ejectment upon the strength of his possession, against one who has entered upon the land without title, or authority to enter under the title outstanding in another. Tapscott v. Cobbs, 11 Gratt. 172.
Heirs of an Executor.-—On the death of an executor who had acquired the legal title to land at a trustee’s sale, his heirs were the proper parties to bring ejectment, whether the property was purchased by their ancestor in his own right, or for the benefit of his testator’s estate. Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. Rep. 232.
Action by the Person hi Possession of the Premises.— Virginia Code, sec. 2726, as amended by Acts 1895-6. p. 514, provides that: “The person actually occupying the premises and any person claiming title thereto or claiming any interest therein adversely to the plaintiff may also at the discretion of the plaintiff be named defendant in the declaration. If theie be no person actually occupying the premises adversely to the plaintiff then the action must be against some person exercising ownership thereon, or claiming title thereto, or some interest therein at the commencement of the suit.” It was suggested that under this statute the person in possession of the land might sue in ejectment a person claiming title thereto, but this view is overruled, and it is held that ejectment will not lie in such case. Steinman v. Vicars (Va. 1901), 7 Va. Law Reg. 259.
Patentee of Waste Land.—It is not necessary for a patentee of waste and unappropriated land, to make a personal entry thereon, to enable him to maintain ejectment; for the patent ipso facto confers seisin. Ruch seisin may be transferred and continued by deed of bargain and sale, or by devise ; but a person, whose seisin is interrupted by the actual entry and adverse possession of another, cannot, while out of possession, convey by bargain and sale such a title as will enable the bargainee to recover in ejectment. Clay v. White, 1 Munf. 162.
Heirs of a Patentee.—The heirs of a patentee ot land may recover in ejectment, against a person who had the use and occupation of the land as his own, in the lifetime of the patentee, and so continued until after Ms death, claiming to hold the same by adverse possession ; the duration of such possession having been less than twenty years. See v. Greenlee, 6 Munf. 303; Clay v. White, 1 Munf. 162; Clay v. Kansome, 1 Munf. 454. In such case, if the heirs being out of possession of the land, have executed .a deed of bargain and sale of the same to a third person, such bargainee cannot recover in ejectment; but the bargainors may. See v. Greenlee, 6 Munf. 303; Hopkins v. Ward, 6 Munf. 38; Ushers v. Pride, 15 Gratt. 190.
Junior Patentee.—A patent is the consummation of the legal title, and passes to the grantee the legal estate and seisin of the commonwealth. Accordingly, where a patent contained a reservation in favor of a prior claimant who relied only on his entry and survey, and under these circumstances, a patent including the land so claimed and without a reservation, was issued toa junior patentee, the latter acquired the legal title, and his title prevathed in an action of ejectment. Carter v. Hagan, 75 Va. 557.
In an action of ejectment, the plaintiff rested his title on a grant dated in 1796 of 20,000 acres; defendantreiiedonapatent datedin 1795, for an equal tract adjoining the plaintiff’s tract, and a resurvey by order of court in 1835, for the purpose of more certainly establishing the lines of the original grant. The resurvey contained 26,650 acres, the ditference being within plaintiif's tract. The lines of the resurvey, however, did not correspond with those of the original grant. It was held that the title to the 6,650 acres was founded on new rights acquired subsequent to the plaintiff's patent, and could not affect the plaintiff’s title. Randolph v. Longdale Iron Co., 84 Va. 457, 5 S. E. Rep. 30.
Action by the Commonwealth.—An act directed the public engineer to lay off a road and sites for bridges thereon, and declared that upon the return of the plats thereof to the clerks’ offices of the conncy courts in which the road located lay, the land should be vested in the commonwealth for the use of the road. It was held, that on compliance with the law, the title to the land on which the road was located, and the sites of the bridges were fixed, was vested in the commonwealth; and that the commonwealth or her grantee might maintain ejectment therefor against the former owner. James R. & K. Co. v. Thompson, 3 Gratt. 270.
Parties Claiming under aStatute—Virginia.— a plaintiff in ejectment who does not claim title by grant from the commonwealth, but by certain proceedings had under sec. 41, ch. 108, Code of 1873 as amended by Acts 1879-80, p. 205, must bring himself within the terms of this act. This act provides that the commonwealth’s title to land which has been settled continuously for five years, and on which taxes b ave been paid within five years by the person in possession. shall be relinquished to the person in possession of the land claiming the same under such settlement and payment. Where the evidence showed that the plaintiff's grantor was not in possession when proceedings under such act were begun, it was held *84proper for the court to sustain a demurrer to evidence, for want of title in the plaintiff. Slocum v. Compton, 93 Va. 374, 25 S. E. Rep. 3.
Parties Claiming under a Statute—West Virginia.— The act of 1841 vested title to land in those who were in actual possession under claim of title, derived from or under a grant. Parties who claim under this act, must show possession under title or claim derived from or under a grant of the commonwealth. It was held th at the parties in an action of ej ectment who claimed title from a patent issued on different entries and surveys of different dates, must show within which of the entries or surveys the land lay, which they claimed as actual occupants under this act. Kenna v. Quarrier, 3 W. Va. 210.
Purchaser from Insolvent Debtor.—Where a person taken in execution is discharged as an insolvent debtor, the estate in lands belonging to him at the time of such discharge is, by the statute (1 Rev. Code, 1819. ch. 134, p. 538), so completely vested in the sheriff of the county wherein such lands lie, that an action of ejectment for such lands cannot after-wards be maintained on the demise of the insolvent debtor, while the execution remains unsatisfied. Syrus v. Allison, 2 Rob. 200.
Collateral Agreement No Bar to the Action.—An agi cement between a tenant in possession and the plaintiff in an action of ejectment, that if the plaintiff recovers against the tenant’s lessor, a lease shall be executed by the plaintiff in the same terms as that subsisting before, does not operate to bar the action by the plaintiff, which joins the tenant as a defendant. Carrington v. Otis, 4 Gratt. 235.
Bill in Equity by a Phrty Who flay riaintain Eject™ meat.—Wheire a party'has a complete and adequate remedy at law for the recovery of land, equity has no jurisdiction. A bill in equity in such case is called an “ejectment bill” and is demurrable. Stuart v. Coalter, 4 Rand. 74; Lange v. Jones, 5 Leigh 192; Carrington v. Otis, 4 Gratt. 235; Stearns v. Harman, 80 Va. 48; Jones v. Fox, 20 W. Va. 370.
A widow claiming to be the sole heir of her deceased husband has not a right to file a bill in chancery against parties claiming to be heirs of her husband, who are in possession of the property of her deceased husband as his heirs, and obtain from the court a decision, as to who are the true heirs of the husband, and be put into possession of her husband’s land, if she established herself to be his sole heir. In such case her remedy is in a common-law court by ejectment. Jones v. Fox, 20 W. Va. 370.
A court of equity has no jurisdiction to settle the title or bounds of lands between adverse claimants, unless the plaintiff has an equity against the defendants claiming adversely to him. An equity against other persons will not give such jurisdiction. The remedy in such case is by an action of ejectment. Stuart v. Coalter, 4 Rand. 74; Lange v. Jones, 5 Leigh 192; Carrington v. Otis, 4 Gratt. 235.
A court of equity has no jurisdiction to remove a cloud upon the title to land, where the party who asks for relief is out of possession. He has a complete remedy at law in an action of ejectment for the recovery of the land. Otey v. Stuart, 91 Va. 714, 23 S. E. Rep. 513; Louisville, etc., R. Co. v. Taylor, 93 Va. 231,-24 S. E. Rep. 1013; Stearns v. Harman, 80 Va. 48.
B. AGAINST WHOM THE ACTION MAY BE BROUGHT.
Party in Possession—Common-Law Rule.—At common law the rule is well established that the action. of ejectment must be brought against the tenants in possession. The landlord has a right to be made a joint defendant, however, through fear that he may be injured by a combination between the plaintiff and his tenant: but he may waive this right, or having asserted it, he may relinquish it by consent to the plaintiff. Herbert v. Alexander, 2 Call 502; Stearns v. Harman, 80 Va. 48; Southgate v. Walker, 2 W. Va. 427; Hauks v. Price, 32 Gratt. 107. In an action of ejectment the facts proven at the trial, did not show that the defendant was in possession of the land described in the declaration, at the time the action was brought. It was held, that the plaintiff was not entitled to a judgment against him, although the plaintiff’s title and right to recover were perfect in all other respects. Nor did the common-law consent rule, then in force, obviate the necessity of its being proved or admitted on the trial, that the defendant was in possession of the land sued for, at the time the suit was rought. Southgate v. Walker, 2 W. Va. 427.
Ejectment may be brought against several persons; in possession of any part of the tract of land claimed by the lessor of the plaintiff. Stuart v. Coalter, 4 Rand. 74.
Party Claiming Title—Statutory Rule.—The Virginia Code, ch. 131, sec. 5, provides “that the person actually occupying the premises shall be named defendant in the declaration. If they be not occupied, the action must be against some person exercising ownership thereon, or claiming title thereto, or some interest the.rein at the commencement of the suit.” So in Stearns v. Harman, 80 Va. 48, a bill in equity asking for relief when there was no person in possession of the land, was dismissed, because ejectment might have been brought against the person claiming title to the land. This statute was also construed in Harvey v. Tyler, 2 Wall. (U. S.) 134. See also, Postlewaite v. Wise, 17 W. Va. 14.
V. DEMAND AND NOTICE TO QUIT.
Necessity of Notice.—Where a purchaser of land is put in possession without a conveyance having been made to him, he is a tenant at will, and his possession is lawful, until demand of possession is made by the owner, and refusal is made by the tenant. In such case, the vendor is bound to make demand for the premises, and serve the tenant with notice to quit before bringing an action of ejectment; and this is true even though the vendee may be entitled in equity to a specific execution of the contract. Twyman v. Hawley, 24 Gratt. 512; Williamson v. Paxton, 18 Gratt. 475; Pettit v. Cowherd, 83 Va. 20, 1 S. E. Rep. 392; Jones v. Temple, 87 Va. 210, 12 S. E. Rep. 404.
Tenant by Sufferance—Notice Not Essential.—'Where a party is in possession of land under a contract which has already been declared null and void, he is merely a tenant by sufferance, and as such not entitled to notice to quit before ejectment can be maintained by his landlord for the premises. McClung v. Echols, 5 W. Va. 204.
VI. DEFENCES.
A. LIMITATIONS OR ADVERSE POSSESSION.
Adverse Possession a Good Defence.—Where there is adverse possession by the defendant of the premises for the period of the statutory bar, this of course is a good defence to an action of ejectment. Va. Midland R. Co. v. Barbour, 97 Va. 118, 33 S. E. Rep. 554; Taylor v. Burnsides, 1 Gratt. 190; Creek*85mur v. Creekmur, 75 Va. 430; Thomas v. Jones, 28 Gratt. 383; Va. Min. & Imp. Co. v. Hoover, 82 Va. 449; Bream v. Cooper, 5 Munf. 7; Andrews v. Roseland Iron & Coal Co., 89 Va. 393, 16 S. E. Rep. 252; Stull v. Rich Patch Iron Co., 92 Va. 253, 23 S. E. Rep. 293; Core v. Faupel, 24 W. Va. 238; Adams v. Alkire, 20 W. Va. 480; Lagorio v. Dozier, 91 Va. 492, 22 S. E. Rep. 239.
See monographic note on “Adverse Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
When the Statute Commences to Run.—The statute of limitations does not commence to run in favor of an occupant of land, while the title thereto is vested in the state. But the statute does- commence to run in favor of such occupant against the grantee of the state, from the date of the grant of the land so occupied. Hall v. Webb, 21 W. Va. 318; Adams v. Alkire, 20 W. Va. 480; Shanks v. Lancaster, 5 Gratt. 110; Reusens v. Lawson, 91 Va. 226. 21 S. E. Rep. 347.
Injunction to Judgment on Ground of Lapse of Time. -’An injunction to a judgment in an action of ejectment, will not lie dissolved, where it appears that the plaintiff in the action, was guilty of ladies and has acquiesced in the claim of the defendant for the period of the statutory bar. Hatcher v. Hall, 77 Va. 573.
“War and Stay Law Period” Must Be Excepted.—A defendant in ejectment is protected by twenty years' possession before the bringing of the action, but the stay law period provided for by the legislature is not to be counted in his favor. Clay v. Ransome, 1 Munf. 454; Va. Min., etc., Co. v. Hoover, 82 Va. 449; Hall v. Webb, 21 W. Va. 318. But a statute providing for the war and stay law period, so far as it relates to actions for recovery of land, is unconstitutional and void, as to actions which had become barred before the passage of that act. Hall v. Webb, 21 W. Va. 318.
Burden of Proving Adverse Possession.—Where defendants in ejectment rely upon adverse possession as a defence, the burden of proving adverse possession is on them. They must show not only entry, but that their possession has been continuous during a period necessary to give title under the statute of limitations. A break in the possession restores the seisin of the true owner. Stonestreet v. Doyle. 75 Va. 356; Turpin v. Saunders, 32 Gratt. 27; Parkersburg, etc., Co. v. Schultz, 43 W. Va. 470, 27 S. E. Rep. 255; White v. Ward, 35 W. Va. 418, 14 S. E. Rep. 22.
Ejectment for Rent—Saving in Favor of Infants Not Applicable.—The saving in favor of infants, married women or insane persons in sec. 36, ch. 135, of the Code, in relation to actions or ejectment was held not to apply to actions of ejectment brought by the lessee to recover possession of the leased premises, which had been recovered by the landlord, under his right of re-entry for rent in arrears, as provided for by § 16, ch. 138, of the Code. In such case the lessee is always barred in twelve months. Leonard v. Henderson, 23 Gratt. 331.
Possession Not Adverse.—An open, exclusive, notorious and uninterrupted possession of land for more than twenty years, taken, held, and claimed under a parol gift from a plaintiff in ejectment, for a life not yet terminated, is no bar to his recovery in the action. Clarke v. McClure, 10 Gratt. 305; Flanagan v. Grimmet, 10 Gratt. 421.
The holder and claimant of property, under an equitable title derived from a vendor or grantor, who retains the legal title for future conveyance, does not hold adversely but in subordination to the grantor’s title ; and no length of possession under such title will ripen into such a title as to bar an action of ejectment brought by a second grantee, who has the legal title. Nowlin v. Reynolds, 25 Gratt. 137; Garrett v. Ramsey, 26 W. Va. 345.
B. OUTSTANDING TITLE IN A THIRD PARTY. Outstanding Title Must Be Valid,—To defeat an action of ejectment by an outstanding title in a stranger, the defendant must show it to be a present, subsisting, operative legal title, on which the owner could recover if asserting it by action. It is ndt for the plaintiff to disprove its validity. Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. Rep. 255; Wilson v. Braden (W. Va.), 36 S. E. Rep. 367; Wilcher v. Robertson, 78 Va. 602; Jarrett v. Stevens, 36 W. Va. 445, 15 S. E. Rep. 177; Atkins v. Lewis, 14 Gratt. 30.
An outstanding title which will defeat an action of ejectment must be one that is subsisting and superior at the commencement of the action. Jarrett v. Stevens, 36 W. Va. 445, 15 S. E. Rep. 177.
One who is in actual possession of land, cannot defeat an action of ejectment, by showing that he had conveyed his title to another, before the commencement of the action. Wilson v. Braden (W. Va.). 36 S. E. Rep. 367.
Proof of Outstanding Title Insufficient. - In an action of ejectment it was held that a grant of land by the commonwealth, which was properly issued and authenticated, gave the grantee vrima facie title, which could not be resisted in ejectment, by a defendant who had taken possession without color of title, and relied on the fact that the land had been conveyed by an old colonial governor, to a third person, prior to the grant by the commonwealth to the plaintiff. Holloran v. Meisel, 87 Va. 398, 13 S. E. Rep. 33.
Patent—Prima Facie Proof.—Defendants in ejectment relied upon an outstanding title in a third person and offered in evidence an abstract of the patent certified by the register, which was received without objection. It was held that this was to be regarded in the appellate court as %wima facie evidence that such a grant was issued, though the case came up on a demurrer to evidence. Atkins v. Lewis, 14 Gratt. 30.
Contract of Purchase.—Where the defendants ra an action of ejectment did not attempt to show title in any other person than the plaintiff, but claimed under him, and sought to defend their possession by virtue of a contract of purchase, it was held that they were estopped from disputing his title. McClung v. Echols, 5 W. Va. 204.
G. EQUITABLE DEFENCES.
At Common Law.—At common law no equicable defence is available in an action of ejectment against the plaintiff with the legal title. Taylor v. King, 6 Munf. 358; Harris v. Harris, 6 Munf. 367; Gibson v. Jones, 5 Leigh 370; Carrington v. Goddin, 13 Gratt. 587.
By Statute.— Equitable defences are now very generally allowed by statute to prevail against the party with the legal title in certain specific cases. The defences provided for in Virginia and West Virginia are two:
First.—When a vendor of land seeks to eject the vendee who has no deed, but is in possession under a written contract of purchase signed by the vendor, and the vendee has paid for the land, and is entitled to a deed. Va. Code 1887, sec. 2741; W. Va. Code 1899, ch. 90, sec. 20. The defence under this section is limited to cases where the whole contract, *86and its precise terms, is manifested by plain written evidence. The written contract itself must be produced before the jury; and parol evidence of its contents is Inadmissible, though it may have been lost or destroyed. Davis v. Teays, 3 Gratt. 283; Carrell v. Mitchell, 37 W. Va. 130, 16 S. E. Rep. 453; Jennings v. Gravely, 92 Va. 377, 23 S. E. Rep. 763; Suttle v. Richmond, etc., R. Co., 76 Va. 284.
Second.—Where the sum, a mortgage or deed of trust was given to secure, has been paid, and the owner of the land is in possession, and the mortgagee or trustee brings ejectment. Code of Va. 1887, sec. 2742; W. Va. Code 1899, ch. 90, sec. 20. Under this section the defence is limited to mortgages and deeds of trust, where the mortgage money has been fully paid, or to sales, where the vendee has paid all the purchase money and performed everything Incumbent on him, so as to entitle him to the specific execution of the contract in equity, and a conveyance of the legal title, without any condition proper in equity to he imposed on him. It, must be a sale, and not a partnership in the acquisition of the land; and the terms of the contract must be plaiu. Davis v. Teays, 3 Gratt. 283; Carrell v. Mitchell. 37 W. Va. 130, 16 S. E. Rep. 453; Suttle v. Richmond, etc., R. Co. 76 Va. 284; Jennings v. Gravely, 92 Va. 377, 23 S. E. Rep. 763.
Statute Strictly Construed.—The legislative enactment providing for equitable defences in certain specified cases was dictated not by a general, but a restricted policy, having in view on the one hand the preventing of gross injustice to the tenant in possession, and on the other guarding against the evils of a complicated and protracted litigation. The defendant who cannot bring himself within the terms of this statute, though he has a perfect equitable title, must fail in his defence against the plaintiff with the legal title and immediate right of possession. Davis v. Teays, 3 Gratt. 283; Jennings v. Gravely, 92 Va. 377, 23 S. E. Rep. 763; Suttle v. Richmond, etc., R. Co., 76 Va. 284.
Notice of Equitable Defences.—The statute allowing equitable defences requires that a notice of such defence must be given to the plaintiff at least ten days before the trial. If the defendant does not file the notice as required by this section, his defence will not avail him at the trial. Carrell v. Mitchell, 37 W. Va. 130, 16 S. E. Rep. 453.
VII. PLEADING AND PRACTICE.
A. FORUM OF THE ACTION.—Land is immovable property, and the universal law of nations is, that the forum rei sites in actions at law is the only jurisdiction in which the right or title to immovables can be determined, and the j udgment of such forum is absolutely conclusive in such cases. Witten v. St. Clair, 27 W. Va. 762.
B. THE DECLARATION.
Description and Location of the Property.—The declaration in an action of ejectment must describe the premises sought to he recovered with sufficient certainty. What is sufficient certainty will depend largely upon the circumstances of the particular case. But as the purpose of the description, is to identify the land so as to enable possession to be given after judgment rendered, it may be said to be the general rule that where the description of the property in the declaration is sufficient to enable the sheriff to deliver possession of the property after judgment, it Is a sufficient description. Urquhart v. Clarke, 2 Rand. 549; Hitchcox v. Rawson, 14 Gratt. 526; Postlewaite v. Wise, 17 W. Va. 1; Carter v. Chesapeake, etc., Ry. Co., 26 W. Va. 644; Kemble v. Herndon, 28 W. Va. 524; Holly River Coal Co. v. Howell, 36 W. Va. 489, 15 S. E. Rep. 214; Fleming Oil & Gas Co. v. South Penn Oil Co., 37 W. Va. 645, 17 S. E. Rep. 203; Clerc v. Greer (W. Va.), 38 S. E. Rep. 485.
In Carter v. Chesapeake, etc., R. Co., 26 W. Va. 644. the declaration described the premises as “a certain lot of land lying in the town of Ronceverte, in the county aforesaid, being the piece of land near the railroad depot in said town, upon which the defendant has erected a pumphouse and appliances for the purpose of supplying its engines with water.” Applying the rule above laid down, the court held this description sufficient, and a demurrer to the declaration was overruled.
In Hitchcox v. Rawson, 14 Gratt. 526, a declaration which described the laud as a part of a larger tract owned by the plaintiff, near certain creeks which had no public notoriety was held defective and had on demurrer.
In Clerc v. Greer (W. Va.), 38 S. E. Rep. 485, a description of land showing the county, thequantity, the home farm of which it was a part, the person to whom it was assigned, the suit in which partition, was made, and all the lauds by which it was hounded, was held sufficient.
In an action of ejectment brought under Code of Virginia of 1860, it was held that the land was described with sufficient certainty, where the declaration stated the county in which it lay, and that it adjoined the “old Postlewaite farm,” and that it contained 114 acres, and its boundaries were set out in detail by courses and distances. Postlewaite v. Wise, 17 W. Va. 1.
In Kemble v. Herndon, 28 W. Va. 524, the caption of the declaration was; “West Virginia, Preston County, to wit.” The declaration described the land as situated in Preston county, in Kingwood district, and gave a description of it which was minute and accurate. The declaration was held valid, and the fact that it was not stated in the body of 'the declaration that Preston county was in West Virginia, did not invalidate it.
The Declaration Need Not Allege That the Premises Were “Unlawfully”. Withheld.—A declaration in an action of ejectment, which alleged that the plaintiffs were ousted by the defendants, and held out of possession by them, was held sufficient. It was not necessary to allege that the defendants unlawfully withheld possession of the premises from the plaintiffs. Postlewaite v. Wise, 17 W. Va. 1.
Variance in Counts—Effect.—After issue joined in ejectment on the title only, and a verdict for the plaintiff, for the land in one of the counts in the declaration mentioned, it was held to be no ground for a motion in arrest of judgment, that the two counts laid demises of the land from different persons. Throckmorton v. Cooper, 3 Munf. 93; Paul v. Smiley, 4 Munf. 468.
In ejectment, where the demise and ouster were laid precedent to the plaintiff’s title, it was held to be cured by the statute of jeofails. Duval v. Bibb, 3 Call 362; Whittington v. Christian, 2 Rand. 353.
Enlarging the Term Laid in the Declaration.—Upon a judgment in ejectment, if execution of the writ of habere facias possessionem be prevented for several years by injunction, the plaintiff is entitled to the writ on motion upon a rule to show cause, without a scire facias, provided not more than a year has elapsed since the affirmance, by the court of appeals, of the decree dissolving the Injunction, and *87dismissing the bill in chancery. In such case, if the term laid in the declaration has expired pending the proceedings on the injunction the court to which the motion is made for the writ, may cause the term to be enlarged and award the writ, upon a rule to show cause, served upon the defendant, Noland v. Seekright, 6 Munf. 185.
That the term stated in a declaration in ejectment has expired, previous to the decision on an appeal, is a circumstance of no importance. Baker v. Seekright, 1 H. & M. 177.
In ejectment, if the term laid in the declaration expire before the decision of the cause, the practice is to grant leave to amend the declaration by enlarging the term. Hunter v. Fairfax, 1 Munf. 218.
LandSord Not Joined in the Declaration—Costs.—A landlord who defended an action of ejectment against, his tenant without being joined in such action, was compelled to pay the costs of the action where his defence was unsuccessful, and execution against the tenant for the costs had been returned unsatisfied. Johnston v. Mann, 21 W. Va. 15.
Where a tenant was sued in ejectment for the land so held by him it was held that Ms landlord was entitled under the act, Code, ch. 135, § 5, tobe made a party defendant to the action. Mitchell v. Baratta, 17 Gratt. 445.
Substitution of New Plaintiffs by Amending the Declaration.—When one or more plaintiffs have been named in the declaration in ejectment, and it is afterwards discovered or supposed that other persons may have the right, the same reason that authorizes the joinder of several different persons, not claiming jointly or in common, in an original declaration, admits the introduction of new plaintiffs by an amendment. When this is done, all may proceed in the one suit; the same surveys and depositions, thereafter made and taken, and the same evidence, may be used, as far as competent and relevant: and the rights of all the parties may, atone time, be determined. Strader v. Goff, 6 W. Va. 261.
Undivided Interests -Declaration—Statute.—By section 2730. Virginia Code.it is provided that the plaintiff in ejectment shall state whether he claims in fee, or for life, or for the life of another, or for years, specifying such lives, or the duration of such term, and when he claims an undivided interest he shall state the same. A declaration was held suliicient under this section, which stated that the plaintiffs were possessed each in fee simple absolute, of an undi vided share or interest in a tract of land, where the suit was for the whole land so claimed, and not tor any part or parcel. Roach v. Blakey, 89 Va. 767, 17 S. E. Rep. 228.
Several Claimants May Be Joined in One Action of Ejectment.—Several tenants, claiming severally, parts of the land sued for, may be sued in one action of ejectment. Camden v. Haskill, 3 Rand. 462.
O. PLÍ5AS.
Under Virginia Statute the Only Plea in Bar Is the General Issue.—in an action of ejectment, the only idea in bar of the action, in whole or in part, admissible under the statute (Code 1873, ch. 131, sec. 13) is the plea of “not guilty”; and where the defendant was allowed to file a paper which he called a disclaimer. but which was in effect a special plea, the appellate court held the allowance of the filing of such paper error. Reynolds v. Cook. 83 Va. 817, 3 S. E. Rep. 710.
Defendant May Plead hi Abatement Waiver.—A plea in abatement is admissible in an action of ejectment, and a defendant may waive his plea in abatement and plead in bar. James River, etc., Co. v. Robinson, 16 Gratt. 434.
A defendant in ejectment admitted that he was mistaken as to matters pleaded in abatement, and upon this admission submitted the issue upon the Plea to the court, and at the same time asked leave to file the plea of “not guilty.” This was in effect a waiver of the plea in abatement, and he should have been permitted to file the plea of “not guilty.” James River, etc., Co. v. Robinson, 16 Gratt. 434.
Pleas—West Virginia—Statute.—The Code of West Virginia, ch. 90, sec. 13, provides, “that a defendant in ejectment shall plead the general issue only, which shall be that he is not guilty of unlawfully with holding the premises,” etc. It was held proper for the court, in an action of ejectment to sustain a demurrer to a special plea, to a declaration in ejectment under this statute. Johnston v. Griswold, 8 W. Va. 240.
D. NEW TRIALS.
Rule in Regard to New Trials in Ejectment.—A court ought to hold a stricter course towards plaintiffs, moving for new trials, in ejectment, than towards defendants; yet, where a verdict in favor of a defendant, in ejectment, is founded in mistake and produces injustice, it Is both the right and duty of the court to grant a new trial. Deems v. Quarrier, 3 Rand. 475.
Motion for a New Trial--After^Discovered Evidence.— In an action of ejectment, judgment being given for the plaintiffs, the defendants moved for a new trial upon the ground of after-discovered evidence. This evidence, which they claimed was after-discovered, was a conveyance which had been on record for two years. It was held that as the defendants did not allege that they had used due diligence, the motion was properly overruled; and the judgment was affirmed on appeal. Lewis v. McMullin, 5 W. Va. 582.
Motion fora New Trial—Putting the Plaintiff upon Terms.—in an action of ejectment, the verdict was for the plaintiff, for the whole amount of the land claimed. The defendants moved the court to set aside this verdict, and to grant them a new trial, upon the ground that the verdict was contrary to the law and evidence. After consideration of the motion, the court entered an order declaring that the verdict was contrary to the law and the evidence, and that it would set the same aside and grant a new trial, unless the plaintiff would abate the said verdict and take a judgment for less land than allowed in the verdict. On an appeal by the plaintiff, it was held that while it is proper for the trial court to put the plaintiff on terms in an action for the recovery of money, this rule does not apply to actions of ejectment because of § 2610, Va. Code, prescribing what the verdict for land shall be. Shiflet v. Dowell, 90 Va. 745, 19 S. E. Rep. 848.
But by a later decision in Virginia, a plaintiff in ejectment may be put upon the term, as well as a plaintiff in any other action. In Fry v. Stowers, 98 Va. 417, 36 S. E. Rep. 482, Harrison, J., in delivering the opinion of the court, said: “We do not approve the rule announced in Shiflet v. Dowell, 90 Va. 745, 19 S. E. Rep. 848, that the principle stated does not apply in the case of an action of ejectment, because of the statute which requires that the verdict shall ‘specify the land, particularly as the same is proved, an d with the same certainty of description as isrequired in the declaration.’ The practice of putting a party upon terms where the verdict is plainly *88erroneous in part, is a wise and salutary one, saving delay, costs, and above all, ending strife, and we perceive no good reason why the ends of justice are not as much subserved by the application of the principle in an action of ejectment as in any other case.”
IS. APPELLATE PROCEEDINGS.
Effect of Death of the Appellee.—Where, in ejectment, judgment was given for the defendant and the plaintiff appealed, pending which, the appellee died, it was held that the appellant could not sue a scire facias against his heirs, but he must bring a new suit. Tomkies v. Walters, 6 Call 44.
Death of Plaintiff’s Lessor.—An appeal from a judgment in ejectment does not abate by the death of the plaintiff’s lessor; and this is true though the lessor claims for life only. Medley v. Medley, 3 Munf. 191; Kinney v. Beverley, 1 H. & M. 530; Purvis v. Hill, 2 H. & M. 614; Mooberry v. Marye, 2 Munf. 453; Carter v. Washington, 2 H. & M. 31. See also, Stockton v. Copeland, 30 W. Va. 674, 5 S. E. Rep. 143.
Dismissal of Writ of Error.—Where the plaintiff in error himself has done some act since the j udgment complained of was rendered, that would inlaw prevent him from obtaining any fruits of a writ of error, his writ of error will be dismissed by the appellate court. But where the motion to dismiss was founded upon an alleged forfeiture of the defendant’s title after judgment in an ejectment case, the motion was overruled. Bradley v. Ewart, 18 W. Va. 598.
No Issue Made Up—Judgment Reversed.—Where the record in an action of ejectment, showed that there was no issue made up between the plaintiff and the defendant, by the pleadings in the case, the judgment was reversed by the appellate court. Brown v. Cunningham, 23 W. Va. 109.
In an action of ejectment the plaintiff recovered possession of the tract of land in controversy, and a writ of possession issued, ousting the defendant and putting the plaintiff in possession. Afterwards this judgment was reversed by the appellate court. It was held that the defendant was entitled to a writ of possession of the land. Brown v. Cunningham, 23 W. Va. 109.
Irregularities at the Trial—Objection on Appeal.— Where there were a number of defendants to an action of ejectment, and a trial and verdict was had as to part of them, and the case was revived against the heirs of others, and a further trial was had as to them, no objection being made in the court below, it was held that the question of error in the separate trials, could not be raised for the first time in the appellate court. Kenna v. Quarrier, 3 W. Va. 210.
VIII. EVIDENCE.
A. ADMISSIBLE EVIDENCE.
The Evidence Must Be Relevant.—The evidence in an action of ejectment must be relevant to the issue. The statute of jeofails, curing any objection of form or substance in the’declaration in ejectment, after issue joined, does not affect this rule. Butts v. Blunt, 1 Rand. 255. In this case the lessor being a fictitious person, instead of the lessee, evidence on the part of the plaintiff not going to show title in the lessor, was excluded.
The “Best Evidence Rule”—Exceptions.—The rule requiring that the best evidence which the nature of the case admits of should be produced, though generally true, is inapplicable in actions of ejectment concerning the title to land. A copy of a patent is as good evidence of title as the original would be. Lee v. Tapscott, 2 Wash. 276.
The testimony of the editor of a newspaper, that he inserted therein, the requisite number of times, an advertisement, the purport of which he states on oath, is sufficient proof of such publication, on a trial in ejectment, without producing the advertisement itself. Moore v. Gilliam, 5 Munf. 346.
Indorsement on a Deed.—An indorsement on the back of adeed, relating to the subject-matter of the deed, is a part of the deed, and is admissible in evidence to defeat an action of ejectment. Stone v. Hansbrough, 5 Leigh 422.
Recitals in a Deed.—In an action of ejectment, it was held admissible for the Plaintiff to introduce in evidence a deed, for the purpose of supplying a link in his chain of title, by means of recitals contained therein, and from which a grantmight be presumed as against the defendant. Va. & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S. E. Rep. 426, See also, Hall v. Hall, 12 W. Va. 1; Hassler v. King, 9 Gratt. 115.
Evidence to Show Adverse Possession.—In ejectment between co-tenants, where the defendants relied on adverse possession, and acquiescence by the plaintiffs, letters by a party under whom defendants claimed, and also a correspondence between one of the plaintiffs and the agent of the defendant, were held competent evidence to show for what purpose the tenants in possession had claimed the property, and the plaintiffs acquiesced in their claim. Stonestreet v. Doyle, 75 Va. 356.
Error in a Patent—Evidence.—in ejectmentfor land in Wood county, lessor of plaintiff claimed under grant of land described in the patent as lying in Monongalia; defendant showed by the statute of 1784, dividing Monongalia and establishing Harrison county, and other evidence that the land described in the patent, at the date of the patent, lay not in the then county of Monongalia, but in that of Harrison, and that no part of the present county of Wood was then part of Monongalia. It was held, competent to the plaintiff to prove, that the land in Wood was the same land granted by the patent, notwithstanding the error of the patent as to the county in which it lay. Chapman v. Bennett, 2 Leigh 329.
Proof of Outstanding Title—Landlord and Tenant.— In an action of ejectment brought by the landlord against a tenant in possession, it appeared that before the institution of the action the tenant had disclaimed to hold under the landlord; it was held admissible for the tenant to introduce in evidence matters which tended to show title in a third person, and an assignment of that title by such third party, to the tenant himself. Smoot v. Marshall, 2 Leigh 134.
Commissioner’s Deed.—In an action of ejectment the plaintiff offered in evidence a deed made by a commissioner in pursuance of a decree entered in a suit brought for the specific execution of a written contract for the sale of the land so conveyed, and such portions of the record, as show the authority of the commissioner to make such deed, including the said written contract. Held, it was not necessary in such action of ejectment to prove the execution of such contract by the vendor of the land. Waggoner v. Wolf, 28 W. Va. 820.
Tax Deed Executed by a Deputy Recorder.—In an action of ejectment, a tax deed for land, executed in 1870, by a deputy recorder, and duly acknowledged by him in his own name as such deputy, was *89held admissible evidence under W. Va. Code of 1868. Davis v. Living, 32 W. Va. 174, 9 S. E. Rep. 84.
Record in Another Swat. - A record in another suit was held admissible in evidence in an action of ejectment, for the purpose of using as evidence certain exhibits contained in the record, where the exhibits tended to prove title, and the record was accompanied by proof of possession under claim or color of title. Va. & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S. E. Rep. 426.
In ejectment where the defendants claimed as a purchaser under a decree, it was held that the record in a chancery cause was legal evidence for him, as a link in his chain of title, though the plaintiff was not a party to the cause. Baylor v. Dejarnette, 13 Gratt. 152.
But in an action of ejectment, the record of another action of ejectment between other parties was held not competent evidence upon a question of boundaries, or the location of the land in controversy. Stinchcomb v. Marsh, 15 Gratt. 202.
Record of Prior Proceedings—Collateral Attack.—On the trial of an action of ejectment, plaintiff claimed under a conveyance from a commissioner of delinquent lands, and offered the record of the proceedings for the sale ol the lands in evidence. The defendant objected to it for irregularities on its face. But as these irregularities did not render the proceedings void, it was held they could not be attacked in a collateral proceeding between the purchaser and a third party. Hitchcox v. Rawson, 14 Gratt. 526.
Evidence of Nonexecution of a Deed.—In an action of ejectment, evidence by the female plaintiff, that she did not sign or acknowledge the deed under which the defendant claimed, was admitted. It was held that the defendant might rebut this by showing that she received a part of the consideration for the deed. Blair v. Sayre, 29 W. Va. 604, 2 S. E. Rep. 97.
Identification of Land'-Land Books—Payment of Taxes.—Upon the trial of an action of ejectment it was held admissible for the plaintiffs to introduce evidence showing that a tract of land containing the same number of acres, and lying the same distance from the courthouse, and in the same direction as the land in controversy, was charged on the land books for the purposes of taxation. They w'ere also allowed to introduce tax tickets showing the payment of taxes on the land so listed. The question as to the identity of the land was held one for the jury upon all the evidence. Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. Rep. 232.
Entry—Identification.—An entry may be introduced, as presumptive evidence, before the jury, in an action of ejectment, to identify the calls of the patent; but not to turnish particulars of description, not contained in the grant, nor to invalidate or aid the legal title of which the patent is the foundation. Camden v. Haskill, 3 Rand. 462.
Evidence to Show Color of Title—in an action of ejectment to recover a larger tract of land, of which defendants claimed title to two parcels or interlocks, it was held proper for the court to admit evidence of the possession of the plaintiff of the larger tract outside of the interlocks in controversy, where the plaintiffs claim was based upon adverse possession under color of title. Breeden v. Haney, 95 Va. 622, 29 S. E. Rep. 328.
Defendant in ejectment claiming under a junior patent, founded on an inclusive survey, may introduce in evidence the entries for the different tracts embraced in the inclusive survey, the order of court authorizing the survey, and the survey itself, in order to show possession under color of title prior to his patent. Shanks v. Lancaster, 5 Gratt. 110.
The deed- or instrument relied on to give color of title, must seem to define specifically the boundaries of the claim, therefore, an instrument offered by the plaintiff in evidence in an action of ejectment, which did not point to the boundaries of the claim, was rejected. Blakey v. Morris, 89 Va. 717, 17 S. E. Rep. 126.
Party Claiming under a Void Patent.—Where the grantee in a patent for land was dead at the time the grant issued, the patent was void ; and this was properly shown on a trial of ejectment in which one party claims under the patent. Blankenpickler v. Anderson, 16 Gratt. 59.
In ejectment, it was held competent to the defendant, to give in evidence that the patent, under which the plaintiff claimed, was obtained by fraud, although upon the face it appeared to have been regularly issued. Hambleton v. Wells, 4 Call 213. But evidence is inadmissible, in an action of ejectment, to show irregularities which do not amount to fraud. Witherinton v. McDonald, 1 H. & M. 306.
Competency of Witnesses—Trustee.—The trustee in a deed of trust, conveying property to be sold for payment of a debt, is equally the agent of the debtor and creditor, and is a competent witness, in an action of ejectment against the debtor in behalf of a purchaser from himself, to prove that the sale of the property was advertised, according to the terms of the deed of trust. Ross v. Norvell, 3 Munf. 170.
Competency of Witnesses—Husband and Wife, -in an action of ejectment, theheirs of a wifedemanded land in possession of grantees of the husband, on the ground that it had descended upon her from her father, though the wife’s brothers had conveyed it to her and her husband by a deed reciting a consideration, but which the heirs claimed -was only a deed of partition. It was held, that the declarations of the husband that the land had come to the wife from her lather and that he had only a life estate in it, were admissible in evidence. Dooley v. Baynes, 86 Va. 644, 10 S. E. Rep. 974.
B. INADMISSIBLE EVIDENCE.
Irrelevant Evidence.--Evidence which is irrelevant to the issue, and which has no connection with the subject of the controversy is not admissible in an action of ejectment. Blakey v. Morris, 89 Va. 717, 17 S. E. Rep. 126; Butts v. Blunt, 1 Rand. 255. The will of a patentee of land under whom the plaintiff in ejectment claimed, was held inadmissible in evidence, where it made no reference to the land in controversy. Blakey v. Morris, 89 Va. 717, 17 S. E. Rep. 126.
Unproved Deed.—In an action of ejectment, it was held error to admit a deed in evidence, where there was no legal proof of its execution, and no sufficient evidence of possession under it; and evidence of possession fifteen years after the date of said deed by a purchaser from the grantee therein, under his deed, was not sufficient to entitle the former deed to be admitted. Where the plaintiff was permitted to show by parol evidence, possession in conformity with his deed, it was held error to exclude the evidence which the defendant offered in rebuttal. Shanks v. Lancaster, 5 Gratt. 110.
Parol Declarations Cannot Extend a Deed.—In an action of ejectment where the plaintiff’s deed conveyed by well defined boundaries, it was held that a *90parol agreement made before the execution of the deed, that other adjoining land beyond these boundaries, should be included in it, or an agreement after its execution that it should extend to include other adjoining lands, could not have the effect to embrace these lands within the deed. Pasley v. English, 5 Gratt. 141; Pasley v. English, 10 Gratt. 236.
Attackinga Deed.—in an action of ejectment by a party claiming under the purchaser against the devisees, evidence to prove that the consideration of the deed was different from that expressed in it, was held inadmissible. Carrington v. Goddin, 13 Gratt. 587.
Parol Disclaimer.—in ejectment by the heirs of the devisee of an estate in fee, the defendant introduced evidence tending to show a parol disclaimer by the devisee, of the land devised to him, and moved the court to instruct the jury, that if they believed from the facts proved, that there was such parol disclaimer of the land devised, they must find for the defendant. The court refused to give this instruction to the jury, and instructed them that the disclaimer must be by writing. Bryan v. Hyre, 1 Rob. 94; Suttle v. Rich., etc., R. Co., 76 Va. 284.
Deed of Partition.—A decree of partition obtained by several parties against the vendor of certain lands was held inadmissible in evidence in an action of ejectment brought by them against the vendee, who was not a party to the suit for partition and was therefore not bound by the decree. Carter v. Washington, 2 H. & M. 345.
A Deed Which Is Improperly Acknowledged.—If proof, or acknowledgment, of a deed, made by a nonresident of land lying in Virginia, be not certified according to law, though it should be admitted to record it cannot be received in evidence as a recorded deed in an action of ejectment. Turner v. Stip, 1 Wash. 319.
But in Wise v. Postlewait, 3 W. Va. 452, it was held that a deed for land in that state, acknowledged in another state. by part of the grantors, in such manner that it might be admitted to record in West Virginia, but which was not recorded, might be given in evidence on the trial of an action of ejectment, as to the parties by whom it was acknowledged.
C. WEIGHT OF EVIDENCE.
A Question for the Jury.—While it is competent to the court to decide upon the legality and admissibility of evidence, it is not competent to them to decide upon the weight of such evidence. It should be admitted only as legal testimony, in relation to the subject in controversy, leaving the jury to determine what facts are proved by it. Whitacre v. McIlhaney, 4 Munf. 310.
In an action of ejectment, the plaintiff offered evidence to prove where one of the corners of a survey was located, and the defendant offered evidence to prove where another corner was located. As both of them could not be correct it was held a question for the jury, to determine the boundary upon all the evidence which was produced before them. Bowers v. Dickinson, 30 W. Va. 709, 6 S. E. Rep. 335.
Weight of Record in Ejectment.—The record of an action of ejectment is not conclusive evidence of the date of the demise, in an action for mesne profits, although it is conclusive as to the title. Whittington v. Christian, 2 Rand. 353.
IX. VERDICT AND JUDGMENT.
A. REQUISITES AND CONSTRUCTION OF VERDICTS.
In General.—The verdict of the jury in an action of ejectment must describe the premises with convenient certainty and must be responsive to the issue. The estates of the parties in the subject of the controversy must be set out specifically. The object of describing the premises is that possession may be delivered, and where a verdict points out the locality of the tract by reference to the lands of coterminous owners and the public highways passing it, it forms a description equally satisfactory and certain as the statement of metes and bounds ordinarily contained in deeds of conveyance. Hawley v. Twyman, 24 Gratt. 513; Messick v. Thomas, 84 Va. 891, 6 S. E. Rep. 482.
In Wilson v. Braden (W. Va.), 36 S. E. Rep. 367, the evidence showed that the plaintiff and the defendant, were each entitled to hold a part of the land. A verdict of the jury which did not show with any degree of certainty the part each was to hold, was held bad.
A verdict in ejectment, finding for the plaintiff, in general terms, a certain number of acres, part of the premises in the declaration mentioned, without designating the boundaries of such part, or referring to some certain standard to supply such defect, was held too uncertain to warrant a judgment upon it, and a venire facias de novo was awarded. Gregory v. Jackson, 6 Munf. 25; Cropper v. Carlton, 6 Munf. 277; Murra v. Northern, 1 Wash. 282.
Where the premises in an action of ejectment were described in the declaration with “convenient certainty,” and the verdict was that the plaiptiff was entitled in fee to the whole of the premises in the declaration described, such verdict was held not defective for uncertainty. Messick v. Thomas, 84 Va. 891, 6 S. E. Rep. 482.
Co-tenants—Certainty of Verdict.—One cannot recover as sole plaintiff in ejectment the interests of both himself and his co-tenants, and where a plaintiff shows that he is a co-tenant, he must also show the extent of his undivided interest, so that the verdict and judgment may be sufficiently certain as to his interest. Marshall v. Palmer, 91 Va. 344, 21 S. E. Rep. 672.
The Verdict Must Be Responsive to the Issue.—To a charge in a declaration of ejectment that the defendant unlawfully withholds the possession of the land, the plea was “not guilty,” and the verdict of the jury was : “We the jury, find that the defendant does not withhold possession of the land in the declaration mentioned, as alleged, and therefore find for the defendant on the issue joined.” This was held responsive to the issue, and the verdict in form was unexceptionable. Andrews v. Roseland Iron & Coal Co., 89 Va. 393, 16 S. E. Rep. 252.
The declaration in ejectment alleged that the plaintiff was possessed of an estate in fee, and the defendant entered upon this estate and unlawfully withheld possession thereof from plaintiff. The defendant pleaded not guilty, the verdict of the jury was: “We, the jury, find for the plaintiff that he is entitled in fee to the whole of the premises in his declaration described, and that all the defendants were in possession of a part thereof, or claimed title to some part at the commencement of this suit.” It was held, that the verdict responded to the issue. Messick v. Thomas, 84 Va. 891, 6 S. E. Rep. 482; Hawley v. Twyman, 24 Gratt. 516.
*91Verdict Must Specify the Estate.—In an action of ejectment, the declaration stated that the plaintiff had title in a fee simple to the land, and described it by quantity, and as bounded by certain roads and coterminous owners. The issue was upon the plea of “not guilty,” and the verdict of the jury was: “We, the jury find that the defendant is guilty in manner and form as stated in the declaration.” It was objected that this verdict did not specify the state to which the plaintiff was entitled; but it was held to be a finding by the jury that the plaintiff was enthled to the land in fee. and was a sufficient description of the estate. Hawley v. Twyman, 24 Gratt. 516; Messick v. Thomas, 84 Va. 891, 6 S. E. Rep. 182.
Verdict Must Specify the Estate—West Virginia.—In Elliott v. Sutor, 3 W. Va. 87, the plaintiff claimed land in fee, the verdict of the jury found for the plaintiff the land in the declaration mentioned, as described in a survey in the cause, without specifying the estate therein to which the plaintiff was entitled. It was held that the verdict was unobjectionable. But this case has since been overruled, and it is now held that a verdict which does not specify the estate to which the plaintiff is entitled is fatally defective, under W. Va. Code, ch. 90. Low v. Settle, 22 W. Va. 387; Oney v. Clendenin, 28 W. Va. 34.
Proof that a corporation, suing in ejectment, has an estate in fee in land, whether on the dissolution of the corporation the estate would revert to the grantor or not. is sufficient to support a finding by the jury that the corporation has an estate in fee. Mercer Academy v. Rusk, 8 W. Va. 373.
Verdict—Rules of Construction.—In an action of ejectment there was only one plaintiff, and on a plea of not guilty the jury found this verdict: “We, the jury, find the issue for the plaintiffs, and we And the plaintiffs have title in fee to the lands in the declaration mentioned, and we find one cent damages for the plaintiff.” It was held that this verdict was valid, as the word “plaintiffs” could only refer to the one plaintiff in the case. Williams v. Ewart, 29 W. Va. 659, 2 S. E. Rep. 881.
Verdicts of juries are to be favorably construed. But in an action of ejectment where the verdict was so vague and uncertain that the substantial meaning of the jury could not be satisfactorily collected from the verdict, it was held insufficient, and a new trial was awarded. Lewis v. Childers, 13 W. Va. 1.
Variance between Verdict and Declaration—Construction.—A declaration in ejectment claimed five acres of land, and the plot of the surveyor made in the cause showed that the boundaries and lines as described in the verdict finding for the plaintiffs contained nine acres. It was held that as the only question in dispute was a common line, claimed by the plaintiff and the defendant, and the jury having found for the former, it was immaterial whether the quantity be live or nine acres, as the bounds and line claimed in the declaration corresponded with the bounds and lines found by the jury. Elliott v. Sutor, 3 W. Va. 37.
Province of the Jury-Undivided Interests.—Though in ejectment the plaintiffs in their declaration claim the whole of a tract of land, the jury may find for the plaintiffs for an undivided interest in it. Though where less land is recovered than is demanded, the boundaries of the land recovered should be designated, yet where an undivided interest in it is recovered, it is impossible to set out the boundaries; but the interest being certain, that is sufficient. Callis v. Kemp, 11 Gratt. 78.
In an action of ejectment, where a deed which forms part of the chain of title of the plaintiff, is alleged to be voluntary and fraudulent, it is proper for the jury under suitable instructions from the court, to determine whether the deed was voluntary and fraudulent, or not. Taylor v. Mallory, 96 Va. 18, 30 S. E. Rep. 472.
It was proved on a trial in ejectment, that the father of the lessor of the plaintiff, who devised the land to him. was in possession thereof many years before and until his death; and that the lessor of the plaintiff afterwards conveyed it to a person, who was in possession at the time of his death; it was held that the jury might presume that the lessor of the plaintiff was in possession from the death of his father to the date of -such conveyance, if it was not proved that some other person, in the meantime, had that possession. Moore v. Gilliam, 5 Munf. 346.
Whether the plaintiff in ejectment is sole heir of a person through whom he traces title, and whether the defendant has adverse possession for the period of the statutory bar, are questions for the jury. Taylor v. Mallory, 96 Va. 18, 30 S. E. Rep. 472.
Verdict Fixing the Boundary Lines.—Where, in an action of ejectment, the evidence is conflicting as to boundary lines, the verdict of the jury fixing such lines will not be disturbed unless some other valid objection thereto be shown. Fry v. Stowers, 98 Va. 417, 36 S. E. Rep. 482.
Verdict for Part of the Land Sued for.—Where a verdict in ejectment is for a part only of the land sued for, the boundaries of the part recovered should be designated. The verdict must be certain in itseli, or must refer to some certain standard by which to ascertain the land so found, otherwise it will be too uncertain to warrant a judgment upon it. Callis v. Kemp, 11 Gratt. 78, 84; Gregory v. Jacksons, 6 Munf. 25; Slocum v. Compton, 93 Va. 374, 25 S. E. Rep. 3.
Where Defendant Only Claims Part of the Land.—In an action of ejectment where the defendant at the trial proved that he ;was in possession of and claimed title to only a part of the premises, the verdict and judgment for the whole land claimed in the declaration was held not to be erroneous, or at least not an error whereby the defendant was injured. Messick v. Thomas, 84 Va. 891, 6 S. E. Rep. 482; Carrington v. Goddin, 13 Gratt. 587; Beckwith v. Thompson, 18 W. Va. 103.
In an action of ejectment all of the defendants pleaded a joint plea of not guilty, without disclaiming title to any of the land in the declaration. The plaintiff proved his right to the whole land, but fathed to prove that certain of the defendants were in possession of any part of the land, or that they claimed title to it, or any part thereof. It was held that a general verdict for the whole land claimed in the declaration was not erroneous, because of this failure of proof by the plaintiff. Beckwith v. Thompson, 18 W. Va. 103.
A general verdict for the defendant in an action of ejectment, is proper, if warranted by the evidence; and no disclaimer is necessary to its validity, although much more land was described in the declaration than the defendant had in possession at the commencement of the suit. Jones v. C. & O. R. Co., 14 W. Va. 514.
In an action of ejectment, the tenant, without disclaiming title to any part of the land in the declaration mentioned, proves upon the trial that he is only in possession and claiming title to a part of it. A verdict and judgment in favor of the plaintiff *92for all claimed in the declaration, is not erroneous; or if it is, it is not an error by which the tenant is injured, or of which he can complain in an appellate court. Carrington v. Goddin, 13 Gratt. 587.
Verdict upon One of Several Counts.—In an action of ejectment, the declaration contains three counts: The first count in the name of J. M. and J. C. M., the second count in the name of J. M., and the third count in the name of J. C. M. The plea filed, is, not guilty, on which issue is joined. The jury find for J. C. M., “under the third count in the declaration, the following land in fee simple,” and described the land so found, by reference to the plat of the surveyor filed in the cause. This finding of the jury is to be taken as a finding for J. C. M., of part of the land in the declaration demanded, and that his estate therein, was an estate in fee simple, and the verdict giving metes and bounds, by reference to said plat, is sufficiently specific. Myers v. Ford, 9 W. Va. 184.
Verdict of Jurors Who Are Irregularly Sworn.—The oath usually administered to a jury is, “to well and truly try the issue joined.” Where the jurors were sworn to “speak the truth of, and upon the premises” their verdict in an action of ejectment was held to be unexceptionable. Mercer Academy v. Rusk, 8 W. Va. 373.
Verdict No Bar to Another Action.—No verdict and judgment in ejectment, can be relied on as a bar to a subsequent action of ejectment, even though for the same land, and between the same defendants and lessors of the plaintiffs, if the fictitious plaintiffs are not the same. Pollard v. Baylors, 6 Munf. 433.
Verdict by Eleven Jurors.—A verdict in ejectment rendered by eleven jurors was held valid, where it appeared that the parties in open court consented to a trial by eleven jurors instead of twelve. Roach v. Blakey, 89 Va. 767, 17 S. E. Rep. 228.
Verdict Extended by the Court.—In an action of ejectment the jury found for the plaintiff one cent damages. The verdict was extended by the court so as to include the land in the declaration mentioned, and one cent damages. This was no error. McMurray v. Oneal, 1 Call 246.
B. SPECIAL VERDICTS.
Special Verdict Must Describe the Premises.—The plaintiff in ejectment may recover less land than the quantity stated in his declaration. But, if the jury find a special verdict, showing the plaintiff entitled to a certain number of acres, part of the tract sued for, and do not specify the boundaries of such part with so much precision as that possession thereof may with certainty be delivered, a venire de novo ought to be awarded. Clay v. White, 1 Munf. 162. See also, Geddy v. Butler, 3 Munf. 345.
Special Verdict—Certainty.—In ejectment the jury set out the wills of a grandfather and father; and if the son who is dead took under his father’s will they find for the plaintiff. If he took under the grandfather’s will, they find for the defendants. The verdict is sufficiently certain; and submits the single question upon the construction of the wills to the court. Callis v. Kemp, 11 Gratt. 78.
In an action of ejectment, the jury having returned a special verdict, which found facts in relation to two tracts of land, arid concluded by saying that if the law arising upon those facts were for the plaintiff they found for the plaintiff, the lands in the declaration mentioned, but if the law was for the defendant they found for the defendant; and the court being of the opinion that the law was for the plaintiff as to one of the tracts' of land, and | | for the defendant as to the other, held it unnecessary to award a venire facias de novo, but gave judgment on the special verdict for the plaintiff for one tract, and for the defendant for the other. Hutchison v. Kelly, 1 Rob. 123.
Special Verdict—Insufficiency.—A special verdict in ejectment was set aside, for not finding the time of the death of a person, under whom the lessors of the plaintiff might or might not have been entitled to the land in controversy, their title depending upon the time when he died, which, from the circumstances disclosed in the verdict, probably could have been found by the jury; also, for not finding whether the defendant or those under whom he claimed, had or had not such possession of the land as would be sufficient for his defence, in that action, whatever might be the state of the title. Cropper v. Carlton, 6 Munf. 277.
Actual Ouster Must Be Shown in Verdict against a Co-tenant.—in an action of ejectment against a tenant in common by a co-tenant, if the jury return a special verdict, actual ouster must be found therein, to entitle the plaintiff to judgment; the pro forma confession of ouster which the defendant is compelled to make before he is allowed to enter his plea, was held not sufficient in an action of ejectment, between co-tenants. Taylor v. Hill, 10 Leigh 457; Purcell v. Wilson, 4 Gratt. 16.
Tracing Title in a Special Verdict.—In tracing title in a special verdict in an action of ejectment, it is not necessary to find a seisin in the crown; because that is the ultimate point beyond which the party is not bound to go. Birch v. Alexander, 1 Wash. 34.
C. THE JUDGMENT.
Effect of a Judgment in Ejectment.—The whole effect of a judgment for the plaintiff in ejectment is to put the lessor of the plaintiff into possession of the land; and the only point decided is, that he has a better title to the possession than the defendant. Chapman v. Armistead, 4 Munf. 382.
After judgment for the plaintiff in ejectment, trespass does not lie against one who was no party to the suit, without proof of an actual trespass. Alexander v. Herbert, 2 Call 508.
Judgment in Ejectment—Validity.—A person, having an equitable title to a tract of land, executed a power of attorney, to obtain a conveyance, but without authorizing a sale of his right. The attorney, being induced to believe the title bond defective and finding it inconvenient to pay the balance due of the purchase money, was persuaded, notwithstanding the land had greatly increased in value, to give up the title bond (but without assigning it) to the husband of a woman in whom the legal title was, in consideration of the husband’s giving up to him the unsatisfied bond for the purchase money. After the death of the wife, the husband sold the land, as his own, and the purchaser of him filed a bill in equity to enjoin a judgment in ejectment obtained against him by the heir of the wife, and to get a conveyance of the land. It was decided, that the contract between the attorney and the husband did not stand on such a footing of fairness and equity, that it ought to prevail over the legal title of the heir of the wife. McClenahans v. Hannah, 4 Munf. 499.
Amendment of a Judgment—Clerical Error.—In following an old form, a judgment in ejectment was entered for “the term yet to come.” It was held no error for a court to allow an amendment of this judgment, so as to conform with the modern action of ejectment, which is adapted to try title to land, *93as well as to get possession of it. Alvey v. Cahoon, 86 Va. 173, 9 S. E. Rep. 994.
Judgment by Confession in Ejectment.—A confession of judgment in an action of ejectment, by one of several co-defendants, was held valid, where the confession was not obtained by any unfair means, and was not made with intent to embarrass the other defendants. Va. & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S. E. Rep. 426.
A judgment by confession in an action of ejectment cannot be corrected by motion ; but only by appeal to a higher court; judgment by confession not being included in the statute allowing correction of judgments by default by simple motion. Stringer v. Anderson, 23 W. Va. 482.
Joint Judgment In Ejectment.— In an action of ejectment. parties defended it jointly and neither of ¿hem entered a disclaimer, but on the contrary gave notice with their plea of not guilty, that they jointly claimed the premises in controversy, and would rely on a contract between the plaintiff and one of tne defendants, as a defence at the trial. It was held that this was an admission that they were in possession, and in possession jointly : and that they would make a joint defence, so a joint judgment was held valid. McClung v. Echols, 5 W. Va. 204.
Where there were three defendants in ejectment, who appeared at different times : the first pleaded and. as to him, issue was joined; the second was admitted a defendant, but did not plead ; the third pleaded, but no issue was joined ; and in this state, the cause was tried, and verdict and judgment were given for the plaintiff: it was not error, notwithstanding there was no plea for the second defendant; nor issue as to the third: for their rights remained untouched, and may be tried when issues are made up as to them. Hambleton v. Wells, 4 Call 213.
Judgment for Costs.—A general judgment for costs against two defendants in ejectment, is proper, though one of them did not enter himself a defendant until there had been one trial of the cause, and a large portion of the costs had been incurred. Middleton v. Johns, 4 Gratt. 129.
Reversal of a Judgment—Validity, - Where there were two judgments in an action of ejectment, one in favor of some of the plaintiffs, against the defendants, and one in favor of the defendants, against the other plaintiffs, it was held that where the defendants appealed from the former judgment, that it might be reversed -without disturbing the other judgment. Strader v. Goff, 6 W. Va. 257.
Office Judgment—Inquiry of Damages Necessary.— An office judgment in an action of ejectment does not become final without the intervention of the court or jury. The defendant in ejectment 'may, upon notice to the plaintiff, appear at the next term of the court, and move the court to set aside the judgment, and allow him to plead therein. Smithson v. Briggs, 33 Gratt. 180: James River, etc., Co., v. Lee, 16 Gratt. 424.
X. HESNE PROFITS AND HMPROVEHRNTS.
Claim for Mesne Profits Entered after Filing of the Plea.—Where a plaintiff in ejectment filed a claim for mesne profits under sec. 30, ch. 90, Code of West Virginia, after the defendant had entered his plea, he was not allowed to recover in the same action, because it might have operated as a surprise or fraud upon the defendant. Witten v. St. Clair, 27 W. Va. 762; McCann v. Righter, 34 W. Va. 186, 12 S. E. Rep. 497.
Interest upon Mesne Profits.—Prior to the act, Code, ch. 177, sec. 14, p. 673, interest could not be allowed by a jury in an ejectment upon the profits ; and where the jury allowed .such interest it was held mere surplusage, and the judgment was given for the principal sum and interest from the date of the verdict. Hepburn v. Dundas, 13 Gratt. 219.
Assessment of Hesne Profits.—in an action of ejectment. after the plea of not guilty -was filed, the plaintiff filed an account of rents and profits, and after the suit had been pending a number of years, an agreement was entered into between the parties to the suit, whereby the defendant agreed to let judgment go by default in the suit, and the plaintiff agreed to waive all claims to damages sustained by destruction of a dwelling house, timber, etc., and the defendant agreed to pay the plain tiff all legal costs and rents in said suit. The action of ejectment remained pending for several years and was dismissed under the four-year rule, without the said rents having been ascertained in the action. In an action of covenant brought on the agreement, by the plaintiff in said action of ejectment, to recover the rents and costs, it was held that as the rents had never been assessed i u either of the modes provided by statute, covenant could not be maintained for them. McCann v. Righter, 34 W. Va. 186, 12 S. E. Rep. 497.
Improvements—Who Can Recover --Bona Fide Claimants.—Where land is recovered in ejectment, the evicted defendant in order to recover for his improvements must have been a bona fide, holder as claimant of the land : and he must have reasonable grounds to believe that he liad a good title at the time he made the improvements. Constructive notice, by the recordation of the deed, is sufficient to prevent him from being a bona fide claimant. Dawson v. Grow, 29 W. Va. 333, 1 S. E. Rep. 564; Hall v. Hall, 30 W. Va. 779, 5 S. E. Rep. 260; Burton v. Mill, 78 Va. 468.
Where land has been recovered in ejectment, and the defendant goes into chancery, to obtain compensation for improvements, he will not succeed if he had notice of the plaintiff’s title at the time of making the improvements. McKim v. Moody, 1 Rand. 58; Southall v. McKeand, 1 Wash. 336; Morris v. Terrell, 2 Rand. 6.
If a person purchase land with notice ol an equitable title in another, but that other neglect to assert his right for a long time, during which time valuable improvements are made on the land, the purchaser shall not in equity, lose the value of his improvements; but if the right is asserted before the improvements are made the purchaser will lose them. Southall v. McKeand, 1 Wash. 336.
Improvements-Juries.—If a defendant in ejectment claims for improvements on the land, the plaintiff may at any time before a judgment is rendered on the assessment of the value of the improvements, though after the jury which tried the issue or passed upon the defendant’s claim for improvements has been discharged, require that the value of his estate in the premises, without the improvements, shall also be ascertained. And this enquiry is to be made by another jury. The value of the plaintiff’s estate in the premises without the improvements, is to be ascertained as at the time when the assessment of the value of the improvements was made. Goodwyn v. Myers, 16 Gratt. 336, and foot-note.
*94In actions of ejectment, if there is a claim by the plaintiff for mesne profits and damages for waste, and by defendant for improvements under §§ 30 and 32 of ch. 135 of the Code, both claims must be passed upon by the same jury. Where the statements are filed with the declaration and plea, the jury sworn to try the issue in ejectment may make all the enquiries required at the same time that they try the issue, or the enquiries may, if the court should so order, be made by the same jury after the verdict on the title is recorded; or by a new jury to be empanelled. Goodwyn v. Myers, 16 Gratt. 336.
In an action of ejectment, the same jury which tried the case on its merits was allowed without objection from either side, to fix the value of the land, the rent and profits thereof, and the value of the improvement claimed by the defendant. It was held too late after verdict, to object to this action of the court. Corr v. Porter, 33 Gratt. 278. See oot-note to Goodwyn v. Myers, 16 Gratt. 336. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481479/ | MONCURE, J.,
after stating the case, proceeded:
The appellant has no cause to complain, and does not complain, of the decree of the court below directing the issues. No exception having been taken to the verdict, and the court having rendered a decree thereon, the facts found therein must be regarded as the established facts of the case. Whether the testator stood in loco parentis, in relation to his nephew Boak; and whether the legacy was a portion, and the donation of the bonds, receipts and other evidences of debt was of such a nature as that, standing by itself, it would have been considered an advancement in satisfaction of the legacy; are questions which need not be answered in this case. For assuming them to be answered in favor of the appellant, that is in the affirmative, I am still of opinion that, according to the facts found by the jury, the case is in favor of the appellee. If from the mere fact of the donation of the bonds, receipts, &c., an intention on the part of the testator to satisfy the legacy to Boak would have been presumed, certainly the presumption would have been repelled by proof of a contrary intention. This is admitted by the counsel for the appellant. The question is one of intention, on all the facts of the case. The verdict expressly finds a contra^intention *in this case. It finds not only the fact of the donation of the bonds, &c., but that they were given for the purpose of discharging Boak from all accountability for the same as one of the legatees in his future settlement with the executor. The will had directed that Boak should be charged with the bonds, &c., in the settlement of his legacy. The established purpose of the donation was to discharge him from all accountability for the bonds, &c., in such settlement. The necessary consequence is that he is entitled to the legacy without any deduction on account of the bonds, &c. : just as if the debt had been paid by Boak, instead of given up to him; or as if the testator had made a codicil, releasing the debt and saying it was not to be deducted in the settlement of the legacy. The testator, by giving the legacy subject to a deduction of the debt, did not deprive himself of the power of afterwards receiving the debt; or giving it to the debtor, by a donation inter vivos, or mortis causa, or by a codicil: And if so received or given, the debt 'would be discharged, that part of the will directing a deduction of the debt from the legacy would be revoked, and the debtor would be entitled to the legacy without such deduction: Unless indeed the debt were given in satisfaction of the legacy; in which case the legacy itself would be revoked. I do not see how this matter can be made plainer by argument or by authority: And I do not think there can be any room for doubt as to the right of Boak to the legacy without any deduction for the debt if the donation to the debt was a valid donation. That question I will now proceed briefly to consider.
Whether the donation was valid or not, depends upon whether there was a sufficient delivery of possession to perfect the gift. All gifts, except by will, must be attended by delivery of possession to make them *96valid. Until such delivery they are inchoate and revocable; *indeed mere nullities. The donation in this case, as found by the jury, was a donatio mortis causa. But there is no difference in this respect between donations mortis causa and inter vivos. The same kind of delivery of possession which is necessary to make good the one, is necessary to make good the other. 1 Roper on Legacies, 19; Ewing v. Ewing, 2 Leigh, 337, 341 and 344. The cases are conflicting in regard to the donation of a debt by the delivery of a bond, note, or other evidence of the debt. I deem it unnecessary to review them, as most or all of them may be seen by reference to 1 Roper on Legacies, by White, ch. 1; 1 Story’s Eq. Ju. § 433, note 3; 2 Id. § 706, 793 a, and notes. The distinction taken by Lord Hardwicke in Snellgrove v. Baily, 3 Atk. R. 214, between a gift by delivery of a bond and a note; saying that the former would be good as a donation mortis causa, but not the latter, though since followed in England, has been repudiated in several of the United States; in which it has been held that bonds, bills of exchange, promissory notes and other choses in action are all equally proper subjects of a valid donation as well causa mortis as inter vivos. 1 Roper on Legacies, p. 16, note 7; 4 Kent’s Com. 447; Wright v. Wright, 1 Cow. R. 598; Constant v. Schuyler, 1 Page’s R. 316; Borneman v. Sidlinger, 15 Maine R. 429; Wells v. Tucker, 3 Binn. R. 366. In some of the states, Massachusetts, and perhaps Connecticut, for example, the distinction taken by Lord Hardwicke seems to have been recognized. Parish v. Stone, 14 Pick. R. 198. In Virginia, bonds, bills, promissory notes, and all other writings obligatory, are assignable, and the assignee may sue in his own name. If they are transferred without a written assignment, the transferee may sue at his own cost, in the name of the party in whom is the legal title; and his right will be recognized and protected by the court against the release or other act of such party. His remedy is *complete at law, and he has no occasion to ask the aid of a court of equity. The principle that a court of equity will not assist a volunteer to complete his title, which in.England may defeat a voluntary transfer of a chose in action not negotiable, would seem to have no application in this state; but a bill, note, or other writing obligatory, is as proper a subject of a valid donation as a bond. Elam v. Keen, 4 Leigh 333, is the only adjudication in this state which seems to have a particular bearing on the subject. In that case, A having a bond in suit, told B he might have it, and gave him the attorney’s receipt. The executor of A received the money, and B brought an action against him for money had and received. The action was sustained, though B had given no consideration for the bond; the delivery of the attorney’s receipt being considered a sufficient delivery to complete the gift of the bond. Judge Carr recognized the distinction taken by Lord Hardwicke in Ward v. Turner, 2 Ves. sen. 431, between such a constructive or symbolical delivery as was sufficient to pass the right to a chattel sold, and put it at the risk of the vendee, and such a delivery as was necessary to consummate a gift. But he said, ‘ ‘there are many things of which actual manual tradition cannot be made, either from their nature or their situation at the time; it is not the intention of the law to take from the owner the -power of giving these; it mereljr requires that he shall do what, under the circumstances, will, in reason, be considered equivalent to an actual delivery.” He then refers to the case of Jones v. Selby, Prec. in Chan. 300, in which the delivery of the key of a trunk was held to be a sufficient delivery to make a valid gift of a tally of £500 contained in the trunk; and also to Noble v. Smith, 2 John. R. 52, in which Chief Justice Kent said, “the cases in which the delivery of a symbol has been held sufficient to perfect the gift, are those in which it was considered *equivalent to actual delivery; as the key of a room, or of a ware-house, which was the true and effectual way of obtaining the use of the subject. ” Judge Carr considered the receipt as the representative of the bond, which, being in court, could not be delivered; and that, as in the case of the key, the delivery of this receipt was the true and effectual way of obtaining the use of the subject.” These remarks are very appropriate to the case under consideration, and the principle of Elam v. Keen is, I think, decisive of this case.
In the case of Ewing v. Ewing, 2 Leigh 333, a gift of a bond to the obligor was held to be invalid for want of delivei'y: If the bond had been delivered the gift would have been sustained. This is obvious from the opinions of Judges Carr and Green. The former said, “Here it is expressly proved that the bond never was delivered nor any written transfer made.” The latter said, “In the case before us neither the bond in question, nor the money due upon it, could be effectually given or forgiven, or released to the obligor, but by the obligee’s canceling or destroying it with that avowed intention, or surrendering it to the obligor, or to some other for him, or by some instrument in writing to that effect.” See also the case of Dunbar’s ex’ors v. Woodcock’s ex’or, 10 Leigh 628, decided by a Special court of appeals.
A donation of a debt to the debtor himself is entitled to at least as much favor as a donation of the debt to a third person: and a delivery of the evidence of the debt is at least as valid delivery of the debt itself in the former as in the latter case. The delivery of the evidence of the debt to a stranger donee, merely enables him to obtain possession of the subject of the gift; while such a delivery to a debtor donee, ipso facto puts him in possession of the subject; or converts to his own use the possession, which he had hitherto held for the use of his creditor. Indeed, a dona*97tion of *a debt to the debtor himself has been more favored by courts of equity than a donation to a stranger. _ It is believed there has been no case in which a court of equity has enforced an imperfect gift to a stranger; while there have been various cases in which that court has enforced an imperfect gift of a debt to the debtor. Some of these cases are cited and commented upon in 2 Story’s Eq. Ju. § 705 a, 706 and 706 a; and “they proceed (says Story) upon the distinct ground that the transaction was one exclusively between the creditor and the debtor; and that taking all the circumstances together, it was clearly the intention of the creditor to treat the debt as in equity forgiven and released to the debtor himself. But cases of this sort (he further says), are cleanly distinguishable from purely voluntary imperfect gifts or assignments of debts or other property to third persons.”
I think there, was a valid donation of the debt in this case ; and it follows that I am for affirming the decree.
The other judges concurred in the opinion of Moncure, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481482/ | ALLEN, P.
This case is one of the first impression in this court, and I have had some difficulty in arriving at any conclusion satisfactory to my own mind. „ The difficulty has been somewhat increased) by the conflicting pretensions relied on by the appellee to defeat the claim. The allegations of the answer that the testator had no intention of exacting payment when the money was advanced, and that the appellee without his knowledge executed the deed of trust and spread it upon record, are refuted by an exhibition of the deed itself. From that, as it appears in the record, it seems that the deed was actually execxxted by all the parties, inclxiding the testator, and recorded upon their acknowledgment. The *106debt must therefore have been considered as an actual debt at that time, and the deed accepted as a security for it. And as to the claim that the debt was actually paid by the services rendered to his uncle by the nephew: No account for them seems ever to have been kept or charge made for them; and although they may with other considerations have operated on the creditor in *inducing him to forgive the debt, I do not think the evidence shows that either party treated those services in the light of business transactions entering into the accounts of the parties.
I think, however, in view of all the circumstances of this case, and the relation in which the parties stood towards each other, enough appears to show that if the debt has not been actually released, yet that the creditor in favor of his debtor, has himself treated it as released, or in the language of the books, dead in point of effect. That whether the uncle contemplated a gift or not when the deed was executed, or united in the transaction not with the intention of exacting payment of the money really advanced, but to protect the property of the nephew from other claims, it is, I think, manifest that long before his death he treated this debt as released and forgiven. In the case of Wekett & ux. v. Raby, 2 Bro. Par. Ca. 386, the circumstances were not as strong. There the deceased on his death bed desired his executrix and residuary legatee not to trouble his debtor for a bond debt, saying that he did not deliver up the bond, for he might want it more than the debtor, but when he died the debtor should have it; he should not be asked or troubled for it. The debtor had been counsel for the creditor, but a dispute had occurred between them when the bond was executed, and they had not been friendly thereafter. Bord Macclesfield decreed that the bond should be surrendered to be canceled and satisfaction acknowledged; and his decree, upon appeal to the house of lords, was affirmed.
In the recent case of Flower v. Martin, 2 Milne & Craig 459, 14 Cond. Eng. Ch. R. 459, the case of Wekett & ux. v. Raby was approved and followed. In the last case a father had taken a bond from the son for advances under circumstances which induced the court to believe he did not intend to exact payment, *or to hold it as a security to be put in force against his son for the benefit of his estate, but rather as a check upon his future conduct. In these and other cases referred to in 2 Story’s Fq. Jur. § 705 a, 706, 706 a, the debt was secured by bond or note, and its existence as a valid claim was undisputed. In the leading case of Wekett v. Raby it was regarded and treated by the creditor as a subsisting debt, which he, at the time of making the declarations on his death bed, had still a right to enforce; but not intending that it should be regarded as a debt due from his debtor to his estate, and to be put in force accordingly, the court gave relief. In the case before us, the uncle was a bachelor of advanced age, and owning a large estate, the nephew resided near him, was a favorite nephew, and apparently poor and embarrassed with debt. When the money was advanced, no note or bond seems to have been required or given, and the deed of trust contains no covenant to pay the debt. More than twenty years elapsed between the execution of the trust deed and the uncle’s death. During all this time no demand was made for payment. The only evidence we have that the deed was, regarded as a subsisting security b3^ anybody, arises out of the fact, that the debtor being desirous of selling some of the slaves for his own benefit, applied to the uncle for his permission to do so. It was readily given until the security was nearly exhausted, it being shown by the proof that sales were made from time to time, and the answer averring that nearly all the slaves were so disposed of, and but three, not exceeding four hundred and fifty dollars in value, remained unsold. When applied to for his permission, the uncle declared that he never claimed or expected any benefit from the deed, and that he had permitted his nephew to sell all the slaves of any value. The fact that he did assent to such sales until the security was nearly exhausted, *proves the truth of his declaration that he did not claim any benefit from the deed, the only security or evidence of debt he held. In addition to this the uncle, on another occasion, is proved to have observed to another nephew, who was desirous of borrowing money from him, that the services of the appellee were equal and more than equal in value to him, to the money advanced.
The fact, that services through a long course of years were rendered, is placed beyond doubt by the verdict of the jury upon the issues directed in the cause. There being no exception spreading the facts upon the record, we must take it that they justified the finding of the jury. They find that the appellee rendered such services from the date of the deed in September 1823 to the death of the uncle in November 1843; and estimate their value at one hundred and fifty dollars per annum through the whole period. Without regarding these services in the light of payments or legal offsets, the fact that they were rendered, that they were regarded by the creditor as valuable, equal according to .his declarations to the money advanced, is a circumstance tending strongly to confirm the conviction produced by all the other circumstances, that the uncle regarded the debt released and forgiven to his debtor. Such services furnished an additional inducement for the uncle so to regard the debt. It is a circumstance not appearing in the cases referred to, and makes this a much stronger case for relief than any of them. Taking into consideration the relationship between the parties; the fact that the appellee was a favorite nephew; the omission of the creditor to assert any claim under the deed during his life time, though he lived twenty *107years after it execution ; the sales from time to time, with his knowledge and consent, for the debtor’s benefit, of nearly all the slaves conveyed; his declaration that he *claimed no benefit from the deed; his admissions that the services of his nephew to him were equal in value to the money advanced; the fact established by the verdict of the jury, that valuable services were rendered, extending over the whole period intervening between the deed and the death of the creditor; I feel satisfied. that looking at this transaction as one exclusively between a creditor and his debtor, it was the intention of the former to treat the debt as forgiven and released to the debtor. I think, therefore, it is a case in which a court of equity might properly stay its hand, and refuse its assistance to the executors of the creditor seeking its aid to enforce this deed for the benefit of their testator’s estate.
I am for affirming the decree.
The other judges concurred in the opinion of Allen, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481483/ | MONCURE, J.
This is an appeal from-a sentence of the Circuit court of Accomack, admitting to probat two testamentary writings purporting to be the will and codicil of Thomas T.. Taylor. They were propounded by his son Edward W. Ta3-lor the appellee, who is the principal devisee and legatee, and named executor; and were contested by his daughter Sarah A. Parramore the appellant, and her husband Thomas H. Parramore, who is since dead; the said son and daughter being the testator’s only children and heirs at law. They were contested on the grounds of, first, incapacity; secondly', undue influence; and thirdly, defective execution.
The case was first tried by a jury; but it was unable to agree, and was discharged. Aftei'wards it was agreed to submit the whole case, upon the law and the evidence, to the court, from whose sentence either party might appeal; and that in the event of an appeal, it should be specially certified to the Court of appeals, that the judge sitting on the trial of the issue heard, and was present at the examination of, all the evidence in the cause. The court decided to admit the will and codicil to probat, with the exception of a part of the codicil considered by the court to have been improperly inserted therein. The examinations of the witnesses and the documentary evidence were certified as the facts proved on the, trial, and were *ordered to be made a part of the record in the cause. The whole case is now before this court for revision of the sentence of the Circuit court thereon.
I will consider the grounds of opposition to the probat in the order above stated. But it seems to be proper in the first place, to enquire, whether the testimony of James S. Corbin is to be regarded as credible. He is by far the most important witness in this cause; and if his testimony is to be believed, it conclusively settles at least two of the three questions arising in the case. He was the scrivener who wrote both the will and the codicil, as well as a prior will; was present at the execution and acknowledgment of all of them, and was a subscribing witness to all. It was of vital consequence to the contestant, therefore, to overthrow, if possible, the testimony of this witness; and an attempt was accordingly made to do so; or to weaken the force of the testimon3r as much as possible. The means mainly used for that purpose was a very long- and close cross examination. No witness was introduced, no question asked, to impeach his general character for veracity or otherwise. The only evidence offered tending in any way to discredit him was that of Mrs. Young, a cousin of Mrs. Parramore, and it would seem, a sister of her husband Thomas H. Parramore. She testified that when the witness Corbin was formerly in attendance at court to prove the will and codicil, he dined with her husband Dr. Young; and in a conversation between them on the subject, Corbin, in answer to a question of the doctor, whether the testator had to reflect in disposing of his property, said 1 ‘No, he recited or read it off as a school boy would a lesson ; he (Corbin) said his brain was such that any impression might be made upon it.” It is remarkable that her husband, who was also examined as a witness, and in answer to whose question the alleged statement of Corbin was *made, did not remember it. The recollection of Mrs. Young as to the other circumstances of the visit and conversation was very indistinct. She said she did not know why the words of Corbin before stated made so strong an impression on her mind, unless it -was confirming her in what she thought before, that her uncle was child-like. She admitted that Mrs. Parramore was a favorite cousin, and that she wished the will overthrown, because she thought, if left to himself, her uncle would never have made such a will. I have no idea that Mrs. Young, in giving her evidence, said an3rthing that she did not beliei’e to be true. But I think she was insensibly influenced by feelings of partiality, and misunderstood, or misconstrued, or did not rightly remember, the words of Corbin. The words, as stated by her, would have been in direct conflict -with his sworn testimony given in court on the same day, and which seems to be substantially the same with his subsequent testimony in the case. Though subjected to the test of *109a close cross examination, his testimonj' is consistent in itself, and materially variant from none of the other testimony in the case. His intelligence appears from his evidence, and his general character for veracity is strongly sustained bjT several witnesses who have long known him, and whose testimony appears to be entitled to much weight. He ought, therefore, to be regarded as a Iruthful witness in the decision of this cause. I will now proceed to .consider the grounds of opposition to the probat. And
First, as to the alleged incapacity of the testator.
The testator appears to have been a man of good common sense, and to have been prudent and careful in the management of his affairs. He was about seventy-five years of age when he died, and for some time previous to his death had been in the habit of drinking freely, and perhaps many times to excess. It is not pretended, however, that he was incapacitated by the ordinary *effects of old age, or drunkenness ; or that he was under the influence of ardent spirit, or any other kind of stimulant, at the time of the execution of the will or the codicil. The only ground of the alleged incapacity relied ou is, that for a few months before his death, and until his death, he was supposed to be affected by a disease of the brain, which produced occasional convulsions and partial paratysis, and that two of these convulsions or Jits actually occurred while he was engaged in dictating the will to the scrivener. The commencement of the disease appears to have been early in June 1851. The will was executed and acknowledged on the 24th of that month, the codicil on the 7th of September thereafter, and the testator died on the 29th of the latter month. Dr. Joynes, a witness apparently of great intelligence, skill and scientific information, attended him during his last illness, and gives a minute account of the disease, and of the condition of the patient during his several visits; which were ou the 17th and 19th of June, on the 29th and 31st of August, and on the 4th of September 1851. The disease with which he believed the patient was affected was “softening of some part of the left side of the brain. ” And the account which he gives of its nature and effects is as follows: “That disease is a softening, that is to sa3r, a diminution of consistence of one or more parts of the brain, generally limited in extent, varying generally from the size of a pea to that of an orange: in a few cases affecting an entire half of the brain, rarely if ever the whole of it. It makes its attack in a variety of forms; sometimes the S3rmptoms are very much those of ordinary apoplexy; the patient falling senseless and motionless, and dying in a few hours; in some instances, after the disease has commenced in this way, the patient, after a time, recovers his senses, but remains palsied in one or more limbs, with frequently *more or less impairment of mind. In another class of cases, the disease begins with symptoms of inflammation of the brain, there being headache, fever, delirium, sometimes partial, convulsive movements, frequently with rigid contraction of one or more limbs, which is generally followed by palsy of the same limbs. In numerous cases, the approach of the disease is more gradual, the patient, perhaps, after suffering for a time with headache and giddiness, experiences some unusual sensation in one or both limbs of one side of the body, such as pain, tingling, Sec. After a time the power of movement and the faculty of sensation in those limbs become impaired; this impairment increases until a total paralysis of those parts is the effect: partial convulsions ma3r or may not precede or alternate with this palsy; sometimes in the beginning of such cases there is a gradual impairment of the mental faculties—though in many instances they remain unaffected until the last moments or hours of life. It must be understood that the foregoing is a very general account of some of the leading forms of the disease, and that the symptoms themselves and their order of succession vary a good deal in different cases. Its usual termination is in death ; though the interval between the first attack and death may vary from a few hours to several years. “If the disease be limited to a small portion of the brain, I believe that it may continue for a considerable time without destroying the testamentary capacity of the individual.” Being asked by the contestant in the cross examination, “Do you refer the disease of the testator to that class attended with inflammation and delirium, or to that in which there is no inflammation attending the softening of the brain?” the doctor answered, “I refer his case to that in which there is no inflammation.” And in answer to another question of the contestant, he said, ‘T believe that softening of the brain *may, without producing disorder of the intellect, produce a weakening of the will; an impairment of steady purpose; and a liability to be influenced by others. I also believe it possible that such disease might produce a perversion of the ordinary affections and dispositions.”
In regard to the condition of the testator at the several visits, the doctor says that at his first visit, which was on the 17th of June, “The principal circumstance which attracted my attention was the occurrence of convulsions affecting the right half of his body at intervals. These convulsions continued for a minute or less at each return, and were followed by partial palsy of the right limbs and of the tongue; and this palsy gradually passed off in the intervals of the convulsions; so that before the return of the convulsion he had perfect use of all the limbs and of the tongue. A minute or two after the cessation of the Jit, he would utter the word ‘basket’ two or three times, somewhat indistinctly, and then begin to talk, at first rather thickly, and afterwards with sufficient distinctness. In fact, after some time, his speech was *110entirely distinct and unaffected. The left side of his body seemed to' be entirely unaffected either by the convulsions or by the temporary palsy which followed them. He complained of some feeling of fullness about the head, but I do not recollect that he complained of pain.”—“I cannot speak with precision as to the intervals between the fits; but I would say, in general terms, that it was about an hour, more or less, while I saw him. As to the regularity of their return and duration, I am unable to speak, because he had only two, or at most, three fits during my first visit. The duration of each fit in which I saw him seemed to be about the same.”—“As to the state of his mind during these convulsions, I know nothing; after a convulsion had passed off, and the faculty of speech returned, his mind seemed clear.”
*In the perfect intervals of the fits he communicated with the doctor as a sane and intelligent patient. The doctor was with him, on this visit, about three hours and a half, and does not think there was more than a quarter of an hour of the time in which his mind was not apparently clear. The next visit was on the night of the 19th of June, just five days before the execution of the will. “At that time (says the doctor), the 'convulsions had ceased; the palsy had disappeared, and the other symptoms, which I have previously mentioned, were less marked; he seemed much better in all respects.”—“I next saw him on,the night of the 29th of August about 10 or 11 o’clock; he was then laboring under a palsy, complete or nearly so, of the parts which had been affected at my first visit, except the tongue, which was only partially paralyzed, leaving his articulation, although somewhat thick and difficult, yet easily understood.”—“The palsy, during the visit of which I speak, was permanent; it was neither absent nor diminished at any time during my visit, as far as I recollect. His mind was clear. I detected no delirium, incoherence, or other manifest disorder of the intellect. There was no convulsion during this visit, which lasted until shortly after sunrise next morning. I was in the room with Mr. Taylor some two or three hours of this time.” The next visit was on the 31st of August; “hisphysical symptoms were much the same as at the visit of the 29th of August; nor do I think the state of his mind was materially different.”— “.He had no convulsions at this time.”— “My next and last visit was on the 4th of September, about 11 or 12 o’clock in the morning; it continued probably two hours. At this time the tongue was much more affected by the palsy than at my two preceding visits. I experienced much difficulty in conversing with him. I was sometimes obliged to repeat a question two or three times before a clear answer could be obtained; and sometimes it *required the assistance of persons standing around the bed to enable me fully to understand what he said. In other respects, I recollect nothing particular to be noted in reference to his physical condition as differing from what it was at my previous visit. As it respects the state of his mind, I am not able to speak with as much confidence as at previous visits, because, owing to the great 'difficulty of speech, I conversed with him but little, and obtained most of the information, which I desired in regard to his condition, since my last visit, from members of the family. So far as I conversed with him, his answers were rational. Another reason why I held but little conversation with him was, that he seemed but little disposed to talk. He appeared low spirited and somewhat fretful and irritable, and disposed to find fault with persons in the room if every attention was not promptly bestowed; he was also quite restless, requiring to be frequently' lifted, up and down.” This visit was three days before the execution of the codicil.
Dr. West was the family physician of the testator at the time of his death ; attended him during his last illness; thinks his mental condition was good about the period of the date of the will; thought he conversed as rationally as ever; saw no reason to doubt his capacity to transact ordinary business, and of disposing of his property in any way'; thought he was capable of transacting his own business, such as paying and receiving debts, settling accounts, and giving and taking receipts up to the last time he visited him, which was about a week before his death; and of course about a fortnight after the date of the codicil.
I have stated thus fully the evidence of the attending physicians, because it is entitled to great and peculiar weight in determining the question now under consideration. On this subject see the opinion of Carr, J., in Burton v. Scott, 3 Rand. 399, 403.
James S. Corbin, the draftsman of the will and codicil, *had always known the testator; was well acquainted with him for the last thirty years of his life; lived within three or four miles of him for the last twenty years; and was intimate with him the larger portion of the time; thinks that at the time of making his will and codicil he was as capable or competent mentally to make a will as at any previous time. The facts stated by this witness fully sustain his opinion of the capacity of the testator. He says, “I wrote two wills for the testator; this in court is the second. At the time I wrote the first will, he had before him his bonds and notes and a copy of his wife’s will. After reading over the copy of his wife’s will attentively, he remarked to me that he had promised his wife to make up his daughter’s portion of land equal to his son’s; but he believed she had already as many acres as he (Edward) had. I replied, ‘yes; but her land, a large portion, was not worth more than four or five dollars an acre, and Edward’s, a portion of it, worth from twenty to thirty dollars an acre.’ Here he used a slight exclamation, what I do not *111recollect. He then proceeded to add up the amount of his bonds and notes; after doing this, he said, with a long sigh, or breath, or something of the kind, ‘X will make a will to please them, but, I expect there will be a squabble over it.’ This was the time of making the first will. Some ten or twelve days after this I was again sent for to go down to his house, and he told me he wished to make some alterations in his will. I asked him if it would not be better to destroy the first will and make a new one. He answered that he thought it would. He then directed me to destroy the old will, which I did, and he took his seat at the table and dictated the will now in court, which I wrote for him. During the time I was writing the will, and just before, he had an attack of paralysis or palsy, or whatever you may call it; he said he was *like some old man, whose name he mentioned, who made a will and gave all his property to himself, and said he thought too much of his property to give it to any person while living. He had, I think, while writing the last will, two short attacks of paralysis, but appeared to me perfectly rational as soon as he could speak, and would commence dictating as soon as he could speak, with as much composure as he did before he was struck.”
The witness was engaged two hours or more in preparing the will, and after finishing it, read it carefully and slowly to the testator, who said, “Well, that will do,” or words to that amount. It was then signed by the testator, and attested by two witnesses; after which, the testator handed it to his son Edward, and told him to put it away. At sometime between the writing of the will and the codicil, Edward W. Taylor told the witness he had shown the will to Mr. Eisher, a lawyer, who thought it was not explicit enough in regard to the bonds and notes, and said that his father wished to make a codicil to explain the nature of those gifts. Witness replied, that he would write it, if the testator requested it. Afterwards, the witness having been sent for by Edward W. Taylor, went to the house of the testator for the purpose of writing the codicil. After he had been there some short time, Edward W. Taylor said, “Eather, Captain Corbin is here, and if jrou wish to make a codicil to your will, he will write it for you.” The testator replied, “let it alone till morning.”—“Some time after this (says the witness), when all or nearly all the other persons who were present had retired to bed, I suppose, and when there were no persons present except the testator and myself, and perhaps Mr. Robert J. Silverlhorn (one of the witnesses to the codicil), the testator said to me, ‘Edward wants me to make him executor alone, and to explain about the property given to him. ’ I replied, *‘ well and he went on to say, ‘I intended to give him all the balance of my property which I had not given away before.’ I said to him, ‘Did you intend to give him all the negroes or not?’ And he said ‘yes, everj'thing except what I had given avray before.’ I may have mentioned to him the bonds and notes, but do not recollect every particular word or words that were passed between us that evening.”
The witness Corbin and Robert J. Silver-thorn staid there that night. Next morning Edward W. Taylor came into the bed room of the witness, and said that his father then wished him to go down and write the codicil to his will. The testator war, lying in bed, and witness wrote the codicil at a window not more than eight or ten feet from the bed. Testator did not redictate to witness what he said the over night, except in one general expression, which was, “Write what I told you last night.” Witness wrote the codicil according to what he understood from testator the night before, except the following clause: “He also states that the loan of a plantation to his daughter Mrs. Sarah A. Parramore was intended as a consideration for her thirds in a plantation called Poplar Grove, now owned and occupied by David Taylor, which interest the said Sarah A. Parramore and Thomas H. Parramore are to convey to David Taylor, and in case of failure, to forfeit an interest in this will to that amount.” In regard to this, the witness says the testator “did not dictate il to me. I think I received it from Mr. Edward W. Taylor, who was standing at his bed-side, and to whom I supposed at that time the testator had communicated it; but when I read the codicil to the testator, he objecied to that clause, and said it ought not to have been put there; that he Major Taylor would send for Mr. and Mrs. Parramore, and have that matter settled. I offered readily to strike out the clause from the codicil, and left the bed-side where he *was. where I had been standing reading, and walked towards the window with the intention of striking it out, but remarked that if they did convey, that clause would be of no force. He Major Taylor replied, let it alone until they come. Consequently, I did not strike it out. ” When witness was writing the codicil he and testaior could distinctly hear each other in a common tone of voice. Does not know where Edward was during the larger portion of the time ; thinks he had been out of the room a part of the time. When he spoke to witness about the clause in relation to Mrs. Parramore, he was much nearer the testator than witness was, and much nearer to testator than to witness. His position then, as witness thinks, was casual or accidental. Witness did not hear testator dictate the clause in question to Edward, and does not suppose that he dictated it at that time, at all events. Edward said to witness, “Eather wants you to put in a clause to compel sister to convey her thirds in Poplar Grove. ” The peculiar phraseology of the codicil In this respect was that of the witness. Has no doubt that Edward was distinctly heard by the testator, who made no objection at the moment, or before the clause was written. The codicil was read over to the testator *112after it was written, witness thinks twice; once before the objection was made, and once afterwards. And it was then executed by the testator, and attested by two of the witnesses. Hr. and Mrs. Parramore were then sent for. They came over very soon after, and witness says, “I think three deeds were shown or handed to them by Mr. Edward Taylor. One of the deeds, I think, was written by Mr. Eisher, (I mean the counsel). I think this deed was intended to be given from Thomas T. Taylor to David C. Taylor. The other two were for the conveyance of Mrs. Parramore’s thirds in the plantation called Poplar Grove. The one, I think, was written by Mr. Edward *W. Taylor, and the other, X think, looked very much like the handwriting of Thomas H. Parramore. They (Mr. Parramore and wife) did not convey, telling Thomas T. Taylor that he was too sick to attend to business. He replied with warmil, looking at Mr. Parramore rather sternly, ‘Whatdo you mean?’ Mr. Parramore replied that he only meant to say that he, Major Taylor, was too sick to attend to business. And I was not called on afterwards to strike out the clause.” The deeds were handed to Mr. and Mrs. Parramore in testator’s presence, and witness thinks, at his request; and testator said to them, “I wish you to fix this business.” The testator had no convulsion when the codicil was written. One side of him, witness says, was completely paralyzed, and it was with much difficulty he could articulate his words. There were many words that he would attempt to articulate, and the persons present were compelled to pronounce them for him. He could articulate many words almost distinctly, and most of the words sufficiently to be understood by any person of common understanding.
The foregoing seem to be substantially the testimony of this important witness, so far at least as it affects the question of capacity. His examination was very much protracted, and he was made to repeat the same thing several times. I have endeavored to give his statement of the material facts, in their proper sequence. I think they fully sustain his opinion of the capacity of the testator, both at the time of making his will and his codicil. That opinion is also sustained by the evidence of the other attesting witnesses, and a great deal of other evidence in the case, which it is unnecessary to detail. No witness, I believe, expresses the opinion that the testator’s mind was at any time unsound, except on the day of his death. No fact is proved from which unsoundness of mind at any prior time can be fairly inferred. Thé disease of which he *died, while it paralyzed one-half of his body and impaired his speech, seems to have had little or no effect upon his mind. I am of opinion, therefore, that he had sufficient capacity to make the will and codicil.
Secondly. As to the alleged undue influence exercised upon him by his son Edward W. Taylor.
The only material evidence on this subject, X believe, is to be found in the testimony of the witness Corbin, before stated; and in the fact that at the time of the testator’s death, and for several years before, Edward W. Taylor and his wife and child or children lived with him, and seem to have constituted his family. Mr. Corbin was a connection and near neighbor of the testator, and very intimate with him; and doubtless had as good an opportunity as any other person of knowing whether such undue influence existed or not. He says, “I know of nothing of the kind, of m3' own personal knowledge. I have never seen anything of the kind, and have no reason to believe there was, from any circumstance or occurrence coming under my own immediate knowledge or observation.” Being asked, ‘ ‘Was there not a very long, strong and uninterrupted relation of affection between the testator and his only son Edward W. Taylor?” he answered, “I verily believe there was.” And being further asked, “Did not that.son fear and reverence that father, and did he not always obey him to the day of his death?” he answered, “X believe he did.” Mrs. Young, a sister, it appears, of Mr. Parramore, and niece of the testator, had also no doubt a good opportunity of knowing whether such influence existed or not. When asked, in cross examination, “Do you know of any fact of undue or improper influence, either by fraud or force, which caused Thomas T. Taylor to make this will,” she answered, “No, sir, I do not.” In regard to the will, there is nothing in the record from which it can be inferred that he had any *agency in causing the testator to make it or to adopt any of its provisions. The testator seemed to be anxious to make his will, and twice requested that Mr. Cor-bin should be sent for. It does not appear that Edward W. Taylor knew what would be the contents of the will until after it was written, but rather the contraoq as he expressed something like surprise at some of its provisions. By the will the testator lends the land to his son for life, and gives it to his heirs at his death. He remarked to the draftsman of the will that Edward was not.to be trusted with a large estate; that he would lend it to him, and then give it to his children. Edward was not present when the will was written, he and the witness Bloxom having been sent out of the room by the testator. It does not appear that there was a great deal of difference between the two wills which Corbin prepared ; nor which, upon the whole, was more favorable to Edward, though it seems probable the first was.
In regard to the course of Edward in showing the will to counsel, Corbin, when first requested by the testator to write his will had said, “You have a large estate; why do you not send for a law3'er, and have 3'our will written in proper form?” To which the testator replied, “You can write one now, and if I get better, I can do so.” There can be no doubt of the intention of *113the testator to include his negroes and the balance of his bonds and notes, after paying hik debts and legacies, in the residue of his property given by his will to Edward. Corbin says, that after he had written all but the last clause of the will, the testator remarked, ‘! Give a 11 the residue to Edward. ’ ’ Corbin enquired, “Do you intend to give 3’our son Edward all your negroes?” He replied, “Yes, they are worth nothing; give them to Edward.” Corbin then wrote the last clause; and read the will slowly to the testator, who expressed his satisfaction with, and executed *it. The wotjds of the clause would no doubt be construed according to the intention of the testator. The residue is described as ‘ ‘consisting of negroes, household furniture, and stock of horses, cattle, sheep, &c. ” The balance of the bonds <md notes was probably not particularly mentioned, because it was supposed the amount would be small, after paying debts and legacies. The will was placed by the testator in the custody of Edward; and it is not improbable that it was shown by the latter to a lawyer at the former’s request, in pursuance of the suggestion of Corbin and the purpose indicated to him by the testator, as before stated. But even if shown to a lawyer by Edward of his own accord, I see nothing in the fact from which fraud can be inferred, or which can be of much if any importance as a link in the chain of circumstances relied on to prove the fraud. The contents of the will were not intended by the testator to be concealed from Edward. It was handed to him open or unsealed. He knew his father’s intention, but did not know that it was so clearly expressed in the will as to be free from doubt. He may, therefore, of his own accord, have shown it to- a lawyer; and when advised that the residuary clause was not sufficiently explicit, he naturally' desired that it should be explained by a codicil, so that there might be no room for future controversy. The codicil, then, gave him nothing that was not given, or intended to be given, him by the will. Its main object was to remove all room for doubt in regard to the meaning of the will. It nominates Edward sole executor, the will having made him coexecutor with W. Parramore. That matter was first mentioned to Corbin by the testator, who said, “Edward wants me to make him executor alone, and to explain about the property given to him.” Having given Edward the largest portion of his estate, made him residuary legatee, and directed him to pay' his *debts, it seemed to be fit that Edward should be sole executor, and he naturally desired to be so. The circumstance in the case which most materially affects the propriety of the conduct of Edward W. Taylor in regard to the will and codicil, is his connection with the insertion in the codicil of the clause in relation to Poplar Grove. It seems there had been an agreement between the testator and Parramore and wife, that the latter would release to the former Mrs. Parramore’s dower interest in Poplar Grove, containing three hundred acres, in consideration that the former would convey to the latter another trad of three hundred acres. Accordingly, the testa lor had conveyed the former tract to David C. Taylor, and the latter to Parramore and wife, whom he desired to release her interest in the former to him ; and a deed was prepared to be executed by them, which, with the other two conveyances, were the deeds before mentioned as having been handed to them on the day of the execution of the codicil. The testator and his son were both interested and anxious to have the deed executed by Parramore and wife; who, for some cause not disclosed by the record, were unwilling, or had fathed, to execute the deed. It is probable they had had some conversation on the subject of putting something in the codicil to compel Parramore and wife to make the deed. The testator must have heard his son, standing by his bed-side, say to Corbin who was drawing the codicil, “Eather wants you to put in a clause to compel sister to convey her thirds in Poplar Grove,” and by his sthence he assented to what was said. It is true that when the codicil was read to him he objected to that clause, and said it ought not to have been put there, and that he would send for Mr. and Mrs. Parramore, and have that matter settled. The ground of his objection does not appear. It may have been the phraseology of the clause, which was that of the draftsman. He determined, however, after the effect of it had been explained by Cor-bin, to let it remain as part of his codicil.
The tract of land loaned to Mrs. Parramore for life by the will, seems to he the same land conveyed to her and her husband for life in consideration of her interest in Poplar Grove. In both the will and deed the land is described as occupied by Thomas "Only. When the testator made his will he told Corbin that he loaned this land to Mrs. Parramore, in consideration of her thirds in Poplar Grove. When Corbin wrole the clause in the codicil, he wrote nothing more than what the testator had previously informed him was his actual intention, and what he had, under all the circumstances, every reason to believe the testator then wished to be embodied in his codicil. The testator would have preferred having the matter in regard to the release settled in his life time; but failing in that, seems to have been willing to settle it by his will. I cannot, therefore, see in this circumstance, taken by itself, or in connection with all the other circumstances, sufficient ground for condemning the will and codicil, or either, as having been obtained by' fraud or undue influence. The testator certainly made by his will a very unequal distribution of his property between his two children, and the record does not disclose any' better reason for his haying done so than that it was his will; which is an all-sufficient reason with courts of justice, however they may admire the rule of equality. The violation of that rule, without *114apparent good cause, may put them on the alert, and cause them to scrutinize the testamentary act with greater care. But being satisfied that it is the act of a competent testator, free from the undue influence of another, they are bound to give it full effect. Judge Carr has made some appropriate observations on this subject in Boyd v. Cook’s ex’or, &c., 3 Leigh, 32, 50, 51, *which I will not repeat. It is not uncommon for fathers to prefer their sons to their daughters; especially when they come to make their wills. The testator manifested such a preference otherwise than in making his will. He seems to have supposed too, that in giving property to his daughter he was giving it to her husband. Another circumstance which may have operated upon him was that he had been the guardian of her husband, who had sued him for a settlement of his guardianship account; though this circumstance does not appear to have produced any ill feeling between them; or if it did, the wound appears to have been healed before his death. But it is needless further to en-quire about his motive for the preference. The nature of the disease under which the testator labored at the time of the testamentary act is another circumstance which requires of the court of probat the greatest possible care in determining whether or not the act was the offspring of a sound mind, free from undue influence of others. I have endeavored to give due weight to all these circumstances in coming to my conclusions on the subject; and I am of opinion, not only that the testator’s mind was sound when the act was done, as I have already said, but that it does not appear that any undue influence was exercised upon him by his son to induce him to execute the act, or any part of it. ‘ ‘The influence to vitiate an act (says a writer of high reputation), must amount to force and coercion destroy-* ing free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act; further there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; -that it was done merely for the sake of peace; so that the motive was tantamount to force and fear. ” 1 Williams on Ex’ors, p. 39; 1 Jarm. on Wills, p. 29, note 1.
*The opinion I have expressed on the two questions I have been considering is greatly strengthened by the fact that it accords with that of the Circuit court; except so far as relates to a portion of the codicil to which I will again advert. The weight to which the opinion of the court which saw and heard the witnesses is entitled in such cases, is shown by the cases of Dudleys v. Dudleys, 3 Leigh 436; Jesse v. Parker, 6 Gratt. 57; Nock v. Nock’s ex’ors, 10 Gratt. 106, 111.
Thirdly. As to the ground of defective execution.
And 1st, as to the will. Corbin was sent for in the night, and requested by the testator to write his will. It was probably written between eleven or twelve, and one or two o’clock that night; the draftsman being engaged about two hours in writing-it. The table and writing materials were brought by the direction of the testator, who then requested his son and Bloxom (one of the attesting witnesses) to step out of the room a little while. They accordingly went out, and the door was shut. The will was then written by Corbin, read to and approved bj' the testator, who signed it in Corbin’s presence, and requested him to witness it; which he accordingly did, by subscribing it in the presence of the testator. Corbin says, “After witnessing the will myself, he (the testator) said, ‘call in Mr. Bloxom and get him to witness it too,’ or words to this amount. I left the will on the table, and opened the door of the room with the intention of going after Mr. Bloxom myself; but I think I saw some of the family in the passage, and requested them to call Mr. Bloxom in. Immediately afterwards Mr. Bloxom came into the room, and the testator said to Mr. Bloxom, as I now think, either ‘here, or there is my will,’ I want you to witness it; and he, Mr. Bloxlom, did witness it in my presence. Mr. Bloxom soon after this, either ordered, or requested Mr. Taylor to order his horse and carriage, and he and his wife left for home. Major Taylor then handed the will to his son Edward W. *Taylor, and directed him to put it away. I had before this folded up the will and handed it to the testator. Mr. Edward Taylor took the will, and as I now think, put it in the drawer of the bureau or chest of drawers in the room in which the testator was then lying. Next day morning Mr. Rittleton Walker came over to Thomas T. Taylor’s house, and I think that he and Edward Taylor and myself went from the porch to the room of the testator together. Mr. Edward Taylor got out the will; Major Taylor acknowledged it, and requested Mr: Walker to witness it. Mr. Walker turned to me and said he could not write his name, and requested me to write it for him. This I did, and he made his mark. This occurred about 7 o’clock in the morning. The testimonj'- of Bloxom and Walker substantially agrees with that of Corbin in regard to their respective attestations. The will was subscribed by each of them in the presence of the testator. Corbin was present when the will was acknowledged to, and subscribed by Bloxom and Walker respectively, but neither of them was present when it was subscribed by Corbin, who did not subscribe it after either of the subsequent acknowledgments. Thus the will was twice acknowledged before two witnesses present at the same time, and these witnesses subscribed it in the presence of the testator. But one of the two witnesses subscribed prior in time to either of the two acknowledgments, and did not actuallj' subscribe it in the presence of the other. On these two grounds it is contended that *115{he execution is defective, and that under the ] new statute of wills, Code, p. 516, § 4, which governs this case, the will must be subscribed by at least two competent witnesses after it has been signed or subscribed in their joint presence ; and must be subscribed by them not only in the presence of the testator but in the presence of each other. ¡ The words of the section are, “No will shall be *valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the same is intended as a signature; and moreover, unless it be wholly written by the testator, the signature shall be made or the will acknowledged by him in ihe presence of at least two competent witnesses present at the same time; and such witnesses shall subscribe the will in the presence of ihe testator, but no form of attestation shall be necessary.”
It is contended by the counsel for the appellant that this part of the statute is almost a literal transcript of the statute, 1 Vict. ch. 1, § 9, which, before the enactment of our new Code, had been construed by the English courts according to the view maintained by him on each of the two grounds above mentioned; and that our statute ought to receive the same construction.
It is certainly true, as a general rule, that when an English statute, especially one of long standing, is adopted in this stale, the settled judicial construction which it had received in that country at the time of its adoption in this, is also adopted along with it.
But that rule hardly applies to the revision of 1849, in which our whole code of laws, civil and criminal, was revised and re-enacted. The rule which would seem to be more applicable to that revision is that the old law was not intended to be altered, unless such intention plainly appears in the new Code. The legislative mind was fixed on the then existing law as the text, to be altered only as occasion might seem to require. Great alteration was made in words and phraseology, while comparatively little was made in substance. The codes and statutes of other states were consulted and made contributory to some extent; but not with any intention of losing sight of onr own, and adopting altogether the system of another stale or *country on any branch of the law. Spencer, J., in delivering the opinion of the Court of errors of New York in Taylor v. Delancey, 2 Caine’s Cases 143, thus speaks of the rule which is applicable to such a case as this: “Where the law antecedently to the revision was settled, either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law, unless such phraseology evidently purports an intention in the legislature to work a change. A contrary construction might be productive of the most dangerous consequences.” The same principle has been recognized in other cases. Yates’ Case, 4 John. R. 317, 359; Matter of Brown, 21 Wend. R. 316; Theriat v. Hart, 2 Hill’s N. Y. R. 380.
The 4th section of our present law óf wills seems to differ, in substance, only in one or two respects from our former law, according to its settled construction. The first and perhaps most important difference is that the present law requires all wills to be in writing, with an exception made by the 6th section. The next, and perhaps only other, difference arises from the introduction of the words “present at the same time’ ’ after the word “witnesses” in the new law. It had been well settled under the old law, that a will might be acknowledged before the witnesses at different times. In Dudleys v. Dudleys, 3 Leigh 436, the will was attested by one witness in 1818, and by the other in 1825. The evil arising from this construction was, that the testator might be capable of making a will at the time of one of Ihe attestations, and incapable at the time of the other, and only one attesting witness could prove the important fact of mental capacity at either time. Wills are frequently, if not generally, executed by persons in extremis, whose powers of mind as well as of body are gradually sinking. They are often capable one day, and incapable *the next, of making a will. The words in question were introduced to remedy this obvious evil. There seems lo have been considerable opposition in the legislature even to ibis change. The words 1 ‘present at the same time,” in the report of the re visors, were stricken out by a committee of the whole house of delegates; but were restored by the house itself. The provision in the new law that the will should be signed “in such manner as to make it manifest that the name is intended for a signature,” was no change, of the old law; but merely ail express adoption of the judicial construction it had received in Waller v. Waller, 1 Gratt. 454. The words in the new law authorizing the will to be acknowledged by the testator in the presence of the witnesses, were .not in the old law, but they only embodied the long-settled construction of that law. The words “but no form of attestation shall be necessary,” in the new law, effected no change ; no form of attestation being necessary under the old law. Pollock & wife v. Glassell, 2 Gratt. 439.
On the other hand, there are some material differences between the 4th section of our new law and the 9th section of 1 Vict. ch. 26. 1st. The latter requires the will to be “signed at the foot or end thereof;” the former requires it to be signed ‘ ‘in such manner as to make it manifest that the name is intended as a signature.” 2dly. The latter requires that “such signature shall be made or acknowledged by the testator,” in the presence of the witnesses; the former requires that “the signature shall be made or the will acknowledged by him,” in the presence of the witnesses. 3dly. The latter does not even require the witnesses to be “credible,” as the statute *116of Charles did, but on the contrary, the 14th section enacts “that if any person, who shall attest the execution of a will, shall, at the time of the execution thereof, or at any time afterwards, be incompetent to be admitted a witness to *prove the execution thereof, such will shall not on that account be invalid.” The former requires the witnesses to be “competent;” thus working no change in the old law, but merely substituting in the new law a more appropriate word, “competent,” for the word “credible,” in the old law, which had been judicially construed to mean “competent.” 4thly. The words “shall attest” in the latter (which were perhaps merely superfluous) are not in the former. 5thly. The former does not require a will, “wholly written by the testator,” to be authenticated by attesting and subscribing witnesses; the latter makes no such exception.
Thus it will be seen that there is a closer correspondence, in substance at least, between our old and new law, than between the latter and the statute of Victoria. And I can see no good reason for giving to the-decisions of the English courts upon their statute any greater weight in the construction of ours, than they are intrinsically entitled to. If thej' appear to be founded on good reasons, and are not in conflict with our own decisions, they ought to be followed by us; otherwise not.
I will now proceed to consider the two grounds on - which it is contended that the execution of the will and codicil in this case was defective: And
1. That the subscription of each of the two attesting witnesses must be made after the signature or acknowledgment by the testator in the simultaneous presence of both; whereas in this case the subscription of one of them was made before.
In support of this ground the counsel for the appellant relied on three decisions of Sir Herbert Jenner Fust, viz: Allen’s Case, 7 Eng. Ecc. R. 131; Simmond’s Case, Id. 374; and Moore v. King, Id. 429. The first two were ex parte motions. In each of the three cases the will was subscribed by the two witnesses on different days; but the first witness was present *at the acknowledgment before, and subscription by, the second; though he did not then resubscribe the will. In the last case there was this additional feature, that the first witness pointed out her signature to the second when the latter was about to subscribe the will. In each of the cases the decision was against the will. Whether that would have been the decision if, as in this case, the transaction had occurred at one and the same time, but one of the witnesses had signed an instant before the acknowledgment by the testator in the simultaneous presence of both, is perhaps not certain: . though I think it may fairly be inferred that it would, from what was said by the judge in those cases, and in Olding’s Case, Id. 341, and Cooper v. Bocket, Id. 537; in which two latter cases he decided that a will must be signed by a testator before it is subscribed by witnesses, whether the two acts occur at the same or different times. The opinion of this learned judge seems therefore to be in favor of the appellant on the question under consideration.
I must say, however, that I do not consider that opinion reasonable, and if it were unopposed by any countervailing decision, I would not be willing to follow it. But there are three decisions of this court which I think are in conflict with that opinion, and against the appellant on this question. It is true they were decisions under our old law; but I do not think there is any material difference between the old and new law in this respect. These decisions are Pollock & wife v. Glassell, 2 Gratt. 439; Rosser v. Franklin, 6 Id. 1; and Sturdivant v. Birchett, 10 Id. 67.
In Pollock & wife v. Glassell, the name, of the first witness was signed diverso intuitu, and whether in the presence of the testatrix or not, does not appear; though it was certainly not signed at her request, and was signed before the name of the testatrix was signed. The authority of that case cannot be weakened *by saying that the question was not discussed by the counsel nor considered by the court. It cannot be supposed that the able counsel who argued, and learned judges who decided that case, would have overlooked so important a question, or passed it by without notice, if they had entertained a doubt about it. Nor can the authority of the case be weakened by saying that the codicil was executed under a power of appointment ; for the whole settlement creating the power superadded a requisition not made by the statute of wills; it did not dispense with any of the statutory requisitions ; and it was not pretended that a compliance with any of them was unnecessary. The question considered by the court was, whether the codicil was well executed according to the statute of wills, and had also the superadded requisition? The court, consisting of four judges, decided the question unanimously in the affirmative.
In Rosser v. Franklin, the testatrix made her mark after the subscription of the witnesses. It was argued by the learned counsel against the will, that the witnesses must attest a perfect, not an imperfect instrument; a will signed by the party, and not a paper without a sig-nature. And he cited Olding’s Case, 7 Eng. Ecc. R. 341, and Byrd’s Case, Id. 391, in which the precise question arose, and was adjudicated in that way, although both the attestation and signing occurred at the same interview, and the one immediately preceded the other. It was held by the court, however, in disregard of these decisions of the Ecclesiastical court, that “the fact whether in the order of time the testatrix made her mark before or after the subscription of the witnesses, is, under the circumstances, in nowise material, in so much as the whole transaction must be regarded as one continuous, uninterrupted act, conducted and *117completed civil hill a few minutes, while all concerned in it continued present, *and during the unbroken, supervising, attesting attention of the subscribing witnesses.”
In Sturdivant v. Birchett, the will was subscribed by all the witnesses out of the presence of the testator; but they immediately returned to his presence with the will. Their subscription was invalid until their return; and was made effectual by what then occurred, though they did not resubscribe the will.
These decisions of our own court are strongly sustained by cases decided elsewhere. The case of Swift v. Wiley, 1 B. Monr. R. 114, goes farther than any of our own cases in favor of the validity of a subscription by witnesses before the signing or acknowledgment by the testator. In that case two of the witnesses subscribed the will some hours before it was signed by the testator; but having remained with him until it was signed by him in the presence of themselves and another, and having then again acknowledged their respective signatures as subscribing witnesses, their subscription was held to be valid. To resubscribe their names, said the court, “would have been a superfluous and puerthe act of mechanical repetition, not necessary for indentification ; because they had once subscribed the same paper in the presence and at the request of the testator, and which fact was recognized by him as well as by themselves, after his own name had been subscribed, and when the document thus recognized and identified, was finally and conclusively published as his will; nor can we perceive any other end of either utility or security that could have been promoted by again subscribing names already sufiicientlj' subscribed.” For the other cases on the subject, I refer to the opinion of Judge Tee in Sturdivant v. Birchett, in which they are fully collected arid commented on.
The case under consideration is stronger in favor of the will than either of the four last cited. In this *case these important circumstances concur, some one or more of which did not exist in either of those cases, viz: both of the witnesses subscribed their names as such to the will in the presence and at the request of the testator, after it had been perfected by his signature, and he then acknowledged it in their joint presence : The whole transaction having been begun, continued and ended at one time and without interruption. And I think there existed in neither of those cases a single essential circumstance which did not exist in this. For though there was no verbal recognition by Corbin of his signature after the acknowledgment by the testator in the joint presence of the two witnesses, there was an actual recognition of it by him, at least as effectual as words could make it.
I conclude, therefore, that both reason and authority are against the appellant on the first ground on which he rests his objeclion to the execution of the will; and I will now consider the other ground, which is
2dly. That the witnesses must subscribe the will in the jiresence of each other.
The old law certainly did not require the witnesses to subscribe in the presence of each other. As the acknowledgment might be made before them separately and at different times, it followed necessarily that they might subscribe separately and at different times. Nor does the new law expressly require them to subscribe in the presence of each other. But it is contended that this is implied by certain phraseology used in the new law, and not to be found in the old. That phraseology is, that the acknowledgment by the testator must be “in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator. ’ ’ The statute of Victoria uses nearly the same words ; the only difference being that the word “competent” in our law is no! In that statute *and the words “shall attest and,” which in that statute precede the words “shall subscribe,” are omitted in our law; but that difference is merely verbal in regard to the question tinder consideration. It is admitted that the two laws in this respect are substantially identical ; and it would seem they ought to receive the same construction. There has yet been no judicial construction of our law. But a case has been recently decided by the judicial committee of the queen’s privy council in England which was much relied on by the counsel for the appellant, and is supposed to have conclusively settled that the statute of Victoria requires the witnesses to subscribe in the presence of each other. That case is Casement v. Fulton, decided in 1845, and reported in 5 Moore’s Privy Council Cases, p. 130. It was an appeal from the Supreme court of judicature at Calcutta; and arose on the 7th section of the India will act, which is a copy of the 9th section of the statute, 1 Vict. ch. 26, except that, like our law, it omits the words “shall attest.”
The case was this: A testator signed his will in the presence of a witness who subscribed it in his presence; about two hours afterwards, upon the arrival of another witness, the testator in the joint presence of the former witness and the other subscribing witness, acknowledged his signature at the foot of the will. The second witness then subscribed the will, and the first witness, in his and the testator’s presence, acknowledged his subscription, but did not resubscribe. It was held by the judicial committee, (affirming the sentence of the Supreme court at Calcutta,) that the requirements of the act had not been sufficiently complied with; it being necessary that both witnesses should be jointly present at the same act of the testator, and jointly subscribe it in his presence. Tord Brougham in delivering the opinion of the committee, said, “We think the words admit of no other construction, *for it *118is, ‘arid such witnesses shall subscribe.’ Now this forms one sentence with the preceding words, ‘present at the same time,’ and ‘such’ must plainly be read, ‘such present witnesses, or such witnesses so being present at the same time.’ ‘Such’ describes not merely the names of the witnesses, but all that is previously enacted respecting them. One quality of these witnesses is, their being present at the same time. Therefore, we cannot limit the meaning of the large word of reference, ‘such,’ to the mere names or persons of the witnesses; it must embrace what had just been said of thgir presence; it must mean the witnesses, &c. present at the same time.”
It will be observed that in Casement v. Fulton the will was signed by the testator and subscribed by one of the witnesses at one time, and the acknowledgment by the testator, in the joint presence of both witnesses, was at a different and subsequent time. And it had been decided by the English Ecclesiastical court in the cases before cited, that such an attestation was not sufficient; even though the first witness acknowledged his signature at the time of the acknowledgment by the testator in the joint presence of both witnesses. If these cases were regarded as authority, there seems to have been no necessity for deciding, if it was decided, in Casement v. Fulton, that the witnesses must subscribe in the presence of each other; for the attestation was otherwise insufficient. It will also be observed that there is a very important difference between that case and the one under consideration, in this, that in the latter the whole transaction occurred at one and the same time ; there being no breach of continuity, and little if any greater interval between the different parts of the transaction than the necessary order of sequence required. The decision of the comihittee might possibly have been different, if the facts before it had been like . the facts of this case, *with the single exception that both of the witnesses had signed after the testator: a fact decided to be material by the English courts, but immaterial by ours. But whatever would have been its decision in such a case, and whatever may have been its actual decision in the case before it, there can be no doubt, from the language used by Bord Brougham, that in the opinion of the committee the statute requires the witnesses to subscribe their names in the presence of each other. The opinion is certainly entitled to great respect: And if it had been before the legislature when the present law of wills was enacted, it might have had a very important influence in the construction of our law.
But that opinion was not before the legislature ; and it is almost certain that not a member of that body had then any knowledge'or information of any such opinion, or that any such case had been decided. The case had not, I believe, been reported in any form' in this country'. There has yet, I believe, been no American edition of Moore’s Privy Council Cases; and the Bondon edition of that work has, during the present year, for the first time, been added to our state library. The 5th volume of the work, which contains that case, embraces the decisions of the committee during the years 1845-47, and could not have been long published even in England when the new law of wills was enacted 1 in this state. The last volume of Reports of English Probat Cases, which had then been published in this country, was 7 Eng. Ecc. Rep. containing 2 and 3 Curteiss. Whthe that volume, as we have seen, contains several cases bearing upon the first ground of objection to the will in this case, it contains none which can have any material effect upon the second ground of objection now under consideration. Nor is there any such case in any prior volume of English Probat Cases. Indeed I believe 1 Curteiss commences *about the time that the statute of Victoria went into operation. On the contrary, it is manifest from the decisions of Sir Herbert Jenner Fust, in some of the cases before cited, that in his opinion the statute does not require the witnesses to subscribe in the presence of each other; though he is of opinion that it requires both of them to subscribe the will immediately after it is signed by the testator, or his signature acknowledged in their joint presence. In Cooper v. Bockett, 7 Eng. Ecc. R. 542, he expressly says, “By' the 9th section of the act of parliament, it is absolutely necessary that the deceased shall have signed the will, or have acknowledged his signature, in the presence of two witnesses present at the same time, and that they should have attested it in the presence of the testator, though not of each other.” Whthe Casement v. Fulton was unknown to the legislature when the present law of wills was enacted, Cooper v. Bockett was reported in a volume which had some years previously been published in this country, and was then in the state library. If the construction given in either case can be considered as having been tacitly' adopted by the legislature in the enactment of our law, it is that given in the latter, rather than that given in the former case. The opinion given in the former is, therefore, entitled to no other consideration in this case than that which is always due to the opinion of learned jurists, and that which may be due to the reasons on which it is founded.
Giving to the opinion expressed in Casement v. Fulton all the consideration to which it is entitled, I must say that I cannot see the force of the reasons on which it is founded. It seems, almost entirely', to rest on the import of what is called “the large word of reference, such;” which, it is supposed, “describes not merely' the names of the witnesses, but all that is previously enacted respecting them.” It “must plainly be read; *(says Bord Brougham,) such present witnesses, or such witnesses so being present at the same time.” Admitting this to be the true import of the word “such,” I think it by no *119means follows that, according to the grammatical construction of the sentence, the witnesses are required to subscribe in the presence of each other. “Such witnesses so being present at the same time” when ihe signature is made or acknowledged, surely need not of necessity subscribe in the presence of each other.
But whatever may be said of that case, 1 think the legislature of Virginia, in the enactment of our new law, did not intend io require the witnesses to subscribe the will in the presence of each other. It was .i very important change in the law to require them to be together when the will is signed or acknowledged. Good reasons ex-j sled for that change; and yet, as I have before remarked, it was strongly opposed in ihe legislature. Surely no greater change was intended than the words express. If the supposed change had been intended, it would have been made plainly, and not 631 mere implication, or the use of a word of equivocal import. The obvious mode of making it would have been, by the insertion of the words “and each other:” so as to make the sentence read '! and such witnesses shall subscribe the will in the presence of the testator and each other. ’ ’ The express requisition that they shall subscribe “in the presence of the testator,” seems to exclude any implication that they shall subscribe “in the presence of each other.” There would have been as much reason for expression in the one case as the other, if both- had been intended. The word “such” would have had as much efficacy in requiring the act to be done by the witnesses in the presence of the testator, as in requiring it to be done in the presence of each other. The law of wills should be plainly written, and no room should be left *for doubt or implication. It is a law of almost universal applica1 Hon, and must often be acted on by unlearned persons, in a situation which precludes the possibility of obtaining professional aid. The most important family settlements, which are often xiostponed to the last day or hour of life, may depend upon an observance of its requisitions. How important then that it should impose no needless requisition; none that is not productive of some substantial good; and that it should plainly express what it means. A requisition that the witnesses shall subscribe in the presence of each other, would be a fruitful source of litigation, would defeat many fair wills, and would, I think be productive of no corresponding good. It would very much clog the exercise of the testamentary power, without throwing around it, so far as I can perceive, a single additional safeguard. It would render it necessary to enquire in every case, whether the witnesses, when they subscribed the will, were not only in the presence of the testator or in the range of his vision, but also in the presence of each other or in the range of each other’s vision. It would be questionable whether range of the vision would be sufficient in regard to the witnesses inter se, and whether actual sight would not be necessary. Hor though a testator may dispense with actual sight of the witnesses if they are in the range of his vision, it being his own matter, it would for that very reason, be doubtful whether the witnesses coukl dispense with actual sight of each other. Nothing is more common or natural than for a scrivener to subscribe a will as a witness before his fellow witness is called in to join him in the attestation; or, for a witness called on to aüest a will, after doing so, to turn his back and walk off without noticing what is done by others afterwards. No case could present a more striking illustration of the application of these remarks and the ill effects of *such a requisition than the case under consideration. The two attesting witnesses, Corbin and Bloxom, being in the room with the testator, the latter requests Bloxom to step out awhile. The testator and Corbin being then alone in the room, the door is closed, and the will is written by Corbin, signed by the testator, and subscribed by Corbin in the presence of the testator, and at his request. The lestator then requests Corbin to call in the other v'itness, that he rna,y subscribe it also. Bloxom is accordingly called in from another room; comes immediately in, and the three being then alone in the testator’s room, and the will lying on the table with the names of the testator and Corbin thereto just subscribed; the testator acknowledges the will, and at his request Bloxom subscribes it in the presence of the testa tor and Corbin, and the will is then handed by Cor-bin to the testator. If this will were defeated because the witnesses were not in the presence of each other when Corbin subscribed it, then indeed might it be said that substance would be sacrificed to form, and the end of the law to the means used for attaining it. But I think form as well as substance, the means as well as the end, sustain the validity of this will, and that its excution is not defective on the second, aminore than 011 the first ground relied on bj* the appellant.
2dly. As to the codicil.
The facts in regard to the execution of the codicil are very much like those in reg-ard to the execution of the will. Many of them have been already stated, and need not be repeated. Corbin and Robert J. Silver-thorn, two of the subscribing witnesses, spent a night together at the testator’s. Early next morning the codicil was written b3r Corbin, who signed the testator’s name thereto in his presence, and at his request; the testator made his mark in the presence of Corbin, who, in his presence and at his request, subscribed it *as a witness. R. J. Silverthorn, who had not come down stairs, was then called in by Corbin to witness the codicil also, and accordingly came in ; when Corbin took up the will and carried it to the testator, who according to Corbin’s testimony, said, “I acknowledge this, and want you to witness it;” or, according to R. J. *120Silverthorn’s testimony, Corbin asked the testator if he acknowledged it, and the testator said he did. R. J. Silverthorn then subscribed it in the presence of the testator and of Corbin.
The grounds of objection to the execution of the codicil are the same as those taken to the executon of the will; and the facts in regard to each being substantially the same, I am of opinion that the codicil was well executed, for reasons which have been already given. I think it makes no difference whether the instrument was called a codicil or not by the testator at the time of its acknowledgment, and that the principle, declared in the cases of The British Museum v. White and Rosser v. Franklin, is at least as applicable to the new law as to the old. It is necessary that the testator should understand the contents and nature of the instrument when he executes or acknowledges it; but not that he should call it by any particular name, or even by any name at all. The old law, by judicial construction, accepted acknowledgment, in lieu of signature, by the testator in presence of the witnesses, and did not require the instrument to be named in the acknowledgment. The new law adopts that construction, by expressly authorizing such acknowledgment, which may be made in any form in which it might have been made under the old law. No formula of acknowledgment is prescribed by law.
I am therefor of opinion that there is no error in the sentence of the Circuit court to the prejudice of the appellant. This opinion, however, is intended to *be referred and confined to the peculiar facts of this case; and especially the important fact that the whole transaction in regard to the execution and attestation of the will occurred at one and the same interview, and without any breach of continuity. The same observad ons apply to the codicil. I do not mean to say that either would have been well executed and attested if there had been a substantial interval of time between the acknowledgment by the testator in the joint presence of the two witnesses, and the subscription by the witnesses or either of them. As was said by my brother Fee in Sturdivant v. Birchett, “It will be quite time enough to decide that question when a case requiring it to be decided shall come before us for adjudication.”
My opinion is intended to have no reference to the attestation of the will by Walker, or the codicil by William T. Silverthorn; but to be confined to the attestation bj' the other two witnesses to each.
But I think there is an error in the sentence to the prejudice of the appellee, in refusing to admit to probat that clause of the codicil which relates to Poplar Grove. Though the testator at first objected to that clause, and said it ought not to have been put there, and that he would send for Mr. and Mrs. Parramore and have that matter settled; yet it does not appear that any fraud was used in having the clause inserted; and when the effect of it was explained to him by Corbin, the testator refused to let it be stricken out; and executed and acknowledged the codicil containing the clause as part thereof. The execution was not conditional but absolute; and the codicil was not afterwards revoked in whole or in part.
The result is that I am for affirming so much of the sentence as admits the will and part of the codicil to probat; for reversing so much as refuses to admit the *residue of the codicil to probat; and for admitting such residue to probat also; with costs to the appellee as the party substantially prevailing.
LEE and SAMUELS, Js., concurred in the opinion of Moncure, J.
ALLEN and DANIEL, Js., dissented.
Sentence reversed in favor of the appellee. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481484/ | SAMUELS, J.
Two questions are presented by the record before us:
1st. Whether the protest made by the notary is sufficient in itself, or when aided by the parol proof offered, to charge the plaintiff in error as endorser.
2d. Whether the notice of dishonor was duly forwarded to the endorser, so as to charge him.
A_s to the first: The protest sets forth the facts that the notary took the bill on which the suit is brought, to the counting-house of Ciagett the drawee, and speaking to a clerk, exhibited the bill and demanded acceptance thereof; whereunto he answered that the same could not be accepted; and that thereupon the notary protested the bill for nonacceptance. In the *argument here, the plaintiff’s counsel made but one objection to the sufficiency of the protest ; that is, that it does not state that the clerk of the drawee had authority to refuse acceptance. This objection should not prevail, if the protest had no extrinsic support: The most formal words could not more fully express the notary’s opinion of the clerk’s authority in the premises, than is set forth in the protest. The notary at the counting-house of the drawee, exhibited the bill to a dark, demanded acceptance, which was refused, the answer to the demand noted, and thereupon the bill protested. This means that in the judgment of the notary it was proper to exhibit the bill to this clerk, and demand acceptance from him; that the clerk had authorityto act on that demand; that his answer was a proper refusal: And upon all this the notary made his protest, which plainly enough expresses his opinion in regard to the sufficiency' of every step on which he founded that official act.
The protest in this case is in the same form as that in Nelson v. Fotterall, 7 Leigh 179. In that case the whole court seems to have thought that parol proof was admissible to show the clerk’s authority to refuse acceptance; two of the judges thought it necessai^ in aid of the protest; two others thought it unnecessary, and that the protest of itself was sufficient: It was not intimated by any one, that if the protest did not sufficient^''verify the fact of the clerk’s authority, parol proof was inadmissible to supply the defect. The court is the proper tribunal to decide what facts are proved by written documents. If the court, as it might have done, had decided that the protest proved a proper demand, and the other facts set forth therein, it was unnecessary, and therefore improper, to hear parol proof in regard to it, unless proof had been previously offered to assail the truth of facts alleged therein. If this be error at all, it certainly is not to *the prejudice of the plaintiff in error here; it can do him no harm, after facts are proved by appropriate written testimony, the truth of which is in nowise impeached, to admit parol proof of the same fact.
Thus, whether we regard the protest as sufficient in itself, or as supported by the *123parol proof fully showing the clerk’s authority and other facts, the court did not err to the prejudice of the plaintiff in error in permitting- tthe protest and evidence to go to the jury: The parol proof established the fact that the clerk had authority to refuse an acceptance.
As to the second : The law requires notice of dishouor of commercial paper to be transmitted to the parties thereto for the purpose of enabling them to do what is needful to protect their interests; to this end it may be important to have early notice, and the law requires it to be given, in the case before us the notice was sent in a mode which would bring it to the hands of the plaintiff in error at the earliest practicable day: Yet it is alleged that it should have been sent by another mode, which, although it might have commenced the transmission at an earlier day, yet would not have delivered it so soon as the mode adopted. If we could yield to the argument of the plaintiff’s counsel, we should sacrifice the object of the law. The notice was transmitted in the mail by an ocean steamer belonging to the Cunard line, which line carried the mail from Great Britain to the United Slates. It was sent by the first steamer which started after the bill was dishonored. This brings the case within the stringent rule of requiring that the notice be sent by the first mail. It appears, however, that there are regular lines of sailing packets from London (the place of the drawee’s residence) to the United States; that these packets carried letter bag's made up at the London post office; and that the times for their sailing from Great Britain occurred between the day *of the dishonor ox this bill and the day of the steamer’s leaving. It further appears, that although a sailing-packet should leave on the regular day for her departure, and thereafter a steamer should leave on her regular day of departure, the steamer would probably arrive first in the United States. It further appears, that the line of mail steamers is used by a very large majority of business men for the transmission of letters from Great .Britain to the United States. There can be no question, that of these two modes of transmission, the proper one was adopted. This one has in its favor the facts that it •carries the mail, that it is the ordinary mode of transmission, and that it may be expected to deliver a letter at an earlier day than the other; that other having in its favor the facts that it starts at an earlier day, and carries a letter bag. There is nothing to counterbalance the fact that the other line will deliver the letter at the earliest daju I think the notice of dishouor was duly transmitted.
I am of opinion to affirm the judgment.
The other judges concurred.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481485/ | SAMUELS, J.
The several endorsements on which this suit is founded, were made under color of authority conferred by the power of attornej' which was the subject of consideration in the case of Stainback v. Read & Co. recently decided in this court. This case, like the case above mentioned, turns upon the questions:
1st. Whether the endorsements were made in the proper exercise of the. agent’s authority.
2d. If not, whether there is anything in the dealing between the bank and the agent, which should bind the principal, notwithstanding the agent’s want of authority.
After the evidence had been heard on the trial in the court below, three several instructions were moved for by the defendant’s counsel, predicated upon portions of the evidence tending to show that the agent, in making the endorsements, was not acting in the business of the principal, but for the agent’s own benefit, and praying the court to instruct the jury, if they believed this fact, they should find for the defendant. These instructions were refused by the court; and therein the court erred. If the agent did in fact endorse the name of his principal on the bills for the agent’s own accommodation, he exceeded his authority, and the endorsements standing alone do not bind the principal.
2d. As to the second question: In the case above mentioned it was declared that under certain circumstances *therein mentioned, a principal might be bound by the act of the agent, although the agent may have exceeded his authority. This modification of the general rule in regard to a power to endorse, &c., applies in the case of an innocent holder for value, who has become such by the act of an agent apparently within the scope of his authority. The court, in the absence of all proof tending to prove the fact, should not have submitted it to the jury to find whether the bank was an innocent holder. So far from showing that the bank might have been deceived and "was probably deceived by the agent, the evidence tends strongly to prove the reverse. In legal intendment the bank knew the limits of the agent’s written authority; they had that authority in their own keeping"; the bills were drawn by the agent in his own name and behalf; the name of the principal, who was the payee, was endorsed by the agent; and yet the bills are found in the hands of the drawer and offered by him for discount for his own benefit, and they are discounted accordinglj’’, and the proceeds applied to the credit of the agent’s own individual account. At the time the proceeds of the bills "were so applied to the agent’s credit, he was indebted to the bank in a large amount; and thus his debt was paid, so far as the proceeds of the bills extended. In every stage of the proceeding with which the bank was connected, it was perfectly apparent that the business of the agent, and not of the principal, was to be promoted.
It will not do to say that the agent might, by a certain disposition of the proceeds, have indemnified his principal; and that the bank could not know that he would not do so. The answer is obvious, that the proceeds of the bills "were at once applied to his own benefit on the books of the bank, with its full knowledge and consent. If the possibility that an agent may indemnify his principal against abuse of power *may be relied on to bind the principal, the practical and beneficial effects of limitations in powers will be destroyed; for in every case the agent may possibly indemnify his principal against such abuse.
The remaining questions growing out of the protests, and the mode of transmitting the notices of dishonor, are considered in another case between the same parties; and I refer to what is there said as expressing my opinions on those questions.
I am of opinion to reverse the judgment, and remand the case for a new trial to be had in conformity with the principles herein declared, if on such new trial the proof shall be the same in substance as on the former trial.
ALLEN and DANIEL, Js., concurred.
MONCURE and LEE, Js., dissented.
The judgment was as follows :
It seems to the court here, that the power of attorney from L. E. Stainback to E. C. Stainback, given in evidence at the trial, as between the principal and agent, gave the attorney no authority to endorse the bills given in evidence, with the name of L. E. Stainback, for the accommodation of the attorney; and that parties dealing with *127the attorney, and having the. means of knowing that he, in endorsing the name of the principal and obtaining a discount thereon, did so for the accommodation of the agent and not of the principal, cannot recover of the principal. It further seems to the court, that the facts appearing in the record, that the attorney, who was also the drawer, held the bills at the time they were offered for discount and discounted by the defendants in error, and that the proceeds were passed to the credit of the attorney, the drawer as aforesaid, are of themselves full proof *that the attorney was acting for his own benefit and not that of his principal; all which was known to the defendants. It therefore seems to the court that the Circuit court erred in refusing to give in substance the three several instructions moved for by the plaintiff, and in giving that which was given in lien thereof.
Therefore, it is considered bj* the court that the judgment aforesaid be reversed and annulled, and that the defendants pay to the plaintiff his costs expended in this court; that the verdict of the jury be set aside, and the cause remanded, with instructions that if upon any future trial the evidence shall be in substance the same as at the former trial, and if the defendant in the court below shall ask it, the court shall instruct the jury in accordance with the opinion of this court, as herein declared. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481486/ | *SAMUELS, J.
A proper analysis of this case will show that it turns •upon two questions:
First. Whether F. C. Stainback had the authority of E. E. Stainback his principal, to draw the bill which is part of the foundation of this suit, or to subject his principal to an action on a collateral contract in regard thereto.
Second. If he had no .such authority, is E. E. Stainback still liable for the act of the agent, because of anything in the dealing between the agent and the plaintiffs ?
It may be laid down as a rule of law, sanctioned alike by reason and authority, that a power of attorney given to an agent, to act in the name and on behalf of his principal, in the absence of anything to show a different intention, must be construed as giving authority to act only in the separate, individual business of the principal. See Story on Agency, from § 57 to § 143; Atwood v. Munnings, 7 Barn. & Cress. 278; North River Bank v. Aymar, 3 Hill’s N. Y. R. 262; Stainer v. Tysen, 3 Hill’s N. Y. R. 262; Hewes v. Doddridge, 1 Rob. R. 143.
It is equally well settled that a party dealing with an agent acting under a written authority, must take notice of the extent and limits of that authority. He is to be regarded as dealing with the power before him; and he must at his peril, observe that the act done by the agent is legally identical with the act authorized by the power. See cases above cited; also 1 American Leading Cases 392, in notes.
These rules of law applied to the facts of the case, are decisive of the first question. The bill was not drawn in the business of E. E. Stainback, but in that of F. C. Stainback exclusively. It was not identical with a bill drawn in the separate name of B. E. Stainback. A joint bill imposes a joint liability on the *drawers in case it be not honored. In case of loss in the business in which the bill is drawn, both parties are bound; and in case one of the drawers be insolvent and the other solvent, as in this case, the whole loss must fall on the solvent party. If, however, a profit be made, it must be divided between those jointly concerned. A contract such as this is widely different from one in which the party liable for a loss, if one occur, is solely entitled to the profit, if one result.
Again: The power in any event must be held to authorize the agent to draw such bills only as B. E. Stainback might himself have rightfully drawn. In the case before us neither B. E. Stainback alone, or B. E. & F. C. Stainback jointly, had any right to draw the bill in question, having no funds in the hands of the drawees; and having, at the time, no other reason to suppose it would be accepted. The drawer of a bill, when he negotiates it, is to be understood as affirming that he has the right to draw. In the case before us E. E. Stainback is made to falsely affirm such right; to commit a fraud by means of the falsehood; and all this under color of the authority conferred by him. Under certain circumstances a principal may be bound by the act of his attorney going beyond his power, yet he can be so bound only toan innocent holder for value. Read and company are not holders at all; they knew perfectly well that B. E- Stainback, either solely or jointly with another, had no right to draw on them; that a power to draw bills rightfully, would not extend to their house, in the then state of business relations between them and the drawers, or either of them.
The letter of attorney authorized the agent to do certain specified acts, including the drawing of bills; this, ' as already stated, is to be construed as applying to the rightful drawing of bills in the business of the *principal. "Within these limits the agent had authority to pledge the credit of his principal, and subject him to the consequent liability. Yet in the case before us the defendant is sued not upon a direct undertaking as drawer, nor upon a liability incident to his position on the bill; he is sued upon an alleged contract to transpose the positions of the drawers and acceptors, to make the drawers liable to the acceptors: And all this is said to be implied in the drawing the bill under the circumstances existing at the time. It cannot be held that an agent may, by implied contract, bind his principal beyond those limits within which he might bind him by express contract; nor can it be held that a power to draw a bill, in itself gives the further power to make another original and express contract to indemnify the acceptor against his acceptance. If the attorney could not make an express contract of indemnity, it is impossible to suppose that it can be implied from his drawing the bill.
The second question has, to some extent, been anticipated in considering the first. There are, however, certain considerations peculiar to this branch of the case, which require some notice. It is well settled that although an agent may in fact exceed his power, yet if he apparently keep within its limits, and deal with innocent parties for value, the principal will be bound. Mann v. King, 6 Munf. 428; North River Bank v. Aymar, 3 Hill’s N. Y. R. 262. It is but just that the principal should suffer the consequences of his own misplaced confidence, rather than they should fall on innocent parties. This rule of law, however well established, can afford no aid to Read & Co. upon the facts of this case. They dealt -with an agent acting under a power of attorney, and, as already said, must be regarded as dealing with that power before them. They were bound, at their peril, to notice the limits prescribed therein, either by its own terms, or *by construction of law. With this knowl*130edge, they nevertheless make a contract, which is not one of those specified in the power; but an original contract to subject the drawers to a liability not incident to their position on the paper. They accepted the bill, having no funds of the drawers; they knew that their acceptance would make them liable to any subsequent holder for value; they relied upon the undertaking of F. C. Stainback for indemnity; this undertaking is contained in the letter dated December 15th, 1842, the day the bill was discounted, advising the drawees of the bill and its discount, and promising “to take care of itobviously meaning thereby to provide funds for its payment at maturity. This undertaking is contained in a letter from F.'C. Stainback to Read & Co. given in evidence upon the trial. The letter is signed by E. C. Stainback with his own name only; is wholly upon his own business with them; and must be held to be an express guarantee by P. C. Stainback alone. This excludes all possibility of an implied guarantee by B. E. Stainback, either joint or several.
The law, as here declared, required that the first and fourth instructions should have been given ; and seeing that by necessary legal intendment Read & Co. did know the limits of the attorney’s power, and that in making the contract sued on he was exceeding his authority, there was no foundation in the facts of the case for the qualification with which the second and third instructions were given. The court, therefore, erred in annexing such qualification.
I am of opinion to reverse the judgment of the Circuit court, and remand the cause for a new trial, with directions to give the four instructions as moved for, if the evidence on the new trial shall be substantially the same as on the former trial, and if the instructions shall be again asked for.
*ALLEN and DANIEL, Js., concurred.
MONCURE and LEE, Js., dissented.
The judgment was as follows :
It seems to the court here, that the power of attorney from Bittleberry E- Stainback to E. C. Stainback, given in evidence on the trial in the court below, did not give authority to E. C. Stainback to draw the bill given in evidence, binding said E. E. Stainback as a joint drawer with P. C. Stainback; and that the Circuit court erred in refusing to give the first instruction moved for by the plaintiff in error.
It further seems to the court here, that the power of attorney, as between the principal and agent, gave no authority to the agent to draw the bill aforesaid for the accommodation of the agent; and that parties dealing with the agent and having the means of knowing that the agent was exceeding his power in thus drawing the bill for his own benefit, cannot recover of the principal.
It further seems to the court that the facts, that P. C. Stainback held the bill and had it discounted for his own benefit; that he wrote the letter of December ISth, 1842, addressed to the defendants ; that they accepted, after receiving that letter, and charged their acceptance to P. C. Stain-back; if believed by the jury, taken in connection with the written evidence, were sufficient to show that the defendants had the means of knowing that P. C. Stainback the agent, in procuring the acceptance of defendants, was procuring it for his om accommodation and not that of his principal; and that the principal was not bound: that the court below should have so instructed the jury, and that it erred on plaintiff’s second motion.to instruct.
