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https://www.courtlistener.com/api/rest/v3/opinions/8481752/ | Moncurb, P.
This is an appeal from a decree of the Circuit court of Smyth county, and involves a question of priority between a foreign attachment creditor and an assignee in bankruptcy of a common debtor, in regard to certain real estate of the debtor lying in said county. The question depends upon the priority of time, when the respective liens or claims of the conflicting claimants attached to the subject. The attachment creditor claims a lien from the time of filing his bill, to wit: the 20th day of February 1867; the assignee in bankruptcy claims alien from the time of the filing of the petition in bankruptcy, to Wit: the 2d day of March 1868, or at least from the time of the adjudication of the bankruptcy, to wit: the 28th day of March 1868. If the claim of the former be well founded, it is of course paramount to that of the latter. Prior in tempore est prior in jure. The assignee' takes the estate of the bankrupt just as the bankrupt held it, subject to all liens and equities which were good against the bankrupt at the time he became such. James on Bankruptcy, and cases cited in notes, pp. 36, 37 and 44. He stands in the shoes of the bank*211rupt in regard to such estate, except that conveyances thereof fraudulent and void as to creditors, are void also as to him. Id. 87. The bankrupt law avoids any attachment of the bankrupt’s property made on mesne process within four months next preceding the bankruptcy, but not any such attachment made more than four months before such bankruptcy.
There is no contest in this case as to the fact that the common debtor filed his petition in bankruptcy on the 2d day of March 1868, and was adjudged a bankrupt on the 28th day of March 1868. Nor does it appear that there is any contest as to the fact, that the debt claimed by the attaching creditor was due by the common debtor at the time of the institution .of the suit, and still remains unpaid. Nor as to the facts, that the debtor at that time was a non-resident of the State of Virginia, that he owned the real estate on which the attachment lien is claimed, that the said real estate is situated in the said county of Smyth, in this State, and that these facts were all averred in the bill, which was filed in this suit on the 20th day of February 1867. And all these facts are fully sustained by the pleadings and proofs in the cause. The foreign attachment creditor had, undoubtedly, a good cause for a foreign attachment in chancery at the time of the filing of this bill, and the controversy in this cause seems to be narrowed down to this : Whether he so prepai’ed his bill, and so proceeded upon it, as to make him a foreign attachment creditor, and to give him the benefit of a foreign attachment lien from the time of the filing of his bill ?
He had a good case for a foreign attachment suit in chancery. Has he sufficiently statedjt in his bill ? And has he done what was necessary to give effect to his attachment lien ? If he has not, he has certainly been very unfortunate.
He had a good case for a foreign attachment suit, because the debtor resided “without the jurisdiction of *212this commonwealth,” and had “lands or tenements within the ” same. And that was the only ground which, he had for subjecting the said real estate to the payment of the debt. He had no lien upon the land before he brought his suit. The judgment which had been obtained in Alabama for the debt was no lien upon the real estate of the debtor in Virginia. He was as to that real estate a mere creditor at large ; and he could acquire no lien upon it in invitum, but by an attachment suit, or by obtaining a judgment in Virginia fpr the debt.
Can this suit be regarded as a foreign attachment suit ? Are the averments of the bill sufficient for that purpose ? Have the proceedings in the suit been such as to give effect to it as an attachment suit ? These are the questions we now have to solve. ’
The complainant in his bill, 1st, Sets out the claim against the debtor, Frank A. Sanders, showing that it amounts to $12,271.49, for which a decree had been rendered in the State of Alabama, of which decree a copy is filed with the bill; 2d, Charges, that the debtor has large and valuable real estate in Virginia, and within the jurisdiction of the court, to subject which to sale for the payment of the said debt is the declared object of the bill, and the said real estate is particularly described in the bill as to quantity, title, and otherwise; 3d, Charges, that the debtor is a non-resident of the State ; 4th, Makes the proper persons defendants to the bill 5th, Prays for a sale of the said real estate for the payment of the said debt; and 6th, Prays for general relief.
How this is certainly a sufficient bill to give effect to-the suit as a foreign attachment suit in chancery. For although the suit is not called an attachment suit, by name, in the bill, and although the bill does not, in terms, pray that the land may be attached for the payment of the claim; yet the bill contains all the necessary and proper allegations for such a suit, and prays for suit*213able specific as well as for general relief; which is all sufficient in substance, notwithstanding the formal omissions aforesaid, to make the suit an attachment suit, and. give full effect to it as such; unless the complainant has omitted something in the proceedings in the suit which the statute requires to give it effect as an attachment suit; in other words, to give it effect as an attachment lien upon the land, against the claim of the assignee in bankruptcy arising subsequently thereto.
Has there been any such omission in the proceedings, then? is the question.
If there has been, it consists in the omission of such an affidavit as the statute requires to be made in such cases, or in the omission of an endorsement on the subpoena, describing the real estate intended to be attached.
As to the affidavit, the act of 1819, 1 R. C., p. 474, § 1, only required an affidavit that the debtor”was out of the country, or that, upon inquiry at his usual place of abode, he could not be found, so as to be served with process; upon which affidavit the court was authorized to make an order, and require security, if it should appear necessary, to restrain the defendants in this country from paying, conveying away, or secreting the debts by them owing to, or the effects in their hands of such absent debtor or defendant. An affidavit of the non-residence of the debtor was made in this case on the 6th day of May 1867, about ten months before his petition in bankruptcy was filed, on which affidavit an order of publication against him was made, This .affidavit would have been a full compliance with the requisition of that act. But the Code of 1849, chapter 151, made a material change of the attachment law; and section 11, which relates to attachments in equity, provides that “there may be an affidavit according to the nature of the case, conforming, as near as its nature will admit, to what is specified in previous sections.” Section 1 of the same chapter is the section here chiefly referred to, and *214provides that “when any suit is instituted for any debt, 0JL’ ^01’ damages for breach of any contract, on affidavit stating the amount and justice of the claim, that there is present cause of action therefor; that the defendant, or 0Qe °f the defendants, is not a resident of this State, and that the affiant believes he has estate or debts due him within the county or corporation in which the suit is, or that he is sued with a defendant residing therein, the plaintiff may forthwith sue out of the clerk’s office an attachment against the estate of the non-resident defendant for the amount so stated.” An affidavit which corresponds substantially with that prescribed by section 1 seems to be such an one as is contemplated by section 11, and is more comprehensive than the affidavit required by the act of 1819, which was only as to the non-residence of the debtor, or that, upon enquiry at his usual place of abode, he could not be found, so as to be served with process. But in construing the attachment law of 1849, we must bear in mind one of the chief purposes which the legislature had in view, to wit: to provide a substitute for the right which previously existed, to hold a defendant to bail, and we must look at the whole act together. The plan of the legislature was to apply legal remedies to legal demands, and equitable remedies to equitable demands, so as to give a remedy by attachment in equity only in those cases where the demand was equitable, and where, if all the defendants resided in the State, the suit would have to be brought in equity. According to this plan; the attachment was a mere collateral proceeding, incident to the main action or suit, which was the same in form as if no attachment was incident to or connected with it. It did not appear from the pleadings in the action or suit that any of the defendants were non-resident, or whether they had any, and if any, what estate in the jurisdiction of the court. Those pleadings merely showed that the plaintiff had a good cause of action or suit, supposing all the defendants *215to be residents of the State. Therefore, it was fit and proper, when a plaintiff wished to have the benefit of an attachment to .secure the amount of what he might recover in the action or suit, that he should be required, as a foundation of the attachment, to make such an affidavit as was required by the Code of 1849. The law had previously been different. The only remedy which then existed against a non-resident debtor owning estate in this commonwealth, was a foreign attachment in chancery, whether the debt was a legal or an equitable debt. Where the debt was a legal debt, it was necessary to aver in tbe bill that the debtor was a non-resident of the State, and owned estate within the same, otherwise the bill would have been demurrable. Where the debt was an equitable debt, no such averment in the bill was necessary. In 1852 the Code of 1849 was amended, so as to add these words at the commencement of section 11 of chapter 151 aforesaid, to wit: 44A claim to any debt, or to damages for breach of any contract, against a person who is not a resideut of this State, but who has estate or debts due him within the same, may, if such claim exceed $20, exclusive of interest, be maintained in any court of equity for a couuty or corporation in which there may be any such estate, or a defendant owing any debt to such non-resident.” The effect of this amendment was to give to a creditor, having a legal claim against a debtor residing out of the State, and owning estate or effects therein, the same right to bring a foreign attachment suit in equity as he would have had before the Code of 1849, the only difference being that since the amendment he has had an election to sue at law or in equity in such a case, whereas, before the Code of 1849, he could sue in equity only. But no change was made in section 11 as to the affidavit to be given in a foreign attachment suit in equity for a legal demaud. In such a suit, brought under that section, -amended as aforesaid, it is necessary to aver in the bill *216that the debtor resides out of the State, and has estate or e^'e°ts therein, as it would have been necessary to ma,^:e suc^ an averment before the Code of 1849, otherwise the bill would be demurrable. The grounds for equitable relief in such a case are threefold. 1st, that a debt is due to the plaintiff; 2ndly, that the debtor is a non-resident of the State; and 3dly, that he has estate or effects within the State. These three grounds make up a good case in equity, and if proved, the plaintiff will be entitled to a decree on the hearing for the amount of the debt, and for the application of the said estate and effects, as far as may be necessary, to the payment thereof. To be sure, there can be no decree againstjan absent defendant without an answer, appearance or publication. And there can be no publication without an affidavit of non-residence. Such an affidavit is, therefore, necessary where there is no answer nor appearance of the non-resident debtor. But if the case be regularly matured for hearing, and be fully proved, the plaintiff" is entitled to a decree accordingly, except against parties or persons who may be injured by his non-compliance with some preliminary requisition of the statute. He is certainly entitled to such a decree against the debtor himself, and all who stand in his shoes.
But even if any other affidavit than that of non-residence of the debtor were necessary in this case, it is well settled that the affidavit, required by the statute to authorize a court to sue out an attachment against the estate or effects of an absent debtor, may be made, either before or after the bill is filed. O'Brien, &c. v. Stephens, 11 Gratt. 610. See also Moore v. Holt, 10 Id. 284. Indeed, it is expressly declared by the statute, in the very section which gives the remedy in this ease, to wit: section 11 aforesaid, that “ such affidavit may be, at the time of, or after, the institution of the suit.” The decree appealed from is interlocutory. "What is there to prevent the affidavit from being now made, if any other *217affidavit be necessary than that which has already been made?
As to the omission of an endorsement on the subpoena, •describing the real estate intended to be attached. The 7th section of chapter 151, of the Code of 1860, p. 647, provides, that (e every such attachment, (except where it is sued out specially against specified property,) may be levied upon any estate, real and personal, of the defendant, or so much thereof as is sufficient to pay the amount for which it issues. It shall be sufficiently levied in every case by a service of a copy of such attachment, on such persons as may be designated by the plaintiff in writing, or be known to the officer to be in possession of effects of, or to be indebted to, the defendant; and as to real estate, by such estate being mentioned and described by endorsement on such attachment” And the 12th section, Id. p. 648, provides, that “ the plaintiff shall have a lien from the time of the levying of such attachment, or serving a copy thereof, as aforesaid, upon the personal property, choses in action, and other securities of the defendant against whom the claim is, in the hands of or due from any such garnishee on whom it is so served, and on any real estate mentioned in an endorsement on the attachment or subpoena, from the sueing out of the same”
These provisions were intended to apply, mainly if not entirely, to the ordinary case of an attachment which is ancillary to an action at law for a legal demand, or to a suit in equity for an equitable demand, in which nothing is said in the pleadings about any attachment of any property. In order to constitute an attachment lien upon any property there must be a claim in some form to subject the property to the payment of the debt demanded in the action or suit. If there be no such claim in the pleadings in the action or suit itself, then an attachment must be issued, which may be levied upon any estate, real or personal, of the defendant, or so much thereof as is sufficient to pay the amount for which it *218issues; and the plaintiff shall 'have a lien from the time of the levying of such attachment as aforesaid. In the ease of a foreign attachment in equity, the endorsement describing any real estate intended to be attached, may be made either on an attachment, or on a subpoena issued in the ease. But where, as in this case, a suit in the nature of a foreign attachment in chancery is brought to enforce a legal demand, and the bill positively avers that the debtor is a non-resident of the State, and has real estate within it, and in the jurisdiction of the court, fully sets out the demand, particularly describes the estate sought to be subjected to the payment of the debt, and contains all other necessary and proper allegations, there is no necessity and no occasion for any endorsement on the subpoena, or any process of attachment in the case, to give to the plaintiff a lien upon the estate for the payment of the debt; but, upon sustaining the allegations of his bill by proof, and otherwise maturing his cause for final hearing, he will be entitled to a decree to subject the estate to the payment of the debt according to the prayer of the bill. Why should an endorsement on a subpoena, or on process of attachment, be necessary in such a case ? What better notice could it give than would be given by the bill itself ? Would not the bill give much fuller and more specific notice generally than would be given by such an endorsement ? The bill is what would naturally be looked to by inquirers for information as to the object of the suit, rather than the process or any endorsement upon it. Suppose the land were vacant, and there were no home defendants to be served with process: there would seem to be no occasion for any process in such a case, except an order of publication against the non-resident debtor and owner of the land. Suppose an attachment, or a subpoena, were issued in such a case, and such an endorsement as is mentioned in the statute were made thereon, what good purpose could possibly be answered thereby,which would not be *219better answered by tbe bill ? The process and endorsement would be shown to nobody, but be returned and filed among the papers of the suit. If, however, an endorsement were necessary in such a case, is not the order of publication equivalent to such an endorsement ? The order of publication, generally, gives as full information of the object of the suit as an endorsement on the process would, and is in itself in the nature of process.
Where the non-resident debtor is the only defendant in the case, the order of publication would seem to be the only necessary process. Suppose the non-resident defendant and the home defendants had all filed their answers in this ease, on condition that the attachment should not thereby be discharged, and had admitted the truth of all the allegations of the bill, would any endorsement then have been necessary ? Would not the plaintiff have been entitled to a decree according to the prayer of his bill? Suppose, instead of filing their answers and admitting the allegations of the bill, the defendants had suffered the bill to be taken for confessed, as was the case here, would any endorsement then have been necessary, and would not the plaintiff have been entitled to such a decree ? I suppose there can be no doubt but that he would have been so entitled in either of the cases above supposed, if no other persons were interested in the subject than the original parties to the suit. But suppose that, after the answers admitting the allegations of the bill are filed, or after it is taken for confessed, the non-resident debtor becomes a bankrupt before any decree is made for the sale of the land charged by the bill with liability for the debt, will the assignee in bankruptcy stand on any higher ground than the debtor himself? Will he not stand in the shoes of the bankrupt in regard to the suit ? And will not the plaintiff be entitled to precisely the same decree against him that he would have been entitled to against the debtor himself, if he had not become a bankrupt? Upon these questions *220there can, I presume, be no doubt or difficulty. "When the bill was filed there was a Us pendeus to subject the real estate to the payment of the debt, as claimed in the bill. All rights acquired from or under the defendant, t° the subject in controversy, pending the suit, are subject to any decree which may be made in the suit, except so far as a purchaser without actual notice is protected by the Code, chapter 186, section 5. In all other respects the maxim, Pendiente lite nihil innovetur, applies.
In this case, the plain tiff, in his bill, fully and plainly stated a case which, if true, entitled him to a decree for the sale of the land in question for the payment of the debt due to him by his non-resident debtor. This bill was filed on the 20th day of February 1867, before the bankrupt law was passed, and more than a year before the non-resident debtor filed his petition in bankruptcy. There was an order of publication entered in the cáse on the 6th day of May 1867, against the non-resident dedefendants, including the debtor, Frank A. Sanders, upon an affidavit made in due form, which order was duly posted and published, the publication ending on the '81st day of May 1867, nearly ten months before the petition in bankruptcy was filed. The said order stated, that “the object of this suit is, to subject the interest of Frank A. Sanders in the land now in the possession of James B. Sanders and John L. Sanders, known as the River tract of their father’s estate, and seventy-four acres of the Sulphur Spring’s tract, to satisfy a debt of $12,271.49, ascertained by decree of the District court of chancery for the northern district of Alabama, and filed in the cause aforesaid in said Circuit court of Smyth county. ” The bill was even more full and specific, indeed much more so, than the said order, in the■ description of the land and the debt. The subpoena was returned executed on John L. Sanders, the only defendant who resided in the State, and who was charged in the bill to be in possession of the land, on the 22d day of February *2211867, just two days after the filing of the bill. 17o answer was filed by any of the original defendants.
Such was and continued to be the state of the case until and on the 2d day of March 1868, when the nonresident debtor, Frank A. Sanders, filed his petition in bankruptcy; and until and on the 28th day of March 1868, when he was adjudicated a bankrupt; and until and on the 3d day of June 1868, when all the estate of the bankrupt was conveyed to the appellant, William Y. Oirode, as assignee in bankruptcy. On the 26th day of August 1868, the cause came on to be heard, upon the bill taken for confessed as to all the defendants, and upon the exhibits, when the court, considering that the interest of the said Frank A. Sanders in the real estate in the bill mentioned, was liable and ought to be subjected to sale for the satisfaction of the debt due to the plaintiff and in the bill mentioned, therefore decreed that John P. Sheffey, who was appointed a commissioner for the purpose, should sell the said real estate, or so much as might be necessary, in the manner and on the terms in said decree mentioned, and report his proceedings to the court. Before any sale was made under the said decree, it seems that the said assignee in bankruptcy asserted a claim to the said real estate, and on the 18th day of November 1868, an agreement in writing was entered into between the said assignee and the plaintiff in the suit, whereby it was agreed, that the said sale should not he further delayed or suspended, but should be made by the commissioner appointed by the said decree; that the proceeds thereof should be paid into court, to await the determination and final decree of the said court; that the said assignee should become, by virtue of the filing of the said agreement, a party to the said suit, without process; and that, upon the final hearing, the question of the validity of the lien claimed by said plaintiff by attachment, as against the claims of said assignee on behalf of the general creditors of said bankrupt, within. *222the provisions of the bankrupt act, should be argued be-f°re> an<^ decided by said Smyth Circuit court, &c. This agreement was filed as an exhibit in the case on the 10th of December 1868, after which, the commissioner, J. Sheffey, sold the real estate aforesaid, and reported his proceedings to the court, and on the 31st day of March 1869, his report was confirmed. Shortly after this, the said assignee filed his answer in the case, denying all knowledge of the facts alleged in the bill, and requiring strict proof of them; claiming the proceeds of the sale of said land, by virtue of the proceedings in bankruptcy aforesaid; and insisting that the plaintiff' acquired no lien on the said land before the said-petition in bankruptcy was filed, or even before the conveyance of the bankrupt’s estate to the assignee,- on the 3d day of June 1868, as aforesaid. A copy of the conveyance, which'was recorded in the clerk’s office of Smyth County court, was filed as an exhibit with the answer. To the said answer the plaintiff replied generally. And the plaintiff also, it seems, filed as an exhibit in the cause, a copy of the record of the suit in Alabama, in which a decree was rendered on the 4th day of December-1866, for the amount of the debt claimed by him, from which copy it appears that the execution issued upon said decree was returned “no property found, June 1, 1867.”
On the 19th day of November 1869, the cause came on to be heard on the papers formerly read, the ariswer of the said assignee in bankruptcy, and replication thereto, and exhibits filed, and the written agreement aforesaid; on consideration whereof, the court was of opinion, that the plaintiff was entitled, as against the said assignee, to the proceeds of the sale of the land of the said Frank A. Sanders, sold by commissioner Sheffey as aforesaid, and decreed accordingly. From that decree the said assignee applied for and obtained the appeal we are now considering.
I am of opinion, that from the time of the institution *223of this suit, or at least from the time of the filing of the bill, the plaintiff bad a lien upon the real estate of his debtor, Frank A. Sanders, therein mentioned, for the payment of the debt therein claimed; that the said debtor having become a bankrupt long after the institution, and during the pendency of the said suit, his assignee in bankruptcy can stand on no higher ground in regard to the said suit and the claim asserted therein than the bankrupt himself, but stands in his shoes, and is entitled only to his rights; and that there is no error in the decree appealed from, either as to the said bankrupt himself, or as to his said assignee.
I am therefore of opinion that the said decree ought to be'affirmed.
The other judges concurred in the opinion of Mon-cure, P.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481753/ | Moncure, P.
delivered the opinion of the court.
This was an action of ejectment, brought by the heirs at law of Elkanah Wynne, in the Circuit court of Lee county, against Thomas Ely and Andrew M. Ely, for the recovery of a tract of land in said county, to which the plaintiffs claimed to be entitled in fee simple. Issue was joined on the plea of not guilty ; and the parties, by their counsel, by consent entered of record, waived the right to have a jury, and agreed that the whole matter'of law and fact might be heard and determined, and judgment given by the court. Whereupon the court, having maturely considered the matters of law and fact in the case, rendered judgment in favor of the plaintiffs against the defendant, Thomas Ely, for a part of the premises in the declaration mentioned, said part being described in the judgment by metes and bounds ; and against the defendant A. M. Ely, for the residue of the premises in the declaration mentioned ; and against both defendants for costs of suit. To the said judgment, the defendants excepted; and áll the facts admitted or proved on the trial were set out in a bill of exceptions, which was made a part of the record. And the defendants applied to a judge of this court for a supersedeas to the said judgment; which was accordingly awarded.
Both the plaintiffs and defendants in this case claim title to the land in controversy, under Elkanah Wynne, the plaintiffs as his heirs at law, and the defendants under Sarah Dougherty, a divisee of the said Elkanah Wynne. The question of title depends upon the true construction of the 6th clause of the will of said Elkanah Wynne, which will bears date on the 17th of August 1833, and was admitted to probate on the 18th of November 1833. That clause is in these words ;
“ 6thly, I give and bequeath to my daughter, Sarah *226Wynne, now Sarah Dougherty, the tract of land purchased of George R. Ely, and joining Alexander Ely and Charles Hambler, to her and the heirs of (her) body; but should the said Sarah Dougherty die without heir, as above mentioned, my wish is that the said land shall return to my other heirs, and be sold, and the moneys arising from such sale to be equally divided among all my heirs. ”
The land devised by that clause is the land in controversy. Josiah B. Dougherty and the said Sarah his wife, held it in her right, under the said clause, from the death of the testator until the 17th of November 1836, when they conveyed it in fee simple, with covenant of general warrauty, to James A. G. Ely, who, and those claiming under him, have been in possession ever since, and under whom the defendants in this action claim title, and were in possession claiming title at the time of the institution of this suit. Sarah Dougherty died two or three years before the institution of the suit, without ever having had a child. The question is, whether the contingent limitation to the other heirs of the testator, contained in the said 6th clause of his will, took effect at the death of his said daughter. If it did, the plaintiffs are entitled to the land in controversy. If it did not, they are not.
There can be no doubt but that, if the testator had died prior to the passage of the act passed February 24th, 1819, 1 R. C. p. 361, ch. 99, the said limitation over would have been a limitation to take effect on an indefinite failure of issue, and would have been ineffectual.
But the testator having died since the passage of that act, to wit: in 1833, the case is governed by sections twenty-five and twenty-six of that act, Id. p. 369, which were then introduced for the first time into our Code, and are in these words :
“ 25. Every estate in lands which shall be limited by .any deed hereafter made, or by the will of any person iwho shall hereafter die, so that, as the law was on the *227seventh day of October, in the year of our Lord, one thousand seven hundred and seventy-six, such estate would have been an estate tail, shall be deemed to be an estate in fee simple, in the same manner as if it had been limited by those technical words which, at the common law, are appropriate to create an estate in fee simple ; and every limitation upon such an estate shall be held valid, if the same would be valid when limited upon an estate in fee simple, created by technical language aforesaid.
“ 26. Every contingent limitation in any such deed nr will, made to depend upon the dying of any person without heirs, or heirs of the body, or without issue, or issue of the body, or without children or offspring, or descendant or other relative, shall be held and interpreted a limitation, to take effect when such person shall die, not having such heir or issue, or child or offspring, or descendant or other relative, as the ease may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise' expressly and plainly declared on the face of' the deed or will creating it.”
How, as the estate given to Sarah Dougherty by the sixth clause of the said will would have been an estate tail, as the law was on the 7th day of October 1776, therefore by the force and effect of the said twenty-fifth section, such estate is “deemed to be an estate in fee simple, in the same manner as if it had been limited by those technical words which at the common law are appropriate to create an estate in fee simple,” and the limitation upon such estate to the other heirs of the testator, contained in the latter part of the said clause, is to be held valid “if the same would be valid when limited upon an estate in fee simple, created by technical language as aforesaid.”
The said limitation would be valid when limited upon an estate in fee simple as aforesaid, provided the said *228limitation, according to the law of the land, and the true intent and meaning of the testator, was to take effect at the death of the said Sarah Dougherty.
How, as the limitation aforesaid is, by the said sixth clause of the will, made to depend upon the dying of the said Sarah Dougherty without heir of her body, therefore, by the force and effect of the said twenty-sixth section, such limitation is to “ be held and interpreted a limitation, to take effect when such person shall die not having such heir ” living at the time of her death, or born to her within ten months thereafter, “unless the intention of such limitation be otherwise expressly and plainly declared on the face of the” will creating it. Certainly no such express and plain intention is declared on the face of the will in this case, but the contrary intention rather appears.
We are therefore of opinion that the plaintiffs, the heirs at law of the said testator, became entitled to the tract of land in controversy upon the death of the said Sarah Dougherty.
We have not deemed it necessary to review the many cases referred to in the argument of the learned counsel of the plaintiffs in error in reference to the question we have just been considering, because we thought that while they might, and no doubt would, have been conclusive against the title of the said heirs at law of the testator, if he had died before the passage of the said act of 1819; yet, as he died thereafter, they, the said heirs, are under the operation of the twenty-fifth and twenty-sixth sections of that act, plainly entitled to the land in controversy.
The next question we will consider is the second assignment of error in the petition of appeal, that the action of the heirs at law is barred by the adversary possession of the defendants in said action, and those under whom they claim. That adversary possession commenced, as it is contended, from the time of the *229execution of the deed from Dougherty and wife to James A. G. Ely, dated the 17th day of November 1836, and has continued ever since in the said grantee and those claiming under him, including the defendants in the said action.
. The deed aforesaid certainly conveys the land in absolute fee simple to the said grantee, with covenant of general warranty. At the time of the conveyance, the grantors, in right of the wife, were seized of an estate in fee, defeasible by the death of the wife without issue living at her death. Had she left issue living at her death, the estate in fee would thenceforward have been indefeasible. Probably, when the deed was executed, it was expected that she would leave,tissue living at her death. At all events, the deed, however absolute and unconditional on its face, could have no greater effect than to invest the grantee with the title of the grantors, and it invested him with that title, even though it may have professed to convey more. The effect of the conveyance, as to the parties claiming under the contingent limitation over, is precisely the same as if the conveyance had been expressly subject to such limitation. Until the death of Sarah Dougherty, without issue living at her death, the heirs at law of the testator had no right of action for the land. Their right of action then and thereby accrued, and the act of limitation could begin to operate against them only from that time. Sarah Dougherty aud her assigns held the land in privity with the title of those claiming under the contingent limitation over, and could not hold adversely against it during her life. This view is fully sustained by the decision of this court in Clarkson, &c., v. Booth, 17 Gratt. p. 490.
We are, therefore, of opinion that the action is not barred by adversary possession, or the act of limitations.
The third assignment of error is, that if the heirs at law of the testator have any interest under the contingent limitation contained in the said 6th clause of the *230will, it is not such an interest as entitles them to maintain an action of ejectment for the land, but the right to maintain such action is vested only in the executor of the will.
The land is not by the will devised to the executors to. be sold for the benefit of the heirs at law of the testator, in the event contemplated, but the will declares that in that event, “ my wish is, that the said land shall return to my other heirs, and be sold, and the moneys arising from such sale to be equally divided among all my heirs.” To be sure, the Code, chapter 131, section 1, p. 598, provides that “ real estate devised to be sold shall, if no person other than the executor be appointed for the purpose, be sold and conveyed” “by the executors who qualify, or the survivor of them.” But this statute does not operate as a conveyance of the estate, or any interest therein, to the executors, but merely to give them power to make any sale of real estate which the will directs to be sold, without empowering any particular person to make the sale. The object of the statute “was to prevent the necessity of resorting to a court of equity for the appointment of a trustee, by devolving the execution of the power upon the executors, who are supposed to be fit and proper persons for the execution of it. The nice distinctions taken by the authorities between a power coupled with an interest or a trust, and a naked power, in regard to devises of land for sale by an executor, which distinctions are referred to in 4 Kent’s Com. p. 320, marg.; 1 Lomax on Executors, p. 218, marg.; and Mosby's adm'r, &c., v. Mosby's adm'r, 9 Gratt. p. 590, seem not to be applicable to this case, in which there was no devise either to the executors to sell, or that a sale should be made by the executors, but merely an expression of a wish that the land should be sold, without saying by whom. If it could be said that those distinctions apply to this case, the executor under the statute would seem to have a naked power of sale, rather than a power coupled with an interest; and *231if it is a power coupled w-’itli a trust, the operation of the power and the trust did not commence before the making of the sale, so as to prevent the heirs before that time from maintaining an action for the land, recovering and retaining possession thereof, and receiving and enjoying the rents and profits until it should be sold. The testator says that in the event contemplated, “my wish is, that the said land shall return to my other heirs.” How here is an express devise to his other heirs, who thereby became invested, on the happening of the said event, with the title and right of possession of the land. To be sure, the will further proceeds in these words: “and be sold, and the moneys arising from such sale to be equally divided among all my heirs.” But that was surely not intended, and cannot have the effect, to impair the right of the heirs, under the express devise to them, to take and hold the laud to their own use until a sale should be made. The power was to sell, not to hold or rent out the land in trust for the heirs. But that power—if power it could be called without a donee— was intended for the exclusive benefit of the heii’s, who might have waived it, and elected to hold the land as real estate, instead of regarding it as converted, and holding it as personalty. -More than three years after they became entitled to the land they brought an action of ejectment to recover possession of it. It does not appear that a sale of it has ever been attempted, or been in contemplation. It does not appear that there is now, or was at the death of Sarah Dougherty, any personal representative of her father in existence. His will was recorded in 1883, nearly forty years ago. Can it be said, under these circumstances, that when this action was brought, his heirs had not “a subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof,” wfithin the true intent and meauing of the Code, chapter 135, section 4, page 610? We think not.
*232We are, therefore, of opinion that the said heirs have a right to maintain this action.
The fourth and last assignment of-error is, that the verdict and judgment are void for uncertainty and variance.
We think there is no just foundation for this assignment of error; that there is sufficient certainty in the verdict and judgment; and that there is no material variance between them. It is not material that an order of survey was made in the case, and not executed. It sufficiently appears, from the facts admitted or proved on the trial, and certified in the record; and from inferences properly deducible therefrom, that the land recovered by the verdict and judgment is. identical with the land demanded in the declaration, and that both parties claimed under the will of Elkanah Wynne. That all proper inferences which might he drawn by a jury may be drawn by the court from the facts proved or stated in such a case, was decided by this court in Dearings adm’x v. Rucker, 18 Gratt. 426.
Upon the whole, we are of opinion that there is no error in the judgment, and that it he affirmed.’
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481754/ | Anderson, J.
The appellees are a body corporate, organized in November 1867, under the acts of May 29, 1852, and January 31, 1867, as a building fund association. The appellant was a member thereof, holding ninety shares of stock therein ; fifty in his own name, and forty in the name of his brother, E. A. D. White ; seventy of which were redeemed by the association, within the first seven months of its organization, for the sum of $4,283. The remaining twenty shares were sold to the institution, and cancelled.
The appellant alleges in his bill, that the money was advanced to him as a loan, and that his shares were assigned to the association as a pledge or security for the same ; and that upon the final division he is entitled to his shares, subject to a deduction for the advances made on them, which he understands will be contested by the appellees ; and, therefore, he asks that the matter may be determined by the court, and his rights in the premises adjudicated. The answer of the defendants to this allegation does not clearly reveal the ground on which they stand. But in the argument the pretension of the appellant was earnestly opposed. And it is plainly negatived by the twenty-third article of the association, which provides, that the association is to cease when the money *242in hand and due is sufficient to pay two hundred dollars on eac^ unredeemed share to the holder thereof, over and above all liabilities of the association. There is no provision for any payment on the redeemed shares. But as 800Q as ^ere is money enough in hand and due, after paying debts and liabilities, to pay two hundred dollars on each unredeemed share, all further contributions to increase the capital stock are to cease; the holders of the unredeemed shares are to be paid, and the association to be dissolved. The deeds of trust are to be released where the grantors have complied with their requirements, but no money is required to be paid on the redeemed shares. Eo provision is made for it, and none intended ever to be made; for the association, after dividing all the fund accumulated amongst the unredeemed shares, is dissolved, and ceases to be. Evidently the parties who mutually agreed to form this association, and entered into these articles, did not intend, as now claimed by the appellant, that the stockholder who had received payment for his shares in advance should, at the final division, come in for a further payment.
If this article is within the scope and authority of the statute, the transactions of the parties in conformity to it cannot be gainsaid. I was at first of opinion that it was irreconcilable with section 7 of the statute before referred to. That section is in these words: “Every such association, unless sooner dissolved by a vote of a majority of the stockholders, shall continue in being until the fund accumulated, including shares redeemed, and all property, money and other effects, shall amount to such a sum as will enable the company to divide on each share a sum equal to the par or ultimate value of the .shares agreed upon in the articles, and no longer; and in such estimate the redeemed shares shall be estimated at their par value.” The articles require a dividend to be made amongst the holders of the unredeemed shares when the fund is sufficient to divide two hundred *243dollars a share amongst them. This section of the statute requires division to be made only when the fund is sufficient to pay on “each share” (which meaus redeemed and unredeemed) two hundred dollars, and requires the association to continue in being until then, “and no longer.” The other requires the association o * to continue in being until the fuud is sufficient to divide two hundred dollars amongst the unredeemed shares only, and requires it to be paid to the holders of them, and that the association shall then be dissolved. The one contemplates and requires that the association shall terminate when the fund is sufficient to divide two hundred dollars amongst all the shares, redeemed and unredeemed. The other requires the dissolution when the fund is sufficient only to divide two hundred dollars amongst the unredeemed shares, and requires that the whole of it shall be divided amongst the holders of the unredeemed shares. How can they be reconciled ?
The difference is only apparent. The statute provides that, in ascertaining the sufficiency of the fund for division, the redeemed shares shall be computed at their par or ultimate value, as a part of it. The articles do not include them in the fund for division. The statute treats them as the property of the association, having been paid for in advance, and therefore as assets. The article ignores them, as having been bought in by the association and sunk—merged in its capital stock, which consists of “ money in hand and due the association; ” and therefore provides that it shall be dissolved,, when “there is sufficient money in hand and due the association for the purposes of division,” &c. So that, in fact, the condition of the association is precisely the same when it is to be dissolved, either by the statute or by the articles—that is, when its actual fund is sufficient to divide two hundred dollars on the unredeemed shares. To illustrate it, suppose there were twenty shares, ten of them redeemed, and the remaining ten unredeemed. *244The fund required to divide two hundred dollars on each share, redeemed and unredeemed, is four thousand dollars. But according to the provision of the statute, two thousand dollars of that fund consists of the estimated value of the redeemed shares, which leaves two thousand dollars, which is only sufficient to pay the unredeemed shares, and there is, in fact, nothing provided by the statute to pay the redeemed shares. And there was no occasion for it, as they had already been paid in anticipation.
This view also comports with the declaration of the purposes of the act of incorporation in the first section : to accumulate “a fund which will enable its respective members to purchase houses and lots,” &c ; “and for the further purpose of distributing among the"members who do not receive aid by advances on their shares, for the object aforesaid, their proper dividends of the funds so accumulated in money.” It seems to have been contemplated, that one class of stockholders would be aided by the use of money, in acquiring and preserving homesteads, whilst the other class was to receive a dividend of the fund accumulated. By this construction these sections are in harmony one with the other, and both are in harmony with the articles of association. We are of opinion, therefore, that the appellant, by the assignment of his shares for the sums paid him by the association, parted with his property in them, and that he is not entitled to receive a dividend upon them in the division of the assets of the association; that the redemption of his shares was in conformity with the requirements of the statute, and the articles of association; and that, when the assets of the association, exclusive of the redeemed shares, are sufficient, after payment of debts and liabilities, to pay on each unredeemed share, to the holder thereof, the sum of two hundred dollars, all monthly accruing demands of interest and payments on stock and fines must cease; a division of the assets be *245made amongst the holders of the unredeemed shares; the grantors in deeds of trust, who have complied with the conditions and requirements of their deeds, released; and the association be dissolved. "Whether these conclusions will subject the advanced stockholder to onerous burdens, is a matter the opinions in relation to w'hich widely differ. It is contended on the one hand, that the institution operates very beneficially to the man who has but small means, and who is destitute of a home that he can call ’ his own, as it will enable him to acquire property in a home for himself and family, and pay for it in the course of six or eight years, at a cost very little exceeding what he would have to pay in rent for a leasehold for the same period. On the other hand, it is contended, that the exactions operate as a grinding oppression on those who find themselves unable to meet the requisitions.
Which of these opinions is correct, we will not undertake to say. If the transactions and dealings of this association with its members are warranted by statute, and that statute is warranted by the constitution, though they may operate harshly and oppressively, it is not the province of the courts to relieve. The fault is in the law, which the legislature alone can alter; or in the improvidence of the party, which neither the legislature nor the courts can remedy. We will remark, however, that such institutions have existed in England for many years, and in America from a period long anterior to the first recited statute. And it would seem that they must have been regarded as useful institutions where they have been so long sustained. But we will remark further, that whether this association proves beneficial or not to the advanced stockholder, there is an exhibit it makes in this case, which shows very great inequality between the two classes of stockholders; and that is, whilst the appellant has received upon an average only ^61.90 a share for his stock, the unadvanced stockholder *246will receive $200 a share for his; a difference on each share of $138. It is true that the former receives pay'ment Avance > but be is required to pay interest monthly upon the sum he received, until the unadvanced stockholder receives his $200; and is required to pay all the other requisitions which the unadvanced stockp0]qer jg required to pay. This inequality would not be, if redemption could be regarded as a loan and security, and the advanced stockholder, as still the owner of his Bhares of stock, subject to a charge for the sums advanced upon them. But we find that the articles of association are plainly to the contrary, and that, upon a careful scrutiny, they are supported by the statute; and we are bound to enforce the law as it is written.
As to the charge of usury in the bill, we do not think it is supported. But is not the difference between the sums paid to the advanced and uuadvaneed stockholders on their shares, a premium paid by the former, at least in part, in addition to the six per cent, interest which he is required to pay on the money which be received upon his shares of stock, and, therefore, within the prohibition of the eighth section? I was strongly inclined to that opinion. But upon a careful review of the case, the consideration that this excess which one class of stockholders receives over the others for their shares is produced by the payment of interest authorized by the eighth section, and the requisitions expressly authorized by the proviso to the prohibition, and that the seventh section requires the division to be made in a way by which these monthly payments necessarily enure to the beuefit of the unadvanced stockholder, by raising his shares of stock to the par or ultimate value, I yield my doubts, and concur with my brethren in the opinion, that it is authorized by the statute, and, therefore, cannot fall within the prohibition of the eighth section.
Hitherto we have considered the case upon the contract of redemption, and the assignment of the appellant’s *247shares to the association, upon the hypothesis that the appellant meets the regular requisitions upon him until the association is dissolved by force of the charter. "We have now to consider it in the other aspect—that is, in a case where the association is dissolved by the vote of the stockholders, as authorized by the statute, before a dissolution by force of the charter could take place; or in a case where the appellant is in default in the payment of the regular monthly dues and fines, so that his property conveyed by the deeds of trust to secure the payment during the continuance of the association, or a part of it, has to be sold before the termination of the association.
The stockholders might desire to dissolve the association long before its regular termination by force of the statute. Suppose they had desired to dissolve the association at their next meeting after the seventy shares of appellant had been redeemed, when he had paid in only nine dollars on the share, upon which he had received 161.90; they could not do so in justice to the other members of the association, unless they could require appellant to return a part of what had been paid to him. Or suppose that, long before the accumulated fund, after paying debts and liabilities, was sufficient to divide two hundred dollars on the unredeemed shares, which is this case, the appellant stops payment, and refuses to pay up the arrearages against him, and that the board, in order to enforce payment, directs his property conveyed in trust to be sold, and his property is sold—what security has the association that he will afterwards continue to pay, in fulfilment of his solemn covenant, until the association is in condition to dissolve? "What provision is made to meet these contingencies ?
It is the agreement, evidenced by the bonds of appellant and his deeds of trust, that in either of those contingencies he will pay such sum in discharge of his obligation, and in lieu of the principal sums which had *248been advanced to him, as shall be determined to be right and proper by the board of directors, “according to the rate at which shares may be redeeming at the time of such sale or dissolution.” And the deeds of trust require the trustees to pay such sum to the association, out of the proceeds of the sale, in addition to the arrearages on account of monthly dues and fines, which he may be owing. It is virtually an agreement that the association will take the appellant’s shares of stock, with his covenants in relation to them, and the security he offered for the fulfilment of those covenants, for the price paid; with condition that if he shall fail to fulfil his covenants, and the security has to be sold, he will pay back such sum as the referees mutually chosen shall determine to be right and proper, according to a certain specified rule or method of ascertaining it. We can perceive nothing in such an agreement that would render it unlawful, or the parties incompetent to make it.
The only remaining question is, Was it a proper case for an account? or ought the amount of appellant’s indebtedness to have been ascertained before the injunction was dissolved ? In Smith & al. v. Flint & al., 6 Gratt. 40, it was held that the sale of land should not be directed, though unquestionably chargeable in equity, until the amount of the debt is ascertained. Judge Cabell, delivering the opinion of the court, says : “ John S. Wellford, executor, has an unquestioned lien for the payment of his debt; and if the amount had been ascertained, it would have been proper to direct a sale of the land for its payment. But as the l’ecord states that it did not appear to the court what amount was due, the decree for a sale of the land for the payment of that debt was premature and erroneous.” See also Lane v. Tidball, 1 Va. R. 180.
A part of the debt for which the sale, it seems, was to be made, to wit,x$l,201.28—the balance due from the appellant on account of monthly dues and fines—*249was well ascertained; and the deed of trust expressly authorizes a sale for any default in those payments. But the appellant alleges in his bill, and it,is not denied in the answer, that the land advertised to be sold was worth, and would sell for, vastly more than the amount so due. It was clearly competent for him to have objected to the sale of the whole tract to satisfy that sum. The trustees are the agents of both parties, and are bound to have respect to the rights and interests of both in the administration of the trust. And if the appellant had laid off a portion of the tract, and requested the trustees to sell that to satisfy the arrearage of monthly dues and fines, and their authority was limited to sell for that sum, it would have been their duty to comply with the request, unless they had reason to believe that the portion so laid off was insufficient, or that their compliance might impair or endanger the security which the deed was designed to give for his other indebtedness.
But in this case the record does not show that the appellant proposed to lay off a part or parcel of the land conveyed to be sold to satisfy this debt, or that he requested the trustees to sell in parcels. No such request having been made, and no proposition made to lay off and sell any particular portion of the land, was it required of them, as the agents of both parties, to have done so of their own motion ? The ease did not present that question for their decision.
It was not their purpose to sell only to satisfy the arrearage of $1,201.28, but the sum also which the appellant was liable to pay in lieu of the principal sums advanced to him, which was to be ascertained and determined on by the board of directors, which they are authorized by the deeds to do. For the deeds expressly require the trustees to pay that sum out of the proceeds of sale, and the balance, if any, to pay over to the *250grantor. And we are here met by the question, Was it necessary that such sum should be ascertained before sale was made %
It was not necessary that the appellant should know the amount in order to stop the sale by its payment. He was authorized to stop the sale without paying any part of it; that is, by the payment of $1,201.28. And inasmuch as the question as to the amount due and owing on the latter account could be as well determined after as before the sale, and was not in conflict with the deeds, but seems to have been contemplated by them, and was authorized upon any default, and the determination would be equally subject to judicial supervision, whether made before or after the sale, I was inclined to think that this case did not fall within the principle of Smith v. Flint, supra, and that the sale could be made within the authority of the deeds of trust before the chosen referees had determined what sum should be paid in lieu of the principal sums advanced. But -my brethren being of opinion that the amount should have been ascertained before the sale, and as the uncertainty as to the extent of the charge upon the land might in some way have prejudiced the sale, I yield to their judgment.
The court is therefore of opinion, that the board of directors should have ascertained and determined what sum was due from the appellant in lieu of the principal sums advanced to him by the association before they made sale of the land conveyed to them, and that the decree dissolving the injunction was therefore premature and erroneous, and for this cause must be reversed.
The other judges concurred in the opinion of Anderson, J.
The decree was as follows :
This case having been heard by the court at its place *251of session at Staunton, where it is pending, but not having been there determined, this day came on for determination here ; whereupon the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing, to be filed with the record, that the Building Fund Association, by the redemption of the appellant’s shares of stock, acquired the right of property therein; and that the assignment of them to the association, by the appellant for the price he received, was not an hypothecation for a loan, but an absolute surrender of them to the association, whereby they were sunk and •extinguished, and consequently could not entitle the appellant to participate in the final division and distribution.
The court is further of opinion, that such division and •distribution is required to be made when the accumulated fund is sufficient to pay on each of the unredeemed shares two hundred dollars, after the payment of all debts and liabilities of the association, and that the twenty-third article of the association on this subject is authorized by section seven of the statute.
The court is further of opinion, that the assignment of his shares of stock by the appellant to the association, did not release him from his covenant, as a party to the articles of association, to make his regular monthly payments on stock, and on account of fines, and that the enforcement of his said obligations is secured by his bond and deed of trust, by which also he obligates himself to pay interest at the rate of six per cent, per annum on the sums actually received, as authorized by section eight of the statute, until the termination of the association ; and that the transactions between the parties were not usurious, nor within the prohibition of the said eighth section.
The court is further of opinion, that for any default in the payment of monthly dues or fines, the trustees were authorized and required to sell, when requested by the *252board of directors, the property conveyed to them in trust by the appellant, not only to satisfy the arrearages due, but also such sum as might be due and payable by him on account, or in lieu, of the principal sums advanced, or paid to him for his shares, to be ascertained and determined by the board of directors, who are the chosen referees of the parties for that purpose, according to the rate at which the shares may have been redeeming at the time the sale was advertised to take place ; but that such sale ought not to be made until such indebtedness was ascertained, and that, consequently, the decree dissolving the injunction, and allowing the trustees to proceed with the sale before the amount of the debt charged upon appellant’s land was so ascertained, was premature and erroneous.
It is, therefore, decreed and ordered, that for this cause, said decree be reversed and annulled, and that the appellees, The Mechanics Building Fund Association of Lexington, pay to the appellant his costs expended in the prosecution of his appeal aforesaid ; aud the cause is remanded to the Circuit court of Rockbridge for further proceedings to be had therein, in conformity with the principles of this decree ; that an account be directed to be taken by a commissioner of said court to ascertain the amount of plaintiff’s indebtedness to the association on the 26th day of April 1870, on account of arrearage of interest, monthly payments on stock aud fines, and also an account of principal sums paid to him by the association, as may be ascertained and determined by the board of directors, according to the rate at which shares were redeeming at that time, it being the time when the property was advertised to be sold, and the time when the accounts should be closed. And that said commissioner be required to report to the court thereof, with such testimony as either party may offer, bearing upon the questions submitted to him, in order to a final decree.
*253Which is ordered to be entered on the order-book of the court here, and to be forthwith certified to the clerk of this court at Staunton, who shall enter the same on his order-book, and certify the same to the clerk of the Circuit court of Rockbridge county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481755/ | Moncure, P.
delivered the opinion of the court. After stating the case he proceeded:
In the petition of appeal various errors in the decree are assigned, but it will be necessary to notice only a few of them. The counsel for the appellants contended that the State court, and not the Federal court, had jurisdiction of the controversy, and in this view we concur with the counsel. It sufficiently appears in the record that before the appointment of Camp as receiver, and while he was acting as trustee, he transferred the note and bonds to Burke, Herbert & Co., whose duty it thenceforward became to collect the note, and make the-*260bonds available as collateral security, if necessary, for that purpose. They were invested with the title to the subject, for their own benefit, to a certain extent, and for the benefit of the trustee, Camp, or the creditors of the bank, as to the residue. They were entitled to pursue, in their own name, all the remedies which existed to make the claim available, and they had a right to do so as well after as before the appointment of Camp as receiver. That appointment was in subordination to the transfer to them, which was prior in time and paramount in right. If such appointment had been prior and paramount to the "transfer to them, then we would have concurred with the Circuit court in considering that the remedy of the appellants, if entitled to any, was by an application to the Federal and not to the State court, and that on that ground the decree was rightly rendered. But differing as we do with, the Circuit court in that respect, and regarding the controversy as a proper subject of litigation in the State courts, we proceed, in that view, to consider the errors assigned in the petition, or such of them as seem to be material.
The counsel for the appellants very properly placed no reliance on, if he did not expressly waive, such of the assignments of error as are plainly untenable. For instance, he placed no reliance on the first assignment of error, “That it was the duty of Camp, as trustee of the bank, to have received the notes of the bank in payment of the petitioner’s negotiable note due to the;a bank.” That it was not his duty to have done so, was expressly decided by this court in the cases cited by the counsel of the appellee, Camp, of Exchange Bank of Virginia v. Knox, &c., and Farmers Bank of Virginia v. Anderson & Co., 19 Gratt. 739. It is proper to state, however, that those cases were decided after the appeal was applied for in this case. For did he place any reliance on the fourth assignment of error, “That the said note is invalid and inoperative, the same having been made at *261Alexandria whilst in the Federal lines, and payable to a person residing in the Confederate lines.” This was a mere renewal of a note which had been long running at bank. It was merely the evidence of the-debt, which remained the same debt, notwithstanding the renewal of the note from time to time. The appellant would have owed the debt if the last renewal had never been given, and would owe it if that renewal could be avoided. As the counsel for the appellee, Camp, rightly argued, “The note was discounted by the branch of said bank at Alexandria, aud was held by the said branch as the authorized agent of the mother bank for collection. It so remained until the close of the war. Ward v. Smith, 7 Wall. U. S. R. 447.”
But we will proceed at once to consider the only assignments of error relied on by the counsel for the appellants. They are the fifth and the sixth.
The 5th is in these words: “There being no special agreement to confer on the bank the power to sell the security, it was not competent for the bank to sell, much less Burke, Herbert & Co.”
In regard to the right of a pawnee or pledgee to make the pawn or pledge available, the law is thus laid down in 2 Kent’s Com. 582, marg.: “ The English law now is that after the debt is due the pawnee has the election of two remedies. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate and other chattels, pledged for the payment of the debt. But the pawnee is not now bound to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land (though Lord Chancellor Harcourt once held otherwise), aud he may sell without judicial process, upon giving reasonable notice to the debtor to redeem.” To the same effect is the law laid down in 2 Story’s Eq. § 1008. In ordinary cases no special agreement is necessary to confer on the pledgee *262power to sell the property pledged. The power is, ordinarily, incident to the pledge. There are, however, exceptions to the general rule. The case of Wheeler v. Newbould, 16 New York R. 892, cited in the petition, is a case in which there was such an exception. There it was held that “the pledge of commercial paper as security for a loan of money does not, in the absence of a special power for that purpose, authorize the pledgee, upon the non-payment of the debt, and upon notice to the pledger, to sell the securities pledged, either at public or private sale; but he is bound to hold and collect the same as they become due, and apply the money to the payment of the loan.” The natural and proper mode of making such a security available was by collecting the money, and not by selling the security. The notes pledged in that case were due at short periods, and it could not have been intended by the parties that they might be sold by the pledgee, if the principal debt were not paid at maturity. But the same reason does not apply to property which can be made available only by a sale, or to make which available a sale is the proper and legitimate mode. In this case the pledge was of coupon county bonds, which are an ordiuary subject of sale, and the proper and legitimate, if not the only, mode of making them available is by a sale. In Wheeler v. Newbould, the existence of the ordinary rule as laid down in Kent and Story supra, is admitted, and those authorities are referred to, and the cases of Willoughby v. Comstock, 3 Hill, N. Y. R. 389, and Dyckers v. Allen, 7 Id. 497, are cited, in which the ordinary rule was applied to pledges of stock.
We, therefore, think it was competent for the bank to sell the bonds in this case, or would have been if the bank had not transferred them to Burke, Herbert & Co. We also think that it was competent for Burke, Herbert & Co., as transferees of the note and bonds, to make the sale.
*263It seems to have been conceded by the counsel for the appellants, in argument, that the Exchange Bank would have had a right to sell the bonds, and also that the assignment of the note carried with it an assignment of the pledge. In this case, the bonds were expressly transferred along with the note. But the counsel argued that the original pledgee was, in effect, a trustee, who could not delegate his trust, and therefore, that an assiguee of the debt is not a trustee, and cannot sell the property pledged, though he may have it sold under a decree of a court of chancery. The counsel admitted that he could find no authority to sustain this view. The power to sell property pledged for the security of a debt does not arise from any peculiar trust reposed in the original creditor, but is an incident to the pledge, and a part of the security of the debt. It follows the debt into whosesoever hands it may come. That no authority can be found, or was not found, by the learned counsel to sustain his view, goes far, very far, to show that it is unsound. In the commercial world it must often occur that debts secured by a pledge are assigned, and that the assignee exercises the ordinary right of selling the subject of the pledge on the non-payment of the debt. We have not sought for cases of this kind, but doubt not there are many in the books. If there are not, it is doubtless because the right has never before been questioned. On principal, we think there is no doubt.
The sixth assignment of error is in these words: “Even if the creditors had authority to sell without judicial proceedings, personal notice to redeem, and of the time, place and manner of the intended sale, must be given to the pledger. Ko such notice was given. 16 New York R. 392 ”
Certainly before a sale can be made by the pledgee, without judicial proceedings, he must give reasonable notice to the debtor to redeem. Such notice is iudis*264pensable. 2 Kent’s Com. 582, marg.; Stearns v. Marsh, 4 Denio’s R. 227. Such notice was given in this case. So also reasonable notice must be given to the debtor 0f the time and place of sale. Id. 2 Story’s Eq. § 1008-“The creditor will be held at his peril to deal fairly and with the pledge, both as to the time of the notice and the manner of the sale.” 2 Kent’s Com. supra. It does not appear that in this case any formal notice of the time and place of sale was served upon or given to-the, debtor, but it does appear that the debtor had actual notice thereof, and that is sufficient. It is equivalent to the most formal notice. The only object of requiring notice to be given in such a case is to inform the debtor of the time and place of sale; and when he is already otherwise fully informed on the subject, to require a further and more formal notice to be given him is to require a vain thing. The case is not like a legal proceeding, in which service, or waiver of notice, should appear in the record. Here the whole matter is in pais, and the question is, Hid the debtor have actual notice of the time and place of sale? The safest course is to have a formal written notice served upon him, for then the fact of notice can be easily proved. If this safe course-be not pursued, the creditor must, at his peril, be prepared to prove otherwise that the debtor was informed of the time and place of sale a reasonable time before the same was to take place. Here there can be no doubt about the fact that the debtor had such information-The written notice to redeem was very specific, and notified the debtor that unless payment of the debt should be made on or before a certain day, the creditor would thereafter proceed to sell the bonds and apply the proceeds to the payment of the debt. The debtor, not having complied with this requisition to redeem, had every reason to expect that his failure would soon be followed by a sale, according to the notice. Accordingly, early in December following, the very next month, *265a sale of the bonds was advertised in the Alexandria Gazette, a newspaper published in the city which was the chief terminus of the road of the Alexandria, Loudoun & Hampshire Railroad Company, and the place, no doubt, where the principal office of the company was located and their chief officers resided. The day fixed for the sale was the 15th of November, more than a month after the advertisement was first inserted in the newspaper, and such insertion was to be continued weekly until the day of sale. If the fact of actual notice could not be inferred from these strong circumstances, there is other and conclusive evidence in the record of such actual notice. The injunction was obtained on the 8th day of January 1870, one week before the day fixed for the sale, and a copy of the advertisement is filed as an exhibit with the bill, thus conclusively showing that the plaintiffs were fully informed of the time and place of sale, just as much so as if a copy of the advertisement had been served upon them.
We are, therefore, of opinion that there is no error in the decree, and that it ought to be affirmed.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481757/ | Staples, J.
This is an action-of assumpsit against the county of Carroll. It was instituted to recover the amount claimed to be due the plaintiff upon a contract for the erection of a jail. The defendant demurred to the declaration and to each count; but his demurrer was overruled. The question, therefore, first to be considered, is the sufficiency of the declaration. It is insisted the plaintiff should not only aver he had built a jail, but he ought to show how he had built it, the nature, qualities and dimensions of the building erected, that the court might determine whether it constituted such a jail as the law requires.
*307The law does not prescribe any specific plan for county jails, but confides the whole subject to the wisdom and discretion of the county authorities. Whether a county can avoid its liability to a contractor who has fully complied with the terms of his contract, by showing that the building possesses none of the requisites of a countyjail, it is unnecessary now to decide. It is to be presumed that the court properly discharged the duty devolving upon it, and in the contract with the plaintff, contracted for a suitable building answering all the requirements and purposes of a public jail. It was, therefore, only necessary in this case, for the plaintiff to aver and prove the contract and its performance on his part, to entitle him to a recovery.
The second objection to the declaration is, that it states a contract for a county levy and the proceeds to be applied to plaintiff’s claim, but it is not averred that such levy was not made. It is true the declaration alleges that the County court agreed to provide for paying the plaintiff by two equal annual levies ; and that the sheriff was to be permitted to collect these levies, and make the payments by certain specified periods. But it would not follow, that the plaintiff had thereby released the county from its obligation to him, and consented to look solely to the sheriff" for the amount due him. On the contrary, it is expressly averred, that the defendant, in consideration that the plaintiff would build the jail according to the contract, promised to pay the several sums mentioned in the declaration. And it is further averred, that the defendant had wholly failed and refused to make such payments. The breach charged is co-extensive with the legal import of the contract; and that is always sufficient.
I think, however, the objection to the fourth count is well taken. It avers that the plaintiff" agreed to build a jail in accordance with certain specifications, and to complete it by a certain time. There is a sufficient aver*308ment of a compliance with these specifications, hut there is no averment of the completion of the building at the appointed time. As a general rule, a.failure to complete the work at the day agreed, is no answer to the plaintiff’s action ; unless, indeed, time is made the essence of the agreement. In the case of such failure, however, the plaintiff cannot recover upon the special contract, although the work has been accepted and enjoyed by the defendant ; but he may recover upon the common counts, for the reasonable value of the benefit derived from the work by the defendant. If the plaintiff seeks to recover upon the special contract, he must aver and prove the performance at the time and in the manner stipulated; or he may show an agreed modification in the terms of the contract, and a performance on his part in accordance with such modification. As the count in question is defective in failing to aver a performance at the appointed time, the demurrer to that count should have been sustained. The other counts are substantially good.
The question next to be considered arises upon defendant’s first bill of exceptions. It is sufficient to say that no substantial variance exists between the names of the commissioners set forth in the declaration and those contained in the order of the County court. It was, therefore, unnecessary to amend the declaration. The defendant could not have been prejudiced or surprised, either by the amendment or by the introduction of the order in evidence. It necessarily results from this view there was no valid reason for a postponement of the trial, or for remanding the case to the rules.
The fourth assignment of error is to the refusal of the court to admit the evidence set out in defendant’s second bill of exceptions. The defendant introduced a witness, and proposed to prove by him that the jail was not completed according to contract. To the introduction of this evidence the plaintiff objected, upon the ground that defendant was estopped to raise such question under *309the issues in the cause. In support of this objection, he read an order of the County court, dated 4th June 1866. From which it appeared that the County court had appointed commissioners to examine the jail, and they reported it was fully completed according to contract. The court had thereupon received the jail, as and for the jail of the county, the same having been built and completed according to law. Upon an inspection of this order, the court sustained the objection, being of opinion the defendant was concluded from raising the question of a non-performance of the contract.
It is to be borne in mind that the defendant, in addition to the general issue, filed a special plea, averring that the plaintiff did not complete the jail by the 1st day of December 1861, the time stipulated; and also, averring that the.work was unskilfully and negligently performed, and with improper and defective materials. The plaintiff did not demur to this plea, nor did he reply the estoppel arising from the action of the County court, but took issue thereon, blow, if it appeared that the evidence offered by defendant had reference to the time of completing the building, we should hold it was rightly excluded. The defendant having received the jail without protest, will be thereby held to have waived his objections to the delay in its completion. But the evidence was not so restricted. It was also pertinent to that branch-of the plea which raised the question of the defective execution of the work, and was clearly admissible in support of that issue. Had the defendant pleaded the general issue only, and under that issue offered the evidence in question, it would have been competent for the plaintiff to rely upon the estoppel in evidence also. And this upon the well settled principle that where there is no opportunity of pleading an estoppel, it is to be held conclusive when offered in evidence. But here the defendant pleaded the matter of defense specially, and thus afforded the plaintiff the *310opportunity of replying the estoppel. Instead of pursuing this course, he takes issue upon the plea, and thus opens the door to a full investigation of the matters contained therein.
I have thus far considered the case as if the order of the County court constituted an estoppel. Is it, however, to be so regarded. The plaintiff', by his form of action, treats the contract not as a matter of record, but as resting in parol. The declaration is in assumpsit, and upon the general issue it devolved upon him to prove the construction of the work in strict compliance with the terms of the contract. This he might do by the testimony of witnesses, or he might rely upon the admission contained in the order of the County court. This order furnished evidence of a very strong and persuasive character, but it was not conclusive upon the-question of such compliance.
The commissioners appointed to examine the building were not referees, nor was their report in the nature of an award between the . parties. They were mere agents of the court, -appointed for the purpose of ascertaining whether the building could be safely received, and the compensation paid the contractor. It is true the report was entered of record, but such entry did not render the inquiry or the acceptance a judicial determination of the fitness of the building. The justices were acting as a board of police for the county, in their ministerial, and not in their judicial capacity. In this case, as in a large majority of instances, the examination of the jail was made shortly after its completion, and before any defects in the material, or in the execution of the work, were discoverable. Under such circumstances, to hold that a county shall be compelled to pay the contract price for public buildings, no matter how defectively constructed, is to establish a rule that will -place the public interests at the mercy of fraudulent or incompetent and unskilful contractors. In Jaege v. Bossieux, *31115 Gratt. 83, by the terms of the contract, the work was to be valued and the price fixed by referees chosen by the parties. Upon the completion of the building, it was examined, , valued and priced by the referees, and accepted by the owner. In an action for the price, it being claimed that the work was defectively executed, the award of the referees was relied on as an estoppel. Judge Lee, in alluding to the valuation made by the referees, said: “Such a valuation would, of necessity, be based upon the condition in which the work appeared at the time it should be made, and it could not have been intended to deprive the party of the right to compensation for material defects in the work, not discoverable at the time of the valuation. And as numerous and marked defects were subsequently disclosed, the award of the referees, as to the value of the work in its apparent condition at the time, should not be conclusive.” This reasoning is equally applicable to the present case, and warrants the introduction of evidence touching the character and value of the work performed by the plaintiff. I think the court erred in rejecting that, evidence as set forth in defendant’s second bill of exceptions.
Another ground of error is the refusal of the court to give an instruction asked for by defendants set out in a a paper marked bill of exceptions Ho. 3. This paper is not signed by the judge presiding at the trial, but reference is made to it in a bill of exceptions which is signed, and the reason for such refusal stated. I think the court did not err in refusing to give this instruction ; nor was there any error to the prejudice of the defendant in the instruction actually given in lieu of that asked for by the defendant. The plaintiff had no contract with the sheriff, nor was he under any obligation to pursue him ; though he may have been authorized so to do under the statute. His contract was with the court, and to it he had the right to look for his compensation. It was the duty of the *312justices not only to lay the levy, but to see that the proceeds were applied in payment of plaintiff’s debt. Neither the levy nor its collection by the sheriff, furnished any evidence of a payment to the plaintiff'. If, "in fact, such payment was made, it was easy to establish it by the testimony of the sheriff', the agent of the county and the officer of the court.
Complaint is also made of the refusal of the court to sign a paper appearing iii the record as defendant’s bill of exceptions No. 4. There is nothing, however, in the record tending to show that such refusal was improper. In the absence of evidence establishing the contrary, an appellate court will always-presume the action of the court below was warranted by the facts before it. In this case presumption' is rendered conclusive by a statement of the presiding judge of what occurred at the trial, from which it does not appear that any such evidence was offered as is contained in this bill of exceptions. It is impossible to say that the court committed an error in'refusing to sign the paper.
"What remedy is afforded a party aggrieved by the refusal of a court to sign a proper bill of exceptions, has never been the subject of adjudication by this court. It is an important question, only to be settled upon deliberate consideration. ' As such decision is not called for in this case, we do not deem it proper or necessary to express any opinion upon the point. For the reasons stated, I am of opinion the judgment should be reversed, the verdict set aside and a new trial awarded, and upon such trial the cause to be proceeded in in accordance with the principles herein announced.
The other judges concurred in the opinion of Staples, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481759/ | Moncure, P.
delivered the opinion of the court.
The appellant claims to be a bona, fide purchaser, for value and without notice, of the entire survey of 2,684 acres of land, of which the 150 acres claimed by the appellee, Joseph C. Brown, forms a part, and that, therefore, the said appellee has no right to have specific execution of the title bond for the said 150 acres, according to the claim asserted in the bill. There is no proof in the cause of any purchase made by the appellant, Samuel W. Higginbotham, of the equitable estate of John Cecil, in the said burvey of 2,684 acres, bought by him of the Warders, as claimed in the answer of said Higginbotham. The appellant, therefore, wholly failed to sustain his defence of bona fide purchase for value and without notice. He has, however, it seems, paid the balance of the purchase money due by John Cecil to the Warders for'the land, and obtained a conveyance of the legal title from them by their attorney in fact. He is, therefore, entitled to stand in their shoes, and to hold the entire survey, including the 150 acres of land, for his indemnity and reimbursement in regard to the balance of the purchase money paid by him as aforesaid. Subject to that right, *328the appellee, Joseph C. Brown, has a valid claim against the said survey of land on the title bond for the said 150 acres, and is entitled to have specific execution of the said title bond, provided the said 150 acres of land can be ascertained and laid off according to the description and direction contained in the said bond and the endorsements thereon. The court below, by an interlocutory decree made on the 11th day of November ' 1869, decreed that the complainant is entitled to a decree for the 150 acres of land in the bill and title bond mentioned, and that the said Samuel W. Higginbotham .convey said 150 acres of land to complainant, according to said title bond, by metes and bounds, to be ascertained by survey to be made by S. L. Graham, who was thereby directed to make and report such survey to the court, and the cause was continued. At a subsequent term of the court, the said Graham not having been able to make the said survey, on motion of the complainant, it was ordered that Eufus Brittain be appointed surveyor .in the place of said Graham, and that he perform the duties required of said Graham and report to the court at the next term; and the cause was again continued. .Afterwards, and before any report was made by said Brittain under the said order, this appeal was applied for and allowed to the said interlocutory decree of the 11th of November 1869.