It further seems to the court here, that the court *below erred in its action on the plaintiff’s third and fourth motions to instruct; that it should have given the instruction above stated as proper to be given on the second motion to instruct.
Therefore, it is considered by the court that the said judgment be reversed and annulled; that the plaintiff recover of the defendants his costs in this court expended; that the verdict of the jury be set aside, and the cause remanded for a new trial to be had therein; upon which trial, if the evidence shall be the same in substance as that at the former trial, the Circuit court shall conform its action to the principles hereby declared. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481489/ | DANIEL J.
The decree of the Circuit court, in so far as it sustains the deed of trust of the 30th of May 1842, is, I think, correct. The fact that a deed of *trust embraces articles which must perish or be consumed in the use, before a sale of them can be made according to the terms of the deed, is not one which, of itself, necessarily shows the deed to have been made with a fraudulent design. The amount, in number or value of such articles, may be so inconsiderable, as compared with the main subjects of the trust, as to justify the conclusion that they were embraced through inattention of the parties to the inconsistency bf providing a security out of property which, from its nature, would necessarily perish before it could be made available as a means of satisfying the trust. Or the deed may embrace other property, to the improvement, support or sustenance of which, such perishable property is essential; and in such last supposed case the fact that the perishable property is embraced in the deed, so far from being indicative of a fraudulent purpose, might rather serve to show an honest and a provident design and effort to make the main subjects of the trust a more certain and productive security. It would be but fair in such case to construe the deed in accordance with the probable design and motives of the parties, and to relieve it of any apparent inconsistency, by holding the provisions in regard to the continued pos*153session, and the sale of the property, as intended to apply only to such of it as from its nature might reasonably be expected to be in existence at the day of sale.
T'he main objection to the deed is founded on the fact that it embraces growing crops of wheat, rye, corn and oats, which the bill alleges would be severed and consumed before the trustee would, under the provisions of the deed, be at liberty to execute the trust. It seems to me that it is a fair answer to this objection to say, that even if these crops were of such a nature that they could not be preserved till the day of sale, it would be harsh to construe the provision of the deed *in relation to them as designed merely to cover them up from creditors; seeing that the deed also embraces a number of horses and a cow, to the sustenance of which they would not, according to the testimony, probably be more than adequate. Besides, we have no proof that these crops are of such a nature as necessarily to perish before the dajr of sale: On the contrary, common observation and experience prove that they may be preserved without material loss or deterioration, for a longer period.
There is, therefore, nothing on the face of the deed, to show that the property conveyed was not designed by the parties to be a substantial and bona fide security for the debts, to secure the payment of which it was made.
It remains to be considered whether the appellee Paris had, at the date of his surrender, on taking the oath of an insolvent debtor, any such interest under his father’s will, in the property sought to be subjected to the payment of the appellant’s demand, as can, in equity, be so subjected.
A court of equity will not, in general, assume the exercise of a discretionary power vested in a trustee, nor interfere to control the trustees acting bona fide in the exercise of their discretion. Nor will a suit be entertained to compel the trustees to exercise their power. And the refusal of a trustee to exercise a purely discretionary power is not a breach of trust for which he can be removed from office, although the trustee assigns no conclusive reason for the refusal, and the proposed act is apparently beneficial to the trust estate. Hill on Trustees 715.
Again: On page 725 of the same treatise, the author says, the fourth and last class of discretionary powers is where the discretion is to be exercised on matters of pure personal judgment. For instance, when the trustees are empowered to give their opinion *on the good or ill conduct or merits of an individual; or to determine the propriety or impropriety of continuing the payment of an annuity; or to give their approbation to a settlement. The trustees alone are competent to exercise these powers, for they may have private and peculiar grounds for arriving at a proper conclusion, into which the court could not providentially enquire, and which the trustee might refuse to disclose. The exercise of such authorities cannot in general be assumed or even controlled by the court. If, however, a trustee is actuated by fraudulent or improper motives in exercising or refusing to exercise his discretionary powers, a court of equity, upon proof of the improper conduct, interposes its jurisdiction on a totally different principle -not for the purpose of exercising the discretion committed to the trustee, but to check or relieve from the consequences of an improper exercise of that discretion. Ibid. 716.
If the rights of John Paris the son had been left by the will of his father dependent on the mere will or discretion of the trustees, to be exercised or not as they might please, without reference to the conduct of the son; or if the trustees had never expressed themselves satisfied of his reformation; or on being called on to express their opinion as to his habits and steadiness, had either disclaimed doing so, or had said that from “proper information” they had formed the judgment that it would not be prudent to entrust him with the management of the estate intended for his benefit, it would have been difficult, in view of the foregoing authority, to find any ground on which the interference ot a court of equity could have been justified. But I do not think that the will is to be so construed: And the course -of the trustees has been exactly the reverse of that just supposed. The fifil clause of the will, after directing the funds arising from the sale of the property to be loaned out, and the interest to be paid *over annually to the son, proceeds, “but should my executors judge, from proper information of my son’s habits and steadiness, that it would be prudent 1o entrust him with the full management of the funds intended for his benefit, then it is my will that they turn over the whole into-his hands.” Bet it be that the executors are the sole judges whether the conduct of the sou has been such as to render it prudent that he should be invested with the estate, and that no court has a right to correct their judgment, however erroneous it might be, yet when their judgment is formed and announced, and is in favor of turning over the estate, does there not arise a duty on their part to do so? Whenever the trustees, in the exercise of their judgment and discretion, have arrived at the conclusion that it is prudent the son should have the property intended for his benefit, free from their control, the testator says, it is his will that he should so enjoy it. Is not any further holding by, or control over the property on the part of the trustees thenceforward in conflict with the mandatory language of the will? Suppose the will to have been in all respects, as it is, with the exception that the “turning over of the estate into the hands of the son” had been made dependent on the approval of his conduct by persons other than the executors, would not the executors, upon being certified of such approval, have been bound at once *154to invest him with the title? And are the rights of the son consequent on the approval •of his conduct, modified by the fact that the persons who by the will are to judge of his conduct and those who upon the approval of it are to turn over the property to him, are the same? It seems to me whenever the son shows that his conduct has met with the approbation of the executors, he does all which the testator intended he should do in order to entitle him to the free and uncontrolled enjoyment of the bounty intended *for him. This he has done. In their answer to the bill filed by him, and in their depositions taken in this cause, the executors express themselves satisfied of his reformation; and in the latter they say that such is their conviction on the subject, that they would, at all times, since his marriage, have been willing to place the full control and management of the estate in his hands. Besides, they are parties to this suit, and have not denied the allegations of the bill. They have exercised their discretion and pronounced their judgment in the only matter which was left to their discretion. From the moment of their having done so the right or power in or over the estate intended for the testator’s son remaining in them, call It by whatever name, became subject to the command, in the will, to turn it over to him free from their control. They thenceforward became trustees of an estate, to the full and unrestricted enjoyment of which another is beneficially entitled under the provisions of the instrument whence all their powers are derived.
The executors, in their answer to the bill filed by the appellee Paris, having admitted his reformation, he had, I think, a right to insist on a decree directing them to convey the legal title to the property held by them for his benefit. The decree which was rendered neither affirmed nor denied that right. It is true that the court then expressed the opinion, which it has carried out in the decree rendered in this cause, viz: that it was a matter resting entirely in the discretion of the executors (notwithstanding the reformation of Paris and their approval of his conduct), whether they would invest him with the legal title to the estate. Yet the decree went no further than to stay the sale of the property, except so far as might be necessary for the payment of debts and legacies. The waiver for the present by Paris of a decree directing *the executors to convey the title, did not, I think, conclude his rights, nor deprive him of the power, at any time thereafter, to ask for and insist upon such a decree. The executors still remained clothed with the legal title, but they still stood, as they had alwaj^s stood, ever since they had announced their judgment of approval of the conduct of Paris, simply as trustees bound by the requirements of the will, and in foro conscientias, to invest him with the title and control of the estate. In this state of things, he took the benefit of the insolvent debtors’ oath, and whatever right he had, passed to the sheriff for the benefit of his creditor the appellant. In asking the court to subject the property to the satisfaction of his demand, the appellant, it seems to me, seeks no interference with the exercise of any discretion with which the trustees are clothed by the will. He in effect only asks the court to declare, what they have admitted and still admit, that the condition on which they were to convey the estate has been complied with, and to announce the conclusion which follows, that it stands, in equity, freed from their control, and .subject to the contracts and engagements of the beneficiary. The case is a peculiar one, and counsel have not furnished us with any precedents, nor have I been able to find any which would seem to rule it. The definition of powers and trusts, as given in the authorities, may be sufficiently plain, yet it often becomes a difficult task, in construing the language of an instrument, to determine whether it confers a mere power or a power in the nature of a trust, and consequently, whether the power is one over the exercise of which a court of equity can take any control. When the executors are clothed with an arbitrary discretion, an absolute power to appoint or withhold the bounty, as in Pink & others v. De Thuisey, 2 Madd. R. 423, where the executor was left at liberty to give to the legatee one thousand pounds, ‘ ‘If he found the thing *proper, ” or as in the case of Weller v. Weller (cited in the foregoing case as having been decided at the rolls), where the testator gave his son, who had been extravagant, a sum of money, with a power to the executors to advance more, “if there thought proper,” the courts have, I think, very properly refused to decide upon the propriety of the executor’s withholding the legacy, holding that to do so would be to assume an authority confided solely to the discretion of the executors. But in a case like this, where the judgment and discretion of the executors are limited and directed to a specified enquiry, the reformation of the conduct of the legatee, and where in the event of such judgment being favorable, the will, imperatively requires the executors to hand over the legacy; where the executors have exercised their judgment and discretion, have declared themselves satisfied with the result, and have admitted their willingness to hand over the estate; where a refusal on their part to execute the power could be from no motive connected with the conduct of the beneficiary, but would be directly in conflict with their own convictions of right and their own views of the intention of the testator; it seems to me that a claim to the interposition of a court of equity is presented, which it cannot reject without violating the principles which usually govern its action; that the executors stand before the court, not in the attitude of persons clothed with a mere power, but as charged with an acknowledged trust or duty, which, in equity and good conscience, they are bound to perform.
*155The only person here making opposition to the performance of this duty is the beneficiary, the appellee Paris. Without stopping to comment on the unenviable attitude in which he has placed himself before the court, it is obvious to remark that no desire .of his that a power over the estate shall remain in the executors, can prejudicially affect the rights of the appellant.
*Regarding that power as one in the nature of a trust, which the executors, at the date of the surrender by Paris, stood bound to perform, I think that he then had such an interest in the estate as could pass for the benefit of his creditor, and that the latter has a right to have it subjected to the payment of his demand.
I am, therefore, of opinion to reverse the decree of the Circuit court, and to render, instead thereof, a decree dismissing the bill so far as it seeks to invalidate the deed of trust; and remanding the cause, in order that the interest of Paris in his father’s estate may, after a settlement of the proper accounts, be subjected to the satisfaction of the appellant’s debt.
The other judges concurred in the opinion of Daniel, J.
The decree was as follows:
The court is of opinion, that the deed of trust of the 30th of May 1842 is bona fide, and not made to delay, hinder or defraud creditors; and is, therefore, valid against the claim of the appellant. The court is further of opinion that the appellee John Paris, by virtue o£ the power conferred upon the executors by the will of John Paris the elder, and the action of the executors under it, acquired, and held, at the date of his surrender as an insolvent debtor, at the suit of the appellant, an interest in the estate of his father, which passed by said surrender to the sheriff of Augusta county, and which ought to be subjected to the payment of the appellant’s debt. So much of the decree as dismisses the bill as to the appellee Fultz, and orders the proceeds of the sale of the trust property to be paid to the parties entitled under the trust deed, is, therefore, affirmed; and so much of the decree as denies the appellant’s right to have satisfaction of his debt out of the interest of the appellee Paris in his ^'father’s estate, is reversed with costs to the appellant as against the appellee Paris. And this cause is remanded to the Circuit court, in order that the accounts of the executors may be settled, and that the debt of the appellant may be satisfied by a sale of the tract of land of one hundred and fifteen acres in the bill and proceedings mentioned, if a resort thereto shall become necessary.
FRAUDULENT AND VOLUNTARY CONVEYANCES.
1. In General.
II. Void Transfers.
A. Absolute Transfers.
1. Void as to Creditors and Subsequent Purchasers for Value and without Notice-Fraud in Fact.
a. Purchases.
(a) Realty.
(b) Personalty.
b. Liens Given by Confession of Judgment or Otherwise.
3. Transfers Which Are Inoperative as to Certain Persons Though Not Affected with Fraud in Fact.
a. Transfers Which Are Voluntary, or upon Consideration Not Deemed Valuable in Law.
(a) Common-Law and Statutory Doctrines as to Voluntary Conveyances.
(b) Antenui>tial Settlements in Consideration of Marriage.
(c) Postnuptial Settlements.
(d) Gifts.
(1) Personalty.
(2) Realty.
b. Fraud Presumed from Inadequacy of Consideration.
c. When, and as to Whom Unrecorded Transfers Are Void.
d. Effect of Retention of Possession by Vendor.
e. Possession Retained by Donor.
B. Conditional Transfers.
1. Loans.
2. Deeds of Trust.
a. In General.
b. Provisions Which Postpone the Time for Enforcing the Deed—Effect.
c. Deed Furnishing Security against Losses and Liabilities -Potential Lien.
d. Reservations to the Vendor.
e. Provisions Conferring Special Powers upon the Trustee and Providing for His Compensation- -Validity.
f. Special Privtheges Given to Certain Creditors—When Valid.
C. Cases Illustrating Circumstances under Which Transfers Have Been Declared Valid Though Attacked as Fraudulent.
III. Rights and Liabilities.
A. Immediate Parties.
1. Vendor and Vendee.
a. In General.
b. Vendor.
c. Married Women as Vendors.
d. Vendee.
(a) In General.
(b) Bona Fide Purchasers.
2. Trustee and Cestui Que Trust.
3. Mortgagor and Mortgagee.
4. Loaner and Loanee.
5. Donor and Donee.
6. Assignor and Assignee.
B. Third Persons.
1. Creditors.
a. In General.
b. Rights and Liabilities of Creditors under Transfers Not Affected with Actual Fraud.
c. Rights and Liabilities of Creditors under Transfers Fraudulent in Fact.
d. Compromises by Creditors.
2. State.
3. Subsequent Purchasers.
IV. Remedies.
A. In General.
B. Equity Jurisdiction.
1. In General.
*1562. Statute of Limitations as a Bar to Instituting Suit.
a. Voluntary Conveyances.
b. Effect When Fraud Is an Element.
3. Specific Lien as a Condition Precedent to the Institution of Suit.
C. Parties.
D. Pleading and Practice.
1. In General.
2. Bill, Complaint or Petition,
a. In General.
h. When a Bill Is Not Multifarious.
c. Allegations and Averments Necessary to Sustain Bill. >
d. Bight to Sue.
3. Plea, Answer and Subsequent Pleadings.
4. Variance.
E. Evidence.
1. Presumption and Burden of Proof.
a. In General.
b. As Affected by Consideration.
c. As Affected by Possession.
d. Transactions between Belatives.
e. Transactions between Husband and Wife.
f. Indebtedness as an Element.
g. Intentof Grantor.
2. Admissibility.
a. In General.
b. Evidence Inadmissible by Reason of the Incompetency of Parties.
c. When Evidence Is Admissible to Preve Consideration.
d. When and against Whom Recitals in Deeds Are Admissible as Evidence.
e. Prior 'or Subsequent Conduct of Persons Interested.
3. Weight.
a. In General.
b. In Equity.
c. Circumstantial Evidence.
d. Nature and Circumstances of the Transaction.
(a) In General.
(b) Conduct.
(c) Possession.
(d) Relationship.
(e) Husband and Wife.
e. Insolvency.
f. Consideration.
g. Bill Pro Confesso.
F. Injunction.
G. Trial.
H. Decree.
1. Interlocutory Decree—As a Bar to Another Suit.
2. When Decree Is Final.
3. When Decree Is Erroneous.
4. When Improper for a Court to Decree as to the Sufficiency of Property to Pay Debts.
5. When Vendor of Land and Assignee of Debt Not Entitled to a Decree.
6. Decree When Relief in General Prayed for.
7. Decree Setting Aside a Conveyance.
8. Decree Ordering Sale.
9. Decree for Sale of Property Other Than That Conveyed.
10. Personal Decree.
11. Operation and Effect of Decree.
J. Lien of Attacking Creditor.
1. Lien of Plaintiff.
2. Petitioning Creditor’s Lien.
K. Disposition of the Property.
1. In General.
3. Subjecting Land to Claims of Creditors.
3. Costs and Attorney’s Fees.
4. Priorities of Creditors.
L. Review.
]. Presentation and Reservation in Lower Court of Grounds of Review.
3. What Parties Are Entitled to Allege Error.
3. Reversal Dependent upon a Question of Fact.
Cross References.—Monographic notes on “Gifts”; “Creditors Bills”; “Assignments”; “Assignments for Benefit of Creditors”; “Decrees.”
Subjects Excluded.—The following note does not include within its treatment transfers by husband or wife, void as to each other; transfers by partners void as to partnership or individual creditors; fraud in assignments for the benefit of creditors, by rea-, son of preferences or otherwise; transfers void under acts of bankruptcy or insolvency laws; nor fraud in disposing of property as grounds for arrest, or attachment.
1. IN GENERAL.
Construction of Statutes against Fraudulent Conveyances.—The statute against fraudulent conveyances, chapter 74, section 1, of W. Va. Code 1899, like all other statutes against fraud., is to be liberally expounded for the suppression of fraud. Harden v. Wagner, 22 W. Va. 356.
And in Hutchison v. Kelly, 1 Rob. 123, the policy of the statute of 13 Eliz., chap. 5 (substantially adopted in Va. Code, ch. 109, to prevent frauds and perjuries), was investigated by Judge Baldwin, and the true principle was declared by him to he, that a fraudulent intent of a grantee against one or more creditors is fraudulent against all; and that no distinction exists between prior and subsequent creditors, other than that which arises from the necessity of showing a fraudulent intent against some creditors, which cannot he done in behalf of creditors in existence at the time of the conveyance, but by proving either a prior indebtedness or a prospective fraud against them only.
Meaning of “Void” as Used in Statute, Va. Code 1887, § 2458.—The statute relating to fraudulent conveyances, Va. Code 1887, § 2458, provides that gifts, conveyances, etc., made with intent to “delay, hinder, or defraud creditors, purchasers, or other persons,” etc., shall he void as to such creditors, etc. From the provision following in this same section, the true effect intended by the statute would seem to be.that such “conveyance,” etc., is rendered “voidable” (not void), as the statute expressly protects a purchaser for valuable consideration, who had no notice of fraud affecting the title of his immediate grantor.
Principles Applicable to Voluntary and Fraudulent Conveyances.—Designating the principles applicable to a voluntary conveyance, in a controversy between the creditors of the grantor and the claimant under the deed, Baldwin, J., in Hunters v. Waite, 3 Gratt. 26 (1846). says that, "If a man In insolvent circumstances conveys away his property to strangers, or settles it upon his wife and children, the law concludes the design to he fraudulent against his creditors, and all evidence to the contrary is idle or delusive; and, so if he renders himself insolvent by a voluntary conveyance, however meritorious in itself merely. It is in vain to speculate upon his motives, ,or adduce evidence of an honest purpose. It may he that he has acted through igno*157ranee, or mistake or misconception. Apologies and .excuses may be found to absolve him from moral turpitude, but to these the law cannot listen. He is bound to know his own circumstances and the just demands against him: and the injustice and wrong to his creditors are palpable and unquestionable. On the other hand, if a man is in flourishing or unembarrassed circumstances, and exercises a reasonable and prudent discretion in gifts or advancements to his children, adapted to their wants and justified by his means, leaving an ample fund for the payment of his debts; there can be no propriety in the conclusion of a fraudulent purpose, from the mere fact of indebtedness at the time.'’ At present, however, it is provided by statute, that a voluntary conveyance, etc., which is upon consideration not deemed valuable in law shall be void as to creditors whose debts shall have been contracted at the time it was made, but shall not, on that account, merely, be void as to creditors whose debts shall have been contracted or as to purchasers who shall have purchased after it was made, etc. Va. Code 1887, § 2459.
But where there is a fraudulent intent on the part of the grantor in a deed founded upon a valuable consideration, and such intent is not known to the grantee, the latter is not chargeable with want of good faith, since no rule is better established than that both parties must concur in the fraudulent intent to render the deed absolutely void. Rixey v. Deitrick, 85 Va. 45, 6 S. E. Rep. 615; Skipwith v. Cunningham, 8 Leigh 271; Norris v. Jones, 93 Va. 183, 24 S. E. Rep. 911; Hazlewood v. Forrer, 94 Va. 703, 27 S. E. Rep. 507; Bishoff v. Hartley, 9 W. Va. 100; Herring v. Wickham, 29 Gratt. 628; Bank v. Belt (Va.), 30 S. E. Rep. 467; Boggess v. Richards, 39 W. Va. 567, 20 S. E. Rep. 599, 45 Am. St. Rep. 938; Henderson v. Hunton, 26 Gratt. 926.
And, ¡if a conveyance is not fraudulent in its Inception, it cannot become so by subsequent matters; because the statute requires that the act .should be done with the criminal intent; however, if it be afterwards employed for a fraudulent purpose, a court of equity will interpose to prevent such use of it. Harden v. Wagner, 22 W. Va. 356. Yet a deed which is fraudulent in fact, is void in loto, and cannot stand as security for grantees who have notice of the fraud. Livesay v. Beard, 22 W. Va. 585.
Who Is an Insolvent—And a person is insolvent within the statutory meaning (W. Va. Code 1899, eh. 74, § 2) when all of his property is not sufficient to pay his debts. Carr v. Summerfield (W. Va. 1899), 34 S. E. Rep. 804.
Homestead Deed.—However, the filing of a homestead deed, claiming as exempt, under the homestead law, store fixtures and certain merchandise in stock, is not a conveyance or assignment which .can be attacked as in fraud of creditors, under Va. Code 1887. § 2460, as amended. Simon v. Ellison (Va.), 22 S. E. Rep. 860.
Fraud Determined by Inspection of Deed.—When a court is called upon to decide whether a deed is fraudulent upon its face, it must decide the question from theinspection of the deed alone. And unless, upon an inspection of the deed claimed to be fraudulent on its face, the court sees that it contains some provision which clearly shows that the intent of the grantor, in executing the deed, was to hinder, delay, or defraud his creditors, the court cannot hold the deed fraudulent on its face. Landeman v. Wilson, 29 W. Va. 702, 2 S. E. Rep. 203.
A Suit to Set Aside Conveyances on Ground of Fraud Is Not a “Controversy Concerning Land.” -A suit to set aside several deeds on the ground of alleged fraud and to subject the lands thereby conveyed to the debt of the complainants, is not in the category of “controversies concerning the title or boundaries of land,” within the meaning of the constitution of the state, art. 6, § 2. Fink v. Denny, 75 Va. 663.
Claims Protected against Fraudulent Transfers.—The Va. Code 1873, ch. 114, § 1, protects against fraudulent transfers, all claims, debts and demands, including claims to damages for breach of contract to marry, for which judgment may, after the execution of the conveyance, be obtained. Burton v. Mill, 78 Va. 468.
II. VOID TRANSFERS.
A. ABSOLUTE TRANSFERS.
l. Voji) as to Creditors and Subsequent Purchasers for Value and without Notion -Fraud in Fact.
a. Purchases.
(a) Realty.
In General—Fraudulent Intent Vitiates.-A voluntary conveyance will be declared fraudulent as to subsequent creditors, if, from the circumstances and other evidence, the court is convinced the deed was made with intent to defraud such creditors; and the conveyance being voluntary, it is immaterial whether the grantee had notice of the fraud. Mayhew v. Clark, 33 W. Va. 387, 10 S. E. Rep. 785; Duncan v. Custard, 24 W. Va. 730; Connoway v. McCann, 30 W. Va. 200, 3 S. E. Rep. 590.
And while it is true, as held in Lockhard v. Beckley, 10 W. Va. 88 (1877), under the second section of chapter seventy-four of the Code of West Virginia, that a voluntary conveyance, as to subsequent creditors, is not void merely on the ground that it was voluntary, and the party indebted at the time it was made; yet upon the question whether it is fraudulent in fact, it is proper to consider the circumstances of its being voluntary, and the party indebted at the lime: and if additional circumstances connected with these two be sufficient to show fraud in fact, it is void as to subsequent creditors.
When intent Is to Avoid Payment of Fines.—Thus, if a party engaged in the unlawful retailing of ardent spirits conveys away his land with the intent to prevent the state from subjecting it to the payment of any future fines for such unlawful retailing, such deed is fraudulent, although the sales in which fines were subsequently recovered had not then been made. State v. Burkeholder, 30 W. Va. 593, 5 S. E. Rep. 439.
When Intent Is to Defeat Recovery of Damages in Tort.-Likewise it is a settled doctrine that a deed made with intent to defeat a recovery of damages in an action of tort, and before trial and judgment, is fraudulent and void to the same extent as a conveyance to hinder and delay existing creditors, and the intent need not be established by express proof. Johnson v. Wagner, 76 Va. 587.
A Valuable and Adequate Consideration Passes, but Intent Is Fraudulent.—-And although a deed be made for a valuable and adequate consideration, yet if the intent of the grantor be dishonest or unlawful, the deed will be deemed fraudulent, if the grantee had notice of such intent. Harden v. Wagner, 22 W. Va. 357; Goshorn v. Snodgrass, 17 W. Va. 717; Briscoe v. Clarke, 1 Rand. 213; Livesay v. Beard, 22 W. Va. 585; *158Bowyer v. Martin, 27 W. Va. 442; Bartlett v. Cleavenger, 35 W. Va. 719,14 S. E. Rep. 273. Moreover, if a deed is fraudulent in fact, it matters not, -whether the grantor had much or little property, when the conveyance was made. Silverman v. Greaser, 27 W. Va. 550.
Fraud on Grantor’s Part Alone—Conveyance without Consent or Knowledge of Grantee.—In Roanoke Nat. Bank v. Farmers’ Nat. Bank, 84 Va. 603, 5 S. E. Rep. 682, a grantor conveyed land to a certain grantee, as it appears, without his consent or knowledge, and had the deed recorded. A creditor at large under Va. Code 1873, ch. 175, § 3, brought a suit to annul it as fraudulent. The grantor made no appearance. After the decree was entered and during the same term, the grantee filed his answer, denying that he had ever claimed any title, under the deed. The court held the deed fraudulent as to grantor’s creditors, and therefore void.
Effect of Inadequacy of Consideration Combined with Subsequent Fraud.—And, as further held in Livesay v. Beard, 22 W. Va. 585, if an insolvent debtor for an inadequate consideration conveys a valuable portion of his real estate to his children, and others, and on the same day makes a conveyance of other property to secure preferred creditors, which deed is fraudulent on its face, and four days thereafter makes a similar deed conveying all the residue of his property, which last deed is also fraudulent on its face, these facts taken together are strong evidence of a fraudulent intent in the execution of the first deed.
Purchasers Participating' in Debtor’s Design to Avoid Payment of Debts.—So, where the uncontroverted facts in the case show that the debtor, for the purpose of escaping a pursuing creditor, conveyed his real estate to a purchaser, even for value, which purchaser had knowledge of the creditor’s pursuit and was aiding the debtor to escape the same, such purchaser will be held to have participated in the fraudulent purpose of his grantor, and the conveyance will be avoided as to such creditors. Gillespie v. Allen, 37 W. Va. 675, 17 S. E. Rep. 184.
Where Only a Part of the Grantees Have Notice of Fraudulent Intent.—But where a deed of several grantees jointly is fraudulent in fact, but it being proven that the grantor executed it with intent to defraud his creditors, it will be void only as to such grantees as had notice of the fraud, and may stand as security for the consideration paid by such grantees as had no notice of such fraud. Livesay v. Beard, 22 W. Va. 585; McGinnis v. Curry, 13 W. Va. 29.
Fraudulent Scheme between Debtor and Grantor to Defeat the Creditor’s Recovery.—The case of Davis, etc., Co. v. Dunbar, 29 W. Va. 617, 2 S. E. Rep. 91, affords a striking example, illustrating the fraudulent intent of the grantor in making a conveyance. The facts were that, a certain sewing machine company, by its agent, made a contract with a person by the name of Dunbar, to sell sewing machines for the company: the father of Dunbar, the defendant, gave guaranty, that the son would faithfully pay all sums which he might owe under said contract, and the father and his two sons, the defendant and another, represented that the father was solvent and owned 94 acres of land. Three years before this date, the father had made and delivered a deed for this land to these two sons, but the deed had never been recorded. After the contract with the machine company was made, the two sons and the father agreed that the deed should be made for the land to the brother of the defendant, which was done, and placed on record the day before the defendant entered upon his duties under the contract. The defendant became indebted, soon after, to the company in a large sum of money, and then became insolvent. Upon a bill filed to subject the 94 acres of land to the payment of the debt, it was held, that under the circumstances, the scheme was one to defraud the plaintiff, and the 94 acres of land should be subj ected to the payment of the debts.
Fraudulent Intent Evidenced by Grantee’s Participation and Notice.—And where property is conveyed for the benefit of creditors to a trustee, and the trustee sells it to the wife of the debtor, and it is afterwards taken on fi. fa., against the husband, the question whether the transaction is fraudulent depends on the wife’s good faith and want of notice, and not on the good faith of the trustee. Hughes v. Kelly (Va. 1898), 30 S. E. Rep. 387.
So, if it appears that the wife actively participated in the attempt to sustain a conveyance from her husband to her, by claiming that certain additional and unfounded indebtedness was a part of the consideration for the property, the conveyance will be treated as fraudulent in fact, and void in toto as to the creditors of the husband, and will not be permitted to stand as security to the wife for the valid portion of the consideration paid by her, as against such creditors. Webb v. Ingham, 29 W. Va. 389, 1 S. E. Rep. 816.
Homestead Deed.—See, in this general connection of transfers made with fraudulent intent, the case of Rose v. Sharpless, 33 Gratt. 153, in which it was declared that, where a "householder or the head of a family” executes a homestead deed as a part and in furtherance of a design to hinder, delay, and defraud his creditors in the recovery of their just debts, such deed will be vitiated and invalidated by such conduct.
(/;) Personalty.
Assumed Ownership of Property by Consent of Real Owner—Fraudulent Intent.—In Bolling v. Harrison, 2 P. & H. 532, a resident of Virginia, owned certain slaves in Florida, and wished to bring them to Virginia but fearing lest his creditors should seize them under execution, on their arrival, he persuaded another to assume to be the owner of them and conveyed them, by deed, to a trustee for the benefit of his (true owner’s) wife and children. This was done, and the increase were brought to Virginia, and were kept in the possession of the true owner for several years, and were then carried by the true owner, with their family, beyond the limits of the state. Certain judgment creditors of the true owner then sought to hold the pretended owner liable in equity for the value of the negroes. The pretended owner never had the title to the negroes, nor possession or control of them, but merely lent himself to the scheme of the true owner, as above stated. The court held the deed void; and further, that the mere representation in the deed as to the ownership of the property, did not make the pretended owner liable in equity, for the value of the property, as constructive trustee for the creditors, though he would have been so liable if he had acquired the possession or control of the property. And if any creditor had suffered actual damage by the fraudulent misrepresentation, his remedy was at law.
b. Liens Given by Confession of Judgment, or Otherwise.— And in Crawford v. Carper, 4 W. Va. 56, a debtor, who was insolvent, confessed judgment in favor of one of his creditors, giving the creditor *159first lien upon his land. The debt thus attempted to be secured, was barred by the statute of limitations. The land upon which the lien rested was not sufficient to pay all of the debts owed. Upon these facts the court declared the judgment void, as coming within the purview of the prohibition, against fraud in obtaining judgments, contained in Va. Code 1860, ch. 118, § 1; Va. Code 1887, § 2458.
But In Elliot v. Trahern, 35 W. Va. 634, 14 S. E. Rep. 223, a judgment was confessed by a son to his father upon notes previously executed to him. The court held that the judgment was not fraudulent as to debts existing against the estate of the intestate, although the son was at the time the judgment was confessed one of the sureties of the administrators of the estate on their official bond; and several months after the judgment was confessed it was ascertained that the administrators had committed a considerable devastavit.
However, where a grantor for another’s benefit, puts a lien on his real estate for the amount of a fictitious note that would cover its value, and then xefershis creditors to the supposed beneficiary, as a probable purchaser of their debts, and some sell at fifty cents on the dollar, there being a secret agreement between the grantor and supposed beneficiary that the discounts should be shared equally between them, the deed creating the lien is fraudulent in fact and void as to the grantor’s creditors. Rucker v. Moss, 84 Va. 634, 5 S. E. Rep. 527.
3. Transfers Which are Inoperative as to Certain Persons Though Not Affected with Fraud in Fact.
(/. 'Transfers Which Are Voluntary, or upon Consideration Jfeoi Deemed Valuable in Law.
(a) Coinmon^Law and Statutory Doctrines as to VoI= untary Conveyances.
Common^Law Doctrine.—Declared and enlarged by 13 Eliza, ch. 5 (substantially adopted in 1 R. C. § 2. ch. 101; Va. Code 1887, § 2458). It seems to have been a well-settled doctrine at common law that a voluntary conveyance, which interfered with or broke i ri upon the rights of existing creditors, would not be permitted to take effect to the prejudice of other just demands : and this according to many of the cases, without regard to the amount of the debts, or the extent of the property settled, or the circumstances of the party. Nevertheless, numerous cases are to be found, which in effect maintain the doctrine, that a conveyance, although voluntary, may be good, under circumstances, even as against existing creditors ; and that the parties being indebted at the time is but an argument of fraud, the question still being in every case, whether the conveyance is a bona fide transaction, or a mere device to delude and defeat creditors. The subject is one involving the inquiry into the relations which the two great classes of creditors, prior and subsequent, occupy in relation to a voluntary settlement. And the question is, whether they occupy a common ground, so that the convej’ance which would be adjudged fraudulent as to the former, would also lie held fraudulent as to the latter; or will a discrimination be made, the effect of which will be to withdraw from inquiry in the case of a prior creditor the various circumstances attending the execution of the conveyance, such as the nature of the consideration, the value of the property settled, compared with that, if any. retained, the extent of the indebtedness, etc.; all of which are in the case of the subsequent creditor most proper to be considered ; and upon which, in order to succeed, he must be able to fix the imputation of fraud in the absence of direct and positive proof of the intent. Chancellor Kent clearly recognizes the distinction between the two classes. In the case of the prior creditor, he considers that any inquiry into the amount of debts existing at the time would be embarrassing if not dangerous; and he regards it as wholly unnecessary, considering the debtor as absolutely disablea from making any voluntary settlement to the prejudice of any existing debts ; and such, he says, is the clear and uniform doctrine of the cases. See Reed v. Livingston, 3 Johns. Ch. R. 481, 500. Judge Story, on the other hand, evidently considers him as carrying the doctrine too far. He thinks that, mere indebtedness would i&otper se avoid a voluntary conveyance even as to subsisting creditors, unless the other circumstances are such as justly to create a presumption of fraud. 1 Story’s Eq. Jur. 360-365, inclusive.
The question has been the subject of a most animated and elaborate discussion between two of the former judges of the supreme court of Virginia, in the cases of Hutchison v. Kelly, 1 Rob. 123, Bank of Alexandria v. Patton, 1 Rob. 499, and Hunters v. Waite, 3 Gratt. 26, in which Judge Baldwin opposes the opinion of Chancellor Kent, and Judge Stanard maintains the correctness of Chancellor Kent’s opinion. But it seems that both these eminent jurists agree, that in the case of a subsequent creditor, a settlement cannot be impeached on Uumere ground of its being voluntary, if there be no actual fraudulent view or intent at the time it is made. To let in .such a creditor it must be shown that there was mala fldes or fraud in tact in the transaction. If the grantor, however, be indebted at the time he makes the voluntary conveyance, and due provision is made of all existing debts, it. is maintained by some courts that it is clear, that all just imputation of fraud in respect to them is out of the question. The above discussion of the principles relating to fraudulent and voluntary conveyances, their effect upon the rights of existing and subsequent creditors, at common law, is taken almost verbatim from the well-considered opinion rendered by Judge Lee in Johnston v. Zane, 11 Gratt. 552. See this case also for a valuable collection of English, and other authorities supporting propositions set forth in the principal case.
In the light of 13 Eliz. ch. 5 (substantially, Va. Code 1887, § 2458), which is held tobe declaratory of the principles of the common law, though “more extensive and salutary,” the question as to the validity of a voluntary conveyance made by a debtor, who was perfectly solvent, and retained sufficient property out of which to pay all existing debts, continued to be controverted until the provision relating to “voluntary gifts, conveyances,” etc., contained in the revisal of the Code in 1850 (Va. Code 1887, § 2459), in which the view as held by Judge Stanard (dissenting opinion in Hutchison v. Kelly, 1 Rob. 128) is adopted, namely, that any transfer of property upon a consideration not deemed valuable in law (or upon consideration of marriage) shall be void as to existing creditors. See W. Va. Code 1899. ch. 74, § 2. For fuller discussion of the statutes involved, and collection of cases on general subject, see the divisions which immediately follow.
Statutory Provisions.—Sections 1 and 2, chapter 74, of the West Virginia Code 1899, make a clear distinction between the rights of existing and subsequent creditors as to a voluntary conveyance; and such a conveyance cannot be impeached by subse*160quent creditors on the mere ground of its beingvoluntary, and the party making it, or at whose instance it was made, being indebted to some extent, if there be no actual fraudulent view or intent in the party at the time. Lockhard v. Beckley, 10 W. Va. 38. See similar provisions of Va. Code 1887, §§ 2468, 2459; Pratt v. Cox, 22 Gratt. 330; Penn v. Whitehead, 17 Gratt. 528.
But a voluntary transfer of property to be valid against subsequent creditors must be recorded, or possession must remain solely and bonajlde with the donee. Davis v. Payne, 4 Rand. 332. In this general connection, see Bank of Alexandria v. Patton, 1 Rob. 499; Hunters v. Waite, 3 Gratt. 26; Penn v. Whitehead, 17 Gratt. 503; Huston v. Cantril, 11 Leigh 137; Davis v. Noll, 38 W. Va. 66, 17 S. E. Rep. 791; Wick v. Dawson, 42 W. Va. 43, 24 S. E. Rep. 587.
However, there seems to be a conflict among the decisions in West Virginia, differing among themselves as well as from the Virginia decisions, relating to the construction of similar sections in the respective Codes, regarding “transfers” and “charges” “upon a consideration not deemed valuable in law.” The provisions are almost identical in their wording, as will appear from the following extracts: the West Virginia Code, 1899, ch. 74, § 2, is in partas follows: “Every transfer or charge (‘transfer’ including every gift, sale, conveyance and assignment, and the word ‘charge’ including every confessed judgment, deed of trust, mortgage lien and incumbrance), which is not upon consideration deemed valuable in law, shall be void as to creditors whose debts shall have been contracted at the time it was made, but shall not upon that account merely be void as to creditors whose debts shall have been contracted, or as to purchasers who shall have purchased after it was made; and though it be declared to be void as to a prior creditor because voluntary, it shall not for that cause be decreed to be void as to subsequent creditors or purchasers.” The Virginia enactment, § 2459, reads as follows: “Every gift, conveyance, assignment, transfer, or charge, which is not upon consideration deemed valuable in law, or which is upon consideration of marriage (the latter clause not appearing in the West Virginia statute, it will be observed), shall be void as to creditors whose debts shall have been contracted at the time it was made, but shall not, on that account, merely, be void as to creditors whose debts shall have been contracted, or as to purchasers who shall have purchased after it was made; and though it be declared to be void as to a prior creditor, because voluntary or upon consideration of marriage, it shall not, for that cause, be declared to be void as to subsequent creditors or purchasers.”
Earlier West Virginia Doctrine.—In Greer v. O’Brien, 36 W. Va. 277 (1892), 15 S. E. Rep. 74, a husband purchased a tract of land and directed it to be conveyed to his wife. It was charged that the husband was insolvent at the time of this gift to the wife, but the answer denied the fact of the indebtedness or insolvency. In the discussion of the case the effect of the “amount” of the husband’s indebtedness as to existing' creditors, was held immaterial to the decision as to them. Judge Lucas, in delivering the opinion of the court, held, in substance, as follows: that since the enactment of section 2, chapter 74, West Virginia Code 1891, (§ 2, ch. 74, W. Va. Code 1899) voluntary conveyances are void as to prior creditors, not because they are fraudulent but because they are “voluntary,” and because the consequent subordination of the rights of the donee to that of all prior creditors. And in the application of this act to voluntary conveyances or donations, made since its passage, which are confessedly and on their face voluntary, the act itself should be regarded as embraced in the purview of such donation or settlement. And further, that this section should receive the plain common sense, remedial construction, and not be frittered away by resorting to refinement, and to the complicated and almost undeterminable questions of fact and evidence which formerly embarrassed the courts, but which the act referred to was intended to cut up by the roots. By thus construing such instruments, namely, that all existing debts are recognized as liens upon the property superior to the donee in equity and priority, much of the ancient learning about conclusive presumptions of fraud, and much of the inquiry formerly required to maintain a financial standing with reference to his position in life, and his financial capacity to make reasonable advancements, ought to be regarded as cut up by the roots. Consequently the voluntary conveyance to the wife was declared void as to existing creditors, though valid as to subsequent creditors in the absence of any fraudulent intent. Thus, according to this decision, as it seems, the statutory effect is to render void as to existing creditors a gift by the debtor, even though the debtor may retain ample funds out of which his existing creditors may be paid. See Rogers v. Verlander, 30 W. Va. 619, 5 S. E. Rep. 847; Clarke v. King, 34 W. Va. 631, 12 S. E. Rep. 775; Kanawha Val. Bank v. Wilson, 25 W. Va. 242.
Later West Virginia Doctrine.—But it would seem that the doctrine as declared in Greer v. O’Brien, 36 W. Va. 277, 15 S. E. Rep. 74, consequently the construction of the statute, § 2, ch. 74, W. Va. Code 1899, has been inadvertently overruled by the later decision of Hume v. Condon, 44 W. Va. 553 (1898), 30 S. E. Rep. 56. In this latter case it was held, that the husband could make a donation to his wife (or return her a loan of money received, augmented by profits), if he retain an amount of tangible property largely more than sufficient to pay all his just indebtedness. Judge Dent, in delivering the opinion of the court, seemingly adopted the following language as his own: “The ancient rule that a voluntary postnuptial settlement can be avoided if there was some indebtedness existing has been relaxed, and the rule generally adopted in this country at the present time will uphold it, if it be reasonable, not disproportionate to the husband’s means, and clear of any intent, actual or constructive, to defraud creditors.” Citing Kehr v. Smith, 20 Wall. (U. S.) 35; Hunter v. Hunter, 10 W. Va. 321. And further, “this rule is generally adopted even where a statute expressly provides that a transfer from husband to wife in prejudice of the rights of subsisting creditors shall be invalid. A husband’s love and affection for his wife, and a desire to secure her support, is ample reason for a gift to her. Still his actual intention is a mere question of fact; but whether the gift is a reasonable one, considering his circumstances, seems to be a question of law. It is reasonable if his debts are trifling, or if he retains enough to readily pay them all; but unreasonable if his debts are so great as to embarrass him, or if he is insolvent, or if the gift leaves him insolvent, or if he denudes himself of all his property, or if the property he conveys is easily accessible to creditors, while that which *161he retains, though ample in amount, is inaccessible to them.” Citing 14 Am. & Eng. Enc. Law 563-64.
However, it is to be observed that in the decision of this case, § 2, ch. 74, W. Va. Code of 1891 W. Va. Code 1899, § 2, ch. 74) was not referred to or discussed, nor was there any reference direct or indirect, in the majority opinion, to the case of Greer v. O’Brien, 36 W. Va. 284, 15 S. E. Rep. 74. Bnt Bbannon, P., in his dissenting opinion referred to it, and declared as follows: “It. is contrary to the Code provisions that every voluntary conveyance is void as to existing creditors, no matter how pure in intent; no matterwhether the grantor had, or had not. enough property left to pay his debts; no matter what his debts amounted to. The amount of his indebtedness, and the amount of his property left besides that conveyed were proper matters, before the statute, for consideration, and are now, when we are seeking to set a deed aside as to subsequent creditors', but it is utterly immaterial and foreign to the question of whether a voluntary conveyance shall be set aside as to prior creditors. It seems to me that the decision in this case reopens the door to variable •oral evidence and opinion as to a man’s pecuniary worth, and his indebtedness, and his intent, which the statute was designed to close,—vexatious questions, which ‘ought to he regarded as cut up by the roots,’ to use the apt and forcible expression of President Lucas in discussing this statutein Greer v. O’Brien, 36 W. Va. 284, 15 S. E. Rep. 74” See Mayhew v. Clark, 33 W. Va. 387, 10 S. E. Rep. 785.
Virginia Doctrine.—In Chamberlayne v. Temple, 2 Rand. 384 (1824), it is held, that a voluntary conveyance of property to children, at a time when the donor is largely indebted, is void against creditors. But the creditors meant are defined, as those “who .are thereby delayed, hindered, or defrauded,”—and further, that only those can be defrauded who have a right to specifically charge the property, viz,: lien creditors. Johnson v. Zane, 11 Gratt. 552. But see Quarles v. Lacy, 4 Munf. 251; Bentley v. Harris, 2 Gratt. 357. When this principle was declared, the present statute, Va. Code 1887, § 2460, had not been enacted, providing that a creditor before obtaining a judgment or decree against his debtor may institute any suit before, that he could bring subsequent to, obtaining a judgment or decree, to avoid a transfer under §§ 2458, 2459. See ante, sub-head, “Common-Law Doctrine.”
There are few decisions in Virginia involving this point exclusively, since the enactment of the statute in 1850 (Va. Code 1887, § 2459). The tendency of the cases seems to he to give the statute its plain and evident meaning. Furthermore, no conflicting construction is observed. The law seems to be as stated by Mr. Barton, in Barton’s Law Practice, p. 860 (3d Ed.), where, in the discussion of the distinction made by the statutes (Va. Code 1887, §§ 2458, 2459) between the rights of prior and subsequent creditors, when a transfer is attacked as voluntary, or fraudulent, he says that, “inrespeetto after-existing creditors, a fraudulent deed differs from one that is merely void because not upon a consideration deemed valuable in law, in that the former is void a,s to such creditors, as well as those whose debts were created after the deed was made; while, as we jiave before stated, the latter is only void as to antecedent debts, and may he wholly sustained as to those coming into existence after its date.” Pratt v. Cox, 22 Gratt. 330; Penn v. Whitehead, 17 Gratt. 528; Taylor v. Mallory, 96 Va. 18, 30 S. E. Rep. 472. See also, Broadfoot v. Dyer, 3 Munf. 350; Ruddle v. Ben, 10 Leigh 467; Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1; De Farges v. Ryland, 87 Va. 404, 12 S. E. Rep. 805.
(ib) Antenuptial Settlements ill Consideration of Marriage.—Prior to Va. Code 1887, sec. 2459, which went into effect May 1, 1888, rendering marriage an insufficient consideration to support a gift, conveyance, etc., as against creditors of the grantor whose debts had been contracted at the time it is made, it was held, that whatever the design of the grantor might be. in making a settlement on a woman in contemplation and in consideration of marriage, it was valid; unless her knowledge of his intended fraud was clearly and satisfactorily proved. Clay v. Walter, 79 Va. 92 (1884); Herring v. Wickham, 29 Gratt. 628. And the service by creditors of the grantor, of a written notice in accordance with the Va. Code of 1873, ch. 163, sec. 1, on the grantor, before the marriage, of his fraudulent design in making the settlement, cannot affect her constructively with notice of such design; but her actual knowledge of a participation of that fraudulent design must have been clearly established by proof, in order to render the deed of conveyance fraudulent as against creditors of the grantors. See Moore v. Butler, 90 Va. 683, 19 S. E. Rep. 850. And in Bumgardner v. Harris, 92 Va. 188 (1895), 23 S. E. Rep. 229, it was held that, marriage prior to Va. Code 1887, § 2459, constituted a valuable consideration for a settlement by a man on his intended wife, and after the marriage the settlement was valid against existing creditors; hut where the settlement was upon the wife for her life, with remainder over to the sister of the grantor and her children, the remainder was without valuable consideration, and void as to creditors whose debts' existed at the time of the settlement.
But in Greenhow v. Coutts, 4 H. & M. 485 (1810), upon a given state of facts, the principle was declared by the superior court of chancery for the Richmond district, that a marriage settlement on a wife with whom the husband had long lived in a state of fornication, and by whom he had several children, will he deemed not to have been on valuable consideration, but voluntary and fraudulent as to creditors. However, upon appeal, the court in Coutts v. Greenhow, 2 Munf. 363, reversed this decision, declaring that the wife and children were purchasers for value, and the deed was not void as to creditors, no fraudulent intention being proved.
And an agreement made in contemplation of marriage, though void against creditors because not recorded, is valid between the parties. Dabney v. Kennedy, 7 Gratt. 317.
it) Postnuptial Settlements.
Validity at Common Law and in Equity Dower as a Consideration.—Postnuptial settlements on a wife for value are valid in equity, though void at common law; and relinquishment of her right of dower is a good consideration to the extent of its value as against the husband’s creditors. Ficklin v. Rixey, 89 Va. 832 (1893). 17 S. E. Rep. 325.
Thus, in Strayer v. Long, 86 Va. 557, 10 S. E. Rep. 574, it is declared that, a relinquishment of dower, to the extent of the other is a sufficient consideration for a postnuptial settlement as against the husband’s existing creditors: and if it is made before the relinquishment, no distinct proof of the agreement is required, and though the settlement is made fraudulently as to the husband’s creditors, the fraud will not be imputed to the wife. Nevertheless It must be duly recorded, else it is void as to *162the husband’s creditors, -without notice, whose claims accrued after its execution and before its admission to record. Glascock v. Brandon, 35 W. Va. 84, 12 S. E. Rep. 1102.
Validity When Voluntary.—Nevertheless, every voluntary postnuptial settlement is fraudulent and void as against creditors, when the settler is indebted. Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1.
Presumption and Burden of Proof.—And postnuptial settlements are presumed voluntary, therefore void as to existing creditors, and the burden of proof is on those claiming under them. Perry v. Ruby, 81 Va. 317; Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1; Robbins v. Armstrong, etc., 84 Va. 810, 6 S. E. Rep. 130; Massey v. Yancey, 90 Va. 626, 19 S. E. Rep. 184; De Farges v. Ryland, 87 Va. 404, 12 S. E. Rep. 805; Rixey v. Deitrick, 85 Va. 42, 6 S. E. Rep. 615; Hatcher v. Crews, 78 Va. 460. But a postnuptial settlement will be good against subsequent creditors where there is no fraud, and the settler is not in debt when he makes it. De Farges v. Ryland, 87 Va. 401, 12 S. E. Rep. 805. See post, “Evidence.”
Failure to Record—Effect.—However, a postnuptial settlement made by a husband on his wife, of personal property derived from her father’s estate, but of which he retains possession, not having been properly recorded, is void as against the creditors of the husband. Lewis v. Caperton, 8 Gratt. 148.
When Valid to Extent of Consideration, Though Void as to Creditors.—And although a postnuptial settlement may have been made under such circumstances as to be void as to creditors of the husband, yet if the wife relinquish her right in the property, or assumes the payment of debts of her husband, so as to make them charges on her separate estate, 'upon the faith of such settlement, it will be held good to the extent of a just compensation for the interest which she may have parted with, or of the debts which she has assumed to pay. Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1. These facts, however, are essential to the validity of the deed.
Thus in Beecher v. Wilson, 84 Va. 813, 6 S. E. Rep. 200, a husband who was heavily indebted conveyed his land to his wife’s separate use, reciting the settlement to be in consideration of his indebted- ' ness to her on account of her money used by him in paying for said land and otherwise. There was at the time of its use no distinct promise, written or parol, that the money should be applied to the de- I ferred payments of the lands, which was conveyed to himself, and afterwards treated as his own property, or that the use of the said money should be regarded as a debt from him to her. The court declared that such postnuptial settlement must be annulled as fraudulent as to his creditors.
(d) Gifts.—See monographic note on “Gifts.”
1. PERSONALTY.
In General.—By the Acts 1858, to prevent fraudulent gifts of slaves, though the parol gift of slaves may be given in evidence to show the character of the possession held by the donee, yet the gift itself is void. Thus if a father-in-law put slaves into the possession of his son-in-law on loan, no length of possession will give the lendee title against the. lender, until such possession has become adverse by demand and refusal of the possession. Cross v. Cross, 9 Leigh 245.
And a verbal gift of slaves to a feme sole, to whose husband, upon her subsequent marriage, they were delivered, and by him kept until his death, four years after the marriage, is within the statutes for preventing, fraudulent gifts of slaves. Taylor v. Wallace, 4 Call 92.
How a Gift Is to Be Evidenced.—And a gift of slaves can only be evidenced by deed or will duly proved and recorded, or by possession passing from the donor to the donee, and remaining with him, or one claiming under him and the possession here meant, is an actual, abiding, permanent possession. If a gift is evidenced in either of these ways, it will serve to effectually vest title in the donee, certainly as against the donor. Durham v. Dunkly, 6 Rand. 135.
Thus, in Henry v. Graves, 16 Gratt. 244, a husband, in’the lifetime of his wife, made an absolute gift of his wife’s remainder in slaves, by deed, which was recorded after her death, and he survived both the wife and the life tenant. The gift was valid and. effectual against him, though before possession was obtained by the donees he dissented from it.
Effect of Reservations and limitations. E'ji where any reservation or limitation is pretended to have been made of a use or property, by way of condition, reversion, remainder or otherwise, in goods and chattels, the possession whereof shall have remained in another for five years, the same, as to the creditors and purchasers of the person so remaining in possession, is, under the act to prevent frauds and perjuries, taken to be fraudulent, and the absolute property to be with the possession, unless such reservation or limitation were declared by will or by deed in writing, proved and recorded. London v. Turner, 11 Leigh 403.
Thus, in Durham v. Dunkly, 6 Rand. 135 (1828), a slave was given to an infant child, by deed, with the reservation expressed in the deed, that the donor was to keep the slave and raise it for the donee, until she arrived at the age of thirteen. The slave was delivered to the donee on the day of the execution of the deed, and on the same day, taken back by the donor. The deed never was recorded; and the donee never lived with the donor. It was held that the gift was void under the act of assembly, t Rev. Code, Va. 432, § 51.
So if a father delivers a slave to his infant son residing with him, and calls upon persons present to take notice that he gives the slave to the son, but says at the same time, that he claims an estate in the slave for his own life, nothing passes to the son by such parol gift. Anderson v. Thompson, 11 Leigh 439.
Property Given on Parol Trust—As to Whom Valid.— Although, where personal property is given to one upon a trust by parol for another, the declaration of trust by parol may be valid as between the donee and the cestui que trust, yet as between the cestui que trust and the creditors of the donee the case is essentially different. London v. Turner, 11 Leigh 403.
Gift from Parent to Child—Unrecorded.—So a parol gift of a slave to a child, after possession in the donee, is void, as between the donor and donee; and if the slave given be conveyed by deed (accompanied witb possession in the donee) but without being recorded, it is void as to creditors and purchasers. Shirley v. Long, 6 Rand. 764.
And in Shirley v. Long, 6 Rand. 764 (1827), it was further declared, that if a father gave a slave to his child, and the donor retained possession of the slave, and exercised control over it, the gift was not the less fraudulent because the child always lived with the father, and the slave was always called the child’s in the family and the neighborhood.
So a parol gift of a slave by a father to an infant *163child living with him, by a declaration that the gift is made, but there is no delivery of possession, is not good against a subsequent purchaser of that slave, although such purchaser knew at the time of his purchase, that the father had so made the gift. Hunter v. Jones, 6 Rand. 540 (1828).
Same Marriage Provision.—A verbal gift of personal property to a daughter before marriage, in consideration thereof, accompanied by delivery of possession, is (like a promise in writing to make such a gift), valid and effectual against the creditors of the father. However, such verbal gift of property. HMWcomiunrU'd by possession before the marriage, but in consideration of which the possession is delivered after the marriage, though valid between the parties and privies to it. and against debts of the father afterwards contracted, is voluntary and void against all pre-existing creditors; and this is true though the property be delivered before any lien by execution is acquired by the creditors. Hayes v. Jones, 2 Patt. & Heath 583.
Thus, where a father who is possessed of an ample fortune sends certain of his slaves immediately after the marriage of his daughter to her husband, in whose possession they remained, without interruption or claim, until his death which happened two years and four months afterwards, it will be presumed (no proof of fraud appearing), that such slaves, being no more than a reasonable provision for the daughter at the time, were a gift in consideration of the marriage; and the right of the representatives of the husband is good against the creditors of the father. Moore v. Dawney, 3 H. & M. 127 (1808).
Likewise, in London v. Turner, 11 Leigh 403, a father, upon the marriage of his daughter, made her a gift of slaves, and the possession thereof remained in the daughter’s husband five years. Whthe the husband was in possession, the father made his will, confirming the gift, and declaring that the same was “to her in trust for the sole and only purpose of her immediate use and comfort in lthe, and after her decease the title and fee-simple interest to be vested forever in the children or issue lawfully begotten of her body, free from the claim, control or direction of any other person whatever.” Although this will was made and recorded within five years from the time of the gift, yet the slaves were held liable to be taken in execution by the creditors of the husband. This case was distinguished from Beasley v. Owen, 3 Hen. & Munf. 449.
And in Huston v. Cantril, 11 Leigh 136 (1840), a father, who was indebted at the time made a deed of gift of personal chattels to his infant daughter, which was duly recorded; subsequent to that time the daughter married and after the father’s death, a creditor filed a bill against the daughter and her husband, impeaching the deed as fraudulent, and seeking to subject the property to the payment of his demand. The court held that, whatever might have beer, the character of the conveyance in its origin, if was rendered good and valuable against creditors upon the marriage of the daughter, who thereupon was to be considered a purchaser by relation for valuable consideration. But see Va. Code 1887, sec. 2159, which declares that marriage shall not be deemed a sufficient consideration to support a gift, conveyance, etc., against existing creditors.
Gift from Husband to Wife—Presumption.—To rebut the presumption of a gift from a wife to her husband, where with her knowledge and consent he has at different times received, and she has delivered to him, the proceeds of the sale of her realty, no receipt of written obligation being given to repay, and the same is mingled with his funds, the proof must be clear, full and above suspicion. See Fitzhugh v. Anderson, 2 H. & M. 289.
Thus in Kanawha Val. Bk. v. Atkinson, 32 W. Va. 203, 9 S. E. Rep. 175. a husband, with the knowledge and consent of bis wife, at different times, received, or she delivered to him, the proceeds of the sale ol her realty; he gave her no note or other written, obligation to repay it; and he mingled it with his means ; used it in his business for years ; kept no written account of such moneys (nor did she); then became insolvent, and some eight or ten years after his receipt of the money, purchased real estate in the name of his wife, and it was alleged by him and her that it was paid for with the money so received ; and several years afterwards he and she united in a deed of trust to secure a very considerable debt on said real estate, such debt being a loan to the husband, and before such purchase a judgment was rendered against him for a debt. The lot was held liable to the judgment. And it was further declared that, if. when such purchase was made, any claim which she may have had on him for such proceedvS of her real estate was barred by limitation, that circumstances tended strongly to repel the wife’s claim to exempt the lan&against creditors. See, in this general connection. Fones v. Rice, 9 Gratt. 568; Miller v. Cox, 38 W. Va. 747, 18 S. E. Rep. 960. See post “Evidence.”
(e) Really.—'Under the state of the law existing previous to the Acts of the Assembly. Va. Code 1887, abolishing the common-law right of the husband to the wife’s personalty in possession at or during coverture, if property were bequeathed to a wife and her children jointly, the husband became invested with her interest jure maritL so that, as to her, any conveyance made in consideration of the receipt of such property was voluntary as to her. But as to the children, the conveyance was based on valuable consideration, and stood as security to them. Rixcy v. Deitrick, 85 Va. 42, 6 S. E. Rep. 615.
And a deed made by a husband embarrassed at the time, by which he conveys the proceeds of his wife’s land which had been sold, and the note for the purchase money made to him, in trust for himself and his wife for their lives and the life of the survivor, and during his life to be under his control and management, is voluntary and fraudulent as to creditors. Lewis v. Caperton, 8 Gratt. 148; Clarke v. King, 34 W. Va. 631, 12 S. E. Rep. 775.
But a voluntary transfer of property from husband to wife is not, simply because voluntary, void as to subsequent creditors of the husband. McClaugherty v. Morgan, 36 W. Va. 191, 14 S. E. Rep. 992.
Nevertheless, a court of equity will declare a voluntary conveyance fraudulent as to subsequent creditors, if from the circumstances and other evidence the court is convinced, that the deed was made with the intent to defraud such creditors. The conveyance being voluntary, it is immaterial, whether or not the grantee had notice o f such fraud. Duncan v. Custard, 34 W. Va. 730; Mayhew v. Clark, 33 W. Va. 387, 10 S. E. Rep. 785.
Thus, if a man largely indebted at the time voluntarily and without consideration deemed valuable in law, incumbers all of his lands and invests the proceeds of the incumbrance debt in making valuable improvements upon his wife’s separate real estate, and then becomes insolvent, and the incumbrance remains nnsatisiied, such mcam*164brance debt will, in a court of equity, be regarded as a gift to the wife, and fraudulent as to his creditors, whose debts existed at the time the incumbrance was created, and the real estate of the wife in her possession, as well as the land incumbered, will be held liable for the payment of her husband, which existed at the time the incumbrance was created. Kan. Val. Bank v. Wilson, 25 W. Va. 242.
And if a deed which is alleged to be voluntary and fraudulent, forms a part of the plaintiff’s claim of title, in an action of ejectment, it is the province of the jury to determine, under a proper instruction from the court, whether the deed is voluntary and fraudulent or not. Taylor v. Mallory, 96 Va. 18, 30 S. E. Rep. 472. However, as elsewhere stated, if the deed is merely voluntary, it is, nevertheless, valid as between the parties, and void only as to existing creditors. Chamberlayne v. Temple, 2 Rand. 384 (for fuller explanation of the principles expounded in this case, see ante, “Void Transfers,” sub-head 2); Clarke v. King, 34 W. Va. 631, 12 S. E. Rep. 775. See in support of general principles, Stokes v. Oliver, 76 Va. 72; Burkholder v. Ludlam, 30 Gratt. 255; Harvey v. Steptoe, 17 Gratt. 289.
6. Fraud Presumed from Inadequacy of Consideration.
Transfers from Husband to Wife.—Transfers of property, either directly or indirectly, by an insolvent husband to his wife during coverture are justly regarded with suspicion, and unless it clearly appears, that the consideration was paid from the separate estate of the wife or by some one for her out of means not derived either directly or remotely from the husband, such transfers will be held fraudulent and void as to the creditors of the husband. Core v. Cunningham, 27 W. Va. 206. See also, Davis v. Davis, 25 Gratt. 587.
Thus, a conveyance of real estate, made directly or indirectly, by a husband to his wife, in consideration of a valid debt due from the husband to the wife, is fraudulent and void, as to the existing creditors of the husband, when it is shown that said consideration is much less than the value placed upon the property by both the husband and thewife, and they attempt to make out a consideration equal to or in excess of the value of the property by adding to said valid debt other indebtedness of the husband to the wife which had no existence in fact. Webb v. Ingham, 29 W. Va. 389, 1 S. E. Rep. 816.
Conveyance by Wife to Husband.—So, if a married woman directly or indirectly convey her separate real property to her husband upon a consideration not deemed valuable in law, this is void as to her creditors whose debts shall have been contracted at the time it was made, if such creditors had the right, while the land was hers, to subject it or its rents and profits to the payment of their debts; as against existing creditors such voluntary conveyance is conclusively presumed to be fraudulent in law. Wick v. Dawson, 42 W. Va. 43, 24 S. E. Rep. 587.
Transfer from Father to Son.—Likewise, a conveyance of all his property by a father, who is greatly in debt and apprehensive of a heavy liability by the decision of a suit against him for damages for breach of warranty of title to land sold by him, to his son, for an improbable cash payment, and defend'd payments without interest, extending through a period of fifteen years, upon an agreement on the son’s part to provide maintenance for his father and mother during their lives, presents a case, which, without full examination, is indicative of fraudulent intent, especially where the son, Who might afford the necessary explanation, if there was any, is not examined as a witness in the suit to set aside the conveyance for fraud. Click v. Green, 77 Va. 827.
Conveyance from Debtor to Creditor.—And if an insolvent grantor justly indebted to one of his creditors in a comparatively small amount, convey to him all his property, or the greater portion thereof, in satisfaction of his debt, for a nominal consideration, falsely recited in the deed, and claimed by the grantee to have been in hand paid, equal in value to that of the property conveyed but largely in excess of the debt actually due such creditor, and he accepts the same, such deed, as to the other creditors of the grantor, will be held to be fraudulent and void; as the necessary effect of such deed is to hinder, delay and defraud such other creditors; and the grantor and grantee in such deed will be held to have intended the necessary result of their wrongful act. Knight v. Capito, 23 W. Va. 639.
Purchase.—In Moore v. Triplett (Va. 1895), 23 S. E. Rep. 69, the court held that, the fact that th e consideration paid on property worth $26,000 was $2,872 less than that amount, does not show such an inadequacy of consideration as to justify a cancellation of the conveyance, as in fraud of the grantor’s creditors. See also, Sutherlin v. March, 75 Va. 223.
e. When, and as to Whom TInrecorded Transfers Are Void.
Statutory Provisions.—If, before the time limited by law for recording a deed has expired, a bill be filed to impugn it as fraudulent, the court cannot afterwards declare it void, as against the complainant, on the grounds of its not having been duly recorded. Gibson v. Randolph, 2 Munf. 310.
And by Va. Code 1887, § 2465, Pollards’ Supp. Code, § 2465, a deed is void as against creditors, “until and except from the time it is duly admitted to record.” See Slater v. Moore, 86 Va. 26, 9 S. E. Rep. 419. As to the time within which deeds must be recorded after their date of acknowledgment, in order that they may relate back and be valid as of the date of acknowledgment, see Va. Code 1887, § 2467, and amendment, Acts 1895-6, p. 285; Pollards’ Supp. Code, § 2467. See, in this connection, Ogg v. Randolph, 4 H. & M. 445.
Thus, in Cocke v. Haxall, 2 Rob. 470 (1843), Judge Allen, delivering the opinion of the court, said, "That it was the intention of the legislature, in the act of 1792, regulating conveyances, 1 R. C., ch. 99, p. 362, sec. 2; p. 365, sec. 13; Va. Code 1849, ch. 118, sec. 4; Va. Code 1887, sec. 2464-65, to require a deed of trust or mortgage of personal estate to be recorded in the general court, or in the court of the district, county or corporation in which the grantor resided. Therefore, where a deed of trust of personalty, dated the 15th of July, 1812, stated the grantor to be of Henrico county, and the trustee and cestui aue trust to be of the town of Petersburg, and the deed was never recorded in Henrico but only in Petersburg, and there was no evidence to show that either at the date of the deed, or of its recordation in Peters-burg, the grantor resided in that town, the deed so recorded is void as to the grantor’s creditors.” However, a voluntary conveyance of personal property, by a party not ind ebted at the time, is good against subsequent creditors, if the deed be duly recorded or the possession remain solely bona fide with the donee. Otherwise it is void by the statute of frauds. Davis v. Payne, 4 Rand. 332.
Marriage Settlement—And in Thomas v. Gaines, 1 Gratt. 347 (1845), the court declared that a deed of marriage settlement made before the marriage *165conveying the property of the wife, and in which the intended husband joined, is fraudulent and void against subsequent purchasers from the husband. without notice, unless duly recorded. By this decision the case of Pierce v. Turner, 5 Crunch 162, and the opinions of Judges Carr, Coalter and Brooke, in Land v. Jeffries, 5 Rand. 211, were overruled. The facts in Land v. Jeffries were as follows : A woman who was about tobe married made a personal conveyance of her property to a third person with the privity and approbation of her intended husband ; the marriage took place a few minutes after the conveyance and the husband took possession of the property after the marriage ; the property thus conveyed was held not to be subject to the husband’s creditors, as his possession after marriage was not that of his wife (she not being sai juris), and her short possession between the time of the conveyance and that of the marriage, not being sufficient, or of the nature to render the deed fraudulent.
Contract for Sale of Land.—So where a contract in writing which is executed for the sale of land, before judgments are obtained against the vendor, and the deed is executed in pursuance of such contract. but is not recorded until after the judgments are duly docketed, and the contract is never recorded, the contract and deed are void as to the creditors: and the land so contracted to be sold, and so conveyed is subject to the satisfaction of the judgments. Anderson v. Nagle, 12 W. Va. 98.
Loan of Chattel.—So if no writing declaring a loan be recorded, or no demand be made by the lender, and pursued by course of law, for more than five years after possession commenced, the loan is void as to the loanee’s creditors, whose rights cannot be affected by the lender’s subsequent resumption of possession. But the creditors meant are those whose debts were contracted before the resumption of possession, or conveyance of the chattels, by the lender—they having given credit to the loanee on the apparent ownership of property. Scott v. Jones, 76 Va. 233.
d. Effect of Retention of Possession by Vendor.—It is a settled rule that an absolute deed of personal property is fraudulent ver se as to creditors of the vendor when the possession remains with the vendor. Alexander v. Deneale, 2 Munf. 341; Claytor v. Anthony, 6 Rand. 285; Shields v. Anderson, 3 Leigh 729; Davis v. Turner, 4 Gratt. 422; Robertson v. Ewell, 3 Munf. 1; Williamson v. Farley, Gil. 15; Land v. Jeffries, 5 Rand. 211. But according to Sydnor v. Gee, 4 Leigh 535, it seems, that, in the case of an absolute sale and delivery of chattels, and an immediate redelivery thereof by the vendee to the vendor, upon bailment, for a limited time, on valuable consideration, both transactions being in fact fair, such bailment of vendee to the vendor is not inconsistent with the sale, so as to make the sale fraudulent per se, within the rule of Alexander v. Deneale, 2 Munf. 341.
Thus, in Lewis v. Adams, 6 Leigh 320, a vendor for full value paid him, sold certain slaves to a vendee in December 1821, and the property was delivered to the vendee; on the same day, the vendee hired the same slaves to the vendor till January 1823, and took his bond for the hire; in November, 1822, the vendee, by deed duly recorded, conveyed the slaves to a trustee for the use of his daughter, who was the vendor’s wife, and her children. Upon these facts the court declared that the exercise of full ownership by the vendee, by the execution of such deed of trust, was equivalent to an actual resumption of the possession at the date of the deed, consequently, whether the sale from the vendor to vendee was originally accompanied and followed by possession or not, it was valid as against any creditors of the vendor whose rights attached after the date of the deed of trust.
However, it is not conclusive evidence of fraud, but is open to explanation. Land v. Jeffries, 5 Rand. 211.
Thus, as held in Benjamin v. Madden, 94 Va. 66, 26 S. E. Rep. 392, the retention of the possession of personal property by the vendor after an absolute sale is prima facie fraudulent against creditors of the vendor, though not as against a subsequent purchaser for value, without notice of the prior sale, but this presumption may be rebutted by proof. In the case at bar there was a bona .ride. sale for value of a stock of goods, and delivery of l>ossession, and the facts that the vendor did not transfer his license to the vendee before levy on the stock; that the name of the vendor upon the window shades, which had constituted his only sign remained as before; and that the vendor and his former clerk remained in the store and sold goods, do not, in view of other evidence in the cause, establish a case of fraud upon creditors of the vendor. Nor, under the admitted fact, does section 287 of the Virginia Code apply.
But in Mason v. Bond, 9 Leigh 181. the court declared that while it is a general rule, that an absolute sale of chattels not accompanied and followed with transfer of possession to the vendee, is per se fraudulent and void as against creditors of the vendor; and though there are exceptions to the rule, yet it is no ground of exception, that the possession at the time of the sale was in a third person, if, notwithstanding such possession, the vendor had a right, and it was in his power, to take the possession and deliver it to the vendee. Mason v. Bond, 9 Leigh 181.
Nevertheless, in the absence of a fraudulent intent, it is not fraudulent per se as to creditors, in one, who has assumed an indebtedness of a firm, in consideration of a sale of specified merchandise, to allow such merchandise to remain in said firm's possession to be disposed of in the usual course of trade. King v. Levy (Va. 1895), 22 S. E. Rep. 492.
But a bill of sale of chattels, which is absolute in form, executed by a debtor,--but which is in fact a mortgage to secure a debt, is fraudulent and void, as it tends to deceive and injure others. Shields v. Anderson, 3 Leigh 729; Clark v. Hardiman, 2 Leigh 347.
And if personal property is mortgaged, and is afterwards sold absolutely to the mortgagee but the bill of sale is not recorded, it is fraudulentas against .a subsequent purchaser. And a court, of equity will (under the particular circumstances), entertain a bill to recover the property as against the fraudulent vendee who has clandestinely gotten possession of the property. Such fraudulent vendee, cannot prevent a recovery, by showing that the plaintiff did not take possession at theinstant of the purchase; because such an omission as this cannot make a fraudulent sale good. Glasscock v. Batton, 6 Rand. 78.
So if there is an absolute bill of sale of slaves, by an executor, and he is permitted to retain the possession thereof, it is fraudulent and void, as to legatees. as well as creditors and purchasers. Robertson v. Ewell, 3 Munf. 1.
*166But where a purchaser of property leaves it in the possession of the original owner, but the possession thereof is taken by the administrator of the purchaser before creditors have acquired a specific lien thereon, by judgment and execution, it is not liable to the creditors of the original owner. Carr v. Glasscock, 3 Gratt. 343 (1846).
Similarly, if there is a sale of personal property under an execution, by a sheriff, and it is bona fide, though irregular, the sale is valid, even though the purchaser leaves the property with the debtor in the execution; moreover, the property is not liable to the creditors of the debtor in execution. Carr v. Glasscock, 3 Gratt. 343 (1846).
And, where an owner of personal property has bathed it out to a third party, and then gives an absolute bill of sale to a vendee, and the vendee at the expiration of the time for which it is bathed out, applies to the bathee to deliver the property to him, and the bathee tells him that he may have possession,. but he does not take actual possession, but leaves the property in the hands of the bathee, the bill of .sale is good against the creditors of the vendor. Kroesen v. Seevers, 5 Leigh 472.
e. Possession Retained by Donor.—In Charlton v. Gardner, 11 Leigh 281, the father in consideration of natural love and affection, made a deed, which was duly recorded, conveying slaves and other property to three infant children, upon the-condition understood and reserved, that the slaves were to remain in the donor’s possession, during his life, and if his wife should survive him, that she should have the ,use of one-third of the slaves and their increase, during her life. At the time of executing the deed, the father was indebted by two bonds, on which judgments were afterwards obtained, and the executions returned satisfied. Subsequent to the deed, the father became appearance bail, and a judgment was obtained against him as such, and the execution thereon was levied upon the slaves so conveyed, which were still in his possession and they were sold by the sheriff. After the father’s death an action of detinue was brought against the purchaser by the widow and children jointly, and another action was brought by the children alone; in each of which cases there was a special verdict, finding the facts as. above, mentioned. Upon these facts, the court held, that the action in which the widow was joined could not be maintained, but that the action by the children alone was well brought; and further, the facts found did not constitute fraud per se; and so.far as the fraud was a matter of fact, the jury not having found fraud, the court could not as a matter of law infer it.
B. CONDITIONAL TRANSFERS.
l. Loans.
Loans, and Reservations of a Use or Property, to Be Redorded.—Where any loan of goods or chattels is pretended to have been made to any person with whom, or those claiming under him, possession shall have remained five years without demand made and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation is pretended to have been made of a use or property, by way of condition, reversion, remainder or otherwise, in goods or chattels, the possession whereof shall have so remained in another as aforesaid, the absolute property shall be taken to be with the possession, and such loan, reservation, or limitation void as to creditors of and purchasers from the person so remaining in possession, unless such loan, reservation, or limitation be declared by will which, or a copy of which is, by deed, or other writing, duly admitted to record within the said five years in the county or corporation in which said goods or chattels may be. Va. Code 1887, ch. 109, sec. 2461, p. 599; Taylor v. Beale, 4 Gratt. 93; Lightfoot v. Strother, 9 Leigh 451.
However, proof of notice of the loan, from the lender, recorded in the court of a county wherein neither of the parties live, is not sufficient to do away with the effect of possession in the loanee. Gay v. Moseley, 2 Munf. 543.
So a deed declaring a loan of a slave from a father to his daughter during her life (being admitted to record on proof by one witness only), is not good against her husband’s creditors, or purchasers from him, without notice of such deed ; possession of such slave having remained with the husband for .five years without interruption. Lacy v. Wilson, 4 Munf. 313 (1814) ; Beasley v. Owen, 3 H. & M. 449. And in Garth v. Barksdale, 5 Munf. 101, it is held that five years’ peaceable and uninterrupted possession of slaves, under a loan not evidenced by deed duly recorded, vests a title in the loanee, which inures in favor of his creditors, and cannot be divested as to them, by his returning the same to the lender, after the five years have expired. See also, Gay v. Moseley, 2 Munf. 543. So, if a debtor remains in possession of slaves for five 3rears, under a parol loan, they are liable to satisfy his creditors, though the possession is resumed by the lender before executions are levied upon them. Beale v. Digges, 6 Gratt. 582.
But -the creditors meant are those whose debts were contracted before the resumption of possession, or conveyance of the chattels by the lender— they having given credit to the loanee on the apparent ownership of the property. Scott v. Jones, 76 Va. 233.
And where possession has remained with the loanee or with those claiming under him for five years, and is then resumed by the creditor, the possession must continue with the lender the full period of five years from the time it was actually resumed, before the title will be revested in the lender as against a creditor of the loanee. Pate v. Baker, 8 Leigh 80. It is to be observed, however, that § 2461, Va. Code 1887, does not apply to the case of property remaining in possession of a debtor for more than five years, on hire. Therefore, slaves remaining in possession of one person on hire for more than five years, are not subject to be taken in execution for his debts. McKenzie v. Macon, 5 Gratt. 379 (1849).
Yet, a loan of slaves, though not declared by deed in writing duly recorded, and therefore void as to creditors, the loanee having continued in possession for five years without such demand, as would bar their right, is-nevertheless effectual between the parties and their representatives. If, therefore, the loanee died in possession of such slaves, they are not to be considered assets belonging to his estate, nor can be recovered as such ; being liable to his creditors so far as their claims remain unsatisfied by their assets in the hands of his executor or administrator, but no farther. Boyd v. Stainback, 5 Munf. 305; Scott v. Jones, 76 Va. 233.
Likewise, if a father-in-law puts slaves into the possession of his son-in-law on loan, no length of possession will give the lendee title against the lender, till such possession has become adverse by demand and refusal of the possession. Cross v. Cross, 9 Leigh 245.
*167So, if a father sends a slave to a son upon a loan, but the agent who takes the slave to the son, neglects to inform him that the slave is a loan, the neglect of the agent does not effect the right of the father to have the slave considered as a loan. Dickinson v. Dickinson, 2 Gratt. 493 (1846).
When the Operation of the Statute Is Avoided.— Nevertheless, according to the settled construction <A the clause In the statute of frauds, Va. Code 1887, § 2461. concerning loans, a resumption of possession by the lender, or the recorded deed or will granting away the property to another within five years, avoids the operation of the statute and puts an end to the loan. Collins v. Lofftus, 10 Leigh 5: Scott v. Jones, 76 Va. 233.
And. if the property he sold before possession shall have remained five years with the loanee or those claiming under him, the loan is not, under the statute, taken to be fraudulent as to the purchaser. Lightfoot v. Strother, 9 Leigh 451.
But a demand of slaves by the lender, who thereupon receives, and immediately redelivers them to ihe loanee to be held on the same terms, as before .-mch demand, receipt, and redelivery being in private, is not sufficient to bar the rights of creditors, under the act to prevent fraud and perjuries. Boyd v. Stainback, 5 Munf. 305 (1817); Va. Code 1887, § 2461.
And it is to be further noted that, after a loan to a person with whom, or with those claiming under him, possession has remained live years and a deed is made by the lender, declaring the original loan and continuing it; but this deed is never admitted to record, it cannot affect the creditor of a person in possession, and the deed is not to be received as evidence against such creditor. Pate v. Baker, 8 Leigh 80.
3. Deeds of Trust.
a. l7i General.
Deed Executed without Knowledge of Creditors— When Valid.—Though a deed of trust be executed without the knowledge of the creditors secured by It, yet if wb en in formed of its execution they assent to it. it is valid. Cochran v. Paris, 11 Gratt. 348. See also, Dance v. Seaman, 11 Graft 778.
Deed Secures Debts Not Due—Trustee Is Not Author^ ized to Take Possession of Trust Property -VaSidity.— However, a deed, conveying a stock of goods and merchandise, and notes and accounts of a merchant to a trustee to secure the payment of notes not then due, which provides that said conveyance shall cover “such goods and merchandise as may be added to saidsiock, from time to time, by the grantor and brought into the store in course of business, or to take the place of such goods as may hereafter be •sold,” but does not authorize the trustee to take possession or control of said goods until the grantor has made default in tke'payment of one or more of said notes, and has been refused to do so by the holder or holders of such note or notes, is as against the unsecured creditors of the grantor fraudulent and void on its face, although it provides that the “trustee, by himself or by his agent or attorney, shall at once take possession” of the notes and accounts transferred by such deed, and collect the same for the benefit of the trust creditors.
Nor is such deed validated or its character affected by the fact, that subsequent to its execution and on the same day a second trust deed is made between the .same grantor and grantee, conveying the same goods and merchandise, to secure other and different eestuis que frustent, which authorizes the trustee to take possession of said goods and merchandise at once, “and manage and control the same for the benefit and advantage of the parties secured and indemnified by the deed.” Claflin v. Foley, 22 W. Va. 434.
Insolvency of the Trust Deed Not Necessarily Void. --The fact that a trustee in a trust deed is insolvent and untrustworthy will not. of itself, make the deed void; but in such case the court may appoint a receiver, and administer the trust according to the provisions of the deed. Cohn v. Ward, 32 W. Va. 34, 9 S.E. Rep. 41.
Deeds Executed with Improper Motive -Provisions to Hinder, Delay and Defrasid CreditorsNot Secured.—And a creditor who takes a conveyance from his debtor, to secure his debt, and at the same time, inserts provisions in the deed, to delay, hinder, or defraud other creditors, comes within the statute of frauds, and the conveyance is void. Garland v. Rives, 4 Rand. 282.
So, likewise, if the grantee be privy to a fraudulent intent on the part of the grantor, and takes a deed to secure his own debt, with provisions to delay, hinder, or defraud other creditors, the deed will be void, although his only motive was, to secure his own debt, and the other provisions were forced upon him by the grantor, as the only means of having his own debt secured. Such a grantee will not be considered as a bona fide purchaser. Garland v. Rives, 4 Rand. 282.
But a deed of trust executed in part to secure fraudulent debts, and partly to secure a dona fide debt, the dona fide creditor having no notice of the dishonest purpose on the part of the grantor, isa valid security for the dona fide debt. Billups v. Sears, 5 Gratt. 31.
So the fact that the grantor in a trust deed made to secure, among other things, the surety on a building contract of the grantor, performed the contract, a f ter executing the deed, so that no liability remained on the surety, does not show that the deed was executed with improper motives. Harvey v. Anderson (Va.), 24 S. E. Rep. 914. See in general connection, Gardner v. Johnston, 9 W. Va. 403; Spence v. Bagwell, 6 Gratt. 444.
d. Provisions Which Postpone the Time for Knforcino the Deed—Effect—Though a deed is not fraudulent by reason of a postponement of the time of sale, and the reserving the property to the grantor in the meantime, yet where the time of the sale mai' be postponed or hastened by the grantor, so as to enable him to defeat any creditor who should attempt to subject the interest in the property reserved to the grantor, to the payment of his debt, the deed is fraudulent. Quarles v. Kerr, 14 Gratt. 48.
I3ut a trust deed conveying real and personal property, including a stock of store goods, is not per sft fraudulent because it postpones the sale of real estate for six months from the date of the deed, and authorizes the trustee, after taking an inventory of the store goods, to take control of them, and sell the same at private sale, if that can be done in six months, and then sell the residue at public auction; in either case the sales to be in the best possible manner for the interests of the creditors of the grantor. Cohn v. Ward, 32 W. Va. 34, 9 S. E. Rep. 41. And a deed which conveys land to secure a dona fide debt, which is not. to be enforced for two years, and only then or afterwards upon a notice of the sale for one hundred and twenty days, is valid against creditors. Such a deed is *168valid though the execution of the deed is postponed forfive years from the date of the conveyance; and the rents and profits of the property in the meantime, are reserved to the grantor. Lewis v. Caper-ton, 8 Gratt. 148. So a deed of trust ^hich among other things conveys growing crops of wheat, rye and oats, and which is not to be enforced for two years from its date, is not necessarily fraudulent as to creditors. Cochran v. Paris, 11 Gratt. 348. Moreover, a deed which conveys without a schedule, household furniture, the various kinds of stock on a farm, bacon and lard, to secure a bona fide debt, but not to be enforced for eighteen months after its execution, is valid against creditors, though the deed was made without the knowledge of the creditor, and the grantor was indebted to insolvency at the time of the conveyance. Lewis v. Caperton, 8 Gratt. 148.
And a deed executed bona fide to secure a loan of money, not to be enforced for ten years, is a valid deed as against creditors of the grantor. Lewis v. Caperton, 8 Gratt. 148.
c. Deed Furnishing Security against Losses and Liabilities-Potential Lien.—A deed of trust, though made solely to secure one against any future loss as indorser, cannot for that reason be impeached, if made bona fide. Harvey v. Anderson (Va.), 24 S. E. Rep. 914.
Thus, in Alexandria Savings Inst. v. Thomas, 29 Gratt. 483, by deed which was duly recorded in January, 1856, the grantor and his wife conveyed a house and lot in trust to secure a certain beneficiary against any loss or damage which he might sustain by his acceptance of any drafts or bills which might thereafter be drawn by the grantor upon the beneficiary, which acceptance the beneficiary had agreed to make for the accommodation of the grantor. The beneficiary, accordingly, from the date of the deed to January, 1861, accepted the drafts of the grantor to a large amount, and the grantor was indebted to him for much more than the house and lot was worth. In 1871, a certain savings bank, being the holder of three of the notes of the grantor in the deed of trust, given on renewals of notes which were due before the date of the deed, filed a bill against the grantor as an absent defendant, to attach the house and lot, insisting that the deed having been given to secure future advancements, was null and void as to the creditors of the grantor. The court held that, though the beneficiary secured in the deed of trust was under no liability for the grantor when the deed was executed, it was, nevertheless, a valid security for all of his acceptances for the grantor given before some other creditor had acquired a lien on the house and lot conveyed in the deed of trust.
Moreover, a deed which conveys future rents and profits of property conveyed in other deeds, which were reserved to the grantor in the previous deeds, for the purpose of paying a bona fide debt, is valid against creditors of the grantor. Lewis v. Caperton, 8 Gratt. 148.
d. Reservations to the Vendor.—It is well settled that conveyances professedly to indemnify creditors, but expressly or impliedly reserving to the grantors powers inconsistent and adequate to defeat such purpose, are void as to creditors and purchasers. Wray v. Davenport, 79 Va. 19; McCormick v. Atkinson, 78 Va. 8; Saunders v. Waggoner, 82 Va. 316; Sheppards v. Turpin, 3 Gratt. 373; Lang v. Lee, 3 Rand. 410; Addington v. Etheridge, 12 Gratt. 436; Perry v. Shen. Val. Nat. Bank, 27 Gratt. 755. See also, Hughes v. Epling, 93 Va. 426, 25 S. E. Rep. 105; Norris v. Lake, 89 Va. 517, 16 S. E. Rep. 663; Harden v. Wagner, 22 W. Va. 364; Claflin v. Foley, 22 W. Va. 441. See further, in this connection, Paul v. Baugh, 85 Va. 955, 9 S. E. Rep. 329; Young v. Willis, 82 Va. 291: Kuhn v. Mack, 4 W. Va. 186; Marks v. Hill, 15 Gratt. 400. So where an insolvent debtor conveys his land even for valuable, though inadequate consideration, with a secret reservation, that he shall for the time have use of the land without payment of rent, this fact is evident, that the conveyance was made with fraudulent intent. Livesay v. Beard, 22 W. Va. 585.
And a deed of trust on lands and personal property with no definitely fixed period at which a sale could be required, and which puts it in the power of the grantor by collusion, or otherwise, to indefinitely postpone a sale thereunder, and of the live stock convei7ed by the deed, and the increase thereof, and. all future crops to be raised from the ground in the quiet enjoyment of the grantor, from which to support his family and pay the debts secured thereon, as he may deem most advantageous, is. fraudulent on its face and void. Such deed being fraudulent on its face is void in toto and cannot stand as security for the debts therein attempted to be secured. Livesay v. Beard, 22 W. Va. 585.
Moreover, a deed of trust on a stock of merchandise which provides that the grantor shall be suffered to remain in the possession and enjoyment thereof until default is made in the payment of the debt secured, and request by the creditor to foreclose, and without accountability to the trustee for the proceeds of sale made by the grantor, is fraudulent per se. Hughes v. Epling, 93 Va. 424, 25 S. E. Rep. 105.
Nevertheless, where a deed of trust to secure certain debts, conveys certain real estate, and the grantor reserves in it, to himself and his family all exemptions and property allowed by the constitution of Virginia, and all laws passed in pursuance thereof, and in addition thereto all exemptions, allowed under the bankrupt laws, such reservation is legal and valid, and does not render the deed void on the ground of any fraudulent intent on the part of the grantor. Brockenbrough v. Brockenbrough, 31 Gratt. 580 (1879).
Neither is a trust deed on a stock of goods for the security of creditors which provides that the trustees shall take immediate possession of such goods, and manage them for the benefit of the trust, fraudulent per se, and void as to creditors, because it contains a provision allowing the grantor, without the power of sale, to replenish such stock of goods, and extending the trust to cover the same. Baer Sons Grocer Co. v. Williams, 43 W. Va. 323, 27 S. E. Rep. 345.
So a reservation in a deed to secure creditors, of the right to manage property therein conveyed for three years before sale, the rents and profits in the meantime to belong to the creditors secured, is not such an unreasonable restraint upon the power of sale as to constitute a fraud in itself. Noyes v. Carter (Va.), 23 S. E. Rep. 1.
In Kevan v. Branch, 1 Gratt. 274, the court held that a deed of trust for the benefit of creditors was not fraudulent, which conveyed among other things, cattle, household and kitchen furniture, and debts, without specification, either in the deed, or by schedule accompanying it; and further provided that the grantor should remain in possession of the property, for six months; and that no creditors *169should have the benefit of the trust, who did not release the grantor from any further liability, in three months. Phippen v. Durham, 8 Gratt. 457.
And in Baldwin v. Van Wagener. 33 W. Va. 293, 10 S. IQ. Rep. 716, 3vhere a piano was delivered under an agreement in writing purporting to rent the same at $10 per month, the owner agreeing that when $300, the value of the piano, was paid in such monthly payments or otherwise, the title to the piano should vest in the renter, the court held, that such writing showed a sale upon a condition precedent, and, under the provisions of sec. 3, ch. 74, W. Va. Code 1887, the reservation of the title, unless a notice thereof is duly recorded, is void as to the creditors of the purchaser.
However, where a vendor agrees to sell to the vendee personal property for a price agreed to be paid at any future time, and delivers possession, but expressly retains title until payment, it is a conditional sale, and though by parol or by an unrecorded instrument, it is, nevertheless, valid as against vendee’s creditors or subsequent purchasers, with or without notice. This on the ground that such transaction, not being a chattel mortgage, but a conditional sale does not come within the scope of the Va. Code of 1873, ch. 114, § 5. McComb v. Donald, 82 Va. 903, 5 S. E. Rep. 558 (1876); O. D. Steamship Co. v. Burkhardt, 31 Gratt. 664 (1879). But see Va. Code 1887, § 2462, which provides that, every sale or contract for the sale of goods or chattels, wherein the title is reserved until the same be paid for in whole or in part, or the transfer of the title is made to depend on any condition, and possession be delivered to the vendee, shall be void as to creditors of, and i>urchasers for value without notice from said vendee, unless such sale or contract be evidenced by writing executed by the vendor, in which the said reservation or condition is expressed, and until and except from the time the said writing is duly admitted to record in the county or corporation in which said goods or chattels may be, etc.
e. Provisions Conferring Special Powers upon the Trustee, and Providing for His Compensation—Validity. —A discretionary power vested in a trustee to run and operate the business for a year, if he deem it wise to do so, having in view the interest of the creditors secured, does not render void ver se a deed of conveyance of astock of goods. Nor is such deed rendered void by the further provision empowering the trustee to replenish the stock by cash purchases of such articles as will aid in keeping up the business, and disposing of the other stock to better advantage. Hurst v. Leckie, 97 Va. 550, 34 S. E. Rep. 464. See also, Williams v. Lord, 75 Va. 390.
Thus, as held in Marks v. Hill, 15 Gratt. 400, a provision in a deed of trust to secure creditors, that the trustee may continue the business and replenish the stock, if intended merely as a means of realizing the trust fund, and with a view to winding up the business, is not fraudulent per se, so as to avoid the deed. And in such a case a provision in the deed that one of the grantors shall attend to the business, he being under the control of the trustee, who may at any time on his motion, and shall at the request of creditors, sell the property at auction, is not fraudulent per se, so as to avoid the deed. Harden v. Wagner, 22 W. Va. 356. Neither will a provision in a deed of trust authorizing the trustee to sell the property at private sales render the deed fraudulent on its face. Landeman v. Wilson, 29 W. Va. 702, 2 S. E. Rep. 203.
And a trust deed given to secure a note payable one day after date which conveys personal property and choses in action, is not fraudulent merely because it provides that the trustee shall sell the property conveyed on demand by the cestuis que trust or either of them. Harden v. Wagner, 22 W. Va. 356. So a provision in a deed of trust on a stock ot goods: to secure creditors, which authorizes the trustee to dispose of the stock in due course of trade, does not. render the deed fraudulent on its face, nor is the deed rendered void by a failure to provide in express terms for a sale by the trustee on request of the creditors secured. Taylor v. Mahoney, 94 Va. 508, 27 S. E. Rep. 107. Similarly a conveyance to a trustee of a stock of goods to secure creditors, which authorizes the trustee to sell in the usual course of trade for a limited period, and to that end to employ clerks and salesmen, is notinvali dated by the fact that the trustee employs the grantor as his chief salesman to dispose of the stock of goods. Hurst v. Leckie, 97 Va. 550, 34 S. E. Rep. 464.
Moreover, a provision in a deed of trust for 10 per cent, commissions for the trustee, though more than provided by statute, is not evidence of fraudulent intent, this not being shown to be excessive or unreasonable compensation. Harvey v. Anderson (Va.), 24 S. E. Rep. 914.
f. Special Privileges Given to Certain Cr editor s-When Valid— The inclusion, in a deed of trust to secure certain creditors, of the balance due on a, building contract, without regard to rights of subcontractors, has little if any weight on the question whether the deed was made with fraudulent intent. Harvey v. Anderson (Va.), 24 S. E. Rep. 914.
And where a deed of trust is madeb3r an insolvent, debtor conveying his household and kitchen furniture to secure a bonafide debt due from him to his mother and payable at six months, with a provision in the deed that the creditor shall retain the possession, use and enjoyment of the property, until there is a default in the payment of the debt, at maturity, and the trustee be required by the debtor to sell the same, the conveyance is valid. Klee v. Reitzenberger, 23 W. Va. 749.
But where a deed of trust is made about the same time by the same debtor, conveying the store goods and merchandise in his store to secure other creditors, with provisions of a similar character, it is invalid; and what purports to be an absolute sale of the same goods made shortly afterwards by the debtor to the principal creditor secured in the deed of trust, without the consent of the trustee or the other creditors, in consideration of the debts secured in the deed, but without any actual delivery of the goods so sold, and the seller afterwards conducts, the store in the name of the purchaser, will be held to be a part of the same fraudulent transaction, and under the circumstances both the trust deed and the subsequent pretended sale will be held fraudulent and void as to the creditors of the grantor. Klee v. Reitzenberger, 23 W. Va. 749.
C. OASES IRRUSTRATING- CIRCUMSTANCES UNDER WHICH TRANSFERS HAVE BEEN DECLARED VARID, THOUGH ATTACKED AS FRAUDURENT.
Sale of Land by Execution Debtor.—A sale of a tract of land, by a debtor charged in execution, is not necessarily fraudulent and void as to the creditors at whose suit heis in custody, butmaybe supported-if made to a bona tide creditor, fora reasonable consideration, and without any secret agreement, or understanding between the parties, that the land is *170to be holden for the use and benefits of such debtor. Bullock v. Gordon, 4 Munf. 450.
Conveyance by Wife Immediately before Marriage. —And a conveyance made by a woman Immediately before her marriage is prima facie good, and can be impeached only by proof of fraud. Pusey v. Gardner, 21 W. Va. 469.
Thus, in Prior v. Kinney, 6 Munf. 510, an agreement was made between two unmarried sisters, that the property of the one who should die first, or be married, should, in either event, belong to the other; in consideration of which agreement, one of them, by a deed of gift executed two days before her marriage, conveyed ail her slaves to her sister, who, after the'marriage, lived partly with her, and partly with her brother; permitting the hushand (who was in embarrassed circumstances), to have the use of the slaves; except two, whom the donee retained in her own employment, and principally to wait upon herself. This deed, though admitted to record on the oath of one of the subscribing witnesses, one swearing to the handwriting of another who was dead, was adjudgéd not to be fraudulent as to the creditors of the hushand, notwithstanding a judgment for the debt had been rendered against him, and was unsatisfied, when it was executed, and when the marriage was solemnized. See Leonard v. Smith, 34 W. Va. 442, 12 S. E. Rep. 479.
Conveyance from Child to Parent.—So a conveyance from a child to its parent, whether with' or without a valuable consideration, is presumed to be valid in the absence of any circumstances of proof tending to show fraud, misrepresentation or undue influence, on reasonable ground, from which the court may presume that the act was not entirely free and voluntary on the part of the child. Pusey v. Gardner, 21 W. Va. 469.
Conveyance by Insolvent in Consideration of an Antecedent Debt—Creditor Knows of Insolvency.—
Moreover, a conveyance in consideration of an antecedent debt, from an insolvent to his creditor, without'fraudulent intent in the creditor though the creditor know of his debtor’s insolvency, does not alone stamp the conveyance as one fraudulent in fact and utterly void; but it stands for the benefit of all creditors, including the one thus preferred. Herold v. Barlow (W. Va.), 36 S. E. Rep. 8.
Title Bond Given in Husband’s Name, but Consideration Paid Outof Wife’s Separate Estate.—So in Hamilton v. Steele, 22 W. Va. 348, the court declares, that if a title bond for land is executed by a vendor of the land to a husband, and the consideration is paid by the husband as the agent-of his wife, directly from the proceeds of the sale of certain separate estate belonging to the wife, the husband having no estate or means of his own,-and the circumstances show that the purchase is made for the wife, and the deed is subsequently made by the vendor directly to the wife, such deed is not fraudulent as against the creditors of the hushand, and the land cannot he subjected to the payment of the debts of the husband’s creditors..
Consideration Composed of a Promise to Pay Off Grantor’s Debts and Abandon a Suit for Divorce.—And in Casto v. Fry, 33 W. Va. 449, 10 S. E. Rep. 799, a worthless husband, indebted to, insolvency, in pursuance of an agreement that his wife would abandon her purpose to sue for a divorce, and that she and her sons would pay certain specified debts of the hushand, which he asserted and they believed were all he owed, amounting to over $800, conveyed to a third person, who on the same daj’ conveyed to the wife, real estate worth from $600 to $800. The wife and sons at the time assumed to pay, and after-wards, iu good faith and without notice of any fraud, did pay off said debts. Upon these facts the court declared that, the conveyance was valid as against the creditors of the husband whose debts existed prior to and at the time of the conveyance, but of which the wife had no notice.
Assignment of Bond in Consideration of -Maintenance —Validity as to Existing Creditors.—Likewise in Hisle v. Rndasill, 89 Va. 519, 16 S. E. Rep. 673, two maiden ladies, the one an invalid and the other fifty-five years old, without means except certain bonds of uncertain value, assigned these bonds to a certain assignee, in consideration that this assignee would support them during their lives. The assignee did not know certain prior creditors of theirs, these creditors taking no steps to enforce their claims until more than twenty years after the assignment was made. Thenceforth they both resided with the assignee ; the invalid continuing with him twenty-three years, until her death, the other still continuing. There was no evidence that the transaction was voluntary or fraudulent. Neither assignor sough.t to annul it. The court held upon these facts that it was a contract of hazard and the bill of the prior creditor to set it aside was without merit.
Execution Creditor Purchases the Debtor’s Property and Permits It to Remain in His Possession.—So in Wilson v. Butler, 3 Munf. 559, a suit, on a bond was brought against the debtor in a county in which he did not reside; he confessed judgment on the return of the writ, and furnished the sheriff having the execution, with a list of slaves, and other property of his, to be advertised for sale at his house ; the property (without being seen.by the sheriff until the day of the sale) was advertised, and sold to the creditor, for a fair price, though uo other person bid; the creditor (whose claim was proved to he just and bona fide), being a brother of the debtor’s wife, permitted the property to remain in the debt- or’s possession, and within five years afterwards, conveyed the same, in trust, for the use of the wife and children of the debtor, by a. deed recorded in a different county from that in which the property was. The court held that none of these circumstances were considered unfair ; and the deed -was adjudged-to be good against others creditors.
Land Conveyed in Consideration of Stock—Effect as to Creditors.—And in Baker v. Naglee, 82 Va. 876, 1 S. E. Rep. 191, a grantor conveyed land, in exchange for stock, to an incorporated company, which conveyed it to secure bonds issued by it. The grantor’s creditor subsequently filed a bill, alleging that the grantor and the company were one and the same, and that the conveyance was a contrivance to hinder, delay and defraud his creditors ; and prayed that the conveyance he annulled and the issue and sale of the bonds be enjoined. The court held the .conveyance valid, the stock a valuable consideration, and that there was no proof of fraud iu the transaction.
Purchase under Deed of Assignment, by Mother and Aunt of Assignor—Subsequent Sale to Wives of Assignors—Business Managed by Husbands.—In Catlett v. Alsop (Va. 1901.) 7 Va. Law Reg. 625, a purchaser at a sale by the trustee under a deed of assignment made by a firm, was the mother of one of the partners and aunt of the other. She purchased the stock of goods for $1,500, to be credited *171on her debt of 83.000, preferred in and secured ' by the assignment. She continued business in the name of the firm as her agent. Subsequently she sold the stock to the wives of the partners on their agreement to pay her the balance due from the firm. This agreement was reduced to writing a year later. On payment of such balance, she relinquished to the wives all claim to the stock of goods, and they continued the business under the management of their husbands, but in their own names. The wives had no experience in business, nor separate estates, when they contracted to purchase the goods. The Va. Code of 1887, § 2287, allows a married woman to carry on business on her own account and § 2285 provides that her own separate estate shall not be subject to the use or control of her husband, or for his debts or liabilities. The court held, that no fraud was shown sniiicient to subject the profits of the business and property purchased therewith to the claims of the creditors.
III. RIGHTS AND LIABILITIES.
A. IMMEDIATE PARTIES.
1. VENDOR AND VKNDEJB.
a. Jn General.- A deed, though fraudulent and void as to creditors, is nevertheless valid and binding between the parties to the fraud, which brought it into existence. Core v. Cunningham, 27 W. Va. 207; Thomas v. Soper, 5 Munf. 28; Alexander v. Deneale, 2 Munf. 341; Gay v. Moseley, 2 Munf. 543; Robertson v. Ewell, 3 Munf. 1. And in Far. Bank v. Corder, 32 W. Va. 233, 9 S. E. Rep. 220, it is held to be error for the court tosetitaside in toto. Linsey v. McGannon, 9 W. Va. 154; Thornburg v. Bowmen, 37 W. Va. 538, 16 S. E. Rep. 825.
But a party who, to hinder and delay his creditors, fraudulently conveys his property to another, cannot, except under peculiar circumstances, maintain a bill to rescind the contract. The grantor and grantee being generally in pari delicto, neither is entitled to come into equity. James v. Bird, 8 Leigh 310.
And where a suit has been brought to set aside a deed as fraudulent and subject the land to the payment of a judgment, which with interest is less than $100. but the land is worth $150. the judgment debtor, and grantor, is not entitled to appeal from a decree declaring the deed fraudulent, but the grantee, whose land is subjected, the value thereof being more than $100, is entitled to an appeal. Parker v. Valentine, 27 W. Va. 677.
And where a suit has been brought to subject land to the payment of a lien, and to set aside a fraudulent conveyance, and the report of the sale has been made, and it is found that there will not be sufficient money produced by the sale to pay the lien, expense of sale and costs, there should be rendered a personal decree against all the fraudulent grantors and grantees, for whatever costs remain after providing for the payment of the liens and expenses of the sale. Hinton v. Ellis, 27 W. Va. 422.
And it is well to observe in this connection, that where property is incumbent to its full value by reason of prior liens thereon, an insolvent debtor may convey it in satisfaction of such prior liens, without rendering it subject to the provisions of section 2. ch. 74, W. Va. Code 1891: for such conveyance is not to the exclusion or prejudice of other creditors, but only amounts to the surrender of a valueless equity of redemption. Johnson v. Riley, 41 W. Va. 140, 23 S. E. Rep. 698.
b. Vendor.—Until there is a legal lien by judgment or execution fixed upon the debtor's property, he may, though insolvent or in failing circumstances, convey or transfer his estate in trust; and if it be done in good faith, he may thereby prefer one creditor to another without committing fraud, within the statute, upon the creditors who are delayed or hindered by such conveyance. Nor is it an objection that the conveyance defeats allother creditors of their legal remedies, though they be a majority in number and value. Harden v. Wagner, 22 W. Va. 356.
Claim of Homestead -Deed Annulled and Set Aside. - And where there is a fraudulent conveyance of property, which is subsequently annulled at the suit of a creditor, the grantor is not estopped as against such creditor to assert his right of homestead in the premises. Wray v. Davenport, 79 Va. 19: Marshall v. Sears, 79 Va. 49; Hatcher v. Crews, 83 Va. 371, 5 S. E. Rep. 221; Wilkinson v. Merrill, 87 Va. 513, 12 S. E. Rep. 1015; 1 Min. Inst. (4th Ed.) 910 911. See also, Mahoney v. James, 94 Va. 180, 26 S. E. Rep. 384; Shipe v. Repass, 28 Gratt. 716; Russell v. Randolph, 26 Gratt. 705; Boynton v. McNeal, 31 Gratt. 456; Calhoun v. Williams, 32 Gratt. 18: Oppenheim v. Myers (Va. 1901), 7 Va. Law Reg. 269.
In this latter case it was held, that where a bill is filed to set aside a.s fraudulent a deed made by a married woman, her husband having died leaving infant children dependent on their mother for a support; and the deed is set aside as fraudulent and the widow claims the homestead, that the right of the widow to claim the homestead is superior to the lien given creditors by § 2460, Va. Code 1887, relative to setting aside fraudulent conveyances, on filing their bill.
Sale Induced by Fraud—Vendor’s Rights.—It may be observed in this connection that the doctrine is now well established, that if the owner is fraudulently induced to sell his goods (fraud in the inducement as distinguished from fraud in esse contractus), yet the sale passes the title, and that the vendor, on discovering the fraud, may disavow the sale and reclaim the goods, provided they have not passed into the hands of a Dana flete purchaser. Oberdorfer v. Meyer, 88 Va. 384, 13 S. E. Rep. 756.
Fraudulent Vendor’s Liability to a Bona Fide Purchaser.—And in Whitehorn v. Hines, 1 Munf. 557, the court declares that a bona fide purchaser, without notice of fraud, having received a deed from two persons (one of whom fraudulently induced the other to join therein), is not responsible in equity; but the loss ought to fall on the fraudulent vendor.
c. Married Women as Vendors—Where it is clearly shown that a married woman holds a bona Jide debt against her husband, she is entitled to the same legal rights as any other creditor, except as to remedy. Righter v. Riley, 42 W. Va. 633, 26 S. E. Rep. 357. And in the absence of fraud, a settlement upon a wife by her husband, will not be disturbed unless it manifestly appears to be grossly excessive. Burwell v. Lumsden, 24 Gratt. 443; Payne v. Hutcheson, 32 Gratt. 812; Kanawha Val. Bk. v. Wilson, 25 W. Va. 242. So improvements afterwards put upon the property by the husband or father cannot be subjected by creditors to the payment of their debts, unless such improvements were put upon the property with intent to hinder, delay or defraud the creditors of the husband or father. Lockhard v. Beckley, 10 W. Va. 87.
See. in this connection, Hall v. Hyer (W. Va. 1900), 37 S. E. Rep. 594, in which case a solvent husband put improvements on his wthe's separate property *172to the amount of $1,100; afterwards, she as surety, 3 oined in a deed of trust on the property to secure his individual indebtedness to an amount in excess of $1,100. It was held that, former creditors of the husband could not attack such property because of the gift of the improvements by the husband to the wife, so long as such trust debt remained unpaid by the husband, and the wife was liable for the same, as such trust debt unpaid was equivalent to revocation of the debt.
As a consideration to support such settlement, dower to the extent of its value, or the wife’s equity in property, is deemed a valuable consideration. Walden v. Walden, 33 Gratt. 88; Burwell v. Lumsden, 24 Gratt. 443. It is further held that, the participation of the wife in the fraud of the husband will not impair her rights, where she has given an equivalent for the property out of her dower. Blanton v. Taylor, Gilmer 209. And formerly, it was settled principle of law, as declared in Clay v. Walter & Co., 79 Va. 92, that whatever the design of the grantor, a settlement on a woman in contemplation and in consideration of marriage, was valid, unless her knowledge of his intended fraud was clearly and satisfactorily proved; and it was held that service by creditors of the grantor, of written notice on the grantee before the marriage, of the grantor’s fraudulent design in making the settlement, could not affect her constructively with notice of such design, but her actual knowledge of and participation in the fraudulent design must be clearly established by proof. If valid, the wife was deemed a .purchaser for value' of the property settled on her, in consideration of the marriage, and was entitled to hold it against all the world. Herring v. Wickham, 29 Gratt. 628. See also, Moore v. Butler, 90 Va. 683, 19 S. E. Rep. 850; Triplett v. Romine, 33 Gratt. 651; Coutts v. Greenhow, 2 Munf. 363; Eppes v. Randolph, 2 Call 125; Shobe v. Carr, 3 Munf. 10; Huston v. Cantril, 11 Leigh 136; Bentley v. Harris, 2 Gratt. 357; Welles v. Cole, 6 Gratt. 645; Fones v. Rice, 9 Gratt. 568; 1 Min. Inst. (4th Ed.) 319; 6 Am. & Eng. Enc. Law (2d Ed.) 724. But see Va. Code 1887, sec. 2459, where it is provided that as against creditors whose debts were contracted at the time the conveyance or settlement was made, marriage shall no longer be a valid consideration. Barton’s Ch. Pr. (2d Ed.) 549, 550, 561, 575, 578.
Thus, the court expresses itself in Quarles v. Lacy, 4 Munf. 251; “Although it is not competent to a husband, after his marriage, to defeat or obstruct his creditors, by selling or exchanging his property, and taking a conveyance of the money or other property received therefor, to the use, or for the benefit of his wife and family (such conveyance being deemed voluntary, and fraudulent as to creditors) ; yet the case may be otherwise in relation to so much of such money or other property as goes to compensate the just interest of the wife. If,'* therefore, the wife relinquish her right of dower in other land, in consideration of such conveyance, the value of such dower ought to be saved to her, in opposition to thé daifas of her husband’s creditors.” Johnston v. Gill, 27 Gratt. 587.
But in Harrison v. Carroll, 11 Leigh 476 (1841), a husband and wife made a parol agreement, that the husband should settle personal property to the separate use of the wife, on condition that the wife would relinquish her contingent right of dower in lands of the husband, which he proposed to convey for the benefit of creditors. The settlement upon the wife was accordingly executed. Subsequent to the execution of this deed of settlement, a creditor of the husband obtained judgments against him, and sued out a Aeri facias thereon, and delivered it to the sheriff. Some time after this, the wife, in pursuance of her agreement, joined her husband in a deed conveying the lands. Upon these facts, the court held that the property settled on the wife was liable to the execution of the judgment creditor, and that it was" not proper for a court of equity to restrain the creditor from proceeding to make his debt out of same. This on the ground that the agreement which was the ostensible consideration, in no wise bound the wife, and in respect of every legal obligation on her, or remedy on the part of the husband or his creditors, the agreement was a mere nullity. And in the case of a mere parol unexecuted contract, between husband and wife, where nothing passed from the wife, no obligation was incurred, and no remedy existed to compel her to convey anything.
Moreover, where a wife is induced to unite wi th her husband in conveying away her interest in his real estate, upon condition that certain and specific property shall be settled on her in consideration of her thus parting with her rights, if such settlement is set aside and annulled at the instance of the husband’s creditors, she has the right to be placed in the same position, and restored to the same rights, with which she was invested by law before she united in the deed of which the specific settlement was the consideration. However, this must be without prejudice to the rights of creditors or purchasers. Davis v. Davis, 25 Gratt. 587. So if property of the wife which a court of equity would direct to be settled upon her, is conveyed by the husband to a trustee for her benefit, the court will sustain the deed against creditors of the husband. Poindexter v. Jeffries, 15 Gratt. 363. And in Bentley v. Harris, 2 Gratt. 357, it is held, that if an embarrassed debtor makes a voluntary conveyance of personal property, to an unmarried female, and afterwards, upon her marriage, the property is settled to the use of the wife for life, and at her death to her children, it is not liable for the debts of the first donor. Bentley v. Harris, 2 Gratt. 357.
But, if it appears that the wife actively participated in the attempt to sustain a conveyance by claiming that a conditional and unfounded indebtedness is a part of the consideration for the property, the conveyance will be treated as fraudulent in fact, and void in tolo as to the creditors of the husband, and will not be permitted to stand as security to the wife for the valid portion of the consideration paid by her, as against the creditors of her husband. Webb v. Ingham, 29 W. Va. 389, 1 S. E. Rep. 816.
d. Vendee.
(a) In General.
If the grantee in a deed be a bona Ade purchaser for a valuable consideration, his or her title is unassailable, whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud, to invalidate the deed. Herring v. Wickham, 29 Gratt. 628.
Moreover, where there is no pretense of fraud in procuring a deed, creditors of a grantor upon debts contracted since the execution of the deed cannot subject the land to the payment of their debts. Irvine v. Greever, 32 Gratt. 411.
And to avoid a deed at the suit of a subsequent *173creditor, actual fraud must be shown. Johnston v. Zane, 11 Gratt. 552.
Thus, in Fischer v. Lee, 98 Va. 159, 35 S. E. Rep. 441, the court declares, that proof of the fraud of a grantor or transferrer of property is not sufficient of itself to avoid an assignment or transfer thereof, where value has been paid, but it must also be proved that the grantee or transferee had notice of the fraud or evil design of his vendor, or of facts and circumstances naturally calculated to excite suspicion in the mind of a person of ordinary care and prudence, and which would naturally prompt him to inquire before consummating the purchase, and that such enquiry, if diligently pursued, would have led to the knowledge or notice sought to be imputed.
And the doctrine is similarly stated in Newberry v. Bank of Princeton, 98 Va. 471, 36 S. E. Rep. 515, where it is said, that if the grantee in a fraudulent deed had knowledge, at the time of the conveyance, of facts and circumstances which were naturally and justly calculated to excite suspicion in the mind of a person of ordinary care and prudence, and which would naturally prompt him to pause and inquire before consummating the transaction, and such inquiry would have necessarily led to a discovery of the fact with notice of which he is sought to be charged, he will be considered to be affected with such notice, whether he made inquiry or not. But while the fact of notice may be inferred from circumstances, as well as proved by direct evidence, yet the proof must be such as to affect the conscience of the purchaser, and must be so strong and clear as to fix upon him the imputation of mala fides.
But it should be noted that, if a debtor in Ms lifetime conveys his lands to a grantee by deed, and after the death of the debtor certain of liis creditors file their bill to set aside the deed as fraudulent and to subject the lands to the payment of their debts, the grantee of such lands may contest the claims of the creditors on the ground that they are barred by the statute of limitations or otherwise. Werdenbaugh v. Reid, 20 W. Va. 588.
In a suit to set avside a fraudulent deed, where it appears that the grantee acquired notice of the fraud before he had paid bonds given for deferred payments of purchase money, and also had notice of the plaintiff's execution against his grantor, a decree should he entered against the grantee in favor of the plaintiff for the amount of such bonds and the interest thereon from maturity. Newberry v. Bank of Princeton, 98 Va. 471. 36 S. E. Rep. 515.
And if a grantor conveys a tract of land to a grantee with intent to defraud his creditors, of which the grantee has notice, and the grantee conveys the land to an innocent purchaser for value, and the first grantee receives this sum, which is proved by the evidence in the cause, and the court sets aside the deed from the first grantor to the first grantee, for fraud, and renders a personal decree for the amount with interest which the first grantee received for the land, it is no error. And there is no necessity for an account to see what the value of the land is. unless the appellant is dissatisfied with the value as fixed by the first grantee, as the first grantee is not prejudiced by being required to pay only what he received in fraud of the creditors of the first grantor. Hinton v. Ellis, 27 W. Va. 422. So there may be a money recovery against a fraudulent grantee of property who has sold such property to a bona Me purchaser and realized money therefrom in favor of the defrauded creditor. Ringold v. Suiter, 35 W. Va. 186, 13 S. E. Rep. 46.
In Williamson v. Goodwyn, 9 Gratt. 503, the vendor sold a number of slaves at a price much below their value, for the purpose of defrauding his creditors, and soon afterwards died. The vendee executed to him her bonds for the purchase money, and the vendor assigned the bonds to bona fide creditors. The vendee sold a part of the property and discharged the bond, and then conveyed the remainder of the property to the widow and child of her vendor. Upon the bill filed by the creditors of the deceased vendor to set aside these deeds as fraudulent, the court set them aside, and the property conveyed in the last of them was sold and the proceeds were applied to pay the claims of the creditors. And as all the creditors of the deceased vendor were not satisfied out of this fund, his vendee was held liable to satisfy them to the extent of the price of the property sold by her, the vendee.
Moreover, if a deed be set aside as fraudulent and void as to creditors of the grantor, because the same was made with intent to hinder, delay and defraud such creditors, and a part of the consideration of such deed was the satisfaction of a bona fide debt due from the grantor to the grantee, such fraudulent grantee is not entitled to charge the lands thereby attempted to be conveyed with the amount of such bona fide debt. Kan. Val. Bk. v. Wilson, 25 W. Va. 242.
(b) Bona Fide Purchasers.- See post, “Deeds of Trust.”
Under ch. 74, W. Va. Code 1900, a bona fide purchaser for valuable consideration, who has no notice of the fraudulent intent on the part of his immediate grantor, and the fraud rendering the title of such grantor void, is protected. Root-Tea-Na-Herb Co. v. Rightmire (W. Va.), 36 S. E. Rep. 359. See Goshorn v. Snodgrass, 17 W. Va. 717; Va. Code 1887, § 2458; Garland v. Rives, 4 Rand. 282; Lockhard v. Beckley, 10 W. Va. 88.
But one, who purchases from a fraudulent grantee with notice of the fraud and of the invalidity of his title, can acquire no better right than the fraudulent grantee has. He cannot be protected as a bona fide purchaser, but must stand in the shoes of his grantor. Goshorn v. Snodgrass, 17 W. Va. 717; Spence v. Smith, 34 W. Va. 697, 12 S. F. Rep. 828.
Nevertheless, a bona fide sale, for a fair price, to an innocent purchaser, should not he set aside at the instance of the creditor of the grantor, on the grounds of alleged fraud, for the sole reason that in the opinion of sundry witnesses the property might have brought a larger price if sold on credit. Douglass v. Douglass, 41 W. Va. 13, 23 S. E. Rep. 671.
Moreover, if a person defrauds another of slaves, and afterwards makes a deed conveying them, to a trustee to secure a debt, and the trustee sells the property to a bona fide purchaser for value and without notice, and the purchaser then conveys the property to a third person, the latter purchaser is entitled to hold the slaves against the person defrauded, whether he had notice of the fraud or not. In the former case, he holds a valid title under the purchaser; in the latter, he is himself a bona fide purchaser without notice of the fraud. Montgomery v. Rose, 1 P. & H. 5. And where a deed conveys and assigns property in trust, to be applied to discharging a bond ‘executed by a wealthy and unembarrassed father to his daughter, to be paid to her on her marriage, it is valid as against creditors of the father, becoming such after the marriage of *174the daughter, although at the time of the execution of the deed, the father was embarrassed to insolvency. Welles v. Cole, 6 Gratt. 645, So where a child, who is an infant, is deemed a purchaser for valuable consideration, of a slave, the circumstance that the child resides in the family of its father, and there keeps the slave, over whom it exercises every act of ownership, will not entitle the creditors of the father to disturb the possession of the child, although the father had included the slave in a mortgage, to indemnify the mortgage against certain securityships. Braxton v. Gaines, 4 H. & M. 151.
Moreover, upon a bona Mo sale of personal property though the vendee does not take possession at the time of the sale, yet if he does get possession before an execution is issued against the vendor, his title is good as against the creditors of the vendor. So also, where a bona Me vendee of personal property has gotten possession of the property before the issuing of an execution against the vendor, his title is good as against the creditor of the vendor, though after such possession by the vendee, he employs the vendor as his agent to sell the property; an d the vendor is in possession as the agent of the vendee at the very time that the execution issues, and is levied upon it. M’Kinley v. Ensell, 2 Gratt. 333.
And although, if a son obtain a conveyance for land purchased by his father, the conveyance may be set aside for fraud by a creditor of the father, whilst the land is in the hands of the son; yet, if the son sell and convey the land to a third person for valuable consideration, who has no notice of the fraud between father and son, such third person being a bona Me purchaser, will be protected in his purchase against creditors of the father from the operation of the statute of frauds, by his proviso. Coleman v. Cocke, 6 Rand. 618.
However, a widow having received her distributable share of the personal estate of her husband, is not a purchaser for value, so as to be entitled to set up the defence of purchaser for value without notice. And if in such case the husband has obtained slaves by a conveyance fraudulent as to the creditors and grantor, and one of the slaves has been allotted to the widow, a slave in her possession may be taken in execution at the suit of the creditor of the grantor, though the husband and those claiming under him have been in possession of the slave more than five years. Snoddy v. Haskins, 12 Gratt. 363.
It is to be further observed, however, that if a bona Me purchaser, without notice of fraud, who has received a deed from two persons (one of whom fraudulently induced the other to join therein), is not responsible in equity; but the loss ought to fall on the fraudulent vendor. Whitehorn v. Hines, 1 Munf. 557.
2. Trustee and Cestui Que Trust.—In order to make void a deed of trust, notice of the grantor’s fraudulent intent must in some way be brought home to the trustee, or to the creditor. Douglass, etc., Co. v. Laird, 37 W. Va. 687, 17 S. E. Rep. 188; Baer Sons, etc., v. Williams, 43 W. Va. 323, 27 S. E. Rep. 345. Thus, a deed which conveys land to secure a bona Mo debt due to the grantee, and also a debt to the grantor’s wife, which is voluntary and fraudulent as to his creditors, and the nature of which debt is known to the grantee, is null and void as a security for the first as well as the last-mentioned debt, as against subsequent incumbrancers and creditors of the grantor. Lewis v. Caperton, 8 Gratt. 148.
It is a settled principle, nevertheless, that the beneficiaries in a deed of trust are affected with notice to the trustee, although he did not know of the existence of the deed or of an intention to make it until it was recorded, and then immediately declined the trust. Merchants’ Bank v. Ballou, 98 Va. 112, 32 S. E. Rep. 481.
But where a trust deed secures many debts in separate classes or to different persons, the simple fact that a part of the debts secured are shown to be invalid or voluntary will not make the deed invalid as a security for other and bona Me debts secured therein. Cohn v. Ward, 32 W. Va. 34, 9 S. E. Rep. 41. However, a debtor cannot convey his property to a trustee to secure creditors and reserve an interest in or control over the property inconsistent with the grant, and adequate to its defeat, but a direction of the trustee, “when so required by the creditors, to take charge of said property’ and sell the same at public auction” is not of itself such reservation of interest or control as to avoid the deed. Stoneburner v. Motley, 95 Va. 784, 30 S. E. Rep. 364.
It must be observed that the trustee and beneficiaries in a deed to secure bona Me debts, without notice, are purchasers for valuable consideration, within the meaning of the exception in the statute, Va. Code 1849, ch. 188, § 3, p. 717; Va. Code 1887, § 3601; and will be preferred to an execution creditor of the grantor in the deed, as to a chose in action thereby conveyed. Evans v. Greenhow, 15 Gratt. 153.
Still, if a sale be fraudulent (so as to render the sale void as between the purchaser, or cestui que trust, and the creditors of the original debtor), yet if the deed is good, it still operates to shield the property (conveyed for the benefit of the cestui que trust) from the execution of the creditors of the original debtor; in other words, it operates as effectually to prevent an execution from being levied on the property as if there had been no sale. Claytor v. Anthony, 6 Rand. 285.
And although a party to whom property is conveyed upon a fraudulent secret trust, may hold it as his own, against the grantor and his representatives, yet, if the grantee assents to the trust, and executes it in part, it is not competent for such of the cestuis que trust as may have gotten possession of the property, to set up the fraud for the purpose of defeating the claim of the other cestuis que trustent to their share of the property. Turner v. Campbell, 3 Gratt. 77.
3. Mortgagor and Mortgagee.—The possession remaining with the mortgagor, for five years, without demand made and pursued by process of law on the part of the mortgagees, does not make a case in which, under the statute of frauds the property is taken to be with the possession, and liable to the creditors of the person in possession. Rose v. Burgess, 10 Leigh 186.
4. Loaner and Loanee.—If a debtor remains in possession of slaves for five years, under a parol loan, they are liable to satisfy his creditors, though the possession is resumed by the lender before executions are levied upon them. Beale v. Digges, 6 Gratt. 582; Va. Code 1887, § 2461.
And In Lacy v. Wilson, 4 Munf. 313 (1814), a similar provision to section 2461 of Va. Code 1887, in force in 1814, was construed. The court declared that, the loan of the slave by a father to his daughter during her life, and a gift over to her children after her *175death (being admitted to record on proof by one witness only), is not good against her husband’s creditors, or purchaser from him, without notice of such deed ; possession of such slaves having remained with the husband for five years without interruption. See Beasley v. Owen, 3 H. & M. 449.
So in Gay v. Moseley, 2 Munf. 543, it was held that, a slave lent either before or after the act to prevent frauds and perjuries, having remained since the commencement of that act, more than five years in the loanee's possession, without any demand made on the part of the lender, must be considered the absolute property of the party so remaining in possession. as to creditors of, and purchasers under him.
A similar but inore extensive doctrine was expounded in Fitzhugh v. Anderson, 2 H. & M. 289, in which case a father, anterior to our statute of frauds, having delivered certain slaves to his son, which were proved by verbal evidence (without any deed of writing), to have been lent, for an indefinite period, and the son having retained the uninterrupted possession for many years, used the property as his own, and acquired credit on the strength of his possession ; in a controversy between the father, or volunteer claimants under him, and creditors of, or fair purchasers from the son, the court said that, “the father shall be deemed to have given him the slaves ; and on general principies of law and equity, independently of any statutory provision, the title of the creditors and purchasers will be protected. The circumstance that the father, afterwards, by his j last will and testament, bequeathed the slaves to the son for life, remainder to his children, makes no difference in the case.”
Moreover, a demand of slaves by the lender, who thereupon receives, and immediately redelivers them to the loanee, to be held on the same terms, as be fore such demand, receipt and redelivery being in private, is not sufficient to bar the rights of creditors, under the act to prevent frauds and perjuries. Boyd v. Stainback, 5 Munf. 305.
And where possession has remained with the loanee, or with those claiming under him for five years, and is then assumed by the lender, the possession must continue with the lender thefull period of five years from th e time it was actually assumed, before the title will be revested in the lender as against the creditor of the loanee. Pate v. Baker, 8 Leigh 80.
But a loan of slaves, though not declared by deed in writing duly recorded, and therefore void as to creditors, the loanee having continued in possession five years without such demand, aft would bar their right, is nevertheless effectual between the parties and their representatives. If. therefore, the loanee die in possession of such slaves, they are not to be considered assets belonging to his estate, nor can they be recovered as such ; but they are liable to his creditors so far as their claims remain unsatisfied by the assets in the hands of his executor or administrator, but no farther. Boyd v. Stainback, 5 Munf. 305.
And where a father sends a slave to his son upon a loan, but the agent who takes the slave to his son neglects to inform him that the slave is a loan, such neglect of the agent does not affect the right of the father to have the slave considered as a loan. Consequently, if the father dies within five years from the time when the slave so went into possession of the son. and having by his will disposed of the slave* of which the administrator of the son has notice, the slave may be recovered for the father’s estate, after five years from the loan. Dickinson v. Dickinson, 2 Gratt. 493 (1846).
5. Donor and Donee.—Til Wilson v. Buchanan, 7 Gratt. 334, one Webb, who was largely indebted in proportion to his property, made a gift of slaves to his married daughter, and her husband remained in possession of them for eight years. .Judgment having been recovered on some of these debts, and also on other debts contracted since the gilt, Buchanan became the surety of Webb in the forthcoming bonds; and was" compelled to pay them. Afterwards he tecovered judgment against Wilson for the amount paid by him on behalf of Webb, and as all the property of Webb had been sold at that time, by the direction of Buchanan, his (Buchanan's) executions were levied on the slaves given by Webb to his daughter, and their increase. Suit iva» instituted by Wilson, the son-in-law, in whose possession the slaves had been, against Buchanan and the sheriff who made the levy. The court held that, the slaves were liable to satisfy the debts of Webb.
6. Assignor and Assignee.—The assignment of a promissory note carries with it all remedies of the assignor, including the right to attack a fraudulent conveyance. Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. Rep. 812.
And, although an assignee of a bond which has been taken in payment of purchase money of land, may have notice of fraud in the sale of land, yet he cannot be placed in a worse condition than his assignor, the vendor, with reference to the payment of the purchase money. Highland v. Highland, 5 W. Va. 63.
B. THIRD PERSONS.
1. Creditors.
a. In General.--Any creditor who has been injured by a fraudulent deed has the right to the protection of the court; and the legal rights of .such creditors cannot be made to depend upon what any other creditor, or a majority of the creditors, may say or do with regard to the debtor’s property after the preferred creditors have been satisfied. Landeman v. Wilson, 29 W. Va. 702, 2 S. E. Rep. 203. And a. creditor at large may maintain a suit in equity to set aside as fraudulent a deed conveying real estate, made by his debtor, both the debtor and his grantee living and being out of the commonwealth. Peay v. Morrison, 10 Gratt. 149.
Moreover, if a deed of trust secures several creditors, and one or more of the debts secured is fictitious and fraudulent, that fact does not invalidate the deed as to bona fide creditors secured by it, not guilty of any fraud. Cohn v. Ward, 36 W. Va. 516, 15 S. E. Rep. 140.
But it should be observed, that a creditor cannot purchase the goods of his debtor at a price in excess of his debt, when he knows that the excess so paid such debtor is by the latter to be placed beyond the reach of his other creditors. Such purchaser is a participant in the fraud of his debtor, whether his purpose be to aid him or not. Hart v. Sandy, 39 W. Va. 644, 20 S. E. Rep. 665.
Yet the statute to prevent fraudulent conveyanees applies to no conveyance made bona fide for valuable consideration, and does not prevent a debtor in failing circumstances from preferring one class of creditors to another. However, in such case, the judgment creditor has a right to an account of the trust fund, and to the payment ol his debt out of the surplus, if any, after satisfying- the pre*176ferred creditors and those who accede to the composition. Skipwith v. Cunningham, 8 Leigh 271.
And it is held in Trapnell v. Conklyn, 37 W. Va. 242, 16 S. E. Rep. 570, that the fact, that an insolvent husband voluntarily bestowing his labor and skill in the business of farming carried on by his wife upon land which is her separate property, will not, in the absence of fraud, render the products of the property of the husband liable for his debts. If such products, after the support of the family, leave a surplus in property attributable to his skill and labor, equity will make a just apportionment between his wife and creditors. But see W. Va. Code 1899, ch. 74, § 2; Va. Code 1887, § 2459. Also, ante, "Transfers Which Are Inoperative as to Certain Persons Though Not Affected with Fraud in Fact.”
l>. Bights and Liabilities of Creditors under Transfers Not Affected with Actual Fraud.
In General.—A voluntary conveyance which interferes with, or breaks in upon the rights of existing creditors, will not be permitted to take effect to the prejudice of their just demands, but as to such creditors is absolutely void, without regard to the amount of the debts, the extent of the property so conveyed, the motives that prompted the settlement, or the condition or circumstances of the party at the time. Lockhard v. Beckley, 10 W. Va. 87.
And if there is an absolute bill of sale of certain personal property for valuable consideration, and the vendor notwithstanding the deed retains uninterrupted possession, and dies in possession of the property, although the vendee takes possession after his death, a creditor of the vendor, who takes administration of the estate, may file a bill in equity against the vendee, and subject such property to the debt due to the administrator, as it is fraudulent and void as to the administrator, who is also a creditor of the vendor. The rights of the vendor’s creditors attach on the subject immediately upon the vendor’s death,—-therefore before the vendee came into possession. Shields v. Anderson, 3 Leigh 729. This case supposes that the bill of sale was not recorded.
So if a man incur debts for moneys advanced or loaned to him, which with large amounts of other moneys of his own, are voluntary and without consideration deemed valuable in law, used and invested by him in making valuable improvements upon the real estate so settled upon his wife, and in consequence thereof he becomes insolvent, and the moneys so advanced or loaned to him remain unpaid, such creditors may charge the moneys upon the real estate in the possession of his wife. Kan. Val. Bk. v. Wilson, 25 W. Va. 242.
And under Va. Code 1887, § 2459, so far as the means of an insured are withdrawn from creditors to pay premiums, they are entitled out of the proceeds of the policy to have the sums so paid, applied to their claims. Stigler v. Stigler, 77 Va. 163.
This principle is illustrated, though in its application to a different set of circumstances, in Rose v. Brown, 11 W. Va. 122. In this case a husband procured a voluntary conveyance to be made to his wife, of a house and lot. At the time the conveyance was made, he was not indebted more than $218. On that day there was paid on the property $1,500, which he had before given to his wife, and within the next two years he had $3,000, which from time to time, he paid on said property, and discharged the purchase money; and debts to the amountof about $1,250 had afterwards accumulated, after such conveyance and during the time such payments were being made. TJpon these facts being presented the court held that they were insufficient to make a prima facie case of fraudulent intent, on the part of the husband, at the time the voluntary conveyance was by him procured to be made, consequently, the conveyance was not fraudulent in fact. But, nevertheless, in fraud of his existing creditors, he did divert his means from the payment of his debts, and invest such means in the property, so voluntarily conveyed to his wife ; therefore his creditors could charge the real estate for the payment thereof.
Surrender by Grantee of a Deed of Gift—Effect on Creditors of Grantee.—And in Graysons v. Richards, 10 Leigh 57, the father by deed of gift conveyed land to his son, and shortly after this conveyance, the son voluntarily surrendered the deed to the father to be canceled, with design to divest the title out of himself and restore it to the father, to the deed so canceled. The court held, upon these facts, that the son’s title was not divested by the cancellation of the deed, and that the land was chargeable in equity with the debts of the son. And further, if the creditor had obtained a judgment against the son, subsequent to the cancellation of the deed, under which the son had taken the oath of insolvency, he was not only entitled to satisfaction of his judgment out of the land as still the property of the son, but he could also claim satisfaction out of it by the simple contract debt which the son owed him ; and other creditors of the son, who had not recovered judgments against him, but came in at the same time, should also be entertained to claim satisfaction of the debts due them out of the same amount.
Insolvent Father Pays Part of Purchase Money and Has Land Conveyed to Son—Rights of Father’s Cred - itors.—So in Burbridge v. Higgins, 6 Gratt. 119, aperson who was largely indebted, purchased land and paid a part of the purchase money, and had the land conveyed to his son ; subsequently the son conveyed it in trust to secure the balance of the purchase money. The son then sold the land to a third person at an advance upon the price given by the father. After this a decree creditor of the father filed a bill to set aside the conveyance as fraudulent against creditors ; and pending this suit the balance of the original purchase money was paid by the last purchaser out of the money due from him to the son. The court held that, the deed of trust given to secure the balance of the purchase money on the first sale, being still outstanding, though satisfied after the commencement of the suit, the plaintiff was entitled to have the whole of the purchase money, after satisfying the trust, and not a moiety only, applied to the discharge of his debt.
c. Bights and Liabilities of Creditors under Transfers Fraudulent in Fact.
In General.—Where a deed is fraudulent as to any provision therein contained, it is void in toto as against creditors who are entitled to take advantage of the fraud. Landeman v. Wilson, 29 W. Va. 702, 2 S. E. Rep. 203.
So where it is shown, that there was fraud in the making of the deed conveying real estate, whether the actual fraudulent intent relates to existing creditors or is directed exclusively against subsequent creditors, the effect is precisely the same, and subsequent as well as existing creditors may, for such’fraud successfully impeach said conveyance. *177Silverman v. Greaser, 27 W. Va. 550; Lockhard v. Beckley, 10 W. Va. 88.
And a conveyance fraudulent as to existing creditors us fraudulent as to subsequent ones. Pratt v. Cox, 22 Gratt. 330; Johnson v. Wagner, 76 Va. 587; Lockhard v. Beckley, 10 W. Va. 101; Core v. Cunningham, 27 W. Va. 206.
Moreover, under a deed fraudulent on its face no valid act can be done to the prejudice of creditors not secured therein. Livesay v. Beard, 22 W. Va. 585.
Creditors’ Right to Personal Decree.—And creditors who successfully assail a fraudulent conveyance made by their debtor, are entitled to a personal decree against the fraudulent alienee, when the latter has, in the meanwhile, aliened the property to a third person. The amount of such personal decree is not limited to the price i^aid by the fraudulent alienee, nor to the price received by him in a subsequent alienation, but by the actual value of the debtor’s interest in the property, not to exceed, however, the amount of the plaintiffs’ claims against him.
And in such a case, if actual fraud has been established against the alienee, he will not be permitted to set off against the value of the debtor's property received by him, a debt due to him by the debtor, even though such debt was a part of the consideration for the conveyance. Ellington v. Moore (Va. 1897), 4 Va. Law Reg. 608.
Property Conveyed on Secret Trust—Rights of Grantor’s Creditors.—So where a vendor makes a fraudulent bill of sale of a female slave, absolute on its face, in order to protect the property from his creditors, but there is a secret trust that the grantee shall hold the property for the benefit of grantor’s daughters, the daughters cannot establish a secret trust in equity, and have the decree for the slave as against the creditors of the grantor. Owen v. Sharp, 12 Leigh 439.
d. Oompromises by ÜreáMors.—Under the Va. Code of 1887, §§ 2856, 2857, and 2859, regarding compromises by creditors, a creditor who compromises with one of several joint obligors, and assigns his full share of the obligation, may sue the other obligors without making the released obligor a party. And by such compromise the right of contribution between the joint obligors is not, under these sections, impaired. Penn v. Bahnson, 89 Va. 253, 15 S. E. Rep. 586.
Right to Uphold Validity of Some Debts and Assail Others.—And a creditor secured by a deed of trust, while claiming under the deed, may, nevertheless, assail the validity of other debts secured in the same deed. His attitude as purchaser does not impair his right as creditor to assail such debts as fraudulent or otherwise void. Runkle v. Runkle (Va. 1900), 6 Va. Law Reg. 613.
2. State.—The state has the same right as one of its citizens to maintain a suit in equity to set aside a fraudulent conveyance, and subject the land of the defendant to its demands. Thus, the state can maintain a suit to set aside a fraudulent conveyance and subject the land of the defendant to the payment of a judgment for a fine recovered against the defendant for the unlawful sale of spirituous and other liquors. State v. Burkeholder, 30 W. Va. 593, 5 S. E. Rep. 439.
3. Subsequent Purchasers.—A purchaser with notice, who buys of a purchaser without notice, will not be affected by a deed which declares the transfer of certain chatteli>roperty tobe a loan, but which is invalid as to a purchaser without notice, from the loanee, because not recorded as required bylaw. Lacy v. Wilson, 4 Munf. 313.
So if a purchaser with notice, buys from a bona fide purchaser for value, and without notice from a trustee who makes a tortious sale, he will take a valid title. This is done out of respect for the title of the bona fide purchaser, who otherwise would not receive the protection which his position entitles him to. Montgomery v. Rose, 1 P. & H. 5.
And as held in Coleman v. Cocke, 6 Rand. 618, although if a son obtain a conveyance for land purchased by his father, the conveyance may be set aside for fraud by a creditor of the father, whilst the land is in the hands of the son; yet, if the son sell and convey the land to a third person for valuable consideration, who has no notice of the fraud, between the father and the son, such third person being a bona fide purchaser, he will be protected in his purchase against the creditors of the father, from the operation of the statute of frauds, by its proviso (Code 1887, § 2458). And ii the deed of such bona fide purchaser be not duly recorded, yet he will be protected in his purchase against a creditor of the father, who obtains a decree against the father, after the bona fide purchase so made, because such a purchaser has a prior equity to such creditor. For, if the original vendor had never made a deed to the son, yet the purchaser, holding the equitable title transferred from the father to the son, and from the son to him, would have had a better right to call on the original vendor for the conveyance of the legal title, than any creditor of the father obtaining a judgment against him, after his transfer of the equitable right to the son.
IV. REMEDIES.
A. IN GENERAL.—Where a debtor makes divers fraudulent conveyances to different grantees, all colluding with him to defraud his creditors, the latter may proceed, by a single creditor’s bill to assail them, or any one or more, of such conveyances; and, as there is no contribution among tortfeasors, the fraudulent alienees who are made parties cannot complain that others in the same category are omitted. Ellington v. Moore, 4 Va. Law Reg. 608 (Va. 1897).
And in Commonwealth v. Ricks, 1 Gratt. 416, it is held, that a court of equity will, at the suit of a creditor of an insolvent debtor, pursue property, the avails of his labor, in the hands of parties united with him, to screen the same from his creditors, or in the hands of voluntary purchasers from such i)arties.
But a court of equity, upon the application of the grantor, will not interfere to set aside a conveyance made to hinder, delay and defraud creditors, on the ground of the natural weakness of mind, increased by habits of intoxication, of the grantor, if he had legal capacity to contract, unless it is shown that some advantage was taken, or undue influence exerted, to procure the conveyance. Smith v. Elliott, 1 P. & H. 307.
B. EQUITY JURISDICTION.
1. In General..—In cases of actual fraud, a court of equity has concurrent jurisdiction with a court of law, in remedying the fraud. And equity usually follows the law, and gives relief to the same extent as a court of law. And therefore, where a creditor comes into equity to set aside a conveyance tainted with actual fraud, and the grantee has notice of the *178fraud, the conveyance should be set aside in toto. Garland v. Rives, 4 Rand. 282.
Thus, where an eleait is levied on land of the debtor, but the inquisition does not set out the moiety by metes and bounds, and possession is not delivered to the creditor; and the debtor makes a conveyance of the land to third persons; and after-wards the eleait and return are quashed, on the motion of the creditor, who then files a bill impeaching the conveyance as fraudulent, a court of equity has jurisdiction to entertain the suit. Claiborne v. Gross, 7 Leigh 331.
But in a bill in chancery, against a debtor, as an absent debtor or defendant, and other defendants resident, holding lands by voluntary or fraudulent conveyances from the debtor, to have a decree against the debtor for the debt, and against the home defendants to subject the lands to the debt, the bill, in order to give the court jurisdiction, under the statute concerning attachments and suits against absent defendants, 1 Rev. Code, ch. 123, must distinctly aver the nonresidence of the debtor; and, if the home defendants in their answers say that the debtor is a resident, though they do not plead that matter in abatement to the jurisdiction, the plaintiff, to sustain the jurisdiction, must prom the fact of the debtor’s residence abroad; and if his nonresidence be not distinctly averred in the bill, or if so, denied by the home defendants, be not proved, the court has no jurisdiction, and a decree for the plaintiff will be reversed on that ground. Kelso v. Blackburn, 3 Leigh 299.
Likewise, to give a court in which a homestead deed, claiming goods as exempt, is attacked as in fraud of creditors, jurisdiction over the goods, there must be a valid attachment thereof, and the attachment being dismissed, the suit should also be dismissed. Simon v. Ellison (Va.), 22 S. E. Rep. 860.
Nevertheless, in a case where a court of equity has jurisdiction of the subject-matter of the suit, whatever may be the nature or amount of the demand, the parties thereto are not entitled to a trial by a jury, exceptwhere the same is prescribed by law. Broderick v. Broderick, 28 W. Va. 378.
It should be noted, however, that a transfer from one joint debtor to another will not give equity jurisdiction to entertain a suit by the creditor of the grantor, in advance of lien by judgment or otherwise. to subject the property to his debt. Such conveyance does not come within the operation of the statute (W. Va. Code 1891, § 2, ch. 133) relating to fraudulent conveyances. The mere statement in the bill that the conveyance was from one joint debtor to the other would seem to repel any imputation of fraudulent intent, and make the bill demurrable. Moreover, the deed does not remove the property out of the reach of the usual remedy. So there is no ground for chancery jurisdiction.
So where a grantee in a fraudulent conveyance has reconveyed theproperty to the debtor (grantor), a court of equity has no jurisdiction of a suit by the creditor to subject the property, in advance of a lien by judgment or otherwise, merely because of such fraudulent conveyance. Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. Rep. 874; Witz v. Lockridge, 39 W. Va. 463, 19 S. E. Rep. 876.
2. Statute or Limitations as a Bar to Instituting Suit.
a. Voluntary Oonveyances.—'The limitation of a suit to avoid an absolute conveyance on the sole grouhd that it is voluntary is five years from the time "the right to avoid it accrued” (Va. Code 1887, § 2929). The provision as it originally appeared in Va. Code 1849, ch. 149, § 13, and as it now appears in W. Va. Code 1899, ch. 104, § 14, reads, “five years from the making of the deed, ” etc.; and in Reynolds v. Gawthrop, 37 W. Va. 3, 16 S. E. Rep. 364, the court so construes it, declaring that the .period of limitation begins to run from "the making” of the deed. Humphrey v. Spencer, 36 W. Va. 11, 14 S. E. Rep. 410; McCue v. McCue, 41 W. Va. 151, 23 S. E. Rep. 689; Scraggs v. Hill, 43 W. Va. 162, 27 S. E. Rep. 310. In Bickle v. Chrisman, 76 Va. 687, the point was made by the plaintiff, that “the limitation did not begin to run, until there was a right of action.” The court declared that this was undoubtedly correct with respect to almost all of our statutes of limitation, but under the provision as contained in Va. Code 1873, ch. 146, § 16 (identical with § 13, ch. 149, Va. Code 1849), the statute began to run 'from the date of the execution of the deed," and not, as usual under our statutes, from the time the right of action accrued. This distinction is also made in Welsh v. Solenberger, 85 Va. 445, 8 S. E. Rep. 91, decided in 1888, shortly after the Code of 1887 took effect. The change as contained in the Code of 1887, providing that the statute should begin to run from the accrual of the right of action, was evidently made for the purpose of relieving creditors against the hardships of the former law. If such was the intention, it was accomplished to an extent, yet the law as it thus stood was not wholly satisfactory, as no right of action would accrue, until there was a right to recover on the claim, which might not mature for years after the making of the conveyance. This inconvenience was overcome, and remedied, by Acts 1893-94, ch. 566, pp. 614, 615, amending and re-enacting § 2460 of the Code, and providing that “a creditor, before obtaining a j udgment or decree for his claim, may, whether such claim be due andpayable or not, institute suit to avoid the gif t, conveyance,” etc. The above is substantially the opinion as expressed in an editorial by Judge Burks, 1 Va. Law Reg. 597, before the construction of the amendment by the Virginia Court of Appeals. The learned jurist concludes as follows, “that, under the law as it now stands, inasmuch as a creditor may institute and prosecute a suit to avoid a conveyance at any time before his’ claim has ‘become due and payable,’ the five years prescribed by section 2929 must be computed from the time his right accrued to avoid the conveyance under section 2460 as amended by the Act of 1894, though his claim be not due and payable.” Therefore the statute would begin to run from the time the voluntary conveyance is made, no question of fraudulent concealment being brought into the case. The above conclusion is reached in Vashon v. Barrett (Va. 1901), 7 Va. Law Reg. 36.