The court is of opinion that it was most proper that the case should be proceeded in farther in the court ■ below before an appeal was allowed therein. It can be better ascertained after the said survey is made and reported to the court, with any facts elicited • thereby or .evidence connected therewith, whether the said decree is .proper or not: and if not, what decree out to be made ■ in the case as it may then exist, which decree it will be ■ competent for the court then to make. The court is, .therefore, of opinion that the said appeal was prematurely *329aud improvidently allowed, and it is decreed and ordered that the same be dismissed, and that the appellant pay to the said appellee, Brown, his costs by him about his -defence in this behalf expended. And' the cause is remanded to the court below for further proceedings to be had therein.
Appeal dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481761/ | Bouldin, J.
The question which has been re-argued in this cause, and the only question now open, arises on the instruction of the Circuit court to the jury, set out in the third bill of exceptions as follows ; “ That according to the face of the bonds the plaintiff was entitled to recover the amount named in each with interest as specified.” The two bonds or covenants are substantially in the same terms, except as to time of payment, and one of them is as follows :
*341“12500.—Twelve months after date I bind myself, heirs, &c., to pay R. C. Craig twenty-five hundred dollars in currency at its specie Value with interest from date, for value received. Witness my hand and seal this 23d of June 1865. N. E. Caldwell. [Seal.]”
The question is, what is secured to be paid by this instrument ? What is its true construction ?
It will be observed, that we are not aided in the solution of this question, by any evidence of the cotemporaneous or subsequent construction of the bonds by the parties themselves, either by act or declaration. We are absolutely without information on that subject. We may infer, it is true, from the verdict of the jury, that considerable payments were made ; but neither party has thought proper to inform us, how, or in what currency, those payments were made. We are left to deal with the naked question of the construction of the papers on their face, aided only by the surrounding circumstances, so far as we are at liberty to notice them.
It will be remembered then, that the bonds in question were executed about two months after the close of the war between the United States and the Confederate States of America; when Confederate currency after great depreciation had become utterly worthless ; when specie was not in use as currency, and was rarely seen ; and before the paper currency of the United States had been introduced into general use amongst us. The people of the southern States had but little knowledge at that time of that currency ; but it was known to them, that it had been subject to great fluctuation in value, and had been, prior to that time, and was then, greatly depreciated. What it might become in the future, none could tell or even conjecture. Under such circumstances, it was both natural and reasonable, that both parties should desire and agree, that the character and value of the currency to be paid and received, should be distinctly understood between them. This was espe*342daily important to the covenantee, who was parting with his land; being all that was left to a great majority of the southern people. He, at least, would be naturally solicitous to guard against selling it for worthless paper.
It will he further remembered, that the people of the South knew little or nothing at that time, about the operation and effect of the legal-tender acts and national currency laws of the United States ; and that there had been then, no judicial interpretation of those laws; huta disastrous experiencehad taughtthem to distrust a national paper currency. They did know, however, that the word ‘ ‘ dollar,” in the absence of some controlling statutory enactment, had, in law, always imported coin or specie; but they also knew that in the then condition of the country it was extremely difficult, in fact, well nigh impracticable, to procure specie in kind ; and that no prudent man, except in exceptional cases in large cities, would promise to pay it.
Such was the state of things under which the parties contracted; and the written contract shows that the covenantee sold his land for “ dollars ” generally, without providing in the contract in what kind of currency those “dollars” might be paid. He knew that the word “ dollars,” in the absence of some controlling statutory provision, imported coin or specie. But this, he also knew, it was almost impossible to obtain in kind ; and it was, therefore, highly important to both parties, to fix upon a more convenient medium of payment. Specie being unattainable, payment in “currency ” became a necessity. But as J. Anderson has well remarked in his opinion in this case, 21 Gratt. 132, 144, “ neither party was willing to risk the fluctuations of the currency.” To avoid these fluctuations, they determined that the “ dollars” mentioned in the contract—that is the coin .or specie—might he discharged “in currency,” not in .currency generally ; but in currency at a fixed and un-,changing value, to be agreed on between them ; and that *343value was “ its specie value.” Now, the specie value of a note is a thing well understood, and about which it would seem there should he no difference. It is the amount of specie that note will command, or for which it can be exchanged. Were I to ask, what is the specie value to-day of a legal-tender or a national currency note for $100,1 should be told at once, about $87; that being about the amount in specie for which it could be exchanged. It is obvious then, that a debt of $100, payable “ in currency at its specie value,” could not be discharged by the payment to-day of $100 currency. To hold such a payment a discharge of the debt, would make the nominal value of the currency the same with its specie value, and thus render wholly inoperative, the most important words of the contract; those fixing the value of the currency, The true credit in such case, would be $87, the specie value of the currency, leaving a balance of $13 unpaid, to be discharged in currencyjin like manner. It seems to me that this is the only way by which we can give full effect to all the words of the bonds, and my opinion is, that the contract is in effect a contract for specie, to be paid not in kind, but in currency rated at its specie value ; that is to say, as much currency as shall be equal in value to the specie dollars promised to be paid.
But it has been objected to this construction, that it involves the necessity of an arbitrary punctuation, thereby changing the natural sense of the bonds. I do not think there is any force in the suggestion. The bonds as they appear in the printed record, are without punctuation, and to be read intelligibly, proper punctuation must be supplied. The parties had already, as we have seen, executed a covenant, by which the covenantor had obligated himself to pay to the covenantee a certain number of “ dollars” for his land. In this covenant the parties had stopped at the word “ dollars,” without saying in what medium or currency those “dollars” should *344be paid. When they came to the execution of the bonds or covenants for the several payments, the following words were added after the word dollars, viz : “ in currency at its specie value” thus giving the privilege to the covenantor of making the payment in currency, but without reducting the value of the payment. When we look to these facts, it seems to me that the true understanding of the parties, and the grammatical structure of the instruments, require, that a comma should follow the word “ dollars,” leaving the additional words, “ in currency at its specie value,” to have their full force and meaning, without being weakened and disjointed by arbitrary punctuation.
When is the value of the currency to be ascertained ? Is it at the date of the covenant or on the day of payment ?
No principle of law is better established than this : that where there is a contract to pay or deliver paper currency, or any commodity on a particular day, and the day passes without payment, the day on which the contract is to be fulfilled, is the time to fix the value of the currency or" commodity ; and I see no reason to depart, in the case before us, from this just and well established rule.
In Beirne v. Dunlap, 8 Leigh 514, which was a case of a covenant to pay United States bank notes, the court say, “ 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 rights and 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.”
This language was quoted and approved as law by the whole court in the recent case of Dungan v. Hunderlite, 21 Gratt. 149, and the principle was affirmed as settled law, by Judges Staples and Christian in the case now before us, on its former argument. Caldwell v. Craig, *34521 Gratt. 132. See also Bearing's adm'x v. Rucker, 18 Gratt. 426, and the numerous cases there cited by Judge Joynes in his learned and able opinion.
I think the currency to be paid should be rated at its specie value on the day of payment; and my opinion is, that there was error in the instruction, to the prejudice, not of the appellant, but of the appellee; but as the latter does not complain of the judgment, but prefers it should stand unreversed, the same should be affimed.
Anderson, J.
The construction that the bonds upon which this suit was brought import an obligation, by one of them, to pay the value of twenty-five hundred gold dollars, and by the other, two thousand in currency, differs from that given them by both the prevailing and dissenting opinions at the first hearing, and also from the construction given to them by the judge of the Circuit court. It is a construction not claimed for them by the plaintiff in the court below, anywhere in the record, nor by his counsel here, so far as I remember, in the argument. Though in an oral opinion, at the last term, my Brother Christian indicated, I believe, that such was his construction. If it be the correct construction, that given by my Brother Moncure and myself is erroneous and ought to be renounced. If in error, I have no pride of opinion which could induce me to adhere to it, if convinced that it is an error. The opinions supporting the conflicting construction have received, as they are entitled to, my careful and candid consideration. And if these bonds, read in the light of the surrounding circumstances, show that the parties intended an obligation on the part of the plaintiff in error to pay the value of $4,500 gold dollars in currency, I will surrender my construction and adopt that, though it may be a hard bargain for the plaintiff in error. Bor if it was his bargain, fairly made, he must be held to it. But I would not give a forced or strained construction to the lan*346guage, or alter the punctuation, or divide a sentence by the insertion of a comma where there was none, and in a place where the sense and the structure of the sentence, did not necessarily require it, to fix the hard bargain upon him. With these preliminary remarks, I come to the consideration of the question of construction.
Does the bond by its terms import such au obligation ? One of them is in these words: “Twelve months after date I bind myself heirs &c. to pay R. 0. Craig twenty-five hundred dollars in currency at its specie value with interest from date, for value received. Witness my hand and seal this 23d June 1865.” If the intention had been to make a gold contract, such as is contended, how easy it would have been to have so expressed it thus— “the value of twenty-five hundred gold dollars in currency at its specie value.” That language would have been unequivocal, and would have clearly expressed the contract which, it is contended, the bond given imports. Or if it had said twenty-five hundred gold dollars, in currencymt its specie lvalue, the language, though not so clear and explicit, might bear that construction. But it does not say “gold dollars.” Or if it had only denoted a pause in reading after “ dollars,” by inserting a comma there, it would have given ground for a plausible argument that the intention was that the obligor should pay the value of $2,500 gold dollars in currency at specie value. But such construction, it seems to me, in that case would be more plausible than sound. The unnatural pause after “dollars,” though the comma denoting it had been inserted, does not supply the omission of the words “the value of” just preceding the words “twenty-five,” or at least of the word “gold” just preceding “dollars.” The former or the latter must be either expressed or understood to convey the meaning supposed. And then, in either case, the words “at its specie value ” are surplusage and might be erased, and the sense would be precisely the same. Thus, “to pay *347the value of twenty-five hundred gold dollars in currency,” where is the use of the words “at its specie value?” These words are wholly unnecessary to convey the supposed meaning. They are of no use. And so if it read “to pay twenty-five hundred gold dollars in currency,” the words “at its specie value” are wholly unnecessary. And without the insertion of those words, or at least without having the word “gold” understood, just preceding the word dollars, it does not necessarily import, even by retaining the words “ at its specie value,” and inserting a comma after the word “dollars,” an obligation to pay the value of twenty-five hundred gold dollars in currency. For you still have the amount, $2,500 (not in gold, for that is neither expressed nor understood), enumerated to be paid “in currency,” which is nothing more nor less than an obligation to pay $2,500 in currency, except so far as it is qualified by the terms “at its specie value,” the meaning of which and its use I attempted to show in the opinion which I have heretofore given in this case.
But what right have we to insert a comma after the word dollars? It is not to be found there in either of the bonds, as shown in the printed record, and it is not the natural place for it, according to the sense or structure of the sentence. The natural place for it is after the word currency, for that is the natural and grammatical division of the sentence, according to its sense and structure, so that it would read “ twenty-five hundred dollars in currency, at its specie value.” But I need not press this point further. I wish to remark, however, before leaving it, that there is an error committed in the report of this case in the printed sheets of 21 Grattan, by inserting a comma after the word dollars,, where none was put by the parties themselves, as shown by the printed record.
I will' now proceed to show that the construction contended for does not convey the intention and meaning *348of these parties. These bonds and two others were given in pursuance, or in execution, of articles of agreement entered into between the parties for the sale and purchase of land. They evidence a sale of a tract of land by Craig to Caldwell, supposed to contain 1,000 acres more or less, for and in consideration of a tract containing 150 acres, which Caldwell was to convey to Craig, and of $6,500, payable as follows: $1,000 in six months from date, $2,500 in twelve months, $2,000 in two years, and $1,000 in three years, the interest on $2,000 for one year to be remitted. The article bears even date with the bonds—that is, June 23, 1865. There is no question that the bonds were given for these instalments, and that the contract of Craig to convey the land aforesaid to Caldwell was the only consideration of the bonds. And although the bonds and the article are of the same date, the presumption is that the article was first executed.
According to the legal effect of that article, what was the obligation of Caldwell, and how could he discharge it ? It was to pay in currency. It was an obligation to pay $6,500, which, under the law, he could discharge in legal tender notes—in other words, the paper cun’encv of the country—there being no difference in the commercial value of legal tenders and United States treasury notes of any issue, or national bank notes. How, is it credible that Caldwell, on the same day, and perhaps immediately after the execution of that agreement, would have given his bonds, in the execution of it, for fifty per ■cent more than he was required to pay by the articles ? In other words, that he would have obligated himself to pay $9,750, with interest thereon, when his contract was to pay $6,500 only, with interest? But this he did, if the construction of his bonds contended for is sound. It may not be exactly in those proportions. It may be for more or less. But the construction which I oppose would place him in the category of obligating himself to *349pay the $6,500 at all events, and whatever might be the difference, at the time of payment, between the value of specie and a fluctuating and depreciated currency, in the fulfilment of articles of agreement just entered into, which required of him, as we have seen, only to pay $6,500 in currency. It is incredible that, in the execution of these bonds, such should have been the intention of the parties; and it is repulsive to every sense of justice and fair dealing.
But the conduct of the parties, and especially of the defendant in error, who never set up a pretense, so far as this record shows, that it was a gold contract; repels the idea that such was the understanding. Large payments have been made, so as to reduce the first three instalments of $5,500, with the accruing interest, to $1,902.59 at the date of the judgment, and no pretense ever heard of that it was a gold contract. Is it not too late now to set up such a pretension, and does not the conduct of the parties show, in confirmation of my interpretation of the language of the bonds, that they never designed it to be a gold contract.
The language of the bond requires no such construction, and as we have seen, it is not even plausible without giving it an unnatural punctuation, which was not given by the parties themselves. I do not think, therefore, that we should change the punctuation, supply words which were not employed by the parties, and make nugatory and unmeaning, and useless, words which they had employed, to place a construction upon the instrument which puts a hard bargain upon the obligor, repugnant to the plain terms and legal effect of the contract in the execution of which it was given, and to the whole conduct, pretensions and after dealings of the parties in relation to it.
It is true, that in the execution of the bonds there is some modification of the contract as to the medium of payment. That is plain from the face of them. And *350it was entirely competent to the parties to make such modification. And it was very natural and necessary, as a precaution, to guard against the fluctuations of the currency, and was as important for one as the other, if they did not intend a contract of hazard. And according to our construction, they adopted the just and sensible standard of the then specie value of the currency. It not being a gold contract, solvable in currency at its specie value, and not being a contract solvable in currency without qualification (a conclusion in which four of us concur, and which I endeavored to maintain in my former opinion), we seem to be shut up to the conclusion that the obligation was to pay the sum named in currency at its then specie value, those words having been used with reference to the then present time, when the contract was entered into, and when the parties must be presumed to have known the value of currency in relation to specie as the standard. I am constrained, therefore, to adhere to that construction.
Christian, J. concurred in the opinion of Bouldin, J.
Moncure, P. concurred in the opinion of Anderson, J.
Christian, Staples and Bouldin, Js. concurred in affirming the judgment of the Circuit court. Moncure, P. and Anderson, J. were for reversing it.
Judgment appirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481762/ | Moncure, P.
delivered the opinion of the court. •
This is an appeal from a decree dissolving an injunction to an execution upon a judgment, on the ground that the judgment had been satisfied by payment. The alleged payment consisted in a' deposit in a bank at ’Wytheville, in July 1862, of the amount of the judgment, in depreciated bank notes and Confederate States treasury notes at their par value, of which deposit and of the purpose thereof the creditor "was shortly thereafter informed by the debtor and made no objection. The depreciation of the notes, in which the deposit was made, was, at the time of the deposit, at the rate of one and a half for one, as compared with specie. Though this was a small depreciation, compared with what soon thereafter happened, in regard to such notes; and though such notes were then often received at par, in payment of old debts, and were the general currency of the country ; yet a creditor was not bound to receive them at par in payment of the debt due to him ; and his consent to do so, especially when his debt was undisputed and perfectly secure (as seems to have been the case here), ought to be clearly proved, in order to be binding upon him. And even if the deposit had been made in good money, current at par, yet if the deposit was made to the credit of the debtor, or on his account, and not to the credit of the creditor, or on his account; if anything remained to *353be done after the creditor was informed of the deposit, to invest him with the title to the. money; and if, before that thing was done, the money perished, the loss would fall on the debtor ; unless it arose from the default of the creditor, or some fraud on his part, by which the debtor was misled.
If the version given of this transaction in the answer of the creditor be the true one ; or, if the case were tried upon the bills and answer only, there would be no doubt as to the correctness of the decree in favor of the creditor. But the case was tried, also, upon the depositions of the debtor and his sou; and the question is, howT upon the whole case as tried, the question ought to have been decided.
It was argued by the counsel for the appellee, that the answer, where it is responsive to the bill, must be taken to be true, because it is not contradicted by at least two competent witnesses, or one with corroborating circumstances.
"Whether the answer, where it is responsive to and denies the allegations of the bill, is contradicted by at least two competent witnesses, or one with corroborating circumstances, seems to depend, upon whether the debtor, the plaintiff himself, is a competent witness within the meaning of the rule of equity on the subject: that is, whether his evidence can have any weight in disproving the responsive denials of the answer.
That is certainly a very interesting question, and seems to be an undecided and novel one. To give weight to such evidence for such a purpose, might seem to go far in annulling the equity rule or limiting its operation.
Without, however, expressing any opinion upon that question, and not giving to the answer a conclusive effect in any respect, but looking to all the evidence in the case, let us enquire whether it shows, either that the judgment has been actually paid, or that the creditor is equitably estopped from denying its payment ?
*354J. Melton Moore, the son of the debtor, testifies, that in the summer of 1862, he paid the money to the clerk of the County court of Wythe, H. S. Mathews. Witness says: “ The sheriff told me to pay it to Mr. Mathews. I paid $650 in bank notes, the remainder in Confederate money. Colonel Moore (the debtor) was-sued ou the amount due Mr. Tate (the creditor) ; therefore I went to the sheriff to know what to do with the money. He advised me to pay it to the clerk. Mr. Tate was not a resident of the county. Colonel Moore was in the army at that time ; and wrote to me to pay the money due Mr. Tate. I paid the amount of the judgment.” Being asked, on his examination in chief, “How soon did Mr. Tate, to your knowledge, have knowledge of your payment; how did he come to have that knowledge; and what was his conduct on learning it?” The witness answered : “I met in town (that is in Wytheville), either at the next term of the County court afterwards, or at the next but one, Mr. Tate himself, and told him I had paid the money to Mr. Mathews, and that Mr. Mathews had deposited it in the-Southwestern Bank of Virginia, in Wytheville, for him. Mr. Tate made no objection and we parted. This interview was in Wytheville.” Being further asked: “ When did you first learn that Mr. Tate had objection to taking the money ; and how did you learn it ?” Witness answered : “ The first I knew of his objecting was after the death of Mr. Mathews ; and I think it was in the fall of 1864. Captain Gibboney, the administrator of Mr. Mathews, at that time inquired of me, whether I had ever paid such a sum to Mr. Mathews for Mr. Tate, stating that it so appeared from a memorandum of Mr. Mathews, and that he had found it on deposit accordingly, and had tendered it to Mr. Tate, who had refused it; Thereupon said Gibboney insisted, as representative of Mathews, on paying it back to me ; and not seeing how else it could be saved, I received it.” Being asked, *355on cross examination : “ When yon had the conversation with Tate, did he tell you that he would receive the money?” The witness answered: “I told him the money was in the bank and walked off. He, Tate, said nothing. He did not object to it; nor did he say he would receive it. I was in his company at other times afterwards during the day ; he never said he would receive, nor did he say he would refuse to take it.” And being further asked : “When Captain Gibboney offered you the money, did you take it; and was the money used by Colonel Moore afterwards?” Witness answered : “I took the money and kept it until after the surrender ; it was then sold for specie and used.”
A. C. Moore, the debtor, testifies, that he was a colonel in the Confederate service. His instructions to his son when he left home were, to pay the Tate debt out of the first funds his son should acquire during his absence. Witness went to Kentucky, and on his return drew funds from the Confederate government amounting to $1,470 or $1,570, and sent all except $70 to his son. This was the last of February or 1st of March 1862. Sent the money to his son with instructions to pay the debt to Tate, not knowing whether he had been paid or not. Thinks the money sent was Confederate money. Being asked, “ When and how did you first learn that Melton Moore (the son) had made the payment directed ?” The witness answered: “ I met with Mr. Tate at AbiDgdon, though he was possibly living in Smyth county. We were talking about the débt, and he informed me that the money was deposited for him in the bank at Wytheville. From his conversation I inferred that it would be all right, and knew nothing to the contrary until after the death of Mr. Mathews. My impression is, that this conversation took place a short time before I went with my regiment into Kentucky, and that it was in the fall of 1862. We started from Abingdon the 3d of Hovember in that year. He did not merely inform me that he *356had learned the money was deposited for him in the hank, but that it was so deposited.” Witness says, he never knew anything of any objection Tate had to the supposed payment until he heard it as reported by Captain Gibboney, administrator of Mr. Mathews. This witness was twice examined in the case. Being asked, on. his second examination, to ‘4 state what convei’sation took place in that interview (meaning the one between him and Tate before referred to), and how such conversation originated,” witness said: “ My impression is, that meeting with Mr. Tate, and not knowing whether he had received the money or not, I made enquiry of him to learn whether he had received it or not. He informed me that he had not; but that it was deposited for him in the Southwestern Bank at Wytheville, Virginia. I have no recollection of any other conversation in regard to it. When I parted with him, I was perfectly satisfied that the debt was settled, and never learned that Mr. Tate considered it otherwise until 1864.” Being asked, on cross examination, “Bid Mr. Tate tell you, in hcec verba, that he would receive this money in satisfaction of this judgment?” Witness answered: “ He did not, but left me under the impression that be would take it.”
How, does the foregoing testimony, especially when viewed in connection with the denials of the answer, make out a case either of payment, or of an equitable estoppel to deny payment of tbe judgment aforesaid ?
The judgment was a debt of record, and seems to have been perfectly secure. The creditor might at any time, it seems, have made his money at once by sueing out execution upon the judgment, except so far as the stay law may have interposed a temporary obstruction. And he might have demanded specie in payment of the debt. Indeed, without his consent, nothing but specie would have been a good payment. The debtor contends that he paid the debt in a depreciated currency ; which the creditor does not admit, but denies. How nothing is *357more reasonable than to require clear proof of such payment under such circumstances. The burden of the proof rests entirely upon the debtor. The laboring oar is upon him. The creditor’s claim is well secured ; is well attested ; may be easily, and readily enforced—transit in rem judicatam.'Execution only, remains to be done. He may safely repose upon his rights ; taking care, of course, to commit no fraud, by anything he does or says, upon the rights of the debtor.
How, let us see what is the evidence of payment relied on by the debtor. It is not pretended that payment was ever actually received by the creditor, in whole or in part, in good or in bad money. It is not pretended that the depreciated money, which was handed by J. Melton Moore, the debtor’s son, to H. S. Mathews, clerk of the court, and by the latter deposited in bank for the purpose of paying the debt, ever came to the hands of the creditor*. It Í3 not pretended that the creditor ever authorized the sheriff, or the clerk, or anybody else, to collect or receive the amount of the debt for him. He seems to have been willing, if he did not prefer, to let the debt stand as it was until the currency became better. Perhaps, like most other persous at that time, he might not have refused payment in Confederate currency, if it had been tendered to him ; but he, no doubt, preferred that such tender should not be made. The only evidence of payment is, that J. Melton Moore, having received from his father Confederate notes exceeding the amount of the debt, with instructions to pay this debt, and supposing that there was an execution for it in the hands of the sheriff", offered to pay the amount to the sheriff"; who, having no execution on the judgment in his bauds, and no authority to receive the money, declined to do so, but advised J. M. Moore to pay the money to the clerk of the court, Mr. Mathews, who received it aud put it in bank. At that time the debtor resided in Wythe, where the judgment was obtained, and the creditor in the adja*358cent county of Smyth, or the neighboring county of Washington, and both were in the military service of the Confederate States. It does not appear that Mr. Mathews, the clerk, ever informed the creditor, Tate, of the receipt or deposit of the money by him. The first information the creditor received of that fact was at the next term of the County court of Wythe afterwards, or the next term but one ; when J. Melton Moore met the said Tate in Wytheville, and told him that he, Moore, had paid the money to Mr. Mathews, and that Mr. Mathews had deposited it in the Southwestern Bank of Vii’ginia, in Wytheville, for him. “ Mr. Tate,” says the witness, ** made no objection, and we pai’ted.” “ I told him the money was in the bank and walked off. He, Tate, said nothing. He did not object to it; nor did he say he would refuse to receive it.” The money, it seems, remained in bank, without being drawn out by any one, until after the death of Mr. Mathews, in the fall of 1864 ; when Captain Gibboney, the administrator of Mr. Mathews, inquired of witness whether he had ever paid such a sum to Mr. Mathews for Mr. Tate ; stating that it so appeared from a memorandum of Mr. Mathews, and that he had found it on deposit in bank accordingly, and had tendered it to Mr. Tate, who bad refused it. Thereupon said Gibbouey insisted, as representative of Mathews, on paying it back to -witness, who says he received it, not knowing how else it could be saved.
Did this witness, as the agent of his father, do enough to complete the payment of the debt, by merely telling the creditor that the money was in bank, and then walking off? “He, Tate, said nothing. He'did not object to it, nor did he say he would receive it.” Had the witness any right to infer from this silence of the creditor, that he was willing to receive the money deposited, and to accept the mere deposit which had been made as payment of the debt ? 'Why did not witness tell the creditor what kind of money had been deposited, and enquire *359whether he would receive that kind of money in payment of the debt ? Why did he not get the money from the hank, or from Mr. Mathews, tender it to the creditor, and if accepted, take the creditor’s receipt in full satisfaction and discharge of the judgment ? That was the plain, easy and regular mode of doing the business which the witness ought to have pursued. The witness, the creditor, Mr. Mathews and the bank were all then in the same town together. It would be time enough for the creditor to refuse the money when it should be tendered to him, and he could not be called upon to accept or refuse it until it was so tendered, much less can his acceptance be inferred from his mere silence, on being informed that the money was in bank. The debtor, or his agent, had not a right to pay the money in bank, even to the credit of the creditor, without his consent. It could only be paid to the creditor himself, or to some person by him authorized to receive it, though a subsequent assent would be tantamount to a prior authority. But in this case the money was not deposited to the credit of the creditor, but to the credit of Mathews, the agent of the debtor, and no check was ever given or offered by Mathews to the creditor, and no order on Mathews was ever given by the witness to the creditor for the money. The creditor, without such a check or such an order, had no right to demand or receive the money of the bank, or of Mathews. The money never beeame the property of the creditor, but always remained the property of the debtor until it perished, or was received and disposed of by his agent.
Thus stands the case upon the testimony of J. Melton Moore, the son of the debtor. Is it materially altered by the testimony of the debtor himself, the only other testimony in the case? He says that a short time before he commenced his second march into Kentucky, which was the 1st of October 1862, he met with Mr. Tate at Abingdon. The.account which this witness gives of *360this interview is as follows: “My impression is, that meeting with Mr. Tate, aud not knowing whether he had received the money or not, I made enquiry of him to learn whether he had received it or not. He informed me that he had not, but that it was deposited for him in the Southwestern Bank at Wytheville, Ya. I have no recollection of any other conversation in regard to it. When I parted with him I was perfectly satisfied that the debt was settled, aud never learned that Mr. Tate considered it othei’wise until 1864.” “He said nothing about taking or'refusing the money then (at the time of the interview aforesaid) or afterwards.” This testimony certainly does not prove a payment of the money, or an admission of such payment. On the contrary, it proves that the money had not been paid to the creditor. “He informed me,” says the witness, “that he had not” received the money, “but that it was deposited for him in the Southwestern Bank at Wytheville, Va.” This was not an agreement by the creditor to accept this deposit as a payment. He had not before accepted it as such, and there was no reason why he should make such acceptance on this occasion. He was merely asked a question of fact, which he answered to the best of his knowledge and belief. The debtor had sent Confederate money to his son, and requested him to pay this debt. The son, it seems, had never informed the’father whether such payment had been made or not; and the debtor and creditor happening to meet at Abingdon, enquiry was made and answered as aforesaid. In informing the debtor that the money was deposited for him (the creditor) in the Southwestern Bank at Wytheville, Va., the creditor meant only to inform the debtor, in answer to his enquiry, of a fact of which the creditor had himsejf been informed by the son of the debtor. He no more intended then to accept that deposit as a payment than he intended to accept it as such at the time he was himself informed of the fact of the deposit. Just as much *361remained to be done to convert that deposit into a payment of tbe debt after the interview of the debtor and creditor at Abingdon, as after the interview of the debtor’s son and the creditor at Wytheville, as before stated. Nothing was done after either interview towards the application of the money on deposit to the payment of the debt, until after the death of Mathews, when, for the first time, it was offered to the creditor by the administrator of Mathews and refused.
There is not a tittle of evidence tending to prove that Tate, the creditor, was guilty of any fraud in the transaction aforesaid, or intended, by his conduct or his silence, to mislead the debtor or his son. He had no motive whatever to commit such a fraud, as he had an unquestionable right to receive depreciated money or not, at his pleasure, in payment of his judgment—a right of election which he, no doubt, intended to exercise whenever, if ever, such money should be tendered to him. He was not bound to make such election before. Whether the creditor, in July or August 1862, would have received depreciated State bank notes or Confederate notes in payment of his judgment, cannot now be certainly known. He never said that he would, so far as the testimony shows. Perhaps he might have done so, if the said notes had been tendered to him, but they never were. The fact that the creditor said nothing-when informed of the deposit by the debtor’s son, and did not, either then or during the interview with the debtor at Abingdon as aforesaid, say he would receive such notes, or accept the said deposit, in payment of his judgment, ought, it seems, to have excited an apprehension, on the part of the debtor or his son, that the creditor might be unwilling to do so, and to have admonished them of the necessity or propriety of making a tender of the notes, and if received, of taking a receipt in discharge of the judgment; if not, of having satisfaction thereof entered upon the record. If the creditor *362would have been willing to receive such notes in payment of his judgment, even as late as July or August 1862, he would no doubt greatly have preferred not doing so, as was usual in such cases, and as might fairly have been inferred from his silence when informed of the deposit. Had he been anxious to do so, he would no doubt have at once gone forward aud had the matter perfected by a proper application of the money deposited. But not being anxious to do so, he left it to the debtor, on whom it devolved to make a tender of the notes on deposit in payment of the judgment, reserving to himself the right to receive the money or not, according as he might think best at the time of the tender. The debtor’s son, after informing the creditor of the deposit in bank and walking off, not having done anything more in the matter, the creditor may well have presumed that some other disposition had been made of the money. But however that may be, it devolved on the debtor to make a tender of the notes if he desired them to be received in payment.
The debtor and his son seem also to have acted in good faith in this transaction. They no doubt believed, as the debtor, at least, says he did, that the creditor would receive the money deposited in payment of his judgment. But this belief was not induced by any promise or fraud of the creditor, and he is not bound by any principle of law or equity to make it good. It is ■very much to be regretted that such a loss should have to fall upon one or the other of two parties, both of whom are innocent; but all we can do is to determine on which of them it must fall, according to law. ‘We think it must fall on the party whose property the money on deposit was at the time it perished, or at the time it ■was withdrawn from the hank. And we think we have shown that it remained then, as it had before been, the property of the debtor, Moore, and not of the creditor, ’Tate.
*363We have, in considering this case, given full credit to the testimony of the debtor and his son, the only testimony in the case besides the answer. But when it is remembered that that is the parol testimony of witnesses whose relation to the controversy, however honest they may be, and doubtless are, must strongly bias their feelings, and wTho are testifying as to conversations which occurred many years before they gave their testimony, the force of it is very much weakened by these considerations, and we must plainly see that it is wholly inadequate to prove the payment of the creditor’s judgment in this case—much less to convict him of fraud— which can never be presumed, but must always be clearly proved.
We therefore think there is no error in the decree appealed from, and that it ought to be affirmed.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481763/ | Moncure, P.
I am of opinion that the contract of the 26th day of August 1862, between the appellant James Sanders and the appellee li. L, Branson, for the sale of a tract of land by the former to the latter, as in the proceedings'mentioned, “ was, according to the true understanding and agreement of the parties/to be fulfilled or performed in Confederate States treasury notes,orwasentered into with reference to such notes as a standard of value,” within the intent and meaning of the act passed March 3, 1866, entitled “An act providing for the adjustment of liabilities arising under contracts and wills made between the 1st day of Jauuary 1862, and the 10th day of April 1865,” Acts of Assembly 1865-6, chap. 71, p. 184 ; and of the act amendatory thereof, passed February 28,1867, Acts of Assembly 1866’-7, chap. 270, p. 694. Confederate States treasury notes were almost the only, if not the only, currency in circulation at the date of the contract, and a presumption of fact would arise from that circumstance alone, in the absence of anything tending to show the contrary, that the dealing of the parties was in reference to that standard of value. But the presumption is supported in this case by the fact, that the contract price of the land, $4,000, bore about the same proportion to the specie value of the laud at the time of the contract, the highest estimate of which was $3,000, that the value of Confederate States treasury notes then bore to specie; and also by the evidence of witnesses for the vendor, who were present when the contract was entered into, or when the bonds were given, and who state, that though nothing was then said about the kind of money in which the bonds were to be paid, they con*367sidered that payment was intended to he made in Confederate States treasury notes.
I am further of opinion, that under all the circumstances of this case, the amount due upon the bonds in controversy should be ascertained, not by scaling the nominal amount of the bonds, in the mode and manner prescribed by section 2 of the said act of March 3, 1866, but by regarding the fair value of the property sold at the time of the sale, as the value in good money of the consideration agreed to be paid for it, according to the mode of adjustment prescribed by the proviso embodied in section 1 of the said act of February 28, 1867; and that the amount which may appear to be due upon the said bonds according to the standard of value afforded by the proviso aforesaid, “ would be the most just measure of recovery” in this case. That the mode of adjustment provided by the latter act is constitutional, that it generally affords the most just measure of recovery where it applies, and that it does so in such a case as this, is clearly shown by my Brother Christian, in an opinion delivered in Pharis v. Dice, 21 Gratt. p. 303, in which all the other judges concurred. See also Carter v. Ragland, Id. 574, and Meredith, &c., v. Salmon, Id. 762.
I am further of opinion, that the appellee, Branson, is entitled to relief as aforesaid in this suit; which is a suit in equity brought by him under section 4 of the said act of March 3, 1866. That section provides, that “ in any case wherein it shall appear, that on any contract made, or liability incurred, on or after the 1st day of January 1862, and before the 10th day of April 1865, the debtor, on or after the maturity of the claim against him, and within the period above mentioned, made to the creditor, his agent or attorney at law, a bona fide and actual tender of the amount due, in the said Confederate States treasury notes, or other equal or better currency, and that the creditor then refused to accept the same, a court of equity may grant relief to the debtor unless it *368appear that the creditor was justified in refusing to accept the amount tendered in consequence of a substantial and decided depreciation of such currency after the time at which payment ought to have been made, and before the time at which the tender was made, or unless it otherwise appear to be inequitable to grant such relief.” The appellee averred in his bill that he tendered the amounts of the bonds on which the judgment was obtained to the appellant on or about the dates on which they became due, and that the appellant refused to receive the tender. And the appellee proved that such a tender was made, but not until October 1864, which was long after the last of the said bonds became payable, and when there had been, since that period, a very substantial and decided depreciation of the currency. The Circuit court therefore decreed that the complainant was not entitled to be wholly discharged by reason of such tender; but that court further decreed that the defendant (the appellant) recover of the complainant (the appellee) the sum of $258.75, being the scaled value of the said two bonds at the time they respectively became due and payable, with interest on $225, part thereof, from the 1st day of January 1863, and on $33.75, the residue thereof, from the 1st day of January 1864. I think the Circuit court had jurisdiction to grant such relief in the suit as was equitable and just. The complainant properly came into eourt for relief against the judgment. It does’not appear, and it is not pretended, that the tender was made and. averred in the bill for the purpose of giving the court jurisdiction of the case. The tender was a real and not a colorable transaction; and the complainant had a right, under the said 4th section of the act of March 3, 1866, to go into equity upon that ground. But though he prayed for relief against the whole claim, he did not confine his prayer to that. He further prayed for “such other and general relief as is consistent with equity and adapted to his case.” The Circuit-court, after refusing *369to relieve against the whole claim, had a right, both on the ease stated in the bill and the prayer for general relief, to give such relief as was equitable and just. The court, having properly obtained jurisdiction of the case, could go on to do complete justice between the parties. I think the court did not err in deciding that the complainant is not entitled to be wholly discharged from the claim by reason of thedender aforesaid. But I think the court erred in decreeing against the complainant only the scaled value of the bonds aforesaid; and that, instead of doing so, the court ought to have decreed against him for such sum of money and interest as would be due, regarding the fair value of the property sold as the standard by which the amount due upon the bonds is to be ascertained; according to the rule furnished by the proviso in section 1 of the act of February 28, 1867, aforesaid.
I am therefore of opinion that the said decree is erroneous, and ought to be reversed, and the cause remanded for further proceedings to be had therein in conformity with the foregoing opinion.
Christian, Staples and Anderson, Js,, concurred la the opinion of Moncure, P.
Bouldin,'J., dissented.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481764/ | Christian,. J.
This is a suit for the specific execution ■of an alleged parol agreement for the sale of real estate, which is sought to be taken out of the operation of the statute of frauds upon the ground of part performance.
The statute of frauds was founded in wisdom and sound policy. Its primary object was to prevent the setting up of pretended agreements, and then supporting them by perjury. But besides these direct objects, there is a manifest policy in requiring contracts of so “important a nature as the sale and purchase of real estate, to be reduced to writing; since otherwise, from the imperfection of memory, and the honest mistakes of witnesses, it must often happen either that the specific contract is incapable of exact proof, or that it is unintentionally •varied from its original terms. The statute, therefore, ■requires in contracts of such a nature as are therein mentioned more satisfactory and convincing testimony than mere oral evidence affords. The wisdom of permitting any deviation from the terms of the statute has *374been questioned by the most eminent chancellors of England and of this country. Courts of equity, however, in their efforts to do complete justice and prevent fraud, have in certain cases relaxed the operation of the Matute; and in cases where a parol agreement for the sale of land has been clearly and distinctly proved, and part' performance in pursuance of the agreement established, a court of equity will decree specific execution.
But the principles upon which courts of equity have-avoided the statute of frauds, upon the ground of part-performance of a parol agreement, are now as well settled as any of the acknowledged doctrines-of equity jurisprudence. From the numerous decisions on the subject the following principles may be extracted and briefly stated as follows: 1st. The parol agreement relied on must bé certain and definite in its terms. 2d. The acts-proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3d. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. Where these three things concur,; a court of equity will decree specific execution. Where they do not, it will turn the party over to seek compensation in damages in a court of law. See Cooth v. Jackson, 6 Ves. R. 12 ; Phillips v. Thompson, 1 John. Ch. R. 131; Seth’s ex’or v. Wooldridge’s ex’or, 6 Rand. 605; Anthony v. Leftwich, 3 Rand. 238 ; 1 Lead. Cases in Equity (White & Tudor), 2d Am. Ed., top p. 557-574, and cases-there cited.
Applying these well settled principles of equity jurisprudence to the case before us, there are, I think, at least three sound objections to the interference of a court of equity in this case. 1st. The agreement, as stated in the bill, and as proved by the testimony (if, indeed, any agreement is proved), is too uncertain and indefinite in its terms. 2d. The acts relied upon as part *375performance are not shown to he in pursuance of, or to result from, any agreement stated and proved ; and 3d. The acts of part performance all lie in compensation.
The agreement, as stated in the bill, if it had not been denied by the answer, and had been sustained by the proof, was not of that certain and definite character which is peculiarly necessary in a bill for specific performance.
The bill is filed by George W. Pucket against the appellant, Milton Wright, who is the sole heir of Harvey Wright, to whom, upon the death of the latter, his laud descended, in which the plaintiff’ seeks the aid of the court to compel the defendant to execute specifically a contract which, it is alleged, was entered into between the said Harvey Wright in his lifetime and the plaintiff, by conveying to him the title to the land purchased under said agreement. The bill alleges that the said Harvey Wright, the uncle by marriage of the plaintiff', was the owner of a tract of unimproved land, and that being “a man much advanced in years, without pecuniary means, and physically unable himself to bring the land into cultivation,” approached the plaintiff, who was a young man in full strength and vigor, with the proposition “that if he would come and help him improve his land, he should have a part of it at his (Wright’s) death, and should be well compensated out of his land for his labor.” The bill further states, that “it was not at that time fully agreed what fart of the land, complainant should have, only that he should be well compensated for his labor in a part of the land; but the said Harvey Wright was to retain the possession and control of all the land during his life.”
This statement is followed by the allegation that “complainant entered faithfully and diligently upon his part of the contract, and continued faithfully to labor upon the laud, clearing and improving it for about eight years; and did improve the land so that it i’endered to *376said Wright during his life a fair support.” It is further-alleged that “the said Wright afterwards laid off and designated all that portion of the land lying on the east side of the creek as the part complainant was to have in fulfilment of his contract.” But he admits that this land was used in common by Wright and Pucket during Wright’s lifetime. He admits he “took no writing from Wright, having every confidence that he would carry out to the letter what he had agreed to do, and that Wright departed this life making no disposition in any way of his property, and without making any writing conveying the land to complainant.”
Taking the bill as true, and the agreement as stated by the appellee in his own way, there is such uncertainty and want of definiteness in the contract, that a court of equity on that ground alone, might well refuse to lend its aid for specific execution.
But all the material allegations in the bill are denied in the answer, and not sustained by the proof. The evidence is conflicting and contradictory. That which is most favorable to the appellee consists of certain vague expressions, loose and casual observations, used by Wright in conversations said to have taken place many years.before, to the effect that he intended to pay Bucket out of his land, or that it would all be Pucket’s some day, and expressions of a like character. Nor was there any proof that there was a delivery of possession of auy part of the land to Pucket. The land claimed, enclosed on the east side of the creek, was in the joint possession of Wright and Pucket, used by them in common, and according to Pucket’s statement in his bill setting out the agreement, Wright was “to retain possession and control of all the laud during his life;” and there was nothing in the evidence to show that the possession of Pucket was, at any time, adverse to or inconsistent with the possession of Wright.
There was clearly not such part performance as would *377take the ease out of the operation of the statute of frauds.
Kor has there been in this case such part performance. as cannot be compensated in damages. There was nothing in the situation of the appellee to prevent his recovering, in a suit at law, full indemnity and compensation for the services he rendered to the appellant’s intestate; and that was his plain and adequate remedy.
The tendency of all the modern cases, both, in Englaud and in this country, is to prefer giving the party compensation in damages, instead of a specific performance. Wherever damages will answer the purpose of indemnity, this alternative will be preferred, as it will equally satisfy justice, and will be coincident with the provisions and in support of the authority of the statute.
I am, therefore, of opinion that no cause has been shown for specific execution, and that the decree of the Circuit court ought to be reversed and the plaintiff’s bill dismissed.
The other judges concurred in the opinion of Christian, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481765/ | Anderson, J.
delivered the opinion of the court.
The plaintiffs in error claim to hold the laud in controversy by two grants of the commonwealth to their ancestor, Nicholas Cline. One for 400 acres, bearing -date March 28,1799, which is founded upon a settlement sight, running back to 1771 and confirmed on the 6th ■ day of September 1782, by a certificate of the commissioners for the district-of Montgomery and Washington, and surveyed April 30th, 1783. The other patent is for 414 acres, bears date February 6, 1828, and is founded upon a survey made the 8th day of December 1774, by virtue of an order of council granted to the Loyal Company to take up and survey 800,000 acres of land, which was established and confirmed by a decree of the Court of Appeals on the 2d day of May 1783. The boundaries of these patents are not Coincident, yet the large body of ihé land covered-bv both is identical.
' hachólas Cline seems to have been one of those hardy *390adventurers who «settled this country when it was a wilderness frontier, before whose advances the roving occupation of hostile savages receded, and gave place to the introduction of a Christian civilization. He settled upon, the lands for which he afterwards obtained patents as aforesaid, at least as early as 1771, and lived upon them, cultivating and improving them until his death. They theu descended to his heirs, who, or some of whom, have held them in possession ever since.
In 1796, one Michael Watters, or Walters, under whom the defendant in error claims the land in controversy, obtained a commonwealth’s grant for eighty-seven acres of land, which is founded upon a survey made by virtue of a land office treasury warrant on the-8th day of October 1794. In describing the boundaries of the land, his patent calls for a corner of ET. Cline’s-land, two white oaks, and thence running with his line. It appears from the survey made in this cause that the corner, two white oaks, called for is a corner of Ciine’ssurvey and patent of 414 acres, and that the line run from that corner is nearly coincident with the line of Cline’s said survey, but does not at all correspond with the line of Cline’s 400 acre survey, but cuts off from it a lot of land, which comprehends nearly all the land in controversy, which is described by the survey in the cause-as containing thirty-two and a half acres.
At the date of Walters’ patent, Cline had a clear, equitable right to the land in controversy, and could doubtless have prevented the issuing of a grant to Walters for it if he had filed a caveat. Having failed to do so, the legal title became vested in Walters by the commonwealth’s grant, unless the equitable right of Cliné was of such a character as exempted his land from a location and grant under a laud office treasury warrant, as waste and unappropriated lands. But in French v. Loyal Company, 5 Leigh, 627, this court held that such-rights were upon no higher footing than rights acquired *391by entry arid survey under a land office treasury warrant, and that in both cases, until patented, the lands were waste and unappropriated, and liable to location by others. Cabell, J. says that the same policy applied to both classes of claims, and both should be subject to the same law, making the'lands liable in both cases to subsequent location. “This liability, while it advanced the public interest, would do no injury to the diligent prior claimant, for his right might be always secured by a resort to the court of caveat—tribunals wisely provided for the adjustment of conflicting claims to land before the emanation of grants.” Cline, then, not having resoried to his caveat, the legal title became vested in Walters by the emanation of the commonwealth’s grant. And even a court of chaneei’y could give him no relief against the patent,.unless he had been prevented front filing a caveat by fraud, accident or mistake, or unless Walters, who got the first patent, had been guilty of actual fraud. “And he is guilty of actual fraud who* knowing another’s prior equity, proceeds to get a grant for the land.” Supra, p. 648, and McClung v. Hughes, 5 Rand. 453.
There is nothing in the record to show that Walters, in making the location and getting a patent, had been guilty of any fraud. On the contrary, it is inferable from the calls of the patent that he did not intend to invade the rights of Cline, as he calls for his corner and runs with bis line; which is the corner and line of Cline’s-survey of 414 acres, and which, we think, is the true bonudary of Walters’ patent. It does not appear that he knew of Cline having any other survey. But from what does appear, it is fair to presume that he was entii'ely ignorant of Cline’s survey of 400 acres.
The legal title being vested in Walters to the land in controversy, by the elder patent, the defendants in the court below relied upon an adversary possession in *392themselves and-their ancestor, Nathaniel Cline, to defeat the better title.
It is a well settled " principle that there'can be-no adversary possession against the commonwealth. But1 a junior patentee may show that he had' possession of the land in-controversy prior to the emanation of his patent; under a claim of title, legal■ or-equitable, good or bad; and also, in order to explain the character of his possession anterior to the emanation of the elder patent. But bis -possession cannot-'be- adversary until ‘ the ■ emanation of-this elder patent, for ibis consistent with the rights of the commonwealth, in whom the legal title - resides. After the title passes from-the-commonwealth to the patentee it instanter -becomes- adverse to him. Shanks and others v. Lancaster, 5 Gratt. 110; Koinner v. Rankin’s heirs, 11 Gratt. 420.- But it must be an-actual and' exclusive possession. To be actual, the visible occupancy and improvement of a part of the land in controversy is an actual possession of' the whole to the limits of: the claim, under which it is held, and ousts or intercepts the legal seizin incident to the patent. Such possession of the junior patentee is exclusive, unless the eklér patentee enters and takes actual possession of'a part of! the land iu controversy. In that case the possession of the junior patentee will be restricted to his actual close.
It is now also well settled, that where there is an interference of the patents, so that they lap or interlock, the occupation or residence of the junior patentee upon a part of his tract outside of the interlock does not give him possession of that part of his tract which is embraced within the limits of the elder patent, but his possession is restricted by the boundary of the elder patent. But if he has an actual occupation and improvement of a part of the interlock, and the elder patentee has actual possession of no part of it, the actual possession ■ of’ the junior patentee is eo-extensive with-the- limits of his *393patent, and is exclusive and adversary, and if continued uninterruptedly for the period of limitation, defeats the elder patentee’s right of entry, or his better title, as the case may be. Taylor's devisees v. Burnsides, 1 Gratt. 165 ; Overton’s heirs v. Davisson, Id. 211 ; French v. Loyal Company, 5 Leigh, 627; Koinnet v. Rankin's heirs, 11 Gratt. 420. These being the well established principles of law as applicable to this case, we are of opinion that the Circuit court did not err in refusing to give the first and second instructions prayed by the defendants, as set out in their fourth bill of exceptions.
The court is of opinion that there is no error in the refusal of the court to give the third instruction prayed for by the defendants, because in the case supposed the Walters right of entry would not have been tolled, and be could have had recourse to his writ or action of ejectment.
The fourth instruction, which was given, we think is correct. If the disseisee before making entry, die intestate, and his heirs make a conveyance of the premises, at a time when they are not in possession thereof, as the law theu was, their conveyance will pass nothing. But it is not every possession in another which will render a conveyance void. To have this effect it must be adverse. We think the instruction good without inserting the word “actual.” But the insertion of that word did not vitiate it or change its meaning.
We are of opinion also, that there is no error in the rulings of the court, to which the first and second bills •of exception apply. The first was not insisted on in argument: and as to the third, whilst reputation and tradition are admissible in evidence, upon questions of boundary, wm know of no case, where it has- been admitted to prove or disprove title ; and to allow it, we think, would be to violate well established principles of evidence.
The question raised, by defendant’s second bill of ex*394ceptions, is one of greater difficulty. Did the deed of ^’je marshal pass the title, of the idiot heirs of Michael Walters, to Leonard Straw ? The conveyance was made by authority of, and in obedience to, a decree of the Superior court of Chancery, which was a court of general jurisdiction, and by statute had jurisdiction of the subject. But the sale was made to one whom the statute expressly declares, “shall not be admitted a purchaser, either by himself, or by another, or become the owner of the land, in any manner,” during the period of the disability of the heii’, or devisee. It is a plain error of the chancellor, and is apparent upon the decree, and the deed made in pursuance of it.
In Cox & al. v. Thomas' adm'x, 9 Gratt., 323, 326, Judge Allen says, “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.” And cites Drury's case, 8 Coke, 141 b, and Tarlton v. Fisher, Doug. R. 671. And again, in commenting on Prigg v. Adams, 2 Salk. R. 674, he says “the principle of that case is decisive of this. There, although the act of Parliament declared the judgment void, yet as a court of competent jurisdiction had rendered it, though the error appeared on its face, it could be corrected only in an appellate tribunal.” The same principle is affirmed in the case of Fisher v. Bassett, 9 Leigh, 119. Prom these decisions, and others which might be cited both in this court, and in the United States Supreme court, it would seem, that although the conveyance was made to one whom the statute forbids to be admitted a purchaser, and incapacitates to become the owner duringthe period of disability, it being authorized by the decree of a court of competent jurisdiction, the deed is not void, hut only voidable ; and is in force until set aside, by a reversal of the decree, by authority of which the conveyance was made. This cannot be done collaterally, but only in the same court *395which pronounced the decree, hy review ; or in a proceeding before an appellate tribunal, to revise or reverse. We are, therefore, of opinion that there is no error in the ruling of the Circuit court on this point.
■ It now only remains to say, that for reasons already assigned, which need not be here repeated, we think the instructions given by the court to the jury, on the motion of the defendant in error, are substantially correct. Upon the whole, we are of opinion, to affirm the judgment of the District court.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481766/ | Bouldin, J.
delivered the opinion of the court:
This is an appeal from a judgment of the .Cireu.it court of "Washington .county in an action of ejectment brought in that court by the appellees against the appellant, in January 1869. The case was substantially as follows:
Mrs. Sarah B. Preston, of "Washington county, died in July 1846, having first made her last will, which was duly admitted to probate by the County court of Wash^ ington county. By a paragraph of the third clause of the will she devised to her three sons, Wm. C., John S. and Thomas L. Preston (who were constituted her executors), certain real property therein mentioned, in trust for her daughter, Mrs. Sally B. Floyd, with instructions to them to permit her “said daughter to occupy and enjoy said property should she prefer doing so; ” and “should she survive her husband, they shall convey pie said property in fee simple to her and her heirs.”
William C. Preston and John S. Preston were both non-residents of the State, and neither of them having at any time qualified as executor or acted as trustee; Thomas L. Preston alone qualified and acted as such. At his mother’s death, as was his plain duty by the imperative terms of the will, he permitted his sister, Mrs. Floyd, to take possession of and enjoy the property devised to her as aforesaid; and she and her alienees have continued to hold it down to the institution pf this suit in January 1869.
In the meantime—to wit, on the 23d day of June 1862—by an order of the County court of Washington *398county, made on the motion of Mrs. Sally B. Floyd, William B. Byars was appointed trustee of Mrs. Sally B. Floyd in the place of said Thomas L. Preston, wrho appeared in court, as the order recites, and declined to act logger as trustee: and from that date William B. Byars alone acted as such trustee. Before that time, however, William C. Preston had died without having accepted the trust, or iu any manner interfered' with its execution.
Soon after the appointment of William B. Byars as trustee as aforesaid, the said Byars, as trustee of Mrs. Sally B. Floyd and Mrs. Floyd, filed their bill in the Circuit court of Washington county, on the chancery side thereof, against the said Thomas L. Preston, praying a settlement of his account as trustee as aforesaid ; to which bill said Preston filed an answer, under oath, in which he admits that he had been removed as trustee by order of the County court of Washington county, and said William B. Byars appointed in his place. '
On the 15th day of June 1863, William B. Byars, trustee as aforesaid, and Mrs. Floyd, by deed of that date, undertook to convey to A. L. Hendricks, in consideration of the sum of thirty thousand dollars, certain real estate in Abingdon, Washington county, Virginia, being a portion of the trust subject aforesaid, or property for which that subject had been duly exchanged, and the deed was acknowledged by both grantors before a notary public and duly certified and recorded; but John B. Floyd, husband of Mrs. Sally B. Floyd, being then alive and not being a party to the deed, the same was deemed void as to Mrs. Floyd. On the 26th day of August 1868, the said John B. Floyd died; and on the 2d day of December thereafter Mrs. Sally B. Floyd, being then a feme sole, re-acknowledged the deed aforesaid to Hendricks, before the same notary who had taken her previous acknowledgment, and by whom her said re-acknowledgment was duly certified.
*399Before that time, however—to wit, on the-day of October 1863, John S. Preston, who had individually made an exchange of property with his sister, Mrs. Floyd, and her trustee, retaining a lien on the property passed to her, which was the same sold to Hendricks, executed to Hendricks a deed of release, and endorsed thereon a receipt in the following terms: “Richmond, 11 Jan’y 1864. Received of Wm. Byars, trustee of Mrs. Sally B. Floyd, on account of this deed, six thousand two-and thirty-two dollars fifty cents ($6,232.50), in full. John S. Preston.” This deed, with the receipt aforesaid endorsed thereon, was duly recorded in Washington County court.
Hendricks held the property thus acquired until October 1868, when by deed of that date, he conveyed it to the appellant Joseph T. Campbell, trustee; and on the 31th of January 1869, John S. Preston and Thomas L. Preston, claiming to be trustees of Mrs. Sally B. Floyd, instituted an action of ejectment against Campbell, seeking to set up a legal title in themselves, and to recover possession of the land. The defendant Campbell demurred generally to the declaration, and pleaded “not guilty.”
The demurrer was overruled, and the parties waiving a trial by jury, submitted the case upon the law and the facts to the judgment of the court; whereupon judgment •was entered for the plaintiff: and the case comes to this court on an appeal from that judgment, all the facts of the case having been spread on the record.
Without deciding whether the appellee, John Sr Preston, is not estopped by deed and by matter in pais, and Thomas L. Preston by matter of record, from claiming at this time to be trustees of Mrs. Salty B. Floyd ; and without deciding whether, conceding the said John S. Preston and Thomas L. Preston, against all the facts and circumstances of the case, and against their solemn acts and admissions to the contrary, to be still the trustees of *400Mrs. .Floyd, the court should not have presumed, ora well established principles of law, that they had discharged their duty by making to Mrs. Floyd the conveyance in fee simple,, to which she had been clearly entitled for nearly six years prior to the institution of this suit.; questions which have been ably and earnestly argued by counsehon both sides—waiving the consideration of these questions as unnecessary to be-decided in this case—the court is of opinion, that under the provisions of the will of Mrs. Sarah B. Preston, her daughter Mrs. Floyd acquired at once, on her mother’s death, an equitable estate in fee simple in all the property devised to her use, with the absolute right to hold and occupy the same— to the use and possession thereof as her separate estate— against her said trustees and all other persons ; that at the death of her husband, John B. Floyd, she became entitled, in addition to the use and possession of said property, to an absolute conveyance thereof to herself in fee^simple, which it was a breach of trust in her said trustees to withhold : and so far from said trustees having the right to sue for said land and eject her therefrom, that she had the right from the moment of her husband’s death to demand from them, unconditionally, a conveyance of said property to her in fee simple; which right she could, at any moment, have enforced against them by suit.
The court is further of opinion, that having thus the right to possess, and the actual possession of the property aforesaid, and holding also the equitable estate in fee with the right to an immediate conveyance of the legal estate, all these rights passed to and were vested in the said A. L. Hendricks, by the deed of Mrs. Floyd to him of the 2d of December 1863 ; that being the date of the re-execution aforesaid ; and that by the deed of the 15th of October 1868, from A. L. Hendricks and wife to Joseph T. Campbell, trustee, all the interest and estate aforesaid was vested in the said Campbell, who-*401stood thereafter in all respects in the shoes of the said Sarah B. Floyd, and could no more be ejected from said premises at the suit of said trustees—conceding them to be such—than Mrs. Floyd herself could have been, had the suit been instituted against her, before her conveyance to Hendricks.
The court is, therefore, of opinion, that the judgment of the Circuit court is erroneous and should be reversed ; and that judgment should be now entered for the appellant, the defendant in the court below.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481767/ | Bouldin, J.
delivered the opinion of the court.
In September 1866, Madison T. Smith, as trustee for the children of Adeline M. Smith, obtained a judgment by. default in the Circuit court of Patrick county, against Jackson Penn and G. M. Hylton for $4,210, with interest thereon from the 5th of January 1864, until paid, and costs, on a bond executed for the purchase of slaves on the 5th day of January 1863.
*403After this judgment was obtained, Penn employed «counsel to' proceed by motion to have this judgment scaled. It will be observed, however, that the judgment had been rendered more than sis months after the passage of the act of the General Assembly for the adjustment of Confederate liabilities, known as the scaling act, and it was not then known—nor has it yet been directly decided—whether any relief could be afforded to a party who, in the absence of fraud, accident or surprise, or other equity, had allowed a judgment to be rendered against him without availing himself of the benefit of the statute. Under these circumstances, the counsel for the defendants prepared a notice for a motion to scale said judgment, which he showed to the counsel for the plaintiff; and thereupon, without service of said notice, and to avoid litigation, it was agreed between said counsel, by the authority and with the consent and approbation of both parties, that the question of difference between them should be adjusted by scaling the judgment as of the date of the contract. The calculation was made, and accurately made, by the counsel of the defendant, Penn, in the presence of the plaintiff" and his counsel. The amount of the judgment was reduced to the sum of $1,403.33 of principal, being just one-third of the nominal debt; and by consent of parties, it was entered of record that the judgment should be discharged by the payment of that sum, with interest from the 5th of January 1864, until paid, and the costs. This was deemed at the time a final settlement of the question; but afterwards, to wit: on the 14th day of December 1868, when it was supposed that a new and different construction of the scaling act from that which had previously prevailed had been established, the said Penn filed his bill in the Circuit court of Patrick county, on the chancery side thereof, alleging that there had been a mistake of law in the adjustment aforesaid, by scaling the judgment at the date of the contract, instead of the *404maturity thereof, and praying an injunction to the judgment, and that the same be again scaled, &c., &c.
The injunction was awarded, the cause regularly matured and heard, and the debt again scaled to $210, instead of $1,403.33J; and the defendant having already paid more than $210, the Circuit court rendered a decree-in his favor for $26.50, the excess of payments, with interest and costs. From that decree Smith appealed to this court.
The only ground of equity alleged in the bill for disturbing the adjustment solemnly entered into between the parties, aided by counsel on both sides, is that there was a mistake of law in scaling the debt as of the date of the contract, instead of the maturity thereof. Whether this be a mistake of law or not, may perhaps be considered a question of some doubt; but as that question does not necessarily arise in this case, no opinion thereon will be now expressed. The differences between the parties involved other questions ; and it is enough to say, that the parties themselves, with the aid of counsel, have carefully and deliberately adjusted these differences, and made a settlement deemed just and reasonable by themselves at the time, and deemed just and reasonable-now by this court; and even had they fallen into a mistake of law, it was not such a mistake as equity should have relieved against. The questions involved in the adjustment were at the time, to say the least of them, doubtful questions ; and it is well settled that “if the question be a doubtful one, and the doubtfulness of that'question is made the basis of an arrangement or agreement, the court will give no relief.” Adams’ Eq., top p. 444, marg. 189.
We are of opinion, therefore, that the decree of the Circuit court is erroneous, and that the same should be reversed, the injunction dissolved, and the bill dismissed.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481768/ | Christian, J.
This case presents a single question, and one easy of solution upon well settled principles, established by repeated decisions of this court, as well ashy all the best writers on the law of evidence.
When it is laid down as a rule that comparison of handwriting is not admissible, it must be remembered that “ by comparison is now meant the juxta positione of two writings, in order by such comparison to ascertain whether both were written by the same person. 2 Starkie’s Ev. 654, and cases there cited.- But where the witness has seen the party write, and is able to swear to his belief, that the writing in question is the hand of that person, such evidence is clearly admissible as legal proof of handwriting, and is considered as distinct from evi-' deuce by comparison. Greenl. on Ev. §§ 576-577; Bedford’s adm’r v. Peggy, 6 Rand. 316. In the case before us, the witness, Montague (who w7as called to prove the signature of Mrs. Baniett to the title bond sought to be given in evidence), stated that “he had never seen her write but once, and then only to make, her signature; that he would not be able from his knowledge of her handwriting to distinguish it from that of others; hut that he was of opinion from having compared the present signature with the one he had seen her make, and from other circumstances not disclosed by the witness, he was of opinion it was in her handwriting.” The question is, was this evidence admissible ? However *407little or however much credit may be given to it, is not the question. It may be entitled to very little weight; but the weight of the evidence is one thing, its competency is another. The point upon which courts have differed in opinion is upon the source from which the knowledge of the handwriting is derived, rather than as to the degree or extent of it. All the authorities agree that a witness is competent to testify to the genuineness of a controverted signature if he has the proper knowledge of the party’s handwriting. The difficulty has been in determining what is proper knowledge, and how it has been acquired. One mode of acquiring this knowledge, and certainly one of the best, is having seen the party write. "Whether he has seen him write once or many times, goes rather to the degree and extent of his knowledge than the source from which it is derived, and does not affect the question of his competency, but only the weight to be given to his evidence, which is a question for the jury.
It has been wrell settled in numerous cases, and is laid down as settled law in all the standard works upon evidence, that a ■ witness who has seen the party, whose signature is controverted, write hut once, and that only his signature, is competent to testify, although he may have to compare the signature which he knows to be genuine with the one in controversy, in order to refresh and strengthen his recollection.
The case (cited by the counsel for the appellee) Burr v. Harper, 3 Eng. C. L. R. 168, is one exactly in point, and is strikingly like the one under consideration. In that case the witness, whose competency was questioned, stated, when called -to prove the signature of Harper, that he once saw him sign his name to a paper, which he then had in his possession; that the fact made so slight an impression upon his mind that, judging from that single occurrence, he was not able to say whether the handwriting to the agreement was the defendant’s or *408not; that he would not venture, upon the mere inspection of the p'aper, to form a belief on the subject; but that, hy comparing the signature of the agreement, to which he was required to speak, -with 'that which was subscribed to the paper then in his possession, he was able to swear that he believed it to be the' defendant’s writing. It was held in that case, and its authority has never been questioned, that the witness was competent-to prove the handwriting. The court in ’that case says : 4 ‘ The mere fact of having seen a man once write his name may have made a very faint impression upon the witness’ mind; but some impression, however slight in degree, it will make, and surely as the standard exists, and the witness possesses the genuine paper, he may recur to it to revive his memory upon the subject. Here a basis is laid in the fact of his having seen the defendant sign his name once. But his memory is defective. He then recurs to a paper which he knows to he an authentic writing. He uses it to retouch and strengthen his recollection, and not merely for the purpose of comparison. The evidence, therefore, is admissible.”
In a case recently decided by the Supreme court of the Hnited States, Mr. Justice Davis, speaking for the whole court, says : “ It has been settled everywhere that if the witness has seen the party (whose signature is controverted) write his name but once, he is competent to testify.” Rogers v. Ritter, 12 Wall. U. S. R. 322.
I am of opinion that there is no error in the judgment of the Circuit court, and that the same ought to be affirmed. '
The' other judges concurred in the opinion of Christian, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481769/ | Anderson, J.
delivered the opinion of the court.
This is an appeal from an interlocutory decree óf the Circuit court of Wythe county. The only error assigned in the decree is that it allows the executors a credit for $5,000, which was invested iu Confederate securities, and is wholly lost to the estate.
Henry Ilonaker, the testator of the appellees, departed this life in January 1868. By the ninth clause of his will, he directs his executors to dispose of all his personal property not otherwise disposed of by his will, other than the slaves, to the best advantage, either publicly or privately, as they may choose ; and his slaves he authorizes to be sold to masters of their own - choosing, and at prices below their appraised value, if necessary to carry out his humane purpose of allowing them to select their masters, &c.
The will was admitted to probate on the 5th of February 1863, and on the 19th of that month the executors made sale of the property. It had been appraised with reference to Confederate values, and the purchasers ■were privileged to pay in Confederate money. That constituted the only circulating medium [ and it may well be presumed, from the facts in the record, was the currency which it was contemplated by the testator would be received by his executors for the property which he directed them to sell; and upon no other conditions could the sale have been effected, and the purposes and wishes of the testator, as indicated by his will, carried out. The insecurity of the property, in the dis*411turbed state of the country, seemed also to impress upon the minds of the executors the importance of an early sale ; and it was the unanimous opinion and wish of the adult legatees that the sale should be made for Confederate money. The proceeds of the sale, together with cash on hand, of which $2,301 was Confederate money, and $609.40 received on debts due the estate, amounted to $32,535.13.
On the 2d of December 1863, the executors made a settlement before a commissioner of the County court of Pulaski, showing that they had disbursed of that sum $23,855.38, leaving a balance in their hands of $8,679.75.
In November 1864, less than a year after the first settlement, they made another before the same commissioner, in which they receive a credit for $5,000,1 Invested in Confederate bonds, under an order of the judge of the Circuit court of Pulaski.” This credit is allowed by the interlocutory decree aforesaid, and is the ground of the complaint and appeal.
The executors, in their answer, say “they have fully and fairly, so far as they know or believe, accounted for and disbursed to parties legally entitled to receive it, all the funds which have come to their hands, except the sum of $5,000, which is about the amount the infant legatees were entitled to. There being no person to whom respondents could safely pay their funds, they applied to the judge of the Circuit court of Pulaski county for authority tolnvest this sum for the benefit of the persons entitled to it. That an order was made by the said judge, authorizing them to invest it in Confederate States bonds ; which they did ; and that they deposited the money and obtained a certificate from the proper repository, entitling them to demand a bond for the amount invested. But before the bond was obtained the war ended, and the authority to issue bonds terminated. These statements of the answer are well supported by the proofs in the record.