But by the terms of § 2467 of the Va. Code 1878. prior to the late amendment (Acts 1895-96, p. 295, prescribing “ten” instead of “twenty” days), if the conveyance is recorded days due acknowledgment, it is as valid against creditors, as if recorded on the day of acknowledgment. And the act of limitation to suits to avoid voluntary con. veyances does not cease to run simply no settlement has been had between parties, and the exact amount due has not been ascertained. So the mere fact that a creditor does not know that the conveyance made by his debtor is without consideration, does not stop the running of the statute of limitations. To have that effect such ignorance must proceed the of the grantee, and this should be plainly charged. The burden of proving *179that the transfer, alleged tobe voluntary, was made more than live years before the institution of the suit to have it set aside, is on the party pleading the statute. Vashon v. Barrett (Va. 1901), 7 Va. Law Reg. 36. And the limitation applies to a marriage settlement also, attacked upon the ground of its being voluntary. McCue v. Harris, 86 Va. 687, 10 S. E. Rep. 981. See, in general connection, Snoddy v. Haskins, 12 Gratt. 363; Williams v. Blakey, 76 Va. 254.
b. Effect When Fraud Is an Element.— Under the Va. Code 1887, § 2929. limiting the period in which suits may be brought to set aside conveyances or transfers of property, on consideration not deemed valuable in law, cases of actual fraud are not included. Snoddy v. Haskins, 12 Gratt. 363; Hutchinson v. Boltz, 35 W. Va. 754, 14 S. E. Rep. 268. This for the reason that such conveyance does not come within the' purview of any statutory provision now in force. Of course, the right to institute such a suit can be lose in equity by remissness and delay in its assertion. It is true that delay in assertion of a right is always discountenanced in a court of chancery; that it does not encourage stale claims, and that a party may lose his right to complain of the fraud by delay, especially where the delay is accompanied by the loss of evidence or the death of parties, or such conditions exist as to render the court unable to pass upon the questions involved without serious risk of doing injustice. As a general rule though, in the application of statutes of limitation, equity follows the law. and wherever a demand would be barred at law, an equitable demand of the like character would be barred in equity. The bar is applied by analogy. In the cases of fraud the authorities are conflicting, as to whether at law the statute begins to run from the commission of fraud or from its discovery. It seems, however, without controversy, to be the settled doctrine in courts of equity, that the statute begins to run only from the discovery of fraud. This seems to be founded on the rule in courts of equity, that the cause of action arises as soon as a party has a right to apply to the court of equity for relief, and such right arises only when the party has actual knowledge of the fraud, or when with due diligence such knowledge could be obtained. Howe v. Bentley, 29 Gratt. 756; Shields v. Anderson, 3 Leigh 729; Massie v. Heiskell, 80 Va. 801; Cresap v. McLean, 5 Leigh 381; Bumgardner v. Harris, 92 Va. 188; 23 S. E. Rep. 229; Reynolds v. Gawthrop, 37 W. Va. 3, 16 S. E. Rep. 364. See also, McCarty v. Ball, 82 Va. 872, 1 S. E. Rep. 189; Hutcheson v. Grubbs, 80 Va. 251; Ayre v. Burke, 82 Va. 341; Switzer v. Noffsinger, 82 Va. 523; Cottrell v. Watkins, 89 Va. 810, 17 S. E. Rep. 328; Coles v. Ballard, 78 Va. 149.
3. Specxbtc Lien as a Condition Piíeob;i;>ent to the Institution of Suit.- Prior to the Code of 1849, it was held that a creditor at large could not have the aid of a court of equity to prevent, or interfere with, in any way, the disposition which his debtor might make of his property, unless such creditor had first proceeded as far as he could at law. To subject real estate, he must have obtained a judgment at law ; and to subject personal estate, he must have obtained a judgment and execution. This was held to apply to creditors attacking a voluntary conveyance as fraudulent, on the ground of its being fraudulent and void as to themselves; likewise as to those attacking conveyance as fraudulent in fact. Chamberlayne v. Temple, 2 Rand. 384 (1824); Rhodes v. Cousins, 6 Rand. 187 (1828); Cole v. M’Rae, 6 Rand. 644 (1828); Tate v. Liggat, 2 Leigh 84 (1830): Kelso v. Blackburn, 3 Leigh 299 (1831); McCullough v. Sommerville, 8 Leigh 415 (1836). The provision as contained in the Va. Code of 3849 was, that the creditor before obtaining a judgment or decree for his claim, could institute any suit which he might institute after obtaining such judgment or decree to avoid a gift, conveyance, etc., declared void by the statutes (Va. Code 1887, §§ 2458, 2459). See W. Va. Code of 1899, ch. 133, sec. 20; Wallace v. Treakle, 27 Gratt. 479; Keagy v. Trout, 85 Va. 397, 7 S. E. Rep. 329; Batchelder v. White, 80 Va. 106; Hoffman v. Fleming, 43 W. Va. 762, 28 S. E. Rep. 790; Tuft v. Pickering, 28 W. Va. 330; Watkins v. Wortman, 19 W. Va. 78. See also, Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. Rep. 875; Baer v. Wilkinson, 35 W. Va. 423, 14 S. E. Rep. 3; Reynolds v. Gawthrop, 37 W. Va. 4, 16 S. E. Rep. 365; Clafflin v. Foley, 22 W. Va. 443; Jackson v. Hull, 21 W. Va. 613; Clark v. Figgins, 31 W. Va. 159, 5 S. E. Rep. 645; Sweeney v. Grape Sugar Co., 30 W. Va. 456, 4 S. E. Rep. 438. Thus the old rule, that acreditor must pursue his remedy to its furthest extent at law before a court of equity would entertain jurisdiction to grant him relief, has been abrogated by the statute above alluded to. and supported by the cases construing the statute. However, under the provision as iirst contained in the Code of 1849. the question, whether a creditor, whose claim was not due, came within the purview of the statute, was controverted and long unsettled. In Devries v. Johnston, 27 Gratt. 805. the court divided equally upon this question, viz.: whether a creditor could maintain a suit to avoid a fraudulent convey ance by his debtor before the maturity of his debt, under this provision (now contained in the Va. Code 1887, § 2460). Four judges only were sitting at the time. Afterwards, in Batchelder v. White, 80 Va. 103, it was held that a creditor could not bring, such suit before the maturity of his claim-but in this latter case no notice whatever was taken of the decision in Devries v. Johnston, 27 Gratt. 805. See however, Simon v. Ellison (Va. 1895), 22 S. E. Rep. 860, sustaining this principle. But under the Acts of 1893-91, p. 614, Pollard’s Supp. (1900). § 2460, the question is now settled, as follows, viz.: that whether such claim be due and payable or not. the. creditor may institute a suit to avoid the transfer or charge. The West Virginia statute, though, does not contain this clause providing for suit when the debt is not due. See Acts 1889-90, p. 73; Davis v. Bonney, 89 Va. 758, 17 S. E. Rep. 229; 1 Va. Law Reg. 294; Barton's Ch. Pr. (2d Ed.), vol. 2, p. 543 et seq.
Moreover, a foreign judgment is a debt; and a suit in equity can be maintained on it to avoid a fraudulent or voluntary conveyance without first obtaining a judgment at law in this state, under § 2, ch. 133, Code W. Va. 1868. Watkins v. Wortman, 19 W. Va. 78.
But as further held, in Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. Rep. 874, a transfer from one joint debtor to another will not give equity jurisdiction to entertain a suit by that creditor of the grantor, in advance of lien by judgment or otherwise, to subject the property to his debt. Witz v. Lockridge, 39 W. Va. 463, 19 S. E. Rep. 876.
C. PARTIES.—In a bill brought by judgment creditors to set aside as fraudulent certain deeds, the plaintiff should make formal parties to his suit, either as plaintiffs or defendants, those who have obtained judgments in the courts of record in the county in which the lands of the debtor are situated, which are sought to be subjected to the payment of the judgments, and also all creditors who have *180obtained judgments in courts of record, or before justices in any part of the state, and have had them recorded in the judgment lien docket of the county. Because if in such a suit all the j udgment creditors are not made parties, either formally or informally, and this fact is disclosed by the record, the appellate court will reverse any decree directing the sale of .the lands or the distribution of the proceeds thereof. Pappenheimer v. Roberts, 24 W. Va. 702; Neely v. Jones, 16 W. Va. 625.
For instance in a creditors’ bill to annul deeds made by a debtor, on the ground of fraud, alleging that the debtor was thereafter adjudged a bankrupt, and had never obtained a discharge, the assignee in bankruptcy is a necessary party. Tabb v. Hughes (Va.), 3 S. E. Rep. 148 (1887).
So in a suit to annul a bond and trust deed as fraudulent, it appearing that the same had been assigned to the grantor’s wife, the court, before decreeing on the merits, should require her to be made a party, and the failure to do so is reversible error, though the point was not made in the lower court. Thornton v. Gaar, 87 Va. 315, 12 S. E. Rep. 753.
And where there is a bill to set aside fraudulent conveyances made by an insolvent debtor, the trustees and cestuis que trust in the deeds, the sheriff of the counties in which the lands lie, and the execution creditors interested in the property, should he made parties. Clough v. Thompson, 7 Gratt. 26 (1850).
Likewise, where there is a suit brought by a judgment creditor to set aside as fraudulent and void certain deeds alleged to have been made by the j udgment debtor with intent to hinder, delay and defraud the plaintiff in the collection of his debt, in order to charge the lands thereby conveyed with the payment of his judgment, the alleged fraudulent alienees are necessary parties to the suit, although they may have conveyed all lands granted to them, respectively, to other persons who are defendants in the suit. Pappenheimer v. Roberts, 24 W. Va. 702.
But in a suit by creditors of a husband to subject property which he has voluntarily conveyed away to the payment of their debts, the grantee of the husband is not a necessary party; because the conveyance, notwithstanding it may be void as to creditors, will be, nevertheless, valid between the parties to it. Herzog v. Weiler, 24 W. Va. 199.
However, if a deed of trust purports to indemnify one of the parties, as to whom the deed is charged to be fraudulent, as surety of the grantor for certain debts due to specified creditors, these creditors, as well as those secured directly, and whose debts are not assathed by the bill, are necessary parties. Billups v. Sears, 5 Gratt. 31.
And in Almond v. Wilson, 75 Va. 613, it is held that, any number of alienees may be made parties defendant to a suit to set aside conveyances on the ground of fraud, although, as between the alienees themselves, no charge of combination or confederacy is made.
It must be observed, moreover, that if the want of proper parties appears on the face of the bill, such omission will be 'demurrable, and the defect may be taken advantage of by demurrer, or at the hearing of the cause. But where a demurrer for such cause is sustained, the plaintiff should have leave to amend his bill. Pappenheimer v. Roberts, 24 W. Va. 702.
D. PLEADING AND PRACTICE.
1. 1st General.
Filing Judgment and Execution.—In McNew v. Smith, 5 Gratt. 84, the court declared that, in a suit by a judgment creditor to set aside fraudulent conveyances of property by his debtor, the judgment and execution being admitted by the pleadings, the failure to file copies of them in the cause, is not ground for reversal of the decree of the court below, setting aside the conveyances; especially if no obj ection was taken in that court to the failure to file them.
Consolidating Causes.—Where creditors by several judgments file separate bills in chancery, impeaching a conveyance of land by a debtor, as fraudulent; an order of consolidation of the causes by the chancellor on motion of one of the plaintiffs, is improper. Claiborne v. Gross, 7 Leigh 331.
2. Bill, Complaint or Petition.
a. In Oenei-al.
When the Aid of a Court of Equity Should Be Refused. —A court of equity ought not to give its aid to a plaintiff claiming under a deed of gift from a person who made a previous transfer of the same property to another for the purpose of defrauding creditors; the object of the bill being to enforce a secret trust between such transferrer and transferee. Roane v. Vidal, 4 Munf. 187.
What Constitutes the Point in Litigation.—And when a bill is against fraudulent alienees, the matter in litigation is a fraud charged in the management and disposition of the debtor’s property, in which charge ail the defendants are interested, though in different degrees and proportions. Almond v. Wilson, 75 Va. 613.
Issuance of Execution, and Return Had, Not Conditions Precedent to Sustaining a Bill.—In State v. Bowen, 38 W. Va. 91, 18 S. E. Rep. 375, Judge English declares that, where a bill Is filed by the state to set aside a fraudulent conveyance made by its judgment debtor, and to subject land in the hands of a fraudulent grantee to the payment of its judgment, It is not necessary that an execution should have issued on the judgment, and that a return of nulla bona should be had, before such bill can be sustained. Nor is it necessary to convene the creditors of such judgment debtor, or to allege and show that the rents, issues, and profits of the land sought to be subjected will not pay the debt in five years.
Circumstances Making Proper a Dismissal of the Bill.—And where the evidence shows that a creditor was without means to have loaned money, which was claimed to be due, and was, previous to the suit, living adulterously with the pretended debtor, and that the claim and suit was a collusive scheme between the husband and the pretended creditor, to defraud the wife of the pretended debtor out of property, it will be proper to dismiss the bill. Waller v. Johnson, 82 Va. 966, 7 S. E. Rep. 382.
Filing of Petition by Creditor.—A creditor may file his petition in a cause pending, which has for its object the vacation of a fraudulent conveyance, and, upon proper allegations, be made a party to the suit, and the bill, exhibits, answers, depositions, orders, and decrees, and all the proceedings in said cause, may, upon proper prayer, be read as part of his petition. Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. Rep. 854.
Thus, as held in Pappenheimer v. Roberts, 24 W. Va. 702, in a suit brought by judgment creditors to set aside a conveyance on the ground of fraud, any judgment creditor, who has not been made a party. *181formally or informally, and who has an unsatisfied judgment against the debtor, which was recovered before the suit was brought, may at any time before a final decree file his petition in the cause .setting up his judgment and praying to be made a party to the suit, and to have his rights under his judgment adjudicated: and if this right be denied him, it will be error for which the decree of the lower court, denying such right, will be reversed in the court of appeals.
b. When a Bill Is Not Multifarious.—'Wto.trQ a bill in equity is brought to subject to the lien of the plaintiff’s judgment his debtor’s estate alleged to have been fraudulently conveyed to various persons, who are charged with having combined and colluded with the debtor to defraud the plaintiff, and who are all made parties, the bill is not multifarious. Com. v. Drake, 81 Va. 305.
So if a bill in equity is brought to subject to the lien of a plaintiff’s judgment his debtor’s estate, which is alleged to have been fraudulently conveyed to various persons, all of whom are made defendants; but there is no charge of combination or confederacy among the alienees, the bill is not multifarious for this cause. Almond v. Wilson, 75 Va. 613.
c. Allegations and Aserinents Afecessaryto Sustain Bill.
Nonresidence.—In a bill in chancery, against a debtor as an absent debtor or defendant, and other defendants resident, holding lands by voluntary or fraudulent conveyances from the debtor, to have a decree against the debtor for the debt, and against the home defendants to subject the lands to the debt, thebill,inorderto give the court jurisdiction, under the statute concerning attachments and suits against absent defendants (1 Rev. Code. ch. 123). must distinctly aver the nonresidence of the debtor: and, if the home defendants in their answers say that the debtor is a resident, though they do not plead that matter in abatement to the jurisdiction, the plaintiff, to sustain the j urisdiction, must prove the fact of the debtor’s residence abroad; and if his nonresidence be not distinctly averred in the bill, or, if so denied by the home defendants, be not proved, the court has no jurisdiction, and a decree for the plaintiff will be reversed on that ground. Kelso v. Blackburn, 3 Leigh 299.
Fraud.—it is not sufficient to make a general charge of fraud in a bill. In addition to the general charge, the facts constituting the fraud, though not what is merely evidence, must be given. Saunders v. Parrish, 86 Va. 592, 10 S. E. Rep. 748; Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. Rep. 611; First Nat. Bank v. Bowman, 36 W. Va. 649, 14 S. E. Rep. 989; Greer v. O’Brien, 36 W. Va. 277, 15 S. E. Rep. 74; Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. Rep. 250.
Generally fraud should be charged by setting forth the particular manner in which the act was done, and the end and design to be accomplished. If these show that fraud was designed and perpetrated it is not necessary to aver the legal conclusion that they constitute fraud. But the charge that a deed was made with intent to hinder, delay, and defraud creditors is not the mere statement of a legal conclusion, but a charge of a material fact. American Net & Twine Co. v. Mayo, 97 Va. 182, 33 S. E. Rep. 523.
Thus, to overthrow the title of a purchaser on the grounds of fraud, it is necessary to allege in the bill that the grantor committed the act fraudulently to defraud creditors; and the facts must be given; and, moreover, it must be alleged that the purchaser fraudulently conspired with him. or had notice of the grantor’s fraudulentintent, or had notice of the fraud rendering the grantor’s title void. Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. Rep. 553.
But the privity of a grantee in the fraud of his grantor is sufficiently charged by charging that the deed was made not only without any consideration deemed valuable in law, but with intent to hinder, delay, and defraud the creditors of the grantor, ft is not necessary to charge expressly that the grantee had notice of the fraud intended by the grantor. American Net & Twine Co. v. Mayo, 97 Va. 182, 33 S. E. Rep. 523.
Moreover, where a bill to set aside conveyances contains positive and specific allegations of fraud, such allegations are taken as true on the bill being taken as confessed. Welsh v. Solenberger, 85 Va. 441, 8 S. E. Rep. 91; Price v. Thrash, 30 Gratt. 515.
When Allegations Sufficient to Give Jurisdiction. In Watkins v. Wortman, 19 W. Va. 78, a creditor filed a bill in chancery against a debtor and his wife and others alleging a recovery by him of a judgment in another state against the debtor : that execution issued thereon and was returned unsatisfied; that the debtor had removed to the state of West Virginia in which the court had jurisdiction, and purchased two tracts of land and paid for them; that one of the tracts he had caused to be conveyed to his wife with intent to defraud his creditors ; that the other tract had been conveyed to one of the other parties defendant; that whether this was accidently so done, it was equally fraudulent as to creditors ; that there was no personal property, out of which the debt was to be made ; that unless both tracts of land were subjected to the payment of his debt, the debt would be lost. The defendants demurred to this bill. And the demurrer was overruled by the lower court, and the court of appeals sustained the judgment overruling such demurrer.
And it was further held that, whether the allegation of the bill as to the second contract of land was sufficient or not, yet as the allegation to the first contract was sufficient to give the court of equity jurisdiction, it was proper to include any other property of the debtor, so that it could be first made liable in protection of the alleged voluntary or fraudulent vendee.
d. Right to Sue.—See ante, ‘'Rights and Liabilities.”
One party guilty of fraud in a transaction can have no relief in equity against another person, though equally guilty of fraud in the same. Stout v. Philippi Manuf., etc., Co., 41 W. Va. 339, 23 S. E. Rep. 571.
And in Roberts v. Kelly, 2 P. & H. 396, it was held that an agreement, between a debtor and his surety in a forthcoming bond, to the effect that the .surety should purchase slaves of the debtor, ata sale under an execution on a judgment on the bond, for the amount of the debt, which was greatly less than the value of the slaves, and, holding the legal title, permit the slaves to remain in the possession of the debtor, with liberty to redeem them, upon paying the amount advanced with interest within five years, when there is no intention to defraud creditors, is valid and would be enforced in a court of equity, bv permitting the debtor to redeem on paying the amount advanced with interest.
3. Plea, Answer and Subsequent Pleadings. - Where a bill seeks to set aside a deed of conveyance as voluntary and fraudulent, and the grantee, in his answer, denies any knowledge of fraud in the *182transaction, in the absence of any replication to the answer.'such allegation will be taken to be true. Bierne v. Ray, 37 W. Va. 571, 16 S. E. Rep. 804.
And if a bill charges a postnuptial settlement to be voluntary, the answer does not shift the burden, and is not evidence for the respondents, but the offense must be proved. Perry v. Ruby, 81 Va. 317; Hatcher v. Crews, 78 Va. 460.
Where, however, in a bill to set aside as fraudulent certain deeds, the want of proper parties appears on the face of the bill, such omission will be demurrable, and the defect may be taken advantage of by demurrer or at the hearing. But if the deniürrér for such cause is sustained, the plaintiff should have leave to amend his bill. Pappenheimer v. Roberts, 24 W. Va. 702.
4. Variance.—Though it is true that the case stated in a bill in equity must be sustained by the evidence, this rule will not forbid relief to the plaintiff where the case proved does not materially vary from the case stated; as where two deeds are charged to be without consideration, and intended to delay and hinder the plaintiff, and the proof is that the second being a deed to a trustee for the separate use of the debtor’s wife, was without valuable consideration, the decree should be for the plairitiff. Campbell v. Bowles, 30 Gratt. 652.
*E. EVIDENCE.
1. Presumption and Burden of Prooe.
a. In General.
Presumptions. — The maxim, “Fraud must be proven and is never tobe presumed,”is true only when understood as affirming that the contract or conduct' apparently honest and lawful must be regarded as such, until shown to be otherwise by evidence, either positive or circumstantial; but fraud may be inferred from facts calculated to establish it; and fraud should be so inferred when the facts and circumstances are such as to lead a reasonable man to the conclusion that the property of a debtor has been attempted to be withdrawn from the reach of his creditors, with the intent to prevent them from recovering their just debts; and if 'prima facie such fraudulent intent be thus established, . it must be regarded as conclusively established, unless it is rebutted by facts and circumstances which are proven. Burt v. Timmons, 29 W. Va. 441, 2 S. E. Rep. 780; Bronson v. Vaughan, 44 W. Va. 406, 29 S. E. Rep. 1022; Sipe v. Earman, 26 Gratt. 563; Herring v. Wickham, 29 Gratt. 628; Keagy v. Trout, 85 Va. 390, 7 S. E. Rep. 329. And as held in Stonebraker v. Hicks, 94 Va. 618 27 S. E. Rep. 497. in the absence of fraud apparent on the face of the deed, or necessarily inferred from its terms, fraud will not be presumed, but must be proved with clearness and certainty.
Thus, the provisions of a mortgage or deed of trust may be of such a character as of themselves to furnish conclusive evidence of a fraudulent intent; but the presumption of law is in favor of honesty, and the court cannot presume fraud unless the terms of the instrument preclude any other inference. Williams v. Lord, 75 Va. 390.
And fraud cannot be presumed in an action to set aside a marriage settlement, but must be proved by clear and satisfactory evidence to have been con'curred in by both parties. And this is so, irrespective of the amount of the husband’s indebtedness, and even though his whole estate is included in the settlement. Noble v. Davies, 4 S. E. Rep. 206 (Va. 1887).
Onus Probandi.—The onus probandl is on him who alleges fraud, and if the fraud is not strictly and clearly proved as it is alleged, relief cannot be granted, although the party against whom relief is sought may not have been perfectly clear in his dealings. Harden v. Wagner, 22 W. Va. 356; Pusey v. Gardner, 21 W. Va. 469; Scott v. Rowland, 82 Va. 484, 4 S. E. Rep. 595; Fischer v. Lee, 98 Va. 159, 35 S. E. Rep. 441.
But while fraud must be clearly proved and the burden of proof rests on him who alleges it, it may be proved by circumstances, and when the evidence shows a prima facie case of fraud, the burden shifts to the upholder of the transaction to establish its fairness. Herring v. Wickham, 29 Gratt. 628; Hickman v. Trout, 83 Va. 478, 3 S. E. Rep. 131; Engleby v. Harvey, 93 Va. 445, 25 S. E. Rep. 225; Sutherlin v. March, 75 Va. 236; White v. Perry, 14 W. Va. 86; Martin v. Smith, 25 W. Va. 589; Boggess v. Richards, 39 W. Va. 567, 20 S. E. Rep. 599; Paul v. Baugh, 85 Va. 955, 9 S. E. Rep. 329; American N. & T. Co. v. Mayo, 97 Va. 182, 33 S. E. Rep. 523.
But where a subsequent creditor of a grantor assails, in a chancery suit, a deed made by the grantor as voluntary and fraudulent, the recitals in the deed that the grantee had paid the grantor a valuable consideration is not evidence against the creditor of such payment; and the burden of proving that a valuable consideration was paid by the grantee to the grantor is upon the grantee, but the burden of proving that the deed was fraudulent in fact is upon the creditor. Rogers v. Verlander, 30 W. Va. 619, 5 S. B. Rep. 847.
Moreover, the onus is on the creditor to show that his debt was contracted before the deed was recorded, in order to render the property liable therefor. Scott v. Jones, 76 Va. 233.
6. As Affected by Consideration.—It is well settled that the consideration named in a deed may be enquired into. Summers v. Darne, 31 Gratt. 804. But he who undertakes to show a different consideration, must do it by satisfactory proof. Click v. Green, 77 Va. 827. And when the consideration is inquired into, and it is shown that the conveyance is founded upon a valuable consideration, the burden of proving that the deed is fraudulent in fact, rests upon the creditor assailing it. Cohn v. Ward, 32 W. Va. 34, 9 S. E. Rep. 41.
But where a creditor flies a bill to set aside as fraudulent a deed executed by his debtor which recites the payment of a valuable consideration, and such creditor’s debts are older than the deed, the burden is on the grantee to prove the payment of the purchase money, or, if the deed was executed in payment of existing debts, to prove the existence and validity of such debts. Knight v. G. & C. Capito, 23 W. Va. 639.
Moreover, when such conveyance is made in consideration of a pre-existing indebtedness, it is a badge of fraud for the grantee to retain the evidence of such indebtedness in his possession uncanceled, after the conveyance has been completed. Webb v. Ingham, 29 W. Va. 389, 1 S. E. Rep. 816.
However, mere inadequacy of consideration in the absence of fraud will not invalidate a conveyance. Tebbs v. Lee, 76 Va. 744.
But it must be observed, that board and lodging and the keep of a horse do not, as between husband and wife, parent and child, and other near relatives constitute a consideration from which the law will imply a promise of payment, and no action can be maintained therefor in the absence of an express contract or engagement to pay for them. Nor can *183An express promise to pay, made after the supplies have been furnished or the services rendered, be enforced against the promisor to the prejudice of bis creditors. Stoneburner v. Motley, 95 Va. 784, 30 S. E. Rep. 364.
<\ As Attested by Possession.—The vendor’s continuing in possession of goods and chattels after an absolute sale raises a legal presumption that the sale is fraudulent as to creditors of the vendor, which throws upon the vendee, imperatively, the burden of proving the fairness and good faith of the transaction; and this cannot be done without sufficient evidence that the sale was for a fair and valuable consideration, and that the vendor did not continue to have an interest in the property by secret understanding ; and in the absen ce of all evidence to show such consideration, or in the absence of all evidence from which the inference can be fairly drawn, that the vendor did not continue to have an interest in the property, the legal presumption that he did, and that the sale was not for such consideration, becomes absolute and conclusive ; and the same will be the conclusion, though there is some evidence on ¿hese subjects, if it is insufficient to rebut the strong legal presumption arising from the vendor’s retention of possession after the sale. Curd v. Isaacsen, 36 W. Va. 391, 15 S. E. Rep. 171; Curd v. Miller, 7 Gratt. 185; Bindley v. Martin, 28 W. Va. 773.
And the fact of possession remaining with the mortgagor five years without demand made and pursued by a process of law on the part of the mortgagees, does not make a case in which, under the statute of frauds, the property is taken to be with the possession, and liable to the creditors of the person in possession. Rose v. Burgess, 10 Leigh 186.
d. Transactions between Relatives.—And in transactions between a father and his child, husband and wife, brother and sister, between whom there exists a strong natural motive to provide for each other, at the expense of existing creditors, it requires less proof to show fraud, where they are sought to be impeached as fraudulent; and, on the other hand, when a prima facie case is made, it requires much stronger proof to show fair dealing than would be required, if the transaction were between strangers. Livey v. Winton, 30 W. Va. 554, 4 S. E. Rep. 451; Coleman v. Cocke, 6 Rand. 618.
Likewise if a conveyance be made by a father to his son in consideration of old debts alleged to be due from the father to the son, and the same is unpeached by his creditors as having been made with intent to hinder, delay and defraud them in the collection of their debts, the son will be held to ‘.stricter proof of his honesty in dealing with his father, than a stranger would be. Knight v. Capito, 23 W. Va. 639.
Similarly, where a bill is filed by a creditor alleging that a deed from a father to his son was in fact voluntary, although reciling on its face a valuable .consideration, and the son in his answer denies the .allegation, and claims that he paid a valuable consideration for the land, the burden of proof is on the son, to show that a valuable consideration was paid, and the recital of the deed is no evidence against the creditor. Himan v. Thorn, 32 W. Va. 507, 9 S. E. Rep. 930.
<. Transactions between Husband, and Wife—'Where creditors of the husband seek to subject real .estate claimed by the wife, which has been conveyed to her, either directly or indirectly from her husband, the burden of showing that it was paid for by her out of her separate estate rests upon her, and, in the absence of such proof, it would he presumed that the purchase money was furnished by her husband. Hutchinson v. Boltz, 35 W. Va. 754, 14 S. E. Rep. 267; Mayhew v. Clark, 33 W. Va. 387, 10 S. E. Rep. 785; Wood v. Harmison, 41 W. Va. 376, 23 S. E. Rep. 560; Yates v. Law, 86 Va. 117, 9 S. E. Rep. 508; Spence v. Repass, 94 Va. 716, 27 S. E. Rep. 583; Crowder v. Garber, 97 Va. 565, 34 S. E. Rep. 470; McConville v. Nat. Val. Bank, 98 Va. 9, 34 S. E. Rep. 891; Runkle v. Runkle, 98 Va. 663, 37 S. E. Rep. 279; Maxwell v. Hanshaw, 24 W. Va. 405.
Thus, in a suit by creditors to set aside a deed to secure notes executed to the grantor by his wife, the grounds for setting aside being fraud, where the wife claims that the original transaction represented a loan by her to him, the burden is on her to show that fact, and also a contemporaneous promise by him to pay the debt. Darden v. Ferguson (Va. 1897), 27 S. E. Rep. 435.
And where a husband conveys a judgment to a trustee for the benefit of his wife, or executes a deed of trust for the same purpose, the burden is thrown upon the wife to show, as against creditors attacking either for fraud, that the transaction was fair and bona fide, to so secure to her a subsisting and valid debt. Livey v. Winton, 30 W. Va. 554, 4 S. E. Rep. 451.
Moreover, if property is alleged to have been purchased by a wife, or a conveyance of property is made to her during coverture, the burden is upon her to prove distinctly that she paid for it with means not derived from her husband. Evidence that she made the purchase, or that the property was conveyed to her, amounts to nothing, unless it is accompanied by clear and full proof that she paid for it with her own separate estate; and in the absence of such proof the presumption is that her husband furnished the means to pay for it and it will be subject to his debts. McMasters v. Edgar, 22 W. Va. 673; Stockdale v. Harris, 23 W. Va. 499; Brooks v. Applegate, 37 W. Va. 373, 16 S. E. Rep. 585; Grant v. Sutton, 90 Va. 771, 19 S. E. Rep. 784.
So if a wife delivers money or property of her own to her husband, which he uses in his business, the presumption is that such delivery was intended as a gift; and in order to constitute such delivery a loan, as against the creditors of the husband, the wife must prove an express promise of the husband to repay, or establish by the circumstances that it was a loan, and not a gift. Zinn v. Law, 32 W. Va. 447, 9 S. E. Rep. 871.
And in Morriss v. Harveys, 75 Va. 726, the court declared that, while it is true that neither a judgment nor the substitution of other securities will prevent a court of equity, when a deed is sought to be impeached, as voluntary, from looking to the original cause of action to ascertain whether it was a subsisting debt contracted at the time the deed was made, and where the right of third persons have intervened, as in the case of a settlement upon a wife and children, it is certainly competent for them to show, if they can, that not only thp judgment, but the debt upon which it is founded, has been satisfied and discharged by the substitution of a new security. The burden of proving that a transfer 3).y the husband to his wife’s brother was bona fide and for a valuable consideration rests upon the wife and upon the creditors. Thus, in Herzog v. Wether, 24 W. Va. 199, an insolvent husband transferred to his wife’s brother, by deed for an alleged valuable consideration, his personal property; soon thereafter the brother transferred the property in *184like manner to another brother, and the latter immediately transferred it to his sister, the wife of the insolvent husband, as a gift in consideration of fraternal affection. In a controversy between the wife and the creditors of the husband as to the right to have the property subjected to the payment of debts contracted by the husband before he made the transfer, the above principle was laid down.
f. Indebtedness as an Element.—Moreover, where there is a transfer of property, either directly or indirectly, by an insolvent husband to his wife during coverture, it is justly regarded with suspicion; and unless it fairly appears that it was entirely free from any wrongful intent or purpose to withdraw the property from the husband’s creditors, it will not be sustained. And in such transfer there is a presumption against:the wife in favor of the husband’s creditors which she must overcome by affirmative proof. Maxwell v. Hanshaw, 24 W. Va. 405.
And in Hutchison v. Kelly, 1 Rob. 123 (1842), the presumption of fraud, in respect to voluntary conveyances when there are existing debts, came before the court for consideration. The conclusion drawn from the cases by Chancellor Kent in Reade v. Livingston (N. Y.), 3 Johns. Ch. Rep. 500, that if the grantor be indebted at the tim e of a voluntary conveyance. it is presumed to be fraudulent in respect to debts then existing, and no circumstances can repel the legal presumption of fraud, was approved by Judge Stanard but was disapproved by Judge Baldwin, who rendered the opinion of the court. The principle was declared by Judge Baldwin to be, that, while the indebtedness of the grantor at the time a voluntary conveyance raises a legal presumption against its validity, yet the presumption is only prima facie and not conclusive. The principles laid down in this case were approved in the Bank of Alexandria v. Patton, 1 Rob. 499 (1843). For fuller discussion of principles, and collection of cases, see ante, "Transfers Which Are Not Affected with Fraud, but'Are Inoperative as to Certain Persons.”
a. Intent of Grantor.—Under W. Va. Code 1899, ch. 74, relating to fraudulent conveyances, etc., a bona, fide purchaser for valuable consideration, who has no notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor is protected. But when the plaintiff has shown that the conveyance was made by the grantor with intent to d felay, hinder, or defraud creditors, then the grantor must meet this by showing that he was a purchaser for value, and without notice of the fraudulent intent of. his grantor; and the recital in the deed of the payment of the purchase money is not sufficient. Blackshire v. Pettit, 35 W. Va. 547, 14 S. E. Rep. 132.
And where the facts and circumstances connected with a fraudulent conveyance necessarily establish the complicity of the grantee in the fraudulent intent of the grantor, it is not necessary by direct proof to show notice of such intent to the grantee. Core v. Cunningham, 27 W. Va. 206.
2. Admissibility.
a. In General.—Large latitude is always given to the admission of evidence where the charge is fraud. Piedmont Bank v. Hatcher, 94 Va. 229, 26 S. E. Rep. 505. And it seems well settled, that the rule in pari delicto potior est conditio defendendis, does not apply, where the policy of the law requires that a fraudulent or vicious conveyance should be enforced; and, therefore, where a debtor makes a fraudulent conveyance of his property, for the purpose of protecting it from his creditors, the fraudulent grantee may enforce such conveyance in a court of law, and the debtor will not be allowed to defeat the claim by proving fraud. Starke v. Littlepage, 4 Rand. 368.
So the maxim, “Nemo allegans suam turpitudinem audiendus est,” if it be law, does not apply, where it is the creditors of the parties who assail the deed, and call on one of them to prove the fraud. Brown v. Mohneaux, 21 Gratt. 539.
b. Evidence Inadmissible by Reason of the Incompetency of Parties.—See monographic note on “Witnesses.”
Husband and Wife.—In William and Mary College v. Powell, 12 Gratt. 372, a postnuptial settlement was made by a husband upon his wife. The wife after-wards died; then a bill was filed by a creditor of the husband, against her children, to set aside the settlement as fraudulent as to the creditor. The court held that the husband was not a competent witness to prove the consideration upon which the settlement was made. So where husband and wife are both parties, and interested, their evidence is not admissible, because they are incompetent to testify. Perry v. Ruby, 81 Va. 317; Burton v. Mill, 78 Va. 468; Thornton v. Gaar, 87 Va. 315, 12 S. E. Rep. 753; Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1; De Farges v. Ryland, 87 Va. 404, 12 S. E. Rep. 805; Scott v. Rowland, 82 Va. 484, 4 S. E. Rep. 595.
c. When Evidence Is Admissible to Prove Consideration.—When the deed is assathed by third parties on the ground of fraud, it is admissible to show, in addition to the consideration expressed in the deed, that a substantial and valuable consideration was paid, or the converse. Casto v. Fry, 33 W. Va. 449, 10 S. E. Rep. 799. And this principle is extended to the introduction of parol evidence to show other valuable consideration, where a deed is made in consideration of “natural love and affection," and the further consideration of “one dollar.” Harvey v. Alexander, 1 Rand. 219.
And in Eppes v. Randolph, 2 Call 125, decided in 1799, and before the provision making any gift, conveyance, etc., upon consideration of marriage, void as to existing creditors (see Va. Code 1887, § 2459), and therefore not in the light of that provision, it was held that, although a deed does not mention that it was made in consideration of a marriage contract, the party may, nevertheless, aver and prove it.
d. When and against Whom Recitals in Deeds Are Admissible as Evidence.—It is the settled law of this state that the recital in a deed of the payment of a valuable consideration for the property therein conveyed is not admissible- as evidence of such payment as against a stranger or a creditor of the grantor assailing the deed as voluntary, and fraudulent as to him. Cohn v. Ward, 32 W. Va. 34, 9 S. E. Rep. 41; Childs v. Hurd, 32 W. Va. 66, 9 S. E. Rep. 362.
And under Va. Code 1887, § 2461, after a loan to a person with whom, or with those claiming under him, possession had remained five years, a deed is. made by the lender, declaring the original loan and continuing it; but this deed is never admitted to record, the deed cannot affect the creditor of the person in possession and ought not to be received as evidence against such creditors. Pate v. Baker, 8 Leigh 80.
Nevertheless, the recital in a postnuptial settlement of a consideration for the deed, is evidence against persons claiming under the settler, but not against the creditors of the settler contesting the fairness or the validity of the deed. Blow v. May*185nard. 2 Leigh 29; Lawrence v. Blow, 2 Leigh 29; Perry v. Ruby, 81 Va. 317; Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1.
e. Prior or Subsequent Conduct of Persons Interested. -“Parol declarations of a grantor previous to the execution of a deed, and at the very moment of executing it, are admissible to explain the intention with which it was made. Land v. Jeffries, 5 Rand. 211.
But it is a well-settled rule of evidence that the declarations of the grantor, made subsequent to the conveyance, are not admissible to affect the title of his grantee ; and this is most certainly true if made a year subsequent. Casto v. Fry, 33 W. Va. 449, 10 S. E. Rep. 799; Claytor v. Anthony, 6 Rand. 285.
However, where fraud in the sale and purchase of property is in issue, the evidence of other frauds of like character, committed by the same party, at or about the same time, is admissible. Piedmont Bank v. Hatcher, 94 Va. 229, 26 S. E. Rep. 505.
3. weight.
a. In General— In order to set aside a conveyance claimed to be fraudulent as to creditors, it must be shown that both grantor and grantee participated in, or had knowledge of the fraud. Mer. Bank v. Belt (Va. 1898), 30 S. E. Rep. 467. And the fraud must be clearly proved. First Nat. Bank v. Bowman, 36 W. Va. 649, 14 S. E. Rep. 989; Greer v. O’Brien, 36 W. Va. 277, 15 S. E. Rep. 74; Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. Rep. 250.
However, it is not necessary to prove that the grantee had positive knowledge of such fraudulent intent. It is sufíicien t to prove that the grantee had knowledge of facts and circumstances which would have excited the suspicion of a man of ordinary care and prudence, and put him upon inquiry as to the bonajides of the transaction, which inquiry would necessarily have led to a discovery of the fraud of Ms grantor. American Net & Twine Co. v. Mayo, 87 Va. 182, 33 S. E. Rep. 523.
And it is not enough that the purpose of the grantor be fraudulent. Knowledge of such purpose must be clearly brought home to the alienee. Where the latter had denied such knowledge on oath, it cannot be held that his denial is overthrown by mere circumstances of suspicion adduced against him. Batchelder v. White, 89 Va. 103.
But if a husband conveys a tract of land to Ms wife, and the conveyance is attacked by his creditors, the deed should be set aside if the evidence is conflicting; though the preponderance is against the good faith of the transaction. Noyes v. Carter (Va.), 23 S. E. Rep. 1.
Moreover, if a deed bears upon its face such marks or badges of fraud as to clearly show that the intent of the grantor was to delay, hinder, or defraud his creditors, such deed is fraudulent on its face, and the court will so hold it on inspection. In such case the thing itself speaks, and conclusively proclaims the fraudulent intent, because the grantor is taken to intend what he does, and the natural or necessary consequences of his act. Douglass Mdse. Co. v. Laird, 37 W. Va. 687, 17 S. E. Rep. 188. And evidence will not be received to contradict such conclusion. Long v. Meriden, etc., Co., 94 Va. 594. 27 S. E. Rep. 499.
And the usual badges of fraud are : Gross inadequacy of price ; uo .security taken for the purchase money; unusual length of credit for the bonds which have been taken at long periods ; conveyance in payment of antecedent indebtedness of a father to his son when they reside together ; threats and pendency of suits ; concealment of the transactions which relate to the conveyances ; keeping the deed unacknowledged and unrecorded fora considerable time ; remaining in possession by the grantor as before the conveyance. Any of these facts may make a case of prima facie fraud, calling on the parties for explanation. Hickman v. Trout, 83 Va. 478, 3 S. E. Rep. 131; Todd v. Sykes, 97 Va. 143, 33 S. E. Rep. 517; Paul v. Baugh, 85 Va. 955, 9 S. E. Rep. 329; Young v. Willis, 82 Va. 291; Armstrong v. Lachman, 84 Va. 726, 6 S. E. Rep. 129; Reilly v. Barr, 34 W. Va. 95, 11 S. E. Rep. 750; Didier v. Patterson, 93 Va. 534, 25 S. E. Rep. 661. But the privthege of longer time and possession, not exceeding five years, upon paying interest, does not affect validity ; nor will the fact that creditors may be hindered and delayed, in the absence of fraudulent intent. Keagy v. Trout, 85 Va. 390, 7 S. E. Rep. 329; Sipe v. Earman, 26 Gratt. 563; Young v. Willis, 82 Va. 291.
b. In Uquity.-—Whthe no rule can be laid down as to the extent of evidence required to set aside a conveyance as fraudulent, it must satisfy the chancellor’s conscience, and it may be, and generally must be, circumstantial. Armstrong, Cator & Co. v. Lachman, 84 Va. 726, 6 S. E. Rep. 129; Witz, Biedler & Co. v. Osburn, 83 Va. 227, 2 S. E. Rep. 33; Moore v. Ullman, 80 Va. 307.
c. Circumstantial Evidence.— Whthe the burden of proving a deed fraudulent as to creditors is upon th c-creditors, positive evidence of fraudulent intent is not required, but it may be deduced from the circum - stances of the transaction and the relation and situation of the parties to it and to each other. Circumstantial evidence if adequate to satisfy the court of such fraudulent intent, is sufficient, and often the only evidence attainable. Reynolds v. Gawthrop, 37 W. Va. 3, 16 S. E. Rep. 364; Moore v. Ullman, 80 Va. 307; Armstrong, Cator & Co. v. Lachman, 84 Va. 726, 6 S. E. Rep. 129; Witz, Biedler & Co. v. Osburn, 83 Va. 227, 2 S. E. Rep. 33.
Therefore, a fraudulent intent need not be established-by express proof but may be shown by iusl legal implication from the evidence where the circumstances are such that the intent may be justly inferred. Pratt v. Cox, 22 Gratt. 330; Johnson v. Wagner, 76 Va. 591; Lockhard v. Beckley, 10 W. Va. 101.
Or, as expressed in Martin v. Rexroad, 15 W. Va. 512, fraud should be legally inferred from the fact» and circumstances of the case, when the facts and circumstances are of such a character as to lead a reasonable man to the conclusion that the sale was made with the intent to hinder, delay or defraud existing or future creditors. And further, where the facts and circumstances in any case are such a» to make a. prima facie case of fraudulent intent, they are to be taken as conclusive evidence of such intent, unless rebutted by other facts and circumstances in the case. Sturm v. Chalfant, 38 W. Va. 248, 18 S. E. Rep. 451; Goshorn v. Snodgrass, 17 W. Va. 717; Hutchinson v. Boltz, 35 W. Va. 754, 14 S. E. Rep. 267; Himan v. Thorn, 32 W. Va. 507, 9 S. E. Rep. 930: Parker v. Valentine, 27 W. Va. 677: Bockhard v. Beckley, 10 W. Va. 88; Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. Rep. 854; Livesay v. Beard, 22 W. Va. 585; Saunders v. Parrish, 86 Va. 592, 10 S. E. Rep. 748; Paul v. Baugh, 85 Va. 955, 9 S. E. Rep. 329: Hickman v. Trout, 83 Va. 478, 3 S. E. Rep. 131: Alsop v. Catlett, 97 Va. 364, 34 S. E. Rep. 48; Reilly v. Barr. 34 W. Va. 95, 11 S. E. Rep. 750; Ferguson v. Daughtrey, *18694 Va. 308, 26 S. E. Rep. 822. See Shaver v. Swartz, Va. Dec., vol. 1, p. 56.
d. Nature and Circumstances of the Transaction.
(a) In General. —Whthe fraud must be proved, the transaction itself may furnish proof of the fraud so satisfactory and conclusive as to outweigh the answers of the defendants denying the fraud, or even the evidence of witnesses. Hazlewood v. Forrer, 94 Va. 703, 27 S. E. Rep. 507; Todd v. Sykes, 97 Va. 143, 33 S. E. Rep. 517.
Therefore, wherever there appears to be connected with the transaction circumstances indicating excessive effort to give the appearance of fairness or regularity, which are not usual attendants of such business, the courts will regard such circumstances as badges of fraud. Hart v. Sandy, 39 W. Va. 644, 20 S. E. Rep. 665.
Thus, the including in such a deed perishable property which must be consumed or become worthless before the time fixed for the sale, though it may not of itself be sufficient to set aside the deed as fraudulent, yet it is a fact indicative of a fraudulent intent. Quarles v. Kerr, 14 Gratt. 48.
So when the facts and circumstances tend to show that a gift was intended, and that the husband used and dealt with the property as his own, the m ere parol testimony of the husband and wife of a private understanding between themselves that the transaction should be considered or was intended as a loan to the husband by the wife, and not a gift, will not, as against the creditors of an insolvent husband, rebut the presumption of a gift. Zinn v. Law, 32 W. Va. 447, 9 S. E. Rep. 871.
(ft) Conduct.—Fraud may be deduced from deceptive assertions, and from incidents and circumstances evincing a fraudulent intent. Sturm v. Chalfant, 38 W. Va. 248, 18 S. E. Rep. 451.
Thus, in a suit, if the burden of proof as to the existence and validity of certain alleged debts, be cast upon the grantee, and the persons, to whom or by whom any of such debts were paid, as well as the subscribing witnesses to such deed, are within the power of the grantee, and instead of examining them he becomes a witness for himself in regard to such consideration, such failure to call and examine such witnesses unless satisfactorily explained will be regarded as a badge of fraud upon said conveyance. Knight v. Capito, 23 W. Va. 639.
(c) Possession.—Concurrent possession of both the grantor and grantee in an absolute deed after the conveyance is a badge of fraud. Livesay v. Beard, 22 W. Va. 585.
However, it is not an evidence of fraud, for a mortgagor, of personal property to continue in possession, if the mortgage appears to have been made upon a ionafide consideration, and is duly recorded. But' if the mortgagor afterwards by deed releases the equity of redemption to the mortgagee (which deed is not duly recorded), and still retains the possession, such evidence is sufficient to render the deed void as against creditors. Clayborn v. Hill, 1 Wash. 177.
So when a conveyance is made in consideration of a pre-existing indebtedness, it is a badge of fraud for the grantee to retain the evidence of such indebtedness, in his possession uncancelled, after the conveyance has been completed. Webb v. Ingham, 29 W. Va. 389, 1 S. E. Rep. 816.
And in Forkner v. Stuart, 6 Gratt. 197, it was held, on a sale of slaves, if the possession of the slaves does not accompany the sale, but remains with the vendor, such retention of possession by the vendor is prima facie evidence of fraud, but is not conclusive ; and it is liable to be repelled by satisfactory legal evidence of the fairness and good faith of the transaction.
(d) Relationship.—Transactions between a father -and child, brother and sister, and many others, between whom there exists a natural and strong motive to provide for a dependent at the expense of honest creditors, if such transaction be impeached as fraudulent, may be shown to be fraudulent by less proof than would be required when different relations exist; and the party claiming the benefit of such transaction, will be held to a fuller and stricter proof of its justice; and the fairness of the transaction, after it is shown to be prima facie fraudulent, will require greater proof tobe established than would be required if the transaction were between strangers. Burt v. Timmons, 29 W. Va. 441, 2 S. E. Rep. 780.
Therefore, where a conveyance is made to a near relative, the fact is calculated to awaken suspicion, and the transaction will be closely scrutinized, though the fact is not of itself sufficient to raise a presumption of fraud. So mere proof of inadequacy of price is insufficient to implicate the grantee in the fraudulent intent as inadequacy of price, unless extremely gross, does not per se prove fraud. It must appear that the price was so manifestly inadequate as to shock the moral sense, and create at once upon its being mentioned a suspicion of fraud. Bierne v. Ray, 37 W. Va. 571, 16 S. E. Rep. 804.
But while transactions between father and son are subject to critical scrutiny, yet if the circumstances show them to be fair, open, and free from fraudulent intent, the relationship of the parties will not vitiate or render them void. Douglass v. Douglass, 41 W. Va. 13, 23 S. E. Rep. 671.
Consequently the mere fact that a party conveys his property to a son or a broth er is not per se a badge of fraud, but, when such conveyance is attacked as fraudulent, such relationship, connected with other circumstances may strengthen the presumption of. fraud. Farmers’ Transp. Co. v. Swaney (W. Va. 1900), 37 S. E. Rep. 592.
And the evidence to sustain an alleged parol gift by a father to his daughter on her marriage, should be clear and cogent. Collins v. Lofftus, 10 Leigh 5.
(e) Husband and Wife.—Transactions between a husband and wife, between whom there exists a natural and strong motive to provide for a dependent at the expense of honest creditors, if such transaction be impeached as fraudulent, may be shown to be fraudulent by less proof than would be required when different relations exist; and the party claiming the benefit of such transaction will be held to a fuller and stricter proof of its justice ; and the fairness of the transaction, after it is shown to be prima facie fraudulent, will require greater proof to be established than would be required if the transaction were between strangers. Burt v. Timmons, 29 W. Va. 441, 2 S. E. Rep. 780.
And moreover, if a husband conveys a tract, of land to his wife, and the conveyance is attacked as fraudulent by his creditors, the deed should be set aside if the evidence is conflicting, as the presumption is against the good faith of the transaction. Noyes v. Carter (Va.), 23 S. E. Rep. 1.
e. Insolvency—Insolvency does not deprive the owner of property of the right to sell it, unless the sale, be made with intent to hinder, delay and defraud his creditors ; and even then, the title of the purchaser will not be invalidated if the sale is *187for valuable consideration, and the purchaser has no notice of the fraudulent intent of the grantor. It is not necessary, however, to prove positive knowledge of the fraudulent intent of the grantor. Ferguson v. Daughtrey, 94 Va. 308, 26 S. E. Rep. 822.
And the fact that a deed of trust of all of an insolvent's property, executed to secure part of his creditors, provides for payment of the surplus to the grantor, is not of itself evidence of fraudulent intent. Harvey v. Anderson (Va.), 24 S. E. Rep. 914.
But when a debtor in failing circumstances conveys property for a grossly inadequate consideration, that is evidence of fraudulent intent. Livesay v. Beard, 22 W. Va. 585.
f. Consideration.—Where Iraudulent intent against creditors is sought to be made out against a transfer of his property by a debtor on the sole ground of inadequacy of consideration, without any other •element tending to show fraud, the inadequacy must be so great as fairly to induce the belief of fraudulent intent. Wood v. Harmison, 41 W. Va. 376, 23 S. E. Rep. 560.
But it is evidence of fraud for a debtor who is in failing circumstances to convey property for a grossly inadequate consideration. Livesay v. Beard, 22 W. Va. 585.
g. Bill Pro Confesso.—And in Price v. Thrash, 30 Gratt. 515, it was held that, fraud could be proven by a bill taken pro confesso, in which notice of the fraud is clearly charged. Welsh v. Solenberger, 85 Va. 441, 8 S. E. Rep. 91.
F. INJUNCTION.—Where a deed is made by a father to his son of land for one-half of its value with the fraudulent intent of hindering, delaying and defrauding his creditors, and the deed of trust is executed at the same time to secure the payment of the bond for the purchase money, which bond is assigned to a third person, and the trustee in the deed of trust advertises the land for sale, and the creditor of the father at the time of the conveyance to the son obtains an injunction to prohibit the sale of the land by the trustee, the injunction ought not on motion to be dissolved whether the third person to whom the bond was assigned, was or was not a party to the fraud. Beall v. Shaull, 18 W. Va. 258.
And in Terrell v. Imboden, 10 Leigh 321, an obligee in a bond secured by a deed of trust, made a deed transferring the bond and deed of trust for the benefit of his creditors. Afterwards, at the request of the obligor, the obligee signed a receipt, stating, that on the day of the date thereof he received the amount of the bond. The bond was in fact executed without consideration, and the receipt was in fact given without any payment. The creditors for whose benefit the bond was assigned had no notice of its being without consideration until after the assignment: but the obligor knew of the assignment when he took the receipt. In a suit between the obligor and those claiming under the assignment, an injunction awarded to restrain the sale of the property conveyed to secure the bond, was dissolved; and the court ol appeals affirmed the order of dissolution. See monographic note on “Injunctions” appended to Claytor v. Anthony. 15 Gratt. 518.
G. TRIAL.
Directing an Issue—When Proper. —Where a charge of fraud is made in the bill, but denied in the answer, and the testimony is such as to leave it doubtful, a court of equity ought to direct an issue to ascertain it. Bullock v. Gordon, 4 Munf. 450; Marshall v. Thompson, 2 Munf. 412.
I When New Trial Proper.—If the jury find a sale to be bona Me and valid, the court ought not to set aside the verdict and award a new trial, unless the evidence is plainly insufficient to warrant the jury in concluding, that despite the fact that the vendor continued in possession of the property after the sale and the strong legal presumption thence arising, that the sale is not for a fair and valuable consideration, and that the vendor retained an interest in the property after the sale, and that such sale is fraudulent and void, the consideration is fair, and no interest in the property is retained by the vendor after the sale, and it is otherwise untainted with fraud. Bindley v. Martin, 28 W. Va. 773.
In another case the owner of a slave, residing in Tennessee, delivered a slave to his son-in-law, who was about to remove to Virginia, and took from him a deed, specifying that the slave was lent to his som in-law who was to take good care of her and deliver her back to him when he should demand her; the owner told the subscribing witness, that the deed was taken to show that the slave was his property, in case she should be taken by his son-in-law's creditors while the slave remained in Tennessee, but that “he intended to give her to his son-in-law anyhow.” The son-in-law removed with the slave to Virginia. In a contest between the owner and the son-in-law’s mortgagees of the slave, who had possession, the jury found a verdict for the owner, and the court refused to grant another trial: upon appeal it was held that a new trial was properly refused. Mahon v. Johnston, 7 Leigh 317.
H. DEGREE.
I. Interlocutory Degree -As a Bar to Another Suit.—In Quarles v. Kerr, 14 Gratt. 48, a trustee filed a bill to enforce the trust deed, and the court decreed the sale and distribution of the trust subject among the creditors provided for, except one, who wa.s excluded under the provisions of the deed, because he sued out an execution on his judgment. The creditor who was excluded then filed a bill to set aside the trust deed, on the ground that it was iraudulent on its face. The court held that the question whether the deed was iraudulent was not put in issue in the first case, and therefore could not be decided; and that as the decree in the first case was interlocutory merely, it could be no bar to the second suit.
2. When Degree is Final—Where a decree annuls a conveyance for fraud and directs a commissioner to ascertain the location and value of the lands and the liens thereon, it is not a final decree in the sense that an answer may not be filed thereafter. Welsh v. Solenberger, 85 Va. 441, 8 S. E. Rep. 91; Va. Code 1887, § 3275.
3. When Degree Is Erroneous. - Tf there be several parties who claim to be paid their debts, and to be indemnified for securityship out of the debtor’s lands and chattels conveyed by a third party, and there be an adversary creditor by judgment, who claims to have the deed set aside for fraud, and the property sold to pay his judgment debt, an interlocutory decree, which, without deciding on the validity of the deeds or the extent to which, and in what order the said .several debts are chargeable on the property, yet directs that the lands conveyed shall be sold for cash, and the proceeds to be paid into bank to the credit of the cause, is premature and erroneous, and has a tendency to sacrifice the property, by discouraging the creditors from bidding as they probably would, if their right *188to satisfaction of their debts, etc., had been previously ascertained.
Sucha decree, however, may be proper as it regards the sale of chattels, because they are perishable, liable tobe wasted, and no sacrifice need be apprehended, because they maybe sold in detail. As to the lands, they should in such case, be put into the hands of the receiver, to be rented out, until the rights of the parties, in respect to the subject, are determined, having a due regard to the rights of the widow of the debtor. Cole v. McRae, 6 Rand. 644 (1828).
And in a suit by a judgment creditor to set aside a deed as fraudulent, it is error to set the deed aside in toto, as it is valid and binding between the parties to the fraud, and only void as to creditors. Love v. Tinsley, 32 W. Va. 25, 9 S. E. Rep. 44; Duncan v. Custard, 24 W. Va. 730.
Moreover, if a court, by its decree, has cancelled and set aside a fraudulent deed and charged the lands thereb3T attempted to be conveyed with the amount of the debt due to the fraudulent grantee, such decree is erroneous and will be for that cause reversed. Kan. Val. Bk. v. Wilson, 25 W. Va. 242.
4. When Improper fora Court to Decree as to the Sufficiency of Property to Pay Debts.— Where a deed of trust to secure creditors has been assathed by an unsecured creditor, and one of the secured debts has been stricken out by the appellate court as fraudulent, that court will not, upon mere estimates of the value of the property conveyed, declare that it is not more than sufficient to pay to the other secured creditors whose debts are not disputed. Stoneburner v. Motley, 95 Va. 784, 30 S. E. Rep. 364.
5. When Vendor of Land and Assignee of Debt Not Entitled to a Decree.—Although a contract for the sale of a tract of land be made with a husband, yet if it is understood between the parties at the time the contract is made that the purchase money is to be paid by the wife out of her separate estate, and the deed is made by the vendor to the husband, and a vendor’s lien retained to secure the purchase money, yet if the vendor knowingly receives the purchase money from the wife, in accordance with the original understanding, and such land is conveyed by the husband to the wife, in consideration of her payment of the purchase money, said vendor cannot attack such conveyance as fraudulent to a debt due from the husband as purchase money for a mule, of which the wife had no notice; neither can the assignee of such debt so attack such conveyance. Prim v. McIntosh, 43 W. Va. 790, 28 S. E. Rep. 742.
6. Decree When Relief in general Prayed for.—If in a bill by creditors to set aside a deed of trust for payment of debts, on the ground that it is fraudulent on its face, the bill does not ask for an account, but there is a prayer for general relief, and the deed is sustained as valid, the plaintiffs are entitled to an account. And in such case, the court below having dismissed the bill generally, and it not appearing that the plaintiffs asked for an account or that the court considered the question, the appellate court will affirm the decree sustaining the deed, and reverse it as to the account ; but with costs to the appellee. Marks v. Hill, 15 Gratt. 400.
And in Beall v. Silver, 2 Rand. 401, a creditor obtained judgment against his debtor, without running interest, and his execution was obstructed by a fraudulent conveyance made by the debtor, of his property. Subsequently a suit in chancery was brought to remove the obstruction of the conveyance, and for relief generally. The court declared that itwas proper for the chancellor to decree the interest, as well as to set aside the conveyance ; the prayer for general relief being sufficient to cover the demand for interest.
Moreover, in Austin v. Winston, 1 H. & M. 33, the court declared, that where a transaction between a debtor and certain of his creditors, is intended by them both to defraud the other creditors of the debtor, but the latter, under all the circumstances, of the case, is not so culpable as the former, it would seem that the court of equity ought not, altogether, to refuse relief to the debtor, but should apportion the relief granted to the decree of criminality in both parties, so as, on the one hand, to avoid the encouragement of fraud, and on the other, to prevent extortion and oppression.
7. Decree Setting Aside a Conveyance.—It is error to decree a conveyance void, in toto, and to set it aside absolutel3r, when it is void only as to creditors, whose debts were contracted before the time of making the conveyance ; but such error is not sufficient to reverse the decree, but may be corrected and the decree affirmed as corrected. Linsey v. McGannon, 9 W. Va. 154.
But when, in a suit to set aside a deed of conveyance as fraudulent and void as to plaintiff’s debt, and to sell the real estate therefor, the court ascertains and decrees that it is so fraudulent and void, it is error not to decree further, and set aside said deed and provide for the sale of the property conveyed to pay the debt. Chrislip v. Teter, 43 W. Va. 356, 27 S. E. Rep. 288. See in general connection, Cronie v. Hart, 18 Gratt. 739.
However, if the value of property settled, exceeds the value of the dower relinquished, the deed should be set aside as to the excess, and supported as to the residue. Taylor v. Moore, 2 Rand. 563.
And in Beall v. Silver, 2 Rand. 401, a creditor obtained judgment against his debtor, without running interest, and his execution was obstructed by a fraudulent conveyance made by the debtor, of his property. Subsequently a suit in chancery was brought to remove the obstruction of the conveyance, and for relief generally. The court declared that it was proper for the chancellor to decree the interest, as well as to set aside the conveyance; the prayer for general relief being sufficient to cover the demand for interest.
Sale—Fraudulent Representations.—If a person purchases goods on credit by means of fraudulent representations, or was under age at the time, it is no ground for annulling a sale of the goods made to secure a debt for borrowed money, due a person ignorant of such means, there being no collusion with the buyer to defraud other creditors. Jones v. Christian, 86 Va. 1017, 11 S. E. Rep. 984.
Deed of Trust—Trustee Not a Party to the Fraud.— And although a deed of trust to secure a creditor be made with intent to defraud other creditors of the grantor, it will not be set aside in the absence of proof that either the trustee or the creditor secured was a party to the fraud. Alsop v. Catlett, 97 Va. 364, 34 S. E. Rep. 48; Oberdorfer v. Meyer, 88 Va. 384, 13 S. E. Rep. 756; Paul v. Baugh, 85 Va. 955, 9 S. E. Rep. 329; Penn v. Penn, 88 Va. 361, 13 S. E. Rep. 707.
Antenuptial Settlement—Wife Connives at Fraud.— An antenuptial deed of marriage settlement will not be set aside at the instance of the husband’s creditors, on the ground that the wife connived at *189the fraud, when the entire testimony shows that the wife, before marriage, had no knowledge of any fraud in the settlement. Noble v. Davies (Va. 1887), 4 S. E. Rep. 206.
8. Degree Ordering Sale.
Necessity of Convening Creditors, Reporting Debts, Ascertaining Rents and Profits.—in a suit brought to have an alleged fraudulent conveyance set aside, and to subject the property to the payment of the creditor’s claim, it is not required by statute, or by the general law on this subject, that all the creditors shall be convened, and their debts reported, or that it should be ascertained whether the rents will pay off his debts in live years, or in a reasonable time, before there can be a decree of sale. Core v. Cunningham, 37 W. Va. 206; Burt v. Timmons, 29 W. Va. 441, 2 S. E. Rep. 780; State v. Bowen, 38 W. Va. 91, 18 S. E. Rep. 375.
But the Code of Virginia 1860, ch. 186, § 9, requires that the lien of a judgment may be enforced in •equity, bnt forbids a decree of sale unless it appears that the rents and profits of the land subject to the lien will not satisfy the judgment in five years. Under this statute it was held in Cronie v. Hart, 18 Gratt. 739 (1868), that, before setting aside a deed as fraudulent towards its creditors, the court should direct an inquiry as to whether plaintiff's .debts could not be paid out of the rents and profits -of the property conveyed in five years.
Propriety of Decree for Sale When Trustee Is a Non= .resident.—in a suit by judgment creditors against their debtors and others to set aside a deed of trust and to subject the land to the payment of their debts, it appeared that the trustee living out of the state, was not a party to the suit, and had not signed the deed ; but it did not appear that he had accepted or acted under it. It was held, that the court might properly decree a sale of land, and appoint a commissioner to make the sale. Barger v. Buckland, 28 Gratt. 850.
When Deed Declared Void, It Should Be Set Aside and Provision Made for Sale.—When, in a suit to set aside a deed of conveyance as fraudulent and void as to the plaintiff’s debt, and to sell the real estate therefor, the court ascertains and decrees that it is so fraudulent and void, it is error not to decree further, and set aside said deed and provide for the sale of the property conveyed to pay the debt. Chrislip v. Teter, 43 W. Va. 356, 27 S. E. Rep. 288; Coleman v. Cocke, 6 Rand. 618.
And if the sale or conveyance is fraudulent, and gives unlawful preferences, then such sale or conveyance will be set aside, and a resale be made, so far as may be necessary to pay the honest claims against such insolvent fraudulent debtor. First Nat. Bank of Cumberland v. Parsons, 42 W. Va. 137, 24 S. E. Rep. 554.
A Moiety of the Land, Only Decreed to Be Sold.— Moreover, if a judgment debtor has conveyed away lands fraudulently, and retained other lands, the court on setting aside the conveyance at the suit of a judgment creditor, should direct a sale of a moiety of the whole, embracing in the moiety decreed to be sold, the land not conveyed by the debtor, and taking only so much of the land conveyed as will, with the land retained by the debtor, constitute a moiety of the aggregate of the whole. This was the rule, as declared in McNew v. Smith, 5 Gratt. 84 (1848), decided prior to the Va. Code 1849.
9. Decree for Sale of Property Other Than That Conveyed.—And where a deed void as to creditors, is valid as between the parties, in a .suit by the grantor’s creditors to subject the lands to payment of their claims, other property of the grantor in the hands of parties to the suit will be so applied to the payment of the claims. Fones v. Rice, 9 Gratt. 568.
So, on a bill against fraudulent donees of a deceased person and his heir to subject the lands conveyed and those descended, the whole may be decreed to be sold to satisfy the plaintiff’s debt. Blow v. Maynard, 2 Leigh 29.
10. Personal Degree.—And in a suit to subject lands to the payment of a lien and to set aside fraudulent conveyances, the report of sale having been made, and it being found that the sale will not produce sufficient money to pay the lien, expense of sale, and costs, a personal decree should be rendered against all the fraudulent grantors and grantees for any costs remaining after providing for the payment of the liens and expenses of sale. Hinton v. Ellis, 27 W. Va. 422.
However, where the property is still in possession of the fraudulent purchaser, the creditor cannot take a personal, money decree for his debt, or the value of the property, against the purchaser, but must subject the property itself: however, if the fraudulent purchaser has sold the property to a bona fide purchaser, so that it cannot be reached, the creditor may have a money decree against the fraudulent purchaser for the amount he received for the property, or, if that be less than its actual value, then for such value ; if the bona fide purchaser yet owes for the property, the money in his hands may be followed and subjected in his hands. Vance Shoe Co. v. Haught, 41 W. Va. 375, 23 S. E. Rep. 553.
And a creditor cannot have a judgment for the recovery of money against the grantee of a debtor on mere proof that the conveyance was fraudulent. Ringold v. Suiter, 35 W. Va. 186, 13 S. E. Rep. 46.
But in a creditors’ suit in chancery to avoid divers fraudulent conveyances made by the common debtor to different colluding grantees, all or an intermediate number of whom are made parties, the plaintiffs may elect to proceed wholly against any one of such grantees. And where such grantee, against whom plaintiffs elect to proceed, has, in the meanwhile, aliened the property received by him, and a personal decree is entered against him for the full amount of the plaintiffs’ claims (not exceeding the value of the debtor’s in terest in the property so received by him), such grantee is not entitled to a decree over against his codefendants for contribution. Ellington v. Moore, 4 Va. Law Reg. 608.
In Greer v. Wright, 6 Gratt. 154, a defendant, to evade the payment of an anticipated judgment, transferred to his brother two bonds, executed by two obligors, and also his interest in the real estate of his deceased father. Judgment was rendered against him, and he took the oath of an insolvent debtor and surrendered nothing. The plaintiff then filed a bill against the defendant and his brother, and one of the obligors and the sheriif, and obtained a decree setting aside the transfers. It was held that, in the first instance, it was erroneous to make a joint and personal decree against the defendant and his brother, but it should have been against the two obligors for the amount they respectively owed.
11. Operation and Effect of Decree.—Where in a bill by a creditor against the trustee and executor of his debtor to have payment of his debt, and charging, deed fraudulent, and voluntary in part, the court makes a decree directing a commissioner, *190among other things, to take an account of debts of the testator, the statute of limitations ceases to run against creditors from the date of that decree. Harvey v. Steptoe, 17 Gratt. 289.
J. LIEN OF ATTACKING CREDITOR.
1. Lien of Plaintiff.
When Lien Begins.—In Wallace v. Treakle (1876), 27 Gratt. 479, sec. 2, ch. 179, Code 1849 (Va. Code 1860, ch. 179, sec. 2), came before the court for the first time for its true construction. Christian, J., delivering the opinion of the court, said : “I think there could be no doubt that it was the intention of the legislature to declare that a party creditor who filed his bill to avoid a fraudulent conveyance acquired a lien upon the property conveyed in such void conveyance, if he obtained a decree setting it aside, and in that event the lien attaches from the day the bill is filed.’'
This rule was also followed by the West Virginia court in Sweeney v. Grape Sugar Co., 30 W. Va. 443, 4 S. E. Rep. 431 (1887), where it was held, that general creditors who, by bill, answer, or petition, assail a deed of their debtor conveying lands as fraudulent, and succeed, have a lien on the land for their respective debts from the filing of such bill, answer, or petition. Hughes v. Hamilton, 19 W. Va. 366 (1882); Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. Rep. 874; Witz v. Lockridge, 39 W. Va. 463, 19 S. E. Rep. 876.
But subsequent to this time in the First National Bank of Cumberland v. Parsons, 42 W. Va. 137, 24 S. E. Rep. 554 (1896), and after the W. Va. Acts of 1891, p. 353, ch. 123 (W. Va. Code 1899, ch. 74, sec. 3), relating to acts void as to creditors and purchasers, the court held, that, in view of this statutory provision, "The former rule in equity of rewarding the diligence of the creditor who first assathed the fraudulent deed of an insolvent debtor with a preference over the other creditors must give way to the statute as inconsistent therewith upon this statute as thus amended. This equitable rule of rewarding the diligence of the first assailant of the fraudulent deed of an insolvent debtor sometimes led to such hardship, especially where the deed had to be held to be fraudulent on its face, that the preference given the vigilant assailant was sometimes worse than fraud.”
However, by the Va. Code 1887, sec. 2460, it is expressly declared that when In such case a creditor institutes a suit to avoid a gift, conveyance, etc,, on the grounds of its being void as to creditors and purchasers, such creditors shall have a lien from the Ume of bringing his suit. Craig v. Hoge, 95 Va. 276, 28 S. E. Rep. 317. And this advantage is not lost to a creditor secured by the deed of trust which is attacked as fraudulent, as he may, while claiming under the deed, assail the validity of other debts secured in the same deed. His attitude aspurchaser does not impair his right as creditor to assail such debts as fraudulent or otherwise void. Runkle v. Runkle, 98 Va. 663, 37 S. E. Rep. 279. However, it was held in Craig v. Hoge, 95 Va. 275, 28 S. E. Rep. 317, that, if a creditor plaintiff succeeds in his attack upon a particular preferred debt secured in the deed, the debt being fraudulent, such debt will be eliminated from the security, but the creditor will not be substituted to the priority of the eliminated debt; the deed will stand just as it was, with the exception of the fraudulent debt, which will be excluded. See Runkle v. Runkle, 98 Va. 663, 37 S. E. Rep. 279. See Cohn v. Ward, 36 W. Va. 516, 15 S. E. Rep. 140. This lien, however, is conditional. As against creditors, with or without notice, and purchasers for value without notice, the lien is valid, only from the time that the plaintiff creditor files his memorandum of lis pendens, as provided by Va. Code 1887, sec. 2460: Acts 1893-94, p. 614. Davis v. Bonney, 89 Va. 755, 17 S. E. Rep. 229. Moreover, this lien fastens only upon the property conveyed, and not, like the lien of a j udgment on all of the debtor’s estate. Davis v. Bonney, 89 Va. 755, 17 S. E. Rep. 229. Here, also, should be noted, the case of Oppenheim v. Myers (Va. 1901), 39 S. E. Rep. 218, in which an action was brought by defendants as creditors to set aside a voluntary conveyance by plaintiffs, and the conveyance was set aside. Afterwards the plaintiff’s husband died and she petitioned to have the property set aside as her homestead. It was held that the petition should be granted under Va. Code 1887, sec. 3642, providing that the homestead may be set apart at any time before it is subjected to sale, notwithstanding sec. 2460 providing that the credi tor causing such conveyance to be set aside shall have a lien on the property from the commencement of the action. See generally, Wright v. Hencock, 3 Munf. 521.
Furthermore, a creditor who joins in a suit to set aside a fraudulent conveyance some time after the filing of the bill is entitled to a lien prior to that of the creditor commencing the suit where the former filed such memorandum and the latter did not. Davis v. Bonney, 89 Va. 755, 17 S. E. Rep. 229.
Nevertheless, the priority of a creditor’s lien obtained by first filing a memorandum concerning a creditors’ suit to set aside a fraudulent conveyance as required by Va. Code 1887, sec. 2460, is not affected by the fact that the lien attached after the rendition of a decree in favor of such creditor and of another creditor who commenced the suit. Davis v. Bonney, 89 Va. 755, 17 S. E. Rep. 229.
2. Petitioning Creditor’s Lien.
When Lien Begins.—And it is further provided by Va. Code 1887, sec. 2460, that when a creditor comes into a suit which is brought by another creditor, to assail a fraudulent or voluntary conveyance, he shall have a lien from the time of filing his petition. This section was amended by Acts 1893-94, ch. 556, pp. 614, 615, so as to allow the petition to be filed in the clerk’s office at rules. 2 Va. Law Reg. 433. Such lien is conditional, and subject to the principles governing plaintiff’s lien, explained ante. “Lien of Plaintiff."
K. DISPOSITION OF THE PROPERTY.
1. In General.
Placing Lands in Hands of a Receiver.—If there be several parties who claim tobe paid their debts, and to be indemnified for securityship out of a debtor’s land and chattels conveyed by deeds, and there be an adversary creditor by judgment, who claims the right to have the deeds set aside for fraud, and the property sold to pay his judgment debt, an interlocutory decree, which, without deciding on the validity of the said several debts, yet directs that the land conveyed shall be sold for cash, and the proceeds to be paid into bank to the credit of the cause, is premature and erroneous, because it has a tendency to sacrifice the property, by discouraging the creditors from bidding, as that probably would, if their right to satisfaction of their debts had been previously ascertained.
Such a decree may be proper as it regards the sale of chattels, because they are perishable, liable to be wasted, and no sacrifice need be apprehended, because they may be sold In detail.
*191As to the lands, they should in such case, be put into the hands of a receiver, to be rented out, until the rights of the parties, in respect to that subject, are determined, having a due regard to the rights ot the widow of the debtor. Cole v. M'Rae, 6 Rand. 644.
Directing an Account.—And in McNew v. Smith, 5 Gratt. 84, it was held to be a correct practice, for a court, at the suit of judgment creditor, upon setting aside a sale of personal property by the debtor, as fraudulent and void, and directing the purchaser to deliver the property to a commissioner who was directed to sell it, to direct an account of its value in order to subject the purchaser for the amount, upon his failure to so deliver the property to the commissioner as directed.
8. Subjecting Land to Claims of Creditors.— Where a deed is proven to have been made on a secret trust in fraud of the grantor’s creditors, it will be set aside: and the land subjected to the payment of the debts due the creditors. And a co-surety who has paid the debt by reason of the principal’s insolvency, and has been subrogated to the lien of the judgment paid, may have the land conveyed subjected to the payment of his claim. Hawker v. Moore, 40 W. Va. 49, 20 S. E. Rep. 848.
And though a trust deed is held to be valid in a suit by a judgment creditor to set it aside the creditor is entitled to the surplus after paying the debt secured. Sipe v. Earman, 26 Gratt. 563.
3. Costs and Attorney's Fees.—In a suit to su bject land to the payment of a judgment lien and to set aside deeds for fraud against the plaintiff, it is proper to decree that the costs of the suit shall be iirst paid out of the proceeds of sale of the land. Hinton v. Ellis, 27 W. Va. 422.
Moreover, in a suit by certain creditors to set aside a deed of trust because they were postponed to other creditors of the insolvent grantor, where the trustee was interested to a certain extent in one of the preferred claims, and. together with others, defended the suit, on a decree for plaintiffs, the court properly refused to allow the trustee attorney’s fees out of the fund. Darby v. Gilligan, 37 W. Va. 59, 16 S. E. Rep. 507. See monographic note on “Costs in Civil Cases.”
4. Priorities or Creditors.--It is unnecessary to ascertain the liens existing upon the land before making a distribution of the proceeds of the sale of the land, and the party filing the bill and setting aside the conveyance is entitled to be first satisfied out of such proceeds, unless there are prior liens. State v. Bowen, 38 W. Va. 91, 18 S. E. Rep. 375.
And where a deed of personal property, giving preference to creditors accepting its terms, was sought to be enforced in equity by creditors who had accepted its terms, and other creditors filed answers attacking it for fraud, such answers may be regarded as cross bills; and where such defendants were defeated in the court below and they alone appealed, and procured a reversal of the decree, and the deed was declared void, they have priority, there being no liens before their answers were filed, and are entitled to be first paid out of the fund. Clark v. Figgins, 31 W. Va. 156, 5 S. E. Rep. 643; First Nat. Bank v. Parsons, 42 W. Va. 137, 24 S. E. Rep. 554.
Moreover, where a grantor executes successive deeds of the same property to secure different debts, none of them being given subject to those previously executed, if any of the deeds are subsequently declared void as in fraud of creditors, the proceeds of the property must he applied to the payment of the remaining valid incumbrances in the order of their priorities, before any claims of unsecured creditors of the grantor can be paid. Lewis v. Caperton, 8 Gratt. 148.
In this connection, it was declared in Farmers’ Bank v. Corder, 32 W. Va. 233, 9 S. E. Rep. 220, that, although where a deed was made directly from a husband to his wife, and as part of the consideration she agreed to pay one joint creditor of her husband $300, and another $100, with interest on the amount, which debt the husband owed to these parties, and to secure which amount the vendor's lien was reserved, the deed might be set aside as to general creditors as fraudulent, yet the liens thus reserved must be respected as liens on the equitable title conveyed as of the date of the record of said deed, if said claims were valid in other respects.
Nevertheless, creditors not secured in a deed of trust, who sue to overthrow it on the ground that the debts secured and preferred are fraudulent, and succeed in overthrowing some only of the debts secured, are not advanced in priority so as to take the rank of the debts overthrown, and get payment out of the property conveyed in preference to buna .Me creditors preferred by the deed, but the whole property remains to answer the demands of the bonajlde preferred creditors, according to the deed. Cohn v. Ward, 36 W. Va. 516, 15 S. E. Rep. 140. See ante, “Lien of Creditor.”
L. REVIEW.
1. Presentation and Reservation in Lower Court of Grounds of Review.
When Objection Should Be Hade in Lower Court.
Charge of Fraud.—Where it is not charged in the court below that a conveyance is fraudulent, such charge cannot, for the first time, be made in the appellate court. Pracht v. Lange, 81 Va. 711.
Excessive Judgment.—Moreover, it is too late for a grantor in a fraudulent deed to urge in appellate court that the judgment is excessive in a suit to annul that deed and subject the property to that judgment. Wray v. Davenport, 79 Va. 19.
Omission by Court to Hake Such Direction That a Complete Decree Can Be Rendered— Cause for Reversal. —However, where it appears, in a suit to set aside a bond and trust deed as fraudulent towards creditors, that they have been assigned, the failure of the court, before entering a decree on the merits, to direct the assignee to be made a parly, so that a complete decree, binding on all persons interested, maybe rendered, is cause for reversal on appeal, though no obj ection for want of parties was taken in the trial court. Thornton v. Gaar, 87 Va. 315, 12 S. E. Rep. 753.
Failure to Fthe Copy of Execution and Judgment —No Ground for Reversal.—But in a suit in equity by a judgment creditor to set aside fraudulent conveyances of properly by his debtor, where the judgment and execution are admitted by the pleadings, the failure to file a copy of them in the cause is not a ground of reversal of the decree of the court below setting aside the conveyances, especially if no objection is taken in that court to the failure to file them. McNew v. Smith, 5 Gratt. 84.
Defendants Are Not Summoned to Answer Petition —Question Cannot Be Raised in Appellate Court.- And in a suit to set aside an alleged fraudulent conveyance, other creditors filed their petitions setting up their debts, asked to be made parties plaintiff, and prayed certain reliei, but did not ask for process *192against defendants. An account was directed to ascertain the priority of the claims, of which defendants had full notice, and on the coming in of the commissioner’s report the grantee filed exceptions. It was held, that the objection that the defendants were not summoned to answer the petitions could not he raised for the first time on appeal. Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. 1.
2. What Parties Are Entitled to Allege error.—And in a suit to set aside a fraudulent conveyance from a husband to his wife, it was declared that depositions taken after notice given the wife may be read against her; hut, when read against her husband also, the wife, who alone appeals from a decree setting aside her deed, is not entitled to a reversal of the decree because of a want of notice to her husband of the taking of the depositions. Silverman v. Greaser, 27 W. Va. 550.
Moreover, in a suit to set aside a fraudulent conveyance, the judgment debtor cannot question the fraud on appeal, where the alienees do not appeal. Price v. Thrash, 30 Gratt. 515.
3. Reversal Dependent upon a Question of Fact.—And in a suit to set aside a deed from a man to his intended wife given, prior to 1887, in consideration of marriage, it was shown that, when the deed was given, he was insolvent, and had recently purchased a good deal of property on credit, and that the deed would leave the creditors unpaid. Prior to the marriage a notice was served on the wife in which such suspicious circumstances were set forth. Upon these facts, it was held that the commissioner who heard and saw the witnesses, having held that there was no proof of fraudulent participation on the part of the grantee, and his report having been confirmed by the circuit court the deed would not he set aside. Moore v. Butler, 90 Va. 683, 19 S. E. Rep. 850. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481493/ | MONCURE, J.,
after stating the case, proceeded:
A trustee in a deed of trust is the agent of both parties, and bound to act impartially between them; nor ought he to permit the urgency of the creditors to force the sale under circumstances injurious to the *debtor at an inadequate price. 1 Lom. Dig. 323; Quarles v. Lacy, 4 Munf. 251. He is 1 ‘bound to bring the estate to the hammer,” as has been said by Bord Eldon, “under every possible advantage to his cestui que trusts;” and he should use all reasonable diligence to obtain the best price. Hill on Trustees 479. marg. and the cases cited. He may and ought, of his own motion, to apply to a court of equity to remove impediments to a fair execution of his trust; to remove aiij7 cloud hanging over the title; and to adjust accounts if necessary, in order to ascertain the actual debt which ought to be raised by the sale, or the amount of prior incumbrances. And he will be justified in delaying for these preliminary purposes, the sale of the property, until such resort may be had to a court of equity. If he should fail, however, to do this, the party injured by his default has an unquestionable right to do it; whether such party be the creditor secured by the deed, or a subsequentincumbrancer, or the debtor himself or his assigns. And this may be done notwithstanding the impediments in the way of a fair sale, may have been known to the debtor at the time of the execution of the deed, and the removal of them before the time prescribed in the deed for the sale was impracticable, and could not therefore have been contemplated by him.
For these principles I refer to 1 Lom. Dig. 322-326; 1 Tuck. Com. book 2, p. *240101-106; Quarles v. Lacy, 4 Munf. 251; Gray v. Hancock, 1 Rand. 72; Chowning v. Cox, Id. 306; Gibson’s heirs v. Jones, 5 Leigh 370; Miller v. Argyle’s ex’or, Id. 460; Wilkins v. Gordon, 11 Leigh 547.
Het us apply these principles to this case. The property was sold for less than 'a fourth of its value. The sale, was made under circumstances and in a manner well calculated to produce such a result. Even if the title had been unexceptionable, I think the trustee *ought to have postponed the sale to another day; which would have subjected the creditors to no other inconvenience than a little delay, while it would have avoided a sacrifice, and might have obviated the necessity of a sale. It may be said that Rossett’s agent ought not to have forbid the sale. Whether he ought or not, he did what he thought was his duty, and I do not think that this act of the agent justified the sacrifice of the principal’s property. See Ord v. Noel, 6 Madd. R. 126; Wilkins v. Gordon, 11 Leigh 547.
But in my view of this case it is unnecessary to consider whether the sacrifice of the property, and the circumstances under which it was sold, independently of the state of the title, would, severally or together, be sufficient ground for setting aside the sale. I am of opinion that the cloud over the title at the time of the sale is of itself a sufficient ground for that purpose. The deed conveyed, and the trustee sold only the equitable title to the property. The legal title was outstanding in A. N. Kinnaird. It should have been gotten in before the sale; and the trustee would have been justified in delaying the sale, and in bringing a suit, if necessary, for that purpose. No efforts were used to get it in. It probably might have been gotten in without a suit, and merely by calling on Kinnaird and presenting him a deed for execution. The deed of trust recited that Rossett had paid Kinnaird for the property. Eisher obtained a deed from Kinnaird shortly after the sale, and seems to have had no difficulty in obtaining it. That this defect was a cloud over the title, which it was the duty of the trustee to have had removed before the sale, and that on his failing to do so the debtor had a right to have the sale enjoined until the cloud was removed, are propositions which are fully established by the authorities before referred to. The existence of the defect appeared upon the face of the deed of trust, and was *well calculated to affect the sale. Indeed, Eisher states in his answer that it was well known to him and most if not all the capitalists present at the sale, that the legal title was in Kinnaird; that it was very uncertain whether he would make a deed for it or not; and that a suit would probably be necessary to compel him to do so: And this is stated in the answer as one of the causes of the sacrifice in the sale of the property. But the trustee having made the sale without having the cloud over the title removed, and the principal creditor secured by the deed having become the purchaser, the question is, whether the debtor is entitled to have the sale set aside? He had provided funds for the payment of the trust debts, and expected in that way to prevent a sale; but was disappointed by an unforeseen and unaccountable accident. But for having made such provision he might have resorted to an injunction. He was not present at the sale, forbade it by his agent, and has never acquiesced in it. The purchaser was the principal creditor, was well acquainted with all the facts which rendered the sale improper, and yet insisted on its being made. A few days after the sale and before a deed was made to him by the trustee, the draft for two hundred and twenty dollars, which exceeded the amount of the trust debts, was offered him by the debtor’s agent, but he refused to receive it, or give up the benefit of his purchase, and required the trustee to execute the deed; assigning as a reason therefor that the debtor had used abusive language to him. He says in his answer, that he believes when Rossett’s agent first offered him the draft, he required an assignment of the deed of trust; though after the draft was refused on these terms, he perhaps offered it as a payment. All that Hassler could have expected was, to be substituted to the place of the creditors whose claims he was willing to pay; and not that they should incur any personal liability *as assignors to him; or that the operation of the deed as an indemnity to Eisher as security for costs in Hassler’s lessee, &c. v. King, should be impaired. It is obvious that Eisher did not refuse to give up the benefit of his purchase on account of the terms on which the draft was offered to him; though I do not consider that question material.
Whatever might have been the rights of a bona fide purchaser without notice at such a sale, as to which I express no opinion, I think that the creditor being the purchaser under the circumstances before stated, the debtor has lost none of his rights by the sale, but is entitled to have it set aside and the property resold, if necessary, for the purposes of the trust. See Gibson’s heirs v. Jones, 5 Leigh, 370; Breckenridge v. Auld, 1 Rob. R. 148; Dabney, &c., v. Green, 4 Hen. & Munf. 10; Lord Cranstown v. Johnston, 3 Ves. jr. R. 170.
But it may be said that, the cloud over the title is not mentioned in the bill as one of the causes of the sacrifice of the property ; and therefore the sale should not be set aside on that ground. It is true that nothing is said about it in the bill; but it is fully stated in the answer, and is thus made a part of the case. A defect in a bill may be cured by a statement in the answer, where such statement, as in this case, is not inconsistent with the case made by the bill. An instance of this kind occurred in Wood v. Dummer, 3 Mason’s R. 308. There the bill charged fraud as the ground for relief; whereas trust was the only ground *241ou which it could be given; and to maintain that ground it was necessary to show that a certain corporation was insolvent. That fact was not charged in the bill, but was admitted in the answer; and thereupon relief was given. After the answer was filed in this case the appellant might have amended his bill and stated the fact in regard to the title. He actually did move at the hearing for leave to make such amendment, *but it was denied by the court. If an amendment of the bill had been necessarjq I think the court ought to have granted the leave, even at the late period at which it was asked. Bellows v. Stone, 14 New Hamp. R. 175. But I do not think it was necessary. It could have answered no good purpose, and would have been attended with expense and delay. There was much less reason for an amendment of the bill in this case than in Shugart’s adm’r v. Thompson’s adm’r, 10 Leigh 434, which was a suit to set aside a settled account. The answer denied the grounds on which the settlement was impeached in the bill. There was an order of account, and proofs were adduced, which, though they did not sustain the specific objections taken in the bill, yel ascertained that the settlement might be justly surcharged in other respects. It was held, that although according to the strictest and most formal practice, the plaintiff may be required to amend his bill, and urge therein the objections to the settlement shown by the evidence, yet it is competent to the court to dispense with this proceeding and permit the plaintiff to proceed in respect to the objections shown by the evidence, in like manner as if they had been noticed by the bill. Judge Stanard said, “Such a practice seems to me recommended by many considerations. It is more compendious and less expensive, and tends to prevent or shorten those delays in the administration of justice which are grievances admitted by all, and by many urged as a reproach to its ministers.”
Upon the whole, I think the decree should he reversed, the sale set aside, the property reconveyed by Fisher, with covenants against his own acts only, to the appellee Smith, on the trusts declared by said deed of trust, and the said Fisher should account for the rents and profits of the property since the sale, after deducting the value of any permanent improvements made thereon by him,and also deducting any reasonable *expense he may have incurred in getting in the legal title which was outstanding in Kinnaird at the time of the sale. And the cause should be remanded to the Circuit court for further proceedings to be had therein, as follows, to wit: An axcount should be taken of the said rents and profits, and of any such improvements and expense, for the purpose of ascertaining the balance due thereon by said Fisher; which balance should be applied to the purposes of said deed of trust, to wit, to the payment of the debts secured thereby, (both of which are now due to said Fisher, he having paid the debt to Wilson & Co. out of the price at which the land was sold to him at the trust sale,) with the interest which may be due thereon, and to the indemnity of the said Fisher as security for costs in the case of Hassler’s lessee, &c., v. King. If the said balance should be sufficient to satisfy the said purposes, the surplus, if any, should be paid, and the property released, forthwith to the appellant. If there should be no such balance, or it should be insufficient to satisfy the said purposes; and the appellant, in a reasonable time to be prescribed by the court, should satisfy the same, or so much thereof as might remain unsatisfied by the application of any such balance as aforesaid, then the property should be released to the appellant. But if he should fail to make such satisfaction, then the said property should be sold in the manner and ou the terms prescribed by the said deed of trust; and the proceeds applied to the satisfaction of the purposes of the trust, or so much thereof as might remain unsatisfied as aforesaid. The costs of the appellant in the Circuit court should be paid by the appellee Fisher.
The other judges concurred in the opinion of Moncure, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481495/ | ALLEN, P.
This was a writ of right, in which there was a verdict and judgment for the tenant. On the trial the demand-ant filed two bills of exceptions to decisions of the court against him. By the first bill *of exceptions it appears, that the demandant having first proved that Michael Erskine was deputy sheriff of Monroe county at the time he sold and conveyed to William Vawter under whom the demandant claimed the land alleged by him to be the land in controversy, proposed to offer a deed in evidence which is set forth in the bill of exceptions. It purports to be a deed executed by said Erskine, deputy for William Haynes, high sheriff of Monroe county, to said Vawter, and recites that pursuant to the act concerning taxes on land, passed on the 9th of February 1814, the said Erskine, as such deputy, after having given notice by advertisement in the Virginia Argus, a public paper, and at the court-house door of said county, according to law, previous to August court, exposed to sale at said court, the lands theretofore returned delinquent for the nonpayment of taxes in said county; and thereupon William Vawter became the purchaser of a tract of fifty thousand acres, which formerly belonged to, and was returned delinquent in the name of, Andrew Beirs, for the sum of five hundred and ninety-four dollars and twenty-four cents, &c. But the court refused to permit the deed to go in evidence as anything or for any purpose, save that of color of title, until the demandant should first establish that all the requirements of the law as to the sale had been complied with.
This court decided in the case of Flanagan v. Grimmet, 10 Gratt. 421, that a deed containing such recital of the circumstances of the sale, if shown to have been executed by a duly qualified officer authorized by the law to sell lands returned delinquent for nonpayment of taxes, and to execute a conveyance to the purchaser, furnished prima facie evidence of the transfer of such title to the purchaser as, at the time the land was returned delinquent, was vested in the person in whose name it was returned, his heirs, &c. *But that said deed was liable to be impeached, after the time for redemption allowed by the law had elapsed, by proof of irregularity appearing on the face of the proceedings; or by the fact appearing on the face of the proceedings, that the arrearage of taxes, for the nonpayment of which the land was sold, did not exist, according to section 38 of the act of February 9th, 1814. The onus probandi is cast upon the contesting party, to show by the face of the proceedings, such irregularity as affected the validity of the deed.
A similar principle has been established in the state of Kentucky, although .it does not appear that their law contained any provision similar to the 38th section of the act of February 1814. By the law of that state the register was directed to sell such lands at the state-house, after advertising the sale, &c. ; and he was empowered to execute deeds for the lands sold. Under this law it has been held in numerous instances, that the deed of the register, purporting to have been made for the sale of land for taxes, implies prima facie, a compliance with the requisitions of the laws under which the land was sold and the deed executed, liable to be repelled by proof that the law was not regularly pursued in making the sale; and that it is not necessary to the validity of the register’s deed that it should recite that the land had been advertised according to the statute. Allen v. Robinson, 3 Bibb’s R. 326; Graves v. Hayden, 2 Litt. R. 62; Hickman v. Skinner, 3 Monr. 210; Terry v. Bleight, Id. 271; Currie v. Fowler, 5 J. J. Marsh. R. 145. The statute in Virginia gives the same effect to the sheriff’s deed which the courts of Kentucky ascribed to the deed of the register, because he was an officer of government presumed to do his duty; and the 38th section of the act of February 9th, 1814, limits the proof to repel this prima facie presumption, to irregularities, &c., appearing on the face of the proceedings.
*The decision of the court excluding the deed, until the party offering it established that all the requirements of the law as to such sale, had been complied with, reversed this rule, and cast the onus probandi on the grantee, instead of the contesting party. In this case it is stated that the demandant having first proved that said Michael Erskine was deputy sheriff at the time of said sale and conveyance, offered the deed in evidence. The bill of exceptions does not state in so many words, that he had proved that William Haynes was high sheriff. In Rockbold v. Barnes, 3 Rand. 473, it was held that where land was sold and a deed made by the deputy sheriff, it was indispensably necessary that there should be proof that one was sheriff and the other was deputy. In Flanagan v. Grimmet it did not appear from the bill of exceptions taken to the decision of the court rejecting the deed, that any such proof had been offered. This court held under the authority referred to, that such proof was necessary. But as the bill of exceptions did not purport to set out all the evidence, and as it appeared that the court, when the deed was first offered, rejected it as evidence, for objections appearing on the face thereof, thereby precluding any further proof in relation thereto, if such proof had not been offered or waived; the court below deciding upon the invalidity of the deed alone, and the bill of exceptions intending to present for revision the single question so decided; this court considering that decision erroneous, reversed the judgment, and remanded the cause for a new trial, with instructions to admit the deed as prima facie evidence of such title as, according to the 37th section of the said act, it purported to vest in the purchaser, upon proof that the person therein named as sheriff, was sheriff, and the other *264was deputy sheriff. In this case, perhaps by a liberal construction of the bill of exceptions, it might be considered there was such proof, as it sets out that there was proof that Michael Brskine *was deputy, from which it might be inferred there had been proof that William Haynes was high sheriff. But be that as it may, the bill of exceptions shows that no objection was made to the deed on that account. The proof may have been offered, or have been waived, or probably if required, could readily have been supplied, if the deed had not been rejected for the purpose for which it was offered, on other grounds. Those grounds are set forth, and the bill of exceptions was designed to present for revision in the appellate court the correctness of that decision. In the judgment of the court, upon the question thus raised there was error, according to the decision of this court in the case referred to: it not being incumbent on the purchaser holding under such a deed to do more to entitle .himself to the benefit thereof, than prove its execution and the official characters of the sheriff and deputy sheriff.
I think the court erred also, in excluding the deposition set forth in'the second bill of exceptions upon the ground that it was not properly authenticated. The case falls within the principle decided in Pollard’s heirs v. Lively, 2 Gratt. 216, which held that a certificate such as is found in this case, headed with the state and county, and signed by the party taking the deposition with his name and the letters J. P. is sufficient evidence of the fact that the deposition was taken by a justice of the peace.
The other judges concurred in the opinion of ALLEN, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481500/ | LEE, J.
That a warrant for a forcible or unlawful entry upon lands and tenements and turning another out of possession, or for unlawfully and against his consent withholding possession from the party entitled, under our statute, is a civil action, which, by virtue of the act of the 28th of March 1843, may be removed to the Circuit court, on motion without notice, after it shall have remained undecided in the County court for the period of one year or upwards, has been decided by this court, after full argument during the present term, in the case of Harrison v. Middleton, supra 527. I refer to the opinion delivered by Judge Moncure in that case, for a very full and (to me) satisfactory exposition of the reasons which conduced to that conclusion.
By the provisions of the act referred to, any two justices of the peace of the county may meet at the court-house, and form a court for the trial of such a *warrant; when so met and a court is so constituted, it is declared to be a court of record, with power to issue all proper process to bring before them witnesses or other persons whose attendance may be lawfully required by them; and to adjourn from day to day and from time to time till the trial is ended. The sheriff of the county is required to attend upon the justices constituting it, and to execute their orders. The clerk of the County or Corporation court is also to attend them, to record their proceedings and file away the papers exhibited. A jury is to be impaneled and charged in the manner prescribed by the act; the justices are to suffer the parties to be heard by counsel; to admit all legal evidence offered on either side; to decide all questions of law properly submitted to them; to admit bills of exceptions to their opinions; and in all respects conduct the trial according to the usages of courts of law within this commonwealth. When a verdict has been rendered, the court is to render judgment upon it in favor of the plaintiff or the defendant, according to the nature of the finding ; or it ma3' for proper cause set it aside, and grant a new trial, as in other civil causes (Sess. Acts, 1825-6, p. 26, § 3) ; in which latter case,the cause is to be continued to the regular term of the County or Corporation court, and the new trial is to be had therein. The judgment of the jrtstices so rendered is to be regarded as a judgment of the court of the county, and is to be in all respects executed in the same manner as if it had been the judgment of such court at an ordinary term; and either party thinking himself aggrieved, may have the same remedy, by writ of ^rror or supersedeas, as if it had been the judgment of such court: and if it be reversed, the cause is to be remanded to such court, where necessary. I think it clear, therefore, that a court so constituted is to be regarded as a special County court for the trial of the *particular cause ; and that when two or more justices meet and form such a court, the case is to be regarded for the purpose of the act above referred to, and all other legal purposes, as pending in the County court; and that after the expiration of one year from that time, if it remain undecided, it may be removed to the Circuit court, according to the provisions of that act.
I think the objection which has been urged on the part of the defendants to the warrant is without any valid foundation. The complaint made and verified by the party under oath, may be looked to in aid of the warrant; and taking them in connection, they may be fairly construed as being for an unlawful entry and turning the plaintiff out of possession of the tenement in controversy, and unlawfully holding the plaintiff out of possession at the institution of the suit. The withholding of the possession by the defendant at the emanation of the warrant, was a fact as important to be found by the jury as that of the original turning out, to entitle the plaintiff to a recovery. I think the motion to quash was properly overruled.
The plaintiff’s motion to exclude all the documentary testimony offered by the defendant, came at a late period, not having been made until all the evidence had been given, and after the opening argument for the plaintiff had been concluded and that of one of the defendant’s counsel about closed; but if the motion is to be treated as a motion to instruct the jury to disregard the evidence, and in that view deemed admissible when made, and waiving the question whether the grant to Gibson and the conveyance from Baing to Stephenson being referred to in the deed from Stephenson to the ancestor of the defendants, as instruments of title under which, together with the title bond from Baing and the deed from Stephenson, the defendants claimed, might not properly have been given in evidence alona: with the title bond and deed, *for the purpose of proving such a possession under an honest and bona fide claim of title as might ripen their claim, however defective originally, into a perfect title, still, for the purpose of proving such a possession and thus making out a bar under the statute, the title bond and deed from Stephenson were legitimate and proper testimony, though the defendants *294did fail to connect themselves with the grant to Gibson; and as the motion was to exclude all the documentary evidence of the defendant, it was too broad. Nor was the court bound to discriminate between the different documents offered; but might properly, as it did, overrule the motion for want of a proper designation by the plaintiff of the particular instruments of evidence which ought to have been excluded.
Of the first instruction given to the jury, complaint is made that its meaning is obscure ; and that however understood, it states the law incorrectly. The instruction is perhaps somewhat deficient in perspicuity ; but if it be examined with some little care and attention, I think its meaning will be sufficiently' apparent. Nor is there any such obscurity about it as would render it unintelligible to a jury of ordinary intelligence. It in effect asserts the following propositions: That if the instruments of title under which the plaintiff and the defendants claimed, respectively, embraced the land in controversy; and if the plaintiff and those under whom he claimed had entered upon and taken actual possession of that part of the land embraced within their boundary outside of the interlock with the defendants’ boundary; and if the ancestor of the defendants, under his deed, entered upon the land in controversy (that is, upon the part within the interlock), claiming it as his own, the same being embraced by his deed, and took and held actual adversary' possession thereof by residence, improvement, cultivation or other open, notorious and habitual *acts of ownership, coextensive with the limits of the interlock, the land within the same having continued to be forest and in a state of nature, until so entered upon and taken possession of by the defendants’ ancestor, such entry and possession of the latter operated a disseizin of those under whom the plaintiff claimed, to the extent of the interlock, although the ancestor of the defendants may not have actually inclosed and cultivated the whole of the land in controversy. And that if he continued in possession uninterruptedly, for five years or upwards, and died so in possession, upon his death a descent was cast upon the defendants, his heirs, which would toll the entry of those so disseized; and that if the defendants continued to hold such possession uninterruptedly from the death of their ancestor until the institution of this suit, the plaintiff could not maintain his action. So understood, I cannot perceive any well founded objection to the instruction. It presupposes an ouster by the defendants’ ancestor of the plaintiff to the whole extent of the premises in controversy, the land embraced by the interlock; and affirms that the adversary possession which constitutes it must not of necessity be evidenced by actual inclosure and cultivation, but may be by other open, notorious and habitual acts of ownership, sufficient to amount to actual possession. That such possession may be in this mode is sufficiently established by the cases of Taylor v. Burnsides, 1 Gratt. 165, and Overton v. Davisson, Ibid. 211; and is also supported by the authority of the cases of Ellicott v. Pearl, 10 Peters’ R. 412; and Ewing’s lessee v. Burnett, 11 Peters’ R. 41. That the premises in controversy' were embraced by both of the conflicting claims, and that possession had been taken by those under whom the plaintiff claimed, of that part of the land claimed by them without the limits of the interlock, would not render actual in closure or fencing in, *and actual cultivation, indispensable to enable the defendants or their ancestor to acquire possession of the land within the interlock. For this purpose the exercise of acts of ownership, if they were of the character contemplated by the law as sufficiently importing use, occupation and enjoyment, would suffice: and the possession w’hich they would confer would be of a part or the whole, according as they were restricted to a part, or coextensive with the entire limits of the interlock.
It is supposed, however, that the instruction was intended to present the question raised in the case of Overton v. Davisson, ubi supra, and upon which the opinions of the judges then constituting the court, were so much divided, as to the effect of an actual occupation by a junior patentee of part of an interlock upon the claim of another under an elder and conflicting grant, the latter having previously taken possession of that portion of the land within his boundary outside the interlock. But however that may be, the bill of exceptions as taken, does not present the question. It must be construed as supposing a possession of the whole land within the interlock. Whether it might have been raised upon the evidence in the cause, is immaterial. The instructions asked for by the defendants, and which the court declined to give, are not made part of the record; and in the instructions which the court gave in lieu of them, no opinion is expressed on the point.
The second and third instructions given by the court, have only been questioned, because they refer to the time and manner of taking and holding possession supposed in the first instruction, the expression of which therein is supposed to be elliptical and obscure or repugnant and contradictory in the terms employed. I have already said there is no well founded objection to the first instruction, nor any serious difficulty in ^'understanding its proper meaning. That if the defendants were infants at the time of the acts done by their father, they could not be responsible for those acts in this form, as stated in the second instruction; arid if at the time of the conveyance to the plaintiff, the anees tor of the defendants held the land in controversy' in actual adverse possession under his claim, and continued to hold the same until his death, and such possession was after his death, continued by the defend*295ants, and never abandoned by them, that such conveyance to the plaintiff was inoperative and ineffectual to pass title to the premises so held in such adversary possession, are propositions too plain to admit of doubt or discussion.
We come next to the instructions asked for by the plaintiff, and which the court refused to give.
With regard to the first of the series, it is only necessary to say that it must be understood as declaring to the jury that possession taken by those under whom the plaintiff claimed, of the premises in controversy, and continued for seven years, would be in the year 1831, or subsequently, a bar to any right of entry on the part of the defendants or their ancestor, or any other person claiming under the Gibson grant; whereas in the year 1831 and until the passage of the act of March 30th, 1837, no possession short of fifteen years, unaided by a descent cast, would bar the entry of one having right or title to the same: and the court, for this reason, might properly refuse to give the instruction.
The second in the series is also objectionable, first, because if taken in connection with the evidence, as it must be to escape the objection of being a mere abstraction, it assumes that the acts relied upon by the defendants as showing their possession, were occasional or interrupted, and not continued and habitual, a matter of which it was for the jury to judge; and ^'secondly, because it assumes that such acts on the part of the ancestor of the defendants were unaccompanied by any “paper title,” legal or colorable; and declares that possession of the premises couid not be gained without such a paper title embracing the same within its boundary. An entry by one upon land in possession, actual or constructive, of another, in order to operate as an ouster and gain a possession to the party entering, must be accompanied by a claim of title; but it is not indispensable that the claim should be ostensible in the form of a deed or any other writing. The claim, from its nature and character, may be wholly independent of any written evidence. Nor, if the party have a deed or other writing with a specified boundary, is the possession which he may take and hold necessarily restricted to what shall prove to be within the precise boundary. He may take and may hold actual possession of land lying outside his true boundary. Whether he has done so in any particular case, is a question of fact and of intention; and whether the acts referred to in this case amounted to such a possession, or were those of a mere trespasser, was a matter for the determination of the jury.
With regard to the third instruction asked for, I have only to remark that I think it was upon a matter wholly irrelevant to the issue before the jury. Whether the entry had been made and possession held, mistakenly, in consequence of the supposed error in running the line and marking the beech referred to, was a question which perhaps might have been material on the general issue in an action of ejectment, or on the mise joined on the mere right in a writ of right. But it could not have been material in this case. Here the question was whether in point of fact such entry had been made and such possession held, and how long before the institution of the suit; and I cannot perceive how the origin of the defendant’s '^possession could tend to illustrate the plaintiff’s right, or in any manner aid the jury in determining the line by which the defendant’s actual possession was to be bounded.
The fourth instruction asked for by the plaintiff is justly obnoxious to the objection made by him to the first instruction given by the court. The terms in which it is expressed are very vague and indefinite, and the meaning intended is extremely doubtful and obscure. If given, it would have been as likely to confuse the jury as to aid them in their deliberations. But it is otherwise objectionable. It is framed upon the hypothesis that the plaintiff had entered upon and regained possession of the premises in controversy after the entry by the ancestor of the defendants; and there is no proof of such re-entry and regaining of possession. It also assumes as a fact in the cause, that after the plaintiff had thus regained possession the defendants (after the death of their ancestor) had re-entered upon him; and declares such re-entry to be a trespass which might be redressed in this action, if the defendants continued to hold possession, provided it had been brought within three years after they had so regained possession. Now, whether the defendants had entered upon the plaintiff and dispossessed him, was the very gist of the action; and if it had even been stated hypothetically, it would have been no less objectionable, because there was no proof of any such re-entry by the defendants after the death of their ancestor, upon a regained possession of the plaintiff. The only entry that could be imputed to them was the entry made by their ancestor in his life time ; and their possession was precisely the continuation of the possession, whatever it was, that he had at the time of his death in 1839. There was no fresh entry made by them, nor any renewal of an interrupted possession. The instruction also imputes to *an entry upon and inclosure of part of the land in controversy by the plaintiff under his title, the effect of divesting the defendants of the possession of all the uninclosed lands within the interlock, without regard to the intent with which such entry and inclosure were made; whether that were to take possession and oust the defendants of the whole, or only the part entered upon and inclosed; and is on this account also obnoxious to just criticism.
The fifil instruction was a direct appeal to the court to settle a fact deemed material in the cause, the locality of the beginning corner of the Gibson survey. It is true the *296court might be called on to instruct the jury as to the principles of law which might serve to enable them to determine this point; but it was not for the court to apply those principles to the facts of the case, and point out to the jury the place at which they are to place the corner in question. But if this were even otherwise, it was for the party moving the instruction to designate the point which he contended should be adopted, or those which he thought should be rejected; and not to call upon the court in general terms, to examine the whole case and find out and designate to the jury the point at which the corner in question was to be fixed.
The sixth and last instruction asked for by the plaintiff, in the terms in which it is propounded, presents a mere abstract proposition for the opinion of the court. But if those terms could be aided by taking them in connection with the evidence, then the instruction must be understood as assuming that the evidence proved, that those claiming under one of the grants referred to, had entered and held possession of the premises from 1805 till 1833, and that no possession had been had under the other grant until 1833, matters in respect of which there should be no interference on the part of the court with the province of *the jury. Besides, although possession had been taken under one of the two grants referred to, bearing the same date, and had been held from 1805 till 1833, yet if in the last named year those claiming under the other grant had disseized those previously in possession, . and had continued to hold the premises in uninterrupted adversary possession down to the institution of the suit in June 1849, it by no means followed that the title of those who held the possession prior to 1833, would prevail in this suit. On the contra^, the subsequent adverse possession for sixteen years would be a bar to such title, unless those claiming- it could bring themselves within the exception contained in the act of 1837, or were entitled to recover in a writ of right upon the seizin of their ancestor or predecessor. And we must suppose that the comparison of titles made in the instruction referred to the parties in the pending action ; for if it were intended to apply as between previous claimants, it would have been totally irrelevant.
For these reasons, I think no error was committed by the court in refusing to give either of the instructions asked for by the plaintiff. The remark too which has been made in relation to the third of the series, is equalty applicable to most if not all of the others. The case was not ejectment nor a writ of right, but a statutory proceeding involving merely a question of an unlawful entry and ouster on the part of the defendants within the period of the limitation, and a wrongful detainer of possession at the institution of the suit; though the parties seemed to regard themselves as fully embarked in a trial of titles. It is difficult to perceive how the questions mooted in those instructions could tend to illustrate the matter in issue before the jury. Upon a trial of titles between these parties they might no doubt be proper subjects for discussion ; but however decided in this case, they *would seem to be irrelevant and inconclusive. And though decided erroneously, it should seem the judgment should not on that account be reversed, if we can see from the bill of exceptions that they did not and could not affect the merits of the case before the jury. Hunter v. Jones, 6 Rand. 541. See also Le Bret v. Papillon, 4 East’s R. 502.
Waiving all objections to the form, of the bill of exceptions purporting to set out the facts proved, I think the motion' for a nevr trial was properly overruled upon the merits. The plaintiff wholly fathed to prove any such entry and ouster on the part of the defendants, on the foundation of which alone he could be entitled to recover. The only entry and taking possession proved was that of the defendant’s ancestor, which was certainly not later than 1834; and the possession of the defendants was but the continuation of the possession of their ancestor, which devolved upon them on his death in the year 1839. Whatever might have been the fate of a proper action for the trial of the disputed title between these parties, the plaintiff clearly mistook his remedy in resorting to this proceeding. He has wholly fathed to make out a case upon which he is entitled to recover here; and the attempt to try the title in this form must be wholly ineffectual.
I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Eee, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481501/ | SAMUELS, J.
The appellants filed a bill in the Circuit court of Mason county, at July rules 1852, against Abraham Williams and William J. Stephens, wherein it was in substance alleged, that Abraham Williams of Mason county, and William J. Stephens, *of the city of Cincinnati, were bound to complainants in a forfeited forthcoming bond, on which was due the sum of five hundred and twelve dollars and thirty-two cents, with legal interest thereon from April 6th, 1852, until paid. That it was difficult to notify Stephens on the bond; and that it was useless to notify Williams. The bill further alleged that Stephens had valuable real and personal estate in Mason county ; and prayed that Stephens’ personal property might be sold to satisfy complainants’ demand; and if that should not be sufficient for the purpose, that then the real estate might be sold for the deficiency; and for general relief. To this bill the defendants demurred; and upon the hearing, the court below sustained the demurrer, and dismissed the bill. From this decree the appeal before us was taken.
Immediately after July 1st, 1850, when the Code of 1849 went into operation, a bill such as this could not have bee'h entertained ; the statute giving the remedy by foreign attachment in chancery, existing prior to July 1st, 1850, having been repealed by the Code of 1849. A new remedy, however, is given by the statute passed April 3rd, 1852, which was in force from its passage. Sess. Acts 1852, ch. 95, £ 1, p. 78.
By the statute last named, a right is given to a creditor to sue his debtor in a court of equity, if his debt, exclusive of interest, exceed twenty dollars, if the debtor be not a resident of the state, and if he have estate, or debts due to him within the county or corporation in which the suit is brought. The statute of 1852, above mentioned, taken in connection with the statute, Code 1849, ch. 151, £ 1, gives a creditor the right, upon making an affidavit stating the amount and justice of the claim, that there is present cause of action therefor, that the defendant or one of the defendants, is not a resident of this state, and that the affiant believes he has estate or debts due him within *the county *298or corporation in which the suit is, or that he is sued with a defendant residing therein, to sue out of the clerk’s office an attachment against the estate of the nonresident for the amount so stated. Section 2 of ch’. 151, Code 1849; and section 1 of the act of 1852, give the creditor the right to sue out the attachment after bringing his suit.
In the case before us, the complainants made no affidavit; nor had they sued out any attachment up to the hearing of the cause; the case stated in the bill, however, was such that the affidavit might be made, and the attachment sued out, after the bill was filed. See act April 3d, 1852, $ 1.
The question is thus presented, whether the affidavit and attachment were essential to the jurisdiction of the court at the time the cause was heard on the demurrer?
The statute last above cited, ? 2, directs that in suits of this nature the proceedings shall be the same as in other suits in chancery. Applying then the general principles of chancery practice, as modified by the statute of April 3rd, 1852, we must hold that if the court once had jurisdiction, it might rightfully proceed to do full justice between the parties before it, although the claim of the complainant be purely legal; as in case of a bill for discovery and relief in the matter of a legal demand: The right to a discovery gives the court jurisdiction; but having the case before it on this ground, the court should proceed to give a decree for the debt, although it be merely legal in its nature. In this case, the nature of the claim asserted, the residence of the defendant Stephens, and the location of his property, give to the Circuit court jurisdiction of the subject: the mode and measure of relief must be governed by the general rules of cháncery practice, as modified by the statute of 1822.
*It would be unreasonable to suppose that the mere existence of Stephens’ property within the county of Mason was intended to give complainants the right to a general and personal decree in nowise affecting the specific property. The suit must be brought in the county in which the property is placed. There must be some reason for this requisition; and no other than this can be suggested, that the property may be subjected to the payment of complainants’ deniand. A mere personal decree might be rendered in the courts of any county; a decree subjecting the property would be more conveniently and effectively rendered in the courts of the county in which that property is placed. I am, therefore, clearly of opinion, that the only decree complainants could have had against Stephens, if he had not appeared and made defence, would have been for satisfaction out of his property attached under the process provided by the statute of 1852.
The defendants, however, appeared and made defence, thereby putting themselves fully under the control of the court, for every legitimate purpose in the cause. The attachment was intended to perform two several and distinct functions; one to give the absent defendant notice of the suit brought against him. This mode of giving notice by levying on property, was formerly in familiar use. In the case before us it became unnecessary to resort to this mode of notice, in as much as the absent defendant appeared and defended himself. The other function of the attachment is to give complainants security for the payment of their deniand. This operation of the attachment is wholly for the benefit of complainants ; if waived or omitted, it can in nowise injure the defendant, seeing that he has already had notice to defend himself, and has acted accordingly. The complainants, if they elect to do so, may waive a part of their remedy, and *rely upon another part. They may, therefore, take a mere personal decree against the defendants before the court, which decree the court in virtue of its jurisdiction over the parties now before it, may lawfully render. Or they may hereafter resort to the remedy by attachment, seeing that the statute authorizes such resort after the suit is brought.
If, however, the law were otherwise, and relief could be had under any circumstances, only by attachment, still the objection was not properly taken in this case. A demurrer reaches only such defects as appear on the face of the pleading demurred to; it will not lie for defect or omission of process ; or for omission to aver facts not essential to the jurisdiction, but collateral to the pleading demurred to, although they are necessary to justify the relief prayed for. It is the office of a plea or of an answer to bring before the court reasons for refusing relief not appearing on the face of the bill. In our case it was not necessary to aver in the bill that an attachment had issued, because the statute, in terms, provides that this process may issue after the institution of the suit.
I am, therefore, of opinion to reverse the decree dismissing the bill; to overrule the demurrer; and remand the cause to the Circuit court, with directions to require the defendants to answer; and that the complainants, on proving their case as alleged, may have a personal decree against the defendants; or that they may at their election, sue out an attachment in the mode prescribed by law, and subject the property attached to the satisfaction of their demand.
The other judges concurred in the opinion of Samuels, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481503/ | LEE, J.
The first question that seems to require consideration in this case is, whether the Circuit court of Raleigh county had jurisdiction of the cause. It was a bill praying an injunction to a judgment of the Circuit court of Eayette county, upon the ground of payment or satisfaction by levy on sufficient property of the principal debtor, whilst a previous execution was in the hands of the sheriff of Eayette county. It did not call in question the equity of the judgment originally, but insisted that it was now inequitable that it should be further executed.
The solution of this question depends on the true construction of section fourth of ch. 179 of the Code, p. 677. This section provides, that “jurisdiction of a bill of injunction shall be in a Circuit, County or Corporation court of a county or corporation, in which the judgment is rendered, or the act or proceeding is to be done, oris doing, or apprehended, except that a County or Corporation court shall not award an injunction to a judgment or proceeding of any other court.” And as this was a bill seeking relief against a judgment of the Circuit court of Fayette county at *the suit of a defendant in the judgment, and praying an injunction to restrain the plaintiff and the sheriff from any further proceeding upon it on the execution sued out thereon, (though the latter was directed to and sought to be levied in Raleigh county,) it would seem to be directly within the terms of the provision, and that the jurisdiction of the bill was in the Circuit court of Payette. But it is supposed there may be a distinction between the case of an in junction to a judgment for matter of equity existing anterior to the judgment, and for matter arising subsequently, such as payment or the like, which renders any further proceeding to enforce the judgment by execution improper and inequitable; and that in the latter case, if the execution be sent to a different county from that in which the judgment was rendered, and is about to be levied, the defendant may prosecute his bill for an injunction in the court of the county in which the levy is about to be made ; the injunction in such case being not to the judgment, but to restrain an act or proceeding contrary to equity, about to be done in that county, within the meaning of the law. But I can perceive no good reason for any such distinction. It is in either case an injunction to the judgment ; and in both, the relief is afforded by perpetually enjoining the judgment, in whole or in part, according to the nature of the case. In strictness, there is no such thing as an injunction to a judgment, because the court of chancery does not act upon the law court, and neither reverses, rescinds nor annuls the judgment. It acts upon the party only, restrains him from enforcing the judgment by execution, and punishes him as for a contempt for any violation of its mandate. Ashby v. Kiger, Gilm. 153. But in common legal parlance, and for the sake of brevity, its order in such a case is called an injunction to a judgment; and what is always meant is an injunction to proceedings on the *judgment; and such it will be seen is the language used in § 10, p. 678, and § 13, p. 679.
For the purpose of determining the court which shall have jurisdiction of a bill of injunction, and of ascertaining what shall be the condition of the injunction bond, and before what clerk it shall be given, the act in effect classifies injunctions under two heads. First, injunctions to judgments; second, other injunctions to independent or collateral acts or proceedings, having no relation to judgments, which are to be done or are doing or apprehended. See § 4 and §10. Of the latter class are injunctions to stay waste, to prevent a nuisance, to arrest a sale improperly about to be made by a trustee, to restrain the doing of an unlawful act prejudicial to the complainant, andfor which, if done, he could have no adequate compensation in damage, and the numerous other matters having no reference to any previous judgment at law, which constitute the proper subjects of injunction ; and these are plainly the matters contemplated by the act when it speaks of acts or proceedings about to be done or apprehended. In the latter cases, the jurisdiction is assigned to the courts of the county in which the act or proceeding is about to be done or is apprehended : the injunction bond is to be given before the court in which the injunction suit is instituted, and the condition of the bond is to be such as the court or judge awarding the injunction shall prescribe. In the former the jurisdiction is to be in the court of the county in which the judgment was rendered, the bond is to be given before the clerk of the court in which the judgment is, and it is to be with condition to pay the judgment (in case the injunction be dissolved) and all costs that may be awarded and all damages that shall be incurred, and with a further condition, if a forthcoming bond have been given, to indemnify the sureties in such forthcoming bond.
*To the case which has been suggested by way of illustration, a ready answer may be given. It is the case of a judgment in a particular county upon which an execution has been sued out, directed to the sheriff of a different county, and which the sheriff has undertaken to levy upon property; e. g. a slave, belonging to a third person, a citizen of the latter county, who is no party to the judgment, and who and whose property is in no manner bound by the judgment or the execution issued thereon. Can he not, it is asked, obtain an injunction and prosecute his suit in his own county to restrain the sheriff from illegally seizing and selling his property to pay another man’s debt? Must he leave his own county and go with his suit to the court of the county where the judgment was rendered ? The answer is that he may get his injunction and prosecute his suit in the county where he lives, and where the sheriff is about to seize and sell his property. But his injunction is not to the judgment; he does not call it in question for any matter either existing before or occur*334ring since its rendition : he does not seek to stay it in any form, or to arrest its execution by a levy and sale of any property that may be properly liable to it. As to him there is no judgment, no execution, and what he seeks is to protect his property against the unlawful act of the sheriff who is about to seize it without shadow of authority. It is a collateral act or proceeding in pais that he seeks to enjoin, not the due and regular execution of the judgment against those liable to it. If the injunction be allowed, he is not required to give bond with condition to pay the judgment and costs and damages, and indemnify the surety in the forthcoming bond, if any ; but the condition of his bond is such as the court or judge may prescribe; and he prosecutes his suit in the court of that county in which the unlawful act of the sheriff is about to be done.
*No doubt there may be cases in which the court of a particular county, having jurisdiction upon other grounds, may rightfully enjoin proceedings on a judgment of another county, where such a measure is appropriate to the relief proper to be administered in the cause; but where the sole ground of relief is the right to enjoin proceedings on the judgment whether for a matter of equity existing anterior to its rendition or subsequently arising, and it is sought by a party who or whose property is liable to execution upon it, I think it clear the case is one of an injunction to the judgment, within the meaning of the act, and that the jurisdiction of the suit is in the courts of the county in which the judgment was rendered; and that a court of another county to which the execution might chance to be sent, and in which it was levied on property of a defendant, has for that cause no right to entertain jurisdiction of the case.
I think the right to object to the jurisdiction was not lost to the defendants by their failing to plead to the jurisdiction, and that the case is not within § 19 of ch. 171 of the Code, p. 648. That section provides that where a bill shows on its face proper matter for the jurisdiction of the'court, no exception for want of such jurisdiction shall be allowed, unless taken by plea in abatement, which shall not be received after answer filed, &c. Here the objection is not for want of matter proper for the jurisdiction of a court of equity, but because the jurisdiction in the case is expressly a'ssigned to another court, because the court of Raleigh was usurping a jurisdiction pertaining to the court of Fayette. Or if this could be embraced by the term ‘ ‘matter proper for the jurisdiction of the court,” then the bill on its face shows a case not proper for the jurisdiction of the court of Raleigh, and sois not within the terms of the section. It was the duty of the judge who allowed the injunction, to direct his *order to the clerk of the Fayette court; but although he fathed to do so, it was nevertheless the duty of the party to file his bill and perfect his injunction with the clerk of that court; and the court of Raleigh should have dismissed the bill whenever the objection was made. Such was the decree in the case of Randolph’s ex’or v. Tucker, 10 Leigh 655.
The act of December 1818, 1 Rev. Code 1819, ch. 66, § 86, p. 214, was in broader terms than the present act. It provides that after answer filed-and no plea to the jurisdiction, no exception for want of jurisdiction should ever after-wards be made. Yet it was held that it only applied to those cases in which upon the face of the bill the matter thereof is not proper for relief in equity. Pollard v. Patterson, 3 Hen. and Munf. 67; Hickman v. Stout, 2 Leigh 6. But that act excepted from its operation cases of controversy respecting lands lying without the jurisdiction of such court, and also cases of infants and femes covert.
But if I am in error on this point, let us briefly consider the case made. ' If the original bill could be supposed to have been maintainable upon the ground (not suggested by it however as a reason for invoking the aid of a court of equity) that there had been no sitting of the Fayette court since the execution complained of issued, and that there would be none in time to enable him to prevent a levy and sale of his property by a motion to quash, yet as the material allegation of payment of the whole amount of the execution to the sheriff was directly put in issue by Palmer’s answer, and no proof offered to support it, the court could do no otherwise than dissolve the injunction. And though a levy might possibly have been made, yet no sale could have taken place under the execution before the next sitting of the Circuit court, which was to be on the 3rd day of September, the injunction having been allowed on the 25th of August. *In the amended bill filed on the dissolution of the injunction, the ground of actual payment of the money by Waite to the sheriff is virtually abandoned. It alleges that the sheriff of Fayette had levied the execution upon property sufficient to satisfy it, but had appropriated the property to his own use, or if he had sold it, had fathed to account for the proceeds, and had falsely returned that it had been sold and the proceeds applied in satisfaction of other executions against Waite having priority. It also alleged that the sheriff had received a sum of three hundred and forty dollars from Waite on the sale of a negro, for which credit should have been given on the execution. He thus stated a case which showed him entitled to full redress at law by a motion in the Fayette court to quash the execution, and an action at law for a false return. Now it may be questioned if all this matter could not have been proved under the allegations of the original bill; and if it could, then there was no reason why the court should have reinstated the injunction which it had just dissolved. But if they were new and original matters which could not have been proven upon the allegations of the original bill, then it was improper to reinstate the injunction upon the filing of the amended bill, because it did not and could not allege a want of full opportunity to obtain redress by setting them up in the court of law : for there had been two regular terms of the Circuit court of Fayette between the filing of the original bill and of the amended bill, commencing by. law, the first on the 3rd of Sep*335tember 1852, and the second on the 3rd of April 1853 ; and no reason whatever was suggested in the amended bill why the party had fathed to avail himself of the opportunity which they afforded. Now, I apprehend a party to be entertained in a court of equity upon a case of this character, ought to allege some reason why its aid is invoked, instead of seeking *his remedy in the court of law. It should appear that the latter could afford him no remedy, or an inadequate one, or that he had been deprived of the opportunity of seeking it without any default on his part, or some circumstance should be shown furnishing a reason for withdrawing the matter from the cognizance of the appropriate tribunal, and carrying it into the court of chancery. Nothing of the kind is ishown here; but for aught that appears, the matter might have been as well tried and as full redress afforded in the court of law as in the court of chancery.
The case of Crawford v. Thurmond, 3 Leigh 85, is not, I think, in conflict with these views. That case involved several complicated questions of law and fact, stated in the opinion of Judge Carr, and which he thought could be better tried in the court of chancery than the law court; and there was an equitable right involved more appropriate for the jurisdiction of the former tribunal than the latter. This case presents a mere question as to the regularity and propriety of the proceeding of the officer of the law court upon an execution placed in his hands, and is very distinguishable from that just cited. It more nearly resembles the case of Morrison v. Spear, 10 Gratt. 228, in which this court was of opinion the party had improperly sought relief in the court of chancery when his redress was in the court of law.
It may be added too that all the material allegations of both the original and amended bills were denied or directly put in issue by the parties upon whom their gravamen rested, and no-proof whatever was offered in support of any of them.
In every view of the case, I think the Circuit court properly refused to grant the relief sought by the bill. I think, however, before dismissing the bill, the injunction should have been formally dissolved, and in that respect that the decree should now be amended; *and so amended, should be affirmed with costs to the appellees.
MONCURE and SAMUELS, Js., concurred in the opinion of Lee, J.
ALLEN, P., concurred in affirming the decree on the first ground stated in the opinion of Lee, J.
DANIEL, J., concurred in affirming the decree.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481504/ | ALLEN, P.
The cases upon undertakings coming within the scope of that branch of the statute of frauds prescribing the mode in which the special promise to answer for the debt, default or misdoings of another person should be made, have been numerous, and many subtle, if not shadowy, distinctions have peen taken. Every collateral promise to answer for the debt, default or misdoings of another person, is within the statute, and void if not in writing ; but original undertakings need not be in writing, not being within the statute. The difficulty is in determining under which head the undertaking in any particular case is to be classed. Where the party undertaken for is under no original liability, the promise is an original promise, and binding though notin writing; the promiser is the party immediately liable, and the undertaking is to pay or answer for his own debt or default, and not for another’s. But it has been settled in England that if the party undertaken for is liable, the promise must be in writing. This is the principle decided in the leading case of Birkmyr v. Darnell, 1 Salk. R. 27. There, in consideration that the plaintiff would deliver his horse to A, the defendant promised that A should return him safe. This case was held to be a *collateral undertaking for another ; ior the undertaker comes in aid to procure credit for another ; and there is a remedy against both ; for the plaintiff could maintain detinue upon the bailment against the original hirer, as well as assumpsit on the promise against the defendant. In the note to Porth v. Stanton, 1 Wms. Saund. 211, it is said, “that it is clear the mere existence of the debt, default or miscarriage, is not sufficient to support the promise ; there must be some consideration for it, and therefore the promise must in all cases be founded on a new consideration. The question indeed is, What is the promise? Whetherit be a promise to answer for the debt &c. of another, for which that- other remains liable, not what the consideration for that promise is ; for it is plain that the nature of the consideration cannot affect the terms of the promise itself, unless it be an extinguishment of the liability of the other party.”
The cases of Goodman v. Chase, 1 Barn. & Ald. 297, and of Williams v. Leper, 3 Burr. R. 1886, illustrate the last proposition. In the first case, the defendant, in consideration that the plaintiff would discharge his debtor arrested under a ca. sa. promised to pay the debt. It was held unnecessary that the promise should be in writing, for the debtor’s liability ended on his discharge, so that the defendant was never liable for his debt; and in Williams v. Leper, the defendant having got possession of goods .which were subject to distress for rent in arrear, promised the landlord he would pay him the rent, if he would desist from distraining. The judge considered the goods as the debtor ; and therefore the promise was not to pay the debt of another, but the debt for which the goods were liable, of which goods the defendant was owner. Nor is it material at what time the promise to pay for the debt or default of another is made, if the debt is a continuing debt for which the debtor remains liable. *In Matson v. Wharan, 2 T. R. 80, the court held that there was no distinction between a promise to pay for goods furnished for the use of another, made before they were delivered and after, if the person for whose use they were furnished is liable at all. Nor is there any distinction drawn by the cases referred to, as decided in the courts of England, whether the parol promise to pay the debt of another is supported by a consideration moving to the debtor or the promisee provided the original debt continues to subsist as a cause of action against the original debtor: Though in New York, in the cases of Farley v. Cleveland, 4 Cow. R. 432, King v. Despard, 5 Wend. R. 277, a different rule was adopted; those cases deciding that where there is a new and original consideration of benefit to the defendant or harm to the plaintiff moving to the party making the promise, the subsisting liability of the original debtor is no objection to the recovery. In Virginia, the cases of Waggoner v. Gray’s adm’r, 2 Hen. 6 Munf. 603; Cutler v. Hinton, 6 Rand. 509, and Ware v. Stephenson, 10 Leigh 155, have recognized and adopted the rule as deduced from the English cases. In the first case, Judge Roane lays down the rule to be, “that where the person on whose behalf the promise was made, is -not discharged, but the person promising agrees to seethe debt paid, *339so that the promisee has a double remedy, the promise is collateral.”
In the case of Cutler v. Hinton, the defendant made the promise before the goods were delivered, saying he would pay for any goods sold to his son in law, or to any merchant of whom his son in law might purchase, that he would pay for him a certain sum. The promise was held to be collateral, and being verbal, void under the statute. Judge Carr, after a review of some of the leading English cases, concludes with the remark, “That these cases, out of a vast multitude, serve to exemplify the gen eral principle, that where *the promisee has a double remedy, both against the promiser and him in whose behalf the promise is made, such promise is collateral, and mustibe in writing.”
In the last case of Ware v. Stephenson, the consideration for the promise was for the benefit of the promiser; the articles were delivered to a workman engaged in building a house for the defendant; and the question in the case upon which the judges differed, was, Whether the workman was liable and bound to pay for the articles delivered to him ? Judge Brooke stated, that it was a well settled principle, that where the party to whom goods are delivered on the promise of a third person to pay for them, is bound to pay for them, the undertaking is collateral, and if not in writing within the statute ; but he thought from the facts that there was no original liability on the workman, and that he was not bound to pay for the articles delivered. Judge Stanard, with whom the other judges concurred, thought that the workman was responsible for the articles delivered, and said, “That whatever doubts may at one time have existed respecting undertakings within the scope of the statute, it has long since been definitively settled, that when an undertaking is for a consideration to be received by, or articles to be supplied to, a third person, if the transaction be such that the third person is responsible to the person who supplies the articles, or from whom the consideration proceeds, the undertaking is collateral, and if oral not binding.
To apply these principles to the present case: It appears from the evidence certified as given upon the motion for instructions, and upon overruling the motion for a new trial, that the testator of the plaintiff in error, by a contract dated the 1st of January 1844, leased a salt property in Kanawha county to James M. Thompson, who bound himself to build a salt furnace, *fixtures, &c., at his own expense. The testator of the plaintiff in error by the contract agreed to furnish Thompson the sum of two thousand dollars towards said improvements, and in part payment of their erection. In pursuance of the said contract, Thompson employed the defendant in error to build some cisterns, and to do the work for him under the lease. After doing a part of the work, he stopped it, announcing his determination to leave, declaring he was done with the job, and would not proceed with the work upon the faith or confidence of Thompson being paymaster for it. And thereupon, the said testator said to him the work was commenced; it must go on ; and told him to go on and finish it, that he would pay him for it, or see it paid. The defendant in error thereupon resumed work and continued, until it was finished.
The defendant in error further gave in evidence the declaration of said testator, shortly after the conversation aforesaid, that he would have to pay for the work done or doing by the defendant in error, and that he had already advanced Thompson two thousand dollars for improvements which the latter by his lease was bound to make.
It was further proved by the plaintiff in error, that her testator had advanced to Thompson more than two thousand dollars ; that Thompson could not make said improvements without such advances, and that he was unable to pay the defendant in error for his work according to the contract, either at the time of making the same or at any time since. That when the work was finished, the defendant in error rendered his account, being the same stated by him in the bill of particulars filed in the suit, which Thompson entered in his book in the presence of the defendant in error; the several payments made by Thompson from time to time during the progress of the work were deducted, a balance ascertained, for which Thompson executed *his bond at nine months. The bond is exhibited, and has two seal® to it, but is signed by Thompson alone; and was drawn to be signed by the testator; but there is no proof that he ever agreed to sign it. The insolvent papers of the defendant in error, including the schedule, were also given in evidence, from which it appears that on taking the oath of insolvency on the 29th of July 1847, he surrendered said note on Thompson, but did not surrender any claim on the testator. This suit was brought in the year 1848; and it was proved that the debt upon which the defendant in error took the oath of insolvency, was paid before he instituted this suit.
After the evidence was closed, the plaintiff in error moved for five instructions, all of which were given, with certain explanations and modifications, to which she objected; but her objections being overruled, she excepted; and a verdict being found against her for the balance of the claim, she moved for a new trial, and her motion being overruled, she again excepted.
I think there was no error in the court’s explanation to the first instruction moved for. By that instruction, the court was asked to tell the jury that from the surrender of Thompson’s bond in the schedule and the omission to set out any claim against the plaintiff’s testator, the jury might presume an admission on the part of the defendant in error, that at the time he took the oath the testator of the plaintiff in error was in nowise liable to him for money or property, under any antecedent engagement. The effect of the instruction, if given in the terms asked, might have been to have induced the jury to believe that they were *340bound, from the facts stated in the instruction, to presume such admission, notwithstanding other circumstances in evidence might repel the presumption. The court informed the jury, that in forming their conclusion as to this presumed admission-, they ^should look not merely to the omission to surrender this claim in the schedule, but to all the facts in evidence. In this, I think, there was no error.
The second, third and fifil instructions were intended to present, and as I think, do present the real question involved in the case ; and that is, whether, under the facts, the evidence tended to prove the undertaking was original or collateral? The second and third are the same in substance ; and asked the court to instruct the jury, that if they were satisfied from the evidence, that the work and labor sued for was such as Thompson was bound to execute, and for which he was liable under his contract with the defendant in error to pay him, in such event the promise was collateral, and should be in writing to bind said testator. These instructions were not irrelevant. The evidence showed a contract between Thompson and the defendant in error; and that part of the work was performed under such contract before the promise by the testator. And the cases referred to establish, that whether the contract is collateral or original, depends on the liability of the party undertaken for. The court should have given the instructions as asked for, and without the qualifications annexed to them. The modifications were not warranted by the evidence, and were calculated to mislead the jury. There was no testimony proving or tending to prove that a portion of the work was not performed under the contract with Thompson before the promise of the testator. The promise declared upon was an entire promise covering the whole claim for the work performed by the defendant in error; and the court was not justified in assuming that there was any proof that the work sued for was not done under the original contract between Thompson and the defendant in error. The court was asked to tell the jury that if Thompson continued liable to the defendant in error *upon the first undertaking, the promise of the testator was not binding unless in writing. The qualification of the court evades this proposition altogether, by informing the jury that if they were satisfied the work was not done under the contract between Thompson and the defendant in error, but under the agreement between the testator and said defendant in error, and the promise of the former to pay for it, and that such promise was a direct one, it would be binding, although not in writing. Although the work may have been done under the promise of the testator, and though the consideration of such promise was sufficient, that does not make it an original promise, if in fact the original contract was with a third person, who continued responsible to the defendant in error, notwithstanding the promise of the testator. By the qualification of the court, the jury were instructed that I the defendant in error was entitled to recover from the promiser, notwithstanding the continued liability of the original contracting party, because the work was performed in consequence of the promise to be answerable for it. The terms used by the court were calculated to mislead the jury: It speaks of a direct promise, leaving it uncertain whether by that expression was meant an express promise by the testator to the defendant in error, or an original or collateral promise. An express promise to pay would probably be deemed by the jury a direct promise ; and if it was intended to be equivalent to an original promise, that was a question of law arising upon the facts upon which the instruction was asked; whereas the qualification refers-it to the jury to determine for themselves, whether under the facts it was a direct or original promise, or one merely collateral.
The fifil instruction asked the court to instruct the jury, that if the contract between 'Thompson and the defendant in error was not rescinded by agreement *between them, the mere fact that the testator of the plaintiff in error may have orally agreed to pay or to see him paid, did not extinguish the contract with Thompson, or his liability to pay the defendant in error. This was given with the qualification, that although there was no rescission between Thompson and the defendent in error, yet if the work was done for the said testator, under an original contract between him and the defendant in error, that the said testator made a direct promise to pay for the same, and the work was done on his credit and the fact of his promise to pay, it was binding on him. This qualification has no relevancy to the instruction. The proposition it propounded was, that if there was no agreement between the original parties to rescind their contract, a promise by a third person to pay would not extinguish the liability of the first promiser. To this there could be no objection ; and if the original liability continued, then the promise would be collateral. The qualification informed the jury that although there was no such rescission and extinguishment of liability, yet the promise, if made under the circumstances detathed, would be an original and not collateral promise. I think that in this the court erred.
The bill' of exceptions to the decision of the court overruling a motion for a new trial, refers to and adopts the statement of evidence contained in the second bill of exceptions. That bill of exceptions states the evidence of the witnesses examined on the trial, instead of the facts appearing to the court to have been proved by such evidence; and is, therefore not well taken under the rule of Bennett v. Hardaway, 6 Munf. 125, unless it appears to the appellate court, that after disregarding all the parol evidence of the exceptor, and giving to that of the other party full credit, the decision was wrong: And that, I think, sufficiently appears here.
*The evidence of the defendant in error shows that Thompson, the lessee *341of the property, had bound himself to the landlord to erect a salt furnace and other fixtures necessary to the manufacture of salt, at his own proper cost and charges ; that he made the contract with the defendant in error to do the work for him under the lease ; that the defendant in error, under this contract, had commenced and performed a portion of the work, the value of which does not appear ; and that he then stopped work and refused to proceed with it under his contract with Thompson, alleging, as his reason for quitting the work, that Thompson was embarrassed, and unable to pay him. Thereupon, the testator of the plaintiff in error made the promise on which the suit was brought. The promise was made after the work had been commenced and a part had been executed. There was no distinct promise to pay for the work thereafter to be executed, as contradistinguished from what had been done. The promise was entire and extended to all work the defendant in error had contracted with Thompson to do. There was no new stipulation as to price, or the description of work or the mode of payment. The promise referred to the former contract which remained unchanged, and amounted to no more than an undertaking that if the defendant would go on and perform his contract with Thompson, the promiser would pay him for the work or see him paid. Thompson was no party to this undertaking. His liability to pay for the work was not extinguished or reduced by it. The undertaking, so far from annulling, provided for the fulfillment of his contract, and as his responsibility continued the promise, according to the decisions of this court, was collateral, and not binding unless in writing.
Viewing the evidence in the most favorable light, it could at most be held to establish an original undertaking *for work thereafter to be done. The promise, however, embraced the whole of the work ; that done, as also that to be done. The declaration on the special contract, charges it as one entire undertaking to pay for the whole of the work done under the contract ; and the hill of particulars filed with the declaration, charges the said testator with the whole of it. Under the circumstances, proved by the evidence offered by the defendant in error, Thompson was not released ; no notice of abandonment is proved; and the note for the balance shows he was held liable by the defendant in error for the whole of the work done. The debt had been incurred ; and though there may have been a sufficient consideration of benefit to the landlord, in avoiding the loss of rents and the injury resulting from leaving the work in ati unfinished state, to have supported a promise to pay for this liability of Thompson, the promise would have been collateral, though on a good consideration, and must be in writing to be valid. But where the verbal promise is entire, and part of it relates to a matter which renders it necessary under the statute that the promise should be in writing, the whole promise is void. Being entire and part of it void, the whole is defective. Chit. on Contract 61. In the case of Thomas v. Williams, 21 Eng. C. L. R. 142, the tenant was indebted for a quarter’s rent: the defendant, an auctioneer, was about to sell the tenant’s goods, which were on the demised premises, and the landlord being about to distrain for the quarter’s rent due, the defendant verbally promised to pay not only the rent due but the rent which would become due the ensuing quarter. The court held that the promise was void, and being entire, not even the rent due was recoverable.
Under the case of Williams v. Leper, ubi supra, and cases of that character, where the party had surrendered the goods or discharged the debt, such promise *was held valid though notin writing. But in the case of Thomasv. Williams, EordTenderden, C. J., said, “There is no case in which the promise of payment has gone beyond the amount of the right vested in the party to whom the promise was made, or beyond the assumed value of the fund out of which the payment was to be made.” The right vested in the plaintiff and for which he could have distrained was the rent in arrear, but the promise of payment went beyond that, to the rent which would thereafter become due, and was void on that account as to all. So in Head v. Baldrey, 6 Adol. & Ell. 459, 33 Eng. C. L. R. 109, the promise was void by the statute of frauds for want of a written memorandum as to one of the subject matters, but as to the other no writing was necessary ; but the court held the agreement was indivisible and bad altogether. To the same effect is Mechelen v. Wallace, 7 Adol. & Ell. 49, 34 Eng. C. L. R. 32; Lord Lexington v. Clarke, 2 Ventr. E. 223; Chater v. Beckett, 7 T. R. 201; Loomis v. Newhall, 15 Pick. R. 159. Upon both grounds it seems to me the verdict was not warranted by the evidence ; and that there should have been a new trial.
The other judges concurred in the opinion of ALLEN, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481505/ | DANIEL, J.
The legislative provision, on the proper construction of which the questions raised in this case mainly turn, will be found in chapters 38 and 96 of the Code of 1849.
The third section of the first mentioned chapter, p. 443-4 of the Code, provides that for a license to keep a house of entertainment the application shall be, when the house is in a town having a corporation court, to such court, and when it is not in any such town, to the court of the county wherein it is. If the court be of opinion that the applicant is sober and of good character, and will probably keep a house orderly, useful and such as the law requires, it may *grant such license; and if the house be in a town, the court, when it grants the same, may, if the applicant desire it, dispense with the necessity of his providing for horses. If such application be refused, the refusal shall be entered of record; and a license shall not be granted to the applicant before the next May term, unless by a court composed of the justices to whom the first application was made, or a majority of the acting justices of the county or corporation.
The fourth section of chapter 38, p. 207 of the Code, provides, that no person shall, without license, keep either an ordinary, house of private entertainment or bowling saloon or alley. And the eighil section of the same chapter provides, that the receipt for the tax on such license as is mentioned in fhe fourth section, shall be produced to the court to which application is made for the license, before such application is considered. If the court reject the application, the tax shall be refunded to the person who paid it.
On the one hand it was insisted at the bar, that the terms “may grant such license,’’ are either absolute^ imperative, making it the duty of the County court to grant the license whenever the applicant produces the receipt of the proper officer for the tax imposed on such license, and brings himself within the requirements of the fourth section of the first mentioned chapter, or indicative of a purpose to enjoin a duty which is to be performed with discretion ; a *343sound discretion, having a regard to public convenience, and looking to the objects contemplated by the act; and that the action of the justices in refusing to grant a license, may be revised and controlled in a superior court by means of a mandamus.
On the other hand it was insisted, that the word “may” is used in the statute in its popular sense. That it is permissive, and is employed to grant an authority coupled with a discretion, which latter, *from its very nature, does not admit of its being guided or superseded by the orders of any superior or appellate tribunal.
In considering these opposing views we may, I think, be greatly aided by a reference to previous legislation on the subject.
The fourth section of the act of 1705, 3 Hen. St. 376, after declaring that whosoever shall retail liquors in their houses without license first had and obtained, shall forfeit and pay a fine of two thousand pounds of tobacco, provides, that “any one intending to set up an ordinary or house of public entertainment, shall petition the county court; and they, by their discretion, shall judge whether it is convenient to suffer such a house to be set up; and whether the person petitioning be of ability sufficient to comply with the intent of the law in providing convenient lodging and diet,” &c. The section then proceeds further to provide, that on “said petition being approved,” the court shall take bond of the petitioner, with good and sufficient security, with condition to find and provide, constantly, good, wholesome and cleanly lodging and diet for travelers, and stablage, provender, &c., for horses: And that “the bond and security being thus taken, the court may grant their order," &c.
The act" of 1748, ? 1, 6 Hen. St. p. 71-2, after declaring that every person intending to keep an ordinary, shall first petition the County court, proceeds, “And the justices of the court to whom such petition shall be exhibited, shall thereupon consider the convenience of the place proposed, and the ability of the petitioner to keep good and sufficient houses, lodging and entertainment for travellers, their servants and horses,” &c. “And if such petition shall appear reasonable, such court is hereby authorized, and may, if they think fit, grant the petitioner a license to keep an '^ordinary for the term of one year next ensuing the date of such license, and from thence till the next court held for the same county, and no longer; which license shall be signed by the first justice sworn in the commission of the peace for such county; and may, upon petition, be renewed from year to year, if the court shall think fit.
The first of the above recited acts, as we have seen, commits, in terms, the granting of such licenses to the discretion, judgment and approval of the justices. And though the words of the act of 1748 are not exactly the same, they are not less expressive of a purpose to confer authority on the justices to consider and act in the matter, free from all control other than the dictates of their own judgment.
The language used in the act of 1792, in reference to the grant of the license, is identical with that employed in the act of 1748. The act of 1819 provides that every person intending to set up an ordinary or house of public entertainment, shall first petition the court of the county or corporation wherein such ordinary is intended be, and obtain a license for keeping the same; and the justices of the court to whom such petition shall be exhibited, shall thereupon consider the convenience of the place proposed, the character of the petitioner for good order, sobriety and honesty, and his ability to keep good and sufficient houses, &c. ; and if such petition shall appear reasonable, and the court shall be satisfied and enter of record that the petitioner is a man of good character, not addicted to drunkenness or gaming, and shall be of opinion that he will keep an orderly and useful house of entertainment, they shall be and are hereby authorized to grant to such petitioner a license to keep an ordinary.”'— “Upon like petition and like entry on record, the license may be renewed from year to year, as long as the court shall be of opinion that the petitioner hath preserved his *good character, and continues to keep an orderly and useful house of entertainment,” &c. 2 Rev. Code, ch. 240, § 1.
The same language is employed in the act of 1840. See ch. 21, sec. 13, Sess. Acts 1839-40.
It is obvious, I think, that there is no such variance in the provisions of these two last mentioned acts, from those found in the preceding acts we have cited, as would denote any change in the policy of the legislature.
Is anything to be found in the 3rd section of chapter 38 of the Code of 1849, from which to infer such a change of policy? It is true that the said section does not, in terms, require the court to consider “the convenience of the place proposed.” But are we to infer, from the absence of these terms, a purpose on the part of the legislature to enjoin it as a duty on the justices to grant a license to every applicant who proves that he is sober and of good character, and will probably keep an orderly house, furnished and provided with the accommodations for travelers, servants, &c., required by the fourth section? Are all considerations of the convenience of the place proposed to be discarded? This would be to treat the word “useful,” employed in the section, as of no importance, and to compel the County court to disregard a matter about which the law says they must be satisfied before they have any authority to grant the license. The probable utility of the house must depend not only on the character and conduct of the person who is to keep it, and on its being managed and kept in an orderly manner, and provided with the necessary diet, lodging, &c., but also on “the convenience *344of the place proposed,” the number of such houses already established at or near such place, and on a variety of other considerations, which will readily suggest themselves to the mind. And I apprehend that *the right of the court to examine and weigh such considerations, in forming an opinion as to whether the applicant will probably keep a “useful” house, is just as clearly conferred as if given in express terms.
And when we look into the history of our legislation on this subject, instead of finding there anything from which to infer that the unjust or improper withholding by the justices of such licenses from the citizens applying for them, was an evil to be apprehended and guarded against, we shall find that convictions of the existence of present evil and fears of future mischief entertained by the legislature, were the result of views and considerations of a directly opposite nature. .
An illustration of this is to be found in the act of 1666, 2 Hen. St. 286. The preamble recites, that ‘ ‘the excessive number of ordinaryes and tipling-houses set up for the advance of private gaine, had been found full of mischiefe and inconvenience,” &c. And the act then proceeds to declare, ‘ ‘that the commissioners of each County court be required to take special! care for the suppressing and restraint of the exhorbitant number of ordinaryes and tiplinghouses in their respective counties, and not to permití in any county more than one or two, and those near the court-house, and noe more unles in publique places, as ports, fferryes, and great roades, where they may be necessary for the accommodation of travellers, according as the said courts shall find the necessityes of their counties require,” &c.
And so again: The act of 1676, 2 Hen. St. 361, after reciting that “it is most apparently found that the many ordinaries in severall parts of the country are very prejudicial!, and this assembly finde the same to be a generall grievance presented frome most of the counties,” proceeds to enact, that “no ordinaries, ale-houses or other tipling-houses whatever, by any of *the inhabitants of this country, be kept in any part of the country, except it bee in James City, and at each side of Yorke river, at the two great ferries of that river; provided, and it is hereby intended, that those at the ferries of Yorke river as aforesaid, be admitted in their said ordinaries to sell and utter man’s meate, horse meate, beer and syder, and no other strong drink whatsoever; and that all other ordinaries, ale-houses and tipling-houses whatsoever, in the country (except as before excepted), be utterly suppressed,” &c.
Numerous other instances of the like kind might be cited; and in nearly every law on the subject, if we do not find a preamble setting forth the existence of pernicious and hurtful consequences growing out of the multiplicity of such houses, and declaring the earnest desire of the legislature to guard against the evil, we shall find restriction after restriction on the authority given to the justices, showing manifestly, that the legislature had fears, not that the rights of applicants, or the convenience of the public, might suffer from a failure of the courts to allow the setting up and keeping of a sufficient number of such houses, but that the morals of the people might sustain injury from the granting of too many licenses.
It is difficult to conceive why the legislature of 1849, with a knowledge of the policy which thus marks our previous legislation in conferring power on the justices over the subject of granting licenses, should have employed terms, which, in common acceptation, are permissive and not mandatory, and which, in former laws, have been used in the first mentioned sense, if they did not mean to confide such authority to the discretion of the justices.
I can discover in the act of 1849 no indication of a change of legislative purpose; nothing to show that the fitness, propriety and reasonableness of all applications *for such licenses, are not still left to the consideration, discretion and judgment of the justices, as fully as by former laws.
With this view of the nature of the authority- given to the County courts, I cannot see how, when they have heard an application, and, in the exercise of their discretion, have pronounced a judgment of refusal against it, the superior court can undertake to revise the judgment by means of a mandamus, without running counter to the law of the subject, as settled by numerous decisions of the courts, as well in England as in this country.
The principle on which the superior courts act, and the extent to which they go in controlling by mandamus the action of the inferior courts, in cases where the latter are authorized to act in matters of discretion, is concisely and clearly stated by the judges in the case of The King v. Justices of Kent, 14 East’s R. 395. It appears from the statement of facts, that the justices were authorized by statute to fix the rate of wages of certain classes of laborers therein mentioned ; and they refused to hear an application made by a number of persons, representing themselves to be millers, and asking the court to fix the rate of wages, on the ground that, according to a proper construction of the statute, the court had no authority to act, except on the application of servants employed in husbandry. The mandamus in that case was allowed, but with the following declaration of their opinions by the several judges:
Eord Ellenborough: “We do not, by granting this mandamus, at all interfere with the exercise of that discretion which the legislature meant to confide to the justices of the peace in session: We only say they have a discretion to exercise; and therefore they must hear the application; but having heard it, it - rests entirely *345*with them to act, or not, upon it, as they think fit.”
L/C Blanc, J. : “We only say that the justices have authority to act upon the subject matter of the application; and that they are to hear it, and then determine whether, in their discretion, they think proper to fix a rate of wages.”
Bayley, J. : “We tell the justices that they are authorized by law to settle a rate of wages for the persons applying; but we do not say thej' are to exercise that authority in this instance.” So in the case of Ex parte Nelson, 1 Cow. R. 419, the Supreme court of New York declared the doctrine to be, that when a discretion is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus cannot issue ; that the superior court cannot control and ought not to coerce that discretion. The same principle is asserted in the case of Ex parte Benson, 7 Cow. R. 363, and in the case of Gunn’s adm’r v. the County of Pulaski, 3 Pike (Ark. R.) 427. And in Pickett’s Case, Spencer’s N. Jer. R. 134, the court say they never direct in what manner the discretion of an inferior tribunal shall be exercised, though in a proper case they would require such tribunal to proceed to a decision, to the end that said decision may be reviewed in due course of law. And in two cases in 3 Texas R. 51, 88, the rule is stated to be, that the writ will not issue unless to control the performance of an act clearly defined and enjoined by the law, and which is therefore ministerial, and neither involves discretion nor leaves any alternative. In the cases in 1 Alab. R. 15, 1 Morriss Iowa R. 31, and 25 Maine R. 296, the same principle is declared.
Other cases of the like character might be referred to, but I deem it unnecessary to cite them, in as much as there are numerous decisions having a more immediate ‘^bearing on the question we are considering. Thus, in the case of Rex v. Young & Pitts, 1 Burr. R. 556, which was the case of a motion for an information against justices of the peace for arbitrarily, obstinately and unreasonably refusing to grant a license to keep an inn, the doctrine is thus concisely and strongly' stated by Eord Mansfield: “This court has no power or claim to review the reasons of justices of the peace upon which they form their judgment in granting licenses, by way of appeal from their judgment, or overruling the discretion entrusted to them. But if it clearly appears that the justices have been partially, maliciously or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information; or even possibly by action, if the malice be very gross and injurious.” He had previously declared, in the progress of the argument or the motion, that the argument ought to be “taken up upon the foot of criminality in the justices.”—-“For there was no pretence upon any other foot, to make a rule upon the justices, who have a discretionary jurisdiction given them by the law.” Mr. Justice Denison also expressly “ allowed the discretionary power of the justices in granting licenses without appeal from their judgments, or having their just and honest reasons reviewed by any body.” He then proceeded to express the opinion, that in cases of clear and apparent partiality or willful misbehavior, they might be proceeded against by way of information. The other judges expressed themselves to the same effect.
The same principles were announced in the cases of Rex v. Davis & Williams, 3 Burr. R. 1317, and Rex v. Baylis, Id. 1318; both of which were also cases of motion for information against the justices for refusing to grant licenses. In the first of these cases (in which *the information was granted), Eord Mansfield emphatically 'declared that the court granted the information against the justices, not for the mere refusing to grant the licenses, which he said they had a discretion to grant or refuse as they should see to be right or proper, but for the corrupt motive of such refusal.
And in the case of John Giles, 2 Strange’s R. 881, in which a motion was made for a mandamus to the justices of Worcester to grant a license to Gthes to keep an ale-house, the motion was overruled, with the brief declaration by the court, “There never was an instance of such a mandamus, and therefore we will not grant it.”
The question has been presented in the same shape to the supreme courts of several of our sister states, and has, so far as we can find from reports of their decisions, been uniformly decided by them in the same way.
In the case of The People v. Norton & others, 7 Barb. R. 479, we find the singular instance of an indictment against commissioners of excise for improperlyand corruptly granting such a license ; and in that case the Supreme court of New York say, that “The justices, in granting or refusing licenses under the excise law, do not act solely as judicial officers. They have indeed a discretion, to exercise which this court will not control by mandamus. But their duties are so plainty defined, that if thej'disregard them, they are liable to an indictment.”— “The duty of commissioners of excise in this state is extremely similar to that of justices of the peace in England in granting or refusing licenses to sell ale. The conduct of justices in that respect has frequently been the subject of investigation; and it seems to be clear, says Mr. Russell, that though upon this matter they have a discretionary jurisdiction given them by the law, and though discretion means the exercising the best of their judgment upon the occasion *that calls for it, yet if this discretion is willfully abused, it is criminal, and under the control of the Court of king’s bench.
And. in the case Ex parte Pierson, 1 Hill’s N. Y. R. 665, the question as to the power of the superior courts to interfere by man-*346damns, was distinctly presented on an application for a mandamus to the commissioners of excise to compel them to grant to Pierson a license to keep a tavern. The court refused the mandamus, stating that the law conferred upon the justices a large discretion, the exercise of which, either in granting or refusing a license, could not be coerced in any way.
The case of The Attorney General v. The Justices of Guilford County, 5 Ired. R. 315, is one having a still closer resemblance to the one before us. There the policy of such laws, the power and duties of the justices in administering them, and the extent to which their action is subject to the control of the superior courts, is discussed by Chief Justice Ruffin with great fullness, learning and ability; and the conclusion to which he came, and in which he was sustained by all the judges, were, that whilst the justices might be proceeded against by way of information or indictment for a corrupt exercise of their powers, they could in no case be coerced by mandamus to grant a license. In that case the question was fully presented, and seems to have been conducted with the view of fairly testing whether in any case the mandamus could go. The justices, in their return to the writ, admitted that the applicant had proved himself to be possessed of all the qualifications which the law required, and stated that at a court previous to the one at which the application was made, the justices, a majority being present, had resolved that thereafter no license should be granted to any person, as they entertained the opinion that the retailing of *spirituous liquors was against the public policy and a hurt to the morals of the people, &c. And though the relator had shown himself to be a man of good moral character, yet they thought the business of retailing would of itself be, in that place (the town of Greensborough),. productive of evil consequences; and they insisted that, by the law, the granting of orders for such licenses or refusing them, was a matter entirely in the discretion and free choice of the justices; and submitted whether th'ey could be compelled by mandamus to grant the license, &c.
It is true that the application in that case was for a license to retail liquors; but it will be seen that, in the opinion of the chief justice, he places such an application under the laws of North Carolina, on the same footing with one for license to keep a tavern. And it will also be seen from his statement of the provisions of the statute in respect to such last mentioned licenses, that it is very similar to our own. The decision is, therefore, directly in point; and the opinion by which it is sustained is, I think, entitled to great respect as well on account of its intrinsic force as of the well known worth and ability of the learned-judge who pronounced it.
The same doctrine is maintained by the Supreme court of Georgia, in the case of Manor v. McCall, 5 Georgia R. 524. The court say that the doctrine as to discretion is well defined, and seems to be this: A superior court will not undertake to regulate and control a discretion in the inferior judiciary, which is not and cannot be governed by any fixed principle or rule; and after citing other instances, the court proceeded: “So in the granting of licenses, roads, &c.”—“In this class of cases the inferior courts will be required to act; but they will not be coerced as to the mode or manner of their action.”
The counsel for the petitioner referred us to a recent *decision of the Supreme court of Kentucky, which he supposed to be the other way. I understood him to say that he had not seen the report of the case, but that it would be found in 14 B. Monroe, and that he had been informed by members of the bar who had seen it, that it sustained the right of the superior courts to control the action of the justices in the matter of granting licenses to keep ordinaries, &c. The case to which I suppose the counsel intended to refer us, is that of Dougherty v. Commonwealth, 14 B. Monr. R. 237, as it is the only case on matters of this kind which I can find in the report mentioned. It is true that in that case the Supreme court of Kentucky did reverse a decision of a Superior court, declining to review and control(the action of the County court in refusing to grant a license. But the application in that case was not for a license to keep a house of public entertainment, but was-an application by a merchant for a license to retail liquor. And the case was brought to the superior court not by mandamus, but by writ of error.
Booking to the grounds on which the Supreme court rests its reversal of the judgment of the superior court, I think that the case, so far from deciding anything in opposition to the views I have endeavored to maintain, is a strong one in support of them. This will be shown more readily and clearly by a few extracts from the opinion of the court (delivered by Judge Simpson), than by any other means I can adopt. After stating the case and making some remarks with respect to the jurisdiction of the courts, the opinion proceeds: “That part of the revised statutes which was adopted by the legislature during the session of 1850-51, contains the following section, under the head of Revenue and Taxation, ch. 83, art. 2, 'i 4: On a license to a merchant to sell spirituous liquors, five dollars. *Bicenses to merchants shall be granted by the County courts, only upon satisfactory evidence that the applicant is in good faith a merchant, and his business is that of retailing merchandise; and he has not assumed the name and business of a merchant with the view and object of obtaining a license to sell spirituous liquors.”
At the subsequent session of 1851-52, an act was passed by the legislature, by which it was enacted, that no license to a merchant to sell spirituous liquors, shall be granted by the clerk of any county, but only by *347the County' courts, who may, in their discretion, grant such licenses, provided the applicant is in good faith a merchant. This act was approved the 13th of December 1851. Subsequently, on the 7th of January 1852, during the same session, the remaining chapters of the revised statutes were adojJted. One of the chapters on the subject of taverns, tippling-houses, &c. (ch. 99, art. 2), contains the following section: “A merchant may sell at his store-house, to be taken off and drunk elsewhere than on his premises, or adjacent thereto, any wine, spirituous liquors, or the mixture thereof, in any quantity not less than a quart. But before he shall so sell, he shall obtain from the Cormty court a license therefor.”
The opinion then proceeds to state that the revised statutes did not take effect till the first day of July 1852; the operation of those adopted at the first session of the legislature, as well as those adopted at the subsequent session, being postponed until that time; and that the application for a license in that case was made after the revised statutes had taken effect.
The concession is then made, that “the correctness of the order of the County and Circuit courts depended upon the question whether the act of the 13th *Dccember 1851, so far as its provisions are applicable to this subject, was still in force, or had been virtually repealed by' the revised statutes.”
The inconsistency between the act of December 1851 with the provisions of the revised statutes in relation to the rights conferred by it on merchants to vend spirituous liquors, is thus discussed and shown:
“This right in its qualified form, that is that not less than a quart shall be sold to be taken off and drunk elsewhere than on the premises, is by the revised statutes conferred absolutely upon merchants, subject only to the condition that they shall, previous to its exercise, obtain from the County court a license for the purpose. The County court has no discretion upon the subject. It must ascertain judicially the qualifications of the applicant; and if they be such as the law requires, he is entitled to a license as a matter of right. At the time of the adoption of the first part of the revised statutes, and prior thereto, a license to a merchant was granted by the clerks of the County courts. The law required it to be taken out merely for the purpose of increasing the revenue. The only change in the law contemxdated by this part of the revised statutes, was a transfer of the power to grant licenses, from the clerks of these courts to the courts themselves. The only object of the change was, that the qualifications of the applicant might be judicially enquired into, and an existing evil be thereby guarded against. It sometimes hapx>ened that persons who were not such actually', assumed the name and business of a merchant, with the view of obtaining a license; and under that assumed character procured one from the clerk when it should not have been granted. To remedy this evil, the change in the law was made, and the power to grant licenses to merchants conferred on the County courts. The statute imposed a duty on the court. It not only conferred ^jurisdiction to grant a license, but enjoined its exercise.” —“Now if the act of the 13th of December 1851 be in force, it produces a material change in the law upon this subject. The merchant has not even a certain qualified right to obtain a license; he has no right whatever; the County court may grant or refuse a license at its discretion. This act, therefore, is in this respect absolutely and entirely inconsistent with the provisions of the revised statutes.”
The inconsistency between the act of 1850-51 and the provisions of the revised statutes being thus shown, the court then express the opinion that the former was repealed by the latter; and on this ground reverse the action of the Superior court declining to interfere with the refusal of the County court to grant the license. The case, therefore, so far as it can be cited as an example of judicial opinion worthy of respect in the consideration of the questions in hand, bears with all its weight in favor of the judgment under review.
The case of The Com’rs of the Poor v. Lynah, 2 McCord’s R. 170, it is suggested, is a decision in favor of the proposition that when an inferior tribunal clearly abuses a discretion with which it is vested, it may be controlled by mandamus. Mr. Justice Colcock, in delivering the opinion of the court in that case, it is true, did say, ‘ ‘That whenever a discretion is given, the court will not interfere, unless it be clearly shown that this discretion has been abused.” If from this expression we are to imply the opinion that the court ought to interfere where there is such abuse, it is manifest, from a report of the case, that such oxnnion was uncalled for and extrajudicial; for in that case the court refused to interfere. And the case, therefore, I think, ox^poses no force to the strong current of authority to which reference has been had, all tending to the result that for such abuse of discretion by an ^inferior court, the remedy is to be found not in the civil but in the criminal process of the superior courts.
The same remark applies to some dicta of Judge Tucker in the case of Brander v. The Chesterfield Justices, 5 Call 548. In that case, a rule was made, in the District court, against the justices, to show cause why a mandamus should not be awarded, commanding them to cause the necessary repairs to be made to a bridge; in answer to which, the justices showed for cause: 1. That if the plaintiff had a right to redress, he had a different specific legal remedy' by appeal or supersedeas. 2. That the order of the County court refusing to let the repairs of the bridge, was made in the exercise of their judicial authority: And for this latter reason, the District court decided that it had no power to award the mandamus. This court affirmed the judgment of the *348District court, on the ground that the matters of fact set out in the bill of exceptions were not sufficient to justify a mandamus; but at the same time expressed the opinion that the reason assigned by the District court for its judgment, was not a good one. And Judge Tucker, in delivering his opinion, said, that he did not regard the order of the County court as one made in the exercise of their judicial authority; but in another character, to wit, as commissioners of police for the county; and he proceeded farther to express the opinion that, in permitting the erection of mills, in granting licenses to tavern keepers, and in making orders for building court-houses, &c., the justices performed the functions of commissioners of police, and not of judges. He does not, however, say how far he would interfere with the action of the justices in the performance of these functions. The° case did not make it necessary that he should do so; and indeed, so much of the opinion of the court as negatived the validity of the claim of the '^justices to have acted in a judicial capacity in refusing to make the order for repairing the bridge, was uncalled for, in as much as the decision of the District court was affirmed on the merits. ' There is clearly nothing in the case which can be referred to as authority trammeling the action of the court in considering the question now before us.
Deft thus free to consider the case as one of the first impression in this court, I have, after the most careful deliberation which I have had in my power to give to it, come to the conclusion, that by the act of 1849 the legislature intended to clothe the County courts with a discretion in the matter of granting licenses for houses of . entertainment, in the exercise of which the justices are not liable to be overlooked or controlled by way of mandamus. And as the petitioner, with the view of testing the question whether the Superior court could, or ought to, review the action of the County court in any mode, presented, at the same time with his petition for the writ in this case, two other petitions: one for a writ of error to a refusal of the Superior court to grant him a writ of error; and the other for a like writ to the refusal of the said Superior court to grant him a certiorari, to the order of the County court, I think it proper to add, for reasons which may be collected from views of the law already expressed, that I think there is no mode by which the action of the justices can be appealed from. That the petitioner, by the proof which he furnished in reference to his character, and the probability of his keeping such a house as is contemplated by the law, and by producing to the court the sheriff’s receipt for the tax imposed by law on ordinaries, showed that he was a person to whom the County court, if they thought fit, might have granted and may still grant a license; but that he did not thereby acquire any such right to said license, as ^places it in the power of the Circuit court, at his instance, to say to the County court, through the medium of any legal proceeding, that they shall grant it.
Whether or no the justices can in any case under our law, be proceeded against by way of information or indictment, for any alleged willful abuse of their discretion in refusing to grant such licenses, isa question not before us, and about which I deem it unnecessary and improper to express any opinion.
I think the judgment ought to be affirmed.
ADDER, MONCURE and DEE, Js., concurred in the opinion of Daniel, J.
SAMUEDS, J., dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481506/ | MONCURE, J.
after stating the case, proceeded:
The principal subject of controversy in this case is, the amount of compensation to which the appellant is entitled for the masonry of the two bridges made by him for the appellees. He charges nine dollars per perch for dressing, ranging and laying the stone, besides making other charges connected with the masonry; whereas the price stipulated in the contracts and allowed in the final estimates, for the entire masonry, is four dollars per perch for that of one of the bridges, and four dollars and ninety-four cents for that of the other. The difference between the amount charged by him, and the amount allowed in the final estimates, for the masonry, is upwards of thirty-five thousand dollars.
The appellant contends that the masonry required by the contracts was “rubble work,” whereas he was required by the appellees to do and .according^ did do “ranged rock work;” that though the contracts required that the stone should have “good natural beds,” and be “well bedded and bonded,” yet those terms should be construed in reference to all the surrounding circumstances, and especially in reference to the quarries in the neighborhood of the bridges, and the, nature and quality of the stone they afforded; that the stone of which the bridges were constructed had “good natural beds,” and might have been “well bedded and bonded,” within the meaning of the contracts, by the use of the hammer merely. That if the work required by the contracts to be done was worth four dollars and four dollars and ninety-four cents per perch, the work required by the appellees to be do.ne, and actually done, was, in the same proportion, worth nine dollars per perch; and that therefore *he is entitled to the latter price. On the other hand, the appellees contend that the stone of which the bridges were constructed had not “good natural beds,” and could not have been “well bedded and bonded,” within the meaning of the contract, by the use of the hammer merely; that they had a right to require, and only required, the work to be done according to the contracts, but as it could not be done with the stone which was used, they were willing that it might be done in the manner in which it was done; that the change in the manner of doing the work was no benefit to them, but an accommodation to the appellant, who was thereby enabled to do it on better terms than he could have done it according to the contracts; that he assented to the change, and did not complain of it to any of the engineers; that the work actually done was but “rubble work,” though of a superior quality, and was not worth more than the contract prices; and that therefore he is entitled only to the contract prices.
The evidence is very conflicting as to the meaning of the technical terms used in the contracts, the character of the work thereby required, and the character and value of the work actually done. It would be difficult for the court to decide upon this evi*353dence without the aid of a commissioner or a jury: But it is unnecessary in this case to do so. The appellees presented to the appellant the alternative of doing the work according to their construction of the contracts, or of doing it as it actually was done; and he elected the latter. He knew that they considered him to be doing the work at the contract prices; and yet during the whole progress of the work, which continued for about two and a half years, he never gave them notice that he would claim a higher compensation. On the contrary, he received from time to time, without objection, the amounts awarded him *in the monthly estimates, though in all of them the work done was charged at the contract prices. Rdgerton, a resident engineer, proves that he had a conversation on the subject with the appellant soon after the work was commenced. The appellant í ‘frequently alluded to the character of the work as being superior to what he was required to do by the contract. He was repeatedly told, if he thought so, to discontinue the work until the question could be settled; to do no more until that matter should be finally settled.” Atkinson, the division engineer, proves that the appellant never complained to him that he was required to do the work in a different style from that required by the contracts; on the contrary, deponent being told that appellant was complaining to others, asked him if he had any complaint, and he answered very positively that he would never have any controversy with deponent. Batrobe, the engineer of location and construction, proves that if he had been apprised of any intention on the part of the appellant to demand extra compensation for his work, he would immediately have had a communication with him on the subject, and have taken measures to put an end to any such expectations. Deponent is satisfied that at the time the appellant got fairly under way with his job, which was in the summer of 1840, he the deponent could have procured the work to be done precisely in the style in which the appellant then proposed to do it, and has since done it, at a price not exceeding that of his contract.
Under all these circumstances, I am of opinion that whatever may be the true construction of the contracts, the appellant acquiesced in the construction placed upon them by the appellees, and is concluded by such acquiescence from claiming a higher compensation for the masons than the prices stipulated for in the contracts, and allowed in the final estimates. *1 am also of opinion that the final estimates are conclusive not only in regard to the masonry, but also in regard to all other items of the appellant’s claim, except two items of small amount, which will be hereafter noticed. The contracts expressly provided that when the work was completed and accepted, final estimates should be made by the agent of the company, of the quantity, character and value of the work agreeably to the terms of the contracts, which final estimates should be conclusive between the parties, unless reviewed and altered by the engineer of location and construction; and that the balance appearing to be due to the contractor should be paid to him upon his giving a release to the company of all claims or demands whatsoever, growing in any manner out of the agreement. The final estimates were made according to the contracts, and have not been reviewed and altered by the engineer of location and construction : Why then are they not conclusive? The counsel for the appellant contended that such provisions are against the policy of the .common law, and have a tendency to exclude the jurisdiction of the courts, which are provided by the government with ample means to entertain and decide all legal controversies. Story on Partn. I 215, and cases cited in the notes. The doctrine relied on refers to agreements to refer disputes to arbitration; such as a stipulation, usually inserted in articles of partnership, that disputes and controversies between the partners shall be referred to arbitrators named in the articles, or to be named by the respective partners. It may well be questioned whether the provisions of the contracts in this case for the final estimates come within the influence of the doctrine relied on. They seem to stand on higher ground than mere agreements for future reference; and to be substantial and irrevocable parts of the contracts in which they are embodied.
But waiving the decision of that *question, and conceding for the purposes of this case, that these provisions are in effect agreements for future reference, and are governed by the doctrine referred to, I am still of opinion that the final estimates are conclusive. “The maxim often quoted, says Russell on Arbitration 103, 104, 63 Law Libr. that an agreement to refer is not binding, and cannot deprive the court of its jurisdiction, seems sometimes to have been misunderstood.”—“In one sense, it is true, such an agreement may be said not to be binding, for it cannot be pleaded in bar to an action in respect of the matters intended to be referred, and so does not oust the court of its jurisdiction;” and it is very clear that equity will not specifically enforce it. “But in another sense, it is binding, for there is nothing illegal in such a contract; and when it is acted on, and an award has been made, the jurisdiction of the courts over the matter decided by the arbitrator is gone, and all that the court have to say is, whether the award is good or not.” Wellington v. Mackintosh, 2 Atk. R. 569; Hill v. Hollister, 1 Wils. R. 129; Halfhide v. Fenning, 2 Br. C. C. 336; Mitchell v. Harris, 2 Ves. jr. R. 129; Thompson v. Charnock, 8 T. R. 139; Street v. Rigby, 6 Ves. R. 815; Waters v. Taylor, 15 Id. 10; Cleworth v. Pickford, 7 Mees. and Welsb. 313, Lord Abinger, C. B. See the American cases cited in 2 Bro. C. C. 270, note (a) Perkins’ edition.
According to the doctrine as thus laid down, even if the final estimates had been *354made without any co-operation on the part of the appellant, or further assent from him than was given bj’’ his becoming a party to the contracts,. they would have had the effect of final awards, and been conclusive as such. In this case the appellant not only made no objection to the action of the agent in making the final estimates, nor any attempt to revoke his powers to make them, but actually appeared and exhibited his claims against the *company before the engineer, who allowed-some and rejected others, in whole or in part; and the appellant seemed at first to acquiesce in the final estimates which were made. These estimates were made by the resident engineers, with the concurrence of the division engineer. Rdgerton, the resident engineer at the North Branch bridge, says that the appellant never expressed any dissatisfaction with the monthly estimates, and when deponent gave him a copy of the final estimate, he' appeared to be fully satisfied with it, as far as deponent was concerned, and expressed his assent to all the particulars therein. Chiffelle, the resident engineer at the Bittle Cacapon bridge, says that in making out the final estimate the most liberal allowance which truth and equity could have dictated, was made to the appellant. Atkinson, the division engineer, says that he never heard the appellant make any specific objection to any,of the monthly or final estimates. Appellant sometimes asked if the company could not allow more. With regard to the final estimates, deponent took particular care to learn his views, made all the allowances that were required, and supposed he had removed all grounds of complaint, and had made the estimates satisfactory. In order to make up the final estimates and remove all sources of complaint, deponent requested the appellant to remain and come to deponent’s office in Cumberland, and give deponent notice of all extra work that he supposed he had done on the bridges, or under any other head for the company, for which he had not been alreadj' paid. In consequence of this request, the appellant did remain in Cumberland, calling at deponent’s office frequently while the latter was engaged in making up the items, answering such questions as were asked him, and by his conduct satisfying deponent that he considered every ground of complaint was removed. Deponent’s reason for requesting the appellant to be ^'present was, that under such extensive contracts extra charges which were equitable might possibly escape the notice of the engineers, and that deponent wished the appellant to suggest such, if any there were. Told him this was deponent’s •design, and had the benefit of his suggestions accordingly. Has no recollection that he objected to any of the items. When deponent handed him the final estimate of the North Branch bridge, i. e. the amount made up in dollars, the appellant said, good naturedly, as deponent supposed, “Is that all?” The impression made on deponent’s mind was that he was going to,the office to receive the balance due him according to the estimate.
Some of the testimony of the appellant is to some extent in conflict with the foregoing testimony of the appellees, but does not materially alter the case. Better’s testimony tends to prove that the resident engineer, Rdgerton, obtained from the appellant bills only for such “extra work as was occasioned by the mistakes of the engineer, and not for all the extra work. But A. G. Kidwell says that he took a great many of the bills for extra work to the engineers. They received a part, rejected a part, and curtathed the amount of a good many of the bills. Bdgerton made out the final estimate, and showed it to the appellant in deponent’s presence. The appellant complained of a good many of the amounts not being large enough, and asked if they were not going to allow for laying the masonry in cement mortar, and cutting and dressing the stone. Mr. Atkinson said he could not allow it, because Mr. Batrobe told him he would not allow it. Davis says, Mr. Atkinson showed the final estimate to the appellant in the presence of deponent, in the railroad office in Baltimore. Thinks it was upwards of eleven thousand dollars. Appellant asked Atkinson if that was all he was going to do for him. Atkinson said, “Yes, and you may be thankful to get that;” and appellant said he would not take it.
*Rrom all the testimony on both sides, it is manifest that the appellant submitted all his claims arising out of the contracts, or on account of the work done by him for the company, to the consideration and decision of the engineer: And upon every principle of law or equity which is applicable to the case, I think the final estimates of the engineer are conclusive; unless they can be avoided on the ground of fraud or mistake. Has fraud or mistake been shown? is therefore the question next to be considered.
In neither of the bills, original or amended, is any fraud imputed to the engineers in making the final estimates. The original bill contains no allegation of any fraud whatever. The amended bill seems to have been filed mainly with the view of supplying this defect; and charges, in effect, that before and at the time the bids were made upon which the contracts were based, the said company, by their agents and officers, falsely and fraudulently represented to the public, and to the bidders, to induce them to offer for work at low rates, that suitable materials for the erection of the bridges were to be had convenient to the line of the road and the sites of the bridges. This charge is positively denied in the answer to the amended bill, and is unsustained by any evidence whatever.
The amended bill also charges that when the contracts were made and during the progress of the work, Batrobe and Atkinson were stockholders of the company, and therefore not impartial or disinterested; that the appellees did not inform the ap*355pellant of this fact as they ought to have done; and that he was not aware of it. The appellees in their answer admit that Fatrobe was a stockholder when the contracts were made; but deny that he was one when the final estimates were made, or that Atkinson ever was one. The answer on this subject is sustained by the evidence ; except that Atkinson says he has had a few shares of *stock at different times, but had none he believes while the North Branch bridge was in progress. The only stock held by him since 1838 was three shares held in trust for another for not more than a year, and then sold in November 1842.
The final estimates, as before stated, were made by the resident engineers, and concurred in by Atkinson the division engineer. I do not think their validity is affected by the fact that when they were made Fatrobe had been a stockholder, and Atkinson was a stockholder in the character of trustee for another, without having, himself, any interest in the subject. Whether, if they had been made by an engineer who, at the time of making them, was a stockholder in his own right, they would have been invalid merely on that ground and in the absence of fraud, is a question which does not arise, and is therefore not intended to be decided.
The answer to the amended bill positively denies fraud of any kind on the part of the company, their agents and officers, and the evidence affords no proof of any such fraud in the transaction.
As to the ground of mistake: If either of the bills contains any charge, certainly the evidence affords no proof of any such mistake on the part of the engineers as can invalidate their final estimates. There is no mistake of law or fact apparent upon the face of the estimates ; and the engineers who made them, testify that all the claims of the appellant against the company, on account of the bridges, which were just and right, were allowed therein.
On this subject, see 2 Story’s Eq. Jur. § 1453, 4, 5 and 6, and Russell on Arbitration 242, et seq. 63 Law Libr.
The final estimates were intended by the parties to be, and are, conclusive in regard to all work done and materials furnished by the appellant in the construction o£ the bridges, including all extra work. In this "x'respect, the case differs from that of Dubois v. The Delaware & Hudson Canal Company, 12 Wend. R. 334, relied on by the appellant’s counsel. All the items of the appellant’s claim in this suit appear to be for work done by him in the construction of the bridges, except two items of small amount, before referred to. One of these is for building two cattle stops; and is proved to have been paid. The other is for loss on city stock; for which I think the appellees are not responsible; the appellant having agreed to receive the stock at par.
I think there is no error in the decrees for which they ought to be reversed, and am for affirming them.
The other judges concurred in the opinion of Moncure, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481507/ | DANIEL, J.
In the ninth article of Judge Story’s work on Railment, is to be found the most concise and lucid exposition of the rights, duties and obligations of carriers of passengers, that I have met with. It is there stated, that carriers of passengers merely for hire, are subject to the same responsibility as carriers of goods for hire, at the common law, so far as respects the baggage of the passengers: But as to the persons of the passengers, a different rule prevails. Attempts have been made to extend their responsibility as to the persons of passengers, to all losses and injuries, except those arising from the act of God or from the public enemies. But the support of this doctrine has been uniformly resisted by the courts, although a strict responsibility as to the carriage of the persons of passengers is imposed upon such carriers. Section 590. In section 592, the author proceeds to state as the result of the decided cases, that carriers of persons by stage coaches are bound to provide coaches reasonably strong and sufficient for the journey', with suitable harness, trappings and equipments; and to make a proper examination thereof previous to each journey'. In other terms, that they [ *are bound to provide road-worthy vehicles suitable for the safe transportation of passengers: And if they fail in any of these particulars, and any damage or injury occur to the passengers, they' will be responsible to the full extent thereof. Hence (he says) it has been held that if there is any defect in the original construction of the stage coach, as for example in an axletree, although the defect be out of sight, and not discoverable upon a mere ordinary examination, yet, if the defect might be discovered by a more minute examination, and any damage is occasioned to a passenger thereby, the coach proprietors are answerable therefor.
In the next place, they are bound to provide careful drivers, of reasonable skill and good habits, for the journey; and to employ horses which are steady' and not vicious, or likely to endanger the safety' of their passengers. Section 593.
In the next place, they are bound not to overload the coach either with passengers or with luggage; and they are to take care that the weight is suitably' adjusted, so that the coach is not top-heavy and made liable to overset. Section 594.
They are bound to make, use of all the ordinary precautions for the safety of passengers on the road. The coachman must, in all cases, exercise a sound and reasonable discretion, in traveling on the road, to avoid dangers and difficulties. If he is guilty of rashness, negligence or misconduct, or if he shows any want of skill, the proprietors will be responsible for any injury resulting from his acts. Section 598.
The liabilities of such carriers naturally flow from their duties. As they are not, like common carriers of goods, insurers against all injuries, except by the act of God, or by public enemies, the enquiry is naturally presented, What is the nature and extent of their responsibility? It is certain that their undertaking is *not an undertaking absolutely to convey safely. But although they do not warrant the safety of the passengers, at all events; yet their, undertakng and liability go to the extent, that they and their agents possess competent skill, and that they will use all due care and diligence in the performance of their duty. But in what manner (the author asks) are we to measure this due care and diligence? Is it ordinary care and diligence, which will make them liable only for ordinary neglect? Or is it extraordinary care and diligence, which will render them liable for slight neglect? As they undertake for the carriage of human beings, whose lives and limbs and health are of great importance as well to the public as to themselves, the ordinary principle in criminal cases, where persons are made liable for personal wrongs and injuries arising from slight neglect, would seem (he says) to furnish the true analogy and rule. It has been accordingly held that passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, for the utmost care and diligence of very cautious persons, and of course they are responsible for any even the slightest neglect. Section 601.
In section 601 a, the further proposition *360is stated, that when injury or damage happens to the passengers by the breaking down or overturning of the coach, or by any other accident occurring on the ground, the presumption prima facie is, that it occurred by the negligence of the coachman; and the onus probandi is on the proprietors of the coach to establish that there has been no negligence whatsoever; and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent. For the law will, in tenderness to human life and limbs, hold the proprietors liable for the slightest negligence, and will compel them to repel, by satisfactory proofs, every imputation thereof.
*This summary of the law seems to me to comprehend and to affirm all the propositions involved in the instructions given at the instance of the defendant in error.
The plaintiff in error, in his petition, denies the propriety of each of these instructions, but neither in the notes of his counsel accompanying the petition, nor in the argument here, has any serious effort been made to show by argument or authority, that the instructions have fathed to propound the law correctly, except in two particulars. In order to determine whether the instructions have erred in either of these particulars, a more special notice of the law, in relation to them, would seem to be rendered proper.
In the first place it is urged, ¿that carriers of persons are responsible for no more than ordinary neglect; and that as the instructions lay down a rule which imputes liability for a less degree of negligence than that which constitutes ordinary neglect, they have in such particular stated the law too strongly against the plaintiff in error. In support of this objection the authority mainly relied upon is the case of Boyce v. Anderson, £ Peters’ R. 150. That case does, I think, decide the law as the counsel' for the plaintiff states it; but in the case of Stokes v. Saltonstall, 13 Peters’ R. 181, it has been substantially, if not in terms, overruled.
Justice Barbour, in Stokes v. Saltonstall, in reviewing the decision in Boyce v. Anderson, says, “that was an action brought by the owner of slaves against the proprietors of a steamboat on the Mississippi, to recover damages for the loss of the slaves, alleged to have been caused by the negligence or mismanagement of the captain and commandant of the boat. The court distinguished slaves, being human beings, from goods; and held that the doctrine as to the liability of common carriers for mere goods, did not apply to them; but that in respect to them, the carrier was responsible only for ordinary neglect. The court seem to have ^considered that case as being a sort of intermediate one between goods and passengers. We think, therefore, that anything said in that case in the reasoning of the court, must be confined in its application to that case ; and does not affect the principle which we have before laid down.” And in a preceding portion of the opinion, the general principle is asserted, that though a carrier of passengers “does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to them goes to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that as far as human care and foresight can go he will transport them safely;” and the case of Aston v. Heaven, 2Esp. R. 533, is cited with approbation, in which it is held that whilst the action stands on the ground of negligence, yet the responsibility attaches to the smallest negligence.
And in Jackson v. Tollett, 3 Eng. C. L. R. 233, Lord Ellenborough states the law to be, that “every person who contracts for the conveyance of others, is bound to use the utmost care and skill; and if through any erroneous judgment on his part any mischief is occasioned, he must answer for the consequences.”
The case of Crofts v. Waterhouse, 11 Eng. C. L. R. 119, is substantially to the same effect. So in Hall v. Conn. River Steamboat Co., 13 Conn. R. 319, the court held that whilst the rule applicable to carriers of goods had not been applied in its fullest extent to carriers of persons, because they have not the same absolute control over passengers that they have over goods entrusted to their care; yet that both policy and the authority of adjudged cases require great care and skillful management in the transportation of passengers by common carriers. They said it was but right it should be so; that those, upon whose skill and careful management, not unfrequently, depend the lives and safety of others, should feel themselves responsible for any *want of care or faithfulness, and that they therefore fully approved the instruction given in the court below, that the defendants were bound to employ the highest degree of care that a reasonable man would use.
In Stockton v. Frey, 4 Gill. 406, and in Maury v. Talmadge, 2 McLean’s R. 157, and in Dewort v. Loomer, 21 Conn. R. 245, the same doctrine is maintained. And in the case of the Philadelphia and Reading R. R. Co. v. Derby, 14 How. S. C. R. 486, Justice Grier in delivering the opinion of the Supreme court uses the following strong and emphatic language: “When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence in such case may well deserve the epithet of “gross.” And in Angelí on the Eaw of Carriers, it is stated as the result of the decided cases, that “the degree of responsibility to which carriers of persons are subject, is not ordinary care, which will make them liable only for ordi*361nary neglect, but extraordinary care, which renders them liable for slight neglect. It is the danger to the public which may proceed even from slight faults, unskillfulness or negligence of passenger carriers or their servants, and the helpless state in which passengers, by their conveyances, are, which have induced the courts, both in England and in America, to bind the rule of the contract locatio operis, much tighter than could be insisted for on the ordinary principle of that contract. The most inconsiderable departure, therefore, from the important duties imposed upon passenger carriers, will render them liable for the consequences. ” Indeed, I have seen no case except that of Boyce v. Anderson, which sanctions *the idea that the carrier is not responsible for slight neglect; and I feel no hesitation in approving the instructions of the judge in the particular rtnder considera ton.
The second error supposed to be committed by the judge below, in expounding the law to the jury, is to be found in the explanation accompanying the third instruction asked by the defendant in error. In the third instruction, it will have been seen, the judge instructed the jury that if they believed that the plaintiff was injured by the upsetting of the stage, and that the upsetting'was caused by the horses running off; that the horses ran off, not because they were accidentally frightened, but because the blocks were out of the brake, causing the stage to run upon them; and if the jury further believed that such running off of the horses might have been prevented, if the horses had been properly harnessed, or if the utmost care and diligence of a cautious person had been used, to secure the blocks in the brake; that the defendants were liable in damages. And the court accompanied this instruction by the remark to the jury, that in speaking of the horses being “properly harnessed,” the court was not to be understood as expressing any opinion whether the horses should have had breeching or not; for upon that subject he would express no opinion, leaving it entirely to the jury, as a question proper for their decision.
And the court afterwards, at the instance of the plaintiff in error, instructed the jury, that in the absence of any express or special contract, the proprietors of stage coaches for the transportation of passengers, are not bound to guarantee as to their coaches, harness and fixtures, more than that they shall be sound and complete of the kind used upon their line, and offered to the patronage of travelers. And that they cannot be charged with damages resulting, without '^negligence, from the non-adoption of another kind or style of conveyance, harness or fixtures. The defendant in error having offered the testimony of witnesses to show, that, since the introduction of the brake, it was not safe to trust to that as a means of checking the velocity of stages in descending hills, with harness that had no breeching; and the plaintiff having offered evidence to show that when the brake was used the breeching to the harness was of'no value as a means of safety; and that on his line, and on many other lines, the breeching had been abandoned as useless since the improvement of the brake had been introduced, it was, I think, evidently the purpose of the court, in the explanation given of the third instruction, to guard the jury against the impression, that in saying if the jury believed that the running off of the horses might have been prevented if the horses had been properly harnessed, &c., the plaintiffs in error were liable, the court intended to express the opinion that the failure to use breeching to the harness did of itself constitute neglect: whilst on the other hand the plaintiff in error was desirous of getting rid of the testimony offered by his adversary on that head by the instruction which he asked; the effect of which was to negative the conclusion in law, of any neglect in failing to use the breeching, though the jury should be of opinion, from the evidence that harness with breeching would be safer than harness without, provided they should also believe that the harness used was sound and complete, of the kind used, upon the line of the plaintiffs in error.
It is insisted by the counsel of the plaintiff in error, that there is an obvious conflict between the third instruction of the defendant in error as explained by the court, and the first instruction given at the instance of the plaintiff in error; that the latter properly confined the jury to the enquiry whether the harness was sound *and complete of the kind used on the line, whilst the former left the jury at liberty to impute neglect to the plaintiff in error in failing to use harness of a different kind.
The discrepancy between the two instructions complained of does, I think, exist; and it becomes necessary to enquire which of the two instructions is right. The question as to the liability of the carrier is presented in a peculiar and novel aspect; but it will on examination, I think, be found to fall within the influence of well settled and familiar principles.
I have already cited the authority of Judge Story to show that the carrier is bound to provide coaches reasons bly strong and sufficient for the journey, with suitable harness, trappings and equipments. And there are numerous cases stating the law the same way; and among others, Christie v. Griggs, 2 Camp. R. 79; Bremner v. Williams, 11 Eng. C. L. R. 437; Crofts v. Waterhouse, Ib. 119; Sharp v. Grey, 23 Eng. C. L. R 331; Stockton v. Frey, 4 Gill’s R. 406.
In the case of Ingalls v. Bills, 9 Metc. R. 1, the correctness of some of these decisions, so far as they go to declare the stage owner to be a warrantor of the soundness and sufficiency of the coach in all respects, is denied. And it was there held that when the accident arises from a hidden and internal defect which a careful and thorough examination would not disclose, and which *362could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury; but the misfortune must be borne by the sufferer. Yet the court at the same time said, that the carriers of passengers are bound to use the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harness, horses and coachmen, in order to prevent those injuries which human care and foresight can guard against; and that if an accident happens *from a defect in the coach, which might have been discovered and remedied upon the most careful and thorough examination of the coach, such accident must be ascribed to negligence, for which the owner is' liable in case of injury to a passenger happening by reason of such accident.
If this case is to be regarded as establishing that a latent defect in the coach, which a careful examination would not disclose, forms an exception to the general undertaking of the carrier to furnish a sufficient coach (about which I do not deem it necessary to express an opinion), it is clear, I think, that this exception has no bearing on' the case, and that in expounding the law, there was nothing- making it incumbent on the judge to state it. And the true point of enquiry out of which the conflict of instructions arose, was whether an alleged defect in the harness used by the plaintiff in error (which if it existed, was á patent defect consisting in the absence of a certain portion of the harness, with or without which it could be used), was a proper matter of enquiry for the jury; and if so, whether on their being of opinion that there was such defect, they could make it the ground for finding the plaintiff in error guilty of neglect.
If the proposition contended for by the plaintiff in error is to be received as the law, viz: that he undertakes only that his coaches, harness and fixtures shall be sound and complete of the kind used on his line, it follows that he may be excused from liability in the face of the amplest proof to show that owing to their style or kind, they were positively dangerous. In no case that I have seen can any warrant be found for such a rule. Could it be said, in the language of the case of Ingalls v. Bill, that a carrier uses the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harness, &c., if it was shown that from want of care, skill or judgment, he *had selected for use on his line, a style of harness shown to be less safe than another which had long been in use, and which was known by him to be in use? Such a rule seems to me to alter the relative rights and duties of the carrier and passenger. The passenger, instead of relying on the carrier to use the proper care and judgment in the selection of the coach, harness, &c., with a view to its safety, would have to use the utmost diligence, whenever about to take passage, in enquiring into the style and fashion of the coach used on the line, and then to determine for himself whether or not a stage constructed after such style or fashion, would or would not, probably, be safe. The law, I think, imposes no such duty on the passenger. He has, I think, a right to expect that the carrier who has undertaken to use the greatest care and skill in providing-for his safe passage, will exercise the proper caution and care in seeing that his coach is not only sound and complete of its kind, but is also of a safe kind. The traveling public have a right to expect that he who undertakes to fill such a responsible post, will bring to the discharge of its duties all the knowledge that appertains to the calling; that he will observe and compare the different kinds of coaches is use, and direct his attention to the principles on which they are constructed, in order to use a well informed experience and an enlightened judgment in the selection of such as will be most likely to insure the safety of those who are to be carried in them. The carrier cannot be said to have fulfilled the requirements of the law so long as there exists any known want of safety in his coaches, harness, &c., whether arising from defectiveness of material or workmanship, or faultiness of the principle on which they are constructed, for which there is a known remedy, used wisely as a means of safety, by others, of skill and sound judgment, engaged in the same *business. A danger arising from any such defect cannot be properly regarded as one of those risks or dangers necessarily incident to • the mode of travel, which it is presumed every passenger has made up his mind to encounter.
In the case before us there was not only testimony tending to show that there would be a greater degree of safety in using harness with breeching than without, but that the horses could be readily trained to the use of such harness in holding back. In this state of things, seeing that the slight change in the harness, by the addition of breeching, would be attended by little or no expense and with slight trouble or inconvenience in training the horses to the use of it, it seems to me that it was a fair subject for the jury to consider (in case they believed what the evidence of the defendant in error-tended to prove), whether the failure of the plaintiff in error to make the change, as a measure of safety, was not evidence of a want of proper care and vigilance on his part, in providing for the safety of those traveling in his coaches.
The seeming conflict in the instructions was brought about by the plaintiff in error, in asking and obtaining from the court an instruction to which, in the view I have taken, he was not entitled; and there is nothing, therefore, in that particular, of which he has any right to complain.
Upon a view of all the instructions given by the court, as a whole, I have been unable to discover that they assert any principle which bears too harshly on the plaintiff in error, or which was calculated to mislead the jury, to his prejudice. And at a period *363when the facilities for travel are so rapidly multiplying, and the amount of travel is so constantly on the increase, I feel no disposition to relax any of the rules which hold the carrier to a strict accountability. When so many causes are conspiring to engender and foster a *love for the excitement of rapid traveling, which is •daily betraying the managers and conductors of every species of conveyance into a fatal disregard of all the precautions essential to the preservation of the limbs and lives of those committed to their charge, I do not- think that the law should slacken the reins by which to some extent at least, it holds them in check. On the contrary, policy, humanity and reason all seem to require from the courts a stern adherence to the principles which tend to insure the greatest care on the part of the carrier, and the least danger to the passenger.
The fourth instruction given at the instance of the defendant in error is objected to, not because it states the law incorrectly, but because, as is said, there was no evidence tending to prove that the coach was upset in consequence of having too much baggage on the top. If there was no evidence on that head, the plaintiff in error could not have been injured by a correct statement of the law, that the carrier would be liable for an injury arising from an overturning of the coach occasioned by its being too heavily loaded on the top. On the other hand, if there was any competent and relevant testimony, however slight, tending to show that the upsetting was due to that cause, the defendant in error was entitled to have the law in that particular hypothetically expounded to the jury. There was, I think, evidence tending to the proof of such fact. Discarding the statement of the witness Cralle, that the driver Carper said to him that he thought there was too much baggage on the top, and that he thought the upsetting was in part occasioned thereby, as illegal, except for the purpose of impeaching Carper, I think there was circumstantial evidence, though slight, tending to the conclusion that the coach was top-heavy, and that the upsetting may have been partly due to that cause. It is in proof that *there were eleven passengers, nine inside and two on the outside. How and where their baggage was disposed, does not appear, with the exception that one of the passengers proved that his trunk was in the boot behind.
Carper says that he has no recollection as to the amount of baggage on the top of the stage, or the number or size of the trunks; that “he found it all on, and under the canvas when he took charge; and had no occasion to handle or examine it. ’ ’ And he further states “that in coming down the hill and around the turns, the stage rocked very much from side to side, and just before turning over on the left hand, had strongly tilted to the right, and in falling back, tilted the other way, and seemed to him to be some distance on the left wheels before it went clear over.”
And it is further shown that at the point where the coach overturned, the road was level across, though slightly descending. The rocking of the coach from side to side, and the manner of its turning over, were circumstances tending to the inference that it was top-heavy. I think the plaintiff in error had a right to the instructions.
The last cause of error assigned is the refusal of-the court to set aside the verdict and grant a new trial. We have no certificate of the facts; but only a certificate of the evidence. When such is the case, this court has uniformly refused to take cognizance of the exception, except when it appears that after rejecting all the parol evidence in favor of the party excepting, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. Pasley v. English, 5 Gratt. 141; Rohr v. Davis, 9 Leigh 30. Applying this rule there is nothing to rebut or weaken the prima facie case made by proof of the upsetting of the stage, and the consequent *injury to the defendant in error. So far from it, the evidence in favor of the verdict shows most clearly a case of culpable negligence on the part of the driver. Without adverting to the other evidence in support of such a conclusion, the driver’s own account of his conduct proves it. He showed a want of ordinary care in failing to make a more minute examination of the blocks at Red Banks where he first took charge of the coach. There was the same want of care in their examination at Woodstock, when the most ample time and opportunity were afforded for a thorough examination. Having fathed to make such examination at Woodstock, he was guilty of the grossest negligence in failing to assure himself that the blocks were in before he commenced descending the hill where the disaster occurred. In the absence of breeching or any other substitute by which the horses could hold back and prevent the stage from running on them, he knew that his main if not sole reliance for a safe descent of the hill was in the brake, which, he also knew, would be of no avail if the blocks were not in place; yet he most negligently and recklessly commenced the descent of the hill without having tested the presence or absence of the blocks, which might have been done by simply applying his foot to the brake. Whilst descending the hill he for the first time discovered that the blocks were out. The brake of course was useless. As might have been expected, the stage soon began to run on the horses, and they, in the absence of any other cause of fright, ran off and upset the stage. The disaster is thus most cleariy traced, by the driver’s own account of his conduct, to his unpardonable failure to provide the means, with his power, by which to prevent it.
It is, however, in the last place insisted that the damages are excessive, and that this appears from the '^evidence of the defendant in error, and that the *364court ought to have granted a new trial for that cause. o
There is no rule of law fixing the njeasure of damages in such a case; and it cannot be reached by any process of computation. In cases of the kind, the judgment of the jury must govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. 16 Pick. R. 547.
On the one hand, the damages seem to be heavy. On the other, the injuries, losses and sufferings which they are designed to compensate, are proved to be great.
The head of the defendant in error was severely cut, and one of his legs badly broken, the smaller bone protruding through his clothing and boot. One of his physicians thought, at first, that amputation would have to be resorted to. His agonies, physical and mental, must have been intense. For some time his mind was seriously affected. At the time of the trial, rather more than a year after the happening of the disaster, his leg had not entirely healed; the limb was shortened and. the joint stiff. The use of crutches was still necessary, and the physicians expressed the opinion that he would be a cripple for life. He was necessarily confined for some six months in a house near the place of the disaster, detained from his business, and from his home, which was in another state. The presence of members of his family, some during the whole time, and .others for a portion of it, was necessary, in order that his wants and comforts might be properly attended to; and the expenses which he encountered in the discharge of the bills of boarding and the attendance of his physicians, and other incidental charges, were necessarily large.
*In view of such a state of facts, I cannot undertake to say that the damages are so plainly beyond a reasonable compensation, so manifestly exorbitant, as to require us to disturb the estimate and verdict of the jury.
I think the judgment ought to be affirmed.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed.
COflMON CARRIERS.
I. In General.
A. Definition.
B. Telegraph Companies as Carriers.
C. Preference to Solicitors of Baggage.
D. Responsibility of Receivers.
II. Control and Regulation by State and- Federal Governments.
III. Carriers of Goods.
A. Delivery by Carrier.
B. Bills of Lading.
C. Contract of Transportation and Delivery.
D. Liability.
1. In General.
a. Responsibility for Goods Received, Degree of Care Required, and Exceptions by Law to-Liability.
b. Act of God,
2. Beginning and Ending of Liability.
3. Loss or Damage on Line of Connecting Carrier.
4. As Warehouseman.
5. As Forwarder.
6. When Privthege Is Extended to Other Companies or Corporations to Carry Articles on Train.
7. When Cars Are Hired.
8. As Agent for Connecting Carrier.
E. Contracts of Exemption and Limitation.
F. Freight, Demurrage and Other Charges.
1. Statutory Regulations.
2. Preferences.
3. When Entitled to Freight and Demurrage.
4. When Freight Is Due.
5. Set-Off.
6. Recovery.
7. Excessive Charges.
IV. Carriers of Live Stock.
A. Statement of Duty.
1. Degree of Care and Liability in General.
2. Confinement and Treatment in Transitu.
B. Loss or Damage Caused by Default of Owner.
C. Contracts of Exemption and Limitation.
V. Carriers of Passengers.
A. In General.
B. Relation Existing between Carrier and Passenger.
1. Who May Become a Passenger.
2. Who Is Entitled to the Protection of a Passenger.
3. When Presumed to Be a Passenger.
4. Treatment and Protection of Passenger.
5. Right of Carrier to Make Rules and Have Them Obeyed.
C. Fares and Tickets.
1. The Ticket.
2. Schedules.
3. Advancements and Reductions.
4. Opening of Ticket Office.
5. Rights in Connection with Ticket.
a. Of Passengers.
b. Of Carriers.
6. Annual Passes.
7. Commutation Books.
8. Overcharges.
9. Contract to Furnish Ticket.
D. Injuries to Passengers.
1. In General.
a. Statement of Duty as to Care and Safety.
b. Source of Liability for Injuries Occurring to Passengers.
c. Duty to Passenger and Employee Distinguished.
d. Illustrative Cases Involving the Nonperformance of Duty to Protect from Injury.
(a) Taking on Passengers.
(b) In Transitu.
(c) Setting Down Passengers.
e. To Whom Liable, and When.
E. Negligence.
1. In General.
2. Contributory Negligence.
a. In General.
b. Cases Illustrative of Principles.
(a) Entering Conveyance.
(b) In Transitu.
(c) Leaving Conveyance.
*3653. Imputed.
4. Concurrent Negligence.
5. Proximate Cause.
F. Ejection.
G. Baggage.
VI. Actions.
A. Against Carriers of Goods.
1. In General.
2. Pleading and Practice.
a. Form of Action.
b. Proper Parties to Proceedings.
c. Process.
d. The Declaration.
e. Variance.
f. Set-Oif.
g. Bill of Exceptions.
h. Instructions.
i. Judgment.
3. Evidence.
B. Against Carriers of Live Stock.
1. Pleading and Practice.
2. Evidence.
C. Against Carriers of Passengers.
1. Pleading and Practice.
a. Form of Action, Parties, Venue, and Questions for Jury in General.
b. The Declaration.
c. Instructions.
d. Damages.
2. Evidence.
VII. Criminal Liability.
Cross References to Monographic Notes.
Agencies, appended to Silliman v. Fred., etc., R. Co., 27 Gratt. 119.
Assignability of Choses in Action.
Assumpsit.
Damages, appended to N. & P. R. Co. v. Ormsby, 27 Gratt. 455.
Death by Wrongful’ Act.
Instructions, appended to Womack v. Circle, 29 Gratt. 192.
Insurance, Fire and Marine, appended to Mut. Assur. Soc. v. Holt, 29 Gratt. 612.
Negligence.
I. IN GENERAL.
A. DEFINITION. “The term ‘common carrier’ shall be construed to include any railroad, express or canal company, chartered by this or any other state and doing business in this state, whether incorporated or not. and whether operated or controlled by an individual or partnership.” Virginia Acts of Leg. 1891-92, p. 965; Pol. Supl. Code (1900), § 1297 a, ch. 18.
B. TELEGRAPH COMPANIES AS PUBLIC CARRIERS.—Telegraph companies are not public carriers in the strict sense of the term, yet on account of the public nature of their employment, they have in many cases been held to a very similar responsibility. West. Union Tel. Co. v. Reynolds, 77 Va. 173.
C. PREFERENCE TO SOLICITORS OF BAGGAGE.—Where the legislature adopts an English statute prohibiting carriers from giving undue preferences to particular persons, it will be presumed that the settled construction given to such statute by the English courts is intended to be incorporated in the act, and such construction will govern in the interpretation thereof. N. & W. Ry. Co. v. Old Dominion Baggage Co. (Va. 1900), 37 S. E. Rep. 784.
Thus, under Acts 1891-92, p. 965, providing that common carriers shallnotgive preference to particular persons in any respect, or subject any particular person to prej udice, a baggage transfer company cannot restrain a railway company from allowing a rival baggage company the exclusive privilege of entering its grounds to solicit baggage. N. & W. Ry. Co. v. Old Dom. Bag. Co. (Va. 1900), 37 S. E. Rep. 784.
D. RESPONSIBILITY OF RECEIVERS.—A receiver appointed to assume charge of the affairs of a railroad company may be held responsible for the damage actually sustained through the negligence of the receiver’s agents and employees, in any case in which the company could be so beld. But where the receiver is appointed by a court of equity he cannot be sued at law without permission of the appointing court. Melendy v. Barbour, 78 Va. 514.
II. CONTROL AND REGULATION OF CARRIERS. State Government—Fixing Charges of Transportation of Freight and Passengers.—The right to regulate and fix at their pleasure the charges of railroad companies for transportation of freight and passengers is one of the powers of sovereignty inherent in every state, to be exercised by the legislature from time to time at its pleasure. A legislature cannot, however, by a charter granted to one company, make stipulations as to charges which will be funding on future legislatures. Laurel Fork, etc., R. Co. v. Transportation Co., 25 W. Va. 324; W. Va. Transportation Co. v. Sweetzer, 25 W. Va. 434; Richd. & A. R. R. Co. v. Patterson, etc., Co., 92 Va. 670, 24 S. E. Rep. 261, 1 Va. Law Reg. 917.
Thus, the W. Va. Act 1873, ch. 227, establishing a reasonable maximum rate of charges for the transportation of passengers and freight, and providing relative to unjust discrimination and extortion in the rates to be charged by different railroads in the state, is applicable to all railroads in the state, whether the charters were granted before or after the act. Furthermore the act is constitutional. Laurel Fork, etc., R. Co. v. Transportation Co., 25 W. Va. 324; W. Va. Transportation Co. v. Sweetzer, 25 W. Va. 434.
Connecting Carriers.
Facilities for Interchange of Traffic and Passengers.— Act March 3, 1892, § 4, requires common carriers to afford all reasonable, proper, and equal facilities for traffic between their respective lines, and for receiving, forwarding, and delivering passengers and property to and from their several lines and connecting lines. Under this act it is held that a railroad, so changing its time card that a connection with a connecting road, which is of general convenience, is discontinued, in order to furnish better facilities to several towns, is in violation of the statute. So. Ry. Co. v. Com., 98 Va. 758, 37 S. E. Rep. 294. See Pol. Supl. Code (1900), § 1297 a.
For statutes affecting carriers, see Va. Code 1887, § 1217, providing that “Railroad companies are not liable for acts of express companies”; §1295, relating to “Liability of carrier for transportation beyond the terminus of his line”; § 1296, “When agreements exempting carrier from liability not valid”; § 1297 (W. Va. Code 1900, p. 775), “How carrier may be sued, when not incorporated, and when suit not to abate”; § 3228, (W. Va. Code 1900, p.847), “Process”; § 1297 a, Pol. Supl. containing provisions relative to “Long and Short Haul,” “Rates,” “Preferences,” “Discrimination,” “Rebates,” “Drawbacks,” “Public Schedules,” “Interchange of Traffic,” “Opening *366Ticket Office,” etc., etc., being a general provision; W. Va. Code 1900, p. 955, “Embezzlement by Carrier”; W. Va. Code 1900, p. 949, “Penalty on conductor or captain of boat or public conveyance, for negligently injuring anyone.” See 24 Stat. (U. S.) 879, and25 Stat. (U. S.) 855; also, Interstate Com. Acts, July 22d 1897, Nov. 16th 1897. These statutes are more fully treated hereafter, under heads appropriate to the subject-matter involved. Reference is therefore made to them.
Federal Government.
Power to Control and Regulate.—Congress has power under the constitution of the United States, to regulate commerce among the states, and this power embraces the power to regulate all the various agencies by which that commerce is conducted. State laws which undertake, in any form, to enforce a tax on such commerce, or to impose a burden or hindrance thereon, or to embarrass commercial intercourse and transactions, or to give citizens of one state any advantage over citizens of another state engaged in interstate commerce, are regulations of commerce among the states, and therefore void. This power, when exercised by congress, is exclusive in its character, and the omission to exercise it is equivalent to a declaration of the will of congress that it shall remain free and uncontrolled in those respects in which the subject is capable of'being dealt with by general regulations. R. & A. R. Co. v. R. A. Patterson Tobacco Co., 92 Va. 670, 24 S. E. Rep. 261, 1 Va. Law Reg. 917. See, in general connection, So. Ry. Co. v. Com., 98 Va. 758, 37 S. E. Rep. 294; Va., etc., Co. v. L. & N. R. Co., 98 Va. 776, 37 S. E. Rep. 310; State v. R. Co., 24 W. Va. 783, construing W. Va. Code 1891, §§ 16, 17, ch. 149, relating to Sunday laws, these sections being held not to be in conflict with the Constitution of the U. S., art. 1, § 8, ch. 3; N. & W. R. R. Co. v. Com., 88 Va. 95, 13 S. E. Rep. 340, construing Va. Code 1887, § 3801, relating to Sunday laws, in which case this statute was held void and inoperative being in conflict with the Constitution of the U. S., art. 1’, § 8, providing that congress shall have power to regulate commerce among the! several states.
Same—Interstate Commerce Acts.
Filing Joint Rates—Connecting Carriers.—Under the Interstate Commerce Act (24 Stat. 379), as amended by Act, March 2,1889, ch. 382 (25 Stat. 855), requiring the filing with the commission of established joint rates by connecting carriers, and making it unlawful for any such carrier to receive a greater or less compensation for the! transportation of freight, a contract for the shipment of freight beyond the line of a receiving carrier, at a rate which it has furnished the commission, and which is less than the aggregate of the rates charged by the connecting carriers, is not invalid, where the receiving carrier, without intending to violate the act, fixed such rate on quotations made to it by the connecting line, and by mistake fixed the rate for such connecting line at less than it charged. And failure of the other connecting carriers to give publicity to the rate does not invalidate a contract for the shipment of freight over such connecting lines, as violative of the interstate commerce law, which is otherwise valid. Va., etc., Co. v. Louisville & N. R. Co., 98 Va. 776, 37 S. E. Rep. 310.
And lowering a freight rate in the manner required by the Interstate Commerce Act (July 22d 1897, Nov. 16th 1897), after a contract has been made in violation of that act, does not render the contract valid and binding on the carrier, and, if under no legal obligation to lower the rate, the carrier may restore the rate so lowered. Southern Railway Co. v. Wilcox (Va. 1900), 7 Va. Law Reg. 381.
111. CARRIERS OF GOODS.
A. DELIVERY BY CARRIERS.
Duty Imposed by Statute to Notify Consignee When Freight Is Ready for Delivery—Removal.—It is provided by statute, Acts 1891-92, p. 965, Pol. Supl. § 1297 a, that it shall be the duty of every company upon the arrival of freight shipped to any of its depots or stations to notify the consignee, by mail or otherwise, when such freight is ready for delivery, and give a reasonable time for the removal of the same, making due allowance for its class and for bad weather and holidays.
By undertaking to transport goods, a common carrier necessarily includes the duty of delivering them in safety, and within a reasonable time, and the carrier is liable for all loss or damage except that which is caused by the act of God, the act of the common or public enemy, or the act of the owner of the goods. B. & O. R. Co. v. Morehead, 5 W. Va. 293; Murphy v. Staton, 3 Munf. 239. Or as held by some authorities, a carrier is not liable when the loss occurs by reason of acts of public authority, as for instance, destruction under the police power. Mugler v. Kansas, 123 U. S. 623; Railroad Co. v. Husen, 95 U. S. 465. Nor losses caused by the inherent nature of the goods. The doctrine as to the latter has been so declared in Mississippi, Illinois, Massachusetts, New York, and in England. As to the exception in case of loss in shipping live animals, see post, “Carriers of Live Stock.” In the exceptional cases declared in Virginia and West Virginia, the carrier will, nevertheless, still be responsible if the inevitable accident is the remote, and not the immediate, cause of the loss, and the loss could have been avoided by prudence and proper care. B. & O. R. Co. v. Morehead, 5 W. Va. 293; Murphy v. Staton, 3 Munf. 239. The question of liability for loss or damage is treated more fully, post, “Liability,” to which reference is made.
Effect of Acceptance by Consignee after Carrier’s Breach of Contract.—And again, acceptance of goods which a carrier has contracted to deliver at a certain time and which it has fathed to deliver until a later date is no waiver of the consignee’s right of action for the delay. N. & W. R. Co. v. Ship. Comp. Co., 83 Va. 272, 2 S. E. Rep. 139.
Disposition to Be Made of Goods—When Delivery Is Prevented by a State of War.—Furthermore, if access to the assignee, and delivery of the goods at the end of the route, is prevented by a state of war, it is the carrier’s duty to take care of the goods for the consignor, and notify him within a reasonable time of his inability to make the delivery, after which his liability is only that of the bathee. B. & O. R. Co. v. Morehead, 5 W. Va. 293.
Same—Duty to Deliver.—An express company is a common carrier and its responsibility for the safe delivery of the property expressed to it is the same as that of the carrier. So. Exp. Co. v. McVeigh, 20 Gratt. 264.
B. BILLS OF LADING.
Nature.—Bills of lading are held, in Pollard v. Vinton, 105 U. S. 1, to be both a receipt and a contract. So far as they acknowledge the delivery and acceptance of the goods, they are mere receipts. As to the rest, they are contracts.
*367Property in Goods Acquired by Bill of Lading.—And a party discounting a draft, and receiving therewith, deliverable to his order, a bill of lading of the goods against which the draft was drawn, acquires a special property in them, and has a complete right to hold them as security for the acceptance and payment of the draft. Neill v. Rogers, etc., Co., 41 W. Va. 87, 23 S. E. Rep. 702.
Effect of Notice of Claim, When Bill Omits Name of Claim Agent’s Office.--And it should be noted, that where a bill of lading does not state the location of a claim agent’s office, a stipulation that notice of a claim must be given within five days is unreasonable and void. Norfolk & W. Ry. Co. v. Reeves, 97 Va. 284, 33 S. E. Rep. 606.
IssuingDupiicate Bills—Statutory Requirement.—As to the issuance of duplicate bills to shippers, Va. Acts 1891-92, p. 965, Pol. Supl. § 1297 a, ch. 7. has the following provision: “All common carriers doing business in this state shall on demand issue duplicate freight receipts to shippers, in which shall be stated the class or classes of freight shipped and the freight charges over the road giving the receipt.’’
Construction of Words “At the Owner’s Risk,” Appearing in the Bill of Lading.—The term, “at the owner’s risk,’’ in a bill of lading, which is declared to be a special contract, taken in connection with other stipulations therein, limits the carrier to such loss or damage only as might result from ordinary neglect, which is defined to mean that want of care and diligence which prudent men usually bestow on their own concerns. B. & O. R. Co. v. Rathbone, 1 W. Va. 87.
Liability under Bill of Lading.—In Lewis v. C. & O. Ry. Co. (W. Va. 1900), 35 S. E. Rep. 908, a carrier received lumber for shipment to Europe. Subsequently, it was held liable under its bill of lading for the lumber, which was lost after placing it on the pier of the railway company under its exclusive control.
C. CONTRACT OF TRANSPORTATION AND DELIVERY.
What Contract Implied by Law.—When a common carrier undertakes to convey goods, the law implies a contract, that they shall be carried and delivered at the place of destination safely and within a reasonable time. And what is “reasonable time” within which goods are to be delivered, cannot be defined by any general rule, but must depend upon the circumstances of each particular case. Thus, the mode of conveyance, the distance, the nature of the goods, the season of the year, the character of the weather, and the ordinary facilities of transporation are matters properly filtering into the consideration of what is “reasonable time.” McGraw v. B. & O. R. Co., 18 W. Va. 361.
Consideration to Support the Contract.—And the mutual obligation of a shipper to ship, and of a carrier to carry, furnish sufficient consideration for a contract to carry at a specified rate; but if the shipper fails to accept the carrier's offer, and is not bound to furnish the goods for carriage, the carrier’s offer or promise to carry for a particular rate becomes a mere nudmn pactum, the breach of which will not support an action. Southern Railway Co. v. Wilcox, 7 Va. Law Reg. 381.
Estoppel to Recover Higher Value Than Agreement Specifies.—As a common carrier is entitled to be fairly informed as to the value of the property confided to his care, where a shipper enters into an agreement with a carrier as/to the value of the property shipped, and receives the benefit of low rates by reason of placing a low valuation upon the property, he is estopped from claiming or recovering another and higher valuation after the loss occurs, although said loss may be the result of negligence on the part of the carrier, provided the same is not gross, wanton, or wilful. Zouch v. C. & O. Ry. Co., 36 W. Va. 524, 15 S. E. Rep. 185.
Construction of Contract for Transportation.—in White y. Toncray, 9 Leigh 347, there was a covenant between a carrier and a manufacturer of salt, whereby the carrier agreed to transport from 1200 to 5000 barrels of salt, annually for three years, from the manufacturer’s salt works, for certain specified prices, for a stipulated reward per barrel transported. It was held that the manufacturer, and not the carrier, had the right to elect what quantity of salt, not less than 1200 nor more 5000 barrels, should be transported by the carrier annually.
Performance.
When Liable for Delay.—in McGraw v. B. & O. R. Co., 18 W. Va. 361, potatoes were delivered at the defendant’s depot on the 13th day of February 1866, to be shipped, on the 14th. There was a daily train between the two points of shipment; the weather was mild and so continued on the 14th; but the potatoes did not reach Grafton, their destination, until the 16th, and arrived so frozen as to be worthless, the weather on the 15th and 16th haying become cold. Under the circumstances the company was held liable in damages for the delay.
When Right of Action for Delay Not Waived.—Where there has been a delay in the transportation of goods causing a breach of the carrier’s contract to deliver at a specified time, by reason of which loss ensues to the consignee, such consignee’s right of action for the delay is not waived by a mere acceptance of the goods upon arrival at a later date than that specified in the contract. N. & W. Ry. Co. v. Ship. Comp. Co., 83 Va. 272, 2 S. E. Rep. 139. See post, “Liability.”
D. LIABILITY.
1. In General.
a. Responsibility for Goods Received, Degree of Care Required, and Exceptions by Law to Liability.— The law imposes upon the common carrier of goods an unusual and extraordinary liability. The foundation for this requirement rests upon considerations of public policy and convenience. The carrier is regarded as a practical insurer of the goods entrusted to him, and is liable for all losses, except such as arise by the act of God, the public enemy, or the conduct of the owner, unless the loss or damage arises from the nature and inherent character of the property carried, such as the natural decay of perishable articles, or the fermentation or evaporation of articles liable to these effects, or the natural and necessary wear of certain articles, or from defects in the packages in which they are shipped, or in the case of live stock where the loss arises from their own. vitality, or where vicious and unruly animals injure and destroy themselves by refusing food, or die of fright or heat, provided the carrier has used foresight, diligence and care to avoid such loss and damage. McGraw v. B. & O. R. Co., 18 W. Va. 361; B. & O. Ry. Co. v. Morehead, 5 W. Va. 293; Murphy v. Staton, 3 Munf. 239. And the onus is upon the carrier to show that the loss was such as he could not have prevented. B. & O. Ry. Co. v. Morehead, 5 W. Va. 293. See post, “Carriers of Live Stock,” for exceptions in transporting live animals.
*368It is held by some authorities upon the common law, that the rule rendering common carriers liable for every loss, except that which is caused by the act of God or the public enemy, was not a part of the ancient common law. It is a comparatively modern innovation, introduced in consequence of the growing commercial relations of the country, an imperfect police, imperfect protection from the government, and frequent losses by robbery. “The first case in which the principle was recognized and settled is that of Woodliefe and Curtis in the thirtyeighil year of the reign of Elizabeth. And the reason of the rule is not, as stated by Sir Edward Coke, solely or principally because the carrier hath his hire ; for other bathees for hire and private carriers for hire are not liable in the same manner and to the same extent.” PerBocKEE, Sen., in Van Santvoord v. St. John, 6 Hill 157.
If this be the true doctrine other innovations upon the liability of the carrier have been added in more recent times. Thus by some authorities a carrier is not liable when the loss occurs by reason of acts of public authority, as for instance, destruction under the police power. Mugler v. Kansas, 123 U. S. 623; Railroad Co. v. Husen, 95 U. S. 465. Or loss arising from the nature and inherent character of the property in custody. McGraw v. B. & O. R. Co., 18 W. Va. 361. The doctrine as to the latter has been also declared in Mississippi, Illinois, Massachusetts, New York, England, and doubtless other states. Another exception is when the loss occurs by reason of the act of the owner of the goods. B. & O. Ry. Co. v. Morehead, 5 W. Va. 293; Murphy v. Staton, 3 Munf. 239; McGraw v. B. & O. R. Co., 18 W. Va. 361.
b. Act of God.
Meaning and Application.—There is much conflict in the authorities as to the meaning of the term, “the act of God.” Some restrict its meaningto accidents in which it was impossible that there could have been any intervention of human agency. Again a distinction is drawn between active and passive acts of nature or the elements. As said by a learned author, “perhaps no subject could open a wider field for theological and speculative discussion than the question what are the acts of God. In one sense it may be said that all events may be attributed to His agency; but, this is by no means the sense in which the phrase is to be legally understood; and it can never become necessary, so far as the question of the liability is concerned, to discuss so abstract a proposition, because the exception to his liability intended by these words has, by a long course of almost concurrent adjudication, received a tolerably fixed and definite but limited meaning.”
As a general rule, it is held, that the act of God, which excuses the common carrier, must be a direct and violent act of nature. Thus “such an accident as could not happen by the intervention of man, as storms, lightning and tempests”; “those losses that are occasioned by the violence of nature by that kind of force of the elements, which human ability could not have foreseen or prevented, such as lightning, tornadoes, sudden squalls of wind”; "an extraordinary convulsion of nature”; “a direct visitation of the elements, against which the aids of science and skill are of no avail”; “physical causes which are irresistible, which human foresight and prudence cannot anticipate, nor human skill and diligence prevent, such as loss by lightning, storms, inundations and earthquakes, and the unknown dangers to navigation, which are suddenly produced by their violence.” See Friend v. Woods, 6 Gratt. 195; Maslin v. B. & O. R. Co., 14 W. Va. 189; McGraw v. B. & O. R. Co., 18 W. Va. 361.
Freezing Weather.—In this latter case potatoes were shipped by the plaintiff, and upon arrival at their destination, it was discovered that they were frozen to such an extent as to be worthless. The carrier fathed to ship on the day agreed, delaying the shipment to a subsequent day at which time the weather was cold, a sudden change having taken place in the conditions of the atmosphere. The defence set up by the carrier was, that the freezing weather caused the loss, and this brought the loss within the exception “act of God.”
The court in answering this defence, in the course of its argument, said : “If the question in this case depended solely on the question, whether the plaintiff in error (carrier) was liable for the loss of the property from freezing, because that was an act of God, I should have no hesitation in saying that the liability exists. But on the other hand, if the question of liability rests simply upon the question, whether they were liable for the freezing of the property, having been guilty of no negligence or misconduct, by which that injury resulted, I would have as little hesitation in skying, that they were not liable ; not because the freezing was an act of God, or an inevitable accident, but because of the exception ti> that principle, on account of the nature and inherent character of the property and its liability to freeze.”
Bar in River.—And in Friend v. Woods, 6 Gratt. 189, a common carrier on the Kanawha river stranded his boat upon a bar which had been formed in the river a few days before the boat had proceeded on its voyage, the bar resulting from a rise of the Elk river, a tributary of the Kanawha, causing the ice to gorge at its mouth, and a bar of sand and gravel to form in the channel along which the boat had to pass. The officers and crew of the boat were ignorant of the bar, when the boat stranded upon it. The defence interposed was that the accident which caused the loss was due to the act of God. The court in arguendo said: “Among the strongest authorities stated in behalf of the plaintiffs in error are the cases of Smyrl v. Niolon, 4 Bailey 421, 23 Am. Dec. 146; Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235. In the former it was held that a loss occasioned by boats running on an unknown ‘snag’ in the usual channel of the river, is referable to the act of God, and that the carrier will be excused ; and in the latter it was said that striking upon a rock in the sea not generally known to navigators, and not known to the master of the ship, is the act of God. And other authorities go so far as to assert that if an obstruction be secretly sunk in the stream, and, not being known to the carrier, his boat founder, he will be excused. The last proposition stands condemned by the leading cases both in England and America. In the case of Forward v. Pittard, 1 T. R. 27, Lord Mansfield says, that ‘to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows that it was done by the king’s enemies, or by such an accident as could not happen by the intervention of man, as storms, lightning and tempest.’ The same doctrine is strongly stated in McArthur v. Sears, 21 Wend. 196, where it is said that ‘no matter what degree of prudence may be exercised by the carrier and his servants ; although the delusion by which it is baffled, or the force by which it is overcome, be inevitable ; yet if it be the result of human means, the carrier is responsible.’ These cases clearly restrict excuses of the carrier for losses occasioned by obstructions in the stream to such obstructions as are wholly the result of natural causes. * * The rule, it is insisted, isaharsh one upon the carrier, and it is argued that the court should be slow to extend it further than it is fully sustained by the cases. However harsh the rule may at first appear to be. it has been long established, and is'well founded on maxims of policy and convenience, and viewing the carrier in the light of an insurer, it is of the utmost importance to him, as well as to the public who deal with him, that the acts for which he is to be excused should have a plain and well-defined meaning. When it is understood that no act is within the exception, except such a violent act of nature as implies the entire exclusion of all human agencies, the liabilities of the carrier are plainly marked out, and a standard is fixed by which the extent of the compensation to indemnify him for his risks can be readily measured and ascertained.” In view of these principles the carrier was held liable Cor the damage done to the freight on board his boat. For instances where these principles have been applied in connection with losses or injuries suffered by passengers, see post, “Carriers of Passengers.” *369which it is overcome, be inevitable ; yet if it be the result of human means, the carrier is responsible.’ These cases clearly restrict excuses of the carrier for losses occasioned by obstructions in the stream to such obstructions as are wholly the result of natural causes. * * The rule, it is insisted, isaharsh one upon the carrier, and it is argued that the court should be slow to extend it further than it is fully sustained by the cases. However harsh the rule may at first appear to be. it has been long established, and is'well founded on maxims of policy and convenience, and viewing the carrier in the light of an insurer, it is of the utmost importance to him, as well as to the public who deal with him, that the acts for which he is to be excused should have a plain and well-defined meaning. When it is understood that no act is within the exception, except such a violent act of nature as implies the entire exclusion of all human agencies, the liabilities of the carrier are plainly marked out, and a standard is fixed by which the extent of the compensation to indemnify him for his risks can be readily measured and ascertained.” In view of these principles the carrier was held liable Cor the damage done to the freight on board his boat. For instances where these principles have been applied in connection with losses or injuries suffered by passengers, see post, “Carriers of Passengers.”
Effect When Negligence Is the Proximate Cause.— But whenever the common carrier is exempted from liability, either because of the act of God or because of the nature and inherent character of the property and its liability to loss and damage, he must be free from any previous neglect or misconduct, by which that loss or damage may have been occasioned. For though the immediate and proximate cause of the loss in any given instance may have been what is termed the act of God, or from the nature and inherent character of the property, yet if the carrier unnecessarily exposed the property to such accident by any culpable act or omission of his own. he is not excused. And the previous neglect or misconduct, which makes the carrier liable for loss to property, must be immediately or proximately connected with the accident or loss. If it is remotely the occasion of the loss or damage the carrier is not liable. He is answerable for the ordinary and proximate consequence of his negligence, and not for those that are remote and extraordinary, and this liability includes all those consequences, which may have arisen from the neglect to make provision for those dangers which ordinary skill and foresight is bound to anticipate. Thus, a shipper delivered potatoes to a carrier on the 13th day of the month to be shipped to a point between which and the shipping station there were daily trains. The 13th was fair and the weather moderate, and upon this day the carrier agreed to ship. As a matter of fact they did not reach their destination nntil the ltíth, and upon their arrival they were found to be frozen and worthless, a decided change having taken place in the condition of the weather after the 13th, the day upon which they should have been shipped. The carrier defended on the ground that the loss was caused by the freezing, which was due to an act of God. The courtheld that freezing weather, causing a loss to goods, could not be deemed an act of God. and did not come within the definition of that term. It further held, however, that if the question of liability rested solely upon the question, whether they were liable for the freezing of the property, having been guilty of no negligence or misconduct, by which that injury resulted, they would not be liable, not because the freezing was an act of God or an inevitable accident, but because of the exception to that principle on account of the nature and inherent character of the property and its liability to freeze. But it was shown by the evidence that the carrier was negligent in having fathed to ship on the 13th day of the month as agreed, by doing which the cold weather would have been avoided, consequently no loss would have resulted from the goods being frozen; therefore, the carrier was liable for the damage accruing by reason of its default which was the proximate cause of the loss, even though in the absence of misconduct on its part, it would have been relieved from the liability under the exception “loss due to the nature and inherent character of the goods.” McGraw v. B. & O. R. Co., 18 W. Va. 361; Maslin v. B. & O. R. Co., 14 W. Va. 189.
See post, “Negligence,” discussed under “Carriers of Passengers”; also, monographic note on “Negligence.”
2. Beginning and Ending or Liability as a Common Carrier.—As a general rule a carrier’s liability as a common carrier, for the safety of the goods tendered toil for transportation, commences at the time of the delivery of such goods to it for immediate transportation. Acceptance may be either actual or constructive. And in order to charge a railroad company or other carrier with liability for the loss of, or injury to, goods which had been tendered for carriage and delivery by the .shipper or his agent, an actual or implied acceptance by the carrier must be shown. Southern Exp. Co. v. McVeigh, 20 Gratt. 264.
The delivery must be such as to place the goods in the custody and under the control of the carrier, and not merely in his vehicle, or other conveyance; so that if they are really in charge of the owner's servants, although they may be in the carrier’s wagon or vessel, the carrier is not answerable. Southern Exp. Co. v. McVeigh, 20 Gratt. 264.
Andas the liability of a common carrier thus begins with the delivery of the goods to it, so it continues until a proper delivery of the goods by it; for it is bound, not only to carry them to their destined place, but also to deliver them there to the bathee or as he may direct, else he must deposit them in a reasonably safe warehouse after the consignee has had a reasonable time in which to call for them and take them away. B. & O. R. Co. v. Morehead, 5 W. Va. 293. And as to the duty of notifying the consignee upon the arrival of the goods at the end of their destination, it is held in B. & O. R. Co. v. Morehead, 5 W. Va. 293 (1872), that it is the duty of the carrier to tender delivery, or at least to notify the consignee of his readiness to deliver ; and if the place of destination cannot be reached so as to make the delivery, the carrier should not only take care of the goods, but also notify the consignor or owner within a reasonable time, of his inability to make the delivery. and thereafter it will be liable only as a bathee. Yet in Berry v. W. Va. & P. R. Co., 44 W. Va. 538, 30 S. E. Rep. 143 (1898), it is held, thatthe railroad company is not required to give notice to the consignee of the arrival of the goods, but he must look out for their arrival.
The duty of the carrier to notify the consignee upon the arrival of the goods which was decided in the affirmative in B. & O. R. Co. v. Morehead, 5 W. Va. 293, was urged in the case of Berry v. W. Va. *370& P. R. Co., 44 W. Va. 538, 30 S. E. Rep. 143, and B. & O. R. Co. v. Morehead was cited as authority for the status of the law in West Virginia.
The court in the Berry Case, reviewing the former decision, said: “Railroad Co. v. Morehead, 5 W. Va. 293, seems to hold that notice is necessary, but it seems against the better authorities, and based on exceptional circumstances on account of inability to deliver at the point of destination.” In Virginia, however, this question is set at rest by statute. It is provided by the Virginia Code, Acts 1891-’92, p. 965, Pol. Supl., § 1297 a, that it shall be the duty of every company upon the arrival of freight shipped to any of its depots or stations to notify the consignee by mail or otherwise when such freight is ready for delivery and give a reasonable time for the removal of the same, and make due allowance for its class and for bad weather and holidays. In West Virginia, it is held that the removal by the consignee must be made without regard to the distance to the depot, or the means of removal or convenience of the consignee. If not made promptly, the carrier will cease to be liable as such. And what is a reasonable time for the removal of the goods by the consignee from the railroad warehouse is a question of fact, under all the circumstances for the jury; but, where the facts are clear and undisputed, it is a question of law for the court. Berry v. W. Va., etc., Co., 44 W. Va. 538, 30 S. E. Rep. 143. However, a railroad company is still under liability for a reasonable time as a common carrier while the goods are in the warehouse, but after a reasonable time elapses it is only under liability as a warehouseman. Berry v. W. Va., etc., Co., 44 W. Va. 538, 30 S. E. Rep. 143.
And a carrier receiving lumber for shipment to Europe was held liable on its bill of lading for lumber lost after placing it on the pier of the railway company and under its exclusive control. Lewis v. C. & O. Ry. Co. (W. Va. 1900), 35 S. E. Rep. 908.
In respect to mere delay of delivery, however, the carrier stands on the same footing as other bathees of its class, that is for the mutual benefit of both parties ; and' is answerable in respect to default only for ordinary neglect and may, therefore, excuse itself for such delay on the score of accident or misfortune, without its default, as by adverse winds, freezing of water, founderous roads and the like. See, in this connection, 3 Min. Inst. (2d Ed.) 276, etc. See also, ante, “Acceptance and Delivery of Goods”; “Delay in Transportation.”
It should be observed, however, that a drayman authorized to haul a merchant’s goods from the depot is not, from that consideration merely, an agent whose knowledge of arrival of goods will be notice to the merchant. Berry v. W. Va. & P. R. Co., 44 W. Va. 538, 30 S. E. Rep. 143.
When an Express Company Accepts in Capacity of Carrier.—Moreover, when goods are delivered to parties to be forwarded and transported, and these parties are expressmen, and receive compensation for forwarding and transporting, the goods are in their custody as carriers. Thus, the owner of certain goods about to arrive at the depot of a railroad station in Charlotte, North Carolina, wished them to be carried from thence to Richmond, Virginia, and an express company, by their agent at Charlotte, undertook to remove and deposit the goods in their warehouse as soon as possible on the arrival of the goods at the depot in Charlotte, and to carry them from Charlotte to Richmond within a reasonable time for the reward paid. The goods arrived at the depot, and the express company had notice of their arrival. It was held that it was a delivery to the express company as a common carrier. So. Exp. Co. v. McVeigh, 20 Gratt. 284.
3. Loss or Damage on Line or Connecting Carrier—When Restricted to 'Receiving Carrier’s Route.—The rule established by the federal and many of the state courts regarding the common-law liability of the carrier for goods which are delivered and transported over and beyond its own lines is, that the liability of the common carrier is restricted to its own route, unless it contracts to carry the goods to the ultimate point of destination, which is beyond its own line; and such contract is not established by proof that the carrier accepted the goods with the knowledge of their destination and named the rate for the same; and in the absence' of special contract to deliver the goods at a point beyond its line, the receiving carrier is not liable for loss or damage occurring to the goods after their delivery to the connecting carrier. Hadd v. U. S. & C. Exp. Co., 36 Am. Rep. 757; R. R. Co. v. Pratt, 22 Wall. 123; McConnell v. N. & W. R. R. Co., 86 Va. 248, 9 S. E. Rep. 1006. However, at the revision of the Code in 1887, the revisors proposed to the legislature the following provision which was adopted and incorporated into the Code of 1887, § 1295-; “When a common carrier accepts' for transportation anything directed to a point of destination beyond the terminus of his own- line or route, he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such acceptance, such carrier be released or exempted from such liability by contract in writing signed by the owner or his agent; and, although there be such contract in writing, if such thing be lost or injured, such common carrier shall himself be liable therefor, unless, within a reasonable time after demand made, he shall give satisfactory proof to the consignor that the loss or injury did not occur while the thing was in his charge.” Under this section of the Code when a carrier accepts anything for transportation beyond the terminus of its own line, it assumes an obligation for its safe carriage to such destination, unless it is released from such liability by written contract signed by the owner; and it is liable to such owner for an excess of freight charged over the rate agreed to by the receiving carrier, and paid to the connecting carrier at destination, though the bill of lading issued by the receiving carrier stipulated that it should not be accountable for any "damage after the’ freight receipted for by the connecting carrier. Va. Coal, etc., Co. v. L. & N. R. R. Co., 98 Va. 776, 37 S. E. Rep. 310 (1900). And this is true though the shipment be an interstate shipment and the carrier issues to the shipper a printed bill of lading, signed by the carrier only, in which it is stated that “it is mutually agreed that the liability of each carrier as to goods destined beyond its own route shall be terminated by proper delivery of them to the next succeeding carrier." R. & A. R. Co. v. Patterson Tob. Co., 92 Va. 670, 24 S. E. Rep. 261. The constitutionality of § 1295, Va. Code 1887, was raised in R. & A. R. Co. v. Patterson Tob. Co., 92 Va. 670, 24 S. E. Rep. 261. The provision is that the company shall be liable for injuries happening on their lines to goods which the receiving carrier has accepted for transportation beyond its own line unless there be a written contract, signed by the shipper, exempting the carrier from such liability. The point made by *371the defence was that it was a regulation of commerce among the states, and being a provision made by a state government, was therefore in conflict with the Constitution of the United States, art. 1, sec. 8, ch. 3, which provides that, “the congress shall have power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” After a full discussion the conrt of appeals of Virginia held that the provision was constitutional. And on an appeal to the supreme court of the United States the decision was affirmed. Mb. Justice White delivering the opinion of the court.
See 1 Va. Law Reg. 924 ; 3 Va. Law Reg. 907, for editorial comments upon the common law regulating this subject; the present Virginia doctrine under § 1295, and remarks upon the case above referred to in which this statute was construed by the Virginia court of appeals, and the opinion therein delivered, which was affirmed and the view adopted by the supreme court of the United States. See Va. Coal, etc., Co. v. Louisville, etc., R. Co., 98 Va. 776, 37 S. E. Rep. 310 (1900). See also, in this connection, Va. & Tenn. R. Co. v. Sayers, 26 Gratt. 328; So. Exp. Co. v. McVeigh, 20 Gratt. 264; Wilson v. C. & O. Ry. Co., 21 Gratt. 654.
4. As Warehouseman.
When Liable as Such, and Extent of Liability.—If a carrier be a warehouseman, or have a place of deposit for goods which he has transported, and he place them therein without instruction from the owner, either express, or implied from established usage or otherwise, he is still liable as carrier; but where they are so deposited in pursuance of express instructions, or in accordance with known and established usage, or where, notice having been given of their arrival, they are not removed within a reasonable time, the party's duty and obligation as carrier is at an end, and he becomes subject to the far less rigorous responsibility of a warehouseman. that is, he is answerable for ordinary or for gross neglect, according as he is or is not paid for such storage.
And if access to the assignee, and delivery of the goods at the end of the route, is prevented by a state of war, it is the carrier's duty to take care of the goods for the consignor, and notify him within a reasonable time of his inability to make the delivery, after which his liability is only that of a bathee. B. & O. R. Co. v. Morehead, 5 W. Va. 293.
But if goods are under the control of parties as forwarders and not as common carriers, and are consumed by accidental lire in a warehouse without any fault or negligence on their part, they are not liable; unless they had agreed for compensation paid, to insure them, and had fathed to do so. So. Exp. Co. v. McVeigh, 20 Gratt. 264.
However, where goods stored in a railroad -warehouse are called for by the consignee, and he is informed by an agent that they have not arrived, which prevents their removal, and they are destroyed by the burning of the warehouse, the company is liable. Berry v. W. Va. & P. R. Co., 44 W. Va. 538, 30 S. E. Rep. 143.
5. As Forwarder.—If goods are under the control of parties as forwarders and not as common carriers, and are consumed by accidental Are in a warehouse without any fault or negligence on their part, they are not liable; unless they had agreed for compensation paid, to insure them, and had fathed to do so. So. Exp. Co. v. McVeigh, 20 Gratt. 264.
6. When Privthege is Extended to Other Companies or Corporations to Carry Articles on Train.— Whenever any such corporation, company, association, or person, as is mentioned in Va. Code-1887, ch. 51, shall obtain from a railroad company the right or privthege of carrying articles upon the trains of such railroad company, and shall comply with the provisions of § 1216 relative to terms upon which foreign express companies may do business in this state, such railroad company shall not in any manner be liable, as a common carrier, for any articles thereafter delivered to such corporation, company, association, or person, for carriage as aforesaid. Va. Code 1887, sec. 1217. See, in this connection, So. Exp. Co. v. McVeigh, 20 Gratt. 264.
7. Hired Cars.—Moreover, it is settled that a railroad company cannot escape responsibility for damages resulting from its failure to provide cars reasonably At for conveyance of the particular class of goods it undertakes to carry, by alleging that the cars used for the purpose of its own transit are the property of another, who undertook to provide the necessary material to insure the fitness of the cars for such transportation. The owners of the cars will be deemed to be the agents and servants of the railroad company, and it will he held to the same liability as if it owned the cars. Thus, a railroad company which uses the cars of a refrigerator company for the transportation of fruit is under the same obligation to care for the fruit that it would have been, had the cars belonged to it. N. Y., P. & N. R. Co. v. Cromwell, 98 Va. 227, 35 S. E. Rep. 444.
8. Carrier as Agent for Connecting Carriers.— And where a carrier undertakes to carry for the whole distance, on and beyond its line, and then has a contract with a connecting carrier by which it is to accept and transport from the end of the initial carrier’s line to point of final destination, the initial carrier will be liable as principal for loss of goods on the line of the connecting carrier, and the latter will be regarded as agent of the receiving carrier. So laid down in Wilson v. C. & O. R. Co., 21 Gratt. 654 (1872).
Furthermore, by the terms of the Va. Code 1887, § 1295, connecting carriers become the agents of the initial carrier, and the latter is liable for their default in failing to transport the goods safely, or Cor charging a greater rate of freight than that agreed on. In Va. Coal & Iron Co. v. Louisville & Nashville R. Co., 98 Va. 776, 37 S. E. Rep. 310, there was no such release, and the initial carrier was bound to make good the rate of freight it had guaranteed.
Moreover, where a contract for transportation of goods over connecting lines of railway is made with one railway company as agent of the other, and the latter transports the goods and at the end of the trip presents a hill for the charges, it cannot, when sued for injury to the goods by its servants, deny the agency. N. & W. R. R. Co. v. Read, 87 Va. 185, 12 S. E. Rep. 395.
E. CONTRACTS OF EXEMPTION AND LIMITATION.
Validity—Negligence —Operation and Effect.—The general principles which regulate and govern the common-law liability of the common carrier have been more broadly and extensively treated ante, “In General.” In brief the common law holds the carrier oC goods liable for any loss or damage to the goods occurring while in his care or under his control as carrier, except, as at first held, for such *372losses as occur by reason of the act of God, the public enemy, some default or misconduct on the part of the owner, or unless the loss be due to the nature and inherent character of the goods. In other words the common law regards the common carrier as a practical insurer of the goods, saving only a limited number of exceptions.
However, it is held that the carrier may, by a valid contract, make a caution for itself, and, to a degree limit the strictness and rigor of the terms imposed by the common law.
Thus, in Richd. & Dan. R. Co. v. Payne, 86 Va. 481, 10 S. E. Rep. 749, it is held that a valid contract to limit the liability of the carrier to a certain agreed .valuation of the property even though less than actual value, may be made by the carrier, where it is just and reasonable in its terms, and a reduced rate of freight is made a consideration for it. B. & O. R. Co. v. Skeels, 3 W. Va. 556 ; B. & O. R. Co. v. Rathbone, 1 W. Va. 87; Zouch v. C. & O. Ry. Co., 36 W. Va. 524, 15 S. E. Rep. 185 ; Maslin v. B. & O. R. Co., 14 W. Va. 180 ; Wilson v. C. & O. R. Co., 21 Gratt. 654.
And as further held, it seems to be a well settled principle that a railroad company may, by express contract or notice brought home to the employer, relieve itself from its liability as an insurer of freight or for money or valuable articles liable to be stolen or damaged, unless apprized of their character and value, or for articles liable to rapid decay, or for live animals liable to get unruly from fright and to injure themselves in that state, when such articles or animals become injured without the fault or negligence of the company or its agents. However, it cannot, by express contract, though upon the consideration of a reduced charge upon the freight, relieve itself from its liability, as carrier of the freight, for injury to or loss of the freight resulting in any degree from the want of care or faithfulness of themselves or their agents. Va. & Tenn. R. Co. v. Sayers, 26 Gratt. 328 ; Brown v. Adams Express Co., 15 W. Va. 812; Berry v. W. Va. & P. R. Co., 44 W. Va. 538, 30 S. E. Rep. 143. The latter part of the proposition is confirmed in Virginia by statute, Va. Code 1887, § 1296, providing that “no agreement made by a common carrier for exemption from liability for injury or loss occasioned by his own neglect or misconduct, shall be valid.”
Still, it is of importance, that upon the terms and conditions set forth in § 1295 of the Code, a common carrier may limit its liability ‘for freight to such damages as result from its negligence prior to delivery to its connecting carrier. When such contract has been made, it is for the jury to determine from the evidence, under proper instructions from the court, whether or not the damage or inj ury complained of occurred while the freight was in its possession or upon its line of road. Norfolk, etc., R. Co. v. Reeves, 97 Va. 285, 33 S. E. Rep. 606.
In West Virginia, however, the authorities conflict regarding the proposition that a common carrier can by special contract exempt itself from loss caused by its negligence. Thus in the first case involving the point, B. & O. R. Co. v. Rathbone, 1 W. Va. 87, it was held, that a common carrier could diminish and restrict its common-law liability by special contract; and could absolve itself in this manner from all liability resulting from every degree of negligence however gross, if it falls short of misfeasance or fraud, provided the terms and language of the contract are so clear and definite as to leave no doubt as to the intention of the parties.
But in the subsequent case of Maslin v. B. & O. R. Co., 14 W. Va. 180, the Rathbone Case was directly overruled, the court holding that a common carrier cannot exempt itself from loss and damage, which has in any degree been caused by the negligence or misfeasance of itself or its servants. Commenting upon the Rathbone Case, GREEN, J., said: “I have reviewed the authorities at some length, because there is a decision of the supreme court of appeals of the state of West Virginia, which is in conflict with the views I have expressed and with the great weight of authority. In the case of the Baltimore & Ohio Railroad Co. v. Rathbone, 1 W. Va. 87, the court decides: ‘That it is competent for a common carrier to diminish and restrict his common-law liabilities by special contract; and that he may, by express stipulations, absolve himself from all liability resulting from any and every degree of negligence however gross, if it fall short of misfeasance or fraud, provided that the terms and language of the contract are so- clear and definite as to leave no doubt, that such was the understanding and intent of the parties.’
“This case was decided during the war. It was ar-. gued at some length, and no doubt all the authorities then accessible were examined by the counsel and court; yet few authorities were then accessible. The authorities referred to on this point by counsel were only the English and New York cases and the decisions of the supreme court of the United States up to that time. The court in its opinion cites but a single case. We have seen, that the recent New York and English cases are in conflict with the great weight of authority. A decision of such importance rendered by a court under such disadvantageous circumstances, and in conflict with both reason and the great weight of authority, though it be our own court, we cannot follow.” Berry v. W. Va. & P. R. Co., 44 W. Va. 538, 30 S. E. Rep. 143 ; Zouch v. C. & O. Ry. Co., 36 W. Va. 524, 15 S. E. Rep. 185.
Moreover, where a shipper enters into an agreement with a carrier as to the value of the property shipped, and receives the benefit of low rates by reason of placing a low valuation upon the property, he is estopped from claiming or recovering any other and higher valuation after the loss occurs, al-' though the loss may be a result of negligence on the part of the carrier, provided the same is not gross, wanton or wilful. But such a contract will not be upheld as exempting the carrier from all liability but as limiting the liability in case of loss to the amount fixed by agreement. Zouch v. C. & O. Ry. Co., 36 W. Va. 524, 15 S. E. Rep. 185.
As to the construction of the contract, the term, “at the owner’s risk,” in a bill of lading which is declared to be a special contract, taken in connection with other stipulations therein, limits the carrier to such loss or damage only as might result from ordinary neglect; which is defined to mean that want of care and diligence which prudent men usually bestow on their own concerns. B. & O. R. R. Co. v. Rathbone, 1 W. Va. 87.
Further, in this connection, it should be observed, that a common carrier cannot limit his common-law responsibility by any general notice, though knowledge of such general notice may be brought home to the consignor before or at the time he applied to have his goods transported. Brown v. Adams Express Co., 15 W. Va. 813.
Moreover, where a common carrier relies on a contract of exemption, he must not only bring himself within the exemption but show that no negli*373gence of his contributed to the result. Brown v. Adams Express Co., 15 W. Va. 813.
And, again, a common carrier does not by limiting his common-law liabilities by special contract thereby become a private carrier; and if loss is sustained, the burden of proof is on him to show, not only that such loss arose from a cause from which he was exempted from responsibility by the terms of his special contract, but also that it arose from no negligence or misfeasance of himself or his servants. Brown v. Adams Express Co., 15 W. Va. 812; Maslin v. B. & O. R. Co., 14 W. Va. 180.
P. FREIGHT, DEMURRAGE AND OTHER CHARGES.
1. Statutory Regulations.
Long and Short Haul.—Jt is unlawful for any common carrier doing business in this state to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property under substantially similar circumstances and conditions for a shorter than for a longer distance oyer the same line in the same direction, the shorter being included within the longer distance. But this is not to be construed as authorizing any common carrier to charge and receive as great compensation for a short as for a longdistance: provided, however, that upon application to the railroad commissioner such common carrier may in special cases, after investigation by the railroad commissioner, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property, and the commissioner may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this act. Va. Code 1887, § 1297; Pel. Supl. (1900), § 1297 a.
Special Rates—Rebates—Drawbacks—Discrimination. —If any common carrier subject to the provisions of the Act of the Legislature, ch. 55, Va. Code 1887, Pol. Supl. (1900), § 1297 a, shall directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any other person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provisions of this act than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is prohibited and declared to be unlawful.
Validity of Charges for Detention after a Reasonable Time.—Va. Code 1887, §§ 1202, 1203, allows railroad companies to make a certain charge for the shipment of produce and other articles; and for the weighing, storage, and delivery of articles at any depot or warehouse of the company ; a charge may also be made, not exceeding the ordinary warehouse rates charged in the city or town in which, or nearest to which, the depot or warehouse is situated ; but they forbid a railroad company to charge or receive any fee or commission other than the regular transportation fees, storage, and other charges authorized by law for manifesting, receiving, or shipping any goods or other articles for transportation on such railroad. Construing these sections, it was held in N. & W. R. R. Co. v. Adams, 90 Va. 393, 18 S. E. Rep. 673, that the statutes do not forbid a charge of $1.00 per day for the detention of a car more than 72 hours after notice to the consignee of its arrival. Lacy and Hinton, JJ., dissenting.
2. Preferences.—And it shall be unlawful for any common carrier, subject to the provisions of the act regulating common carriers to make or to give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation. or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Va. Code 1887, ch. 55, Pol. Supl., ch. 55. See these references for general provisions relating to common carriers.
3. When Entitled to Freight and Demurrage.
Contract for Freight and Demurrage Distinct and Independent.—By charter party of affreightment, a plaintiff engaged their vessel to take a cargo for defendants to a designated port, at a specified freight; and it was agreed that twenty running days should be allowed for unloading and discharging the vessel after her arrival at the port of destination, and that for every additional day’s detention, defendants should pay $50 demurrage. It was held that the stipulation for payment of demurrage did not affect the contract for freight, and if the consignee fathed to unload and discharge the vessel within the lay days allowed, there being no impossibility of his doing so. and afterwards, while the vessel was detained on demurrage, the vessel and cargo be lost without the default of the master or mariners, the plaintiffs were entitled to recover the freight, as well as the demurrage. Brown v. Ralston, 9 Leigh 532.
Avoiding Capture—Vessel Stranded.—And if in order to avoid capture by the enemy, the master before he reaches the port of destination, strands the vessel; which is thereby lost, but the cargo saved, the cargo shall not contribute to repair the loss of the ship, but the owner of the ship is entitled to freight and salvage. Eppes v. Tucker, 4 Call 346.
Vessel Condemned by Foreign Tribunal—Fraud of Owner.—But freight (though by the terms of the charter party, payable monthly, if required) is not to be recovered, where the voyage is never completed, but the vessel is condemned, by a foreign tribunal, in consequence of a fraud attempted by one of the owners intrusted by the rest with the care of the vessel, though no proof appear of their assenting to such fraudulent act. Hadfield v. Jameson, 2 Munf. 53.
Vessel Goes to Sea without Taking a Cargo Agreed upon.—And a shipper of corn having agreed to deliver it on board with no unreasonable delay, the captain of the vessel applied for it on Sunday, and, no person being ready to deliver it, would not wait until Monday, but went to sea without it. The ship owner was not entitled to dead freight on the quantity not shipped; but, on the contrary, was bound to make compensation to the other party, for the loss sustained, in consequence of the captain’s not taking the full quantity on board. Dunbar v. Buck, 6 Munf. 34.
Merchantman Having Letter of Marque—To What Extent the Enemy May Be Chased—Freight Allowed.— But a merchantman having a letter of marque, and having taken goods on freight, may chase an enemy in sight, but cannot justify going out of her course to cruise. If, in the former case, she engage the enemy, and be so injured as to compel her to put *374into a port, other than that of her destination, she is entitled to freight. But if the goods be not after-wards sent by the ship owner to the port of delivery, she is entitled only to freight pro rata itineris, unless prevented from doing so by the freighter. Hooe v. Mason, 1 Wash. 264. See, in this general connection, Galt v. Archer, 7 Gratt. 307.
4. When Freight Is Due.—It is a general principle that freight is not due until it is earned by a delivery of the cargo unless the delivery is prevented by default of the shipper or his agents. And if it becomes impossible to deliver the cargo, from causes not arising from the default of either party, the shipper will be excused from paying the freight. Brown v. Ralston, 4 Rand. 504.
5. Set-Oee.—And a consignee cannot set off against a carrier’s charges the amount of damages sustained by the goods from an act of God. Galt v. Archer, 7 Gratt. 307.
6. Recovery.—An action at law may be maintained by a carrier to recover his charges for transportation. The usual form of action at common law is assumpsit. Thus, in Galt v. Archer, 7 Gratt. 307, a common carrier contracted to deliver a crop of wheat at an agreed price per bushel. A large portion of the crop was delivered in good order; but from the unavoidable effects of a storm, a small part was delivered in a damaged condition, and another small portion was lost. It was held, in an action by the carrier for the freight, that he was entitled to recover under the common indebitatus count, the agreed price for the whole quantity so delivered or lost. Seeposi, “Actions.”
7. Excessive Charges.
Recovery from Carrier.—Under Va. Code, § 1295, providing that, when a common carrier accepts anything for transportation beyond the terminus of its own line, it shall assume an obligation for its safe carriage to such destination, unless it is released from such .liability by a written contract signed by the owner, a carrier accepting freight for, transportation beyond its lines, and who has obtained no such written release signed by the owner, is liable to such owner for an excess of freight charged over the rate agreed to by the receiving carrier, and paid to the connecting carrier at destination, though the bill of lading issued by the receiving carrier stipulated that it was not to be accountable for any damage after the freight was receipted for by a connecting carrier. Va. Coal, etc., Co. v. Louisville & N. R. Co., 98 Va. 776, 37 S. E. Rep. 310 (1900).
And in W. Va. Transp. Co. v. Sweetzer, 25 W. Va. 434, the court said that, where, generally speaking, the only outlets for the transportation of oil is over a certain railroad, and an excess of legal freight appears to have been paid in order to secure transportation over it, though paid after each shipment, it is compulsory, and can be recovered.
And a repayment of freight charges in excess of those lawfully chargeable by a railway company need not be demanded before bringing suit to recover back'-the excess. W. Va. Transp. Co. v. Sweetzer, 25 W. Va. 434.
And in an action against a carrier for charging an illegal freight rate, if the declaration states the weight of the freight, the time and place where delivered to defendant for transportation, and places to which it was to be transported, distance, the amount which was demanded and received by defendant and that it was more than was lawful, contrary to the statute in such case made and provided, it is a sufficient notice of the cause of action to the defendant to enable it to make ali just and proper defences. Hart v. B. & O. R. Co., 6 W. Va. 336. See post, “Actions.”
IV. CARRIERS OF UVE STOCK.
A. STATEMENT OF DUTY.
1. Degree of Care and Liability in General.— An exception is made to the strict liability to which a common carrier is held by the common law for the transportation of goods intrusted to it in the case of a shipment of livestock. It would be an unjust and unreasonable imposition to hold a carrier responsible to the same degree for the safety of animate as is done in the case of inanimate property. Carriers of live stock are liable as common carriers for damages or inj uries thereto arising during the transportation, except such as, without the fault or negligence of the carrier, result from the vitality of the freight; that is to say, the nature and propensity of animals to inj are themselves or each other, their unruliness, restiveness, fright, viciousness, kicking, or goring, etc. The carrier is relieved from liability for injury from such causes if he has provided suitable means of transportation and exercised that degree 'of care which the nature of the property required, or has not otherwise contributed to the injury. Maslin v. B. & O. R. R. Co., 14 W. Va. 180; Hutchinson on Carriers, § 217 et sea. Whthe common carriers are insurers of inanimate goods against all loss and damage except such as is inevitable or caused by the public enemy, or default of the owner, they are not insurers of animals against injuries arising from their nature and propensities, and which could not be prevented by foresight, vigilance and care. See ante, “Carriers of Goods.”
2. CONEINEMENT AND TREATMENT IN TRANSITU.
What Classes of Animals Included.—Section 4386 of tb e Revised Statutes of the United States forbidding any railroad company which carries “cattle, sheep, swine, or other animals” from keeping the same confined in its cars for a longer period than twenty-eight consecutive hours without unloading the same, watering, and feeding, for the period of at least five consecutive hours, applies to a shipment of horses, mules, and all animals which may suffer for want of food, water or rest during such transportation. And that the two cars, in which 43 horses were shipped, were two feet longer than ordinary cars with racks, and troughs in which to feed and water, is insufficient to show that the cars were such that the cattle could have “proper food, water, space, and opportunity for rest,” as provided by Rev. St. U. S. § 4388, so as to relieve the carrier from the duty of unloading them at stated intervals to rest, water and feed. C. & O. Ry. Co. v. Amer. Exch. Bank, 92 Va. 495, 23 S. E. Rep. 935.
Negligence in Allowing Stock to Drink Salt Water.— But where a contract by which lambs were shipped provided that the company should not be liable for injury to the stock until they were “loaded into the car, and the car dqor fastened by the conductor,” it was held that this did not exempt the carrier from injury caused by its negligence in allowing the lambs to drink salt water before they got on the car. N. & W. R. Co. v. Harman, 91 Va. 601, 22 S. E. Rep. 490.
B. LOSS CAUSED BY OWNER’S DEFAULT.
Improper Interference.—In view of these exceptions, it was held that a common carrier will not be liable for injury to a horse occasioned by the improper or unwarrantable interference of the owner or his *375agent, in the management of the car by the servants or employees of the company. Roderick v. Railroad Co., 7 W. Va. 54.
Contributory Negligence.—If the owner’s contributory negligence is the proximate canse of the accident and loss of his live stock, the general principles would apply, and his recovery be barred.
But the fact that a shipper in unloading horses, allowed some of them to go out without leading them, does not show, as a matter of law, that he was guilty of contributory negligence. C. & O. R. Co. v. American Exch. Bank, 92 Va. 495, 23 S. E. Rep. 935.
And in Norfolk & W. R. Co. v. Sutherland, 89 Va. 703, 17 S. E. Rep. 127, the plaintiff’shipped cattle over the defendant railroad company’s line to a point on another line, the bill of lading providing that he should load, unload, and transfer them at his own cost. At a point on defendant’s line the cattle were unloaded and fed and reloaded by defendant, though the plaintiff was present and willing to do so, and, in reloading, some of the plaintiff’s cattle were placed in the cars of another shipper. It was held that the mistake was the company’s, and that the owner of the stock was not guilty of contributory negligence, though the loss occurred on the line of the connecting carrier, since it was the result of its own negligent act, committed before the cattle were delivered to the connecting carrier. See post, under “Carriers of Passengers,” the subject “Negligence.” See also, Roderick v. Railroad Co., 7 W. Va. 754.
C. CONTRACTS OF EXEMPTION AND LIMITATION.—And it seems a railroad company may, by express contract or notice brought home to the employer, relieve itself from its liability as insurer of live animals liable' to get unruly from fright and to injure themselves in that state, when such animals become injured without the fault or negligence of the company or its agents. Va. & Tenn. R. R. Co. v. Sayers, 26 Gratt. 328. See ante, “Liability.”
Thus, a common carrier may, by special agreement, just and reasonable in itself, and fairly made between itself and the consignor of a horse at the time of shipment, fix the value of such horse, upon consideration that the rate of charges for transportation shall be commensurate with the value thus ascertained, and may also limit its liability in case of loss to the amount thus agreed upon, even though the loss may be the result of negligence on the part of the carrier, provided the negligence be not gross, wanton, or willful; but cannot wholly exempt itself from liability for loss resulting from negligence. Zouch v. C. & O. Ry. Co., 36 W. Va. 524, 15 S. E. Rep. 185.
But by the better rule and weight of authority the carrier cannot make a valid contract to exempt itself from liability for loss or damage arising from its own negligence. Va. & T. R. R. Co. v. Sayers, 26 Gratt. 328 ; Richd., etc., R. Co. v. Payne, 86 Va. 481, 10 S. E. Rep. 749 ; Johnson v. Richd., etc.. R. Co., 86 Va. 975, 11 S. E. Rep. 829; N. & W. R. Co. v. Harman, 91 Va. 601, 22 S. E. Rep. 490 ; C. & O. R. R. Co. v. Am. Exch. Bank, 92 Va. 495, 23 S. E. Rep. 935. See also, Zouch v. C. & O. Ry. Co., 36 W. Va. 524, 15 S. E. Rep. 185; Maslin v. B. & O. R. Co., 14 W. Va. 193. For a fuller discussion of this particular point upon which the West Virginia courts disagree, and the general principles governing the subject of common carriers of goods, which in general apply with equal force to the subject in hand, reference is made to “Carriers of Goods,” treated ante.
V. CARRIERS OF PASSENGERS.
A. IN GENERAL.
Who Is a Common Carrier of Passengers.—A common carrier of passengers is one who undertakes for hire to carry all persons indifferently who may apply for passage, so long as there is room, and there is no legal excuse for refusing. Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. Rep. 242. This definition includes electric railway companies. Richd. Ry. & E. Co. v. Bowles, 92 Va. 738, 24 S. E. Rep. 388; Danville Street-Car Co. v. Payne (Va. 1896), 24 S. E. Rep. 904; Fisher v. W. Va. & P. R. Co., 39 W. Va. 366, 19 S. E. Rep. 578, 23 L. R. A. 758. Also, stage coaches. Farish v. Reigle, 11 Gratt, 697. See Maslin v. B. & O. R. Co., 14 W. Va. 180.
See ante, I. “In General,” for more comprehensive definition, authorities, and comparison of characteristics of carriers of passengers, live stock and goods.
Duty to Have Passenger Cars Open at the Termini.— It shall be the duty of every railroad company in this state to have at the termini of its road passenger cars open for admission of passengers, and baggage cars for the reception of baggage, at least thirty minutes before the advertised hour of departure of every passenger train. Va. Code 1877, § 1297, Pol. Supl., §1297 a.
Who Conservator of the Peace on a Train.— The conductor of every train of railroad cars shall have all, the powers of a conservator of the peace while in charge of the train. W. Va. Code 1900, ch. 145, § 31; Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. Rep. 243.
B. RELATION EXISTING BETWEEN PASSENGER AND CARRIER.
1. Who May Become a Passenger.—It is the lawful right of every citizen prima facie to become a passenger of a railway train. N. & W. R. R. Co. v. Galliher, 89 Va. 689, 16 S. E. Rep. 935.
2. Who Is Entitled to the Protection ov a Passenger.—But neither the purchase of a ticket nor any entry into the car is essential to create the relation of carrier and passenger. Thus, where a person enters a ticket office of a railway company to buy a ticket he is entitled to the protection of a passenger, even though the agent refuses to sell him a ticket. N. & W. R. Co. v. Galliher, 89 Va. 639, 16 S. E. Rep. 935.
And although a railroad company requires fare for all children over five years old, the fact that a father purchases no ticket for his child six years old, will not bar recovery for injury causing his death; and whether or not he knew that a ticket was required is immaterial. N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454.
So a person having a ticket for passage upon a railroad, who boards a freight train which does not carry passengers believing the ticket good on that train, is to be treated as a passenger, and is not a trespasser. Boggess v. C. & O. Ry. Co., 37 W. Va. 297, 16 S. E. Rep. 525.
And a mail agent traveling on a passenger train in the discharge of his official duties is a passenger. N. & W.~R. Co. v. Shott, 92 Va. 34, 22 S. E. Rep. 811.
Moreover, where a common carrier transports cattle for hire, and a free pass is given to the shipper so that he can take care of the cattle, the person traveling on the free pass is a passenger, and the carrier cannot by special contract exempt itself from liability for its own negligence or that of its servants. Maslin v. B. & O. R. Co., 14 W. Va. 180.
*3763. When Presumed to Be a Passenger..—And every one riding in a railroad car is presumed prima 'facie to be there lawfully, as a passenger having paid, or being liable when called on to pay, his fare. Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. Rep. 243.
4. Treatment and Protection of Passenger.— It is the duty of a carrier of passengers to treat his passengers properly and respectfully, and to carry them safely; and though not an insurer, yet the law, based upon principles of public policy, is strict and exacting in requiring performance; and public policy is not likely to exact any less stringent rule in this age, when all the world is carried to and fro daily by instrumentalities vast in power and force, owned by mere corporate entities, and which are almost as dangerous as useful, unless there be. constant care and vigilance, and greater skill employed in their management and disposition.
But, as stated, the common carrier of passengers is not an insurer of their safety or of their proper treatment, but is liable for their injury or improper treatment, due to the negligence or willful misconduct of itself or of its servants while engaged in executing the contract. Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. Rep. 243.
However, in order that a passenger ¿may hold a carrier liable to the full measure of its responsibility for safe carriage, he must conform to all the reasonable rules made by the company looking to the safety of its passengers. Downey v. C. & O. Ry. Co., 28 W. Va. 732. This subject is treated more at length, with fuller array of authorities, post, “Injuries to Passengers.”
5. Right to Make Rules and Have Them Obeyed. —A carrier, however, is entitled' to make rules for conducting its affairs, if they be reasonable, not conflicting with'any legal liability, and not exempting from liability for negligence or improper conduct. If the rules be such as described, they are binding on persons dealing with the carrier when notified thereof. The reasonableness of a rule is a question' of law for the courts. N. & W. R. Co. v. Wysor, 82 Va. 250.
It is a reasonable rule that it will only carry as baggage the passenger’s wearing apparel, and upon refusal of a passenger to certify that “his trunk contained nothing except wearing apparel,” the passenger is not entitled to damages for the company’s refusal to carry such trunk. N. & W. R. R. Co. v. Irvine, 84 Va. 553, 5 S. E. Rep. 532. And a passenger in the habit of carrying merchandise in his trunk, against carrier’s rules, may be required to prove contents as condition of receiving and checking it. N. & W. R. Co. v. Irvine, 85 Va. 217, 7 S. E. Rep. 233.
C. BARES AND TICKETS.
1. The Ticket.
As Evidence of a Contract.—Passenger tickets do not generally set out the full contract between the parties, and are for the most part mere memoranda, importing a contract on the part of the carrier to carry the passenger from one given point to another, in the manner in which the holders of such tickets are usually carried. As said in one case, the real contract between the carrier and the passenger is usually made before the ticket is delivered, and where it does not purport to be the complete agreement between the carrier and the passenger, it has been held that suppletory evidence is competent to show what was the real contract indicated by the ticket. In this incomplete form the tickets'are no more than the tokens or checks which the bailor may take from the common carrier as evidence of his receipt of goods for the purpose of being carried, and which would not be held to preclude the- bailor from showing a special contract with the carrier as to the terms upon- which they had been accepted. Notwithstanding this, however, the ticket accepted by the passenger must usually, as will be seen, be treated as conclusive evidence 'of the passenger’s rights, as between the passenger and the conductor, leaving the passenger to his action against the carrier if he has not been given such a ticket as his contract called for. But when the passenger has bought and been given a ticket unlimited upon its face, evidence of rules and regulations of the carrier tending to defeat the apparent right conferred by the ticket is not admissible if the passenger was not informed of them. Neither can he be bound, by accepting it, by limitations or conditions printed upon the back of the ticket, which he did not see or know of, and to which his attention was not called at the time he accepted it. On the other hand, when such tickets profess to set out or contain the terms of a special contract between the carrier and the passenger, as they frequently do, there is no reason why they should not be held as conclusive upon the passenger as a bill of lading or the receipts of the common carrier are upon the bailor of goods. Hutchinson on Carriers, § 580.
Limited to What Passage.—A ticket limited on its face to certain time for passage, is not good after expiration of such. time. Grogan v. C. & O. Ry. Co., 39 W. Va. 415, 19 S. E. Rep. 563.
And as between a person who buys a ticket bearing a date prior to the purchase, and the company, he is entitled to a passage on the date of purchase, the ticket being limited to one day from date of sale. Trice v. C. & O. R. Co., 40 W. Va. 271, 21 S. E. Rep. 1022.
Demand for Ticket or Fare.—A railroad conductor may demand a ticket as evidence of a passenger’s right of passage, and on failure to produce it may demand payment of fare; and on failure to pay it may lawfully eject the passenger from the train using no more force than necessary. MacKay v. O. R. R. Co., 34 W. Va. 65, 11 S. E. Rep. 737. See post, “Ejection”; also, “Actions.”
2. Schedules.
Duty of Carrier to Print and flake Public Schedules of Rates and Fares.—Every common carrier subject to the provisions of § 1297, Va. Code 1887, shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its route between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and fares-and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers of freight respectively are received for transportation in such form that they shall be accessible to the public and can be conveniently inspected. Va. Code 1887, § 1297; Pol. Supl. (1900), § 1297.
*3773. Advancements and Reductions.
Public Notice Required.—No advance shall he made in the rates and fares and charges which have be.en established and published as required by the Code, by any common carrier in compliance with the requirements of § 1297. except after ten days’ public notice, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the increased rates and fares and charges will go into effect; and the proposed changes shall be shown by printing new schedules in force at the time and kept open for public inspection. Reductions in such published rates, fares, or charges shall only be made after three days’ previous public notice, to be given in the same manner that notice of an advance in rates must be given. Va. Code 1887, § 1297, Pol. Supl. (1900), § 1297.
Effect of Demanding or Receiving a Greater or Less Compensation Than Schedule Rate.—And when any common carrier shall have established and published its rates and fares and charges in compliance with the provisions of the Code, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or for any services in connection therewith than is specified in such published schedules of rates and fares and charges as may at the time be in force. Va. Code 1887, § 1297; Pol. Supl. (1900), § 1297.
When a Carrier Hay Reduce or Waive Charges.—But it is provided that nothing in the general act upon carriers shall apply to the carriage, storage, or handling of property free or at reduced rates for the United States, state, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons and the necessary agents employed in such transportation, or to mileage, excursion, or commutation passenger tickets, or to persons in charge of live stock being shipped from the point of shipment to the point of destination and return; nothing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion or to indigent persons, or to inmates of the Confederate homes or state homes for disabled soldiers, and of disabled soldiers and sailors, including those about to enter and those returning home after discharge, or carrying the same free; nothing in this act shall be construed to prevent common carriers from giving free" carriage to their own officers, employees and members of their families, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers, employees and members of their families; and nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies; provided, that no pending litigation shall in any way be affected by the act. Va. Code 1887, § 1297; Pol, Supl. § 1297 a.
4. Opening of Ticket Office.—And it is the duty of every railroad company in this state to have its ticket offices opened and its agents for the sale of tickets in attendance at least thirty minutes before the advertised hour of departure of every passenger train. Va. Code 1887, § 1297; Pol. Supl. (1900), § 1297.
5. Rights in Connection with Ticket.
a. Of Passenger.
Erroneous Statement by Carrier as to Connection.— Where a person purchased a ticket ou the statement of the ticket agent that the train she was about to take made close connection at a certain point with another train going to her place of destination, which statement was erroneous, and such person, on arriving at such connecting point, was obliged to wait some time for such connecting train, and thereupon, in the face of a storm, and in her delicate state of health, procured a buggy, and drove over a rough road to her father’s house, she could not recover for the injuries resulting from such drive. Fowlkes v. Southern Ry. Co., 96 Va. 742, 32 S. E. Rep. 464.
Passenger Directed into Wrong Car.—But where a passenger who has procured a ticket for himself and family is, by a negligent mistake of one of the employees of the railroad, directed into a car which is cut off and left standing when the train leaves,— one of his children with him being sick at the time, carrying off his baggage, including the child’s clothing and medicine, part whereof was lost, the father is entitled to compensatory but not to punitive damages. N. & W. R. Co. Lipscomb, 90 Va. 137, 17 S. E. Rep. 809.
Wrong Date Stamped upon Ticket.—And where a ticket agent selling a mileage ticket good for one year only, stamps upon it as the date of issue a date one year before the date of issue, the passenger can ride upon such book, and if refused, and rejected for nonpayment of fare, he can recover damages. Trice v. C. & O. R. Co., 40 W. Va. 271, 21 S. E. Rep. 1022.
Ticket Sold to Station at Which There Is No Regular Stop.—Moreover, when a railroad company has sold a passenger a ticket to a particular station it has no right to refuse to stop its train there, and is liable for such refusal. And a ticket irom one designated station to another is good for any intermediate station at which, by the regulations of the company, the train regularly stops. R., F. & P. R. R. Co. v. Ashby, 79 Va. 130.
Ticket Wrongfully Taken Up.—Furthermore, where a passenger’s ticket is wrongfully taken up by one conductor, and another conductor in charge of the train demands his ticket and ejects him. plaintiff can recover whatever damages he shows himself entitled to recover, either on the contract, or ex delicto. Lovings v. N. & W. Ry. Co. (W. Va. 1900), 35 S. E. Rep. 962.
Detaching Coupons Wrongfully.—In N. & W. R. Co. v. Wysor, 82 Va. 250, a plaintiff purchased from the defendant a commutation coupon book, which had attached to it a condition that coupons should be detached by the conductor in collecting fares: and should not be accepted if detached from the book. The condition was known to and accepted by the passenger, but he insisted on tearing out the coupon himself, against the remonstrance of the conductor that such coupons would not be accepted. The conductor refused to accept them, and, on the passenger’s refusal to allow the conductor to tear out other coupons, the conductor put him off the train. In an action for ejectment the jury awarded plaintiff $550 damages. The court held that the verdict was for punitive damages, and should have been set aside, there being no evidence of any wilful and malicious purpose on the part of the defendant, or any neglect of duty.
Performance of Requirements Concerning Signing and Identification.—But if a railroad ticket provides that when presented to the conductor the passenger shall sign his name thereto and “otherwiseidentify” himself as original purchaser, the conductor is not entitled, after the passenger has offered to sign the *378ticket, to refuse such offer and require the passenger to “identify” himself, and to eject him from the train for refusing to do so, and the carrier, upon ratifying the acts of the conductor is liable to the passenger in exemplary damages. N. & W. R. Co. v. Anderson, 90 Va. 1, 17 S. E. Rep. 757, 44 Am. St. Rep. 884.
b. Of Carrier.—Where a passenger, either wilfully or because he has forgotten having a ticket, does not show it, and refuses to pay fare, he cannot recover if ejected. Price v. C. & O. R. Co., 46 W. Va. 538, 33 S. E. Rep. 255. See N. & W. Ry. Co. v. Wysor, 82 Va. 250 ; N. & W. R. Co. v. Anderson, 90 Va. 1, 17 S. E. Rep, 757, 44 Am. St. Rep. 884.
And a pass issued on a false representation that the person to whom it was issued was connected with a newspaper can be cancelled. Moore v. O. R. R. Co., 41 W. Va. 160, 23 S. E. Rep. 539.
Moreover, a passenger presenting an invalid ticket after having been notified that it was invalid can be ejected. Moore v. O. R. R. Co., 41 W. Va. 160, 23 S. E. Rep. 539.
6. Annual passes.
Application for Renewal Necessary.—In Knopf v. R. F. & P. R. R. Co., 85 Va. 769, 8 S. E. Rep. 787, a railway company by contract issued to plaintiff an annual pass. On its expiration plaintiff applied for and secured a renewal. On its expiration he did not apply for another. It was held to be a question for the jury whether it was the duty of the company to issue a renewal without application.
7. Commutation Books.—The rule that coupons of commutation tickets, if detached, will not be accepted for’a passage, is reasonable. Thus where a commutation coupon book provides that the coupons must be detached by the conductor, and will not be accepted if otherwise detached, a passenger who, with knowledge of such condition detaches the coupons is not entitled to ride thereon. N. & W. R. Co. v. Wysor, 82 Va. 250.
8. Overcharges.—A railroad company-is not liable for the penalties of overcharging, under W. Va. Code 1891, ch. 54, cl. 5, where the charge was made by a conductor, unless it authorized or ratified the conductor’s'act. Hall v. N. & W. Ry. Co., 44 W. Va. 36, 28 S. E. Rep. 754.
9. Contract to Furnish Ticket.—In Knopf v. Rich., F. & P. R. Co., 85 Va. 769, 8 S. E. Rep. 787, a railway company contracted with a firm, “in consideration for a ticket entitling either member of the firm, but only one on any train, to a seat on its passenger trains.” The firm was entitled to only one ticket, to, be presented when any one member took passage.
D. INJURIES TO PASSENGERS.
l. In General.
a. Statement of Duty as to Care and Safety.—In Searle v. K. & O. Ry. Co., 32 W. Va. 370, 9 S. E. Rep. 251, the court gave among others the following instructions which were held entirely proper: “The law, in tenderness to human life and limbs, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence. When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence or default, in such cases makes such carriers liable in damages under the statute. Said railroad company is held by the law to the utmost care, not only in the management of its trains and cars, but als'o in the structure, repair, and care of the track and bridges, and all other arrangements necessary to the safety of passengers.” B. & O. Ry. Co. v. Wightman, 29 Gratt. 431. Or as stated in Va. Cent. R. Co. v. Sanger, 15 Gratt. 230, the carrier is bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all subsidiary arrangements necessary to the safety of the passenger. Connell v. C. & O. Ry. Co., 93 Va. 44, 24 S. E. Rep. 467. This duty to protect and carry safely is variously expressed as “utmost care,” “utmost care and diligence,” “utmost care and human foresight," or “greatest possible care and diligence.” Fisher v. W. Va., etc., R. Co., 39 W. Va. 366, 19 S. E. Rep. 578; B. & O. R. Co. v. Noell, 32 Gratt. 394; Richd. City Ry. Co. v. Scott, 86 Va. 902, 11 S. E. Rep. 404. All the authorities seem to have in view one purpose, to throw around the passenger every guard which reason and prudence would suggest as likely to shield him from accident or loss; and in exacting such protection for the person standing in the relation of passenger, the carrier is held liable for the slightest degree of negligence on its own part, or its servants or employees. However, the duty does not extend so far as to make the carrier a practical insurer of a passenger, as it is of goods or property. N. & W. R. Co. v. Williams, 89 Va. 165, 15 S. E. Rep. 522.
Its duty is to carry them safely, using the utmost care as far as human skill, diligence and foresight can reasonably be required to go. Fisher v. W. Va. & P. R. Co., 39 W. Va. 366, 19 S. E. Rep 578; Connell v. C. & O. Ry. Co., 93 Va. 44, 24 S. E. Rep. 467.
6. Source of Liability for Injuries Occurring to Passengers.—The liability of common carriers of passengers does not flow directly from the injuries sustained, but from their duty to convey their passengers in comfort and safety. They are responsible for injuries if it appear that they knew, or ought to have known that danger existed, or was reasonably to be apprehended, and did not use proper means to avert it. But a sleeping-car company is not liable for the death of-one of its passengers, at the hands of an assassin, in the nighttime, who enters its car by stealth, while traveling through a peaceable, law-abiding country. This is not a natural or probable danger, nor one to be anticipated, against which the company is expected to guard and protect its passengers. Connell v. C., etc., R. Co., 93 Va. 44, 24 S. E. Rep. 467.
c. Duty to Passenger and Mnployee Distinguished.— The difference between the degree of care which railroad companies owe to a passenger and to an employee is vast. As to the former, they are held liable for the slightest negligence; as to the latter, they are bound to use only ordinary care. N. & W. R. Co. v. Williams, 89 Va. 165, 15 S. E. Rep. 522.
d. Illustrative Cases Involving the Nonperformance of Duty to Protect from Injury.
(a) Taking on Passengers.—In N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454, a freight train, with caboose for passengers, stopped at a certain station, and the conductor, though he saw several approaching with baggage, ordered the engineer to back the train. Without warning the train violently backed while the passengers were boarding it, fatally injuring a boy between five and six years old, standing on the end of the ties, and about to get on. It was held that the railroad company was liable.
*379(6) In Transitu.
In Connection with the Conveyance—Class of Conveyance to Be Provided.—Carriers of passengers are bound to provide such conveyances as will best secure the safety of passengers. Farish v. Reigle, 11 Gratt. 697 ; B. & O. R. Co. v. Wightman, 29 Gratt. 431, 26 Am. Rep. 384 ; B. & O. R. Co. v. Noell, 32 Gratt. 394.
What Constitutes Negligence in Running.—The mere speed of motion of the train, or the fact that the train is “behind time,” is not, per se, evidence of negligence. N. & W. R. Co. v. Ferguson, 79 Va. 241.
And in an action for injuries to a passenger thrown from the train by a lurch caused by striking a curve, an instruction that defendant is liable if the train was run over the curve “at an unusually rapid rate of speed” is erroneous, since “unusually rapid” is not equivalent to “dangerous.” C. & O. Ry. Co. v. Clowes, 93 Va. 189, 24 S. E. Rep. 833.
Conveyance Upsetting.—3 Í a coach is upset in consequence of having too much baggage on the top, the proprietors are liable for any injury sustained by a passenger by such upsetting of the coach. And the prima facie presumption is, that it occurred by the negligence of the driver; and the burden of proof is on the proprietors of the coach, to show that there was no negligence whatsoever. Farish v. Reigle. 11 Gratt. 697, 62 Am. Dec. 666.
Condition of Premises.
Track—Obstructions. —The duty of a railroad company to employ the utmost care and diligence in guarding obstructions on the track is clearly embraced within its warranty to carry their passengers safely, so far as human care and foresight can go. Because railroad companies conveying passengers, combining in themselves ownership as well of the road as of the cars and locomotives, are bound to the utmost care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangement necessary to the safety of the passengers. Va. Cent. R. R. Co. v. Sanger. 15 Gratt. 230 ; Carrico v. W. Va. Cent., etc.. Ry. Co., 39 W. Va. 86, 19 S. E. Rep. 570.
Moreover, if a railroad company, whilst using its track for the carriage of passengers, engages in a work to be done on its road and in the immediate proximity of its track, negligence in the performance of which would, in the estimation and opinion of cautions persons, involve the hazard of obstruction to the passage of its cars, and accident to a passenger is caused by an obstruction arising from negligence in the performance of the work, it is no defence to show merely that they had placed the work in the hands of an independent contractor, and that the obstruction was caused by the carelessness of one of his employees.
Thus, contractors employed by a railroad company to deliver stone on the road and prepare it for ballasting the track (the ballasting not being necessary to the security, but being intended for the preservation of the track), place the stone in ridges so near the rail that it is struck by the step of the baggage car, or the ridge is disturbed and a stone rolled down by the hub of one of the cars, or is rolled down by the j arring of the train as it passes near the ridge, or it is loosened from its place and rolled down by the haste of one of the hands employed by the contractors in getting off the ridge to avoid the train, and the cars run against it, and are thrown oif the track, whereby a passenger is in j ured; it is for the jury to enquire whether there was not danger in the work, arising from the mode and manner in which it was done; whether the company did not know, or by the exercise of the proper diligence might not have ascertained, the existence of such danger; and whether they had used due care and foresight in guarding against it; and if they have fathed in this, the company is responsible to the passenger for the injury he has sustained. Va. Cent. R. R. Co. v. Sanger. 15 Gratt. 230. Compare N. & W.R. Co. v. Stevens, 97 Va. 631, 34 S. E. Rep. 525.
Lights at Stopping Place.—And where there is evidence before the jury that there were no lights at a stopping place, it is proper for the court to charge that if the accident was caused by the defendant company’s failure to light the place, it is liable for damages. Alexandria & F. R. R. Co. v. Herndon, 87 Va. 193, 12 S. E. Rep. 289. As to placing “safe guards.” see Richd. City Ry. Co. v. Scott, 86 Va. 902, 11 S. E. Rep. 404.
(c) Setting Down Passenger.—In Alexandria & F. R. Co. v. Herndon, 87 Va. 193, 12 S. E. Rep. 289, an accident occurred at night during a snow storm while it was intensely dark, and the platforms of the cars were covered with snow. The plaintiff, a woman, was unattended, and was incumbered by heavy clothing and parcels. There was no platform at the station, and defendant's servants, though present, rendered plaintiff no assistance. It was not error under these circumstances for the court to charge that, if there was no platform or other proper landing place at the stopping place, aiid defendant’s servants rendered plaintiff no assistance in alighting, and, for want of such landing place and assistance, plaintiff was injured without fault on her part, she could recover.
And when a street-railway company stops its car in front of an excavation made by the city, to allow passengers to alight, and neither warns them of the danger nor assists them to alight, it is liable for injuries sustained by a passenger who steps off the car into the excavation.
Thus, in an action against a street-railway company for personal injuries sustained by plaintiff in stepping off defendant’s car, on which he was a passenger, and falling into a ditch made by the city, and along which the car was stopped for plaintiff to alight, a demurrer to the declaration, on the ground that It does not show the condition of the place was such by.reason of the absence of proper safeguards, is properly overruled, since the cause of action arises out of the duty of every carrier of passengers not to expose its passengers to any danger in alighting, and not from such failure to provide safeguards. Richmond City Ry. Co. v. Scott, 86 Va. 902, 11 S. E. Rep. 404.
e. To Whom Liable, and When.
Trespasser.—In Va. M. Ry. Co. v. Roach, 83 Va. 375, 5 S. E. Rep. 175, a former lireman of the railroad accepted an invitation of one of its engineers to ride on the engine with him. The conductor saw him on the engine, and spoke to him there. He neither paid any fare nor had any dem anded of him. The rules of the company, which every employee was required to learn, prohibited any one but the engineer and certain employees from riding on the engine. Such former fireman was charged with notice of such rules, and could not derive any authority from the engineer or conductor for his act, and was therefore a mere trespasser, and could not recover for injuries sustained.
Carrier as Conservator of the Peace.—Section 31, ch. 145 of the Code, which enacts among other things, *380that “the conductor of every train of railroad cars shall have all the powers óf a conservator of the. peace while in charge of the train,” does not relieve the carrier of passengers from such liability. Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. Rep. 243.
Liability for False Imprisonment.—A common carrier of passengers is liable for the false imprisonment of a passenger, made or caused to be made by its conductor in charge of the train, during his execution of the carrier’s contract to treat properly and convey safely. Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. Rep. 243.
And the mayor of a city is not authorized by law to appoint a special policeman for a railroad company. Thus, a night watchman, in the employ and pay of the company was sworn in by the mayor, at the company’s request. He arrested and imprisoned the plaintiff, though possessed of no authority to make arrests as an officer. In so doing, however, he acted within the scope of his employment, and the arrest of the plaintiff was authorized and ratified by the company. The plaintiff in an action against the company for false imprisonment is entitled to recover. N. & W. R. Co. v. Galliher, 89 Va. 639, 16 S. E. Rep. 935.