*412The will, if it does not make it the duty of the executors to sell, clearly invests them with power to sell. in exercisiug the discretion, they acted with as muc^ Pru(lence and judgment as the most prudent and judicious would have been likely to exhibit in the same circumstances. It is evident that, in perfect good faith, they discharged the trust reposed in them with a view to the good of the estate. They may have erred; if so, it was an error into which the wisest might have fallen. "We cannot say they did err. It is impossible to say that, under the circumstances, they could have acted differently with better results. They sold the personal property as directed by the will, and as was desired by all the adult legatees, paid the debts and expenses of administration, and the legacies to those who were capable of receiving payment, retaining only the sum of $5,000—about what was necessary to pay the infant legatees. And this sum they invested in Confederate securities, under the direction of the Circuit court, as authoi’ized by an act of the legislature, that it might be kept at interest, ready to be paid to the infant legatees as they respectively arrived of age to receive it. The authority of the court was not necessary to warrant the investment, as they were expressly authorized by the will “to hold the money in their hands, or to loan it out, as they may think best, and to pay the children as they become of age.” But it shows with what scrupulous care and fidelity they desired to do right, and to conform to all the requirements of the law in the administration of their trust; and it strengthens their claim to the protection of the courts.
Five thousand dollars of the assets of the estate, which could not be disbursed in consequence of the infancy of some of the legatees, without fault of t.he executors, but as a consequence of the result of the war, has been lost. Should the loss fall upon them ? The case is not now prepared to decide upon whom the loss should *413fall. But upon well settled principles, which have been recently declared by this court in Ducts’ commismissioner v. Harman & al., 21 Gratt. p. 194, and which need not be repeated, we are clearly of opinion that it should not fall upon the executors. ¥e are of opinion, therefore, to affirm the decree of the Circuit court.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481770/ | Staples, J.
delivered the opinion of the court.
This is a suit for partition of a tract of land claimed by the appellees, as tenants in common with appellants. The court below rendered a decree in accordance with the prayer of the bill; and from this decree an appeal has been taken to “this court. Various errors have been assigned, some of which relate merely to the regularity of the proceedings in the Circuit court, and will be first noticed.
It is objected that the clei'k ought to have dismissed the suit, because of the plaintiffs’ failure to file their bill for more than two years after the execution and return of the original process. It certainly is the duty of the clerk to enter the suit dismissed if three months elapse after process is returned executed without the bill being filed. If, however, the bill is filed before an order of dismissal is entered, it is entirely competent for ,the defendant to waive the objection. In this case he will be held to have made such waiver by filing his answer and consenting to a hearing upon the merits.
It is also objected that the suit was not regularly revived against the appellants. The record states that by consent of parties the cause is revived against the persons therein named, heirs at law of Andrew JBuchanan, Ho objection on this ground having been made in the Circuit court, this court must presume the revival regularly entered with the consent of the proper parties.
It is further objected that the appellees have offered no proof that they are representatives of William King the elder. It does not appear that this objection was *419ever suggested, or even hinted at, in the Circuit court. The answer of Andrew Buchanan, under whom appellants claim, does not question the right of the appellees to sue in the character they assume. The ground therein taken in opposition to the partition is that the Fendall title, derived through purchase from Straw, is superior to the King and Campbell title, under which appellees claim; that the said Buchanau and those under whom he claims have held adversary possession of the land in •controversy a sufficient time under the statute to prevent a recovery; and further, that the purchase of the outstanding title by Campbell did not, in point of law, enure to the benefit of the appellees. Throughout the proceedings it is impliedly, if not expressly, conceded, that the appellees are properly before the court as heirs or devisees of William King. Tinder these circumstance, I think it is too late to object to the decree for the want of proof of these facts.
These points being disposed of, it remains to consider the objections to the decree upon its merits. It is conceded by the counsel for'the appellants that, as a general rule, a joint tenant, or tenant in common, is not permitted to purchase in an outstanding adverse title to the common property for his own benefit to the exclusion of his co-tentant. He insists, however, that the co-tenant is required, within a reasonable time, to make his election to claim the benefit and to contribute to the expense incurred in the purchase of such title. If -ho unreasonably delays in this until there is a change in the condition of the property, or in the circumstances of the parties, he will be held to have abandoned all benefit arising from tbe new acquisition. I think this is a correct statement of the principles of law governing in such cases. It does not, however, cover the whole ground. If the co-tenant is to be considered as forfeiting, by his delay, •every advantage arising from the purchase of the outstanding title, it should appear not only that he was *420apprized of the purchase, but also of the claim set up by ^is companion. The co-tenant may reasonably presume acquisition was made in support of the common title,'and he may act upon that presumption. He has-right to consider the outlay in such case as a joint charge to be settled and accounted for as any other necessary expense incurred .in protecting the joint estate. When, however, he is otherwise informed, it is then his duty, within a reasonable time, to claim the benefit of the new title aud offer to contribute his share of the sum expended in its acquisition.
It seems to me, moreover, in such case the burden is-upon the purchasing tenant to show that his companion had notice of the purchase and the exclusive claim asserted by him. As every joint tenant, or tenant in common, occupies a position of trust and confidence towards his companions, he who seeks to change these relations, and to expel the others from the enjoyment of the common property, must establish the facts which make such expulsion just and equitable.
Tested by these principles, the questions arising in this case are easily solved. The outstanding adverse title was acquired by John Campbell on the 4th of September 1833, and was by him conveyed to Buchanan on the-20th June 1843. It is not pretended—at least, it is not charged—that the appellees or their ancestor, Wm. King, had any notice of this purchase and sale by Campbell. The deed to the ■ latter from Straw being for a larger tract, of which the land in controversy is part, furnished no such notice. And the same may be said in respect to the deed to Buchanan. There is not a line or word in it to show that it embraces the laud in dispute. There was nothing in the character of .the transaction calculated to give it notoriety. Campbell’s purchase from Straw amounted to eighteen hundred acres, the consideration of which was two hundred dollars. The land in controversy contains three hundred and *421■sixty-three acres. The amount, therefore, of appellees’ contribution to the new purchase would have been fifteen -dollars and seventy-five cents.
It is reasonable to suppose that a sum so inconsiderable scarcely attracted the attention of the parties. In vitself it affords a strong presumption that neither King nor his devisees, in failing to advance it, were actuated by any improper motives. Certaiuly it is repugnant to .any notion of equity, that the non-payment of such a •sum shall be permitted to work the forfeiture of an -estate.
It is to be observed also, that the appellants do not raise this question in any form in the court below. They -.rest their defense there on entirely different grounds. If the point had been suggested in the Circuit court, •the appellees might have accounted for the delay, and thus removed a difficulty now presented for the first .time in the argument here.
It is, however, argued by appellant’s counsel that the taking of a conveyance to himself by Campbell, the re-cording of that conveyance, and the sale by Campbell to Richardson, was an actual ouster by the former of the heirs and devisees of King. At all events the acts of ■Campbell are such acts as are made by section 15, chapter 135, Code of 1860, equivalent to actual ouster. The •cases cited in support of this proposition, do not sustain it. The acts mentioned, considered singly or together indicate a mere claim of title to the whole estate. But a claim of title can never change the possession and without such change there can be no disseisin. In Peaceable v. Read, 1 East. R. 568, a tenant in common levied a -fine of the whole premises, and afterwards took all the -rents and profits for nearly five years, without account; ibut it did not appear he held adversary possession at the dime of levying the fine. It was decided, this was not •■sufficient evidence from which the jury might presume j&a. ouster. And although one tenant in common takes *422the whole profits, yet this does not divest the possession; of his companion. • There must be an adversary possession ; such acts as if done by a stranger would be acts, disseisin; and they must be shown -to have been done adversely to the rights of the co-tenant, aud with intent to oust him, and to assert the actual and exclusive-ownership of the entirety. 1 Green’s Cruise, on real property, page 393 ; Adams on ejectment, 55 ; 1 Lomax. Digest, 504. The taking a conveyance by Campbell aud its recordation did not, therefore, operate as an ouster of the appellees, or those under whom they claim ; nor did the deeds to Richardson and Buchanan respectively have-any such effect.
It is well settled that a conveyance by metes and bounds of part of an estate held in common, though valid against the grantor, cannot prejudice the rights of the co-tenant,, unless followed by entry and adversary possession. The-grantee becomes thereby merely a tenant in common with the co-tenants of his grantor ; his possession is in presumption of law, the possession of all, and is to he deemed in support and not in derogation of the common title. Robinett v. Preston's heirs, 2 Rob. R. 273 ; Hannon v. Hannah, 9 Gratt. 146.
It is equally true that if the purchaser takes a conveyance of the whole estate from one tenant in common,, and enters into exclusive possession under such conveyance, claiming title to the whole, this is an ouster of the-other tenants ; and the grantee so entering and claiming-title may rely upon his adversary possession, if continued, a sufficient period, as a bar to a recovery by the other-tenants. Town v. Needham, 3 Paige’s R. 549: Clapp v. Bromagham, 9 Cowen. R. 530. How do these principles affect the appellants? Andrew F. Buchanan, under whom they claim, purchased the land on the 20th of' June 1843. This suit was instituted in November 1852 ; constituting an adversary possession, if it existed at all, of about nine years. But, in fact, there is not the slighest *423foundition for supposing there was any such possession. The record contains no evidence bearing upon the point, except the report of the commissioner, which states that no rents are allowed by him from 1843 to the year v ° 1853 ; for the reason that the property was wholly unimproved at that time, and of no rental value. This would seem to exclude the idea of any such occupation as amounts to a disseisin of the appellees or those under whom they claim.
The provision in the Code of 1860, relied on by counsel, has no such effect as is claimed for it. It has been the established doctrine of the courts, that a tenant in common cannot maintain ejectment against his companion without proof of an actual ouster. Difficulties often occur in detei’mining whether certain acts constitute an ouster. Parties otherwise entitled to recover are defeated from an inability to prove it. It was, therefore, provided it should be sufficient for the plaintiff to prove some act amounting to a total denial of the plaintiff’s right as co-tenant.
It was not intended to alter well established principles of law governing the relations of joint-tenants or tenants in common to each other, but simply to enlarge existing remedies. Doe, lessee of Taylor, v. Hill, 10 Leigh, 457.
For these reasons, I think the decree of the Circuit court should be affirmed. But I am of opinion the appellees are not eutitled to recover any rents or profits against the appellants, upon the principles settled by this court, in Early v. Friend, 16 Gratt. 21.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481771/ | Bouldin, J.
delivered the opinion of the court:
In the year 1859, James Wall, then of Montgomery' county, Ya., being about to remove to the State of Missouri, placed in the hands of his friend and neighbor, John Hale, of the same county, for collection when they should' become due, two bonds of one John B. Slusher, dated April 6th, 1859, for $1,302 each; one payable the 10th of April 1861, and the other the 10th of April 1862. These bonds were given by Slusher to Wall for the purchase money in part, of a tract of land in said county, sold by Wall to Slusher, and a lien was retained on the face of the deed to secure their payment. The fact, *427however, of the lien being retained, did not appear on the face of the bonds, nor does it anywhere appear, that it was ever communicated to Hale or was known by him. Soon after the bonds had been placed iu the hands of Hale, Wall left the State of Virginia for the State of Missouri, where he has ever since resided.
In October 1860, at the solicitation of Wall, J. B. Blusher paid him in advance, the sum of $500, for which Wall agreed to allow him a premium of 12J per cent.; and by his instructions a credit of $538.58, payment and premium, was endorsed by Hale on the bond first falling due, as of the 10th of April 1861, being the maturity thereof. This paymeut was made by deposit in the Branch of the Farmers5 Bank of Virginia, at Blacks-burg. Ho other payment was made until about the last of February or first of March 1862, when the sum of $811, being the balance then due on the first bond, was tendered and paid by Blusher to Hale in notes of solvent banks, the most of it in Virginia State bank notes. Prior to this time Hale had written to Wall, asking for definite instructions as to the mode of transmitting his money, when collected, but had received no reply, nor did he at any time thereafter, receive any instructions from him. Wishing to place the money in some secure place he deposited the entire amount collected, $811, to his own credit in the Bank of the Valley at Christians-burg, on the 28th of March 1862, and took from the teller a certificate of the deposit.
The other bond fell due on the 10th of April 1862 ; anrlon the 3d of May thereafter, the full amount thereof, principal and interest, being the sum of $1,307.24, was also paid by said Blusher to Hale—about $520 of it in Confederate States treasury notes, and the residue in the notes of solvent banks—chiefly notes of Virginia banks. On the same day—the 3d of May 1862—Hale deposited the notes thus received, $1,307.24, on special deposit in the Branch of the Farmers’ Bank at Blacksburg, taking *428from the cashier a certificate thereof. This deposit was to be returned to Hale or his order on return of the certificate. Both of these certificates were carefully preserved by Hale for Wall, until the close of the "war between the United States and the Confederate States of America.
At the dates of the collections, it is well known to us as a matter of history, that the notes of the banks of Virginia and of other solvent banks, and Confederate States treasury notes were but little depreciated, not more perhaps, than the paper currency of the United States, if so much ; that they then-constituted the only currency in Virginia, and were universally paid out and received by the banks of the State, and by prudent men of business, in all their transactions.
Both of the banks in which Wall’s funds were deposited, seem to have failed, and the deposits have thus been lost.
Hale is a plain man of but little culture, and, as charged by Wall in his bill, of weak and feeble intellect; and he acted in this matter wholly without compensation, merely to accommodate his friend and neighbor, Wall. He has not derived, and never expected to derive, the smallest personal advantage from the transactions.
After the close of the war, to-wit: in October 1865, Wall came to Virginia to look after his money, and Hale then tendered him the two certificates which he had taken and preserved as aforesaid, but Wall declined to receive them ; and in January 1866, instituted his suit in the Circuit court of Montgomery "county on the chancery side thereof, against Hale and Slasher, seeking to hold them responsible for the debt. The bill, after alleging that the bonds had merely been left in the custody of Hale, denied in the first place, his authority to collect, and Slusher’s authority to pay the money. It charged, in the next place, that if such authority at any time existed, it was suspended by the war ; and if not suspended did *429not justify Hale iu receiving in discharge of the debt, the paper currency of Virginia. It alleged ignorance of what had been done and prayed a discovery.
There was an amended bill filed, which, after repeating the allegations of the original bill, charged among other things, that the deposits made by Hale as aforesaid, being made in his own name, amounted to a conversion and appropriation of the funds to his own use, and that he thereby became responsible for the full amount deposited, with interest.
Hale and Slusher severally answered the original and amended bills, setting forth in substance the facts above detailed ; and both affirming directly and unequivocally, that full authority was given to Hale by Wall to make the collections. This authority was, in addition to the sworn statements of the answers, abundantly proved by the testimony iu the cause, and has been conceded at the bar.
Upon the hearing of the cause, the Circuit court dismissed the bill as to Slusher, but hold Hale responsible for the several amounts deposited by him as aforesaid, with interest from the dates of the deposits, and decreed accordingly.
From this decree both Hale and Wall have appealed to this court. Hale because he was held responsible for the deposits ; Wall because the bill was dismissed as to Slusher.
We will consider first the decree against Hale. Was it proper to hold him responsible for the.sums of money deposited in the banks at Chistiansburgand Blacksburg ? It has not been contended before this court, and could not be successfully contended, that Hale was not the ageut of Wall, duly authorized by him to collect the funds in question. That is conceded.
But it is insisted in support of the decree ;
1. That the agency of Hale w’as not confined to the collection and preservation of the fund, hut that it ex*430tended also to its transmission to Wall in Missouri; and as the war between the United and Confederate States put a stop to all communication between the citizens of the States of Virginia and Missouri, and rendered it unlawful, the right to transmit the funds became unlawful, and was suspended, and with it the right to collect was also suspended.
2. Conceding his authority to collect, Hale had no authority to receive in discharge of the debt the depreciated paper currency of Virginia.
3. By depositing the funds in bank in his own name, and leaving them there without further attention, Hale had converted and appropriated them to his own use, and thereby became debtor to Wall for the entire amount.
We will consider these propositions in their order.
1. Was the agency to collect the fund suspended by the war ?
That an alien enemy may keep an agent in the enemy’s country during the existence of war, with full power to collect money and preserve property, is a proposition too well established to require citation of authority. The question has very recently undergone a careful examination by this court, and the proposition was affirmed by all the judges, that whilst the authority of an agent to transmit money to his principal would be suspended by war, because such transmission would involve direct intercourse with the enemy, which is unlawful; the authority to collect and preserve remains unimpaired; and the debtor cannot, in such case, lawfully refuse to pay to the agent, nor the agent refuse to receive payment. Manhattan Life Insurance Company v. Warwick, 20 Gratt. 614, p. 635 to 638, and cases there cited by Judge Anderson, delivering the opinion of the court. Two of the judges, it is true, dissented on the merits—Judges Christian and Moncure—but both of them concurred with the majority, in affirming the principle above stated. Judge Christian, with whom Judge Moncure concurred, speak*431ing at page 653 of the cases on this subject, says: “These cases decide that it is lawful for an alien enemy to keep an agent in the enemy’s country to receive money or to take care of his property during war.”
The case furnishes a complete answer to the argument of the learned counsel for the appellee on this question. That ai’gument was, that it was the duty of Hale in this case not merely to collect the fund, but also to transmit it to Wall in Missouri; that the right to transmit was clearly suspended by the war ; and as the authority to collect was conferred for the purpose—and only for the purpose—of transmitting the fund, when the latter right fell the former necessarily fell with it. The view is plausible, but is completely answered by the case of the Manhattan Life Insurance Company v. Warwick. In that case it was the duty of the Virginia agent of the New York company to collect the premiums due the company in Virginia; but it was essentially his duty also to transmit those premiums to his principal in New York. This court held, that whilst the war necessarily suspended the right to transmit the premiums to New York, the right of the agent to collect them was not only not suspended, hut that it was his imperative duty to receive those premiums if tendered at the proper time.
The Supreme court of the United States in the case of Ward v. Smith, 7 Wall. U. S. R. 447 (cited by appellee’s counsel for another purpose), affirm the same principle. Speaking of alike case, they say, p. 452: “When an agent appointed to receive money resides in the same jurisdiction with the debtor, the latter cannot justify• his refusal to pay the demand, and of course the interest which it bears. It does not follow that the agent, if he receive the money, will violate the law by remitting it to his alien principal.”
But it is wholly unnecessary to multiply authorities on the question. We are of opinion that the right and duty of Hale to collect of Slusher the debt in question, *432and the right and duty of Slusher to pay, were not impaired by the war.
2. Had Hale, as agent, the right to receive the paper-currency of Virginia in discharge of the debt ?
It will be remembered that- when the debt was contracted, both debtor and creditor were citizens and residents of Virginia; that the contract was made in Virginia ; that when the creditor left the State he appointed, as his agent to collect the debt, a citizen and resident of Virginia, with whom he left the bonds, and that both agent and debtor continued to reside in Virginia. As a matter-of course, all parties expected the debt to be paid in' Virginia currency, unless that currency should become so depreciated as to render its reception an act of obvious impropriety. Such certainly was not the case when-the payments in question were made. The currency received by Hale was the very same which we know, as matter of history, was everywhere received and paid' out at that time by business men of the State, and” which they were always glad to receive. It was, in fact, but little depreciated at that time—not more than the-paper currency of the United States, if so much. It' was, in fact, substantially the same kind of money which "Wall himself had been glad to receive of Slusher in October 1860. Slushei’’s payment was made by a deposit in the branch bauk at Blacksburg, and was, therefore, in effect, a payment in bank paper, and in paper of the same bankgn which Hale made his special deposit of $1,307.24. Collecting them asílale did—a Virginia debt from a Virginia debtor—in funds everywhere in the State received and paid out as money; ■ charging not even the smallest commission for his services and his risk; making no use whatever of the fund, but depositing it at once in bank, to remain, as he supposed, secure and intact for his friend, and utterly ignorant, as he appears to have been, that there was other security for the debt than the single obligation of ' *433the debtor; it would be, unkind and unreasonable, to the last degree, to impute bad faith or breach of trust to this illiterate and feeble-minded old man: and without such imputation, having full power to collect as he did, his act cannot be impeached. Myers, &c., v. Zetelle, 21 Gratt. 733, and cases cited by Judge Christian.
But this court has recently decided the precise question in the case of Pidgeon v. Williams, 23 Gratt. 251. That was a case in which the professional firm of Barton & Williams,- lawyers, of Winchester, Virginia, had been employed in 1860, or early in 1861, to collect an old debt for a client who was sometimes in Virginia and sometimes in Maryland. On the 21,si of February 1862, just about the date of Hale’s first collection, they collected for their client, in Confederate States treasury notes, $1,028.50 ; and on the same day they deposited in bank to the credit, of their own “collection account,” not the full amount collected, as Hale did, but the sum of $932.95, being net amount after deducting fee and commissions. They had not seen their client for a long time, did not write to him, and the sum remained in bank uncalled for until the close of the war, and was lost like that in controversy in this case—not by the negligence or misconduct of the agents, but by the disastrous results of the war. Williams, the surviving partner, .was sued for the amount of the deposit in January 1866, as Hale was, and a verdiet and judgment was rendered for the defendant. This judgment was-approved and affirmed on appeal to this court. The court say, ,p. 254: “And first as to receiving Confederate money. The proof is, that at the time the money was received, Confederate treasury notes were worth only ten per cent, less than gold, including exchange; that it was almost the only currency of the-country, as good as any, and better than greenbacks, and that it was received and paid out by the banks, and. *434was the currency generally, if not universally, used in all the transactions of life; that gold had ceased to be a currency, and was sold as a commodity, and that the attorneys could not have collected the debt at all, if they had refused to receive Confederate currency. The claim had been placed in their hands for collection, and it was their duty to collect it. They had not been instructed by their client not to receive payment in Confederate currency; and we are of opinion that it would be unreasonable to hold them responsible, under the circumstances, for having done so.” Every word in this extract applies “a fortiori” to the case before us. If it would be unreasonable to fasten a loss, under such circumstances, upon learned counsel of large experience and much ability, rendering a service for compensation, much more unreasonable would it be to fasten a loss, under precisely the same circumstances, on an illiterate and feeble-minded old man, who supposed he was doing an act of kindness to a neighbor, and acted without expectation or desire of reward. ¥e are of opinion that Hale should not be held responsible for receiving bank notes and Confederate States treasury notes in discharge of the debt.
3. Nor do we think that the deposit in bank in his own name should render him responsible. Banks have always been regarded by the courts in Virginia as the safest places of deposit for money. The funds of married women, infants, lunatics and suitors of every character, are there deposited under orders of court; and in the case just cited of Pidgeon v. Williams, the court held that it was a proper and the best place, even during the war and on the border; and that the deposit was good, although not in the name of the client. Had the deposits been made in the name of Wall, or in the name of Hale for Wall, there could not be a question about them. But it is said, and truly said, that they were not so *435made,p>ut in the name of Sale. They do not appear, however, to have been mixed with any money of his own; nor does it appear that he kept a bank account at all. But it does appear that he did what is rarely done, except when a person is depositing money for another— he took formal certificates for both deposits, and kept them]until the war was over, and then tendered them to Wall. The court is well satisfied that he did not use the money in any manner or for any purpose, and it was not lost by reason of being deposited in bank in his own name. Precisely the same result would have followed had the deposit been made in the name of Wall himself. It was the result of an overwhelming disaster, which ^involved not only individuals, but communities and States, in a common ruin. In the expressive language of Judge Christian, in Davis’ commissioner v. Harman, &c., 21 Gratt., 194, p. 203: “It was not the failing of a bank, or the insolvency of a banker, but it was the sudden and irretrievable destruction of the whole currency of a country by the termination of a civil war, which had destroyed the very power that created it.” And we approve and adopt the concluding paragraph of the opinion in that case as strikingly apposite to the case before us:
“It would be too rigorous and unjust; it would be in violation of those well settled principles, founded in reason and conscience, which control the action of courts of equity, to hold that though the appellant has been guilty of no mala jides, no misconduct, no negligence, yet he is to be held responsible for a loss which he had no part in creating and no power to prevent. But that loss, we think, ought to fall upon those who were entitled to the fund that has perished.”
The court is of opinion that so much of the decree of the Circuit court as holds Hale responsible for the loss is erroneous, and should be reversed, and the bill dismissed.
*436On the cross-appeal, the court is of opinion, for the same reasons, that there is no error in so much of the decree of the Circuit court as dismissed the bill as to Slusher, and that th¿ same be affirmed, with costs, &e., to the appellee.
The decree as to Hale, reversed; as to Slusher, AEEIRMED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481772/ | Anderson, J.
delivered the opinion of the court.
This case is rather anomalous. It is a motion in a County court by the owner of land against a railroad company, to appoint commissioners to ascertain his just compensation for the lands through which the railroad passes, and which have been taken by the said railroad company for its purposes, and for damages, &c. The commissioners were appointed and reported, and on motion of the defendant, with consent of the plaintiff, the cause was removed to the Circuit court of the county in which it was depending.
The first question we will consider is as to the jurisdiction of the Circuit court. This case had been depending and undetermined in tbe County court for several years. The first section of chapter 174 (Code of 1860) provides that where any suit, motion, or other proceeding, has been depending in the County or Corporation *440court more than a year, on motion of any party it shall, without notice, be removed to the Circuit court having jurisdiction over such county or corporation. The language is certainly broad enough to embrace this case.
Bul ü is argued that the statute gives the County courts exclusive jurisdiction to appoint the commissioners, and requires their report to be returned to that court. And that if good cause be shown against the report, or if the commissioners report their disagreement, or if they fail to report in a reasonable time, the court’(the County court) may, without further notice, as often as seems to it proper, appoint other commissioners, and the matter may be proceeded in as before prescribed. All these provisions, they say, are made with reference to the County court, and cannot originate in the Circuit court. It is true they cannot originate in the Circuit court. But if the legislature thought proper to pass another act authorizing, in express terms, the removal of such motion and proceeding from the County to the Circuit court for specified causes, surely such act could not be regarded as repugnant to the former. But such an act could not more clearly embrace this case than the language which is used, to wit: “any suit, motion, or other proceeding, pending in a County or Corporation court.” Any motion, or other proceeding, depending in the County court, in the case stated, shall be removed to the Circuit court; and when removed, the fourth section provides, “shall be proceeded in, heard and determined by the court to which it is removed, as if it had been brought and the previous proceedings had in said court.” The Circuit court is clothed with all the powers as to the case removed, which the statute vests in the County court, to enable it rightly to decide the case. Consequently, when the motion is removed to the Circuit court, it has full jurisdiction of the subject, and may hear and determine objections to the report of the commissioners, and for *441good cause shown, may set it aside and appoint other commissioners; just as the County court could do. The jurisdiction of the County court is transferred to the Circuit court over the cause removed, and with it all incidental powers necessary and proper to the complete and full exercise of jurisdiction. And the statute makes . . . " , _ , it imperative upon the County court to remove the cause, in the case stated, on the motion of any party to the pi’oceeding; consequently, it is equally obligatory on the Circuit court to take jurisdiction, to proceed in, hear and determine it, as if it had been brought and the previous proceedings had in said’court.
We are of opinion, therefore, that the Circuit court of Washington, the cause having been removed to it from the County court, had jurisdiction of it, and was required by the statute to proceed in, hear and determine it, just as the County court should if the cause had not been removed. Consequently, the judgment of the Circuit court, that it had no jurisdiction of the cause, and remanding it to the County court, was erroneous.
We are also of opinion that it was competent for the defendant to rely upon the record of the proceedings of the County court, had upon its motion to ascertain the compensation to which David Campbell was entitled, &c., in its defence to the motion of said Campbell’s executor. But without deciding (which we are not authorized to do, as the cause is not before us,) whether that proceeding in the County court was final, or was still depending, and could be removed to the Circuit court by motion, we are of opinion that it was not competent for the Circuit court to decide any questions involved in that proceeding, as it was not before it by way of appeal or removal, and not then subject to its jurisdiction; and that, consequently, the judgment of said Circuit court is erroneous, so far as it sets aside the report of the commissioners in that proceeding, and directs other commissioners to be appointed.
*442The court is further of opinion that the motion of the executor .of David Campbell, in the County court, to have commissioners appointed, was unwarranted by law. If it could be regarded as a motion made in the proceeding instituted in that court, for the same purpose, by the railroad company (and we think it cannot be so regarded), it ought not to have been entertained until the report of the former commissioners had been set aside for good cause shown. We do not mean to intimate an opinion that that could have been done, or that it could not have been done, for the reason before assigned. But we are of opinion that the motion of Campbell’s executor is an independent motion, not connected with the proceeding instituted by the railroad company; and that the statute does not give to the land owner the right, by motion, to ascertain his compensation for his lands through which the railroad passes, and have been taken by the railroad company, or to recover damages from the said company.
The court is, therefore, of opinion, for the foregoing reasons, that the judgment of the Circuit court be reversed.
It is, therefore, considered by the court that the said judgment of the said Circuit court be reversed and annulled ; and that the plaintiffs in error recover against the defendant in error their costs by them expended in the prosecution of their writ of supersedeas here: and this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is considered that the motion of David Campbell’s executor be dismissed with costs.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481773/ | Moncure, P.
delivered the opinion of the court.
There are three assignments of error in this case, which I will notice in their order; and
First, “that it was error to render any decree in the case at a special term of the court without the consent of parties.”
The Code, ch. 158, § S3, among other things,'.provides that “ at any special term, any civil cause may be tried which could lawfully have been, but was not, tried at the last preceding term that was, or should have been, held; and any motion cognizable by such court may be heard and determined, whether it-was pending at the preceding term or not,” &c. “And any cause or matter of controversy in chancery then ready for |hearing may be heard and determined, with the consent of the parties *446to such cause or controversy, although it could not lawfully have been heard at the next preceding term that was, or should have been, held.”
The decree complained of in this case was rendered at a special term of the Circuit court of Bland county, on the 17th day of December 1869. The cause was not then heard “with the consent of the parties” thereto. But it “could lawfully have been, but was not, tried at the last preceding term that was, or should have been, held.” By an act passed February 23, 1867, Acts of Assembly 1866-7, p. 668, chap. 234, § 2, it was declared that the Circuit court of Bland county should be held on the Wednesday after the third Monday in May and October. This act, it seems, so far as it fixed the time for holding the said court, continued in force until and after the said decree of the 17th day of December 1869, was rendered. Therefore, a regular term of the said court was, or should have been, held on the Wednesday after the third Monday in October 1869, which was the last term that was, or should have been, held preceding the said special term at which the said decree was rendered. It appears that this cause could lawfully have been, but was not, tried at the said term of the said court that was, or should have been, held on the third Wednesday after the third Monday in October 1869, as aforesaid. The subpoena was issued on the 16th day of February 1869, returnable on the first Monday in March next thereafter. The bill was filed at April rules next thereafter. There were but two defendants in the case, James E. Young and Russell Patton, the former of whom was a non-resident of the State. It appears that the process was duly executed on the home defendant, and that the non-resident defendant was duly proceeded against by publication. The home defendant appeared at a special term of the said court on the 26th day of July 1869, and filed his answer, to which the plaintiff replied generally, and the cause was then continued. *447There is no copy of the order of publication in the record, which is very meagre. But the said decree of the 17th of December 1869, recites that there had been due proceedings against the non-resident defendant by publication according to law. The presumption is, that the proceedings in the case were regular, and that the publication was completed in full time for the case to have been tried at the last preceding term that was, or should have been, held as aforesaid. Consequently, it was not error to render a decree in the case at the said special term of the court on the 17th of December 1869.
The next assignment of error is more substantial, and is the one mainly l’elied on in the case, viz:
Second, “It was error to render a decree for the sale of two-thirds of said tan-yard property, instead of the one-third conveyed by Zimmerman, upon which the lien was reserved by the deed.”
Whether this was error or not, depends upon the true construction of the deed of the 9th day of October 1865, exhibited with the bill, whereby George H. Williams and wife and William Zimmerman and wife conveyed their interest in the said tan-yard property to the said James E. Young.
It is now, as it always has been, perfectly competent for a vendor expressly to reserve on the face of the conveyance a lien on the property conveyed, or any part thereof, for the purchase money remaining unpaid, or any part thereof. Formerly he had an implied lien on the property for the purchase money remaining unpaid, though he conveyed the property to the purchaser without reserving a lien thereon in the conveyance, and without taking a mortgage or deed of trust on the property, unless the implication was repelled by circumstances showing an intention on the part of the vendor not to retain such a lien. The taking of a mortgage or deed of trust, or other security, for the purchase money was held sufficient to repel the implication. This implied *448lien was called the “vendors’ equity” or the “vendors’' lien,” and was good, not only against the vendee himself, hut also against purchasers from him with notice, and volunteers claiming under him. There were many inconveniences and uncertainties attending this implied lien, which induced the legislature to abolish it, in the Code of 1849 ; it being declared in the first section of chapter 119 of that Code, that “if any person hereafter convey any real estate, and the purchase money, or any part thereof, remain unpaid at the time of the conveyance, he shall not thereby have a lien for such unpaid purchase money, unless such lien is expressly reserved on the face of the conveyance.”
TMb provision, it is thus seen, leaves unaffected a lien “ expressly reserved on the face of the conveyance,” which lien continues to have the same force and effect it always had. The reason of this is obvious. None of the evils growing out of the vendor’s implied lien resulted from a lien expressly reserved on the face of the-conveyance. Being set forth in the very first link of the vendee’s chain of title, purchasers from him had. just as much notice of it as they would have had of eu lien upon the land by deed of trust or mortgage.
The question then is, What is the true construction of the deed? Did the grantors thereby retain a lien on> the whole of the property conveyed, or only one-half of it, as a security for the payment of the purchase money-remaining unpaid? They had, undoubtedly, a perfect right to retain a lien on the whole or the half of said property, according to their pleasure, even though that part of the purchase money remaining unpaid may have-been due and payable only to one of the vendors. Then-which of these two things did they intend to do? The-deed itself must answer that question, and we think it does plainly answer it. There cannot be a doubt about it, if we look only to the words by which the lien is retained, and that certainly is the most material part of-*449the deed to be looked to in making the present enquiry. Those words are: “And the said William Zimmerman. and Sallie B. his wife, do hereby retain a lien on the property hereby conveyed, as secuiity for the payment of the above receipted notes received in payment of their interest; the said George H. Williams has been paid up in full for his interest.” The lien is thus retained on the property conveyed by the deed—that is, the whole property, and not half the property thereby conveyed, or the interest which belonged to Zimmerman in that property. If that had been the intention, it would, as it easily could, have been plainly so expressed. The intention to retain a lien on the whole property being thus plainly expressed, if a different intention can be shown by the context, it ought to be very plainly shown to counteract the natural import of the words by which the lien is retained. How let us look at the context and see how they affect the meaning of those words.
The deed is between George H. Williams and Martha E. his wife, and William Zimmerman and Sallie E. his wife, of the first part, and James E. Young of the other part; and the grantors, “for and in consideration of $450 paid to the said George H. Williams, the receipt . whereof is hereby acknowledged, and also in consideration of three several notes this day executed by the said James E. Young to the said William Zimmerman, as follows: one note for $100, payable on the 1st day of January 1866, one other note for $200, payable on the 1st day of January 1867, both of said notes bearing interest from date, and also a third note for four hundred dollars, payable on the 1st day of January 1868, without interest, the receipt of which several three notes to Zimmerman is hereby acknowledged; and the further sum of one dollar cash in hand paid by said Young to said Williams and Zimmerman,” &c., “grant, bargain, sell and convey unto James E. Young their interest in a certain tract or parcel of land upon which there is a tan-*450yard improvement, lying and being in Bland county, Va., containing about five acres, being the same land bought from Jame3 Boyd and wife by James E. Young, "William Zimmerman and Henry Williams, and the interest hereby conveyed is one-third of the said property owned by the said Williams, and one-third owned by the said Zimmerman, both of which also hereby convey all their interest in the stock in said yard, teams, tools, fixtures and property belonging to said tan-yard, also all debts owing to the partnership conveyed in said tan-yard due to said Young, Zimmerman and Williams, he, the said Young, paying all'debts due from and owing by said partnership.” The grantors then “warrant and defend the title to the said property hereby couveyed against the claims of themselves and their heirs, or any person claiming by, through or under them.”
We have thus recited substantially, and almost literally, the entire deed, and we see nothing in it which is inconsistent with the construction we have put upon the words by which the lien is retained. On the contrary, we think that construction is supported by the other parts of the deed. The three parties, the two grantors and the grantee, held the property not only as co-partners, but as joint-tenants also. “With respect to unity of possession, joint-tenants are said to be seized, per mi et per tout—that is, each of them has the entire possession as well of every part as of the whole. They have not, one of them a seizin of one-half, and the other of the remaining half; neither can one be exclusively seized of one acre and his companion of another; but each has an undivided moiety of the whole, not the whole of an undivided moiety. From which it follows that the possession and seizin of one joint-tenant is the possession and seizin of the other.” Thus is the law laid down in 1 Lom. Dig. p. 612, § 8, marg. p. 476. “A tenancy in common differs from a joint tenancy in this respect: joint-tenants have one estate in the whole and no estate *451in any particular part; they have the power of alienation over their respective aliquot parts; and hy exercising that power may give a separate and distinct right to their particular parts. Tenants in common have several and distinct estates in their respective parts. Hence the difference in the several modes of assurance by them. Each tenant in common has, in contemplation of law, a distinct tenement, a distinct freehold.” Id. p. 641, § 1, marg. 498. A release, and not a feofment, is the proper form of conveyance by one joint-tenant to another. 'i(A feofment, and not a release, is the proper assurance between tenants in common.” Id. Though the common law right of survivorship in estates of joint tenancy has been abolished in Virginia by statute, yet many of the common law incidents of the estate still remain, and especially the entirety of possession of each tenant, as well of every part as of the whole. When, therefore, two of these three j oint-tenants conveyed, or rather released, their interest in the joint subject to the other, they released an interest which pervaded the whole subject, and the lien which was expressly retained on the property conveyed by the deed naturally and properly, as well as literally, bound the whole property conveyed, embracing the interest of both of the grantors. Suppose the three joint-tenants had joined in a conveyance of the whole property to a stranger, for a consideration payable to them all, and had expressly retained in the deed a lien on the property thereby conveyed for the security of the purchase money. Would not that lien have bound the whole property, and every part of it, for the payment of the whole consideration and every part of it ? Certainly it would. Suppose one of the three grantors had received in cash his third of the purchase money ; would not the same lien have existed in regard to the remaining two-thirds due to the other two grantors ? Certainly it would. What difference can it make that two of the joint-tenants release their interests to the *452third, and retain a lien on the property released for the payment of that part of the purchase money not paid in hand, though it be due and payable to one only of the releasors ? What reason can there be for confining the lien to one-third only of the property, instead of extending it to the two-thirds conveyed? In this case, the whole consideration of the deed was $1,150, of which only $450 was paid to Williams, while the remainder, $700, was secured to Zimmerman. Why was this unequal division made of the purchase money, if they were-equally interested in the subject conveyed ? In law they were jointly and equally entitled; but in equity they may and must have been unequally entitled. The three had been partners, and we do not know what was the state of their accounts when the deed was made. It was such, however, between Williams and Zimmerman as that the latter was entitled to nearly two-thirds of the purchase money of their interests in the property. And if so, then in equity Zimmerman was entitled to nearly two-thirds of the property conveyed. We see in this a special reason for retaining a lien on the whole property conveyed for the payment of the purchase money due to Zimmerman. Then again, the subject conveyed embraced other property besides the tan-yard, and the purchaser, Young, was to pay off the debts of the concern. Those debts, for aught we know, may consume the whole assets of the concern, besides the tan-yard, and thus leave a subject for the operation of the lien in favor of Zimmerman not more than 'sufficient to discharge it. We see in this also a special reason for extending the said lien to the whole property conveyed.
Whether, therefore, we look only to the wordsjof the clause retaining the lien, or look also to the context of the deed, we think the lien is upon two-thirds of the tan-yard property; and therefore, there was no error in rendering a decree for the sale of two-thirds instead of one-third.
*453The remaining assignment of error is—
“Third. It was error in enforcing i'any lien in favor ■of Williams, as he had made a full conveyance and failed ■expressly to reserve a lien.”
The question presented by this assignment of error has already been sufficiently answered, hlo lien in favor of Williams was enforced by the decree. The only lien thereby enforced was in favor of Zimmerman. 1
We think there is no error in the decree, and that it ought to be affirmed. But as there may be some uncertainty in regard to the property belonging to the tan-yard and now subject to the said lien, which might tend to produce a sacrifice at the sale made under the said decree, it is proper, if either party require it, that before such sale Í3 made, an account should be taken of the said property, and of the kind, nature and quantity thereof; and also, if either party so require, it is proper that before such sale is made, an account should be taken of the amount remaining due and unpaid of the debts secured by the said deed of the 9th day of October 1865. The said affirmance ought, therefore, to be with instructions to the court below to conform to the foregoing opinion in regard to the taking of the said accounts, if required as aforesaid, before sale is made under the said decree.
Bouldin, J. dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481775/ | Moncure, P.
delivered the judgment, of the court.
This day came the parties by their counsel, and the court, having maturely considered the motion of the defendant in error to dismiss the writ of error and supersedeas awarded in this case to a judgment rendered by the Circuit court of Pulaski county in this cause, on the 20th day of September 1871, upon the ground that the said writ was improvidently awarded, is of opinion— without now deciding whether in any case an appeal will lie from the judgment of a Circuit court sitting as an appellate court under section 5 of chapter 171 of the Acts of Assembly, 1869-70, page 227—that, whether the said Circuit court intended by the said judgment to decide the question of the constitutionality of the said section of the said act or not, an appeal does not lie from the said judgment; because, if the said court did not intend so to decide, then the matter in controversy, exclusive of costs, was less in value or amount.than $500' on the 23d day of September 1869, when the judgment was [rendered by the said Circuit court affirming the judgment of the County court of said county in this *460cause; and if the said Circuit court did intend so to clec^e’ auc¡ therefore declared that it had “ not jurisdiction to review, reverse or affirm” the said judgment of the 23d day of September 1869, then the said Circuit court intended to decide &■ question which had already been decided by this court, in pursuance of the said section of the said act—this court having, on the 6th day of March 1871, ordered the said cause to “be transferred and docketed in the said Circuit court of Pulaski county, whence the appeal was originally taken, there to be heard and finally disposed of, as by an appellate court, according to law.” Therefore it is considered and ordered that the said motion be sustained, and the said writ of error and supersedeas be dismissed, as having been improvidently awarded, and that the plaintiff pay to the defendant in error his costs by him about his said motion expended.
And on the motion of the plaintiff in error, it is ordered that a writ of mandamus nisi be issued, commanding the Hon. John H. Fulton, judge of the said Circuit court of Pulaski county, to proceed to hear and finally dispose of, as by an appellate court, in pursuance of section 5 of chapter 171 of the Acts of 1869-70 aforesaid, and in pursuance of the said order of this court of the 6th day of March 1871, the said cause which was thereby ordered to be transferred and docketed in the said Circuit court as aforesaid ; unless he shall, on or before the 10th day of the next term of this court, appear here and show good cause to the contrary. And it is further ordered, that a copy of this order be duly served upon him, and returned to this court,- or the clerk thereof, on or before that day, with evidence of such service thereon endorsed; and that such service shall have the same force and effect as the execution upon him of a writ of mandamus nisi, issued in pursuance hereof.
Appeal dismissed, and rule for prohibition awarded. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482025/ | Staples, J.,
delivered the opinion of ’the court.
The appellant claims under John C. Edwards, who purchased from his brother, Nathaniel Edwards, in the year 1860. At the time of this purchase the land was subject to four deeds of trust: the first and second of which were for the benefit of Dr. James Cornick, the third for the benefit of the Portsmouth Orphan Asylum, and the fourth for the benefit of Beaton’s estate. John C. Edwards, after his purchase, paid a part of the debts secured by the Cornick deeds, and the appellant, as his assignee, now claims to be substituted to the lien of those deeds, and thus to obtain priority over the debt due the Orphan Asylum. The fund being insufficient to pay all the liens, it becomes important to determine its proper application.
The evidence shows that John C. Edwards, when he made the purchase, was fully apprized of the existence *172of these deeds of trust. Indeed, the conveyance from Nathaniel Edwards to him declares that it is made subject to them. Although John O. Edwards does not expressly undertake to pay them, there is no doubt that such was the understanding of the parties. His deposition was taken by consent, and in it he gives a history of the transaction. He states that both as endorser and surety he was responsible for his brother to a considerable amount, along with A. Emmerson and George "W. Grice; that before his brother’s death the latter, without consultation with the witness and without his knowledge, had the deed prepared; that witness was sent for to go to Emmerson’s office, and he (Emmerson) explained that if the witness paid all the debts mentioned, and the mortgages, then the land would belong to witness. The latter said the land was not worth it. He, however, signed the deed, agreeing to pay all the debts of Nathaniel Edwards, for which Emmerson, Grice and himself were bound. From this it is apparent that while John C. Edwards expressed the opinion that the value of the land was not equal to the debts, he nevertheless consented to the arrangement, and agreed to take the land upon the terms suggested. If he was not willing to accede to these terms, he ought to .have said so and refused to sign the deed. Further on'in his deposition he admits, on cross-examination, the only benefit he expected at the time to derive from the purchase was whatever might remain from the sale of the land “ after the payment of the deeds of trust.” I do not think Nathaniel Edwards would have sold the land, except with the understanding that, as between him and the purchaser, the land was to remain the primary fund for the payment of the incumbrances. It is very certain that John G. Edwards would never have paid his brother the full value of the land, with the incumbrances upon it, and trusted solely to the covenants in the deed for his *173indemnity. Whilst, therefore, John C. Edwards did not make himself personally liable for the trust debts, it is very certain, I think, they were considered a part of the purchase money, and that he agreed to fake the land, and, as he himself states, rely for Ms indemnity upon any surplus remaining after satisfying the incumbrances. As a general rule, a conveyance of property subject to a mortgage imposes no personal liability on the grantee. It, however, raises a presumption that the purchaser buys the property to the extent stated, and that he takes his chances of realizing out of the property enough, over and above the mortgage, to indemnify him for his advance of purchase money. The fair inference is, that the purchaser does not pay the vendor the full value of the property, but that the amount of the mortgage debt is reserved in his hands as so much purchase money for the purpose of discharging the lien. In such case, the land conveyed is as effectually charged with the amount of the mortgage as if the purchaser had expressly assumed its payment.- As between the vendor and the purchaser of the equity of redemption, the land is the primary fund for the liquidation of the incumbrance. See Daniel v. Leitch, 13 Gratt. 195, 206; Jumel v. Jumel, 7 Paige R. 591, 11 Paige, 28; Stebbins v. Hall, 29 Barb. R. 524; Jones on Mortgages, §§ 736, 740-8-9, 756.
In Wedge v. Moore, 6 Cush. R. 8-10, Chief Justice Shaw, in discussing the rights of the purchaser who had discharged the mortgage and claimed the benefit of-fit, said: “Such a payment made no difference. He (the purchaser) took his conveyance subject to that incumbrance, and it- may be presumed that the consideration paid was less by the amount of that incumbrance than he otherwise would have paid. lie paid off' the incumbrance to clear his own estate and took a discharge. The tenant (that is the purchaser) must have agreed to pay off and discharge this mortgage as part of the pur*174chase, for otherwise he would, if evicted, have had a remedy under his general or special warranty against the grantor. The fact that the tenant obtained a discharge of the mortgage and did not take an assignment, leads to the conclusion that he was to pay the mortgage himself as in effect part of the purchase money.” These observations are as directly applicable to the present case as to the one in which they were made. They relieve me of the necessity of any further discussion of this branch of the case. See also Eaton v. Simonds, 14 Pick. R. 98; Thompson v. Chandler, 7 Greenl. R. 377. In Spengler v. Snapp, 5 Leigh, 678, Judge Carr said Joseph Stover bought the land under his deed of trust, with proclamation that it was sold subject to Christian’s mortgages. These mortgages then became a part of the ¿mrchase money which Joseph Stover gave for the land.
We have still further proof that John C. Edwards was to pay off and discharge the deeds of trust as part of the purchase money for the land. It appears that for ten successive years, commencing in I860 and ending in 1870, he made payments to the Orphan Asylum upon the debt due that institution, amounting in the aggregate, principal and interest, to nearly two thousand dollars. According to the present pretension, he was under no obligation to make these payments.' Why, then, did he make them ? How can they he accounted for, except upon the supposition that the trust debts constituted a pgrt of the purchase money, and as such he had agreed to pay them, and he well understood it was only by paying them (prior and subsequent) he could obtain a valid title to the land ? His conduct in other respects sustains this view. Eor from 1860 down to 1871 he never, at any time during all that period, claimed that he could hold the Cornick deeds of trust for his own benefit, so far as he had paid them, to the entire exclusion of the Orphan Asylum. Hot until the spring of 1871, after the *175land was sold and the proceeds in the hands of the trustee for distribution, was this claim asserted. It is clearly an after-thought growing out of the decline in the value ■of the land, and the failure of the security. In opposition to this view it is said that the value of the land would not have justified John C. Edwards in paying the incumbrances. Let us see how this is. The trust debts in round numbers amounted to about nine thousand dollars. The debts for which he was bound as security amounted to about four thousand dollars—in all, thirteen thousand dollars, and certainly a very liberal estimate. The only evidence ive have of the value of the lands is that of John O. Edwards, w-ho proves that his brother received an offer for it of twenty-two thousand dollars two years before the war, and refused it. This statement is not contradicted or impugned in any respect. There is no countervailing testimony, and it must be taken as proof of the value.
It is very true that John O. Edwards, in 1860, offered the land for sale and received a bid of only eight thousand and five hundred dollars. But he of course intended to sell, as he had bought, subject to the incumbrances, and the purchaser, in making his bid, would necessarily make allowance for them. The bid was therefore practically an offer of $21,500.
It is also true that at the sale made in 1871, under the first incumbrances, the property sold for seven thousand and five hundred dollars. This, however, is obviously no fair test of the value in 1860. It is in proof that the federal forces were in possession of the land from May, 1862, to October, 1865. They destroyed all the outbuildings of the value of three or four thousand dollars. They cut down or destroyed all the timber of the value of four or five thousand dollars. The amount of damage otherwise necessarily inflicted by such people in four years is simply incalculable, besides the decline in real estate *176in every, part of the country resulting from the war. And yet, notwithstanding all this, the property at a cash sale in 1871 brought seven thousand and live hundred dollars. These facts conclusively show that at the time of the purchase by John O. Edwards, in 1860, he could, upon any reasonable calculation, take the land, pay the trust debts and the debts for which he was bound as security, and still have in his hands a sufficient surplus-to compensate him for the trouble and risk he incurred.. He had also further indemnity in a deed of trust executed by Nathaniel Edwards upon a negro man, the stock of horses, and the chattels upon the land which, if sold before the war, would have realized a considerable amount. It is safe to say, that if the war had not occurred we should never have heard of this controversy, as we should never have heard of a multitude of others originating in unfortunate land speculations. If the times had proved propitious, the transaction would have been an advantageous one to John O. Edwards. But the great disaster befell the country, and his investment proved an unfortunate one. Much has been said of the injustice done in permitting the Orphan Asylum to reap the benefit of the payments made upon the first deeds of trust. It is a sufficient answer that John O. Edwards stood in the shoes of his vendor, and in making the payments he was simply paying a part of the purchase money for the land. It is preciselythe same thing as if he had paid the money to Nathaniel Edwards, and the latter had paid it upon the trust debts. Such payments necessarily operate as a satisfaction of the debt and an extinguishment of the incumbrance pro tanto, which can never be revived, merely because there is a change of circumstances. If John C. Edwards desired or intended to keep alive the incumbrances for his own benefit, he ought to have taken an assignment or transfer of the deeds of trust. Instead of that, he pays them *177off in part, and in so doing his sole purpose was to extinguish the lien to that extent. How can this court now, after this lapse of time, revive it in favor of his assignee?
It may be conceded there are cases in which the purchaser of an equity of redemption, upon paying oft' an incumbrance, will be subrogated to the rights of the creditor, and a court of equity will keep alive the lien for his benefit, although it may have been discharged by payment. But these cases depend upon peculiar circumstances, which need not now be considered. And even when the purchaser takes an assignment, this does not necessarily entitle him to the protection of the mortgage. " If it is his duty by the terms of the contract to pay and cancel the mortgage, it will be held to be a release and not an assignment. And when there is no such duty devolving upon him, the assignment will be held to operate as an extinguishment or not, according to the intention and situation of the parties. Gibson v. Crehore, 3 Pick. R. 475; Brown v. Lapham, 3 Cush. R. 551. But Avhen the purchaser takes no assignment, and his payments are made for the purpose of discharging the debt, and with no intention of keeping alive the mortgages, he cannot afterwards, upon a change of his intentions, or upon a change in the surrounding circumstances, insist upon the mortgage as a subsisting security to the injury of third persons. Jones on Mortgages, § 855, and cases there cited. And see Hatch v. Kimball, 16 Maine R. 146. These principles would seem to be decisive of the case.
But this is not all. The conduct of J. C. Edwards, throughout, ivas well calculated to lull the Orphan Asylum into a false security. If it had looked at the deed to him from Eathaniel Edwards, it would have seen that he purchased the property subject to all the deeds of *178trust. If it had enquired of the parties, it would have-been told that the arrangement was to pay all the debts. For ten years John C. Edwards made his payments to that institution precisely as if he regarded the debt as his own, and the deed of trust an incumbrance which he was required to satisfy. I3ut for this conduct the Orphan Asylum might have redeemed the Cornick deeds of trust, for nothing is better settled than that upon paying the prior mortgage, the junior succeeds by right of subrogation to the lien of the former as a security for the sum paid without even an assignment. The Asylum might have bid for the property at the sale made in 1871> and thus have secured a .part of its debt. But it was not until more than twelve years after the original transaction—not until the last sale was made in 1871, and the proceeds in the hands of the trustee—that this claim was ever asserted. To what extent the Orphan Asylum may have been injured by this delay—what other measures it might have adopted for its protection, had it been apprized of this claim—it is impossible for us to say. It may be safely assumed that its conduct would have-been very different from what it has been with reference to its debt. Under such circumstances, now to set up the Cornick deeds in favor of John C. Edwards or his assignee, would be to violate every rule of equity. The courts will not enforce the doctrine of subrogation where it will work injustice. 2 Washb. on Real Property, 198-20. As was said by Chancellor Kent in Star v. Ellis, 6 John. Ch. R. 393: “A court of equity will keep an incumbrance alive or consider it extinguished as will best serve the purposes of justice and the actual and just intention of the party. It must, at all events, be an innocent purpose, and injurious to no one.” Jones on Mortgages, 959, 963. And this is the language of Ml the authorities. "Without multiplying citations upon *179this point, or protracting discussion, I think the decree should be affirmed.
Anderson, J., dissented.
Decree aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482026/ | Burks, J.,
delivered the opinion of the court.
The controversy in this case grows out of a contract for the sale of a tract of land entered into on the 10th day of April, 1863. A large portion of the purchase money was paid at or near the time the contract was made, and a bond was given for the residue, secured by a deed of trust on the land. The nominal amount (bal*183anee) of the bond is $3,000, carrying interest from the 2d of July, 1863.
The appellee, Langdon C. Major (the vendor), claims that the full amount of this bond, with the interest upon it, is due and owing to him in lawful money, and that he has the right to enforce collection by sale under the deed of trust; while the appellant (the vendee) contends that the contract for the sale was by agreement to be wholly fulfilled and performed in Confederate States treasury notes, ór was entered into with reference to such notes as a standard of value; that, under the adjustment acts, he had the right to discharge the bond by paying the gold value of the nominal amount thereof, and havifig made the tender authorized by section 9 of chapter 138, Code of 1873, and in all respects complied with the provisions of that section, the appellee is not entitled to demand and have more than the sum tendered, without interest.
Of the numerous cases, involving dealings and transactions in or with reference to Confederate currency, which have come before this court for decision, this, I believe, is the first presenting a question under the section just cited. That section, the 5th of chapter 71 of the act passed March 3, 1866 (Acts of 1865-66, p. 184), is in these words:
“ It shall be lawful for any person bound for any debt or the performance of any contract, which has to be discharged or performed by the payment of Confederate States treasury notes, or for the performance of any contract made with reference to such notes as a standard of value, to tender to the party entitled to demand payment or performance, or damages for non-performance, the amount deman dable according to the provisions of this act; and if such party shall refuse to accept the amount so tendered, it shall be lawful for the party bound, by notice in writing duly served, to require him to institute proper legal proceedings for the recovery of such debt *184or the enforcement of such contract, or for the recovery ° of damages for its non-performance; and if such party fail to institute such proceedings within three months from and after the service of such notice, he shall be forever barred and precluded from all legal remedy whatever, founded upon such debt or contract, to recover more than the sum tendered, without interest.”
■ Under this section: 1. The tender allowed applies to debts or contracts which were to be discharged or performed by the payment of Confederate States treasury notes, and to contracts made with reference to such notes as a standard of value. 2. The tender, made by the party bound to the party entitled, must be of the amount demandable under the provisions of the act. 3. On refusal of the party to accept the amount tendered, he must he duly served with notice in writing, requiring him to institute proper legal proceedings for the recovery of the debt, &c. 4. On failure to institute such proceedings within three months from and after the service of the notice, he is forever barred and precluded from all legal remedy whatever, founded on such debt or contract, to recover more than the sum tendered, without interest.
The appellee, Langdon C. Major, in his answer to the bill and in his deposition, states that the contract for the sale of land to the appellant ivas not to be performed in Confederate currency, nor made with reference to such currency as a standard of value. Uo other witness testifies in his behalf. ' Several circumstances are relied on in support of his statement, such as the fact that the bond for the unpaid balance of purchase money stipulates on its face for the payment of interest “annually,” and the further fact that the nominal amount agreed to be paid for the land, did not much, if any, exceed its real value before the Avar. Hut this proof, I think, is more than counterbalanced by the proof on the other side. The appellant and his son both testily *185positively, that the sale was for Confederate currency, and there are many circumstances to sustain them.
The contract was made on the 10th day of April, when the only currency in circulation among our people was the treasury notes of the Confederate States, and the eases were rare and exceptional in which contracts were made with reference to any other kind of currency. A large portion of the purchase money, more than one-half, was paid in that currency at and soon after the sale, and when the bond was given for the residue on the 2d day of July, 1863, eight hundred dollars and more were paid in the like currency, for which a credit was endorsed reducing the amount of the bond to precisely $3,000, principal money. The bond was payable “ on demand,” and a sale under the deed of trust could have been required any day after its execution on due notice, and although the nominal amount agreed to be paid for the land may not have been much in excess of its actual value before the war, yet it is distinctly proved that,, Major, in the January before he made the sale to Compton (the appellant) at $17.15| per acre, offered to sell the land to another person at $15 per acre, payable in Confederate money; that the appellant made a tender to Major in December, 1867; that the latter refused to .accept theQamount tendered; that a notice in writing was at once duly served upon him, requiring him to institute proper legal proceedings for the recovery of the debt evidenced by the bond; that he did not institute such proceedings within three months from and after the service of the notice, and has never, in fact, at any time, instituted any suit, either at law or in equity, for such recovery, and never took any steps to enforce a sale under the deed of trust until October, 1872, when the sale, then for the first time advertised by the trustee, *186was stayed by an injunction awarded on the bill of the appellant filed in this case, are all facts not disputed.
Only two questions, therefore, remain to be considered. The first is, Was the amount tendered “the amount demandable according to the provisions of the act ? ”
The amount tendered was $949.66, United States currency. This sum is composed of the gold value of the $3,000 of Confederate currency,.ascertained by applying the scale of depreciation as of the date of the contract, interest computed to date of tender, and premium on the gold as of the same date. If the “ amount demand-able” was the value of the Confederate currency according to the gold standard, the mode adopted to determine that amount was the correct one (Fultz v. Davis, 25 Gratt. 903), and the tender was sufficient.
Under our adjustment acts, there are two standards or measures of recovery on Confederate contracts. The one already mentioned is the gold standard by which the nominal amount of the Confederate currency is reduced, according to the sc'ale of depreciation, to its value in gold coin, to which, interest computed till date of recovery and the premium on the coin in United States; currency as of the same date, are added. This is universally the measure of recovery in cases of loans of Confederate money, and has been sometimes' applied in other cases where the debtor has not been in default. Myers v. Whitfield, 22 Gratt. 780; Stearns v. Mason, 24 Gratt. 484; Merewether v. Dowdy, 25 Gratt. 232.
The other mode of adjustment is to allow in cases of sale, renting or hiring of property, the fair value of the property sold, or the fair rent or hire of it, if the court or jury, as the case may be, think that -under all the* circumstances, the fair value of the property sold, or the fair rent or hire of it, would be the most just measure of recovery. Ch. 138, § 1, Code of 1873.
*187"While this mode of adjustment in cases of sale, or renting or hiring, is the one generally to be pursued, as declared in Pharis v. Dice, 21 Gratt. 303, and numerous cases since decided by this court, yet, as said by Judge Christian in Merewether v. Dowdy, supra, “there is no fixed rule on this subject, nor can one be laid down by which every case is to be measured. Each case must rest on its own peculiar facts.” * * * * “It may he observed,” said he, “ that in all' cases in which the ‘property standard,’ instead of the gold value, has been adopted, the debtor has either proved to be in default in not tendering the Confederate currency on the day when, by the terms of the contract, his debt was payable, or there were other circumstances which would make it inequitable to compel the creditor to receiv.e the scaled value according to the gold standard of the Confederate currency, with reference to which the contract was made and entered into.”
Is the sum allowed to be tendered under the section before cited (§ 9, ch. 138, Code of 1873), the “amount demandable” according to the gold standard, or is it the “amount demandable” according to the “property standard,” as it has been called ? I think it is the former. P>y the original act, of which this section in its present form was a part, passed March 3, 1866, the only measure of recovery was the gold value of the Confederate currency. The tender must of necessity have been according to that standard.
The subsequent amendment, by the act passed February 28, 1867, of the second section of the act, by a proviso improperly attached to the first (see Pharis v. Dice, supra), was never intended, I think, and should not be construed to change the meaning and effect of the fifth section. It furnished an additional standard, it is true, by which to measure the recovery in a particular class of cases, to be applied, in the discretion of the court *188or jury, according to tlie circumstances; but it left it to the debtor, by tender under the rule already established, require the creditor to institute proper legal proceedings to test his right, if he claimed it, to a larger amount than the sum tendered. The prime* object of the section Was to enable the debtor to compel a fair and speedy adjustment, of his Confederate liabilities, and as these liabilities are more readily and conveniently measured by the gold standard than any other, that standard was adopted as the better, if not the only practical one, for the purposes of tender.
The appellant having complied on his part with all the requirements of the section, Major, failing to institute the proper legal proceedings within the time prescribed, is, by the terms of the statute, forever barred and precluded from all legal remedy whatever, founded on the bond for $3,000, to recover more than the sum tendered to him, ■without interest.
The bar provided is of “ all legal remedy whatever.” To construe these terms as descriptive of an action at law>- merely, would be to “ stick in the bark.” Nor do I think they should be limited by construction to suits, whether at law or in equity, but extended to all means sanctioned by law to coerce payment. Suits and actions are certainly within the terms, and other coercive measures allowed by law, are within the spirit if not within the letter of the section. It is a settled rule of construction that cases out of the letter, yet within the same mischief or cause of the making thereof, shall be within the remedy thereby provided. Broom’s Leg. Max. 83.
The power of a trustee under a deed of trust to make sale, although founded on the agreement of parties to be executed in pais, derives its efficacy from the sanction of the law, and in that sense may be said to be a “legal remedy ” within the meaning of the statute. To bar a suit at law or in equity for the recovery of a larger sum *189than the amount tendered, and vet allow a trustee by sale to coerce payment of such sum, would defeat the intent of the statute.
This construction does not bring the statute, within the category of “ a law impairing the obligation of contracts.” The main design of the adjustment acts is two-fold: first, to ascertain the contract according to the true understanding and agreement of the parties; second, to give effect to that contract as thus understood.
How, the obligation of the bond in this case does not extend beyond the value of the Confederate currency promised, nor is the deed of trust a security for any greater amount; and if the true amount, according to a just legal standard, be ascertained and tendered, it is no violation or impairment of the contract under the deed of trust to require that it shall stand as a security only for the amount so tendered.
The rule that “he who asks equity must do equity” does not impose upon the appellant the duty, under the circumstances of this case, of paying any greater amount than the sum tendered. If the appellee, Major, claimed to be entitled to a larger sum, he should have instituted his suit to test his light within the time prescribed by the statute. Having failed to do this and delayed the assertion of his claim for more than five years, and until after the land sought to be subjected has greatly depreciated, he has no equity now to demand that his recovery shall be measured by the value of the land at time of sale, or by any other standard than the one under which the tender was made. He is entitled to the amount tendered, to-wit: $949.66, in lawful currency of the Hnited States, without interest, subject to abatement for the amount of any valid liens and incumbrances, if any there be, on said land existing at the time of the conveyance thereof by the said Major and wife to the appellant. He is entitled to no greater sum. I am for reversing the decree *190of the circuit court so far as it is in conflict with this opinion, for affirming it in other respects, and remanding cause for further proceedings.
The decree was as follows:
This clay came again the parties by their counsel, and the court having maturely considered the transcript of the record of the 'decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the contract entered into between the appellant and the appellee, Langdon C. Major, for the sale of the tract of land in the bill and proceedings mentioned, was, according to the true understanding and agreement of the parties, to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to such notes as a standard of value; and the appellant, in pursuance of the 9th section of chapter 138 of the Code of Virginia of 1873, having made a tender to the said appellee of the sum of $949.66 in United States currency, which was the amount demandable according to the provisions of the act of which said section is a part, for the nominal amount ($3,000) of the balance of purchase money owing by the appellant to said appellee on the contract aforesaid for the sale of the tract of land aforesaid and the interest on said balance of purchase money till the date of said tender; and the said appellee having refused to accept the amount so tendered, and after being duly served with such notice in writing as said section provides, having failed to institute the legal proceedings therein required within the time therein prescribed, the court is of opinion that the said appellee is barred of all legal remedy whatever to recover of the appellant more than the sum tendered as aforesaid, without interest, and that the power to enforce a sale of said land under the *191-deed of trast given by tbe appellant to secure tbe payment of said balance of purchase 3noney is a “legal re3iiedy” within the spirit and meaning of said tion of the act aforesaid; and that the said deed of trust is a security only to the extent of the sum tendered as aforesaid, without interest, and can be enforced for tbe payment of that sum only.
The .court is further of opinion, that so much of the decree aforesaid as declares that the fair value of the property sold would be tbe most just measure of recovery in this case, and orders and decrees that the balance of purchase money owing by the appellant to the said appellee secured by the deed of trust aforesaid be fixed as in said decree stated, and that an account be taken of said balance of purchase money, to be ascertained in accordance with the rule fixed by said decree, and declares that the said appellee is not barred or precluded in this case by tbe 9th section of the 138th chapter of the Code of Virginia of 1873 from relying on the lien of said deed of trust to enforce the payment of what is equitably due him according to the principles of said decree, is erroneous. ' . °
It is therefore decreed and ordered, that so much of the said decree as is hereinbefore declared to be erroneous be reversed and annulled, and the residue thereof affirmed; and that the appellee, Langdon C. Major, pay to the appellant his costs by him expended in the prosecution of the appeal aforesaid here. And this cause is remanded to the said circuit court of Culpeper county for further proceedings, to be had therein in conformity to the opinion and principles herein expressed and declared; which is • ordered to be certified to the said circuit court.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481778/ | Christian, J.
delivered the opinion of the court.