Assault by Conductor.—And a railroad company is liable to a passenger on one of its trains for willful assault and battery committed on such passenger by the conductor in charge of such train. Such an assault is a breach of the duty of protection which such company owes to its passengers. Smith v. N. & W. Ry. Co. (W. Va. 1900), 35 S. E. Rep. 834. See in connection with this general subj ect, ante, “Liability”;post, “Ejectment”; also, “Actions.”
E. NEGLIGENCE.
1. In General.
Defined.—Negligence is the doing of something, which, under the circumstances, a reasonable person would not do, or the omission to do something in discharge of a legal duty, which, under the circumstances, a reasonable person would do, and which act of commission or omission, as a natural consequence directly following, produces damages to another. Washington v. B. & O. R. R. Co., 17 W. Va. 190.
Embraces a Question of Law and Fact.—The question whether a party has been negligent in a particular case, is one of mingled law and' fact. It includes two questions, whether a particular act has been performed or omitted; this is a pure question of fact. Whether the performance or omission of this act was a legal duty; this is a pure question of law. The extent of a person’s duties is to be determined by a consideration of the circumstances in which he is placed. The law imposes duties upon men according to the circumstances in which they are called to act. When the facts are disputed, the question of negligence is a mixed question of law and fact. The jury must ascertain the facts, and the judge must instruct them as to the rule of law which they are to apply to the facts as they may find them. When, however, the direct fact in issue is ascertained by undisputed evidence, and such fact is decisive of the case, a question of law is raised, and the court should decide it. The j ury has no duty to perform. The issue of negligence comes within this rule. Questions of care and negligence after the facts are proved must be decided by the court. A judge is not bound to submit to the jury the question of negligence, although there may be a conflict of evidence in relation to some of the facts relied on as proving it, if, rejecting the conflicting evidence, the negligence charged is conclusively proved by the defendant’s own witnesses. Dun v. Seaboard, etc., R. Co., 78 Va. 658.
Onus Probandi.—The onus probandi is upon the plaintiff. At least a reasonable presumption of negligence must be raised by the plaintiff. But when a passenger is injured, or damage befalls a passenger, due to the breaking down or overturning of a train, or the falling through of a bridge, the breaking of some part of the vehicle or apparatus, as a wheel or axle, or by any other accident occurring on the road, there is ajprima facie presumption that it occurred by the negligence of the carrier, and the onus is shifted to the carrier to rebut the presumption thus created. Moreover, it rests upon the defendant to show contributory negligence on the plaintiff’s part, where the defendant desires to defend on the ground that the contributory negligence of the plaintiff was the proximate cause of the injury. C. & O. R. Co. v. Lee, 84 Va. 642, 5 S. E. Rep. 579; Madden v. Ry. Co., 28 W. Va. 610; B. & O. R. R. Co. v. Noell, 32 Gratt. 394; Johnson v. R. R. Co., 25 W. Va. 571; Sheff v. City of Huntington, 16 W. Va. 307; B. & O. R. R. Co. v. McKenzie, 81 Va. 71; Farley v. R. R. Co., 81 Va. 783; Barton’s Law Prac. p. 204. See post, “Actions”; also, ante, “Liability.”
Negligence Per Se.—In cases where the common experience of mankind, and a common consensus of prudent persons have recognized that to do or not to do certain acts is prolific of danger, the doing or omission of them is “negligence perse” or “legal negligence.” The omission of the duty enjoined by law for the protection and safety of the public by a common carrier, or the doing of an act by such a carrier, which, by the experience and consensus of prudent persons, would create danger to passengers, is legal negligence. Carrico v. W. Va. Central, etc., Ry. Co., 35 W. Va. 389, 14 S. E. Rep. 12.
Thus, it is legal negligence for a passenger to ride in a fast going passenger coach, with his arm protruding from the window, and beyond the line of the body of the car. Carrico v. W. Va. Cent. & P. Ry. Co., 35 W. Va. 389, 14 S. E. Rep. 12; Dun v. Seaboard, etc., R. Co., 78 Va. 645.
But the train’s mere speed of motion is not, per se, evidence of negligence, nor is the fact that the train is behind time. N. & W. R. R. v. Ferguson, 79 Va. 241.
Specific Application of Principles.
Washout Due to Waterspout—Vis Major.—In an action against a railroad company for the death of a passenger, it appeared that the accident occurred on a dark and rainy night, the rain falling in torrents, flooding the track, which lay alongside a mountain; that the train was stopped at times at exposed places, but met no obstruction until it reached the place of accident, by which time the rain had ceased. This place was an earth fill, provided with a stone culvert 35 years old, and no accident had ever happened there. In consequence of a waterspout, the culvert did not carry off the water, and a great pond was formed against the earth embankment, causing it to give away, but leaving the rails and ties unbroken; the train went down into this washout, killing plaintiff’s intestate. Held, that defendant was not liable. Norfolk & W. R. Co. v. Marshall, 90 Va. 836, 20 S. E. Rep. 823. See ante, “Act of God.” See also, post, subject “Duties.”
Liability Cannot Be Shifted.—And a carrier of passengers cannot relieve itself from liability in regard to the condition and construction of its road by undertaking to confide its duties, which it owes to *381passengers, to other hands, no matter what precaution it may take in selecting such agencies; as where it confides to a contractor the repairs on its road and the contractor places constructions too close to the track. Carrico v. W. Va. Central, etc., Co., 35 W. Va. 389. 14 S. E. Rep. 12.
So, if by reason of work done by a company in the neighborhood of their track, a stone rolls onto the track and obstructs it. that work being such that any negligence in its performance would be likely to cause such an obstruction, they are liable to a passenger for an accident caused by the obstruction, although they employed a skillful contractor to perform the work. Va. Cent. R. Co. v. Sanger, 15 Gratt. 230.
Passenger Injured by a Collision—Instruction.—And in Shen. Val. R. Co. v. Moose, 83 Va. 827, 3 S. E. Rep. 796, a passenger, who was suffering with rheumatism was thrown from his seat by a collision of trains and his thigh bone broken. An instruction to the jury that, though they believed the plaintiff was injured as complained of, yet, if they believed that he was in such an infirm state as would have prevented a prudent man from taking the risk of travel, and but for that state he would not have received the injury, he cannot recover, is properly refused, because inconsistent with both the evidence and the law.
Carrier’s Duty to Invite Intoxicated Passenger to Go Inside.—And where a passenger rides on the platform of a car in such a state of intoxication as to be careless and heedless of the danger to which he is exposed, it is the duty of the railroad company, after the conductor has notice of his condition and exposure to danger, louse the ordinary precautions for his safety, such as calling his attention to the danger, and the rules of the company forbidding such exposure, and inviting him to go inside the car. Fisher v. W. Va. & P. R. Co., 39 W. Va. 366, 19 S. E. Rep. 578, 23 L. R. A. 758.
Servant’s Skill and Knowledge.—And servants of an electric street-railway company are bound to know the difficulty of controlling a car when there is snow on the rails; and where, at such a time, they approach a heavy down grade at such unusual speed as to cause their car to slide down the track, though the brakes are properly set, the company is liable for injuries to a passenger. Danville St. Car Co. v. Payne (Va. 1896), 24 S. E. Rep. 904.
Coach Upset—-Morses Not Controlled—Liability.— Moreover, though the proprietors of the coach may show that it was reasonably strong, with suitable harness, trappings and equipments of sufficient strength, and properly made, and that the driver was careful, of reasonable skill and good habits, with steady horses not likely to endanger the safety of passengers; yet, if the upsetting of the coach is caused by the running off of the horses, and such running off of the horses might have been arrested if the utmost care and diligence of very cautious persons had been exercised, the proprietors of the coach are liable for the injuries sustained by a passenger. Farish v. Reigle. 11 Gratt. 697.
2. Contributory Negligence.
a. In General
What It Consists in and Effect,—It is a general if not universal rule, that, if the plaintiff has been guilty of contributory negligence, he cannot recover. By contributory negligence is meant such negligence on the part of the plaintiff as contributes to the injury, that is, directly in part causes it. Washington v. B. & O. Ry. Co., 17 W. Va. 190; Dun v. Railroad Co., 78 Va. 658; B. & O. R. R. Co. v. McKenzie, 81 Va. 71. See Nash v. Railroad Co., 82 Va. 55.
Or, as stated in Richd. & Danvl. R. Co. v. Pickleseimer, 85 Va. 798. 10 S. E. Rep. 44, it consists in such acts or omissions of plaintiff, as amount to want of ordinary care, as, co-operating with negligent acts of defendant, are the proximate cause of the injury.
But it is not contributory negligence for a plaintiff to be guilty of a negligent act, which might have produced the injury, if, before it actually results, the defendant is guilty of some negligent act, which was the immediate canse of the injury, even though no damage could have resulted to the plaintiff, had he not been originally negligent. Washington v. B. & O. R. Co., 17 W. Va. 190.
Therefore if the direct cause is defendant’s omission, after knowing plaintiff’s negligence, to use proper care to prevent its consequences, a recovery may be had. Farley v. Railroad Co., 81 Va. 783; Railroad Co. v. Barksdale, 82 Va. 330; Va. Mid. R. Co. v. White, 84 Va. 498, 5 S. E. Rep. 573; Railroad Co. v. Burge, 84 Va. 63, 4 S. E. Rep. 21; Coyle v. B. & O. R. Co., 11 W. Va. 94; Rudd v. R. & D. Ry. Co., 80 Va. 546; Downey v. C. & O. Ry. Co., 28 W. Va. 732; Johnson v. R. R. Co., 25 W. Va. 571.
Theory of Contributory Negligence as a Defence.— The principle of right that limits responsibility for negligence to the reasonable results that follow therefrom underlies the rule that there is no liability when contributory negligence is shown. For if it appears that an injury has been occasioned by the negligence of the person who is charging a breach of the duty to exercise care upon another, then this person is himself answerable for the damage and he cannot recover compensation from any one else. The damage is the reasonable result of the contributory negligence and not of the original wrongdoing. And it is important to observe that in all cases it is necessary that this must be true, and that the contributory negligence must be the proximate cause of the injury, or it will be no defence. The damage must be justly attributable to it to allow the original wrongdoer to escape from the final effect of his act. As is said by an eminent authority, the person who is injured by the negligence of another “is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or could not have happened; but only if he has been negligent in the final stage and at the. decisive point of the event, so that the mischief, as and when it happens, is proximately due, to his own want of care and not to the defendants. M Pollock on Torts, p. 375; Shearman and Red-field on Neg., § 94; Wharton on Neg.. § 300; Jones on Neg. of Mun. Corp. § 206.
See, on general subj ect of contributory negligence, N. & P. R. R. Co. v. Ormsby, 27 Gratt. 455; N. & W. R. R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454; Trumbo v. Street-Car Co., 89 Va. 780, 17 S. E. Rep. 124; R. & D. R. R. Co. v. Pickleseimer, 85 Va. 798, 10 S. E. Rep. 44; Richd. & Danvl. R. R. Co. v. Scott, 88 Va. 958, 14 S. E. Rep. 763; N. & W. R. R. Co. v. Ferguson, 79 Va. 241; Reed v. Axtell, 84 Va. 231, 4 S. E. Rep. 587; N. Y., etc., R. Co. v. Cooper, 85 Va. 939, 9 S. E. Rep. 321; Jammison v. C. & O. R. Co., 92 Va. 327, 23 S. E. Rep. 758.
b. Cases Illustrative of Principles.
(a) Entering Conveyance.—in an action for personal injuries, it appeared that plaintiff was traveling as a stock shipper on defendant’s freight train; that at the end of a run, on a rainy night, the train *382stopped just before crossing a bridge, where it is customary to detach the caboose in which plaintiff had been riding; that he could walk across or ride on the rear freight car; that the stop was long enough to enable him to make a change; but he remained in the caboose till it was uncoupled, and the train had started, when he went forward, with a large valise in his hand, and in attempting to climb on car while in motion fell through the bridge. Held, his own negligence was the cause of his misfortune. R. & D. R. Co. v. Picklesimer, 89 Va. 389, 16 S. E. Rep. 245; R. & D. R. Co. v. Pickleseimer, 85 Va. 798, 10 S. E. Rep. 44.
(6) In Transitu.
Riding on Platform.—It is the duty of a passenger unnecessarily riding on the platform of a car in motion to go into the car when requested by the conductor or other person having charge of the train, when there is standing room inside, and by reason of such refusal, and by going down on the steps of the car without the knowledge of the conductor or other person having charge of the train, he loses his balance and falls overboard, and is injured, he is guilty of contributory negligence such as will preclude his recovery for such inj ury. Fisher v. W. Va. & P. Ry. Co., 42 W. Va. 183, 24 S. E. Rep. 570.
Passing from One Car to Another.—But it is not negligence ps»'se for a passenger on a rapidly moving train to attempt to pass out of one car into another, in search of a seat. C. & O. R. Co. v. Clowes, 93 Va. 189, 24 S. E. Rep. 833.
Riding on Pilot of Engine. — However, where a railroad company is in the habit of carrying its shopmen to and from their work as a matter of accommodation and without any agreement or compensation therefor, if its train is so crowded, that one of said shopmen-cannot get a seat in the cars, that fact will not justify him in sitting on the pilot of the engine; and if he does improperly do so, it is his duty to leave the pilot and go into the cars at his first opportunity. Downey v. C. & O. Ry. Co., 28 W. Va. 732.
Riding in Conductor’s Chair in Caboose of Freight Train.—In Norfolk & W. R. R. Co. v. Ferguson, 79 Va. 241, a passenger in a freight car who had been drinking, and who, instead of taking a perfectly safe .seat designed for passengers, along the sides of the car, sat in the conductor’s loose chair tipped up against a box within three inches of the open side door, was thrown out by the jar of the cars running together, because of the train running at 35 miles an hour around sharp curves. It was held that he was guilty of contributory negligence.
Resting Arm on Window Sill—Not Protruding.—Yet to rest the arm upon the window sill of a car, provided it does not protrude, is not negligence per se. Carrico v. W. Va. Cent., etc., Co., 35 W. Va. 389, 14 S. E. Rep. 12.
Same—Arm Protruding beyond Line of Body of the Car.—Nevertheless, the slightest voluntary projection of the limbs of the passenger from the window of a moving car constitutes contributory negligence, preventing a recovery on his part in case of injury, without regard to the question of negligence in the carrier in failing to take precautions against such accidents. Richd. & D. R. Co. v. Scott, 88 Va. 958, 14 S. E. Rep. 763, 16 L. R. A. 91; Carrico v. W. Va. Cent., etc., Co., 35 W. Va. 389, 14 S. E. Rep. 12.
Thus, in Dun v. Ry. Co., 78 Va. 645, 49 Am. Rep. 388, it is held that, riding with the arm outside the window of a railway car is fatal contributory negligence, unless it appears that the defendant knew the danger and omitted to warn the passenger.
Jumping from Moving Car to Escape Impending Danger.—Yet, where a passenger, acting with reasonable care, jumps from a moving car in order to escape an. impending danger, and is injured thereby, he is not guilty of such contributory negligence as will bar a recovery, even though such injury would not have occurred if hehad remained upon the car. Dimmey v. W. & E. G. R. R. Co., 27 W. Va. 32.
Going upon Platform When Train Stops.—And where a passenger, who has been informed that the train, will stop at the station for 10 or 15 minutes, goes upon the platform of the coach to greet a friend while the trainstops.it is not negligence. So. Ry. Co. v. Smith, 95 Va. 187, 28 S. E. Rep. 173.
(c) Leaving Conveyance,
Stepping Off Station Platform in Dark.—But in Reed v. Axtell & Myers, 84 Va. 231, 4 S. E. Rep. 587, a passenger, while staying over at a station on the company’s road at night, went upon the platform, and walked to the end where she fell off and was injured. The night was dark, and the platform lamp had been temporarily moved to be trimmed. The court held that the plaintiff was guilty of recklessness, and could not recover.
Passenger by Mistake Jumps Off End of Caboose.— Similarly, a passenger in a caboose of a freight train, was awakened by the conductor, and informed that he had reached his destination ; and after the train had passed it a little, and stopped at the frog, the passenger was again awakened by' the conductor, and could then have gotten off safely. The conductor soon returned, and woke him a third time, telling him to get off and then went out at the end of the caboose, and, the night being very dark stood on the station platform with the lantern in his hands within three feet of the car platform. There was no chain across the end of the platform in rear of the caboose, and it was not necessary to have any. The train commenced backing. The passenger walked to the end of the car, jumped off, and was severely injured by the cars passing over him. The court held that, although the company was culpably negligent for having insufficient station lights, and for not warning the passenger to Wait until the train was still, yet the passenger’s contributory negligence precluded him from recovering for the injury. Richmond & D. R. Co. v. Morris, 31 Gratt. 200.
Thrown from Platform by the Jerking of the Cars.— And in N. & W. R. R. Co. v. Prinnell (Va. 1887), 3 S. E. Rep. 95, when a station had been announced, the train stopped at the accustomed place, and a passenger, who was descending the steps in the act of alighting, was thrown down, either by a sudden jerking of the car or its unexpected motion. The court held, that the plaintiff was not guilty of negligence, as he was on the platform in response to the defendant’s invitation to alight; and the defendant, having violated its duty by moving the train when the plaintiff had the legal right to assume that it would remain stationary, was guilty of negligence for which an action wonld lie.
3. Imputed Negligence.—And where by a railroad company’s negligence a child of tender age and non sui juris is injured, the contributory negligence of its parents is not to be imputed to the child; and whether the action for damages is brought by the child itself or by its personal representative, the company is liable. N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454.
*3834. Concurrent Negligence.—Moreover, where by the concurrent negligence of a carrier and third person, a passengeT is injured, the negligence of the former cannot be attributed to the passenger so as to prevent him from recovering damages of the third person. N. Y., P. & N. R. R. Co. v. Cooper, 85 Va. 939, 9 S. E. Rep. 321. And where the negligence or carelessness of a passenger concurs with that of the carrier, causing injury to the passenger, the carrier is not liable by default. Downey v. C. & O. R. Co., 28 W. Va. 732.
5. Proximate Cause.—The cause of an injury in the contemplation of law is that which immediately produces it as its natural consequence; and therefore if a party be guilty of an act of negligence, which would naturally produce an inj ury to another, but, before such injury actually results, a third person does some act, which is the immediate cause of the injury, such third person is aloné responsible therefor, and the original party is in no degree responsible therefor, though the injury could never have occurred but for his negligence. The causal connection between the first act of negligence and the injury is broken by the intervention of the act of a responsible party, which act is in law regarded as the sole cause of the injury according to the maxim “Injure non remota causa sed próxima spectatur.” Washington v. B. & O. Ry. Co., 17 W. Va. 190.
And'it is important to observe that in all cases it is necessary that the contributory negligence of the plaintiff must be the proximate cause of the injury, or it will be no defence. Pollock on Torts, p. 375; Wharton on Neg. § 300.
Negligence, however, is the proximate cause of an injury when the injury is the natural and probable consequence of the negligence complained of, and the result is such as ought to have been foreseen under the circumstances in the particular case. Connell v. Chesapeake, etc., Ry. Co., 93 Va. 44, 24 S. E. Rep. 467.
Illustrating the application of these principles, it is held that, , a person cannot voluntarily incapacitate himself from liability to exercise ordinary care for his own self-protection and then set up such liability as an excuse for his failure to use care, and if the intoxication contributed to the injury, as a proximate cause thereof, it is a complete bar to any action for any damages sustained in consequence of it. Fisher v. W. Va. & P. R. Co., 39 W. Va. 366, 19 S. E. Rep. 578, 23 L. R. A. 758.
But in order to debar a plaintiff from recovery of damages for an injury from negligénce it must be shown that his negligence must be the proximate cause of the injury. When both parties are chargeable with negligence, the plaintiff cannot recover if his negligence contributed in any degree to his injury; but, if it did not contribute to it in any degree, he may recover, his negligence not then being contributory, because not the proximate cause of the injury, but only remote from it, or collateral to it; and the defendant’s negligence is in such case the proximate cause of the injury. Carrico v. W. Va. Cent. & P. Ry. Co., 39 W. Va. 86, 19 S. E. Rep. 571.
And though the negligence of the plaintiff be in its character contributory, yet, if his injury would have occurred from the defendant’s negligence just the same if the plaintiff had been in no wise negligent, the plaintiff is not prevented by his negligence from recovery. Carrico v. W. Va. Cent. & P. Ry. Co., 39 W. Va. 86, 19 S. E. Rep. 571.
Moreover, even if a plaintiff be chargeable with negligence contributing to the injury, yet, if the defendant knows of the danger to the plaintiff arising from his negligence, and can by ordinary care avoid the injury, but does not, he is liable for his negligence, notwithstanding the plaintiff’s negligence. Carrico v. W. Va. Cent. & P. Ry. Co., 39 W. Va. 86, 19 S. E. Rep. 571 ; Downey v. C. & O. Ry. Co., 28 W. Va. 732.
F. EJECTION.
Conductor’s Right to Demand Ticket or Fare—Conse» quence of Refusal.—A railroad conductor may demand a ticket as evidence of a passenger’s right of passage, and on failure to produce it may demand payment of fare ; and on failure to pay it may lawfully eject the passenger from the train using no more force th an necessary. MacKay v. O. R. R. Co., 34 W. Va. 65, 11 S. E. Rep. 737. See in connection with “Ejection” ante, “Fares and Tickets”; also, post “Actions.”
Ejection for Not “Otherwise Identifying” Than by Signing Ticket—But where a ticket provides that when it is presented to the conductor the passenger shall sign his name thereto, and “otherwise identify” himself as original purchaser thereof and the passenger offers to sign the ticket, which offer the conductor refuses, and ejects him from the train on account of his refusing to pay fare, the company is liable in damages for the expulsion, as the conductor is not entitled to require a passenger to “otherwise identify” himself. N. & W. Ry. Co. v. Anderson, 90 Va. 1, 17 S. E. Rep. 757.
Right of Carrier to Eject When Ticket Has Expired.— Yet a railroad company is justified in ejecting a passenger trying to ride on a limited ticket which has expired, and who refuses to pay his fare. Grogan v. C. & O. Ry. Co., 39 W. Va. 415, 19 S. E. Rep. 563.
Passenger Ejected after Having Been Warned of Tick= et’s Invalidity.—And where the holder of a mileage ticket has been warned by the conductor that a ticket is not good, and has been ordered taken up, and the party pays his fare, and neglects to make inquiries at the proper place regarding his ticket, although he has several opportunities of so doing, and again boards the train with the intent of becoming a passenger, and offers the mileage ticket in payment of his fare, the conductor, upon refusal of the party to pay his fare, may take up the ticket and eject him from the car, using no more force than is necessary for that purpose. Moore v. O. R. R. Co., 41 W. Va. 160, 23 S. E. Rep. 539.
Ticket to Station Where There Is No Stop.—Nevertheless, where a plaintiff, holding a ticket for a station, at which the train does not stop, is refused the privthege of riding to an intermediate station, and is put off in the rain, against his consent, and from the exposure two months’ sickness resulting, in consequence of which he loses his position, he is entitled to both compensatory and punitive damages. Richmond, F. & P. R. Co. v. Ashby, 79 Va. 130.
Change of Rules—Conductor Not Informed—Ejection. —And where a railroad company fails to inform its conductor of a change in rules as to the sale of tickets and stoppage of train, and such conductor, through want of such information, wrongfully ejects him from the train, the company is liable therefor. Sheets v. Ohio, etc., Co., 39 W. Va. 475, 20 S. E. Rep. 566.
Conductor Mistakes Distance Covered by Ticket-Ejection.—In N. & W. R. R. Co. v. Neely, 91 Va. 539, 22 S. E. Rep. 367, a conductor put a passenger off the train without violence or abuse in the belief that the passenger’s ticket entitled him to ride no fur-*384tier, and, on discovering his mistake tried to get a conveyance to send for the passenger. It was held that, a verdict against the company for $1,000 damages for the ejection was excessive.
Agent by Histake Gives Ticket for Opposite Direction —Conductor Ref uses Recognition.—And if a passenger pay a railroad agent fare for a certain trip, and by mistake of the agent is given a ticket not answering for that purpose but only in the opposite direction, and the conductor refuses to recognize such ticket, and demands fare, which the passenger fails to pay, ejection of the passenger from the train without unnecessary force will not be a ground of action against the company as for a tort, but the action may and must, be based on the breach of a contract to convey the passenger. Mackay v. Ohio River R. Co., 34 W. Va. 65, 11 S. E. Rep. 737.
G. BAGGAGE.
Of What It Consists,—“It is impossible to define with accuracy what will be considered baggage within the rule of the carrier’s liability. It may be said, generally, that by baggage we are to understand such articles of personal convenience or necessity as are usually carried by passengers for their personal use, and not merchandise or other valuables, although carried in the trunks of passengers, which are not, however, designed for any such use, but for other purposes, such as a sale and the like.” Story on Rail. § 499.
But “what should constitute necessary baggage for a traveler depends very much upon the circumstances of each particular case. The conveniences required for the journey which has been undertaken, the duration of the absence, as well as the position of the parties, have considerable to do with it, and all these are to be considered as a question of fact for the decision of the court or jury.” Hutchinson on Carriers, § 680.
Extent of Carrier’s Liability.—A railroad company is liable as a common carrier, for the baggage of a passenger, to the same extent, if the passenger is traveling with his baggage, as if it was carried without him. Wilson v. C. & O. R. R. Co., 21 Gratt. 654. See ante, “Liability.”
Restricting Liability.—To restrict the liability of a railroad company as a common carrier, for the loss of the baggage of a passenger, there must be proof of actual notice to the passenger of such restriction, before the cars are started ; and an endorsement on the ticket given to the passenger, is not enough, unless it is shown that he knew its purport before the cars started. Wilson v. C. & O. R. R. Co., 21 Gratt. 654. See ante, “Contracts of Exemption and Limitation.”
Liability beyond Terminus. — And although a through ticket given to a passenger specifies on its face, that each party to the contract is only liable for losses on his part of the line, the railroad is liable for loss on a stage line, the proprietors of which have contracted with the railroad company to carry passengers and their effects to their destination. Thus, under a contract between stage proprietors and a railroad company, by which the former were to carry passengers from the terminus of the railroad to their destination, it was held that the proprietors of the stage were agents of the railroad company, and the company was liable for the loss of the baggage of a passenger. Wilson v. C. & O. R. R. Co., 21 Gratt. 654.
Rules and Regulations—Peddler’s Baggage.—A railroad company may make all reasonable rules for conducting its affairs. And it is a reasonable rule that it will only carry as baggage the passenger’s wearing apparel, and upon refusal of the passenger to certify that “his trunk contains nothing except wearing apparel,” the passenger is not entitled to damage for the company’s refusal to carry such trunk. N. & W. R. R. Co. v. Irvine, 84 Va. 553, 5 S. E. Rep. 532. Thus, a passenger in the habit of carrying merchandise in his trunk, against carrier’s rules, may be required to prove contents as a condition of receiving and checking it. N. & W. R. R. Co. v. Irvine, 85 Va. 217, 7 S. E. Rep. 233.
Delivery.—And where a through passenger who takes advantage of the privthege to stay all night at the terminus of the road and go on the stage next morning, takes her baggage with her to her hotel where she stays, but brings it out to the stage with her the next morning, and commits it to the agent of the line, and it is lost, the railroad company is liable for the loss. Wilson v. C. & O. R. R. Co., 21 Gratt. 654.
Recovery of Penalty Provided by Statute for Company’s Failure to Transfer. —Under Va. Code, ch. 145, § 5, it is provided that if a statute giving a penalty does not expressly mention that such penalty shall be in lieu of damages, the party injured might recover the actual amount of damages suffered by reason of the breach of such statute. In construing this statute the court held that a plaintiff, who has been injured by the failure of a railroad company to transfer his baggage, is not limited to a recovery of the penalty prescribed for such failure by Va. Code, ch. 61, § 17, but may recover the amount of actual damages. N. & W. R. Co. v. Irvine, 84 Va. 553, 5 S. E. Rep. 532.
VI. ACTIONS.
A. AGAINST CARRIERS OF GOODS.
1. In Gbnebal.
Waiver of Right of Action.—Acceptance of goods which a carrier has contracted to deliver at a certain time and which it has fathed to deliver until a later date is no waiver of the consignee’s right of action for the delay. N. & W. Ry. Co. v. Ship. Comp. Co., 83 Va. 272, 2 S. E. Rep. 139.
And where a bill of lading does not state the location of a claim agent’s office, a stipulation that notice of a claim must be given within five days is unreasonable and void. N. & W. Ry. Co. v. Reeves, 97 Va. 284, 33 S. E. Rep. 606.
Demand of Repayment of Excess before Suit.—And a repayment of freight charges in excess of those lawfully chargeable by a railway company need not be demanded before bringing suit to recover back the excess. W. Va. Transp. Co. v. Sweetzer, 25 W. Va. 434.
Assignability of Right of Action.—A right of action against a common carrier for injury to goods while in cars of transportation is assignable. N. & W. R. R. Co. v. Read, 87 Va. 185, 12 S. E. Rep. 395.
2. PLEADING AND PRACTICE.
a. Form of Action—When there is a public employment, from which arises a common-law duty, an action may be brought in tort, although the breach of duty assigned is the doing or not doing something contrary to an agreement made in the course of such employment, by the party on whom such general duty is imposed. Southern Express Co. v. McVeigh, 20 Gratt. 264.
And in Ferrill v. Brewis, 25 Gratt. 767, the court said : “In determining the character of the first count in the declaration here, it is proper to bear in mind there is a class of cases (among them that of bailment) in which the foundation of the action *385springs out of the privity of contract between the parties, but in which, nevertheless, the remedy for the breach or nonperformance is indifferently in assumpsit, or in case upon tort. Boorman v. Brown, 3 Adol. & Ellis 525 ; Southern Express Co. v. McVeigh, 20 Gratt. 264.
“In all these cases the contract is of course referred to to ascertain the rights of the parties and the measure of redress ; but the wrongful act of the defendant is relied upon as the gravamen of the action. This is peculiarly true with regard to attorneys, surgeons, carriers and the like. The principle is, however, not confined to employments of a public character, but to all bathees, whether public or private. In cases of mere gratuitous bailment, as no consideration is paid, it has been generally considered that an action ex delicto is peculiarly appropriate.”
Action— Nature.—And in Spence v. N. & W. R. Co., 92 Va. 102, 22 S. E. Rep. 815, it is held that, where the direction to a carrier is not to deliver the goods until payment shall be made by the consignee the property in the goods continues in the consignor, who can sue for damage caused to the same by delay, either by an action on the case, or in assumpsit. And if a shipper by compulsion, pays a common carrier more than its legal rate of charge for freight, such excess may be recovered in an action for money had and received. W. Va. Trans. Co. v. Sweetzer, 25 W. Va. 434. See B. & O. R. Co. v. Rathbone, 1 W. Va. 87.
But there is a conflict of authority as to the nature of an action to recover a penalty for illegal charges. By some courts it is considered that a penalty creates no contractual liability, and that the action is necessarily one of tort. Hart v. B. & O. Ry. Co., 6 W. Va. 336.
Some courts consider the action one of contract, and approve of either assumpsit or debt to recover the penalty. Norfolk, etc., R. Co. v. Pendleton, 88 Va. 350, 13 S. E. Rep. 709; Norfolk, etc., R. Co. v. Pendleton, 86 Va. 1004, 11 S. E. Rep. 1062.
b. Proper Parties to Proceedinys.
Suit against Receiver.—And a receiver appointed to assume charge of the affairs of a railroad company may be held responsible for the damage actually .sustained by a shipper of freight, through the negligence of the receiver’s agents and employees, in any case in which the company could be so held. But where the receiver is appointed by a court of equity he cannot be sued at law without permission of the appointing court. Melendy v. Barbour, 78 Va. 544.
Carrier Unincorporated—How Sued.—And where .common carriers are not incorporated, any one or more of them may be sued by his or their name or names only, to recover damages for loss or injury to any person, parcel, or package, and such suit «hall not abate for want of joining any of his co-proprietors or copartners. Va. Code 1887, sec. 1297; W. Va. Code 1900, ch. 103, § 9.
Connecting Carriers.—Act March 3, 1892, § 14 (Acts 1891-92, p. 965), authorizes the railroad commissioner to commence proceedings against any carrier which fails to make connection with other railroads, after the commissioner has requested such roads to make such connections. Two connecting railroads fathed to make connection, and, on the receipt of request from the railroad commissioner suggesting the changes in time which the company should make, the So. Ry. Co. complied therewith, but the B. Co. .refused to adopt such time card. Held, that the So. Ry. Co. was a proper party to proceedings to require the roads to make proper connections, though it had complied with the request of the commissioner, since all the parties should be before the court, so that all the matters in dispute could be determined, and a judgment binding on both corporations, be rendered. Southern Ry. Co. v. Com. (1900), 98 Va. 758, 37 S. E. Rep. 294.
c. P?'ocess.—In a case against any common carrier (other than a corporation) for a liability as such, any process against or notice to the carrier, may be served on such carrier, or on any agent, or on the driver, captain, or conductor of any vehicle of such carrier in the county or corporation wherein the case is commenced; and if the carrier be not in said county or corporation and there be no such agent, driver, captain, or conductor therein, the process or notice shall be sufficiently served by the publication thereof once a week for four successive weeks, in a newspaper printed in this state. Va. Code 1887, sec. 3228. For service of process on corporations, see Va. Code 1887, §§ 3220-27 ; 13 Va. L. Journal 741.
d. The Declaration.
Averments—Sufficiency.—if a declaration does not allege that the defendant is a common carrier, yet, if the facts set out constitute it such in law, it is sufficient to sustain the action against it as a common carrier. So. Exp. Co. v. McVeigh, 20 Gratt. 264.
And in an action for damages for failure to carry goods at a rate agreed, an averment in the declaration that the plaintiff delivered the goods for shipment as he had agreed to do is a sufficient averment that the goods were furnished within a reasonable time after making the contract. Southern Railway Co. v. Wilcox, 7 Va. Law Reg. 381. See also, Williams v. B. & O. R. Co., 9 W. Va. 36.
Moreover, in an action against a carrier for charging an illegal freight rate, if the declaration states the weight of the freight, the time and place where delivered to defendant for transportation, and places to which it was to be transported, distance, the amount which was demanded and received by defendant and that it was more than was lawful, contrary to the statute in such case made and provided, it is a sufficient notice of the canse of action to the defendant to enable it to make all just and proper defences. Hart v. B. & O. Ry. Co., 6 W. Va. 336.
So a declaration is sufficient in law which alleges that certain goods were delivered to and accepted by the defendant to be carried to a certain destination, for reasonable reward, to be delivered to the plaintiff; but by reason of the negligent manner in which the defendant conducted itself in regard thereto, “the goods were wholly lost to the plaintiff.” Williams v. B. & O. R. Co., 9 W. Va. 33.
Similarly, an allegation that “the defendant, before and at the time of the committing of the grievances hereinafter mentioned, were the owners and proprietors of a certain railroad, to wit, the Baltimore and Ohio Railroad, and of certain carriages used by it for the carriage and conveyance of goods and chattels in, upon, and along said railway from a certain place, to wit, Parkersburg, Wood county, West Virginia, for hire and reward to it the defendant in that behalf,” isa sufficient allegation that the defendant was a common carrier. B. & O. R. R. Co. v. Morehead, 5 W. Va. 293.
e. Variance— Condition in a contract limiting a carrier’s liability should be stated. If the declaration alleges an unqualified contract to carry, and *386the contract proved is to carry, the defendant not being answerable for certain risks, there is a variance, and if there are provisions in the contract other than are usually embodied therein it is not necessary to aver the reasons that influenced or the purposes that controlled the shipper or carrier in inserting them. Such allegations add nothing to the legal effect of the contract. B. & O. R. Co. v. Rathbone, 1 W. Va. 87.
And under counts in a declaration in which there are no counts against the defendant except against him as a carrier, or bathee, of cattle, the plaintiff cannot recover for loss resulting from the misrepresentation of the agent, whereby he was induced to ship the cattle on a slow train of the defendant instead of on a fast train. Maslin v. B. & O. R. Co., 14 W. Va. 180.
f. Set-Off—A consignee cannot set off against a carrier’s charges the amount of damages sustained by the goods from an act of God. Galt v. Archer, 7 Gratt. 307.
But if a shipper by compulsion, pays a common carrier more than its legal rate of charge for freight, such excess may be recovered in an.action for money had and received; or it may be used as an offset in an action of assumpsit brought by the carrier. W. Va. Transp. Co. v. Sweetzer, 25 W. Va. 434.
a. Bill of Exceptions.—In an action of trespass on the case against a common carrier, if it appear, by a bill of exceptions, to have been proved at the trial, that the defendant fraudulently opened certain packages and casks, being in his care, and belonging to the plaintiff, andtook therefrom a part of their contents, and converted the same to his own use, but not that the said contents was feloniously carried away., such offence is to be considered as amounting to a trespass only. Cook v. Darby, 4 Munf. 444.
h. Instructions—In an action to recover for breach of a contract in failing to transport a quantity of cord wood, by reason of which the wood was washed away by a freshet and was lost, the court properly refused to instruct the jury that “the measure of damages in case of a failure to deliver goods according to contract, and wljich are lost, is their market value,” etc., defendants not being sued as common carriers, and there being no evidence of a delivery of the wood to them. And a further instruction that plaintiff is entitled to recover as damages whatever he may have expended in the recovery of the wood washed away, if the jury believe that it would not have been washed away if defendants had kept their contract, is also properly refused, in the absence of any evidence to show that such damage can be fairly and reasonably considered as naturally arising from the breach of the contract in question. Slaughter v. Denmead, 88 Va. 1019, 14 S. E. Rep. 833. See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
i. Judgment.—In an action for damages the judgment should be for the amount assessed by the jury and interest thereon from the date of the judgment, and not from the date of the verdict. Fowler v. B. & O. R. R. Co., 18 W. Va. 579.
And a judgment in proceedings under Act March 3,1892, authorizing the circuit court to order connecting railroad lines to make connections, which fixes a schedule for certain connecting trains, to be in effect if the companies fail to agree on a schedule making a desired connection, is erroneous, unless it provides that the connecting roads may afterwards agree on a new schedule, not in conflict with the law. So. Ry. Co. v. Com., 98 Va. 758, 37 S. E. Rep. 294 (1900).
3. Evidence.
Onus.—Where a loss occurs, and the carrier attempts to excuse himself from liability by proof that the loss was caused by one of the exceptions to the general rule, the onus probandi lies on the carrier to exempt himself from the liability. And it is not enough for him to prove, where the goods are carried by water, that the navigation is attended with só much danger that the loss may happen notwithstanding the utmost endeavors of the watermen and crew, to prevent it; that the person conducting the boat possesses competent skill, has used due diligence, and provided hands of sufficient strength and experience to assist him. Murphy v. Staton, 3 Munf. 289 ; B. & O. Ry. Co. v. Morehead, 5 W. Va. 293 ; McGraw v. B. & O. R. Co., 18 W. Va. 361.
And a common carrier does not by limiting his common-law liabilities by special contract thereby become a private carrier; and if loss is sustained, the burden of proof is on him to show not only that such loss arose from a cause from which he was exempted from the responsibilities from the terms of his special contract but also that it arose from no negligence or misfeasance of himself or his servants. Brown v. Adams Express Co., 15 W. Va. 812; Maslin v. B. & O. Ry. Co., 14 W. Va. 180.
But, it should be observed, that in an action by a shipper to recover on excess of payment beyond the legal rates, the plaintiff does not have to prove that he demanded repayment of the excess before instituting his suit. West Va. Transp. Co. v. Sweetzer, 25 W. Va. 434.
Admissibility.—In an action against a carrier for an alleged breach of contract to carry goods at an agreed rate, the contracts of sale of goods made by the shipper to third persons, based on the rate agreed, but to which the carrier was not a party, and of which it had no knowledge until after breach, are not admissible in evidence. Such contracts do not tend to prove the making of the contract in suit. So. Ry. Co. v. Wilcox, 7 Va. Law Reg. 381.
And in assumpsit against a railroad company to recover goods alleged to have been lost by defendant, who had engaged himself as common carrier to transport them for hire, where the declaration contains only the common counts, without regard to the bill of lading, which contains valid exceptions . against loss or damage by fire, etc., the bill is not admissible in evidence, not being applicable to any of the counts. B. & O. R. Co. v. Rathbone, 1 W. Va. 87.
Sufficiency.—In an action by a shipper against a railroad company for the loss of freight, it appeared that the goods were delivered to defendant at Parkersburg, W. Va., April 18, 1861, sent to a person at Culpeper Courthouse, Va., that the goods were carried as far as Baltimore, and there sold at auction by the carrier in 1864, for a grossly inadequate price. The carrier proposed to justify by showing that the war between the rebels and federal government had begun war before the date of' the alleged shipment; that troops were marching through Baltimore to Washington previous to that time ; and that Et. Sumpter was fired upon April 12th or 13th, 1861; and that the president of the-United States had issued his call for 75,000 men on April 15,1861. It was held that the evidence only showed that war existed, but did not show that the defendant was thereby prevented from delivering-the freight. B. & O. R. Co. v. Morehead, 5 W. Va. 293.
*387Moreover, evidence that plaintiff delivered a basketto a servant of adefendantrailroad. company to be skipped over its road, that this servant was the same person who had repeatedly shipped baskets for her, and that on this occasion he said he shipped it, and that neither she nor any one for her ever received the basket, justifies a judgment in favor of the plaintiff for the value of the basket. Quarrier v. B. & O. R. Co., 20 W. Va. 424.
B. AGAINST CARRIERS OF LIVE STOCK.
1. Pleading and Practice.
Form of Action.—See principles, which apply, with like force, discussed ante, “In General”; also, “Actions against Carriers of Goods.”
Who May Be Sued.--See ante, “Actions against Carriers of Goods.”
Declaration.—"Where a declaration alleges a special contract to carry certain live stock safely, and the evidence adduced by the plaintiff shows that the contract contains a stipulation that the defendant shall not be held liable for any injury thereto, except such as might result from the gross negligence of the defendant’s employees, it will be error to refuse to instruct the jury that the variance will warrant them in finding for the defendant. B. & O. R. Co. v. Skeels, 3 W. Va. 556. See ante, “Actions against Carriers of Goods.”
Variance.—Where a declaration in assumpsit charges common carriers or bathees for hire, for loss or damage generally, and an agreement is proven, showing that the transportation was at the plaintiff's risk, which imposes a different liability than that charged, and a verdict is rendered against the carrier, it should be set aside and a new trial granted for reason of the variances. B. & O. R. Co. v. Rathbone, 1 W. Va. 87. See B. & O. Ry. Co. v. Skeels, 3 W. Va. 556.
Instructions.—if a shipper contract to load and care for live stock at his risk, and the evidence tends to show that the cars were overloaded, and the stock neglected by the shipper, in an action by the shipper for injury to the stock he is not entitled to an instruction that injury to the stock in the custody of a common carrier for shipment raises a presumption of negligence against the carrier, and that the burden is on the carrier to show that the in j ury arose from a cause for which it is not responsible. Such instruction should be qualified by adding “except such injury as results, or may have resulted, from the negligence of the shipper, or the inherent vice or propensity of the animal.” Norfolk & Western Railway Co. v. Reeves, 97 Va. 284, 33 S. E. Rep. 606. See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
Verdict.—If in an action for injury to horses through failure of the defendant railroad company to provide suitable means for unloading the same, it appears that the defendant did not furnish the usual gangway Cor unloading stock leading from the car to the ground, but the horses were unloaded directly upon the depot platform, one side of which was unguarded, and that one horse was injured by either being crowded from or jumping from the unguarded side of the platform, a verdict that defendant fathed to furnish suitable means Cor unloading the stock should not be disturbed. C. & O. Ry. Co. v. American Exch. Bk., 92 Va. 495, 23 S. E. Rep. 935.
And where evidence shows that 147 lambs died because of defendant’s negligence; that they averaged 77pounds each and were worth from seven and one-half to eight cents per pound at the point of destination, a verdict for $742, with interest from date of injury, is justified. N. & W. R. Co. v. Harman. 91 Va. 601. 22 S. E. Rep. 490.
Damages —Where a railroad company agrees to-deliver cattle from a point on its own line to a point on the line of another railway company, and the company makes a mistake in reloading, whereby some of the cattle are sent to another point, and other cattle are mixed with these, by which the loss-occurs to the owner, the company is liable for the consequent loss occasioned by such default on its; part. N. & W. R. Co. v. Sutherland, 89 Va. 703, 17 S. E. Rep. 127. And where the evidence shows that 147 lambs died because of defendant's negligence; that they averaged 77 pounds each, and were worth from seven and one-half to eight cents per pound at the point of destination, it was held that a verdict for $742.00. with interest from date of injury, was justified. N. & W. R. Co. v. Harman, 91 Va. 601. 22 S. E. Rep. 490. See monographic note on “Damages” appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.
2. Evidencie.
Admissibility—Hearsay.—In an action against a common carrier to recover for loss on cattle delayed in transit, the testimony of the shipper as to what his commission merchant reported as the amount of the sales of the cattle is hearsay. The amount of such sales should be shown by a witness who has positive knowledge of the transaction, and the defendant should have an opportunity to cross-examine the witness. N. & W. R. Co. v. Reeves, 97 Va. 284, 33 S. E. Rep. 606.
Sufficiency. —An d in an action against a carrier for injuries to animals through its failure to unload them Cor rest, etc., as required by the Revised .Statutes of the TT. S. i 4386. evidence merely that the car was detained by a storm for hours, is insufficient to show that the failure to unload was caused by a “storm or other accidental cause.” C. & O. R. Co. v. American Exch. Bk., 92 Va. 495, 23 S. 33. Rep. 935.
C. AGAINST CARRIERS OF PASSENGERS.
1. Pleading and Fraction.
a. Form, of Action, Parties, Venue ana Questions for the Jury in General.
Form of Action.—An action on the case in tort may be maintained in any case in which trespass will lie. Therefore it a passenger is wrongfully ejected from a car when he has paid his fare, though no force was used in ejecting him, he may bring an action on the case in tort against the carrier. Barnum v. B. & O. Ry. Co., 5 W. Va. 10; Boster v. C. & O. Ry. Co., 36 W. Va. 318, 15 S. E. Rep. 158; So. Exp. Co. v. McVeigh, 20 Gratt. 264.
Who May Sue or Be Sued.—Where common carriers are not incorporated, any one or more of them may be sued by his or their name or names only, to recover damages for loss or injury to any parcel, package, or person, and such suit shall not abate, Cor the want of joining any of his coproprietors or copartners. W. Va. Code 1900, ch. 108, § 9; Va. Code 1887, § 1297. As to suit against a receiver appointed by a court of equity, see Melendy v. Barbour, 78 Va. 544. Also, see this subject discussed ante, “Actions against Carriers of Goods.”
Venue—Removal of Cause,—Where a railroad company, which was incorporated in another state, leases a railroad lying in this state, and operates the same as owner thereof, any person injured may sue the railroad company in the courts of this state, and such company has no right to remove the suit *388to the federal court. B. & O. R. R. Co. v. Wightman, 29 Gratt. 431.
Questions for the Jury.—In Va. Cent. R. Co. v. Sanger, 15 Gratt. 230, contractors were employed by defendant railroad company to deliver stone to be used to preserve the track; they placed it in ridges near - the rails, where a train was passing; one of the stones fell upon the track, causing the train tobe derathed, and a passenger, the plaintiff in the case, was injured. As to whether the company had used due diligence to guard against danger, was a question, as held by the court, for the j ury to determine. Carrico v. W. Va. Cent., etc., Ry. Co., 35 W. Va. 389, 14 S. E. Rep. 12.
b. The Declaration.—A declaration against a railroad company for personal injuries alleged that plaintiff had a ticket over defendant’s road, and boarded a freight train, which did not carry passengers, in the belief that the ticket was good on such train; that the conductor refused to stop the train, and ordered him to get off while it was running at a high rate of speed ; and that the conductor, in violent language, threatened to eject plaintiff from the train if he did not obey the order, and had force at his command to execute such threats ; and that upon belief that resistance would result in greater injury than leaving the train, he jumped off and was injured. The court held that there was sufficient allegation of compulsion to excuse plaintiff from the charge of contributory negligence in jumping off. Boggess v. C. & O. Ry. Co., 37 W. Va. 297, 16 S. E. Rep. 525, 23 L. R. A. 777.
Moreover, where a declaration avers that decedent was killed by the oversetting and throwing down of the railroad car in which he was being carried at the time by the defendant as a passenger, and that the oversetting and throwing down of the car were caused by the negligence of the defendant, it is not demurrable on the ground that allegation is too general. Searle v. Kan. & O. Ry. Co., 32 W Va. 370, 9 S. E. Rep. 248.
And in Birckhead v. C. & O. Ry. Co., 95 Va. 648, 29 S. E. Rep. 678, a declaration alleged that a carrier, disregarding its duties, negligently permitted the train on which the plaintiff was a passenger to stand on a track where it was in danger of a collision; that the carrier negligently permitted another train to collide with the train on which the plaintiff was a passenger; and that the carrier had knowledge of the danger in time to stop the other train, and prevent the collision, but fathed to do so; and that the plaintiff was injured. Held, that the declaration described the plaintiff’s cause of action with sufficient particularity.
But in an action for being ejected from a railroad car, it is not sufficient to aver generally that the party was wrongfully ejected, but it must be sufficiently set forth that his expulsion was improper, and wrongful, i. e., being rightfully in the car but illegally expelled. Barnum v. B. & O. R. Co., 5 W. Va. 10.
c. Instructions.—In action for refusal to receive and check plaintiff’s trunk, an instruction is erroneous, which leaves it doubtful whether the occasion alluded to therein as that when plaintiff had not endeavored to deceive defendant, was the occasion mentioned in the declaration, or some other. N. & W. R. Co. v. Irvine, 85 Va. 317, 7 S. E. Rep. 333.
And in Shen. Val. R. Co. v. Moose, 83 Va. 827, 3 S. E. Rep. 796, a passenger who had been suffering from rheumatism of the thigh was thrown from his seat in a car by collision .of the train,- and his leg was broken. In a suit for damages, counsel for the railroad requested the court to instruct the jury that, “Although the jury believe from the evidence that the injury complained of in the declaration was inflicted by the defendant upon the plaintiff, in the manner therein set out, yet the plaintiff is not entitled to recover if they shall further believe from the evidence that he was in a feeble and infirm state of health, and such as would have prevented a prudent man from running the risk of travel; and that but for his diseased and helpless condition the plaintiff would not have suffered the inj ury so inflicted by the defendant.” Such, instruction was properly refused.
So in an action against a railroad company for injuries to passengers caused by the negligence of defendant in allowing stones to be pthed so near the track as to strike plaintiff’s arm, the defence was contributory negligence on plaintiff’s part in allowing his arm to protrude from the window of the car. The court held, that an instruction that plaintiff was entitled to recover if the servants in charge of the train were in a position to see the pthe of stone, or might have seen it by the use of ordinary care, and could thereby have prevented the injury by stopping the train, and fathed to do so; and that it was immaterial whether the servants did see the stones, it being their duty to do so, was erroneous, since it was for the jury to say whether the servants should have seen the stones; and for the further reason that it ignored the evidence of contributory negligence. Carrico v. W. Va. Cent., etc., Ry. Co., 35 W. Va. 389, 14 S. E. Rep. 12.
d. Damages.
When Amount Governed by the Judgment of the Jury.—In actions by passengers against carriers, for injuries sustained, the judgment of the jury as to the amount of the damages, must govern, unless the damages allowed are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or misled by some mistaken view of the merits of the case. Farish v. Reigle, 11 Gratt. 697.
When Excessive.—But in N. & W. R. Co. v. Lipscomb, 90 Va. 137, 17 S. E. Rep. 809, $500 was held excessive compensatory damages to a passenger who was mistakenly assigned a berth in a sleeping car which was cut off from the main train, and who was thus delayed, and temporarily lost his baggage containing medicines which were required for the proper care of his sick child.
Punitive, Penal and Compensatory, In General.—The terms “punitive,” “exemplary,” “vindictive,” and “penal” damages, are used interchangeably and indiscriminately by some of the several courts, and text writers. Others draw a distinction between damages which are exemplary, and within the discretion of the jury in view of all the circumstances, and “penal” or “vindictive” damages which are defined to be those over and above determinate damages resulting directly, as from a loss of property, or indirectly, as consequential pecuniary loss; and over and above what are termed indeterminate, or those resulting from mental anguish, suffering or humiliation. Determinate damages being in their nature compensatory, the direct and dominant purpose is to make whole the defendant in all respects, as nearly as possible. Yet it is evident that in doing so the defendant is punished and warned as he must be in all cases where damages are recovered against him. Still this punishment comes as an indirect and consequential result, and is, as it were, disregarded, *389being overshadowed by the chie f object to be effected by the allowance of the recovery, viz.to compensate the person wronged by giving such damages as will be a recompense for actual pecuniary loss, as in case of personal injury, for time lost, medicines and physicians’ bills, and in addition his measure of loss resulting from mental anguish, suffering or wounded feelings. Whereas, if the damages are “penal” or “vindictive,’’ in the sense nsedi by some courts, a sum additional to compensatory, in the most comprehensive sense, is allowed, regardless of extenuating circumstances, merely to inflict punishment upon the wrongdoer Cor his malicious, wanton, vicious or oppressive conduct, and is in no sense compensatory, the chief purpose being to penalize the wrongdoer.
In defining these terms, or in applying the principles to particular facts, these discriminations have not been made in the treatment of this subject. The only distinction made is that between compensatory in its restricted sense, and punitive, which is regarded as covering all damages allowed beyond the extent of the amount necessary to reimburse for actual loss. For a well-considered opinion, which defines these terms, and makes careful and acute distinctions between the several classes of damages, see Pegram v. Stortz, 31 W. Va. 220, 6 S. E. Rep. 485. See also, Minor’s Conflict of Laws, §§ 10, 74,198.
Compensatory and Punitive Damages Defined and Compared.—Actual or compensatory damages are the measure of the loss or injury sustained, while exemplary or punitive damages are something in addition to full compensation, and something given, not as one’s due, but for the protection of the public. The law awards the former where, in the unlawful act, there is an absence of intentional wrong, fraud, or malice, or the act is not oppressively or recklessly committed; while the latter are given where the wrongful act is done with a bad motive, or with such gross negligence as to amount to positive misconduct, or in a manner so wanton or reckless as to manifest a willful disregard of the rights of others. Punitive damages are damages against a person who has wronged another in a wanton, willful, or oppressive manner, in disregard of his rights, as a warning to him and others to prevent them from committing like offences in the future. N. & W. R. R. Co. v. Neely, 91 Va. 539, 542, 22 S. E. Rep. 367 (1895).
Compensatory Damages—When Awarded.—A master is liable to the extent of compensatory damages for the unlawful act of his agent, committed in the course of his employment, whether ratified or not. Thus, a passenger who is unlawfully expelled from a train by the conductor is entitled to recover damages therefor of the company. If the expulsion, though unlawful, did not proceed from any ill motive, and was not rudely or recklessly done, nor in such manner as to show a conscious disregard of the rights of others, and was simply the result of a mistake, only compensatory damages can be recovered, and, on the evidence certified, the plaintiff’s damages should be limited to compensation for the inconvenience, delay, and fatigue to which he was put, and a suitable recompense for the injury done to his feelings, and for being expelled from the train. Norfolk, etc., R. R. Co. v. Neely, 91 Va. 539, 22 S. E. Rep. 367.
Punitive Damages—When Awarded against a Corporation-punitive damages belong alone to actions of tort; they do not lie for breaches of contract. N. & W. R. Co. v. Wysor. 82 Va. 250.
As to the question of recovery of punitive damages against a corporation the rule differs in the several state courts and in the federal court. The supreme court of the United States holds that the question whether a railroad corporation can be charged with punitive damages for the illegal, wanton, and oppressive conduct of the conductor of one of its trains towards a passenger, is a question, not of local law, but of general jurisprudence, upon which the judgment of the supreme court of the United States, in the absence of express statute regulating the subject, is not controlled by decisions of a state court. Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101.
Federal Rule.—The federal court adheres to the rule that a corporation is not liable in punitive damages for injury committed by its servant upon a passenger on the train merely on the ground that the conductor’s illegal conduct was wanton and oppressive. In order to recover punitive damages against a corporation it is necessary to show that the company had knowledge that such servant was unsuitable for the position he occupied, or that the company participated in, approved, or ratified his treatment of the passenger. See Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, and cases cited.
The weight of authority in the several state courts is opposed to this view, and in most of the states the rule is laid down, that a corporation is liable in punitive damages for the malicious and wanton wrongs of its servants, done in the course of its employment. See Spellman v. R. & D. R. Co., 28 Am. St. Rep. 858, 870-883, containing an exhaustive note upon the subject, and quoting a full line of authorities. See also, Lthe’s Notes on Mun. Corp., p. 117 et sea.
West Virginia Rule— In Ricketts v. C. & O. Ry. Co., 33 W. Va. 433, 10 S. E. Rep. 801, it is held that, a railroad company cannot be made responsible for exemplary damages on account of injuries done by one of its servants, even though the act was wanton and malicious, unless the act was expressly or impliedly authorized or ratified by the company. See Downey v. C. & O. R. Co., 28 W. Va. 732.
Virginia Rule.—The position of the Virginia court is uncertain. In N. & W. R. Co. v. Anderson, 90 Va. 1, 17 S. E. Rep. 757 (June, 1893), a passenger was ejected by the conductor under the following circumstances : The passenger’s ticket provided that when presented to the conductor, the passenger should sign his name thereto, and “otherwise identify” himself as original purchaser thereof. The passenger offered to sign the ticket, but the conductor refused this offer, demanded payment of fare, and ejected him because he refused to comply with such demand. The court held that the passenger was entitled to punitive damages but on the ground that the company subseauently ratified the conductor’s acts.
In a later case, N. & W. R. Co. v. Lipscomb, 90 Va. 137, 17 S. E. Rep. 809 (July, 1893), a passenger with his wife and two children, one of whom was very sick, bought a ticket at Bristol, Tenn., for Washington, D. C., and was assured by the company’s officials that a through sleeper was attached to the train. Entering the train he paid for two berths, and was assured by Us conductor that it would go through. Suddenly, without notice to him, the sleeper was cut loose and the train went on carrying the sick child’s clothing and medicine, part of which was lost. The *390sleeper was left on the track at night when it was too late to get into a hotel or drug store. The jury found that the situation was produced by the negligence of the defendant’s officials, of whom the conductor was one. The court held, in conformity with the rule laid down in the federal court, that the plaintiff was not entitled togpunitive damages. This part of the opinion, however, seems not to have been necessary to the decision. The federal rule was adopted, as it would seem, unhesitatingly, and without reference to or notice of the great weight of conflicting authority.
In N. & W. R. Co. v. Neely, 91 Va. 539, 22 S. E. Rep. 367 (1895), the rule laid down in the Lipscomb Case was approved by the court obiter, namely, that to recover exemplary damages of the master for the tortious act of the servant, the act must have been previously authorized, or subsequently ratified, or the company must have had knowledge of the servant's unfitness. The tendency of these decisions would seem to indicate, however, that the supreme court of appeals of Virginia favors the rule laid down in the federal court. See R., F. & P. R. R. Co. v. Ashby, 79 Va. 130, a case in which punitive damages were held proper. See also, 1 Va. Law Reg. 471, ,620, for articles bearing upon the subject of punitive damages against corporations. See, in this connection, B. & O. Ry. Co. v. Noell, 32 Gratt. 394.
2. Evidence.
Presumption and Onus.—The upsetting of a stage coach is prima facie evidence of negligence. Parish v. Reigle, 11 Gratt. 697. And when injury or damage happens to a passenger by the breaking down or overturning of a railroad train, or the breaking down of a bridge, or wheel, or axle, or by any other accident occurring on the road, the presumption, prima facie, is that it occurred by the negligence of the railroad company, and the burden of proof is on the company to establish that there has been no negligence whatsoever, and that the damage has been occasioned by an inevitable casualty, or by some cause which human care and foresight could notiprevent. B. & O. R. R. Co. v. Wightman, 29 Gratt. 431. See Carrico v. W. Va. Cent., etc., R. Co., 35 W. Va. 389, 14 S. E. Rep. 12.
Furthermore, a plaintiff must be presumed to have been without fault; and if defendant relies on the defence of contributory negligence, he must prove it. B. & O. R. R. Co. v. McKenzie, 81 Va. 71.
And where a train separates, and the separated cars collide so that a passenger is injured, the burden of proof is on the company to show want of negligence. So. Ry. Co. v. Dawson, 98 Va. 577, 36 S. E. Rep. 996.
Admissibility.
Hearsay—Declarations of the mother of an inj ured child passenger immediately after accident, are mere hearsay and no more binding on the estate of the child than would be declarations of a stranger. N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454.
When Evidence of Frequently Recurring Accidents Admissible.—And a street-car company, using electricity, is bound to employ the best mechanical contrivances and inventions; and evidence that a particular trolley wire has been the subject of frequently recurring accidents is admissible, as showing that the company had notice of its unsafe condition. Richmond Ry. & E. Co. v. Bowles, 92 Va. 738, 24 S. E. Rep. 388.
Contributory Negligence—Evidence Certified.—But where the evidence, and not the facts, is certified, and the defendant in such action is the exceptor, any evidence it may have adduced, tending to show contributory negligence on the part of the exceptee and contrary to the exceptee’s evidence, must be rejected. Va. Code 1887, § 3484; N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S. E. Rep. 454.
Damages—Condition of Decedent’s Family.—And in an action against a railroad corporation for the killing of a person, evidence is admissible' to show the condition and circumstances of the family of the deceased, his business qualifications, the condition of his health, the amount he was realizing annually from his employment, the value of his services to his family, and the damage suffered by them in the loss of his care, nurture and instruction. B. & O. R. Co. v. Wightman, 29 Gratt. 431.
Usual Stopping Place.—Moreover, testimony as to what had been the stopping place at a certain station is admissible in an action for personal injuries, when defendant contends that plaintiff was injured whilst alighting from its train before it reached its usual stopping place, while in motion, and the plaintiff denies such contention. A. & F. R. R. Co. v. Herndon, 87 Va. 193, 12 S. E. Rep. 289.
Baggage Checks.—So railway baggage checks are admissible in evidence, in an action to recover for a loss of baggage, to show what the company’s undertaking was. Wilson v. C. & O. R. Co., 21 Gratt. 654.
Weight.
Contributory Negligence—Projection of Arm.—On a question whether plaintiff voluntarily put his arm out of the car window, or whether it was cast out by a lurch of the train, and came in contact with a bridge through which the car was passing, it appeared that the rail on plaintiff’s side was one-half inch lower than the other, that neither the plaintiff nor the other passengers were moved from their seats by the lurch complained of, that plaintiff immediately after the injury said that he got his arm hurt by putting, it out of the car window, and that the top of the car did not touch the bridge, as it must have done in case of a violent lurch, it was held insufficient to show involuntary projection of plaintiff’s arm from the window, and that the verdict in his favor must be set aside. Richmond & D. R. Co. v. Scott, 88 Va. 958, 14 S. E. Rep. 763.
Same—Forcible Ejection.—And in Boggess v. C. & O. R. Co., 37 W. Va. 297, 16 S. E. Rep. 525, 23 L. R. A. 777, a person having a ticket for passage upon a railroad, boarded a freight train which, did not carry passengers, believing the ticket good on that train. The conductor ordered him to get off the train while it was running at a speed which would endanger him in getting off, and refused to stop the train so that he might get off safely, and in violent and insulting language threatened to eject the person from the train by force if such order was not obeyed, and he had force at his command to execute the threat, and as a result, the person jumped from the train to avoid ejection by force. The court held that he was to be treated as a passenger and not as a trespasser; and there was' sufficient compulsion or show of force to excuse the person from the charge of contributory negligence in so j umping from the train.
Speed of Train—Negligence.—But the mere speed of a train, or the fact that it was behind time, when the accident occurred, is not evidence of the negligence of the employees having it in charge. N. & W. R. Co. v. Ferguson, 79 Va. 241.
*391VII. CRIMINAL LIABILITY.
Violation of Statutory Regulations.—Any common carrier failing to comply with the provision of ch. 55. Va. Code 1887, Pol, Supl. ch. 55, or of the general laws of the state relating to the transportation of freight and passengers by common carriers when not otherwise provided for by such act of the general law, shall for each violation be deemed guilty of a misdemeanor, and on conviction thereof in any court of competent jurisdiction shall be fined not less than one hundred nor more than five hundred dollars.
Embezzlement,—And if any carrier or other person to whom money or other property which may be the subject oi larceny, may be delivered tobe carried for hire, or any other person who may be intrusted with such property, embezzle or fraudulently convert to his own use or secrete with intent to do so, any such property, either in mass or otherwise, before delivery thereof at the place at which, or to the person to whom, they were to be delivered, he shall be deemed guilty of larceny thereof. W. Va. Code 1900, ch. 145, § 20. See. in this connection, Smith v. Com., 4 Gratt. 532; Com. v. Adcock, 8 Gratt. 661.
Packages Fraudulently Opened, and Goods Converted. —But in an action of trespass on the case against a common carrier, if it appear, by a bill of exceptions, to have been proved at the trial, that the defendant fraudulently opened certain packages and casks, being in his care, and belonging to the plaintiff, took therefrom a part of their contents, and converted the same to his own use, but not that the said contents were feloniously carried away, such offence is to be considered as amounting to a trespass only. Cook v. Darby, 4 Munf. 444. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481508/ | ALLEN, P.
The decision of this cause depends upon the construction of the will of Francis Cannon deceased, disposing of the property in controversy. The intention of the testator must be gathered from the face of the will itself: In the enquiry we can derive but little aid from adjudged cases. In Shermer v. Shermer’s ex’ors, 1 Wash. 266, Pendleton, president, quotes with approbation the saying of a judge, “That in disputes upon wills, cases seldom elucidate the subject, which depending on the intention of the testator to be collected from the will and from the relative situation of the parties, ought to be decided upon the state and circumstances of each case.” And Judge Pendleton remarks, that “he had generally observed that adjudged cases have more frequently been produced to disappoint than to illustrate the intention.”
In the case under consideration, looking at the different clauses under which the parties respectively claim; and considering each clause a part and uninfluenced *by the other clause and the residue of the will, it is apparent that under the second clause standing alone, John Sowden, if he survived his mother, would have taken the absolute estate. Whilst the clause, under which the plaintiff in error claims, providing for the contingency of the death of Ann Sowden and her son John, without leaving children to inherit the estate, and in that case giving the estate over at their death to his nephew Tuke Cannon, junior, and his heirs, would, if standing alone, have been a good executory limitation of the fee to Tuke Cannon, junior, in derogation of, or substitution for, the preceding estate in fee. But the intention of the testator is not to be collected from any isolated clause, but from the whole will, so as to ascertain in the event which has happened, whether it was provided for; and what disposition in view thereof the testator contemplated. The relative situation of the parties and the state and circumstances of the case, appear upon the face of the will only. From that it is evident that his niece Ann Sowden and her son John were the leading objects of the testator’s bounty. It does not appear that she then had any other children. After some specific legacies to his two nephews, and a provision emancipating some slaves, he bequeathed the residue of his estate to trustees in trust, that his niece should have the entire use and profits of the same during her natural life, for the maintenance of herseif and her son John. Having thus secured a support for his niece, and protected the property from.waste by the interposition of trustees during her life time, in the following clause he directs that at her death the trust should expire, and the property left in trust should go to John Sowden and his heirs forever, should he survive his mother. But looking to the possibility of his dying before his mother, leaving children; and intending to secure a fee simple estate *to John and his children, if John survived, or left any child capable of taking at the death of the mother, he in the next place provides, that if John should die before her, the estate . should go to his children, if he should leave any. These clauses show an intention to provide for John and his children after the trust was satisfied; that he looked alone to the death of his niece as the time when the whole estate was to pass to some one or more of the designated beneficiaries; that John, in the event which has happened, was the first beneficiary; and that after the estate once vested in him, there was no intention to make any limitation over, or to tie up' the property in his hands. Otherwise, although he might have survived his mother and had children, yet as he might have outlived them, he could not have exercised full dominion over the property. This intention more clearly appears from the next provision of the will. Having fully provided for the niece and her son during her life time, for the son if he survived her, giving him the whole estate, for his children, if he died before her; giving them in that event the whole estate, although one degree farther removed from him; he in the next place looked to and provided for another contingencj'; that was the death of John before his mother, leaving no child. In that event, he directs the estate to go to any other children of said *409Aim Sowden at her death, who should take and enjoy the same estate which her son John would have taken provided he had survived his mother. The devise to the other children of Ann is upon the contingency of John’s dying before his mother, leaving no child. He makes no devise over to these other children of Ann, if she should have any, provided John survived his mother, and then died leaving no child ; because he had before given the whole estate to John if he survived, and did not look to the contingency of John’s dying without leaving a *child after the estate had vested in him on his mother’s death.
It is much more reasonable to suppose that if the testator had ever looked beyond the period of the death of his niece, as the time for the complete vesting of the whole estate, he would have made a provision in favor of any other of her children in event of John’s surviving and then dying without leaving a child, than in favor of another nephew. This clause furthermore directs that these other children of Ann should take and enjoy the same estate that John would have taken if he had survived his mother. They must have taken the fee absolutely, for it is not pretended that the will contains any limitation over after their deaths. Yet this estate, so to be vested in them on the event designated, is by the testator described as the same estate which John was to take if he survived.
After these various dispositions in favor of his niece and her son John, his and her other children, if any, the testator proceeds to provide for another contingency which he anticipated; that was the possibility of his niece outliving her son John, and neither of them leaving any child or children surviving her, so that there would be no descendant of said Ann in being at the time of her death, to inherit the estate. He therefore provides that if the said Ann and her son John shall both depart this life without leaving children to inherit the estate; in that case, at the death of the said Ann and her son John, the estate is devised to his nephew Luke Cannon, junior.
The context I think shows clearly, that the testator looked alone to the period of Ann’s death as the period when the trust should expire and the whole estate pass absolutely. By express words to John if he survived his mother, or to his children, if he died before her, leaving children, or to her other children, if any, if he *died before her, leaving no children. There is no limitation over after the estate should have vested in John’s children on one contingency, or the other children of Ann on another contingency.
It would be a forced construction to suppose that the testator intended to make a limitation over in favor of the last devisee, which he had omitted to make in favor of the immediate descendants of Ann Sowden. The phrase is elliptical. When he speaks of the said Ann and her son John both departing this life without leaving children, he meant to refer to preceding clauses, which had provided for such an event, and is not to be understood as referring to the death of John at any time after his mother’s death, leaving no children. The clause, to effectuate the intention and make, the will consistent with itself, should be read as if he had said, ‘ ‘But if the said Ann and her son John should both depart this life as aforesaid, without leaving children as aforesaid to inherit the estate.”
It seems to me that the testator intended, in the event which has happened, of John’s surviving his mother, that the whole estate should vest in him absolutely, and the limitation over in favor of Luke Cannon could never thereafter take effect.
I think the judgment should be affirmed.
DANIEL and MONCURE, Js., concurred in the opinion of Allen, J.
LEE and SAMUELS, Js., dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481509/ | ALLEN, P.
If the questions presented by the record in this case were of the first impression in this court, ' *it would be matter for grave consideration, whether deeds of trust, such as those assathed by the bill of the appellees, did not contravene the spirit of the statute against fraudulent convej'ances: Whether a deed of trust executed by a debtor on the verge of insolvency, creating preferences amongst his creditors, postponing the time of sale, the possession in the mean time remaining with the grantor, and the profits to be received by him, and executed without the knowledge of or consultation with the creditors, should not be treated as made with a fraudulent intent, because the reservations and conditions may tend to hinder and delay creditors, in the prosecution of *411their legal remedies to enforce the payment of their debts. But these questions have been settled by a series of adjudications in this court. It would disturb many titles, if the principles heretofore established, and sanctioned by the practice of the country, were now to be questioned. If inconvenience results from the construction heretofore given to the statute against fraudulent conveyances, the remedy should be administered by the law making power. An act of the legislature would operate prospectively, and men could regulate their transactions so as to conform to its provisions. But a decision of this court, giving a new and different rule of construction, would have a retrospective and therefore an unjust operation.
Preference of favored creditors is forbidden by the bankrupt law in England. But where that law does not apply, the right to make such preferences is admitted. In Estwick v. Caillaud, 5 T. R. 420, Lord Kenyon says, It is neither illegal or immoral to prefer one set of creditors to another. The same doctrine was avowed in Nunn v. Wilsmore, 8 T. R. 521. The same rule has been sanctioned in courts of equity. Small v. Oudley, 2 P. Wms. 427. The right results from the ownership of personal property, and the unrestricted *power of alienation. The debtor, if no lien has attached, can sell it or transfer it to any creditor or purchaser, and apply the proceeds to the payment of any creditor he pleases. And if he may do so with the property or its price, there would seem to be no good reason why he should not have the right to cover it by a deed of trust for the same purpose. The right to do so was affirmed in Brashear v. West, 7 Peters’ R. 608; in Murray v. Riggs, 15 John. R. 571; and it is believed in most of the states.
The cases of McCullough v. Somerville, 8 Leigh 415; of Skipwith v. Cunningham, Id. 271; and Phippen v. Durham, 8 Gratt. 457, have recognized the doctrine in Virginia. The same cases decide that it is not necessary to the validity of such a deed, that the creditors should have been consulted beforehand. In Skipwith v. Cunningham, 8 Leigh 271, the subject is examined by Tucker, president, who observes, “that if the grantor seals and acknowledges, and delivers (though not to the grantor personally or to his agent), a deed setting forth a bargain and sale for a valuable consideration, that consideration instantly raises a use, which the statute instantly executes, and vests the estate in the bargainee, with or without his assent, leaving him, indeed, the capacity to avoid it at his pleasure, by renouncing it.” And “that there is no instance in which the courts of Virginia have decided that such deeds were incomplete and ineffectual, for such a decision would shake every title in the commonwealth.” And in the recent case of Phippen v. Durham, 8 Gratt. 457, the deed was executed without the knowledge of the creditors, and was not signed by the trustee.
That the reservation of an interest in the property, by postponing the time of sale, or directing a sale on credit, or providing for the payment of the surplus after satisfying the creditors secured, do not of themselves furnish evidence of fraudulent intent, has been affirmed by the repeated decisions of this court. Skipwith *v. Cunningham, 8 Leigh 271; Kevan v. Branch, 1 Gratt. 274; Lewis v. Caperton’s ex’ors, 8 Gratt. 148; Cochran v. Paris, supra 348; Janney v. Barnes, 11 Leigh 100.
The fact that creditors may be delayed or hindered, is not of itself sufficient to vacate such a deed, if there is absence of fraudulent intent. Every conveyance to trustees interposes obstacles in the way of the legal remedies of the creditors, and may, to that extent, be said to hinder and delay them.
Postponing a sale to an unreasonable time may be a circumstance, in connection with other circumstances, tending to prove a fraudulent intent. If made with such an intent, the time to which the sale was postponed would not affect it. Neither the stipulation to postpone the sale or to return the surplus, can operate to the exemption of any portion of the debtor’s property from the payment of his debts. The surplus is rightfully his property; everjffhing not embraced by the conveyance belongs to him for the benefit of his creditors; is liable for his' debts. The mode of subjecting it may be different, but there can be no question of the right of the creditor to do so. A deed of trust for the security of a future or contingent liability, as for the indemnity of a surety or endorser, could not be impeached for that cause alone, if made bona fide. Such deeds are of every day’s occurrence; and their validity has never been questioned. Such a deed may interpose obstacles to the legal remedies of creditors for an indefinite period of time. But the interest of the debtor would still be subject to his debts, and could be reached, if not by legal process, by a proceeding in chancery; which, in a proper case, would no doubt sequestrate and apply the rents of the land, the hires of his slaves, and the interest arising from the sale of the perishable estate, to the discharge of his debts.
The cases of Spencer v. Ford, 1 Rob. R. 648, and *Spence v. Bagwell, 6 Gratt. 444, are supposed, by the counsel of the appellees, to modify the doctrine held in other cases, and to establish principles which would show the deeds in this case to be invalid. In the first case there were two deeds of trust, the first not appearing to have been made with the knowledge of, or to have been ratified by, any creditor or trustee named therein ; and under which no claim was asserted until the execution of the second deed, and the application of the proceeds thereunder; and then the claim was asserted by a creditor not named in the deed, or known to be a creditor. It was held that such creditor was not entitled to relief against the cestui que trust in the last deed. The refusal of *412relief under such circumstances does not decide that a deed made without consultation with creditors, is for that reason fraudulent. Before any right or claim under the first deed was known or asserted, the property had been conveyed, and the proceeds applied to a fair creditor, against whom, under the circumstances, there was no just cause of reclamation.
In Spence v. Bagwell, 6 Gratt. 444, the deed contained such limitations and conditions as secured to the debtor a full control over the property, and would have enabled him to defeat the conveyance. The deed reserved the right of possession from November 1841 until March 1843; that he should be considered the agent of the trustees, with full power to sell and collect the proceeds; and with a provision that if he paid off the debts or any part of them, by moneys not raised by the sale of the trust property, he should be considered a creditor of the trust fund, and might retain the amount out of the proceeds arising from a sale of the property conveyed. The deed on its face showed a contrivance to retain as owner first, and as agent, the control of the property, with authority to convert the proceeds of his labor into debts charging it, so as to keep it beyond the reach of his general ^creditors. Neither of these cases impairs the authority of the cases before referred to; and which it seenis to me are decisive of the case under consideration. The fraudulent intent is denied by the grantors, and there is no proof except that arising from the face of the deed. The court cannot presume the fraud unless the terms of the instrument preclude any other inference. As to the cestuis que trust, it is not pretended that they participated in any fraud. They were not consulted ; and though if the fraudulent intent clearly appeared on the face of the instrument, they would be affected by it if they claimed under it, the reservations on the face of the deeds do not raise under the doctrines of this court, an irresistible presumption of fraud which would of itself vacate the deed.
The violation by B. B. Belt of his engagement of the 17th of May 1848, to give a deed of trust on other property to secure the-appellees Seaman and Muir, can have no bearing on the deeds under consideration. They embrace other property. It does not appear that the other creditors had any notice of the agreement; and the failure of the debtor to give one creditor a deed of trust on specific property, does not even tend to prove a fraudulent intent in the execution of another deed, on other property, to secure all his creditors; the creditor in question being one of the class of preferred creditors.
I think the decree was erroneous, and that the same should be reversed, and the bill dismissed with costs.
The other judges concurred in the opinion of Allen, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481511/ | SAMUELS, J.
It is unnecessary in this case, to consider whether a personal representative, holding his appointment under .authority of foreign laws, if found in Virginia, can under all circumstances, be sued here in his official character. There is enough in the peculiar circumstances of this case to give jurisdiction to our courts. The appellant, the defendant below, resided in Virginia at the date of those transactions out of which this litigation arises: those transactions had their origin in this state. The bill alleges a case of fraud, and want of proper diligence against the appellant ; and upon that charge they predicate a claim merely personal and pecuniary. The appellant resists this demand, but admits that he is invested with the legal title to certain land lying in the state of Mississippi, and to certain choses in action payable in that state; the equitable title to all which, on certain *terms, enures to the benefit of complainants. It is not alleged by the appellant that creditors of Stratton’s estate in Mississippi or elsewhere, are in anywise concerned in the property in his hands; nor is it alleged by either party in pleading, or shown by proof, that the subject in controversy is affected in any degree by laws peculiar to the state of Mississippi; the case seems to have proceeded upon the theory that it was governed by the general principles prevailing in courts of equity. The appellant being within the jurisdiction of the court, full *417effect may be given to its decree by the exercise of its authority over his person. Thus the parties who are exclusively interested are before the court; they are at issue whether the appellant is liable to a demand of the appellees merely pecuniary, or whether he shall be held to be a mere trustee for their benefit, on equitable terms. The facts above stated bring the case within the jurisdiction of our courts. This conclusion is fully sustained by the decision of this court recently made in the case of Dickinson v. Hoomes’ adm’r, 8 Gratt. 353, upon a review of many decisions touching the question.
Passing from the question of jurisdiction to the merits of the case, we are met at the threshold, by the fact that such of the debts due Stratton’s estate in Mississippi, as give rise to this controversy, were either in a very precarious condition, or utterly insolvent. That due from King and Puckett was partially secured by a deed of trust on land and slaves. The land was about six hundred and sixty-six acres in quantity; and the witnesses differ as to its value; some of them estimate it at fifty cents per acre; others at prices ranging from fifty cents up to a dollar and fifty cents. The weight of proof, however, induces the belief that it could not have been sold for as much as fifty cents per acre, payable in specie or its equivalent. This land and the slaves conveyed by the deed *of trust, were in the hands of Samuel M. Puckett, one of the debtors: This party and John D. King, with whom he was bound, are proved to have been utterly insolvent. It is moreover shown that Puckett removed the slaves beyond the limits of the state of Mississippi, with the fraudulent intent to defeat the trust; and thus the security afforded by the slaves was destroyed. No attempt is made to charge the appellant on account of these slaves; it is therefore unnecessary to say more about them. The land, the only remaining security, was in the hands of Puckett, the fraudulent debtor. The trustees were Richard M. Hobson and William R. Crane; and Hobson is shown to have been insolvent. Such was the securitjE and such the means of making it available.
Powell having become the administrator on Stratton’s estate in Mississippi, caused the trustees to sell the land, and caused it to be bought in for the benefit of the estate at the price of four dollars twelve and a half cents an acre. That he bought the land with the view of benefiting the estate, and without any purpose of individual profit, is sufficiently shown by the proof. Powell assigns as a reason for buying the land, his anxiety to get it out of the hands of Puckett, and to prevent Hobson, the insolvent trustee, from receiving’the price, if it had been sold to another. He alleges moreover that the land was run up to the price of four dollars by Prtckett’s agent, with a view to defraud Stratton’s estate by means of collusion with Hobson, the trustee. There is no direct proof of this fraudulent intention ; however, considering the exorbitancy of the price of four dollars per acre, we have reason to believe there was no purpose of paying it in good faith.
Powell says nothing about the pecuniary condition of Crane, the other trustee, nor does he say whether, by the law of Mississippi, he would have been responsible *for money paid to his cotrustee Hob-son, or by him covinously released to the purchaser.
In view of the small intrinsic value of the land, and the utter insolvency of the debtors for all beyond that value, and the insolvency of Hobson the trustee, I am of opinion Powell did the best for the estate which could be done in the difficult circumstances in which he was placed. The land, the only available security, is saved to the estate; this was done at a price nominally far above its value, yet it was paid out of the debt due from King and Puckett, which was of no value; and the estate loses nothing thereby. If Powell, under the circumstances, had in some degree mistaken his duty, yet his great diligence and perfect integrity of purpose should exempt him from liability. The extraordinary embarrassment in the monetary affairs in Mississippi, at the .time of Powell’s administration there, would seem to require some relaxation of the rules governing the administration of estates there; at least, the administrator should not be held responsible when it appears that the ordinary course of administration would probably, not to say inevitably, have resulted in a greater loss. In this case the administrator acted wisely in buying the land, which would not, as far as we can now judge, have sold to another for more than fifty cents per acre, if so much, payable in a sound medium. I am of' opinion the appellant should not be held to a personal liability on account of his purchase of the land.
Another question between the parties is, whether Powell the appellant should be charged for his failure to dispose of the debt due from the Brandon Bank? The appellees take no exception on account of the fact that a portion of this debt accrued from receiving it indirectly in payment of a debt due from Richard M. Hobson above named, to Stratton’s estate. They insist, however, that Powell should be charged with *the market value of the Brandon Bank debt, which the commissioner fixes at ten per cent, of the nominal amount. He accordingly charges the appellant one hundred and ninety-six dollars and seventy-seven cents, that sum being ten per cent, on the Brandon Bank notes received on Hobson’s debt as aforesaid ; and the further sum of sixty-five dollars and twenty-two cents, that being ten per cent, on the principal and interest on the certificate of deposit made by Stratton in his life time in that bank.
The principle on which this claim is made, is in conflict with that on which the claim is made to charge the appellant in regard to the land. It is said in regard to the land, that he was going beyond his *418official duty in purchasing; yet it is said he should ' have sold this Brandon Bank debt,'whereas his official duty required the collection and not the sale of it. I am of opinion the appellant acted with prudence at the time in refusing to sell, although subsequent events have shown that if a sale could have been effected on any terms, it had better been made. The proof shows that the credit of the bank had fallen so low about the date of Powell’s qualification, that its paper was selling at a discount, which is variously stated by the witnesses to be from • eighty-five to ninety-five per cent. ; that it wtiuld have been very difficult, if not impossible, to have disposed of a large amount of it for specie even at that discount. The bank has''since fathed entirely ; and thus the debt is of no value. The appellant had been told, or others had been told, by the directors, that the bank would meet its liabilities; having as they said the means of doing so. Thus the alternative was presented, of selling, if a sale could be made, at a discount ranging from eighty-five to ninety-five per centum, or awaiting the chance of full payment. The appellant decided properly under the circumstances existing at the time; *and he should not be made to suffer because of subsequent events. If the circumstances could be reversed, that is, if the sale had been effected at the discount, and if the bank had become able to pay its debts, he would justly have been held responsible for the loss.
On the whole case, I am of opinion the appellees have shown no right to charge the appellant with any amount on account of the specific charges alleged. His diligence, discretion and perfectly g-ood faith give him a claim to the protection of a court of equity.
The land in the hands of Powell, and any rents and profits received by him, and the Brandon Bank debt, should be regarded as trust subjects, to be administered under the direction of the court, in the manner pointed out by the decree of this court.
The other judges concurred in the opinion of Samuels, J.
The decree was as follows:
The court is of opinion, that the said dei cree is erroneous; it is therefore adjudged, ordered and decreed that the same be reversed and annulled; and that the appellant recover of the appellee Ann Elizabeth Stratton, sometimes called Elizabeth Stratton, and William E. Royall the next friend of the infant appellees, the costs of the appellant expended in the prosecution of his appeal here. And the court proceeding to render such decree, as the Circuit court should have rendered, it is further decreed and ordered, that Benjamin H. Powell be held and treated as a trustee holding the land in the proceedings mentioned, and any rents and profits thereof by him received, and the debt due from the Brandon Bank, as a trust subject to be administered under the direction of the Circuit court. With the purpose of ascertaining the proper application of any funds arising from said ^subject, it is further decreed and ordered, that an account be stated between Benjamin H. Powell and the estate of Milner S. Stratton deceased, in which account said Powell shall be permitted to debit the estate with all reasonable disbursements made by him in Mississippi, with the view to protect the interests of the estate there; also with any money paid over to the executor or executrix in Virginia; also with the sum of one hundred and fifty dollars as a compensation for his second trip to Mississippi ; also with a reasonable commission on money due the estate and received by said Powell. In the said account the estate is to have credit for any money received by said Powell as administrator, and for the avails of the trust subject, which are to be paid to Powell, after deducting the costs of executing the trust. Upon the account so to. be taken, if the appellant shall be in debt to the estate, the several legatees of Milner S. Stratton deceased, may have decrees for the balance, ratably, in proportion of the amounts of their legacies. If, however, the administrator shall be in advance with the estate, the court does not deem it proper to give him a decree against the assets in Virginia.
The cause is remanded, to be proceeded in according to the principles herein declared. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481512/ | LEE, J.
The testator, who was a member of the Society of Friends, departed this life in the year 1834. By a codicil to his will, dated on the 7th of June 1834, after certain specific bequests, he directs the proceeds of his estate, which was to be converted into money, to be divided into three equal parts, and to be disposed of as follows: One-third for the benefit of his father during his natural life; one other third to be applied to the payment of a bond due his brother Thomas Maddox, or whatever sum might be due upon such bond; and the interest of the remaining third to go to his brother William G. Maddox during his natural life. At the death of his father, the third set apart for him to be returned to his estate, and disposed of according to his will. At the death of his brother William, the third “loaned” to him to be given to his daughter Ann Maria Maddox, “during her single life, and forever, if her conduct should be orderly, and she remain a member of Friends Society.” The codicil concluded with the following clause: “Furthermore, at the closing of all the above things, I wish to give and bequeath all the remaining part of my estate to my nearest relations that may be then living, and that shall be at that time members of the Society of Friends.”
After the death of the testator, and during the life time of her father, Ann Maria Maddox married the appellee Thomas Tiller, who was not a member of the Society of Friends, and thereby, according to the rules and discipline of the society, forfeited her right to membership. The appellee William Garland Maddox also left the society, but the time at which he did so is nowhere disclosed by the record.
*As Mrs. Tiller is claiming the benefit of the bequest in remainder to her after the death of her father, and as both she and Garland Maddox are claiming as two of the next of kin of the testator to participate in the residuum, we are called upon in this state of the case, to pass on the validity and effect of the two bequests in this codicil.
As l y the rules of the Society of Friends, a member who married out of the society thereby forfeited his membership, the effect of the bequest of the third in remainder to Ann Maria Maddox, was to restrict her to marriage with a member of the society. Upon her marriage, the estate given to her “during her single life,” would, according to the terms of the codicil, be determined; and if she married a person who was not a member of the society, she herself ceased to be a member, and was thus excluded from further enjoyment of the estate. The question then, as it respects the bequest of the third in remainder to Ann Maria Maddox, is as to the validity of such a restraint upon marriage under the circumstances disclosed in this case.
It will not be questioned that marriages of a suitable and proper character, founded on the mutual affection of the parties, and made upon free choice, are of the greatest importance to the best interests of society, and should be by all proper means promoted and encouraged. The purity of the marriage relation and the happiness of the parties will, to a great extent, depend upon their suitableness the one for the other, and the entire freedom of choice which has led to their union; and upon these, in their turn, in a great degree must depend the successful rearing of their children, and the proper formation and development of their character and principles. Hence not only should all positive prohibitions of marriage be rendered nugatorjq but all unjust and improper restrictions *upon it should be removed, and all undue influences in determining the choice of the parties should be carefully suppressed. Accordingly, in the civil law all conditions annexed to gifts and legacies which went to restrain marriages generally, were deemed inconsistent with public policy, and held void. Poth. Pand. lib. 35, title 1, n. 35; (Dig. xxxv, tit. 1, 1. 22, 64, 72. This doctrine has been introduced into the English law with certain modifications, suggested by a disposition to preserve to parents a just control_ and influence with their children, and the means of protecting youthful persons against the said consequences of hasty, unsuitable or ill assorted marriages. Conditions, therefore, in restraint of marriage, annexed to gifts and legacies, are allowed when they are reasonable in themselves, and do not unduly restrict a just and proper freedom of choice. But where a condition is in restraint of marriage generally, it is deemed to be contrary to public policy, at war with sound morality, and directly violative of the true economy of social and domestic life. Hence, such a condition will be held utterly void. 1 Fonbl. Eq. lib. 1, ch. 4, § 10, n. q. 255; Godolph. on Leg. part 1, ch. 15, § 1, p. 45; Harvey v. Aston, 1 Atk. R. 361; Scott v. Tyler, 2 *420Bro. C. C. 431, 487; S. C. 2 Dick. 712, 721; 2 Lomax Ex. 80; Keily v. Monck, 3 Ridgw. Parl. R. 205; Hoopes v. Dundas, 10 Pen. R. 75; 1 Eq. Cas. Ab. 110; Rishton v. Cobb, 9 Sim. R. 615, 16 Eng. Ch. R. 616; 2 White and Tudor’s Lead. Cas. in Eq. part 1, p. 280, n.
In Elizabeth Castle’s Case, Law Jurist, December 1846, the vice chancellor declared, in general terms, that “limitations in restriction of marriage, were objectionable:” and in Long v. Dennis, 4 Burr. R. 2052, Lord Mansfield said, “Conditions in restraint of marriage are odious, and are therefore held to the utmost rigor and strictness. They are contrary to sound policy. ’ ’ And accordingly, even in those cases in which ^restraints of a partial character may be imposed on marriage, as in respect of time, place or person, they must be such only as are just, fair and reasonable. Where they are of so rigid a character, or made so dependent on peculiar circumstances, as to operate a virtual though not a positive restraint on marriage., or unreasonably restrict the party in the choice of marriage, they will be ineffectual and utterly disregarded. Thus, a condition in restraint of marriage excluding men of a particular profession, has been held void. 1 Equ. Ca. Ab. 100. So a contract not to marry within six years is void because it tends to discourage marriage. Hartley v. Rice, 10 East’s R. 22. So a covenant with a woman not to marry any other person, has been held not to be binding. Love v. Peers, 4 Burr. R. 2225. So a condition annexed to a legacy to a daughter, forbidding her to marry any man who had not a clear unincumbered estate in fee or freehold perpetual, of the yearly value of five hundred pounds, was declared by the lord chancellor to be worthy of condemnation in every court of justice: and it was held void as ieading to a probable prohibition of marriage. And Judge Story lays it down, that restraints in respect of time, place or person, may be so framed as to operate a virtual prohibition upon marriage, or at least upon its most important and valuable objects; and he illustrates by a condition that a child should not marry till fifty years of age; or should not marry any person inhabiting in the same town, county or state; or should not marry any person that was a clergyman, a physician, or a lawyer, or any person except of a particular trade or employment; all of which, he tells us, would be deemed mere evasions of the law. 1 Story’s Eq. Jur. I 283. In these he seems to be borne out by the opinion of Lord Chancellor Clare, in Keily v. Monck, ubi supra.
Eollowing these principles and the cases I have *cited for my guide, and looking to the facts- in proof in the cause, I cannot avoid coming to the conclusion, that the condition imposed by the bequest of the third in remainder to Ann Maria Maddox, which in effect forbade her to marry any other than a member of the Society of Eriends, was an undue and unreasonable restraint upon the choice of marriage, and ought to be disregarded. It is in proof, that when she became marriageable, the number of Quakers in the county of Hanover, in which she resided, and the vicinity, was small, and that it had been since diminishing. There were not within the circle of her association, more than five or six marriageable male members of the society, according to one of the witnesses, or .three or four, according to another ; and the probability is, as stated by one of the witnesses, the restriction imposed by the condition would have operated a virtual prohibition of her marrying. To say there were .members of the society residing in other counties, is no answer to the objection. She certainly could not be expected, if she had the means, which it seems she had not, to go abroad in search of a helpmate; and to subject her to the doubtful chance of being sought in marriage by a stranger, would operate a restraint upon it far more stringent than those which are repudiated in the cases and illustrations which I have already cited.
The case of Haughton v. Haughton, 1 Molloy 612, 12 Cond. Eng. Ch. R. 295, has been cited in support of the restriction in this case. But that case and the case of Perrin v. Lyon, 9 East’s R. 170, where the condition was not to marry a Scotchman, which is relied on by the lord chancellor as decisive, were cases of devises of realty; and there is a well settled distinction between them and bequests of personalty, such as is the present case. The former are governed by the rules of the common law, and the rules of the ecclesiastical courts which control bequests of personalty, *are regarded as inapplicable. 2 Pow. on Dev. 282; 1 Jarm. on Wills 836; Harvey v. Aston, 1 Atk. R. 361; Reynish v. Martin, 3 Atk. R. 330; Stackpole v. Beaumont, 3 Ves. R. 89; 1 Fonbl. Eq. ch. iv, § 10, n. q, p. 258. Moreover, it may well be questioned how far a decision upon such a question in a country already overstocked with inhabitants, is applicable to a country like ours, with an unbounded extent of territory, a large portion of which is yet unsettled, and in which increase of population is one of the main elements of national prosperity. Nowhere can the policy of repudiating all unnecessary restraints upon freedom of choice in marriage apply with more force than among a free people, with institutions like ours, and in the circumstances by which we are surrounded. For this reason, and for another that will be presently adverted to, I should not feel disposed to follow the decision referred to, if it were even more strictly applicable to this case.
But treating the condition annexed to the bequest in remainder to Ann Maria Maddox, as a partial restraint upon marriage, by requiring her to marry (if she married at all) a member of the society, on pain of forfeiting her membership and the benefit of the bequest, if she married one who was *421not, there is another and distinct ground upon which it will be disregarded. There is no bequest over of the third thus given to her in case of her breach of the condition ; and the condition therefore will be treated as in terrorem merely, and the legacy becomes pure and absolute. 1 Roper Leg. ch. 13, § 1, p. 654; Garret v. Pritty, 2 Vern. R. 293; Wheeler v. Bingham, 3 Atk. R. 364; Lloyd v. Branton, 3 Meriv. R. 108, 117. Nor will the residuary clause be regarded as equivalent to a bequest over. To render the condition effectual, there must be an express bequest over on breach of the condition, or a special direction that the forfeited legacy shall fall *into the residuum. 1 Jarm. on Wills 841; Scott v. Tyler, 2 Dick. R. 723; Wheeler v. Bingham, 3 Atk. R. 364; Keily v. Monck, 3 Ridgw. P. C., 205, 252; Lloyd v. Branton, 3 Meriv. R. 108; McIlvaine v. Gethen, 3 Whart. R. 584.
There is yet another view, which is also equally applicable to the bequest of the residuum, in which the restriction imposed on the bequest of the third in remainder to Ann Maria Maddox, should be held to be void and ineffectual. And the case must be considered in this aspect, because upon the results to which we are brought upon such consideration, must depend the claim both of Mrs. Tiller and Garland Maddox to participate in the residuum. It is insisted by the counsel, it is true, that there is no proof of disorderly conduct on the part of Mrs. Tiller, nor that she has ever been actually disowned as a member; or if she have been, that she might still be reinstated ; and as she has applied for and done all in her power to gain such readmission, but has been refused by the society whose action she could not control, she should be regarded as having complied with the condition prescribed, cypres, and should now be exempt from the disability which it creates. And as to Garland Maddox, it is urged that there is no proof he is not a member, and as he once was a member, it should be presumed that he still remains such until proof be given to the contrary. But the pretensions of these parties cannot be sustained on these grounds. Mrs. Tiller’s conduct was disorderly in the sense intended by the testator, in marrying' one who was not a member of the society, contrary to its rules and discipline. In their answer, she and her husband say distinctly that she had left the society; and the fact of her applying for reinstatement sufficiently implies that she had been disowned and excluded. Her application for readmission, however, was not successful, but was rejected *because the “Monthly Meeting” distrusted the motives by which it was prompted. She is not, therefore, and has not been a member of the society since she was disowned upon her marriage, which took place some time, probably several years, before the death of her father. And as to Garland Maddox, the bill charges that he was not a member of the society, and on that account was not entitled to participate in the residuum under the clause of the codicil by which it is disposed of. Garland Maddox in his answer does not pretend that he is a member, nor does he make any claim to participate as such. He rests his claim upon the ground that he is one of the next of kin, and that the restriction of the benefits of the bequest to such of them only as should be members of the “Society of Friends,” a body unknown to the law, is illegal and void. And he swears to his answer in the usual mode, instead of making a solemn affirmation, which it is understood is the universal usage with the members of the Society of Friends.
It will not be denied that one of the most marked and distinctive features of our civil institutions, is the perfect, absolute and unqualified freedom of opinion in matters of religion which they secure to all who dwell under them. Unjust encroachment upon the rights of conscience, in no inconsiderable degree, gave impulse to the early immigration from the EJuropean continent to this, in the hope that upon this new and virgin soil might' be enjoyed that full and unquestioned freedom of opinion in matters of religion which was seemed a part of the natural rights of man, but which was denied to him in the old world. It was the spirit of resistance to such encroachment which filled the sails of the May Flower, and wafted her, with the Pilgrim Fathers upon her decks, to their landing on Plymouth rock. .It was the same spirit which brought Huguenots to Virginia and to South Carolina, Catholics *to Maryland, Quakers to Pennsylvania, and Presbyterians to several of the colonies. Hence, nothing was more natural or more certain than that when the separation took place from the British crown, and the state of colonial dependence was replaced by a separate and independent government, the rights of conscience and freedom of opinion in matters of religion, should have a prominent and well assured place in the new institutions. Thus we see the sixth article of the constitution of the United States provides that no religious test shall ever be required as a qualification to any office or public trust under the United States. And the first article of the amendments to the> constitution declares, that congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. So the sixteenth section of the bill of rights of Virginia, passed unanimously in convention on the 12th of June 1776, adopted by the convention of 1829-30, and again by that of 1850-51, declares “that religion or the duty we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience ; and that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other.” And again: By the act for establishing religious *422freedom, passed in 1785, the natural rights of mankind upon this subject are set forth and asserted to their fullest extent, and in their widest comprehension, and provision made to hold them sacred, and to give to them their fullest effect. Again: By the amended constitution of 1830, article 3, 2 11, and also by that of 1851, article 4, | 15, it is declared that, “no man shall be compelled to frequent or. support any religious worship, place or. ministry whatsoever, nor shall any man be enforced, restrained, molested *or burthened, in his body or goods, or otherwise suffer on account of his religious opinions or belief: but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise affect, diminish or enlarge their civil capacities. And the general assembly shall not prescribe any religious test whatsoever, or confer any peculiar privtheges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society or the people of any district within this commonwealth to levy on themselves or others any tax for the erection or repair of any house for jpublic worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor and to make for his support such private contract as he shall please.” And to guard the legislation of the state against any clerical or sectarian influence, by both of these constitutions, all ministers of the gospel and priests of any religious denomination are declared to be incapable of being elected members of either house of assembly. Constitution 1830, article 3, | 7; constitution 1851, article 4, § 7. Other provisions of our law might be cited, all showing the studied purpose on the part of our law givers to guard carefully the rights of conscience, and to hold them sacred and inviolate.
I take it, then, that upon no subject is the policy of our law more firmly settled, or more , plain, clear and unmistakable than upon this, and that all contracts and all conditions to the same or to gifts or legacies the effect of which is to thwart and violate this policy, should be held to be utterly void and ineffectual. .And I regard a restriction imposed by the terms of a bequest, requiring as the condition of its enjoyment, that the legatee should be a member of any religious sect or denomination, as directly violative of this policy, and pregnant with evil consequences. It holds out a ^premium to fraud, meanness and hypocrisy; it tends to corrupt the pure principles of religion, by holding out a bribe for external profession and conformity to a particular sect; and however pure and honest the motives of the beneficiary may be, he is yet rendered an object of distrust and suspicion ; and we see in this case that although no other “disorderly” conduct than marrying out of the.society was imputed to Mrs. Tiller, yet her application to be reinstated was rejected, because, in consequence of the condtion annexed to the bequest in her favor, the meeting took up the impression that it was prompted by unworthy and mercenary motives; it hampers the conscience, holds out inducements to stifle its voice and to resist the force of reason and honest conviction; it tends to destroy true religion, and to replace it with what is false and counterfeit; and, in short, it tends to promote all or most of the evils so forcibly denounced in the preamble to the act already cited. See the opinion of Bord Eldon upon a similar subject, in Kircudbright v. Kircudbright, 8 Ves. R. 51.
In England, as we know, the established church constitutes an element, and a material element, in the government; and different ideas and a different sentiment prevail. With these the judges in that country must necessarily be deeply imbued. Of this we have an illustration in the case of Haughton v. Haughton. The lord chancellor thought the restriction good, but had some hesitation about it, which induced him to offer to send the case to a court of law on the point. The doubt was not whether the condition did not impose an unreasonable restraint or an improper restriction upon freedom of choice in marriage, but whether it was not void because it in.effect forbade marriage with .a member of the established church. And if there be other cases which, like that just referred to, appear to favor the validity of such a restriction, I do *not feel disposed to follow them as authority; and however it may be in England, I think such restriction here is contrary to the genius of our institution, to the spirit of our government and to the policy of our laws, and as such is utterly nugatory, and should be held for nought.
It may be said, however, that as the restriction in the residuary clause is in the nature of a condition precedent, no estate can vest, if it be not complied with, whether it be valid or void. This is undoub tedly true in reference to devises of real estate with a precedent condition in restraint of marriage; for though void, yet if it be not complied with, no estate rises in the devisee. If it be a legacy of personal estate, however, under like circumstances, the legacy will be held good and absolute as if no condition whatsoever had been annexed to it. ' 1 Story’s Eq. Jur. 'i 289. And there would be every reason for applying the same doctrine to a restriction like that in this case. But the question is wholly immaterial here; because, if the restriction be held void, it is of no consequence whether the bequest fail or take effect, for either way the residuum goes to precisely the same parties and in the same proportions, the only difference being that in the one case they take as distributees, in the other as legatees.
There are other difficulties attending the restriction annexed to this residuary clause, which render it questionable, if it do not involve so much of ambiguity and uncertainty as to the subject and the time of dis*423tribution, and the objects of the gift, as may render it void for that cause. If indeed we may discard the idea of time in construing the expressions, “at the closing of all the above things,” 1‘that may be then living, and that shall be at that time members of the Society of Friends,” and yielding to the disposition in favor of vesting estates, can refer the time at which *the gift is to take effect'to the death of the testator, then no difficulty could occur: for at that time Mrs. Tiller was still a member of the Friends Society; and in the absence of proof we might also infer, that Garland Maddox was also still a member: and so no question could arise. But I think this cannot be done, because the testator seems plainly to have contemplated some period after his death at which the bequest was to take effect. What, then, was the period intended by him? The balance of the third not needed to pay the debt to Thomas Maddox, might be ready for distribution many years before the third given to the father for life would fall in upon his death. Would the former be distributed when it was ready, or would it be held up till the death of the father, and one distribution be made of the whole at that time? If the former, and the third given to the father for life, were to be the subject of a separate division upon his death, then a different class might come in at the first division from those who would be entitled at the second, because some of those embraced by the bounty, who were members of the society when the first division should take place, might cease to be so before the period arrived for the second. If one distribution of the whole is to be made, then the part remaining of the third, after paying the debt to Thomas Maddox, must be held up till the death of the father, that it may be ascertained which of the next of kin were members of the society at that time. And how is the court to determine the question of membership? Religious societies, we know, are subject to schisms leading to a complete separation, and the formation of new and distinct societies. They have occurred in the Society of Friends. A schism in the society in England in 1801, which led to the formation of a new society called New Eights by the old society. So stated in Haughton v. Haughton, ubi sup. *In this country a separation took place some years since, between those who were called Hick-sites, after the mover of the secession, Elias Hicks, and those who called themselves the Orthodox Quakers. Both societies claimed to be the true orthodox sect, and each repudiated the claims of the other. If the court were called on in case of such a division to say which was the true orthodox society, how would it determine between the conflicting claimants?
I shall not enter upon these enquiries, because, for the reasons I have already given, I think the Circuit court did right in treating the restrictions in the codicil as inoperative and void : and I am therefore of opinion to affirm the decree.
The other judges concurred in the opinion of Eee, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481635/ | Daniel, J.
I think it is quite clear, that the Circuit court committed no error in overruling the motion to arrest the judgment. Had the fact, upon the assumption of which the motion was grounded, namely, that the parties defendant to the action “ were residents of other and different states than Virginia,” been fully proved, it would have presented no reason for arresting the judgment. No question of jurisdiction arising upon such supposed fact could he-made, except by plea in abatement offered before the defendants had pleaded in bar. Code, ch. 171, § 19, p. 648.
It seems to me, also, free from serious doubt, that we are precluded, by the state of the record, from reviewing the action of the Circuit court in overruling the motion for a new trial,' on the score of the verdict being contrary to the evidence. In the bill of exceptions to the judgment of the court overruling this motion, there is no certificate of the facts proved, or of the evidence given on the trial; the bill is silent as to the facts and evidence on which the verdict was founded, and makes no direct reference to the only bill of exceptions in which any portion of said facts or evidence is certified, namely, the bill of exceptions to the ruling of the court, refusing to give certain in*133structions prayed for by the plaintiffs in error, and giving other instructions. It is true, that in the first mentioned bill of exceptions, the motion to set aside the verdict is stated as being for the causes s “ 1st. That the verdict was contrary to the evidence s 2d. That the instructions given by the court were erroneous : And 3d. On newly discovered evidence.” And it is argued, that as the only instructions of the court, of which mention is made in the cause, are contained in a bill of exceptions which has a certificate of the evidence on which the motions of the parties and the rulings of the court, in regard to the instructions, were founded, there arises a necessary implication of an intention to refer to said certificate as a means not only of testing the correctness of the rulings of the court in regard to the instructions, but of determining also whether the verdict was or was not contrary to the evidence. I do not perceive the necessity of such an implication; but, were we to concede that there was the implied reference contended for, I do not think the concession would be of any avail to the plaintiffs in error. By such a reference merely, the certificate of the evidence on which the instructions were asked, could not be substituted for the certificate of the facts or evidence in the cause, which it is necessary, for a party complaining of a verdict, to obtain, in order to have a judgment overruling his motion to set aside a verdict as contrary to the evidence, reviewed in an appellate court. In a bill of exceptions to the ruling of a-court refusing to give instructions, it is only necessary for the exceptor to set out so much of the evidence, or to state the tendency of so much of the evidence as is essential to show the relevancy and applicability of the instructions to the case. To such an extent only does such a bill of exceptions generally undertake to give a history of the proofs in the cause. *134It may, and sometimes does set out fully all the evidence of either side, down to the period of the ruling of the court, objected to; yet, as instructions may be, and often are prayed for, and given or refused before, the testimony is closed, such a bill of exceptions cannot, of itself merely, be relied on as a complete statement of all the facts or all the evidence on which the jury rendered their verdict. It could not be so relied on, even though it should in terms purport to be a statement of “all the evidence in the cause,” as was the case in Brooke v. Young, 3 Rand. 16; for the reason stated by the court in that case, that “although the evidence stated in the bill might be all when it was sealed, there might be other important facts brought forward afterwards.” For these reasons, the supposed implied reference to the certificate in question could not justify us in regarding it as a certificate of all the evidence in the cause. No reference could produce that effect which did not, in express terms, or by the clearest implication, show that such certificate was referred to and adopted, not merely as a statement of all the evidence given in at the time of its being made, but as a statement of all the evidence before the jury at the time of rendering the verdict.
The question which it would seem most proper to consider next, is, whether there is such a record of the exceptions of the plaintiffs in error to the ruling of the court in respect to the instructions, as warrants us to pass upon the propriety of such ruling. There are three papers sent to us as constituting parts of the record, which purport to be bills of exceptions taken by the plaintiffs in error to opinions of the court given against them in the cause, to wit, a bill of exceptions to the ruling of-the court, refusing certain instructions and giving others (the one immediately under consideration);^ bill of exceptions to the opinion of the court *135overruling the motion for a new trial, and a bill of exceptions to the judgment of the court overruling the motion in arrest of judgment.
The verdict of the jury was rendered on the 81st of November 1855. Immediately succeeding the entry of the verdict is the following: “ And thereupon the defendants moved the court to set aside the said verdict and grant them a new trial herein. But because the court was not then advised of its judgment to be given in the premises, time was taken to consider thereof.” Immediately succeeding this is a statement by the clerk as follows: “ The following is a bill of exceptions to an opinion of the court given against the defendants aforesaid, on the said 21st day of November 1855, but which' was not received by the clerk till the 12th day of February 1856.” The bill of exceptions is then set out, commencing with the following caption : “ Be it remembered, that on the trial of this cause, the counsel of the plaintiffs introduced the following evidence.” The bill proceeds to set out certain written statements of the admissions of the parties, letters, accounts, interrogatories, and answers thereto; and after so doing, states “and here the plaintiffs,rested their case.” It proceeds then to recite that the defendants introduced certain evidence (setting it out) “ and rested the case.” “The counsel for the defendants (in the language of the bill) then moved the court to instruct the jury as follows.” The. instructions are set out, and the recital proceeds, “And the plaintiffs moved the court to instruct the jury as follows.” The instructions are set out, “ And the court (in the language of the récital) refused to give the instructions moved by the defendants and to give the instructions moved by the plaintiffs, but instructed the jury that,” &c. After stating the instructions given by the court, the bill concludes, “ To which opinion of the court *136refusing their said instructions, and giving the instructions aforesaid, the defendants except, and pray that this their bill of exceptions may be signed, sealed and reserved to them ; which is done accordingly.”
Immediately succeeding the bill of exceptions is the following entry: “ And now at this day of the same term last mentioned, to wit, Tuesday the 12th day of February 1856 (being the same day and year first hei'ein mentioned),- came again the parties aforesaid, by their attorneys; and thereupon the court having maturely considered the motion of the defendants to set aside the verdict of the jury in this cause, and to grant them a new trial of the same, doth overrule the said motion. Whereupon the defendants moved the court to correct (which ought to be, doubtless, to arrest) its judgment upon the said verdict; which motion was also overruled.”
The judgment is then given, and at the foot of it is the following: “ Memorandum. The defendants aforesaid, by their attorney, this day excepted to two opinions of the court given against them, and tendered their bills of exception thereto: and also tendered a bill of exceptions to an opinion of the court given against them on the 21st day of November 1855: which bills were reserved, signed and sealed by the court, and ordered to be made parts of the record in said cause. And the two first mentioned of said bills are in the words and figures following, to wit.” The bill of exceptions to the opinion of the court refusing to grant the new trial, and the bill of exceptions to the opinion overruling the motion in arrest of judgment, are then set forth.
It is proper to add here (what ought perhaps to have been stated before), that the transcript of the record is -headed as follows: “Pleas before'the Circuit court of the city of Richmond for the trial of civil causes, *137field at the state court-house in the said city, on Tuesday the twelfth day of February in the year one thousand eight hundred and fifty-six.”
We judicially know that the November term of the Circuit court aforesaid might continue for such a space of time as would include the 21st day of November 1855, and 12fch day of February 1856. We find no difficulty, therefore, in construing the involved and apparently self-contradictory entry following the bill of exceptions, as meaning to indicate that the day on which the final judgment was rendered, to wit, the 12th day of February 1856, was the same with that, as of which the transcript is entitled, that being “the same day and year first herein (that is, in the record) mentioned ;” and that said day was a day of the term at which the verdict was rendered, the said term being “ the same term last mentioned” in the record.
From this view of the record, it seems to me that there exists no valid objection to the bill of exceptions, growing out of the time of its being recorded, sealed and made a part of the record. According to our practice, it is not necessary that a bill of exceptions should be tendered immediately on the transpiring or happening of the action of the court to which a party excepts. It is true, that when the character of the exceptions is such that little delay is occasioned by the preparation of the bill of exceptions, it is sometimes immediately prepared and disposed of; and in such case, a memorandum of the transactions is usually made in the minutes of the proceedings of the day. But as iu a great number, perhaps a majority of cases, serious delay and inconvenience would result from stopping the progress of the trial to prepare bills of exceptions to the rulings of the court, a practice, sanctioned by long usage, has prevailed, for the counsel desiring to except to any opinion of the court given against them on the trial, simply to state *138to the court that they intend to save the point, and ask the court to note the exception, and afterwards during the term to prepare the bill of exceptions, and tender it to the court for its signature. Such was the practice which prevailed under our law of 1819, which follows substantially the provisions of the statute of Westm. 2, 13 Edw. 1, ch. 31. I do not think that any such change in the law has been introduced by the 8th section of chapter 177 of the present Code, as requires us to declare that such a practice is no longer to be allowed. The bill of exceptions in question having been tendered and signed not only at the same term at which the verdict and judgment were rendered, but at the time of the rendering of the judgment, was, it seems to me, clearly in time.
The important difficulty, however, in respect to the bill of exceptions here, arises not out of the time of its being tendered and sealed, but out of the fact that neither in the bill itself nor in the entry of its being made a part of the record, is there any distinct averment of the fact that the exception to the opinion of the court refusing the instructions, was taken at the time of the rendering of the opinion, or indeed at any time before the verdict was rendered.
The presence of this last mentioned fact is essential to entitle a party relying on a bill of exceptions, to claim any benefit from his bill. It is incumbent on him to show that he saved the point or took the exception in the manner already indicated, or in some more solemn form, either at the time when the opinion of which he complains was given,'or at least before the verdict of the_jury was rendered. In the absence of such showing,jjustice to his adversary would require that he should be held to have yielded to said opinion. It is not just or reasonable that he should be allowed to take his chance before the jury, and in the event of defeat, then to deprive his successful op*139ponent of the benefits of the verdict by an exception, which, if insisted on during the trial, might have been met and counteracted by the latter.
It seems to me, however, that the plaintiffs in error, notwithstanding the omission of the record to state expressly and directly that the exception was taken at the trial, have yet shown, with satisfactory certainty, that such was the fact. For whilst neither the bill of exceptions nor the memorandum of its being made part of the record, contains a positive averment that the exception was insisted on during the trial before the jury, they do not, in my opinion, when read together, amount to an averment inconsistent with the existence of such a fact. The most that can be said of the effect of the two statements taken together, is that it leaves it somewhat in doubt whether such was or was not the fact. A legal and satisfactory explanation of this doubt in favor of the existence of the fact, I think, arises out of evidence afforded by other portions of the record, and certain presumptions springing from the very nature of the transaction.
We have seen that the memorandum at the foot of the judgment, in speaking of the bills of exceptions to the opinions of the court overruling the motion for a new trial, and the motion in arrest of judgment, says, in respect to them, that the defendants “ this day excepted to two opinions of the court given against them, and tendered their bills of exception theretobut when it comes to speak of the bill in question, it says, “ and also tendered a bill of exceptions to an opinion of the court given against them on the 21st of November 1855.” From the marked difference of the terms used in reference to the first two bills, from those used in reference to the bill in question, there arises an inference, little inferior in force to an express negative of the fact, that the exception to which the last bill refers was made at the time of the entry. Why say. in *140respect to the first two, that the defendants this day excepted, &c. and tendered their bills, &c., and of the bill in question, merely that they tendered a bill to an opinion given before, if there was not a purpose to convey the idea that the exception to said opinion was not taken on that day ?
The last day preceding that mentioned in the record, is the day on which the trial was had and the verdict given; and when we look to the bill of exceptions, we see that the defendants did except at some period of time: And it seems to be conceded, that if the bill in its conclusion had spoken in the past instead of the present tense; had used the terms “ excepted and prayed,” instead of saying “ except and pray that those terms, taken in connection with the memorandum aforesaid, and all the recitals of the bill, would have shown sufficiently that the exception was taken at the time of the ruling of the court in respect to the instructions.
I do' not think that the mere circumstance that the party, in reciting the fact of his excepting to the opinion of the court, has adopted the present instead of the past tense, should work the important result of making the bill conclusive proof that the exception was not taken till after the verdict. In drafting the bill, the slightest inadvertence might cause the one expression to be used instead of the other. The bill of exceptions may have been prepared at the time of the trial, though not tendered to the judge for his signature till the time of the rendering of the judgment; and in such case, the language might have been very properly used.
We have seen that the verdict was immediately followed by a motion for a new trial; which the court took time to consider. The bill of exceptions in question may, though perhaps then ready, have been withheld to await the action of the judge on the motion *141{for a new trial, which, if granted, would dispense with the signing and recording the bill of exceptions. There is always a strong presumption that the judge would not sign a bill of exceptions to an opinion given on the trial, unless the exception was taken in time; and as the bill of exceptions here was filed at the time of the rendering of the judgment, when, as appears by the amendments of the record, the defendants in error were present by their attorneys, we have a still further presumption, and one of great force, in favor of the conclusion that the exception must have been taken at the proper time, and that all was rightly done in respect to the bill, arising from their failure to object to its being received and entered.
Little aid in determining the question under consideration is derived from a reference to the decisions of other states; as each state has moulded for itself, either by statute or the decisions of its courts, a practice in the matter of bills of exceptions, varying in a greater or less degree from the practice observed in any other state. The case of Harlow v. Humiston, 6 Cow. R. 189, ¡however, seems to me to furnish strong persuasive authority in favor of the bill of exceptions in this case. In that case an exception was taken by the defendant below to a charge by the court to the jury. The bill of exceptions, after stating the charge, concluded thus: “ The jury retired, and returned and delivered their verdict in favor of the plaintiff for fifty dollars damages. To all which charge the counsel for the defendant excepted.” ^By the laws and practice of New York it was necessary that the exception to the charge should have been taken before the verdict of the jury was rendered, and it-was obvious that there was doubt, from the conclusion of the bill, whether the exception bad been taken before or after verdict; and an objection to the bill was urged on that score. The objection in the appellate court was overruled, the chief *142justice, Savage, in rendering the opinion of the court, remarking, “ It is objected that the exception cam© too late, and that it is too general. We must presum© it was taken in time; otherwise, the court would not have allowed it.”
I do not think that under the circumstances of this case we should violate any rule or incur any hazard of doing injustice to the defendants in error, by adopting a similar course here. A bill of exceptions^ it is true, is a part of the record, and may not be contradicted by evidence extrinsic of the record. Still, it is not an essential portion of the regular and necessary history of the steps in a cause, its whole purpose being to bring into the record matters of which the account of the ordinary proceedings would otherwise take no notice. It is made a part of the record only at the instance of counsel; and the counsel and court concur in making it up. When, therefore, on comparing a bill of exceptions with the entry of its being received as part of the record, and other portions of the record, such a doubt arises as we have here-, J- think that the expressions out of which the doubt arises may be construed in reference to the circumstances shown by the record to have existed at the time the bill was tendered and received. The bill here having been tendered before or at the time of rendering the judgment, when, not only according to all presumption independent of the record, but also according to the averments of the record, the defendants in error were present by attorney, I am of opinion that the presumptions arising from this state of facts, taken in connection with the other considerations already adverted to, justify and require such an interpretation of the ambiguous expressions in the record as will sustain the validity of the bill. In cases where the bills of exceptions to rulings at the trial are not tendered till at some day subsequent to that on which the final judgment is *143rendered, I think that a more rigid rule should be ob•served, In such cases, the record ceasing to afford any longer evidence of the continued presence of the opposing party or his counsel, I think that a party, who may have thus delayed to tender his bill, should be held to show, by averments of the record, free from reasonable doubt, that the exception was taken at the time of the ruling of the court excepted to, or at least before the finding of the verdict by the jury.
The rulings of the court in regard to the instructions being thus, as I conceive, properly before us for review, I shall proceed briefly to consider them. And it seems to me that the court did not err in refusing to give the first instruction prayed for by the plaintiffs inf error. The declaration did not charge that they had been guilty of any want of diligence; did not impute to them any negligence in the transmission of the message ; and there was no question of negligence before the jury. “
I think that the court also properly refused to give the second instruction asked by the said plaintiffs in error. If the company, by reason of their having sent to Messrs. Smith & Co., the factors of the defendants in error, a message to purchase a larger quantity of cotton than the quantity mentioned in the message which the company were authorized to transmit, had rendered themselves liable to relieve the defendants in error of any excess of cotton purchased by their factors, in pursuance of the first mentioned message, no reason is perceived why the company was not equally bound to relieve them of all loss or obligation by them incurred on account of the accustomed and reasonable commissions of their factors, charged for effecting the purchase. And upon the supposition, therefore, that Smith & Co. would have been bound to accept, in behalf of their principals, an offer by the company, or an agent of the company, to pay all the costs and *144charges of the purchase of such excess, including the commissions aforesaid, on receiving such excess, or else release the company from any responsibility the said company were under to the defendants in error for having transmitted a wrong message, they were not bound to accept any offer of the kind which did not include the commissions aforesaid.
In respect to the rulings of the Circuit court in refusing to give the third instruction asked by the plaintiffs in error, and in giving the instructions which it did give, it was, I think, the duty of the defendants in error, as soon as they were apprised of the.mistake or alteration in their message, and of the purchase, by their factors, of the two thousand and seventy-eight bales of cotton, if they intended to hold the company responsible for the excess of cotton over the five hundred bales, to have notified the company of such in’tention; to have made a tender of such excess to the company on the condition of its paying the price and all the charges incident to the purchase, and to have also further notified the company, that in case-of its refusal to accept said tender, and comply with its conditions, they would proceed to sell such excess at Mobile, and after crediting said company by the net proceeds, would look to it for the difference between the amount of such proceeds and the cost of the excess, including all proper charges : and on the failure of the company, after notice, to accede to their offer, they ought to have proceeded to act accordingly. I do not think that the duty of the defendants in error, upon such failure of the company, in respect to the disposition of the five hundred bales of the excess, two hundred and eighty-four bales of which the testimony tends to show was on shipboard, and two hundred and sixteen under a contract of affreightment, varied substantially from their duty in this regard respecting the one thousand and seventy-eight bales *145which they proceeded to sell at Mobile. The principles and rules regulating the subject, required, as I conceive, a sale of said five hundred bales also at the ¡nearest market (Mobile), to be taken by the purchaser or purchasers as it stood, namely, two hundred and eighty-four bales as on shipboard, and two hundred and sixteen bales as under a contract of affreightment.
The defendants in error had no right to subject the company to the hazards attendant upon sending the cotton to a foreign market. The loss (if any) which they had incurred on the said five hundred bales at the time of the refusal of the company to relieve them of the excess of cotton purchased, was the difference between the cost, including all proper charges, and its then present net value. Notwithstanding the refusal of the company to relieve them of the excess, or to have any thing to do with it, they had no right to subject the company to the hazards of any greater loss. These views are, I think, fully sustained by the principles to be deduced from the cases of Sands & Crump v. Taylor & Lovett, 5 John. R. 395; Cornwal v. Wilson, 1 Ves. sen. R. 509; Kemp v. Pryor, 7 Ves. R. 237; Chapman v. Morton, 11 Mees. & Welsb. 533; and the doctrines on the subject stated in Paley on Agency, ch. 1, § 7. The only doubt on tbe subject, arising from the consideration of these authorities, is whether the defendants in error, notwithstanding their notice to the company of their purpose to send on the five hundred bales, and hold it responsible for the loss that might arise, and the company’s refusal to take it off their hands, have not, by sending the cotton to Liverpool instead of selling at Mobile, lost all right to recover of the company for the loss which might have been sustained on the said five hundred hales in case it had been sold in Mobile. I do not think, however, that if the defendants in error sent on the cotton, with the intention not of taking to themselves the profits *146which might arise from a sale of the said five hundred bales in Liverpool, but of indemnifying themselves out of the proceeds of sale to the extent of' the costs and obligations incurred by them by the purchase, they thereby, in the event of a still greater loss growing out of sending the cotton to Liverpool, lost any right they may have had to recover of the company for the loss that would have been sustained had the cotton been sold at Mobile, on the refusal of the company to relieve them of the excess.
On the other hand, if the defendants in error sent the five hundred bales aforesaid to Liverpool for purposes of speculation, with the intention of taking to themselves the profit in the event of a profit, and in the event of a loss, of visiting the loss on the company, the case in respect to said five hundred bales would, I think, be different. They could not claim all the benefits of a complete ownership of the property, and in case of a loss, demand of the company to make good the loss. Parties thus situated, if they do not abandon the property, cannot, in case they mean to sue for damages, go further, in dealing with the property retained by them, than to look to it as in the nature of a pledge, which may be sold for their indemnity. And it seems to me, therefore, that the purposes and objects of the defendants in error in forwarding the five hundred bales aforesaid to Liverpool, was a matter proper to be submitted to the jury for their consideration, in passing upon the damages in respect of the five hundred bales. Whilst, therefore, I think that the Circuit court did right in refusing to give the third instruction prayed for by the company as asked, I think it ought, in lieu of said instruction, to have modified the instructions which it did give, in accordance with the foregoing views.
/ There was, as has been already stated, no issue of /negligence on the part of the company in transmit*147ting the message, in the case ; and the instructions of the Circuit court, so far as they make the right of the defendants in error to depend in any manner on its pearing to the jury that the message was altered by the negligence of the company, were, I think, errocneous. On the first view of the case I was strongly of the impression that the questions, whether the juryj might or might not regard the company as a common; carrier, and might or might not infer, from the facts in\ the case, such an implied contract as the law attvibutes to common carriers, were properly before us passing upon the instructions. But upon further re- ' flection, I am of the opinion that they are not. If the plaintiffs in the action desired to get an instruction from the court on these matters, they ought to have stated, hypothetically, the evidence from the belief of which the jury were to ascertain that the company was a carrier, and from which they were to infer the implied contract aforesaid, and Jg^have set out in the instructions the character of fQph implied contract. This was not done. And there being in the case no instructions asked for so framed as properly to elicit, from the Circuit court any expression of opinion on said questions, it seems to me that the Circuit court, in saying to the jury, that “if they believe from the evidence that the message of the plaintiffs directing the purchase of five hundred bales of cotton, was delivered to the defendants to be transmitted, and they undertook to transmit it for the hire of one dollar and seventy-nine cents,” and should also believe the other facts hypothetically stated as the grounds of a recovery, the defendants were liable, is, in respect of the contract and undertaking of the company, to be understood as if it had said to the jury, that if they', believed that the company undertook to transmit the message accurately and correctly for the hire aforesaid, and should also believe the other facts aforesaid, *148the company was liable. Under this view of the instructions, the parties were left free to contest the questions aforesaid before the jury, no£ because of a liberty so to do, given by the instructions, but because the instructions did not in any manner pass upon- them. So understanding the instructions, I do not think that there was any error in them in said particular. And being of the opinion that the questions aforesaid are not properly before us, as arising either out of the instructions asked or the instructions given, I decline expressing any opinion upon them.
These views of the case, without any more special application of them to the rulings of the Circuit court upon the instructions, will serve to indicate with sufficient certainty the particulars wherein, in my opinion, the said court has erred in said rulings. And because of such errors, I think that the judgment should be reversed, the verdict-set aside, and the cause remanded for a new trial, in accordance with the principles herein declared; wiffi'liberty to the parties to amend their pleadings, if so advised.
Lee, J. thought that it did not satisfactorily appear, that the exception to the opinion of the court refusing the instructions asked, and giving other instructions, was taken before the jury retired to consider of their verdict. On the merits, he concurred in the opinion of Daniel, J.
Allen, P. and Moncure, J. concurred in the opinion of Daniel, J.
The judgment was as follows :
It seems to the court, that the Circuit court did not err in overruling the motion of the plaintiffs in error in arrest of judgment.
And it appearing to the court, that there is neither *149a certificate of all the facts nor a certificate of all the evidence in the cause, it seems farther to the court, that the plaintiffs in error have not sustained their allegations, assigning as cause of error that the said Circuit court erred in overruling their motion to set aside the verdict and grant them a new trial, on the ground that the verdict of the jury was contrary to the evidence.
And it seems further to the court, that the said Circuit court did not err in refusing to give the first instruction prayed for by the plaintiffs in error, nor in refusing to give the second instruction prayed for by said plaintiffs in error.
It seems further to the court, that the said Circuit court did not err in refusing to give to the jury so much of the thijd instruction prayed for by the said plaintiffs in error as asked the said Circuit court to instruct the jury, that “if the jury shall believe from the evidence that when the one thousand bales of cotton shipped by the factors of the plaintiffs to a foreign market, it was by them shipped on account and for the plaintiffs, with a view of taking advantage of the fluctuations of the market; and if they shall from the evidence further believe, that if a large profit instead of a loss had been realized on the quantity so shipped, they would not have accounted, and in point of fact did not intend to account to and with the defendants for the profits, then and in that case they must find for the defendants.”
But it seems to the court, that the said Circuit court ought to have given to the jury, in lieu of so much of said instruction, an instruction to the effect, that if they should believe from the evidence that when the one thousand bales of cotton was forwarded by the factors of the defendants in error to a foreign market, it was by them forwarded on account of and for the said defendants in error, with a view, on the part of *150the said defendants in error, of taking advantage of the fluctuations in the market; and if they should fur-believe from the evidence, that if a profit instead of a loss had been realized on the quantity so forwarc¡eí¡) ¿fog defendants in error would not have ac~ counted, and in point of fact did not intend to account to and with the company for the profits, then and in that case the defendants in error were not entitled to recover for any loss sustained on the quantity so forwarded.
It seems further to the court, that the said Circuit court did not err in refusing to give to the jury the residue of the said third instruction. But it seems to the eourt, that the said Circuit court ought, in lieu of said residue of said third instruction, to have instructed the jury, that in case they should fi^d for the said defendants in error, they should, in fixing the amount for which to render their verdict, ascertain the loss sustained on the one thousand and seventy-eight bales sold at Mobile, by deducting the net proceeds of such sale from the cost of the said one thousand and seventy-eight ¡bales, and also find for what sum the five hundred bales (the residue of the one thousand five hundred and seventy-eight bales of excess) would have sold at Mobile at public sale, immediately before the two hundred and sixteen bales, apart of the said five hundred bales, was delivered on shipboard, to be taken by the purchaser or purchasers as it then stood, to wit, two hundred and eighty-four bales as on shipboard, and two hundred and sixteen bales as not then shipped, but ¡under a contract of affreightment, subject to the contract for freight, and deduct said sum from the cost of the said five hundred bales, including all proper expenses and charges at Mobile, and in putting the cotton on shipboard, but not including the charge of freight on the said five hundred bales from Mobile to Liverpool; and add said balance to the amount ascer*151tained as aforesaid as the loss on the one thousand and seventy-eight bales; and that said aggregate, together with interest from such day as the jury should think right, to the day of rendering their verdict, should constitute the sum for which to render their verdict.
It seems to the court further, that the Circuit court erred in the instructions which it gave to the jury, in so far as it made the right of the defendants in. error in any measure dependent on its being shown that their message was altered by the negligence of the company, it seeming to the court that there was no question of negligence on the part of said company in issue before the jury.
And it seems further to the court, that there were no instructions prayed for so framed as properly to elicit from the Circuit court any instructions of the said court as to whether the company were to be regarded as common carriers, or whether the jury might infer a contract of any character from the nature of the calling of said company.
And it seems to the court, that the instructions of the said Circuit court should not be construed as indicating any opinion of the said court on said questions, or as intending in any manner to affirm or deny the right of the defendants in error to recover upon such an implied contract; but that the said Circuit court, in saying to the j ury that if they believed that the company undertook to transmit the message, and should also believe the other facts hypothetically stated in said instructions as the grounds of the recovery, that then the company were liable, is to be understood as if it had said to the j ury that if they believed that the company undertook to transmit the message accurately and correctly, and should also believe the other facts just indicated, that then the company were liable.
It seems to the court, that under the said instructions the parties were left free to contest the questions *152in respect to the calling of the company and the ini» plied contract aforesaid, before the jury, not because the liberty to. do so was expressly given, or involved in the instructions aforesaid, but because the Circuit court had not given any opinion on said questions.
And it appearing to the court, that said questions are not presented properly to this court for its decision, either by the instructions given or the instructions asked on the trial, it seems to the court improper to express any opinion upon said questions. And construing the instructions given by the Circuit court as just indicated, it seems to the court that said instructions are erroneous, so far and so far only as they are in conflict with the principles herein already declared.
And as, because of the errors in the rulings of the said Circuit court in respect of the instructions asked and of the instructions given, the judgment must be reversed, it becomes unnecessary for the court to consider whether the said Circuit court erred or not in overruling the motion of the plaintiffs in error to set aside the verdict and grant them a new trial, on the ground of newly discovered evidence.
And because of the errors which have been pointed out, it is considered by the court that the judgment of the said Circuit court be reversed, &o. with costs; and it is ordered, that the verdict of the jury be set aside, and the cause remanded for a new trial to be had in accordance with the principles herein declared, with liberty to the parties to amend their pleadings, if so advised.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481636/ | Moncure, J.
delivered the opinion of the court:
The Code, ch. 188, § 3, p. 717, provides, that “Every writ of fieri facias hereafter issued shall, in addition to the effect which it has under chapter 187, be a lien from the time that it is delivered to a sheriff or other officer to be executed, upon all the personal estate of, or to which the judgment debtor is possessed or entitled (although not levied on nor capable of being levied on under that chapter), except in the case of a husband or parent, such things as are exempt from distress or levy by the 34th section of chapter 49, and except that as against an assignee of any such estate for valuable consideration, or a person making a payment to the judgment debtor, the lien by virtue of this section shall be valid only from the time that he has notice thereof. This section shall not impair a lien acquired by an execution creditor under chapter 187.”
The controversy in this case arises under this section of the Code. The subject in controversy is a chose in action, which belonged to Thomas and Richard Crouch. The appellee, Samuel C. Greenhow, claims a lien upon it under the said section, by virtue of sundry writs of fieri facias, issued after the Code took effect, upon a judgment obtained by him against Edwin Farrar and the said Thomas and Richard Crouch. The appellant claims a lien upon it by virtue of a deed of trust executed by said Thomas and Richard Crouch, and duly recorded, whereby they assigned the subject to him, in trust to secure the payment, as therein *156mentioned, of certain debts of theirs, named in a schedule annexed to the deed. And though the said Q-reenhow’s execution lien is prior in tima to the appellant’s deed of trust lien, yet the appellant insists ^ie ^a^er prior in right, inasmuch as he is an assignee for valuable consideration and without notice, within the meaning of one of the exceptions contained in the section giving the execution lien as aforesaid. The question is, therefore, narrowed down to this, whether he is such an assignee or not?
The deed of trust is certainly an assignment of the subject in controversy, and the appellant is therefore an assignee thereof. He is also an assignee without notice. He denies notice in his petition and answer, and there is no proof or even averment of such notice in the record. Is he an assignee for valuable consideration ?
A pre-existing debt is, of itself, a valuable consideration for a deed of trust executed for its security; which deed, if it be duly recorded, and was not executed with a fraudulent intent, known to the trustee or the beneficiaries therein, will be valid against all prior secret liens and equities and all subsequent alienations and incumbrances. It is not necessary to the validity of the deed, that it should be executed by the trustee or the beneficiaries, or even that they should know of its existence before the intervention of subsequent claims. The deed being apparently for the benefit of the creditors thereby secured, their acceptance of it will be presumed until the contrary appears. If any of them refuse it, their refusal will relate back to the date of the deed, and avoid it ab initio as to them. A debtor, even though he be in failing circumstances, may lawfully prefer one creditor to another, and make a valid deed of trust for that purpose. These principles are now well settled in this state, as the following cases sufficiently show : Garland v. Rives, 4 Rand. 282; Skipwith's ex'or v. Cunningham, *157&c. 8 Leigh 271; McCullough, &c. v. Sommerville, Id. 415; Lewis v. Caperton's ex'or, &c. 8 Gratt. 148; Phippen v. Durham, &c. Id. 457; Dance, &c. v. Seaman, &c. 11 Id. 778; and Wickham, &c. v. Lewis Martin & Co. 13 Id. 427. In the last case Judge Daniel said (and in this part of his opinion all the other judges sub-st&otially concurred), “I think it has been the constant course of the courts in this state to regard the creditors in a deed of trust, made by their debtor bona fide for their indemnity, in the light of purchasers for value.” Id. 437.
It is not proved, nor even intimated, that the debts secured by the deed of trust in this case, are not all bona fide debts; nor that the trustee or any of the creditors participated in, or had notice of any fraudulent intent on the part of the grantors; nor, indeed, that there was any such intent, other than may be implied by the existence of the execution lien, which was unknown to the trustee and beneficiaries until after the recordation of the deed. No such intent appears on the face of the deed.
The appellant is therefore an assignee for valuable consideration and without notice, in the general sense of the terms. Why is he not such an assignee, within the meaning of the exception aforesaid? The terms are therein used without qualification or limitation; and the presumption is, they were intended to be used in their general and well understood sense. There is nothing in the nature of the case which requires that they should be construed in a different and more restricted sense.
It is argued by the counsel for the appellee, that the additional effect given by the Code to the writ of fi. fa. was intended as a substitute for the remedy formerly afforded by the writ of ca. sa. thereby abolished; and that as the effect of the lien afforded by the execution of the latter writ was to override subsequent alienations, so the delivery of the former to the sheriff *158for execution should have the same effect, except s© far as an intention to the contrary may plainly appear the Code; and that it does not plainly appear that such an assignment as that under which the appellant> comes within the meaning of the exception.
It is true, that the additional effect given by tbe Code to the writ of fi. fa. was intended as a substitute for the remedy formerly afforded by the writ of ca. sa. But it was not intended to be coextensive with that remedy in all respects. On this subject the revisors observe, “We will not undertake to say that the remedies now proposed to be substituted in the place of process to take the body for debt, will in every possible case attain for the creditor every thing that he can now attain by means of that process; but we express the opinion, without hesitation, that in cases generally, the rights of creditors will be better protected by the measures proposed than by those for which they are substituted.” Code, p. 716, note.
The two remedies differ in many respects. The new remedy is more beneficial to the creditor in some respects and less so in others, than the old. It gives a lien on all the personal estate of the debtor from the time that the writ of fi. fa. is delivered to the officer for execution, subject only to the exceptions enumerated. The lien does not depend upon the levy of the writ, but continues to operate after the return day and until the right of the creditor to levy any execution upon his judgment ceases, or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process. Code, p. 717, § 4; Puryear v. Taylor, 12 Gratt. 401.
On the other hand, the ca. sa. was a lien only from the time of its execution, and then only a qualified and conditional lien. It was not a lien at all upon personal estate until by the act of March 2, 1821, it was declared, that “ every writ of capias ad satisfaciendum shall bind the property of the goods of the party *159against whom the same is sued forth, from the time that such writ shall be levied.” Sess. Acts, p. 35, ch. 34, § 4. It is at least doubtful whether even that act made it a lien on choses in action. The language of the act is almost identical with that which declared that no writ of fieri facias, &c. “shall bind the property of the goods against which such writ is sued forth, but from the time that such writ shall be delivered,” &c. 1 Rev. Code, p. 529, § 13. If the word “ goods,” occurring in each of these two acts in pari materia, be construed to have the same meaning in each, as would seem to be reasonable, then, as it clearly did not embrace choses in action in the latter, so it did not in the former. Again: the lien of the ca. sa. was dependent for its effect upon the debtor’s taking the oath of insolvency. Until then, the lien was inchoate and conditional; and if the debtor died, or escaped, or was discharged, without taking the oath of insolvency, the lien was thereby determined. A ca. sa. was rarely resorted to until a fi.fa. had been tried without effect. So that it was only in the rare cases in which a ca. sa. was issued and executed, and the debtor took the oath of insolvency, that the creditor had the benefit of the ca. sa. lien. Effect might be given to such a lien against persons claiming by voluntary act of the debtor, without doing injustice to them ; for they could not well be assignees without notice while th.e debtor was in custody. No effect was given to it against liens acquired by other creditors by act of law while he was in custody. Jackson v. Heiskell, 1 Leigh 257; overruled by Foreman v. Loyd, 2 Id. 284.
The writ of fi.fa. is generally issued on a judgment, and always, in the absence of special direction to the clerk to the contrary. It is to this execution, thus almost always issued upon a judgment, that the Code, ch. 188, § 3, has imparted the important additional effect therein mentioned. In giving to the creditor *160this new and extensive lien, it was eminently proper so to'guard it as that it should do no injury to the just rights of others. Accordingly, it was given, subject to certain exceptions, which the legislature supposed would have that effect, and which are reasonable, and ought to be fairly construed. Among them is the exception in favor of an assignee for valuable consideration and without notice. The propriety of this exception, so far as it applies to an assignment for value paid at the time, is not denied. If or will it be denied that it applies to an assignment in discharge of a preexisting debt. But it is contended that the exception does not apply to an assignment for the security of a pre-existing debt. Such an assignment seems to be as well within the spirit as the letter of the law. It could never have been intended by the legislature that any assignment for valuable consideration, without notice and duly recorded, should be affected by the secret lien of an execution which may have issued from the court of a remote county of the state, and been years since returnable. Persons dealing with the execution debtor have no convenient means of informing themselves of such a lien, and are not bound to make enquiry. A judgment is a lien on the land of the debtor against subsequent purchasers from him 5 but the law requires it to be registered for their information. It does not require the lien of a ft. fa. to be registered, because it did not intend that purchasers for valuable consideration and without notice should be affected by such lien. To give it that effect, would not only be unjust to innocent persons, but would very much obstruct the free circulation of personal property, which the public interest requires and the law favors. It will not do to say that an assignee for the security of a pre-existing debt would only be placed in statu quo, and would therefore not be injured by being deprived of the benefit of his lien. He may have reposed on that security and been thereby prevented *161from seeking satisfaction in any other way. At all events, having obtained that security bona fide, he ought not to be deprived of it, and is fairly to all the advantages to which he would be entitled in any other case as a bona fide purchaser for value and without notice.
But it is argued, that if this be the case, a debtor may always avoid the execution lien, by making an assignment for the benefit of other creditors. And so, it may as well be said that he may, by making an absolute assignment for value paid at the time; or by receiving debts due to him from persons having no notice of the lien. The law has afforded to the judgment creditor as ample remedies as possible, consistently with the rights of others, to enforce the satisfaction of his judgment. It has made his judgment a lien on the whole real estate of the debtor. It has made his fi. fa. a lien from the time that it is delivered to the officer to be executed, on all the personal estate of the debtor on which it is capable of being levied and is actually levied before the return day; which lien overreaches all intermediate alienations and incumbrances with or without notice. And it has, in addition to that effect, made it a lien, from the same time, on all the personal estate of or to which the judgment debtor is possessed or entitled (although not levied on, nor capable of being levied on as aforesaid), subject only to the exceptions mentioned. And it has provided as ample means as possible for the enforcement of this last mentioned lien, by enabling him to compel the debtor to discover and surrender his estate, and to compel any other person on whom there is a liability by reason of said lien, to discharge such liability. By resorting to, and pursuing with diligence these means, or some of them, the creditor is generally able to prevent an evasion of his execution lien: and if he be not always able to do so, it is only because *162rights of others, which the law regards as superior to his, stand in his way.
It is further argued, that as one of the executions of the appellee was in the hands of the sheriff, and in full force when the deed of trust was recorded, and when the appellee filed his petition in this case, the lien of that execution is therefore superior to the lien of the deed of trust, though the lien of the other executions of which the return day had passed, might be inferior thereto. The subject in controversy being a chose in action, is incapable of being levied on under chapter 187 of the Code; and a lien upon it by execution could therefore be acquired only under chapter 188. Under the latter, it is immaterial whether the return day of the execution be past or not. In each case, the lien exists, and to the same extent. It may be proper to observe here, that the deed of trust was recorded before the appellee filed his petition aforesaid, or the suggestion therein referred to.'
It is further argued, that the appellee has at least equal equity with the appellant, and the legal right, or at all events, a prior equity, and ought, therefore, to prevail in this controversy. If it can be said that he has equal equity, it cannot prop'erly be said that he has the legal right. The law under which he claims expressly excepts an assignee for value and without notice: so that such an assignee and not the execution creditor has the legal right. As between them, there is no execution lien on the subject, and the debtor had the same right to make the assignment as if the execution never had issued.
The court is therefore of opinion that the appellant is entitled to the fund in controversy; and that the decree be reversed with costs, and the cause remanded to be further proceeded in accordingly.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481637/ | Lee, J.
The only question in this case is that raised by the instruction asked for by the defendant in error upon the trial. The declaration unlike that in Jackson v. Jackson, 10 Leigh 448, sufficiently avers a consideration for the draft or order which it describes, but as when it was produced at the trial no consideration was expressed upon its face and it was not stated to have been made “ for value received,” the question made was whether the jury could from the paper alone infer such a consideration moving from the defendant in error to the plaintiff’s intestate as would entitle him to recover without further evidence.
If the order in question were good as a bill of exchange it cannot be questioned that the party might have recovered upon it without averring in his declaration or proving at the trial that any value had been received for it, as such a bill is presumed to stand on valuable consideration and prima fade to import it. Bayly on Bills, ch. 1, § 13, p. 40; Macleed v. Snee, 2 Str. R. 762; Poplewell v. Wilson, 1 Id. 264; PhillishirJs v. Blackwell, 2 Maule & Sel. 395; Wilson v. Codman's ex'or, 3 Cranch’s R. 193, 207; Hatch v. Trayes, 11 Adolph & El. 702; 39 Eng. C. L. R. 207; Jones v. Jones, 6 Mees. & Welsb. 84; Bayly on Bills, ch. 9, p. 390; Coombe v. Ingram, 4 Dowl. & Ryl. 211. But I think it clear that this paper cannot be regarded as *165a bill of exchange, nor as carrying with it the exemption pertaining to that class of securities from the necessity of both averring and proving a sufficient consideration as the condition of recovering upon it. To constitute a good bill of exchange, the sum to be paid must not only be in money and certain in amount, but it must be payable absolutely and at all events. If it be payable out of a particular fund or upon an event which is contingent, or if it be otherwise conditional, it is not in contemplation of law a bill of exchange. Roberts v. Peake, 1 Burr. R. 323; Carlos v. Fancourt, 5 T. R. 482; Chitty on Bills, ch. 5, p. 152, et seq.; Bayly on Bills, ch. 1, § 6, p. 16, et seq.; Story on Bills, § 46; Crawford v. Bully, Wright’s R. 453; Van Vacter v. Flack, 1 Smedes & Marsh. R. 393; Hamilton v. Myrick, 3 Pike’s R. 541. Here, the sum to be paid is not payable absolutely and at all events. It is payable out of a particular fund to wit the moneys, if any, in the hands of the drawee belonging to the drawer. The draft therefore cannot be treated as a bill of exchange, nor can a recovery be had upon it as such.