In these two causes a motion is submitted by certain •non-resident parties (in the first named cause, by one of ■the appellants, and in the other by three of the appellees), to remove them from this court, where they are now pending upon appeals, to the Circuit court of the United States for this district.
• The application for removal is made under the act of •Congress of March 2d, 1867. “The act of July 27th, 1866, for the removal of causes from State courts is *486hereby amended as follows: That where a suit is pending, or may hereafter be brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file in such State court an affidavit stating that he has reason to and does believe, that from prejudice or local influence he will not be able to obtain justice in such State court, may at any time before the final hearing or trial of the suit, file a petition in such State court, for the removal of the suit into the next Circuit court of the United States to be held in the district where the suit -is. pending, and offer good and sufficient security for his entering in such court on the first day of its session copies of all process, pleadings, depositions, testimony and other proceedings in said court, and doing other such appropriate acts as, by the act to which this is amendatory, are required to be done upon the removal of a suit into the United States court; and it shall thereupon be the duty of the State court to accept the surety, and proceed no. further in the suit; and the said copies being entered as aforesaid in such court of the United States, the suit shall there proceed in the same manner as if it had been brought there by original process.”
If the petitioners in the cases before us have brought themselves within the provisions of this statute; if, in other words, they are such parties as the statute describes, and this tribunal is such a State court as is referred to, in its terms, then it is a matter of right to the petitioners to have their cause removed to the Circuit court of the United States; and this court has no discretion on the subject. To determine these questions, it becomes necessary to enquire into and ascertain the true construction of the act of Congress of March 2d, 1867, and those acts of which it is amendatory.
*487The jurisdiction of the Federal courts is clearly, defined by the constitution of the United States, and the laws of Congress; and it is a proposition too clear to admit of argument or doubt, that no cause can be removed into the Federal courts from a State court, except it be a cause of which, from the relation of the parties, or the subject matter of the controversy, the Federal court could have originally taken the jurisdiction.
It is perfectly obvious, that no suit can be removed to the national courts, which might not by the constitution of the United States have been originally commenced in one of these courts. It was never intended by the act of Congress known as the judiciary act, and the acts amendatory thereof, to extend the jurisdiction of these courts over causes brought before them on removal, beyond the limits prescribed to their original jurisdiction ; and such is the judicial construction which has uniformily been given to these statutes.
It may, therefore, be safely assumed, that all the decisions affecting the original jurisdiction of the United States courts, in the classes of cases, which may be removed, are equally applicable to them as the subjects of removal. Conkling’s Treatise 177, and cases there cited.
It is too well settled to require a citation of authorities to support the proposition, that where the jurisdiction of the United States courts depends upon the citizenship of the parties, all the plaintiffs must be competent to sue and all the defendants to be sued in said courts.
The expression used in the judiciary act, “or where the suit is between a citizen of the State where the suit is brought and a citizen of another State,” means, obviously, that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued in the Federal courts. That is, when the interest is joint, each of the persons concerned in the interest must be competent to sue, or be sued in those courts. Strawbridge v. Curtiss, 8 Cranch, R. 267; Corporation *488of New Orleans v. Winter & als., 1 Wheat. R. 91 ; 17 How. U. S. R. 468 ; 2 Paine R. 103.
In both of the cases which are now sought to be removed to the Circuit court of the United States, a part of the plaintiffs are citizens of other States, and part are citizens of Virginia. In the case of Beery v. Irick, one of six plaintiffs is a citizen of the State of Indiana, and the remaining five are citizens of Virginia.
The interests ' of these plaintiffs in both cases are so blended and tied up together, and so connected with the interests of the defendants in the two chancery causes respectively, in which they are all made parties, that it is impossible that their rights can be adjudicated without having all the parties before the same tribunal. It is obvious, therefore, that in neither case could the Federal courts take original jurisdiction, because they are both cases where the jurisdiction depends altogether on the citizenship of the parties, and a part of the plaintiffs are citizens of Virginia and a part citizens of other States ; and it is manifest their interests cannot be separated.
If, therefore, the motion now made here in the appellate court, had been made in the courts below (Circuit courts of Eockingham and Augusta), and before the final hearing, it ought not to have been entertained, because the cases were not such as could have been originally brought in the Circuit courts of the United States. Hubbard &c. v. Northern R. R. Co., 3 Blatchf. R. 84; S. C. 25 Vermont R. 715; Wilson v. Blodget, 4 McLean’s R. 363; Fisk v. Chicago, &c., R. R. Co., 53 Barb. R. (N. Y.) 472.
In the last named case it was distinctly decided, that “unless all the plaintiffs are citizens of the State in whose court the suit is brought, and all the defendants citizens of a State other than that, the case cannot be removed to the United States Court.”
But in the cases before us, there was a final decree by the court below, and no motion was submitted for a re*489moval while pending in that court. But the motion is made here in the Appellate court, for the first time, after a final hearing of the causes in the court below. In the one case there was a decree in favor of the petitioner, in the other, a decree against the parties asking for removal.
If the cases before us were such cases as could be removed at any stage of the proceedings, to the Circuit court of the United States, it is clear that the motion comes too late when made in the Supreme appellate tribunal of the State. The act provides that the nonresident party to a suit in a State court between a citizen of that State and a citizen of another State, shall be entitled to a removal of his cause to the next Circuit court of the United States to be held in the district where the suit is pending, on making the proper application “ at any time before the final hearing or trial of the suit.”
The question we have to consider, is (admitting for the time that it is a proper case for a removal), was the application made before the “ final hearing or trial,” within the meaning and intent of the statute;
The word “final” applies to and qualifies the word hearing, and not the word “trial.” In the act of 1866 the language is “before trial or final hearing.” The transposition of the words in the act of 1867 was probably accidental, and not affecting, nor designed to affect, any change in the meaning. The words “final hearing” are ordinarily applied to cases in equity, while the word “trial” is applied to actions at law. The obvious and uumistakable intention of the statute was to require a party desiring a removal to do so before trials in action at law, and before a final hearing in suits in equity. In the language of the court in Akerly v. Vilas, 1 Abbot’s U. S. Dist. Ct. R. 293 : “ The reason and justice of this construction are apparent. Only the nonresident can apply for it. And it would constitute the very essence of injustice, to give him the right to experi*490ment upon the decisions of the State tribunals, obtaining those which, if in his favor, would be binding and conclusive upon the other party, but which, if against himself, he could repudiate and take his chances again in a new tribunal. The statute did not intend to provide for any such wrong; but, on the contrary, clearly designed to exclude the possibility of it by requiring the application to be made before trial or final hearing.” Id. 293, 294.
It follows, therefore, that if the application for removal had been made in the court below after the decrees were pronounced, adjudicating the rights of the parties and settling the merits of the controversy, such a motion could not have been entertained under the express terms of the statute. Is the case different because these decrees have been superseded and brought before this court for review on appeal? We think not. There has been a final hearing of the cases in the court below. They are here for review, and the question before this court is, Shall these final decrees be reversed or affirmed ? If they can be now removed to the Circuit court of the United States, the same questions wall be presented to that court, and the Circuit court of the United States must either review the cases upon the records as they stand upon the docket of this court, and determine whether the decrees shall be reversed or affirmed, or it must set aside the decrees of the State court and try the cases de novo in the Federal court. If the theory of the learned counsel for the petitioners be true, the Federal court must take one or the other course. He does not tell us which. We think it can take neither. It never was the object of the statute to provide for a review of the decisions of a State court, but simply for the exercise of an election by a party to a suit in'a State court to transfer it to another court of original jurisdiction for trial. The design manifestly was to authorize an election between the two tribunals, not to give him a chance at both. *491Any other construction would be to confer upon the Federal courts, whose jurisdiction is carefully limited by the constitution of the United States, an extraordinary and incongruous appellate jurisdiction, by which the judgment or decree of a State court, solemnly pronounced in a case where it had the undoubted jurisdiction, could be reviewed, reversed and annulled by a Federal court. . ■
Such a construction would permit a party who has deliberately chosen his tribunal, after years of litigation in a State court, where the decision, if in his favor, would bind the other party, if against him, to take another chance in another forum, to repudiate the authority of the tribunal he has chosen, after a final hearing of his cause, by invoking the aid of another State court, the Supreme appellate court, to enable him to get his cause before a Federal court.
In one of the cases before us the non-resident petitioner had failed in the court below upon the final hearing of his cause, and there was a decree against him. It will be conceded by his own counsel that he could not then, without obtaining an appeal, have removed the cause to the Federal court. It was too late by the express -terms of the statute. He then invokes the aid of this court, upon the ground that the decree against him was erroneous. An appeal is allowed him by this court, or one of its judges ; and thereupon he files his petition and affidavit that “he has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice” from this court, whose appellate power has been invoked, and granted, to relieve him against a decree which he complains is erroneous. If the appeal had not been allowed, the case, confessedly, would have been at an end, and could not have been removed to the Federal court. He prays an appeal, ostensibly that the decree may be reviewed and reversed by this court, and wheu he obtains it, he *492seeks to make this court, the supreme appellate tribunal ot' the State, the mere conduit through which he may travel to a Federal court. Such a course is unwarranted by any law, by any decision of any court, State or Federal, and is in conflict with the express terms of the ac^ Congress which, in effect, declares that no case shall be removed from the State courts to the Federal 0011 rta after trial and final hearing.
Such a course of practice would be to substitute the Circuit court of the United States, as an Appellate court to the Circuit court of the State, in the place of that Supreme appellate court constituted by the constitution and laws of this State as the court of the last resort. Such unprecedented and dangerous jurisdiction in the Federal courts' will never be recognized by this court, unless the very letter of the law imperatively requires it, and unless such law, if enacted by Congress, shall be declared by the Supreme court of the United States to be consonant with the constitution of the United States, which expressly limits the jurisdiction of the Federal courts.
We are of opinion that the motions for removal in both cases be overruled.
The order was as follows:
This day came again the parties by their attorneys, and the court having maturely considered the petition and arguments of counsel upon the motion for the removal of this cause to the next Circuit court of the United States, to be holden at Harrisonburg, in the western district of Virginia, is of opinion, for reasons stated in writing and filed with the record, that this is not a proper case for removal under the act of Congress of March 2, 1867. It is, therefore, considered that the motion aforesaid be overruled. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481780/ | Christian, J.
delivered the opinion of the court.
Two actions of debt between the same parties were pending in the Circuit court of Highland county. The same plea was filed in each case, to wit: the plea of payment, and issues were made up on that plea only.
By agreement of the parties the cases were heard together before the same jury, which found a verdict in the following words : “We the jury find for the plaintiff the sum of seven hundred and sixteen dollars and thirty-two cents, with interest thereon from the 30th day of April 1868, till paid.” A judgment was entered against the defendant for that amount.
There was no motion for a new trial, or in arrest of judgment, nor was there any objection takeu in any form, either to the amount or to the form of the judgment. Neither the facts proved, nor the evidence heard, before the jury, are certified to this court.
It is now objected for the first time, in the appellate court, that the judgment is erroneous because there ought to have been a verdict and judgment in each action, instead of a general verdict and a judgment in solido.
The two actions being of the same nature, and between the same parties, it was a proper case for a consolidation ■of the actions, and the court might properly ex mero *512moiu, have ordered the eases to he consolidated and heard together. And while it would have been the most regular course to have entered a formal order of consolidation, the failure to make that entry is not such an error as can be taken advantage of in an Appellate court.
The agreement .of the parties that the causes should be heard together, was in effect a consolidation of the two actions. The parties and the court treated the two actions as one, and a general verdict and judgment in solido, not being objected to by the defendant, cannot be said here to be erroneous. It is clear the defendant, if there were error in the judgment, was not and cannot be injured by it. That judgment would be a complete bar to any suit which might be brought hereafter, upon either of the bonds, which had been the subject of one or the other of the two actions, and he was, in fact, benefited to the extent of saving the costs of trial of one action.
The other ground of error assigned, that in one of the cases the action ought to have been covenant instead of debt, is not well taken. The objection "comes too late. It was not taken in the court below, and as the record does not present the question, it cannot be considered in this court. The judgment must be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481783/ | Moncure, P.,
dissented.
The judgment was as follows;
*533The court is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in overruling the motion to set aside the verdict and award the defendant a new trial. Therefore, it is considered that the judgment he reversed and annuled and the verdict he set aside; and that the defendant in error pay to the plaintiff in error the costs hy him expended in the prosecution of his writ of supersedeas in this court; and the cause is remanded to the said Circuit court for Highland county for a new trial to be had therein; which is ordered to he certified to the said Circuit court of Highland county. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481784/ | Staples, J.
This is an appeal from a decree of the Circuit court of Eoekbridge county, in a suit instituted by the executor of Alexander Barclay, deceased, against the administrator and heirs of Hugh Wilson, deceased. It appears that upon the dissolution of-the firm of Ma*539thews, Paxton & Co., in the year 1843, of which plaintiff’s testator and defendants’ intestate were members, two bonds amounting in the aggregate to $1,038.56, with interest thereon from their respective dates, were assigned to plaintiff’s testator, as a part of the capital stock invested by him in said partnership. These bonds , f . . . P were never collected, as is claimed, m consequence ox the insolvency of the obligor; and this suit was brought to recover the share or proportion for which the estate of Hugh Wilson is responsible.
I do not deem it necessary to consider the question so elaborately discussed at the bar, of the effect of the statute of limitation upon the plaintiff’s right of recovery. In my view of the case, the want of due diligence, on the part of Barclay, in enforcing the trust deeds given to secure the debts assigned to him, and the long delay of his representative before instituting this suit, are sufficient of themselves, to defeat this claim.
The bonds in question were assigned to Barclay in March 1843. He retained them in his possession until the year 1848, and then, for the first time, placed them in the hands of an attorney for collection, along with other papers relating to the concern of Mathews, Paxton & Co. The attorney states, he found it necessary to institute a suit in chancery in consequence of the various encumbrances upon the property of Deem, the obligor in the bonds. This is no doubt a mistake; as at that time the suit of Erskine & Caperton was pending. That suit was brought in 1848 ; the object was to enforce the liens of various judgments against the real estate of Deem.. Although Barclay was made a party to this suit in the beginning, it does not appear that he ever answered the bill, or manifested the slightest interest in. the conduct of the cause. At the October term 1843, a decree was rendered for the sale of part of Deem’s real estate. This decree was, however, never executed ; nor was any other step taken in the case, until the year 1849. *540At the October term in that year, another decree was rendered for the sale of all the real estate belonging to ' Deem ; and directing proceeds of sale to be applied—■ first, to the judgments in favor of Erskiue & Caperton ; second, to the North judgments; and third, to the debt due to Barclay. The sale was made in 1850; and confirmed in the year 1851. It will thus be seen that the suit was permitted to remain seven years on the docket, without the slighest attempt on the part of Barclay to enforce the sale, either under the trust deeds, or the decrees of the court.
In the meantime, it is highly probable, the lands were deteriorating in value, while the interest was accumulating upon the debts having priority over those secured by the trust deeds. These deeds embraced several tracts of lands, upon one of which was a hotel with its appurtenances, and also a large quantity of personal property of considerable value. There were also two other tracts not included in the deeds, but subject to the lien of the judgments. It does not appear what became of the personal property. It was probably consumed by the family, or sold and applied in discharge of other debts.
Although the Chancery court had taken jurisdiction over the real estate of Deem, there was nothing to prevent a sale of the personal effects under the trust deeds. These deeds were executed in July 1842, and the debts assigned in March following. By the exercise of the least diligence in enforcing a sale of the personal property, there cannot be a question but that Barclay would have realized the greater part, if not the whole amount, of his claim.
This is the aspect of the case as presented by the record brought here at the suggestion of the court, and filed in ■the cause with the consent of counsel. In as much, however, as that consent was given before the record was seen, and as the counsel for the appellee seems to apprehend that some injustice may thereby be done his *541client, it is proper to consider the case very briefly without reference to the facts disclosed by that record.
After this long delay, it must be conceded that the laboring oar is upon the plaintiff. It is incumbent upon him to establish clearly all the facts necessary to fix the liability of the defendants. It was his duty—not that of the defendants—to show the quantity and value of all the property embraced in the deeds, and that no portion of the debts could have been made from a sale of that property.
Hone of the witnesses examined by him, tell us anything in respect to the personal property, or what became of it. It is true that Mathews, one of the partners, seems to have been satisfied of the insolvency of Deem, aud to have paid Barclay his share or proportion of the bonds; but it is equally true that the other partners were not so easily satisfied, and have as steadily refused or declined to assume any such liability.
The testimony of the other witnesses examined by plaintiff, was given nearly twenty-five years after the date of the assignment, and the execution of the trust deeds, and relates to events and transactions with which neither was personally acquainted. It would be easy to show that all this evidence is wholly insufficient to establish plaintiff’s case. It is clear, as a general rule, the assignee must sue the maker or obligor before he can resort to the assignor. This rule is varied where it is pei'fectly manifest a suit would be wholly unavailing. It is equally clear, that where the debt which has been assigned, is secured by a specific lien, it is the duty of the assignee diligently to enforce Buch lien before he can have any recourse against the assignor. If he fails to pursue this course, it is incumbent upon him clearly to show that the security was worthless, and that no loss or damage has resulted from his lack of diligence. In the preseut case there is a manifest omission to establish these important facts.
*542■ It will be borne in mind, that tbe assignment was ma<^e the year 1843. If at that time the obligor was ^nso^ventj as is claimed, the assignors were immediately liable upon the contract of assignment. It was the duty Barclay then to institute his suit against his co-partners, or reasonably to notify them of his inability to colIect the debt. Let it be conceded, however, that Deem’s insolvency did not appear until the sale of his real estate in 1850. This suit was not brought until the year 1860— nearly ten years after the sale, and seventeen years after the assignment. After this long delay it is very doubtful, to say tbe least, whether there can now be a safe determination of the matters in controversy. The danger of injustice, from loss of information aud evidence, is great. And what is more material, the remedy of the defendants over against others is greatly impaired, if not wholly destroyed, by death and insolvencies. Under such circumstances, a court of equity should refuse to afford a remedy, though no statute -of limitations may directly affect the right of recovery. In Wagner v. Baird, 7 How. U. S. R. 234, 259, Mr. Justice Grier, quoting' the observation of Lord Camden, that nothing but conscience, good faith and reasonable diligence, can call this court into activity, used this language: “Length of time necessarily obscures all human evidence and deprives parties of the means of ascertaining the nature of original transactions; it operates by way' of presumption in favor of the party -in possession.” Doggett v. Helms, 17 Gratt. 96, and cases there cited; Tazewell’s ex’or v. Whittle's adm'r, 13 Gratt. 329.
In Deane v. Scholfield, 6 Leigh, 386, Judge Cabell, in discussing the duties and obligations .of assignees, said: “If the assignee attempts to rest it on the ground •.that he was under no obligation to pursue the maker, 1 he must equally fail; for even admitting that he was under no obligation to pursue him, then he should im\mediately have demanded the money from the assignor, *543with an offer to return the note, that the assignor might take measures to recover from the maker. It would be against all justice that the assignee of a note should ■ seek to subject the assignor to its payment, after thus having held it up for years without any notification of his intention to hold him liable, and without offering him the means of saving himself by sueing the maker.”
These observations strongly apply to this case, and present controlling reasons for the rejection of the claim asserted by this bill. I think the chancellor erred in sustaining it; that the decree for this cause should be reversed and the bill dismissed.
■ The other judges concurred in the opinion of Staples, J.
The decree was as follows :
The court is of opinion, for reasons stated in writing and filed with the record, that the said decree is erroneous. Therefore, it is decreed and ordered, that the same be reversed and annulled ; and that the appellee, James H. Paxton, executor of Alexander T. Barclay, deceased, out of the assets of his testator in his hands to be administered, do pay unto the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court proceeding to pronounce such decree as the said Circuit court ought to have rendered: It is further decreed and ordered, that the plaintiff’s bill be dismissed, and out of the assets of the testator in his hands to be administered, that he do pay unto the defendants their costs by them about their defence in the said Circuit court expended; which is ordered to be certified to the said Circuit court of Rockbridge county. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481785/ | Christian, J.
delivered the opinion of the court.
The power of a court to set aside a verdict of a jury, and grant a new trial, upon the ground of newly discovered testimony, is one that is exercised rarely and with great caution. It will not be exercised but under very special circumstances. The party asking its exercise must show that he was ignorant of the existence of the evidence relied upon; that he was guiltless of negligence ; and that the new evidence, if it had been before *547the jury, ought to have produced a different verdict. The newly discovered evidence must not only be material in its objects, and not merely cumulative, corroborative and collateral, but it must be such as ought to be decisive, and productive on another trial of an opposite result on the merits of the case.
These principles are well settled by the decisions of this court. In the case before us it appears that the appellee, JBoyd, had instituted his action of ejectment against the appellant, Markham, in the Circuit court of Botetourt; and that at the June term of that court, in the year 1857, a verdict was found for the plaintiff (the appellee here) for the land in the declaration mentioned. A motion was submitted for a new trial, which was overruled, and a judgment entered in accordance with the verdict. No exception was taken to the judgment of the court refusing a new trial, and consequently neither the evidence nor the facts proved were certified.
In August 1859, Markham filed his bill, praying an injunction to said judgment, and praying that a new trial might be awarded, upon the ground that he had discovered, since the trial, material evidence which could not have been produced by the utmost diligence at the trial, and which was accidentally discovered afterwards. He found it necessary to file an amended bill, and a supplemental bill, which set out more distinctly the character and weight of the evidence, and the manner in which it was discovered. Neither of these bills profess to set out the evidence which was heard before the jury on the trial of the ejectment. An injunction was awarded; and upon a motion to dissolve the injunction, before the same judge who tried.the ejectment case, there was much evidence submitted on both sides; but it is not pretended that all the evidence which was heard before the jury is in the record of the injunction suit. This court, therefore, not having before it the evidence which was before the jury in the ejectment case, cannot *548possibly arrive at any satisfactory conclusion as to the rele7ancy or strength of the newly discovered testimony.
The judge who presided at the trial of the ejectment su^ anc] who entered the final decree dissolving the injunction and dismissing the bills in this case, is under the circumstances alone competent to decide whether the newly discovered evidence, if it had been before the jury, ought to have produced a different verdict. He has very clearly and decidedly expressed his opinion, in bis decree dissolving the injunction. He says, ‘4 Assuming that the plaintiff has shown due diligence in preparing for his defence at law, it does not appear that the case before the jury would have been materially changed if*the said original deed had been in the possession of the plaintiff at the lime of the trial.”
As to that portion of the land in controversy included in the Dooly patent, under which the defendant Boyd claims (this patent being older than the grant to Henry Banks with which the plaintiff seeks to connect himself), the said deed had no tendency to prove a better title in Markham. It appears that the defendant at the trial of the action of ejectment was permitted to show color of title; that he relied upon his adverse possession for a sufficient length of time, as he contended, to protect him under the statute of limitation; and upon these points parties were fully heard at law. It does not appear that upon another trial the discovery of said deed would enable the plaintiff to make out a stronger case upon another trial. As to the written agreement also alleged to have been discovered since the trial, the court says, 44 The written contract between Milner and Scott, in the bill mentioned, proves nothing that was not substantially proved at the trial. The receipt which was read in evidence, proves the same contract, in substance, which was proved by the written agreement.” Such is the opinion of the court below declared in its decree.
*549The deed and the written agreement referred to in the decree, constitute the newly discovered evidence upon which the appellant based his application to a court of equity for a new trial. Can this court say that the decree of the court below was erroneous in refusing to award a new trial, when the evidence which was before the jury in the ejectment case is not before this court? "We certainly cannot do this in face of the fact, that the judge who heard all the evidence in the ejectment case, asserts in his decree, that the newly discovered testimony (of the relevancy and strength of which we can form no opinion), could not have had the effect to change the verdict of the jury. The decree of the Circuit court must, therefore, be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481787/ | Bouldin, J.
concurred fully in the opinion of Staples,
J.; and he concurred in the opinion of Anderson, J., except that he did not think that the contract looked to the currency received and paid out by the banks at the date of the contract.
Christian, J. dissented, and referred to his opinion delivered on the former hearing of the case..
Moncure, P. concurred in opinion with Christian, J.
Judgment abbirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481788/ | Bouldin, J.
It is perhaps unnecessary to decide in this case, whether the written contract of the 11th of July 1843, between Stuart and Seely, could be waived or rescinded by a subsequent parol agreement, as it is apparent, as well from the theory of the bill, as from the proofs in the cause, that all that was done by Stuart in that respect, was done not only with the full knowledge and consent of Seely, but in fact at his instance and request. Under such circumstances Seely would be estopped in a court of equity from setting up any claim or interest in himself in derogation of the act of Stuart, thus assented to and authorized by himself. But the question, whether the contract of the 11th of July 1843, could be thus waived or rescinded, has been very earnestly and elaborately argued by learned counsel on both sides of this case ; and it may be expected, and is perhaps proper, that the views of the court on that question should be expressed.
*585No rule of law is better established as a general rule than this,—that a written contract, whether under seal or not, and whether relating to land or not, cannot be explained, varied, or controlled by parol evidence. But that is not the question before us. The question is, whether an executory contract in writing, creating an equitable interest in land, may not in equity be rescinded, waived or abandoned by a subsequent distinct and independent parol agreement between the parties, partially acted on or fully performed by them.
If part performance of an original parol contract be sufficient in a court of equity to withdraw the case from the operation and influence of the statute of frauds, as it unquestionably is, no good reason is perceived, why part or full performance of a subsequent distinct and independent parol contract, rescinding the former contract for full consideration, and substituting another in its place, should not in like manner withdraw the latter contract from the influence of the statute. The principle of the two cases would seem to be precisely'the same.
But we are not left to mere analogy. The precise question seems to have been decided in more than one case both in England and America. In a note to the case of Pym v. Blackburn, 3 Ves. R. 34, 40, the annotator, after citing among other cases, the cases of Goman v. Salisbury, 1 Vern. R. 240, and Legal v. Miller, 2 Ves. Sr. R. 299, says, “In each of the last two cases, an agreement executed according to the statute, was discharged by a subsequent parol agreement, of which evidence was given, on the ground of part performance. Eor this purpose the evidence must prove a distinct subsequent, independent agreement.”
In the case of Rich v. Jackson, reported in a note to the subsequent case of the Marquis of Townshend v. Stangroom, 6 Ves. R. p. 334-5-6, Lord Hardwicke’s opinion that parol evidence is admissible to rebut an equity, was approved; and it was held that the rule which denies *586the right to vary by parol the effect of a written agreement within the statute of frauds does “not affect the case of a subsequent, distinct, collateral agreement.” And in Price v. Dyer, 17 Ves. R. 585, 363-4, Sir William Grant, after saying that the case then before him did not render it necessary for him to express an opinion directly on the question, whether a written contract in relation to land could be waived or discharged by parol, says, “But as at present advised, I incline to think, that upon the doctrine of this court such would be the effect of a parol waiver, clearly and satisfactorily proved ;” but he goes on to say, “ but here there was no such waiver. The waiver spoken of in the cases, is an entire abandonment and dissolution of the contract restoring the parties to their former condition.”
Such, however, was precisely the character and purpose of the abandonment and dissolution of the contract in this case, between Stuart and Seely as proved by Stuart. The American cases are to the same effect as the English.
Mr. Hilliard in his work on Vendors, ch. 10, § 19, p. 173, says, “And the general rule iá, that a written agreement within the statute of frauds may be varied by a subsequent parol, distinct and collateral agreement;” citing among others the following American cases, viz : Dearborn v. Cross & al., 7 Cow. R. 48, and Baldwin v. Salter, 8 Paige R. 473.
In the first ease, Dearborn v. Cross, the plaintiff' sold a dwelling-house and distillery to the defendant, gave him a bond to make the title, took from him his several notes for the consideration, and delivered to him the possession of the premises.
One of the notes given in consideration of the sale, was afterwards put in suit; and the defence at the trial was, that the contract of sale had been rescinded by a verbal agreement between the parties ; and that the plaintiff pursuant to that agreement, and with defendant’s *587consent, had re-entered upon and i’ented the house, and finally sold the whole premises to another. The title ,bond, however, had never been delivered up or can-celled. The defence was overruled by the Circuit court, upon the ground that the contract could not be rescinded by a parol agreement of this discription; that it could be discharged only by a release, or a surrender and cancelling of the contract. The case was taken to the Supreme court of New York, which held that no action would lie on the note, the whole contract of sale being discharged by the new, parol, executed agreement. The court say, p. 49, “The evidence given and that which was offered to be given, show not merely an executory agreement to rescind the contract, but an agreement executed and carried into effect, by a surrender of the possession and a subsequent sale of the premises.” And after citing several pertinent authorities, the court goes on to Bay, “the defendant Cross, therefore, could not enforce this contract against the plaintiff; and there seems to be no necessity for sending him to a court of equity in order to restrain the plaintiff from collecting the notes, which were the consideration of the contract.”
There is a very striking analogy between the case of Dearborn v. Cross and the case before us. There is in this case clear and conclusive proof of a subsequent, distinct and independent parol agreement, between Stuart and Seely, by which the contract of sale was abandoned and rescinded; and this agreement was acted on and fully executed by the subsequent sale of the property by Stuart to Mrs. Phelps, with the consent and at the instance of Seely, and by Seely’s surrender in effect, of the premises to Mrs. Phelps by his acceptance of the position of her tenant. Under such circumstances, my opinion is, that the contract of sale, whether surrendered for cancellation or not, was wholly rescinded, and that the parties were restored to their former position.
The next and only other question necessary to be con*588siderecl is, whether at the time of the deed from Stuart to Mrs. Phelps, or prior thereto, there was any understanding or agreement between Mrs. Phelps and Seely, that the money paid or to be paid by Mrs. Phelps for the land, should be advanced by her as a loan to Seely, and that she was to take a deed for the land from Stuart directly to herself, as a security for the loan. Eo such agreement appeared on the face of the deed; and if it existed it must be established by testimony. The question is, therefore, one of fact only. .
Was any such agreement made ? Mrs. Phelps, in her answer to the bill, denies emphatically “ that she was mortgagee of the property, or that she bought it subject to any trust, condition or understanding with Mr. Seely, or any one else, that he was to have the right to redeem it by refunding to her the purchase money.” She says that any such arrangement would have been perfectly idle, as Mr. Seely wras hopelessly and notoriously insolvent, and the w7hole transaction w7as founded on the knowledge of that fact. She admits that she made the purchase with a view “to befriend Mr. Seely and his family,” and thinks it probable that if, in a reasonable time, Mr. Seely had been able to re-purchase the property at the price paid by her, she would have let him have it, not under any legal or moral obligation, “but purely as a matter of personal favor to him.” This is the substance of her answer, and it amounts to an emphatic and unequivocal denial of the loan and mortgage. Mr. Stuart, who sold her the property and made the deed, looked on it as an absolute conveyance to Mrs. Phelps, without reservation or condition, having heard nothing to the contrary from any of the parties. So far from it, when his contract with Seely was rescinded, the latter informed him that he was utterly unable to complete his purchase from him, but that Mrs. Phelps would buy the lot at the same price—$440. If it was to be an advance for him, it is reasonable to suppose that *589he would have said so, iustead of speaking of it as a purchase by her. And Mr. Morgan, the son-in-law of Mrs. Phelps, and the active agent between the parties— privy, as be says, to the whole transaction—took the same view of the matter, never having heard, as he proves, of any loan or mortgage. On the contrary, he proves that Mr. Seely acknowledged himself unable to complete his purchase, and that he requested Mrs, Phelps to take his place and buy the property from Mr. Stuart; which she did.
This is all we have from the persons immediately cognizant of and party and privy to the transactions occurring at and prior to the date of the deed, except the subsequent admission of Seely himself, that he was debtor to Mrs. Phelps for the rent of the property, and would pay it when able—an admission utterly inconsistent with the idea that he owned the property, subject only to an encumbrance. Against all this there is nothing in the record but the loose and unsatisfactory testimony of several witnesses, testifying to vague and indefinite declarations and admissions of Mrs. Phelps, made long after the date of the transaction—declarations and admissions not only having no direct reference either to a loan or mortgage, but all of them applyiog as forcibly to the position of Mrs. Phelps as to the pretensions of the appellee.
There is no doubt that a resulting trust may be set up by parol testimony against the letter of a deed; and it is also true that a deed absolute on its face may, by like testimony, be proved to be only a mortgage; but the testimony to produce these results must, in each case, be clear and unquestionable. Vague and indefinite declarations and admissions long after the fact, such as have been relied on in this case, have always been regarded—and I think with good reason—as unsatisfactory and insufficient.
In Lench v. Lench, 10 Ves. R. 511, 517-18, Sir Wm. *590Grant, speaking of parol evidence of subsequent admissions or declarations to establish a trust, says: “The witness swears to no fact or circumstance capable of being investigated or contradicted, but merely to a naked declaration of the purchaser admitting that the purchase was made with trust money. That is in all cases most unsatisfactory evidence, on account of the facility with which it may be fabricated and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect' of the declaration.”
And so in Bostford v. Burr, 2 Johns. Ch. R. 405, 411, Chancellor Kent, commenting on the parol testimony by which a trust was sought to be engrafted on a written, instrument, says: “This is a remarkable instance of the inaccuracy and fallacy of parol testimony, and shows the great danger there is of giving much latitude to these implied trusts founded on naked declarations in opposition to the solemnity and certainty of written documents.”
The case of Bostford v. Burr will be found, in all of its essential features, to be very much like the case before us, but with this difference, that the testimony in that case tending to establish parol admissions of the trust was much more direct and pertinent than any offered in this; yet Chancellor Kent held that it was wholly insufficient to change the terms of the deed. He said, page 412, “all the proof seems to consist of the confessions of the defendant; yet those confessions will, most of them, apply as well to the pretence of the one side as the other”; and in noticing and commenting on the testimony, he quotes, with approbation, the language of Sir William Grant in Lench v. Lench, already referred to.
How, it will be seen that Mrs. Phelps had always expressed a willingness and a purpose “to befriend Mr. Seely and his family ”—to provide for them a home in *591their destitute condition—not, however, as a matter of obligation and contract, but purely of kindness and favor; and she admits in her answer that she purchased the property with that view, and would, within any reasonable time, have re-sold it to Seely at the same price, had he been able to make the purchase. ■ All her acts and declarations, as proved in the cause, are entirely consistent with this position. By none of them did she ever admit that there was either a loan or a mortgage: on the contrary, Col. Harman, one of the witnesses relied on to establish the mortgage, proves distinctly that he regarded the provision inteuded by Mrs. Phelps for Mr. Seely and his family to be purely a matter of favor.
My opinion is, that such testimony, long after the execution of the deed, is not sufficient .to alter and overthrow its plain terms, supported as it is by the statements on oath of Mrs. Phelps, in her answer; by the direct and positive testimony of Morgan, the active agent between the parties, privy to the whole transaction ; by the positive and negative testimony of Stuart, the grantor; and by the subsequent solemn, admission of Seely himself, iu writing, that he was debtor to Mrs. Phelps for the rent of the property, and would pay the same when able.
Upon the pleadings and proofs in the cause my opinion is, that from and after the date of her purchase from Stuart, Mrs. Phelps was entitled to the property in controversy absolutely, and without reservation or condition, whensoever she might think proper to demand the possession thereof; that as matter of favor, and not of contract, she allowed Mr. Seely and his family to enjoy the property without rent for more than twenty years— until, in fact, both Seely and wife, the chief objects of her bounty, were dead; and that in so doing she fully discharged all obligations of duty and charity.
The decrees of the District and Circuit courts must be *592reversed, with costs to the appellant, and the bill dismissed.
Moncure, P., and Christian and Anderson, Js. concurred in the opinion of Bouldin, J.
Staples, J. dissented.
The decree is as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the said decrees of the said District court and the said Circuit court are both erroneous. Therefore, it is decreed and ordered that the said decrees of the said District court and of the said Circuit court be reversed and annulled ; and that the appellees, Mary A. Seely and Samuel Paul, sheriff of Augusta county, and as such administrator of Horace Seely, deceased, out of the assets of his intestate in his hands to be administered, do pay unto the appellant his costs by him about his suit in this behalf expended, and also his costs in said District court expended; and this court proceeding to pronounce such decree as the said Circut court ought to have rendered: it is further decreed and ordered that the plaintiff’s bill be dismissed, and that she do pay unto the defendants their costs by them about their defence in the said Circuit court expended ; which is ordered to be certified to the said Circuit court of Augusta county.
Decree oe District court oe Appeals and Circuit COURT REVERSED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481789/ | Moncure, P.
read the judgment of the court.
Upon a motion to dismiss the supersedeas awarded in this cause, for the want of jurisdiction, the judgment of the court below, as is alleged, being for a less sum than $500.
This day came again the parties by their attorney, and the court is of opinion that the release given by the attorney of the plaintiff, in the court below, of five dollars of the damages, amounting to five hundred dollars found by the verdict of the jury, was given for the purpose of depriving this court of appellate jurisdiction in this case ; that the said release for the said purpose is unlawful and void ; and that in regard to the question of such jurisdiction, the judgment of the court below must be considered as having been rendered for the said sum of five hundred dollars, the damages aforesaid, instead of for the sum of four hundred and ninety-five dollars, the residue of the said damages, after deducting the said sum of five dollars. Therefore, it is adjudged and ordered that the motion to dismiss the case for the want of jurisdiction, on the ground that the judgment of the court below is for less than five hundred dollars, be overruled, and that the defendants recover against the plaintiff in the said motion, their costs by them about their defence in the same expended. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481790/ | Moncure, P.
delivered the opinion of the court. After stating the case, he proceeded :
That this case should have been decided as it was, both by the County and Circuit courts, must, at the first view of it, strike the mind with some surprise. That the defendants should have a right to set-off in the action, a judgment assigned to one of them, and he the principal debtor, against the plaintiff, would seem to be just and reasonable. To be sure, there would formerly have been a technical objection to such right of set-off, arising from a want of mutuality, which was always necessary to the existence of the right; the set-off being a claim of one of several defendants against the plaintiff, whereas the claim for which the action was brought, is a claim of the plaintiff against all the defendants. But such an objection, so far as it could apply to this case, has been completely removed by statute; it being provided by the Code of 1849, chapter 172, section 4, that “ although the claim of the plaintiff be jointly against several persons, and,the set-off is of a debt, not to all but only to a part of them, this section (being the one which gives the right of set-off), shall extend to such set-off, 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 set-off is the principal.”
Now that is precisely the case here, in regard to the want of mutuality, and therefore no objection on that ground can be sustained.
*604The ground on which the objection taken to the set-this case was sustained, no doubt was, that the defendant, who claimed to be entitled to the benefit of the judgment sought to be set-off against the plaintiff’s claim, was only the equitable, and not the legal, owner of the judgment, and could not bring an action at law thereon in his own name.
Even under the statutes of set-off in England, it was held in the celebrated cases of Bottomley v. Brooke and Rudge v. Birch, cited in 1 T. R. 621-2, that a debt due from the equitable owner of the claim for which an action was brought in the name of the legal owner, might be set-off in such action. See Winch v. Keiley, Id. 619. These cases, it is true, were afterwards questioned, and at length overruled, by the courts of that country. See the cases cited and commented on in 5 Rob. Pr. p. 98-0. But this course of decision in England, in regard to the cases of Bottomley v. Brooke and Rudge v. Birch, is due entirely to the peculiar phraseology of the statutes of set-off existing there; as plainly appears from the recent case of Isbery v. Bowden, 8 Welsb., Hurl. & Gor. 852, decided by the court of Exchequer in 1853 ; in which the cases on the subject were reviewed and the judgment of the court delivered by Martin, B. after the case had been fully argued, and held under .advisement during a vacation. “ The statute (2 Geo. 2, c. 24, § 13), enacts,” said the court, “that where there are mutual debts between the plaintiff and the defendant, one debt may be set against the other. This is the whole enactment, as applicable to the present case, and upon its true construction the question depends. If the words of the statute had been, that where there were ‘ mutual debts,’ the- one might be set against the other, the argument of Mr. Mellish (counsel for the defendants), would have had more weight; but those are not the only words, for the debts are to be, mutual debts between the plaintiff and the defendant, and there is.no *605debt here due from the plaintiff at all; and except the words, 4 between the plaintiff and the defendant,’ can be excluded, the plea cannot be maintained.” After reviewing the cases cited by counsel, the court further said: 44 In this case the party whom the defendant agreed to pay was the plaintiff, but the plaintiff was not the party who agreed to pay the defendant the debt sought to be set-off; and we think that, looking at the . plain words of the statute, we best give effect to the true rule now adopted by all the courts at Westminster, for its construction, by holding that, inasmuch as the debts are not mutual debts between the plaintiff and the defendant, the one cannot be a set-off against the other. This is acting upon the rule as to giving effect to all the words of the statute, a rule universally applicable to all writings, and which, we think, ought not to be departed from, except upon very clear aud strong grounds, which do not, in our opinion, exist in this case.” •
Now, the language of our statute of set-off is very different from that of the English. We have seen what that of the latter is: 44 Where there are mutual debts between the plaintiff and defendant, &c., one debt may be set against the other,” &c.. The language of our statute is : 44 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.” Code, ch. 172, § 4. Nothing is there said about 44 mutual debts between the plaintiff and defendant,” as iu the English statute. In Allen, &c. v. Hart, 18 Gratt. 722, this court had occasion to notice the material difference between the statutes of the two countries, and the different constructions which had been put upon ours; and the court, in conclusion upon this subject, said: 44This course of decision in this State shows, that the statute of set-off has been liberally construed, with a view to the further*606anee of its obvious policy, which is to prevent multiplicity of suits, and as far as conveniently can be done, to effectuate in one action complete j ustice ■ between the parties.” Id. 729. Our courts, in this respect as well as others, look to the real, and not the nominal parties to the suit. In Pates v. St. Clair, 11 Gratt. 22, this subject is fully noticed by the court. And by the Code', ch. 185, § 9, p. 768, it is provided that “ when the suit is in the name of one person for the benefit of any other, if there be judgment-for the defendant’s costs, it shall be against such other.” It thus appears to be the tendency, as well of our Legislature as of our courts, to regard the real, rather than the nominal parties to the suit. That it is the policy of our Legislature to give courts of law cognizance of equitable defences, and thus to prevent multiplicity of suits, is further illustrated by sections 5 and 6 of the chapter 172, concerning “ payment and set-off,” in the Code, page 716.
In the courts of the other States of our Union the course of decision in England, in regard to the statute of set-off, may generally be followed ; but in none of them, perhaps, in all respects. In some of them Bottomley v. Brooke and Rudge v. Birch have been regarded, as in England, to be incorrect decisions. In others, those decisions have been recognized as sound, and the principle of them has been followed: as in Kentucky in Long v. Carlyle, 1 A. K. Marsh. R. 401; Ward v. Martin, 3 T. B. Monr. R. 18. So also the Supreme court of the United States in Winchester v. Hachley, 2 Cranch’s R. 342, Chief Justice Marshall, delivering the opinion of the court, held that a creditor upon open account, who has assigned his claim to a third person with the assent of the debtor, is still competent to maintain an action at law in his own name against the debtor for the use of the assignee ; but the debtor is allowed to offset his claim against the assignee. The diversity in the *607decisions of the courts of the different States on this subject, no doubt, arises from the diversity in the language of their respective statutes of set-off, most of which probably conform substantially, if not literally, to the English statute; and therefore, the construction put upon the latter by the English courts has been generally put upon similar statutes in this country by the American courts. But this remark does not apply to our statute, which, as we have seen, is materially variant from the English. Our statute on the subject has, we believe, been substantially the same, so far as this case is concerned, ever since the first statute on the subject was enacted in the colony of Virginia—at all events, since the act of 1705, which was before there was any statute of set-off’in England. In regard to this whole subject, we refer to 5 Rob. Pr. pp. 955, 1012, where all or most of the cases are collected.
"We are, therefore, of opinion that the testimony offered by the defendants in the court below, as mentioned in their first bill of exceptions, did tend to prove a set-off, which they were entitled to have allowed them; that the said court erred in sustaining the objection of the plaintiff’ to the said testimony, and in refusing to permit the said defendants to introduce ¡the same; and that the judgment be reversed, the verdict of the jury set aside, and the cause remanded to the said court for a new trial to be had therein ; on which new trial the said testimony, if again offered, is to be received.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the said judgment is erroneous. Therefore, it is considered that the same be reversed and annulled, and that the plaintiffs recover against the defendant in error their costs by them expended in the prosecution of their writ of supersedeas *608aforesaid here. And it is ordered that the verdict of the jury be set aside, and the cause remanded to the said Circuit court for a new trial to be had. therein; on which new trial the testimony offered by the defendants in the said court on the former' trial, as mentioned in their first bill of exceptions, if again offered, is to be received. Which is ordered to be certified to the said Circuit court of Rockingham county. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482027/ | Christian, J.,
delivered the opinion -of the court.
The only question brought up by appeal in this case, is whether the appellant, Richard H. Carter, is entitled to a ■credit upon the settlement of his executorial account to the amount of $5,878.20, alleged to have been invested by him for thuestate he represented in bonds of the Confederate States. The following facts are disclosed by the record : Bladen Dulaney, of the county of Fauquier, departed this life in the latter part of the year 1856, seized and possessed of a large real and personal estate, having first duly made and published his last will and testament, which was admitted to probate in the county court of Fauquier on the 27th day of January, 1857. The will was written by the appellant, Richard H. Carter, and he was appointed sole executor under the will, with the express desire and request on the part of the testator that he should not be required to give security for the performance of his duties as such executor. He accordingly qualified as executor, without security, before the county court of Fauquier, on the 27th January, 1857.
The will of the testator contains the following directions to his executor (after providing for an annuity of ■$600 to his wife), viz: “ But, if after the payment of my debts and funeral expenses, there shall be money unexpended, whether the same be arreas of pay or derived from the sale of my crops, cattle, farm stocks or farming utensils, then it is to be invested at the discretion of my *194executor, and the interest accruing thereon applied to the payment of said annuity,” &c.
It appears by the accounts settled by the executor, that on the 25th January, 1859, there was in his hands due the estate the sum of $5,688.48, and on the 25th January, 1860, the sum of $4,991.84. For this last amount he was a debtor to the estate on the 25th January, 1860. It was plainly the' duty of the executor to have invested that amount in a safe interest-bearing security to meet the annuity provided by the will. There was the highest obligation on him to do this. lie was the confidential friend of the testator. He was selected and sent for to-write his will. He was appointed the executor, with the “request and earnest desire” that no security should be required by the court of probate. Such confidence ought to have been scrupulously respected, and the wishes of the testator faithfully and diligently executed.
The object of the investment was to aid in providing an annuity for the widow of the testator. It is true that the investment was to be made “ at the discretion of the-executor,” but the investment was to be made of moneys in his hands after the payment of debts and funeral expenses. On the 25th of January, 1860, certainly, if not before, every debt due from the estate had been fully paid, and there wTas in the hands of the executor on that day, subject to be invested under the directions of the will, the sum of $4,991.84. This large amount was then in his hands, and ought then to have been invested under the directions of the will of the testator. From that day he became a debtor to the estate, and must be regarded as a borrower of the fund. The excuse which the executor now attempts to make for not then making an investment is, that a suit was pending against him brought by the widow, and he was awaiting the termination of that suit in order that he might ascertain the exact amount which he could invest for the purposes of the annuity provided *195by the will foi’ the widow. The record in that case is not printed in the record of Carter v. Dulaney, now before us, but by consent of counsel at the bar it was agreed - that the court should inspect the manuscript record of the case of “ Caroline Dulaney v. Carter, ex’or,” as if it was made a part of the record in the case before us. ' An inspection of the record in that case shows that the bill ivas filed by Mrs. Caroline Dulaney in order to get a construction of her husband’s will in regard to certain furniture' bequeated under the wall to her—whether she was entitled only to the .furniture in the house which the testator occupied at the time of his death, or to all the furniture belonging to him’, some of which was then in other houses which he owned. This was the principal matter of controversy in that suit. There was one other matter of minor importance upon which the court was asked to pass. It was this: The testator had directed in his will that the sum of $1,500 should be applied to repairs on one house 'at Mount Alburn, one of the farms of the testator; the repairs made, according to the estimate of the architect employed, was more than $1,500; and the question was, whether this additional amount was to be paid out of the estate or by Mrs. Dulaney. This amount, which was only $133.87 (interest added), was paid by the executor on 27th March, 1858, as per receipt filed by him in said manuscript record. This suit terminated in September, 1861, by the dismissal of the plaintiff’s bill. The real controversy in the case was (outside of the small amount of $133.87, which the executor paid, and for which he received credit), whether the widow of the testator was entitled to all the furniture left by the testator, or only to that which was in the house in ’Washington, in which the testator lived at the time of his death. The decision of this question, nor of that of the repairs to the “Mount Al-burn” property, amounting to only $133.87, could notin any manner affect the obligation of the executor to invest *196the sum of $5,000 in round numbers, which he admits was M Ms hands on the 25th January, 1860. For does pendency of such a suit, for such a purpose, not at all affecting the fund in his hands, furnish him any valid ex-euse Mr retaining the funds belonging to the -estate, without investing them according to the provisions of the will. For this amount, then, he stands as debtor to the estate and borrower of the fund. After the close of the war he seeks to discharge this indebtedness, on settlement of his executorial account before a commissioner, by producing certain Confederate bonds. And the order of Judge Meredith of the circuit court of the city of Richmond, date December 6th, 1864, which recites that “ on the petition of Richard H. Carter, executor of Dladen Dulaney, deceased, this day filed by his attorney, the court doth order that the said Richard H. Carter, executor as aforesaid, have leave to invest $5,900 (the amount stated by him in his petition to be in his hands in his fiduciary -character aforesaid), in interest-bearing bonds or certifi■cates of the Confederate States,” &c., &c. Under this order the investment was not made until the 11th February, 1865, when Confederate money as compared with .gold was as 1 to 55; so that the sum of $5,900 was worth only the sum of $92.54. It therefore appears that the executor in this case having in his hands in January, 1860, nearly $5,000 in gold, or its equivalent, which he was directed by the will of his testator to invest so as to-produce an annuity for the widow (which it was his duty then to invest), offers before a commissioner, as a satisfaction of this gold debt, Confederate bonds purchased in February, 1865, representing $5,900, but worth only $92.54. The right to make such payment'is urged upon ■the ground that the investment was made by a court of -competent jurisdiction.
It is sufficient to say that this investment was made mnder an ex parte order upon a petition which is not *197before ns. But it is impossible to conceive that the learned and able judge then presiding in the circuit court of the city of Richmond, would have made the order which he did if he had known that the fund which this executor desired to invest in Confederate bonds was received by him in January, i860, and that he was thereby discharging a debt which he himself owed to a widow and orphans of $5,000 and upwards, by turning over to them a Confederate bond worth only the insignificant sum of $92.54.
The order of the circuit court was obtained on an ex-piarte petition by the executor under the act of March 5th, 1865. That act has been more than once construed by this court. See Campbell’s ex’ors v. Campbell’s ex’or, 22 Gratt. 649; Crickard’s ex’or v. Crickard’s legatees, 25 Gratt. 410. In these cases it -was held that the act expressly provided that ivhenever a-fiduciary had in his hands moneys received in the due execution of his trust, which, from the nature of his trust, or from any other cause whatever, he was unable to pay over to the parties entitled thereto, or to dispose of the funds in accordance with the directions of the instrument creating the trust, it should be lawful for him to apply by motion or petition to any judge of a circuit court for instructions to invest the fund thus remaining in his hands; and it was further held that before a party can avail himself of the provisions of this act three things must concur: 1st. He must have in hand the same money, or its equivalent in value, which he received in his fiduciary character. 2nd. He must have received the currency which he proposes to .invest in the due exercise of his trust; and 3d. He, for some cause, must be unable to pay it over to the parties entitled, or invest it in accordance with the directions of the instrument creating the trust. In the case before us no one of these three things existed. The money which he had in hand in December, 1865, was Confederate *198money, almost worthless, and not that which he acknowledged was in his hands in January, 1860, was gold or its equivalent. The currency which he proposed to invest was not received in the due execution °f Twsi, for he admits he did not receive one dollar belonging to the estate after January, 1860, a period of more than a year before the establishment of a Southern Confederacy, and nearly two years before Confederate-currency was in circulation. The fund in his hands, so far from being in a condition that it could not be invested under the will creating the trust, might have been and ought to have‘been invested any time after January, 1860.
The court is therfore of opinion that upon the principles declared in Campbell's ex'ors v. Campbell's ex'or, and Crickard's ex'or v. Crichard legatees (supra), and numerous other cases since decided by this court, down to the case of Patteson v. Bondurant's ex'or, decided very recently, and in which case the many cases on this subject are collected and referred to in the opinion of Judge Anderson, that the executor cannot discharge himself from a gold debt contracted in January, 1860, by a Confederate bond, purchased by him with Confederate money in February, 1865, and depreciated at the rate of fifty-five dollars to one. (See also the opinion of Judge Burks, in Cole's committee v. Cole’s ad'mr, 28 Gratt. 365.)
But it is claimed in this case by the executor that while he made no investment, in the name of the estate he represented, of the funds in his hands, until February, 1865, yet, in April, 1862, he did invest the sum of §5,900 in eight per cent, coupon bonds, and that he intended and regarded this investment as made for the estate. How, if in point of fact the executor (though he was in default for more than two years in making the investment required by the will), in the exercise of the discretion reposed in him by the will, had, as early as *199April, 1862, investee! the money in his hands belonging to the estate in Confederate bonds, and marked and designated these bonds as the property of the estate, he would certainly have had a much stronger case and have stood upon much higher ground in a court of equity. JBut it is not pretended that the moneyiwhich he invested in April, 1862, was the money of the estate, or that the bonds taken were in any way marked or designated as bonds due the estate. They were his own bonds, bought with his own money. If he had died these bonds would have been the property of his estate and not that of .Bladen Dulaney. It matters not that he intended they should stand as an investment for Dulaney’s estate; the bonds themselves should have been so set apart and designated. They were not so set apart. The whole defence of the executor in this case stands alone upon his own deposition; and upon his own evidence it is shown that the investment in April, 1862, was not made in the name of or for the benefit of the estate, as appears from the following extract taken from his deposition:
“Fourth question by same. You have stated that yon received no money of the estate after the 25th of January, 1860; please state whether the amount in your hands on that day remained in your hands in kind until the investment you refer to, in April, 1862; if not, what became of it ?
“Answer. I did not keep it separate from my other means. I did not keep a separate account of a deposit in bank of that specific amount, but had an amount, or nearly so, at all times on hand sufficient to settle the balance due. I had either an equivalent amount on hand or at my call during the whole time.
“Fifth question by same. With what sort of funds did you buy the Confederate eight per cent, coupon bonds ?
*200“Answer. My impression is that it was almost exclusively Virginia bank notes, and a cheek on the Ex-Bank of Virginia,
“ Sixth question by same. In what funds were checks 011 the bank paid in April, 1862 ?
“Answer. I do not recollect; I did not draw the money myself upon the check.
“ Seventh question by same. Was there anything about the coupon bonds purchased in April, 1862, to indicate that they belonged to the estate of Bladen Dulaney ?
“Answer. There was no such mark or endorsement on the bonds ?
“ Eighth question by same. Where were the coupon-bonds which you say you purchased for yourself about the same time; if you have them please file them with, your deposition ?
“Answer. I have a portion of them which I will file; a portion I left with a friend in- Orange county during-the war, and since the war I have never called for them (abour $2,000). I had about the same amount burned up in my trunk with the wagon train at Amelia C. H., in April, 1865.
“ Einth question by same. Was there anything on the face of these last-mentioned bonds, or endorsed on their-back, to distinguish them from the bonds for $5,900 ?
“Answer. I do not recollect that there was.”
It is a significant fact, showing that the executor, himself did not regard the investment made by him in April, 1862, as made for the estate, that he invested the-same amount in February, 1865, under the order of the circuit court of Richmond, in his name as executor of Bladen Dulaney, and that when called upon to settle his executorial account before a commissioner, he produced the bonds purchased in February, 1865, and claimed that *201these bonds were in full discharge of his indebtedness to the estate of his testator.
Upon the whole case we are of opinion that there is no error in the decree of the circuit court of Fauquier, and that the same he affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482029/ | Moncure, P.,
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of the city of Richmond, rendered on the 30th da}' of July, 1874, in an action of covenant brought in said court by the Richmond and Petersburg Railroad Company, plaintiff, against R. B. Kasey, M. M. Kasey, R. H. Whitlock, Peter J. Crew, Silas L. Johnson and C. B. Lipscomb, defedants. The bond hears date on the — day ■of Rovember, 1870, is in the penalty of $3,500, and has a condition thereto annexed, reciting that the said R. B. Kasey had been appointed by the president and directors of the Richmond and Petersburg Railroad Company general ticket and freight agent of said company, and stipulating as follows, to-wit: “Row, if the said R. B. Kasey shall faithfully perform all the duties of the said office, and shall well, truly and faithfully account for all moneys or other valuable effects belonging to said company, or of which the said company may become the *220carriers or warehouses, that may in any manner be entrusted to him, the said E. B. Kasey, during his continuin said office of general ticket and freight agent; any such money or other effects which may be injured, l°st or destroyed while in the custody or under the charge^ie sa^ -B- Kasey as aforesaid, to be regarded and held as so injured, lost or destroyed by his negligence an(f fait^ unless shown by him to have been injured, lost' or destroyed otherwise than by such negligence or fault,, then this obligation to be void, else to remain in fuU force and virtue.” A breach of the said condition was charged in the declaration.
On the 7th of Kovember, 1873, “ came the parties, bjr .their attorneys, and mutually agreed that it be referred to Lawson Eunnally, as a commissioner, to ascertain and report at as early a day as practicable, what amount, if any, is due from the defendants to the plaintiff' in this cause, with liberty to either party to except to said report, and to show cause against the same, which said exceptions are to be heard and determined by the judge of this court upon such evidence as may be reported by the commissioner, and may be offered by either party,” &c., “ and any exceptions to the report of said commissioner shall be filed five days before trial.”
The said commissioner returned a report to the said court, showing that in pursuance of the said order of' reference, “ after spending much time in examining the-books of the said railroad company, investigating the accounts between the parties, taking the depositions of sundry witnesses, and fully hearing the statements of the parties and their counsel,” he had come to a conclusion thereon, and was of opinion that “ the account between the parties should stand thus.” Then follows the said account, showing to be due thereon to the said company the sum of two thousand three hundred and nineteen *221dollars and fifty-five cents, which should bear interest from the 1st day of April, 1873, till paid.
The depositions taken by the commissioner were turned with his report. ■
Four exceptions were taken by the defendants to the report of Commissioner Kunnally, and will be herein- ,. . ■ ■alter set out and commented on.
On the 30th day of July, 1874, came again the parties, by their attorneys, and the defendants pleaded “covenants performed.” and “ covenants not broken ”; to which the plaintiff replied generally, and put itself upon the country, and the said defendants likewise; and neither party demanding a jury, but agreeing that the whole matter of law and fact may be heard, and judgment .given by the court; and the court, upon consideration of ■the evidence adduced in this cause, and the report of Commissioner ISiunnally, filed herein on the 27th of June, 1874, and the testimony returned therewith, with the exceptions to said report, adjudged that the plaintiff recover against the defendant, Robert B. Kasey (the principal in the said bond), twenty-three hundred and nineteen dollars and fifty-five cents, with interest thereon from April 1st, 1873, until paid, and the costs; and that the defendants, M. Kasey, R. H. Whitlock, Peter J. Crew', Silas L. Johnson and C. B. Lipscomb (the sureties in the said bond), go thereof without day and recover against the plaintiff their costs by them about their defence therein expended.
To which said judgment in favor of the said five last named defendants (the sureties in said bond), the plaintiff excepted, and tendered his bill of exceptions, which was made a part of the record, and in which was certified all the evidence adduced on the trial of the cause.
The plaintiff applied to a judge of this court for a writ •of error to said judgment, which was accordingly awarded, and that is the case we now have to decide.
*222The questions arising in this case are presented by the four exceptions taken by the defendants to Commissioner. Hunnally’s report, and were argued in the same order by counsel in their argument of the cause in this court. We will pursue the same order in considering and deciding-the said questions, and in doing so will state, substantially, so much of the evidence in the cause, and such authorities and cases as seem to be material to be stated-
The first exception is as follows:
“1. The items charged to him (R. 13. Kasey) for tickets, and freight after his discharge. These items are charged between tbe 3d and 10th of March. He was discharged on the 3d of that month. It is clear that the charge is-illegal. The plaintiff endeavors to get over the difficulty by trying to prove that corresponding credits are given • but the witness fails to point out the credits. He merely says credits were given, but cannot designate the credits; they were embraced in tbe general credits. This confuses the accounts, so that its accuracy cannot be tested-The sureties should therefore be discharged.”
We think the items of charge above referred to are good charges, as well against the sureties as the principal, and are warranted by the report of Commissioner Hunnally and by the evidence of M. S. Yarrington, the treasurer of the company. In the said report, after charging the defendants with $1,263.45 for freights collected between the 3d and 10th of March, 1873 (the said R. B. Kasey having ceased to be the agent of the company on the 3d of March, 1873), the commissioner thus proceeds: “ This commissioner has given much thought to these charges; but when he considered that more than $2,400 has been collected by the company and'credited Kasey after he left the employment of said company, and the testimony of M. S. Yarrington, the treasurer, he saw no objection to such charges being made, more particu*223larly when corresponding credits were given therefor, and he has therefore allowed them.”
And in the deposition of said Yarrington, taken the commissioner on the 20th of June, 1874, in answer to the second question by commissioner, the witness says: “After Kasey left the employment of the company, we determined to fix some period of time to which to charge him, and fixed the 10th of March, 1873, and the bills uncollected by him and left in his office were collected by his clerks and other employees of the company, and as they made such collections and handed over the money, Kasey was credited with the same, as may be seen by the account, such credits amounting to more than $2,400, and the charges to only $1,263.45.”
It thus appears, not only that these áre proper charges against the principal and sureties, but that no loss, in any event, could have been sustained by either of them from making them.
The second exception is as follows:
“ 2. The uncollected bills should be credited to Kasey. The company knew that he was giving credit for freights, and thus sanctioned’ and approved it, and therefore should bear the loss; it should not fall on his innocent securities. When they signed his bond the rule of the company was that no credit for freight should be given. This formed a part of their contract with the company. It was practically incorporated into the bond, and they were protected from this risk; the company changed the rule by allowing credits for freights to be given, and thus increased the risk, and should bear the loss. The securities were not informed of this change, and hence had no means of protecting themselves, and upon eveiy principle, of law and equity are discharged from the loss that was paused by this change in the rule of the company.”
The company did not sanction or approve Kasey’s *224giving credit for freights, nor did the president or treasurer of the company. The president of the company, H. "Wynne, in answer to the third question propounded to him on his cross-examination, viz: “Did you know Kasey was in the habit of delivering articles without PaJmenf °f freights?” says: “Yes, sir, andT knew he did it at his own risk and hazard as regards the freights.” And in answer to the fourth question, “Did you interfere to prevent it ? ” he says: “ I frequently remonstrated with him in regard to the risk which he was assuming, when I thought it was a very doubtful matter in regard to his collecting the freight, and he replied that he could trust the parties, and was willing to risk it.” And in answer to the ñfth question, “Did you speak to him in regard to particular persons, or as to the particular practice ? ” he says: “ I spoke to him as to both, but more particularly in regard to parties I would not have trusted.”
It does not appear that when the sureties signed the bond it was the rule of the company that no credit for freights should be given, nor that there was any change of the rule of the company on this subject after they signed the bond and while their principal was agent of the company. In answer to a question propounded to the witness; Yarrington, on his cross-examination, he says: “ The rule of the company requires that he (the ticket and freight agent) should settle his account for the preceding month by the 5th of each month; Kasey never complied with this rule, and was in arrear on each successive month; on the 23d of December, 1872, he made a payment which closed the account for the month of November, and on the 1st of January, 1873, he was in arrears, as shown in Account A.” And in answer to other questions propounded to the same witness on his cross-examination, he further says as follows: '
*225“ Thirty-seventh question. When did you first become aware that Kasey was in default to the company ?
“Answer. I think it was about twelve or eighteen months before he left; I knew that in the first month he did not settle until four days after the time allowed by the fules, and he continued so for each successive month until he left; his indebtedness increased nearly every month.
“ Thirty-eighth question. Did you inform the president nr directors of this fact ?
“Answer. Yes, sir; I did.
“Thirty-ninth question. Were the securities of Kasey informed of it ?
“Answer. Yes, sir; I cannot say when.
“Fortieth question. You have spoken of accounts rendered to you by Kasey; did you find those accounts generally correct ?
“Answer. Ko, sir; and sometimes I found errors which I corrected; it was frequently the case—almost every month.”
It does not appear .that the company ever changed its rules in regard to the time for paying for tickets and freight. On the contrary, it appears that no such change was made while Kasey was agent for the company. But it would have been competent for the company to have made such change without impairing the liability of any of the obligors to the bond, principal or sureties. It is well settled, as we will presently see, that the rules and regulations existing at the time of the execution of such a bond do not become terms and conditions thereof, unless such an intention be expressed on the face of the bond.
We are therefore of opinion that the second exception is unsustainable.
*226The third exception is as follows:
“ 3. The default occurred in the first month, and was with the knowledge of the company, each month until it reached the amount of the penalty of the bond. bT° information of this default was given to the sure^es’ an<^ they had no opportunity of protecting themselves. It was the duty of the company to have dis-°barged him at the end of the first month. Every subsequent defalcation was with the knowledge and concurrence of the company, and they should bear the loss. It was their duty to the securities to discharge him, and was a part of the contract itself. To allow the defalcation to increase monthly until it reached the penalty of the bond, was not only a breach of the contract, which required that he should be discharged when the first default was known, but it was a fraud on the securities, and vitiates the whole claim.”
The default did not reach the amount of the penalty of the bond, as stated in the third exception. Information of the default was given to the sureties by Yarrington, though he could not say when; and Wynne says that he did not inform the sureties of Kasey of the condition of his accounts until he admitted that he was behindhand; which seems to imply that he did then so inform them. On being asked, “When did you first become aware' that Kasey was in arrears ? ” Wynne answered, “About a year before he left, I was informed by Mr. Yarrington that he was in arrear; but he said he could settle at any time, and would take the receipts of the succeeding month to settle for the preceding one, and would so settle.” If any defalcation of Kasey was with the knowledge of the company, certainly there was none with its concurrence, or that of its president, treasurer or auditor.
Certainly there was no fraud nor connivance on the part of the company, or of its president, treasurer or *227••auditor in any transaction with Ilasev in regard to his ° “ ° •agency aforesaid for the company. The said president and treasurer seem to have acted in that regard with ■eye solely to the interest of the company, which was at the same time the interest of the sureties. If they refrained for any time from removing him from office, or otherwise proceeding against him, it was only with the hope of enabling and inducing him to pay what he •owed in exoneration of his sureties. It does not appear and is not pretended that the company entered into any contract or had any understanding with Kasey wdiich had the effect of tieing its hands for a moment and preventing it from enforcing the obligation of himself and his sureties, or removing him from office whenever it might be its pleasure to do so; nor that the company •ever released any lien which it may have had (but m fact it had none) for the security of said bond or the indemnity of the said sureties. It does not appear that the said president or treasurer had any acquaintance, •certainly the company itself could have had none, with the said Kasey at the time he was received in its employment. The sureties, on the other hand, no doubt knew him well and were his friends. They had confidence in him, and were willing to join him in the bond; and by ■offering to do so, and actually doing so, they enabled him to obtain the agency aforesaid. They ought to have looked to their interest and made enquiries and taken •care of themselves in the matter, instead of waiting for two or three years, until their principal ivas turned out ■of office and a demand ivas asserted against him for his default therein, and then setting up as a defence for themselves the ground that their, principal had not been ■compelled by the company to settle his accounts with it more promptly.