So, again, if the paper in question contained an express promise to pay the sum mentioned upon which an action of debt might be maintained under our statute, I incline to think that the recovery might be had without further proof of consideration. If debt would lie upon the paper, it would be evidence of such indebtedness as would be a sufficient consideration for the promise to pay in the action of assumpsit. The case of Jackson v. Jackson, above cited, so far as it is of any authority, having been decided by a court equally divided, shows that it is not necessary in such a case even to aver a consideration. For the declaration without averring such consideration was sustained by the court below, and that judgment was affirmed by the division of this court. But it is unnecessary *166to go into this question in this case, because whilst the declaration in all its counts sufficiently avers a consideration, it is not pretended that the paper offered in evidence contained any thing that could by any construction be held to be an express promise to pay the sum of money mentioned in it. And not being a bill of exchange, no promise is raised by law in favor of the payee against the drawer from the failure of the drawee to accept or to pay. Josceline v. Lasserre, Fortesc. R. 281; S. C. 10 Mod. R. 294, 316; Jenny v. Herle, 1 Stra. R. 591; S. C. 2 Ld. Raym. R. 1361; Haydock v. Lynch, 2 Ld. Raym. R. 1563; Banbury v. Lisset, 2 Stra. R. 1211; Dawkes v. DeLorane, 3 Wils. R. 207; S. C. 2 Wm. Black. R. 782; Nichols’ adm’r v. Davis, 1 Bibb’s R. 490; Mershon v. Withers, Id. 503; Carlisle v. Dubree, 3 J. J. Marsh. R. 542.
The case of Jolliffe v. Higgins, 6 Munf. 3, might seem at first blush from the reporter’s syllabus of the point decided, to be somewhat in conflict with the principles above stated; but upon closer examination, I think the decision will be found to be in perfect harmony with them and to be abundantly sustained upon the case itself. Ro reasons are assigned by the court for affirming the judgment, but upon the report of the case, I think we can see ample grounds on which to vindicate its correctness without disturbing any of the principles to which I have adverted. The action was assumpsit and the declaration counted specially on the draft or order set out, and also for money had and received by the defendant to the use of the plaintiff. The plea was the general issue; and at the trial, the defendant demurred to the evidence. This consisted of the draft or order described in the declaration by which the drawer (the defendant) directed the drawee (Waite) to pay to the plaintiff the sum of one hundred and eight dollars and eighty-five cents which the order stated he (the- drawer) had lodged in the hands of the *167drawee and was the property of the payee as guardian Sfc., with proof of non-payment by the drawee, and protest therefor, and notice to the drawer; and also that the drawer had never deposited any such funds or other funds whatsoever with the drawee. Now, I do not think it by any means clear that the order was not good as a bill of exchange. Mr. Wickham for the plaintiff in error, it is true, contended that it yvas not because it was not made payable to order, and was drawn on a particular fund; and this Mr. Leigh appears to have conceded. Formerly it was doubted whether it was not essential to the character of a bill of exchange that it should be payable e. g. to A or his order or to bearer. But it is now well settled that it is not essential to the character either of a bill of exchange or of a promissory note that it should be negotiable. Chadwick v. Allen, Str. R. 706; Smith v. Kendall, 6 T. R. 123; The King v. Box, 6 Taunt. R. 325; Burchell v. Slocock, 2 Ld. Raym. R. 1545; Bayly on Bills, ch. 1, § 10, p. 33; Chitty on Bills, ch. 5, p. 181; Story on Bills, § 69. And it may with great force be contended that the order to pay was neither conditional nor restricted to any particular fund, but as well as can be ascertained from the statement of the case, was absolute and unconditional to pay the amount. It is true it was added that the drawer had lodged the amount in the hands of the drawee and that it was the property of the payee. Whether this statement was true or false would not affect the character of the order. The theory of every bill of exchange is that the drawer has funds in the hands of the drawee subject to his order, and whether this be true or false the character of the bill is the same. See Story on Bills, § 13. The reason given for making the draft would not necessarily change the absolute character of the order, or whether true or false, affect its legal character and incidents. It would seem to fall *168rather within a class of cases which are carefully distinguished from those in which the order is to pay out of a particular fund, although at first glance they might seem to be of them. Thus a bill drawn by a freighter payable to a person entitled to receive the freight “ on account of freight,” is good, for it is not payable out of a particular fund but merely shows to what account it is to be applied or what is the value that has been received. Pierson v. Dunlop, Cowp. R. 571. So a bill for money as “ the drawer’s quarter’s half pay by advance” is good; for it is not payable out of a particular fund but is to be paid in advance; and will be payable whether the half pay ever become due or not. Macleeed v. Snee, 2 Stra. R. 762. And so specifying the fund in any other manner out of which the value was received for which the bill is drawn will not vitiate the bill; thus stating “value received out of the premises in Rosemary Lane,” or “ being a portion of a value, as under, deposited in security of payment hereof;” or “ on account of wine had by me” (the drawer); or “ being so much due by me to A. at Lady-day next.” In these cases the bill is not payable out of a particular fund, but it only specifies the value received and the occasion of the draft. See Haussoullier v. Hartsinck, 7 T. R. 733. Bayly on Bills, p. 18; Story on Bills, § 47.
But if the order could' not be treated as a bill of exchange, certainly from its terms it might be fairly and legitimately inferred that the defendant had had in his hands money belonging to the plaintiff which he had failed to pay over to him and which he falsely pretended by the order he had lodged in Waite’s hands for him. The amount therefore would clearly be recoverable in an action for money had and received and the demurrer to the evidence could not avail the defendant.
The court may therefore have thought either that *169the order in this case was good as a bill of exchange, or that the evidence was sufficient to sustain the second count of the declaration, and that the judgment was therefore right, and should be affirmed.
All contracts by our law must be either contracts by specialty or contracts by parol. If not by sealed instruments, they are parol whether verbal or in writing, and if in writing, whatever may be the rule of the civil law, or whatever the doubt created by the remarks of Lord Mansfield and Justice Wilmot in Pillans v. Microp, 3 Burr. R. 1668, et scqthere must be in general a sufficient consideration to support them, just as if they were proved by parol evidence only. The authorities for this proposition are numerous and familiar, and I deem it unnecessary to stop to cite any. Commercial paper and perhaps promises in writing for the payment of money on which debt would lie under our statute, constitute exceptions to the rule, but otherwise it is universal and pervading. Accordingly, the defendant in error recognizing the rule and its applicability to this case, asked the court to instruct the jury that they might infer the consideration from the paper itself, and the court gave the instruction asked. The whole case then is resolved into the enquiry whether the paper does of itself, furnish proof of a legal promise and a sufficient consideration ?
Now I apprehend that a paper of this character can only be said to furnish such proof, where the consideration is stated in it or it is stated to be for value received, or some equivalent, or where the terms in which it is expressed are inconsistent with any other theory than that it was upon a consideration. If those terms are just as consistent with the theory of a total want of consideration as they are with that of its existence, it would seem impossible to say that they afford such a legal presumption that the paper was founded on a consideration as would justify the jury *170in finding it as a fact. .In the paper in question, no consideration is stated nor is the draft stated to be made “ for value received,” nor are any equivalent terms used showing that it was made for a consideration. And taking all the terms of the paper together they are at least as consistent with the theory of an absence of all consideration as they are with that of any value received. The terms of the order would admit equally well of several different constructions. The drawer might have known that he had just such a sum in the hands of the drawee and intended merely to give authority to the latter to deliver the same to the payee for him. Or without knowing whether the trustee had received funds for him or not, might have merely given the order if he had, to authorize the payee to receive them for him as his agent. The counsel for the defendant in error, it is true, asserts that the order was drawn at a time and at a place at which the plaintiff’s intestate might have as conveniently drawn his funds from the hands of the drawee himself as Booker the payee could do it for him. Nothing of this however appears in the record, nor does it appear, as is also alleged, that the intestate was a partner of the firm of Norvell & Averett. If those facts would have influenced the case they were not before the jury, there being, as has been stated, no evidence whatever except the order itself and proof of non-payment, and that there were no effects out of which it could be paid. So, it is perfectly in consistence with the terms of the order, that it may have been drawn for the purpose of loaning the amount to the payee if the drawer had the funds in the hands of the drawee, or of making a gift to him of the amount if it could be had. Either of these hypotheses and others that might be suggested are just as reasonable as that insisted on by the defendant in error that the order was given in discharge of a debt due him from *171the payee; and I cannot think the cii’cumstance that the order calls for interest on the sum named from a given day is of such conclusive import as is attributed to it by the counsel. Whilst it is strictly consistent with the existence of a debt that was thereby settled, it is not inconsistent with either of the other hypotheses suggested.
The court having given the instruction asked for, ignored all the other hypotheses than that of a debt due to the payee from the drawer or of value received by the latter; and as the jury were told they might infer a consideration from the paper itself, they could only regard it as peremptory to them to make that inference, because if they might infer it, it was their duty to infer it; and to say that they might infer it was equivalent to saying that they must infer it because it was a matter not depending on the weight of evidence or force of circumstance but simply upon the legal import of the paper itself.
I think the Circuit court erred in giving the instruction asked for, and am of opinion to reverse the judgment.
Allen, P. and Daniel, J. concurred in the opinion of Lee, J.
Moncure, J. concurred in the result.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481513/ | SAMUELS, J.
An indictment or presentment should always allege the offence with so much fullness and precision of description, that the defendant may know for what he is prosecuted, and thereby be enabled to prepare his defence; and further, that the conviction or acquittal may be pleaded in bar of any future prosecution for the same offence.
If we try the presentment before us by this standard, it will be found defective. The grand jury intended to present an of-fence against the latter clause *of the statute, ch. 38, ‘i 18, p. 209 of the Code. This offence is local in its nature ; place is of its essence, and yet no place is alleged but the whole county. A sale of ardent spirits by an unlicensed dealer, not to be drunk at the place of sale, would fall *424within the first clause of the section above cited. The identity of the place at which the spirits were to be drunk, with the place at which they were sold, enters into and forms part of the offence under the latter clause of the statute. If this be so, the defendant should be apprised of the place alleged, so that he may be prepared with proof, if any he have, to show that the place of sale and that of drinking are not the same.
The lawful traffic in ardent spirits is had under a license for the purpose, designating a place; the offence of unlawful traffic is committed by a sale at a place without license to sell at such place. A presentment for such unlawful traffic should on familiar principles, set out the offence with such certainty as to give notice of the offence charged, and to distinguish it from other offences of the same or kindred nature. This is the right of the defendant: he may have defences which he can make to the specific offence alleged, only by knowing what that offence is in all its essential parts. He may be licensed to sell at one place within the county; and relying on his license, and the consciousness of having sold at no other place, would go confidently into trial; yet upon the trial, under the general charge of selling in the county, proof may be offered to show a sale at any place within the county. This proof the defendant could not anticipate; yet if he had known it, he might have prepared himself to repel it by testimony.
It may readily be alleged in every case, at what place the sale was made; and this allegation may be most material to the rights of the defendant. No case can be found among the many decisions of the General court on the subject, in which such allegation was held immaterial. I see no reason to depart from the forms therefore approved and acted on, and am of opinion to affirm the judgment.
The other judges concurred in the opinion of Samuels, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481514/ | Samuels, J.
I am of opinion to reverse the decree, and dismiss the bill without prejudice to the rights of the parties to sue at law. There is nothing alleged in the pleadings, or shown by proof, to warrant the exercise of the power to decree specific performance. This would be my opinon if the case stood alone upon that clause of the agreement which is supposed to bind the appellants to convey. The case, however, should not be so regarded; but in passing on it, every part of the agreement should be looked to: we should not disregard any part of it. It is distinctly agreed between the parties, that the action of ejectment between them shall be submitted to the arbitrament of the referees named; that the value of the subject in controversy shall also be ascertained by those referees; that upon the return of the award the appellants should convey to the *102appellee the subject of controversy. This part of the agreement is, of necessity, to be understood as meaning that the conveyance shall be executed if the action of ejectment shall be decided by the referees in favor of the plaintiffs therein: for it would be absurd to construe it as meaning that if decided the other way, the parties having no title should sell, and the party having title should buy.
The agreement further provides that the submission shall be made a rule of court, and that the court should enforce the performance of the agreement as if the same were a judgment of the court. This, if it means any thing, means that the purchase money was to be secured by the judgment of the court. The parties, to some extent, put their own construction on the agreement by submitting the ejectment suit to the arbitrators; thereby showing that the decision of that suit was to have its effect upon the agreement. In the ejectment the main question was, who had the right to possession, and incidentally, who should pay the costs of suit. This question is not yet decided; the award returned being upon a subject in no wise involved in the suit. By the express terms of the agreement, the conveyance was to be made upon the return of the award, which has not yet been made. If the parties intended to submit the sole question of value to the arbitrators, and to bind themselves to sell and buy at their valuation, nothing would have been easier than to have so provided in the agreement. If, however, they intended that the question of title should be first settled, that if the appellants had the better title, they should sell to the appellee, the agreement in all its parts should be allowed to stand, and its several provisions be carried into effect. To tear one single provision of the agreement from its context; to give it priority over another to which it was expressly postponed; to make it, in fine, the agreement in disregard *103of all else therein; to withhold from the appellants the benefit of their better title, if they have it; to compel them to sell a title in litigation, at a price aifeeted by the fact that it was contested, in disregard of the provision for settling the question of title, would be unjust to both parties. I am not aware of any precedent requiring us to treat the agreement in this manner; and I am utterly opposed to making such precedent.
Daniel, J.
If the order of reference of the 2d of January 1851 were alone to be looked to for the terms of the submission, the award would be incomplete; as by the order “ all matters in difference between the parties” are submitted to the “ final determination” of the arbitrators, whilst by the award nothing is adjudged or ascertained except the value of the lots in controversy. It is most apparent, however, from the award, from the bill, from the answer, and from the petition for an appeal, that the arbitrators and the parties all regarded, and acted upon, the agreement of the day of December 1850, as containing the true terms of the submission.
Treating the agreement, then, as the warrant for the action of the arbitrators, I can discover no plausible reason for saying that they have, in any manner, departed from the authority, or fallen short of a complete discharge of the duty conferred upon and prescribed for them. After reciting the pendency of the action of ejectment, and that it involved the title to certain lots, and expressing the desire of the parties finally to settle the suit, the agreement proceeds, “Now, therefore, it is herein agreed that the said parties shall forever end and conclude the controversy, in said suit mentioned, in manner and form following, to wit: That the matters in controversy shall be and are hereby referred and submitted to the final award *104and determination of Robert Edmond and B. W. Haxall, agreed to and chosen by the said parties as their arbitrators, so as the said arbitrators do make their award and determination of and concerning the said controversy, for the following end and purpose, to wit: that is to say, that the said arbitrators after having satisfied themselves of the value of the said lots above mentioned and numbered, shall affix to, and declare in writing, under their hands and seals, the real and actual value of the same, as they, in the exercise of their judgments, shall think right and proper; and if they the said arbitrators do not agree as to the value of the said lots, then the said arbitrators shall call in some disinterested third person, to be by them chosen and elected, who shall with them confer and consult as to the value of the said lots, and, with them, determine the same, and shall declare in writing, under their hands and seals, the said value; to be delivered to the parties hereto, on or before the day of next ensuing,”
The words in the first portion of the article would seem to indicate an intent to submit the whole matter in controversy to the arbitrators; but it is obvious that, with the words (which I have italicised,) “ for the following end and purpose,” &c. commences a qualification or restriction, limiting the action of the arbitrators to the single “ end and purpose” of ascertaining and declaring the value of the lots. With respect to the title to the lots, the arbitrators had nothing to determine or award. Their office was done, and the object of the first article accomplished, as soon as they fixed and reported the value of the lots; and a subsequent article provided that upon the return of the award, the parties of the first part should convey the lots to the party of the second part, and that the latter should secure and pay to the former the value ascertained by the award. In short, the scheme for *105the settlement of the suit was, that the appellants should sell and the appellee should buy the lots at a price to be fixed by disinterested valuers. There is, therefore, I think, no ground for assailing the decree as being founded on an insufficient award.
■ Nor do I think that the error of the court in requiring Mrs. Branch, a married woman, to execute a deed with general warranty, is of such a nature as to vitiate the decree. The inadvertence is one which it is obvious could work no injury to Mrs. Branch, or any one else; in as much as by the statute, Code, ch. 121, § 7, p. 514, such a deed could not operate any further on her or her representatives than to pass such right, title and interest as at the date of such deed she might have in the estate thereby conveyed. If, therefore, there were no other objection to the decree, I should feel no difficulty in affirming it, after making the proper correction.
In considering the case, however, a more serious question has arisen, which, at the instance of the court, has been fully discussed at the bar; and that is, whether the coverture of Mrs. Branch did not stand in the way of any decree, for a specific performance of the agreement and award against her or her husband, or indeed any of the appellants: It,is not necessary to cite authorities to show that no such decree could be made against Mrs. Branch.
The question whether a court of equity will, under any circumstances, decree against a husband the specific performance of a contract on his part to procure the conveyance by his wife of her real estate, is one which cannot be regarded as yet definitively settled in England. In the reports of the earlier cases, numerous precedents may be found in which the power of the chancellor to make such decrees has been asserted and enforced. Thus, the case of Hall v. Hardy, 3 P. Wms. 187, in which, upon a submission of a dispute *106touching the fee simple of'a parcel of land, the arbitrators awarded that the defendant should procure his wife to join with him in a fine and deed of uses, and thereby convey the premises to the- plaintiff and his heirs, the master of the rolls, Sir Joseph Jekyll, decreed a specific performance of the award: prefacing the decree with the remark that there had been a hundred precedents, where, if the husband, for a valuable consideration, covenants that the wife shall join with him in a finé, the court has decreed the husband to do it; for that he had undertaken it and must lie by it, if he does not perform it.
In some of the cases of a later date, however, the propriety of making such decrees has been seriously questioned, and in others, positively denied; as in Emery v. Wase, 8 Ves. R. 505; Davis v. Jones, 4 Bos. & Pull. 267; and Martin v. Mitchell, 2 Jac. & Walk. 413. And whilst it cannot perhaps be said that the English chancery has fully .disclaimed the power, it may, I think, be safely affirmed, that the current of professional feeling and sentiment in England is rapidly tending to a conviction of the impolicy, cruelty and unfairness of a rule which constrains the wife indirectly through the sufferings of the husband, to do that which the courts have long since repudiated their right to coerce her to do directly. In speaking of the earlier cases, Mr. Jacob, in a note to 1 Eoper on Husband and Wife 547-8, says, “It may be said with respect to most of these cases, that they were decided at a period when the courts exercised a much greater latitude than at present in cases of this kind. Thus it would seem that in some instances the decrees were made against the wife personally. In one case it was decreed that a man should compel his wife and another man’s wife to levy a fine, &c. Since the limits of the jurisdiction of equity in the specific performance of agreements, and the rules as to the disabilities *107of coverture have heen more clearly settled, these early cases cannot now be received as authorities without some qualifications.”
■ And in the case of Emery v. Wase, Lord Eldon said that the argument showed “ the point was not so well settled as it had been understood to be. The policy of the law is, that a wife is not to part with her property but by her own spontaneous and free will. If this was perfectly res integra, I should hesitate long before I should say the husband is to be understood to have gained her consent, and the presumption is to be made that he obtained it before the bargain, to avoid all the fraud that may afterwards be practiced to procure it. The purchaser is bound to regard the policy of the law, and what right has he to complain, if she, who according to law cannot part with her property but by her own free will, expressed at the time of that act, of record, takes advantage of the locus pcenitentice ,• and why is he not to take his chance of damages against the husband?”
Similar views are strongly, presented in a note in 1 Roper on Husband and Wife 545; and the annotator adds, “ some of the cases seem to have proceeded partly upon the fact of the wife having herself been a farty, or having assented to the agreement, or upon the presumption that she had assented. But if it be law that the agreement of a feme covert is void, it is difficult to find any principle uyon which her assent or dissent at the time of the contract could vary the case.” These views are also adopted in Bright on Husband and Wife, vol. 1, p. 191, to which author, as also to the notes to Emery v. Wase, reference may be had for a statement of the principal English decisions on the-subject.
I do not know that the question has ever been distinctly before this court on a bill, filed by a vendee, seeking the specific execution of a contract for the sale, by a husband or by a husband and wife, of the wife’s lands.
*108In. the case of McCann v. Janes, 1 Rob. R. 256, the bill was filed by a- vendee against a husband on an undertaking by the latter, that he and his wife should make to the plaintiff a good deed for the wife’s inheritance in fee; but a specific performance of the agreement was not ashed. After setting out the contract, the bill alleged that the defendant had refused to comply, stating, as his excuse, that his wife had refused to join him in the deed. It further alleged that there were children of the marriage, and that the husband' was consequently entitled to a life estate; and the prayer was that the defendant should be decreed to convey ¿11 his interest in the land to the plaintiff, reserving to the latter his right of action at law against the husband for damages on account of his failure to procure his wife to unite with him in the conveyance.
The Circuit court sustained a demurrer to the bill, and rendered a decree dismissing it. On an appeal, the decree was affirmed by this court. The judge of the Circuit court, in his opinion, assigned two reasons for sustaining the demurrer: 1. That he could not entertain a bill for a specific performance in part, with a right to resort to a court of law for the recovery of damages for the residue: And 2. That a husband could not be decreed to convey a life estate in his wife’s lands during her life. No reason was given by this court for affirming the decree; but the reporter, in a note to the case, states that he had been informed by one of the judges that-the affirmance was made on the first ground taken in the opinion of the circuit judge.
It will be seen from this statement of the case that it did not present the question under consideration. The failure of the plaintiff, however, to ask a decree for specific execution of the contract, is a strong circumstance to show an acquiescence by the bar in the propriety of the doctrine on the subject, held by this *109court in the cases of Evans & wife v. Kingsberry, 2 Rand. 120, and Watts v. Kenney and wife, 3 Leigh 272; in each of which, though the bill was filed by husband and wife for a specific execution against a vendee under a contract with the husband for the purchase of the wife’s land, the court considered it necessary to decide what ought to have been the decree if the suit had been brought by the vendee; and in each of which the court, holding that such a decree could not have been properly rendered in favor of the vendee, refused to decree specific performance in favor of the vendors, on the score of want of mutuality. In the last mentioned case Judge Tucker, delivering the opinion of the court, said, “As to compelling the husband to procure a conveyance, the doctrine, never well received, has never been acted upon with us, and seems recently to have been discountenanced in England. Emery v. Wase, 8 Ves. R. 505; 4 Bos. & Pul. 267. It is true that in a recent case it has been said that if the wife assents, the husband will not be permitted to recede. Howell v. George, 1 Madd. R. 1-7. But so easy is it where family convenience and profit concur, for the influence of the husband to withhold the assent of the wife, that practically the doctrine can never be of use.”
This opinion was approved by the whole court, as was also that of Judge Green of the like import, in the case of Evans & wife v. Kingsberry. Whilst, therefore, I do not find any precedent in our reports of a direct refusal by this court to decree at the suit of the vendee, the specific performance of a sale by a husband of his wife’s estate, yet in the absence of any case or opinion here questioning the propriety of the two last cited decisions, I feel no hesitation in recognizing them as true expositions and ruling adjudications of the law of this case.
It is true that no objection to a specific performance *110was made by the defendants in their answer, on the score of Mrs. Branch’s coverture; and it is urged on behalf of the appellee, that this court ought not to proceed on the supposition that she may not be willing to unite in the conveyance. The same feature existed in the case of Emery v. Wase. Yet it was not regarded by the master of the rolls, when the case was before him, (5 Ves. R. 847,) or by Lord Eldon, on the appeal, (8 Ves. R. 505,) as a circumstance of any moment.
In that case, as in this, the defendants all united in one answer, in which they resisted the decree, on grounds wholly independent of the coverture of some of the female defendants; yet the court gave the same weight to the objection as if it had been distinctly and formally presented. The appellants all strenuously resisted the decree in the Circuit court, and are all seeking to reverse it here; and little if any chance of benefit to the appellee could be anticipated from sending the case back, in order, by privy examination, (if indeed such a practice could in any case be allowed here,) to ascertain whether Mrs. Branch will choose to unite in a deed, as there can be little or no doubt as to what her response would be.
It is further urged by the counsel of the appellee, that though this court should be of opinion that the decree was wrong in ordering a full and entire performance of the agreement, still a dismission of the bill would not be the proper or necessary consequence; that in such case the court ought to allow the appellee the election to have a conveyance of so much of the subject he bargained for as is within the reach of the court, with an abatement of the purchase money proportioned to the share or interest of Mrs. Branch.
If the appellee is willing to accept, in satisfaction of the agreement, a deed for the undivided interests of the appellees Clarke and Harris in the lots, with an abatement of the purchase money equal in value to *111the entire interest and estate of Mrs. Branch in the subject, I cannot perceive the injustice or inconvenience of allowing him to have such a modified performance of the contract. There is nothing in the proofs to impeach the fairness of the agreement or the award. There is not the slightest reason for imputing fraud or even laches to the appellee. He has promptly done or tendered to do every thing which by the covenant or the award he has agreed, or has been awarded to do. On the other hand, the appellants have wholly refused to conform to the award. They have resisted it on each side of the Circuit court, on grounds of objection which the judge has decided to be insufficient. Like objections have been made here, and have met with the same fate. And nothing stands in the way of affirming, in every thing, the decree for a specific execution, except the want of power in the court to coerce a conveyance of the estate of the married female appellant: a difficulty, suggested here for the first time. In this state of things what show of equity have the appellants for insisting that because they cannot comply with their whole undertaking, they shall also be excused from performing such portion of it as is clearly within their power ?
I see nothing in the nature of the contract, and know of no rule of practice, which forbids a termination of the controversy in the mode proposed. On the contrary, it is a familiar practice to make decrees for the partial performance of contracts, with compensation to the injured party, in cases where the measure of compensation is certain or easy of ascertainment. Thus, in Mortlock v. Buller, 10 Ves. R. 292, 316, Lord Eldon says, “If a man having partial interests in an estate, chooses to enter into a contract representing it and agreeing to sell it as his own, it is not competent for him to say afterwards, though he *112lias valuable interests be has, not the entirety, and therefore the purchaser shall not have the. benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract; and if the vendee chooses to take as much as he can have, he has a right to that and to an abatement.”
The same doctrine is asserted in Wood v. Griffith, 1 Swanst. R. 43, 54. “ The purchaser may insist on having the estate such as it is. The vendor cannot say that he will give nothing, because he is unable to give all that he has contracted to give.”
And Judge Story, in the second volume of his Treatise on Equity Jurisprudence, § 779, on the authority of a number of cases which he cites, states the general rule in such case to be, “that the purchaser, if he chooses, is entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement out of the purchase money, or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate.”
It is true that he says, “the practice had been extended beyond the true limits to which every jurisdiction of the sort should be confined, as it amounted pro tanto to the substitution of what the parties had not contracted for; and that the tendency of modern decisions is to bring the doctrine within such moderate bounds as convenience and equity indicate as its proper limits.” He at the same time, however, cites with approbation the remarks of Lord Langdale in the case of Graham v. Oliver, 3 Beav. R. 124, in which, after admitting the difficulties that existed in the way of carrying the rule to the extent that had prevailed in some of the cases, he vindicates the justice of adhering to it in cases where it can be observed “ without any great preponderance of inconvenience.”
*113And a distinction is very properly recognized by the courts between the case of a vendor seeking to compel the vendee to perform, and that of the vendee asking a performance by the vendor. Though, therefore, the courts have refused, as in Dalby v. Pullen, 3 Sim. R.29, and in other cases, to compel a vendee, who has contracted for the entirety of an estate, to take undivided aliquot parts of it, it by no means follows that it is improper to compel the vendor to convey such undivided parts, where the vendee is willing to accept them, with a proper abatement of the price, in lieu of the whole estate for which he contracted. On the contrary, in the case of the Attorney General v. Day, 1 Ves. sen. 218, Lord Hardwicke, whilst refusing to compel a vendee who had contracted for an entire estate, to take a moiety, (a conveyance of the other by change of circumstances being impracticable,) said, “ On the other hand, if on the death of one of the tenants in common who contracted for a sale of the estate, the purchaser brings a bill against the survivor, desiring to take a moiety of the estate only, the interest in the money being divided by the interest in the estate, I should think (though I give no absolute opinion as to that) he might have a conveyance of the moiety from the survivor, although the contract cannot be executed against the heirs of the other.”
The same principle is fairly to be deduced from the case of Roffey v. Shallcross, 4 Madd. R. 227, and also from a decision of Lord Eldon, in Ex parte Tilsley, reported in the note to that case; and is, I think, fully sustained in Sugden on Vendors, vol. 1, 415-426, 7th Am. ed. as well in the text as in the authorities cited in the notes.
It is suggested that these views are in conflict with the decision of this court in Bailey v. James, 11 Gratt. 468. On an examination of that case it will be seen, that it is wholly different in character from the one *114before us: And I mention it only because of tbe suggestion just mentioned, and for the purpose of saying that I do not mean to call in question the authority of that case by any thing said in this.
I can see, therefore, no objection to, allowing the appellee to have a partial performance to the extent and on the terms above indicated. I do not think, however, that he ought to have a conveyance of the life estate of the appellant Branch, unless he is willing to take that together with a conveyance of the undivided interests of the appellants Clarke and Harris in full of his demand. The difficulty of estimating the value of Mrs. Branch’s interest, subject .to the life estate of her husband, would of itself constitute a serious objection to decreeing compensation for its loss. Evans v. Kingsberry, 2 Rand. 120. Such an estimate would of necessity be of a speculative character ; and whilst there are rules for calculating the value of such interests, which have been adopted by the court in cases rendering such calculations necessary, I feel no disposition to multiply, unnecessarily, occasions for a resort to them.
It is true that in a note in 1 Roper on Husband and Wife 549, it is suggested that in cases where the wife has only a partial interest in the estate as jointure or dower, the purchaser might be allowed to take such title as the husband can give, deducting from the purchase money a compensation for the wife’s claims. Be that as it may, I have seen no case in which a purchaser from husband and wife of the wife’s inheritance has been allowed to take the husband’s interest, and compensation for the principal estate, the main and substantial object of the contract, left outstanding in the wife.
On the whole, I think that the decree ought to be reversed, and the cause remanded, with instructions to the Circuit court to allow the appellee the option of *115taking a conveyance by the appellants Harris and Clarke, and the male appellant Branch, of their interests in the lots, the appellee paying the full amount of the value awarded, or a conveyance of the undivided shares of Harris and Clarke, with a deduction from the full amount of the value aforesaid, of so much thereof as is equal to the value of Mrs. Branch’s undivided share in said lots; and in case the appellee refuses to avail himself of such liberty, to dismiss his bill, with costs, but without prejudice to his legal rights. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481516/ | Samuels, J.
The appellants’ counsel in the argument here insisted, that the slaves were improperly made parties in this ease, (referring to the case of McCandlish v. Edloe, 3 Gratt. 330,) and that a decree of emancipation can be rendered only in a suit brought in forma pauperis for the recovery of freedom; and that, for these reasons, the Circuit court erred in deciding the question as to the condition of the slaves. In answer it may be said that Hancock having the alleged *126slaves in liis possession, and being unwilling to decide the conflicting claims between them and Taylor’s next of kin, might be allowed to file a bill in equity referring the subject to the adjudication of the court, and thereby relieve himself from the responsibility of making a decision. A bill of this nature, in its functions, is a bill of interpleader; the adverse claimants become actors; each, asserting a claim, is, in effect, a plaintiff. A claim to freedom, if merely equitable, has long since been held a proper subject for the cognizance of a court of equity. A mere question of property between adverse claimants could be passed on by a court in a case like this. A right to freedom claimed on one side, and a conflicting right of property claimed on the other, must stand on the same ground; and this especially where if either claim had been asserted in a separate suit, it would have been proper for the cognizance of the court. I am of opinion the slaves should be regarded as plaintiffs asserting their claim to freedom. The defect of the bill is. merely in form; the substance is sufficient, as it brings before the court the adverse claims of the parties.
It may be further said that this suit was pending on and before the 1st July 1850, when the Code of 1849 took effect, and the answer of the appellants was filed after that day. It is therein provided, ch. 216, § 2, p. 800, that subsequent proceedings in pending suits shall conform as far as practicable to'the provisions of that act; and in ch. 171, § 19, p. 648, 649, it is enacted that when a bill shows on its face proper matter for the jurisdiction of the court, no exception for want of such jurisdiction shall be allowed, unless it'be taken by plea in abatement; and the plea shall not be received after the defendant has demurred, pleaded in bar or answered the bill. The bill in this case shows matter proper for the jurisdiction of the court, in this, that Hancock held slaves who claimed their freedom *127under an equitable title, and who are claimed as property by Taylor’s next of kin, under an equitable title. Hancock had the right to invoke the aid of a court of equity to relieve him from the responsibility of making a decision upon these conflicting claims. The appellants have been content to assert their rights in the suit brought by Hancock, making no objection to the jurisdiction of'the court or to the competency of any party or parties; and they should not be permitted to make such objection for the first time in this court.
If however it be conceded that the slaves were not necessary or proper parties, then the case must be considered as if they had been omitted as such. If they had been thus omitted, the omission would not have precluded the court from decreeing their emancipation in a proper case in whicli the persons claiming them were parties. This was done in Pleasants v. Pleasants, 2 Call 270, (Tate’s edition.) The bill in that case was filed against the claimants, but omitted to make the slaves parties; their emancipation was nevertheless decreed. In Elder v. Elder’s ex’or, 4 Leigh 252, the bill was filed by a legatee against the executor, omitting the slaves as parties, yet the court decreed the freedom of the slaves.
The objection by the appellants, next in order is, that the slaves, or some of them, are not emancipated by Taylor’s will; that even if such of them as were in being at his death were emancipated from and after Mrs. Johnson’s death, yet that such of them as were bom after Taylor’s death and before Mrs. Johnson’s death, being the issue of mothers in the condition of slavery, are themselves slaves.
The first branch of this objection is insisted on, because, as is alleged, the slaves were left by the will in the condition of slavery at the death of Mrs. Johnson, with the capacity to become free upon their election to become so; and until the election shall be made, *128they remain in . the condition of slavery: And we are referred to the case of Elder v. Elder's ex'or, above cited. This part of the objection is founded on a misapprehension of the will. The counsel construe the will as directing that the slaves shall remain such until they elect to become free; whereas the will, in a substantive clause, distinctly manumits them; and after-wards, in another clause, gives them the election to remain in the state of Virginia, in a condition intermediate between slavery and freedom. The latter alternative is against the settled policy of the law, and has no effect. Forward's adm'r v. Thamer, 9 Gratt. 537. The bequest of freedom is in no wise impaired by the impracticable and repugnant alternative offered to the choice of the slaves., In regard to the issue of the female slaves born after the death of Taylor and before the death of Mrs. Johnson, it is insisted that they are slaves; that they remain in the condition of their mothers at the time of their several births: and the case of Maria v. Surbaugh, 2 Rand. 228, is referred to in support of this branch of the objection. If we concede to the case just cited all the effect which can be claimed for it in cases in which it applies, yet the rule thereby established does not govern a case like this. In our case the testator bequeaths his slaves by the general description, “the whole of my negroes not before disposed of or devised,” in trust for Mrs. Johnson’s benefit during her life; and declares, that “ at the death of Mrs. Johnson, it is my further will and direction that the slaves embraced in this item be emancipated.” Such a general description has been frequently held to embrace not only the parent stock of slaves in being at the time of the testator’s death, but all increase thereafter born, but born before the emancipation was fully perfected. In Pleasants v. Pleasants, 2 Call 270, (Tate’s edition,) the testator said in his will, “my further desire is, respecting my poor *129slaves, all of them as I shall die possessed with shall be free,” &c. These terms were held to embrace all the slaves whenever born, and to emancipate them, as they arrived at the age fixed by the testator for the purpose. In Elder v. Elder’s ex’or, 4 Leigh 252, the terms “ the remaining part of my negroes,” were held to include the increase of the slaves born after the death of the testator but before the time for perfecting the emancipation directed by the will. In Erskine v. Henry, 9 Leigh 188, the testator gave his slaves to a legatee foj life, (as in our case,) and at her death directed “ all his negroes to be free and at full liberty.” These terms were held to include the increase of the slaves whilst they were in the hands of the life tenant. In Anderson’s ex’ors v. Anderson, 11 Leigh 616, the testator directed his slaves to be retained in the condition of slavery for a time, but at certain periods, or on certain events, provided for their emancipation, describing them as “all” his negroes. It was held that the issue born of a mother before the time for her emancipation were emancipated by the will. In Binford’s adm’r v. Robin, 1 Gratt. 327, the terms used by the testatrix, “ that all my negroes be liberated,” were-held to include not only slaves in possession, but also a reversionary interest in slaves depending upon a life estate; and this, although the life estate did not expire until after the death of the testatrix, and the portion falling to her estate was then for the- first time set apart upon partition with other parties interested. In Lucy v. Cheminant’s adm'r, 2 Gratt. 36, the testatrix bequeathed “ all the rest of her slaves” to two for their lives, and to the survivor for life; and on the death of the survivor directed that “ said slaves be set free.” It was held that all the slaves, including those born during the life estate, were emancipated. These cases establish the rule which must govern this case; and we must hold that all the slaves in being at Mrs. *130Johnson’s death, belonging to Taylor’s estate, are emancipated by his will.
It is said by the appellants’ counsel, that although all the slaves in being at the time of Mrs. Johnson’s death be emancipated from that time, yet they were held in slavery and hired out for some time after their right to freedom accrued; and that the appellants, the next of kin, are entitled to the hires as part of Taylor’s estate not disposed of; there being no creditor to claim them or any part of them. To sustain this position we are referred to Pleasants v. Pleasants, 2 Call. 270; Paup's adm'r v. Mingo, 4 Leigh 163; Peter v. Hargrave, 5 Gratt. 12. These cases settle the law as it formerly stood, against the right of freedmen to recover hires of a person holding them in slavery. The judges of this court, from time to time, whilst acquiescing in the decisions referred to, and admitting the expediency and policy on which they were founded, have nevertheless admitted that it would be but natural justice to allow hires to freemen wrongfully held in slavery. Eecognizing the cases cited as furnishing the rule in any case in which they apply, it must still be observed that the case before us presents features not found in any other case. In each one of the cases cited the hires claimed had accrued whilst the freemen were detained in slavery by the claimant, either in his own right or in autre droit. In oür case the hires did not accrue whilst the slaves were held by the administrator, representing the estate. On the contrary, those hires accrued whilst the slaves themselves were under the control of the court, where they had been placed by the administrator. That court took upon itself the duty of executing the trust theretofore confided to the administrator; and although the administrator was directed by the court to perform the duty of hiring out the slaves, still, in obeying the order of the court, he was acting merely'as the officer of the court; liis *131official authority or responsibility as administrator was in no wise involved in the hiring of the slaves; the court had assumed his place and authority. In the progress of the suit it was ascertained that no cause had existed which should have prevented the administrator from setting the slaves at liberty upon the death of Mrs. Johnson. He should therefore have done so, and the freedmen would have enjoyed the fruits of their own labor. On general principles of equity it was the duty of the court, as far as practicable, to place every one in the condition in which he was intended to stand according to the true meaning of the will. Although the time for an exact execution of Taylor’s will had passed, yet no reason can be shown why it should not be executed as nearly as practicable. To give the freedmen their hires accrued after they should have enjoyed their freedom will be clearly within the testator’s meaning. By giving them freedom he gave the right to enjoy the fruits of their own labor. The court, by giving them the hires under its control will, to that extent, give effect to the will. Ho considerations of inexpediency or impolicy intervene to prevent this disposition of the fund. The next of kin have never had possession of the slaves, and have had no reason to rely upon the hires as a source of revenue. They have incurred no expense in rearing and supporting them. The difficulty of settling an account of expenses on the part of the owners or claimants and of hires on the part of the slaves does not exist. In fine, none of the reasons which led to the decisions in the cases cited, exist in this case.
If necessary for the decision of this case, it might be a question how far the assent to the legacy for life of the slaves to Mrs. Johnson enured to the benefit of the slaves who were to be manumitted at her death; whether the assent to the legacy for life should be regarded as an assent to the ulterior disposition of the *132property. See Bishop's ex'or v. Bishop, 2 Leigh 484; Lynch v. Thomas, 3 Leigh 682; Nicholas v. Burruss, 4 Leigh 289. In the opinion of a majority of the court, it is not necessary for the decision of this case to pass on the question. I content myself, therefore, with a reference to these cases on the subject.
Regarding the case as standing upon the law existing at the date of Taylor’s will, I should have no hesitation in deciding that the freedmen, under the circumstances of this ease, are entitled to their own hires. The law since that time, however, has been so changed as to leave less room for doubt. The Code of 1849, ch. 106, § 8, p. 465, by giving a new capacity to freedmen improperly held as slaves under the circumstances of this case, has removed perhaps the only reason not yet considered, for the decisions heretofore made. In' Pleasants v. Pleasants, before cited, at the •date of the will and at the death of the testator, manumission was not permitted by law: yet the testator, anticipating a change in the law, gave directions for the emancipation of his slaves when the law should permit it to be done. When, therefore, the law subsequently permitted freedom to be given by the master and accepted by the slave, it was held that the slaves were free. In our case, the will gives freedom, which contains in itself the right to enjoy the fruits of their own labor. The capacity of the freedman is a subject within the scope of legislative authority; and when that capacity is enlarged by subsequent laws, so as to give them a right to their own hires accrued whilst improperly held in servitude, we should do no more than was done in Pleasants v. Pleasants, if we carry the law into effect. In that case the incapacity prevented the slaves from receiving freedom at all; yet when it was removed, the grant became effectual. In our case, as is said, the incapacity was confined to the claim of profits only; this incapa*133city being removed, no reason exists to withhold the hires from the freedmen against the intention of the testator Taylor. I think the Circuit court did right in decreeing the freedom of the slaves, and in giving them their own hires.
I am of opinion, moreover, that the .court should not have decided the question of succession to the residue of Taylor’s estate, (other than slaves,) without having before it all parties who are interested in the question. That residue is claimed on behalf of Mrs. Johnson’s estate, and it has, in part, been decreed to the estate; it is claimed by the appellants, the next of kin; and it appears in the record, that Philip T. Hancock has such interest, or color of interest, as to make him a necessary party; a part of the real estate having been decreed to him, although he is no party to the suit. The residuary legatees named at the foot of the sixth clause of Taylor’s will, including the emancipated slaves, have also such interest or color of interest in the residue above mentioned, as to make it proper they should be parties to any proceeding for the final adjudication of the conflicting claims thereto.
Thus I am of opinion to affirm so much of the decree as gives freedom to the slaves, and gives them their hires; and to reverse so much of the decree as disposes of any part of Taylor’s estate, real or personal, (other than slaves,) with costs to the appellants against Mrs. Johnson’s estate; and to remand the cause, with directions to allow the defendants or any of them to file a cross bill, if they shall be advised to do so, to bring more distinctly before the court the subject and questions in controversy, and to cause Philip T. Hancock to be made a party. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481518/ | Daniel, J.
concurred in the decree to be rendered, except as to the hires of the negroes before the act of 1849. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481520/ | Allen, P.
This case brings again before the court the question, so often discussed here and in England, as to the operation of the rule in Shelley's Case, that where an estate of freehold is limited to a person, and the same instrument contains a limitation, mediate or immediate, to the heirs of his body, or to his heirs, the ancestor takes the whole estate comprised in the terms, either as a fee tail or a fee simple. In this case there is no limitation over on the failure of issue; and the only question arising on the will is, whether the testator, in reference to the devise or bequest to his daughters Mary Murphy and Caroline Brooks, used the words “heirs lawfully begotten” in their legal, primary and proper sense, or whether he used them as descriptive of some other class of objects. In the view I take of this case, the interpretation of the will *144is not affected by the character of the property. If, as applied to real estate, the clause would have created an estate tail in the daughters, in such case the full and entire interest in personalty would pass to the legatee; as an estate tail,in personal property gives the absolute dominion.
When a testator uses a term having a well known legal meaning, he is to be understood as having used it in that sense, unless the context shows that he used it in a different sense. Unless that is apparent, the rule is inflexible; and though the testator may have supposed that the first taker would take an estate for life only, and perhaps so intended as then advised, yet it does not follow if he had been aware of all the consequences of a change in the term used, that he would have made it. The will bequeaths the property to his daughters, to be held by them during their natural lives and no longer, and then to be equally divided between their heirs lawfully begotten. If the words “ during their natural lives and no longer,” and “ then equally divided between their heirs,” are to be construed as modifying the words “heirs lawfully begotten,”-and as describing another class, and to imply children, who were to take as purchasers, then if the daughters had died leaving grand children, they would have been excluded. But giving the term heirs its legal and proper sense, all the descendants of the daughters would be embraced. So that it is at least conjectural, if we are to look to intention alone, in what sense the testator meant to use the term. It therefore would seem that the better plan is to give such words their plain, legal effect, and to reject mere loose expressions, from which to infer an intention that they were used as descriptive of a different class of objects.
The words here relied on as modifying the words “ heirs lawfully begotten,” do not indicate such inten*145tion so clearly as to justify the conclusion contended for. “During their natural lives and no longer,” is no more than to show what appears in all these cases, that he meant to confer an estate for life; and it is to this class of cases that the rule in Shelley's Case applies: and the words “ equally divided between their heirs,” are, as it seems to me, entitled to but little weight in fixing upon the word “ heirs” the meaning contended for. In England they were entitled to more consideration, as indicating an intent that the estate should not pass according to the law of descents. With us, where estates tail are converted into estates in fee simple, and the doctrine of primogeniture is abolished, and the general sentiment is in favor of an equal division amongst those standing in the same relation, the inference would be that the testator, by the use of these words, intended that they should take as heirs rather than in any other character. But upon this question the authorities are numerous both in England and in Virginia; and they have been conflicting and inconsistent. It is conceded in the argument, and the cases show, that such expressions as “share and share alike,” or “ as tenants in common,” &c. have controlled the word “ heirs.” The whole question was elaborately discussed and carefully considered in the case of Jesson v. Wright, 2 Bligh’s P. R. 1, upon appeal to the house of lords.
The devise was to W for life, and after his decease, to the heirs of his body, in such shares and proportions as W by deed, &c. should appoint; and for want of such appointment, to the heirs of the body of W, “ share and share alike as tenants in common.” And if but one “ child,” the whole to such only child; and for want of such issue, to the devisor. The court held that an estate tail vested in W by this devise, reversing the decision in King’s bench, and overruling all that class of cases which had given to such words the *146effect of modifying and controlling the meaning of the technical word “ heirs.” Lord Eedesdale said, “ That the general intent should overrule the particular, is not the most accurate expression of the principle of decision. The rule is that technical words shall have their legal effect, unless from subsequent inconsistent words it is very cleat that the testator meant otherwise.”—“ It has been argued that heirs of the body •cannot take as tenants in common; but it does not follow that the testator did not intend that the heirs of the body should take, because they cannot take in the mode prescribed. This only follows, that having given to heirs of the body, he could not modify that gift in the two different ways he desired, and the words of modification are to be rejected.”
Several cases have occurred since the case of Jesson v. Wright; and though in some instances the principle of that case may not have been followed out, yet the weight of authority is in favor of the rule there enounced. The cases on this subject are reviewed in 2 Jarm. on Wills 271., ch. 37'; and he concludes that the doctrine of Jesson v. Wright has prevailed, and stands on the soundest principles of construction. Hayes on Estates Tail 100, 7 Law Libr. 54, sustains the same proposition. See also to the same effect Powell on Devises 464, ch. 23, 22 Law Libr. 245.
The words in the will under consideration are not so strong as in the case referred to. There the heirs of the body could not take as tenants in common, and the court was compelled to reject the words of modification. In this case the words of modification are not inconsistent with the operative words of the bequest or devise, because the property passing by descent to the heirs, would be equally divided if they all stood in the same degree of relationship.
It is contended, however, that this is no longer an open question in Virginia; and that the precise ques*147tion has been adjudged in at least one ease, and the principle affirmed in others. Bradley v. Mosby, 3 Call 44, is relied on as having in effect settled the principle that the word “ heirs” should, in a will like this, be treated as descriptive of another class, the children of the first taker. In that case there was a limitation by deed of slaves to the donor’s daughter for life, and after her death to the heirs of her body, to the only proper use and behoof of such heirs, “their executors, administrators and assigns.” The court, consisting of Judges Pendleton, Lyons and Roane, was divided j each judge giving a different construction to the will. Pendleton founded his opinion upon the supposed distinction between words which create an express estate tail, and such as create an estate tail in lands by implication and construction, to favor the intention to provide for the issue; and maintained that the latter ought not to be applied to personals to defeat the intention. But the rule in question is not confined to cases in which the words, if applied to real estate, would create an express estate tail; it applies also to cases in which an estate tail would arise by implication, with the exception of those cases in which words expressive of a failure of issue are in gifts of personal but not of real estate, confined to issue living at the death; questions depending not so much upon the sense in which the word “heirs” has been used by the donor, as upon the fact whether the limitation over is too remote. Powell on Devises 632, (mar.) 22 Law Lib. 338; 2 Jarm. on Wills 489, ch. 44. In the case of Lampley v. Blower, 3 Atk. R. 396, referred to by Judge Pendleton, Lord Hardwicke said, that a gift to A and her issue would vest the whole interest in A if it had stopped there; but held that the bequest over, in case either of the legatees died without leaving issue, which in regard to personalty, in legal construction means issue living at the death, explained issue in the body *148of the devise to be used in the same sense. Judge Roane rested his opinion exclusively upon the words giving the property to the heirs of the first taker, to the only proper use of such heirs, their executors, administrators or assigns, as showing “ there was no eye of entailfor it could not go from one heir of the body and his executors and administrators to another heir and his executors and administrators; for which he cites Hodgeson v. Bussey, 2 Atk. R. 89; Theebridge v. Kilbourne, 2 Ves. R. 233, which in a great measure turned upon the import of those words. Lyons, judge, held that the words would have given an estate tail in lands, and therefore they gave the absolute property in slaves. The case therefore decided no principle applicable to the will now under consideration; and the opinions of Judges Roane and Pendleton were founded, the first upon expressions not found in this will, and the last upon the idea of a distinction between cases in which the words when used in reference to realty would create an express estate tail, and those in which an estate tail would be created by implication: a distinction it appears that does not exist except in certain cases where words expressive of issue receive a different construction as applied to real and personal estate; as in the case of the phrase “ leaving no issue;” in respect to which it has been held that it means an indefinite failure of issue where real estate is the subject, but in reference to personal estate, it means a failure of issue at the death. Forth v. Chapman, 1 P. Wms. 663.
Warners v. Mason & wife, 5 Munf. 242, turned upon the question whether the limitation over was too remote. The testator devised land to his son during his natural life, and then to his heirs lawfully begotten of his body, “that is, born at the time of his death or nine calendar months thereafter;” and for want of such heirs, then to his nephews, one to set a piice and *149give or receive such price from the other: This was held to be a good limitation over. Ho opinion was given by the court, but it is manifest the court held that the testator looked to the period of the death of his son, and not to an indefinite failure of issue, because he speaks of heirs born at the son’s death; and the remainder was to persons in being who were the objects of his bounty. These superadded words to the words “ heirs lawfully begotten,” demonstrating that the testator did not contemplate an indefinite failure of issue.
Pryor v. Duncan, 6 Gratt. 27, was decided upon the ground, that although the words “ heirs lawfully begotten,” were used in one clause, the whole context showed that the words were not used in their legal and primary sense, but were descriptive of another class of persons fully pointed out in a following clause, as the children of the first taker. He lent the slaves to his daughter during her natural life, and to her heirs, &c. Her interest was to cease, and his executors to take possession, if she concealed or attempted to alienate the slaves; in such case, after her decease they and their increase to be divided among her “ children,” if any living; otherwise to be divided among the testator’s children, (naming them,) and their heirs. Thus showing, from the indifferent use of the words “ heirs” and “ children,” by the restricted power over the property, and by the bequest over if no “ children” living at her.death, that he used the words “ heirs lawfully begotten” in the sense of “ children.”
The last case to which the counsel of the appellant referred is the case of Self v. Tune, 6 Munf. 470. By deed slaves were given to a daughter of the donor and her husband, for and during their natural lives; and after the decease of both, the slaves and their increase “to be equally divided among the heirs of her body:” and in default of such heirs, to return and be equally *150divided between the donor’s son and other daughter, and their heirs. The court, in the brief opinion pronounced by Judge Roane, says, If these words “heirs of her body” had stood alone in the limitation after the death of the daughter and her husband, her title would have been absolute; as in that case they would have been words of limitation: But the addition of the words “ equally to be divided between them,” compelled the court to construe them as words of purchase, and as a description of the persons who were to take.”
The cases of Wilson v. Vansittart, Amb. R. 562 ; Doe ex dem. Long v. Laming, 2 Burr. R. 1100, and cases of that description, where words of that and the like character were held to modify the words “ heirs of the body,” were overruled by Jesson v. Wright, and the cases which have followed it. Powell on Devises 466, 22 Law Libr. 249; 2 Jarm. on Wills 286, ch. 37; where all the cases are collated.
The case of Self v. Tune forms one of a series decided about the same time upon the construction of the rule in Shetteifs Case, and what would amount to a good limitation over. These are the cases of Timberlake v. Graves, 6 Munf. 174; Gresham v. Gresham, Id. 187; James v. McWilliams, Id. 301; Cordle's adm'r v. Cordle, Id. 456; and Didlake v. Hooper, Gilm. 184. The authority of these last cases has been shaken, if not overthrown, by the subsequent cases of Bells v. Gillespie, 5 Rand. 273; Broaddus v. Turner, Id. 308; Griffith v. Thompson, 1 Leigh 321; Callava v. Pope, 3 Leigh 103 ; Deane v. Hansford, 9 Leigh 253; Nowlin v. Winfree, 8 Grratt. 346. Which latter cases have, it is believed, been more in conformity with the English cases and the earlier cases in this court. The precise question decided in Self v. Tune did not arise in any of the latter cases; though the general principles on which the latter cases proceed may not be precisely in conformity with the doctrine of that case.
*151In Deane v. Hansford, 9 Leigh 253, Judges Parker and. Brockenbrough observed, that as Timberlake v. Graves was followed in quick succession by the other cases named, they should be considered as settling the law in cases exactly resembling them; more especially as in devises made since the act of 1819 took effect, the statutory rule will prevail. But Brockenbrough said that if Timberlake v. Graves stood alone, he would have concurred in overruling it. In conformity with this suggestion, perhaps if Self v. Tune stood alone, it should be recognized as ruling a case exactly resembling it, although it might be considered as having been erroneously decided. But besides being in some degree shaken by the general doctrines advanced in the later cases, the principle of the case is, as it seems to me, in conflict with the two cases of Goodwin v. Taylor, 2 Wash. 74, and Wilkins v. Taylor, 5 Call 150, The testator, in the first case, gave to his daughter the interest of a sum of money for life; at her death he gave the interest one-fourth to each of bis grand children, and at their decease, the principal and interest to be disposed of by them to their heirs, “in such proportions” as they by their wills respectively may direct: and in case of the death of Sarah (one of said grand children) without issue, her part was bequeathed over. There is not an express gift to the grand children for life, but the interest alone was given to them, with the power to dispose by will: and in regard to Sarah, there was a gift over if she died without issue. The will gave power to dispose of the subject to their heirs in such proportions as they by their wills may direct. The court held that the grand children took the whole estate. In the case of Willcins v Taylor, which arose on the same will, in reference to the share of Sarah, it was held to be a limitation after an indefinite failure of issue, and void. The power to dispose of the principal to their heirs *152in such proportions as they by their wills might direct, tends more strongly to indicate that the testator intended that the heirs should not take in the regular course of descent, than the words “equally to be divided” in the present will. On the contrary, the words “equally to be divided” would, under our law, rather indicate that they should take as heirs. I do not think that the will in this case shows that the testator used the words “heirs lawfully begotten,” in any other than their ordinary sense. That he designed “children” by the use of these words, is entirely conjectural; and under a certain state of facts, such a construction would have been more likely to violate than to subserve the intention of the testator. I also think that the authorities in this court are not in harmony with each other, and that it would be more in conformity with the spirit of the later as well as of the earlier cases in this court, and the true doctrine in regard to the rule in question, to hold that the superadded expressions do not indicate clearly an intention to use the term as descriptive of any other class than the heirs. I think therefore that the decree should be affirmed.
Moncure and Lee, Js. concurred in the opinion of Allen, J.
Daniel and Samuels, Js. dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481521/ | Moncure, J.
The first count of the declaration seems to be good, in substance at least if not in form; and I think the demurrer thereto was properly overruled. Indeed there is no complaint of error in the judgment in that respect.
The first and main question in this case arises on the instruction given to the jury in lieu of the second instruction asked for by the plaintiffs in error. Their liability for the value of the slaves in controversy under the first count of the declaration, depends upon whether the death of the slaves was occasioned by any default of the plaintiffs in error, the hirers of the slaves. If it was so occasioned, they are so liable; if it was not, they are not. Upon this subject I presume there can be no doubt; and this appears to have been the opinion of the Circuit court in giving the third instruction asked for by the plaintiffs in error. But that court, in giving the instruction which was given in lieu of the second instruction asked for, seems to *166have been also of opinion that if the slaves were hired with an agreement that they were to be employed only on that part of the Richmond and Danville railroad wmch runs through the county of Amelia, and if the hirers in violation of the agreement carried the slaves beyond the limits of the county of Amelia into the county of Chesterfield, and there worked them on said road; then that such violation was a conversion of the said slaves to the use of the hirers, and rendered them liable for the value of the slaves under the second count of the declaration, (which is a count in trover,) whether the death of the slaves was occasioned by such violation or not. I will now proceed to enquire as to the correctness of this opinion.
To sustain an action of- trover, the plaintiff must have a general or special property in the subject of the action, and a right of possession over it at the time of the conversion. Saund. on Plead. 869. A man who has delivered goods to a carrier or other mere bailee, and so parted with the actual possession, may maintain trover for a conversion by a stranger; for the owner has still possession in law against a wrong doer; and the carrier or other mere bailee is no more than his servant. Id. 873. But where property is bailed for a term, the bailor, having no right of possession, cannot maintain trover against a stranger for converting the property during the term. Id. 879. And this is the case though the conversion consist in an absolute sale of the property under an execution against the bailee. Gordon v. Harper, 7 T. R. 9; Bradley v. Copley, 50 Eng. C. L. R. 685. A bailee for a term, as for instance a hirer of a slave for a year, has an estate in the property during the term, and that estate must be determined before an action of trover can be brought against him in regard to the property. If the action be brought against him for an act done during the term, such act, to sustain the *167action, must have the double effect of putting an end to the bailment, and converting the property. It is not every violation of the contract by the bailee which will have that effect. A mere nonfeasance will%ot have it. Nor, it seems, will any misuser or abuse of the thing bailed in the particular use for which the bailment was made. Swift v. Mosely, 10 Verm. R. 208. But there are some acts which, being done by the bailee, will have that effect. The willful destruction by him of the thing bailed will have it. So also if the bailee use the thing for a purpose or in a manner not authorized by the terms of the bail ment, and such misuser be the cause or occasion of its loss, he will be liable in trover for its value. Such was the decision of this court in Spencer v. Pilcher, 8 Leigh 565. There the slave was hired in the county of Wood for agricultural purposes. In violation of the contract, he was carried by the hirer on a dangerous voyage, in the course of which he was drowned; and the hirer was held to be liable in trover for his value. But such liability was expressly put upon the ground that the loss of the slave was occasioned.by the violation of the contract, and not upon the ground that such violation would have made the hirer liable for the loss, whether so occasioned or not. The instruction of the court below, which was sustained in that case, was, “that if the jury are satisfied from the evidence that sending the slave on the voyage was a manifest-abuse of the right temporarily acquired by the hiring, and that he was lost to the plaintiff in consequence thereof, such abuse is equivalent to a wrongful or injurious conversion, and may sustain the count for trover.”
It has been decided in England, in several cases, that an absolute sale of property by the hirer during the term of the hiring, is such an act of conversion as makes him liable in trover for its value. Loeschman *168v. Machin, 8 Eng. C. L. R. 359, decided by Abbot, C. a^ prius in 1818, is the leading case of that It was followed by the Court of common pleas in Cooper v. Willemott, 50 Id. 672, decided in 1845. Tindal, C. J. was of opinion that the bailment in Loeschman v. Machin, was determined by the demand. But supposing it not to have been so determined, he said he could not get over the authority of that case, and was' not prepared to dispute the position taken therein. It was also followed by the Court of exchequer in Bryant v. Wardell, 2 Welsh. Hurls. & Gord. 478, decided in 1848 ; and in Fenn v. Bittleston, 8 Eng. Law & Equ. R. 483, decided in 1851. The doctrine, though recent in its origin, and though its introduction was strenuously resisted, may now be considered as firmly established in England. But it seems to rest on the ground that a sale of property by a bailee is equivalent to its destruction, so far' as his liability is concerned; and so comes within the principle laid down in Co. Lit. 71 a, (3 Thomas’ Coke 372,) that if one lends oxen to another to plough his lands, and he kills them, the owner may have treSj Vis or trover at his election ; that such a sale operates ke a disclaimer of tenancy at common law; that it di lps the bailee from returning the property at the enu of the term; and though it does not amount to an actual destruction of the property, yet it is so entirely inconsistent with the terms of the bailment that it puts an end to it, causes the possessory right to revert to the bailor, and entitles him to maintain an action of trover. See the judgment of the court delivered by Parke, B. in Fenn v. Bittleston, supra.
The doctrine of the case of Loeschman v. Machin has been followed in some of our sister states, as for instance in New Hampshire, Sanborn v. Colman, 6 New Hamp. 14; and Vermont, Swift v. Mosely, 10 Verm. R. 208. But it has not been followed in North Carolina. *169Andrews v. Shaw, 4 Dev. R. 70; and Lewis v. Mobley, 4 Dev. & Bat. 323. In the former case the hirer of a slave for a year sold it; and trover was brought against him by the owner during the year. Ruffin, C. J. said, “ Loeschman v. Machin is a nisi prius decision of C. J. Abbot, and is not satisfactorily reported.”—“ If it is meant in that case to say that a bailee upon hire for a determinate period forfeits his interest by abuse to the article, or by a wrongful sale, so that a purchaser from him gets nothing, I think it is not law. I do not know of any such doctrine of forfeiture as applied to personal chattels.” He thought the case came within the principle of Gordon v. Harper, and judgment was given for the defendant. In the case of Lewis v. Mobley, a tenant for life of a slave sold it absolutely, and after his death the remaindermen brought trover against the purchaser. Graston, J. in delivering the opinion of the court, said, “ To maintain the action it is indispensable that the plaintiff should show a conversion by the defendant of property whereunto the plaintiff, at the time of that conversion, had a present right of possession. It is certain that an action could not have been brought for this alleged conversion during the life of William Kemp, (the tenant for life,) because the right of possession had not then accrued to the ultimate proprietors. Gordon v. Harper, 7 T. R. 9 ; Andrews v. Shaw, 4 Dev. R. 70. And it follows as clearly, we think, it could not lie after the death of William Kemp, when the right of possession accrued, because there was no act of conversion thereafter.”
In Virginia the doctrine has not directly come in question, so far as it is applicable to the hire of a slave or other property for a year, or other term. In Poindexter v. Davis, 6 Gratt. 481, a tenant for life of a slave had sold it to a person who, believing he had an absolute interest in the slave, removed and sold it out of the state. And the question arose whether the *170tenant for life or .the purchaser from,him was liable to the forfeiture imposed by the act 1 Bev. Code, ch. Ill, § 48, p. 431. The .whole court was of opinion that the absolute sale by the life tenant was not void, but .valid to the extent of his interest in the slave. . Judge Baldwin. said, “ It passes to the vendee, as effectually as a rightful alienation, the title of the.vendor, and none other; and in no wise divests that of the remainderman or reversioner. It was not. the design of the legislature to adopt, in regard. to slaves, the common law doctrine of forfeiture by .wrongful alienation of tenants for life; which sprang,from principles of the feudal law, and was.applicable.only to conveyances of lands by feoffment, fine or recovery, which had the effect'of discontinuing the .estate of him in remainder or reversion.” Id. 497. Judge,Allen said, “The bill of sale, though absolute .on its face, was not void, because it purports to convey a greater interest than the grantor owned. It operated to vest the grantee with such title as the grantor could part with, and. made him the owner of a life estate.” Id. 505. In Philips v. Martiney's ex'or, 10 Gratt. 333, this court decided that where a tenant for life of a slave sold it absolutely, and after' the death of cestui que vie, the remainderman brought trover against the representative of the tenant, they could not maintain the action, not having had the right to the possession of the slave at the time of the sale. And the case of Lewis v. Mobley, supra, was cited and relied on by the court. So far, therefore, as our own decisions go, they tend to show that an absolute sale of personal property by a termor during the term does not work a forfeiture of the term, but is valid to the extent Of the vendor’s interest; and therefore does not amount to a conversion of the property for which trover can be maintained. There would seem to be no difference in this respect between a hiring for a year and for a term of years, or even for *171life. There may be a difference between a limited interest created by contract and one created in any other way, arising from the privity of contract existing in the former, and not in the latter case. ■ But it is unnecessary to decide the question in this ease, (as there was no sale of the slaves.in controversy,)'and I therefore express no opinion upon it.
■ Thus the law. seems to stand in regard to the destruction or sale of property by the hirer thereof, during the term of the hiring. ■ No. case iii England, so far as I am informed, has gone to the extent of deciding that any misuses of property short of its destruction or sale, or at least’ an attempt to sell it (as in the case of Loeschman v. Machin) by a bailee upon hire during the. term, will amount to a conversion for which trover will lie. And I am not aware of more than one or two cases in the United States which have gone to that extent; though dicta, to that effect are to be found in many cases. ’ There are passages in Story on Bailments which tend to support that view, and were much relied on by the counsel for the defendant in error in the argument'of this . case. . Section 413 contains a passage of this kind. The writer is there treating of the hire of things; and after giving several instances in which a thing hired for one purpose cannot be used for another, he uses this géneral language: “ And it may be generally stated, that if the thing is used for a different purpose from that which was intended by the parties, or iii a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss afterwards occurs, although by inevitable casualty, he will generally be responsible therefor. In short, such misuse^ is deemed at the common law a conversion of the property for which the hirer is generally held responsible-to the letter to the full extent of his loss.”' The word “generally,” which is twice used in this passage, is indefinite; and it does *172not appear what cases, in the writer’s view, would fall within the general rule, and what within the exceptions. If he merely intended to say that the hirer is responsible for the loss when it is occasioned by the misuser, though inevitable casualty be the proximate cause of the loss, no fault can be found with the position. Spencer v. Pilcher was a case in which, while misuser was the occasion of the loss, inevitable casualty was the proximate cause of it. If the slave in that case had not been wrongfully carried on a dangerous voyage, he would not have been drowned: though having been so carried, there was thereafter no want of due care on the part of the hirer, and the drowning was purely accidental. That kind of inevitable casualty is no excuse to a wrong doer, who cannot apportion his wrong by saying, that the property might have been lost in some other way if it had not been misused. But if the writer intended to say that every such act of misuser by a hirer, whether it be the cause or occasion of the loss of the property or not, is a conversion thereof, and works a forfeiture of his interest therein, I do not think his position is sustained by authority, or by reason. The cases which he cites in support of the passage do not sustain it in this view. Among them are three Massachusetts decisions, which were much relied on in the argument, especially the first of them, viz: Wheelock v. Wheelwright, 5 Mass. R. 104; Homer v. Thwing, 3 Pick. R. 492 ; and Rotch v. Hawes, 12 Id. 136. Wheelock v. Wheelwright was a special action on the case for the value of a horse hired to be’^rCcfe''four and a half miles, and to be returned by 7 o’clock P. M.; but which was rode nine miles, and died at 10 o’clock P. M. in the possession of the hirer. The facts were agreed, and among them, that the defendant did not ride the horse immoderately, or neglect to feed, or cover him properly with clothes. The court was of opinion that the case agreed had ne*173gatived the gravamen alleged in the declaration, and that the plaintiff could not recover in that action. But the court proceeded further to say, “ the defendant, by riding the horse beyond the place for which he had liberty, is answerable to the plaintiff in trover,” &c« This is not a part of the decision of the court. Though I do not mean to say it would have been an erroneous decision, if the action had been trover. The hirer retained and used the horse after the period for which it was hired, as well as for a longer journey; and so was like any other wrong doer having no interest in the property which is the subject of the wrong. Homer v. Thwing was an action of trover against an infant for the conversion of a horse, and was similar in its facts to Wheelock v. Wheelwright, on the authority of which it was decided. The observations last made in regard to that case apply also to this. Rotch v. Hawes was also an action of trover for the conversion of a horse. The action was not sustained, because the owner received payment of hire for the whole distance traveled, and thereby ratified the act of the hirer in going further than the original contract allowed. Though the court took occasion to say, “ there can be no question but that the plaintiffs’ action would be maintained if they had relied upon the original contract. They might have elected and insisted that the defendant converted the horse by going beyond "the journey agreed upon.” The observations above made in regard to Wheelock v. Wheelwright apply also to this case. It is unnecessary to notice any of the other authorities cited by Story in support of the passage above quoted, as none of them seem to go so far as the three cases on which I have just commented.
In the last edition of his work on bailments, § 413, is followed by § 413 a, b, c and d, which are not in the first edition, and which show that the general rule as laid down in § 413, is by no means settled, and at *174all events is subject to material qualifications and exceptions. In § 413 a, he remarks, “ But although this is the general rule, a question may arise how far the misconduct or negligence or deviation- from duty of the hirer will affect him with responsibility for a loss which would and must have occurred even if he had not been guilty of any such' misconduct, negligence or deviation from duty.” And after giving, in that and subsequent sections, various instances in illustration of this remark, he concludes, § 413 d, with this observation: “ The question, therefore, in the present state of the authorities, must still be deemed open to controversy. Whenever it is discussed, it will deserve consideration,' whether there is or ought to be any difference between cases where the misconduct of the hirer amounts to a technical or an actual conversion of the property to his own use, and cases where there merely is some negligence or omission, or violation of duty in regard to it, not conducing to or connected' with the loss.”
I think the doctrine laid down by Story in § 413, receives no support from any thing to be found in Jones on Bailment^. There is a passage on p. 121, which, taken by itself, seems to tend that way. “ A borrower and a hirer (he says) are answerable in all events, if they keep the things borrowed or hired after the appointed time, or use them differently from their agreement.” But this passage must be taken in connection with what he says elsewhere, and especially at p. 70, where he says, “If the bailee, to use the Boman expression, be in mora, that is, if a legal demand have been made by the bailor, he must answer for any-casualty that happens after the demand, unless in cases whére it may be strongly presumed that the same accident would have befallen the thing bailed, even if it had been restored at the proper timeor, unless the' bailee have legally tendered the thing, and the bailor*175have put himself, in mora, by refusing to accept it; this rule extends of course to every species of bailment.” In fact there is nothing said in the work about the action of trover, or any difference between the extent of liability in that form of action, and in a special action on the case or upon the contract of bailment. In the passage above quoted, the writer is referring to a liability which may be enforced in the latter form of action; and the words “ all events,” and “ casualty,” contained in those passages, are to be construed as events-and casualties occasioned by the wrongful act of the bailee.
Nor is the doctrine sustained by any of the other authorities . cited by the counsel for the appellees. Duncan v. The South Carolina Railroad Co. 2 Richardson’s R. 613, was an action of covenant. McLaughlin v. Lomas, 3 Strobhart’s Law R. 85, seems to have been a special action on the case, and not trover. Mullen v. Ensley, 8 Humph. R. 428, was a suit in chancery. The Mayor, &c. of Columbus v. Howard, 6 Georgia R. 213, was an action on the case, and the declaration contained a count in trover. In all these cases the recovery was sustained upon the ground that the death or injury of the slave (which was the subject of controversy therein respectively) resulted from his being used for a different purpose from that intended by the parties, or else that the loss ensued from gross negli-j gence, or other violation of the contract of hiring on/ the part of the hirers. In most or all of them, the doctrine laid down by Story is repeated, or referred to by the judges or some of them; but it is obvious that none of the cases rest upon that doctrine.
The only case I have seen which seems fully to sustain it is Horsley v. Branch, 1 Humph. R. 199, founded on the authority of a former decision of the same court, in Angus v. Dickerson, Meigs’ R. 459, which I have not seen.
*176Upon the whole, I am of opinion that in the case of a bailment upon hire for a certain term, (whatever may be the law in regard to a deposit, a mandate, or other gratuitous bailment, or any bailment during the mere pleasure of the bailor, as to which it is unnecessary to express any opinion,) the use of the property by the hirer during the term, for a different purpose or in a different manner from that which was intended by the parties, will not amount to a conversion for which trover will lie, unless the destruction of the property be thereby occasioned; or, at least, unless jthe act be done with intent to convert the property, land thus to destroy or defeat the interest of the bailor 'therein. Whether, if the act be done with such intent, but do not occasion the destruction of the property, it amounts to a conversion, is a question not necessary to be decided in this case. Without intending to express an opinion upon it, I will consider it as answered affirmatively, for the purposes of this case.
The hirer may be restricted in the use of the property by the terms of the hiring, and will be liable for all damages arising from a violation of his contract, on the same principle, and to the same extent, on which a party to any other contract is liable for its violation. An express provision in the contract that the bailment shall be determined by a violation of any its terms by the bailee, would doubtless be valid. But a bailment upon hire is not conditional in its nature, any more than any other contract; and, in the absence of an express provision to that effect, the bailee will not, in general, forfeit his estate by a violation of any of the terms of the bailment. ./
If any violation of the contract by the hirer, with the exceptions before mentioned, would work a forfeiture of his interest, and be a conversion of the property, it is strange that no case to that effect can be found in any of the English reports. The only case I *177have seen in those reports, in which such a doctrine seems to have been contended for, is Lee v. Atkinson, decided in 8 Jac. 1, and reported in Yelv. B. 172, and Cro. Jac. 286. There, A hired a horse to B for two days, and to go to a certain place. B was riding the horse to another place, when A attempted to take him away. B brought trespass against A, who pleaded justification. But the plea was not sustained. The reason assigned for the judgment was, that “the plaintiff had a good special property for the two days against all the world; and although the defendant pretends that the plaintiff misbehaved himself in riding to another place than was intended, yet that is to be punished by an action on the case, but not to seize the gelding.” It may be said that A had no right to unhorse B by violence, even though the bailment had been determined; and therefore it was unnecessary to decide whether or not it was determined by the wrongful act of B. I refer to the case only as tending to show the opinion of the court on the subject at that early day, and in the only case in which it seems to have come under judicial consideration in England, even incidentally.
The exceptions to the general rules (that for an injury to hired property during the term, trover cannot be maintained by the bailor,) seem to rest upon the ground that the bailment is determined by the voluntary act of the bailee. If he destroys the property, of course he determines the bailment. His duty is to take due care of the property during the term, and return it to the bailor at the expiration thereof. By destroying, he disables himself from returning it. There seems to be no difference, in this respect, between its willful destruction by him, and a destruction arising from his using it in a manner or for a purpose not authorized by the contract. In either case it may be said that the bailment is determined by his volun*178tary act. If lie sells the property absolutely, he also disables himself from returning it, and renders it difficult for the bailor to regain possession at the expira^011 °f the term. If he attempts to sell it, or exercises any other act of absolute ownership over it, his act is so entirely inconsistent with the terms of the bailment, and so subversive of the rights of the bailor, that it may have the effect of determining the bailment. It may operate like a disclaimer of tenancy at common law, and deprive the bailee of the protection of the bailment in an action of trover for the conversion of "the property. But if he merely use the property in a manner or for a purpose not authorized. by • the contract, and without destroying it, or without intending to injure or impair the reversionary interest of the bailor therein, such misuser does-not determine the bailment, and therefore is not a conversion for which trover will lie. The bailee does-not'thereby violate any possessory right of the bailor, nor disable himself from delivering the property to the bailor at the end of the term. He is entitled to the exclusive use of it during the term, and intends only to use it during that period. He does not disclaim the title of the bailor. He is not like a wrong doer having no interest in the property, and who is guilty of a'conversion if he take or detain it for the use of himself or another; “for this simple reason, that it is an-act inconsistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places.” Alderson, B. in Fouldes v. Willoughby, 8 Mees. & Welsb. 54. In such a case the wrongful act is conclusive evidence of an intention to convert, as a man is presumed to-intend'-'the natural and necessary consequence of his act. No such conclusion can be drawn from the mere misuser of property by a hirer during the term. The act of misuser, to be a conversion, must occasion the loss of the pro*179perty, or be done with the actual intent to convert it.J A contrary doctrine would be attended with very harsh and unjust consequences. A man hires a slave for a year, to work in one county, and employs it on the first day of the year, in an adjoining county. According to the doctrine in question, he thereby forfeits his interest, and may be immediately sued for the slave, or its value. Or, if he is permitted to retain possession of the slave until the last day of the year, when it dies, he will, according to that doctrine, be liable for the value of the slave, though employed every other day of the year but the first, in strict pursuance of the terms of the contract, and though its death may not have resulted, directly, or indirectly, from any violation of the contract. The same principle would apply to any term of hiring. And if we suppose a case of hiring for a term of years, or for a lifetime, the injustice of the doctrine will be still more apparent. Its injustice, however, is sufficiently apparent in its application to the very common case in Virginia of the hiring of a slave for a year. While such a doctrine would do great injustice to the hirer, it is not necessary for the protection of the rights of the owner of the slave. The parties may make the contract conditional, if they choose, and reserve to the owner the right to resume possession for any violation of its terms by the hirer. In the absence of such a condition, a court of equity would doubtless interpose to protect the rights of the owner, if the safety of his slave were likely to be endangered by a violation of the contract by the hirer. The owner has ample, and often concurrent, remedies to recover any damage he may sustain from any violation of the contract or any breach of duty on the’ part of the hirer in respect to the slave.
Let us now apply what has been said, to the case under consideration. The hirers in this case did not *180willfully destroy the slaves; nor is it pretended that in employing them in the county of Chesterfield, instead of the county of Amelia, they intended to convert the slaves to their own use, or to injure or impair the reversionary interest of the owner. Then, if such employment of the slaves in Chesterfield instead of Amelia, was a violation of the contract, the liability of the hirers for the value of the slaves by reason of such violation, depends upon whether the death of the slaves was thereby occasioned or not; and is precisely the same under the second as under the first count of the declaration. It makes no difference, in principle, that the slaves died while they were employed in the county of Chesterfield; though it is a very important circumstance for the consideration of the jury in determining whether the death of the slaves was occasioned by the supposed violation of the contract. If the slaves had been employed but a short time in Chesterfield, and then carried to Amelia and employed there until their death, it might have been an easy matter to have determined whether their death resulted from their temporary employment in Chesterfield. But having been employed only in Chesterfield, and died there of pneumonia, it may be very difficult to show that their death would have happened if they had been employed only in Amelia. The burden of satisfying the jury of this fact devolves on the hirers, as the loss happened while their supposed wrongful act was in operation and force, and may have been occasioned by that act. Though difficult, it may not be impossible, to bear this burden. The nature of the disease of which the slaves died; its prevalence in the neighborhood of the place where they would have been employed in Amelia; the proximity of that place to the place of their death; would be material circumstances for the consideration of the jury, and might of themselves, or in connection with *181others, satisfy them that the slaves would have died if there had been no such violation of the contract as the instruction supposes. The case, in principle, very much resembles several stated in the sections in Story on Bailments, before referred to; and especially the case of Davis v. Garrett, 6 Bing. 716, 19 Eng. C. L. R. 212, referred to in § 413 d, and cited at length in note 5 to that section. That was a special action on the case to recover damages for the loss of a cargo of lime. The plaintiff put the lime on board the defendants’ barge to be conveyed from Medway to London. The master of the barge deviated unnecessarily from the usual course, and during the deviation a tempest wet-ted the lime, and the barge taking fire, the whole was lost. The objection taken was that there was no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course. Tindal, Ch. J. said, “ We think the real answer to the objection is, that no wrong doer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up, as an answer to the action, the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construction, if he could show not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done; but there is no evidence to that extent in the present case.”
I am therefore of opinion, that the Circuit court erred in giving the instruction in question to the jury. It was argued by the counsel of the defendant in error, that the instruction as given was true, as a general *182proposition at least; that if there are exceptions to it, the evidence stated in the bill of exceptions does not show that this case is one; that if it be not one, the plaintiffs in error could not have been injured by the instruction; that it was incumbent on them as the exceptants, to set out in the bill of exceptions sufficient evidence to show that they may have been injured by the instruction ; and that therefore the court did not err in giving it. The proposition is not stated in the instruction as a general one merely. Nor could it have been so stated with propriety. The true rule on the subject is not, properly speaking, a general rule subject to exceptions, but is a simple rule to .this effect, that if hired property be used by the hirer for a purpose or in a manner not authorized by the terms of the hiring, and the loss of the property be occasioned by such misuser, he is liable in trover for its value.
It was the province of the jury to determine from the evidence, whether the death of the slaves was occasioned by the sujiposed violation of the contract or not. There may have been little evidence 'before them tending to show that the death of the slaves was not so occasioned. It cannot perhaps be said that there was none. The plaintiffs in error may at least have supposed there was enough to entitle them to the instruction which they asked for, and which expounded the law in their view of it. But according to the view which the court took of it, in the instruction given, it was immaterial whether the death of the slaves was occasioned by the supposed violation of the contract or not. That instruction closed the door to the admission of other evidence on the subject, and it wmuld have been vain to have offered it. We cannot therefore presume that there was no other, and that the plaintiffs in error were not injured by the instruction. See Wiley v. Givens, 6 Gratt. 277. I think *183the court, instead of that instruction and the instructions numbered two and three, moved for by the plaintiffs in error, ought to have given an instruction to the jury to the• following effect: “That if there was a special contract between the plaintiff and the defendants, that the slaves which are the subject of controversy were to be employed on that part of the Bichmond and Danville railroad which runs through the county of Amelia only; and if the defendants did carry them beyond the limits of said county into the county of Chesterfield, and there employ them on said road; such wrongful act was not, of itself, a conversion of the said slaves to their use. But if the death; of the slaves was occasioned by the said wrongful act, , then the said act, in connection with the death of the slaves, was a conversion of them by the defendants to their use, and made them liable, under either count of the declaration, for the value of said slaves: And if such death occurred while the said wrongful act, by which it may have been occasioned,, was in operation , and force, the burden of satisfying the jury that it was \ not so occasioned, devolves on the defendants.” '
I think there is no other error in the judgment. It would have been improper to have given the instructions numbered four and five, because it belonged to the jury to determine from all the evidence, whether the supposed conversion, in the working of the slaves out of Amelia county, was waived or not; and also because, whether that act was a conversion or not, depended upon whether it occasioned the death of the slaves or not; and a waiver of the supposed conversion could not be inferred from facts which transpired, if at all, before the death of the slaves.
It would have been improper to have given instruction number six, because the evidence shows that the amount of hires for the slaves up to the period of their deaths was received by the agent of the defendant in *184error since the institution of this suit, and since the first trial had therein. The inference of a waiver of the supposed conversion, which might have been drawn from a reception of the amount of hires, had that fact stood alone, is repelled by the additional fact of the pendency and prosecution of the suit at the time of such reception.
The objection made to the instruction given in lieu of number four, is, that it assumes the fact, (of which the determination belonged to the jury,) that by the original contract, the slaves were to be worked only in the county of Amelia. If this instruction had stood alone, the objection made to it might have been valid. But it must be taken in connection with the other instructions ; and so taken, there can be no doubt, and could have been none on the minds of the jury, as to the meaning of the court. The question, whether by the original contract the slaves were to be worked only in Amelia, was expressly referred to the decision of the jury in the other instructions at the same time given; and it would have been plainly repugnant to those instructions if the court had told them that such was in fact the original contract. The plaintiffs in error in number four moved for an instruction based upon the assumption of this fact, or the belief of it by the jury. The court declined giving that instruction, but gave one based on the same assumption, pro hac vice. The instruction given is to be understood as if after the words “ changed the original contract,” the words “ supposing it to be as stated in instruction number four,” had been inserted therein.
In regard to the instruction mentioned in the secord bill of exceptions, some of the parol evidence was certainly admissible, and therefore it would have been improper to have excluded all. It would have been just as improper to have instructed the jury in general terms to disregard all parol evidence tending to alter, *185vary, explain or add to tire written contracts mentioned in the said bill of exceptions. Nor was the court bound to sift the mass of evidence in the case, and determine which would alter, vary, explain or add to the written contracts, and which would not. It was the duty of the parties moving the instruction to point out the particular evidence objected to; and hot having done so, the court, on that ground, was justifiable in refusing to give the instruction.
I am for reversing the judgment, setting aside the verdict, and remanding the cause for a new trial to be had therein.
Daniel, J.
The main enquiry here has been as to the correctness of the instruction given by the Circuit court in lieu of instruction number two, asked for by the plaintiffs in error.
The instruction given has manifest reference to the instruction asked for, and the true meaning of the former appears only on the reading of the two competing propositions together.
The instruction which the court was asked to give was, that if the jury believed, from the evidence, that there was a special contract between the plaintiff and the defendants, that the slaves which are the subject of controversy were hired to the defendants to be worked by them on the Richmond and Danville railroad, in the county of Amelia, and that the said slaves were worked by the defendants on the said Richmond and Danville railroad, in the county of Chesterfield, but were not thereby subjected to any greater labor, nor exposed to any greater risk whatever, than if the said slaves had been worked in the county of Amelia, and that while so worked in the said county of Chesterfield the said slaves sickened and died, but not in consequence of being so worked in the said county of Chesterfield, nor in consequence of any neglect of *186want of due care and attention on the part of the defendants, then the jury should find no damages by reason of such sickness and death of said slaves.
This instruction the court refused to give; but instructed the jury, that if they should believe, from the evidence, that there was a special contract between the‘plaintiff and the defendants; that the slaves which are the subject of controversy were hired by the plaintiff to the defendants, with an express stipulation and agreement that they were to be employed on that part of the Richmond and Danville railroad which runs through the county of Amelia only, and that they were not to be worked on said road out of said county, and that the defendants did carry them beyond the limits of said county of Amelia into the comity of Chesterfield, and there worked them on said road, that such carrying them beyond the limits of the county of Amelia, and working them in the county of Chesterfield, was of itself a violation of their contract, and a conversion of the said slaves to their use, by reason of which they became immediately responsible to the plaintiff for the value of said slaves, in the event of their death.
It will be seen that the instruction, as given, has no express reference to the time, place or circumstances of the death of the slaves, but in terms rests the responsibility of the defendants, for the value of the slaves, under the supposed breach of contract, on the event of the death of the slaves, generally. But when we see, on looking to the evidence, that it distinctly states the fact that the slaves died during the year for which they were hired, in the county of Chesterfield, whilst there employed in the service of the defendants, and that the instructions asked for are based on the jury’s finding that they did so die, there can be no difficulty in understanding the court as meaning to say, that if the jury believed there was such a con*187tract as that supposed in the instructions, and a breach of it by carrying the slaves to Chesterfield, and there working them, followed by the death of the slaves, occurring whilst so at work in Chesterfield, then the plaintiff in the action was entitled to recover of the defendants the value of the slaves.
Does not the instruction thus understood, propound the law correctly ? I think it does. I do not think there can be any doubt of the truth of the proposition stated as a general rule, that where the hirer of property uses it for a purpose or in a manner different from that provided for in the contract of hiring, and the property is lost in such user, the hirer is at once answerable for the loss; that the letter to him may treat such misuser and loss as a conversion of his property, and have immediate resort to his action of trover, even before the term for which the property was hired, has expired by efflux of time : And that no care or diligence on the part of the hirer to save the property from loss during such illegal use or employment, can be set up as a bar to the recovery of the full value of the property. See Story on Bailment, § 413; Spencer v. Pilcher, 8 Leigh 565; Homer v. Thwing, 3 Pick. R. 492; Wheelock v. Wheelwright, 5 Mass. R. 104; Rotch v. Hawes, 12 Pick. R. 136 ; Angus v. Dickerson, 1 Meigs’ R. 459; Mayor, &c. of Columbus v. Howard, 6 Georgia R. 213; McLauchlin v. Lomas, 3 Strobh. R. 85; De Tollemere v. Fuller, 1 Const. Court S. Car. 117.
The case last cited is very similar in its features to the one under consideration. In that case the defendant hired sundry slaves; and among them was one, who, by the terms of the contract, was to remain on the farm as a nurse and cook. The defendant sent her to Charleston to attend a sick lady. Whilst there, engaged in that service, she took the small-pox and died. The defendant was warned by plaintiff’s agent *188of the dangers to which, the slave was exposed, but did not send her away. He was held liable for the loss, on two grounds: First, for negligence in not sending the slave away after being warned of her danger; and secondly, on the ground, as stated by the court, that “ where property is bailed for a particular purpose, and it is used for a different purpose, the bailee is liable, even if it appear that he has used due care and attention, the legal presumption being that the loss happened in consequence of this misuser.”
It is said, however, that though the rule be as I have stated it, it is nevertheless subject to qualifications and exceptions, which the judge ought to have announced in the instructions.
It is true, that in Story on Bailments, § 413 a, it is said that a question may arise how far the misconduct or negligence or deviation from duty of the hirer will-affect him with responsibility for a loss which would and must have occurred,* even if he had not been guilty of any such misconduct, negligence or deviation from duty. As for example, suppose a cargo of lime is put on board of a vessel on freight to be carried from A to B, and the master should unnecessarily deviate from the voyage, and afterwards a storm should arise, and the lime should be wetted, and the vessel should thereby take fire and the whole be lost; according to the general rule, the loss must be borne by the owner of the vessel; for although the tempest might properly in one view be deemed the proximate cause of the loss, yet, according to the doctrine of Pothier, the deviation would be the occasion of the loss; and at the common law, the loss would be held sufiiciently proximate to the wrongful act of deviation, and to be properly attributable to it, so as to support an action by the shipper. But suppose the de- . viation, although voluntary, were for so short a time or under such circumstances as that the vessel must *189have been overtaken by the same tempest, and the same accident must have occurred, the question would then arise whether the owner would be liable for the loss.
And in the following section, the author puts another case of goo.ds shipped on board of a ship on freight for the voyage, to be carried under deck, and, by the misconduct of the master, stowed on deck; then he says, if the goods are lost by reason of such wrongful stowage on deck, as by a sea which sweeps the deck, there can be no doubt the owner of the ship is responsible for the loss. But suppose the ship should by inevitable casualty founder at sea in a heavy gale, and the whole cargo, under deck as well as on deck, should thus be lost, the loss being in no degree attributable to the stowage, then the question would arise whether the owner of the ship is responsible for the loss.
Upon the supposition that these questions ought to be decided favorably to the ship owner, and that such decision would rule in actions of trover, (about which I do not deem it necessary to express any opinion,) it must be conceded that it would be easy to suppose cases in which the principle might be extended to the relief of a hirer of slaves. As where slaves should be hired to work in a specified branch of the business, in a mine or manufacturing establishment, and they should be put'to another service in the same mine or manufacturing establishment, and some casualty should occur involving all, in whatever service there employed, in one common fate, there the rule suggested by the questions of Story (if law) might apply. But could such a rule have any manner of application to a case like the one under consideration ?
The views or intimations of Story on the subject are evidently suggested by the remarks of Chief Justice Tindal in the case of Davis v. Garret, 6 Bing. R. *1907161 19 Eng. C. L. E. 212 ; to which he refers. That was the case supposed by Story, of the cargo of lime shipped and lost, during a deviation of the ship, in a storm, by being wetted and setting the ship on fire. The chief justice, after stating the case, and making a partial answer to the objection put, of there being no necessary connection between the wrongful deviation and the loss itself, proceeds: “ But we think that the real answer to the objection is, that no wrong doer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up, as an answer to the action, the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construction if he could show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done.”
It is obvious, from the very nature of the rule sought to be deduced from this opinion, that it can apply only to a very limited class of cases ; and we should have to pass beyond the range of all experience with respect to the nature of disease, even in supposing a case for tbe defendants, which, consistently with the facts proved, could satisfy the requirements of the rule.- It being proved that the slaves died, in the county of Chesterfield, of pneumonia, there contracted, in order to liken the case to those inevitable casualties on which the rule is sought to be founded, it would have to be supposed that at the time when the slaves died of the disease in Chesterfield, it was prevailing at every point of the work in the county of Amelia at which they could have been employed according to the terms of the contract, infecting and destroying all within its range. For if a single point at which the slaves could under the contract have been at work in *191Amelia, be left out of such supposed case, as one not visited by the disease, who could undertake to say that they might not have been at that point ? Or if any be supposed to have escaped the fatal influence of the disease, who could say that these slaves might not have been equally fortunate ?
Whilst therefore I do not desire to be understood as affirming the impossibility of imagining a state of proofs which, consistently with the evidence set out in the bill of exceptions, could bring the case within the influence of the supposed qualification of the rule which the defendants desired to be declared in the instructions, I feel no hesitation in expressing the opinion that said evidence was not only wholly insufficient for the purpose, but did not conduce to such a result.
It was proved that the slaves died, during the year, while at work in the county of Chesterfield, of pneumonia, a disease which was very prevalent throughout that county at the time of their death. That during their sickness they were attended by a physician, and received all necessary and proper attention, and were provided with all necessary and proper comforts, and that the neighborhood of the places in the county of Chesterfield where the slaves died is a healthy neighborhood, and as healthy as the adjoining counties. It is obvious, I think, that there is nothing in this evidence, taken as a whole, or in any portion of it, taken by itself, which tends to prove that the slaves must or even probably would have died, if they had not been carried to Chesterfield. It asserts positively that they died of pneumonia, and that pneumonia was prevailing extensively at the time in Chesterfield. The fact that the negroes were properly attended to and provided for, whilst it exonerates the defendants from any imputation of neglect after the slaves sickened of the disease, does not tend to any result favorable to the *192defendants. It does not in the slightest degree conduce to show that the slaves must have sickened and died of pneumonia if they had been permitted to remain in Amelia. Nor is there any such tendency in the evidence with respect to the general health of the neighborhood of the places in which the slaves died. There was evidence to show that pneumonia was prevailing in Chesterfield, and none to show that it was prevailing in Amelia: And proof that the two counties stood on . an equal footing in regard to health generally, has no tendency to establish the fact that the slaves must have become the victims of pneumonia if they had staid in Amelia.
With these views of the case, I cannot perceive how the defendants could have sustained any injury from the instructions of the court. No matter how true may be the proposition of law for which they contend, they cannot complain of the failure of the court to propound it to the jury, inasmuch as they have failed to show that there were any facts in the cause, or evidence tending to prove the facts calling for the application of such a proposition. It was not necessary for them to set out all the evidence in the case in their bill of exceptions, but it was incumbent on them to set out enough to show that they might have sustained injury from the ruling of the court. The court is bound, at the instance of either party, to instruct the jury as to so much of the law, and only as to so much, as governs the case presented by the evidence. Each party has a right to have the jury pass on any evidence which by rational deduction may lead to the finding of the facts that would make out his case or maintain his defense ; but neither has a right to .complain because of the court’s refusing to declare abstract propositions of law ruling a supposed state of facts which no jury could find without indulging in mere random surmises and unfounded speculations. The *193Circuit court having stated the general rule governing the case which the evidence proved or tended to prove, was not bound to go farther and state all exceptions to the rule that might obtain in every possible phase of the case that it might be within the range of human testimony to present.
The probable if not the inevitable consequence of giving such an instruction as the defendants in the action say ought to have been given, would have been a misleading of the jury. They could not well have come to any other conclusion than that the judge believed there was something in the case to which the instruction could be applied. Confidence in this supposed belief might have been substituted by the jury in the place of their own views of the evidence, or otherwise they might have supposed that they had a license to go into uncontrolled guess and conjecture as to what might have been the possible fate of the slaves had they remained in Amelia.
I can see no error in the course of the Circuit court in regard to this instruction; and concurring as I do in the conclusions of the majority of the court here, in relation to the other causes of error assigned, am for affirming the judgment. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481522/ | Allen, Lee and Samuels, Js.
concurred in the opinion of Moncure, J.
The judgment was as follows :
The court is of opinion, that if the facts were as supposed in the instruction given by the Circuit court in lieu of instruction number two, moved for by the plaintiffs in error, their wrongful act of carrying the slaves, which are the subject of controversy, beyond the limits of the county of Amelia, and working them in the county of Chesterfield, was not of itself a conversion of the said slaves to their use, by reason of *194which they became immediately responsible to the defendant in error for the value of said slaves in the event of their death, whether occasioned by such wrongful act or not. But the court is further of opinion, that if the death of said slaves was occasioned by the said supposed wrongful act, then the said act, in connection with the death of the slaves, was a conversion of them by the plaintiffs in error to their use, and made them liable, under either count of the declaration, for the value of said slaves: and if such death occurred while the said supposed wrongful act, by which it may have been occasioned, was in operation and force, the burden of satisfying the jury that it was not so occasioned devolves on the plaintiffs in error. The court is therefore of opinion, that the Circuit court erred in giving the said instruction, and ought, instead of that instruction and instructions numbered two and three moved for by the plaintiffs in error, to have given an instruction to the jury to the foregoing effect.
The court is further of opinion, that there is no other error in the judgment of the Circuit court.
' It would have been improper to have given the instructions numbered four and five, because it belonged to the jury to determine not only from the facts therein stated, if proved, but from all the evidence, whether the supposed conversion, and the working of the slaves out of Amelia county, was waived or not; and also because, whether that act was a conversion or not, depended upon whether it occasioned the death of the slaves or not, and a waiver of the supposed conversion could not be inferred'from facts which transpired, if at all, beforé the death of the slaves.
It would have been improper to have given instruction number six, because it appears from the evidence that the reception of the amount of hires for the slaves up to the period of their death was during the pen‘dency of this suit; and the inference of a waiver of the supposed conversion, which might have been drawn *195from a reception of the amount of hires, had that fact stood alone, is repelled by the additional fact of the pendency and vigorous prosecution of the suit at the time of such reception.
The objection made to the instruction which was given in lieu of number four, is that it assumes the fact, of which the determination belonged to the jury, that by the original contract the slaves were to be worked only in the county of Amelia. If this instruction had stood alone the objection might have been valid. But it must be taken in connection with the other instructions; and so taken, there can be no doubt, and could have been none on the minds of the jury, as to the meaning of the court. The instruction is to be understood as if after the words “ changed the original contract,” the words “ supposing it to be as stated in instruction number four” had been inserted therein.
In regard to the instruction mentioned in the second bill of exceptions. Some of the parol evidence was certainly admissible ; and therefore it would have been improper to have excluded all. It would have been just as improper to have instructed the jury in general terms to disregard all parol evidence tending to alter, vary, explain or add to the written contracts mentioned in the said bill of exceptions. Nor was the court bound to sift the mass of parol evidence in the case, and determine which would alter, vary, explain or add to the written contracts, and which would not. It was the duty of the parties moving the instruction to point out the particular evidence objected to; and not having done so, the court, on that ground, was justifiable in refusing to give the instruction.
Therefore, the judgment is reversed with costs to the plaintiffs in error, the verdict is set aside, and the cause is remanded for a new trial to be had therein; on which the instructions of the court (should instructions be sought by the parties) are to conform to the foregoing opinion and judgment. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481523/ | ,jjEEj
iphe questions for the determination of the court in this cause, relate to the construction and legal effect of the second -clause of the will of John Redd deceased. The will bears date on the 21st of February 1843; and the clause in question is in the following words:
“ Second. I give and devise to my daughter Lucy D. Wootton, all that part of my Marrowbone lands whereon I now live, in the county of Henry, beginning on my spring branch at the bridge; running up the ditch of said branch to the head of said branch; thence with the line heretofore deeded to John T. Wootton and' Lucy D. Wootton, to the Order line, to her the said Lucy D. Wootton and her heirs forever.”
At the date of the will the testator owned about fifteen hundred acres of land situate on both sides of the creek named, of which between eight and nine hundred acres lay bn the west, side of the creek, and between six: and seven hundred on the east side. The testator resided on the west side ; and it appears that the land on the eastern side was tended and cultivated separately from that on the western side, with a different overseer and a distinct set of hands Hear the mansion-house of the testator was a spring from which flowed the branch referred to in the will as the “ spring branch,” emptying into Marrowbone creek; Running across that portion of the land' lying on the west side of the creek in a direction nearly parallel to that of the creek, was a road designated the “ Marrowbone road,” which divided the land on that side into two parts, one of which, that bordering 'on the creek, was about a third of. the whole on that side. This road crossed the spring branch upon a bridge at a point which would appear to be some eighty or *203ninety poles from its mouth, and this “Pole bridge,” as it is called, is designated in the will as the place of beginning of the land devised to Mrs. Wootton. Some years previously to the making of this will, the testator had owned somewhere in the neighborhood of five hundred acres more of land on the west side of the creek, and constituting a part of his then mansion-house tract; being the upper portion upon the creek. By a will made in 1836 he had given to his daughter Mrs. Wootton, (wife of John T. Wootton,) a considerable portion of this land on the west side of the creek, being the upper portion thereof commencing on the creek at the upper corner at or near the ford of the creek which is designated as that near Dr. George Hairston’s; thence running down the creek to the ford used in passing from the testator’s house to his plantation on the eastern side of the creek called Dillon’s; thence leaving the creek by several courses bearing in a northwesterly direction to the back line ; and thence with the exterior lines to the beginning; containing between nine hundred and a thousand acres of land, and embracing the mansion-house, the spring, and the appurtenances. Subsequently, by deed dated on the 21st of April 1S38, the testator conveyed to John T. Wootton and wife part of the land which he had thus given to Mrs. Wootton by the will of 1836, of which pare, supposed to be about five hundred acres, it is recited in the deed that he had already placed John T. Wootton in possession. The land thus conveyed to Wootton and wife is described as beginning at the mouth of the spring branch on Marrowbone creek; thence up the branch to the bridge on the public road; thence along the road a few rods to where the cross fence joins the lane fence that divides the part conveyed from the balance of the tract; thence along the said fence to a lot designated; thence a direct line to the line known as “Harmer’s, &c. Order line;” thence *204with the exterior lines of the tract to Marrowbone creek; and thence down the creek to the place of beginning. The fence referred to in this deed as the division line, begins at the line fence a few rods from the Pole bridge across the spring branch before referred to, and runs up the branch to a point at which it crosses its modern channel at a distance of about one hundred yards below the- spring. Between this fence and the branch below the point of intersection, and bounded on the southeast by the lane fence, there is embraced a small piece of land ascertained to be about nine acres.
The appellant contends that under the terms of the will the whole of the lands owned by the testator lying on the west side of Marrowbone creek, was devised to her, (excepting a small piece of about eighteen acres devised to the testator’s son Edmund B. Redd,) the quantity being about eight hundred and fifty acres by one survey, and about eight hundred and sixty-fivé by another. The appellees insist that what is described by those terms is the strip above mentioned of nine acres, and that this strip only passes by the devise. Or if it do not satisfy the terms of the description, then that the subject is so vaguely and imperfectly described that the devise is void for uncertainty.
That the clause in question is involved in some doubt and obscurity, will be apparent when it is considered that the testator has used a form of expression which may import the whole of the tract on which he resided, lying west of Marrowbone creek, or a part of that tract only, according to the force and effect of the particulars of description or boundary which he has superadded; and when it is ascertained that the supposed boundaries of themselves embrace nothing; that they constitute no diagram; that in effect they form but one irregular line the termini of which, the Pole bridge at one extremity and the intersection with the *205“ Order line” at the other, are nearly one mile apart. But however great may be the doubt and obscurity which rest upon the subject, and however difficult may be the task of eviscerating the intention of the testator, still if it can be ascertained by any legitimate means, it must be held sacred, and full effect must be given to it.
In performing the duty of expounding a will, the court will make the amplest allowance for the unskillfulness and negligence of the testator, technical in-formalities will be disregarded, the most perplexing complications of words and sentences will be carefully unfolded, and the traces of the testator’s intention will be diligently sought out in every part of the instrument, and the whole carefully weighed together.
Nor in the performance of this duty will the judicial expositor be confined to its mere contents. For an investigation into the state of facts under which the will was made will often materially aid in elucidating the scheme which the testator had in mind for the disposition of his estate. Hence he will endeavor to place himself in the situation of the person whose language he is called on to interpret; and as this can only be done by the aid of extrinsic evidence, such evidence may be resorted to for the purpose of showing the situation of the testator and the state of his family and of his property at the time of making his will. And, generally, evidence may be received as to any facts known to the testator which may reasonably be supposed to have influenced him in the disposition of his property, and as to all the surrounding circumstances at the time of making the will. Wigram on Admission of Extrinsic Evidence in Aid of the Interpretation of Wills, p. 11, et seq. Proposition 5, p. 51. Ibid. p. 57 ; Smith v. Bell, 6 Peters’ R. 68, 75 ; Doe v. Martin, 1 Nev. & Mann. 524; Shelton v. Shelton, 1 Wash. 53, 56; Kennon v. McRoberts, Ibid. 96, 102; *206Ellis v. Merrimack Bridge, 2 Pick. R. 243; Brainerd v. Coudry, 16 Conn. R. 1. But if after exploring throughout the entire contents of the instrument, aided by a knowledge of all the facts known to the testator and of all the circumstances surrounding him at the time of making it, the judicial expositor is unable to penetrate through the obscurity in which the testator has involved his intention as to a material fact, the failure of the intended testamentary disposition is the inevitable consequence. Conjecture cannot be permitted to usurp the place of judicial conclusion, nor to supply what the testator has failed sufficiently to indicate. The.law has provided a definite successor to the estate in the absence of a testamentary disposition, and the heir is not to be disinherited unless by express words or necessary implication. 1 Jarman on Wills 315; Wigram on Ex. Ev. Prop. 6, p. 11; 1 Greenleaf’s Ev. § 2S7, n 1.
The parties in this case have taken much testimony as to the situation of the testator and his family and property, and of other facts and circumstances surrounding him at the time of making his will, with a view to elucidate his intention and the scheme which he had framed for the disposition of his property. That all the evidence of this character may properly and legitimately be considered in passing upon the construction of the will, cannot be doúbted. But there is another kind of testimony also offered, which comes in a more questionable shape, and to which exception has been taken. With a view to show that it was the intention of the testator in the second clause of his will to give to her all of the land which he' owned on the west side of Marrowbone creek, (excepting the small piece devised to Edmund Eedd,) the appellant has taken the depositions of various witnesses to prove declarations made by the testator, that he had given that part of his lands to her by his will, *207or that it would be hers at his death, or that he intended to give it to her at his death, or other statements of the like import. The proofs of this character are, however, far from being satisfactory. Some of the witnesses by whom they are made are effectually discredited. Others appear to differ as to what the testator stated he intended for Mrs. Wootton. For example, the witness Patterson states that he understood the testator to say she would get the land down to the mouth of Crouch’s branch; thence up the branch and crossing the road to the “ Order line and that the place called “ Crouch’s field’’was to be sold along with the land on the creek called “ Wash’s’place” or l^aA.%uarter.”'“^Mid yet Crouch’s field constituted a^on^We^^^^Aion of the mansion-house tract on thgM^sv si3e"of the «reek, which is now claimed by thj| the testimony of this character w emsu ffi ci en a r and explicit, I should think it not entffieff'Wany consideration. It is well settled that such evidence is inadmissible to make out a testamentary gift. A party seeking to maintain a devise, must show it by a will in writing; and it would be wholly inconsistent with this rule, where a testator has failed to make a perfect and explicit disclosure of his scheme of disposition in his will, to permit its deficiencies to be supplied by parol proofs of declarations of the testator, or other similar evidence of actual intention. The enquiry is not what the testator meant to express, but what the words which he has used do express; and to such an enquiry evidence of instructions given by the testator for his will, or of his declarations as to what were his intentions in the disposition which he had made, or as to the disposition which he intended to make of his property, is obviously inapplicable; and the authorities against its admissibility are numerous and decisive. Wigram, Prop. 6, p. 83, S9, 97 ; Bennet v. Davis, 2 P. *208Wms. 316; Strode v. Lady Falkland, 3 Chy. R. 98; Brown v. Selwin, Cas. Temp. Talbott 240; Lord Walpole v. Earl of Cholmondeley, 7 T. R. 138; Newburgh v. Newburgh, 5 Madd. R. 364; Goodringe v. Goodringe, 1 Ves. sen. 231; Murray v. Jones, 2 Ves. & Beame 313 ; Preedy v. Hottom, 4 Adolp. & Ell. 76; Hiscocks v. Hiscocks, 5 Mees. & Welsb. 363 ; Miller v. Travers, 8 Bing. R. 244; Jackson v. Sill, 11 John. R. 201. The only exceptions to the rule are certain special cases in which it is found that the terms used apply indifferently and without ambiguity to each of several different subjects or persons. In such cases evidence will be received to prove which of the subjects or persons so described was intended by the testator. Wigram, Prop. 7, p. 101; p. 183, pi. 215.
Laying aside then all these declarations of the testator, and other similar evidence of actual intention, as contradistinguished from the surrounding circumstances, we must endeavor, with the aid of the latter, to place ourselves in his situation, and thus interpret the language he has used. We must declare, if we can, what intention he has expressed with sufficient legal certainty, not the intention which he may have entertained, but which he has failed sufficiently to manifest. Guy v. Sharp, 1 Myl. & Keen 589, 602; Martin v. Drinkwater, 2 Beav. R. 215.
■ In the construction of wills it is a well settled rule that effect must be given to every word of the will, if any sensible meaning can be assigned to it not inconsistent with the general intention on the whole will taken together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible or unmeaning, for want of any subject to which they can be applied. Gray v. Minnethorpe, 3 Ves. jr. R. 103 ; Constantine v. Constantine, 6 Ves. R. 100; Doe ex dem. Baldwin v. Rawding, 2 Barn. & Ald. *209441, 451; Chambers v. Brailsford, 2 Meriv. R. 25 ; Doe v. Lyford, 4 Man. & Sel. 550. And though it may be possible the testator intended to give more, yet if there be a subject found to satisfy the description, the court can neither enlarge nor extend it. Doe ex dem. Chichester v. Oxenden, 3 Taunt. R. 147 ; Doe ex dem. Oxenden v. Chichester, 4 Dow. Parl. R. 65; Jackson v. Sill, 11 John. R. 201.
But where the subject is sufficiently and clearly ascertained, though there be added particulars of description which are found to be false or mistaken, effect will be given to the devise notwithstanding; and these false or mistaken particulars of description will be rejected. Here the maxim “ falsa demonstratio non nocet cum de corpore constat” properly applies. Thus, where a testator devised “ all that his farm called Brogue's farm, in the parish of Darley, now in the occupation of A. Clay;" but two certain closes which were part of 'Brogue's farm were not in the occupation of the person named. Yet it was held that the devise embraced the whole of Brogue's farm, and was not affected by the mistaken terms of description superadded; which might accordingly be rejected. Goodtitle v. Southern, 1 Mau. & Sel. 299. So where a testator devised to his wife his farm at Bonington, in the tenure of John Smith, &fc. a portion of the farm was excepted out of the lease to Smith, but it was held that the words “ in the tenure of John Smith," were but additional terms of description of a subject already sufficiently designated, and being mistaken, might be rejected. So that the whole of the farm was held to have passed by the devise. Goodtitle v. Paul, 2 Burr. R. 1089. So where there was a devise of all of a farm and lands called Colt's Foot farm now on lease to Mary Fields at the yearly rent of one hundred and fifty pounds, a close of seven acres, part of Colt's Foot farm, but excepted out of Mary Fields’ lease, was held to *210have passed. Down v. Down, 7 Taunt. R. 343. So where a testatrix devised all her Briton Ferry estate, was afterwards described as “ situate, lying and ^e]ng jn -¡¡hg county of Glamorgan in the principality 0f leales.” A part of the Briton Ferry estate was in fact situate in the county of Brecon; yet held that the whole passed. Doe v. Earl of Jersey, 1 Barn. & Ald. 550.
A similar decision was made in a case in Maryland, in which a testator devised a tract of land by name, but which he went on to describe'as lying in a particular county. This was deemed but a mistaken description, and it was held that the whole tract passed - though part lay in another county. Hammond v. Ridgly, 5 Harr. & John. 245. See also Hustead v. Searle, 1 Ld. Raym. 728; Wrotesley v. Adams, Plowd. 187, 191; Goodright v. Pears, 11 East. 57.
The doctrine of these and, similar cases the counsel for the appellant seek to invoke into this case. 'They maintain that as the particulars of description in the nature of boundaries contained in the devise to her constitute together but one irregular line, the termini of which are nearly one mile apart, describe nothing, embrace nothing, they must be disregarded. It is argued with great force that if such particulars giving a false or mistaken description of the subject, would not defeat the devise, still less should they do so, if they give no description, if they amount to nothing more than an abortive and ineffectual effort to describe something which it is impossible for them to describe. It is therefore insisted that these particulars of boundary should-be wholly rejected as unmeaning and insensible, and that the subject of the devise should be ascertained from the previous description, which they allege is sufficient to identify it as the “ home place” of the testator, or the whole of his Marrowbone lands lying on the west side of the creek.
*211But in order to bring this case within the influence of the principle asserted in the cases above cited, and the other cases to be found to the same effect, and to reject the particulars of boundary found in the devise, it must appear that the other words of the clause give a clear, certain and unambiguous description of the subject devised; and that the particulars given are but words of suggestion and affirmation superadded as further descriptive of a subject already and efficiently indicated. If on the other hand, such particulars are restrictive in their character, if they serve to narrow and limit the extent of the subject pointed out by the previous words, they never can be rejected. And if there be a subject found which satisfies the whole description taken together, evidence cannot be received to show that the testator intended a greater or different subject. If this were permitted, it would be in effect to make a will for a testator by parol when the law requires that it shall be evidenced by writing. And it would be dangerous to permit words of restriction used in a will intended to narrow or curtail the dimensions of the subject pointed out, to be rejected, and allow the party to claim under the general terms of the devise discharged of the restriction. The effect might be to impute to a testator a meaning which he never intended, and to make him thus give the whole when it was his wish and intention to give part only. Thus for example, in this case, if the testator’s mansion-house tract, instead of lying wholly within the county of Henry, had lain partly in that county and partly in Pittsylvania, and he had omitted the name of the county in this clause of his will, so that it read “ I give to my daughter Lucy D. Wootton all that part of my Marrowbone lands whereon I now live in the county of .” Here would be an imperfect, incomplete description, creating an ambiguity patent on the face of the will. Nor could the blank be filled by *212evidence. Hunt v. Hort, 3 Bro. C. C. 311; Miller v. Travers, 8 Bing. R. 244; Wigram, p. 88, pl. 121. The superadded words, however, could not be regarded as merely words of description of a subject already sufficiently described. They would plainly appear to have been intended to be words of restriction, and to reject them would be to give the whole of the lands in both counties, when it was the testator’s intention to give the part lying in one only. Numerous cases in which words of description found in a devise were yet held to be restrictive, and therefore such as were not to be disregarded are to be found in the reported decisions. Thus in Woodden v. Osbourn, Cro. Eliz. 674, the words “in Cokefield” were held to be restrictive, and to limit the devise of all the testator’s Hayes land to such as he had in Cokefield, though it appeared that he had other lands called Hayes lands in Cranfield. In Parkin v. Parkin, 5 Taunt. R. 321, the devise was of all the lands, tenements, &c. of the testator in the township of Thurgoland, “then in his own occupation.” At the time of making his will the testator was seized of a messuage and five acres of land in the township of Thurgoland, which were then in his own occupation. He was also seized of an inn and nine acres of land in the same township, but which were not at that timé occupied by him. Held, that the words of occupation we2-e clearly restrictive, and 'that the inn and nine acres did not pass by the devise. So where a testator reciting that he was seized of divers freehold lands in Islington, and certain copyholds, “ and all which lands, Sfc. were subject to a mortgage thereof made by him,” (which he described,) gave and devised all his said freehold and copyhold lands and hereditaments. At the date of the will the testator owned twenty-one acres of freehold lands in Islington, which were not embraced by the 2nortgage mentioned in-the will; and it was held that the words referring to the *213mortgage were to be regarded as restrictive, so that the twenty-one acres did not pass by the devise. Pullin v. Pullin, 3 Bing. R. 47. In Jackson v. Sill, the words “ which I now occupy,” annexed to a devise of lands, were held to be restrictive, and not such terms of additional description as could be rejected ; and it was accordingly held that a tract of land of ninety acres, which the testator had leased to another person before making his will, did not pass by the devise. So in another case, the words “ on which I now live,” annexed to a devise of lands, received a similar construction, and were held to exclude a lot of sixteen acres not adjoining and which had been on lease to others. Jackson v. Moyer, 13 John. R. 531. Other cases are to be found in which under different forms the same principle is asserted and enforced.
We come then to the question whether the words of local description in the nature of boundaries found in the devise in this case are terms of additional description merely superadded where the subject of the devise had been already clearly and unmistakably indicated, as the whole of the lands on the west side of Marrowbone creek? Or were those words intended to be restrictive in their character, so as to limit the devise to a portion of those lands, and if so, to what portion ? And here the enquiry at once suggests itself, why should the testator, if he had intended to give the whole of the lands on the west side of the creek, have added any boundaries at all ? The obvious and plainest mode of making such a devise would have been to give all the lands on the west side of the creek, or in the form adopted by the testator, to stop at the end of the words “ whereon I now live,” and the addition of boundaries was wholly unnecessary. But this he has not done. He has adopted a form of expression, “ all that part of my Marrowbone lands,” which, whilst it might import all the lands on the west side *214of the creek if it had stopped with the words “ whereon I now live,” may and must import a part of those lands only, if the words of description superadded operate to restrict it to a part. And we are not without a history of the particular form of expression used. The words of the devise were copied from the will of 1836 down to the word “ beginning,” inclusive, and then different boundaries were inserted in place of those found in that will. By the will of 1836 the testator did not give the whole of the mansion-house tract or the lands lying on the west side of the creek to the appellant, but gave a part only : for the boundaries given excluded all that portion lying north of Crouch’s branch and of a line running from the public road where it crossed the branch to the “ Order line,” being about four hundred and five acres. So that we see the boundaries which followed the same form of expression in the will of 1836 were intended to restrict the general description to that portion of the land on the west side of the creek lying south of Crouch’s branch and the line above specified. It is true those boundaries are replaced by different boundaries in the will of 1843; but when the testator used the same form of expression in the latter though giving different boundaries, it may not be unreasonable to infer that he intended the boundáries to perform a similar office to that for which they had served in the will of 1836, and restrict the devise to a part of the mansion-house tract. It will be seen too that when the testator speaks of the whole of a tract, he says “ a tract,” and gives a general designation of the land intended, without attempting to give the exterior boundaries. Where, however, he speaks of part of a tract, he uses the expression “that part,” and then goes on to describe the part intended by boundaries or some specific local demarcation. This would seem to have been his mode of thought upon the subject, and it may almost be re*215garded as a law of the will. It tends to show that when the testator uses the expression “ a part of his lands,” he has in mind a part to be circumscribed by metes and bounds, not the whole of a tract to be designated by general terms of description.
Again. If the testator intended to give the whole of the lands on the west side of the creek, why not commence the boundaries at some point on the creek, or at the terminus of some one of the exterior lines ? Why commence in the middle of a line at a point some eighty or ninety poles from the creek ? If on the other hand, he intended to give only the nine acres lying between the line of his deed to Wootton and wife and the spring branch, then he commenced his description at the point at which he naturally would and ought to commence it. For it is at that point that the line of the deed deflects from the course of the spring branch and runs along the lane to the cross fence, and thence with that fence as stated in the deed, so as to form a diagram with the spring branch, embracing the nine acres, the apex of which is at the point designated as that of the beginning.
It is to be observed too that in the fifth clause of his will the testator gives to his son Edmund Kedd a part of his land lying on the west side of the creek, which he describes by specific boundaries. This, though perfectly consistent with the devise to Mrs. Wootton, if it be restricted to the nine acres, is yet irreconcilable with it if it is to be regarded as a devise of all the lands on the west side of the creek. It is true that irreconcilable devises may occur in a will, so that all cannot stand together, and that in such a case,' where the repugnancy plainly appears, the prior devise must yield to that which is posterior in local position so far as may be absolutely necessary to give effect to the latter, but no further. But where the enquiry is as to what is embraced in the prior devise, *216a subsequent devise may be properly looked to as tending to show the true subject of the former devise ; for it will not be supposed that the testator intended to give by the posterior devise what he had already given by the former. It is said, however, that the land devised to Edmund Redd was not a part of the Marrowbone lands. But it is nowhere shown to be a separate and distinct tract. The proofs are, I think, rather the other way. Perkins says expressly that he believed it was a part of the Marrowbone tract on which the testator lived ; and Patterson, Dillon and Dupuy seem to regard all the testator’s lands on the west side of the creek as part of his home place or Marrowbone lands. It is so laid down on the plat of Wingfield; on that of Graves it is not so represented. The argument indeed is that by the terms “ Marrow-bone lands,” all the testator’s lands on both sides of the creek were included; and that by the words “all that part of my Marrowbone lands whereon I now live,” was meant that portion of them lying on the west side of the creek, and not a part of the latter.
With regard to the meaning thus assigned to the terms “Marrowbone lands,” I will here remark that whilst such a form of expression is frequently, perhaps most usually employed to denote the lands on both sides of the water course named, yet it is not of necessity used in that sense only. From the- situation of lands on one side relatively to a water course and to some other stream uniting with the former upon which they may chance also to lie, or from some other local circumstance or because they had acquired some other notorious name and designation, it might very well happen that the lands on the other side only would take the name of the particular water course. And the question is, in what sense did the testator use the terms? What lands did he intend to designate by the words “ Marrowbone lands ?” The proofs tend rather *217to show that it was his habit to apply those terms to the mansion-house tract, the lands on the west side of the creek, whilst he spoke of the lands on the opposite as “ Wash's flaca or the quarter," and sometimes as “ Ellis'."
But is is said there was no inducement to give Mrs. Wootton the nine acres; that it was of little value to any one, and of no peculiar value to her; and that in point of fact when he made his will, the testato'r regarded it as already hers, because he believed the spring branch was the line between his land and that conveyed to Wootton and wife. I do not think it satisfactorily proven that such was the testator’s impression. It is true some of the witnesses testify to their having heard him speak of the spring branch as the line, or say that the lands south of the spring branch belonged to Wootton and wife. Others say that he recognized the fence as the line; and it is proved that he had a part of the strip between the fence and the branch in cultivation. It may be that in speaking of the branch as the line or of the land south of the branch as the land of Wootton and wife, he intended only to give a general idea of the course of the division line, without designing to state with precision the exact line named in the deed which he knew run so near the branch.
In the original bill filed by the appellant there is no suggestion of any such belief or impression having been entertained by the testator ; and whilst it is admitted that the fence was the line, it is not intimated that any other had been recognized by him. The line is described minutely and unmistakably in the deed. It leaves the branch at the Pole bridge and runs along the road a few rods to the junction of the cross fence with the line fence; thence with the former to the horse lot, &c. And from the manner of expression used in the deed, and the similarity of style and in *218the mode of spelling a particular word, one might infer that it was written by the same person who wrote the twro codicils purporting to have be n written by the testator himself. But however this may be, he was doubtless familiar with the contents, and knowing the ground perfectly, he may have had some reason when he made the deed for deviating from the spring branch and adopting the fence as the division line instead. He is represented by all the witnesses who speak of his mental character and capacity, as being a man of vigorous intellect, and remarkable for caution in the transaction of business. It is difficult to suppose that such a man would in a few years have forgotten or become confused about a division line which he had carefully established between his own land and that of a neighbor; while upon the other hand, if he had changed his purpose of giving a large part of his home place to Mrs. Wootton as he certainly had in regard to his son Edmund Redd, it might have occurred to him that it would be proper (not knowing, into whose hands the homestead might fall) to secure to Mrs. Wootton the strip between the spring branch and the fence as he seems to have thought it proper to secure to Edmund Redd the small piece of eighteen acres on the opposite side of the tract, north of the still-house branch. He may have thought (as many of the witnesses examined seem to think) that it would be important to Mrs. Wootton to have free access to the branch for water for her hands and stock, of which the supply would seem to have been otherwise scanty on that side of her land: and he knew that to run with the branch would straighten the line, save fencing and improve the form of -both properties, while it would substitute a permanent natural boundary for one easily changed and in its nature perishable. That the will devises to Mrs. Wootton while the deed is to Wootton and wife, offers no difficulty. Husband and *219wife are treated as one both in common parlance and in law for most practical purposes, and from the character of the provisions of his will the testator appears not to have discriminated between them.
I think there is not much force in the argument that such terms as “ all that part of my Marrowbone lands” could not have been intended to describe a small piece of land of nine acres. “All that part” is but a formal mode of legal expression, importing the entirety of the thing devised, whatever it may be, and not that it is either great or small. They were evidently used as words of form, copied from the will of 1836, which the testator had adopted as bis guide as to the formal parts of the instrument, whilst the substantial parts were supplied by written memoranda or dictated orally by him at the time. Nor is there any thing in the local position of the devise to Mrs. Wootton, being the second clause of the will, to raise a presumption that the testator intended to give her a large or substantial part of his lands, for we see that the bequest that precedes it, constituting the first clause of the will, is a nominal one of one dollar to his grand daughter Mrs. Preston.
Some stress has been placed on the fact that the wife of the testator and some of his children were buried on the home tract; and it is urged that it is not likely the testator would have directed that tract to be sold, and thus rendered it liable to pass into the hands of strangers. Upon subjects of this character men differ in their feelings and sentiments. In this country, where the character of our institutions combines with the spirit of the age to encourage the ready disposal of property of all kinds, which is accordingly constantly changing hands, this sentiment of attachment and veneration for a particular spot, where rest the remains of the deceased, is liable to be weakened and impaired. We have no clue to what may have *220been the particular sentiments of the testator on this point, though we see that he directs all his negroes to be sold, among whom, it is said, were old and valuable family servants. It may be that the value of the improvements on the home place was such as to render it difficult to divide it in a manner that he approved, and he may have thought that some member of his family would buy it in at the sale. At best, it is a mere circumstance, and one of little weight or significance.
But little light is thrown upon this subject by a comparison of the amounts that will have been received by the different children in the form of advancements, and of their respective shares under the will. In Choat v. Yeats, 1 Jac. & Walk. 104, Sir Thomas Plumer (master of the rolls) remarked, “It is always the safest mode of construction to adhere to the words of the instrument, without considering either circumstances arising aliunde or calculations that’ may be made as to the amount of the property and of the consequences Sowing from any particular interpretation.” This remark is cited with approbation by the vice chancellor in Parker v. Marchant, 1 Younge & Col. 290, 310. But from the best estimate which I have been enabled to make from the materials in the record, I think Mrs. Wootton will have received considerably more than either one of several of the children, and it may not be very remarkable that she may get less than some of the others. The evidence does not, I think, establish any thing like a marked partiality or favoritism on the part of the testator towards any of his children. There are some rather vague expressions of opinion by witnesses that Mrs. Wootton was a favorite, and some declarations proved of Edmund Redd to that effect. The reasons assigned for such opinion are not very satisfactory, and the general effect of the evidence is rather to prove that the testa*221tor cherished feelings of kindness and parental affection towards all of his children. And it would seem to be unexplained why the testator should have given to Mrs. Wootton the further sum of one thousand dol-¡ lars by a codicil if he had in fact given to her the whole of the home place : whilst on the supposition" that he had given her the nine acres only, a ready reason is suggested for his giving her that additional legacy.
The objection which has been urged to construing the devise to be of the nine acres, that the testator is thereby made to give to Mrs. Wootton a piece of land already belonging to her on the south side of the fence where the branch passes on that side near the spring, is I think sufficiently explained by the testimony. It is shown that the true original channel of the branch was upon the north side of the fence throughout, but that in consequence of a large deposit made on a lot of the testator on the branch, its course had been changed at that point and -made to pass on the south side of the fence; and that if such deposit were removed, the branch would resume its original channel. And when the testator spoke of the branch, it may be presumed he referred to its proper original course and not to the new or artificial channel occasioned by the obstruction. There may be more difficulty in explaining why the testator should have called to run from the head of the branch “ with the line heretofore deeded to John T. Wootton and the said Lucy D. Wootton to the Order line,” when no part of the line mentioned in that deed as running to the “ Order line,” beyond the point of intersection with the line from the head of the spring, is any part of the boundary of the nine acres. But it will be remembered that the fence called for in the deed does not touch the spring, but passes it at a distance variously estimated at eight yards or from eight to twelve steps. The proper call *222therefore for the next course, after attaining the head of the spring, would not be to run with a line so far distant from it, but to run to that line. Hence if we may suppose that from some confusion or misapprehension at the moment either on the part of the testator or of the scrivener, the word “ with” was inserted instead of the word “ to,” which wmuld seem to be the proper word indicated, the whole difficulty will be removed, and the call thus explained will be in effect to run from the head of the spring to the line in the deed to John T. Wootton and Lucy D. Wootton, which runs to the “ Order line.” So that this line would not be made, as it could not be (beyond the point of intersection) any part of the boundary of the nine acres, but would be simply referred to as that ini' which the terminus of the line running from the head of the spring was to be found. Or it may be that the testator having in mind the land which he had conveyed to Mr. and Mrs. Wootton and the line named in the deed which divided it from the land retained by him, and desiring to substitute the branch to its head as the division line in place of the fence, therefore calls to begin at the Pole bridge, (the apex of the figure embracing the nine acres and the point at which the line of the deed leaves the branch,) and thence continues the line of division beginning at the mouth of the branch (on the creek) by running up to its source, and then finishes the entire division line by calling to run with the line of the deed to the “ Order line.” From its mouth to the Pole bridge, the branch was the division line according to the deed: by his will he continues the branch as the division line to its source, and then completes it by running from the spring with the old division line of the deed to the “ Order line.” Upon one or the other of these hypotheses, I think a probable solution of the difficulty may be accomplished: and it can occasion no surprise that a man *223who though of vigorous mind, was yet of but limited education and no doubt but little accustomed to systematize bis thoughts or to reduce them to writing, should when he attempted to do- so, be betrayed into inaccuracies and evince a want of order and method in the arrangement of his ideas and in the manner of giving expression to them. But if any solution of this difficulty were impracticable, I should think it less objectionable to disregard this doubtful call altogether than to reject all the particulars of description by boundaries in the devise, when from the particular form of expression adopted it is manifest that they either were or might have been intended to narrow the subject pointed at, and to restrict the gift to part instead of giving the whole.
I think therefore the piece of land between the fence and the branch is a subject which satisfies the description found in the devise when viewed in the light of the surrounding circumstances: that no evidence can therefore be received to prove the actual intention of the testator to give a greater or different subject, and that although possibly the testator may have intended to give more, yet the devisee can claim nothing but the subject so described.
But if it could be shown that this piece of land does not satisfy the description of .the subject devised to Mrs. Wootton by the will, still I think the result to which we must be brought will be the same.
I have already endeavored to show that words of description in a devise can only be rejected where the subject is already sufficiently and clearly designated, and it is manifest they are merely words of description superadded where the subject is already perfectly described. If the words be restrictive, they never can be rejected; and it must be equally clear that they cannot be rejected if it be doubtful as they stand, whether they are descriptive merely, or descriptive *224and restrictive. For while there is such doubt, it never can be said that the subject is clearly and sufficiently described. Nor in such a case will the law intend error or falsehood. Doe v. Greathed, 8 East’s R. 91, 104. Here then if the strip of nine acres does not satisfy the description given in the devise, it must be absolutely uncertain what it is they do describe, and whether the boundaries given were intended to be descriptive merely or restrictive also. The form of expression adopted, followed up by particulars of local description by boundaries, is such that it is at least doubtful whether the testator, by the terms “ Marrow-bone lands,” referred to the lands on both sides of the creek, or on one side only. And if it be so, you cannot safely reject those particulars of description, and give effect to the previous clause, without regard to them. Before you can do so, you must first be satisfied that they were not intended to be restrictive. The testator then has given all that part of his Marrow-bone lands whereon he then lived in the county of Henry, beginning at the Pole bridge, running up the branch to its head, and thence with the line named to the “ Order line.” What part of these lands is thus described? What fixes and determines its extent? We have here an irregular line betweeen the Pole bridge and the “ Order line,” given as a base line upon which may be described an infinite series of diagrams, all varying in the quantity of land contained. And this uncertainty as to the extent of the subject devised must be equally fatal to the pretensions of the appellant. For a party claiming under a devise must show with certainty what subject was intended to be given. If the words of the will describe nothing, or if with the aid of the surrounding circumstances, they are insufficient to determine the testator’s meaning, or to enable the judicial expositor to ascertain with legal certainty what is the exact subject devised, the testa*225mentary disposition must be ineffectual and void for uncertainty. Wigram, Prop. 6, p. 83; Doe ex dem. Dell v. Pigott, 7 Taunt. R. 553; Richardson v. Watson, 4 Barn. & Adolp. 787; Mason v. Robinson, 2 Sim. & Stu. 295; Tolson v. Tolson, 10 Gill & John. 159.
If then the strip of nine acres satisfies the words of description in the devise, the Circuit court has not erred in decreeing it to the appellant. If, however, the devise is void for uncertainty, the appellant gets the nine acres under it: and of this the appellees do not complain, and the appellant cannot. In either view, therefore,'! am of opinion to affirm the decree.
Daniel and Moncure, Js. concurred in the opinion of Lee, J.
Allen, P. and Samuels, J. dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481524/ | Allen, P.
It was alleged in argument, though not assigned as one of the errors in the petition, that as the bond required from Edwin Godwin, administrator of Peter Zeluff deceased, in pursuance of the act of assembly passed the 9th of March 1838, entitled an act authorizing the sale of the lands of Peter Zeluff in the county of Nansemond, was not executed by him within two months after the passage of the act, the bond was taken without authority, and therefore void.
The act referred to, conferred on the County court jurisdiction to authorize the said administrator to sell and convey on such terms as the court might deem expedient, and to decree the mode in which he should account for the bonds or other proceeds of said sale to those entitled thereto, having first required of the said administrator a new bond, with such security as the court should deem sufficient, conditioned to perform the decree of the court, and account for the proceeds of said sale to the parties entitled thereto, according to the directions of the court. On the 14th of May 1838 the widow and children, devisees of Peter Zeluff, petitioned the County court to carry the act into effect by making the necessary order. The court, upon the presentation of the petition, entered a decree or order, which, after reciting that the administrator had given bond under and according to the act of assembly, authorized him, after advertising the land, to sell the same on a credit of six, twelve and eighteen months, (except for so much as would pay costs and charges of the sale and decree,) the whole carrying interest from the first day of January ensuing, taking from the purchaser three bonds with security and a deed of trust on the land to secure the purchase money; the bonds to be payable to said E. Godwin, administrator, and *229to be returned to the said County court, and to be subject to their order: the decree further reciting, that the court would, at a future day, make a further order disposing of the fund to be raised by a sale of said land, and also make any other order in the premises which might seem proper.
On the 10th of April 1843 Edwin Godwin made a report, showing that the land was sold on the 9th of July 183S, to Elizabeth Godwin, who, with her securities, executed three bonds for one thousand dollars each, and paid the residue in cash: and he filed with his report two of the bonds; one subject to a credit of three hundred and fifty dollars, paid the 12th of December 1840, and to a further credit of fifty dollars, paid March 22d, 1841, endorsed by him as administrator; the balance of said amount the report states had been paid to the administrator. The bonds or single bills filed with the report, do not set forth the consideration for which they were given, and are payable to him as administrator. By the report Edwin Godwin charged three hundred and nineteen- dollars and fifty-three cents for commission and expenses of sale. When this report was filed, it was ordered to lie for exceptions; and on the 12th of August 1844, the widow and children of P. Zeluff excepted to the report on account of the charge for commission and expenses, and because he did not bring the bonds into court.
On the 14th of July 1845, the cause coming on to be heard on the report, exceptions and papers, the County court was of opinion that the principles of the case should not be settled until all the parties interested were before the court; and therefore ordered that Elizabeth Godwin the purchaser, with her securities, and also the securities of Edwin Godwin in the administration bond, should be summoned to show cause why the exceptions should not be sustained, and *230to show cause if any they had against the said report and sale, and to abide such order as the court might pronounce in the case.
The summons being executed, the securities of Edwin Godwin filed answers, relying, amongst other things, on the ground that the two months prescribed in the act having expii’ed, the authority of the court to appoint the said E. Godwin to sell the land had ceased and deteimined; and consequently the bond not having been executed in conformity with the statute, was merely null and void.
The cause being matured for hearing, the County court dismissed the petition : Whereby it was in effect decided, that the sale made by said Edwin Godwin was invalid; and the plaintiffs, if the decree had stood, would have been left to pursue their legal remedy to recover the land as devisees of Peter Zeluff. Upon appeal to the Circuit court this decree was reversed, and a deci-ee pronounced declaring that Edwin Godwin was liable to account to the appellants for the whole amount paid to him by the purchaser of said land; and in the event of his estate being insufficient to pay, that the securities in the bond were liable; and that the purchaser was liable for the balance due on her bonds. For the payment of such balance of the purchase money, a decree was rendered directing a sale of the land, l'ecited by the decree as having been conveyed by said Edwin Godwin to Elizabeth Godwin. The land was sold, and the pT’oceeds not being sufficient to pay off the balance of the purchase money due from the pui'chaser on her bonds, a personal deci’ee was rendered against her and her securities for such balance, after crediting the net proceeds of the sale of the land. And the decree against the estate of Edwin Godwin having proved unavailing, a decree was rendered against the securities in his bond for the amount received by him.
*231From this decree the sureties of Edwin Godwin obtained an appeal to this court; and the Special court of appeals being of opinion that it was error in this proceeding in the state in which it stood in the Circuit court, to render a decree against the said securities of Edwin Godwin, or to determine whether those securities or the purchaser were primarily liable for the money improperly received by Edwin Godwin; and that it was also error in this proceeding to render a decree against the sureties of the purchaser for the balance due on her bonds for the purchase money; and that there was no error in the residue of the said decree, more especially as Elizabeth Godwin had not appealed therefrom; reversed so much of the decree of the Circuit court so declared to be erroneous, and affirmed the residue thereof; and remanded the cause with directions to allow the petitioners to file a bill bringing Elizabeth Godwin and her sureties, and the sureties of the said Edwin Godwin in said new bond, properly before the court, and in due form for litigating the several matters in respect to which the decree had been reversed.
When the cause went back, the petitioners filed a new bill, from which it appeared that the balance due on the bonds for the purchase money had been fully paid and satisfied; and the contest went on as to the amount received by the said Edwin Godwin.
The sureties in the new bond appeared and answered, referring to and relying on their former answer; and furthermore insisted, as they had done in the former answer, that the payment of the purchaser was made to Edwin Godwin without authority; that she thereby aided him in perpetrating a fraud, and that the payment so made in her own wrong, did not discharge the obligations given for the purchase money. The sureties of the purchaser and her administrator insist on the validity of the payment, and that *232they had fully discharged themselves from the liability incurred by their obligation for the purchase money. No new fact was brought into the case by this supplemental proceeding: and the court being of opinion that the sureties of Edwin Godwin were liable for the amount paid to him, and the decree against his estate proving unavailing, proceeded to render a decree against the sureties for the balance unpaid; from which decree the representatives of one of said sureties has appealed.
Upon these proceedings it seems to me the authority of the County court to decree the sale of the land by Edwin Godwin has been adjudged, and in a proceeding to which, as to that question, all the sureties were parties.
As to which set of sureties were primarily liable, or whether any valid payment was made by the purchaser, or whether her payments were fraudulent in fact or not; these were questions which, in the opinion of the Special court of appeals, could not be decided in that proceeding as it then stood. The proceeding was upon the original petition to exercise the jurisdiction conferred by the act of the 9th of March 1838. Under that act the new bond had been taken from the administrator Edwin Godwin, and a decree rendered directing him to sell, and a sale and a report made; and all the parties, the sureties in the new bond executed by the administrator, and the purchaser and her sureties, were summoned to show cause against the said report and sale, and to abide such other orders as the court might pronounce in the cause. If the authority of the court to appoint the administrator had ceased, the judgment of the County court dismissing the petition should have been affirmed. The power of the court to render any decree in that ex parte proceeding to carry out the provisions of the act of March 9th, 1838, depended upon the fact whether a valid *233bond had been given by the administrator; the law having conferred the jurisdiction on the court to authorize the administrator to sell and convey upon the condition of having first required of him a new bond. The court required a bond, and thereupon ordered the sale. The jurisdiction to do so being conferred, the propriety of exercising it under the circumstances, was a question for its consideration when applied to by the petitioners to carry the act of assembly into effect. By accepting the bond, and thereupon authorizing the administrator to sell, the court affirmed that the bond, though not executed until after the expiration of two months, was a substantial compliance with the law, and invested the court with the power to authorize the administrator to sell. At a later period the County court changed its opinion, and dismissed the petition, thereby annulling all that had been done, and declining to carry the act of assembly into effect according to the prayer of the petition. The case itself was proper for the consideration of these questions. The regularity of the proceedings and the propriety of exercising jurisdiction under the facts before the court were questions arising in the case itself, and not upon any collateral enquiry: And a judgment would be Conclusive, at least to that extent, upon all wdio were made or became parties to the case. The administrator, the securities in the new bond, the purchaser, and her securities, all had such an interest in these questions as to justify the order requiring them to be summoned to show cause against the report and sale. They were summoned and the sureties of the administrator raised the objection to the authority of the court to require the new bond : The Circuit court by its decree affirmed the validity of the bond and the sale; affirmed, moreover, that by the sale of the land and its conveyance by Edwin Godwin to the purchaser, the title had passed to her; for it proceeds to *234decree a sale of the land to discharge the balance of the purchase money. The land was sold under its order, and the sale confirmed; thus forever divesting the title of the petitioners, in this proceeding, to carry into effect the provisions of the act of March 9th, 183S: A conclusion which could only be justified upon the ground, that the authority conferred by that act had been properly exercised. The decree of the Circuit court to the extent that it operated upon the validity of the sale, the divesting of the title of P. Zeluff’s devisees, and the transmission thereof to the purchasers under the different decrees in the case, was affirmed by the Special court of appeals, and. at least concludes all those who were parties, upon those questions.
If the bond was valid and the sale regular, it becomes necessary to ascertain what was the authority vested in Edwin Godwin the administrator, by the decree entered on the cx yjarta application of the petitioners, to carry the law into effect, and the liability imposed on him. Did he act as an ordinary commissioner appointed by a court in a chancery suit to perform some specific duty? Or did he act asan administrator having an authority derived from, and to-be governed by, the law.under which the proceeding was had? It seems to me the rights and duties of the administrator are to be deduced from the terms of the law under which the court was acting, rather than to be measured by those of a commissioner appointed by the court as its agent to carry into effect a decree rendered in the exercise of its ordinary jurisdiction. As administrator he had given bond to administer the personal assets of the deceased. That would not have covered the proceeds of this land, to be sold under,the authority of this special act. The court is therefore, before authorizing a sale, to require a new bond of the administrator. ■ Showing by the expression new, bond, *235that the term “ administrator” was not a mere description of the person, but that the authority was given to him in his official character. By the condition of the bond prescribed by the law, he was bound to perform the decree of the court, and account for the proceeds of said sale to the parties entitled thereto, according to the directions of the court.
It is clear from the condition prescribed, that the law did not contemplate that he was to be a mei'e agent to sell or to perform some particular duty assigned to him as the agent of the court. It looked not only to his duty to sell, but his authority to collect, arid his liability for the proceeds to the parties entitled thereto, according to the directions of the court. He was not to determine between the claims of the widow and devisees. The law provided that the proceeds should pass to the same persons and in the same proportions as the real estate would have passed, had the act never been enacted. Who were the persons entitled and in what proportions, the court was to determine with these parties before it. When the parties were thus ascertained and their proportions fixed, the condition of the bond bound the administrator to pay them. The law provided that the court should have power and authority to authorize the administrator to sell and convey the land. In the exercise of the ordinary jurisdiction of a court of equity, one commissioner may be appointed to sell, a second to convey, a third to collect. Here it is manifest the law looked to a sale, conveyance and collection by the administrator, under a special authority given to him in his character as such administrator. He was empowered by law to do what as administrator with the will annexed he could have done if the will had devised the land to be sold by the personal representative. He was to sell on such terms as the court might prescribe, which had reference to the time and place of *236sale, credit to be given, security to be required, &c. but did not change or modify the liability incurred by the condition of the bond.
The decree conformed to the terms of the act. It authorized him to sell in a prescribed mode, taking from the purchaser three bonds with good security and a deed of trust on the land to secure the payment of the purchase money. The bonds to be payable to the said Edwin Godwin, administrator, &e. and to be returned to the court, and to be subject to their order; reciting also, that the court will proceed at a future day to make further orders disposing of the fund to be raised by a sale of said land.
The decree shows that the court contemplated that the administrator was to convey without further order, It required no report of sale, and did not contemplate any confirmation thereof in order to justify a deed. ■On the contrary, by requiring a deed of trust on the land to be given by the purchaser, it recognized the right of the administrator to convey as well as to sell, as a right conferred by the law upon giving the bond and being authorized to sell. By directing the bonds to be payable to said Edwin Godwin, administrator, the individual to receive was pointed out to the obligor. The purchaser became no party to any subsequent proceedings in the case. No confirmation of sale being necessary, the decree did not require it, and no such order was made. The decree of the Circuit court recites the fact that a conveyance was made, treats it as a regular transfer of the title, and in this respect has been affirmed.
As soon then as she gave her bonds for the purchase money and received her deed, the purchaser ceased to have any direct connection with the cause in court. She was not bound to enquire whether the bonds were returned to the court, or what disposition was made of them. That portion of the decree directing them to *237be returned could not affect the powers of the administrator as conferred by the act. Nor does it, as it seems to me, bear any such construction. The court, in the order, referred to the bonds as the proceeds of the sale, and as synonimous with the fund to be raised by the sale of the land; which fund the order recites the court would at a future day proceed to make a, further order disposing of. This was the duty of the court under the act which declared that the proceeds should pass to the same persons and in the same pro?* portions as the real estate would have passed if th§ act had not been enacted. With this distribution the purchaser had no concern. Having a deed and being authorized to pay to the obligee so as to relieve the land from the incumbrance and discharge her obligations, those entitled to the fund were protected by the condition of his bond to account for the proceeds of the sale. If the bonds had been returned, and upon ascertaining who were the persons entitled to the fund and in what proportions, the court, if such had been the most convenient course, might have directed the bonds to have been assigned by Edwin Godwin to the parties, and a payment to him after notice of such assignment would have been no discharge. Until that or some other measure was taken to prevent his receiving the proceeds, it was the right and duty of the purchaser to pay to the obligee, constituted by the law under which the proceeding was had, a trustee to sell, convey and receive, and to account for the proceeds to those who were entitled thereto. I think therefore the purchaser was justified in making payment to Edwin Godwin whilst he retained the bonds in his possession ; and such payments, if made in good faith, operated as a discharge pro tanto of the purchase money. No attempt has been made to show that the purchaser was guilty of any fraud; that she knew that Edwin Godwin intended to misapply the funds, or that *238he had any such intention when he received them. It d°es not distinctly appear at what time the first bond was discharged. The credits on the second bond are after the bond fell due. The administrator reports that all but the two bonds returned by him in April 1843, had been paid to him; and in the absence of any allegation or proof to the contrary, the presumption would be that the payment of the first bond was not made until it became due. I think that looking to the authority of Edwin Godwin under this special act, the payment was valid; and therefore deem it unnecessary to express any opinion as to the effect of a payment made under such circumstances to a commissioner appointed to sell by a chancery court in the exercise of its ordinary jurisdiction. I am for affirming the decree.