We are of opinion that the third exception is unsustainable, and that-it will so fully appear from the authorities *228to which we will l’efer, after noticing the next and last exception, which is as follows:
“4. The dealings with Garber, charging Kasey with the money received from Garber. This was no part of his contract. He was general ticket and freight agent to sell tickets and receive money and to collect freights. He had nothing to do with Garber. He did not place-the tickets in his hands, nor did he receive the money from him. That he is charged with all the tickets sold by Garber, is admitted and proved. And the only proof that he has been credited is a sweeping and general assertion to that effect; no item of credit can be pointed out. But it is said that these credits are embraced in and formed a part of other credits, which items, and what proportions of each item, the witness is unable to state. This commingling of debts and credits, which properly form no part of the accounts, is sufficient to-vitiate the claim. But there is a more fatal objection. It increases the risk of the principal contractor without the consent of the sureties, and that discharges them; for it.is a well-settled principle that any act of the party with whom the contract is made, which increases the risk of the promiser without the consent of his sureties* vacates the promise as to them. The period of the tenure of his office was indefinite, with power in the company to dismiss; and this they were bound to exercise with due regard to the interest of the securities.”
The matter of this exception is fully explained in the deposition of Yarrington, taken June 20th, 1874, in the following question and answer:
“Third question by commissioner. Many enquiries have been made of you in regard to tickets delivered to Mr. Garber for sale and charged against Kasey; please explain more fully how this was ?
“ Answer. Mr. Garber was engaged in the business of transporting passengers and their baggage from one *229depot to another, and those leaving the city from their residences to said depots, and an arrangement was made with him for the sale of tickets by the president of •company for the purpose of facilitating passengers, and •only the tickets actually sold by said Garber were charged to Easey, and I am fully satisfied that every ticket sold by Garber has been accounted for by him and Easey credited for the same; and upon reflection, since my deposition was given a few weeks ago, I am satisfied Easey knew of the arrangement, for he was in the habit of receiving Garber’s checks for the money and depositing them in bank to the credit of the company.”
We think that the sureties sustained no injury from the transactions referred to in the fourth exception, and that the said exception is therefore unsustainable.
Easey’s office was that of general ticket and freight agent. That Garber was employed by the company to lielp him to sell tickets certainly did not injure him or his sureties if they sustained no loss, as they certainly did not, on his account. The whole account of such agency, including that of Garber, was kept in Easey’s name, because the company wished to have but one such agent. But this was done with the consent of Easey, and his sureties can make no valid objection on that account. Easey no doubt, from necessity, had several assistants in the execution of his agency. That Easey might possibly have sustained loss from the default of Garber, which he did not in fact sustain, can be no good .ground for releasing the sureties.
Having expressed our views on all the questions arising in the case, we will now notice the authorities which have been referred to, or many of them, some of which we think fully sustain those views, while none seem to be in conflict therewith.
They are: United States v. Kirkpatrick, 9 Wheat. R. 720 ; Same v. Vanzant, 11 Id. 184; Same v. Nicholl, 12 Id. 505;. *230Dox, &c. v. Postmaster-General, 1 Pet. 318; Jones v. United States, 18 Wall. U. S. R. 662; The People v. Jansen &c., 7 John. R. 331; The People v. Russell, 4 Wend. R. 570; Albany Dutch Church v. Vedder, &c., 14 Wend. R. 165; Board of Supervisors v. Otis, &c., 62 New York R. 88; Atlantic & Pacific Tel. Co. v. Barnes & al., 64 Id. 385; The Commonwealth v. Brice, 22 Penn. St. R. 211; Pittsburg, &c., Railway Co. v. Shæffer, 59 Id. 350; 2 J. J. Mar. 564, Taylor v. Bank of Ky.; The Trent Navigation Co. v. Harley, 10 East. R. 34; Burgess v. Eve, 13 Law Rep., equity cases, 450; Phillips v. Foxall, 7 Law Rep. Court of Q. B. 666; Sanderson v. Aston, 8 Id. Court of Exchequer, 73; Holmes v. Commonwealth, 25 Gratt. 771.
In The People v. Jansen, &c., supra, decided in 1811, in an action brought against a surety on a bond given for the faithful discharge of the duty of a loan officer under the act therein mentioned, it was held that the surety might set up in his defence the laches of the supervisors in not discharging and prosecuting the loan officer for his first default, but suffering him to continue after repeated defaults for upwards of ten years, when the loan officer became insolvent, and without prosecuting the officer as required by the act, and where no notice was taken of the defaults of the principal until after the death of the surety, this laches of the supervisors was held to be a good defence, especially in a suit againt the heirs of the surety. The facts of that case were decidedly more favorable to the surety than those of this, yet that case has since been disapproved and overruled. See 9 Wheat. R. 720; 4 Wend. R. 570; 14 Wend. R. 166, 170, 171;, 62 N. Y. R. 95, supra.
In Albany Butch Church v. Vedder, &c., supra, decided1 in 1835, in which the unanimous opinion of the court was delivered by Savage, C. J., it was held that “the sureties had no reason to place any reliance upon the *231by-law requiring the treasurer to account every six “ i o ... months; that was a mere private regulation which did not form any part of the contract with the sureties.”
In Board of Supervisors v. Otis, &c., supra, decided in 1875, it was unanimously held by the court of appeals of New York (Church, C. J., not sitting,) that “ the sureties upon the official bond of the county treasurer are not discharged from their obligation by any neglect, omission of duty, unfaithfulness, or malfeasance on the part of the'board of supervisors in their dealings with the principal in the bond. . The board of supervisors and the county treasurer are alike agents of the county, and the acts or neglects of one agent cannot affect the liability of another, or of his sureties to the common principal.”
In The Pittsburg, &c., Railway Co. v. Shæffer & al., supra, decided in 1869, the rules of a railway company required from the cashier monthly reports and payments; the bond of the cashier and his sureties was conditioned that he should faithfully discharge his duties as required by the rules, a copy of which he acknowledged to have received; the cashier neglected to account and pay over for six months, when he was dismissed, and the sureties were not notified of his default for three months after-wards. It was held that they were not discharged. The unanimous opinion of the court in the case was delivered by Sharswood, J., who, after making a quotation from the opinion of Story, J., in the case cited, supra, from 9 Wheat. 720, proceeded thus: “The reasons so clearly stated by Story, J., in regard to officers of government, apply with equal force to officers of corporations. Corporations can act only by officers and agents. They do not guarantee to sureties of one officer the fidelity of the others. The rules and regulations which they may establish in regard to periodical returns and payments are for their own security, and not for the benefit of the sureties. The sureties by executing the bond became re*232.pousible for the fidelity of their principal. It is no collateral engagement into which they enter dependent on contingency or condition different from the engagement of their principal. They become joint obligors w^h same bond, and with the same condition underwritten. The fact that there were other unfaithful officers and agents of the corporation who knew and connived at his infidelity, ought not, in reason, and does not in law or equity, relieve them from their responsibility for him. They undertake that he shall be honest though all around him are rogues. "Were the rule different, by a conspiracy between the officers of a bank or other moneyed institution, all their sureties might be discharged. It is impossible that a doctrine leading to such consequences can be sound. In a suit by a bank against a surety on the cashier’s bond, a plea that the cashier’s defalcation was known to and connived at by the officers of the bank, was held to be no defence. Taylor v. Bank of Kentucky, 2 J. J. Marsh. 564.”
What was said by Judge Robertson, who delivered the opinion of the court in the case last referred to, is very appropriate to this case, but need not be here repeated.
In Phillips v. Foxall, supra, decided in 1872, a case very much relied on by the counsel for the defendants in error in their argument of this case, it was held that on a continuing guarantee for the honesty of a servant, if the master discovers that the servant has been guilty of dishonesty in'the course of the service, and instead of dismissing the servant, he chooses to continue him in his employ without the knowledge and consent of the surety, express or implied, he cannot afterwards have recourse to the surety to make good any loss which may arise from the dishonesty of the servant during the subsequent service. The ground for the relief of the sureties in that case was, that the servant, in the course of his service, was guilty of a fraud, which came to the *233knowledge of the master, and for which he might, and in justice to the surety, ought to have dismissed the serwant; but instead of doing so, he concealed the from the surety, and continued to employ the servant thereafter. Under these circumstances it was held that the surety was not liable for any default of the servant «/ « committed thereafter in the course of his employment. That such was the ground of that decision is further shown by the dictum of Sir R. Malins, V. C., in Burgess v. Eve, 13 Law Rep. Equity Cases, 450, decided about the same time, which dictum was quoted and relied on by the judges of the court of queen’s bench in Phillips v. Foxall, supra; and is further shown by the case of Atlantic & Pacific Tel. Co. v. Barnes, &c. supra, decided by the court of appeals of New York in 1876. It is true that in the case of Sanderson v. Astor, supra, decided by the court of exchequer in 1873, one of the barons, Kelly, C. B., in his opinion, does say that “ the case of Phillips v. Foxall clearly shows that if any defaults or breaches of duty, whether by dishonesty or not, have been committed by the employed against the employer, uuder such circumstances that the employer might have dismissed the employed, the surety is entitled to call on the employer to dismiss him. But none of the other judges in that case use any such expression, and the meaning of the judges in the former case seems to be plain enough, and to be correctly expounded by the court of appeals of New York as aforesaid.
But in the case under consideration there was certainly no fraud nor misconduct on the part of the president or treasurer, or any other officers of the Richmond and Petersburg Railroad Company, much less on the part of the company itself, in the dealings aforesaid with R. B. Kasey, and there is no ground on which his sureties *234are entitled to be discharged according to any of the cases referred to.
¥e are therefore of opinion that the judgment of the circuit court in favor of the said sureties is erroneous and ought to be reversed and annulled, and in lieu thereof a judgement rendered, as well against the said sureties as the principal debtor, for the sum of $2,319.55,. with interest thereon from April 1st, 1873, and costs.
The judgment ivas as follows:
The court is of opinion, for reasons stated in writing and filed wfith the record, that the said circuit court erred in rendering judgment in favor of the sureties of Robert B. Kasey, against the plaintiff, and in not rendering judgment as well against the said sureties as the said principal for the sum of money and interest ascertained to be due by him to the plaintiff by the report of Commissioner Kunnally, and the costs of the plaintiff' in the action. Therefore it is considered that so much of the said judgment as is above declared to be erroneous, be reversed and annulled, and that the defendants in error, the said sureties, M. M. Kasey, R. H. Whitlock, Peter J. Crew, Silas L. Johnson and C. B. Lipscomb, pay to the plaintiff in error, the Richmond and Petersburg Railroad Company, its costs by it expended in the prosecution of its writ of error aforesaid here. And this court, proceeding to render such judgment as the saidi circuit court ought to have rendered, in lieu of so much of the said judgment of the said circuit court as is above declared to be erroneous and reversed and annulled, it is further considered by the court that the plaintiff recover against all the defendants, principal and sureties, to-wit: the said Robert B. Kasey, M. M. Kasey, R. H. Whit-lock, Peter J. Crew, Silas L. Johnson, and C. B. Lipscomb, twenty-three hundred and nineteen dollars and *235fifty-five cents, with interest thereon from April 1st, 1878, until paid, and the costs by the said plaintiff expended in the prosecution of this action in the said circuit court.
Which is ordered to be certified to the said circuit court of the city of .Richmond.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481791/ | Bouldin, J.
delivered the opinion of the coui't.
This case cannot be distinguished, in principle, from the case of Stover, assignee, v. Hamilton & others, 21 Gratt. 273. The contracts in both cases are, in substance, the same. In this case, as in that, the obligation was entered into within the period embraced by the statute for the adjustment of Confederate liabilities, and was given for a loan of Confederate States treasury ■notes. In neither case was the debt to bear interest *612until payment should be demanded, and in both alike—but for the stipulation in the one case for a “reasonable time,” and in the other for “three months notice”—the debts would be payable on demand; for this court is unable to appreciate the distinction attempted to be drawn at the bar between an obligation payable “on demand” or “when demanded,” and one payable “on call” or “at any time called for.” In each case, under the laws of Virginia, the debt is payable immediately, and the obligors, without formal demand, are bound— unless otherwise provided on the face of the bond—to pay interest from the date of the obligation, and are entitled to make payment at any time after the execution, of the bond.
But it has been very earnestly contended that, by reason of the words “after three months’notice,” inserted in the contract in this case immediately after the words “at any time called for,” this obligation has been wholly withdrawn from the influence of the general rule, and is only payable at the pleasure of the obligee. There might be some force in the argument, had that provision, as was the case in Boulware v. Newton, 18 Gratt. 708, been inserted at the instance and for the benefit of the obligee. But such was not the case here. On the contrary, the stipulation for a short notice was, as was a similar provision in the case of Stover, assignee, v. Hamilton & others, inserted at the instance and for the benefit of the obligor, so as to make it operate not as a restriction upon him, but as a privilege secured to him and it is a familiar rule of law, that a party may always waive a condition or stipulation in a contract inserted solely for his benefit. Accordingly in Stover v. Hamilton & others, which in this respect is not distinguishable-from the case before us, it was the unanimous judgment of the court that, notwithstanding the stipulation for “a reasonable time,” the debt as to the obligor was payable instanter (that stipulation being inserted for *613Ms benefit), and was properly scaled as of the date of the contract. That judgment is fully approved by this ■court.
The court is of opinion that the contract in this case was, according to the true understanding and agreement of the parties, to be fulfilled and performed in Confederate States treasury notes; that as to the obligor, it was payable at any time from its date, and therefore, that the jury was right in scaling the debt as of the date of the obligation.
The judgment must be affirmed, with costs and damages to the appellee.
Judgment appirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481792/ | Anderson, J.
delivered the opinion of the court.
A chancery suit w7as brought in the Circuit court of Rockingham county, in the year 1856, by the widow and heirs of Abraham Beery, for a partition of the lands, of which he died seized. The record of the suit has been lost or destroyed, or burned up, with the other records of the court, and w7e have only secondary evidence of what was done. There was a decree for the sale of thé land, and the sale was made in February 1857, by John C. Woodson, who was appointed a commissioner for the purpose ; which sale was reported to and confirmed by the court. The terms of the sale-were, one-third down, and the residue in five equal annual instalments. A. B. Iriek, the appellee, in connec*620tion with one Stevens, whom he afterwards bought out, was the purchaser, at the price of $12,437.08.
This suit was brought by the widow and heirs, to recover what is still due them of that fund, and to subject the land to its payment.
The original suit having been brought for partition by sale, it was one of the first duties of the court to determine what should be the widow’s share in the proceeds. That was precedent to a partition among the heirs. They allege, and the commissioner proves, that one of the terms of the decree was, that one-third of the purchase money should be set apart, the interest on which 'should be paid annually to the widow, during her life, in lieu of dower; a disposition which seemed to be satisfactory to all parties concerned.
Accordingly an agreement seems to have been made between the widow and heirs and the purchaser, with the sanction of the commissioner, that he should pay the two-thirds of the cash payment, and of the deferred payments, to the heirs, as they were respectively due, and retain in his own hands the remaining one third ; and to pay interest thereon annually to the widow, during her life ; the same to be secured, together with the deferred payments to the heirs, by a lien upon the land. Irick in his answer says, that he purchased at the sale, “ under the impression, and from statements made by the commissioner, that one-third of the purchase money could be retained during the life of the widow ; that such were not the terms of the sale, but that it was likely such an arrangement could be made.” And it seems that such an arrangement was made. .The down payment with interest from the date of sale to the 8th of May 1857, when it was payable, amounted to $4,203.73. Of this sum, he paid only two-thirds—the part coming to the heirs; and for the remaining third, gave his bond, the interested! which the widow was entitled to. For each of the deferred payments he gave two bonds, one *621for $1,105.52 for the heirs ; and the other for $552.76, on which interest was to be paid annually to the widow. And it appears that he paid up regularly to the heirs their portion, as the bonds fell due, and the interest annually, to the widow until May 1862, upon the bonds set apart as a fund for her. Commissioner Woodson proves, that Irick generally made payment to the heirs, took their receipts and the widow’s receipt for the interest, which he brought to him, and took up the bonds, and was credited for the interest paid to the widow. He also testified that he never considered that he had any control of the principal of the part set apart for the widow, “ or that he had any right to collect the same, or in any way to interfere with it or control it, and never did.” Why would he not have had the right to collect it, if there had not been an agreement, as is alleged, as to the investment ; or a decree to that effect ?
The court is of opinion, from the adjustment made hy the commissioner, and the widow and heirs, with the purchaser ; from the subsequent acts of the parties, and from the testimony of the commissioner, that it was mutually agreed by them all, or so provided by the decree, that one-third of the purchase money should remain in the hands of the purchaser, during the life of the widow, as an invested fund, secured by a lien upon the land, the interest on which was to be paid to her annually, in lieu of dower.
It appears from the record, that all parties were satisfied with this arrangement, and that no change was desired, until October 1862. The circulating medium had then become greatly inflated, by the liberal issue of Confederate treasury notes, and had become greatly depreciated, rating at 2 J for 1 in relation to gold as the standard. It was then that Mr, Irick conceived the idea of relieving himself of this indebtedness, by discharging his obligations in this depreciated currency.
ne did not propose it to the widow or heirs, the only *622persons besides himself who were interested, to whom he had been making the payments theretofore; and with' ' whom his agreement to retain the fund had been made. They had the right to receive it, if they were all willing and were sui juris. Hor did he apply to Commissioner "Woodson to receive it. It seems that Woodson was authorized to collect the other bonds, and the interest on the widow’s fund, and needed no further order of court to confer on him that authority. Why could he not in like manner collect the other bonds for the purchase money, which bad not hitherto been collected, but only the interest annually for the widow, if there had been no agreement or provision of the decree, inhibiting their collection, and placing them on a different footing from the other bonds ? The fact that the appellee deemed it necessary to apply to the court for an order, shows that he did not consider that he had a right to pay it without such order, and consequently was restricted in his right to pay, by his agreement with the other parties, or by a provision in the decree. He does not pretend that he applied to the commissioner to receive payment. But he says that he paid the fund to the receiver of the court, under an order of the court. He does not seem to have thought that he could pay it to the commissioner who was authorized to receive payment of the other bonds, and of the interest for the widow ; but says in his deposition, “ I gave the papers to Mr. Woodson, whom I presumed would attend to it; or rather Mr. W oodson had the papers, bonds, &c., and said (he does not now presume) he would attend to the matter before the court.” But Mr. Woodson does,not seem to recollect any thing about it. He says he has no recollection of being at the Circuit court for Rockingham, either in May or October 1862 ; and has no recollection of what was done at those courts. And Henry C. Beery testifies, that he asked Mr. Irick, whether he had consulted Mr. Woodson on it, and he told him that he had not. It *623may have been the impression of Mr. Irick, that he had applied to Mr. Woodson to attend to getting the order for him : but he seems not to have had a distinct recollection when he gave his deposition ; and the other evidence shows that he was probably mistaken. It is very evident that the motion in court was not made by Mr. Woodson. By whom it was made does not appear. It is not material in the decision of the cause to know ; but in some aspects of the cause, it might have been [to the advantage of Mr. Irick to have shown
But of this there is no doubt, that the motion was made without notice to the widow and heirs; and that the order directing him to pay the money into the hands of the receiver of the court, was made not only without their consent, but without their knowledge. The widow seems to have known nothing of it in May 1863. She then sent to him for her interest. When asked for it by her agent, he inquired of him if he would receive Confederate money. Being answered in the negative, he did not even then inform him that he had paid the principal and interest to the receiver of the court, under its order, but suffered him to leave him under the impression, from what he said, that he still held the fund. And the widow and some of the heirs seem not to have been better informed (and it does not appear that any of them were), until after the termination of the war. There may have been no design on the part of the appellee to conceal the fact from the widow and heirs. And his withholding it from the agent of the widow, when he ought to have known that he was ignorant of it, may have been from want of reflection, and not from a design to withhold from the widow and heirs information which might lead to the institution of proceedings to undo what had been done. The court would be slow to believe that the order of court had been surreptitiously obtained; yet they cannot be blind to the proofs in the cause, which look that way, though not deemed suffi*624eient to justify the imputation. But it is evident that the appellee obtained the order upon an ex parte motion,, without the consent or knowledge of the widow and 0 heirs, and without notice to them; and that they had n0 opportunity to resist the motion, which they doubtless would have done, and successfully, if they had had notice of it.
The court is of opinion, whether the investment of the widow’s fund, as stated, was made by the decree of the court, or by the agreement of the parties, that no-subsequent order upon the motion of the debtor, who-was not a party to the suit, changing that investment, is binding upon the widow and heirs, unless made by their-consent, or upon notice to them. TJpon one hypothesis it was to set aside a decree of the court; upon the other, it was to rescind an agreement—neither of which could be done on motion without notice.
The court is, therefore, of opinion that the order of the court authorizing the debtor, on his motion, to change the investment of the widow’s fund and to pay it to the receiver of the court, being made without the-consent of the widow and heirs, or notice to them, is-not binding on them and cannot discharge the appellee from his obligations, or release the land from the vendor’s lien.
The court is further of opinion that the payment made-by the appellee to the receiver, being under an order of court which is null and void as to the widow and heirs, the relation of the debtor to them is as if such payment had not been made; and their right of action to have and demand the same of their debtor is direct and immediate, and no question as to the liability of the receiver-can be interposed to impede its assertion. The liability of the receiver, or the extent of his liability, are questions between him and A. B. Iriek; and do not concern the appellants. But whilst this is so, the receiver, having been made a party to this suit, if he is liable to Trick, *625the latter might have had a decree over against him, if he had asked it. But the court below has not passed upon the question of the receiver’s liability to Irick, and has not been asked to do so. It would seem to be most proper, therefore, that this court, which has only appellate jurisdiction—though in a proper ease it might do so—should not undertake, primarily in the state of the pleadings in this case, to decide upon their reciprocal rights and liabilities; but the parties should be allowed, when the cause goes back to the lower court, to litigate those matters, if they think proper, before that court, that the respective rights and liabilities of the said parties as to each other may be settled and determined in this suit.
The court is of opinion that so much of the decree of the Circuit court, of November 23, 1867, as dismissed the plaintiffs’ bill, so far as it seeks to charge A. B. Irick and M. IT. Effinger with liability for the sum of $4,269.89, paid by the said Irick under the decree of October 1862, to the receiver and invested by him in Confederate States bonds, is erroneous, and that the Circuit court did not err in granting the plaintiffs leave to file their bill of review.
And the court is further of opinion, for reasons already stated, that the decree of the 25th of November 1870, is erroneous in re-affirming the decree of November 23d, 1867, and in dismissing the bill of review; and that the same, as also the decree of the 23d of November 1867, so far as it dismisses the bill against Irick and Effinger, must be reversed.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the order of court of October 1862, authorizing A. B. Irick to pay to the receiver of the court the fund in his hands, which had been set apart for the widow of Abraham Beery during her life, *626upon w'hich she was to receive the interest annually, in lieu of dower, was not binding on the widow and heirs, but was null and void as to them ; and that the payment made by the saidaIrick to the receiver of the court, under said order, does not discharge his obligation to the.w'idow and heirs, or release the land from the vendor’s lien-; and that the appellants are entitled to a decree against the said Irick for the principal of said bonds which had been set apart for the widow, to be safely invested by the court during the lifetime of the widow : and that she is also entitled to a decree against him for the interest which ispn arrear and unpaid upon said bonds, subjecting the land to the payment of both principal and interest with a proviso, that if the said Irick shall pay up the interest due and in arrear to the widow in a reasonable time, to be designated by the Circuit court, and shall pay the balance which the said court may ascertain to be due on the bonds, which were set apart for the heirs, and shall execute his bond for the principal sum w'hich was set apart as a fund for the lifetime of the widow, and punctually pay the interest accruing thereon annually, to the widow7 during her life, then and in that case the execution of said decree requiring the pa/meut of the principal sum aforesaid set apart for the widow7, shall be suspended during her life and for six months after.her death, but shall be a charge upon the whole land, for which the said debt, as a paid of the purchase money, was originally contracted by the said Irick.
It is, therefore, decreed and ordered by the court, that the decree of November 28, 3867, so far as it dismisses the plaintiffs’ bill against Irick and Effinger, and the decree of November 25, 1870, re-affirming said decree and dismissing the plaintiffs’ bill of review, be reversed and annulled ; and that the appellee, Irick, pay to the appellants their costs expended in the prosecution of their appeal here. And the cause is remanded to the Circuit court of Augusta county, to be proceeded w7ith in con*627formity to the principles of this decree; in which proeeedings the said Irick and Effinger, or either of them, if they, or he, desire it, may litigate the question of liability of the latter to the former, and the extent of such liability, if there be any, to be settled and determined by the said Circuit court, and to be decreed accordingly. Which is ordered to be certified to the said Circuit court of Augusta county. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481795/ | Moncure, P.
delivered the opinion of the court.
The main, though not the only, questions arising in this case are, first, whether the decree pronounced by this court on the 28th day of August 1858, declaring 4t that the assignment purporting to have been made by the testator, James B. Campbell, on the 1st day of October 1852, to his brother, Thomas Campbell, and relied upon in the answers as constituting a valid gift of the notes and bonds of the said testator, did not operate as a valid gift thereof in the lifetime of the testator, so as to bar the widow from recovering her distributive share thereof, she having renounced the provisions made for her by the will of her husband,” is or is not a final and conclusive decision of the question as to such validity in this case ? And if not, then, secondly, whether, upon the whole case as it now stands, that decree was right or wrong ?
The second of these two questions was very fully argued by the counsel in the cause ; and the counsel for the appellees earnestly and ably contended that, treating the question as res integra, and looking at all the testimony in the cause, including that of Benjamin B. Campbell, supposing him to be a competent witness, this court would have to make the decision now which it made when the case was formerly before it; while, on the other hand, the counsel for the appellants, just as earnestly and ably, contended for the contrary. If we had to decide the question thus at issue between the counsel, we might have some difficulty in doing so. But we are relieved of this difficulty by the views we entertain of the question first above stated. And we will now proceed to present those views :
Then, recurring to the first question, we enquire *666whether the said decree of this court of the 28th day of August 1858, is or is uot, a final and conclusive decision as aforesaid ? Or, in other words, whether this court can now reverse or alter that decision ?
In White v. Atkinson, 2 Call. 376, decided in 1800, it was held that the court of chancery cannot make any alteration in the terms of a decree of this court certified thither, in order that a final decree may be made in the cause.
In Price v. Campbell, 5 Call. 115, decided in 1804, the same doctrine was held. Tucker, judge, said: “ The single question is whether the chancellor could, upon the same facts, change the decree of this court ? The case of White v. Atkinson, 2 Call. 376 (supra), decides that he could not; and I approve of that decision. It makes no difference that it does not appear, that the mistake was noticed at the time of affirming the former decree ; for the point was fairly presented upon the record, and it cannot be admitted that the court did not advert to it. A contrary doctrine would overthrow the whole theory of the law ; which supposes everything contained in the record to have been decided on ; and has wisely established the rule that interest reipublicae res judicalas non rescindí.” Carrington, Judge, was of the same opinion; and said the decision in White v. Atkinson “ ought to be adhered to, or there will be no end to controversies ; and parties will never be certain as to the result of the suit.”
In Campbell v. Price, &c., 3 Munf. 227, decided in 1812, it was held that the court of Chancery cannot correct by bill of review any error apparent on the face of the proceedings in a decree which has been affirmed by the Court of Appeals. It had before been held (in Price v. Campbell, 5 Call. 115, cited supra), that such an error could not be corrected on motion. The error here was most palpable, the sum decreed being currency, when it should have been sterling money.
*667In the Bank of Virginia v. Craig, 6 Leigh 399, it was held that this court cannot' examine the propriety of a decree made at a former term inter partes, nor set aside such a decree of a former term, on the ground that it decided matters coram non judice at the time. This was a case of very great hardship, a decree having been rendered by this court against a surety who was no party to the appeal, and as to whom no decree had been rendered by the court below. The distinguished counsel for the surety moved the court at a succeeding term to set aside the decree; and he took this distinction : that though a decree made in a cause and between parties before the court, and which the court had jurisdiction to make, could not be set aside at a subsequent term, yet a decree made in respect to matters or parties coram non judice, a decree, in other words, which the court had no jurisdiction to make, might be set aside at a subsequent term. But this court overruled the motion on the ground that it could not then set aside the decree entered at the former term, whether it was prematurely entered or whether it was objectionable on its merits or not.
■ In Towner v. Lane's adm'or, 9 Leigh 262, decided in 1838, upon a petition for a rehearing of a cause in this court, at a term subsequent to that at which the court has entered a decree, but before that decree has been certified to the court beloio, on the ground that the depree was founded on a mistake in point of fact; the questiou was whether it was in the power of the court to allow the rehearing? And upon this question four judges present were equally divided in opinion. The rehearing was therefore refused. Judges Oabell and Brooke were for granting a rehearing in the case, because the decree of this court had not been certified to the court below, and they considered the case as still in the power and under the control of this court. Judges Parker and Brockenbrough were opposed to a rehearing, notwithstanding the decree had not been certified to the court below. *668Some of the judges reviewed the authorities, both in England and in this state, on the subject, and the remarks of some of them are very striking and appropriate to the case we now have in hand for decision. Judge Parker said : “ It is just and expedient that there should be some termination to litigation. Particular cases of hardship must yield to general rules of convenience. "We must fix some period at which cases shall be considered as finally ended, or this court will be overwhelmed with applications for rehearing, and parties will be kept in continual uncertainty of their rights. Fix on any we may, individual injustice may be done; but upon the whole, the public good will be promoted by avoiding the mischiefs of uncertainty and long protracted law suits. This is one of the chief reasons why we adhere to erroneous precedents. Whatever the period may be, it ought to be certain, well defined and inflexible, or the evil is not remedied. ” After assigning reasons for fixing the end of the term as the period, he said : “ For these reasons I should incline, on principle, to say that the end of the term should be the end of the litigation, so far as this court is concerned ; and I think this rule is established by authority and he then proceeded to review the authorities.
Judge Brockenbrcugh, whose opinion immediately follows that of Judge Parker, said: “I concur in the opinion just expressed. I have always understood that when the term of the court ends, the case is no longer within the breast of the court, but constitutes part of the unchangeable records of the court. If it is after-wards deemed to be within the discretion of the court to reopen the record, what limit is to be placed to that discretion ?” After showing that the same reason which would justify the court in granting a rehearing at any time before the decree is certified to the court below, would also justify it in so doing, even after proceedings had in that court, to enforce that decree, he proceeded *669to say: “ At that moment a discovery is made that the judgment or decree of this court is palpably erroneous ; ought not this court, in the exercise of the discretion which is claimed for it, to reopen and review the cause, and correct its own mistakes ? Certainly it ought to do so, on the principles contended for. But we have a recent and express authority that this cannot be done. In the case of the Bank of Virginia v. Craig, a decree was entered against the sureties in a guardian’s bond, who, although they were parties in the court of Chancery, were neither appellants nor appellees in this court. An execution was issued, and Mr. Hooe, one of the sureties, had given a forthcoming bond. He applied to this court for a rehearing at a subsequent term ; and surely if the court had had the discretion which is now contended for it would have been granted to him, for a case of greater hardship can hardly be imagined. Yet the court refused to rehear it, on the ground that it could not now set aside the decree entered at the former term, whether it was prematurely entered or whether it was objectionable on its merits or not.”
These seem to be all the material decisions of this court on the subject we are considering, to which we have been referred by counsel, or which we have met with, and they seem conclusively to show that after the end of the term of this court at which a judgment or decree may be rendered by it—or at all events, after such judgment or decree has been certified to the court below, it is too late to have the ease reheard in this court, upon any ground of error of law or of fact apparent upon the face of such judgment or decree, or of the record on which it was rendered. "Whether the rule be founded on principle, or be merely a rule of practice, it is alike absolute and inflexible. Public policy, if not necessity, requires that it should be strictly enforced, even in cases of the greatest individual hardship. The law has been settled by these cases, and has-*670ever since been acquiesced in, and hence no more recent cases on the subject are to be found in our reports. Applications for rehearings after the end of the term have often since been made to this court, but have always been refused, and there the cases have ended. There is a recent statute authorizing the court, under certain circumstances, to rehear and review a case decided at the preceding term. Acts of Assembly 1869-70, p. 228, chap. 171, § 10. But that statute has no bearing on this case.
According to the 'authorities before referred to, we think it very clear that we have now no right to review and reverse the decree pronounced by our predecessors in this cause on the 28th <5f August 1858, more than fourteen years ago, and that we would have no such right, even if it were plain that that decree is erroneous. We have seen that this court has refused to review and reverse, or even amend, its own decree, made at the nest preceding term, although the error in such decree was palpable and occasioned great injustice, and although it obviously pi’oceeded from a mere oversight of the court. Here the cause was first decided in the court below on the 3d of October 1856, more than two years after the institution of the suit, when the parties had had the fullest opportunity of preparing for the trial, of which opportunity they fully availed themselves. After the appeal from that decision had been pending for a year, this court, on the 28th of August 1858, upon full and able argument, pronounced a decree reversing that of the court below, and settling forever, as was supposed, the principles involved in the cause, and leaving only an ordinary administration account to be settled, and the widow’s distributive share of the personal estate of her husband to be assigned to her or her representatives. And now, after the lapse of fourteen years since that decree, this court is asked to review and reverse it, upon evidence which, to say the most of it, and including as *671part of it the incompetent testimony of B. B. Campbell, an interested party and the chief actor in the transaction from which the controversy arose, presents only a case ■of doubt as to^the correctness of that decree! A bare statement of the case would seem to be an all-sufficient answer to the application.
But it is contended by the learned counsel of the appellants, that while the decree of this court, of the 28th ■of August 1858, would have been conclusive, even upon the court itself, if it had been a final decree, yet that it was interlocutory only, and though conclusive upon the court below as long as it stands, it may be, and ought to be, reversed by the Court of Appeals itself for error ■on the face of the decree and record as they then stood.
"We know of no warrant for any such distinction as is thus attempted to be drawn between what are called final and interlocutory decrees of this court; and we have been referred to no authority in support of this view. As was correctly said by the learned counsel of the appellees in their argument of this case, all the judgments and decrees of this court are final, and none of them are interlocutory; at least, when they (as they almost always do) dispose of the whole case involved in the appeal; even though the appeal be from an interlocutory decree, and even though the cause be remanded to the court below for further proceedings to be had therein. There may possibly be an interlocutory decree in the Court of Appeals, as where that court disposes only of a part of the case at one term, and reserves it for further and final action at another. We have something like an example of such a case in The Commonwealth v. Beaumarchais, 3 Call. 107, 151, referred to by Judge Parker in Towner v. Lane's adm'r, 9 Leigh, 262, 280. But such cases must be extremely rare. The decree of this court is certainly not interlocutory, and is none the less final because it is upon an appeal from an interlocutory de*672cree of the court below.. The latter decree does not impart its interlocutory nature to the decree of this court, which affirms or reverses it in whole or in part, or adjudicates the principles of the cause. The case made for the Court of Appeals by an appeal from a decree of the court below, whether final or interlocutory, is, as to the Court of Appeals, a complete case in itself, :and the decree of that court therein is final and conclusive between the parties, as well upon that court Itself as upon the court below; and the Court of Appeals can do nothing more in the course of the same litigation until a new and different appeal is brought up to it from some decree of the court below, rendered in the cause upon subsequent proceedings in that court; and then the-Court of Appeals can only review and revise that decree without interfering with its own former decree. The two appeals are different and independent cases in this-court. The decision of this court is not only final in regard to the decree appealed from, but also in regard' to all the prior orders and decrees in the case between themppellants and appellees. An appeal from a decree brings up the whole proceedings in the case prior to the decree; and either party can have any error against him in those proceedings corrected without the necessity of a cross a ppeal in any case. If a party fail to complain of any stnch error, and a decree be made upon the appeal, without'' correcting or noticing the error, such party will be concluded by the decree from appealing afterwards. Burton v'. Brown, not yet reported. See also Walker's ex'or., v. Page, &c., 21 Gratt. 636.
The cot msel for the appellants did not contend that this court could, or would, upon mere motion or petition, review am I reverse its decision at a former term; but contended that the court could, and in a proper case should, do -.so upon an appeal from a subsequent decree of the court below in the same case. It seemed to be supposed by the learned counsel that an appeal from a *673subsequent decree would bring up the whole case to this court, and thus empower it to make such decree in it as justice might require. Now that is not the true theory. Such an appeal bi’ings up only the proceedings in the • case subsequent to the decision of this court on the former appeal. And the function of this court in the case is prescribed by section 23 of chapter 182 of the Code, as amended by the act approved June 23d, 1870, which declares that “The appellate court shall affirm the judgment, decree or order, if there be no error therein, and reverse the same, in whole or in part, if erroneous, and enter such judgment, decree or order as the court whose error is sought to be corrected ought to have entered, affirming in those cases where the voices on both sides are equal; provided, &c.” This is the only authority conferred upon the court in regard to the appeal, and it contains no power to interfere with a decree of the court upon a former appeal. Such a decree is coram non judice.
~We are, therefore, of opinion, that the former decree of this court in this cause ought not to be reversed, and cannot be reversed, for error on the face of the decree and record as it then stood, even supposing that such error actually exists.
But however that may be, it was further contended by the counsel for the appellants “ that for new matter, not available at the first hearing below, and not in the record on the former appeal, the court below ought to have reheard and reversed the former decree; and for its failure to do so, the final decree should be reversed,' and the former decree be now reheard and reversed.”
That a decree of the Court of Appeals which has been certified to and entered as the decree of the court below may be reviewed and corrected, or reversed, on a bill of review filed in the latter court, founded on new matter, seems to be true. Although it is strange that no case, as we believe, is to be found in our reports in *674which the question has been expressly decided. There are a few cases, however, from which it may be inferred that such a proceeding is lawful. As in the case of Campbell v. Price, &c., 3 Munf. 227, the court, in its opinion, said that after a decree of affirmance by the Court of Appeals, a bill of review cannot be received on the ground of any error in the decree, which is appa- . rent on the face of the record: Thus leaving it to be inferred that there might be a bill of review in such a case founded on new matter. In the case of McCall v. Graham, &c., 1 Hen. & Munf. 13, such a bill of review was filed; but the chancellor held that it ought not to have been received, because “the new evidence now produced does not materially vary the case from its aspect at the former hearing Hor does it satisfactorily appear that the complainant could not have produced it then; indeed, the same or similar evidence must have been in her knowledge then.” And in Randolph's ex'or v. Randolph's ex'or, &c., Id. 181, a special court of appeals held “that the bill of review ought not to have been received or allowed by the High court of Chancery, as it does not show any new matter, or disclose or refer to any new evidence, sufficient to ground a bill of review or reversal of the decree prayed to be reviewed and reversed; nor does the new evidence produced in any manner warrant such review and reversal:” thus not denying the competency of the court below to allow such a bill of review if the ground had been sufficient.
But while it is no doubt true, that a bill of review may be allowed in such a case, the fact that there have been so few cases in our courts in which a bill of review has been received in such case ; and none, we believe, so far as our reports show, in which a decree of this court has been reversed on a bill of review, shows that the greatest caution should be observed in such cases, and the new matter, to be sufficient ground for the reversal of the decree, ought to be very material, and *675newly discovered, and unknown to the party seeking relief at the time the decree was rendered, and such as he could not then have discovered by the use of reasonable diligence. This is necessary even in an ordinary case of a bill of review of a decree of the same court in which the bill is filed, on the ground of new matter. A fortiori, it must be necessary, when the object is to reverse a decree of the Court óf Appeals, in favor of the finality of which there are so many reasons founded on public policy and convenience.
This being the state of the law and our decisions on the subject, we now proceed to enquire, whether a case is made out by this record for a reversal of the former decree of this court, upon the ground of newly discovered matter ?
In this case no bill of review has ever been filed. To reverse a final decree, even of the court below, on the ground of newly discovered matter, a bill of review is necessary; and such a bill can only be filed by leave of the court, and must be sworn to. A fortiori, are these precautions necessary, when the decree sought to be reversed is that of the court of last resort. There was a •cross bill filed in July 1859, about a year after the decree of the Court of Appeals ; but that bill was neither sworn to, nor filed by leave of the court. It has been treated in the argument of the counsel for the appellants as substantially a bill of review. Let us so consider it, for the purposes of this case, and see if it presents sufficient grounds for the review and reversal of the former decree of this court.
Now, this bill does not state any material fact occurring since that decree, nor any new matter since then ■discovered which could not by the use of reasonable diligence have been discovered before, and which could have had any effect in producing a different decree if it had then been in the record. The only grounds on which it ■can be said to claim relief as a bill of review are : 1st. *676That the plaintiffs in the original bill, the executors of Alcinda C. Campbell, in a few days after the alleged assignment and delivery of the notes and bonds of her •husband, James B. Campbell, and in his lifetime, had full knowledge of said assignment and delivery, and at the time of their'qualification well knew that said notes and bonds were no part of the personal estate of said James B.; and that the complainants in the cross bill had a right to a full discovery from the said executors as necessary for their defence to the original bill; and, 2dly. That Benjamin B. Campbell, having drawn the said assignment, and the will of James B. Campbell, was alone cognizant of material facts affecting the validity of said assignment; that he had an interest in the subject which deprived the complainants of his testimony on the former hearing of the cause in the court below ; that they had no means of restoring his competency, which could only be done by his own voluntary release; that since the decision of the cause in the Court of Appeals, said Benjamin B. had voluntarily released and surrendered all interest which he had in the subject by his deed duly executed and exhibited with the cross bill; and that the complainants in that bill had then a right to the testimony of said Benjamin B., which would fully explain and prove the assignment and delivery of said notes .and bonds; facts of which he alone was cognizant, and which could not he established so long as he thought proper to retain an interest in the cause.
As to the first of these two grounds, a complete answer to it is, that whatever knowledge the executors of Alcinda C. Campbell may have had in regard to the assignment and delivery of the notes and bonds aforesaid, the fact of such knowledge was known to the complainants in the cross bill before the decree in the original suit was rendered; or, at all events, it is not pretended in the cross bill that said complainants discovered that fact, for the first time, after such decree; and the cross bill *677might, and ought, therefore, to have been filed before such decree, instead of after the decree of the Court of Appeals.
And as to the second of the said two grounds, a complete answer to it is, that it is not pretended in the cross bill that the complainants did not know before the original decree was rendered, what facts material to the case were within the knowledge of Benjamin B. Campbell, or that he then refused or was unwilling to release his interest in the subject of controversy ; and the complainants should not be allowed to take their chances for obtaining a decree without the evidence of said B. B. Campbell, and, failing in that, to have the benefit of the said evidence to reverse the decree of the Court of Appeals. Another complete answer is, that though the release executed ' by B. B. Campbell may have been sufficient, if it was, to divest him of any interest in the notes and bonds, it certainly did not release him from his liability to the executors of Alcinda C. Campbell for the devastavit committed by him in regard to said notes and bonds, which liability could only be released by the said executors themselves. He therefore still remained an incompetent witness after the execution of said release.
The only grounds relied on in the cross bill for a review of the said decree being wholly insufficient, the Circuit court, therefore, in May 1861, properly dismissed the said cross bill, so far as it was intended as a bill for review or rehearing of the said decree.
But there is another ground, not taken in the cross bill, upon which it was contended that there should be a rehearing and reversal of said decree ; and that ground is thus presented in the additional brief for the appellants, being the fourth of the grounds there taken : “ That the examination of the defendants on interrogatories, gives to their answers the force and effect of answers to bills of discovery, and renders the whole of *678those answers evidence in the cause, such as, taken in connection with the other facts in the cause, required a rehearing and reversal of the former decree, which it was error to refuse.”
It would be a novel proceeding for the court below to’ review and reverse a decree of the Court of Appeals, without any bill of review at all, and merely upon evidence subsequently taken in the cause ; however strongly that evidence might tend to show that such decree was erroneous.
But there was no such evidence which could be used for any such purpose, even if it had been duly presented in a bill of review ; and indeed, we think, there was no evidence which can be said to be in conflict with the decree of the Court of Appeals. The most that can be . said is that the whole evidence raised a question of doubt about which there might well be a difference of opinion ; and that this court decided it wrongly in the opinion of the counsel for the appellants. This court distinctly decided that the alleged assignment did not operate as a .valid gift of the notes and bonds aforesaid, so as to bar the widow from recovering her distributive share thereof; and that the said notes and bonds were to be regarded! as a part of the testator’s estate, so far as the widow’s right to a distributive share thereof was concerned. And nothing remained to be done after -that decree, but to carry it into execution, by taking the proper accounts, following the assets into the hands of those to whom they may have been delivered by the executors, and to subject the said executors and their securities to liability for the amount which might be found to be due to the representatives of the widow. And the decree, after deciding the question in controversy in the cause, merely gave the necessary directions for carrying the decree into execution as aforesaid. Among those directions, leave was “ given to the appellants-to propound to the appellees and each of them such interrogatories as. *679may be pertinent and material to take the account according to the principles of this decree.” The appellants availed themselves of this leave, and propounded many interrogatories to the executor of James B. Campbell and his other brothers ; but they were all propounded alone with the view of ascertaining, not whether the alleged assignment of the notes and bonds was valid or not, for it had. been already decided.in the case to be invalid : but what notes and bonds were the subject of the said alleged assignment ; what was their amount; when and how they had been distributed among the parties who had claimed them ; which of them had been collected, and when ; which of them remained uncollected, and why ; what was the present condition of them, &c., &c. ? All such enquiries were “pertinent and material to take the account according to the principles of the decree.” The defendants had no right to avail themselves of these questions for the purpose of making such answers as might tend to show the validity of such assignment, and then rely on those answers as a ground for reversing the decree of this court. Such answers were impertinent and immaterial, and were not according to the principles of the decree. They tended to disprove what had been conclusively settled by the decree, and what was res adjudicatain the cause. Take, for instance, the 5th interrogatory and answer thereto, which were specially noticed in the argument. The 5th interrogatory was, “Did you not receive from James B. Campbell, during his last sickness or shortly before, bonds, notes, claims, accounts or other assets or moneys due from yourself or others to him, or a surrender of debts, bonds or accounts or claims due from you to him. If you did, render before said commissioner a full and minute account thereof in writing?” To that question, Thomas Campbell’s answer was: “I did receive from J. B. Campbell during last sickness notes and bonds,” &c., “butall his right and title to the same he conveyed to me by an assign*680ment and delivery of said bonds to me,” &c. Now the latter part of this answer was irrelevant, and not responsive to the question according to its well understood meaning, and might have been stricken out, and must be disregarded as if it had not been made. Such an answer can certainly afford no grouud for reversing the decree of this court.
"We have said, we think there was no evidence in the cause in conflict with the decree of this court. None of it seems to be in conflict with the idea that if the testator intended to make any gift at all of his notes and bonds independently of his will, it was a gift intended to operate, not inter vivos, but causa mortis. To the validity of each of these gifts, delivery of possession is necessary. But a gift causa mortis, being revocable at the pleasure of the donor in his lifetime, is not effectual against the right of the wife of the donor to a distributive share of his personal estate. The decree of this court was that the alleged assignment did not operate as a valid gift of the notes and bonds in the lifetime of the testator, so as to bar the widow from recovering her distributive share thereof. The gift might not operate as a valid gift for that purpose, either because there was no delivery of the notes and bonds, or because, there having been such a delivery, it wras in execution of a gift causa mortis. “It appears,” said this court in its opinion delivered when the said decree was pronounced, “that - there was no such absolute and irrevocable gift and parting with possession, as to constitute a valid gift inter vivos. The facts do not prove that at the time the testator intended to part with all dominion over the. subject. The testator was in his last illness ; a disposition of property made under such circumstances is most likely to be testamentary, unless the contrary clearly appears.”
We think the record affords no ground for reversing the former decree of this court, and that the same ought still to remain in full force.
*681"We now proceed to consider the other errors assigned in the petition and the briefs, or such of them as it may be material to notice.
As to the dismission of the cross bill so far as it was intended as a bill of review, we have already said that the Circuit court did not err in that respect. Nor would it have erred if it had dismissed that bill out and out. There was no occasion for it for any purpose. ' But the cross cause seems to have been in effect dismissed, as no further notice seems to have been taken of it since the decree at May term 1861.
As to the third assignment of error in the petition, that “the court erred in rejecting the application of your petitioners for leave to take their depositions, under the provision of the act of Assembly passed February 7th, 1867,” it is sufficient to say that it does not appear that such application was rejected, or even acted upon by the court; and it was admitted by the counsel for the appellants that this assignment of error is unfounded in fact.. It will not, therefore, be further noticed.
As to the fourth assignment of error in the petition, that “the court should have sustained the thirteenth (meaning the third) exception of your petitioners to Commissioner Myer’s first report.” That exception is in these-words: “3. Because said commissioner did not, as requested by the executors of said J. B. Campbell, credit them with $37,000 funded by them in pursuance of the act of Assembly passed 5th March, 1863. See petition for leave to fund, with the proper endorsement of the judge thereon, together with the bonds procured, here exhibited as part of this exception, marked' Z. The said act of Assembly was passed for the relief of fiduciaries situated as the executors of J. B. C. were, and they1 availed themselves of the benefit of it, in order to place the said sum of $37,000 at the control of the court, for the special purpose of meeting the claim of *682A. 0. Campbell’s executors and legatees, should it be ultimately decided that they are entitled to it, the proceedings having been regular in all respects, and the funding in accordance with the requirements of the statute. The executors should have been credited with the amount of said bonds as so much disbursed by them under the authority of said statute.”
This exception presents one of the most important questions arising on this record, looking to the large amount involved. The act of March 5th, 1868, under which the alleged investment is claimed to have been made, enacted “that whenever any guardian, curator, committee, executor, administrator, or other fiduciary or trustee, may have in his hands' moneys received in the due exercise of his trust, belonging to the estate or trust fund held by him as fiduciary or trustee, which moneys any such fiduciary or trustee may, from the nature of his trust, or for any cause whatever, be unable to pay over to the cestuis que trust, or parties entitled thereto, it shall be lawful for such fiduciary or trustee to apply, by motion or petition, to any judge of a Circuit court in vacation, for leave to invest the whole or any part of such moneys in interest-bearing bonds, or certificates of the Confederate States, or of the State of Virginia, or any other sufficient bonds or securities of or within the said State; and the said judge may, in his discretion, grant such leave. The bonds, when practicable, shall be taken in the name of such fiduciary or trustee in his fiduciary character; and whenever such investment shall be made, such fiduciary or trustee shall be released from responsibility for the moneys thus invested ; but it shall be his duty to preserve the bonds thus taken, and to exercise due diligence in collecting the interest accruing thereon and in making a proper application thereof; provided, that nothing herein contained shall authorize said fiduciary or fiduciaries to change the character of an existing investment, nor any *683investment made under the pi’ovisions of this law, until authorized by the decree of a Circuit court of competent jurisdiction; and provided further, that the provisions of the foregoing section shall not be so construed as to interfere with the powers now exercised by courts of chancery over the subject.” Acts of Assembly 1862 and 1863, p. 81.
On the 18th of June 1863, Thomas and B. B. Campbell presented a petition to Judge Thompson, of the Eleventh Judicial Circuit (not embracing the county of Highland), praying for an order permitting them to invest the assets in their hands as executors of J. B. Campbell, in accordance with the provisions of the said act of March 5th, 1863. In their petition they referred to this suit; stated that the object of it was to ascertain» what amount of assets proper went into their hands, and who was properly entitled to the same; that there had been no decision of the cause; that one of the exeeutorsof Alcinda C. Campbell was dead and the other lived out of the country, &c.; and that the petitioners had a large amount of assets in their hands as executors, and were so situated that if it were ascertained what was properly due from them, there was no person to whom they could safely pay any part of it.
This petition was sworn to by B. B. Campbell, one of the petitioners, and on the same day Judge Thompson, in vacation, by an endorsement on the petition, granted leave to the petitioners to make the investment accordingly.
Under the act of Assembly, petition and endorsement aforesaid, the investment of $37,000 in Confederate bonds, referred to in the appellants’ third exception, is claimed to have been made by them ; and the question is, whether they were entitled to credit for the same, as they insisted, against such distributee or distributees as had not received his or her distributive shares; in other *684words, against the representatives of the widow of James B. Campbell?
At the time the investment was made Confederate money was greatly depreciated in value below its nominal amount, and property of almost every kind was sold at greatly inflated prices. The manifest object of the executors of James B. Campbell and their brothers was to relieve themselves of the heavy debt they owed his widow or her representatives, by preparing to pay the same in Confederate notes or bonds at par. The act expressly provided that wherever a fiduciary had in his hands moneys received in the due execution of his trust, which from the nature of his trust, or any cause whatever, he was unable to pay over to the parties entitled thereto, it should be lawful for him to apply by motion or petition to any judge, &c. The money was required to be in hand, and to have been received in the due exercise of his trust, and he, for some cause, must be unable to pay it over to the parties entitled. These three conditions must have concurred to give a judge in vacation lawful power, on an ex parte motion or petition ■of a fiduciary, to grant him leave to make an investment of the trust fund. Accordingly the petitioners in this case framed their petition with a view to show that the required conditions existed in regard to the investment they asked leave to make. But the record shows ithat none of these conditions in fact existed in the case.
In the first place they said, at least by strong and plain implication, that the controversy involved in the suit brought against them by the executors of Alcinda C. •Campbell had not been decided ; whereas that controversy had been decided by this court in 1858, nearly five years before the petition was presented. That decision was that the notes and bonds in controversy were part of their testator’s estate ; and his widow’s representatives *685became thenceforward clearly entitled to a distributive share of that estate, including the notes and bonds as part thereof. They had then had about six years since the death of their testator for the collection of his assets, and ought then to have had a large fund in hand for distribution. It was their duty to have proceeded with due diligence after that decree to collect the assets of the estate, including the notes and bonds, which still remained outstanding, pay off the remaining debts of the estate, if any, and distribute the surplus among the parties entitled thereto, and at all events pay the distributive portion of the widow. Had they done so, they probably might, before the war commenced, have settled up the estate and paid the widow’s portion of it. Instead of that, although her husband died twenty years ago, leaving a personal estate worth from fifty to a hundred thousand dollars, to one-half of which she was entitled, she and her representatives have, to this day, received nothing but the few articles she carried with her when she went away from his house, after his death, and a small sum of money paid her. by the executors about that time. The only step which they seem to have ever taken towards a settlement of her distributive share of the estate was the investment which they made in Confederate bonds for that purpose in 1863-’4.
In the second place, they said in their petition that they had a large amount of assets in ffheir hands as executors, meaning, of course, moneys received in the due execution of their trust, according to the language of the act. Whereas they had no assets, or at least no moneys, in their hands as executors. They had divided the notes and bondsamong themselves and their brothers a short time after their testator’s death. They thus converted the subject to their own use, and became debtors to the estate on that account. The money invested in Confederate bonds, or nearly all of it, was raised after the order for investment, and by contributions made by *686the brothers among themselves for the purpose; and they generally derived the sums they contributed, or the ■ greater part thereof, from the sale of real estate—of coui’se at the inflated Confederate prices of the time. For the vaTueof the notes and bonds alleged to have been assigned by the testator to his brothers, his executors and their securities were liable. And the brothers were also liable for the portions received by them respectively in the distribution of the notes and bonds made among themselves. The debt to the estate on account of these notes and bonds was therefore most amply secured. And it was a devastavit to call in that debt or any part of it, for the pui’pose of making an investment in Confederate bonds. The investment act contained an express proviso, that nothing therein contained should authorize a fiduciary to change the character of an existing investment.
In the third place, they said they were so situated that if it were ascertained what was properly due from them, there was no person to whom they could safely pay any part of it. They could certainly have paid it to the representatives of the widow before the war, if not to their counsel during the war. "Why did they not raise the money by contributions among themselves and pay it before the war, when money was good, instead of raising it in the same way and investing it in Confederate bonds during the war, when money was very bad ?
Certainly Judge Thompson would not have made the order he did if he had known the facts. And the executors of J. B. Campbell not having informed him of the facts, as it was their duty to have done, they can derive no benefit from the order, and, the- same is null and void as to the representatives of the widow.. It does not appear that they or their counsel had any intimation of the fact of the investment until after the war. It would have been a very easy matter to have given notice of the fact, at least to .their counsel.
*687As to the sums of $1,200 received of Pullius, and $2,500 received of Stephenson, by the executors, in the summer of 1868, in Confederate notes, which constituted part of the said investment, and which their counsel insist were received, in the due exercise of their trust, we think, for reasons already assigned, that they had no right to receive the said sums for the said purpose, and therefore did not receive them in the due exercise of their trust.
Surely it cannot be necessary to say anything more for the purpose of showing that the said executors are not entitled to be credited with the amount of said investment, at least so far as the widow and her representatives are concerned. And we are of opinion that the said third exception was properly overruled.
. [The judge then proceeded to consider the other exceptions to the commisioner’s report; but as they relate to mere matters of fact, this part of the opinion is omitted. He then proceeded as follows :]
We have thus disposed of all the appellee’s exceptions to the reports of Commissioner Myem ; but they complain of other alleged errors in the prior proceedings in the cause, some of which at least it is now proper to notice.
In the first place, they complain that the court erred in not dismissing the appellants’ cross-bill and bill of review, out and out. We have already sufficiently noticed this subject.
In the next place, they complain that the opinion of the court, which formed a part of the order of the 15th of March 1861, recommitting the cause to Commissioner Strickler to modify the report of Commissioner Stephenson, in conformity with the principles and instructions embodied in the said order, was erroneous in several respects. And
1st. That the instructions of the court overruled the second exception of the appellees to Commissioner *688Stephenson’s report, for allowing commissions to the appellants, when they never made any settlement at all.
That said second exception to Commissioner Stephenson’s report, which -was filed on the 24th of March 1860, was not renewed to Commissioner Myers’ report, which was filed on the 24th of April 1867 ; nor was there any exception to the latter report on account of commission allowed to the executors of J. B. Campbell, although exceptions were taken by the appellants to that report on ether grounds. Conceding, for the purposes of this case, that their failure to renew their exception on that ground, to Commissioner Myers’ report, was not a waiver of it; let us enquire: 1st. Whether there was any error in the said opinion of the court in that respect ; and if not, then 2ndly. Whether the report-of Commissioner Myers does not conform to the instructions of the court in regard to commission ; or, at least, must not be considered as having so conformed, in the absence of any exception to the said report for non-conformity ?
1st. Was there any error in the said opinion of the court in regard to commission ?
That opinion is as follows : “As to the allowance of commission to the executors, the court is of opinion, that unless a statement of receipts other than those embraced by the assignment, was within six months after the expiration of any year, laid before a commissioner by the executors, no commission should be allowed them thereon, unless such statement was given by them to-those entitled to the money and it was actually settled with them. As to the notes and bonds included in the-assignment, the executors of J. B. Campbell did not regard them as assets, until the decree of the Court of Appeals, and they could not properly be regarded as received by them in that character prior thereto. If a statement of the receipts thereof was laid before a commissioner in this suit, who was directed to settle the same, within twelve months after such decree, then com*689mission should be allowed. In other words, the court recognizes that the defendants ought not to be regarded as in default, aud liable to forfeit their commission on the assigned paper, until it was declared by the Court Appeals to be assets ; that all the receipts prior to that day by their transferees should, as of that date, be held to be in the hands of the executors; and that if they complied with the provisions of the statute then, their commission is not forfeited. The same principle will apply to any subsequent receipts.”
Now we see nothing in this opinion which we consider erroneous. There is nothing in the record to show that the executors and their brothers did not act bona fide in claiming the notes and bonds under the assignment, until the Court of Appeals decided that the assignment was null and void as to the widow of the testator. He had an undoubted legal and moral right to give away his notes and bonds by a completed gift inter vivos, and thus to give them away for the purpose of preventing his wife from succeeding to half of them as his distributee. He attempted to give them to his brothers, who, with his wife, were his only next of kin, and she was in her last illness of consumption. Whether the gift was valid or not against the wife, was the only question in the case; and that was a pure legal question. Thomas Campbell received and held the notes and bonds as assignee, and not as executor, though he was one of the executors, and he made a division of them between himself and his brothers, in pursuance of what he, no doubt, honestly supposed to be a valid trust reposed in him by the donor. A suit was in due time brought by the executors of the widow, to test the validity, as against her, of the assignment. That suit was in due time tried in the Circuit court, which decided in favor of the validity of the assignment. The executors of the widow appealed from the decree of the Circuit court; and this court reversed that decree and decided against *690the validity of the assignment, and ■ that the notes and bonds were part of the testator’s estate, of which his wife was entitled to a distributive share. Until the decree of this court the question of title to' the notes and bonds was undecided, and they were not in the hands of the executors as such. They could not, until then, be brought into their executorial accounts. They were not in default for not having themselves brought a suit to have the question decided earlier. A suit for that purpose was brought in due time by the conflicting claimant, and there was no want of diligence in the executors in regard to the subject until after the decree of the Court of Appeals in August 1858. Then there was no error in the opinion, that the notes and bonds should not be considered as part of the estate in the hands of the executors until after the decree of this court. hTor do we think there was any error in the said opinion as to the right of the executors to commission afterwards, or as to their duties and the means to be used by -them to avoid a forfeiture of their commission. "We see no error in the opinion, in any respect, in regard to commission. Then,
2dly. Does not the report of Commissioner Myers conform to the said opinion in regard to commissions; or, at least, must it not be considered as having so conformed in the absence of any exception to the said report for non-conformity?
Commissioner Stephenson commenced the taking of the account decreed to be taken by the Court of Appeals in due time thereafter, and there is nothing in the record to show that the executors did not place their accounts and vouchers in his hands in full time to be entitled to commission, according to law and the prin.ciples settled by the said opinion of the court. It is said there were other assets which came to their hands besides the notes and bonds, on which they forfeited their commission. Those other assets hnust have been of *691small amount. But there is nothing apparent on the record which enables us to say with certainty that the executors incurred a forfeiture iu regard to any of their commission, and we must, therefore, say that they conformed to the law, in the absence of any exception to the report of Commissioner Myers for non-conformity. The executors were certainly entitled to some commission. They did not forfeit all, if any. Which did they forfeit? The appellees should have laid their finger upon it by an exception. There was no such exception. And we, therefore, think, that no objection can now be taken here to the allowance of commission made to the executors by Commissioner Myers.
Without specifying the other objections made by the counsel of the appellees to that opinion, it must suffice to say that we do pot consider them well founded, or that they, or any of them, ought to be sustained.
TJpon the whole, we think that the decrees appealed from should be reversed, so far as they are considered erroneous in the foregoing opinion, and such decree rendered in lieu of the portions reversed as is required by the said opinion, and should be affirmed in all other respects, with damages according to law and costs to the appellee, John W. Hedges, surviving executor of Alcinda C. Campbell, as the party substantially prevailing.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree appealed from to the prejudice of appellants, Thomas Campbell and Benjamin B. Campbell, either in their own right or as executors of James B. Campbell, or of their brothers, the appellees, John Campbell, Samuel 0. Campbell, William M. Campbell, A. Hanson Campbell and Edgar Campbell. But the court is further of opinion, for reasons stated as aforesaid, that *692there are errors in said decree to the prejudice of the appellee, John ~W. Hedges, surviving executor of Aleinda C. Campbell, as follows, to wit;
1st. The said Circuit court erred in overruling instead of sustaining the appellee’s first exception to Commissioner Myers’ first report. “That on page 24 of said report he has credited the estate with $330.12, instead of $725.12, cash received of 'Wm. Skeen, receiver;” and in overruling, instead of sustaining, the appellee’s renewal of that exception to Commissioner Myers’ second or amended report, such renewal being embraced in their first exception to said second report. It appears from a receipt of Thomas Campbell, one of the executors of James B. Campbell, to said Skeen, receiver, at pages 385-6 of the record, that $725.12 was the true amount received.
2d. As to the appellee’s second exception to Commissioner Myers’ first report renewed in their first exception to his second report; “because the commissioner has failed to charge the executors with the new list of bonds-filed with the late answer of Thomas Campbell since Commissioner Strickler’s last report, and headed “A list of J. B. Campbell & Co.’s bonds assigned to Thomas Campbell and believed to be insolvent or not collectable, amounting as added up at the foot to $8,012.87.” Although it was proper not to charge the executors with the whole amount of the bonds included in the “new list ” referred to in the exception, yet, as since that list was filed in 1861, some of the said bonds may have been collected, or, as some of them may now be collectable, there ought to be an enquiry and account by a commissioner to ascertain the facts. The court, therefore, erred in overruling the said exception, and, instead of doing-so, in not dh’ecting such an inquiry.
3d. As to the appellee’s second exception to Commissioner Myers’ second or amended report; that is, “to the allowance made by the commissioner in his said *693second report of eredit to the executors, on the first page of said report, for each and every of the items numbered 1, 3, 4, 5, 6, 7, 8, 9 and 13, amounting in the aggregate to $2,673.88 of principal and $122.67 of interest.” These items here numbered were items' of charges to the executors in Commissioner Myers’ first report; to which items the appellants excepted, and their exceptions to which were sustained by the court below.
The said items are designated by the same numbers in. a statement on page 43 of Commissioner Myers’ first report, copied on page 740 of the printed record. Commissioner Myers, having accordingly, in his second report, given credit to the executors for those items, the appellees, on their part, excepted to the amended report on that account. "We will have to take up and dispose of the items as they are above numbered.
No. 1. Price of mule sold by S. M. Lightner and accounted for to executors. Credited to the estate of J. B. Camphell in 1853 in Commissioner Myers’ first report, page 2.
The Circuit court erred in sustaining the appellants’ exception to this item in Commissioner Myers’ first report, and in overruling the appellee’s exception to the Bame item in the said commissioner’s secondjeport. The item is a proper credit to the estate.
No. 3. Bond of John Ginger, due 29th January 1841, and interest.
No. 4. Amount of two bonds on John Malcomb.
No. 5. Amount of two bonds of Thomas Bird, to be credited on John Lamb’s bond.
Instead of sustaining the appellants’ and overruling the appellees’ exceptions in regard to these three items (Nos. 3, 4 and 5), the Circuit court ought to have referred the subjects of them to a commissioner for further enquiry and account, and erred in not doing so.
No. 6. Balance due from D. G. Kinkead, 20th June 1850, as per statement of J. B. C., $185.53, and in*694terest to January 10, 1860, when renewed by W. M. 0., $108.21.
This debt is included in William M. Campbell’s list of bonds, and is not included in his list of insolvents which he returned under oath February 7, 1860. The presumption, therefore, is that it has been collected, or is a good debt. It was renewed March 10, 1860, for $274.09, which seems to be less than the amount of debt and interest due on that day, the difference, no doubt, having been paid when or before the new bond was given.
The Circuit court erred in sustaining the appellants’ exception to this item in Commissioner Myers’ first report and in overruling the appellees’ exception to the corresponding item in Commissioner Myers’ second report. The item is a proper credit to the estate.
Ho. 7. Bond of Marshall and Cunningham, due 1st March 1851, and interest.
The appellants’ exception to this item was sustained as to all over $227. The appellees insist that it ought to have been overruled altogether. Instead of sustaining the appellants’ and overruling the appellees’ exception as to the excess of said bond over the said sum of $227, the Circuit court ought to have referred the matter of such excess to a commissioner for further enquiry and account, and erred in not doing so.