Moncure and Samuels, Js. concurred in the opinion of Allen, J.
Daniel and Lee, Js. dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481525/ | Moncure, J.
This is an appeal from a sentence of the Circuit court of Richmond county, affirming a sentence of the County court of that county, admitting a paper writing to probat as the will of John Cundiff. The only objection made to the will is that it was not executed and attested in the manner prescribed by the Code, ch. 122, § 4, p. -516. This case is very much like that of Parramore v. Taylor, recently decided by this court; except that in this case no question is raised, and it appears none could have been raised, as to the perfect sanity of the testator, and his freedom from any undue influence at the time of the execution of his will. In other respects, the two cases are almost identical. After giving to the able arguments in this case, (and that of Green & wife, &c. v. Crain, &c. which involved to some extent the same question, and came on for hearing immediately after this,) all the consideration of which I am capable, I am confirmed in my conviction of the correctness of the views expressed in my opinion in Parramore v. Taylor. And regarding that case as a binding authority, I will notice only those particulars in which it was argued by the counsel of the appellant that this case is distinguishable from that.
The principle decided in that case is, that under our pi-esent law, a will acknowledged by the testator in the presence of'two witnesses, present at the same time, who subscribe their names thereto in his presence, the whole being one continuous transaction, occurring at the same time, is well executed, though the witnesses do not subscribe their names in the presence of each other, and though one of them subscribe his in the order of time before the acknowledgment.
One feature of distinction between the two cases, *242according to the argument of the appellants’ counsel, consists in this, that there was not in this case, as there was in that, any concert among the witnesses, any privity between the testator and them, any continuity of transaction, commenced, continued and ended, between the same parties, the testator and the witnesses. That in that case the two witnesses on whose attestation the will was sustained, were convened, for the purpose of being witnesses, before the execution of the will was commenced; while here the scrivener subscribed the will as a witness, and then the other two witnesses were successively called in, and subscribed it as such, not before having had any agency in the transaction, nor knowing that they were to be called in for that purpose. From my recollection of the facts in Parramore v. Taylor, there is no material difference in this respect between that case and this. If in that case either of the witnesses to the will or the codicil, except Corbin, had any previous knowledge that he would be called on to witness the transaction, the fact was certainly not relied on as one of the grounds of the opinion delivered, or judgment rendered therein. Nor do I conceive the fact to be of any importance whatever. It is very common and natural for a testator to sign his will in the presence of the scrivener, and after the latter has subscribed his name as a witness, to have other persons, who may be convenient, or be selected by him for the purpose, called in for the first time to witness it. It is not often material to him who are the witnesses, so that they be honest and correct men. But it is generally objectionable to him to have his will written or read in the presence of any person but himself and the scrivener, where one is employed; and therefore the business of writing and readin'g the will, and of its attestation by the scrivenei-, when one is employed, is generally completed before any other person is called in to witness it. He does *243not often convene the witnesses before hand, and keep them in attendance upon or about him during the whole transaction; especially when, as in this case, he executes his will at a place where he can obtain proper witnesses at any instant he may want them. Richard H. Lyell, the scrivener in this case, was relied on by the testator to have his will duly executed and attested. He was a most important agent in the whole transaction. In no part of it can it be said that he was a silent or unconcerned spectator. His office was not ended when he subscribed the will. He immediately, and without leaving the room, called in the other witnesses successively, and bore witness with them to the acknowledgment made to them respectively by the testator.
But the main feature of distinction contended for by the appellants’ counsel between this case and that of Parramore v. Taylor, is, that there the testator acknowledged his will to the witnesses, all of whom knew, from what was said and done at the time, that it was his will. Whereas here, the testator acknowledged his signature merely, to two of the witnesses; and not only did not inform them that the paper was his will, but designedly concealed that fact from them. This difference between the two cases in point of fact, exists in regard to the will in that case; but not, according to my recollection, in regard to the codicil. I do not think, though the record in that case is not before me, that the second witness to the codicil was informed, or had any knowledge, of the name or nature of the instrument when he attested it. I would infer from the opinion delivered in that case that he had not; and at all events, that it was considered of no importance whether he had or not. Hor does it appear that there was any design on the part of the testator in this case to conceal from any of the witnesses to his will, the nature of the instrument. One of them, the scrivener, *244of course knew all about it, and he had informed another of the witnesses, Ms nephew and partner, that he had been requested to draw the will. It does not appear that any secrecy was enjoined upon him by the testator. Both of the other witnesses believed when they attested the instrument that it was a will; and one of them, it seems, indicated that belief, by a jocular remark made by him at the time. Whether however they were ignorant of the fact or not; or whether it was designedly concealed from them by the testator or not, is, as I shall presently endeavor to show, an immaterial circumstance.
The facts in regard to the attestation of the will by the second witness, Henry Lyell, as stated by himself, are, that he was called from the store room into the counting room by Richard H. Lyell. to witness the will. When he went in, the testator was sitting at the desk, with the will, which he had signed, and R. H. Lyell had witnessed, lying on the desk before him or by him. The testator asked him “ to witness that instrument of writing.” Witness asked him if he acknowledged that to be his signature, meaning the signature to the paper referred to. The testator said, he did. Henry Lyell then subscribed the paper as a witness in the presence of the testator and of R. H. Lyell. The testator did not tell him it was his will, but he believed it was; and had reason so to believe, from what R. H. Lyell had told Mm. Certainly this would have been a good acknowledgment of the will by the testator to Henry Lyell under the statute of 29 Ch. 2, and our corresponding statute which was in force before the Code took effect. The cases of White v. The British Museum, 19 Eng. C. L. R. 91, and Wright v. Wright, 20 Id. 197, are conclusive as to the former statute; and the case of Rosser v. Franklin, 6 Gratt. 1, as to the latter. The terms and evidence of the. .acknowledgment were much stronger in this case than in *245either of those. In the two English cases none of the witnesses saw the testator’s signature, and only one of them knew what the paper was. In the Virginia case, the will was signed by another for the testator, who made her mark, and the only surviving witness was a marksman. It was held not to be necessary that the testator should acknowledge to the witnesses the subscription of his name to be his signature; or even that the instrument is his will. It is enough that he should acknowledge, in their presence, that the act is his, with a knowledge of the contents of the instrument, and with the design that it should be a testamentary disposition of his property. Indeed, the counsel for the appellants admitted that the acknowledgment would have been sufficient in this case under the old law; but they argued that it is not under the new; which requires, as they contended, that the acknowledgment should convey and be intended by the testator to convey, to the minds of the witnesses, a knowledge of the fact that the paper acknowledged is his will; or, at all events, that the witnesses, at the time of their attestation, must have such knowledge; and the testator must be aware that they have. They contended that the report of the revisors, which conformed to the stat. of 1 Viet. ch. 26, § 9, in authorizing the testator’s signature to be acknowledged, was amended in the legislature, by requiring the will instead of the signature to be acknowledged by him, for the very purpose of correcting the loose constructions which they supposed had been introduced by those cases and others. I do not think so, but quite the contrary. I think that amendment was made for the purpose of adhering to the old law, and the judicial construction it had received in that respect. The statute of Victoria in requiring the signature to be acknowledged instead of the will, effected, it seems, a material change of the 29 Ch. 2, as it had been ex*246pounded by the courts. And in construing the former, the English ecclesiastical courts have held acknowledgments not to be good which would have been good under the latter. 7 Eng. Ecc. R. 129 and 340. I think our legislature designed to avoid the danger of such a consequence; and therefore, by the amendment adopted, employed terms broad enough to embrace every acknowledgment which would have been sufficient under the old law. There was nothing in that law which expressly authorized an acknowledgment of the will by the testator: It spoke of signing only. By judicial construction, an acknowledgment of the signature was held to be equivalent to making the signature in the presence of the witnesses: then an acknowledgment of the instrument as a will, was held to be so equivalent: and then an acknowledgment of the instrument with a knowledge of its contents and an intention on the part of the testator that it should operate as his will, was held to have the same effect, though the witnesses did not know that the instrument was a will. This construction was well settled; and the legislature seems to have designed to embody it in the new statute. In saying that the will may be acknowledged, they used terms which were well understood by the profession and the people, and must have intended them to be so understood. They could not have intended to embrace some forms of acknowledgment and exclude others. An acknowledgment of an instrument which is a will, and known and intended by the testator to operate as such, is an acknowledgment of the will, though not so called by the testator in making the acknowledgment, and though the witnesses be ignorant of the fact that it is a will. If the legislature had designed to make the change as contended for, they would have used plain language for that purpose, such as was used by the legislature of New York in making a similar change. Their lan*247guage was that the testator, at the time of subscribing or acknowledging the will in the presence of the witnesses, shall declare the instrument to be his will and testament. 2 Rev. Stat. 63, § 40. In construing this language, it has been held by the courts J of that state, that there must be an actual publication of the instrument as a will, in the presence of the subscribing witnesses, in addition to the other formalities required by the statute. Brinkerhoof v. Remsen, 8 Paige’s R. 488 ; S. C. 26 Wend. R. 325. The difference between the language of our statute and that of New York is very material; and yet it is contended that ours should be construed as that has been. I think that such a construction would extend the words “ or the will acknowledged” greatly beyond their proper meaning, the meaning in which they are generally well understood, and would be inconsistent with the other terms and provisions of our statute. The legislature could not have designed, in such an obscure way, to make so radical a change of the law; and not only to make publication necessary as a statutory requisition to the validity of a will, but require it to be made in the presence of the subscribing witnesses.
It seems to be somewhat doubtful whether publication ever was necessary to the validity of a will. 1 Jarrn. on Wills 71. If ever necessary, it might have been inferred from slight circumstances. 3 Lomax Dig. 42, § 24. The statute of 29 Ch. 2 did not require it; but on the contrary, seems to have dispensed with its necessity, if it previously existed; or at least substituted the requisitions thereby prescribed in place of any other publication, in cases to which the statute was applicable. “ All other requisitions (says Judge Lomax) would seem necessarily to be excluded, but those which are embraced in the statute; and publication, as a distinct act of the testator, is not one of those which are enumerated.” Id. 43. “ Signing *248and acknowledgment of a will before witnesses (says Judge Tucker) amount to what is called a publication of the will, although they are not informed that it is a will, and though the testator even calls it a deed.” 1 Tuck. Com. pt. 2, 294. “ The case of Trimmer v. Jackson (says Dr. Burn) was where the witnesses were deceived by the testator at the time of the execution, and were led to believe, from the words used by the testator at the execution of the instrument, that it was a deed and not a will. It was delivered as his act and deed; and the words sealed and delivered were put above the place where the witnesses were to subscribe their names. And it was adjudged by the court, as it is said, for the inconveniences that might arise in families from having it known that a person had made his will, that this was a sufficient execution. 4 Burn’s Eccl. Law, 8 Lond. ed. by Tyrwhitt, 130.” This and other cases on the subject are reviewed in the able opinion of the chancellor in Brinkerhoof v. Remsen, 8 Paige’s R. 488, from which I have taken the quotation above made from the work of Dr. Burn.
I have said that the construction contended for would be inconsistent with the other terms and provisions of the new law. It would not require publication where the will is wholly written by the testator ; nor, though not wholly written by him, if the signature be made (instead of the will acknowledged) in the presence of the witnesses. Why is not publication as necessary in those cases, and especially the latter, as in a case in which the will is acknowledged? Can it be believed that the legislature intended to permit a testator who can and chooses to write his own will, or sign it in the presence of the witnesses, to conceal from them the fact that it is a will, and even to execute it in the form of a deed for that purpose; and yet to require a testator who cannot write, or who happens not to make his signature in the presence of *249the witnesses, to declare to them that the instrument is his will ? Surely, if the legislature had intended to require publication at all, the requisition would have been uniform, and applied to all cases in which the reason for its application is the same. That is the case in the statute of New York, which requires publication as well where the signature is made, as where it is acknowledged in the presence of the witnesses. There the publication is a statutory ingredient in the execution of the will, entirely independent of the act of making or acknowledging the signature, and must coexist with that act, whether it be in one form or the other. Here the publication contended for would not be an independent, necessary ingredient in the execution of the will, but be a mere alternative, or substitute, for the act of making the signature in the presence of the witnesses. The most natural alternative for such an act would be the acknowledgment of the signature; and that is what the revisors proposed. But the legislature authorized the will to be acknowledged ; and thus, I think, made any acknowledgment valid which would have been so, under the construction which had been put upon the old law. Therefore, the acknowledgment of the instrument, and a fortiori, of the signature, though the witnesses be not informed of the name or nature of the instrument, is sufficient; if the testator himself knows its contents, and intends that it shall be a testamentary disposition of his property. In this case, both the instrument and the signature were acknowledged by the testator; and that he knew its contents, and intended it to operate as a testamentary disposition of his property, is conclusively proved by the draftsman of the will and one of the subscribing witnesses thereto.
The construction contended for would, I think, greatly increase litigation, and produce much mischief without any corresponding good. The perplexing *250question in all cases of acknowledgment of a will would be, whether what was said or done by the testator amounted to an acknowledgment. Too much would depend upon the loose recollection of the witnesses ; and the danger of their being tampered with, and of the will being thus defeated, would be greatly increased. The evils of increased litigation and confusion, arising from a change of the will law, are signally displayed in regard to a provision in the statute of Victoria, requiring the will to be signed “ at the foot or end thereof by the testator.” An immense number of cases have been before the English courts, involving the construction of these words. Our legislature wisely avoided the evil by adhering to the old law, and merely embodied in the new statute the judicial construction of that law, by requiring the will to be signed “in such manner as to make it manifest that the name is intended as a signature.” There have been cases also before the English courts, involving the construction of the words of the statute of Victoria, requiring the signature to be acknowledged. Our legislature has, I think, in like manner avoided this evil by requiring the will to be acknowledged.
In conclusion, this is a case in which a man, having no family, wished to give his estate to some of his collateral kindred; and made his will for that purpose. He was of perfectly sound mind, and free from any undue influence at the time of its execution; and dictated and understood the contents of it. The scrivener and the witnesses were men of unimpeached integrity, having no interest of their own to subserve, and no motive, so far as the record shows, for favoring or disappointing any of the expectants upon the testator’s bounty. He acknowledged his signature to the will in the presence of at least two witnesses, present at the same time, who subscribed their names thereto in his presence. If this will be not valid, the law has, in *251this instance, signally failed in its intended effect, to secure a free and fair exercise of the testamentary right. But I am of opinion that it is valid, and I am therefore for affirming the sentence of the Circuit court. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481526/ | Allen, P.
I dissented from the majority of the court in the case of Parramore v. Taylor, and agreed with Judge Daniel in the opinion given by him in Sturdivant v. Birchett, 10 Gratt. 67. Upon the question decided in Parramore v. Taylor, I have seen no reason to change my opinion. But that case was fully argued and carefully considered. The decision was made by a majority of the whole court, and a motion for a rehearing was overruled. The same question has been again argued in this case, and with the same result. I must therefore consider it as settling the law on that question in future cases. Upon the other question presented in this case, whether an acknowledgment of the signature is a sufficient acknowledgment of the will under our statute, I concur in the opinion of the majority.
Lee and Samuels, Js. concurred in the opinion of Moncure, J.
Daniel, J. dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481527/ | Samuels, J.
In the argument here it was insisted that the motion to instruct the jury was properly overruled, for reasons apart from the proposition of law submitted for the judgment of the court; that the instruction, if given, would have been an invasion of the province belonging to the jury. If the record showed this to be true, then the motion was properly overruled, without regard to any other reason. This court, in Kincheloe v. Tracewells, 11 Gratt. 587, and in Harvey v. Epes, supra 158, decided that the courts might decide upon such motions by parties just as they were made, and were under no legal necessity of sifting or modifying such motions, so as to separate and withhold the erroneous portions from the jury. I am of opinion, however, there is no foundation for the objection. It appears that after all the evidence had been heard by the jury, the contestants submitted to the court the motion for an instruction to the jury. This motion did not ask of the court an expression of opinion in regard to facts proved, or the weight of *255evidence. The contestants admitting the absolute verity of every thing which the evidence tended to prove, yet insisted that the proof was insufficient to ■ prove the will; that conceding all the witnesses had said to be true, yet as it was not proved that any two of the witnesses had subscribed the will in the presence of each other, the proof of execution was not sufficient in law. There was no proof tending to show such subscription by the witnesses, (in fact it was disproved,) and upon this absence of proof the contestants predicated their motion to instruct. It would have been idle to submit it to the jury in the usual form to pass on the sufficiency of evidence to prove a subscription by two witnesses in the presence of each other, when there was no proof whatever having a tendency to that end.
A court is not bound to decide questions of law, on a trial by jury, unless they be relevant to the case before it; such questions are relevant only when they arise upon the evidence. A bill of exceptions is intended for the sole purpose of putting upon the record the facts upon which a party rests his proposition of law, the proposition itself, and the decision of the court thereupon. It has been frequently decided by this court that the facts upon which a legal proposition is predicated must be shown by the record; if it were otherwise, cases might be decided upon abstract questions having no existence in such cases. A bill of exceptions to a ruling by the court in the progress of the trial is well taken, if it show that there was something in the evidence to serve as a basis for the proposition of law, the proposition itself, and the decision of the court. It is usual to state the-tendency of the evidence, leaving its sufficiency to be passed on by the jury. If however the exceptor admits in advance the existence of every fact which the proof tends to show, and puts his admission in the bill of exceptions which *256he tenders, it is difficult to perceive why he may not do so. On facts thus stated the appellate court can determine whether the question of law did arise with as much certainty as if they had been stated in any other mode. In the case before us, it appears from the facts stated, that no two of the witnesses subscribed the will in the presence of each other. On this the contestants below, the appellants here, moved for an instruction to the jury to the effect that the will was not well executed. This instruction the court refused to give; and this decision is brought here for revision.
The facts in the record, so far as the witness Walton is concerned, are of no weight on the question whether the will was executed in the form prescribed by law : he was not in the presence of the testator at any time when any other witness was present. The case must therefore rest upon the facts with which the witnesses Hutchings and Wright are connected. The witness Hutchings, on or about the 8th day of May 1852, heard the testator acknowledge the will, and thereupon, in the presence of the testator, subscribed his name as a witness. The requisitions of the law up to this point had not been complied with. About four days afterwards, on or about the 12th of May 1852, the testator again acknowledged the will in the presence- of the witnesses Hutchings and Wright, and Wright subscribed his name as a witness in the presence of the testator and of the witness Hutchings: the witness last named did not again subscribe the will. Thus the precise question passed on by the Circuit court was presented, and is, whether it was necessary that the subscription by each witness should be made in the presence of the other. The Circuit court held it was not necessary; and in this I think the court decided correctly. I am led to this conclusion as well by looking to the terms of the statute as to its obvious purpose and intention. It requires of the testator *257himself, that “ the signature shall be made, or the will acknowledged by him, in the presence of at least two competent witnesses present at the same time.” This requisition, construed as it should be, with reference to former laws of which our statute is a revision, means that the relation of “presence” shall exist between the testator and the witnesses, and does not require that the relation of “presence” should exist between the witnesses themselves. It is easy to conceive how witnesses might both be in the “ presence” of the testator, and yet'not in the presence of each other, if we give the word “ presence” the meaning heretofore affixed to it by judicial decisions. Shires v. Glasscock, 2 Salk. R. 688; S. C. Carthew 81; Davy v. Smith, 3 Salk. R. 395; Casson v. Dade, 1 Bro. C. C. 99 ; Neil v. Neil, 1 Leigh 6.
The English courts, in passing on the statute 1 Victoria, ch. 26, § 9, from which our statute is taken, have decided that the witnesses must not only be in presence of the testator at the time he makes his signature or acknowledgment, but in the presence of each other. This is not the necessary meaning of the terms used; for as already said, the witnesses might both be in the presence of the testator, yet not in the presence of each other. To hold that the witnesses must not only be in the presence of the testator, but also in the presence of each other, will impose upon the courts of probat the double duty of deciding on these double relations; thus complicating the proofs, and thereby increasing the danger of defeating the testator’s intention ; and this because, as is said, it should be inferred that the witnesses must be in the presence of each other from the fact that they are required to be in the presence of the testator.
If we look to the obvious purposes of the statute, there is little room for doubt. The will must be in writing; the law makers having deemed it unwise to *258rely on parol testimony touching the disposition of property by will. After the will is written, it is re- ■ quired that the testator shall manifest his approval of its provisions by signing his name, or causing it to be done. The signature by the testator performs a double function; first to show his approbation of what is written, and next to identify the paper. The office of the witnesses is to identify the paper, to prove the signature or acknowledgment thereof when it shall thereafter be offered for probat. The law prescribes as the only mode of identification, that the witnesses subscribe their names in the presence of the testator, so that he may know the witnesses are subscribing the paper which he intends to be his will. All these purposes of the statute are secured by the construction of the Circuit court: It neither sacrifices the end to the means, nor the means to the end. That the testator in this case intended the paper propounded to be his will; that he acknowledged it as such in presence of Hutchings and Wright; that Hutchings in testator’s presence subscribed the paper; that Wright in presence of Hutchings and of testator subscribed his name, are all facts beyond question: yet it is said that the will is defectively executed because Hutchings did not subscribe in presence of Wright as well as of testator. This, as I have already said, is not required by the letter of the statute. It is argued, however, that each witness should observe the act of subscription by the other as a security against fraud and forgery. Before yielding to this argument, it is well to consider whether the same security is not afforded by the construction put on the statute by the Circuit court. Under either construction, fraud or forgery could be made effective only by the perjury of two subscribing witnesses. They must prove, either truly or falsely, that testator put his signature to or acknowledged the paper as his will; if truly so proved, no in*259jury is done to any one; if falsely proved, it can only be deplored as one of the many abuses which may be practiced in giving testimony. It will do no good to place the honest execution of wills under arbitrary and capricious restrictions for the purpose of preventing the perpetration of fraud and forgery by means of perjury, seeing that fraud, forgery and perjury may attain their ends just as readily as if the restrictions had never been imposed. At last, it will be found that the only security against evil practices exists in the vigilance of the testator and the integrity of witnesses. If knaves shall combine to establish a spurious will, their work will be just as easy under one construction as under the other.
The general principles involved in this case were considered in the case of Parramare v. Taylor, 11 Gratt. 220; and Beane v. Yerby, supra 239, recently decided by this court; and it is unnecessary to go over the same ground. I therefore only refer to those decisions and the cases cited by Judge Moncure in Parramore v. Taylor, especially to Pollock v. Glassell, 2 Gratt. 439; Rosser v. Franklin, 6 Gratt. 1; Moore v. Moore’s ex’or, 8 Gratt. 307; Sturdivant v. Burchett, 10 Gratt. 67 ; as giving the rule by which this case must be decided.
I am of opinion to affirm the decree.
Moncure and Lee, Js. concurred in the opinion of Samuels, J.
Allen, P. and Daniel, J. dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481528/ | Allen, P.
delivered the opinion of the court:
The court is of opinion, that as in a proceeding at law by writ of partition, it is the regular course to assign to each parcener his part in severalty; Litt. § 276, Coke 179 b; from analogy thereto, the same *263course should, as a general rule, be observed where the proceeding is by bill in chancery. That such partition of the whole subject is more likely to be equal and just than where a partial partition is made, as the commissioners will have an accurate view of the whole subject, and by dividing it into different parts, will be furnished with the means of making a fair comparison, and can correct inequalities. If from the condition of the subject or the parties, the interest of the parties in general would, in any case, be promoted by pursuing a different course, the facts j ustifying a departure from the rule should, at least where the rights of infants are. involved, be disclosed by the report, or otherwise appear, to enable the court to judge whether their interests would be affected injuriously or not.
The interlocutory decree of the 28th of November 1842 directed the commissioners, amongst other things, to divide equally amongst the plaintiff and the defendants who were infants, the tract of land of which Malinda Custis died seized. Instead of pursuing the directions of said decree, the commissioners, by their report filed the 30th October 1843, assigned to the appellee Lewis J. Snead one-fifth of said tract of land; leaving the residue thereof undivided.
The court is of opinion, that in this the commissioners violated their duty, and, in the absence of all evidence to justify it, it was error to confirm the report aforesaid in this respect.
The court is further of opinion, that the same objection exists to the report of the commissioners under the decree of the 26th October 1846. The said decree requiring a division of both the tract descended from Malinda Custis and the tract whereof William Custis of Henry died seized, separately amongst the parties according to their rights, the decree should have been followed and carried out according to its terms, unless the interest of all concerned required a departure from *264the terms thereof; and if so, the facts should have been reported or made to appear, to enable the court, having a regard to the interests of the infants, to judge whether such departure should have been permitted. That although under the 4th section of the act concerning partitions, 1 Rev. Code of 1819, p. 360, partition may be made of several parcels of land or other real estate to which the parties have title, though such title may be derived from different sources, by allotment of part in each parcel or of parts in one or more parcels, or of one or more individual parts, with or without the addition of a part or parts of other parcels, as shall be most for the interest of the parties in general; yet where the same parties are entitled to lands derived from the father and also to lands derived from the mother, and some or all are infants, as in the event of the infant dying under age, a different course of descent is prescribed, inconvenience might result from blending such lands in the partition ; and it should at least appear in the words of the act, that the interest of the parties in general would be promoted, to enable the court to protect the rights of the infants. Nothing of that kind appearing either in the report of the commissioners or otherwise, the court is of opinion it was error to overrule the exception and confirm said report filed on the 30th November 1846.
The court is further of opinion, that as it is alleged in the original bill that said William Custis of Henry left a widow who at the time of filing said bill was the wife of James Stewart, and the bill prayed for a partition of the land of which said William died seized, subject to the widow’s estate in dower, the widow and her husband should have been made parties; and her dower assigned; and partition should have been made of the residue. And it was error to have directed or confirmed a partition of said tract until such dower had been assigned; it not appearing, and there being no*265thing to justify the court in presuming, that such estate in dower had terminated. It is therefore ordered and adjudged, that so much of said decrees as is herein declared to be erroneous, be reversed, and the residue thereof be affirmed; and that the appellee L. J. Snead pay to the appellant his costs. And the cause is remanded, with instructions to require the appellees to make said widow and her husband parties, if such dower estate is still in existence ; and for further proceedings, in order to a partition of said lands, in order to a final decree.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481533/ | Daniel, J.
delivered the judgment of the court:
It seems to the court, that as it appears from the *438bill of exceptions that no evidence was offered to prove ^be intent with which the deed from Harrison to Levy, set forth, was executed, other than such as was ag-or(jeci fry -¿fre provisions of the deed itself, the question whether the said deed was fraudulent per se or not, M was one to be decided by the court on an inspection of said deed, and not proper to be submitted to the jury; and as the first instruction proposed by the plaintiffs in error sought to refer that question to the jury, it was not an error in the Circuit court to refuse to give said instruction.
It seems further to the court, that the clause in said deed, by which it was stipulated that the grantor W. P. Harrison should keep possession of and sell the stock of goods thereby conveyed, in the usual line of his trade, and hold, occupy and enjoy the store until default in the payment of any of the debts thereby secured, or until the trustee William M. Levy should be requested by any of the creditors in said deed mentioned to close said deed by sale, is explained by the clause immediately succeeding, in which it is declared that the said trustee is thereby empowered, in the event of default in the payment of any of the said debts by the said Harrison, when at maturity, upon the request of any of the said creditors, to dispose of the property in said deed conveyed; and that it was the. purpose of the grantor in said deed to retain to himself the power to keep possession of and sell the said .stock of goods until default should be made in the payment of said debts, and until the trustee should be requested by any of the creditors to close the deed by sale.
And it seems further to the court, that this power is one incompatible with the avowed purpose of the grantor to furnish an indemnity to his creditors; is equivalent in its effects to a power of revocation; and fully adequate to the defeat of the provisions of the deed. And therefore, that said deed is, according to *439the principles adjudicated by this court in the cases of Lang v. Lee, 3 Rand. 410, Sheppard v. Turpin, 3 Gratt. 373, fraudulent per se, null and void.
And it seems therefore further to the court, that the Circuit court erred in refusing to give the second instruction asked for by the plaintiffs in error.
It is therefore considered by the court, that the judgment of the said Circuit court be reversed and annulled, with costs, &c. the verdict of the jury set aside, and the cause remanded for a new trial, with instructions to the said Circuit court, if upon said trial the same instructions shall be'asked, to refuse to give the first, and to give the second.
Judgment reversed.- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481534/ | Daniel, J.
delivered the opinion of the court:
It seems to the court, that at the time of the issuing of the subpoena and attachment in this case, the appellee Henry P. Ward was in fact, and in the true sense and meaning of the statutes regulating the subject, not a resident of this state.
It however seems further to the court, that there was no levy of said attachment on any real estate of the said Ward, no such estate being mentioned or described by endorsement on said attachment.
And the court, without deciding whether the certificate of J. P. Riely of the 14th day of March 184-3, of the acknowledgment before him, by the said Ward, of the deed of trust of the same date, was sufficient in law to authorize the recording of said deed, is of opinion, that as the deed aforesaid purports to grant, assign and deliver to the trustees, George W. Ward and C. Lewis Brent, all the estate, property and effects therein intended to be conveyed; and as it appears from the evidence, that the execution of said deed was accompanied or in good faith soon followed by a delivery of the personal property in said deed mentioned, there was a complete and valid transfer of said property to the said George W. Ward and C. Lewis Brent; and that the recording of the deed was in no *449wise essential to the protection of said property against the demands of creditors who had not acquired liens on the same before said transfer was consummated; and that as by the terms of the deed aforesaid, the payment of all the debts claimed by the appellant against the appellee Henry P. Ward, is expressly provided for, and so there can be no surplus in the hands of the trustees, after satisfying the demands of the creditors therein provided for, in which the appellant could have any interest, (as his own claims would be paid before such surplus could arise,) there was no property of the said Henry P. Ward in the hands of the said trustees liable to the attachment of the appellant.
The court is, however, also further of opinion, that the effort of the appellant to invalidate said transfer on the ground that the deed was not duly recorded, and to subject the property therein mentioned to the payment of his demands in preference to the other creditors therein secured, did not preclude him from a right to demand and have of the trustees his ratable portion of the proceeds of the property in their hands, in accordance with the provisions of said deed.
And the court is further of opinion, that as it is alleged in the bill and proved by an exhibit filed therewith, that the said Henry P. Ward, on the 12th of October 1852, assigned to the appellant certain scrip for five hundred and seventy-four dollars of stock of the Winchester and Potomac railroad company, and also a claim on Alexander Clark, due by note, and secured by a deed of trust on his property, as a security to indemnify the appellant on account of his acceptance of a draft for five hundred dollars, which is one of the debts provided for in the deed of trust of the 14th of March 1853 : And as by the said deed the said Henry P. Ward assigned to the said-trustees all money due him by bonds, notes or otherwise, and all stock that may be held by the said Henry P. Ward in any *450joint stock company; and as the appellant admitted in his bill that the amount of his claims against the said Henry P. Ward was properly subject to the off-set of a store account, the amount of which was not known, the said trustees, though having in their hands nothing amenable to the attachment, were yet interested as representing the creditors, in seeing to a proper settlement of accounts between the appellant and the said Henry P. Ward, as also to a sale of the stock aforesaid and a collection of the claim on Alexander Clark, and a proper application of the proceeds to the payment of the draft aforesaid.
And the court is therefore also further of opinion, that whilst the Circuit court properly refused to subject the property in the hands of the trustees, to the satisfaction of the claims of the appellant, in preference to the debts of other creditors provided for in the deed of trust, it erred in dismissing the bill, except so much thereof as sought to subject the property of Henry P. Ward in the hands of the trustees, to the attachment. Therefore it is decreed and ordered, that the decree aforesaid, except in the particular just mentioned, be reversed and annulled, and that the appellee Henry P. Ward pay to the appellant his costs, &c. And it is ordered that the cause be remanded to the said Circuit court, in order that the balance due by the said Henry P. Ward to the appellant may be ascertained, and a personal decree rendered therefor; also a decree for the sale of the stock aforesaid in the Winchester and Potomac railroad company, and the application of the proceeds of sale towards the discharge of the appellant’s demand, with liberty to the appellant to amend his bill and make new parties, if so advised, with a view to obtain a decree for the sale of the property mentioned in exhibit No. 3, as conveyed by deed of trust to secure the note therein also mentioned, and for a like application of the proceeds *451of such sale; and also a decree for the payment by the trustees of the share or portion of the trust fund which may be applicable under the provisions of the deed of trust of the said Henry P. Ward of the 14th day of March 1853, to the residue of the appellant’s demand.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481536/ | Moncure, J.
after stating the case, proceeded:
The first objection taken to the judgment of the County court is, that the proceeding, having been commenced before the Code took effect, should' have been concluded under the law which was then in force, and should not thereafter have conformed, as it did, to the provisions of the Code.
I think the case comes within the -exception contained in the Code, ch. 216, § 2, p. 800, and that the proceedings had therein after the Code took effect properly conformed to its provisions. The only difference between the act of February 12, 1814, 1 Rev. Code 455, under which, this case was commenced, and the Code, ch. 134, p. 556, under which it was concluded, seems to be in the mode and form of proceeding. Each provides a summary remedy 'for the samé wrong, to wit, a forcible or unlawful entry, .or an unlawful detainer. The same evidence which was necessary to sustain the remedy under the old law is necessary to sustain it under the new; except in this, that under the new law the complaint is general, of an' unlawful withholding from the plaintiff the premises in question; and may be sustained by evidence of such unlawful withholding, whether the possession was acquired by the defendant forcibly, unlawfully, or lawfully and peaceably; whereas, under the old law, *469the complaint was several, of a forcible, or an unlawful entry, or an unlawful detainer; and the subsequent proceedings and the evidence, conformed to the of the particular complaint. • In all cases, however, whether under the old law or the new, to sustain the complaint it is necessary for the jury in effect to find that at the date of the complaint the defendant unlawfully withheld the possession from the plaintiff, and that he did not so withhold it for three years before. Such was the effect of a special finding for the plaintiff in the form prescribed by the old law, and such is the effect of a general finding for the plaintiff under the new. The complaint under the new law is, “that the defendant is in possession,” and as it is said, “unlawfully withholds from the plaintiff the premises in question.” The defendant either pleads or makes default; and, in the former case, his plea is “not guilty.” Whether he pleads or makes default, a jury is impanneled to try “whether he unlawfully withholds the premises in controversy.” If it appear that the plaintiff was forcibly or unlawfully turned out of possession, or that it was unlawfully detained from him, unless it also appear that the defendant has held or detained the possession for three years before the date ■ of the summons, the verdict shall be for the plaintiff, &c. But it is said that the complaint in this case was in the form prescribed by the old law, that the defendant unlawfully turned the plaintiff out of possession; and did not charge, as the complaint under the new law does, that the defendant, at the date or exhibition of the complaint, was in possession and unlawfully withheld from the plaintiff the premises in question; and it is therefore contended that the issue on the plea of not guilty did not involve these facts, and that they were not found by the jury in their verdict for the plaintiff. I think these facts were, in effect, involved in the issue - and found by the jury. The complaint *470not only charged that the defendant unlawfully turned plaintiff out of possession, but prayed restitution the possession; which implied that, the defendant withheld the possession from the plaintiff. The jury was impanneled to try whether the defendant unlawfully withheld the premises in controversy, which was in effect the issue on the plea of not guilty. The verdict of the jury was for the plaintiff, and “that he recover from the defendant the possession of the premises in the complaint and warrant mentioned.” The only effect which the form of the complaint could have had upon the case was to require proof that the possession of the defendant was acquired by an unlawful entry. This objection was' not made by the defendant in the County court. On the contrary, if it was erroneous to conform the proceedings which occurred in the case after the Code took effect, to the provisions thereof, he committed the first error by pleading “ not guilty.”
Before I leave this branch of the subject, it'may be proper to say, by way of explanation, that I do not consider a separate complaint to be now necessary, but the only complaint which the present law seems to contemplate, is embodied in the summons.
The other objections taken to the judgment of the County court are to the admission of the deed mentioned in the first bill of exceptions as evidence to the jury; and to the giving and refusing instructions, as mentioned in the second bill of exceptions.
This case seems to have been treated, both in the County and Circuit courts, as an action of ejectment, instead of an action of unlawful entry; and to that cause the supposed errors which have arisen in the case are justly attributable.
There is a material difference between an action of ejectment and an action of forcible or unlawful entry. The title or right of possession .is always in*471volved in the trial of an action of ejectment. The plaintiff cannot recover without showing that he is entitled to the possession; and the defendant, out having any right to the possession himself, may generally prevent a recovery by the plaintiff, by showing an outstanding right of possession in another. The remedy for a forcible or unlawful entry was designed to protect the actual possession, whether rightful or wrongful, against unlawful invasion, and to afford summary redress and restitution. The entry of the owner is unlawful if forcible, and the entry of any other person is unlawful, whether forcible or not. If the defendant enters unlawfully, the plaintiff is entitled to recover, without any regard to the question of his right of possession. His actual possession, of itself, gives him a right of possession against any person not having a right of entry. That the land belongs to the commonwealth will make no difference. There can, it is true, be no adversary possession against the commonwealth. But a person may be in actual possession of the land of the commonwealth, and will be entitled to all the remedies which the law provides for the protection of the actual possession against tortfeasors. Any possession is a legal possession against a wrongdoer. Graham v. Peat, 1 East 244; Harker v. Berkbeck, 3 Bur. 1556. Proof of an actual and exclusive possession by the plaintiff, even if it be by wrong, is sufficient to support the action of trespass against a mere stranger or wrongdoer, who has neither title to the possession himself nor authority from the legal owner. 2 Greenl. Ev. § 618. In a case reported in 4 Leon. 184, and Godb. 133, it appears that Anderson, C. J. said, “ If one intrude upon the possession of the king, and another man enteretk upon him, he shall not have an action of trespass for that entry; for that he who is to have and maintain trespass ought to. have a possession. But in such case he hath not a *472possession, for every intruder shall answer to the king ^01' his whole time, and every intrusion supposeth the to be in the king.” But it was decided in ^ie subsequent case of Johnson v. Barret, Aleyn’s R. io, that an intruder upon the king’s possession might have an action of trespass against a stranger. And the same principle is stated in 7 Com. 'Dig. Trespass, b. 2, p. 510, marg. 493, where the case reported by Aleyn is referred to, but not the previous case reported by Deon. and Grodb. The weight of authority seems therefore to be in favor of the principle as laid down in Com. See also Cutts v. Spring, 15 Mass. R. 135; and Inhab. Barnstable v. Thacker, 3 Metc. R. 239.
If a person in possession of public land may maintain trespass against a stranger, a fortiori he may maintain* forcible or unlawful entry against him. Forcible entry may be maintained where trespass cannot ; as for instance, against the owner of the land; who may defend himself against an action of trespass by the plea of liberum tenementum. Hyatt v. Wood, 4 John. R. 950. The owner of the land, having a right of entry, will not commit a trespass by entering, though with force, unless he also commit a breach of the peace. The law will not give damages against him in an action of trespass quare clausum fregit, but will compel him to restore the possession in an action of forcible entry. That the defendant, .in an action of forcible entry, cannot defend himself by showing that the land in controversy is a part of the public domain, has been decided in Alabama, Cunningham v. Green, 3 Alab. R. 127, and in Tennessee, Pettyjohn v. Akers, 6 Yerg. R. 448; and I am not aware that the contrary has been decided any where. I can see no reason for a different rule in regard to public and private lands. There is the same reason for the protection of the .actual possession against unlawful invasion in both cases. The plaintiff in the action is not suing for *473damages, but to have the possession restored to him; and when he shows that he has been turned out of possession forcibly, or by one having no right to do so, he has made out his right to restitution, which cannot be defeated by any evidence in regard to the title or right of possession. The judgment has only the effect of placing the parties in statu quo. It settles nothing, even between them, in regard to the title or right of possession: it being declared by law that “Ho such judgment shall bar any action of trespass or ejectment between the same parties, nor shall any such verdict be conclusive, in any such future action, of the facts therein found.” Code, p. 557, § 4.
But what is the nature of the possession to which this summary remedy applies? It is certainly not confined to a possession by actual occupancy or enclosure. I think it applies to any possession which is sufficient to sustain an action of trespass. Title draws after it possession of property not in the adverse possession of another. Actual possession of part of a tract of land under a bona Jifle claim and color of title to the whole, is possession of the whole, or so much thereof as is not in the adverse possession of others. This is the general principle, and it applies to the remedy in question. It has been decided in Kentucky that actual residence on one part of a tract, claiming the whole, is a possession of the unenclosed part, within the meaning of the act against forcible entries. Vanhorne v. Tilley, 1 Monr. R. 50. If this be a sound principle of law, as I doubt not it is, it applies to the land of the commonwealth as against persons not lawfully claiming under her. See Cunningham v. Green, 3 Alab. 127. Of course her rights cannot be affected by any kind of possession of her land.
Applying these principles to this case, there can be no doubt of the plaintiff’s right to recover, if the facts were according to the respective pretensions of the. *474parties. The plaintiff being in the actual possession a Par^ °f a large tract of land, claiming the whole a deed conveying it to him by metes and bounds, anq continued in such possession for more than fifteen years, paying taxes on the whole tract, and which during all that time was charged to him on the books of the commissioner, the defendant, within three years before the institution of the suit, entered and took possession of a part of the land not in the actual occupancy of the plaintiff, claiming it under an entry and survey made for the purpose of obtaining a patent, upon the ground not that it was waste and unappropriated land, but that it was part of a' large tract of land which had become vested in the president and directors of the Literary fund, under the act of 1814, 2 Eev. Code, p. 550, § 30. We have seen that possession of part of a tract of land, under claim and color of title to the whole, is possession of the whole, and that this principle applies to the land of the commonwealth as against persons not lawfully claiming under her. The defendant claims under her, but not lawfully ; the land not being waste and unappropriated, and therefore not liable to entry, survey and patent, even though the title be vested in the president and directors of the Literary fund. It is unnecessary to enquire what would have been the relative rights of the parties if the defendant had obtained a patent for the land in controversy before the institution of this suit. The land not being patentable, he was a mere trespasser in making the entry and survey, and is bound to restore the possession to the plaintiff from whom it was unlawfully taken.
The case, then, on its merits, • seems clearly to be with the plaintiff, who is entitled to have the judgment of the County court in his favor affirmed, unless there be some error in the rulings of that court, which requires its reversal. The case, as before observed, *475was treated in that court, as well as the Circuit court, as an action of ejectment, and the questions raised and decided were appropriate to that rather than an of unlawful entry. Still I think there are no errors in the judgment of the County court to the prejudice of the defendant.
Those questions arise on the two bills of exceptions taken in the case. That arising on the first is as to the admissibility of the deed. There can be no doubt about the admissibility of the deed as evidence, if the facts stated in the second bill of exceptions be referred to; as they clearly show that the deed was admissible as color of title, and for the purpose of showing the metes and bounds of the tract claimed by the plaintiff under the deed, and of part of which he took actual possession. The general rule certainly is, that facts stated in one bill- of exceptions cannot be noticed by an appellate court in considering another. 1 Rob. Pr. 347. There may be exceptions to this rule where the reasons on which it rests do not apply. Perkins’ adm’r v. Hawkins’ adm’x, 9 Gratt. 649. The second bill of exceptions showing that the deed was clearly admissible, and that no additional evidence could have rendered it inadmissible, it would seem to be vain to reverse the judgment for the supposed error in admitting it before other evidence was offered which rendered it admissible. But without deciding whether this is an exception to the general rule before mentioned, and without looking to the facts stated in the second bill of exceptions, I think the deed was admissible evidence. It is a link, and it seems to me a necessary link, in the chain of the plaintiff’s evidence. One of the questions necessarily involved in the case is, whether the plaintiff was in possession of the land when the wrong complained of by him was committed? A man can rarely be in the actual occupancy .of every foot of his land. His possession of part of *476it is generally constructive, and results from Ms actual occupancy of another part, under claim and color of to the whole. The deed under which he enters ail(j c]ajms jg then a necessary part of Ms evidence to show the metes and bounds of his possession. It cannot therefore be said, when he offers the deed in evidence, that it is irrelevant and inadmissible. If no evidence be offered to support the deed, and prove that possession was taken under it of the land thereby conveyed, or some part thereof, the plaintiff’s chain of evidence may be incomplete, and may be objected to on that ground, but not on the ground that the deed was not a proper link in the chain. The deed being a proper link in the chain of evidence, it will be presumed in favor of the judgment that the other necessary links were supplied before, at the time, or after the deed was offered. Flannagan v. Grimmet, 10 Gratt. 421. Specific objections were made to it, which, if well founded, affected its validity as a transfer of title; but whether well founded-or not, left it still admissible evidence of the metes and bounds of the land in controversy, and of the extent of the plaintiff’s possession. The motion was not to exclude the deed only as evidence of a valid transfer of title, but to exclude it altogether; and was therefore properly overruled, if the deed was admissible for any purpose.
The questions arising on the second bill of exceptions are, as to the instructions refused and given by the court. I think the four instructions moved for by the defendant were properly refused by the court. The first was properly refused, because even if the deed conferred no title, it did not follow that the jury should find for the defendant. The plaintiff, even if he had no title, had a right to recover if he was unlawfully dispossessed by the defendant within three years before the institution of the suit. The second was pro*477perly refused, because, notwithstanding the facts supposed in that instruction, the deed gave color of title to the plaintiff; and whether it did or not, he had a right to recover, if he was unlawfully dispossessed by the defendant as aforesaid. The third was properly refused, because the land in controversy not being waste and unappropriated, and therefore not liable to entry, survey and patent, the defendant’s entry was unlawful, and the plaintiff was entitled to recover possession in this suit, notwithstanding the defendant may have entered and surveyed the land in 1850, and returned a plat and certificate thereof into the land office more than six months before the trial of the suit. The fourth was properly refused, for the same reasons Which made it proper to refuse the first and second. I do not admit, however, that it was necessary to state in the survey on which the plaintiff’s deed was founded, whether or not any improvements were included on the land, nor that in the absence of such a statement, evidence dehors the proceedings would be admissible to show the existence of such improvements. On that subject I express no opinion, it being unnecessary to do .so.
I am also of opinion, that there is no error in the instruction which was given by the court; at least none to the prejudice of the defendant. This instruction, like the rest, regarded the case as an action of ejectment, and is wholly inappropriate to an action of unlawful entry. Whether the proposition therein asserted would be correct or not in an action of ejectment, it does not seem to be untrue, though irrelevant and unnecessary, in an action of unlawful entry. If, as we have seen, the plaintiff would be entitled to recover in this action on the facts supposed in the instruction, without regard to the length of his possession, a fortiori he would be so entitled if he continued to hold possession more than seven years before the defendant’s entry.
*478In regard to all the questions arising upon the two bills of exceptions in this case, I refer to what is said by Judge Lee in Kincheloe v. Tracewells, 11 Gratt. 587, 608-9, which seems to be as applicable to this case as that. I also refer to the opinion of Judge Daniel in Tappscott v. Cobbs, 11 Gratt. 172, as having a material bearing upon some of the questions arising in this case, even in their application to an action of ejectment.
I am for reversing the judgment of the Circuit court and affirming that of the County court.
Samuels and Lee, Js. concurred in the opinion of Moncure, J.
Allen, P. and Daniel, J. dissented.
Judgment of the Circuit court reversed; and that of the County court affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481537/ | Allen, P.
delivered the opinion of the court:
The court is of opinion, that as by the Code, p. 684, ch. 182, § 10, it is provided, that “the petition shall be rejected, when it is for an appeal from an interlocutory decree or order in a case, which the court or judge to whom it is presented deems it most proper should be proceeded in farther in the court below before an appeal is allowed therein,” it is equally competent for the appellate court after an appeal has been allowed, to dismiss the same as having been improvidently granted and remand the case, if it deems the case to be one in which justice to all interested, makes it proper that it should be proceeded in farther in the court below, before concluding the rights of the parties interested in the decree, by reversing or affirming the same.
And it appearing that the interlocutory decree com*482plained of in this case was rendered on the 1st of June 1836, whereby a contract of sale in the bill and proceedings set out, as having been theretofore made with Colonel Bobert Beattie was confirmed, and a conveyance of the land sold was directed to be made by a commissioner to said Beattie, upon the purchase money being paid or secured; that since then no proceedings besides continuances have been taken in the cause, except an order directing a settlement of the guardian account, made at the October term 1845, and an entry made in the year 1853, suggesting the death of one of the heirs of Charles C. Johnston, the marriage of the other, and a revivor of the cause against the surviving executor and guardian; the court is of opinion that it could not act upon the appeal after such a lapse of time, and in the present condition of the record, without the hazard of injustice.
The purchaser is no party to the record; it does not appear whether he acquiesced in said interlocutory decree confirming his contract for the purchase of the land; and if he has acquiesced, whether he has paid the purchase money, or received a conveyance. If the purchase has been completed, he has an interest in the decree, which should not be disturbed until he has been made a party and had an opportunity of being heard in support thereof.
The court is further of opinion, that in the present condition of the record it would be unjust to the appellee to express any opinion upon the alleged errors in said interlocutory decree. The propriety of the sale must be determined by ascertaining the condition of the estate at the time when the sale was made. If the sale was necessary under the facts then existing, and was fairly made for a full price, it does not follow that mere irregularities in the proceedings, if any such occurred, would make it necessary to set the same aside upon a final hearing. But whether such sale *483was proper or not cannot be correctly determined until an account of the liabilities and assets of the estate is taken: And the executorial and guardian accounts should be settled, and an enquiry made as to the payment of the purchase money of said land and the application thereof, before any final decree is pronounced.
To bring all these matters properly before the court for adjudication, the appellee should be required to amend his bill and make the said Robert Beattie, the purchaser of said land, and those claiming under him, if any, parties defendants; proper accounts should be ordered and taken; leave should be given to the appellee to file the affidavit prescribed by the 16th section of the act of 1819, 1 Rev. Code, p. 405, concerning guardians; and to show if he can that the depositions of the witnesses filed had been taken in presence of the guardian ad litem, or upon interrogatories agreed upon by him; and leave should be given to both parties to take further testimony, so as to enable the court upon a final hearing, to decide the cause with all the parties in interest before it, and in view of all the circumstances entitled to consideration.
It is therefore adjudged, ordered and decreed, that the appeal be dismissed as improvidently granted, with costs to the appellee, and that the cause be remanded to be proceeded in farther in the mode above indicated, in order to a final decree.
Appeal dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481539/ | Lee, J.
The defense sought to be made by the appellees under the allegation of payment cannot be maintained. There is no evidence nor even a plausible pretense of such payment, unless the receipt by Jackson of the note of Trigg, King & Co. for seven thousand six hundred and fifty-three dollars and seventy-four cents can be so regarded. But it is not shown that this was received by Jackson on account of this debt. He had at that time a large individual debt against Connally Findlay & Co. besides that which is the subject of demand in the present case, for the benefit of Highland & Galt. He alleges that this note was taken on account of this individual debt, and the character of the receipt given by him would seem to refer to a debt of this character: nor is there any proof to connect this transaction with the claim of Highland & Galt. The amount received upon this note was credited upon the individual claim, and such appropriation upon the proofs cannot be said to have been improper.
But if this note had been received on account of the claim of Highland & Galt, it would not have amounted to payment or satisfaction. It was received as a deposit by way of collateral security merely, without any undertaking on the part of Jackson to take measures for its collection. This is distinctly admitted in the answer of Alexander Findlay: Nor can it be said that because Jackson held the note without collecting it, he had lost his right on that account to call upon the parties from whom the original debt was due for payment. He was not bound to collect the note: he held it to receive payment if voluntarily made, but subj ect to the directions of Connally Findlay & Go. By their direction he sent it to Natchez, where a part was paid, and after it was returned to him, continued to hold it in the same way; but no application was ever made to him afterwards for it. And even if this application of *503the amount received to the individual debt were a misappropriation of the same, it was so in form only, and could not prejudice the estate either of King Connally Findlay. Both were liable for both debts and thus got the benefit of the credit: and as the estate of . William King was also liable for the note of Trigg, King & Co. as was also that of James King and William Trigg, they cannot impute laches to Jackson in failing to coerce payment from themselves.
Nor will the doctrine of presumptions afford any aid to this defense.0 The notes bore date on the 23d of November 1807, and were payable in twelve, twenty-four and thirty months after their date, respectively. Suits were brought against Connally Findlay in 1810, and judgments recovered upon two in 1811, and upon the third in 1812 ; and the present suit was brought in January 1825. Between the maturity of the note first payable and the institution of this suit was a little upwards of sixteen years, and this time upon a question of payment is sufficiently accounted for, and any presumption of payment fully repelled.
Jackson was a nonresident of the state, and was seeking the recovery of his debt by suits against Findlay, the surviving partner. In 1811 a payment of one thousand dollars is made which is credited upon the note first payable. In 1813 the debt is recognized in a letter from Connally Findlay & Co. to Jackson, and payment promised in cotton. In 1817 Findlay pays five hundred dollars, and promises a further payment in a short time; and in the same letter makes his acknowledgments for the indulgence he had received. And in 1819, Findlay having recently died, steps are taken to revive the judgments by writs of scire facias. These circumstances would seem to be abundantly sufficient to meet any presumption of satisfaction. But in truth any question of this character must now be regarded as out of the case; for *504payment was pleaded in bar of the writs of scire facias and the cases were tried upon issues joined on that plea, and the jury found in each case against the plea, and judgment was rendered accordingly. And in 1828, under the orders of reference made in this cause, Commissioner Campbell reports this debt as unpaid, and ascertains the amount then due to be eight thousand five hundred and eighty-six dollars and eight cents. Exceptions were taken, it is true, to the allowance of interest and the mode of computing it, but none to the recognition of the debt as still subsisting and unpaid.
The plea of the statute of limitations cannot avail the appellees. As to the representatives of Findlay there can of course be no pretense for its application; and as it respects the representatives of King it may be questioned whether the case would be within its operation. The demand is in equity against the estate of a deceased partner, the creditor having been unable to obtain satisfaction from the surviving partner. But against the latter he had regularly commenced proceedings in due time, and had prosecuted the same to judgment. Whether the court would apply the statute from the same period at which it would commence to run in the action against the surviving partner, or would hold the estate of the deceased partner bound by the proceedings against the latter, and regard the bar of the statute as saved by these, is a question that may not be altogether free from difficulty. But it is unnecessary to express any opinion upon it because it is a sufficient answer to the plea, that the notes were given in Maryland, and that Jackson then was and up to the bringing of the suit continued to be a nonresident of Virginia, and so was within the exception in favor of nonresidents in the act in force at the time the suit was brought. The bill alleged the non-residence of Jackson and a pure plea of the statute *505would not avail. It should be accompanied in some form with a denial of the nonresidence, or an allegation that Jackson had been within the state after the of action accrued. Sto. Eq. PI. §753; Coop. Eq. PI. 232; Bayley v. Adams, 6 Ves. R. 586 ; Chapin v. Coleman, 11 Pick. R. 331; James v. Sadgrove, 1 Sim. & Stu. 4. There is no such denial or allegation to be found here, and there is no proof that Jackson ever was in Virginia at any time.
That the estate of King was not discharged in equity by his death will be readily conceded, but the character of the liability and the time and manner in which it was to be enforced, might admit of serious discussion if they were still open for consideration. The modern English doctrine would seem to be that the liability of the estate of the deceased partner is direct and immediate, and does not depend on the state of the relations between the partners, or the result of measures taken to collect the debt from the surviving partner. But the cases in Virginia would seem to lead to a very different conclusion. Linney's adm'r v. Dare's adm'r, 2 Leigh 588; Sale v. Dishman's ex'ors, 3 Leigh 548; Galt v. Calland’s ex'or, 7 Leigh 594; Jackson v. King's reps. 8 Leigh 689. These cases, and the opinions of the judges, tend strongly to show that the liability of the estate of a deceased partner in any case is not absolute and immediate, but contingent merely, depending upon the result of proper efforts to collect the debt frond the surviving partner or his ascertained insolvency.
But what may be the- true solution of the abstract question, it is not material to enquire; because for all the purposes of this case the question must be regarded as settled by the decree of this court of the 15th of August 1837. For this court was of opinion and so adjudged, that the representatives of King were properly made parties because they were ultimately chargeable in the event of Findlay’s funds proving *506inadequate, unless the equitable rights of the appellant against them were lost by his neglect or misconduct ; and that it was premature to hear and dismiss the bill as to them before it was matured as to Find-lay’s representatives, their liability being dependent upon the issue of the proceedings and the result of the enquiries in relation to Findlay, the surviving partner. Thus it must be taken to be adjudicated between these parties, that the liability of King’s estate is not absolute and immediate, but secondary and contingent only, depending on the result of the proceedings against Findlay and the absence of misconduct or neglect on the part of the appellant in commencing and prosecuting such proceedings. These have hitherto been ineffectual, and satisfaction has not yet been obtained from Findlay or his estate; and if any question whether they had been sufficiently tested at the time of the institution of this suit, is now concluded by the decree of 1837, there yet remains by the very terms of that decree, the important enquiry as to the manner in which the creditor has conducted himself in regard to Findlay and his estate, and whether in the course which he has pursued, there has been any such “ misconduct or neglect,” such laches, as should repel his claim to the equitable relief which he now seeks.
The claim to charge the estate of a deceased partner with a debt of the firm is one recognized in the court of equity only; and ag Lord Eldon observed in Kendall, ex parte, 17 Ves. R. 514, 526, the right “standing only upon equitable grounds, if the dealing of the creditor with the surviving partner has been such as to make it inequitable that he should go against that fund, (the separate estate of the deceased partner,) he would not, upon general rules and principles, be entitled to the benefit of that demand.” Indeed, the opinion of Lord Thurlow in Hoare v. Contencin, 1 Bro. *507C. C. 27, implies strong doubts as to the existence of any principle upon which a debt extinguished at law by the death of one jointly bound, shall yet be set in equity against the estate of the deceased party; and Lord Eldon expresses his surprise that a court of equity should have interposed to enlarge the effect of a legal contract in such a case, though he admits the modern doctrine to be that a court of equity will under certain modifications, enable the creditor to resort to the assets of a deceased party who was jointly bound with others who have survived him. Kendall, ex parte, 17 Ves. R. 524, 525.
But this right being thus confessedly the creature of the court of equity, will be administered only upon its own terms and according to its general rules and principles. And it may be waived by the creditor, or it may be lost by the course and conduct which he adopts; and thus the equity which he would otherwise have had, will be entirely repelled. This is distinctly stated by Lord Hardwicke in Bishop v. Church, 2 Ves. sen. 371; and is recognized as the law by Judge Carr in Linney’s adm’r v. Dare’s adm’r, 2 Leigh 588, 595, and by Judge Tucker in Sale v. Dishman’s ex’ors, 3 Leigh 548, 557. As it is expressed by the last named judge, “ the equity may be rebutted if the party is guilty of fraud or collusion, or even of laches.” The correctness of this doctrine is also very fairly to be deduced from the cases of Lane v. Williams, 2 Vern. R. 272; S. C. 292; Daniel v. Cross, 3 Ves. jr. R. 277; Devaynes v. Noble, Sleech’s Case, 1 Meriv. R. 396, 528 ; although under the particular circumstances of those cases the right was held not to have been lost.
What shall be said to be such laches as will deprive the creditor of the right to resort to the separate estate of the deceased partner, is no where ascertained with any thing like precision. As said by Judge *508Tucker in Sale v. Dishman's ex'ors, there is no settled ru^e or anal°g7 7et established upon the subject. The learned judge informs us that to require the sarae diligence which is demanded in cases of bills of exc^anSe was very readily considered out of the question. And he seems to think that to put the case on the footing of the implied contract for due diligence between assignor and assignee, would be pregnant with the evil referred to by the master of the rolls in Sleech’s Case in Devaynes v. Noble, 1 Meriv. R. 529. He is of opinipn there can be no fair analogy between the case of the deceased partner and that of the assignor of a bond. The latter, he says, has parted with his interest and stands merely as a guarantor: The former was one of the joint debtors, and at his death the obligation ought to devolve with his estate upon his representatives. He agrees however that the court of chancery will not charge his estate with the equity until the insolvency of the survivor is ascertained, but says he is not aware of any express decision which requires the creditor to proceed within any limited time. He appears rather to place the liability on the footing of a suretyship, for he says that what is meant by laches is the failure to sue when required so to do ; and that without such requisition he is in no sort culpable, though he agrees that the estate of the deceased partner may also be absolved by collusion, by giving time to the surviving partner, or by new arrangements with him.
With great deference, I think this is unduly limiting the range of the duties devolving upon a creditor who would preserve his resort to the estate of his deceased joint debtor, and within which only he may be guilty of such laches as will absolve that estate. And I incline to think the analogy is stronger to the case of the assignor of a bond than to that of a surety. If we are to regard the estate of the deceased partner *509(as for the purposes of this case it must be regarded) as only secondarily and contingently liable upon the establishment of the insolvency of the deceased partner, it stands in effect like the assignor, as a mere guarantor : it is not liable at once and directly as a surety, nor has it the rights or remedies of a surety against the surviving partner if the debt should be discharged out of the assets. Nor can there be any special fitness in requiring demand upon the creditor from the representative of the deceased partner to sue the survivor. He has no control over the social effects nor the books of the firm : all pass together to the surviving partner. He may not know or have the means of knowing who are the firm creditors, as they are presumed to make no call upon him till they have pursued the surviving partner in vain. And as he may not therefore be able to make the demand upon the creditor to sue, from the very nature and character of the liability, a sufficient warning should be implied that the latter must adopt such a course as will afford a just and reasonable protection to the estate of the deceased partner, and not subject it to wanton or unnecessary peril. I have seen no case sanctioning the suggestion that laches consists only in the failure to sue after request; while in one case it was distinctly held by Lord Hardwicke that the mere failure to sue, after being applied to to do so, will not of itself be sufficient to absolve the estate of the deceased party. Bishop v. Church, 2 Ves. sen. 371.
It is in vain to look to the cases for any rule by which to determine the character of this laches, or to measure its precise extent. Sleech’s Case, in Devaynes v. Noble, 1 Meriv. R. 529, only maintains that the creditor shall not be held to a very rigorous course of proceeding, nor required to use the greatest possible diligence to compel immediate payment by the surviving partner; and one of the reasons assigned is that *510such a course might do injury to the estate of the deceased partner by so hurrying the survivor as to disable him from meeting the engagements of the firm, and thus bring a debt upon the estate, which, if less rigor had been exercised, it might have wholly escaped. Miss Sleech had suffered her money to remain in the hands of the survivor of a banking firm for some eight months after the death of the other partner, when the former became bankrupt; and it was held by the master of the rolls, Sir William Grant, that her failure to prosecute her demand during this interval was not such laches as would absolve the estate of the deceased partner; and that the fact of her having received a part of the balance due her from the surviving partner, and afterwards signing his certificate as a bankrupt, were not such dealing with him as amounted to a waiver of her claim against the former. But it is no where intimated that the creditor cannot lose his equity by what would amount to laches, but- the contrary is fairly implied throughout the whole case; and certainly there is nothing in the case or in the opinion of the master of the rolls to warrant the broad and sweeping terms employed by the chancellor in Hamersley v. Lambert, and of which even Judge Tucker expresses disapprobation in Sale v. Dishman’s ex’ors, 3 Leigh 548, 560.
In Lane v. Williams, 2 Vern. R. 277, (Raithby’s edition,) the note in question is stated in a note of the editor, to have been of about one year’s standing only, though the master of the rolls in Sleech’s Case supposed the laches to have been much greater than in the case then before him. Judge Tucker supposes that the case is incorrectly reported, and that it may have been decided upon- some other principle. Sale v. Dishman’s ex’ors, 3 Leigh 558 n. Certainly a delay of one year would hardly suffice to bar the creditor’s equity except under very peculiar circumstances.
*511In Daniel v. Cross, 3 Ves. jr. R. 277, the interval which occurred before the bankruptcy of the surviving partner, was about two years. The partnership dissolved in March 1791. The death of the deceased partner had occurred iu June 1791, and the bankruptcy of the new concern did not happen till March 1793. It was held that this lapse of time was not sufficient of itself to exclude the claim upon the estate of the deceased partner.
In Hamersley v. Lambert, 2 John. Ch. R. 508, the partnership was dissolved by the death of one of the partners in September 1803. The other partner was discharged under the insolvency law of the state of New York in October 1807. It was held that this delay of some four years would not bar the equity against the estate of the deceased partner.
Yet none of these cases, nor any other that I have seen, can be regarded as establishing any thing inconsistent with the doctrine recognized in the Virginia cases, that such an equity may be lost by the laches of the creditor. It is true in the case of Hamersley v. Lambert, the doctrine stated to be deducible from Devaynes v. Noble, 1 Meriv. ubi sup. 528, is laid down in very broad and general terms. But the case itself will not justify the deduction made from it, nor was the assertion of any such doctrine demanded by the exigencies of that case or of the case of Hamersley v. Lambert.
Assuming then that laches will bar the creditor’s equity, but finding no precise and definite-rule by which to measure the delay and neglect which shall be said to amount to it, each case must, I apprehend, stand on its own circumstances, and be judged of by them. The right to charge the estate of the deceased partner, we are told by the Lord Chancellor in Kendall, ex parte, ubi sup. 524, is an equity to be enforced only upon equitable principles; and it should depend there*512fore, for its preservation, upon the observance by the creditor of good faith, the exercise of a certain reasonable diligence, and the maintenance of a just and proper regard for the rights and interests of the deceased partner. If, as for the purposes of this case we must accept it, the doctrine be that the right to resort to the estate of the deceased partner is secondary and contingent only, depending upon the ascertained insolvency of the surviving partner, or the result of fruitless efforts to obtain payment out of his estate, if the surviving partner be not notoriously or absolutely insolvent at the time of the death of the deceased partner, or at the maturity of the debt, if that only occurred after his death, it cannot be unreasonable to require that the creditor should commence and prosecute with at least reasonable or ordinary diligence, the proper proceedings to compel payment from the surviving partner. While he may not be held to adopt a very rigorous course nor to exercise the utmost possible diligence, at least he may be required within a reasonable time to place the debt in the ordinary channels of collection, and to give it that attention during its progress which may render it probable that in the usual course the money may be made, and the estate of the deceased partner thus saved harmless. The surviving partner takes the whole social effects, and upon him devolves the duty of discharging the partnership debts. He has the appropriate fund out of which they should be paid, and there can be no legal presumption that that fund will prove inadequate. Like the assignor of a bond, the estate of the deceased partner is bound only to guarantee against the insolvency of the surviving partner, and is only to be made responsible when that is established. Why then should the creditor not be held to reasonable diligence as in the case of the assignor? It would be utterly vain and illusory to declare the estate of the *513deceased partner to be only liable when the insolvency of the surviving partner has rendered the efforts to compel payment from him ineffectual, if the may rightfully forbear proceedings indefinitely, until the party who might have been previously perfectly good should become insolvent, or having commenced them, suspend collection at pleasure, or suffer them to slumber for a series of years, during which the survivor may waste both the social effects and his own private estate, and thus inevitably cast a debt, which he ought to pay and which might have been made, upon the estate of the deceased partner. The right to call upon his estate to make good the debt upon the failure of the efforts to compel payment from the surviving partner, carries with it, by just and necessary implication, the duty of making such efforts Iona fide, and with at least ordinary or reasonable diligence. Where this has been wanting, where measures have been taken to compel payment from the surviving partner, but there has been gross, wanton and unaccountable delay in the proceedings adopted, and it is palpable that the consequence of such delay will have been to cast upon the estate of the deceased partner (if it be held liable) a partnership debt of which payment could undoubtedly have been obtained from the surviving partner, and which it was his duty to pay, I think this is such laches as will forbid a court of equity to lend its aid to subject the estate of the deceased partner.
In Sale v. Dishman’s ex'ors, all the judges were agreed that the liability of the estate of the deceased partner depends on the ascertained insolvency of the survivor, and from their opinions it is plainly to be inferred that the .equity of the creditor may be lost by misconduct or laches. But they considered the question of laches as not sufficiently presented by the pleadings in that case, and therefore that it was not necessary to make any decision upon it. Judge Cabell, *514however, concurs with Judge Tucker in thinking the diligence required is not that which is necessary as between endorser and endorsee, assignor and assignee, though he differs from him in regard to the effect of a failure to sue after request. Judge Carr does not advert to this point, but he gives us a very distinct idea of what was his understanding as to the measure of diligence required in such a case. For he says, “But Sale (the creditor) with Berryman’s bond (the surviving partner’s bond) in his possession, waited-upwards of four years before he took any step to recover the money; and if Dishman’s executors (the executors of the deceased partner) had put this matter in issue, and shown us that but for this delay the money might have been made out of Berryman, I strongly incline to think that this also would have been such conduct as would have rendered it inequitable to permit his resort to the estate of Dishman.” And he quotes the remark of Lord Hardwicke in Bishop v. Church, that “the plaintiff must come as from a pure fountain; must show himself not to be guilty of any laches, much less collusion, turning to the prejudice of the other side, which might be strong enough to rebut that equity set up beyond what the rule of law admits.”
So in Linney’s adm’r v. Dare’s adm’r, 2 Leigh 588, we have another illustration of this learned judge’s views upon this subject. The debts in question were created the one in 1799, and the other in 1801. Murray, the surviving partner, regularly paid up the interest on the first debt till the 1st of December 1816, and on the last till the 1st of January 1817, and he continued solvent till about November 1817, but after-wards became insolvent, and so died. It was shown that it was owing to Linney’s (the creditor’s) indulgence that the debt was not early obtained from him ; but there was no other proof of laches on his part ex*515cepting the mere delay which he had permitted. The case went off upon the question of jurisdiction, the court being of opinion that there was a plain and adequate remedy at law against Eoss, the surety for the debts, who was still living and solvent; but Judge Carr went into an examination of the circumstances, and upon the merits seems to have had no difficulty in declaring his opinion to be that Linney had no well founded claim in equity against Dare’s representatives. His remarks on this branch of the case are omitted in the report, but the result at which he arrived must of course have been deduced from the long indulgence given by the creditor, and the failure to collect the debt when it was perfectly in his power to do so, as constituting such laches or such a manifestation of purpose on his part to look to the surviving partner alone, as would put an end to the equity against the estate of the deceased partner.
Let us now ‘glance briefly at the main features of the case before us.
The notes constituting the debt claimed, bear date on the 23d of November 1807. William King died about the 13th of October 1808. On the 21st of November 1809 Jackson took from Connally Findlay & Go. the note of King, Trigg & Co. for seven thousand six hundred and fifty-three dollars and seventy-four cents, but, as he alleges, to be applied to his individual debt. On the 30th of April 1810 he brings suits upon the two notes first payable, and on the 17th of September 1810 he brings suit upon the third. On the 22d of May 1811 a payment of one thousand dollars is made, for which due credit appears to have been given'. On the 31st of May 1811 he recovers judgments upon the two notes first named, and on the 29th of May 1812 he recovers a judgment upon the third, all these judgments being against Findlay and the securities for his appearance. Upon the last named judgment an execution was issued on the 14th of *516January 1814, but the same was not placed in the hands of any officer for service, nor was it ever served or returned. Upon the two previous judgments no executions were ever issued. In 1813 Jackson offered to take cotton for the debt; and A. Findlay for Connally Findlay & Co. writes in reply, promising to furnish the cotton accordingly.
In 1817 Findlay acknowledges the receipt of a letter from Jackson “requiring a little cash;” and he sends a note for five hundred dollars, and ]iromises another payment in a short time. And he requests Jackson to accept his thanks for his “silence and indulgence.” And the judgments were suffered to stand without any effort to enforce them during the remainder of Find-lay’s life. He died in 1818, and on the 29th of October 1819 writs of scire facias are sued out to revive the judgments against his administrators. These writs are however suffered to slumber on the docket upon the simple issue of payment until June 1827, when executions were awarded. In the mean time, however, that is to say, in January 1825, nearly seventeen years after the death of William King, this bill is filed, alleging that the personal estate of Findlay had been exhausted in payment of other debts, and seeking to charge the real estate belonging to the firm of C. Findlay & Co.; also that of which Findlay died seized, and also the personal and real estate of William King, with the payment of this simple contract debt: and also claiming payment of another debt which was afterwards confessed to have been previously satisfied.
Now, if it may be said there was no delay of which there could be any just complaint up to the rendition of the judgments in 1811 and 1812, what is there to account for or to excuse the great delay that was suffered to occur afterwards? Why were executions not issued upon all of the judgments, and placed in the hands of the marshal for service? If this had been done, there can be no doubt from this record the *517debts would all have been immediately made. Find-lay had succeeded to the whole social effects of C. Findlay & Co. real and personal, and was also possessed of a considerable estate, real and personal, of his own. He died possessed of a personal estate amounting to upwards of ten thousand dollars, besides certain slaves not accounted for in the settlement of the administration account. Between 1809 and 1817 he appears to have made sundry advancements in slaves to his children. Under the will of William King he was entitled to a legacy of ten thousand dollars, which might have been reached by proper process, and wras itself more than sufficient to discharge the whole debt. The real estate also, which might have been subjected, appears to have been considerable and valuable. Yet Jackson, with his judgments not against Findlay only but his appearance bail also in the different cases, who, for aught that appears, may have been perfectly able to make good their respective liabilities, stands by and suffers the whole of this large property to be wasted or appropriated by others, without the slightest effort on his part to have any portion of it applied, as properly it should have been, to his debt. And after Findlay’s death he contents himself with issuing writs of scire facias, which are suffered to sleep on the docket for years and until nearly every vestige of the large and valuable estate which might readily have been subjected to the debts at any time, had entirely disappeared. What Findlay had not himself disposed of is suffered through the utter neglect of Jackson to be applied to debts of inferior dignity, some due by simple contract merely. And of the real estate belonging to the firm of C. Findlay & Go. nearly the whole is sold and the proceeds appropriated to the payment of a debt which would appear to have been of inferior dignity to those judgments, while that of wdiich Findlay died possessed, the heirs 'have been *518permitted to sell and to appropriate the proceeds to their own use. And it is perfectly apparent that if this debt be cast upon the estate of King, it will be because of the neglect of Jackson for years to compel payment from Findlay when it was perfectly in his power to have done so at any time.
I think the whole course and -conduct of Jackson amount to such a manifestation of purpose to look to Findlay alone for payment of his debt, or discloses such palpable laches in the pursuit of his plain remedies against him, as should rebut any claim to the aid of a court of equity to set up his demand against the estate of the deceased partner, and that the Circuit court did not err therefore in dismissing the bill as to the representatives of William King..
But although the bill was properly dismissed as to them, I do not perceive why a different and further measure of relief was not afforded against the estate of Findlay. It is apparent that a large portion of the personal assets of that estate was applied in payment of debts' of inferior dignity to that of Jackson. The real estate of which Findlay died seized, and which appears to have been worth between three and four thousand dollars, was bound by these judgments, but appears to have been sold by the heirs, (with the exception of two inconsiderable parcels,) and the proceeds applied to their own use. Why and how all this could properly be to the prejudice of the appellant, I cannot see from the record before us. And I think the appellant should be- allowed to amend the bill, and to make such further allegations and such additional parties as may entitle him to enquire into the apparent devastavit by the administrators of Find-lay, and if such be established, to charge those who may be legally responsible for the same, and for this purpose to have the proper accounts -directed-: and also to investigate further the subject of the real *519estate of which Findlay died seized, and the propriety of the disposition made of it after his death, and to hold those who may be accountable for the same, or for the proceeds thereof, if any such there be, to their just responsibilities. And upon such investigation the right of the administrators to retain in their hands so much of the proceeds of the sale of lands as was sufficient to pay the amount due to them and the other devisees of Thomas King, and also the balance claimed to be due to them as such administrators, may be the subject of further consideration.
I am of opinion to affirm so much of the decree as dismisses the bill as to the representatives of William King; but in all other respects to reverse the same, and to remand the cause for further proceedings.
Daniel and Moncure, Js. concurred in the opinion of Lee, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481541/ | Allen, P.
concurred in reversing the decree as to Findlay’s representatives. But he was of opinion that the estate of King was not discharged, and that the decree should be reversed as to his representatives.
Decree affirmed in part and reversed in part. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481543/ | Daniel, J.
The first question presented fox our consideration is, whether the proceedings in this case were properly commenced in the county of Cabell; and I experience no difficulty in answering it in the negative.
The first section of ch. 106 of the Code, p. 464, provides, that where any person conceives himself unlaw fully detained as a slave, he may petition the Circuit court or court of the county or corporation in which he may be detained, for leave to sue for his freedom, or he may complain thereof to a justice. The second section provides that if the complaint be made to a justice, he shall, by precept in writing, give the complainant in charge to the proper officer, to be produced before the Circuit court or court of the county or corporation, (as the complainant may elect,) at the next term thereof; and in the mean time to be safely kept at the expense of the person claiming to be the owner; and shall cause such person to be notified thereof. And the third section provides that if the person claiming to be the owner, or some one for him, will enter into bond, approved by the officer having the complainant in charge, in a penalty equal to double the value of the *532complainant, supposing him to be a slave, conditioned to have him forthcoming before the said court at the next term thereof, such officer shall deliver to him the complainant.
The section of the Code of 1819, p. 481, corresponding with the first section just cited, requires the complaint to be made “to a magistrate out of court, or to the Circuit court for the county, or to the court of the county or corporation where the complainant shall reside, and not elsewhere.”
We have no report of any decision in our court ascertaining the sense in which the term “ residence” is used in the act of 1819. But I apprehend that it could never have been in the contemplation of the legislature, that, in controversies about jurisdiction in such cases, the will or choice of the complainant could be referred to as having any influence in solving questions as to his residence.
It is not necessary to enquire whether the Code of 1819, in fixing the jurisdiction by the residence of the complainant, had reference to his temporary or to his permanent residence. It could hardly have been the .meaning of the law that such residence could be acquired against the consent of the owner or person claiming to stand in the relation of master. The very nature of the subject excludes the idea that it could have been competent for a person detained as a slave and having a residence in one county, appointed and fixed by his master or claimant, by running away into another county, to acquire a residence in the latter, so as to give to its courts jurisdiction of a suit brought by the runaway, for his freedom. And the aspect of the question would not be materially changed by supposing a temporary change of the residence of the complainant, effected by means of process issuing in a proceeding set on foot by himself, constraining the master to carry him away from the place of residence *533he had selected for him in one county into another county, to appear before a legal tribunal held in the latter.
The same course of reasoning, it seems to me, holds good in determining the place in which the complainant, under the first section of the present Code, is to be regarded as detained in slavery. As the relation of master and slave is, from its very nature, incapable of suspension, it may, in some sense, be said that a person held in slavery is detained as a slave in every place in which he may be, for any period of time, however short, during the existence of the relation. But as under the former laws it was not intended that the complainant should have any voice or mind in the selection of his residence, so under the present law it is equally clear, I think, that he cannot be allowed, by any act of his, done without the consent of his owner, or by. any act of the officers of the law, done at his instance, so to change the place in which he is detained as to transfer, from the courts of one county to those of another, jurisdiction of a petition for leave to sue for his freedom. There is show of reason in the argument that the legislature, in ascertaining the jurisdiction of such suits by the place of the detention, instead of the place of the residence of the complainant, designed to get rid of serious questions which might otherwise arise as to the nature of the residence, as whether casual or permanent, which should determine the jurisdiction, and to disembarrass the remedy of those impediments which the owner or claimant seeking to evade a suit, by running off the complainant, might place in the way, by objecting to a suit brought in any county through which, he might be passing, that it was not brought in the county in which the complainant resided. Be this as it may, it is, I think, obvious that the place of the jurisdiction is that in which the owner chooses to exercise his *534rights as master; that in which he willingly detains the complainant, and not that in which the presence of boA ri. 0.. r U.,1 C^JlpI A A-'jUi, by the acts of the latter against the will and consent of the former.
With these views of the law, it is only necessary to refer to the affidavit made by the plaintiff in error, William Ratcliff, as the foundation for the rule to show cause why the suit should not be dismissed, (the facts stated wherein were admitted by the complainants to be true,) to show that the courts of Cabell county had no right to take jurisdiction of the case. The affiant states in his affidavit, that he claimed the complainants as his slaves; that at the time of the commencement of the suit, he was and still is a resident and citizen of the county of Wayne, and not of the county of Cabell; that he held and detained the complainants in his custody at his residence in- the county of Wayne alone, until he was commanded by writ of habeas corpus to bring them to the county of Cabell; that in obedience tc the commands of said writ, he did bring them to the said county of Cabell; that said writ was returnable on the 12th day. of March 1851, and that their petition for leave to sue in forma pauperis is dated the 10th of March 1851, two days before the return day of said writ; that the warrant of the justice authorizing them to do so, is dated on the 12th day of March, the return day of the writ, and the bond of the affiant for their forthcoming and delivery to answe3? the judgments of the court, dated the same day: And that but for the issuing of said writ of habeas corpus he would not have had the plaintiffs in the 'county of Cabell in custody or otherwise,
It is thus. seen that the detention, of the complainants by Ratcliff in the county of Cabell, was involuntary, -and constrained and effected by legal proceedings set on foot by the complainants them*535selves; and that the case is brought fully within the influence of the views which I have presented in respect to the jurisdiction.
If, however, I could doubt as to the correctness of these views as furnishing a rule of universal application, and could be induced to believe that an exception might be made in a case where it appeared that a petition for a habeas corpus had been resorted to by the complainant in good faith as a means of trying his right to freedom, and not as a means of effecting a change of jurisdiction, and had been afterwards in like good faith, upon further advice and reflection, substituted by the proceedings pointed out in the statute, taken in the county to which the complainants and the owner might be brought by virtue of the habeas corpus, I should still hold that in this case there is not only nothing to justify such an exception, but that, on the contrary, the case is one calling for the most rigid application of the .rule. The petition for the habeas corpus is dated and allowed by the judge on the 8th of March, and as has been before stated, was returnable on the 12th. Yet we find that the petition for leave to sue in forma pauperis, is dated on the 10th, before any return was made or could have been made to the writ of habeas corpus. When the petition was presented to the justice does not appear, but his warrant is issued-on the 12th.
On the rule to show cause why the suit should not be dismissed, the complainants, whilst admitting the truth of Ratcliff’s statement that he had brought them into the county of Cabell in obedience to the writ of habeas corpus alone, offer no explanation, by affidavit or otherwise, of their conduct in first procuring the habeas corpus, and then substituting the proceedings upon it by a -regular suit so soon as they had thus effected a change in the place of their detention. Thus leaving their proceedings exposed, without explanation, to all *536the inferences of having originated in an unfair effort to change the jurisdiction to which they are, on their face, so plainly obnoxious.
The facts of the case unexplained do, I think, furnish ample warrant for the conclusion, that in presenting the petition for a habeas corpus the complainants did not, bona fide, seek to resort to it as a proper method of trying the right to freedom, (an office which, in such a case, it could not properly perform,) but that they took this course as a device by which they might be enabled to shift the scene of the trial of the regular suit they designed bringing, from the county of Wayne to the county of Cabell.
To sustain the jurisdiction of the Circuit court of Cabell under the circumstances of this case, would be to countenance a course which might operate in some instances most unjustly and oppressively on such as may happen to hold in their possession persons of color claiming a right to freedom. Under such a practice the defendant may not only be subjected to the alternative of finding security in a county remote from the residence of himself and his friends, or of surrendering his property to the sheriff, but compelled to try his right in a place where it may be jeoparded by the difficulty of procuring the full attendance of his witnesses; and where he must necessarily encounter greater trouble and expense in making his defense than he would be exposed to if the trial were had within the jurisdiction contemplated by the law.
It remains to be considered whether the objection to the jurisdiction was taken in a proper mode, and also whether there is any thing in the record to show that the plaintiffs in error have waived or lost their right to make the objection.
By a reference to the 4th, 5th and 6th sections of chapter 106 of the Code, already cited, it will be seen that the proceedings at rules, the declaration and *537pleadings that were provided under the former law, are dispensed with. The court to whom the petition is presented is required, in the sections just mentioned, to assign the petitioner counsel, whose duty it is made to file with the clerk a statement in writing of the material facts of the case, with his opinion thereon ; and unless it appear manifest therefrom that the suit ought not to be prosecuted, the court is further required to cause the person claiming to be the owner, to be summoned to answer the petitioner; and is to proceed at the next term to the trial of the case, without regard to its place on the docket, having first impanneled a jury, which, without the formality of pleading, is to try whether the petitioner is free or not.
It is hardly to be supposed that the legislature, in thus dispensing with the rules, at which pleas to the jurisdiction in other cases, are usually entered, and also with all formality of pleading in court, designed that questions of jurisdiction should be litigated before the jury without notice to the petitioner; and it is equally hard to suppose that they designed to debar the defendants to such action, of the right to insist, in some mode, on the want of jurisdiction in the court before which they are cited to appear. In this state of the legislation on the subject, a rule upon the petitioner to show cause why the suit should not be dismissed for want of jurisdiction, founded on an affidavit of the facts on which the defendants mean to rely, seems to me to furnish as fair and convenient a mode of bringing said questions to the notice of the court as any that can be devised. I can see then no objection to the mode in which the defendants sought to rely on the want of jurisdiction in the court. Nor can I perceive any thing in the record to show that the rule was not asked for in good time. The petition and warrant were returned into the Circuit court at its May term 1851, which was the first after the issuing of the war*538rant; whereupon, in the language of the record, “it is ordered that this suit he docketed, and on motion of Jarrett C. Ratcliff, he is admitted a defendant in this cause with the said William Ratcliff; and for reasons appearing to the court, this cause is continued till the next term.” No statement of the case, no opinion of counsel, was filed at this or at any other term of the court. No summons was issued citing the defendants to the suit or either of them, to answer the petition; and no counsel appears to have been assigned to the petitioners. I do not deem it necessary to enquire what effect these departures from important requirements of the statute might have had on the judgment and verdict, if it was shown that the plaintiff in error had gone to trial without objecting to the jurisdiction of the court. But in the absence of a compliance on the part of the petitioners with these provisions, it can hardly be said that William Ratcliff was in any default when at the next succeeding term, the October court, he obtained the rule to show cause why the suit should not be dismissed. No summons had been executed upon him, and the first entry on the record which notices his appearance is that which records his motion for the rule.
I cannot perceive the force of the argument founded on the fact that it appears by the record that depositions had been taken, by the consent of the parties, before the May term, and between that and the October term, to be read on the trial of the cause. I know of no rule which would give to such consent the effect of controlling either of the parties in presenting the pleadings which they would otherwise be allowed to file, whether in the prosecution or the defense of their rights.
It seems to me that the objection to the jurisdiction was taken in a proper mode, and so far as William Ratcliff is concerned, in good time; and as the mo*539tion to dismiss the suit was founded on defects of jurisdiction not personal to him, but showing that the defendants in error had no right to institute their proceedings in the county of Cabell, that the court on the hearing of the rule ought not to have discharged it, but ought to have made it absolute, and to have dismissed the suit. And I am therefore of opinion, without expressing any opinion on the other causes of error assigned in the petition, to reverse the judgment, to set aside the verdict, and to dismiss the case. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481544/ | Moncure, J.
I concur in the opinion of Judge Daniel, except that, instead of dismissing the suit, I am for remanding it for removal to the Circuit court of Wayne to be tried therein, under § 3 of ch. 174 of the Code, p. 657.
The motion to dismiss the suit for want of jurisdiction was not made until after many depositions had been taken, by both parties, some of them expressly by consent of parties, to be read as evidence0 on the trial of the suit in the Circuit court of Cabell; and after it had been docketed, and. continued at the preceding term, apparently without objection. Under these circumstances, I think it would have been wrong to have dismissed the suit, and thus deprived the parties of the benefit of their depositions; but that it would have been proper to have ordered it to be removed to the Circuit court of Wayne.
Whether I would have reversed the judgment merely for the failure to order such removal, no specific motion for that purpose having been made, it is unnecessary to determine. I would have reversed it for other errors apparent in the record. I think the Circuit court erred in instructing the jury that inability to contract from voluntary drunkenness did not stand on the same ground as insanity or incapacity produced by the visitation of Grod; and that unless the intoxication *540was produced by the grantee in the bill of sale, or brought about by his machinations, drunkenness of itself would not avoid the contract. I consider it to be now well settled that incapacity from drunkenness, however produced, will avoid a contract, in a suit brought to enforce it. I also think the court erred in instructing the jury that the grantee in the bill of sale, so far as he alleged or deposed to his own turpitude, was not a competent witness, and that he ought not to be heard to prove his own intoxication and incapacity therefrom at the time of making said bill of sale. I consider it to be now well settled, in this state as in England, that the objection referred to in this instruction goes to the credibility and not the competency of a witness. See Taylor v. Beck, 3 Rand. 316.
The other judges concurred in the opinion of Daniel, J.
Judgment reversed, the rule made absolute, and suit dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481545/ | Samuels, J.
The appeal in this case is taken from an order of the Circuit court of Kanawha county, dissolving an injunction on motion of the defendants below, the appellees here. In ascertaining the facts of the case, on such motion, the allegations of the bill are to be taken as true, unless denied by the answers or disproved by evidence in the record: Any affirmative allegations in the answers, if not sustained by proof, will be disregarded by the court. Looking to the facts to be ascertained by the rules above stated, the record shows this case:
David Ruffner by deed, on the 19th of October 1825 conveyed to his son in law Richard E. Putney, a parcel of land lying in Kanawha county, on which are situated a salt well, salt furnace and other necessary structures and fixtures for the manufacture of *543salt. On the 14th of May 1835, said Ruffner executed an olograph will, in which he subjected portions of his real estate to the payment of his debts; he made specific provision in real and personal estate for his wife Ann; he devised portions of his real estate severally to his sons Lewis Ruffner and Henry Ruffner, and his sons in law Richard E. Putney and Moses M. Fuqua. He also gave to his wife any residuum of money which might be due to him, and of the proceeds of certain real estate devised to be sold, after payment of debts. There is no general residuary disposition of testator’s estate; nor does it appear what estate, if any, was left to pass under the statutes of descent and distribution, to the heirs at law and next of kin.
On the 20th of May 1840, Putney executed a deed of trust on the real estate conveyed to him by Ruffner on the 19th of October 1825, as above stated, to secure a debt of ten thousand two hundred and eight dollars and eighty-six cents, with interest from the 20th of May 1840, due to Dickinson and Shrewsbury.
On the 25th of August 1841, Putney executed another deed of trust on certain slaves hereafter to be mentioned, to indemnify William Tompkins and Andrew Donally as his securities in a debt of two thousand five hundred dollars.
After executing the two deeds of trust above mentioned, Putney, on the 12th of March 1842, executed a deed conveying to David Ruffner his equity of redemption in the land and slaves included in those deeds, also the absolute title to a quantity of other personal property. The deed from Putney to Ruffner recites that Putney owed certain debts therein specified, for some of which Ruffner was bound as security; among the debts specified was one to Henry Ruffner, the son of David Ruffner; and another to Lewis Ruffner, another son; and several to Lewis Ruffner, and *544various other and different persons, his partners in different firms; that suits had been brought on some of the debts. The aggregate principal of the debts re(¿£e¿ ag being due is between nine and ten thousand dollars: the principal of the debts due to Henry Ruffner, to Lewis Ruffner, and to Lewis Ruffner and others, amounted to near five thousand dollars. David Ruffner signed and sealed the deed from Putney to himself, and thereby covenanted, in consideration of Putney’s conveyance to him and of one dollar, to pay the debts therein specified; thus in effect to indemnify Putney against them.
Yery soon after the 12th March 1842, that is, on the 16th day of the same month, mutual covenants between David Ruffner of the one part, and his sons Henry Ruffner and Lewis Ruffner of the other part, were entered into, reciting the fact of the conveyance by Putney to David Ruffner, and of David Ruffner’s covenant in consideration of that conveyance; and that said David Ruffner wished to free himself from the personal cares and responsibilities incurred by the terms of the said deed of conveyance; and it was agreed between the parties, that David Ruffner should forthwith deliver the lot of land conveyed, together with the salt furnace and all the appurtenances, into the possession, use, management and control of the said Lewis and Henry Ruffner, to the exclusion of all other persons, to be by them used and enjoyed at their discretion, for the purpose of paying, out of the net proceeds thereof, the debts and liabilities which said David assumed to pay in consideration of the deed of conveyance from said Putney as aforesaid, until said debts and liabilities should be fully paid and discharged out of the said proceeds, or until the land thus committed to their charge should be legally sold under deed of trust, or sold otherwise, so as to discharge all the said debts and liabilities from *545the proceeds of the sale. And reciting that whereas the said Putney, with his wife, daughter of said David, would in case of said David’s decease as heir at law or by testament, entited to a share in the estate, real and personal, of the said David, unless otherwise provided for by said David himself; and thus injustice be done to said Henry and said Lewis, by leaving them responsible for debts and liabilities contracted by said Putney on his own account; therefore, said David did thereby agree and bind himself not to make over, lease or convey in any manner to said Putney, or transfer to any person for his the said Putney’s benefit, or that of his heirs or assigns, any part whatever of the lands, salt furnace and appurtenances aforesaid, nor any portion of said David’s lands or other estate, real or personal, nor any way encumber or pledge the same for the benefit of said Putney, or for the payment of his debts, other than those which said David had already assumed to pay, or was otherwise liable to pay at the then joresent time, until all the said debts and liabilities should be fully paid and discharged; providing, however, that the terms of the agreement should not preclude the said David from conveying to the said Putney for a valuable consideration a building lot above George’s creek, to be improved at his own expense. And the said David agreed that Lewis and Henry Kuffner should have the free use of coal on his land for the supply of the furnace, committed as above mentioned to their management for the payment of the debts aforesaid. And it was agreed and understood by the parties to the agreement, that no bequest or devise which said David might have made or might thereafter make in his last will and testament to said Putney and his wife, or to their heirs and assigns, should in any wise take effect or accrue to the benefit of said Putney, his wife, or their heirs or assigns; nor should any right or title *546which they should acquire as heirs at law, be valid or take effect for their benefit until said debts and liabilities should be fully discharged and paid off. The said Lewis and Henry agreed and covenanted on their part, to use due care and diligence in the management of the said furnace and its appurtenances, and to apply the net proceeds thereof to the payment and liquidation of the debts and liabilities aforesaid ; and to render annually to said David as accurate an account as the nature of the case would admit, of both the gross proceeds of the said furnace, and the net proceeds remaining after all necessary charges should be deducted, and also an account of the application of such proceeds to the payment of the debts aforesaid; and should the property thus committed to their charge have at any time been freed from incumbrance by the discharge of the said debts and liabilities, then the said Henry and Lewis were to deliver up the possession and management of the same to the said David, or his legal representatives.
In pursuance of the agreement with David Ruffner, the other parties, Lewis Ruffner and Henry Rufiner, took possession of the property, and actively prosecuted the business of manufacturing salt. They expended not less than three thousand dollars in repairing the property, but the necessity or utility of such expenditure is denied by Putney. Lewis Ruffner, out of his own resources, paid to Dickinson and Shrews-bury nine thousand three hundred and thirty-one dollars, on account of their deed of trust on the property; he also paid the debt of two thousand five hundred dollars, in which Tompkins and Donally were securities, and charged by deed of trust on the slaves; the debt being about the value of the slaves. These payments were made to prevent sales under the deeds of trust. There are other debts in which David Ruffner was security for Putney, some of which have been paid out of Ruffner’s estate, and others of them remain *547unpaid. The bill alleges that the property embraced by the deed from Putney to Ruffner, affords but a hazardous and uncertain security for the debts charged thereon, and that the complainants would not have entered into the agreement without the additional security afforded by the agreement of March 16th, 1842.
The answer of Putney does not deny expressly that the property conveyed by him to Ruffner is insufficient as a security; he asserts, however, that he could have sold it to others at the time he sold to Ruffner, for money enough to have paid the debts then charged thereon and those assumed by Ruffner.
David Ruffner died, leaving the will herein before mentioned; which was admitted to probat in the County court of Kanawha county at the March term 1843. On the 1st of November 1844, Putney executed a deed of trust on the real estate devised to him by Ruffner, to secure a debt of two thousand six hundred dollars due to Andrew Donally; and he also sold a portion of the estate to William D. Shrewsbury. These persons are made parties, and are charged with having acquired their interests with notice of the equitable rights conferred by the agreement of March 16, 1842; which charge they do not repel. The bill prayed an injunction, which was awarded, to restrain Putney from selling or conveying away the property devised to him as aforesaid; and that the interests acquired by Donally and William D. Shrewsbury respectively, may be postponed to the equitable charges imposed by David Ruffner on the property; and for general relief. Putney and Shrewsbury answered and moved to dissolve the injunction; on which motion the material facts appear as herein set forth. The motion was sustained; an order entered dissolving the injunction; from which order this appeal is taken.
The whole case turns on the question whether the *548property formerly belonging to David Ruffner, to which Putney, or Putney and wife in her right, succeed under the will, or by descent or distribution, is charged either primarily or secondarily with the liabilities assumed by Ruffner for Putney, or with other of Putney’s debts for which David Ruffner was bound as security. If the property be so charged, whether immediately or contingently, the complainants have the right to prevent the alienation thereof, unless it be subject to the charge, as the property might thereby pass into the hands of purchasers for value without notice, and thus the charge be rendered of no avail.
The purposes of David Ruffner, disclosed in his will, and of David Ruffner, Lewis Ruffner and Henry Ruffner, disclosed in the agreement of March 16th, 1842, and their cotemporaneous exposition thereof, are perfectly manifest. Putney had become deeply embarrassed by his debts. Ruffner, his fathér in law, was willing to relieve him from a portion of those debts; that portion seems to have been selected with refer-ence to the benefit of Ruffner’s two sons, and for his own relief as security; the debts are all, or nearly all, such as the father or one of the sons was concerned in either as security or creditor. David Ruffner intended to subject the property acquired by the deed of March 12th, 1842, to the burden of paying his liabilities assumed by the agreement of that date; and further to charge those liabilities, and any other of Putney’s debts for which he was bound as security, or that portion of his estate which he had intended to give to Putney, or Putney and wife. This, in effect, was merely to vary the form of the benefit intended for Putney,* he will get all that was intended for him either by payment of his debts or in the property itself, or so much thereof as remains after discharging the liabilities imposed thereon.
Thus, whilst Putney receives all that was intended for him, the other objects of David Ruffner’s care and *549bounty, Ms wife and Ms other children, are secured to some extent, if not entirely, against having to give up a portion of the estate intended for them, to pay Putney’s debts. The inherent justice of this arrangement commends it strongly to the favorable consideration of a court of equity; and there is no reason found in it for the earnest and impassioned invective by the appellees’ counsel against the attempt to disinherit Putney and wife. The counsel seemed to have overlooked the obvious fact, that by permitting Putney to enjoy the whole subject devised to him or his wife without specific charge thereon, all David Ruffner’s liabilities to or for Putney must be discharged out of the estate generally; and thus Putney’s debts, in whole or in part, in effect, be paid by the other parties interested, especially by Ann Ruffner, the wife of the testator. I am clearly of opinion that the defense of the appellees, so far as it rests upon the supposed hardship of the arrangement, is without a shadow of foundation.
It only remains to enquire whether there is any other defect in the contract, which will prevent the court from giving it the effect intended. The principal if not the only objection in this aspect of the case, is the want of valuable consideration moving from Lewis Ruffner and Henry Ruffner. In reply it may be said that David Ruffner was under the obligation of Ms covenant to Putney to pay to the appellants a sum of money, with interest and costs, of about five thousand dollars. It was therefore perfectly competent for David Ruffner to make any arrangement with these creditors of Putney for the discharge of the debts; and it cannot be said that David Ruffner’s contract was merely voluntary. The appellants, instead of exacting payment directly of Putney, or indirectly of Ruffner through Putney, agreed to await the slow process of procuring payment by means of equitable charges on portions of Ruffner’s estate. Thus David Ruffner had a double consideration from the appel*550lants; one a large sum of money; the other the forbearance to collect it. Nor is this all. In consideration of the charges imposed by David Ruffner on portions of his property, the appellants bound themselves for an indefinite time, to give their labor and care to the personal and pecuniary relief of David Ruffner, in the management of the property committed to their hands. And this is a work of great magnitude. Whether the appellants could make any charge for their personal labor, care and diligence, is a question not free from doubt. See 1 Lomax Dig. 332; Bonithon v. Horhmore, 1 Vern. R. 316; French v. Baron, 2 Atk. R. 120; Godfrey v. Watson, 3 Atk. R. 517; Langstaffe v. Fenwick, 10 Ves. R. 405; 1 Powell on Mort. 295 b, Rand & Coventry’s edition.
It is probable, that whilst the English rule of withholding any compensation for personal service under all circumstances, might not be adopted in all its rigor, yet in our courts it would be departed from only in cases in which circumstances might make it equitable to do so. The money expended by a mortgagee in possession for needful repairs of the mortgaged property, is chargeable thereon. 1 Lomax Dig. 333.
In the case before us the money was in fact expended; the utility of the expenditure is a subject for further enquiry. The money, nearly twelve thousand dollars of principal in amount, paid by Lewis Ruffner to relieve the property from the paramount liens thereon, clearly went to the relief of David Ruffner, and should be charged on the mortgaged subject.
Thus, we have before us a case in which a purpose is distinctly manifested, by the owner of property, to charge certain liabilities for which he is bound, upon specific portions of his estate, real and personal; this purpose is declared by covenant under seal, for a consideration of great pecuniary value.
The form of the deed and the nature of a portion of the property, are such that a charge is not imposed of *551which the common law courts would take cognizance. The more comprehensive and beneficent jurisdiction of courts of equity, however, embraces the case, and may give full relief. Those courts have long recognized a species of security known as an equitable mortgage, and will give it the effect of a legal mortgage. Wherever it appears by writing, signed by a debtor, that he intends to charge his debt upon certain property of his own, courts of equity, at the instance of the creditor, will effectuate the intention. Nor is it material in what form of instrument the intention is expressed: mere promises, powers of attorney, deeds imperfectly executed, and other written papers, have been held to create equitable mortgages in the contemplation of courts of equity. Those courts, on the general principles of their jurisdiction, have always specifically executed such contracts. The law courts giving either no relief, or inadequate relief, for this reason the courts of equity have taken jurisdiction and given to the intentions of parties their full effect. See Miller on Equitable Mortgages, p. 1, 2, 3, 4, 5, 47 Law Libr.; 3 Powell on Mortgages, (Coventry & Rand’s edition,) p. 1049 a, 6; 1050, &c.
Looking to the written evidence in the record, there is no doubt in my mind that David Ruffner intended to charge the debts mentioned in the deed of March 12, 1842, and other debts for which he was bound as security for Putney, upon the property conveyed by that deed, and also upon that portion of his estate to which Putney or Putney and wife might succeed under his will, by descent or distribution. That the property conveyed by the deed should be held as a primary security for the debts mentioned in the agreement of March 16, 1842, and the other property as a secondary security. Thus I am of opinion to reverse the order of the Circuit court dissolving the injunction and to reinstate that injunction.
In order to a full and final adjustment of the charges *552on the property, it will be necessary to amend the bill making the personal representative of David Ruffher’s estate, Ann Ruffner, the wife of Richard E. Putney, Moses M. Euqua and wife, and the creditors whose debts are charged on the property, or any part of it, parties defendants.
Daniel and Moncure, Js. concurred in the opinion of Samuels, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481546/ | Allen, P. and Lee, J.
dissented.
The decree was as follows:
The court is of opinion, upon the facts as they now appear in the record, that the property, real and personal, conveyed by the appellee Putney to David Ruffner, by the deed bearing date March 12,1842, and also the estate, real and personal, formerly belonging to David Ruffner, and to which Putney, or Putney and wife in her right, succeed by devise, bequest, descent or distribution, are chargeable with the debts recited as due from Putney, and assumed by David Ruffner by the deed aforesaid, and any other debts due from Putney for which David Ruffner was security on the 16th of March 1842.
The court is further of opinion, that both parcels of property are also chargeable with any money expended by Lewis Ruffner and Henry Ruffner, or either of them, in relieving the property, or any part thereof, from paramount liens thereon, and for any money expended in needful repairs, and for all proper expenses incurred in prosecuting the work contracted for by the agreement of March 16, 1842.
The court is further of opinion, that Lewis Ruffner and Henry Ruffner, or either of them, will not have the right to make any charge for personal service, care and diligence, under their contract of March 16, 1842, unless in the further progress of the case it shall appear equitable to allow such charge.
*553The court is further of opinion, that the charges herein before declared to be proper shall be credited by the gross proceeds resulting from the prosecution of the work contracted for by the agreement of March 16, 1842, and the balance, if found against the appellee Putney, shall be charged primarily upon the property conveyed by the deed of March 12,1842, and secondarily on the property to which Putney, or Putney and wife in her right, succeeded after the death of David Ruffner.
The court, regarding the rights of the parties as having been such as hereinafter declared at the time the injunction was dissolved, and being of opinion that the injunction was necessary to preserve those rights, is therefore of opinion, that the order dissolving the injunction is erroneous.
It is therefore adjudged, ordered and decreed, that said order be reversed and annulled; and that the appellants recover of the appellees their costs in this court expended.
And the court, proceeding to make such order as the Circuit court should have made, it is further ordered, that the motion to dissolve the injunction be overruled; and further, that complainants shall amend their bill making parties the personal representatives of David Ruffner, and Ann Ruffner, the wife of Richard E. Putney, Moses M. Fuqua and his wife, the daughter of David Ruffner, and those creditors not already before the court whose debts are charged upon the property or any part of it, to the end that a full and final adjustment and payment, of the charges may be made. And the cause is remanded to be further proceeded in according to the principles herein declared, to be varied only by such facts, hereafter made to appear, as may, according to the principles of equity, require a different rule of decision. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481547/ | Allen, P.
This case has already been before this court. On that occasion it was decided, that under the agreement of the parties to give any matter in evidence under the plea of payment which the plaintiff in error might plead, either at common law or under the statute, it would have been competent to have pleaded by way of set-off under the act of April 1831, Sup. Eev. Code 157, the facts which the evidence offered on that occasion tended to prove, and therefore that the court erred in rejecting such testimony.
Upon the second trial the evidence was again offered and admitted; and the case comes up now on an exception to a decision overruling a motion of the plaintiff in error to exclude portions of the deposition of John H. Jett; and to the refusal of the court to give three instructions asked for by the plaintiff in error; and to giving an instruction at the instance of the defendant in error. This court having held that under the agreement of the parties it was competent for the plaintiff in error to offer evidence tending to prove that the parties had agreed to refer the questions of law arising out of the controversy between them to the decision of Mr. Leigh, that said questions were so referred and were decided in favor of the plaintiff in error, his decision, according to the former judgment of this court, constitutes the law of the case.
*560Mr. Leigh, determined, 1st. That the deed of trust under which the plaintiff in error asserted a right to subject the slaves conveyed by the deed of trust to sale for the payment of his debt, had not been duly recorded, so as to make it good against the creditors of the grantor. “ But that the want of due registry would in no wise impair the validity of the deed as against creditors whose debts have not attached upon the subject by force of legal process.” 2d. That a remainder or a reversion of a personal chattel is not such an interest as can be taken on a fi. fa. against the remainderman or reversioner. And therefore it followed that the execution, under which the levy was made and the property sold to the defendant in error, did not authorize such levy in 1825, and could not sanction it at the time the decision was made, as that process was then functus officio. 3d. That as the remainderman could sell the property himself, if it could be proved that he gave up his interest in the slaves to be sold under the execution, this would give validity to the sale, and perfect the title of the purchaser.
After the testimony had been offered and read, the plaintiff in error moved the court to give three instructions to the jury, which the court refused to give; and he excepted. I think the court properly refused to give the third instruction as irrelevant; there being no evidence proving, or tending to prove, that the defendant in error had actual notice of the said deed of trust, at or before his purchase of the slaves at the sale made by the sheriff. But I can perceive no objection to the first or second instructions. Each was founded upon the decision of Mr. Leigh, and was pertinent to the issue the jury was trying. The first asked the court to instruct the jury that the want of registry of the deed of trust did not impair the validity thereof against creditors whose debts had not attached on the slaves by force of legal process. And *561by the second, the court was asked to instruct the jury, that if it appeared that the interest levied on was a vested remainder expectant upon a life estate, the levy of the execution on said slaves as the property of the remainderman, was illegal and void, and a purchase of them under a sale made by the sheriff, as sheriff passed no right to the purchaser. Each of these propositions was settled by Mr. Leigh’s decision in the affirmative; and whether sound law or not, as a general question, was the law of the case as settled by the referee. How far the effect of these legal propositions so settled would be controlled by another portion of his decision upon other facts, if proved, or whether the evidence tending to prove such other facts did prove them, were distinct and independent questions.
The plaintiff in error controverted the fact of a sale by the sheriff under the execution by the directions of the remainderman. There was parol proof, and there was the sheriff’s return bearing upon this point; and the jury were to decide from all the facts in evidence before them, whether the purchaser at the sheriff’s sale could claim as a purchaser under the remainderman, himself. By the instruction given at the instance of the defendant in error, the jury were instructed, that if they believed from the evidence that the execution had been levied on such remainder, and that the same was sold by the sheriff under the execution by the directions of the remainderman, such sale vested a valid title to such remainder in the purchaser. This instruction, like the others asked, was predicated on the decision of Mr. Leigh, and though somewhat obscure in not sufficiently distinguishing between a sale made by the sheriff as officer only, and a claim under such official act alone, and a claim as a purchaser under the remainderman himself, in consequence of his giving up his interest in the property to the sheriff to be *562sold, who in that case might be regarded as his agent to sell under the execution; yet I regard the instruction as substantially complying with the terms of the decision of Mr. Leigh. But it applies to but one branch of the case. The jury may not have believed that the facts were proved to which the instruction applied. And yet by the refusal of the court to give the instructions asked by the plaintiff in error, they may have concluded that the want of registry impaired the validity of the deed of trust against creditors, although their debts had not attached on the slaves by force of legal process; or that a fi. fa. could be levied on such a remainder expectant on an estate for life, and a sale made by the sheriff in virtue of the execution would pass the title to the purchaser. We cannot say that they did not find their verdict upon some such conclusion; which would have been directly against the law of the case as settled for the parties by Mr. Leigh, and subject to whose decision the note sued on was given. If the defendant in error had supposed that the instruction, unconnected with that part of the decision which related to a sale by the sheriff by the directions of the remainderman, was calculated to mislead the jury, he could have moved the court to qualify it, by giving as an addition what in fact at his instance was given as an independent instruction. If all had been given, the whole of the legal questions propounded to and decided by Mr. Leigh would have been fairly before the jury. I think the court erred in refusing the first and second instructions asked for by the plaintiff in error; but that the third instruction asked for by him was properly refused, and that the instruction given at the instance of the defendant in error was substantially correct.
In regard to the deposition of John H. Jett, parts of which were excepted to, it seems to me the objections *563to the fifth interrogatory and the last interrogatory propounded but one, and the answers to said interrogatories were properly overruled. The question, and a most material one under the decision of Mr. Leigh, was whether the remainderman gave up his interest in the slaves to be sold by the sheriff under the execution : and evidence of his directions before the sale, is the best if not only evidence to be adduced to prove the fact. I think, however, the court erred in overruling the objection to the answer to the second interrogatory. He was asked whether a paper shown to him marked A, was not a copy of the execution under which he had, in a previous answer, said the slaves were sold; to which he replied that he thought it was; he. had never heard of the defendant in error having any other execution against the parties named. The paper is not filed. We do not know whether it was an official copy or a copy by some other person; and it was improper to give evidence of a copy without some account of the original.
I think the judgment should be reversed with costs to the plaintiff in error, the verdict set aside, and the cause remanded with instructions to award a new trial; and upon such new trial to exclude from the jury the second interrogatory and answer thereto in the deposition of John H. Jett, if again objected to ; and if the same evidence is again adduced, to give to the jury the first and second instructions asked for by the plaintiff in error and refused, provided he again should ask the court to give the said instructions to the jury.
The other judges concurred in the opinion of Allen, P.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481548/ | Allen, P.
It seems to me that under the circumstances of this case and the facts certified by the court, as having been proved in support of the motion for a continuance made by the plaintiffs at the May term 1847, that the court erred in overruling the motion and *574forcing them into a trial. The proceeding commenced in April 1833; but the issue on which the .cause was tried was not made up until the October term 1839. For this delay the commonwealth was as much responsible as the plaintiffs. The time from 1840' until the November term 1842 was occupied in efforts to revive in the names of the representatives of two of the plaintiffs whose death had been suggested. At the April term 1843 the plaintiffs, upon affidavit, obtained a continuance, but were warned by the court that no further continuance would be granted unless the application should be supported on strict legal grounds. The cause was afterwards continued generally until the April term 1844, when a rule was awarded against the attorney for the commonwealth, returnable at the same term, to show cause why the inquisition should not be quashed. The cause stood upon this rule, perhaps for advisement, and was regularly continued until the spring term 1846, when the rule was discharged, as appears by an entry made at the fall term 1846; and at that term an agreement was made that depositions might be taken in London, before certain officers therein named. At the succeeding term held on the 3d of May 1847, the trial was had. From this statement it would seem that although the cause had not been prosecuted with much diligence, the delays were not altogether attributable to the plaintiffs. But there are other facts showing that they were making efforts to prepare for a trial. It seems that on the 8th day of July 1841, they took in London the depositions of two witnesses upon notice, before the American consul. The depositions were taken on interrogatories at the time, but it appears from the consul’s certificate they were not taken at the place mentioned in the notice; and for this reason were objected to by the attorney for the commonwealth.
The depositions of the same witnesses were re*575taken, and the same error was committed; the American consul certifies that they were taken on the first day of February 1843 at his office in the city of London, being the day, but not the place, mentioned in the notice. To the reading of these depositions the commonwealth’s attorney apprised the plaintiffs’ counsel he would object. The plaintiffs again, through their agent residing in the state of Kentucky, proceeded to take steps to have the depositions retaken the third time. The sum of one hundred dollars was placed in the hands of persons in New York to obtain a bill on London to defray the expenses of taking the depositions, that being the real cost of taking the two depositions in this cause in London; and notified the attorney for the commonwealth that the depositions would be taken in the city of London on the 27th March 1847. But the depositions, if taken under this notice, had not arrived in this country, or been received by the clerk of the court on the 27th of April 1847, when the cause was called for trial. It further appears from the facts certified, that some delay occurred between the October term 1846 and the April term 1847, in giving the notice and taking the necessary steps to take the depositions, owing to the fact that it was necessary to correspond with the agent of the plaintiffs who resided in Kentucky, and the absence of their attorney from his home in Kanawha county for six or eight weeks of the time. Still it would seem that notice was given to take the depositions in time to have received them by the most expeditious mode of communication between this country and England. Whatever may have been the negligence of the parties prior to the October term 1846, they seem to have proceeded with reasonable diligence after the agreement at October term 1846. Their agent resided in another state, and some time would necessarily be consumed in corresponding with *576Mm, and in providing the means for taking depositions in England. Applications for continuances are addressed to the discretion of the court, and much must be left to the tribunal which has the parties before it, and must determine from a variety of circumstances occurring in its presence whether applications for continuances are made in good faith, or are merely intended to protract the controversy: And even when made in good faith, a reasonable degree of diligence should be exacted. The opposite party should not be kept in court and exposed to the risk of losing his testimony by the negligence of the other side.
But in this case it does not appear that the commonwealth could be subjected to any inconvenience by a delay for a term. Under the inquisition, if regularly returned and recorded,-she was entitled to the possession. The inquest of office is her evidence of title. On this she rests; her right to the land cannot be controverted by any person who does not show an interest in the subject. According to our statute, as expounded by this court in the case of French v. The Commonwealth, 5 Leigh 512, the parties suing out the monstrans de droit are plaintiffs, and must show a good right to the subject. Until they show their interest, they cannot be heard in opposition to the right of the commonwealth, as ascertained by the office found. And it does not appear that she was in a condition to suffer any injury from the loss of testimony or otherwise, by continuing the cause. That the application was made in good faith, is manifest from the previous efforts of the plaintiffs to procure this testimony at a considerable expense, and the sum expended to retake the depositions the third time; and from the offer made at the time to go into the trial, if the attorney for the commonwealth would waive the objection to the depositions.
The materiality of the testimony, if credited, is *577clear. The inquisition finds that John Fiott, late of the city of London, long before his death, was seized of the tract of land in Cabell county, containing about eight hundred acres, part of a tract of two thousand and eighty-four acres conveyed to said John Fiott by Charles Vancouver, as by deed dated the 27th of July 1793, now of record in the County court of Kanawha county, will more fully appear; and being so seized, that he died in 1818, being at the time of his death an alien : and that he had made no disposition thereof in his lifetime.
The depositions prove that John Fiott was a subject of the king of Great Britain; that he died in England in 1818, leaving John and Philadelphia, two of the plaintiffs, his children and heirs.
The inquisition shows that John Fiott acquired title to the land by a conveyance from Vancouver, dated in July 1793, and recorded in the County court of Kanawha county. An alien may take by purchase. The conveyance clothed him with the title, and no inquest or office found divested him of the title before his death. The title thus vested in him was confirmed by the ninth article of the treaty of 1794; and upon his death in 1818, descended to his children and heirs.
It does not appear that any attempt was made to confiscate the property or divest the title of the heirs by office found during the war of 1812, or since. It is therefore unnecessary to enquire what would be the effect of the war upon such rights.
But it has been determined by the Supreme court that the termination of a treaty by war does not divest rights of property already vested under it. Society for &c. v. New Haven, 8 Wheat. R. 464. Fox v. Southack, 12 Mass. R. 143.
Upon the exhibition of the proof contained in the depositions, the said heirs would be entitled under the authority of Hannon v. Hannah, 9 Gratt. 146, to ex-*578Mbit the copy of the deed rejected on the trial as evidence, whether properly recorded or not; as the inquisition refers to, it and both claim under it; and having thus shown their interest, could avail themselves of any objection to the inquisition upon a motion to quash, or show upon the trial their claim to the land, and that the same was superior to the right acquired by the commonwealth; as under the treaty of 1794 the lands could not be escheated on account of the alienage of their ancestor, and they were authorized to take by descent.
I think the judgment should be reversed, and the cause remanded for a new trial.
The other judges concurred in the opinion of Allen, P.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481550/ | Lee, J.
Stipulations in a covenant or other contract are to be regarded as dependent or independent, according to the intention and meaning of the parties, and the good sense of the case. Hotham v. East India Company, 1 T. R. 638; Porter v. Shepperd, 6 T. R. 665 ; Campbell v. Jones, 6 T. R. 570; Morton v. Lamb, 7 T. R. 125. And where an act is to be done by one party by way of condition precedent to his right to claim, performance on the part of the other, he cannot claim such performance without averring the doing of sucb act or his readiness and offer to do it. Thorpe v. Thorpe, Lord Raym. 662; Collins v. Gibbs, 2 Burr. R. 899; Brockenbrough v. Ward’s adm’r, 4 Rand. 352. So where the reciprocal acts are concurrent, and to be done at the same time, neither .party can maintain an action against the other without averring performance of his own part of the agreement, or that which is equivalent. Glazebrook v. Woodrow, 8 T. R. 366 ; Morton v. Lamb, 7 T. R. 125; Heard v. Wadham, 1 East’s R. 619; Robertson v. Robertson, 3 Rand. 68; 1 Saund. 320 d; Roach v. Dickinsons, 9 Gratt. 154.
In this case it is plain the provisions in the agreement for the execution of the release, and the payment of the amount found due on the final estimate, must be regarded as mutual and dependent. This was only to be paid upon McDonough’s executing a release under seal of all claims and demands whatever against the company in any manner growing out of the agreement. McDonough can maintain no action for the recovery of the amount of this final estimate without averring that he had executed and delivered or tendered *598the required release. The stipulation for the release is perfectly distinct and intelligible, and must have been. by the parties as material. In effect, they it part of the consideration for the payment of the final estimate. The company insisted on the right to retain this until all litigation about previous estimates, the amount and kind of work done, amount of payments, &c. had ceased, or until the contractor should release all supposed causes of action that might arise out of the contract. It was deemed important thus to provide a means to compel the contractor to assert any claim he might think he had against the company in due time before by the covering up of the work or other causes it might be impossible to ascertain its proper class, amount and value, or to release such supposed claims if he would demand payment of the final estimate; and the contractor submits to such a provision. If parties will deliberately enter into such a stipulation, no reason is perceived why full effect must not be given to it in a court of law. However stringent it may be, it is neither immoral nor illegal nor tainted with any other vice which should forbid the aid of that court to its enforcement.
And as the contractor could not thus compel payment of this final estimate without averring the delivery or tender of the required release, neither can the attaching creditor, without showing the same or its equivalent. The latter comes in under the former; can claim only as he can claim; and must recover on the same terms. There is nothing in the attachment law which amplifies or extends the rights of a creditor seeking its aid in the subject attached beyond those of his debtor. To recover at law on his attachment he must do or have done what his debtor would be required to do to entitle him to recover. The attachment law remits no preliminary duty required of the debtor to perfect his demand, in favor of the attaching *599creditor. To do so would be not to enforce but to change the contracts of parties without their consent or default; and this it was neither. the province the design of the act to do. The 12th section, which creates the lien, was intended to give to the attaching creditor a preference over all others acquiring rights to the subject after the levy of his attachment by transfer or otherwise from the party or by legal process. It was not designed to take from the garnishee any previous right which he had, nor to subject him to any recovery under the attachment from which by the terms of his contract he was exempt until performance by the other party of his part of the agreement. The case of Doe ex dem. Mitchinson v. Carter, 8 T. R. 57, and Ibid. 300, cited by the counsel, seems to have been decided purely on the question of the meaning of the covenant and the intention of the parties. It was there held that the levy of an execution upon a lease containing a covenant against letting, selling, assigning, &c. with a clause of re-entry in case of breach, created no forfeiture because not so intended; all the terms of the lease pointing to some act to be done by the tenant himself. It was not upon the notion that the rights of the creditor were in any wise amplified or enlarged. And all the judges were agreed that a covenant might be inserted in a lease which would prevent the term from passing' under a commission of bankruptcy, or being levied on under an execution against the tenant. As said by Lord Kenyon, “ a grant of an estate prima facie carries with it all legal incidents; but modus et conventio vincunt legem, and parties to a contract may model it in what manner they please.” Ibid. 61. This latter remark applies with full force to the present case.
A judgment for the whole amount of the final estimate, even if fully paid, would not amount to such a release as would fill the terms of that required by the contract. It could serve as a bar pro tanto only: it *600would be no bar to an action for other alleged breaches of the contract. This would be true if the action were at the suit of the party himself; a fortiori the judgment on the attachment could only bar for so much. Beyond this the debtor in the attachment suit would clearly not be bound. It would be unjust he should be. The attaching creditor has no interest in the subject beyond his demand. If the garnishee admits funds to that amount or the jury finds them, he looks no further but takes his judgment accordingly. He is not concerned to contest whether his debtor have not further demands against the garnishee; and the judgment against the latter ascertains that there is so much at least in his hands, but not (as against the debtor) that there may not be more. But the party was entitled to a release not only for the final estimate, but for all other causes of action whatever arising out of the contract: and this certainly he would not gain by a judgment for a part of the final estimate only, as this judgment in fact is. And the release was to be under the seal of the party: ita scripta est, and although if a contract be by parol, it may before breach be waived by parol, yet after breach, a release to operate as such in a court of law must be by instrument under seal. Bul. N. P. 152; Chit. Cont. 778; Bender v. Sampson, 12 Mass. R. 44; Crawford v. Millspaugh, 13 John. R. 87.
hi or does the declaration appended to the judgment, that it is to have the force and effect of a release executed in accordance with the contract, give to it any different character or operation. The court had no power in this summary mode, to terminate and cancel the contract as to either of the parties. Whether the debtor had or had not other and further demands against the garnishee beyond the amount sequestered, was not in issue in the proceeding, and without ascertaining that he had not, no court could undertake to absolve the company from its entire liability. But a *601court of law possesses no such power to enlarge and extend the operation of its judgment, and of its own motion to assign to it a specific character and effect. Its judgment still has its regular and legal operation only, which is to bar the debtor of his action against the garnishee to the extent of the amount thereby recovered. Beyond this he is in no manner bound; and the attempt to make the judgment operate as a full release of all causes of action against the garnishee under the contract, to overcome the objection of the want of the release stipulated for in the contract, was a mere nullity.
That the lien of the attachment cannot be enforced without rendering a judgment against the garnishee, can be no reason why his legal rights should be invaded ; nor can it give the court power to render a judgment against him, when according to the terms of his contract he was not liable to such j udgment. That the debtor might improperly withhold the release for the purpose of baffling his creditors, or that he and the garnishee might collude to prevent them from reaching the effects in the hands of the latter, cannot authorize a court of law either to disregard the terms of the contract between the garnishee and the debtor, or to substitute a discharge by its judgment for the release under seal required as the condition of the payment of what may be due. From whatever motive the release be withheld, the remedy of the creditor must be sought in another forum.
I am of opinion to reverse the judgment, and discharge the attachment.
The other judges concurred in the opinion of Lee, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481552/ | Samuels, J.
delivered the opinion of the court:
The court is of opinion, that the decree of this court, rendered in this cause when formerly here upon appeal, did not preclude the administrators of John *612Armstrong deceased from showing that a portion of the assets with which they were charged had become unavailable without default of the administrators, and therefore not proper credits for the estate; nor from showing any proper debits to the estate for money paid in discharge of debts due from their intestate, which had been omitted from the account, without default in the administrators; and that the Circuit court erred in holding the said administrators concluded by the decree of this court from asking relief against the errors alleged to exist in these particulars.
The court is further of opinion, that upon the arrival at full age or marriage of the wards respectively, or upon the death of John Armstrong, his authority as guardian ceased; and that from the termination of the guardianship, the account between the several wards and John Armstrong in his lifetime, or his estate after his death, should be taken, charging simple interest on any balance then in hand and on money thereafter received, on the ordinary principles governing accounts between debtor and creditor, as contradistinguished from the principles governing accounts between guardian and ward, during the guardianship.
The court is further of opinion, that as the money of the wards derived from the estate of their mother, their slaves and land, came to the hands of John Armstrong as guardian, his bond of office bound him in his lifetime, and his estate after his death, for the interest, hires and rents respectively received by him, whether received before or after the expiration of his authority as guardian. So much thereof as was received whilst his office continued, to be accounted for as guardian up to the time he ceased to be guardian ; and thereafter the balance then in hand, and any interest, hires or rents thereafter received, to be *613accounted for on the ordinary principles governing accounts between debtor and creditor.
The court is further of opinion, that the estate of John Armstrong should not be charged with interest on the several sums of money received as principal, interest, hires or rents from the day of the receipt thereof, but should be allowed six months in which to make investments.
The court is further of opinion, that the credit allowed to Armstrong’s estate for the board and clothing of his several wards, is reasonable, and was properly allowed; and further, that no charge should be allowed to the several wards for services rendered to their guardian whilst living in his family; that the condition of the guardian’s family did not require the services of these hired girls in its domestic affairs, so that those services were of but little value to him. The guardian being charged by law with the custody of the persons of his wards, they, being females, were properly retained by him in his own family, and should not have been hired or bound apprentices to strangers, unless necessity had required it. The labor performed by the wards had the effect of instructing them in arts and skill which will be useful to them through life; they should not be permitted to allege that the guardian, under the circumstances, should have hired them out, or bound them apprentices, and not having done so, be charged for services rendered. A due regard for the proper custody of their persons should not be overlooked for any pecuniary consideration whatever, much less for any value attached to their services.
Thus the court is of opinion that the decree of the Circuit court is erroneous. It is therefore adjudged, ordered and decreed, that the same be reversed and annulled, and that the appellees do pay to the appellants their costs in this court expended; and that *614the cause be remanded, with directions to have the accounts reformed upon the principles of this decree, upon the materials now in the record, and upon such further proof only as may be taken to show at what periods Armstrong’s wards severally ceased to be under his control as guardian, by their arrival at full age or marriage, or by the death of Armstrong. Which is ordered to be certified, &c.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481568/ | Daniel, J.
concurred in opinion with Lee, J.„that the writing set out in the declaration was a valid and binding obligation, upon which debt would lie against Davis for the net balance therein stated: but he concurred with Samuels, J. in the opinion that the declaration was defective in not averring that there were no errors in the statement.
The following is the judgment of the court:
It seems to the court here, that the Circuit court erred in holding that the bond whereof the defendant in error made profert in her declaration, and which is made part of the record by oyer, was a bond for the payment of one thousand one- hundred and thirty-seven dollars and thirty-five cents, neither more nor less. It further seems to the court here, that as the bond, in terms, reserved to the parties thereto the right to correct errors in the statement incorporated in the bond, the bond should be held to bind the obligor for so much money as might be found due after correcting all errors in the statement. That the defendant in error should have averred in her declaration that no error existed in the bond, if she sought to *127recover the sum above mentioned; or, if she sought to recover more or less, she should have averred such errors in the bond as would sustain her demand. Thus it seems to the court that the Circuit court erred in overruling the demurrer of the plaintiffs in error. Therefore it is considered that the said judgment be reversed and annulled, and that the plaintiffs in error recover of the defendant in error their costs in this court expended. And it is ordered that the jury’s verdict be set aside and the cause remanded, with directions to sustain the demurrer, unless the defendant in error shall amend her declaration by inserting an averment that no error existed in the bond, if she shall insist on recovering the principal sum of one thousand one hundred and thirty-seven dollars and thirty-five cents; or, if she shall insist on recovering more or less than that sum by inserting averments to sustain her demand; and that the plaintiffs in error be permitted to file a plea or pleas alleging specific errors in the bond affecting the amount due thereon, and any other proper pleas to the action. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481569/ | SAMUEES, J.
The action of debt will lie only for a sum certain, or which may be rendered certain. Upon the argument of this case it seemed to me that the paper writing upon which the suit is brought cannot be construed into an admission of indebtedness in the sum of one thousand one hundred and thirty-seven dollars and thirty-five cents, nor into an acknowledgment of being bound to the supposed obligee in that ‘amount; nor into a promise or obligation to pay that amount. That all that is written therein is perfectly consistent with the fact that Davis was not indebted to Mead in any amount whatever. Subsequent reflection and investigation have confirmed my first impressions, and I am of opinion to reverse the judgment, and enter judgment for the plaintiff in error upon the demurrer, for' that the writing set out upon oyer imposed no obligation upon Thomas Davis, the plaintiffs’ intestate. The court here, of four members, being equally divided in opinion on this question, the judgment of the Circuit court thereon cannot be reversed for the supposed error in the decision thereof.
Holding, then, for the purposes of this case, that the action of debt is well brought on this paper, it remains to consider whether it is counted upon in the declaration according to its legal effect. In order to decide this, we must look to the whole paper, commencing with the words “A list of rents,” &c., and ending with the word “Seal,” and the scroll annexed to the name of Thomas Davis. The legal effect of all this, as the declaration alleges, is to bind Thomas Davis in his lifetime, and his administrators after his death, to pay Hannah Mead one thousand one hundred and thirty-seven dollars and thirty-five cents, as and for a debt of that amount; and to estop the obligor and his representatives from alleging that the debt was more or less; yet the paper on its face contains the reservation for the benefit of either party, that “in the foregoing statement all errors to be corrected. ” This seems to be an affirmation that errors did exist in the process by which the balance of one thousand one hundred and thirty-seven dollars and thirty-five cents was arrived at; or, at least, that errors might exist therein. If error did exist, by the terms of the obligation it was to be corrected; and this reservation applies to every entry upon the statement by which the amount of one ^thousand one hundred and thirty-seven dollars and thirty-five cents might be affected; for instance, to the first entry: “1816 — Jeremiah Adams — Rent per annum, $80; monej" received, $80.” If, in fact, the rent had been one hundred dollars, and had been received, the sum of twenty dollars should be added to the one thousand one hundred and thirty-seven dollars and thirty-five cents; so, if money entered upon the statement had been paid over to the obligee, it is error to retain it in the statement so as to require it to be paid a second time. Thus the reservation may be made to enure to the benefit of the plaintiff, by averring in the declaration errors in the statement to her prejudice, and proving them at the trial; so the defendants, by pleas averring specific errors in the entries, or any of them, or any omissions to the prejudice of the obiigor, and proving them on the trial, will secure the benefit of the reservation. A bond which contains a substantial provision for the relief of parties thereto, as above stated, is not identical in legal effect with a simple bond for payment of money absolutely, and by estoppel preventing any allegation from either party to vary the amount. There is such a variance between the bond declared on and that set out upon oyer, that the demurrer should, for that cause, have been sustained.
I am of opinion to reverse the judgment, and remand the cause, with directions to the Circuit court to permit the plaintiff below, upon terms prescribed by law, to amend her declaration, by inserting averments either that no error requiring correction, or that error did exist to be specified in the averments; and giving the defendants below permission to plead specifically any errors to their prejudice, and any other proper pleas. And if the plaintiff shall not so amend her declaration, that the court give judgment for the defendants below upon the demurrer to the declaration.
*LEE, J.
To constitute a good and valid obligation, the law does not require any particular set form of words to be employed. Any words which sufficiently declare the intention of the party and denote his being bound or which expressly or impliedly acknowledge a debt as due from him to another will constitute a good bond: because it is only in the nature of a contract or a security for the performance of a contract which should be construed according to the intention of the parties. 7 Bac. Ab. (Bouvier’s ed.) 241; 1 Tuck. Comm. 275 ; 2 Thomas’ Co., Eitt. 566, n. S. And I think the paper writing set out in the declaration sufficiently complies with these requisites to constitute a valid obligation. It is headed “A list of rents for Hannah Mead from 1815 to 1830 made 27th of May 1829 and again on the 8th of March 1831.” Then follow in parallel columns the different years, the names of the tenants, the rent per annum, the money received, the balance of rents not collected. These different sums are added up and the results stated in figures at the foot of each column. The paper then proceeds to state in words the *62amount of the whole rents thus ascertained, the amount not collected, and the amount that had been collected. Erom the amount of the collections, it states that the sum of seventy-four dollars and fifty cents is deducted for commissions and the sum of two hundred and seventy-eight dollars and twenty-one cents for land taxes, lawyers’ and clerks’ fees, &c., as per account rendered, leaving the net sum collected eleven hundred and thirty-seven dollars and thirty-five cents. A provision is then added that all errors in the foregoing statement were to be corrected, and the paper was signed and sealed by Davis and delivered to Hannah Head. Erom the terms of the writing it seems to me that the necessary and unavoidable inference is that the money collected for Hannah Mead had been collected by Davis, and *that the net balance stated remained in his hands unpaid. It was therefore an acknowledgment under his seal that so much was still due her and was therefore a subsisting debt to pay which.a promise is raised by implication of law. I do not see how the terms of the paper can be reconciled with the hypothesis that Davis may have owed Hannah Mead nothing. That the moneys received were collected bv some one as agent of Hannah Mead, is apparent, and if Davis were not the agent why would he make a statement of the business in such terms as would be appropriate only to the party who was the agent and give to it the solemnity not only of his signature but his seal also? And while a portion of the amount collected is accounted for as applied to commissions and clerks’ and lawyers’ fees, &c., no intimation is afforded that the net balance or any part of it had been paid over to Hannah Mead or any person for her. If it had been intended as a mere statement of his transactions as agent by Davis part of which consisted in the payment over by him of the large balance found in his hands, whilst he was accounting for the smaller sums applied to commissions and fees he would not have failed to state how that large balance was disposed, of; nor if the paper was not intended as an acknowledgment of a subsisting debt could there have been any necessity or .reason for the provision that errors were to be corrected.
I think therefore the paper set out in the declaration does constitute a good and valid obligation binding Davis to the payment of the balance stated and that it was properly so considered in the Circuit court. .
Nor do I think the paper produced varies from the description given of the writing set out in the declaration. That it should be described according to its legal effect, is conceded, but I think it is so described so far as necessary on the part of the plaintiff. It is *true in the paper produced there is a distinct provision with which it ends that all errors in the statement were to be corrected, and the declaration takes no notice of this provision. But it is plain that it is to be construed not as an affirmance that there were errors in the statement, but that if there were, they should be corrected; and in the absence of any allegation of the existence of errors to the prejudice of either party, the paper stands as a valid and binding obligation for the net sum collected of eleven hundred and thirty-seven dollars and thirty-five cents, the same demanded in the declaration. To give it this effect it could not be necessary that the declaration should aver that there were no errors. If in fact there were errors to the prejudice of the defendant in the action, that would be matter of defense more proper to come from that side than to be the subject of negative averment on the part of the plaintiff; and what is matter more properly coming from the other side need not be stated by the pleader because it is not necessary he should anticipate the answer of his adversary which according to Hale, C. J., is ‘ ‘like leaping before one comes to the stile. ” See Sir Ralph Bovy’s Case, Vent. 217; 2 Saund. 62, b; 1 Chit. PI. (Phil. ed. 1828), p. 205; Steph. PI. 354.
I do not perceive the fo.rce of the argument that as this paper contains upon its face a reservation for the benefit of both parties that all errors were to be corrected, it varies materially from that described in the declaration because the latter imports a debt certain of eleven hundred and thirty-seven dollars and thirty-five cents and estops the obligor from alleging that it was more or less. But the party cannot' be estopped when the right to show the debt to-be less is expressly reserved by the paper itself, and to say there is a variance because this right is not referred to in the-declaration and the existence of errors negatived would *be to assail the well established mode of pleading on a bond with a condition where the declaration simply demands the penalty leaving the defendant to plead the condition and his-performance of it.
I think therefore the declaration was good and that the demurrer was properly overruled.'
Several other questions have been raised in this case but as the other judges are of' opinion the declaration is defective in. not negativing the existence of errors in the statement, it is unnecessary to express any opinion upon them.
MONCURE, J., concurred in the opinion, of Samuels, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481570/ | DANIEE, J.,
concurred in opinion with Eee, J., that the writing set out in the-declaration was a valid and binding obligation, upon which debt would lie against-Davis for the net balance therein stated: but he concurred with Samuels, J., in the-opinion that the declaration was defective-in not averring that there were no errors in the statement.
The following is the judgment of the court:
It seems to the court here, that the Circuit court erred in holding that the bond whereof the defendant in error made profert: *63in her declaration, and which is made part of the record by oyer, was a bond for the payment of one thousand one hundred and thirty-seven dollars and thirty-live cents, neither more nor less. It further seems to the court here, that as the bond, in terms, reserved to the parties thereto the right to correct errors in the statement incorporated in the bond, the bond should be held to bind the obligor for so much money as might be found due after correcting all errors in the statement. That the defendant in error should have averred in her declaration that no error existed in the bond, if she sought to ^recover the sum above mentioned; or, if she sought to re-, cover more or less, she should have averred such errors in the bond as would sustain her demand. Thus it seems to the court that the Circuit court erred in overruling the demurrer of the plaintiffs in error. Therefore it is considered that the said judgment he reversed and annulled, and that the plaintiffs in error recover of the defendant in error their costs in this court expended. And it is ordered that the jury’s verdict be set aside and the cause remanded, with directions to sustain the demurrer, unless the defendant in error shall amend her declaration by inserting an averment that no error existed in the bond, if she shall insist on recovering the principal sum of one thousand one hundred and thirty-seven dollars and thirty-five cents ; or, if she shall insist on recovering more or less than that sum by inserting averments to sustain her demand; and that the plaintiffs in error be permitted to file a plea or pleas alleging specific errors in the bond affecting the amount due thereon, and any other proper pleas to the action.
THE ACTION OF DEBT.
I. In General.
II. When Debt Lies.
A. Simple Contracts.
B. Bonds.
C. Judgments.
D. On Statutes.
E. Partially Sealed Contracts.
III. When Deht Does Not Lie.
A. In General.
13. Bonds Not Payable in Money.
IV. The Pleadings.
A. The Declaration.
1. In General.
2. The Debt.
3. The Breach.
4. The Averments.
5. The Damages.
B. The Pleas.
1. In General.
2. Evidence under.
3. In Bar.
4. Nil Debet.
5. Non Est Factnm.
6. Payment.
7. Of Fraud.
C. The Replication.
V. The Verdict.
A. When Valid.
B. When Defective.
VI. The Judgment.
A. When Sufficient.
B. When Insufficient.
I. IN GENERAL.
The Action of Debt. — The action of deht is designed, to recover a specific sum of money due by contract, sealed or unsealed, verbal or written, express or implied, where the amount is either ascertained, or from the nature of the demand is capable of being ascertained, whether due on legal liabilities (as penalties denounced by statute), on simple contracts, on specialties (or„obligations under seal), on records (as recognizances, judgments, etc.), or otherwise. [3 Bl. Com. 154, 155; 1 Chit. PI. 123 et sea. ; 3 Rob. Pr. (2d Ed.) 370 et sea.U 4 Min. Inst. (3rd Ed.) 549. See also, Va. Code 1887 §§ 2852, 2853, and W. Va. Code 1899, ch. 99, §§ 10, 11.
The action has, as a natural consequence of the reforms in procedure, been more or less in disuse in modern practice, being entirely abolished in those states where code practice has been adopted.
The action of debt lies for the recovery of arrears of rent, hut at common law no interest on rent was recoverable, unless expressly or by implication contracted for, or where justice required it. Cooke v. Wise, 3 H. & M. 463. But in Virginia and in West Virginia by statute interest is recovered “in any action for rent” as in other contracts. Va. Code 1187, §§ 2787, 3396 ; 4 Min. Inst. (3rd Ed.) 162; W. Va. Code 1899, ch, 93, § 7.
For the general requisites and qualities of a declaration in deht, and the modes of stating the cause of action, reference is made to 4 Min. Inst. (3rd Ed.) 685 et sea., and 701 et sea., where these subjects are fully treated.
West Virginia Practice. — It is held in State, etc., v. Harmon, 15 W. Va. 115, in interpreting sec. 10 of ch. 99, of the Code of West Virginia of 1868, that so far as it applied to the action of assumpsit upon sealed instruments containing a promise, undertaking or obligation to pay money, the court did not feel at liberty to giye a more enlarged or liberal interpretation to it, than bound to'Jby the language or terms thereof applicable thereto, but that it regarded it to be the safer practice under the then state of legislation to declare in debt upon a sealed instrument for the payment of money rather than in assumpsit.
Necessity to Aver and Prove Consideration. — At common law, in an action to recover money due by promissory note, not negotiable (the action being founded not on the note, but on the contract of which the note is evidence), it is indispensable to aver and prove a valuable consideration, as it is in actions on all unsealed contracts. 4 Min. Inst. (3rd Ed.) 701.
In Va. by statute (Va. Code 1873, ch. 141, § 10; Va. Code 1887, § 2852) in case of notes for the payment of money, a valuable consideration is prima facie presumed, at least where an action of deht is brought on the writing (Peasley v. Boatwright, 2 Leigh 198), and by the Code of 1887, § 2852, the same doctrine is applicable to assumpsit. Crawford v. Daigh, 2 Va. Cas. 521; Jackson v. Jackson, 10 Leigh 453; 4 Min. Inst. (3rd Ed.) 31. But the defendant may go into evidence touching consideration. Jackson v. Jackson, 10 Leigh 453.
*64Joint and Several Causes of Action. — Debt on a single bill and on a mutuatus or other simple parol contract, may be joined in the same action of debt. Somerville v. Grim, 17 W. Va. 803. The action of debt lies to recover money lent, paid, had and received. Somerville v. Grim, 17 W. Va. 803.
On Speciality and Simple Contract — Joint Action.— An action of debt was brought on a bond for $207, on which was an endorsement by the obligor and obligee stating that a settlement had been made, and there was due on the bill $152. The declaration demanded $359, and contained two counts, 1st, on the single bill, and 2nd, on the simple contract. It is well established that debt may be brought on an obligation and on a mutuatus joined in the same action, though the former be under seal, and the latter a simple contract. The test of the propriety of such junction is that the accounts are of the same nature, and the same judgment may be given in all, though the pleas be different. The declaration in this case was free from objection, and the joint action was proper. Eib v. Pindall, 5 Leigh 109.
Appearance Bail-Bond with Conditions. — Appearance bail is not required in actions of debt on bonds with collateral conditions; and in such cases, it is error to enter a judgment by default against the sheriff for not requiring appearance bail. Ruffin v. Call, 2 Wash. 181; Nadenbush v. Lane, 4 Rand. 413.
Statutory Penalty. — Bail is not requirable in an action of debt, for the penalty of a statute. U. S. v. Mundel, 6 Call 245.
II. WHEN DEBT LIES.
A. SIMPLE CONTRACTS.
Note for Payment of Money or Tobacco. — The action of debt may be maintained on a note in writing, for the payment of' money or tobacco, under our statute, and it is immaterial that the declaration should set out the consideration of the note, or that it was given for value received. Crawford v. Daigh, 2 Va. Cas. 521. And it was held in Hatcher v. Lewis, 4 Rand. 152, that debt lies against the endorsers of a note by a joint action. .
Foreign Note Unstamped. — If the law of the State where a note is given only declares that it shall not be admissible as evidence unless stamped, an action of debt may nevertheless be maintained upon it in another state. Fant v. Miller, 17 Gratt. 47.
Writing Acknowledging Debt. — When there is a writing, signed by the debtor, acknowledging his indebtedness in a certain amount; the real owner may bring an action of debt thereon. Cunningham v. Herndon, 2 Call 530; Murdock v. Herndon, 4 H. & M. 200. An acknowledgment of indebtedness between the parties to a deed, contained in its recitals is a sufficient acknowledgment of a debt to sustain an action of debt thereon. Newby v. Forsyth, 3 Gratt. 308.
Acceptor of an Order. — Under the 4th section of the Act, 1 Rev. Code, ch. 125, p. 484, the payee of an order can bring an action of debt against the acceptor of an order, because by his acceptance he obliges himself to pay the amount of the order to the payee by an absolute and unconditional obligation, and the subsequent treatment of the paper does not affect him. Hollingsworth v. Milton, 8 Leigh 50.
Bill of Exchange — Acceptor.—An action of debt will lie in the name of the drawer of a bill of exchange against the acceptor, independently of statute, and an action of debt will lie in the name of the endorsee | of a bill of exchange against the acceptor under the Virginia Statute, Code 1860, ch. 144, § 10; Regnault v. Hunter, 4 W. Va. 257, overruling Smith v. Segar, 3 H. & M. 394, and Wilson v. Crowdhill, 2 Munf. 302.
Acceptor of Bill of Exchange — Payee—Drawer—Endorsee. — It was held in Regnault v. Hunter, 4 W. Va. 257, that an action of debt will lie in the name of the payee of a bill of exchange against the acceptor, under sec. 10, chap. 144, of the Code of Va. 1860, provided it be averred in the declaration that the acceptance is signed by the party who is to be charged thereby, or his agent. An action will therefore lie in the name of the drawer of a bill of exchange against the acceptor, independently of statute. An action will lie in the name of the endorsee of a bill of exchange against the acceptor under the statute.
Foreign Bill of Exchange. — The action of debt lies on a foreign bill of exchange, which was drawn in another state and endorsed in this State. Stott v. Alexander, 1 Wash. 331.
To Hold Haker and Endorsee Jointly Liable Protest and Notice Necessary.— To make an endorsee of a negotiable note liable, in debt, with the maker, it must appear that the note was duly and formally protested for non-payment, and that he was duly notified of such non-payment, and protest. See Code 1868, ch. 99, § 11. Shields v. Bank, 5 W. Va. 254.