Ho. 8. Bond of J. J. Cooper, due August 1st, 1844, and interest.
Ho. 9. Bond of II. Michael and interest.
These two items (Hos. 8 and 9) are proper credits to the estate, and the Circuit court erred in sustaining the appellants’ and overruling the appellees’ exceptions in regard to the said two items.
Ho. 13. Yalue of shares in the estate of Wm. Dinwiddie, deceased, on the 19th day of June 1861, $4,342.39.
The appellants’ exception to this item was sustained as to all over $2,500. The appellees insist that it ought *695to have been overruled altogether. There is nothing in the record which shows that the executora are chargeable with more than.$2,500, which they actually received on account of said interest. Instead of sustaining the appellants’ and overruling the appellees’ exceptions as to the excess of the value of said shares over the said sum of $2,500, the Circuit court ought to have referred the matter of such excess to a commissioner for further enquiry and account, and erred in not doing so. Therefore it is decreed and ordered that so much of the said decree appealed from as is inconsistent with the foregoing opinion and decree, be reversed and annulled, and the residue thereof affirmed, including in such affirmance that portion of the said decree of the 29th day of September 1867, which adjudged, ordered and decreed that the said Thomas Campbell and Benjamin B. Campbell, the executors of J. B. Campbell, do, out of their own estates, pay to the said John W. Hedges, as surviving executor of Alcinda C. Campbell, deceased, the sum of thirty-three thousand eight hundred and sixty-two dollars and twenty-nine cents, with interest on twenty-five thousand and twenty-three dollars and thirty-nine cents, part thereof, from the 20th day of January 1861 till paid ; the amount due by said Thomas Campbell and Benjamiu B. Campbell to the said John ~W. Hedges as surviving executor of Alcinda C. Campbell as aforesaid, being increased by this decree, and being therefore greater than the said sum of money and interest decreed to be paid by the said decree of the 29th day of September 1867, as aforesaid. The payment of which sum of thirty-three thousand eight hundred and sixty-two dollars and twenty-nine cents ($33,862.29), with interest on twenty-five thousand and thirty-three dollars and thirty-nine cents ($25,033.39), part thereof, from the 20th day of January 1861 till paid, together with the costs and damages hereby decreed in his favor, the said John W. Hedges, as surviving executor of Al*696cinda C. Campbell, deceased, is to be at liberty to enforce forthwith, without waiting for the making of the enquiries and taking of the accounts hereby directed to be made and taken.
And it is further decreed and ordered that the appellants, Thomas Campbell and Benjamin B. Campbell, executors of James B. Campbell, do, out of their own estates, pay to the appellee, John W. Hedges, surviving executor of Alcinda 0. Campbell, deceased, damages according to law and his costs by him about his defence in this behalf expended. And the cause is remanded to the said Circuit court for further preceedings to be had therein in conformity with the foregoing opinion and decree. Which is ordered to be certified to the said Circuit court of Highland. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481796/ | Anderson, J.
The written contract sought to be enforced by this suit, is in these words : “$8,600.—Three years after date the Virginia Porcelain and Earthenware Company, promise to pay to Thomas Calbreath, his heirs or assigns, the sum of three thousand six hundred dollars, for a steam engine, saw mill, shingle machine and chopping mill, with all the fixtures and appurtenances, which sum is to be paid in the currency used in the common business of the country, at the date of maturity, bearing interest from the date of written contract, which bears date the 3d day of March 1864.”
If this case is to be considered with our eyes closed to the condition of the country at the date of the contract, and to the surrounding circumstances, and without reference to the act of Assembly for the adjustment of ■Confederate contracts, and to the parol evidence in the record; if our view is to be narrowed down to the face of the paper, and to consider it, as we would, if it had been executed in a time of profound peace, before the war or since the war, it is unquestionably with the plaintiff. Payment would be due in Hnited States currency ; *701that being the currency used in the common business of the country at the maturity of the contract.
But we are not restricted, nor are we at liberty to ■ . , . , , restrict ourselves, to that narrow view. W e are bound to ascertain, as far as we can, by the act aforesaid, which we have declared to be valid law, what was the true understanding and agreement of the parties as to the. kind of currency'with which the contract was solvable ; or with reference to which as a standard of value it was entered into. And to this end, we are not restricted to the evidence of the writing ; but it is our duty to consider all other relevant evidence, parol or written, direct or circumstantial, express or presumptive ; to weigh the whole together, and thence to draw our conclusions. The statute gives no direction, as to the weight to be given to each kind of evidence, except only it implies, that written evidence, or evidence in writing under seal, is not conclusive. The court must consider all, and give to each just such weight as, in its opinion, it is entitled to; and decide, according to its belief, what was the true understanding and agreement of the parties. If they believe, from a consideration of the whole case, that the real intention of the parties was different from what the writing imports on its face, they are bound to give effect to it, and not to the contract as evidenced by the writing. But I do not hesitate to say, that where the contract is in writing, and plainly and expressly discloses the intention of the parties, and there is no evidence of fraud or mistake, it would require very strong evidence to satisfy my mind, that the intention was contrary to that which the writing clearly expresses.
The contract in this case expresses, that payment was to be made three years after date, “ in the currency used in the common business of the country at the date of maturity.” But it does not express that United States currency was meant. It contains not a word or syllable repugnant to the natural presumption, that they meant
*702the currency of their own government; and did not mean the' currency of an alien enemy—a circulation was inhibited by penal statute. The writing then -n ^.g cage (joeg n0j. p|appy an(j expressly disclose an ^ntenti0EL the parties, that in any event, payment should be made in United States currency.
In Hilb v. Peyton, not yet reported, the contract, as construed by a majority of the court, 'is substantially the same as this. As construed, it was to pay two years after date, in such funds as the banks received and paid out at maturity. It is true that, in my opinion, it was susceptible of a construction, on its face, which required payment to be made in such funds as they received and paid out at the date.of the bond. But a majority of the ' court construed it to mean at its maturity. Taking that to be the import of the bond, the majority of the whole •court held that the contract was solvable in Confederate currency, although the banks were receiving and paying out at its maturity, United States currency. Both the contract in this case and in that, are in effect solvable in the currency used in the common business of the country at their maturity respectively.
I hold it to be a sound principle, that where parties under the government of Virginia, made a contract during the war, especially if made after the 20th of October 1863, with reference to Confederate money, as the standard of value, payable at a future fixed period, in such currency as was the medium of exchange in the -transactions of the country at the maturity of the contract, the presumption is, in the absence of evidence to the contrary, that they intended payment in Confederate currency. Indeed, by the act of 14th of October 1863, fairly construed, all contracts made on or after the 20th of October of that year, were presumed to be made with reference to Confederate currency as a standard of value, and solvable in the same kind of currency, unless a contrary intendment was .expressed. It was a conclusive *703presumption of law. But now since the adjustment act of March 3d, 1866, as expounded by this' court in Walker’s per. rep. v. Pierce, 21 Gratt. 722, the presumption is not conclusive, but only prima facie.
Again, I hold it to be equally clear, that the war re-suiting before the maturity of the contract, in the extinction of Confederate currency, and in the introduction of the currency of the country which at the date of the contract was an alien enemy, cannot change that presumption as to the intention of the parties in their contract.
This principle is not in conflict with Boulware v. Newton. It was there held that parties during the war, had a right to contract with reference to the contingency that the war might result in the overthrow of the Confederacy, and in that event payment to be made in United States currency. The principle now asserted, does not deny the right to make such a contract. It only declares that in a certain state of facts it shall not be presumed. But on the contrary, that the presumption is, in such ease, that payment shall be made in Confederate currency ; and that the war terminating before the contract matured, and destroying that currency, could not change the contract of the parties. This it seems to me is sound in law and reason.
Now let us apply it to the case in hand. This contract was made in March 1864, during the war; at a time when every true man within our borders felt that although we were engaged in a death struggle for liberty and independence, and for the life of the Confederacy, it would be nothing short of moral treason, to think of surrendering our Confederation, and restoring the old government. It was a contract for the sale and purchase of property ; price, $3,600, payable at a fixed time in the future, three years after date, in “ the currency used in the common business of the country at the date of maturity.” According to the principle enuuciated, if *704this contract was made with reference to Confederate currency a$ the standard of value, and it is not expressed in the writing, or proved by other evidence, that there was .a different intention, the presumption is, that it was intention to be paid in Confederate currency. And the war having terminated disastrously before it was solvable, extinguishing the Confederate currency and introducing in its place and stead, a currency which was foreign to the parties at the date of the contract, and which was the currency of the alien enemy, it could not change the contract of the parties, and subject the debtor to pay in the substituted curi’ency (United States) more than the value of the Confederate currency with reference to which the pi’ice was fixed in the contract.-
The question now alises, was this contract, made the 3d day of March 1864, entered into with reference to Confederate money as the standard of value ? Such was the presumption of law at the date of the contract, by force of the act of Assembly of October 14, 1863, unless a different intendment is expressed; though now by the act of March 3, 1866, either party may offer evidence to repel that presumption, and to show what was the true understanding. It is now only a prima facie presumption.
There is nothing in the writing to repel this prima facie presumption. It throws no light upon this inquiry. It describes the property sold “a steam engine, saw mill, shingle machine and chopping mill, with all the fixtures and appurtenances.” It states the price $3,600, payable thi’ee years after date, with interest from date, and gives the date March 3d, 1864. Is there anything in the surrounding circumstances, or in the pai’ol evidence, to .repel this prima facie presumption, which is raised by the statute with regard to all contracts made on or after the 20th of October 1863 i
It is in proof that at the date of the contract Confederate money constituted the only currency, a fact which *705is judicially known. That fact is not in'opposition to, but in support of, the prima facie presumption under the statute, and doubtless was inducement to the passage of the act.
There is also proof as to the value of the property. It is conflicting and contradictory. Accoi’ding to repeated decisions of this court, the appellate tribunal in such case will presume that the judgment of the court of trial, who had the witnesses before it and heard their testimony, as to the weight of evidence, is correct. And according to the judgment of the County court, which is affirmed by the Circuit court, the value of the property at the date of the contract was $1,400. I could not say, from the evidence certified, that it was undervalued. On the contrary, the evidence, I think, sustains the judgment of the County court as to the value of the property.
But the plaintiff’ and defendant in their contract valued it at $3,600. What sort of dollars did they mean ? Certainly not gold dollars. It is equally evident that they did not fix the price in greenbacks. There was no such currency in Virginia outside of the enemy’s lines, and its circulation was prohibited by penal statute. The only currency that was in circulation was Confederate. And it being evident that the price was not fixed in gold dollars, or in greenback dollars, as the standard of value, the price must have been fixed with reference to Confederate currency as the standard of value.
This conclusion cannot be avoided by the fact that the gold value of $3,600 at the time was greatly below the value of the property. It is a fact of general notoriety, that in contracts of sale, &c., Confederate money had a much higher value than the brokers’ tables indicate. Hence it is, that the adjustment act was amended and the property value was allowed in contracts of sale, renting and hiring. As was pertinently said by Moncure, P., in Hale v. Wilkinson, 21 Gratt. 75, *70688, “Confederate money had a purchasing power in regard to land and other property, which made it worth much more than its market value in gold with the brokers.” And he cites with approbation what was said arguendo in Thorington v. Smith, “while it was 20, 80 or 40 to 1, those treasury notes had an exchangeable power of 2, 8 or 4 to 1 in the different species of property.” The fact, therefore, that the gold value of the price to be paid for the property was greatly below its value does not avoid the conclusion to which we had come, that the price was fixed with reference to Confederate currency as a standard, nor repel the prima facie presumption to that effect raised by the statute.
Is there • anything iu the parol evidence to repel the presumption, fortified as it is by the facts which we have been considering? The witnesses, John J. Bell and T. "W. Shelton, who were the agents of the company in making the contract, both testify that they contracted with reference to Confederate money as the standard. That they.never thought of any other, and had no authority to contract for any other, and supposed that plaintiff’ had reference to Confederate money. Their testimony is in exact harmony with the presumption raised by the statute, and the conclusion drawn from the facts which we have been considering. The plaintiff’s testimony on this point is not contradictory. It is true he says that he considered the contract purely one of risk and hazard, and that he expected the currency to be better at the maturity of the contract than it was at its date, &c.; which we will after a while consider; but he nowhere says that the contract was not made, or the price fixed, with reference to Confederate money as the standard. There is no evidence in the record in conflict with the testimony of Bell and Shelton on this point. I am, therefore, brought irresistibly to the conclusion that this contract was made with reference to Confederate money as the standard of value.
*707This fact now being established according to the first postulate, it was intended to be paid in Confederate currency, unless a different intention is shown by the writing or by other evidence.
"We have already shown that there is nothing in the writing which expresses an intention that payment should in any event be made in United States currency. "We will now inquire whether there is anything in the nature of the contract, or its phraseology, which repels the natural presumption that a contract for the sale and purchase of property, in which the price of the property was fixed with reference to Confederate currency, was intended to be solvable in the same kind of currency, and not in a foreign currency which, at the time of the contract, was the currency of an alien enemy, and which was prohibited by the laws of the State to which the contracting parties belonged. It is contended that the phraseology employed in the writing, “to be paid in the currency used in the common business of the country at the date of maturity,” implies that it might be a different currency from that then in use. And so it may. But it does not imply that the parties meant United States currency. If it was shown by the paper, or the other evidence in the record, that it was a contract of hazard, contingent upon the termination of the war before its maturity, and the overthrow of the Confederacy with its currency, such evidence would be sufficient to repel the presumption, as natural and strong as it is, as well as the now prima facie presumption of the statute, that the parties intended payment to be made in the same kind of currency, with reference to which as the standard of value the contract was made. I cannot now conceive of any mere presumptive evidence which could repel that presumption. Nothing less than an express agreement shown by the writing, or implied in terms which would give it the force of an express agreement, or proved by the clearest and most unquestionable testi*708mony, would be sufficient to repel the presumption of the sfofote and of the facts in the case.
An act of the Confederate Congress had iust passed . . . . . = . n ,. providing for calling m the circulation, and tor the issue a new c1irrency for two-thirds of its nominal value jm its stead. And the parties would probably expect that other and more radical changes might be made by the Confederate government iu the currency before their contract matured, and therefore say, that it shall be paid in the currency then (at maturity) used in the common business of the country. It does not imply that it shall be the currency of the enemy with whom their State was then at war, against the presumption that, in’ fixing the price of the property in their contract with reference to Confederate currency, they intended it to be paid in the same kind of currency, and also against the presumption of the statute which was in force at the date of their contract, and which was then conclusive. But the effect of the act of March 3, 1866, is to allow either party to show by other evidence that the fact was not as the law then presumed. But if that is not shown, I apprehend the presumption raised by the statute is as conclusive as it was before the subsequent act was passed.
The phraseology employed was also proper if the parties intended to repel the common law presumption, that it was a contract for specie. This was unnecessary under the act of Assembly, supra. But still they may have deemed it safest to express it in their written contract. There is nothing on the face of this paper which, in my opinión, removes the strong presumption from the law and the surrounding facts, that the parties intended payment to be made in Confederate currency.
Such, therefore, was .the contract, unless the parol evidence shows otherwise. The parol evidence consists, on behalf of the defendant, of two witnesses; and on the plaintiff’s behalf, of his own testimony. The notion, or opinion of his witness, Z. F. Calbreath, that it was a *709contract of hazard, nothing having been said on the subject in his hearing, is not entitled to consideration. The defendant’s witnesses are entirely consistent; andas they understood the contract, it was made with reference to Confederate money, as the standard of value, and was to be performed and fulfilled in Confederate currency. Their testimony is imperfect harmony with, and fully sustains, the presumptions relied on. There is nothing in the record to throw a doubt upon their capacity, or credibility; and it does not appear, that they have auy interest in the subject of controversy. They were the agents of the company in making the contract; and both of them testify, that they would not have purchased the property to be paid for in any other currency than Confederate. They say that the price of the property was fixed with reference to Confederate money, and was to be paid for in Confederate money, as they understood it. That they thought of no other ; that none other was mentioned ; that they would have contracted for no other, and had no authority to contract for any other. That nothing was expressly said to them by the plaintiff, or by them to the plaintiff, with reference to the kind of money to be paid in discharge of the obligation. One of them says, the question was not discussed between them, but he supposed that plaintiff’ had reference to Confederate money, as none other was talked about, and he himself thought of no other, and that the paper sued on expressed the true understanding and agreement of the parties, as it was understood by him. It is true, that one of them says, he offered to pay the plaintiff at once, and that he refused, saying he preferred the terms of the contract; for what reason he does not appear to have stated. He does not say that he was unwilling to receive Confederate money; or that he ■expected to get paid in a better currency than Confederate. It may be implied, that he expected to get a better Conf'ederaté currency, at the maturity of the *710bond, than that which was then circulating, as an act had recently passed the Confederate Congress, and which was soon to go into operation, which would subject the holders of Confederate treasury notes to a loss of one-third of their nominal amount. This factitself furnishes sufficient and adequate motive for his refusing to receive payment down ; and in addition, he may then have had no use for the money, and preferred to have it at interest. "Whatever may have been his motive, it is not shown that he was unwilling to receive Confederate money, or that he expected to receive payment in greenbacks. He did not intimate it at the time, nor does he expressly say now, in his deposition, that he did. Doubtless he expected to be paid in a better currency than that which was then offered him, which he knew would be reduced in a short time, to two-thirds of its face value ; and in this aspect of the case he had good reason to say, that he preferred the terms of his contract.
It seems to me, that if the plaintiff intended to bind the defendant to pay in a different currency than that in reference to which the price of the property was fixed, and_.which was then the only currency of the country ; if he intended to bind him to pay in "United States currency, in any event, it should have been so expressed in the bond ; or at least he should have disclosed in some way, such intention and purpose. As I said in Lindsey v. Stover's ex'or, “I am unwilling to hold parties bound to pay in United States currency, dollar for dollar, for property purchased during the war, at Confederate prices, and when Confederate money was the only currency of the country, unless the evidence clearly shows, that it was in the contemplation of the parties when they made the contract, and was their intention that in some contingency, payment should be made in United States currency.” That I hold to be a just, and sound principle. And it finds support in the case of Thorington v. Smith, 8 Wall. U. S. R. p. 1, 12 and 13. In that *711case it was held by the Supreme Court of the United States, Chief Justice Chase delivering the opinion of the court, that where a contract was made in any other country, whose circulation denominated dollars, was of inferior value to the coins or notes authorized in the United States, in a suit brought upon that, contract here, the creditor could only recover the equivalent value in lawful money of the United States ; so where the contract was made between the inhabitants of the Confedel’ate States, when Confederate treasury notes were the exclusive currency of the country, and when, what he calls, the “insui’gent belligerent power was actually established as the government of the country,” such a contract “must be interpreted and enforced with reference to the condition of things created by the acts of the governing power.” Again, the chief justice says: “In the light of those facts it seems hardly less than absurd to say, that these dollars (nominated in a Confederate contract), must be regarded as identical in kind and value, with the dollars which constitute the money of the United States.”
Contracts made under such circumstances, and with reference to Confederate money, as the staudard, are prima fade contracts solvable in Confederate money. In this case, the agents of the company had the right so to regard it, as a contrary intention had not been expressed by the plaintiff in the negotiation, or in the written agreement. And the plaintiff ought to have understood it in the same way, without any declaration on the part of the agents that they so understood it. It was not imcumbent on the agents to have expressed what would have been universally understood at the time and under the circumstances ; and they say that they never thought of any other currency.
The plaintiff testifies that he understood it to be purely a contract of hazard or risk ; and that the writing expresses the true understanding and agreement. But we *712have seen that the paper -writing does not purport to be a C0Qb’act of hazard, contingent upon the termination of the war and its results. He does not say that he even expected it to be paid, m any event, in Hmted States currency. But says “ he had no idea what would be the currency of the country at the time of the maturity of the obligation, but chose to run the risk, &c. But if such were his thoughts and expectations they were not manifested to the agents of the defendant, by the writing, or in any other way.
The plaintiff has, therefore;- failed to prove, by parol or other relevant evidence, any thing which can repel-the presumption arising upon the face of the written contract, read in the light of the surrounding circumstances, that it was a contract made in reference to and solvablein a Confederate currency. The parol evidence, so far from repelling, strengthens and confirms that presumption.
It is very hard for us to give up long established habits of thought. We are slow to admit innovations. And as we advance in years, we are apt to become more fixed in our habits of thought, as well as other habits, which become hallowed by time ; and we become more and more averse to change and innovation. We have been so long accustomed to the rules of law, distinguishing between the different grades of evidence, and attaching such verity and sanctity to some descriptions, as absolutely excluding any explanation or contradiction by other evidence, that it is hard to turn our minds into a different channel. How the acts of adjustment, supra, are innovations. They overturn some important rules of evidence in relation to contracts for the payment of money made between the 1st day of January 1862 and the 10th day of April 1865. In Hilb v. Peyton a ma- ■ jority of the court held that under this act parol or other relevant evidence was admissible, in relation to all contracts made between those periods, whether in writing *713under seal or not under seal, as the means of understanding what was the true understanding and agreement of the parties as to the kind of currency in which they were solvable, or- with reference to which as a standard of value.they were made. That decision, I take it, settles the construction of the statute ; and it is no longer an open question. And as thus judicially construed, the law requires us to consider this writing, in connection with the other evidence of the contract. The error, I think, arises from regarding the writing as the contract, when it is only evidence of it; and the parol is really as legal evidence of it as the writing. "We are obliged to consider the whole together. To do so, if we believe Shelton and Bell, it is not possible to believe that the defendant ever made such a contract as the plaintiff claims. And. their testimony is not in conflict with the writing. Take both together, can there be a doubt that the defendant did not make a contract to pay in other currency than Confederate ? I care not what were the thoughts or expectations of the plaintiff', confined to his own breast, it is not a contract binding on the defendant, without his assent to it. Regarding this evidence of the defendant’s agents, did they ever assent to a contract for their principal except for Confederate money ? They both testify that they never did. Then, as there can be no contract without the assent of both parties to it, the plaintiff has failed to establish the contract under which his counsel contend he has a right to recover. Aud if such contract were specially alleged in his declaration, he could not recover at all, except upon the quantum valebat count.
The plaintiff ought to get the value of his property, lie ought not to desire more. At least the defendant should not be held'to a contract of hazard and speculation, which, it is evident, he never made, nor intended to make. I think the judgment of the County court, affirmed by the judgment of the Circuit court for Au*714gusta county, conforms to the substantial justice of the-case and the law. If we were not satisfied that the j cdgment is correct, we should not reverse except for a plain deviation from the law or evidence. Much respect is due to the judgment of the court of trial. Upon thewkole, ^ am °f opinion to .affirm the judgment of the Circuit court. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481797/ | Christian, J.
I cannot concur in the opinion of the-majority of my brethren. "With the greatest respect for their judgment, I cannot bring my mind to assent to the-proposition that the agreement of the parties in this case, as evidenced by the writing sued upon, can possibly be-brought within the operation of the “Adjustment Act,” and subject to be scaled as a Confederate contract.
The obligation sued upon is in these words:
“$3,600. Three years after date, The Virginia Porcelain & Earthenware Company promise to pay to Thomas Calbreath (said plaintiff), his heirs and assigns, the sum of three thousand six hundred dollars, for a steam engine, saw mill, shingle machine and chopping mill, with all the fixtures and appurtenances, which sum, is to be paid in the currency used in the common business of the country at the date of maturity, bearing interest from date of the loritten. contract, which bears date the M day of March 1864.” (Signed by the President of the Company.)
How such a contract as this can be construed to be a contract to be discharged in “Confederate currency” is beyond my comprehension. If it was conceded that the parties had met together, the one to sell, and the other to purchase this property, and that it was by common-agreement «oí to be paid for in “ Confederate currency,” but that both parties were stipulating for a different currency, I cannot conceive of any words or forms of expression which the parties could have employed more clearly to express such intention than those used in the writing before us.
*715To characterize this writing as an obligation to be discharged in Confederate currency, is to say that every contract, no matter what may be its express t-erms, is a contract to be discharged in “Confederate currency,” provided it was entered into between the 1st of January 1862, and the 10th of April 1865, even where it is plain that the parties were stipulating in express terms for a different currency.
If parol evidence can be admitted to explain, vary or contradict such an obligation as this, where there is not the slightest ambiguity, either latent or patent; then it may be done in every case; for as I shall show presently, this is not one of those cases provided for by the adjustment act, and must be decided upon principles- outside of that act. If, I repeat, we can look to the parol proof in this case, in a contract where there is not the slightest ambiguity even suggested, and where upon its face it is not to be discharged in Confederate treasury notes, but, by express terms, in another currency—and consequently is not within the purview of the statute—then we are establishing, in my humble opinion, a most dangerous • precedent. We strike a deadly blow at those principles of the common law which, under the jurisprudence of-this country, have ever been held sacred, and which form the basis to uphold and the shield to protect the inviolability of contracts.
If I can show (as I think it is easy to show) that the contract under consideration was not, according to the true agreement of the parties, to be fulfilled or performed in Confederate treasury notes, and was not entered into with reference to said notes as a standard of value, then we have, by the decision of the majority, a case which overrules every decision of this court from the time of' its first constitution, which has uniformly declared that no parol evidence shall be admitted to vary, alter or-contradict the plain written terms of the contract. And. *716it is against that decision that I 'most earnestly protest and record my dissent.
H°w can it possibly be maintained that this contract was to be performed or fulfilled in Confederate treasury notes, when it is expressly stipulated that it is not to be 80 aQd performed, but is “to be paid in the currency used in the common business of the country at the date of maturity,” to wit: on the 3d day of March 1867 ? How can it be said that it “ was entered into with reference to such currency as a standard of value,” when a different currency is expressly referred to and agreed to be paid, as the value deliberately fixed by all parties, when such a conclusion is expressly excluded by thejerms of the bond ?
This case cannot be brought within the' operation of the statute known as the adjustment act, except upon Ihe theory that the statute covers every case which was •entered into between the 1st of January 1862, and the 10th of April 1865, even if (as was admitted by the counsel for the appellee) it stipulated for the payment of gold. ‘The contract in this case is just as definite and fixed as to the currency in which it is to be discharged as if it ■was payable in gold. If this is the true construction— 'if the statute means this—then all I have to say is, that it is unconstitutional and void, because it impairs the • obligation of contracts.
■ But the statute, properly construed, is not unconsti■■tional, hut is one eminently wise and proper, and which '•the exigencies of the country and the abnormal condition •of affairs imperatively demanded. ■
But what is the character of those contracts, which, -under the statute, may be scaled, either by reducing the nominal amount to the gold value or to the value of the ¿property the subject of the consideration ?• In such contracts, and such, only, can the scale of adjustment be applied, as where “ it shall appear that according to the *717true understanding and agreement of the parties (of both parties not of one), the contract was to be fulfilled or performed in Confederate treasury notes, or which were entered into with reference to said notes as a standard of value.”
Can it be possible that where both parties have solemnly stipulated in writing the kind of currency in which the contract is to be fulfilled or performed, and have indicated in writing the currency, with respect to which, as a standard of value, it was entered into, and that currency is not Confederate currency, can it be possible that such a contract is to be declared a Confederate contract, and subject to be scaled %
In this case it appears, by the express terms of the contract, that it was not to be fulfilled andjperformed in Confederate States treasury notes, and was not entered into with reference to such notes as a standard of value. It was, therefore, not a case to which the statute applies, and not a case in which, in my opinion, parol evidence could be heard at all.
But does the parol evidence, conceding that it can be admitted, make it appear that the true understanding and agreement of the parties was different from that expressed in the written agreement.
The obligation is signed by William Withrow, president Virginia Porcelain and Earthenware company. He gives no account of his understanding of the agreement, except as shown by the solemn act of signing his official name as the president of the company, and acknowledging himself as bound by the terms of the written contract. He is presumed to have read a paper by which he bound the company to pay $3,600, and to have understood the terms of that contract; when and in what currency it was to be paid. He, the president of the company, was not examined as a witness, who was, in fact, the party to' the contract, and whose official signature could alone bind the company. What the true under*718standing and agreement of the company was is shown by ^ie signature of the president to a paper under seal de°^ar^nS ^ Plainly and unequivocally without the slightest ambiguity on its face.
What we want to get at under the statute is, what was the true understanding and agreement of the parties ? Who are the parties ? Thomas Calbreath on the one hand and the Virginia Porcelain and Earthenware company on the other. Thomas Calbreath produces the written agreement upon which he demands the fulfillment of his contract, as his true understanding and agreement, and the Porcelain company acknowledged it as their agreement by the signature of their president, the only officer authorized to bind them. What boots it then, that Messrs. Bell and Shelton, the agents who negotiated the pui’chase of this property, should give in their views of -what they thought (in their several interviews with the plaintiff), about Confederate money being the currency of the country three years after the 3d of March 1864 ; about their unwavering confidence in the success of the Confederate cause? The question is not what ■ these agents thought, or hoped or expressed, but what - was the true understanding and agreement of the parties to this contract—of both parties to this contract—of ' Thomas Calbreath and of the Porcelain company. Neither the hopes nor the expectations nor the patriotism of these agents can interpret the contract of the parties. But in point of fact these agents do not pre- ■ tend to prove (if their’evidence is tobe looked to at all), . a different agreement from that set out in the written • contract; but-on the contrary, they both confirm and establish it as> the true agreement of the parties.
Bell says that he and. Shelton purchased the property as agents of the company.; that they had several interviews with the plaintiff' before they made the purchase ; that finally a’contract was made and reduced to writing, -and that the' tQ.r,ms setfoHh in the obligation sued upon are *719the same terms set forth in the contract. And while, he says, he (Bell) thought of no other money but Oonfederate money, yet that nothing was said by him to the plaintiff, or by the plaintiff to him, about what kind of money was tojbe paid. And he expressly states that he •offered Confederate money to the plaintiff and he refused to receive it, stating he preferred the terms as they were' agreed on.
Shelton says, they had several interviews with the plaintiff; and finally made a contract with him which was reduced to writing ; that the terms set forth in the paper in the suit, are the exact terms agreed upon. He also proves that nothing was said about the kind of currency in which the obligation was to be discharged ; that he expected that it would be discharged in the money that was the currency of the country at the time of its: maturity; but he expected that would be Confederate currency. He also distinctly proved that they offered the plaintiff Confederate money, and he refused to receive it.
These are the only two witnesses introduced by the defendant. Neither of them pretend to prove either that Calbreath, the plaintiff, or the president of the company, who executed the contract, made any other agreement than the one sued upon. Giving the utmost weight to the statements of these witnesses, the most that can be said is, that,they thought that the same currency would be in existence in 1867, which was then the currency, and, therefore, the contract was to be discharged in that currency ; and it appears they did not •even communicate these thoughts and hopes to the plaintiff; and yet it is gravely asked, why did not Calbreath disclose to the agents that he was not contracting with reference to Confederate money % Disclose it to them ? How could he have more plainly disclosed it than he did? Was not his refusal to receive Confederate money a disclosure of his purpose ? Did he not disclose his pur*720pose, when he deliberately put in writing that this “sum is to be paid in the currency used in the common business of the country at the date of the maturity ” of this obligation ?
But it is said that, plain as this contract is written, there is some sort of a presumption, that the parties did not mean what they said, because they lived under the government of the Confederate States, and must be presumed to have contracted with reference to the currency of that government, and not of another ; and that, therefore, when they stipulated for such currency as may be used in the common busiuess of the country ” in the year 1867, we must construe their contract, by adding the words, ‘ ‘ provided, that currency shall remain as it is, Confederate treasury notes,” and thereby they are made to contract for the very thing they are seeking to avoid.
Surely everybody must admit, that a man had a right to sell his property in March ’64, for a better currency than the worthless trash then current. When he parted with his property there was, surely, nothing illegal, or immoral, or even disloyal, in his seeking to secure for it a sound currency. Why should there be any legal presumption against such a contract ? Upon what principle of law or reason can such a presumption be raised % Especially, how can it be raised in this case, against a man who positively refuses to receive Confederate money, and expressly stipulates that he is to receive another currency ? This violent and illegal presumption is to be raised in the face of the written contract, in the face of the fact, that he has refused to sell his property for Confederate money, in the face of the fact that he- thought (as many did), in 1864, that the Confederacy’ would be a failure; because, forsooth, he was a citizen of Virginia, and Virginia was one of the Confederate States, and it must therefore, be ■ presumed he was not contracting for the currency of the *721United States, then at war with the Confederate States. There might be some reason in raising such presumptions against the citizen of a government which had established its independence, and whose separate nationality had been recognized by the other nations of the world. But surely no such presumption can be raised against the citizen of a government which never had one day of peaceful existence, but whose every day’s existence, from the stormy cradle of its birth to its bloody and untimely grave, was a struggle for life.
But certainly and beyond all question, no legal presumption can be raised against the plain written terms of the contract. And I insist that it was not only lawful, but it was eminently proper in every prudent man who was about to part with his property as late as the year 1864, to stipulate for a currency other than Confederate currency, when it was then depreciated twenty for one, and steadily and rapidly going down every day.
But I understand that the principle now settled by this court is this (I state the very words of the proposition) ; that where parties enter into a contract during the war with reference to Confederate money as a standard of value, payable at a future fixed period, in such currency as may be current at the maturity of the contract, the presumption is, in the absence of evidence to the contrary, that the parties intended to pay in Confederate currency.
ITow this is begging the question in this case. It is assumed, that this contract was entered into with reference to Confederate currency as a standard of value, when, in fact, another and different currency is pointed to as the standard of value fixed by the parties by the express terms of their agreement; and when the very witnesses who swear that they understood the value to be ascertained with reference to Confederate currency, prove distinctly that $3,600 was worth only $140, and at the same time that the property sold was worth *722$1,000; and. when it is shown, too, that the property sold was worth from $1,000 to $2,500 in gold, and when the court fixes the value at at least $1,400. I say it is begging the question to say that property thus valued on all hands was valued mth reference to Confederate currenciJ> i-11 the face of the written contract, and in face of the fact that the value- of the Confederate currency was worth only $140, when the value of the property sold _ was worth from $1,000 to $2,500.
I think it is plain that in this case both the written contract and the parol evidence show conclusively that it is not shown that (in the language of the statute) the true understanding and agreement of the parties the contract “was to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to said notes as a standard of value, but that by the express terms of the contract, it was to be discharged in another currency, and was entered into with reference to another and different currency as a standard of value; and it was, therefore, error in the court below to scale the debt as a Confederate contract.
It is the province and the duty of this court to execute the contract of the parties; and when the contract has been fairly entered into, where no fraud is charged or proved, the court ought not to be deterred froto executing the contract because a high price has been agreed to be paid upon a long credit.
But it must be conceded that where the parties have deliberately entered into a written contract, and especially where there is no proof that the understanding and agreement was different from the written contract, that written contract ought not to be ignored and.set aside, because (as in this case) the agents of one of the parties had certain hopes and expectations and confidence in the success of the Confederacy and the continuance ■ of the same currency.
The law is, that where the'true understanding and *723agreement of the parties—of both parties, not of one— was that the contract should be fulfilled and performed in Oonfedei’ate States treasury notes, or was entered into with reference to said notes as a standard of value, then, and only then, is the contract to be scaled. And yet we are to set aside the solemn written agreement of the parties, because one of them (and in this case his agent) may choose to say that he was looking to a payment in Confederate currency, because he had confidence in the success of the Confederate cause. We are thus substituting the hopes and expectations of one of the parties for the solemn agreement of both of the parties, as evidenced in writing. I can never assent to such a proposition. I ana for executing the contract of the parties which they have deliberately made for themselves. I am for reversing the judgment.
Staples, J.
The questions of law and fact arising in this case were, by consent of parties, referred to the judge of the court for adjudication. Where this is done, the same weight and effect will be given to the decision in an appellate court, that are given to the verdict of a jury. In this case the judgment is in accordance with justice and is not plainly in conflict with the evidence ; and I am not disposed to disturb it. TJpon all the points involved, I refer to my opinion in Hilb v. Peyton, as containing all I desire to say.
Moncure, P. concurred in the opinion of Christian, J.;
Bouldin, J. concurred in the opinion of Anderson, J.
Judgment aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481799/ | Anderson, J.
delivered the opinion of the court.
A check is an inlaud bill of exchange drawn on a bank, or other house of deposit. The drawer undertakes that the bank will pay to the payee or holder the sum named in the check ; and the payee having received the check the drawer is not liable to pay it, if he drew it in good faith, until the holder has demanded and failed to obtain payment from the bank upon which it was drawn. If the bank refuses to pay, the holder, as-a general rule, has no right of action against it, but must look to the drawer for payment. But the drawer may have his action against the bank, for refusing to honor his cheek; but not until the same has been presented and payment refused.
It is consequently well settled, as a general rule, that the holder of a check has no recourse upon the drawer until the check has been presented to the bank and payment refused. Murray v. Judah, 6 Cow. R. 484 ; 8 Kent Com. p. 75, 4th ed. It is held that a check unless dishonored is payment. Byles on Bills, marg. p. 23, top 100. And that demand and refusal before suit is brought, is an essential preliminary to an action against the drawer. Murray v. Judah, 6 Cow. R. 484 ; Harker v. Anderson, 21 Wend. R. 372; Sherman v. Comstock, 2 McLean R. 19 ; Daniels v. Kyle, 5 Georgia R. 245 ; Case v. Morris, 7 Casey R. 100. And it is held that the same rules which are established in relation to bills of exchange, as to presentment and notice, in general apply to checks. Byles on Bills, top p. 85, marg. 13, 14, note 1, and top p. 92 and n. 1. The *743same diligence is required as to presentment and notice. Mr. Parsons says, a check must be presented within reasonable time in order to charge the drawer or indorser, in case of failure of the drawee. The fact that it is presumed to be drawn against deposited funds, makes it of even greater importance than in the case of a bill, that a check should be presented, and that the drawer should be notified of the non-payment, and that he and any indorser should be discharged by neglect of notice. 2 Pars, on bills p. 71.
In Gough v. Staats, 13 Wend. R. 549, it was held that greater diligence is necessary, in presenting checks for payment, than is required in relation to bills of exchange. But the better opinion is, that there is no good reason for the distinction. The fact that one instrument is drawn upon a bank, and the other upon an individual, can make no difference in principle, concerning the duty of the holder. What will be due diligence in the one ca'se will be due diligence in the other. Byles on Bills, marg. p. 19, note 1.
But they differ in respect to the legal consequences of negligence and delay in presentment and notice. In the case of a bill of exchange, it is an absolute and unqualified discharge of the drawer. In the case of a check, if presentment is made and payment refused, and notice given any time before the failure of the bank, the drawer is not discharged if it be shown that he is not prejudiced by the delay ; and if prejudiced he is discharged only pro tanto. Bell v. Alexander, 21 Gratt. 1. But presentment and refusal before suit brought, are, as a general rule, pre-requisite to the right of action by the holder to charge the drawer.
Mr. Smith, in his valuable work on Mercantile law, says, It has been held that if the drawer has no assets in the drawee’s hands, nor any reason to expect that the bill will be paid, a presentment is, for the purpose of charging him, unnecessary. But nothing short of this *744will do ; not even a declaration by a drawee, that be will not pay it. Smith’s Mercantile law, p. 812,, and cases cited. And again, on p. 332, he says, if the drawer has any reasonable ground to expect that the bill will be paid, he is entitled to notice.
In this case the drawer had more than double the amount of the check to his credit in the bank when it was drawn. He had reduced his credit on the 7th of March, when the bank was removed to Farmville ; but had still to his credit more than was required to pay the check, if it had been presented. But on the 1st of July his credits had been further reduced, so that they would have fallen short of paying the check, i£ it had then been presented, something over $300. And it is contended for the plaintiff, that he was thereby excused for failing to present the check, and give notice to the drawer.
In Hammond v. Dufrene, and Thackay v. Blackett, 3 Campb. R. 145 and 163, Lord Elden held the drawer entitled to strict notice. Mr. J. Story, in commenting on these cases in the matter of Brown, says, “ it was upon the ground that there was an open account between the parties, and therefore the drawer could not necessarily have been aware beforehand, that either of the bills would not be discharged ; so that the case was put upon the clear ground that the drawer had a right to draw, and a right to believe that his bills would be honored. Indeed, in the case of a fluctuating balance between the parties, this may well constitute a ground upon which, without knowing the exact state of the balance, the drawer may reasonably draw. And this, he says, was the very ground upon which the doctrine was put in the case of Orr v. Maginnis, 7 East’s R. 359, where the court thought in the case of a shifting balance, notice was necessary; because the drawer could not or might not know, that he was drawing without any right to draw. The same doctrine, he says, was upheld in *745Legge v. Thorpe, 12 East R. 171, and was there expounded upon the principles which I have stated.”
Their How to apply these principles. The drawers in this case had an open account with the bank. They were large dealers and esteemed good customers. Their deposits from January to March 1862, amounted to $20,000, some in bank notes and some in Confederate money. And what was the extent of their deposits afterwards does not appear. But it does appear that in October 1862, they made a deposit of $1,200. They had an open account with the bank and the balance was fluctuating. And the drawers could not, or might not, know that they were overchecking. The cashier testifies that it often occurred through the inadvertence of dealers, and that if this check had been presented it would no doubt have been paid upon the credit of the drawers. We conclude, therefore, that upon this ground the holder of the check was not excused for its non-presentment.
But it is further contended for the plaintiff, that he was excused on account of his inability, by reason of a broken limb, to go to Winchester to present the check for payment. There was no necessity for him to have gone in person. He might have sent it by post, as he did the letter acknowledging its receipt.
Another ground relied on was the state of the country, being occupied by the public enemy. There appears to have been nothing in the condition of the country to have prevented the presentment to the bank at Winchester before its removal. And due diligence required that it should have been presented before the removal of the bank. The check was sent by mail to the plaintiff on the 11th of February 1862, and he acknowledged the receipt of it “by due course of mail,” by letter dated' February 17th. He probably received it on the 12th or 18th of February. And the bank was not removed until the 7th of March. And it is proved that the mail *746stage ran regularly between Winchester and the plaintiff’s residence (which was about twenty-six miles from ■ Winchester on the stage road), until the 6th or 7th of ■ March. The same mail which carried his letter acknowledging the receipt of the check through Winchester to the defendants, might have safely carried the check to Winchester' to be presented to the bank for payment. And if it had been, it would have been undoubtedly paid. And no presentment being afterwards made until the bank had become insolvent, it would seem that nothing more is necessary to negative the plaintiff’s right of action to charge the drawers. The . presentment after the bank had failed was a vain and nugatory act, and was of no value for any purpose.
There is no evidence that the plaintiff made any effort to draw the money from the bank after its removal to Barmville. Communication, for most of the time, probably was interrupted by hostile armies. But sometimes it was open and uninterrupted. And whilst the bank was at Barmville checks from Winchester were paid at its counter. He says he did not know where the bank had removed. He surely could have ascertained by very little inquiry. Mr. J. Story thus lays down the rule: “If the acceptor has changed his place of domicil or business, presentment must be made at the new domicil or place of business, if by resonable diligence and inquiries it can be found, and it is within the same State.” Story on Bills, § 346, p. 441. But whether, in the then abnormal condition of the country, it was-the duty of the payee to follow the bank to Earmville, the court deems it unnecessary in this case to decide.. It is of opinion that if he did not intend to follow the bank to Farmville, he ought, at least, to have promptly returned the check to the drawers. He evidently did not desire to collect the money, but preferred to let it lie in bank. And having allowed it to lie in the bank for more than three years, without an effort to-collect *747it, and without notice to the drawers that he had not collected, and did not intend to look to the bank for its payment, but looked to them, without an offer to return the check to them and request that they would pay it, the court is of opinion that he must be deemed to have made the check his own, and to have relied upon the bank for ultimate security, and that the drawers were thereby discharged. 4 Kent’s Com. p. 549, 4th edi. The court is, therefore, of opinion to affirm the judgment of the district court.
Judgment or the District court or Appeals aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481800/ | Anderson, J.
delivered the opinion of the court.
A surety who pays the debt of his principal, upon the plainest principles of natural reason and justice, has a *750right to be reimbursed by him. And this principle is recognized by both courts of law and equity. There is an ™P^e(^ contract of indemnity between the principal and his surety, which obliges the former to reimburse ^e who has paid his debt; and the courts of equity will substitute him to the remedies and securities of the creditor for his indemnity; and this not upon the ground of contract, but upon a principle of natural equity and justice. In a court of law the surety in a joint bond with his principal, who has paid the debt of the principal to the creditor, can proceed against the principal upon the implied contract of indemnity, to be reimbursed the amount he has paid. He can proceed against him only upon the implied contract, and not as assignee of the bond; for by the payment of the bond to the creditor it is extinguished. And in Copis v. Middleton, 1 Tur. and Russ. R. 224, Lord Eldon held that in such a case, the doctrine of courts of equity, that a surety who has paid the debt of the principal may be subrogated to the remedies and securities of the creditor against the principal does not apply. He says the rule must be qualified by considering it to apply to such securities as are not extinguished, hut which continue to exist, and do not go back upon payment, to the person of the principal debtor. As where there was a mortgage in addition to the bond, the surety paying the bond, which is thereby extinguished, would have an equity to be subrogated to the benefit of the mortgage which is still a subsisting security. •
This decision is not in accord with the decisions of our courts, as to payments made by the surety, after the death of the principal debtor. It has been repeatedly held by this court, that where the bond has been paid by the surety, after the death of the principal, he will be subrogated to the rights of the creditor, and will be regarded as a specialty creditor of the decedent in the administration of assets, and as binding the real estate *751of the principal debtor, if the heirs are bound. That the bond although extinguished at law by the payment, will be resuscitated by courts of equity for the indemnity of the surety. But if payment had been made by the surety, in the lifetime of the principal debtor, he is considered here, as in Copis v. Middleton and Jones v. Davids, 4 Russ. R. 277, as only a simple contract creditor. Judge Tucker, in the very able opinion he delivered in Powell’s ex’ors v. White & al., 11 Leigh, 309, 324, says: “We do not in our courts, place the surety in the shoes of the bond creditor where he has paid off the bond in his principal’s lifetime. We still •consider him as a creditor by simple contract. There is, at that time, no superior dignity in one debt over the other. There is no right, no privilege of the creditor to which the surety can be subrogated. Bor though the bond should bind the heirs, yet during the debtor’s life it cannot affect the realty; and as to his ■personalty as well as realty, all creditors have, during his life, the same privileges. Substitution or assignment is, therefore, useless.” “ We apply the principle only where the payment is after the principal’3 death.” This equitable practice of subrogation, which is a creature of equity, is applied to sureties, as we have seen, not upon the ground of contract; for where I become the surety of another by jointly with him executing a bond to his creditor, the implied assumption of the principal debtor to reimburse me if I pay the debt, is ■ not an undertaking under his hand and seal. It is only an implied assumption ,on his part; and the surety having an equity to be subrogated to the rights and securities of the creditor, as for instance to the benefit •of the mortgage, when the creditor held such security, or to be regarded as a specialty creditor of the debtor, as placed in the shoes of the creditor, when he has made payment after the death of the principal debtor, is not upon the ground of contract, because there *752was no contract by mortgage, or by bond between tt>e principal debtor and the surety. But it is upon the §roun<i that the surety having become bound to the creditor upon an implied contract of indemnity with his debtor, has, in the place of the debtor, satisfied the claim of the creditor, done what the debtor ought to have done ; upon principles of natural justice and equity he should be entitled to the benefit of the creditor’s securities for his indemnity. But only for his indemnity. lie has no equity to be subrogated to the rights and securities of the creditor against the debtor for what he has not paid for him ; but only for what he has paid for him. So that upon the principle of subrogation, as upon the implied contract of indemnity, the surety is not entitled to recover from the principal a greater amount than he has paid for him. lie has oan equity to be subrogated only for his indemnity in cases where the doctrine of subrogation will apply. But in this case the payment having been made by the surety in the lifetime of his principal, it has no where been held, in this country or England, that the principle of subrogation is applicable. He must stand alone upon his implied contract of indemnity. As was said by the Lord Chancellor Cottenham in Reed v. Norris, 14 Cond. E. C. R. 362, 375, the contract between him and his principal is, that the principal shall indemnify him from whatever loss he may sustain by reason of incurring an obligation together with the principal. It is on a contract for indemnity that the surety becomes liable for the debt. It is by virtue of that situation, and because he is under an obligation as between himself and the creditor of his principal, that he is enabled to make the arrangement with that creditor. It is his duty to make the best terms he can for the person in whose behalf he is acting. His contract with the principal is indemnity.” He then asks the question, “ can the surety, then, settle with the obligee, and instead of treating that settlement as pay*753ment of the debt, treat it as an assignment of the whole debt to himself, and claim the benefit of it' as such to the full amount, thus relieving himself from the situation in which he stands with his principal, and keeping alive the whole debt ? This question- he answers in the negative, and says he is prepared to make a precedent. But this was unnecessary, as Lord Eldon in Rushforth ex parte, 10 Ves. R. 409, 420, and Butcher v. Churchill, 14 Ves. R. 567, had laid down the rule “ that where a surety gets rid of and discharges an obligation at a less sum than its full amount; he cannot, as against his principal, make himself a creditor for the whole amount; but can only claim as against his principal what he has actually paid in discharge.55 The same doctrine is asserted by eminent text writers and in various decisions, both in England and America; 1 Stor. Eq. Jur. s. 499 b., and 499 c. ; Pittman on Principal and Surety, Law Libr. vol. 40, top p. 98, marg. 134, and cases cited. And it is expressly held by this court in Blow v. Maynard, 2 Leigh, 29.
The court is therefore of opinion that Richards, having paid the debt of Forney to Kendrick, for which he was bound in a joint and several obligation as surety for Forney, in the lifetime of his principal, the said obligation was thereby discharged, and the said surety could not take an assignment of it. But that he has a claim on Forney, his principal, for indemnity ; that is, for the amount he paid the obligee, and for that only.
The court is further of opinion that upon the facts of the record Richards mpst be deemed to have paid the debt in April 1868, to Kendrick, the obligee, in Confederate money. The evidence shows that he paid him. about $2,000 in Confederate money, including a small account he had against him for three months’ board, in consideration of an assignment to him of bonds to the same amount, including the bond in which he was surety for Forney. The account seems to have been re*754ceived, in payment of the bonds, for its face amount, just as the Confederate money was received. There appears to have been no discrimination made by the parties in the transaction between the account and the Confederate money; but it seems to have been received in payment as Confederate money. Eor does it appear that Richards had a right to demand specie or other currency than Confederate in payment of it. And it being a contract made in the latter part of 1862 or 1863, for board, it may fairly be inferred that it was solvable in Confederate currency, there having been no stipulation that it was to be paid in specie. Nor does it appear that this account in the transaction was specially applied to the payment of Forney’s bond. Inasmuch, therefore, ' as Richards, the surety, must be deemed to have paid the debt of his principal -in Confederate money, he was bound to have received from his principal reimbursement in the same sort of funds. And it satisfactorily appearing from the preponderance of testimony in the cause, that the same was tendered by the appellee to Richards soon after he had paid the bond to the obligee,' and that he refused to receive it, the court is further of opinion that the Circuit court did not err in decreeing in his favor only the value of the Confederate money paid by him to Kendrick for his principal. And it not appearing that the amount allowed by the decree is less than the value thereof, the court is of opinion, for the foregoing reasons, to affirm the decree.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481801/ | Staples, J.
This is an appeal from a decree of the Circuit court of Frederick county in a suit wherein the appellees were complainants and the appellant, Sangs-ton, was defendant. The history of the transactions in which this controversy originated, very briefly stated, is as follows:
*763In the month of October 1865, the appellees purchased from the Baltimore Agricultural Aid Society a steam saw-mill, with its fixtures and appurtenances, at the price, in rouud numbers, of four thousand dollars, for which they executed their bonds payable to L. Sangston, “ Secretary of the Baltimore Agricultural Aid Society.” To secure the payment of these bonds, the appellees, in January 1866, conveyed in trust the said saw mill, with all its fixtures and appurtenances, and also certain real and personal estate. Default being made in the payment of the debt, the trustee was instructed by Sangs-ton to make sale of the mill. The appellees applied for and obtained an injunction to this sale, which was after-wards perpetuated by a decree of the said Circuit court. It is from this decree an appeal was taken to this court.
Various grounds have been urged by the appellee against the deed of trust and the proposed sale under it, which will be briefly considered.
It is objected, first, that as Sangston was elected corresponding secretary for one year only, and as his term of office had expired when the sale was directed, he was not then authorized to enforce the collection of this debt. Sangston, both in his answer and in his deposition, states that he was elected secretary at the organization of the society ; and that he has ever since held the office without interruption. There is nothing in the record contradicting or tending to contradict this statement ; and we must therefore regard it as true. By a resolution of the board of directors of the 1st July 1866, he, Sangston, was authorized to collect the debts due the society. Under that resolution he took possession of its bonds and notes, and has been ever since engaged in collecting the same, without objection from the society or any of its members. As before stated, the bonds are payable to “L. Sangston, secretary of Baltimore Agricultural Aid Society ” ; the deed recites that the appellees are indebted to him the amount of these *764bonds, and that the property is conveyed to secure their payment to him. This form of security was no doubt a^°P*ed *° enable him to sue for and collect the debts due the society, without the expense and inconvenience of his bringing before the courts the numerous parties in*eresí:ec* *n proceeds of sale. It is clear that the legal interest in these bonds is vested in Sangston alone. Upon well settled principles the descriptive words used in the instruments may be rejected, and suits at law or in equity may be maintained thereon in his name, without the addition of other parties. Porter v. Nekervis, 4 Rand. 359 ; Clarksons v. Doddridge & al., 14 Gratt. 42 ; Sangston v. Coffman, 21 Gratt., 263.
It is next objected that Sangston, in taking the deed of trust, acted without instructions or authority from the society. The doctrine of ultra vires relied on in support of this proposition, has no application to the case. That doctrine only applies when the principal is sought to be charged with the unauthorized act of an agent, and not where a debtor has given a security to the agent for the benefit of the principal. The appellees had the right to secure the payment of the debt they had contracted. The society, though not expressly authorizing the act in the first instance, might at any time ratify it, and claim the beuefit of the security thus given. It will be presumed to have done so until some distinct disavowal is made to appear. Nothing of the kind is shown in this case. And it could never be endured that in a controversy between appellees and the agent alone, the principal should be deprived of thi3 only security for his debt, without evidence of his dissent, and without even an opportunity of being heard.
Having disposed of these preliminary objections, I come now to consider very briefly, the main question in the case. It is insisted, that a sale of the property conveyed in trust, would be a fraud upon the appellees ; *765that they purchased the steam saw mill with the express understanding that it was only to be paid for out of the profits, if any, realized from the mill itself; that the deed was given at the suggestion of Sangston, because one of the persons associated with the appellees—a man of large experience and influence in the county—had withdrawn from the adventure ; and the real and indeed sole object of the deed was to furnish the secretary, Sangston, some security against the claims of other creditors and purchasers. This is substantially the ground upon which it is sought to arrest the sale by the trustee. If successful, the effect will be to vacate the bonds and deed for all practical purposes. The bonds on their face are payable absolutely. It is proposed to show, by pai’ol evidence, they were only to be paid out of the profits of the mill, if any were realized. The deed provides, that if the bonds are not paid at maturity, the property therein conveyed shall be sold. It is proposed to show, by parol, that the property was not to be sold under any circumstances. And thus it is to be made to appear, that an instrument of writing which on its face was intended as a valid security is, in fact, no security at all. No argument is necessary to show that this is an attempt to contradict or vary the express terms of a written agreement by proof of a prior or cotemporaneous parol agreement. The admission of such evidence as a foundation of relief in any court, violates the best established principles of the common law. When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, it is conclusively presumed that their whole engagement, the extent and manner of their undertaking, are embodied in the instrument. The cases of Towner v. Lucas, 13 Gratt. 705; Woodward, Baldwin & Co. v. Foster, 18 Gratt. 200; afiirm these principles, and are decisive against the pretensions of the appellees.
This is the aspect of the case when considered with *766reference to the conclusive effect of the written contracts. If, however, we go farther, and give due weight to all the evidence adduced by the appellees, I do not perceive the-result would be different. It will be observed, that the appellees do not pretend there was any special contract ór understanding between them and the society, or its agents, by which the steam saw mill was not to be paid for, unless out of the profits realized. They aver that such was their understanding, derived from various newspaper publications and the pamphlets of the society, ■one of which is filed with the bill. "What these newspaper publications were, does not appear; as they are no part of the record. The pamphlets filed with the bill show that the main purpose of the society was the distribution of agricultural and farming implements, tools, seed and stock; to be paid for out of the first crops,- or as soon thereafter as possible.
It is clear, that the general scope and design of the society did not extend to the sale or donation of steam saw mills and articles of like character. This could not have been done without seriously diminishing the resources of the society and impairing its capacity for good. In this case, the mill, with its fixtures, was purchaséd by certain members of the society, at a cost of near four thousand dollars, and paid for with means borrowed from bank upon their individual credit and responsibility. It can be well understood, therefore, how it was, and why it was, the committee to award the mills was instructed to make' known to all applicants, that in no case would the mill be awarded except to parties giving good and' satisfactory security. The appellees understood these terms, and attempted to comply with them by a proposition in writing, to give a bond with satisfactory securities. Upon the faith of this undertaking, the mill was awarded to them f and actually placed in their possession. Some of the parties, however, offered as sureties or endorsers, declined to *767assume the liability; and this part of the arrangement was defeated. Appellees then proposed in writing, to execute the trust deed, and that proposition was accepted, in lieu of the personal security.
This latter arrangement was a matter of favor to them, as they had not complied with the terms of the sale, and were liable at any time to surrender the possession of the mill. The deed was accordingly executed. It conveys the mill, with all its fixtures and appurtenances, a house and lot in Winchester, and more than a dozen tracts of land, containing not less than three thousand acres, situated in a half dozen different States. It directs with great minuteness, the order in which the property shall be sold, if default is made in the payment of the debts. And at the conclusion, this provision is added, “It is agreed that if the heirs of the said James P. Riely shall choose to make sale of the western lands privately, that they may do so; and the trustee shall unite in the sale ; and the proceeds of the said two-tenths to be applied to pay the debts hereby secured.
Row, it is inconceivable that such a deed, with such provisions, drawn with so much precision and accuracy ; evincing the greatest care and foresight in regard to the property conveyed and the proceeds of sale, should have been deliberately executed and placed on record, with an understanding that it should never be enforced, or if enforced at all, only on certain contingencies wholly omitted in the deed. The evidence does not warrant any such conclusion; on the contrary, I think it plainly shows that the bonds and the deed contain the true contract of the parties ; and there is not in this case the slightest foundation for the chai’ge of fraud against the appellant or the society he represents.
Por these reasons, I think -the decree of the Circuit court should be reversed, the injunction dissolved and the bill dismissed.
The other judges concurred in the opinion of Staples, J.
*768The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the said decree is erroneous. Thei’efore, it is ordered and decreed that the same be reversed and annulled, and that the appellees, George M. Gordon and J. 0. Riely, do pay unto the appellant his costs by him expended in the prosecution of-his appeal aforesaid here.
And this court proceeding to pronounce such decree as the said Circuit court ought to have rendered, it is further decreed and ordered that the injunction awarded the plaintiffs, J. Chap. Riely and George M. Gordon, on the 30th day of April 1869, “restraining John J. and' James H. Williams, trustees, from selling the steam saw mill in the proceedings mentioned until the further order, of the court,” be dissolved, the bill of the plaintiffs dismissed, and that they do pay unto the defendants their costs by them about their defence in the said Circuit court expended. Which is ordered to be certified to the said Circuit court of Frederick county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481802/ | Bouldin, J.
delivered the opinion of the court.
The decrees complained of in the petition for appeal were rendered, one of them on the 23d day of July *77218 68, and the other on the 28th of January 1869. A subsequent decree finally disposing of the cause and dismissing the bill was rendered on the 12th day of June 1869. The appeal was not allowed until the 26th day 0f October 1871; but it is conceded by the parties, by counsel, as a fact in the cause to be considered by the court, that the petition was presented to one of the judges of this court at Staunton during the August term of the court, 1871, which commenced August 10th and closed September 20th, 1871.-
On this state of facts it has been earnestly and ably contended by the counsel for the appellee that the petition was not presented within the time prescribed by law, and that the appeal should, therefore, be dismissed as improvidently awarded.
Under the statutes existing when these decrees were rendered, and still in force, no appeal can be allowed from any final judgment or decree, unless the petition shall be presented within two years after the date of the decree or judgment; and it is obvious that more than that time elapsed between the date of the latest of the three decrees and the presentation of the petition for an appeal. It does not appear from the concession of the parties on what day of August term 1871, the petition was presented, but as it was presented at Staunton during that term, it could not have been earlier than the 10th day of August 1871, being the 1st day of the term. Assuming that to be the true date, it was two years and fifty-nine days after the last decree, two years six months and thirteen days after the decree of January 28th, 1869, and three years and eighteen days after the decree of July 23d, 1868.
But by the act of the 5th of November 1870, Session Acts 1869-70, chapter 399, pp. 553-4, passed within two years from the dates of the decrees of January and June 1869, and amending the law limiting appeals to two years, it is enacted “that the time from the 26th day of *773January eighteen hundred and seventy, to the passage of this act, shall be excluded from, the computation of said period of two years.” The time thus required to be deducted amounts to nine months and ten days, and when the deduction is made in this case, the time between the dates of the decrees of January and June 1869, and the presentation of the petition, will be less than two years; and the case would be the same were the last instead of the first day of Staunton term assumed as the day on which the petition was presented.
The appeal, then, from those decrees was taken in due time, notwithstanding the court should be of opinion that the decree of July 1868, is a final decree and no longer subject to appeal.
At the next term after that decree was rendered the appellants presented to the court their bill of review, duly supported by affidavit, seeking to have the decree reviewed and reversed, and asked leave to file the same; but the court, by decree of January 28th, 1869, refused to allow the bill of review tó be filed, decreed adversely thereto, and re-affirmed the decree of July 1868; and not only from the decree of July 1868, but from this decree of January 1869, the appeal to this court was allowed. This appeal from the last decree is, as wre have seen, in time, and, of necessity, it presents for our consideration the propriety of the decree of July 1868, sought to be reviewed. If that decree was final and ■erroneous on its face, the bill of review should have been allowed and the decree reversed. If the decree was interlocutory merely, and erroneous, then the bill of review should have been treated by the court as a petition for a rehearing, and the decree should have been reheard and reversed; and in either event, the refusal of the court below to entertain the application was a proper subject of appeal to this court; and as we have already said, the appeal is in time. See 2 Rob. old practice, p. 418, citing the cases of Lees v. Braxton, 5 *774Call, 459, and Williamson v. Ledbetter, 2 Munf. 521. But as the result of a reversal of the decree of January were that decree alone to be considered by this-court, would probably be to send the case back to the oircuit court, with instructions either to allow the bill of review to be filed, or to rehear the cause, as the case-may be, and would thus be attended with additional expense and delay: it is proper to consider and decide the-question so ably and elaborately argued at the bar, viz: whether the decree of July 1868, is final or interlocutory.. If that decree is not final, but interlocutory merely, then it is properly before us on the appeal in this case, notwithstanding more than two years have elapsed from its rendition.
The court is of opinion, that the decree of July 1868, was not a final decree, but was merely interlocutory.
The distinction between final and interlocutory decrees has been a subject of frequent discussion before this tribunal, and is now well established by the decisions of the court.
In Cocke's adm'r v. Gilpin, 1 Rob. R. 20, 46, Judge Cabell, adopting the language of Judge Carr iu Harvey & wife v. Branson, 1 Leigh, 108, said:. “When a decree makes an end of a case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do, it is certainly a final decree.” And in the same case, p. 27-8, Judge Baldwin said: “Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, then the decree is to be regarded not as final but as-interlocutory.”
Here we have very briefly and clearly presented the-characteristic features of a final and an interlocutory decree ; and the definitions thus given have been approved and adopted by this court in the subsequent case of Fleming & als. v. Bolling & als., 8 Gratt. 292, Moncure, J. delivering the opinion of the court.
*775Let us apply the test to the decree of July 1868.
The suit was for the specific performance of a contract in writing, signed and sealed by the parties, for the sale and purchase of land ; and performance was resisted mainly on the ground of inadequacy and failure of consideration; the consideration being Confederate States treasury notes. The decree merely set forth, that in the opinion of the court, upon the principles of a court of equity, the contract ought not to be enforced; but it did not dismiss the bill. On the contrary, it goes on to declare, that the only relief to which the plaintiffs were entitled, was to have the value of the Confederate States treasury notes paid by their ancestor for the land, repaid to bis personal representative ; and that upon his being made a party the court loould proceed to ascertain through one of its commissioners, the value of said notes at the date of payment, and would decree accordingly ; but should the plaintiffs elect to proceed at law, the bill would be dismissed without costs to either party. And the cause teas continued to the next term to give the plaintiffs a reasonable time to make their election. This is the substance of the decree; and it certainly cannot be said of it, that it "makes an end of the case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do;” that no "further action of the court in the cause is necessary to give completely the relief contemplated by the court.” On the contrary, the court after settling certain principles as applicable to the case, sedulously avoids rendering a decree in favor of either party, but indicates a form of relief to which the plaintiffs were entitled in the cause; and continues it with a pledge on the face of the decree, that the relief thus indicated would be ascertained by the court and granted, if elected by the plaintiffs.
Such a decree is plainly interlocutory ; and the appeal allowed in the cause, brings properly before this court the entire record.
*776This brings us to the merits of the case ; about which, we think there can be no doubt.
Each party was sui juris, and no advantage was taken on either side. The land was sold for a sum in Confederate States treasury notes, demanded for it by the vendor, and deemed at the time hy both parties its fair equivalent. The entire amount of the purchase money was paid in cash to the vendor, and received by him as a sufficient consideration—instructions were given to a person who was present for the purpose, to prepare a deed—officers were in attendance to take and certify the proper acknowledgments—the writing of the deed was commenced, and its completion was only prevented by the absence of certain papers, which were necessary to ascertain the boundaries of the land. The vendor seems to have caused a deed for the land to be prepared by his counsel; and always until, and in fact for sometime after, the fall of the Confederacy, expressed his willingness to execute it; but in some way its execution was delayed. .
There was no evidence introduced in the cause showing, or even tending to show, that the price paid for the land was not at the time of payment its full value in Confederate States treasury notes ; nor was there any evidence showing that one dollar of the money received perished in the vendor’s hands. On the contrary, the vendor said that he would be able to make a satisfactory use of the money.
The ground on which the Circuit court refused to enforce specific performance of the contract, evidently was not that the consideration was inadequate at the date of the contract, nor that there was fraud in the sale, nor undue advantage taken of the vendor ; but, that in the state of the law w'hen the cause was heard in the Circuit court, a court of equity could not regard Confederate States treasury notes as a valid consideration. Whatever room there may have been for discussion on that *777subject at an early period after tbe close of the war, it Í3 no longer a doubtful or open question. All doubt about it has been removed by repeated decisions as well of the United States Supreme court as of the courts of the several States. Among them will be found a recent decision of this court directly on the point, and in a case in all respects analagous. Hale v. Wilkinson, 21 Gratt. 75.
That was a suit for the specific performance of a contract made during the war for the sale of land for Confederate States treasury notes, and the contract was specifically enforced. Judge Moncure, speaking for the court, says, that in determining the question of the right to specific performance, “we must carry ourselves back to the date of the contract, and the time when the purchase money was paid. If at that time the consideration would have been deemed adequate; if the court would then have decreed a specific execution of the contract, had this suit been then brought, it follows, I think, necessarily, that the consideration must now be deemed adequate, and the court must now decree such execution.” P. 87. We approve aud re-affirm these principles ; and applying them to the facts of this case, we adopt the following language of the same learned judge: “ Can there be a doubt, that if this suit had been then brought (that is, when the contract was made, and the price demanded by the vendor for the land was fully paid in cash,) the consideration would have been then considered adequate, and the court would then have decreed specific execution? I think none whatever.” Ibid, p. 87.