B. BONDS.
Bonds Dischargeable in “Notes or Bonds.” — An obligor bound himself to pay to the obligee or order on or before a certain day, a certain sum of money, with interest, “which sum may be discharged in notes and bonds due on good solvent men residing in the county of Randolph, Virginia.” This is a bond for the payment of money and for which an action of debt will lie. When the obligation is to pay a sum of money, or some other article in the alternative, on or before a certain day; or to pay a certain sum of money, with a privilege to the obligor to pay it in some other article on or before a certain day, the obligor has his election to deliver the article on or before that day; but if he fail to do so, he is liable absolutely for the money in an action of debt for its recovery. Butcher v. Carlile, 12 Gratt. 520.
Bonds Payable in “Goods or Money.” — An obligation was made for the payment of a certain sum of money in monthly installments, “either in goods at regular prices or .current money.” At the dates of payments neither the goods tyere delivered, nor the money paid. It was held that this was an obligation to pay money, with the privilege to the obligor to discharge the money obligation by the delivery of goods at regular prices in equal amount, on or before the time of payment; and the obligor having failed within that time either to pay the money or so to deliver the goods, was liable in an action of debt thereon. Minnick v. Williams, 77 Va. 758.
On Bond of Sheriff for Trespass. — An action of debt is the proper remedy when proceeding on the official bond of a sheriff who takes the property of A. under an attachment against the property of B. This was a violation of the duty of his office and the condition of his bond, and his sureties are liable therefor. Sangster v. Com., 17 Gratt. 124.
Bonds Payable in Confederate Notes. — A bond was given in 1862, novating several prior transactions between the parties. If the intention of the parties to the bond was that it was payable in Confederate States treasury notes, the defendant is entitled to recover in an action of debt the value of the amount of such notes, scaled according to the value of such *65notes with reference to gold. Dearing v. Rucker, 18 Gratt. 438.
Bonds Payable in “Gold or Silver.” — An action of debt was brought on a bond promising to pay, “twenty-four hundred dollars, in gold or silver, or its equivalent.” The court was of the opinion that this was an obligation to pay a certain sum, aud “gold or silver” was named as the standard of value. The obligor was not obliged to pay in that coin, he could have paid its equivalent. Such an obligation is an absolute one for the payment of a sum certain of money, and as held in Butcher v. Carlile, 12 Gratt. 520, although there was a privilege to discharge It in its equivalent, the action of debt was properly maintainable on it. Turpin v. Sledd, 23 Gratt. 238.
Replevy Bond. — The executors may either maintain the statutory remedy of motion, or the common-law remedy of action of debt on a replevin bond, payable to their testator. Booker v. McRoberts, 1 Call 243; Early v. Owen, 6 Munf. 319.
Defective Forthcoming Bond. — Although a motion has been brought on a forthcoming bond, and dismissed because it was defective, this did not prevent the subsequent bringing of an action of debt upon the same bond, the said bond being taken by the sheriff, and the property was not delivered according to the condition of the bond and the motion on said bond dismissed because of its insufficiency. Hewlett v. Chamberlayne, 1 Wash. 367; Johnstons v. Meriwether, 3 Call 523. The fact that the bond was taken payable to the sheriff instead of to the creditor, does not prevent his bringing an action of debt on it. Beale v. Downman, 1 Call 249.
Act of 1813-14, ch. 13, §2 Construed — Administration Bond. — M. H. adm’r of E. H. recovers a judgment against E. B. adm’x of R. B. for debt due plaintiff’s intestate, and sues out a ft. fa. thereon,, which is returned nulla bona,', then, M. H. the plaintiff, dies; and administration de bonis non of R. H.’s estate is granted to A. Held, the action of debt on the administration bond of E. B. against her and her sureties, lies at the relation of A. the adm’r de bonis non of R. H. and not at the relation of the representative of M. H., he first adm’r of R. H., upon the construction of the statute of 1813-14, ch. 13, § 2; 1 Rev. Code, ch. 104, § 63; Allen v. Cunningham, 3 Leigh 395.
Bond to Ancestor — When Heir May Sue. — The heir may maintain an action of debt on a bond to his ancestor, conditioned for the quiet enjoyment of lands, when the breach has happened sinee the ancestor’s death. Every d ecedent leaves two representatives, the executor, who represents his personal rights, and the heir, who represents his real rights. The executor is entitled to the collection and possession of the personal estate for the purposes of payment of debts aud legacies, but the heir is entitled to the realty. The bond sued on constituted no part of the testator's personal estate, as no breach occurred during his lifetime, but belonged to the heir as appertaining to the inheritance, and it was proper for him to sue in debt for the breach. Eppes v. Demoville, 2 Call 22.
C. JUDGMENTS.
Joint Judgments — One Defendant Dead. — Where a joint judgment is obtained against two defendants, and one dies, an action of debt on the judgment lies against the representative of the deceased defendant; the law respecting partitions, joint rights and obligations, 1 Rev. Code, 359, being applicable to joint judgments. Roane v. Drummond, 6 Rand. 182.
On Judgment “If Assets.” — It was held in Braxton v. Wood, 4 Gratt. 25, that the action of debt could be brought on a judgment, confessed by the administrator in a suit by a debtor of his testator, “if a sufficiency of the assets of the defendant’s testator’s estate shall remain after payment of debts of superior dignity.”
Judgment — When Records Destroyed. — The action of debt may be maintained on a judgment, although the records of such judgment have been destroyed by fire, which also destroys the record of an appeal taken on said judgment. Newcomb v. Drummond, 4 Leigh 57.
D. ON STATUTES.
Statutory Penalty. — By the Supp. to Rev. Code, ch. 88, p. 112, it provides that if any officer of an election, who interferes in the election in any way by showing partiality for any candidate, he shall forfeit a certain sum, to be recovered by bill, plaint, or information in any court of record. In an action of debt brought under this statute it was contended that debt not being mentioned as a means of recovery, the action did not properly lie, but the court held it to be embraced in the words “bill” aud “plaint.” Sims v. Alderson, 8 Leigh 479.
E. PARTIALLY SEALED CONTRACTS.
Writing Sealed by aPart of Signers — Joint—Joint and Several. — An instrument in writing, binding all of the parties thereto, purporting to be under their hands and seals, is not sealed as to one of the parties. An action of debt is brought on the paper, and on demurrer it is held proper to sue all of the parties to such paper in one action of debt. In order to maintain the action the undertaking must be either joint and several, or joint; it was held to be plainly one joint undertaking. Rankin v. Roler, 8 Gratt. 63.
An action of debt was brought upon the following instrument, “On demand, I promise to pay to David Keller the just and full sum of $200.00, for value received, as witness my hand and seal the 1st day of March, 1862.
Thos. McHufiman, [Seal.1
Security: — David M. Riffie.” This action was a joint one, and was brought by Keller’s administrator against the obligor and the surety. The court held that this writing.constituted a joint and several promise to pay, and that the action of debt was properly brought on it; it was held not necessary to sue in separate actions the obligor and surety. Keller v. McHuffman, 15 W. Va. 64.
III. WHEN DEBT DOES NOT LIE.
A. IN GENERAL.
Bond Payable in Installments — When the obligation is to pay a sum of money in twenty-five annual installments, debt cannot be maintained on the bond, until the whole amount becomes due and payable. The proper remedy is an action of covenant for the recovery of the installments as they fall due. Peyton v. Harman, 22 Gratt. 643.
Statutory Bonds — if an act of assembly directs that a bond shall be payable to the justices, and that the penalty shall be £1,000; If the bond be taken payable to the governor, and the penalty be £10,000, and a suit thereon is brought by a succeeding governor for the benefit of the party injured by an action of debt, it cannot be sustained. Stuart v. Lee, 8 Call 421.
Against Drawer and Endorsers of a Specialty. — A single bill, under seal, is not a note, but a specialty; and therefore the drawer and endorsers of such a note made negotiable and payable at the Farmers’ Bank, cannot be sued jointly in an action of debt. Mann v. Sutton, 4 Rand. 253.
*66Single Bill under Seal. — Since tlie passage of the West Virginia Code of 1868, as before, a single bill under seal is not a note, but a specialty; and the drawer or endorsers of such a bill, although it be made payable and'-negotiable at a bank in West Virginia, cannot be sued jointly in an action of debt by virtue of the 11th sec. of ch. 99, of said Code. See Mann v. Sutton, 5 Rand. 253; Laidley v. Bright, 17 W. Va, 779. But see same section in the Code of 1899.
Beneficiary Not a Party. — Where there was an indenture between two parties, in which one of the parties covenanted to pay a certain sum to a third party, within a certain time and there was a breach of this covenant, the grantee or his personal representative only may proceed at law for its recovery, either by covenant for the breach or by debt for the money. The beneficiary cannot do so. So in a similar case when the contract was by parol, the beneficiary was not allowed to maintain debt or assumpsit for the money. The personal representative of the dead grantee alone being allowed to proceed at law. Ross v. Milne, 12 Leigh 204, 37 Am. Dec. 646.
Hilitary Certificates. — It was held in Gibbon v. Jameson, 5 Call 294, that as debt could only be supported for money or tobacco, it did not lie for military certificates.
For Levying without Paying Year’s Rent Due. — An action of debt was not sustained under an act which did not impose a penalty upon the officer for levying an execution on the property of the tenant, when a year’s rent was due to the landlord, which the officer did not pay. The sheriff was liable in such case, but the remedy was an action on the case for consequential damages. Byrd v. Cocke, 1 Wash. 232.
Acceptor of Bill of Exchange. — An action of debt was held in Smith v. Segar, 3 H. & M. 394, and also in Wilson v. Crowdhill, 2 Munf. 302, not to lie against the acceptor of a bill of exchange. Otherwise by Va. Code of 1887, § 2853. See also, Regnault v. Hunter, 4 W. Va. 257, holding samé way, that the action does lie.
B. BONDS NOT PAYABLE IN MONEY.
Bond “Payable in the Currency of Virginia and North Carolina Money.” — On the 14th of September 1862, H bound himself by bond to pay to D twelve months after date eight hundred dollars for the purchase money of land, describing it, “payable in the currency of Virginia and North Carolina money. ” The obligation upon which this suit was brought, promised to pay eight hundred dollars “payable in the currency of Virginia and North Carolina money.” Bank notes, though they pass generally by common consent as money, and answer the purpose of money, are not money in a legal sense unless they be made a legal tender in payment of debts. The action of debt will not lie where the amount of recovery in money must be ascertained by evidence of value and the intervention of a jury. The action of debt only lies for money and the plaintiff recovers the sum in, numero, and -not a compensation in damages. In this case the quantity of the Virginia and North Carolina currency was fixed, and the insertion of the words eight hundred dollars has no reference to current coin, but to the amount of bank notes which represents so much coin. In cases of indeterminate quantity there can be no other measure of damages than the named sum, and the intervention of a j nry is unnecessary. The named sum must necessarily be the amount of the debt, which is then precisely ascertained. But where the named | sum is to be paid in' any determinate quantity of a collateral article subject to fluctuation in its market price, the value of that article is the thing due, and as it may be more or less than the named sum for which the creditor is willing to take the article, it must be estimated in damages by the jury. This was a promise to pay this sum in the currency named, and the action of debt cannot be maintained upon it. Dungan v. Henderlite, 21 Gratt. 149.
Bonds Payable in Bank Notes. — The obligor in a bond, promised to pay, on or before a certain spec!-, fled day, the sum of “813 dollars and 79 cents, in notes of the United States Bank or either of the Virginia banks,” and an action of debt is brought, on this writing. It is held that the action cannot be maintained. The action of debt will only lie upon a money or tobacco bond, and the plaintiff recovers the sum in numero, and not a compensation in dam-, ages. This is substantially a contract to pay bank notes to a certain specified amount, expressed in words as appropriate as any other, to signify how much bank paper was to be paid, and is equivalent to an engagement to pay bank notes amounting to 813 dollars and 79 cents, or so many bank notes as on their face will nominally make that sum. Paper may rise or depreciate in value before the day of payment, and if the day passes, when the contract is to be fulfilled, the measure of the obligee’s right, and of the obligor’s liabilities is the value of the notes on that day to be ascertained by the verdict of a jury, and awarded in damages. But where the promise is to pay a determinate sum in an article of fluctuating or uncertain value, if the quantity be fixed, so that at the day of payment it may fall short of the debt, there debt will not lie, because the essence of the contract was the delivery of the article and the creditor can only recover the value. As where there is an obligation to pay 500 dollars in wheat at a certain day, a failure is made to deliver the wheat on that day, debt will lie because the obligation was for 500 dollars, whether it be paid in coin or wheat. But -if the obligation be to pay 500 dollars by the delivery of 500 bushels of wheat, there debt will not lie, although .the day be past, for it is possible that the wheat- on the day of payment will be worth less than 500 dollars. Beirne v. Dunlap, 8 Leigh 514.
IV. THE PLEADINGS.
A. THE DECLARATION.
1. In General.
Omission of Obligor’s Residence. — It is immaterial that the words, “of the county of Essex,” the place of the obligor’s residence, which is stated in the bond, are not stated in the declaration. Evans v. Smith, 1 Wash. 72.
Blank as to Sums, Date, etc. — Where an office judgment was entered for the plaintiff on-a declaration in debt, which was blank as to the sum declared 'for, the date of the bond, the assignment to the plaintiff and the damage, it was incurably erroneous, and the judgment was reversed and the suit was dismissed with costs. Blane v. Sansum, 2 Call 495.
Declaration of Executor in Detinet — Judgment de Bonis Testatoris. — If an executor obtain a judgment against the administrator of the debtor, for a debt due to his testator, to be levied of the goods and chattels of the intestate, and he afterwards bring an action of debt against the administrator suggesting a devastavit and declare in detinet only, he cannot have judgment de bonis propriis of the ad*67ministrator but only de bonis testatoris. To entitle the plaintiff to a judgment debonis propriis lie should declare in the debet and detinet. Spotswood v. Price, 3 II. & M. 123.
Executor’s Bonds — How Action Is Brought. — On a bond payable to “A, executor of B,” the declaration technically should have been in the debet as well as the detinet, but it was only in the detinet. The plaintiff has the right to abridge his demand, and the omission to declare in the debet is such mere matter of form, that it will not be held regarded, even on special demurrer. Bailey v. Beckwith, 7 Leigh 604 ; Waller v. Ellis, 2 Munf. 88.
Declaring against Remote Heir. — fn declaring in an action of debt against the heir of an heir on a bond in which such heirs are bound, he should be charged as heir of the heir of the obligor, or as heir of the obligor, with a videlicet, setting forth the intervening descent, but it is not necessary for the declaration to state how he is heir. Waller v. Ellis, 2 Munf. 88.
Husband Joined in Suit on Bond to Wife.- — in an action of debt on a bond in the name of a married woman as assignee of the oblig'ee the declaration stated that her husband had no interest in the subject matter of the suit but was joined with his wife by way of conformity, field, the declaration was unobjectionable. Tate v. Perkins. 85 Va. 169, 7 S. E. Rep. 328; Hayes v. Va. Mut., etc.. Ass'n, 76 Va. 225.
By Assignee on Balance Due. — it is a sufficient declaration in debt, which states that the defendant had acknowledged by his certain writing, the settlement of his account with W. It., and a certain amount due to him, which the said W. It. had by writing on the bill of settlement assigned to the plaintiffs, directing the same to be understood as belonging to the plaintiffs. This stated a sufficient cause of action. Cunningham v. Herndon, 2 Call 530.
On Administration Bond. — As administration bonds are for the use of others, and are specifically designated and provided for by law, it follows, that when such a bond is sued upon, and is to be exhibited as evidence, it ought clearly to appear from the declaration, that the bond declared on, is in its character an administration bond. It ought not tohayetobe inferable from the declaration that it is a mere private bond, which is the ground of action. When an official bond is the ground of action, it should be laid in the declaration to have been made to the obligee in his official capacity: that the declaration should manifest in what right the plaintiff sues is a general principle of law. The failure to state in a declaration in debt on an administration bond that the plaintiifs sued as justices of the court is a fatal variance, and the bond was inadmissible in evidence. Cabell v. Hardwick, 1 Call 345.
What Omissions in Declaration Fatal. — The declaration in an action of debt on a negotiable note, which fails to state that the iilaintiflis the payee or endorsee or holder of the note, though the drawing of the note, and its endorsement by the payee in blank is alleged; which also fails to state that it was duly presented tor payment at the place where it was payable, at the time when it became due and payable, that it was not paid, and that thereupon it was then duly protested for non-payment, of all of which the endorser had prompt notice, is fatally defective on general demurrer. Bank of Huntington v. Hysell. 22 W. Va. 142.
Against Heirs oí Obligor. — In an action of debt on bond with collateral condition, the writ (which by the defendants’ praying oyer was spread on the record) was against four persons, as heirs of the obligor, but the declaration only charged three as such heirs, the declaration was too defective for a judgment to be entered thereon, and such defect -was not cured by verdict. Watson v. Lynch, 4 Munf. 94. See Va. Code 1887, § 2668.
2. The Debt.
On Joint Bond against One Obligor.-In an action of debt against one only of two joint obligors, where the declaration described the bond as joint, and did not state that the other obligor was dead, this was a fatal error, and thoug'h it was not pleaded in abatement, was not cured by verdict. Newman v. Graham , 3 Munf. 187. But it is held in Meredith v. Duval, 1 Munf. 76, that if the bond be spread on the record by oyer, and appea r to be a joint and several bond, the defect in the declaration will be obviated. Tn neither case was the statute of jeofails adverted to. See Va. Code, 1887, § 3449.
When Interest Not Part of Debt — The declaration in an action of debt on a judgment, which does not carry interest, demands the sum with interest. When the plaintiff, in an action in nothing extrinsic, but depending on a deed or other instrument, and pari rations on a judgment, demands more than by his declaration he shows himself entitled to. the declaration is bad • upon demurrer. Shelton v. Welsh, 7 Leigh 175.
On Maryland Judgment. — A Maryland judgment was rendered for a debt, damages and costs, with a memorandum at the foot that the plaintiff shall release the damages on payment of the interest due on the debt. In an action of debt brought on this judgment in Virginia, the declaration demanded the debt with interest, and not the damages. The demand of the plaintiff was substantially for the debt with interest, and hence there was no error in the declaration, which was held to be good in Kemp v. Mundell, 9 Leigh 12.
Acknowledgment oí Indebtedness in a Deed. — -Tn a declaration in debt on a deed, which contains the acknowledgment of the debt, it was held unnecessary to set out any more of the deed than that which contains the acknowledgment; and that only according to its legal effect. Newby v. Forsyth, 3 Gratt. 308.
On Statement of Agent. — An action of debt was instituted on a paper, which contained a statement of account of rents collected through a number of years by an agent for his principal. There was a statement at the foot of the account setting out the gross amount received, certain deductions, leaving the net sum due, concluding, 'Tn the foregoing statement all errors to be corrected. As witness my hand and seal.” This was signed and sealed by the agent. If this paper will sustain an action of debt, the declaration should declare that there are no errors in the bond ; if plaintiff claims the net sum, and if she claims more or less, she should aver such error as will sustain her demand. Davis v. Mead. 13 Gratt. 118.
Defective Declaration — Statute of Jeofails. — The declaration in an action of debt on a judgment for a certain sum to be discharged by a lesser, demanded a wrong sum, and no special demurrer was filed. The error was cured by the statute of jeofails, there being enough in the declaration to show the true amount of the judgment. Roane v. Drummond, 6 Rand. 182.
Amendment of Declaration — An action of debt was *68brought upon a judgment for a certain sum. In the declaration the sum declared for was slightly different from the judgment. The plea of no such record was filed. Upon the trial of the cause, the plaintiff moved to amend the declaration by inserting the true sum, which was allowed. There was no error in permitting the amendment. Anderson v. Dudley, 5 Call 529.
Date of Bond Blank in Declaration. — An action of debt was brought on two bonds, which were described in the declaration as dated on the — day of - 1859, and the — day of-1860. The obj ection on general demurrer to these counts was not held sound, the bonds being fully described. Simmons v. Trumbo, 9 W. Va. 358.
Omission of Sum. — In an action of debt upon a protested negotiable note against the makers and endorsers, the accidental omission of the sum for which the note was given, in the description of it in the declaration, where it appears from other parts of the declaration, is not ground of demurrer. Archer v. Ward, 9 Gratt. 622.
Demand Less Than Amount of Note Sued on. — If the demand in the declaration in an action of debt be for less than the right of recovery shown by the note described in it, it would be disregarded on demurrer by reason of sec. 29, ch. 125 of the Code, and as the variance does not aggrieve the defendant, but is to his benefit; and also, in the absence of a demurrer, it is cured after judgment by sec. 3, ch. 184 of the Code of W. Va. Long v. Campbell, 37 W. Va. 665, 17 S. E. Rep. 197 (1893).
Variance — Several—Joint and Severa!. — If a declaration describe a note of several parties as several, while the note is joint and several, and no objection is made on account of the variance before judgment, though it be rendered on demurrer to evidence, it is unavailing to reverse the judgment by reason of sec. 3, ch. 134 of the Code of W. Va. Long v. Campbell. 87 W. Va. 665, 17 S. E. Rep. 197 (1893).
Declaration Defective. — A judgment was rendered in favor of testator of the defendant, against the plaintiff for 64£, 8s, 4d, to be discharged by the payment of 33£, 4s, 3d. The declaration in an action of debt, brought upon the above judgment, claimed only tbe latter sum, and a verdict was given to the plaintiff, and judgment entered. On appeal the judgment was reversed, because by the declaration it is manifest that the suit should have been for 64£, 8s, 4d, instead of 32£, 4s, 2d. Ragsdale v. Balte, 2 Wash. 201.
Interest Not Claimed. — An action of debt was brought upon a promissory note, bearing interest from date. The declaration stated the principal sum right, but omitted to state the amount of interest. Judgment for the principal sum without interest must be entered upon non sum informatus. Hubbard v. Blow, 1 Wash. 70. See also, Brooke v. Gordon, 2 Call 212. But now under the act which took effect April 1805, the clerk issues executions for interest, though not mentioned in the writing, nor demanded in the declaration. Wallace v. Baker, 2 Munf. 334; Baird v. Peter, 4 Munf. 76. See Va. Code, §§ 8300, 3301.
A judgment entered upon nil dicit or non sum informatus, In an action of debt in a penal bill, will not be reversed because the declaration, although describing the bill penal correctly as to the principal, penalty, and date, omitted to mention that the debt was payable “with interest from a day prior to the date,” and judgment, in conformity with the penal bill was entered for the penalty, to be discharged by the principal, .with such interest and costs. Harper v. Smith, 6 Munf. 389.
Variance between Bond and Declaration. — In an action of debt on a bond, the latter was recited in the declaration as bearing date in 1811; the bond produced, aud made part of the declaration upon oyer was dated in 1810. This variance was held to be a matter of substance, and fatal to the case. Bennett v. Loyd, 6 Leigh 316.
On Judgment for Penalty Dischargeable by Smaller Sum. — Iu an action of debt on a j udgment for tbe penalty of a bond, “to be discharged by a smaller sum with interest,” the declaration ought not to demand “the smaller sum with interest till paid," but “the penalty to be discharged thereby.” On the ground of this defect the court was of opinion that the error was a fatal one, even after verdict. Anderson v. Price, 4 Munf. 307.
Penalty and Not Aggregate of Bonds Sued on Demanded — Not Error. — The aueritur in an action of debt brought upon an injunction bond should demand the aggregate of all the injunction bonds named in the declaration, where there are several counts, and there are apparently several bonds. But if the aueritur demands only the penalty and not the aggregate it will not be so material an error as to be available on general demurrer. Bank v. Fleshman, 22 W. Va. 317.
3. the Bbeach.
Demurrer — Joining Causes of Action. — A declaration in debt contained but one count for the sum of $569 made up of the aggregate amounts due by two single bills, one of which alleged the defendant had bound himself to pay $100 in cash and $85.00 in good cash notes, the other that he bound himself to pay $385. The breach laid was that “the defendant has not paid the said several parcels of the said sum of $569, or any, or either of them, or any part thereof, in money or good cash notes.” The defendant demurred because (1) the declaration was double iu blending debt with covenant; (2) debt cannot be maintained on money to be paid in cash notes; (3) debt and covenant cannot be joined in the same action, and (4) debt is an entirety and indivisible. These objections cannot be considered on a demurrer to the whole declaration. The demurrer cannot be sustained. Henderson v. Stringer, 6 Gratt. 130.
Official Bond — Prom Whom Honey Received — Injury from Breach — Damage.—In an action of debt on a bond conditioned for the faithful discharge of the duties of an office, the declaration need not set forth the particular persons from whom money was received, nor the sums received from each, nor the time when the breaches were committed, if it appears that they occurred during the continuance of defendant in his office; nor is it necessary to state the damages occasioned by the breaches. It is not necessary for the declaration, after the assignment of breaches, to allege that the plaintiffs have been injured by the breaches, but it is sufficient if it is stated that an action has accrued to the plaintiffs to demand and have the penalty of the bond. In an action for the penalty of a bond, it is not necessary to state that in consequence of the refusal of the defendant to pay, the plaintiff sustained damage. Allison v. Bank, 6 Rand. 204.
Bond by Distributees to Indemnify Administrator.— In an action of debt on a bond given by distributees to indemnify an administrator for dividing the estate among them, the condition being, “that they should pay him their respective proportions of all debts -which he should be compelled to pay, that *69should thereafter come against said estate,” it was a sufficient assignment of the breach for the declaration to say, “that the plaintiff on a day subsequent, to the date of the bond, had paid, by the consent of the defendants, a debt which was then due from the estate aforesaid, and which, as administrator he was bound to pay, and that the defendants had not paid him their respective parts nor any proportion thereof, but the same had refused, although often requested.” Moss v. Moss, 4 II. & M. 293.
Insufficient Assignment of Breach. — An assignment of a breach of a bond with collateral condition, in the declaration which commenced “and whereas, etc..” and continued in this way of recital to the end, and which did not contain any direct averment, was held insufficient, and the error was fatal on general demurrer. Syme v. Griffin, 4 H. & M. 277. See Va. Code 1887, § 3272.
Bond with Collateral Condition. — lt is sufficient in declaring on a bond with collateral condition, if the declaration in debt on such bond assign the breach in the very words of the condition. Craghill v. Page, 2 H. & M. 446. Judgment was sustained although no damages were laid in the declaration in an action of debt on bond with a collateral condition. Craghill v. Page, 2 H. & M. 446.
In an action of debt on a bond with collateral condition, if the breach be assigned in as general terms as those of the condition, this is sufficient. In such cases, the plaintiff may recover more damages than he has laid in the declaration. Winslow v. Com., 2 H. & M. 459.
On Bond with Interest. — The declaration in an action of debt described it as being for a certain sum of money, with interest from a certain day. The breach laid was that the defendant had not paid “the aforesaid sum of money,” without alleging the non-payment of interest. The defendant was not allowed to object to errors which were for his benefit, and the defect was cured by the verdict for the principal sum, together with damages and costs. Hammitt v. Bullett, 1 Call 567.
Counts in Declaration — General Conclusion — Breaches. — Where an action of debt is based upon a single bill and simple contracts for money lent, money received, or money paid, and the aggregate of all the counts is demanded, the usual conclusion need not be added to each count, and if the general conclusion of the declaration is in the proper form and good, it will be considered as applying to each count, as well as to all collectively. And when the breach in the count on the single bill is alleged to have been defective, and the breach at the end of the declaration is sufficient, the breach to the count of the single bill will be cured by the breach at the end of the declaration. Somerville v. Grim, 17 W. Va. 803.
Variance Cured after Verdict. — The defendant gave a bond, with condition, that he would collect certain debts due to obligee, make return of amounts collected, and surrender all bonds not paid, except such as might be lodged with lawyers for collection, agreeing to perform the duty of collector for the obligee to -the best of his skill. An action of debt was brought on this bond, and the breach was laid on the defendant’s neglecting to bring suits for the recovery of the debts, etc. This variance was held immaterial, particularly after verdict. Hawkins v. Berkley, 1 Wash. 204.
4. The Averments.
Sheriff’s Bonds — Bad Averment. — When the action of debt was brought on a sheriff’s bond, and the declaration averred that the deputy sheriff acknowledged that he had received the amount of the execution, not that he had received it, this was a bad averment. For though it may be true, that the deputy made the acknowledgment, it may be false that he received the money. The receipt of the money was the gist of the action, and it should have been directly averred, that the defendant might put in an issue. The acknowledgment of the receipt of it did not offer proper matter upon which an issue could be made up. An issue made up on it would have been immaterial. Bennett v. Loyd, 6 Leigh 316.
Officer of Election — Statutory Penalty — Recitals.—In an action of debt under a statute imposing a penalty on the sheriff for partiality in conducting an election, the declaration was objected to because it contained mere recitals and not express averments; because it did not aver that there was an election, nor that defendant conducted it, the words “being, etc.,” were mere recital. The court held that while the facts of the election, of the plaintiff being* a candidate, and that the defendant was the sheriff, were set forth by way of recital, the fact that the defendant “did interfere and show partiality,” which was the gist of the action, was set forth directly and not by way of recital, and that the declaration was good on general demurrer. Sims v. Alderson, 8 Leigh 479.
On Sheriff’s Bond — Fatal Omission. — A declaration in an action of debt upon a sheriff’s official bond, for the use of the county court of his county, for failing ,to pay over moneys received by him in his official capacity for the use of such county, which fails to aver that before such action was commenced, the county court had, by its order entered of record, or by a draft made in pursuance thereof, ordered him to pay such moneys to his successor in office, or to some other person, and that said sheriff had notice thereof, is, upon general demurrer, fatally defective. State v. Hays, 30 W. Va. 107, 3 S. E. Rep. 177.
Averment of Penalty in Penal Bond. —A declaration in debt on a penal bond executed to an individual must contain an averment of the non-payment of the penalty; and if it does not, the defect will be fatal on general demurrer. Rigg v. Parsons, 29 W. Va. 522, 2 S. E. Rep. 81.
On Executor’s Bond — Averment of Assets Necessary. —In an action of debt on an executor’s bond, the declaration must aver that assets sufficient to pay the debt came to the executor’s hands, or the amount of assets that came to his hands, and the devastavit thereof; and if the declaration contain no such averment, it is bad on general demurrer. Burnett v. Harwell, 3 Leigh 89.
Attachment Bond — Insufficient Allegation. — in an action of debt upon an attachment bond, the condition of which was that the defendant should pay all costs and damages that might accrue from wrongfully suing out the attachment, the declaration averred that the defendant “did not pay all such costs and damages ashave accrued, etc.” Butthere was no averment that the attachment was wrongfully sued out, or that costs and damages had been sustained. This was not a sufficient declaration; a direct averment was essential. Dickinson v. M’Craw, 4 Rand. 158.
Executor’s and Commissioner’s Bond — Declaration Sufficient. — A bond is executed to an executor and commissioner under decree of court, with conditions reciting that the obligor has borrowed of the executor and commissioner a certain sum of his testa*70tor’s estate, which by said decree he is authorized to put at interest, on real estate security and to take bonds in his own name as executor, the interest to be paid semi-annually, and the principal when he may so require. The declaration in debt on this bond did not ayer any order of the court authorizing the collection of the money. On demurrer the declaration was held sufficient. Cabell v. Cox, 27 Gratt. 182.
By Administrator of Assignee. — On general demurrer the declaration, in an action of debt by the administrator of the assignee of the obligee against the administrator of the obligor, was held to be essentially defective, because it did not aver that the defendant had not paid the assignor, before notice of assignment, nor the plaintiff’s intestate in his lifetime afterwards. Mitchell v. Thompson, 2 P. & H. 424.
Statute of Limitations Pleaded. — The plaintiff in an action of debt, if he wishes to take his case out of the statute of limitations by relying on a subsequent acknowledgment of the debt by the defendant within the period of limitation, must count on such subsequent acknowledgment in his declaration; it is otherwise in an action of assumpsit. Butcher v. Hixton, 4 Leigh 519.
Promissory Note — Presentment.—In an action of debt on a promissory note, brought by an indorsee against the maker, the declaration stated the note as one made negotiable at the Bank of Va. at Petersburg, and averred that the note was presented at the bank at maturity and protested for non-payment; the note offered in evidence, was made negotiable at the bank; there was no proof that it was presented at the bank for payment. The note was not made payable at any particular place, it was only made negotiable at the bank at Petersburg, and was not necessarily payable there. The averment of presentation at the bank is mere surplus-age and immaterial, and need not be proved. Barrett v. Wills, 4 Leigh 114.
Penal Bill — Demand.—In an action of debt on a penal bill payable on demand, the declaration contained no averment of a special demand. An obligation to pay money on demand is evidence of a present debt payable instanter, and the writ is a demand, which entitles the plaintiff to the penalty. Payne v. Britton, 6 Rand. 101.
Consideration — Vaiuel Received. — It is an unnecessary averment in the declaration of an action of debt in a writing for the payment of money, that there was any consideration, or that it was for value received. The plea is nil debet, which calls for proof of note, and allows evidence to be given that the consideration is bad or lacking. Crawford v. Daigh, 2 Va. Cas. 521; Peasley v. Boatwright, 2 Leigh 195. See Va. Code 1887, § 2852.
On Debt Due Testator. — In an action of debt brought by the surviving executor for a debt due to the testator in his lifetime, the declaration charged that the debt was not paid to the plaintiff, but did not charge also that it was not paid to the testator, nor that it was not paid to either of the co-executors. This was a fatal defect, and was not cured by verdict. Buckner v. Blair, 2 Munf. 336.
On Assigned Promissory Note. — A declaration in debt on an assigned promissory note, which did not state that the defendant had failed to pay the money to the drawee, as well as to the plaintiff, was held to be too defective to maintain the action. Norvell v. Hudgins, 4 Munf. 496.
Sheriff’s Bond. — In an action of debt on the bond of a sheriff, with collateral condition, it was held that where the declaration charged that he failed to pay the taxes on demand, instead of at the time appointed by law, that this was sufficient after verdict. Winslow v. Com., 2 H. & M. 459.
On Assigned Bond. — in an action of debt upon an assigned bond, the declaration did not aver that neither the defendant, nor her testator, in his lifetime, paid the debt to the obligee, or to either of the assignees of the said bond, but only averred that neither of them paid the same to the plaintiff. The declaration should state a failure to pay to the obligee, and each of the assignees, as well as to the plaintiff, and a failure to do so is too great a defect to permit the action to be maintained, and such defect is not cured by verdict. Braxton v. Lipscomb, 2 Munf. 282; Green v. Dulany, 2 Munf. 518; Nicholson v. Dixon, 5 Munf. 198.
■ And in a similar case although the partner, who did not sign the debt, put in a plea of payment, and verdict and judgment is given against him in the lower court, still this is too defective to support a judgment against him, in the absence of other averments binding him, and the j udgment was reversed. Garland v. Davidson, 3 Munf. 189.
On Bond of Partner for Firm. — In an action of debt against a partnership, on a bond signed by only one partner for the firm, the declaration charged that “W.” for “W. G.” bound himself, his heirs, executors and assigns to pay, etc. This was adjudged insufficient in law to maintain the action against the firm in the absence of other averments binding them. Shelton v. Pollock, 1 H. & M. 423.
5. The Damages. ,
Bond with Collateral Condition — Assessment of Damages — Penalty.—In an action' of debt upon a bond with a collateral condition, the jury may assess damages beyond those laid in the declaration, if the penalty be sufficient to cover them. Payne v. Ellzey, 2 Wash. 143.
Damages Omitted in Declaration. — The omission to lay damages in the declaration in an action of debt although in an action sounding in damages was cured after verdict by the statute of jeofails. Stephens v. White, 2 Wash. 203.
Recovery on Collateral Bond Limited to Breaches Assigned. — In an action of debt on a bond with collateral condition, the plaintiff cannot recover any costs or damages, which he did not demand in the assignment of breaches in the declaration. Woodson v. Johns, 3 Munf. 230.
Variance between Writ and Declaration — Interest-Protest Charges. — An action of debt was brought upon a protested negotiable note. The writ demanded the principal sum, but did not demand interest, nor the costs of protest. The declaration contained demands for the principal sum, together with interest and the protest charges. The demand for interest in the declaration, which is not claimed in the writ, is no objection, since by the statute in that case provided, the interest follows the principal as the shadow does the substance. It is error to claim charges of protest not claimed in the writ. Where judgment is by default this error may be taken advantage of. Hatcher v. Lewis, 4 Rand. 152.
B. THE PLEAS.
1. In General.
Wrong Plea — Amendment.—where the plea of payment was filed by the attorney, through inadvertence, and for want of information, to a declaration in debt on joint bond against the executors of one obligor, instead of the plea of discharge, which was *71proper (the death of one obligor on a joint bond, prior to the Act of 1786, discharged his executors), the plea was allowed to be amended, after trial and verdict for plaintiff. Richardson v. Johnson, 2 Call 527. See Va. Code 1887, § 2855.
Attachment before Notice. — in debt by the assignee of a bond, it is not a sufficient plea, that, before notice of the assignment, the effects of the assignor were attached in the defendant's hands, and a decree entered that he should pay the debt to the attaching creditor, etc. ; and that, accordingly, he had made such paymentit appearing by the pleadings, that the bond was assigned before the attachment was instituted, and suit brought upon it by the assignee before the payment made. Wilson v. Davisson, 5 Munf. 178.
Plea of Statute of Limitations — Acknowledgment of Debt. — in an action of debt upon a promissory note against principal and surety, the surety plead the statute of limitations, and to which the plaintiff replied genérally. It was held that proof of the acknowledgment of the debt by the principal, within live years next before the action was brought, did not sustain the issue on the part of the plaintiff. Butcher v. Hixton, 4 Leigh 519.
Demurrer to Plea. — An action of debt was brought on the official bond of a sheriff in the name of G-. successor of T., governor of Virginia, to whom the bond was given. A plea was filed that G. was not, and that M. was the successor of T. A demurrer was filed to the plea. The plea although filed to entrap, cannot be pronounced bad in substance on demurrer, for that merely decides whether the plea is a good one, not whether the defendant should be permitted to file it. Bennett v. Loyd, 6 Leigh 316.
Upon a demurrer to a plea, the court goes back to the first fault, and if plaintiff's declaration is defective, gives judgmentfor defendant on the demurrer, nor is defect cured by the defendant pleading oyer. Bennett v. Loyd, 6 Leigh 316.
Issuable Plea. — in an action of debt against an executor, the defendant pleaded that the testator in his lifetime was the guardian of an infant, that his account as guardian had been settled by the commissioners of court, which showed a large balance due to the ward, and that this was a debt of higher dignity than that claimed by the plaintiff. This was held not to be an issuable plea. Wyatt v. Woodlief, 1 Leigh 473.
Plea of Covenants Performed. — Where an action was brought on a bond, the condition of which was that the obligor should make a title to a tract of land, when thereunto lawfully required, and the defendant plead covenants performed, the plaintiff was not bound to prove on his part any demand of a deed. Pate v. Spotts, 6 Munf. 394.
Repleader Awarded — Not Prayed for. — An action of debt is brought against M as heir and devisee of his father, upon a bond entered into by the father for the payment of money. The defendant pleaded "nothing by descent.” and issue was joined. A re-pleader was awarded, though not asked for in lower court, because the issue only tried the right as to the descent, but not as to the devise. Baird v. Mattox, 1 Call 257.
2. Evidence under.
Parol Evidence under Plea of Payment. — This was an action of debt brought on a bond, to which the defendant filed a plea of payment. On the trial the defendant introduced a witness, who stated that he heard the plaintiff, before the institution of the suit, tell the defendant that $25 only of the bond remained unpaid. The plaintiff’s counsel moved to exclude this evidence from the jury on the ground that no such payment as that was stated in the account of payments filed with the plea. But as by the act of assembly, 1 Rev. Code 487, ch. 127, it was provided, that in an action of debt due by judgment, bond, bill or otherwise, the defendant shall have liberty, upon the trial thereof, to make all the discount he can against such debt; and upon proof thereof the same shall be allowed in court; it is competent under the plea of payment to give in evidence parol admissions of the plaintiff, that but a portion of the debt claimed was really due. Rice v. Annatt, 8 Gratt. 557.
Proof under Specific Plea in General Terms. — In an action of debt brought on a bond given for the price of a slave, a special plea under the act of 1831 is good, which avers in general terms, that the slave was unsound at the time of the sale, and that the plaintiff knew the fact and fraudulently concealed it from the defendant; and that upon discovering the fact the defendant offered to return the slave and demand a rescission of the contract, which was refused, laying damages to the whole amount of the price, or not laying any damages, and praying for judgment in bar of the action. If such a special plea avers in general terms the unsoundness of the slave, and then adds a specific unsoundness, the defendant may prove any unsoundness under this plea, and is not confined to the specific unsoundness named in the plea. Fleming v. Toler, 7 Gratt. 310.
Lost Bond — Copy Admissible in Evidence. — An action of debt was brought upon a bond, with profert, the defendant craved oyer, which was given, but the bond shown was a copy, and the defendant plead payment, by doing which he waived the necessity of producing the original, and a copy may be given in evidence at the trial, upon due proof of the loss or destruction of the original. Taylor v. Peyton, 1 Wash. 252.
3, In BAR.
Plea in Bar of Action on Bond with Collateral Con= dition. — in an action of debt on a bond with collateral condition the declaration was in the usual form. The defendant prayed oyer of the condition of the said bond which was as follows: “Whereas the obligor did lend to J..W. $2,500 oi the obligee’s money, and the said J. W. having failed, but before he failed he paid $500, and whereas the said obligor hath instituted a suit against said J, W. for the recovery of said money; now, if the said obligor shall pay the whole sum so lent, if it can be recovered from the said J. W. or, in case it cannot be wholly recovered, will lose the one-half of that sum which cannot be recovered, then the above obligation shall be void, otherwise to remain in full force and virtuea plea was filed stating “that he, the said obligor, could not recover of J. W. or his endorser the sum of money in the said condition mentioned, or any part thereof, and that he paid to the obligee one-half of the sum which could not be so recovered, and the further sum of five hundred dollars.” This was held a good and sufficient p]ea in bar to an action npon the bond, without any further averment that the said obligor has used due diligence in prosecuting the suit, and without stating what measures he had taken to recover the money, or who the endorser was. Cooke v. Graham, 5 Munf. 172.
Issue Refused — Refection of Pleas. — in an action of *72debt against an executor, judgment by default haring been regularly entered and confirmed, the defendant tendered four good pleas in bar, to which the plaintiff immediately put in replications tendering issues. The defendant refused to join in the issues, rejoin or demur. The court thereupon rejected the pleas of the defendant, and proceeded to judgment. Wyatt v. Woodlief, 1 Leigh 473.
Plea to Action on Injunction Bond. — This was an action of debt on an injunction bond in a penalty. The declaration stated that the injunction was dissolved whereby the action had accrued. A plea was filed, stating, “that the injunction was not dissolved unconditionally; but upon terms, that the plaintiff at law should execute a bond for securing the title to a tract of land,” but did not aver that such bond had not been given. This was a defective plea and should not have been received to set aside an office j udgment. Gray v. Campbell, 3 Munf. 251.
Conditions Performed. — In an action of debt upon a sheriff’s, official bond, the plea of conditions performed, properly pleaded, is an answer to the whole cause of action in the declaration mentioned, and controverts the plaintiff’s right to any recovery whatever. State v. Hays, 30 W. Va. 107, 3 S. E. Rep. 177.
Unchartered Banking Company. — To an action of debt on a note alleged to have been made and discounted by the plaintiffs in Virginia, but made payable at a bank out of the state, a plea that the plaintiffs are an unchartered banking company, issuing and circulating their own paper notes or bills as currency, contrary to law and public policy; and that they as a banking company discounted the said' note, contrary to law and public policy, sets up a good defense to the action. Hamtramck v. Selden, 12 Gratt. 28.
4. Nil Debet.
Plea of Nil Debet. — In an action of debt upon a negotiable note, the defence that the plaintiffs are not holders for value of the note, may be made under the plea of nil debet. Rant v. Miller, 17 Gratt. 47.
For a general discussion of what may be proved under the plea of nü debet, reference is made to 4 Min. Inst. (3rd Ed.) 770.
In the recent case of Richmond City & S. P. Ry. Co. v. Johnson, 90 Va. 775, 20 S. E. Rep. 148, it was held that in order to prove payments under the plea of nil debet, he must file with his plea such a descriptive account as is required by sec. 3298 of the Va. Code of 1887, citing 1 Bart. Law Pr. (2d Ed.) 492, 498.
Foreign Judgment — Nil Debet — Special Plea, — To an action of debt brought in Virginia upon a judgment entered in the District of Columbia, the defendants tendered a plea of nil debet, and a special plea, alleging that the said judgment was recovered on a bill of exchange given while in a state of intoxication for money won at gaming. The judgment of the court of the District of Columbia is a foreign judgment, the “full faith and credit” clause of the Constitution only applying to “States,” and the plea of nil debet is admissible, but the special plea should be rejected, as the defendant cannot bring into question the merits of the original judgment. Draper v. Gorman, 8 Leigh 628.
Improper Plea Set Aside. — An action of debt was brought in Virginia on a Marjdand judgment. The defendant pleaded no such record, on which issue was joined. He afterwards tendered a plea of nil debet, which was allowed, and issue was joined on it. At the next term as on general demurrer to the plea of nil debet, j udgment was entered for the plaintiff on both pleas. It was error to receive the improper plea of nil debet (Clarke v. Day, 2 Leigh 172), and the court might properly have corrected this by subsequently setting aside the issue and the plea. This was substantially done by entering a judgment as if there had been a demurrer. The proceedings were not reversed for the irregularity. Kemp v. Mundell, 9 Leigh 12.
Foreign Judgments — Plea of Nil Debet. — This was an action of debt brought in the state of Virginia on a judgment rendered in Kentucky. The Constitution and Acts of Congress of the United States have placed the judgments of the courts of other states, when sued on here, on the same ground and as having the same effect, as they would have if sued on in the state where they were obtained. The plea filed was nil debet, which assumes that the judgment is not conclusive evidence. Such judgment was affirmed on appeal to the Supreme Court of Kentucky, and was conclusive on the parties in that state. The plea was held bad. Clarke v. Day, 2 Leigh 172; Kemp v. Mundell, 9 Leigh 12.
Plea of Nil Debet — Apportionment of Rent. — In action of debt for rent, the defendant, on aplea of nil debet, may give in evidence any special circumstance showing that the rent ought to be apportioned. Newton v. Wilson, 3 H. & M. 470.
Accord and Satisfaction Hust Be Pleaded. — Several smaller promissory notes were given for a large one, and -suit was brought on the large one. The plea was nil debet. The smaller notes were held not to be a discharge, but at most an accord and satisfaction, which would have to be pleaded. It could not be admitted under the general issue. McGuire v. Gadsby, 3 Call 234.
5. Non Est Pactum.
Plea of Non Est Factum after Plea of Payment— Affidavit to Plea. — in an action of debt upon a single bill under seal, the defendant pleaded payment and the office judgment was set aside. On trial the defendant moved for leave to file the plea of non est factum, with affidavit annexed that said plea was true “to the best of the defendant’s knowledge and belief.” The lower court rejected the plea. The plea, being one which goes to the merits, should have been received, especially so, when it was not offered for the purpose of delay. An objection that the affidavit was not positive was not sustained. No-man can swear positively to legal inferences, and the words of the affidavit do-not render it defective Jackson v. Webster, 6 Munf. 462.
Non Est Factum — Execution—Fraud.—In an action of debt founded on a bond or other deed, the defendant may put in issue the execution of the instrument by pleading non est factum generally and in the common form. In a court of common law, fraud may be given in evidence to vacate a deed on the plea of non est factum, if such fraud relates to-the execution of the instrument; as the essential element of delivery. American, etc., Co. v. Burlack, 35 W. Va. 647, 14 S. E. Rep. 319.
. 6. PAYMENT.
Plea of Payment — Part of Debt Due. — When an action of debt was brought on a bond with a condition, which was made a part of the declaration by oyer, and that condition only showed that a part of the money secured was due at the time of the institution of the suit, the plea of payment put in by the defendant only extended to such sums, and not to those which afterwards became due. Thatcher v. Taylor, 3 Munf. 249.
Plea of Payment — Set-Off.—In an action*of debt-on *73a bond, the defendant plead, as a set-off, the obligation of the plaintiff assigned to him by a third person, and also put in the general plea of payment. The writing when produced proved not to be an obligation, but a promissory note executed by the plaintiff. This was held to be evidence under the second plea of payment, but not under the first. Anderson v. Bullock, 4 Munf. 442.
Plea of Payment — When General Issue. — The plea of payment is responsive to the negation of nonpayment in the declaration. The act of assembly, by allowing a general plea of payment in all cases, with a right to prove all anterior payments, makes it a general issue in this country. Henderson v. Southall, 4 Call 371.
Condition Performed Equivalent to Payment. — The plea of condition performed, to an action of debt for money, is equivalent to the plea of payment. Defendant was not allowed to object to errors in pleadings which are for his benefit. Hammitt v. Bullett, 1 Call 567.
Misjoinder of Issue — Cured by Statute off Jeofails. — In an action of debt on bond, the defendant files as his plea, this, “that he has well and truly paid the debts in the declaration mentioned, and the statute of limitations; and of this he puts himself upon the country, and the plaintiff likewise, and issue was joined.” The pleas of the statute of limitations and payment should hare concluded with a verification, and issue could not have been joined upon them by adding a similiter, but only after replication. This was a misjoinder of issue and improper, but was cured after verdict by the statute of jeofails. Simmons v. Trumbo, 9 W. Va. 358.
7. Off Frauix
Action at Law — Special Plea of Fraud. — The action of debt was brought on a specialty, and the defendant sought to avoid it hy a plea, which stated that the bond had been obtained by fraudulent misrepresentations made by the plaintiffs. The circumstances relied on did not relate to the execution, only to the consideration of the bond. A specialty cannot be avoided in a court of law on this ground. Wyche v. Macklin, 2 Rand. 426. Since 1831 this rule has been changed by statutory provision. See Va. Code 1887, § 3299; Code of W. Va. ch. 126, § 5.
Plea of Misrepresentation — Estoppel—Waiver.—in an action of debt on bond, the defendant plead that it was obtained by false representations and suggestions by tft e plaintiff, “a,s per preamble in the said bond.” The plaintiff joined issue as to the fact, and the jury found against him. If there had been any estoppel to such plea it was thereby waived, and judgment ought to have been for the defendant. Chew v. Moffett, 6 Munf. 120.
In Tomlinson v. Mason, 6 Rand. 169, it was held to be immaterial in a plea to an action of debt on a bond, that the bond was obtained by fraud and covin, without saying whether the fraud was in the consideration of the bond or in its execution.
C. THE REPLICATION.
Special Replication — Repleader.—A^ bond was given with condition to perform an award to be made by certain arbitrators. In an action of debt on this bond, the condition was made a part of the record hy over, and the defendant pleaded “conditions performed.” The plaintiff may set forth the award, and aver a breach of condition, by a special replication, not having done so in his declaration. But if he neglect to do this, and reply generally, the judgment oughtto be arrested, after a verdict in his favor. The proceedings subsequent to the plea should be set aside, and a repleader awarded* Green v. Bailey, 5 Munf. 246.
Replication Defective in Setting Forth Condition of Bond. — In an action of debt on a bond in a penalty, with a condition for the payment of a less sum by installments, upon certain prescribed conditions, the plaintiff in his declaration claimed the penalty, but made no mention of the conditions. The defendant pleaded payment. The plaintiff in his replication set forth the condition of the bond, and averred non-payment of the sum mentioned in the condition at the times therein specified. This replication was held bad on general demurrer. Mitchell v. Thompson, 2 P. & H. 424.
Replication to Plea of Feme Covert. — In an action of debt on bond, the defendant pleaded in bar that she was, at the time of executing the bond and yet remained, a feme covert. The replication of the plaintiff was, that the defendant’s husband had abjured the commonwealth and was not then or now a citizen thereof. To this replication a general demurrer was filed and the replication was held to be wholly defective. If it was intended that the common-law abjuration of the realm was to be relied upon, that never existed here. If it was intended that the expatriation of the husband under onr statute was to be relied upon, it should have been shown how he expatriated himself, by a recorded declaration by deed, or in open court and that he had departed from the commonwealth* Even this would not have been sufficient, without the further allegation that he resided abroad at the time of the execution of the bond by his wife. The replication was held defective. Branch v. Bowman, 2 Leigh 170.
Peremptory Judgment — When Rendered on Plea.— If in an action of debt against an heir, he pleads “no assets by descent, nor at the time the writ; issued, nor at any time since, except a tract of 107 acres of land ;” and issue is joined on the replication, that he had sufficient other lands by descent ; and the jury find for the plaintiff, peremptory judgment will be rendered thereon. Cohoons v. Purdie, 3 Call 431.
Defective Replication — Repleader Awarded. — In an action of debt against the executors of one obligor, on a bond given by the testator and one John Pat-tie, the defendant, without taking over, pleaded in bar, “that the said John Thornton was jointly bound with a certain John Pattie, and the said John Pattie survived him.” To this plea the replication was “that it is not expressed in the bond that the said John Thornton was jointly bound with the said John Pattie, as alleged in the plea, and if they were j ointly bound, that by Act of 1786 it is declared that the representative of one jointly bound with another, may be sued as well as the surviving obligor himself. ” The plea was held good, the replication faulty and a repleader awarded. Stevens v. Taliaferro, 1 Wash. 155.
Plea of Payment — General Replication. — An action of debt was brought against the defendant on a note, The defendant plead payment, to which plea a general replication was filed, and issue joined. At the trial the defendant moved for an amendment to set aside the proceedings subsequent to the replication, and proved that issue was joined by the clerk without his consent and against his wish. The general replication to the plea of payment did not constitute - an issue. The defendant should have been permitted to prove that the similiter entered was against his consent. The proceedings should have been cor*74rected by giving him a rule to take other measures to the replication. Nadenbousch v. McRea, Gilmer m
For statutory provisions regarding the similiter, see Va. Code 1887, §§ 3268, 3449 ; Code of W. Va., ch. 125, § 25; ch. 34, § 3.
V. VERDICT.
A. WHEN VALID.
Aggregate of Principal and Interest. — In an action of debt upon a bond, with a penalty, for the payment of money, the jury may make their verdict of the aggregate of principal and interest. The defendant will not be allowed to appeal for that cause, since that mode of finding the verdict was for his benefit. Smith v. Harmanson, 1 Wash. 6.
Verdict for Erroneous Sum — When Immaterial. — In an action of debt on a judgment for a certain sum, to be discharged by a lesser, when the declaration demands a wrong sum, a verdict which finds an erroneous sum, “that being the debt in the declaration mentioned,” is substantially good, the sum being surplusage, and the conclusion of the verdict being, of itself, sufficient to show the real sum demanded. Roane v. Drummond, 6 Rand. 182.
Above Amount Claimed in Declaration. — In an action of debt on a bond with a collateral condition, the penalty is that for which the plaintiff sues, and any sum given below that is within the sum declared for. The jury may assess damages beyond those laid in the declaration. Payne v. Ellzey, 2 Wash. 134; Johnstons v. Meriwether, 3 Call 523; Winslow v. Com., 2 H. & M. 459.
Against Part of Obligors. — In an action of debt on a bond against five obligors, the sixth was omitted ; it appeared from the declaration that the former were securities for him. It was not alleged that he had sealed the bond, and no plea in abatement having been filed, the court gave verdict for the plaintiff. The presumption was that the unnamed obligor was dead, although not so stated in the declaration, and the judgment will be sustained. Winslow v. Com., 2 H. & M. 459.
Sufficiently Certain. — A verdict and judgment for a debt claimed in the declaration with interest, subject to a credit for a specified sum, paid at a specified date, is certain enough. Barrett v. Wills, 4 Leigh 114, 26 Am. Dec. 315.
Plea of Fraud — Sufficient Verdict. — In an action of debt issue was joined on a plea that the bond which was sued upon was obtained by fraud. A verdict “for the defendant, because the jury believed the bond was obtained by fraudulent means” was held to be sufficiently positive and certain. Chew v. Moffett, 6 Munf. 120.
Bond for Tobacco with Pecuniary Penalty. — A executes a writing obligatory to B for the payment of tobacco, under a pecuniary penalty, with a condition annexed, that it shall be void if G shall pay the tobacco, or its value to A. In an action of debt brought on this writing the declaration assigns a breach of the condition, and the defendant pleads payment. The verdict and judgment ought to be for the penalty, to be discharged by payment, not of the tobacco with interest thereupon, but of damages, for breach of the condition. Overstreet v. Marshall, 1 H. & M. 381.
B. WHEN DEFECTIVE.
Verdict on “Fully Administered” — Insufficient.—In an ’ action of debt on bonds brought by the executor of the creditor against the administrator of the debtor, issues were joined on the pleas of payment and fully administered.. Verdict was given for the plaintiff on the first issue, and on the last, “that assets more than sufficient to pay the debt came to the defendant's hands tobe administered.” Gakb, J., reviewed the cases cited and said; “It seems clear to me, from the whole tenor of these decisions, and the reason on which they stand, that the verdict before us must be pronounced insufficient. All the cases decide substantially, I think, that it must appear from the verdict, that at the institution of the action, there were in the hands of the representative, assets not bound by superior claims, sufficient to discharge the debt due the plaintiff; or if not sufficient, that the amount of such assets must be found. Here it is found that assets more than enough to pay the debt came to the defendant’s hands; but whether he had them at the institution of this suit; or whether before he had not properly disbursed them, or whether if he still held them, they were not bound by prior judgments, does not appear. There is therefore, all that uncertainty and insufficiency, for which in the other cases, the verdicts were set aside; and I think this must share the same fate.” Sturdivant v. Raines, 1 Leigh 481.
Verdict against Administratrix Insufficient — Judgment de Bonis Testatoris. — An action of debt was brought against an administratrix on a bond of her intestate. The defendant plead fully administered. A verdict was given in general terms that the defendant had not fully administered, and judgment thereupon for the debt was demanded to be levied de bonis testatoris. The verdict was held insufficient to warrant the judgment. Brizendine v. Tisdale, 5 Leigh 81.
Against Survivor. — Where an action of debt was brought against two persons on a bond executed by both and it abated as to one by his death, a verdict which only found that the surviving defendant had not paid the debt, is bad in that it does not negative the payment of the money by the deceased defendant. Triplett v. Micou, 1 Rand. 269.
Defective Verdict on Plea of Payment. — An action of debt was brought against the appellant upon a bond of his testator. Issue was joined on the pleas of payment and fully administered, and the jury found “for the defendant, he having fully administered all the assets which came to his hands.” This verdict was held defective in not being responsive to the issue joined on the plea of payment, and the judgment will be reversed by the appellate court, although no objection was taken in thecourtbelow; and a venire facias denovo will be directed as to both thé issues. Brown V. Hendersons, 4 Munf. 492.
Defective Verdict on Plea of “No Assets.” — On the plea of “no assets” to an action of debt brought against the administrators of their intestate, a verdict which found that the administrator had in his hands assets belonging to the estate of his intestate, without saying of what amount, was held defective and anew trial directed. Eppes v. Smith, 4 Munf. 466.
Insufficient Verdict on Plea of Plene Administravit.— The defendant to an action of debt brought upon a bond given by the testator, pleaded a specialisms administravit, and that he hath not, nor had any goods except to a certain value, which were not sufficient to satisfy the judgments mentioned in the plea. To this special plea a replication was filed that the defendant hath, and had goods more than sufficient to satisfy the said judgments, whereof he could have satisfied the plaintiff. The verdict was “for the debt in the declaration mentioned.” This was in*75sufficient; the verdict should have found that the defendant had goods more than sufficient to satisfy the judgments, whereof he could have satisfied the plaintiff, or the value of the assets, if they were not sufficient. Booth v. Armstrong, 2 Wash. 301.
An action of debt was brought against an administrator on a penal bill, said to have been executed by the testator in his lifetime. Among other pleas the defendant filed the plea of fully administered. The jury found a verdict “that the writing obligatory in the declaration mentioned, is the deed of the defendant's intestate; that the debt in the declaration mentioned hath not been paid, and that assets sufficient hath come to the hands of the administrator to pay the same: that he hath not fully administered the said assets.” The court gave judgment for the amount of the penalty in the declaration mentioned. On appeal the court held that the verdict in this case was clearly insufficient in respect to the plea of fully administered. A verdict upon that plea should have ascertained the amount of the assets in the hands of the defendant at the commencement of the suit, and at the time of the plea pleaded, to enable the court to pronounce the proper judgment. It ought not only to have found the amount of assets in the hands of the defendants at the commencement of the suit or that they were sufficient to pay the plaintiff's demands; but also the amount in his hands at the time of pleading, or that they were sufficient to pay the plaintiff’s demands; since the defendant might have received or duly disbursed assets between the commencement of the action and the time of pleading. The verdict should also have found the time when the assets came to the defendant’s hands. For these reasons the judgment was reversed, the verdict set aside and a new trial awarded. Gardner v. Vidal, 6 Rand. 106.
VI. THE JUDGMENT.
A. WHEN SUFFICIENT.
Bond for Payment of Debt by Instalments. — A judgment to an action of debt on a bond, for the payment of a debt by instalments, should be, “for the debt in the declaration mentioned, to be discharged by the sum due at the time of the institution of the suit; reserving liberty to the plaintiff to resort to a scire facias to recover such other damages as might thereafter arise under the condition of the bond. Thatcher v. Taylor, 3 Munf. 219. See Code of Va. 1887, § 3394.
Judgment Beneficial to Defendant Will Not Be Reversed at His Instance. — A bond was given for making a title to a tract of land, and an action of debt was brought thereon. The defendant plead “covenants performed. ” Verdict and judgment were rendered for damages for non-performance, but said nothing of the penalty of the bond. Such judgment should not be reversed at the instance of the defendant. as such irregularity cannot be injurious to him, because the true ground of action appears by the declaration, and the satisfaction thereby demanded extending to the whole injury, the action can in no form be repeated. Pate v. Spotts. 6 Munf. 394.
Judgment on Bond Conditioned — Surplusage.—in an ,1 action of debt for rent, the verdict was for a certain sum, the debt in the declaration mentioned, and for a certain sum as damages. Judgment for the same to be discharged by the payment of a different sum. This latter sum is no part of the j judgment, but is merely surplusage and is to be considered as a release of the difference. Ross v. Gill, 1 Wash. 87.
Against an Administrator — Estoppel.—if a judgment be rendered against an administrator for a debt of his intestate, and after his death, an action of debt, suggesting a devastavit to have been committed by him in his lifetime, be brought against his administrator, such defendant is estopped by the judgment from pleading that no assets of the estate of the original intestate ever came to the hands of the administrator. Eppes v. Smith, 4 Munf. 466.
Joint Judgment — Where One Hade Default and Other Pleaded. — A joint promissory note was given by M and P. An action of debt was brought on this, and judgment by default was entered against M. P appeared and pleaded nil debet, and verdict was given against him. There should be given one an d the same j oint j u dgment against both. Peasley v. Boatwright, 2 Leigh 195.
On Note of Executor for Debt of Testator. — The executor of the intestate executed his note as executor for a debt of his testator. An action of debt was brought on this note, and he was declared against as executor. The count was in the debet and detinet, and the breach was laid in his failure to pay. Upon a judgment by default; Quaere, If it should be de bonis testatoris or de bonis propriis. If it was error to enter judgment de bonis propriis, it was a clerical error, which should be amended on motion, and was no ground for an appeal. Snead v. Coleman, 7 Gratt. 300, 56 Am. Dec. 112.
Judgment on Bond in Penalty and Condition in Same Sum. — The penalty and condition of a bond for the payment of money is in the same sum, and it is proper to treat it as a single bill. Proper judgment on such a bond in an action of debt is for the amount of the bond with interest from time of payment. Fleming v. Toler, 7 Gratt. 310.
Separate Judgments Separately Confessed. — The administratrix and other defendant gave separate confessions of judgment to an action of debt against them, where the suit had been revived against the administratrix. It was not error to enter separate judgments against each. Richardson v. Jones, 12 Gratt. 53.
Verdict for “Amount Named in Declaration” — Judg=> men! Including Interest Valid. — The verdict in an action of debt on a protested inland bill of exchange was simply for “the amount of the debt in the declaration mentioned,” which, as stated in the declaration, was “the sum of $1,102.60, with interest thereon from the 14th of October, 1890, until paid,” and there was judgment accordingly, with costs. § 2853 of the Va. Code provides that in a case of this sort judgment may be given “for the principal and charges of protest, with interest thereon from the date of such protest.” The legal effect of the verdict was a finding for the principal sum mentioned in the declaration, with interest, as therein claimed; so that the judgment is in conformity both with the verdict and the statute. Lake v. Tyree, 90 Va. 719, 19 S. E. Rep. 787.
It was held in Metcalfe v. Battaile, Gilmer 191, that a negotiable note as to the indorser, was not a note for the payment of money within the meaning of the Act of 1804, ch. 8, and that therefore neither interest, nor final judgment for the principal sum, could be given upon it in an action of debt without the intervention of a jury, as could have been done if it had come within that act, as was decided by the cases of Wallace v. Baker, 2 Munf. 334, and Baird v. Peter, 4 Munf. 76.
A judgment which has been entered upon nil dicit or non sum inforrnatus, to an action of debt upon a *76bill penal, which omits to mention interest, ought not to be reversed because it was entered as in conformity with the bill penal, and was to be discharged by the payment of principal, roith such interest and costs. Harper v. Smith; 6 Munf. 389.
Judgment Confessed for Interest on a Declaration Which Omitted It Is Valid. — The declaration in debt against joint obligors on a single bill was in the usual form, but said nothing about interest. A common order was entered and confirmed against the obligors and their appearance bail. On motion of the appearance bail at the next term this was set aside and he pleaded payment; buthe subsequently waived his plea and acknowledged the debt, with interest. Judgment was properly entered against the principal, as well as the bail. Wallace v. Baker, 2 Munf. 334. Decision was based on Act of 1805, and the case was distinguished from Brooke v. Gordon, 2 Call 212. Approved in Baird v. Peter, 4 Munf. 76.
On Injunction Bond with Condition. — The declaration in an action of debt brought upon an injunction bond demanded the aggregate of all the injunction bonds named, where there were several counts, and there were apparently several bonds. The bond was for $940, to be discharged by the payment of the damages assessed by the jury, the judgment was entered up in the old form for $940, the penalty of the bond to be discharged by the payment of $920.76, the damages assessed by the jury. The Code of W. Va., ch. 181, § 17, says that in such suits “judgmentshallbe enteredup for what is so ascertained to be due by the jury.” If this statute was regarded as requiring, not simply permitting, the judgment to be entered in this new form, the defendant would not be prejudiced by the old form, the judgment would not be reversed for such error, if any. Bank v. Fleshman, 22 W. Va. 317.
Penalty in Current Money, Condition in Sterling.— The penalty of a bond was in current money, with condition to pay so much sterling money. After verdict for the plaintiff in an action of debt upon the bond, the judgment should be for the current money mentioned in the penal part of the bond, to be discharged by the sterling money in the condition. Terrell v. Ladd, 2 Wash. 150.
Against a Convict — Process Served before Sentence. —The process to institute an action of debt was served upon the defendant on the day on which he was convicted of a felony, but before sentence was pronounced. The court under these circumstances fairly acquired jurisdiction of the cause andparties, which continued notwithstanding the subsequent disability of the defendant. The utmost that could have been exacted of the plaintiff was a suspension of all proceedings until the disability was removed, or the appointment of a committee to defend the suit for the convict. The plaintiff did not pursue either course, but prosecuted the suit to a judgment. If this be conceded to be an error, it was not such an error as would invalidate the judgment-for the reason that jurisdiction having been once properly acquired over the person and the subject matter of controversy, no error in its exercise or irregularity in 'the proceedings can make the judgment void. The authority to decide being once shown, it can never be divested by being improperly or erroneously employed. The fact that the judgment was by default does not affect this principle, for whether the judgmentbe the act of the court or be entered up by the clerk under the statute, the effect is the same. In either case ibis the act of law and until reversed by the court which rendered it or by a superior tribunal, it imports absolute-verity, and is as effectual and binding as if pronounced upon a trial of the merits. The judgment cannot be collaterally assailed in a court of equity or elsewhere, and is valid until reversed by the court which pronounced it or by a superior tribunal. Neale v. Utz, 75 Va. 480.
Judgment “When Assets.” — Where an executor has confessed judgment in favor of the creditors of his intestate, “when assets” or “if assets," and an action of debt has been brought thereon, the executor pleaded plene administraron. The issue was found for the executor, but the plaintiff may take another judgment “when assets.” Braxton v. Wood, 4 Gratt. 25.
Judgment Quando Acclderint — Statute of Limitations. —When a plaintiff in an action against an executor or administrator takes judgment of assets guando acciderint, it is well settled that he cannot at any future time proceed to execution on the judgment, without first suing out a scire facias to state that assets have come to hand, and to warn the defendant, should he be able to allege anything against such execution. These judgments are not barred by the statute, until the lapse of that period after assets'have come in the hands of the executor or administrator, and not from the date of the judgment. Smith v. Charlton, 7 Gratt. 425.
B. WHEN INSUFFICIENT.
Sheriff’s Bond. — In an action of debt upon a sheriff’s bond in the name of the commonwealth', for the benefit of a person aggrieved by the misconduct of the sheriff, the judgment should be entered for the penalty, to be discharged by the payment of the-damages assessed and costs, “and such other damages as may be hereafter assessed upon suing out a scire facias, and assigning new breaches, by the said C or any other person or persons injured.” It was error in the judgment, in attaching the recovery to C as to future injuries, excluding all others. Bibb v. Cauthorne, 1 Wash. 91.
Bond Subject to Credit — Writ of Inqüiry. — A judgment ought not to be entered in an action of debt on a bond for a sum of money, “subject to a credit for a hogshead of tobacco,” without ascertaining its value. The amount of such credit should, in the first place, be ascertained by a writ of inquiry, and judgment should be entered for the balance. Early v. Moore, 4 Munf. 262.
If the jury find a verdict for the amount mentioned in the declaration in an action of debt, and the plaintiff, in court, release so much thereof as is equal to the credits endorsed on the bond, judgment ought not to be rendered, to be discharged by the payment of the sum stated in the condition of the bond, subj ect to a deduction of the credits endorsed. Such deduction ought to be made, and judgment rendered for the real balance due. Grays v. Hines, 4 Munf. 437.
On Pleadings — No Bar. — A judgment for the defendant to an action of debt on a bond, which was given upon the pleadings, does not go to the foundation of the action, and is no bar to the plaintiff’s bringing another action for the same cause. Lane v. Harrison, 6 Munf. 573.
Judgment upon All the Pleadings'Erroneous, If They Do Not Go to Foundation of Action. — In an action of debt on the bond of a deputy sheriff, with a collateral condition, the defendant filed, among others, the plea of conditions performed. The plaintiff by replication to this plea charged the breach defectively, but fully avoided by other replications the *77other pleas of the defendant, which went to the foundation of the action, to which replication demurrers were improperly filed. A judgment entered for the defendant generally upon all the pleadings was erroneous, as it barred any future action on the bond. Tt should be limited to the replication of the plaintiff to the plea of conditions performed. Lane v. Harrison, 6 Munf. 573.
Judgment on Declaration Blank as to Sums, etc., Erroneous. — The assignee of the obligee brought suit against the obligor in a bond. The writ was in debt, and the declaration was also in debt, but was blank as to the sum declared for, the date of the bond, the assignment to the plaintiff, and as to the damage. A judgment entered thereon was held erroneous and reversed in Blane v. Sansum, 2 pall 495.
Office Judgment without Writ of Enquiry. — In an action of debt on a decree for money, a conditional judgment was entered in the office, without awarding a writ of enquiry of damages, and the judgment not being set aside, became final at the next term, and execution was sued out on the judgment. At the ensuing term the judgment was set aside as irregularly entered, and defendants were given leave to plead. It was held error to enter judgment in the office without awarding an enquiry of damages, that this was a clerical error, which was properly corrected at a subsequent term. Shelton v. Welsh, 7 Leigh 175.
Judgment for Interest Not Demanded in Declaration Invalid. — If the plaintiff does not demand interest in his declaration in debt on a promissory note, and the defendant waives his plea of payment, judgment cannot be given for the interest on the note, not claimed in the declaration. Brooke v. Gordon, 2 Call 212.
On Debt Due in Sterling Money. — On an action of debt brought upon a protested bill of exchange, drawn for sterling money, if the declaration is for the current money •calm of the sum for which the bill was drawn, the judgment, being for the sum so demanded, will be reversed on .a writ of error. The suit should have been for the sterling money. Scott v. Call, 1 Wash. 115.
A sterling debt may be sued for without laying the value in current money; if it be laid it is merely surplusage, and will not vitiate; but in such case, the damages should he laid in sterling money; the verdict and judgment should be for sterling money, and the court Is to fix the rate of exchange. Skipwith v. Baird, 2 Wash. 165.
Judgment Exceeds Penalty — Defendant Elects. — The judgment is always entered for the penalty, in an action of debt on a bond with collateral condition, to be discharged by the principal and interest, and if that exceed the penally, the defendant has his election, and may satisfy it by paying the penalty. Atwell v. Towles, 1. Munf. 175.
No Breach Assigned on Administration Bond. — In a suit on an administration bond, if no breach of the condition of the bond be stated in "the declaration, or by an assignment of breaches in some other part of the record, a judgment upon it is erroneous, and must be reversed. Ward v. Fairfax, 4 Munf. 494. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481571/ | Daniel, J.
By the eleventh section of chapter one hundred and twenty-two of the Code of 1849, it is declared that a will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. And as the will, on the construction of which the right to the land in controversy depends, was admitted to probat in 1852, some question might have arisen as *131to whether we should apply to the will the rules prevailing at its date, (1842,) or the statutory rule just cited, were it not for the provisions of the 22d section of the same chapter (122) declaring that the preceding sections of the- chapter shall not extend to any will made before the act should be in force, but that the validity and effect of such will shall be determined by the laws in force on the day before this chapter should take effect in like manner as if those laws, so far as they relate to the subject, were therein enacted in place of such sections.
The English rule, that as to lands the testator speaks at the date of his will, and as to personals, at his death, had not been subjected here, prior to the adoption, of the Code, to any legislative change other than that made by the act of 1785. That act directs, “that every person, &c. shall have power, &c. to devise all the estate, &c. which he hath, or at the time of his death shall have, of, in or to lands, &c.” In the case of Allen v. Harrison, 3 Call 289, the extent of the change, in the old rule, contemplated by that act, was the subject of a very full examination; and the court were unanimous in the opinion that the act only gave a power to devise after acquired lands, leaving it to the discretion of the testator to dispose of them or not: That in order to produce that effect, there should be something indicating an intention to exercise the power; and that where there was nothing in the language of the will to show that the testator evidently contemplated a disposition of his after acquired lands, a devise of his lands should be held to refer to the lands owned by him at the date of his will. The same interpretation of the act must have also prevailed in the case of Bagwell v. Elliott, 2 Rand. 190 ; and was fully recognized by the Supreme court of the United States in the case of Smith v. Edrington, 8 Cranch’s R. 66.
*132It is true that in several of our sister states, where statutes have been enacted similar in their provisions to our act of 1785, a strong disposition has been manifested so to construe those statutes as to assimilate much more closely the rule in question to the rule which applies to wills of personals. Thus, in the case of Loveren v. Lamprey, 2 Foster’s R. 434, (New Hamp.) where the words of the bequest on which the case turned were, “ I give and bequeath to my beloved wife Ruth Loveren all the residue and remainder of my estate wherever it may be found, to her, and her heirs and assigns, &c.” it was held that it was the intention of the testator to pass to his wife all his property owned by him at the time of his decease, after paying his debts, &c., and that the premises in controversy, purchased by the testator after the making of his will, passed by it. So in the case of Cushing v. Aylwyn, 12 Metc. R. 169, like views prevailed, and the court announced the broad proposition that where a will purports to dispose of the testator’s whole estate or property, the intention is to dispose of all the estate or property of which the testator may be the owner at the time of his death; and that such intent would be inferred unless something in the will should be opposed to such an inference. And so again a similar decision was made in the case of Willis v. Watson, 4 Scam. R. 64. In the state of Kentucky, however, where our act of 1785 has been adopted, the interpretation of the act given in the case of Allen v. Harrison has been closely adhered to. Warner’s ex’ors v. Swearingen & wife, 6 Dana’s R. 196 ; Ross v. Ross, 12 B. Monr. R. 437. In the first of these cases, the reasons for the adoption of this interpretation of the act are fully and clearly stated, and the main argument in favor of the competing construction successfully met. That argument was, that the English doctrine declaring that as to land or other real or immovable *133estate, a testator speaks at the date of his will, was founded mainly on the terms of the statute of wills of Henry 8, empowering all persons having legal titles to lands held in free and common socage, to dispose of such lands by will, and all persons having such titles to lands held in chivalry, to dispose of two-thirds thereof by will, &c.; and that as now by the act of 1785 a testator has a power to dispose not only of the' lands which he hath, but also those which at his death he shall have, there was no longer any sufficient legal reason left for intending that in a general devise of his lands a testator speaks only of the lands which he has at the date of his will. The chief justice of (Robertson) in delivering his opinion Warner's ex’ors v. Swearingen & wife, fully meets this view, by showing, from the English cases, that “ the civil law rule of making a testator speak at his death and not at the date of his will, not only was never applied to immovable property, but never would have been applied to land or any interest therein, even had a prospective freehold, as well as leasehold interest therein, been always devisable in England; for it seems (he proceeds) not to have been applied to general bequests of chattel interests in land, even though a testator might always in England have effectually bequeathed such interest afterward to be acquired by him. And the principal reasons of this exception from the rule of the civil law are, first, that such an arbitrary rule of construction frequently operates inconsistently with a testator’s intentions; and secondly, that as even a chattel interest in land is not so mutable or fugitive, either in itself or in the proprietorship of it, as that kind of property which is perishable, and in fact movable, neither policy nor convenience required that a general bequest of it should be construed as speaking at the testator’s death, when, in most cases, he intended to speak only when he published his will.” And he came *134to the conclusion that under the operation of the act of 1785 the true doctrine was, “ As to a. general devise of lands, like that of England respecting the like testamentary dispositions of leasehold interests in land: that is, that prima facie the testator contemplated only such interests as he owned when he published his will. But that if he manifested an intention to devise whatever interests he might own at his death, then and then only his will should be understood as speaking at his death as to land as well as any other property; because then and only then such is made to appear to have been, in fact, Ms will, and here he has a legal right to effectuate such a will.” And the court accordingly held that a devise by the testator of “ the residue of his estate” did not pass lands acquired by him subsequently to the date of his will.
Though it be conceded, therefore, (as I believe it must,) that in a majority of the states whose statutes of wills are, in the particular in question, like our act of 1785, the decisions have gone far towards abolishing the old English rule, and though now, by statute, in England, (1 Viet. ch. 26,) as well as here, a devise of lands, like a bequest of personals, is made to speak as if executed immediately before the death of the testator ; Yet as the authority of Allen v. Harrison has not, (so far as I have seen,) been ever questioned, but, on the contrary, stands supported by the decisions of a sister state, where our act of 1785 has been, in terms, adopted, I feel no hesitation in coming to the conclusion that the will in this case must be interpreted under the rule which holds the testator, no contrary intention appearing, as speaking in respect to his lands at the date of the will.
Applying to the will this test, I have been unable tq discover, in its terms, any thing to raise a serious doubt as to the propriety of the interpretation which the Circuit court has given to it. The words “ every *135article of property belonging to me,” were used, no doubt, as suggested by the counsel of the appellees, to carry any article of personal property which the testator supposed might, perchance, be held not to be embraced in the description immediately preceding, of “household and kitchen furniture, stocks, plantation tools and implements.” And the words “ the balance of my estate,” if held as intended to embrace lands at all, must, under the requirements of the rule by which the construction of the will is governed, be referred to the balance of the testator’s lands which he owned at the date of his will.
It does not seem to me that the fact that the testator, subsequently to the date of his will, erased the name of Henry E. Scott, and substituted that of John E. Mason, as his executor, is of any value in the controversy. The date of this alteration is not fixed by the verdict; it is only found to be “ subsequent to the original writing of the will.” And as the verdict finds that the testator was on terms of intimacy with Scott up to the time of his (Scott’s) death, which occurred in February 1847, the probability is that the change was made soon after Scott’s death, and before either the adoption of the Code or the purchase of the land, which occurred in March 1849.
I think that the judgment ought to be affirmed.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481574/ | Lee, J.
As the lessor of the plaintiff exactly fills the description given of the devisee in remainder after the expiration of the life estate devised to George D. *163Baylor in the half of the New Market estate embracing the premises now in controversy, by the will of his father John Baylor 2d, being the oldest son George D. Baylor and having survived his father, and as he brought his suit in a short time (less than three years) after the death of his father, he must recover unless the title which he was to take upon the death of George D. Baylor was intercepted by the decree in the case of the D unlops against the representatives of John Baylor 2d, and was by virtue of that decree and the sale and conveyance made under it, transferred to and vested in the purchaser. Thus the decision of this cause must depend upon the operation and effect to be assigned to this decree in its bearing upon the estate in remainder devised to the lessor of the plaintiff, and this is resolved into the enquiry how far and to what extent he although no party was bound by it. That it was legitimate and proper evidence cannot be questioned, for a judgment or decree is always evidence of the fact that such judgment or decree was rendered and of the legal consequences of that fact, whoever were the parties to the suit in which it was rendered; and where a title is derived under a decree, it is necessary to establish its existence in order to show the legal validity of the deed made under its authority; and the admissibility of the record for that purpose as a fact introductory to a link in the chain of the title and constituting a part of the muniments of the party’s estate is a matter of familiar recognition and constant practice. 1 Stark. Ev. 187, et seq.; 1 Greenl. Ev. § 538; Barr v. Gratz's heirs, 4 Wheat. R. 213. But although admissible in evidence, how far this decree serves to defeat the plaintiff’s title, is a matter of different consideration, and it is insisted on his part that he ought not to be held bound by it to any extent or for any purpose whatever, because he was no party to the cause in which it was pronounced and claims not under *164any party but under the devise in the will of his grand father John Baylor 2d, by whom an estate for life was devised to his father with remainder to him in fee.
The general rule certainly is that none are bound by a judgment or decree except those who were parties or standing in privity with others who were. But there are exceptions to the rule of equal authority with the rule itself.
It is clear that the limitation in the will of John Baylor 2d to the eldest son of George D. Baylor, lawfully begotten, who should be living at the death of his father was neither a vested remainder nor an executory devise but must be construed to be a contingent remainder. At the time the will was made, George D. Baylor had no son, and the limitation was of a freehold for life with remainder to a person not in esse. Such a limitation is a contingent remainder. Keyes on Future Interests § 222, p. 104; 1 Lom. Dig. 411; Fearne on Cont. Eem. 9. Nor was its character changed by the subsequent birth of the lessor of the plaintiff in 1816, some eight years after the death of the testator. Whether a condition upon which a devise is made to depend is to be regarded as a precedent or subsequent condition must be determined by the ajq^&rent intent of the testator. Here it wras plainly the intention that the remainderman should fill all the conditions of the devise before he could take. He must be the eldest son of George, lawfully begotten, and he must survive his father. Until all these things concurred, no estate was to vest. The language is “ I devise and give the same in fee simple and absolutely to his eldest son lawfully begotten then living.” Whenever the remainderman took he took an absolute, unconditional, unqualified fee simple estate. It could not be an estate vested upon his birth but liable to be defeated by his subsequent death during the lifetime of his father. If that had occurred *165no interest would have descended to his heirs, otherwise the ulterior limitation over to John Baylor 3d for life with remainder in fee to his oldest son would been defeated. For there can be no such limitation over after a fee except by way of alternative or con-1 J J ditional limitation. And the distinction is. between the cases where a fee is given to the first taker and those in which he has but a freehold. Where by a will a fee is given and afterwards an estate in fee is limited to some other person, the latter will be construed to be an executory devise provided it be limited to take effect within the time prescribed by the rules of law : but where a freehold only is given to the first taker and afterwards a fee is limited upon a contingency the subsequent devise is in the nature of a remainder and being capable of being supported by the precedent freehold estate as a contingent remainder it shall not be deemed an executory devise. For where a limitation may take effect as a contingent remainder it shall never be construed to be an executory devise. Here the estate limited to the first taker was an estate for life and the remainder over was therefore not to be construed an executory devise, but a contingent remainder which retained that character until the death of the tenant for life and which conferred upon the remainderman, no interest but a mere possibility. And these views will I think be found sufficiently supported by authority. See Keyes, § 82, p. 48 ; 1 Lom. Dig. 417; Fearne on Rem. 394; Plunket v. Holmes, 1 Sid. R. 47, 1 Lev. 11; Doe ex dem. Planner et ux. v. Scudamore, 2 Bos. & Pul. 288; Doe ex dem. Mussell v. Morgan, 3 T. R. 763; Purefoy v. Rogers, 2 Saund. R. 380; Carter v. Barnadiston, 1 P. Wms. 505; Luddington v. Kime, 1 Ld. Raym. 203; 3 Lom. Dig. 281; Fearne 373; Taylor and Biddall's Case, 2 Mod. R. 289.
Assuming then that the lessor of the plaintiff took *166a mere contingent or possible interest under the will of his grand father which would only become vested the death of the father, we are to enquire how far this interest was bound by the decree in the chansu^’ an<^ whether the purchaser under it took only the interest of the tenant for life or the whole estate discharged of the limitations by way of remainder.
It would certainly be very unreasonable and unjust that a party having a charge upon an estate affecting the whole fee should be delayed or embarrassed in enforcing it by reasons of limitations by way of remainder to persons whom it might be impossible or improper to make parties to the cause. To obviate the difficulty in such cases the doctrine of virtual representation has been introduced, according to which certain parties before the court are regarded as representing those coming after them with contingent interests, who therefore it is not required should be made parties. Accordingly it is well settled that it is not necessary that remaindermen after the first estate of inheritance should be made parties: and where real estate is in controversy which is subject to an entail it is sufficient to make the first tenant in tail in esse in whom an estate of inheritance is vested a party with those claiming prior interests without making those parties who may claim in reversion or remainder after such estate of inheritance. And a decree against such tenant in tail will bind those in reversion or remainder although by the failure of all the previous estates, the estates in remainder or reversion might afterwards become vacatged. Reynoldson v. Perkins, Ambler’s R. 564; Lloyd v. Johnes, 9 Ves. R. 37, 56; Cockburn v. Thompson, 16 Ves. R. 321, 326; Hopkins v. Hopkins, 1 Atk. R. 581, 590; Giffard v. Hort, 1 Scho. & Lef. 386; Finch v. Finch, 1 Ves. jr. R. 534; Mit. Pl. 140, 141; Cholmondeley v. Clinton, 2 Jac. & Walk. 133. But *167the courts have not stopped here; for under certain circumstances, the first tenant for life has been regarded as representing the entire fee, and the decree rendered against him been held binding upon those coming in after him in remainder. In Giffard v. Hort, ubi sup. Lord Redesdale says, “ where all the parties are brought before the court that can be brought before it and the court acts on the property according to the rights that appear, without fraud, its decision must of necessity be final and conclusive. It has been repeatedly determined that if there be tenant for life remainder to his first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remaindermen are barred.” And in the same case, this learned judge remarked that “courts of equity have determined on grounds of high expediency that it is sufficient to bring before the court the first tenant in tail in being, and if there be no tenant in tail in being, the first person entitled to the inheritance, and if no such person, then the tenant for life.” In Leonard v. Lord Sussex, 2 Vern. R. 527, there was a tenant for life of a trust remainder to his sons. The tenant for life before he had a son born brings a bill against the trustees and an account is decreed which is afterwards taken : Held that the account should stand and be binding upon the sons. In Allen v. Papworth, 1 Ves. sen. 163, there was a bill by husband and wife and an account taken. Lord Hardwicke said the account should be held binding on any contingent remainder-man when his title should afterwards vest nor should he open it unless fraud or errors are shown therein. He said it “ often happens on settlements where there is tenant for life with limitations in remainder, upon a bill for an account where none but tenant for life is in being, a child afterwards coming in esse shall only have liberty to surcharge and falsify if no fraud.” In this case it appears that in point of fact the son was in *168being at the commencement of the proceeding and there appears to be a mistake in the report which as-that at that time no other person was entitled. See note of editor and Supplement, p. 92. The case of Finch v. Finch, 2 Ves. sen. 491, was a bill by tenants for life for the execution of the trust of an act of parliament and the will of Lord Nottingham; and one of the questions was whom it was necessary for the plaintiff to bring before the court. Lord Hardwicke said “it is admitted to be necessary to bring the first person entitled to the remainder «and inheritance if such is in being. It is true if there is none such in whom the remainder of the inheritance is vested in being (as if none of the sons had issue male,) then it is impossible to say the creditors are to remain unpaid and the trust not to be executed until a son is born. If there is no first son in being the court must take the facts as they stand. It would be a very good decree and no son born afterwards could dispute it unless he could show fraud collusion or misbehaviour in the performance of these trusts: otherwise he would be bound by it.” It will be observed that in this case the tenant for life was plaintiff and the remainderman who it was said should be brought before the court was one who had a vested and not a mere contingent remainder. So a bill by tenant for life with remainder to his unborn sons in tail, for partition, has been maintained and the decree held binding on the sons when in esse: and the vice chancellor said the court frequently decreed partition where the tenant for life was defendant: that the manner in which the parties were arranged could make no difference and therefore that in this case the partition might very well be carried into effect. Gaskell v. Gaskell, 6 Sim. R. 643, 9 Cond. Eng. Ch. R. 448.
Now when the original, amended and supplemental bills in this case were filed, there was no son of *169George D. Baylor in esse, the lessor of the plaintiff, who was the oldest son, not having been born till August 1816; it was therefore sufficient, according to the rule to make George D. Baylor the tenant for life, defendant, and the decree against him would bind all ° contingent remaindermen coming in after him. And the only question is whether upon the birth of the lessor of the plaintiff pending the suit it was necessary in order to bind him that he should have been made a party by an amended or supplemental bill. I think not. No estate vested in him upon his birth and none could vest unless he fulfilled also the condition of surviving his father. Until then he could have no title to the inheritance, but a mere contingent interest or possibility that he would take on the death of his father, by reason of his outliving him. The only vested estate was that of the tenant for life, his father, and he was the proper party to bring before the court as representing the whole estate and all those who are to come in after him by way of contingent remainder. Those who might be entitled to future uncertain and contingent interests it was neither necessary nor proper to make parties although they might be in life. This is the doctrine asserted'in Pelham v. Gregory, 1 Eden’s R. 518; S. C. 3 Bro. P. C. 204. Lord Northington speaking of the defendants Lord Vane and Lord Darlington, said “Now the rights of these two defendants in the condition in which this lease is at present, are legal rights and yet being contingent and future, they are not attended till they come into possession with a legal remedy. And I have no apprehension that any person can have a right to call another into this court to make him contest here by anticipation a future legal right: I have as little conception that this court when such a right is brought hither has any jurisdiction to take cognizance of it.” *1701 Eden’s R. 520. This -case was regarded by Lord Redesdale as a decisive authority and he expressed the opinion that many cases might be found where bills had been dismissed upon this ground. And he accordingly held upon a similar principle that a remainderman could not be held to litigate a title which might never be beneficial to him. Devonsher v. Newenham, 2 Sch. & Lef. 197. If it was not necessary to call in the contingent l'emainderman in those cases, still less would it be so where, as here, he was not born till after the suit was commenced.
In the excellent treatise of Mr. Calvert on Parties to Suits in Equity, the general principle of representation established by the cases is thus expressed : “In respect of the first estate of inheritance and of all interests depending upon it, it is sufficient to bring before the court the person entitled to that first estate: and if there be no such person then the tenant for life.” Calvert, p. 52. It is stated in terms very similar or to the same effect by other learned authors. Story Eq. Pl. § 145, 792; Coop. Eq. Pl. 36, 77 to 83. Mr. Calvert however suggests that there should be a qualification as to the tenant for life and that except under very particular circumstances, the tenant for life who should be regarded as representing the whole estate must be one whose child if he have one, will become entitled to the inheritance. The idea is that there would be thus afforded a guaranty for a proper defense according to the dictum in Dayrell v. Champness, 1 Eq. Cas. Ab. 400, that the tenant for life is to take care of the inheritance for his children. He admits however there is no direct authority for the suggestion though he thinks it is countenanced by expressions to be found in several of the cases. Calvert on Parties, p. 52, 53, 192. The condition required by this suggestion is however fully met in this case as *171the lessor of the plaintiff who would take the remainder in fee if he survived his father is the son of the tenant for life who was made defendant.
Upon the merits of the chancery case I shall remark very briefly.
I think the debt claimed was sufficiently established by the testimony of Pendleton,, and though it might have been barred by the statute of limitations in an action upon the account at law, yet I conceive that the amount for which the decree was rendered was not barred at the death of John Baylor 1st in 1772, and that by his will a charge was created upon the lands devised to his three sons John 2d, George and Robert for the payment of his debts in the proportions named in the will: and this charge would prevent the statute from running against the proceeds of the sale of the land upon the principles of Fergus’ ex’ors v. Gore, 1 Sch. & Lef. 107; Burke v. Jones, 2 Ves. & Beame 275 ; Ault v. Goodrich, 4 Russ. R. 430, 3 Cond. Eng. Ch. R. 740; Kane v. Bloodgood, 7 John. Ch. R. 90, 129. That there was such a charge seems to be very clear. Both parties in this action claim title from John Baylor 1st as the common source. The devisees under his will took the estates devised to them upon the terms of the will which expressly required that John should pay one-half of the debts not otherwise satisfied and George and Robert should pay the other half. By accepting the devises, the devisees became personally liable in respect of the subjects devised to them, respectively, to their shares of the debts and the creditors were under no necessity to look to the general estate of John Baylor 1st before asserting their claims against the devisees and the subjects devised. John Baylor 2d who took the New Market estate was in Europe at the date of the will and at the testator’s death in 1772. When he returned to Virginia does not distinctly appear, but he states in *172his answer that he went back to Europe in 1775 so Pr°bably returned from his first visit shortly his father’s death : and there is no reason to suPPose that the profits of the property during the interval were sufficient to pay the debts or that they J J were paid otherwise. Nor was the bond given by Armistead a discharge of the debt. It purports to be the bond of John Baylor as well as of Armistead and never having been executed by the former it may be questioned whether it was binding even on Armistead upon the principles of King v. Smith, 2 Leigh 157, and Hicks v. Goode, 12 Leigh 479, 490. But however this may be, in the absence of proof that it was intended at the time to discharge the original debt, it ought not to be deemed to have that effect. I refer to the cases of Sale v. Dishman’s ex'ors, 3 Leigh 548, and Weaver v. Tapscott, 9 Leigh 424, the principles of which will apply to the question here. That the decree was for three-fourths of the debt instead of the moiety only charged on the estate of John Baylor 2d by his father’s will constitutes no objection. John Baylor 2d was the executor of his brother George and doubtless gave bond as such, and having received assets, he should have paid George’s fourth part. Failing to do this, this fourth was a debt from his estate and was charged upon his real estate (if no otherwise) by his executorial bond.
But with regard to these and the other supposed errors in the proceedings it is sufficient to say that they cannot be examined into when the decree is offered in evidence in a court of law. And so with regard to the charge of collusion. If there was any improper arrangement between those parties to subject the property to a debt with which it was not chargeable in whole or in part, or if any wrong were done in throwing the whole burden upon that part of the land held by Geoi'ge D. Baylor, the remedy is not *173to be sought in the exclusion of the decree which was the basis of the defendant’s title. All these are matters purely of equitable cognizance with which court of law has no concern. To undertake to reverse the proceedings would be to usurp the province of the court of chancery, and to do what even that court would not do in this collateral way. For that court would not without proper proceedings to present the subject directly, disregard this decree or reject it as evidence. So long as it remains unreversed it must have the force and eifect of an adjudication upon the entire estate and must be considered to devest the title out of the defendant and those claiming in remainder after him. Although it is a decree in chancery and not a judgment at law, yet our courts of chancery being courts of record, their decrees may be the basis of title in a court of law, the same as a judgment of recovery in a real action. And the deed of the marshal made in conformity to its decree operates to transfer the entire title in fee simple to the purchaser and must so stand and be accepted as long as the decree on which it rests remains in force. If there be errors to the prejudice of the remainderman for which the decree is liable to be reversed he may, it would seem, make himself a party to the original suit by filing a supplemental bill to have the benefit of the proceedings for the purpose of appealing. 3 Dan. Ch. P. 1604; Giffard v. Hort, ubi sup.; Osborne v. Usher, 6 Bro. P. C. 20; Lloyd v. Johnes, 9 Ves. R. 37, 55 ; Calvert on Parties 193; Sto. Eq. PI. § 144. Whether however an appeal would avail the party in this case, or whether he can maintain a bill to impeach the decree for fraud or whether he can have contribution or a new partition are questions not arising in this case and upon which I mean to express no opinion. All that I mean to say is that as the case now stands, the doctrine of equitable representation by the father, te*174nant for life, of Ms sons claiming a contingent re-binder in fee, must apply; and that although the might afterwards if not hindered have become a vested estate, yet that the remainderman is still bound by the decree and must so remain as long j , ° as it continues m force and unreversed.
I have not thought it necessary to examine the analogous case of a recovery at law in a real action and its effect in defeating subsequent estates in remainder: nor to consider how far that effect would be avoided by showing that the recovery was by default or collusion under the provisions of our act taken from the statute of Westm. 2. The court of law must give to this decree the same force and effect which it would have in the court of equity when brought incidentally to its consideration in another suit. In the latter it must be regarded as binding upon all those coming in by way of contingent remainder after the tenant for life, and it must therefore be regarded as binding upon the lessor of the plaintiff in this action.
I am of opinion to affirm the j udgment.
The other judges concurred in the opinion of XíEE, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481575/ | Daniel, J.
The appellees Millar and Humphreys insist, respectively, in their several answers, that the bond on which the suit is founded is not binding on the securities because of faults apparent on its face. They do not, however, (either of them,) point to the particular feature or features of the bond in which the supposed faults are to be found; and the Circuit court simply responds to this ground of their defense by declaring the bond null and void. We are thus left to conjecture the reasons on which the objections to the validity of the bond were rested and sustained.
The act in force at the time of the execution of the bond, (the act of 1819,) requires that every guardian shall give bond to the justices, with sufficient security, conditioned “ for the faithful execution of his office.” And it will be seen that the condition of the bond in question varies from that required by the act in two particulars: Instead of requiring simply “the faithful execution of his office,” it requires the guardian to pay and deliver to his wards all such estate as now is or *178hereafter shall appear .to he due to them, when and as soon as they shall attain to lawful age or when-thereto required by the justices of the said court; and also further requires, that the guardian shall keep harmless the justices from all trouble and damages that shall or may arise about the said estate. And it is in' one or both of these departures from the terms of the act that the defects, if any, in the bond are supposed to reside. It must be conceded that these departures involve variances not only in form, but also to some extent in substance, from the bond which the law directs to be given; the first clause in the condition stopping short of the full requirement of the act, and the last superadding a new and independent condition, which the act does not mention. It is insisted, however, by the counsel for the appellant, that all question as to the force of these defects on the validity of the instrument, ought to be regarded here as closed by the decision of this court in the case of Call v. Ruffin, 1 Call 333, in which a judgment rendered on a bond exactly like this was affirmed, and by the fact that the bond here has strictly pursued the form prescribed in the books of forms which have been and still are usually consulted by the justices and clerks as guides in taking such bonds.
The decision in Call v. Ruffin does not seem to me to be entitled to all the weight which is claimed for it as an authority applicable to this case. The bond in that case (as will be séen from the statement of Judge Pendleton in delivering the opinion of the court) was dated in 1779, at which period the act of 1748 was still in force. And by said last mentioned act the direction to the -courts in respect to the bonds of guardians, was that they should “ take good security of all guardians by them appointed for the estates of the orphans to them respectively committed.” Hen. St. eh. 4, § 4, p. 4§0. The first clause of the con*179dition of the bond, therefore, in that case, was almost in exact conformity with the very words of the act under which it was taken.
Still, as the justices, most probably not adverting to the alteration in the condition of the bond first required in the act of 1785 and since followed in the act of 1819, have continued to use the old form, a declaration of the invalidity of bonds on the score of such defects as are alleged against the one under consideration, could not fail to be productive of most serious evils. And even if I entertained the opinion that a free and untrammeled consideration of the question as an open one, would probably result in a conclusion' unfavorable to the validity of such bonds, I would, in view of the consequences likely to ensue from such a decision, feel strongly inclined, if not indeed constrained to defer to the usage.
I am, however, satisfied that a reference to the authorities will result in showing that the defects in the bond under consideration do not affect its efficacy to bind the parties, to the extent of their undertaking.
The effect on the validity of the bond of a public officer, of superadding a condition not required in the act directing the bond to be taken, is very fully considered by Judge Story in delivering the opinion of the Supreme court of the United States in the case of United States v. Bradley, 10 Peters’ R. 343. The English cases are there reviewed, and the doctrine is deduced from them, as well as from previous decisions of the Supreme court, that there is no solid distinction in cases of this sort between bonds and other deeds containing conditions, covenants or grants not malum in se but illegal at the common law, and those containing conditions, covenants or grants illegal by the express prohibition of statutes. In each case the bonds or other deeds are void as to the conditions, covenants or grants that are illegal, and are good as *180to all others which are legal and unexceptionable in their purport. The only exception is where the statute has not confined its prohibitions to the illegal conditions, covenants or grants, but has expressly or by necessary implication avoided the whole instrument to all intents and purposes. The judge proceeded further to declare, that inasmuch as the act merely prescribed the form, and purport of the bond to be taken, and did not declare that all other bonds not taken in the prescribed form should be utterly void, it would be a mischievous interpretation of the act to hold that under such circumstances it was the intendment of the act that the bond should be void. And that it was a sufficient compliance with the policy of the act, and in consonance with the dictates of the common law and of common sense, to hold the bond void, as to any condition imposed beyond what the law required, and good, so far as it was in conformity to the act.
The cases of Central Bank v. Kendrack, Dudley (Geo. R.) 67; Speck v. The Commonwealth, 3 Watts & Serj. 324; Commonwealth for &c. v. Pearce, 7 Monr. R. 317; Walker v. Chapman, 22 Alab. R. 116, are all to the same effect. See also 2 Rob. Pr. 35, 36.
Even, therefore, if the condition in respect to indemnifying the justices imposed upon the guardian some new and onerous duty, wholly foreign to the nature of his office, we should be well justified in refusing to “ call in aid a distinct condition which might be illegal to vitiate that which is clearly legal.” Collins v. Gwynne, 20 Eng. C. L. R. 189.
That the want of conformity, in the first clause of the condition, to the terms of the act does not vitiate the bond, would seem to be still more obvious. It would seem to be absurd to hold the parties not responsible for a failure of the guardian to perform one of his duties, and that the main duty of his office, simply because the condition of the bond, falling *181short of the comprehensive language of the act, has failed to stipulate in terms for the performance of all the duties of his office. It is enough that the condition is coextensive in its stipulations with the breach or breaches alleged.
The suggestion of insufficiency in the bond because of the failure in the condition to recite the appointment of Wright as guardian, is fully met by the decision in Call v. Ruffin, before cited. The same objection to the bond was there taken; and indeed that was the only objection to the sufficiency of the bond, to which the attention of the court was in that case specially directed in the assignment of errors. The objection was, as has been seen, of no avail. And no ground is laid in subsequent legislation on the subject, from which to infer the necessity of such a recital now.
I do not see on what ground any doubt can be raised as to the jurisdiction of the Circuit court. The bill calls for an account of the guardianship; and if the Circuit court had not been of the opinion that the bond was null and void, and consequently, that there was no foundation for relief against the surviving surety and the representatives of the sureties that are dead, I apprehend it would have found no obstacle, arising out of the nonresidence of the guardian, to prevent its taking jurisdiction of the cause, as well as to him as to the other defendants. It is true, that in Call v. Ruffin it was held that the ascertainment, by previous suit against the guardian, of the demand against him, was not in all cases essential (as it was in a suit upon an executor’s bond) to the maintenance of a suit at law on the bond; but that case has never been understood by the courts as settling that the right so to proceed at law on the bond was in exclusion of the jurisdiction of chancery to hold the guardian to an account, and his securities with him, to the *182payment of any balance found due to his ward. If the guardian in this case was within the jurisdiction of the court, neither he or his sureties could be heard to object that the proceeding ought to have been by suit at law instead of by bill in equity. His absence does not oust the court of chancery of its jurisdiction. His sureties or their representatives are within the jurisdiction of the court, and no reason is perceived why the suit may not proceed, as in other cases where some of the defendants are within and others without the jurisdiction of the court. His absence may be the occasion of inconvenience and trouble in making up the account, but it presents no legal bar to the relief sought.
It seems to me that the decree ought to be reversed, and the cause remanded for further proceedings in accordance with the principles herein declared.
Moncure and Samuels, Js. concurred in the opinion of Daniel, J.
Lee, J. concurred in the opinion, except that he was not disposed to give as much weight to the practice as to the forms of the bonds as was attached to it in the opinion.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481577/ | Moncure, J.
The tract of land called Broomfield, and not the personal estate of John Daniel, was the primary fund for the payment of the debt of five thousand dollars due to the president and masters or professors of William and Mary college, and secured by deed of trust on the land. When land is sold subject to a mortgage as part of the consideration money, the grantee, as between himself and the grantor, is bound to pay, and is liable to an action on the part of the grantor for breach of contract in not paying the *207debt; but the grantee does not become personally liable to the mortgagee without some promise made to llim; and even a promise made to him, does not always change the primary liability from the mortgaged land to the personal estate of the grantee. It must be made with intention to have that effect. For the authorities on this subject, see 1 Leading Cases in Equity 415-440, 65 Law Libr. 432-456. Though the land in question was conveyed by the devisees of Judge Daniel to John Daniel, with covenant of general warranty, it was in effect conveyed subject to the incumbrance of the deed of trust; the debt secured by which was part of the consideration money. The latter undertook with the former, and was bound to them, to discharge the incumbrance; but he had no communication, and made no contract for that purpose with the creditor.
At the death of John Daniel, his widow the appellant Mary Ann Daniel, had a right of dower in the said tract of land subject to the said deed of trust; in other words, in the equity of redemption. Heth v. Cocke & wife, 1 Rand. 344. The land being the primary fund for the payment of the debt secured by the deed of trust, she had no right to have it paid out of the personal estate, even if that had not been, as it was, required for the payment of his other debts, to which it was wholly inadequate. She had a clear right to redeem the land and disengage it from the incumbrance, in order to make her own claim beneficial or available. 2 Story’s Eq. Jur. § 1023. She was entitled to go into a court of equity to have the land sold, the incumbrance discharged, and her right of dower in the surplus secured to her. The creditor was unwilling to wait longer for the debt, and a sale of the land for its payment was necessary. The trustee in the deed might have sold it without any decree for the purpose. He might have sold the *208whole tract, as the deed provided for a sale of the whole; and in that case the surplus would have been subject to the rights of the widow and heirs to be adjusted and secured by the decree of a court of equity. The trustee was in declining health, and probably was not able to execute the trust. He died pending the suit, and shortly after it was brought. The creditor might have come into a court of equity in consequence of the death of the trustee ,or his inability to act, and had the land sold, the debt paid, and the surplus disposed of, as before mentioned, under a decree of the court. Or the widow and heirs or any or either of them might have brought a suit for the same purpose. It was not material by which of these parties the suit was brought, so that it was brought for that purpose, and the necessary parties were made.
The suit brought by the appellant Mary Ann Daniel was substantially, I think, a suit of that kind. Her bill set forth all the necessary facts, and made all proper parties. She expressed her fears, from information received, that the president and masters or professors of William and Mary college were unwilling longer to continue the loan, which under the deed they had a right to recall at their pleasure. And she prayed, in effect, that if they were unwilling to do so, the land should be sold with a clear title to the purchaser, and out of the proceeds of sale, after paying the expenses thereof, the debt of five thousand dollars with any interest which might be then due thereon should be paid, and that the surplus should be invested in the purchase of such of the slaves of her husband (some of whom were represented as of peculiar value) as would likely be most profitable to her and her children, to be held by them subject to the laws of descent which are applicable to real estate. If this had been the whole frame of the bill, there could have been no *209objection to it in form or substance. I see no impropriety in the prayer that the residue of the proceeds of sale of the land after paying off the incumbrance should be invested in the purchase of slaves to be held as real estate. Though the court could not have converted land into slaves in such a suit merely because the interest of the widow and heirs required it; yet having properly converted the land into money for the purpose of discharging the incumbrance, it might properly invest the surplus in any subject which the interest of the widow and heirs might require, provided the subject retained the character of realty. At all events, it could not be contended that a prayer for such an investment would invalidate the sale of the land.
But the bill prays for other and alternative relief, which it is supposed rendered the sale null and void. It prays for a sale of the land subject to the incumbrance, if the president and masters or professors of William and Mary college and the executor of Judge Daniel were willing to continue the loan. There would seem to be little substantial difference between a sale of the land and payment of the debt out of the proceeds, and a sale of the land subject to the payment of the debt. In either case the amount of the debt would, in effect, be a part of the price of the land. In. the one case, it would be paid immediately; in the other, it would be assumed by the purchaser and paid by him afterwards. The chief difference would seem to consist in the accommodation which the latter mode would afford to the purchaser, and the enhancement of the sale which it would probably occasion. In either mode, the widow and heirs would realize the value of the equity of redemption, to be disposed of for their benefit and according to their respective rights. But let it be conceded that in this *210suit there could properly have been no sale of the land subject to the incumbrance; and that the prayer for such a sale was an improper prayer. Would its insertion in the bill affect the sale ? I think not. At most it would be mere surplusage, there being enough in the bill to sustain the propriety of the decree which was made. The president and masters or professors of William and Mary college and the executor of Judge Daniel were unwilling to continue the loan. This rendered the prayer for a sale of the land subject to the incumbrance ineffectual; and made it necessary to proceed on the alternative prayer for a sale of the land and payment of the incumbrance out of the proceeds. The decree was such a one as might well have been made if the bill had been properly framed, and had contained no superfluous allegation or prayer. And the sale was made according to the decree. It is the business of a purchaser at a judicial sale to see that all the persons who are necessary to convey the title are before the court, and that the sale is made according to the decree. But he “ will not be affected by error in the decree, such as not giving an infant a day to show cause, in cases in which a day ought to be given; or decreeing a sale of lands to satisfy judgment debts without an account of personal estate.” 2 Daniel’s Ch. Pr. 1456; Bennett v. Hamill, 2 Sch. & Lef. 566; Lloyd v. Johnes, 9 Ves. R. 37. A fortiori he will not be affected by any imperfection in the frame of the bill, if it contain sufficient matter to show the propriety of the decree. No more of the estate was sold in this case than was proper for the purpose of paying off the incumbrance: And that portion of it was sold which the convenience of the owners required. This is shown by the fact, that after the sale was set aside the Circuit court decreed a resale of the very same portion for the purpose of refunding to the purchaser *211the amount of the incumbrance which had been discharged out of the purchase money paid by him. But if more of the estate had been sold than was necessary to discharge the incumbrance, the purchaser could make no objection to it, “ the decree being a sufficient security to him, as it cannot appear but that it was right to sell the whole.” 1 Sugd. on Vend. 68. (In fact, the deed of trust in this case provided for a sale of the whole.) Nor is he answerable for any disposition which the court may make of the purchase money. Brown v. Wallace, 4 Gill & John. 479. Nor for any error which the court may afterwards commit in decreeing a sale of the residue of the land. According to these views there was no defect in the title of the purchaser under the decree in this case.
But if there had been such defect I am of opinion that it was not incurable; and that it might, and ought to have been cured by a decree of confirmation in one or both of the other suits which were brought for that purpose. The highest bidder at a judicial sale is not considered as the purchaser until the report of sale is confirmed. Until then, according to the English practice, he has no right to resell at a profit, except for the benefit of the owner of the estate. He is not liable to any loss by fire or otherwise, which may happen to the estate. Nor is he entitled to the benefit of any material appreciation of the estate by the accidental falling in of lives or by other means. Heywood v. Covington's heirs, 4 Leigh 373; Taylor v. Cooper, 10 Leigh 317. As the chief aim of the court is to obtain as great a price for the estate as possible, it is in the habit, under certain regulations, of opening the biddings. 1 Sugd. on Vend. 84. It is unnecessary to enquire how far the English practice in these respects has been departed from in Virginia. Our courts certainly exercise a large discretion in refusing to con*212firm a report of sale, and in ordering a resale of property sold under a decree. They will not confirm a report of sale and compel a purchaser to complete his purchase when there is any defect of title of which he had no knowledge when the sale was made. Nor will they confirm it when the directions of the decree in regard to the sale have not been pursued, if either party object to such confirmation. Accordingly, in Talley &c. v. Starke's adm'r, 6 Gratt. 339, in which the land was not sold on the premises as dii’ected by the decree, and the confirmation of the report was opposed by two of the purchasers on that ground; this court, for that and other reasons, revei'sed the decree of confirmation; saying that inasmuch as the purchasers could not have enforced their contracts, if resisted by the parties in the cause, they ought not to be compelled to perfect them. If therefore there was any defect in the title which the purchaser could acquire under the decree in this case, the coiu-t on his motion would have refused to confirm the report of sale, and discharged him from his purchase.
'But after confirmation of a report of sale, without any objection on the part of the purchaser, his rights and obligations are very different. His inchoate contract is then perfected, and the court has a right to compel him to complete his purchase. He has still a right, according to the English practice, to have an order to enquire whether a good title can be made to him. But he may waive that enquiry; and if he pay the purchase money and enter into possession of the property, he will generally be considei'ed as having waived the enquiry and accepted the title. 1 Sugd. on Vend. 73. In Virginia it would seem that the proper time for making objections to the title, and for having an enquiry, if one is desired, is before the confirmation of the report. Threlkelds v. Campbell, 2 Gratt. 198; *213Young’s adm’r v. McClung, 9 Gratt. 336. There are certainly some defects to which objection may be made by a purchaser even after confirmation, here as well as in England: such, for example, as a defect arising from a want of jurisdiction, or want of parties, which would prevent a purchaser from getting the title intended to be sold and conveyed to him. But there is this difference between such an objection made before and after confirmation; that in the former case, if the objection be well founded, the purchaser will be discharged peremptorily; whereas, in the latter, he will be discharged only if the defect be incurable, or be not cured in a reasonable time. A complete contract having, in the latter case, been made between the court and the purchaser, the court has the same right which any other vendor has to cure defects and perfect the title, provided it be done in a reasonable time, so as to occasion no injury to the purchaser. On a reference as to title in a suit for specific performance the enquiry generally is, Whether the vendor can, not whether he could make a title at the time of entering into the agreement ? If a good title can be shown at any time before the master’s report, and even after the report, if the vendor can satisfy the court that he can make a good title by clearing up the objections reported by the master, the court will generally make a decree in his favor. See 2 Daniel’s Ch. Pr. 1195, and notes; Seton v. Slade, 3 Leading Cases in Equity 392, 72 Law Libr. 14. “Where (says Lord Eldon) the master’s report is that the vendor getting in a term or getting administration, &c. will have a title, the court will put him under terms to procure that speedily.” Coffin v. Cooper, 14 Ves. R. 205. In which case it was held that the purchaser could not insist on being discharged from the contract, the vendor having pro- ■ cured a good title by means of an act of parliament, *214although, upwards of a month after the master’s report. It is true that in a case where there was error in the decree under which the estate was sold the purchaser was discharged, upon motion, from his purchase, although the parties were proceeding to rectify it: Lord Eldon, who decided the case, saying that he would not extend the rule which the court had adopted, of compelling a purchaser to take the estate when a title is not made till after the contract, to any case to which it had not already been applied. Lechmere v. Brasier, 2 Jac. & Walk. 287. I have no doubt of the correctness of the decision of that case, in which it seems a good title could not have been made until an infant heir became of age. But I cannot see why the same rule which applies to ordinary cases, should not apply to a judicial sale in this respect. The court considers itself to have greater power over the contract of sale when it is made under a decree, than when it is made between party and party. 2 Daniel’s Ch. Pr. 1465. And it may therefore exercise at least as much discretion in affording parties an opportunity of perfecting the title in the former as in the latter case. In the subsequent case of Chamberlain v. Lee, 10 Sim. R. 444, 16 Eng. Ch. R. 445, the case of Lechmere v. Brasier was not considered as making a judicial sale an exception to the general rule; but it being discovered after the sale of an estate under a decree, and after the confirmation of the report of sale, that a small portion of the estate was the property of another person, the court would not discharge the purchaser from his contract, without giving the vendor an opportunity of acquiring a title to that portion. In the case of Cralle v. Meem, 8 Gratt. 496, land in which infants were interested was sold under a decree prematurely made, and the report of sale was confirmed: it was held that although *215it was competent for the court, the proceedings being interlocutory, to set them aside in the further progress of the cause, upon its appearing that they were prejudicial to the interests of the infants; yet, on the other hand, it appearing to be beneficial to them, there could be no good reason for disturbing them in behalf of any other party. This court was of opinion that the sale should be established or set aside, according as the Circuit court should consider it to be advantageous to the infant heirs. I can see little or no difference, in principle, between that case and this. There, as here, infants were interested in the land decreed to be sold, and the report of sale was confirmed before any objection was made by the purchaser. There, as here, the purchaser contended that he was not bound because the infants were not bound. But the court in that case held, as I think it ought in this, that as the ground of objection to the title might be removed by a further decree of the court, the sale should be established and the purchaser compelled to complete his purchase if the interest of the infants required it.
Whatever defect or irregularity there may have been in the proceedings in this case, it is not pretended that there was any fraud or unfairness on the part of those by whom or for whose benefit they were conducted. They lona file believed that the proceedings were all right and legal, and that a good title could and would be conveyed to the purchaser. This gives them a strong claim on the consideration of the court in the exercise of its discretion to compel the purchaser to complete his purchase. On the other hand, the purchaser, while it cannot be said that he has been guilty of any bad faith or unfairness, has certainly no just claim on the court to interpose in his favor and discharge him from his purchase. He did not file his *216petition until aftei’ the sale had been confirmed, the possession of the land delivered to him, the greater part of the purchase money paid by him, the amount so paid applied to the discharge of the incumbrance, and otherwise according to the direction of the court, and the land released from the lien of the deed of trust; nor until nine months after the sale. The excuse assigned in his petition for not filing it sooner, was that he had no knowledge of the proceedings in the cause until within a few days past. Though he admits that when he saw the advertisement of the sale in the newspapei's and spoke of becoming a bidder, he heard it suggested that the proceedings had in the case were perhaps not exactly regular, but says the suggestion made no impression on his mind, and supposing that all things had been rightly done in the cause, he attended the sale and became a bidder. Notwithstanding the admonition he had thus early received, he took no step, either before or after the sale, until a few days before the filing of his petition, to inform himself of the correctness of the proceedings, or to obtain the advice of counsel in regard to the title; but chose to rely on a conversation, which he says he sought and had before he paid one cent of the money, with" one of the commissioners, who was the lawyer that conducted all the proceedings; and who, he says, in that conversation assured him that all things had been rightly done in the suit, and that a good title would therein be made to him. This assurance being fairly given, it is not perceived in what manner it can help the purchaser. Under these circumstances, he had no right to demand an absolute discharge from his purchase, even if the title was defective ; but the utmost extent of the relief to which he was entitled was to be discharged if the defect could not, or in a reasonable time should not, be cured. The defect, if any, *217was curable; and in a reasonable time could have been cured, by a decree in one or both of the suits brought for that purpose, as soon as convenient after the petition was filed. There was no unnecessary delay in the prosecution of those suits, which was not occasioned by the petitioner himself. He was the only reluctant party; against him alone the suits had to be regularly matured. All the other parties were anxious to confirm the sale. And at the first term after a guardian was appointed to the infants, his suit might have been matured, and a decree of confirmation made therein. Even as it was, both suits were soon matured for a decree, and on the 9th of March 1853 all three of the causes came on to be heard together, when the purchaser was discharged from his purchase. Instead of that, the court should have confirmed the sale, and held him to his purchase. For it then clearly appeared from the proceedings in each and all of the suits, that the interest of all parties concerned required a confirmation of the sale, except perhaps the purchaser, who certainly had no right to complain of it. In a suit brought by a guardian for the sale of the real estate of his ward, under chap. 128 of the Code, p. 535, the court may confirm a sale already made, if the interest of the ward require it. Garland v. Loving, 1 Rand. 396. In that case it was held to be competent for the court to confirm a sale already made, provided the purchaser was willing to abide thereby. And it was argued by the counsel for the appellee in this case, that the court cannot confirm such a sale without the consent of the purchaser. Even if such consent be necessary in ordinary cases, (as to which I express no opinion,) it certainly cannot be in this case. All that the purchaser here can require is a good title; and he cannot prevent the court from giving it to him by withholding his consent to a decree of confirma*218tion. See also Hughes & wife v. Johnston, 12 Gratt. 479.
I am therefore of opinion, that so much of the decrees appealed from as discharged the appellee from his purchase, and directed the purchase money paid by him, or any part of it, to be refunded, and the land purchased by him.to be resold, is erroneous, and ought to be reversed; that the sale made to him ought to be established and confirmed, and he compelled to complete his purchase; and that the cause should be remanded, to be further proceeded in according to the principles before expressed.
Lee and Samuels, Js. concurred in the opinion of Moiícure, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481579/ | Daniel, J.
delivered the opinion of the court:
It seems to the court, that as by the terms of the *233deed of marriage settlement of the 9th of November 1831, it is made the duty of the trustee Dortch, in case of the death of Mrs. McDaniel occurring before that of the appellant, to pay and deliver over all of the property in said deed embraced, according to her last will and testament; and as by her last will and testament she has bequeathed to the appellant the negro man Asa and all the other property to which she was entitled, it was competent for the appellant, upon the state of facts alleged in his bill, to have brought a new and independent suit in equity for the jrarpose of recovering the said negro or his value, and so much of his hires as had not been received by Mrs. McDaniel in her lifetime, making the ap2>ellee Baskervill, the trustee Dortch, and the legal representative of Mrs. McDaniel, all parties to his bill.
It seems, however, further to the court, that as Mrs. McDaniel had in her lifetime instituted her suit in equity against the appellee and the said trustee, for the j)m’P0Se of recovering said slave or his value, and of having a settlement of the account of the trustee, it was not necessary for the appellant, in order to obtain the relief sought by him, to bring a suit wholly independent of the suit so commenced by Mrs. McDaniel; but that it was competent for him, in a bill setting forth his case and the previous ju'oceediugs had at the instance of Mrs. McDaniel, to ask to have the benefit of said proceedings.
And it seems farther to the court, that the prayer in the bill of the appellant in respect to the proceedings had in Mrs. McDaniel’s suit, though informal, is still a substantial prayer to be allowed to have the benefit of said proceedings.
The court is therefore of opinion, that the appellant has in his bill and amendment thereto stated a case entitling him to the aid of a court of equity, and that *234the decree of the Circuit court sustaining the demurrer and dismissing the bill is erroneous.
And it seems also to the court, that it would be premature in this court to express any opinion as to whether the appellant is entitled to have the benefit of the proceedings in Mrs. McDaniel’s suit, absolutely, under the rules which ordinarily govern in cases of bills simply supplemental, -or on such terms as are usually imposed in cases of original bills in the nature of supplemental bills. In either aspect, however, it seems to the court proper that the appellant should make the trustee Dortch a party to his bill.
The court doth therefore adjudge, order and decree, that the decree of the Circuit court be reversed with costs, &c. And the cause is remanded, with liberty to the appellant to amend his bill and make new parties ; and for further proceedings in accordance with the principles above declared.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481580/ | Moncure, J.
This case was first submitted to the court on a preliminary question, the decision of which in favor of the appellants, it was supposed, would render it unnecessary to consider the case upon the merits. That question was raised by the third assignment of error, which is, that “ it was irregular to hear the cause upon the commissioner’s report until thirty days after the same had been returned to the court.” Code, p. 659, ch. 175, § 9. In Gray v. Dickenson's adm'rs, 4 Gratt. 87, referred to in the petition, this court, on a similar ground, reversed with costs the decree of the court below, without considering the other errors assigned. We would have to take the same course in this case, if it were like that in all respects: but it is not. In that case the decree appealed from was final. The defendant had not appeared and ahtswered; and there was nothing in the record from which it could be inferred that the cause *238was heard by consent, or that the objection to acting upon the report returned to the court so recently before the cause was heard, had been waived. The only remedy for the correction of the error was by an appeal. In this case, the decree appealed from is interlocutory : and though the bill was taken for confessed as to some of the parties, who cannot be considered as having consented to the hearing of the cause within thirty days after the return of the commissioner’s report, or as having waived any objection thereto; yet they had an opportunity of having the error corrected by motion to the Circuit court; and if there had been no other error in the proceedings, ought to have pursued that course, rather than subject the appellees to the expense and delay of an appeal. The right of appeal from an interlocutory order or decree was not given for the correction of such an error as this; but is limited to “ a decree or order dissolving an injunction or requiring money to 'be paid, or the possession or title of property to be changed, or adjudicating the principles of the causeand was intended to test the merits of the decree or order. If that be right upon the merits, and the only apparent error in the proceedings consists in the fact that the decree or order was prematurely made, the petition for an appeal therefrom may be rejected upon the ground that it is most proper that the case “should be proceeded in further in the court below, before an appeal is allowed therein.” In other words, the petitioner should have the error corrected in the court below if he can. If his application for relief to that court be overruled, he will then be entitled to come to this court and have the decree or order reversed with costs. But if he come to this court without having first unsuccessfully applied for relief to the court below, though he will be entitled to have the decree or order reversed on account of that error; yet the question of costs will depend upon *239the question, whether the decree or order he correct in principle, upon the case as it stands; and if it be so, the appellee will recover costs as the party substantially prevailing. This is the principle of the decision of this court in Cunningham v. Patteson, 3 Rand. 66; in which the court said that the appellant not having made his objections in the court below, “shall not lie by and take advantage of them in the appellate court, to throw on the opposite party the costs of an appeal, which the law never intended to allow for the correction of such defects.”
The court having announced that, whatever might be its opinion upon the preliminary question submitted,' it would be necessary to consider the question, whether the decree be correct in principle; the case was then fully submitted for its decision.
In considering the case upon its merits, the first question which presents itself is, Whether the appellees are entitled to any relief in the case as it now stands ? In other words, Whether a court of equity has any jurisdiction of the case?
The appellees have obtained no judgments upon their claims. They are creditors at large of Joseph IT. Armstrong. They do not come into court under chap. 179, § 2, p. 677 of the Code, “to avoid a gift, conveyance, assignment or transfer of, or charge upon, the estate” of their debtor. They do not claim to be beneficiaries under, or privies to, the trust created for their debtor by the will of his father. Nor do they set up any claim to a lien on the trust subject under any contract with the trustee, or even with their debtor. They claim only as general creditors of Joseph N. Armstrong, and upon the ground that their claims are for necessaries furnished for the use, maintenance and support of the said Armstrong, his wife and family; and that they are therefore, as they insist, “ entitled to be paid out of the property given by the *240will aforesaid to the said Joseph H. not only in accordance with the principles of equity, but according to ■ the express provisions of said will.” The claim of a creditor against his debtor is generally in personam only. He can acquire a lien upon specific property, only in some mode prescribed by law, or under some contract made for that purpose, or some trust created for his benefit. If his debtor be a feme covert entitled to separate estate, he can have no claim against her personally, because she is incapable in law of making a contract, to bind herself personally; and can only bind her separate estate; as to which she is regarded 'in equity as a feme sole. All the contracts which she is authorized to make under the settlement, are considered as contracts made in reference to, and as binding upon her separate estate. Her creditors therefore cannot sue her at law, but must go into equity in pursuit of that estate. But if the debtor be sui juris, the creditor cannot go into a court of equity merely because a trust has been created for the benefit of the debtor. He has no more specific lien or claim upon the trust subject than he has upon any other property of his debtor. That he looked to that subject for the satisfaction of the debt when it was created, can give him no such lien or claim. He no doubt then looked to all the property of the debtor for that purpose. In this case the will gave no separate estate to the wife of Joseph H. Armstrong: and not she, but he is the debtor. The trust subject is therefore not bound in equity for these claims, unless bound for them by the provisions of the will, as the bill insists. How the express object of the trust was to prevent the subject from being bound for the debts of Joseph H. Armstrong ; it being by the fifth clause of the will expressly declared that the property given in the first clause (which creates the trust) shall be in no way liable for any debt which the said Joseph H. might *241then or thereafter owe or be bound °for. Whatever may be the effect of this clause in securing to Joseph hi. Armstrong and his family the enjoyment of the trust subject against the claims of his creditors, it certainly excludes all idea of any right on the part of those creditors to come in as beneficiaries under the trust. Their claim upon the subject, if any, must be against, and not under, the terms of the trust. It must be founded on some contract with the trustee or the cestui que trust, which they or either may have a right to make. It is not pretended that any contract at all was made with the trustee; nor any contract for a lien, with the cestui que trust. The claim is solely based upon a general contract with the cestui que trust, and the principles of equity and the provisions of the will. That these are not sufficient to create a lien and give the appellees a right to come into equity, has already been sufficiently shown. That no contract with a cestui que trust in such a case could give his creditors a lien on the trust subject, and a right to come into equity to subject it to the payment of their claims, is conclusively shown by the case of Markham v. Guerrant & Watkins, 4 Leigh 279, which in most of its features is very much like this. Of all the cases referred to on either side, that is the only one in which the creditors came into a court of equity to charge the trust subject with their-debts, without first having obtained judgments for them at 'law. In the other cases the creditors had obtained judgments and were seeking to enforce them against the trust subject at law when they were enjoined at the suit of parties claiming under the trust. In that case the creditors came into equity on the alleged grounds that relying on the credit of the trust estate they had furnished sundry necessary supplies to John Markham and his family, that Fleming the trustee had assumed the payment of the debt out of the trust estate by a *242letter which was exhibited, and that Markham had lately died leaving no property but the trust estate. The bill was dismissed without prejudice to any other remedy to which the appellees might be advised to resort.' “It behooves every one (said the court in that case) who deals on the credit of a fund like this, to look to the deed and see how much can be disbursed ; and to make his bargain beforehand with the trustee. In this case then I do not think that the appellees by their dealings with the family, acquired any right to charge the trust fund: if they did, every other person who chose to let the cestuis que trust have goods or property would have the same right; and thus the check interposed by the deed would be destroyed, and one year’s extravagance swallow up the revenue of years to come, and leave the wife and children to starve.” The court strongly inclined to the opinion that even the trustee could not bind the fund by anticipation, and thus absorb the support of future years; and intimated that the proper course to be pursued by persons furnishing necessaries to a family in such a case is, to apply to the trustee to know how far they may go in trusting the cestuis que trust: in which case he will be personally liable to the extent of ’the dealings he may have authorized, and may indemnify himself out of any of the trust funds which m-ay come to his hands and be .properly applicable to that purpose. That case was' more favorable to the claims of the creditors than this is. In that case, by the terms of the trust, all the profits of the trust subject were applicable to the support of the family; whereas in this case, while the trust subject is given for the use and benefit of Joseph N. Armstrong during his life, it is “ with the privilege that he may reside on the farm and have the use of the negroes, so far as may be necessary for his support and maintenance, and for the support and main*243tenance of his family.” If the bill was properly dismissed in that case, so it ought to be in this. That case is a binding authority in itself, and has been recognized and followed in subsequent cases in this court. Nickell v. Handly, 10 Gratt. 336; Johnston v. Zane's trustees, 11 Id. 552.
It would be premature, and is not intended to intimate any opinion in this case, whether, and to what extent, the trust subject or its profits may ultimately be made liable to the claims of the appellees; the court being of opinion, that whether so liable or not, and to whatever extent liable, they can have no right to come into equity to enforce any such liability until they shall first have obtained judgments at law. And then, if there be a liability which cannot be enforced at law, they may come into equity to enforce it. Upon the question of liability, whenever it may properly arise, the cases cited by the counsel, in addition to that of Markham v. Guerrant & Watkins, may have an important bearing. Those cases are Scott v. Gibbon, 5 Munf. 86; Scott v. Loraine, 6 Munf. 117; Galt v. Carter, Id. 245; Rankin v. Bradford, 1 Leigh 163; Roanes v. Archer, 4 Leigh 550; Butler v. McCann, Id. 631; Nichell v. Handly, 10 Gratt. 336; Johnston v. Zane's trustees, 11 Id. 552. See also Hughes v. Pledge, 1 Leigh 443; Wallace & wife v. Dold's ex'ors, 3 Id. 258; Stinson, ex'or v. Day A wife, 1 Rob. R. 435; Perkins, trustee v. Dickinson, 3 Gratt. 335; which may have some bearing on the question.
That the bill, not showing on its face proper matter for the jurisdiction of the court, may be dismissed for want of jurisdiction, notwithstanding no exception on that ground was taken in the court below, is shown by the case of Hudson v. Kline, 9 Gratt. 379.
The court is therefore of opinion that both the decree of the 25th day of April 1853 and the decree of *244the 12th day of November 1853 are erroneous, and ought to be reversed with costs, and the bill dismissed with costs, but without prejudice to any other remedy to which the appellees may be advised to resort.
The other judges concurred in the opinion of Moncure, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481581/ | Lee, J.
This case turns upon the construction of the will of the late Alexander S. Hooe of King George.
For the plaintiffs it is contended that the devise of the lands called “ Dissington” and “Freidland” to the testator’s son George M. Hooe, operates to except them out of the estate the uses and profits of which had in the first clause of the will, been devised to the daughters who might remain unmarried. Or, if this *247be not so, that there is an incurable repugnancy between the devise to the daughters and that to George M. Iiooe the effect of which is that the latter operates as a revocation pro lanto of the former. And if neither of these views can be sustained, it is insisted that the interest taken by the daughters in “ Dissington” and “ Freidland” was a mere equitable right to the use and profits dependent upon the legal estate vested in George M. Hooe by the terms of the will and thus that the plaintiffs having the legal title must recover in this action whatever may be the rights of the defendant elsewhere.
There are certainly no express terms of exception used in the will nor are any such to be supplied unless rendered necessary by the clear and plain intention of the testator. Indeed had there been express terms of exception no room would have been left for controversy. The argument is however that from the terms and succession of the several devises to the daughters and George M. Hooe, the subject of the latter is by necessary implication withdrawn and excepted from the former, because George M. Hooe was to take Dissington and Freidland immediately and no interest was intended to be given in them to the daughters. Thus the question is resolved into an enquiry as to what was the true meaning and intention of the testator, and this is to be ascertained by weighing the terms of the will themselves and by placing ourselves in the situation of the testator and considering the language he has used in the light reflected upon it by the circumstances surrounding him at the time his will was made, and the relative situation of the different parties. Kennon v. McRobert et ux. 1 Wash. 96; Wootton v. Redd’s ex’ors, 12 Gratt. 196.
The testator by the first clause of his will gives the use and profits of all his estate real and personal to his daughters who may remain single. By the next *248clause, lie declares that should the daughters all many or when they died, his property was to be equally divided among his surviving children. Thus an estate for life in the use and profits of the whole estate was plainly given to the daughters determinable as to each, upon her marriage. Then follows the devise to George M. Hooe of Dissington and Freidland, which is declared to be in consideration of the attention and kindness that he had paid and would continue to pay to his sisters. How if we look to the context and general tenor of the instrument, it seems apparent that the testator’s first object was to provide for the support of his unmarried daughters, and to this end he devotes the profits of his whole estate. Upon their marriage when he assumed that the necessity for such provision would cease, or at their death, he directs a division of his property among his surviving children. But it occurs to him that his son George M. Hooe for the reasons which he assigns is entitled to some special manifestation of gratitude and regard, and he accordingly gives to Mm Ms lands called “ Dissington” and “ Freidland.” The devise to the daughters is of the use and profits: that to the surviving children and that to George M. Hooe are of the absolute title and estate. If therefore the devise to George M. Hooe constitutes an exception out of any previous devise it would seem to be rather out of that to the surviving children than that to the daughters. The division of the property among the surviving children was to take place upon the death or marriage of the daughters, and it is not an unreasonable interpretation of the will that the devise to the son should take effect at the same period.
This view of the testator’s intention as deduced from the general scope and context of the will is greatly strengthened when we come to consider the circumstances by which he was surrounded at the *249time it was made. It appears that the only real estate which he owned were these lands called Dissington and Freidland and certain ground rents in Alexandria of the annual value of one hundred and thirty-five dollars: that these two tracts lay in the county of King George and were separated from each other by the main road leading from Fredericksburg to King George court-house, but had always been cultivated together and treated as one plantation by the testator: that his residence with his family for many years and up to the time of his death was upon Freidland on which was a mansion-house with servants’ houses, barns and other out-houses, while upon Dissington there was no dwelling or other house whatsoever: that Dissington contained about six hundred and twenty-six acres and was assessed in 1835 (the year of the testator’s death) at the sum of five thousand eight hundred and thirty-four dollars and thirty-two cents: that Freidland contained about one hundred and forty-nine acres and was assessed in the same year at two thousand two hundred and ninety dollars and thirteen cents: that the testator owned slaves, thirty-one in number and valued at the aggregate sum of ten thousand two hundred and ninety-five dollars, and other personal estate of the value (as by appraisement) of one thousand five hundred and thirty-one dollars: and that he owed very few debts and those of very inconsiderable amount. It further appears that at the making of his will the testator had nine children, three sons and six daughters: that of the sons, the eldest Alexander S. was a captain in the United • States army and had recently married the daughter of a very wealthy man: that the other two sons were unmarried and were lieutenants in the navy: that of the daughters one only was married, and the youngest was of the age of ten years only.
Now it is most probable that the testator regarded *250any provision for the immediate support of his sons unnecessary, thinking the pay which they received as army and navy officers adequate for that purpose whilst he did deem it necessary and proper to make such provision for his daughters. And it cannot be doubted that it was his intention they should continue to reside until they might happen to marry upon the property on which he had for many years resided with his family and should be supported by cultivating both tracts just as he had himself done with the slaves. It is impossible to suppose he could have intended to give the daughters thirty-one slaves and yet take from them the lands on which they had their home and which would be necessary for the profitable employment of the slaves and for their support as well as that of the daughters. It cannot be supposed that he intended the slaves to be hired out and their hires applied after providing for the support of children and any who might be infirm or disabled, to the maintenance of the daughters. Nor is there any thing in the motives by which the testator is prompted to make the devise to George M. Hooe which at all evinces any intention to diminish the extent of the previous devise to the daughters. On the contrary those which he assigns grow out of his affection for his daughters and looked to their benefit and advantage. The gift of Dissington and Freidland to George M. Hooe was in consideration of the attention and kindness which he should continue to pay to his sisters as well as of that which he had previously shown; and when those fraternal offices should be no longer required by the condition of his sisters, he was to be rewarded by the enjoyment of the property given to him by his father in consideration of his affection and dutiful conduct towards those whom the father regarded as most needing protection and provision and who were plainly the first objects of his bounty and paternal care. '
*251Nor is there any such inconsistency between the devise to the daughters and that to George M. Hooe that the latter should be regarded as a revocation the former to the extent of the subject which it embraces. The rules on this subject of an implied revocation of a previous devise by a subsequent inconsistent one, are well settled. It is the duty of the judicial expounder of a will to give effect to every word without alteration or diminution, if an effect can be given to it not inconsistent with the general intent of the whole will taken together; and the former of several apparently contradictory devises is never to be sacrificed but on the failure of every attempt to give to the whole such a construction as will render every part of it effective : and in the attainment of this object, the mere local order of the several devises will be disregarded if by their transposition a consistent disposition may be deduced from the entire will. 2 Jar-man on Wills 415 ; Gray v. Minnethorpe, 3 Ves. R. 103; Constantine v. Constantine, 6 Ves. R. 100; Doe ex dem. Baldwin et ux. v. Rawding, 2 Barn. & Ald. 448, 449, 452; Shelton’s ex'ors v. Shelton, 1 Wash. 53. Thus the rule which assigns to a subsequent devise in a will the effect of revoking a previous one as being the latest manifestation of the testator’s intention is never applied except where the two provisions are totally irreconcilable and where the real intention of the testator cannot be ascertained. Covenhoven v. Shuler, 2 Paige’s R. 122; Homer v. Shelton, 2 Metc. R. 194, 202. Nor is it ever suffered to clash or interfere with the doctrine which enjoins upon the expositor to look for the intention of the testator in the general tenor and context of the instrument and to qualify or even reject any clause or phrase1 that may be found incompatible with it; and though first expressed, this general intent shall overrule the particular intent afterwards disclosed. 1 Jar-man on Wills 420; 2 Wms. Ex. 710, et seq.; Doe ex *252dem. Bosnall v. Harvey, 4 Barn. & Cress. 610, 10 Eng. C. L. R. 419; Jesson v. Wright, 2 Bligh. Par. Cas. 1, 56; Boon v. Cornforth, 2 Yes. R. 277; Coryton v. Helyar, 2 Cox’s Cas. 340; Lunn v. Osborne, 7 Sim. R. 56, 9 Cond. Eng. Ch. R. 476; Bartlett v. King, 12 Mass. R. 537; Cook v. Holmes, 11 Mass. R. 528. And the courts have ever betrayed an anxiety in the interpretation of wills to adopt such a construction as will give effect to every part of an instrument and thus avoid declaring any provision which it contains to be repugnant to others. Thus where a testator in different parts of his will gives the same identical lands to different persons in fee; this would appear to be a case of direct and insuperable repugnancy in which the earlier devise in the will would according to the rule be deemed to be revoked by the later. But the difficulty^ has been overcome by the modern construction which would seem to have prevailed in opposition to the early;writers, according to which the devisees take concurrently. Sherratt v. Bentley, 2 Myl. & Keene 149, 7 Cond. Eng. Ch. R. 305; Ridout v. Pain, 3 Atk. R. 486; Constantine v. Constantine, 6 Ves. R. 100; 1 Jarman on Wills 417. So where there are apparent inconsistent limitations on an estate in fee, the conflict has been reconciled by assuming that the latter disposition was intended as a substituted devise in case of lapse and applied exclusively to the event of the prior devisee dying in the lifetime of the testator. Clayton v. Lowe, 5 Barn. & Ald. 636, 7 Eng. C. L. R. 218. Other illustrations of the astuteness of the courts to reconcile apparent repugnance between the devises of a will will be found in the cases. Holdfast ex dem. Hitchcock v. Pardoe, 2 Black. R. 975; Coryton v. Helyar, 2 Cox’s Cas. 340; Bettison v. Richards, 7 Taunt. R. 105, 2 Eng. C. L. R. 40.
In this case I think there is no difficulty in reconciling the seemingly inconsistent devises. The devise *253to the daughters is as we have seen, of a life estate determinable as to each upon her happening to marry. This is followed by a devise in fee of the lands to George M. Hooe. The plain and natural import of such a disposition would seem to be that the former devise should have its full effect and the latter take effect in remainder after the determination of the previous estate upon the marriage or death of the daughters. Such I think, we must see was the intention of the testator whether we look to the general tenor and context of the will alone or view it as illustrated and explained by surrounding circumstances. There is therefore no room for this doctrine of repugnancy and implied revocation. The case resembles that put of a devise of lands in fee to A and a subsequent devise of the same lands to B for life. In the construction of law both devises shall stand and the will shall be read as if the devise had been first to B for life with remainder to A in fee. Per Anderson, C. J. Anon'. Cro. Eliz. 9.
This construction will be found strongly supported by a decision of the Supreme court of North Carolina in a very similar case. The testator by his will gave to his wife a life estate in the land and plantation whereon he lived. After some other provisions, the will proceeded as follows : “To my son Aaron I give a horse &c. my land and plantation that I have before mentioned in this will with all the farming utensils &c.” It was contended that the devise of the estate for life to the wife was revoked by the subsequent devise to the son or at least was so far modified that the son became entitled to an immediate estate in the premises on the death of the testator and to a joint possession with the wife. But the court held otherwise and that the wife was entitled to an exclusive life estate. Ruffin, C. J. said “ that no contradiction was to be allowed of unless the several provisions are *254absolutely irreconcilable.” “ That the natural import of” (such a devise) “ is that the latter takes in remainder and therefore that the first gift remains in force. In that way there is nothing incongruous in the two .dispositions but each operates in its natural order.” Crissman v. Crissman, 5 Ired. Law R. 498.
In our case the devise to the daughters is of a life estate determinable as to each upon her previous marriage, and there is the additional circumstance evincive of the testator’s intention that there should be no interference between it and the devise to George M. Hooe, that the former is in terms of the use and profits of the estate, the latter is of the lands by the names which had been given to them.
The remaining ground upon which the right to recover in this action has been sought to be maintained, that the devise to George M. Hooe passes the legal title at least subject to accountability in ecpiity to the daughters for the rents and profits, is I think equally unsustainable. It is in vain to enquire what might be the technical import of the language used, or the nature of the limitations which it might create if employed in a deed. It is the language of a nonprofessional gentleman in the country" framing for himself the testamentary disposition of his estate. There is no room here for the application of technical rules or the niceties of conveyancing. The first and great rule in the exposition of wills, to which all other rules must bend, as said by Chief Justice Marshall, is that the intention of the testator shall prevail provided it be consistent with the rules of law. It is the polar star to guide us in the construction of wills. Smith v. Bell, 6 Peters’ E. 68, 75, 84. If the intention be apparent, no strict legal construction nor technical sense of any words whatever, shall prevail against it. 2 Wms. Ex. 710 ; Hodgson v. Ambrose, 1 Doug. R. 337, 342; Homer v. Shelton, 2 Metc. R. 195; Kennon v. *255McRobert et ux. 1 Wash. 96. Here the plain and unmistakable intention of the testator was that the daughters should have the use and profits of the whole estate for their support and education until the necessity for such a provision should cease by reason of their marriage or death : and this right to cultivate the lands for their own benefit with the slaves, carries with it as a necessary incident the absolute right to the possession untrammeled by any notion of mere trust. Or if it be regarded in the terms of its creation, as a devise in trust to permit the daughters to receive the rents and profits, it is an executed use carrying the legal title upon which the daughters may successfully rest their defense to any action by George M. Hooe or his heirs before their estate is determined as provided in the will, upon the principle established in Doe ex dcm. Leicester, 2 Taunt. R. 109. Either way, the will should in effect be read as giving a life estate to the daughters determinable as to each by marriage with remainder in fee to George M. Hooe.
I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Lee, J.
The judgment was as follows :
The court is of opinion, that by the first clause of the will of the said Alexander S. Hooe deceased, an estate for life was given to his daughters in the property therein described, determinable as to each, upon her marriage.
And the court is further of opinion that the devise of the lands called “ Dissington” and “ Freidland” to the testator’s son George Mason Hooe, by the third clause of the will, is not to be regarded as an exception out of the general devise in the first clause to the *256daughters, nor as a revocation of said devise pro tanto upon the ground of repugnancy thereto.
And the court is further of opinion upon the true construction of said will that the daughters did not take a mere equitable right to the use and profits of the property devised dependent as to the lands called Dissington and Freidland upon a legal estate vested in possession in the said George Mason Hooe, but took such a legal estate in the use and profits of the testator’s whole estate including Dissington and Freidland as entitled them to retain the possession thereof until they should be married or die, .and that the estate given to George Mason Hooe in Dissington and Freidland will not become vested in possession as long as either of said daughters shall remain in life and unmarried.
And the court is therefore of opinion that as the defendant is one of the daughters of the said Alexander S. Hooe and is still unmarried, the plaintiffs are not entitled to recover in this action.
And so it seemeth to the court here that there is no error in the judgment aforesaid.
Therefore it is considered by the court that the said judgment be affirmed and that the defendant in error recover against the said Elizabeth M. A. G. Hooe, prochein ami of the plaintiffs thirty dollars damages according to law for retarding the execution of the said judgment, together with her costs by her in the defense of said writ in this court expended. Which is ordered to be certified to the said Circuit court. | 01-04-2023 | 11-07-2022 |
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