The reasoning and conclusions of the court, throughout the entire opinion, are referred to as strikingly applicable to tbe case before us ; and the facts are in all material respects alike. If there be a difference in any respect, that difference is in favor of the enforcement of the contract in this case. In Hale v. Wilkerson, there *778was, as to a portion of the purchase money, both delay ai)d depreciation before the payment thereof was completed ; whereas, in this case, there was compliance with the contract by the vendee to the letter, by the payment in cash of the entire price demanded by the vendor for the land. The vendor thus received in hand at the date of the contract, the full consideration demanded by him for the land, leaving nothing more to be done by the vendee, who was not for one mo'ment in default.
Under such circumstances, there cannot be a doubt that the vendee was ihen, and that his heirs are now, entitled to a specific performance of the contract. The court is, therefore, of opinion, that the decree of July 1868, refusing to enforce the contract, and the subsequent decrees of January and June 1869, are erroneous, and should be reversed with costs to the appellants ; and that a decree should be entered, requiring the appellee to convey the land in the contract mentioned to the appellants, with general warranty.
The decree was as follows :
The court is of opinion, for reasons stated in writing and filed with the record, that the appellants are entitled to a specific performance of the contract in their bill mentioned, and that the decrees of the 23d day of July 1868 and of the 28th of January and 12th of June 1869 are erroneous.
It is therefore ordered and decreed that said decrees be reversed and annulled, and that the appellee, George W. Keller, do pay to the appellants their costs by them expended about the prosecution of their appeal aforesaid here. And this court proceeding to render such decree as should have been rendered by the said Circuit court, doth order and decree that the said George W. Keller do convey to the plaintiffs, in said Circuit court, children and heirs at law of saidMWilliam Ambrouse, deceased, the tract of land described in the contract of the 29th of *779January 1864, exhibited with the bill, with general warranty of title ; and that said George W. Keller do pay to the plaintiffs their costs by them about the prosecution of their suit in said Circuit court expended. And should the said George W. Keller fail to make said deed within sixty days from this date, the court doth further order and decree that John J, Williams, who is hereby appointed a special commissioner for that purpose, shall in the name and on behalf of said George W. Keller convey the said tract of land to said heirs at law of William Ambrouse with general warranty of title on the part of said Keller and at his costs ; and said commissioner shall then report his proceedings to the said Circuit court in order to a final decree. All which is ordered to be certified to the Circuit court of Frederick county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481803/ | Anderson, J.
This is an application of a debtor, to a court of equity, for relief on a contract made between the 1st of January 1862 and the 10th of April 1865„ The bill alleges that plaintiff, who is appellant here, was the purchaser of three adjoining lots in the city of Richmond, having a front on Franklin street of twenty-six feet each, which were exposed to sale at public auction on the 5th day of February 1862, by their joint owners, Richard Whitfield and John F. Whitfield, at the price of $148 per front foot, aggregating $11,154. That agreeably' to the terms of the sale, he paid one-fourth of the purchase money down, in Confederate money, and gave his three several notes, in equal amounts, payable in one, two and three years, with interest, for the remaining three-fourths. That thereupon the vendors conveyed him the title, and he gave them a deed of trust upon the lots to secure the deferred payments. That he *782paid the two first notes, as they fell due, in Confederate and tendered payment of the last note, at its maturity on the 5th of February 1865, in Confederate States treasury notes; which .Richard Whitfield, the ^ben bolder and owner of the note,refused to receive.
The bill also alleges that plaintiff applied to the court of conciliation in the city of Richmond for the adjustment of the controversy. And that said court, on the 30th of October 1865, decided that plaintiff should pay to defendant $85.37, in full discharge of said note, and of the interest which had accrued thereon, to the date of said judgment, in Federal currency: which sum plaintiff was ready and offered to pay ; but the said Richard refused to receive it. He insists that the defendant is concluded from demanding any more than was awarded him by said court, because: 1st, It is a res adjudicóla ; and 2d, Because the decision was just and right.
The answer takes issue upon these pretensions of the bill. The Circuit court held that it was a Confederate contract; but that the scale should be applied at the date of the contract, and decreed that the plaintiff should pay to the defendant $2,308.40, with interest from the 5th day of February 1862, and his costs. From that decree an appeal was allowed the plaintiff' to this court. And the defendant has filed a petition for a cross appeal, upon the ground that the decree is erroneous, in not allowing him the face of the note.
The first question that meets us is, is the defendant concluded by the judgment of the court of conciliation ? That court seems to have been established by the military power, then dominant in this state, as a temporary expedient, to arbitrate and adjust disputes between citizens during the suspension of the civil authority. It Was'composed'of gentlemen of learning and ability, one of whom is a distinguished member of this bar; and the other afterwards presided in one of the Circuit courts of this Commonwealth. This decision might be sugges*783tive of what was right, and entitled to a persuasive influence ; but could only be advisory. It could not have the force of an award, although the gentlemen;'composing the court were authorized by the order to arbitrate, it not being shown that the appellant consented to the submission to their arbitrament. The answer denies that he consented, and alleges that he protested against the jurisdiction of the court. Can it have the force of a judgment ? The military order does not seem to contemplate it, as it authorizes the appointees to “ arbitrate ”; and expressly provides that its decisions shall be no bar to legal remedies, when the civil laws and civil courts are re-established. It seems to have been designed in its institution to enlighten the conscience of the military commander, who doubtless needed enlightenment ; for it seems that its decisions could only be enforced at his pleasure. The decisions of such a tribunal cannot be binding upon the judicial tribunals of the state, and cannot conclude the appellant in this case.
Section 4, chap. 71, of the act passed March 3, 1866, acts of 1865-6, p. 185, called the adjustment act, provides that “ in any case wherein it shall appear that on any contract made or liability incurred on or after the 1st day of January 1862 and before the 10th day of January 1865, the debtor on or after the maturity of the ■claim against him, and within the peroid above mentioned, made to the creditor a bona fide and actual tender of the amount due, in the said Confederate States treasury notes, or other equal or better currency, and that the creditor then refused to accept the same, a court of ■equity may grant relief to the debtor, unless it appear that the creditor was justified in refusing to accept the amount tendered, on account of a substantial and decided depreciation of said currency after the time at which payment ought to have been made, and before the time at which the tender was made.” The debtor in this case, having made the tender on the day of the ,matu*784rity of the note, his case does not fall within this excepHo is entitled to relief, “unless (as is further Prov^e^) ^ otherwise appear to be inequitable to grant such relief.” This section invests a court of equity with p]enary jurisdiction to inquire what was the contract ; whether the currency tendered was in compliance with it, and whether the creditor was justified in refusing it, and to give the debtor such relief as, under all the circumstances of the case, would be equitable. It involves an inquiry into the whole transaction, with an express inhibition to grant the debtor any relief which would be “inequitable.” This brings us to the inquiry, what was the contract between these parties ?
The appellee, in his answer, assumes that the negotiable notes, the deed of conveyance and the deed of trust furnish the only legal evidence of the contract, and that they must be interpreted according to the principles of the common law and the statutes of Virginia, and the acts of Congress, which were in existence and in force at the time the contract was made. If that position is tenable, it is very clear that it must be construed to be a specie contract. But that position cannot be maintained. Section 1 of the act of Assembly supra provides that either party may rely upon parol, or other relevant evidence, to show what was the true understanding and agreement of the parties, expressed or to be implied, as to the kind of currency with which the contract was solvable, or with reference to which, as a standard of value, it was entered into. And the whole current of decisions by this court is to the effect that the design and operation of the act being to ascertain and enforce what was really, and in truth, the contract between the parties, and not to impair the obligation of the contract, it is constitutional and valid. So that this is a res adjudicate, and no longer an open question.
Again, it is argued by the learned counsel for the appellant that, inasmuch as the act of Assembly reversing *785the common law presumption was not passed until subsequent to this transaction, and did not go into efieet until the 20th of October 1863, the common law prer sumption that a contract to pay so many dollars is a contract to pay specie, prevailed at the date of this contract and must govern the case. It is true that the appellant cannot derive any benefit from the act of 1863, it being subsequent to the transaction, and only prospective in its operation. By force of that act all contracts made on the 20th of October 1863, and subsequently, for payment of money, shall be presumed to be for currency, unless there is an express intendment to the contrary. So that the efieet of that act was to create a presumption of law just the reverse of the common law presumption.
But the appellant does not rely upon that statute; nor does he rely upon a presumption of law in support of his pretension. But he relies upon a presumption of fact, that the sale was not made to him for specie, but was made for the prevailing currency. This he is authorized to do, not by the act of 1863, but by the act of 1866, which, we have seen, changes the rules of evidence in relation to contracts made between the 1st of January 1862, and the 10th of April 1865, in order to ascertain and enforce the true understanding and agreement of the parties in respect to the kind of currency in which they were solvable. And there can be no question now as to its constitutionality. To say that it was not competent for either party to show by parol, or other relevant evidence, direct or by implication, that the understanding and intention of the parties were really, aud in fact, the reverse of the common law presumption, would be to annul the law, for it would defeat its very end and scope.
The note in controversy, as we have seen, was given for the last instalment of the purchase money, and bears date February 5th, 1862. If it had been given a month *786and a few days earlier, it would not have fallen within ■the provisions of this act. It was given at a time when Confederate money was comparatively but little depreciated, and when it constituted, together with Virginia State treasury notes and Richmond city notes, all of a uniform value, the circulating medium of the city.
The vendors were not present at the sale. And the auctioneer and all the witnesses who testify on that subject, except one (Moses L. Strau3, a witness for plaintiff), say that nothing was said by the auctioneer at the sale as to the kind of currency in which payment would be required. Straus says that the auctioneer said the cash payment would be received in Confederate money, but he agrees with all the rest, that nothing was said as to the deferred payments. And the auctioneer says that he received no instructions from the vendors as to the kind of currency which would be required.
But that there was an impression on the minds of the bidders and bystanders at the sale that payment would not be required in specie, I think, is shown by all the testimony in the record on that subject, and also by the price bid for the property, and that they expected payment to be made in the prevailing currency. Though if Straus is not mistaken, it would have been implied that no assurance was intended to be given as to the deferred payments. But whilst the above impression prevailed, it is evident that neither the vendors nor the auctioneer said or did anything to create such an impression.
The appellee states, in his answer, that he and his joint vendor sold on time as to part of the purchase money, with the expectation that before the deferred payments were due the confederation would be established and a firm and permanent currency provided, in which they would receive payment. And that they would have been unwilling to have sold entirely for cash. From this the inference is unavoidable that they *787did not intend the sale to be for specie. And they must have known, from the. price bid for the property, that the purchaser did not regard it as a sale for specie. And the confirmation of the sale, under these circumstances, by the vendors, forbids that they should after-wards be allowed to claim it to have been a specie contract.
"Whilst it was well understood by both parties that the sale was not for specie, there was no clear or definite understanding as to the character of the currency in which the deferred payments should be made—at least, no such understanding as would amount to a binding contract on the part of the vendors to receive payment of the last note at its maturity in an almost worthless paper, though it might retain the impress of a Confederate currency. They had the right, if they chose, to receive payment in a depreciated currency. And they did receive the first and second deferred payments in a greatly depreciated currency, especially the latter. And having accepted it, the purchaser’s obligations, to that extent, were discharged. By the proviso to section 2 of the act of adjustment, supra, he is entitled to have “full credit for the nominal amount so paid, and such payment shall not be reduced.” And I apprehend it cannot be reduced by requiring him to pay a larger amount in discharge of the last payment, in consideration that the vendors had accepted the discharge of the antecedent instalments in a very depreciated currency.
The evidence does not show that it was the true understanding and agreement of the parties that payment should be made in any particular distinctive currency. But it does show, I think, that it was not made with reference to specie as the standard of value, but to the currency which prevailed, State and Confederate, which, being of equal value, were indifferently the standard of value in this contract. There is nothing in the record to show that it was the understanding and agreement of *788the parties, either express or by implication, or in effect,, that purchaser should have the right to pay, and the should be bound to receive, in discharge of the deferred instalments, or either of them, Confederate currency; however worthless it might become.
I am, therefore, of opinion that Eichard Whitfield was justified in refusing to accept the Confederate treasury notes which were tendered in discharge of the last note at its maturity, when forty dollars thereof were worth only one dollar in gold. And that it would be very inequitable to allow the appellant to discharge his obligation now and to relieve the property from the incumbrance by the payment of the gold value of the money so tendered.
But it would not comport with his contract to require him to pay the face of his note in specie, or in a currency nearly equal to specie. It seems to me that the most equitable and just solution is, to estimate the fair-value of the lots at the date of the contract in gold, and to require the purchaser to pay one-fourth of that sum, with interest, according to the terms of the sale, the last note being for one-fourth of the purchase money, as is provided by the second section of the act of adjustment, as amended by the act of February 28, 1867. And a majority of the court being of opinion that the sum decreed to be paid by the court below, in the present currency, is about one-fourth of the value of the lots at the date of the sale, and is as much as the appellee is entitled to receive, his cross appeal must be dismissed with costs. And the decree of the Circuit court is-affirmed.
Moncure, P. concurred in the opinion of Anderson, J.
Christian and Staples, Js. concurred in affirming the decree.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481805/ | Christian J.
delivered the opinion of the court.
The court is of opinion that there is no error in the decree of the Circuit court of Alexandria county, so far as the said court decreed a specific performance of the agreement for the sale of certain real estate entered into between Isaac Eewton and John Eagle, Jr.
The bill and the undisputed facts in the record present a clear case for specific performance. The answer of the defendant does not resist a specific performance of the contract entered into between him and the plaintiff; but claims that he is entitled to compensation for damages sustained by him arising out of the acts of the plaintiff (Eewton) and his agents in interfering with the possession and enjoyment of the land bought by him of said Eewton. The defendant does not seek a recision of the contract; but expresses his willingness to perform it on his part, and his desire to have the same specifically executed whenever the court shall award to him compensation for the damages he has sustained in consequence of the acts of the plaintiff and his agents.
*819The whole controversy in the case, which has been one of protracted and bitter litigation, is now narrowed down to the single point (as the case is presented before this court' of a claim on the part of the defendant, for compensation for damages sustained in consequence of the acts of the plaintiff and his agents.
The Circuit court of Alexandria decreed a specific performance of the contract between the parties; but refused to direct any enquiry as to the compensation claimed by the defendant; that court being of opinion that “ if Newton has interferred with Nagle’s possession and rights, either through the agency of Kurtz or otherwise ; if he has been the cause of personal loss to Nagle, or disturbed him in the enjoyment of his private or personal rights, he must seek redress in another forum.”
IJpon an appeal from this decree to the District court of the Fourth judicial district, held at Fredericksburg, that court, reversing to this extent only, the decree oí the. said Circuit court, was of opinion “ that the appellee, Isaac Newton, is liable to the appellant for any damages which may have been sustained by him arising from the acts of said Newton or his agents in interfering with the appellant’s possession and enjoyment of the land bought by him of said Newton, and that an account ought to be taken of the amount of any such damages; and the liability of said Newton therefor, ought to be enforced in this suit.” An appeal from this decree brings up the case to this court.
The court is of ¿pinion that there is no error in the decree of the said District court.
"While there is some conflict in the English cases, and in some of the American decisions, as to how far courts of equity will entertain bills for compensation or damages, except as incidental to other relief, it seems to be now well settled, that where a court of equity clearly has jurisdiction of the subject of the controversy, jurisdiction for compensation or damages will always attach where it is *820| ancillary to the relief prayed for. 2 Story’s Eq., § 1798, 799, Ed. 1866.
The case before us does not come within the rule attempted to be settled in the conflicting decisions referred an(j reiie(j Up0n at the bar. The question in those cases, upon which the authorities are much divided, is whether a court of equity will hold jurisdiction of a case merely to make compensation to an injured party where it cannot give specific performance. In other words, is compensation within the power of equity only as an incident of, or collateral to, a specific performance, which would otherwise be inequitable, or can it decree compensation by itself, without reference to specific performance. There is very high authority, including the Supreme court of the United States, for the proposition, that courts of equity have this distinct and independent power of compensation. Pratt v. Law & al., 9 Cranch R. 456 ; Philips v. Thompson, 1 John. Ch. R. 131 ; Woodcock v. Bennet, 1 Cow. R. 711.
But many cases might be cited which hold the contrary doctrine, both in England and in the States of the; Union. See note (v.), 3 Parsons on Cont. 403.
It is not necessary in this case to attempt to reconcile these conflicting authorities. It is sufficient to remark that the cases referred to at the bar were generally cases where specific performance toas denied. And yet in many of these cases the jurisdiction of the court to make compensation and direct an issue quantum damnificatus was expressly affirmed.
But the case before us is one in which specific performance was decreed, and was manifestly a case in which specific performance ought to have been decreed. The court, therefore, having full and complete jurisdiction, and having properly exercised that jurisdiction in decreeing specific performance, the only question is, whether or not the court of chancery may not, as an incident to the relief sought, or collateral to the specific *821performance, ydiich would otherwise be inequitable, direct an enquiry as to the damages which the defendant has sustained in consequence of the acts of the plaintiff or his agents; or whether the case must be retained in the court of chancery until the question of damages can be ascertained in another form, to wit: in a court of law.
As before intimated, we think the doctrine on this subject is now well settled, and may be succinctly stated to be this: that where the court of chancery has jurisdiction of the case, and where it is a case proper for specific performance, it may, as ancillary to specific performance, decree compensation or damages; and where the ascertainment of damages is essential, in order to do complete justice between the parties in the case before it, the court ought not to send the parties to [another forum to litigate their rights ; but should refer [the matter to one of its own commissioners, or direct an issue quantum damnificabas to be tried at its own bar. 2 Story Eq. Ed. 1866, §§ 798-9, note; Fry on Specific Performance, second Am. Ed. p. 448.
The last named author, treating of the subject under consideration, says: “In early times the courts did not entirely disclaim jurisdiction in respect of damages, where they were incident to the subject matter already in contention before the court. Subsequently, however, the jurisdiction was disowned, and a broad distinction ■set up between compensation and damages.” After some comments on a decision of Lord Eldon on this subject, he proceeds: “At present, however, the courts manifest an inclination to return to the original view of its jurisdiction, and to assist in the ascertainment of damages where these are essential to complete justice in the case before it.”
In a recent English case, Prothero v. Phelp, 25 Law Jour. ch. 105 (L. J. J.), Lord Justice Turner said: “That it is competent for this' court to ascertain dam*822ages, I feel no doubt. It is the constant course of the court in the case of vendor and purchaser, where a sufficient case is made for the purpose, to make"enquiry as to the deterioration of the estate: and in so doing, the court is, in fact, giving damages to the purchaser for the-loss sustained by the contract not having been literally performed.”
It is impossible not to see the great propriety of courts of equity being clothed with such a jurisdiction ; so that in cases coming before them by way of specific performance, complete justice may be done to suitors, without their resorting to any other forum. Under the modern practice of courts of equity, aided by legislative enactment, these courts are now provided with all the machinery necessary to aid its jurisdiction to make an end of a cause properly before it. An issue out of chancery may now be tried at its own bar, instead of being sent (as formerly) to a court of law for trial. Oné manifest object of legislative changes in the administration of the law has been to enable courts of law and courts of equity to do complete justice in matters arising within their respective jurisdictions; and it is in entire accordance with this that courts of equity should proceed by way of damages in cases where they properly have jurisdiction, and where complete justice requires the payment of damages.
It is impossible, therefore, to perceive either the necessity or propriety, in a case like this (where the court has complete jurisdiction of the subject, and with all the parties before it, and where a specific performance has been decreed),1 of sending the parties before-another forum, in order to-litigate rights arising directly out of the subject before the court of chancery, and especially where specific performance would be inequitable, and complete justice could not be done without an adjustment of these questions. Why should the cause be divided into two suits—a part of the controversy to *823be adjudicated iu a court of equity, and a part in a court of law ? Why should two distinct and independent tribunals be invoked to dispose of a cause between the same parties, where their respective claims are so connected as to be inseparable ? Why call upon a court of law to aid the court of equity, which has the undoubted original jurisdiction of the subject matter and of the parties, and is provided with all the machinery necessary to arrive at the same result, and in the same mode, if need be (trial by jury), which could be attained in a court of law ? We cannot perceive the necessity or the propriety of such a practice. Nor can we find any authority among the modern decisions to require it.
The cases relied upon by the learned counsel for the appellee, are cases where the plaintiff came into a court of equity seeking compensation in damages for alleged fraud, misrepresentation, &c., and where upon the face of his bill or in the case made out, there is no ground for equitable relief.
The case of Robertson v. Hogsheads, 3 Leigh, 723, so earnestly relied upon by counsel, is not in any respect opposed to the principles and practice of courts of equity as above expounded. In that case the bill in form and upon its face was a bill claiming damages for the breach of a contract. It did not ask even for a recision of the contract ; but the claim of the plaiutiff was merely for compensation in damages in consequence of certain alleged misrepresentations in respect to sufficiency of springs and their actual deficiency. It was argued by counsel in that case, that under the prayer for general relief he might claim a recision of the contract. Carr, J. says, “ Taking up the case either upon the bill and answer or upon the whole evidence, there is no ground furnished for a recision of the contract in any stage; but after it was executed by giving and receiving a deed, taking possession, paying good part of the purchase money, executing bonds for the balance, and a deed of *824trust to secure the payment, there is not the shadow of a cause for a recision. The bill then, so far as it related to the main end of it, was never sustainable ; and taking aioay that ground there could be no propriety in filing a bill in equity for the sole purpose of obtaining compensation or damages for an alleged fraud, and to tie up a part of the purchase money until these damages were liquidated.”
Tucker, P. said in the same ease, “It is obvious, that no recision of the contract could have been decreed or properly asked for in this case. * * * As the form of the proceeding excludes the possibility of recision, the bill can only be looked on as a bill for an injunction to restrain the payment of an unpaid balance of purchase money until a claim for unliquidated damages for an alleged fraud shall have been settled by an issue to be directed by the court.” -
It will thus be readily perceived, that the case of Robertson v. Hogsheads, is not, in the slightest degree, in conflict with the doctrines herein announced. In that case there was no possible ground upon which the jurisdiction of a court of equity could attach. But it was a bill filed by a plaintiff merely for the purpose of recovering damages for the breach of a contract. In the ease before us the jurisdiction of a court of equity is unquestioned. The plaintiff files his bill for specific performance in a case where he is clearly entitled to it, and which is decreed by the court; and the defendant not objecting to specific performance, claims that he is entitled to compensation by way of damages arising from the acts of the plaintiff and his agents respecting the subject matter of the agreement. In such a case the court having obtained possession of the subject, it will do complete justice by disposing of the whole subject at its own bar, without sending the parties to another forum. This practice has been commended and established by numerous decisions of .this court. See Payne *825v. Graves, 5 Leigh, 561; Billups v. Sears, 5 Gratt. 31; Lyons v. Miller, 6 Gratt. 427 ; Bank of Washington v. Arthur, 3 Gratt. 173; Martin v. Hall, 9 Id. 8.
It may be further observed, that there is au obvious distinction between eases where the party seeks relief in equity as plaintiff, and where compensation is sought by the defendant in resistance or modification of the plaintiff’s claim. In the latter case, the maxim prevails that he who seeks equity shall do equity. 2 Story’s Eq. § 799 (a). "Where a plaintiff in equity seeks the aid of the court to enforce specific performance, he can only receive such relief upon equitable terms; and if it would be inequitable to grant relief without compensation to the defendant (whether such compensation be by way of damages, or otherwise), it is competent for the court having possessed itself of the subject by proper exercise ■of its jurisdiction, to do complete justice between the parties ; and as ancillary to that purpose, may ascertain ■damages sustained by the defendant, either by an enquiry made by a master or by a jury upon an issue quantum damnificatus to be tried at its own bar.
We are therefore of opinion, that there is no error in the decree of the said District court, and that the same must be affirmed.
Decree or District court areirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481806/ | Anderson, J.
delivered the opinion of the court.
This association was formed prior to 1852, and was afterwards incorporated pursuant to the act of Assembly passed May 29, 1852.
By article XL. of the association, whenever there was sufficient money on hand, and due the association, to pay on each unredeemed share to the holder thereof, the sum of $480, over and above all liabilities of the association, all arrearages of monthly dues, fines, &c., are required to be paid without delay, the debts and liabilities of the association to be paid ; and then the owner of each unredeemed share, to receive an equal dividend of all sums on hand, and which shall after-wards be collected, until the whole shall be divided; and no further monthly dues, or premiums, shall be payable from the commencement of the payment of dividends ; except that all arrears shall be fully paid up. *828The trustees are required to deliver to each mortgagor, w^° has fully complied with the condition of his mortgage, a discharge, &c. And then, it is provided, the association shall cease to exist, and shall not sooner be dissolved.
The act of 1852, above referred to, limits the ultimate or par value of the stock to $200. The articles of this association stipulate, that it shall be $480; which it seems was fixed as its value prior to the act of 1852 ; and is sanctioned and legalized by the act passed February 19, 1853.
On the 1st of January 1860, there were only twenty-three shares, held by seven stockholders, which had not been redeemed. And in April 1866, they filed their bill in chancery in the Circuit court for Alexandria county, against the said building association, James E. McGraw, George H. Markell and K,. J. Edelin, trustees thereof, and H. W. Hardy, John L. Pascoe and others, members of the association, for the settlement of the accounts of members with the association, to enfore the payment of arrearages due to the association from its members, and a sale of the real estate conveyed in trust by members of the association to secure the fulfillment of their obligations, and for a division of the assets amongst the members whose shares were unredeemed.
The Circuit court directed an account to be taken by •one of its commissioners; who made a report. In stating the account he debited each stockholder with the arrearage due from him, up to 1st of January 1860, on account of monthly dues, premium, fines and interest; and upon the sum so ascertained to be then due, he debits him with interest to the 1st of April 1867. The whole indebtedness to the association on that day, aggregating $11,236.14, divided amongst twenty-three unredeemed shares, would give to each share $488.52f, subject to a deduction for the costs of this suit. And he returns with his report a descriptive list of the deeds of trust *829held by the association, as security for those sums reported to be due from different members of the association.
The court confirmed the report, to which there was no exception, and pronounced a decree against each defendant, who thus appeared to he indebted, and upon his failure to pay within the time specified, directed sale to be made under his deed of trust, to satisfy the amount declared to be due by him. Two of the defendants, John L. Pascoe and H. W. Hardy, had not been served with process. And upon petition, the decree as to them was set aside, and the suit as against the said Hardy, who had died since it was instituted, was revived in the name of his widow and heirs, and his administrator. These defendants demurred to the bill, answered and pleaded usury. And upon the hearing, on the 1st day of March 1870, the Circuit court sustained the plea of usury ; declared the bonds and deeds of trust executed by the said Pascoe and Hardy to be null and void, and dismissed the bill as to them. Prom that decree the plaintiffs have appealed to this court.
The court is of opinion, that there is no ground for demurrer to the bill. It was entirely competent for the plaintiffs to file a bill in equity against the other members of the association, and the trustees who hold the title of the trust property, for a settlement and adjustment of the affairs of the association, and for a division of its assets amongst the shareholders who were entitled to the distribution ; and as a means to that end, to ascertain and enforce the liabilities of the members, and the execution of the deeds of trust and other securities therefor. The subj ect is peculiarly appropriate toa court of equity. And the bill is not obnoxious to the objection of multifariousness ; because it introduces no matter which is not directly related to the end proposed, which is within the jurisdiction of a court of equity, and necessary to its attainment, and to doing complete justice between the parties.
*830The court is further of opinion that there is no usury in the transactions between John L. Paseoe or H. 'W. Hardy and the association. The association was at first organized as a partnership concern, before the act of Assembly of May 29, 1852. Afterwards it became a body corporate under the provisions of that act, as was more than once admitted by the appellee, John L. Pascoe, under his hand and seal, and as is inferable from other facts in the record. By that act the association is expressly authorized to redeem the shares of any of the shareholders, and to demand and receive interest, not exceeding six per cent, per annum, upon the actual amount paid upon the shares so redeemed, and also to demand and receive from said advanced stockholder the monthly instalment on stock, fines and other regular charges, until the assets are sufficient to pay to the holders of the unredeemed shares the par or ultimate value of their shares, after payment of all the debts and liabilities of the association. Reference is here made to the case of White v. Mechanics Building Fund Association, recently decided by this court, supra 233, for the exposition of this statute.
In this case John L. Paseoe is charged with no interest upon the sum of $612, which he acknowledges by' his deed of release had been advanced to him on his three shares ; but he is charged with a monthly premium of eighty cents on each share, which is less than six per cent, interest, which the association was expressly authorized to charge by the act aforesaid. And with regard to H. ~W. Hardy, the commissioner’s report shows that he was debited on the ledger with $20.40 interest, which is carried into the account against him by the commissioner. But it does not appear that this interest was charged upon the sum paid him on the redemption of his shares. The presumption is that it was not, but that it was charged upon some other account. The descriptive memorandum of the deed of trust’ accompany*831ing the report (the deed itself is not copied into the record) shows that it was executed “ to secure his monthly dues, $2.80 on one (each) share, fines, &c.” Two dollars is the monthly instalment required by the articles to be paid on each share of stock, and eighty cents is the premium; so that no provision is made in the deed for the payment of interest, ilor is there in any of the deeds of trust, according to the descriptive memorandum accompanying the report, although it appears that several of the shareholders are charged with interest on the ledger, and the item of interest is carried by the commissioner into their accounts, but not as charged upon money advanced to them for the redemption of their shares. The entries made in the ledger being made prima facie evidence, by the agreement of the parties in their articles of association, and there not being a particle of evidence in the record to show that it is an improper charge, the presumption is that it is correct. Whether the taking a premium exceeding six per cent, interest would taint with usury and invalidate the whole transaction, is a question which does not arise upon this record; inasmuch as the premium charged to J. L. Pascoe is not equal to the interest which the statute expressly authorizes to be charged, and it does not appear that the premium charged to H. W. Hardy exceeds the interest with which he was lawfully chargeable. But interest should not be charged upon these premiums, they being interest, in fact, nor upon interest; and so far as the account of the commissioner is liable to this objection, it should be reformed and corrected.
The court is, therefore, of opinion that the interlocutory decree of August 29, 1868, except so far as it is liable to the objection last mentioned, is correct in principle, and should be reinstated. And that it is not shown by the record that the. association has made ex-actions of either of the appellees which it was not author- . ized to make by the act of Assembly under which it was *832incorporated, and therefore, that the decree of the 1st of March 1870, is erroneous; and the court is of opinion that the same he reversed and annulled.
. The decree was as follows:
The court having maturely considered the record in this case, is of opinion, for reasons assigned in writing and filed with the record, that the decree of the Circuit court, pronounced on the 1st day of March 1870, is erroneous. It is, therefore, considered that the same be reversed and annulled; and that the appellees pay to the appellants their costs expended in the prosecution of their appeal here. And the cause is remanded to said Circuit court for Alexandria county, for further proceedings to be had therein, according to the principles declared in the foregoing opinion.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481809/ | Moncure, P.
In January 1872, John M. Canada was indicted in the County court of Halifax for feloniously and maliciously inflicting bodily injuries on J. II. High, with intent to maim, disfigure, disable and kill. There were three counts in the indictment, charging the injuries in a different manner—as 1st. By cutting; 2ndly. By-wounding; and 3dly. By beating, striking, wounding and cutting “him, the said J. H. High, with a certain wagon spoke,” whereby “he, the said John M. Canada, by means of the blows, cuts and wounds inflicted with the said wagon spoke,” “feloniously and maliciously did cause the said J. H. High great bodily injury.” In each of the counts the same technical words of description of the offence are used,- and the only words so used are “ feloniously and maliciously,” and in each of them the act is charged to have been done- “ with intent to maim, disfigure, disable and kill.” In. the first two counts the manner of the injury is described by one only of the acts enumerated in the statute creating the offence, the word used in the first being the word “cut,” and that used in the second being the word, “wound.” In the last count the manner of inflicting-the bodily injury is more minutely and specifically stated.. At the commencement of each of the counts, as is usual,, *901if not necessary, in every indictment for an offence involving personal violence, it is charged that the ac-cuBed “ did make an assault” upon the party injured.
Afterwards,-to wit: in February 1872, the accused, having been arraigned upon the said indictment, pleaded not guilty thereto, and was tried by a jury, which found a verdict in the following words: “We, the jury, find the prisoner not guilty of the malicious cutting and wounding, as charged in the within indictment, but guilty of an assault and battery, as charged in the within indictment, and assess his fine at five hundred dollars.” Thereupon the prisoner moved the court to arrest the judgment, because the verdict was insufficient. But the court overruled the said motion, and gave judgment against the prisoner for the said fine and the costs of the prosecution; and also that he be imprisoned in the county jail of said county for the period of six months.
Two bills of exception were taken by the accused to the said judgment, and made a part of the record. In the first it is stated “that upon the trial of the cause, the court instructed the jury that, upon the indictment, they could find the prisoner guilty of the offence therein charged, or done maliciously, “with intent to maim, disfigure, disable or kill, and punish him by confinement in the penitentiary not less than one nor more than ten years; or if they believed the acts therein charged were done unlawfully, but not maliciously, with the intent aforesaid, the accused could, at their discretion, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars; or they might find him guilty of an assault and battery, and fine him not exceeding five hundred dollars, and imprisonment at the discretion of the court. And after the jury had rendered their verdict, the accused moved the court to arrest the judgment, on the ground that according to the terms of the statute *902under which the indictment was found and the accused' tried, to wit: the 9th section of chapter 191 of the Code -*-860, the punishment prescribed for a white person found guilty of unlawfully, but not maliciously, com- . mitting the offences mentioned in said section, is confinement in the penitentiary not less than one nor more than five years, or confinement in the jail not exceeding twelve months, and a fine not exceeding five hundred dollars, at the discretion of the jury, and not a fine alone without imprisonment, as was found by the verdict of the jury.” But the court overruled the motion in arrest of judgment; and the accused excepted.
In the second bill of exceptions it is stated “that upon the trial of this cause, after the jury had rendered their verdict, the court ordered that the prisoner, who is a white man, be confined in the county jail for the term-of six months in addition to the punishment imposed by the jury. And thereupon the prisoner, by counsel, moved the court in arrest of judgment, on the ground that, according to the provisions of the statute” aforesaid, “the punishment prescribed' for a white person found guilty of unlawfully, but not maliciously, committing the offence mentioned in said section, is confinement in the penitentiary not less than one nor more than five years, or confinement in jail not exceeding twelve months and a fine not exceeding five hundred dollars, at the discretion of the jury, and not of the court.” But the court overruled the said last mentioned motion also; and the accused again excepted.
To the said judgment of the said County court the accused obtained a writ of error- from the judge of the Circuit court of said county ; by which last mentioned court the said judgment was affirmed. And to the said-judgment of affirmance the accused obtained a writ of error from a judge of this court; which is- the- case- we now have to dispose of.
The statute under which the accused was indicted is *903to be found in the Code, page 784, ch. 191, sec. 9, which declares that “if any free person maliciouslyN shoot, stab, cut or wound any person, or by any means cause him bodily injury, with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be punished by confinement in the penitentiary not less than one nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall, at the discretion of the jury,” &c., “either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding one year, and fined not exceeding five hundred dollars.”
This statute was taken, substantially, from the act of 1847-8, called the “Criminal Code,” ch. 3, sec. 10, Acts of Assembly 1847-8, p. 96, the said tenth section of the said act being a substitute for sections 1 and 2 of chapter 156 of the Code of 1819, entitled “An act to reduce into one act the several acts against malicious or unlawful shooting, stabbing, maiming and disfiguring.” 1 R. C. p. 582. Section 1 of the said chapter was against “unlawful shooting, stabbing, maiming and disfiguring;” and section 2 was against “malicious shooting, stabbing, maiming and disfiguring.”
The invariable practice in prosecutions under the act of 1819 was to insert two counts in the indictment, one charging the offence as having been committed “ unlaiofully,”. in violation of the first section, and the other charging the offence as having been committed “maliciouslyr,” in violation of the second section of the act. And if the jury considered the accused guilty of committing the act charged “ unlawfully,” but not “ maliciously,” they would find him guilty under the first count, and not guilty under the second.
By the present Code, ch. 208, § 29, p. 838, it is provided that “on any indictment for maliciously shooting, stabbing, cutting or wounding a person, or by any *904means causing him bodily injury, with intent to kill him, the jury may find the accused not guilty of the 0:®'ence charged, but guilty of maliciously doing such act with intent to maim, disfigure or disable, or of unlawfully doing it with intent to maim, disfigure, disable or kill such person.” According to this provision it is only necessary to insert one count in an indictment for any offence named in the 9th section of chapter 191 of the Code, and in that count to charge the act as doné “maliciously.” Under such an indictment the accused may be found guilty generally, or guilty of doing the act charged in the indictment with the intent therein mentioned, “unlawfully,” but not “maliciously,” according to the evidence.
The indictment in this case was framed in conformity with the provision aforesaid, except that it charges the act as having been done “with intent to maim, disfigure, disable and kill,” and not “with intent to kill” only, as mentioned in the said provision. There are three counts in the indictment, charging the act in different forms; but all of the counts charge it has having been done “maliciously,” and the word “ unlawfully” nowhere occurs in the indictment. Still, by the express terms of the provision aforesaid, it was competent for the jury to have found the accused not guilty of doing the act therein charged “maliciously,” but guilty of doing it “unlawfully.” Though, if the jury had found the accused not guilty of maliciously doing the acts charged in the indictment, with intent as therein mentioned, and had found nothing more, that would have been an acquittal of the whole offence charged, including any offence, whether felony or misdemeanor, of which the accused might have been convicted under the indictment.
It was not only competent for the jury to acquit the accused of “ maliciously” doing the act charged against him, and to convict him of “unlawfully” doing it with *905intent as aforesaid, both of which offences are felonies; but it was also competent for them to acquit him of the former offence, and to convict him of any other offence substantially charged in the indictment, whether such other offence be felony or misdemeanor. The' Code, chapter 208, section 27, p. 838, declares that “if a person indicted of felony be by the jury acquitted of part and convicted of part of the offence charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor.” The offence of assault and battery, which is a mere misdemeanor, is substantially charged in the indictment in this case, the acts which constitute it being part of the felony therein charged.' If the accused had been convicted of the felony, then the misdemeanor would have been merged in the felony. But if the accused was acquitted of the felony, it was competent for the jury to convict him of the misdemeanor, to wit: of the assault and battery substantially charged in the indictment. That this is the true construction of section 27 of chapter 208 of the Code, is fully shown by the case of Hardy and Curry v. The Commonwealth, 17 Gratt. 592. The application of that section to this case is much stronger than it was to that. There, though an assault was expressly charged, a battery was not charged, in terms, in the indictment. Here both assault and battery are expressly and necessarily charged. And if the section does not apply to this case, it is difficult to conceive one to which it would apply.
Then the only question is, did the jury, by their verdict, acquit the accused of the felony and convict him of the assault and battery charged in the indictment? And this is a mere question of the construction of the verdict. "What was the meaning of the jury ?
In my view of the case their meaning is very plain, and their verdict is directly responsive both to the law *906and the instruction which they received from the court. Under the indictment the jury were authorized by law to convict the accused either of a felony or of a misdemeanor, to wit: assault and battery; each of which offences, or the facts constituting each, are expressly and fully charged in the indictment. And they found him not guilty of the felony, but guilty of the misdemeanor charged as aforesaid. That was the effect, and almost the very words, of their finding. And that such was their meaning is confirmed by all the surrounding circumstances of the case. I say they found him not guilty of the felony charged in the indictment. It is true, they say in their verdict “ not guilty of the malicious cutting and wounding as chargéd in the within indictment.” Is not that equivalent to finding him not guilty of the felony charged in the indictment ? What is the felony charged in the indictment? Is it not, in effect, “the malicious cutting and wounding,” with intent to maim, disfigure, disable and kill? And is not this charge made in the very language of the Code, chapter 208, section 29 ? It is true that the same section authorizes the jury on such a charge to find the accused not guilty of the offence charged, but guilty of unlawfully doing; the act charged, with intent to maim, disfigure, disable or kill. They might have so found, but they did not. They merely found, as to the felony charged, “not guilty of the malicious cutting and wounding as charged in the within indictment,” which was, in effect, a finding of “not guilty of the felony charged in the indictment.” While the Code, chapter 191, section 9, creates two offences, to wit: “malicious” and “unlawful” wounding with intent to kill, &c., both of which are felonies, the Code, chapter 208, section 29-, authorizes the indictment to be so drawn as to charge the act to be done “maliciously,” without using the word “unlawfully,” and authorizes the jury under such an indictment to find the accused guilty of unlawfully doing the act *907charged with intent, &c. In other words, in such an indictment the word “maliciously” embraces in its meaning the word “unlawfully” also, and a general finding of “not guilty of the malicious cutting and wounding as charged in .the within indictment,” is, in effect, a finding of not guilty of unlawful, as well as of malicious, cutting and wounding, &c. Surely, if the word “malicious” is sufficient in the indictment to embrace the word unlawful, it is sufficient for that purpose in a verdict on such an indictment. Beyond all question, a verdict which negatives a charge of felony in the vei’y words in which the charge is made must be a sufficient finding of not guilty of the whole felony~charged„ unless, indeed, there be in the same verdict an express finding against the accused of some particular felony embraced in the charge, either actually or by provision of law.
But it is contended that in this case the jury did not only find the accused not guilty of the “ malicious” cutting and wounding as charged in the indictment, but also, in effect, found him guilty of “unlawfully” doing the act therein charged, with intent to maim, disfigure, disable and kill.
The words of the verdict, after finding “ the prisoner not guilty of the malicious cutting and wounding, as charged in the within indictment,” are “ but guilty of an assault and battery, as charged in the within indictment, and assess his fine at five hundred dollars.”
It seems to be strange to argue that the jury intended to convict the accused of a felony, when they expressly convicted him of a misdemeanor—that is, of an assault and battery; and perhaps still more strange, that such an argument should be made by the counsel of the accused. If they had intended to convict the accused of a felony other than the doing of the act charged with the intent charged, “ maliciously”—iu other words, of doing it “unlawfully”—there was a plain mode of such con*908viction, and that mode was expressly prescribed by the statute, Code chapter 208, § 29, to wit: by finding him “ guilty of unlawfully doing the act with intent to maim, disfigure, disable or kill.” Instead of that they expressly find him “guilty of an assault and battery.”
blow, it was just as competent for the jury to find the accused guilty of an assault and battery under the said indictment, according to the Code, chapter 208, § 27, as it was for them to find him guilty of unlawfully doing the act therein charged, with intent as aforesaid, and they found the former in express terms, and not the latter. How, then, can it be said that they meant to find the latter %
It is argued, notwithstanding this express finding of the former, that they meant to find the latter, because they say they find the accused guilty of assault and battery, “as charged in the within indictment;” which words, it is argued, mean that they find him guilty of all the acts charged in the indictment, with all the intents therein charged, except that the acts were not done “maliciously;” and therefore, that they find him guilty of felony in “unlawfully” doing them with the intents aforesaid.
A person cannot be convicted of any offence, even though it be of a misdemeanor, under an indictment for felony, unless the offence, or the acts constituting it, be charged in the indictment. And, therefore, the expressions, “ as therein charged in the indictment,” seem to mean nothing more than the law would imply in their absence. Indeed, they seem to serve an appropriate, if not a necessary, purpose in applying the general words “ an assault and battery,” and making the verdict more certain as to the particular assault and battery of which the accused was intended to be convicted. In fact, these words are used in conformity with the express language of the statute, which authorizes a conviction for misdemeanor under an indictment for felony. That *909statute declares that a person indicted of felony, and acquitted of part and convicted of part of the offence charged, shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor. Now, when a person indicted of a felony is acquitted of the felony, and convicted of a misdemeanor substantially charged in the indictment, it cannot be inappropriate, to say the least, for the jury expressly to find that the misdemeanor of which they find him guilty is the same which is charged in the indictment.
But great emphasis was laid in the argument on the relative word “as” used in the vei’dict—that is, “of an assault and battery as charged in the within indictment,” and it was contended that that word related to all the acts and intents charged in the indictment, except that the acts were done with a malicious intent; and, therefore, that the acts and intents thus found by the jury constituted the felony of unlawfully doing the said acts with the said intent.
I think too much effect js thus given to this little word “as” in this connection. I do not think it was intended to alter the sense of the other words used in connection with it. I do not think it was intended to be a substitute for the express finding of an unlawful wounding with intent to maim, disfigure, disable or kill, in the form which the statute sets forth; nor that it was intended to contradict the express finding of an assault and battery, with which it is immediately connected; nor to qualify the general finding of not guilty of the felony charged in the indictment. I think it relates for its antecedent only to the words ‘5 an assault and battery” immediately before it, and that the meaning is “of an assault and battery as” it is “ charged in the within indictment.” The jury having found the accused not guilty of the felony as it is charged in the indictment, proceeded to find him guilty, as the statute authorized *910them to do, of a misdemeanor as it is charged in the indictment. In other words, they found him guilty of *ke ac¡^’ w^hout the quality and the intents charged.in the indictment. Those acts with the quality and intents constituted felony, and without them constituted an assault and battery only.
I think my construction of the verdict is confirmed by the fact that the jury only assess a fine against the accused, and do not ascertain his term of imprisonment in jail, as the law requires in cases of conviction of an unlawful wounding with intent to maim, &c. Code, chapter 191, section 9. As they found him guilty of a misdemeanor only, to wit: an assault and battery, it was proper for them only to assess his fine. They had nothing to do with his imprisonment. Misdemeanors are punishable by fine and imprisonment, except where some other punishment is prescribed by law. Ho other ■punishment is prescribed by law for the offence of assault and battery. On a conviction for a misdemeanor so punishable, it belongs to the jury to assess the fine, and •to the .court to determine whether any imprisonment .shall be superadded to the fine, and if so, to ascertain .the .term of such imprisonment. And the jury in this ■case having found the accused guilty of an assault and battery merely, and assessed his fine, were fundi officii, and therefore, properly abstained from saying anything about his imprisonment, which was a subject exclusively for the consideration and determination of the court.
I think my construction is further confirmed by the fact that the court expressly charged the jury as to the law which should govern their finding, telling them ■what -offences they might find the accused guilty of under the indictment, and what, office they had to perform in regard to the punishment. The correctness of this charge, in point of law, was admitted in the argu.ment, and properly so. The court in this charge, after *911telling the jury of what felonies they might' convict the accused, and. how they were punishable, and that the quantum of such punishment within the limits prescribed by lawr was ascertainable by the jury, instructed them that, instead of finding him guilty of felony as aforesaid, “ they might find him guilty of an assault and battery, and fine him not exceeding five hundred dollarsand that his imprisonment in that case was to be “at the discretion of the court.” In direct and immediate response to that instruction, the jury found the accused guilty of an assault and battery, as charged in the indictment, and assessed his fine at five hundred dollars, saying nothing about his imprisonment; and the court, perfectly understanding the meaning of the jury, not only rendered judgment for the fine assessed by them and the costs of the prosecution, but also for six months imprisonment, which, in the exercise of the discretion which the law reposed in him, he considered proper.
I thought this a plain case on the statement made of it in the argument, and would not have deemed it proper to deliver so long an opinion in it, but for the ingenious and earnest manner in which it has been argued by the learned counsel for the accused. I am of opinion that there is no error in the judgment, and that it be affirmed.
The other judges concurred in the opinion of Mon-cure, P.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481811/ | Moncure, P.
delivered the opinion of the court.
Two questions arise in this case: 1st. Whether an “ eating house” is a “public place,” in the meaning of the Code, chapter 198, § 4, p. 806, which declares that “If a free person bet or play at any such table or bank as is mentioned in the first section (that is, A 33 C or E 0 table or faro bank, or a table of the like kind); or if at any ordinary, race-field, or other public place, he play at any game, except bowls, chess, backgammon, draughts, or a licensed game, or bet on the sides of those who play, he shall be fined thirty dollars, and shall, if required by the court, give security for his good behavior for one year; or in default thereof, may be imprisoned not more than three months.” And 2ndly. Whether it be contrary to the said section to bet at the game of bagatelle at such public place, though the said game be a licensed game.
As to the first question, we are of opinion that an “eating house” is a “public place” in the meaning of the said section. What constitutes an “ eating house” is defined by law. “Any person who shall cook, or otherwise furnish for compensation, diet or refreshments of any kind for casual visitors at his house, and sold for consumption therein, and who is not the keeper of an ordinary, house of private entertainment or boarding house, shall be deemed to keep an eating house;” is-required to obtain a license for doing so, and is subject to a fine for keeping such a house without obtaining such license. Acts of Assembly 1869—70, p. 239, § 27 *919; 1870-71, p. 107, § 126, p. 281, § 40; 1871-72, p. 190, § 124, p. 481, § 42.
As to the second question, we are of opinion that it is contrary to the said section to bet at the game of bagatelle at such public place, though the said game be a licensed game, as is admitted to have been the fact in this case.
The keeping of a bagatelle table is a business capable of being licensed, and was so capable at the time the gaming in the indictment mentioned is therein charged to have taken place. Code ch. 38, § 1, Acts of 1869-70, p. 240, § 31; 1871-72, p. 190, § 126, p. 482, § 45. To flay at the game of bagatelle at a licensed bagatelle table, is to play at a licensed game, and is lawful under the Code, ch. 198, § 4, though such game be played at a public place.
But is it lawful under the said section to bet at such licensed game at a public place? That is the question we now have to solve.
“ If a free person bet or flay at any such table or bank as is mentioned in the first section,” is the language in which the 4th section commences. Here the words “ bet and play” are both used, and it is made unlawful to bet or to play at any such table or bank as is here referred to, either at a public or a private place. Such a gaming table is incapable of being licensed. The section then proceeds: “ or if at any ordinary, race-field or other public place.” Here the place of the gaming is material, and it must be a public place: “he play at any game except bowls, chess, backgammon, draughts or a licensed game.” Here the word “play” alone is used, and not both the words “bet” and “play” as in the commencement of the section. Why was this difference made, if the Legislature intended to place betting and playing on the same footing in this part of the section, as was intended and expressed in the first part of the section ? If the Legislature had so intended, it *920would have said, “if at any ordinary, race-field, or other public place, he bet or play at any game, except bowls, chess, backgammon, draughts, or a licensed game.” Then it would have been expressly made lawful to bet, as well as to play, at the excepted games, of which “a licensed game” was one; and there could have been no doubt in that case of the legislative intention. That mode of expressing it was the simplest and most obvious that could have been adopted. It required the use of only two additional words, “bet or,” and it would have followed the same mode of expression just before used in the first part of the section. Instead of that, the word “ play” only is here used, and the section, after the words “except bowls, chess, backgammon, draughts, or a licensed game,” thus proceeds: “or bet on the sides of those who play, he shall be fined,” &e. “ Who play” at what ? At any game at a public place. The meaning is as if the section had run thus: “ If at any ordinary, race-field, or other public place, he play at any game except,” &c., “or bet on the sides of those who play at any game;” that is, “ of those who game.” In 1 R. C. 1819, ch. 147, § 5, p. 563, the words actually used are “or shall bet on the sides or hands of such as do game;” and the same language is used in our former acts on the subject, from which the act in the Code of 1819 was taken. See the Codes of 1803 and 1814, ch. 96, § 5. The evils recited.in that section and the corresponding section of the act of 1819, which it was intended to remedy, confirm the construction we have put upon the 4th section of chapter 198 of the Code of 1860. That construction is that it is unlawful to bet at any game at a public place.
If this be not the true construction, then it is lawful to bet to any extent, no matter how great, at any of the excepted games, or on the sides of those who play at such games, at a public place. Can it be possible that' the Legislature intended to legalize so great an evil ? *921We think not, and we think this conclusively appears by comparing the 4th and 5th sections of chapter 198, standing side by side in the Code.
• We have seen what the 4th section is. The 5th is in these words:
“ § 5. If a free person, by playing or betting at any game or wager, elsewhere than at a public place, lose or win, within twenty-four hours, a greater sum, or anything of greater value, than twenty dollars, he shall be punished as in the preceding section.”
This section plainly applies to any game whatever, without exception. That is the express meaning of the words “ any game or wager ” standing by themselves. In the Code of 1819 the words are “any game or wager whatsoever. But this word “ whatsoever,” though emphatic, was unnecessary to express the plain meaning of the other words without it, and was, therefore, dropped in the present Code.
Then if the construction of the 4th section contended for by the plaintiff in error be correct, a person who, by playing or betting at a licensed game elsewhere than at a public place, loses or wins, within twenty-four hours, a greater sum, or anything of greater value, than $20, is punishable; whereas a person who, by betting on the sides of those who play at a licensed game, at any ordinary, race-field, or other public place, loses or wins, within twenty-four hours, a sum or thing of any amount or value, however great, is not punishable !
This would certainly be a great incongruity in the law, and could never have been intended by the Legislature. Such an intention will not be imputed to the Legislature, unless it be plainly expressed in the law. It is not so expressed. On the contrary, the intention which we attribute to the Legislature is much more reasonable, and sufficiently appears from the language of the law. According to our view of the two sections, *922four and five, a person is punishable, under section four,, who bets or plays at faro' bank, or a table of the like-kind, anywhere, or plays at any game, except bowls, chess, backgammon, draughts, or a licensed game, at any ordinary, race-field, or other public place, whether anything be bet or not upon the game, or bets anything of any value or amount on the sides of those who play at any game, at any ordinary, &c.; and under section five, who by playing or betting at any game or wager, elsewhere than at a public place, loses or wins, within twenty-four hours, a greater sum, or anything of greater value, than $20.
In the Code of 1819 the words “ elsewhere than at a public place,” which we find in section 5 of ch. 198-of the present Code, were not inserted. So that under the Code of 1819 a person who, by playing or betting at any game or wager at a public place, lost or won, within twenty-four hours, a greater sum, or anything of greater value than twenty dollars, was certainly punishable, as much as he would have been if the game or wager had been at a private place. The Legislature surely did not intend to change the law in that respect, by inserting the words “elsewhere than at.a public place,” in § 5 of ch. 198, of the present Code. It is-much more reasonable to suppose that those words-were so inserted because the Legislature considered that any betting to any amount at a game played at a public place was punishable under section four of the same chapter; and, therefore, only the case of betting at a game or wager, elsewhere than at a public place, remained to be provided for by section five.
It is argued by the plaintiff in error, by counsel, that section four does not prohibit betting on one’s own game, but on the sides of others who play. ¥e think this construction is wrong, and that section four, in prohibiting a person from betting on the sides of those *923who play, includes the case of a person betting on his own game.
Upon the whole, we are for affirming the judgment- of the Corporation court of Danville.
Staples, J. doubted, but yielded his doubt.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481812/ | Moncure, P.
This is a writ of error to a judgment 'Of the Circuit court of Bedford county, affirming a judgment of the County court of said county, convicting the plaintiff in error, Harold P. Bead, of maliciously shooting one George S. Merriman, with intent to maim, disfigure, disable and kill him. The questions arising in the case are presented by two bills of exceptions, taken by the plaintiff in error in the course of the proceedings in the County court; one of them to the opinion of said court overruling the motion of the prisoner to set aside the verdict of the jury and grant him a new trial, upon various grounds set out in the first bill of exceptions ; and the other, to the opinion of said court overruling the motion of the prisoner to arrest judgment on said verdict, upon the ground set out in the second bill ■of exceptions. I will consider these questions in their order; and first those which arise on the first bill of exceptions.
The motion to set aside the verdict and grant a new trial was based upon four grounds, viz: 1st. That the verdict of the jury was against the law and the evidence in the cause.
2nd. Because, since the rendering of said verdict the prisoner had discovered important evidence, which he could not have before discovered by reaspnable diligence, material to his defence on said trial; and which, *928if given in before the jury, ought, and would, have produced a different verdict from the one found.
3rd. Because the jury were influenced in making up their verdict by improper considerations, not admissible under the evidence, and not warranted by it.
4th. Because of the improper and irregular treatment of the jury during the trial, by being committed, after they were sworn and during the trial, to the custody, and exposed to the influence, of a deputy sheriff, who was a wituess, and had testified to material facts on behalf of the Commonwealth on said trial.
Ought the verdict to have been set aside and a new trial granted on either of these four grounds; and,
1st. That the verdict was against the law and the evidence.
In considering this ground it may be material, first, to enquire whether the facts proved, or only the evidence introduced, on the trial, are certified in the bill of exceptions. While it is well settled that an appellate court may revise a judgment of the court below, refusing a new trial on the ground that the verdict is contrary to evidence, even in a criminal case, in behalf of the accused; yet it is also well settled that the bill of exceptions must so present the case as that the appellate court may be able to see whether sthe jury has correctly applied the law to the facts of the case, and to correct any error which the jury may have committed in that respect. Regularly, the facts, instead of the evidence, ought to be certified in the bill of exceptions; and where there is a conflict or complication of evidence, the court may, on that ground, be unable or unwilling, and, therefore, refuse, to certify the facts; and then the appellate court cannot revise the judgment, unless the evidence be certified, and then only on certain conditions. That is, the court will not in that case reverse tbe judgment, unless, after, rejecting all the parol evidence for the ex-ceptor, and giving full faith and credit to that of the *929adverse party, the decision of the court below still appears to be wrong. As to the rule to be observed where evidence only is certified, see Ewing v. Ewing, 2 Leigh, 337; Green v. Ashby, 6 Id. 135 ; Rohr v. Davis, 9 Id. 30; Pasley v. English, 5 Gratt. 141; Bull's case, 14 Id. 613.
"Whether the court of trial intended to certify the facts, or the evidence only, is sometimes a doubtful question. Iu form, it sometimes appears that the certificate is one of facts: whereas, in substance, it is a certificate of evidence only; and so, on the other hand, it may, in form, appear to be one of evidence only, when it was intended to be one of facts. .Each case must depend upon its own circumstances, and the appellate court must determine, as well as it can, what is the character of the certificate in that respect. On this subject see Bennett v. Hardaway, 6 Munf. 125; Jackson's adm'r v. Henderson, 3 Leigh, 196; Patterson v. Ford, 2 Gratt. 18; Vaiden's case, 12 Id. 717. Where the matters certified iu form as facts are in any respect conflicting, it is evident that the certificate, iu that respect at least, is of evidence and not of facts, because facts cannot be conflicting, but must be consistent with each other.
The certificate in this case may be said to be in form a certificate of facts. It commences by saying: “The court doth certify that the following are the facts, and all of the facts, proved before the jury on said trial.” It then proceeds to state what each witness on behalf of the Commonwealth and on behalf of the prisoner “proved,” in detail; and it concludes each statement by saying, that the foregoing are all the facts proved “ on behalf of the Commonwealth,” and “ on behalf of the prisoner,” respectively.
But when we come to examine the “ facts proved,” as stated by the several witnesses, we find such a conflict between them in most material respects as to show that the certificate, though, in form, one of facts, is *930really one of evidence only. For example, in regard to the nature and degree of violence of the blow given by Merriman to the prisoner immediately preceding the act pf shooting by the latter—a vitally important fact in the case, if that blow was the provocation which induced and caused the said act—there is a very decided conflict in the testimony, and most of the witnesses on both sides differ among themselves as to the character of that blow. Jordan Martin, a witness for the prisoner, says that “Merriman struck prisoner a violent blow in the pit of the stomach, knocking him back eight or ten feet, prisoner falling and catching on his hands.” “The blow struck by Merriman was a very heavy one—like the kick of a mule.”
Now if this be a true-account of the blow, and it, and not a previous grudge or provocation, was the cause of the shooting, such shooting could hardly be considered as malicious—at least, without satisfactory evidence that the act was done deliberately, and not in heat of blood. But all the other evidence on both sides represents the blow as not having been near so violent, while it varies materially in itself as to the nature of the blow. Merriman himself says he “struck” the prisoner, who “staggered back several feet, and drew his pistol and fired at witness.” Hogan’s evidence is to the same effect. Kearns says “he saw prisoner put his hand on Merriman’s shoulder, seemingly in a gentle manner; then Merriman gave prisoner a lick or a shove, saying ‘go away from me and let me alone; I don’t want to have anything more to do with youthen firing commenced.” From this account, taken by itself, it would appear that the blow, if blow it could be called, was slight, and that the shooting, even though caused by the blow alone, was malicious. Franklin says he “saw Merriman strike or shove the prisoner. It was between a shove and a blow; prisoner fell back about ten feet; seemed to be getting back to get his pistol;” “thinks blow not suf*931ficieut to have forced him back.” “ The blow was not a heavy one.” Craig says “prisoner struckM. with his open hand ; M. then hit prisoner with his doubled fist. Prisoner fell back, drew his pistol, and after he recovered himself enough, shot M.”
Other witnesses besides Martin, examined in behalf of the prisoner, testified as to the nature of the blow. One of them, Lee, the prisoner’s brother-in-law, says that “M. struck the prisoner and knocked him back some ten feet. It was a heavy blow. Then prisoner drew his pistol and fired.” This testimony rather tends to confirm that of Martin. But another of the prisoner’s witnesses, Douglass, gives testimony tending the other way. lie says he “ saw M. strike or shove prisoner off several paces, and then prisoner commenced firing.” Thus describing the blow in almost the same language in which it is described by two of the witnesses for the Commonwealth, to wit: Kearns and Franklin, and concurring with them in representing the blow to have been a slight and not a heavy one.
There are other material facts about which there is a conflict in the evidence; but enough has been stated to show that the County court really certified in the bill of exceptions the testimony in full of the witnesses, and not the facts only, which the court considered to be proved by them.
Regarding the certificate, then, to be one of evidence, and not of the facts which the court considered to be proved by the evidence, we must reject the evidence in behalf of the prisoner, and consider the case upon the evidence on the part of the Commonwealth, according to the rule established by cases before referred to. See Vaiden's case, 12 Gratt. 726, and the cases there cited. Applying that rule to the case, it will be found, I think, to be a very plain one. "We have only to take the testimony of the witness, Merriman, who states the whole case from the beginning to the end; examine, in con*932nection with it, some few circumstances omitted by him stated by other witnesses for the Commonwealth^ anC* en<Wre whether, upon the case thus presented, this court would be warranted in reversing the judgment upon the ground that the verdict was contrary to law and the evidence.
Before I review Merriman’s testimony, I will remark in regard to it, that it seems to be in conflict with none of the other testimony, either that in behalf of the Commonwealth, or that in behalf of the prisoner. He-omits, perhaps from inadvertence, a few particulars stated by other witnesses, but those particulars are consistent with what he states. Even the testimony of the prisoner’s witness, Martin, in regard to the severity of the blow given by Merriman to the prisoner, is not in conflict with the testimony of Merriman, who, while he gives no particular description of the severity of the blow, admits that he “ struck” the prisoner, who “staggered back several feet, and drew his pistol and fired at witness.” The testimony of this witness is, therefore; no doubt substantially true. But whether so or not, if must be so considered in disposing of the question now before us.
Merriman states that he had played at cards with prisoner and others, at the November term, 1871, of Bedford County court, and had then lost .a twenty dollar note, which he believed had been stolen from him. At January term, 1872, of said court, at Liberty, and in the morning of said day, witness went to prisoner and mentioned the loss of the note to him, and prisoner said he was innocent in the matter, and if witness would give him time he would show his innocence. Witness-then told prisoner he would give him time. In the afternoon of the same day witness went again to prisoner and asked him about the note. Prisoner again said that if witness would give him time he would show his innocence; and witness again told him he would give him *933time. At the following February term of said court witness again went to prisoner about said note, and prisoner again asked for time, which witness again .agreed to give. At the following June term of said •court witness again called on prisoner about said note, when prisoner gave witness an account of said note, which witness said he knew was false; and, therefore, witness told the prisoner that he had stolen the note. Prisoner then said to witness that witness must take back that charge, or he would shoot him. Witness replied to prisoner, “Shoot, then, if you choose; I will not take it back.”
On the 11th day of July following, in the night time, prisoner was passing along the public road near the residence of the mother of witness, with whom witness lived, and called witness out in the road where prisoner was •sitting on his horse, and had a conversation with witness about the note, and told witness he must take back the charge he had made against prisoner about the note. Witness said to prisoner that he would not take it back. Prisoner then said to witness that if he did not take it back he would shoot him. Witness replied, “Shoot then.” And prisoner rode off home, saying, I will see you again at court. On the 23d day of July (same month) witness came to Liberty court day. About 10 or 11 o’clock in the morning he saw prisoner in the •courthouse yard, near the door of the office of James F. Johnson, engaged in conversation with Preston Burton. Witness went to where prisoner was engaged in this conversation and found it was in regard to the bank note. After some conversation had about the matter between Burton and the prisoner, prisoner said to witness that he, witness, had told the prisoner that Burton had said that he, Burton, had seen the prisoner take the note from the pocket of witness, and that Burton denied that he had ever said so. Witness then said that he had never said to prisoner that Burton made that statement. *934Prisoner insisted that witness had said so ; whereupon witness told the prisoner that he was “a damned liar; that he had stolen his money, and he could prove it on him.” Witness and prisoner after this went to a bar room in Liberty, and were seated .together alone on some barrels. The note was again made subject of conversation by prisoner, when the prisoner said to witness that witness must take back what he had said to-him about the note, or he would shoot him. Witness replied, shoot then; that he would not take back anything he had said; and that if he, the prisoner, did shoot, he had better put in a good one. Afterwards, about 12 o’clock of the same day, prisoner and witness again met at the grocery store of John Caddie, in Liberty. After they had been there, Mr. Caddie gave them each a glass of liquor. Witness drank a little and was about leaving, when prisoner was drinking his liquor, and called to him and said that he must take back what he had said, or he would shoot him. Witness replied that he, prisoner, might shoot as much as he pleased; that he, witness, would not take back anything he had said.
After the interview spoken of between prisoner and witness at the bar room, witness went to his sister (Mrs. Lucy Dennis), who resides in Liberty, and borrowed from her the pistol which he subsequently used in the fight with prisoner in front of Perguson’s hotel. It was a five shooter, similar to the one used by prisoner in the fight, and every chamber was loaded. In the afternoon of said day, between the hours of 3 and 6 o’clock, the prisoner called witness to him and asked him to take a walk; that they walked across -the street, and when they reached the front of the door of Perguson’s hotel facing the courthouse lot, witness said to prisoner that he would go no further; that he intended to go into Perguson’s and get a drink; prisoner then said this matter must be settled right now; witness then said let *935it be settled then; prisoner then said ‘ ‘ you must take back what you have said, or I will shoot you witness replied, shoot, damn you, shoot; I am tired of this talk; and used a vulgar expression to prisoner. Prisoner then pushed witness off, and witness struck him, and prisoner staggered back several feet and drew his pistol and fired at witness, and struck him on the shoulder; witness then attempted to draw his pistol, and found some difficulty in getting it out; after witness got his pistol out he presented it at prisoner, and before he fired, prisoner fired his second shot, which struck witness on his right arm as it was extended, and caused witness to lower his arm, and witness fired his ball from his pistol, he thinks, into the ground. Prisoner fired some three or four shots in all. "Witness fired only one shot, and snapped his pistol several times at prisoner, but could not get it to go off but once. After prisoner had ceased firing, he ran into Ferguson’s hotel, and witness pursued him to the door.
Witness was shot in two places—on the top of the right shoulder, and on the front of the right arm, between the elbow and the top of the shoulder. The ball that struck the shoulder went out in rear of the shoulder, and the one that struck the arm ranged upwards along the arm, and lodged in the muscles over the right chest. Immediately after the shooting, Dr. JBowyer dressed the wounds and cut out the ball that was lodged as aforesaid. Witness was in bed about Wo days from his wounds; was lying about the house about two weeks, and they were well at the time of the trial. When the difficulty occurred in front of Ferguson’s hotel witness did not think, as he stated, that prisoner intended to shoot until he saw him draw his pistol. Witness and prisoner had both been drinking during the day on which the shooting occurred, and both were under the influence of liquor when the shooting took place.
Wingfield, another witness for the Commonwealth, *936states that he was at the livery stable of John W. Scott, *n Liberty, a short time before the difficulty occurred; prisoner there; prisoner asked him if he, prisoner, got into a difficulty, whether witness would stand by him; further enquired if he, prisoner, needed bail, whether witness would go his bail. Merriman’s name was not mentioned by prisoner in this conversation; prisoner was drunk; was very much under the influence of liquor.
Scott, another witness for the Commonwealth, states that prisoner put up his horse at the livery stable of witness in Liberty, on the morning of the 23d of July. Saw him again about 2 o’clock of that day; was talking a heap of foolishness, and said something about that money; said George must take that back; if he didn’t take it back there would be some shooting. Witness thought it was liquor talking. Prisoner was drunk— so drunk that he staggered; had to hold to a peg in the stable in order to be able to stand. This was an hour or more before the shooting occurred. Prisoner and Merriman seemed always to be friendly; saw them walking the street together a short time before the difficulty.
In regard to the conduct and manner of the prisoner at the time of the shooting, Franklin, a witness for the Commonwealth, says “prisoner seemed to handle himself well and very cool;" and Martin, a witness for the prisoner, says “prisoner rose and drew his pistol from under his coat tail, and shot at Merriman two fair and deliberate fires, as if he had a post planted; did not seem to be excited or alarmed.”
I have stated the evidence (or so much of it as seems to be material to be stated in the view I am now taking of the case) thus fully, because it is necessary to make such a statement in order to determine the question now before us, whether the verdict of the jury was contrary to law and the evidence, and whether, on that ground, *937the judgment ought to be reversed. And now, with the case before us as it appears upon the record, I will proceed to consider that question.
■ There is certainly no good ground for dispute about the law which is to govern us in the decision of the question. The conviction was of malicious shooting with intent to kill. Whether the prisoner was guilty of malicious shooting with intent to kill or not, depends entirely upon the question whether, if the prisoner had killed Merriman, iustead of only wounding him (with intent to kill, &c.,) the offence would have been murder, either in the first or second degree—it matters not which—or would have been only manslaughter, or homicide in self-defence. If it would have been murder, then the prisoner was guilty of the offence of malicious shooting with, intent to kill, of which he was convicted. If it would not, then he was not guilty of that offence, however guilty he might have been of another offence, as of unlmoful shooting with intent to kill, &c. That it would have been homicide in self-defence, is not pretended, and there is certainly no ground for pretending. The only question, therefore, is whether it would have been murder or manslaughter.
The distinctions between murder and manslaughter, at least so far as concerns this .case, have been settled for centuries, and can admit of no question ; and I will not take time to repeat what has already been repeated more than a thousand times, the definitions of these two offences. I will only say on this subject that every unlawful homicide must be either murder or manslaughter ; and whether it be one or the other depends alone upon whether the party who perpetrated the act did it with malice or not—malice either express or implied. That one word malice is the touchstone by which the grade of the offence must be determined. "When a homicide is . committed in the course of a sudden quarrel or broil, or mutual combat, or upon a sudden provocation, and *938without any previous grudge, the offence may be murder or manslaughter, according to the circumstances of the case. Of which circumstances the most important generally, are the nature and degree of the provocation ; the manner in which it 'was resented; the character of the weapon 'used for the purpose, and whether it was casually or accidentally at hand, or was prepared for the purpose of doing such an act and carried secretly about the person. A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from the degree of murder (which is its presumed degree), to that of manslaughter ; and especially where the offence is committed with a deadly weapon. Words alone, however insulting or contemptuous, are never a sufficient provocation to have that effect, at least where a deadly weapon is used, so teuder is the law of human life, and so much opposed is it to the use of such a weapon.
It is not only necessary in such a case and for such an effect that a reasonable provocation should be received, but it is also necessary that the provocation should have the effect of producing sudden passion under the influence of which alone the offence is committed. It must be a sudden transport of passion, which the law calls furor brevis. If a person on receiving the gravest provocation, is unmoved by passion, but wantonly and wilfully and wickedly kills his adversary otherwise than in self-defence, he is guilty of murder. The law mitigates the offence to manslaughter, only as an indulgence to the infirmity of human nature. Provocation without passion or passion without provocation will not do ; both must concur to reduce the offence to the grade of manslaughter.
Again, if an unlawful homicide be committed in pursuance of a preconceived purpose, the offence will be murder, no matter how great sudden provocation may have immediately preceded the act. The provocation *939may have been brought about or sought by the perpetrator; or he may have availed himself of it to give color of justification or excuse to his act, done in exeeution of his deliberate purpose. It is true that where there is both an old grudge and fresh provocation, the jury ought rather to presume, in the absence of sufficient evidence to the contrary, that the homicide was induced by the fresh provocation, and not by the old grudge. But then this is a matter for the jury on all the evidence before it, and there is generally sufficient evidence in every such case to satisfy the jury beyond a doubt which one of these' two concurring motives induced the act.
In this case, if there had been no evidence of an antecedent grudge, or of previous threats and preparation for the commission of the act; in other words, if it had been the case of a homicide committed alone on sudden provocation ; and the jury had found the accused guilty of murder, it would have been difficult, consistently with the rules of law, even for the court of trial to set aside the verdict, much less for an appellate court to reverse the judgment on the ground that the verdict was contrary to law and evidence. It would have been a question for the jury to decide upon all the evidence ; and, looking to the nature of the provocation, being between a shove and a blow, according to some of the evidencé ; to the deadly nature of the weapon used by the offender, which was carried secretly about his person, perhaps for the very purpose ; to the cool and deliberate manner in which he used it, thus indicating an absence of sudden passion, and the presence of a malicious purpose ; even the court of trial could not well have said that the evidence did not warrant the jury in finding such a verdict. But that court being satisfied with the verdict, and refusing to set it aside, surely an appellate courtwould not have reversed the judgment.
But in this case there was abundant evidence of an antecedent grudge and previous threats, and preparation *940for the commission of the act. Merriman had lost a twenty-dollar note, and suspected the prisoner of stealing it. The prisoner asked for time to show his innocence, and repeated the request from time to time, which Merriman as often granted him. At length the prisoner having given an account which was not satisfactory to Merriman, but which, on the contrary, confirmed his suspicion, he charged the prisoner with the theft. Witness then said that Merriman must take back the'charge or he would shoot him. Merriman replied “shootthen, if you choose; I will not take it back.” Without i*epeating the evidence on this subject again,- it is enough to say that this threat of the prisoner and this reply of Merriman were repeated as many as five different times, and at different places, almost in the same words, down to the time of the commission of the act, immediately preceding which the prisoner said, for the last time, “ you must take back what you have said, or I will shoot you.” Merriman replied, “shoot, damn you, shoot; I am tired of this talk,” and used a vulgar expression to prisoner. Now, although both the prisoner and Merriman drank freely on the day of the commission of the act, and were under the influence of spirit at that time, yet it does not appear, and it is not probable, that they were under such influence on the former occasions when the threat was made. The prisoner prepared himself with a deadly weapon, to wit: a five-shooter, in good order for shooting, which he carried secretly about his person. It does not appear that he had been in the habit of carrying such a weapon secretly about his person, and as it is unlawful to do so habitually (Code ch. 195, § 7, p. 803), the jury might well have presumed that he provided himself with this weapon for the special purpose of executing his threat whenever he could find a favorable occasion for doing so, unless he could intimidate Merriman to retract the charge he had made against him. These acts, connected with the actual shooting *941which followed as aforesaid, and the circumstances under which it was done, strongly tend to show that the act was deliberately done in execution of his prior threats that he would do precisely what he did do. And this is greatly confirmed by what he said to "Wingfield about being his bail if necessary.
blow, could the judge who presided at the trial of this case say that the jury were not warranted in finding that the shooting was malicious, even if he could have said that, if upon the jury, he would have found a different verdict from that which was found ? Could he have said that the evidence was plainly insufficient to sustain the verdict ? It was a case peculiarly proper for the determination of the jury upon all its facts and circumstances. The judge who presided at the trial, and who, like the jury, saw the witnesses and heard them give their testimony, was satisfied with the verdict, and refused to set it aside. And the judge of the Circuit court has affirmed the judgment of the County court, giving his reasons for so doing in an able opinion, which is inserted.in the record. Can this court, which has not the great advantages that the jui’y and the court of trial had, in seeing and hearing the witnesses, but must look at the case in the necessarily imperfect manner in which it is presented in the record, undertake to reverse the judgments of two courts, and to set aside the verdict of the jury, in a case which it was their peculiar province to decide, and which they had so much better means of deciding than this court can possibly have? This court, though it has the power to reverse the judgments of the courts below, and set aside the verdict, has no power to decide the cause; all it can do in that way is to remand the cause for a new trial by another jury. But it has already been tried by one jury, and there is no good reason for believing that another jury would come to a different result. But whether they would, or might, or not, I- think this is-*942clearly a case in which we ought not to reverse the judgment on the ground we have been considering. For the rules which govern this court in such a ease, I refer to the following decisions: In civil cases, Ross v. Overton, 3 Call, 309; Brugh v. Shanks, 5 Leigh, 598; Mays v. Callison, 6 Id. 230; Brown v. Handley, 7 Id. 119; Mahon v. Johnston, Id. 317; Bell v. Alexander, 21 Gratt. 1; and Blosser v. Harshbarger, Id. 214; and in criminal cases, Slaughter’s case, 11 Leigh, 681; McCune’s case, 2 Rob. R. 771; Hill’s case, 2 Gratt. 594; McWhirt’s case, 3 Id. 594; Grayson’s case, 6 Id. 712; Vaiden’s case, 12 Id. 717 ; and Bull’s ease, 14 Id. 613. In Ross v. Overton, Judge Roane, delivering the resolution of the whole court, laid down the principle (in language which has since been cited and approved in many cases) thus: a- new trial, on the ground that the verdict is contrary to evidence, “ought to be granted only in case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers.”- In Brugh v. Shanks, Judge Carr, after quoting the above language of Judge Roane, says : “ These remarks are applied to the court which presides at the trial, and has all the advantages (possessed by the jury) of seeing and hearing the witnesses : how much more strongly do they apply to an appellate court, deprived of these all important aids in eviscerating truth % But here they apply a multo fortiori; for not only have the triers appointed by law found the verdict, but the court which heard the witnesses has refused the new trial. In such a case the ‘deviation’ must be gross and palpable indeed, before I could agree to interfere with the verdict.” “Perhaps, as a juror, I might have hesitated to find the verdict this jury found; but, assuredly, I should not, .as the presiding court, have set aside its verdict as against evidence; and much less, as an appellate court, can I agree to disturb it.”
*943In Mays v. Callison, Judge Carr’s opinion, in which the whole court concurred, was to the same effect; and so also in Brown v. Handley, and in Mahon v. Johnston. In Slaughter's case, in regard to the question whether a homicide was committed in consequence of present provocation or a previous grudge, the court quote the following appropriate language from the case of Regina v. Kirkham, 8 Carr & Payne 115, 34 Eng. C. L. R. 318 :
'’•'If a person has received a blow, and in the consequent irritation immediately inflicts a wouud that occasions death, that will be manslaughter. But he shall not be allowed to make this blow a cloak for what he does; and therefore, though there have been an actual quarrel and the deceased shall have given a great number of blows, yet if the party inflict the wouud, not in consequence of these blows, but in consequence of previous malice, all the blows would go for nothing.” “ And so in the case before us,” said the court in Slaughter's case, “ we may say the deceased committed a violent assault upon the prisoner in throwing the brick at him ; but did the prisoner shoot him in consequence of the ungovernable passion excited by that assault ? or did he seize upon it as an opportunity of gratifying his previous malice, and carrying into effect a preconceived design to take the life of the deceased? Those were questions that belong to the jury to decide ; and if the record contains testimony from which the jury might reasonably conclude, as they did, that the killing was the result of malice aforethought, then it would be an invasion of their province for this court to interfere and set aside their verdict.” In McCune's case the language of the court is very strong on the same subject. In' Hill's case the court say: “ Has the Commonwealth made out a case of wilful, deliberate and premeditated killing ? And here it should be premised that this was a question resting upon the tendency and weight of' the evidence, and proper for the jury to determine. And where the jury and the *944judge who tried the cause concur in the weight and influence to be given to the evidence, it is an abuse of the aPPe^a^-e Powers of this court, remote as it is from the scene of the transaction, having the evidence only-on paper, divested of many elements which enter into every jury trial, and which, from their nature, cannot be presented on paper, to set aside the verdict and judgment, because the judges of this court, from the evidence rs] written down, would not have concurred in the verdict. Although we have, contrary to the rule of the English courts, decided that it is within the appellate powers of this court to set aside a verdict because it was not authorized by the evidence; yet it is only in a case where the jury have plainly decided against the evidence, or without evidence, that this appellate power will be exercised. McCune's case, 2 Rob. R. 771.” To the same effect is McWhirt’s case. In Grayson's case, 6 Gratt. 723, Judge Scott lays down the principles which have been settled in regard to new trials, motions for which, he says, are governed by the same rules in criminal as in civil cases. I think this case falls under the fourth rule stated by him (if under any) supposing the evidence to be contradictory and the verdict to have been against the weight of evidence; in which case, he says, “ a new trial may be granted by the court which presides at the trial; but its decision is not the subject of a writ of error or supersedeás, or examinable by an appellate court.” In Vaiden's case it was held that a bill of exceptions in a criminal case, upon the refusal of the court to grant a new trial on the ground that the verdict is contrary to the evidence, is to be framed in the same way as the bill of exceptions in civil cases to the like refusal is framed; and that in reviewing the judgment of the court below, the appellate court will not reverse the judgment on the ground that there is a doubt of its correctness; but it must be satisfied that the evidence is plainly insufficient to warrant *945the verdict. See also Kate's case, 17 Gratt. 561. In the last case decided by this court on the subject, Blosser v. Harshbarger, supra, decided in 1871, my brother Christian, in whose opinion the other judges concurred, declared that “the rules of law under which a court is warranted in setting aside the verdict of a jury and granting a new trial are too well settled and firmly established by the decisions of this court to admit of doubt, or even serious discussion”—and he then repeated and re-affirmed them.
I have thus far been considering the case as upon a certificate of evidence only, and according to the rule which applies to such a case, have disregarded the parol evidence in favor of the prisoner. “But the result will not be varied,” as was said in Bull's case, 14 Gratt. 618, 622, “even if the objection to the form of the bill of exceptions be disregarded, and all the evidence therein set forth as well for as against the prisoner be considered. In pursuing that mode of deciding the case, it would, of course, be necessary to disregard all the evidence of the prisoner in conflict with the evidence against him. Eor, indeed, will it be varied if we consider the certificate as a certificate of facts, if it be possible so to consider it; nor even if we regard the evideuce of the prisoner as true where it is in conflict with the evidence of the Commonwealth, and to that extent reject the latter evidence, thus reversing the rule which properly applies to such a case. In any view which can be taken of the case, the question was a proper one for the jury to decide upon all the evidence before them.' And the jury having so decided it, and the judge who presided at the trial having been satisfied with the verdict and refused to set it aside, this court cannot properly reverse the judgment, on the ground that it was contrary to the evidence.
I will now consider the other grounds of the motion to set it aside; and,
*9462ndly. As to the ground of after-discovered evidence.
It is admitted that the rules on this subject are correctly laid down in 3 Wharton’s Am. Cr. Law, § 3161, and Thompson’s case, 8 Gratt. 641; and that after-discovered evidence, in order to afford a proper ground for the granting of a new trial, must: 1st, have been discovered since the former trial; 2ndly, be such as reasonable diligence on the part of the defendant could not have secured at the former trial; 3dly, be material in its object, and not merely cumulative and corroborative or collateral; and, 4tbly, must be such as ought to produce, on another trial, an opposite result on the merits. Without saying anything in regard to whether the first and second of these four requisitions are complied with in this case,' I think it very clear that the third and fourth are not. To say the most of it, the alleged after-discovered evidence is merely cumulative and corroborative, and is not such as ought to produce on another trial, an opposite result on the merits. It does not tend to discredit Merriman ; and if it did, the general rule is that a new trial will not be granted, where the object is to discredit a witness on the opposite side. 3 Whart. § 3184; Thompson’s case, supra. In regard to “the remarkable statement of John W. Scott, that he knew that the twenty dollar bank note spoken of was not stolen by the prisoner, but was won in gaming by him from Merriman,” I agree with the learned judge of the Circuit court in saying, that said statement, “if true, would not be relevant or material testimony on the trial of the prisoner for malicious shooting. But it does seem very strange that this person who was examined as a witness on the trial, and who knew of the difficulty between Merriman and the prisoner, and that the latter was threatening to shoot the former for charging him with stealing the note, should never have spoken of it until after the trial, when one word from him would have settled all difficulties between them.” I am of *947opinion that the alleged after-discovered evidence afforded no good ground for a new trial.
3dly. As to the ground that the jury were influenced in their verdict by improper considerations.
The only support offered to sustain this ground was the affidavit of Scott, that he heard two of the jury say that they had rendered their verdict in part on account of the defendant’s failure to explain before them the matter of the twenty dollar note which he was charged to have stolen. To say nothing of the doubtful character of this witness for veracity, for reasons before stated, it is euough to say, that even the affidavits of the two jurors themselves to the same effect would have been an insufficient ground for setting aside the verdict •of the jury. “Though the former practice was different,” says Wharton, “it is now settled in England that a juror is inadmissible to impeach the verdict of his fellows. 4It would open each juror,’ declared Mansfield, ■C. J., {to great temptation, and would unsettle every verdict in which there could be found upon the jury a man who could be induced to throw discredit on their common deliberations.’” 3 Whart. § 3155. In this country the English rule has generally been adopted. Id. In Thompson’s case, 8 Gratt. 641, 650, Thompson, J., in delivering the opinion of the court, admitted the well settled English, rule, and the great preponderance of American authority in the same way, and he quoted the strong language of Chief Justice Hosmer, in 5 Conn. R. 348, that “the opinion of almost the whole legal world is adverse to the reception of such testimony, and in my opinion, on invincible foundations.” In Bull’s case, 14 Gratt. 613, 626, 632, most of the authorities, English and American, including those of our own State, on this subject, were referred to; and this court concluded that, “in view of all the authorities, and of the reason on which they are founded, we think, as a general rule, the testimony of jurors ought not to be received to *948impeach their verdict, especially on the ground of their 0Wn misconduct.”
But in this case we have not the affidavit of the two jurors themselves, but only the affidavit of a third person, as to what he says he heard them say; and it is laid down that “the affidavit of third persons as to what they have heard jurors say respecting their verdict, is inadmissible to impeach it.” 3 "Wharton, § 3156. In this case, too, we have counter affidavits of two others of the jury, that in deciding the case and rendei’ing their verdict, the question of the guilt or innocence of the prisoner in taking the twenty dollar note which Merriman charged the prisoner with having taken, was not discussed or considered by the jury—at least, so far as the affiants heard or believed. I am of opinion that the ground thirdly relied on as aforesaid for setting aside-the verdict was insufficient for that purpose.
4thly. As to the ground that the jury, after they were sworn and during the trial, were committed to the custody and exposed to the influence of a deputy sheriff, who was a witness and had testified to material facts in behalf of the Commonwealth on said trial.
I do not think I can answer this objection in stronger or more appropriate language than that which was used by the learned judge of the Circuit court on the same subject, and which, therefore, I adopt as mine. “The counsel for the prisoner argue that this was improper, and liken it to a case of a separation of the jury, or their'improper intercourse with persons not of the jury. If it had even been shown that the deputy sheriff1 was an important witness, or had any feeling against the prisoner, it seems to me that it would be going a great length to presume that he had violated his duty and his oath, by speaking to the jury on the subject of the trial. He took an oath that he would not speak to them himself on the subject of the trial, nor suffer any other person to speak to them. The sheriff is obliged to speak *949to the jury as relates to their comfort or wants, and under the law, he is obliged to take care of and provide for them, and have the custody of them during the recess of the court; and because he happens to be called upon as a witness to prove a fact in the case, however immaterial or unimportant, it seems to me that it ought not to be presumed that he violated his duty and his oath, without any motive for so doing.
In this case it does not appear that the deputy was summoned as a witness. He was not examined in chief, but was called on as rebutting evidence to prove a single fact, viz: that the prisoner did not fall when he was stricken by Merriman—a fact not very material, and which was proved by a number of other witnesses who testified in the cause—indeed, by every one who testified on the subject, except Jordan Martin. The sheriffs who had custody of the jury were sworn in court every evening in the presence of the prisoner and his counsel; and if there was any objection to any of them having charge of the jury, it ought to have been made then; and if there was any reason for it, the court would doubtless have prevented any improper person from having charge of it. That the deputy sheriff, Uasey, should have been casually called on in the progress of the trial, to prove a single fact which transpired in his presence, and had been already proved by several witnesses, certainly did not show that he had any feeling about the result ■of the prosecution, or legally disqualify him from keeping the jury. It did not tend to show that he was an unfit person to perform that office, and he might, notwithstanding that fact, have been a very fit person for that purpose. The prisoner may have had perfect confidence in his integrity, aud may have preferred that he should continue to keep the jury after he had given evidence. That he was sworn for that purpose in the presence of the prisoner, without any objection being made on his part, shows that he had no objection to *950make; and it is now too late to make such an objection, for the first time, in the appellate court,' even if it could have been made successfully at any time. It will be presumed that the officer performed his duty and his oath, in the absence of any evidence to the contrary.
My attentioffhas been called to the case of McElrath v. The State, 2 Swan R. 378, which is supposed to have a material bearing on the question I am now considering. I always regard with respect a decision of the highest court of a sister State, especially when it is supported by good reasons, although it is not a binding authority in this State. Butin my opinion, and with all respect for the - opinions of those who differ from me, that case is not at all in point. There a new trial was awarded a prisoner convicted of manslaughter, because it appeared that during the progress of the trial the prosecutor spent a night in the room with the jury, who' had been committed by the court to the care of a constable, though the prosecutor was the sheriff of the county, and all exceptions to the competency of the panel of jurors summoned by him were waived by the prisoner, and though the prosecutor stated in an affidavit, that he “made use of no means of any sort to influence the jury.”
Of all persons concerned in a prosecution, the prosecutor himself is the most interested, and the most unfit to have charge of the jury; and accordingly, in that case, the jury was placed in the care of a constable, who took an oath to keep them separate from all other persons, and suffer no one to have any communication with them. Under these circumstances, it -was an act of great misbehavior in the prosecutor (though he was sheriff) to obtrude himself into the room with the jury and stay with them all night, and it was an act from which the prisoner might have sustained great detriment, notwithstanding the affidavit of the sheriff that he made use of no means to influence them. It is true *951that the court, in its opinion in that case, makes use of an expression which, taken by itself, might seem to imply that a witness is in no case a proper person to have charge of a jury. But we must construe this expression with the context. “The simple inquiry, then, is (say the court): Can it be tolerated that the prosecutor may, at his pleasure, associate and hold communication with the jury during the progress of the trial? And this inquiry, it seems to us, admits of no discussion, if the * purity of the trial by jury be deemed worthy of preservation. If the prosecutor may do so, who may not? May not any stranger to the prosecution, or any witness in the case, or any relative of the deceased, thus intrude himself upon the jury ?” The responsibilities of a prosecutor, further say the court, “are of a nature to inspire him with a feeling of personal interest in the result of the prosecution. He may be, and frequently is, a witness; his reputation is, in some degree, not unfrequently involved in the issue; he is liable to be subjected to costs, in the event that the court should be satisfied that the prosecution was either frivolous or malicious; and likewise to an action for damages at the suit of the injured party.” How unlike in its circumstances is that ease to this ? If, in this case, Merriman had intruded himself into the same room with the jury and staid all night, and conversed freely with them, the cases would have been more alike. Here, after the testimony in chief was closed on both sides, a deputy sheriff was called on by the attorney for the Commonwealth and testified to a single fact of little importance, which happened to be within his observation, and which bad already been proved by nearly all the witnesses on both sides. After this the deputy was sworn, as on former occasions, iu the presence and without any objection of the prisoner or his counsel, to keep the jury; and the only question is, whether, as matter of law, the verdict *952is invalid for such a cause aud under such circumstances ? I say, clearly not.
I am of opinion that this fourth and last ground relied on for setting aside the verdict was insufficient for that purpose. • ^
And now I have but one remaining point to consider, which is the point presented by the second bill of exceptions, to wit: that on the 11th day of September 1872, when the prisoner was brought into court to hear judgment on the verdict, the term of the court at which he was tried had ended, and it was not competent for the court to enter up judgment on said verdict: and, therefore, that the court ought to have sustained, and not overruled, his motion to arrest said judgment on that ground.
JBy the Code, ch. 152, § 15, it is provided, that “ every such term of said courts (to wit: the couuty courts) may continue, if it be a monthly term, not exceeding six •days, and if it'be a quarterly term, not exceeding twelve days.” By the act of April 27, 1867, acts of Assembly 1866-’67, ch. 118, § 3, p. 944, the 15th section of ch. 157 of the Code is amended and re-enacted, the amendment providing that “ every such term of said courts may continue, not exceeding fifteen days, and may adjourn from day to day, or to any day within the fifteen days.” By the act of April 2, 1870, acts of Assembly 1869-’70, ch. 38, p. 35, passed after the adoption of the present constitution, chapter 157 of the Code of 1860, was amended and re-enacted. The chapter as amended consisted of 11 sections, while the original chapter consisted of 18. The amended chapter, § 2 provides, that “there shall be held in each county of this Commonwealth, monthly, a term of the County court, to be held at the times prescribed by law, and with the jurisdiction hereinafter provided.” But neither in that section nor any where else in the chapter, is any thing said about the duration of the term; while § 10 repeals “all acts *953and parts of acts inconsistent with the provisions of this act.” If this act repeals the provision of the act of 1867, fixing the duration of the term at fifteen days, then there is now no other limitation of the term than that which is implied in the declaration contained in the act of 1870, that there shall be held in each couuty, monthly, a term of the County court, to be held at the times prescribed by law—the effect of which would be, that the term must commence at the time prescribed by law, but might continue as long as the business of the •court required; not longer, however, than until the day fixed for the commencement of the next succeeding term. If this be the true construction of the act of 1870, then certainly the term of the court at which the prisoner was tried had not ended when the judgment against him was pronounced.
But it is contended that the provision in the act of 1867, fixing the duration of the term, not being inconsistent with any provision of the act of 1870, is not repealed by that act, but yet remains in full force ; that the term of the court at which the prisoner was tried could not be continued longer than fifteen days, counting the Sundays which happened during that period in the number of days fixed for the duration of the court; and that the judgment having been pronounced on the 11th day of September 1872, which was the sixteenth day from the commencement of the term, counting the two Sundays which intervened (though only the fourteenth day from said commencement, not counting those Sundays), the said judgment was pronounced after the end of the term, and therefore was void.
The question whether the aforesaid provision of the act of 1867 was repealed by the act of 1870, is an interesting question, but not necessai’ry to be decided in this case in my view of it. As I am clearly of opinion that, if the said provision was not so repealed, but yet remains in full force, and the duration of the term of *954the County court is still limited by law to fifteen days, Sundays are not by'our law judicial days, andaré not to be counted in the number of the fifteen days during which the County court is authorized by law to set in a term. The term “may continue not exceeding fifteen days,” that is juridical days on which the court may lawfully set, and not including Sundays, which are dies non, on, which the court cannot sit. That such is the construction of every such law in this State, unless where a contrary intention is clearly indicated in the law, 'is expressly decided by this court in the recent case of Michie, &c., v. Michie's adm'r, &c., 17 Gratt. 109, in which it was held that Suuday, being dies non juridicus, is not one of the days of the term of a court. See also the Code, ch. 16, § 17, 8th clause, p. 115 ; and Hill's case, 2 Gratt. 594, 612-13. A contrary intention is not indicated in the act of 1867. The counsel for the prisoner seemed to think that it was by the provision that the court may adjourn “to any day within the fifteen days.” But that means “ any juridical day. within the fifteen judicial days, during which the court is authorized to be continued.” It is much more important that the law should be settled than that it should be settled in any particular way (which indeed is a matter of little importance), and it has accordingly been settled with us. I am, therefore, of opinion that the County court did not err in overruling the prisoner’s motion to arrest the judgment.
I have now considered and disposed of all the questions arising in this case. I regret that my opinion should have been extended to so great length, but felt that it was proper to examine fully the arguments made by the very able counsel of the prisoner, both in this cuirt and in the court below. I think there is no error in the judgment, and am for affirming it.
Anderson, J.
“ When fresh provocation occurs be*955tween preconceived malice and death, it ought clearly to appear that the killing was upon the antecedent malice, which may be difficult in some cases to show satisfactorily, if the new7 provocation be a grievous one. In such cases, says Hawkins, it should not be presumed tb&t they fought on the old grudge, unless it appear by the whole circumstances of the fact.” Wharton’s Crim. Law, 6 Ed., § 955; 1 Russell 484. I do not think it appears from the evidence in this case that the prisoner had preconceived malice. It is true that he threatened the prosecutor that if he did not withdraw a grievous charge he had made against him, he would shoot him. But such threat does not seem to have been made in malice. The prisoner did not so regard it; for their relations, which were of the most friendly character, were not affected by it. They seemed to have met and parted as friendly as before, associated together, drank together, and talked with each other in the most friendly manner. And the prosecutor evidently did not regard his threats as serious. The prisoner does not appear to be a malicious man, as he is exhibited in this record. His conduct was not that of a man who had a murderous purpose. He was doubtless grieved by the imputation made upon his character, and his threat of shooting was evidently made, not with a malicious or murderous purpose, but as a means of relieving his character from the imputation, by inducing Merriman, the prosecutor, to withdraw it. I do not think from the evidence that he had formed a fixed resolution to put his threats in execution ; but he had serious thoughts of it on the day the shooting took place, as is shown by the inquiry he made of of the witness Wingfield, will you back me if I get into any difficulty ; will you go my bail ? He was evidently considering the consequences of such an act, if he was not too drunk then for reflection. But it does not show that he had made up his mind to it.
But whatever may have been bis intention or purpose *956^16n’ ^ ^ was *° s^00k^ie prisoner, I think the evidence shows plainly that he abandoned it.
If there was p'reconceived malice, it appears from the evidence that he received grievous fresh provocation ; and it does not clearly appear from the evidence, in my opinion, that the shooting was upon the antecedent , malice, which, as we have seen, it was incumbent on the Commonwealth to make clear. On the contrary, I think it does plainly appear that it was caused by the fresh provocation. I am convinced from the evidence, that the prisoner would not have shot if he had not been struck by Merriman. And there is no evidence that he did any thing to provoke him to strike him. On the contrary, the evidence shows that he endeavored to appease him ; that he put his hand gently upon him and begged him to desist, and let the matter drop, when he was struck a blow by Merriman, as to the force and violence of which there is a difference of opinion among the witnesses ; but which was of sufficient violence, according to the testimony of Merriman himself, to stagger him back two" or three feet; according to the testimony of other witnesses eight or ten feet, and according to the testimony of one to fell him to the ground, he catching on his hands. Ho other witness saw him fall. The prisoner then drew his pistol, and about the same time Merriman attempted to draw his, but it hung in his coat, and the prisoner shot first, evidently, according to the testimony of the physician who dressed Merriman’s wounds and extracted the ball, while he (Merriman) was in the act of drawing his pistol.
I concur with the president in his exposition of the law, and only differ from him in inference from the facts proved. I regard the certificate of the judge of the court of trial as a certificate of facts, upon the authority of our decision in McClung’s adm'r v. Ervin, recently decided and not yet reported, in which the cases on the subject of new trials are reviewed. But if it is a cer*957tificate of evidence, as was said by Judge Brockenbrougb in Green v. Ashby, 6 Leigh, p. 135, I can perceive no difference between evidence admitted to be true and facts proved. In this case I do not think there is any material or substantial conflict in the evidence, or facts certified as proved. Some of the witnesses saw what others did not, as is universally the case among the witnesses of such conflicts. And the difference as to the force of the blow struck is only a difference of opinion. The effect of the blow, according to all the testimony, shows that it was a violent one ; as, indeed, it is most likely it would have been from a man who exhibited the indecent rage and violence that MerrimaD did at the time.
I am of opinion, therefore, that the fresh provocation which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting, and that the jury were not justified by the evidence in ascribing it to preconceived malice—if, indeed, any ever existed. I think the evidence shows that the prosecutor was to blame from the beginning to the end of the controversy. lie charged the prisoner with stealing his money, and instead of prosecuting him for it, and discarding him as a thief, he was cheek by jole with him. whenever they met; his social and friendly intercourse with him were unaffected by the belief of Merriman that he was a felon. But on the occasion of the fight, conscious of being armed himself with a revolver, he goaded the prisoner to make an assault on him, by hectoring and bullying over him, and belching in his teeth the most abusive and insulting language, and assuming towards him the most offensive attitudes, all of which was unavailing to provoke the prisoner to an attack, until he, without provocation, struck the blow which sent him .reeling from him; and then the prisoner drew his pistol (the prosecutor drawing his almost simultaneously) and fired on him, and slightly wounded him. *958Some little time elapsed before the second fire, when they both fired nearly simultaneously, and Merrimau was again slightly wounded. They had one or two more rounds, Merriman’s pistol snapping every time, when the prisoner retreated iuto the tavern near by, one barrel of his revolver being still loaded, and Merriman pursued him to the door, apparently anxious to continue the fight.
I am of opinion, from the best view I can take of the evidence, that the fresh provocation, which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting; and that the jury were not justified by the evidence in ascribing it to preconceived malice.
•I deem it unnecessary to notice the other grounds on which the reversal of the judgment is asked, this being, in my opinion, sufficient. But I will only add that I think it a bad practice, during the pendency of a criminal trial, to commit the custody of the prisoner to a sheriff, who is examined as a witness for the Commonwealth, whether he had been regularly subpoenaed as a witness or not. In order to preserve the purity of trial by jury, I am not prepared to say that public policy does not require that the judgment in this case should be reversed upon that ground alone, if there was no other.
Upon the whole, I am of opinion that the judgment should be reversed, and a new trial awarded the prisoner.
Christian and Staples, Js., concurred in the opinion of Moncure, P.
Bouldin, J. concurred in the opinion of Anderson, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481813/ | MONCURS, P.
This is a writ of error to a judgment of the Circuit court of Bed-ford county', affirming a judgment of the County court of said county, convicting the plaintiff in error, Harold P. Read, of maliciously shooting one George S. Merriman, with intent to maim, disfigure, disable and kill him. The questions arising in the case are presented by two bills of exceptions, taken by the plaintiff in error in the course of the proceedings in the County court; one of them to the opinion of said court overruling the motion of the prisoner to set aside the verdict of the jury and grant him a new trial, upon various grounds set out in the first bill of exceptions; and the other, to the opinion of said court overruling the motion of the prisoner to arrest judgment on said verdict, upon the ground set out in the second bill of exceptions. I will consider these questions in their order; and first those which arise on the first bill of exceptions.
The motion to set aside the verdict and grant a new trial was based upon four grounds, viz: 1st. That the verdict of the jury was against the law and the evidence in the cause.
2nd. Because, since the rendering of said verdict the prisoner had discovered important evidence, which he could not have before discovered by reasonable diligence, material to his defence on said trial; and which, *if given in before the jury, ought, and would, have produced a different verdict from the one found.
3rd. Because the jury were influenced in making up their verdict by improper considerations, not admissible under the evidence, and not warranted by' it.
4th. Because of the improper and irregular treatment of the jury during the trial, by being committed, after they were sworn and during the trial, to the custody', and exposed to the influence, of a deputy sheriff, who was a witness, and had testified to material facts on behalf of the Commonwealth on said trial.
Ought the verdict to have been set aside and a new trial granted on either of these four grounds; and,
1st. That the verdict was against the law and the evidence.
In considering this ground it may be material, first, to enquire whether the facts proved, or only thé evidence introduced, on the trial, are certified in the bill of exceptions. While it is well settled that an appellate court may revise a judgment of the court below, refusing a new trial on the ground that the verdict is contrary to evidence, even in- a criminal case, in behalf of the accused; yet it is also well settled that the bill of exceptions must so present the case as that the appellate court may be able to see whether the jury has correctly applied the law to the facts of the case, and to correct any error which the jury may have committed in that respect. Regularly, the facts, instead of the evidence, ought to be certified in the bill of exceptions; and where there is a conflict or complication of evidence, the court may, on that ground, be unable or unwilling, and, therefore, refuse, to certify the facts; and then the appellate court cannot revise the judgment, unless the evidence be certified, and then only on certain conditions. That is, the court will not in that . case reverse the judgment, unless, after rejecting all the parol evidence for the exceptor, and giving full faith and credit to that of the ^adverse party, the decision of the court below still appears to be wrong. As to the rule to be observed where evidence only is certified, see Ewing v. Ewing, 2 Leigh, 337; Green v. Ashby, 6 Id. 135; Rohr v. Davis, 9 Id. 30; Pasley v. English, 5 Gratt. 141; Bull’s case, 14 Id. 613.
Whether the court of trial intended to certify the facts, or the evidence only, is sometimes a doubted question. In form, it sometimes appears that the certificate is *333one of facts: whereas, in substance, it is a certificate of evidence only; and so, on the other hand, it may, in form, appear to be one of evidence only, when it was intended to be one of facts. Each case must depend upon its own circumstances, and the appellate court must determine, as well as it can, what is the character of the certificate in that respect. On this subject see Bennett v. Hardaway, 6 Munf. 125; Jackson’s adm’r v. Henderson, 3 Leigh, 196; Patterson v. Ford, 2 Gratt. 18; Vaiden’s case, 12 Id. 717. Where the matters certified in form as facts are in any respect conflicting, it is evident that the certificate, in that respect at least, is of evidence and not of facts, because facts cannot be conflicting, but must be consistent with each other.
The certificate in this case may be said to be in form a certificate of facts. It commences by saying: “The court doth certify that the following are the facts, and all of the facts, proved before the jury on said trial.” It then proceeds to state what each witness on behalf of the Commonwealth and on behalf of the prisoner “proved,” in detail; and it concludes each statement by saying, that the foregoing are all the facts proved “on behalf of the Commonwealth,” and “on behalf of the prisoner,” respectively.
But when we come to examine the “facts proved,” as stated by the several witnesses, we find such a conflict between them in most material respects as to show that the certificate, though, in form, one of facts, is *really one of evidence only. Eor example, in regard to the nature and degree of violence of the blow given by Merriman to the prisoner immediately preceding the act of shooting by the latter —a vitally important fact in the case, if that blow was the provocation which induced and caused the said act—there is a very decided conflict in the testimony, and most of the witnesses on both sides differ among themselves as to the character of that blow. Jordan Martin, a witness for the prisoner, says that “Merriman struck prisoner a violent blow in the pit of the stomach, knocking him back eight or ten feet, prisoner falling and catching on his hands.” “The blow struck by Merriman was a very heavy one—like the kick of a mule. ’ ’
Now if this be a true account of the blow, and it, and not a previous grudge or provocation, was the cause of the shooting, such shooting could hardly be considered as malicious—at least, without satisfactory evidence that the act was done deliberately, and not in heat of blood. But all the other evidence on both sides represents the blow as not having been near so violent, while it varies materially in itself as to the nature of the blow. Merriman himself says he “struck” the prisoner, who “staggered back several feet, and drew his pistol and fired at witness.” Hogan’s evidence is to the same effect. Kearns says “he saw prisoner put his hand on Merriman’s shoulder, seemingly in a gentle manner; then Merriman gave prisoner a lick or a shove, saying ‘go away from me and let me alone; I don’t want to have anything more to do with you;’ then firing commenced. ’ ’ From this account, taken by itself, it would appear that the blow, if blow it could be called, was slight, and that the shooting, even though caused by the blow alone, was malicious. Franklin says he “saw Merriman strike or shove the prisoner. It was between a shove and a blow; prisoner fell back about ten feet; seemed to be getting back to get his pistol;” “thinks blow not sufficient *to have forced him back.” “The blow was not a heavy one.” Craig says “prisoner struck M. with his open hand; M. then hit prisoner with his doubled fist. Prisoner fell back, drew his pistol, and after he recovered himself enough, shot M.”
Other witnesses besides Martin, examined in behalf of the prisoner, testified as to the nature of the blow. One of them, Lee, the prisoner’s brother-in-law, says that “M. struck the prisoner and knocked him back some ten feet. It was a heavj’ blow. Then prisoner drew his pistol and fired.” This testimony rather tends to confirm that of Martin. But another of the prisoner’s witnesses, Douglass, gives testimony tending the other way. He says he “saw M. strike or shove prisoner off several paces, and then prisoner commenced firing. ’ ’ Thus describing the blow in almost the same language in which it is described by two of the witnesses for the Commonwealth, 'to wit: Kearns and Franklin, and concurring with them in representing the blow to have been a slight and not a heavy one.
There are other material facts about which there is a conflict in the evidence; but enough has been stated to show that the County court really certified in the bill of exceptions the testimony in full of the witnesses, and not the facts- only, which the court considered to be proved by them.
Regarding the certificate, then, to be one of evidence, and not of the facts which the court considered to be proved by the evidence. we must reject the evidence in behalf of the prisoner, and consider the case upon the evidence on the part of the Commonwealth, according to the rule established by cases before referred to. See Vaiden’s case, 12 Gratt. 726, and the cases there cited. Applying that rule to the case, it will be found, I think, to be a very plain one. We have only to take the testimony of the witness, Merriman, who states the whole case from the beginning to the end; examine, in connection *with it, some few circumstances omitted by him but stated by other witnesses for the Commonwealth, and enquire whether, upon the case thus presented, this court would be warranted in reversing the judgment upon the ground that the verdict was contrary to law and the evidence.
Before I review Merriman’s testimony, I will remark in regard to it, that it seems to be in conflict with none of the other testimony, either that in behalf of the Corn*334monwealth, or that in behalf of the prisoner. He omits, perhaps from inadvertence, a few particulars stated by other witnesses, but those particulars are consistent with what he states. Even the testimony of the prisoner’s witness, Martin, in regard to the severity of the blow given by Merriman to the prisoner, is not in conflict with the testimony of Merriman, who, while he gives no particular description of the severity of the blow, admits that he “struck” the prisoner, who “staggered back several feet, and drew his pistol and fired at witness.” The testimony of this witness is, therefore, no doubt substantially true. But whether so or not, it must be so considered in disposing of the question now before us.
Merriman states that he had played at cards with prisoner and others, at the November term, 1871, of Bedford County court, and had then lost a twenty dollar note, which he believes had been stolen from him. At January term, 1872, of said court, at Liberty, and in the morning of said day, witness went to prisoner and mentioned the loss of the note to him, and prisoner said he was innocent in the matter, and if witness would give him time he would show his innocence. Witness then told prisoner he would give him time. In the afternoon of the same day witness went again to prisoner and asked him about the note. Prisoner again said that if witness would give him time he would show his innocence ; and witness again told him he would give him *time. At the following February term of said court witness again went to prisoner about said note, and prisoner again asked for time, which witness again agreed to give. At the following June term of said court witness again called on prisoner about said note, when prisoner gave witness an account of sai'd note, which witness said he knew was false; and, therefore, witness told the prisoner that he had stolen the note. Prisoner then said to witness that witness must take back that charge, or he would shoot him. Witness replied to prisoner, “Shoot, then, if you choose; I will not take it back.”
On the 11th day of July following, in the nighttime, prisoner was passing along the public road near the residence of the mother of witness, with whom witness lived, and called witness out in the road where prisoner was sitting on his horse, and had a conversation with witness about the note, and told witness he must take back the charge he had made against prisoner about the note. Witness said to prisoner that he would not take it back. Prisoner then said to witness that if he did not take it back he would shoot him. Witness replied, “Shoot then.” And prisoner rode off home, saying, I will see you again at court. On the 23d day of Juty (same month) witness came to Liberty court day. About 10 or 11 o’clock in the morning he saw prisoner in the courthouse yard, near the door of the office of James F. Johnson, engaged in sssu^i^ -uo;jng uo^ssrg ipgM. uoi}-es;raAuoo went to where prisoner was engaged in this conversation and found it was in regard to the bank note. After some conversation had about the matter between Burton and the prisoner, prisoner said to witness that he, witness, had told the prisoner that Burton had said that he, Burton, had seen the prisoner take the note from the pocket of witness, and that Burton denied that he had ever said so. Witness then said that he had never said to prisoner that Burton made that statement. *Prisoner insisted that witness had said so; whereupon witness told the prisoner that he was “a damned liar; that he had stolen his money, and he could prove it on him. ’ ’ Witness and prisoner after this went to a bar room in Liberty, and were seated together alone on some barrels. The note was again made subject of conversation by prisoner, when the prisoner said to witness that witness must take back what he had said to him about the note, or he would shoot him. Witness-replied, shoot then; that he would not take back anything he had said; and that if he, the prisoner, did shoot, he had better put in a good one. Afterwards, about 12 o’clock of the same day, prisoner and witness again met at the grocery store of John Caddie, in Liberty. After they had been there, Mr. Caddie gave them each a glass of liquor. Witness drank a little and was about leaving, when prisoner was drinking his liquor, and called to him and said that he must take back what he had said, or he would shoot him. Witness replied that he, prisoner, might shoot as much as he pleased; that he, witness, would not take back anything he had said.
After the interview spoken of between prisoner and witness at the bar room, witness went to his sister (Mrs. Lucy Dennis), who resides in Liberty, and borrowed from her the pistol which he subsequently used in the fight with prisoner in front of Ferguson’s hotel. It was a five shooter, similar to the one used bj’’ prisoner in the fight, and every chamber was loaded. In the afternoon of said day, between the hours of 3 and 6 o’clock, the prisoner called witness to him and asked him to take a walk; that they walked across the street, and when they reached the front of the door of Ferguson’s hotel facing the courthouse lot, witness said to prisoner that he would go no further ; that he intended to go into Ferguson’s and get a drink; prisoner then said this matter must be settled right now; witness then said let *it be settled then ; prisoner then said ‘ ‘you must take back what you have said, or I will shoot you;” witness replied, shoot, damn you, shoot; I am tired of this talk; and used a vulgar expression to prisoner. Prisoner then pushed witness off, and witness struck him, and prisoner staggered back several feet and drew his pistol and fired at witness, and struck him on the shoulder; witness then attempted to draw his pistol-, and found some difficulty in getting it out; after witness got his pistol out he presented it at prisoner, and before he fired, prisoner fired his second shot, *335which struck witness on his right arm as it was extended, and caused witness to lower his arm, and witness fired his ball from his pistol, he thinks, into the ground. Prisoner fired some three or four shots in all. Witness fired only one shot, and snapped his pistol several times at prisoner, but could not get it to go off but once. After prisoner had ceased firing, he ran into Rerguson’s hotel, and witness pursued him to the door.
Witness was shot in two places—on the top of the right shoulder, and on the front of the right arm, between the elbow and the top of the shoulder. The ball that struck the shoulder went out in rear of the shoulder, and the one that struck the arm ranged upwards along the arm, and lodged in the muscles over the right chest. Immediately after the shooting, Dr. Bowyer dressed the wounds and cut out the ball that was lodged as aforesaid. Witness was in bed about two days from his wounds; was lying about the house about two weeks, and they were well at the time of the trial. When the difficulty occurred in front of Rerguson’s hotel witness did not think, as he stated, that prisoner intended to shoot until he saw him draw his pistol. Witness and prisoner had both been drinking during the day on which the shooting occurred, and both were under the influence of liquor when the shooting took place.
Wingfield, another witness for the Commonwealth, ^states that he was at the livery stable of John W. Scott, in Liberty, a short time before the difficulty occurred; saw prisoner there; prisoner asked him if he, prisoner, got into a difficulty, whether witness would stand by him; further enquired if he, prisoner, needed bail, whether witness would go his bail. Merriman’s name was not mentioned by prisoner in this conversation; prisoner was drunk ; was very much under the influence of liquor.
Scott, another witness for the Commonwealth, states that prisoner put up his horse at the livery stable of witness in Liberty, on the morning of the 23d of July. Saw him again about 2 o’clock of that day; was talking a heap of foolishness, and said something about that money; said George must take that back; if he didn’t take it back there would be some shooting. Witness thought it was liquor talking. Prisoner was drunk—so drunk that he staggered; had to hold to a peg in the stable in order to be able to stand. This was an hour or more before the shooting occurred. Prisoner and Merriman seemed always to be friendly; saw them walking the street together a short time before the difficulty.
In regard to the conduct and manner of the prisoner at the time of the shooting, Rranklin, a witness for the Commonwealth, says “prisoner seemed to handle himself well and very cool;” and Martin, a witness for the prisoner, says “prisoner rose and drew his pistol from under his coat tail, and shot at Merriman two fair and deliberate fires, as if he had a post planted; did not seem to be excited or alarmed. ’ ’
I have stated the evidence (or so much of it as seems to be material to be stated in the view I am now taking of the case) thus fully, because it is necessary to make such a statement in order to determine the question now before us, whether the verdict of the jury was contrary to law and the evidence, and whether, on that ground, *the judgment ought to be reversed. And now, with the case before us as it appears upon the record, I will proceed to consider that question.
There is certainly no good ground for dispute about the law which is to govern us in the decision of the question. The conviction was of malicious shooting with intent to kill. Whether the prisoner was guilty of malicious shooting with intent to kill or not, depends entirely upon the question whether, if the prisoner had killed Merriman, instead of only wounding him (with intent to kill, &c.,) the offence would have been murder, either in the first or second degree—it matters not which—or would have been only manslaughter, or homicide in self-defence. If it would have been murder, then the prisoner was guilty of the offence of malicious shooting with intent to kill, of which he was convicted. If it would not, then he was not guilty of that offence, however guilty he might have been of another offence, as of unlawful shooting with intent to kill, &c. That it would have been homicide in self-defence, is not pretended, and there is certainly no ground for pretending. The only question, therefore, is whether it would have been murder or manslaughter.
The distinctions between murder and manslaughter, at least so far as concerns this case, have been settled for centuries, and can admit of no question; and I will not take time to repeat what has already been repeated more than a thousand times, the definitions of these two offences. I will only say on this subject that every unlawful homicide must be either murder or manslaughter ; and whether it be one or the other depends alone upon whether the party who perpetrated the act did it with malice or not—malice either express or implied. That one word malice is the touchstone by which the grade of the offence must be determined. When a homicide is committed in the course of a sudden quarrel or broil, or mutual combat, or upon a sudden provocation, and *without any previous grudge, the offence may be murder or manslaughter, according to the circumstances of the case. Of which circumstances the most important generally, are the nature and degree of the provocation ; the manner in which it was resented; the character of the weapon used for the purpose, and whether it was casually or accidently at hand, or was prepared for the purpose of doing such an act and carried secretly about the person. A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from the degree of murder (which is its presumed degree), to that of *336manslaughter; and especially where the offence is committed with a deadly weapon. Words alone, however insulting or contemptuous, are never a sufficient provocation to have that effect, at least where a deadly weapon is used, so tender is the law of human life, and so much opposed is it-to the use of such a weapon.
It is not only necessary in such a 'case and for such an effect that a reasonable provocation should be received, but' it is also necessary that the provocation should have the effect of producing sudden passion under the influence of which alone the offence is committed. It must be a sudden transport of passion, which the law calls furor brevis. If a person on receiving the gravest provocation, is unmoved by passion, but wantonly and wilfully and wickedly kills his adversary otherwise than in self-defence, he is guilty of murder. The law mitigates the offence to manslaughter, only as an indulgence to the infirmity of human nature. Provocation without passion or passion without provocation will not do; both must concur to reduce the offence to the grade of manslaughter.
Again, if an unlawful homicide be committed in pursuance of a preconceived purpose, the offence will be murder, no matter how great sudden provocation may have immediately preceded the act. The provocation *may have been brought about or sought by the perpetrator; or he may have availed himself of it to give color of justification or excuse to his act, done in execution of his deliberate purpose. It is true that where there is both an old grudge and fresh provocation, the jury ought rather to presume, in the absence of sufficient evidence to the contra^, that the homicide was induced by the fresh provocation, and not by the old grudge. But then this is a matter for the jury on all the evidence before it, and there is generally sufficient evidence in every such case to satisfy the jury beyond a doubt which one of these two concurring motives induced the act.
In this case, if there had been no evidence of an antecedent grudge, or of previous threats and preparation for the commission, of the act; in other words, if it had been the case of a homicide committed alone on sudden provocation; and the jury had found the accused guilty of murder, it would have been difficult, consistently with the rules of law, even for the court of trial to set aside the verdict, much less for an appellate court to reverse the judgment on the ground that the verdict was contrary to law and evidence. It would have been a question for the jury to decide upon all the evidence; and, looking to the nature of the provocation, being between a shove and a blow, according to some of the evidence; to the deadly nature of the weapon used by the offender, which was carried secretly about his person, perhaps for the very purpose ; to the cool and deliberate manner in which he used it, thus indicating an absence of sudden passion, and the presence of a malicious purpose; even the court of trial could not well have said that the evidence did not warrant the jury in finding such a verdict. But that court being satisfied with the verdict, and refusing to set it aside, surely an appellate court would not have reversed the judgment.
But in this case there was abundant evidence of an antecedent grudge and previous threats, and preparation *for the commission of the act. Merriman had lost a twenty-dollar note, and suspected the prisoner of stealing it. The prisoner asked for time to show his innocence, and repeated the request from time to time, which Merriman as often granted him. At length the prisoner having given an account which was not satisfactory to Merriman, but which, on the contrary, confirmed his suspicion, he charged the .prisoner with the theft. Witness then said that Merriman must take back the charge or he would shoot him. Merriman replied “shoot then, if you choose; I will not take it back.” Without repeating the evidence on this subject again, it is enough to say that this threat of the prisoner and this reply of Merriman were repeated as many as five different times, and at different places, almost in the same words, down to the time of the commission of the act, immediately preceding which the prisoner said, for the last time, “you must take back what, you have said, or I will shoot you.” Merriman replied, “shoot, damn you, shoot; I am tired of this talk, ’ ’ and used a vulgar expression to prisoner. Now, although both the prisoner and Merriman drank freely on the day of the commission of the act, and were under the influence of spirit at that time, yet it does not appear, and it is not probable, that they were under such influence on the -former occasions when the threat was made. The prisoner prepared himself with a deadly weapon, to wit: a five-shooter, in good order for shooting, which he carried secretly about his person. It does not appear that he had been in the habit of carrying such a weapon secretly about his person, and as it is unlawful to do so habitually (Code ch. 195, $ 7, p. 803), the jury might well have presumed that he provided himself with this weapon for the special purpose of executing his threat whenever he could find a favorable occasion for doing so, unless he could intimidate Merriman to retract the charge he had made against him. These acts, connected with the actual shooting *which followed as aforesaid, and the circumstances under which it was done, strongly tend to show that the act was deliberately done in execution of his prior threats that he would do precisely what he did do. And this is greatly confirmed by what he said to Wingfield about being his bail if necessary. ■
Now, could the judge who presides at the trial of this case say that the jury were not warranted in finding that the shooting was malicious, even if he could have said *337that, if upon the jury, he would have found a different verdict from that which was found? Could he have said that the evidence was plainly insufficient to sustain the verdict? It was a case peculiarly proper for the determination of the jury upon all its facts and circumstances. The judge who presided at the trial, and who, like the jury, saw the witnesses and heard them give their testimony, was satisfied with the verdict, and refused to set it aside. And the judge of the Circuit court has affirmed the judgment of the County court, giving his reasons for so doing in an able opinion, which is inserted in the record. Can this court, which has not the great advantages that the jury and the court of trial had, in seeing and hearing the witnesses, but must look at the case in the necessarily imperfect manner in which it is presented in the record, undertake to reverse the judgments of two courts, and to set aside the verdict of the jury, in a case which it was their peculiar province to decide, and which they had so much better means of deciding than this court can possibly have? This court, though it has the power to reverse the judgments of the courts below, and set aside the verdict, has no power to decide the cause; all it can do in that way is to remand the cause for a new trial by another jury. But it has already been tried by one jury, and there is no good reason for believing that another jury would come to a different result. But whether they would, or might, or not, I think this is ^clearly a case in which we ought not to reverse the judgement on the ground we have been considering. Eor the rules which govern this court in such a case, I refer to the following decisions : In civil cases, Ross v. Overton, 3 Call, 309; Brugh v. Shanks, 5 Leigh, 598; Mays v. Callison, 6 Id. 230; Brown v. Handley, 7 Id. 119; Mohan v. Johnston, Id. 317; Bell v. Alexander, 21 Gratt. 1; and Blosser v. Harshbarger, Id. 214; and in criminal cases, Slaughter’s case, 11 Leigh, 681; McCune’s case, 2 Rob. R. 771; Hill’s case, 2 Gratt. 594; McWhirt’s case, 3 Id. 594; Grayson’s case, 6 Id. 712; Vaiden’s case, 12 Id. 717; and Bull’s case, 14 Id. 613. In Ross v. Overton, Judge Roane, delivering the resolution of the whole court, laid down the principle (in language which has since been cited and approved in many cases) thus: a new trial, on the ground that the verdict is contrary to evidence, “ought to be granted only in case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers.” In Brugh v. Shanks, Judge Carr, after quoting the above language of Judge Roane, says: “These remarks are applied to the court which presides at the trial, and has all the advantages (possessed by the jury) of seeing and hearing the witnesses: how much more strongly do they apply to an appellate court, deprived of these all important aids in eviscerating truth? But here they apply a multo fortiori; for not onij» have the triers appointed by law found the verdict, but the court which heard the witnesses has refused the new trial. In such a case the ‘deviation’ must be gross and palpable indeed, before I could agree to interfere with the verdict. ” “Perhaps, as a juror, I might have hesitated to find the verdict this jury found; but, assuredly, I should not, as the presiding court, have set aside its verdict as against evidence; and much less, as an appellate court, can I agree to disturb it.”
*In Mays v. Callison, Judge Carr’s opinion, in which the whole court concurred, was to the same effect; and so also in Brown v. Handley, and in Mahon v. Johnson. In Slaughter’s case, in regard to the question whether a homicide was committed in consequence of present provocation or a previous grudge, the court quote the following appropriate language from the case of Regina v. Kirkham, 8 Carr & Payne 115, 34 Eng. C. L. R, 318: “If a person has received a blow, and in the consequent irritation immediately inflicts a wound that occasions death, that will be manslaughter. But he shall not be allowed to make this blow a cloak for what he does; and therefore, though there have been an actual quarrel and the deceased shall have given a great number of blows, yet if the party inflict the wound, not in consequence of these blows, but in consequence of previous malice, all the blows would go for nothing. ” “ And so in the case before us, ’ ’ said the court in Slaughter’s case, “we may say the deceased committed a violent assault upon the prisoner in throwing the brick at him; but did the prisoner shoot him in consequence of the ungovernable passion excited by that assault? or did he seize upon it as an opportunity of gratifying his previous malice, and carrying into effect a preconceived design to take the life of the deceased? Those were questions that belong to the jury to decide; and if the record contains testimony from which the jury might reasonably conclude, as they did, that the killing was the result of maiice aforethought, then it would be an invasion of their province for this court to interfere and set aside their verdict.” In McClune’s case the language of the court is very strong on the same subject. In Hill’s case the court say: “Has the Commonwealth made out a case of wilful, deliberate and premeditated killing? And here it should be premised that this was a question resting upon the tendency and weight of the evidence, and proper for the jury to determine. And where the jury and the *judge who tried the cause concur in the weight and influence to be given to the evidence, it is an abuse of the appellate powers of this court, remote as it is from the scene of the transaction, having the evidence only on paper, divested of many elements which enter into every jury trial, and which, from their nature, cannot be presented on paper, to *338set aside the verdict and judgment, because the judges of this court, from the evidence as written down, would not have concurred in the verdict. Although we have, contrary to the rule of the English courts, decided that it is within the appellate powers of this court to set aside a verdict because it was not authorized by the evidence; yet it is only in a case where the jury have plainly decided against the evidence, or without evidence, that this appellate power will be exercised. McCune’s case, 2 Rob. R. 771.” To the same effect is McWhirt’s case. In Grayson’s case, 6 Gratt. 723, Judge Scott laj’s down the principles which have been settled in regard to new trials, motions for which, he says, are governed by the same rules in criminal as in civil cases. I think this case falls under the fourth rule stated by him (if under any) supposing the evidence to be contradictory and the verdict to have been against the weight of evidence; in which case, he says, “a new trial may be granted by the court which presides at the trial; but its decision is not the subject of a writ of error or supersedeas, or examinable by the appellate court.” In Vaiden’s case it was held that a bill of exceptions in a criminal case, upon the refusal of the court to grant a new trial on the ground that the verdict is contrary to the ■evidence, is to be framed in the same way as the bill of exceptions in civil cases to the like refusal is framed; and that in reviewing the judgment of the court below, the appellate court will not reverse the judgment on the ground that there is a doubt of its correctness; but it must be satisfied that the evidence is plainly insufficient to warrant *the verdict. See also Kate’s case, 17 Gratt. 561. In the last case decided by this court on the subject, Blosser v. Harshbarger, supra, decided in 1871, my brother Christian, in whose opinion the other judges concurred, declared that “the rules of law under which a court is warranted in setting aside the verdict of a jury and granting a new trial are too well settled and firmly established by the decisions of this court to admit of doubt, or even serious discussion”—and he then repeated and re-affirmed them.
I have thus far been considering the case as upon a certificate of evidence only, and according to the rule which applies to such i case, have disregarded the parol evidence in favor of the prisoner. “But the result will not be varied,” as was said in Bull’s case, 14 Gratt. 613, 622, “even if the objection to the form of the bill of exceptions be disregarded, and all the evidence therein set forth as well for as against the prisoner be considered. In pursuing that mode of deciding the case, it would, óf course, be necessary to disregard all the evidence of the prisoner in conflict with the evidence against him. Nor, indeed, will it be varied if we consider the certificate as a certificate of facts, if it be possible so to consider it; nor even if we regard the evidence Of the-prisoner as true where it is in conflict with the evidence of the Commonwealth, and to that extent -reject the latter evidence, thus reversing the rule which properly applies to such a case. In any view which can be taken of the case, the question was a proper one for the jury to decide upon all the evidence before them. And the jury having so decided it, and the judge who presided at the trial having been satisfied with the verdict and refused to set it aside, this court cannot properly reverse the judgment, on the ground that it was contrary to the evidence.
I will now consider the other grounds of the motion to set it aside; and, *2ndly. As to the ground of after-discovered evidence.
It is admitted that the rules on this subject are correctly laid down in 3 Wharton’s Am. Cr. Eaw, $ 3161, and Thompson’s case, 8 .Gratt. 641; and that after-discovered evidence, in order to afford a proper ground for the granting of a new trial, must: 1st, have been discovered since the former trial; 2ndly, be such as reasonable diligence on the part of the defendant could not have secured at the former trial; 3dly, be material in its object, and not merely cumulative and corroborative or collateral; and, 4thly, must be such as ought to produce, on another trial, an opposite result on the merits. Without saying anything in regard to whether the first and second of these four requisitions are complied with in this case, I think it very clear that the third and fourth are not. To say the most of it, the alleged after-discovered evidence is merely cumulative and corroborative, and is not such as ought to produce on another trial, an opposite result on the merits. It does not tend to discredit Merriman; and if it did, the general rule is that a new trial will not be granted, where the object is to discredit a witness on the opposite side. 3 Whart. (j 3184; Thompson’s case, supra. In regard to “the remarkable statement of John W. Scott, that he knew that the twenty dollar bank note spoken of was not stolen by the prisoner, but was won in gaming by him from Merriman,” I agree with the learned judge of the Circuit court in saying, that said statement, “if true, would not be relevant or’ material testimony on the trial of the prisoner for malicious shooting. But it does seem very strange that this person who was examined as a witness on the trial, and who knew of the difficulty between Merriman and the prisoner, and that the latter was threatening to shoot the former for charging him with stealing the note, should never have spoken of it until after the trial, when one word from him would have settled all difficulties between them.” I am of ^opinion that the alleg-ed after-discovered evidence afforded no good ground for a new trial.
3dly. As to the ground that the jury were influenced in their verdict by improper considerations.
The only support offered to sustain this ground was the affidavit of Scott, that he heard two of the jury say ¡that they had *339rendered their verdict in part on account of the defendant’s failure to explain before them the matter of the twenty dollar note which he was . charged to have stolen. To say nothing of the doubtful character of this witness for veracity, for reasons before stated, it is enough to say, that even the affidavits of the two jurors themselves to the same effect would have been an insufficient ground for setting aside the verdict of the jury. “Though the former practice was different,” says Wharton, “it is now settled in England that a juror is inadmissible to impeach the verdict of his fellows. ‘It would open each juror,’ declared Mansfield, C. J., ‘to great temptation, and would unsettle every verdict in which there could be found upon the jury a man who could be induced to throw discredit on their common deliberations.’ ” 3 Whart. $ 3155. In this country the English rule has generally been adopted. Id. In Thompson’s case, 8 Gratt. 641, 650, Thompson, J., in delivering the opinion of the court, admitted the well settled English rule, and the great preponderance of American authority in the same way, and he quoted the strong language of Chief Justice Hosmer, in 5 Conn. R. 348, that “the opinion of almost the whole legal world is adverse to the reception of such testimony, and in m3’ opinion, on invincible foundations.” In Bull’s case, 14 Gratt. 613, 626, 632, most of the authorities, English and American, including those of our own State, on this subject, were referred to; and this court concluded that, “in view of all the authorities, and of the reason on which they are founded, we think, as a general rule, the testimony of jurors ought not to be received to
^impeach their verdict, especially on the ground of their own misconduct.” But in this case we have not the affidavit of the two jurors themselves, but only the affidavit of a third person, as to what he says he heard them say; and it is laid down that “the affidavit of third persons as to what they have heard jurors say respecting tiieir verdict, is inadmissible to impeach it.” 3 Wharton, {j 3156. In this case, too, we have counter affidavits of two others of the jury, that in deciding the case and rendering their verdict, the question of the guilt or innocence of the prisoner in taking the twenty dollar note which Merriman charged the prisoner with having taken, was not discussed or considered by the jury —at least, so far as the affiants heard or believed. I am of opinion that the ground thirdly relied on as aforesaid for setting aside the verdict was insufficient for that purpose.
4thly. As to the ground that the jury, after they were sworn and during the trial, were committed to the custody and exposed to the influence of a deputy sheriff, who was a witness and had testified to material facts in behalf of the Commonwealth on said trial. •
I do not think I can answer this objection in stronger or more appropriate language than that which was used by the learned judge of the Circuit court on the same subject, and which, therefore, I adopt as mine. “The counsel for the prisoner argue that this was improper, and liken it to a case of a separation of the jury, or their improper intercourse with persons not of the jury. If it had even been shown that the deputy sheriff was an important witness, or had any feeling against the prisoner, it seems to me that it would be going a great length to presume that he had violated his duty and his oath, by speaking to the jury on the subject of the trial. He took an oath that he would not speak to them himself on the subject of the trial, nor suffer an3' other person to speak to them. The sheriff is obliged to speak *to the jury as relates to their comfort or wants, and under the law, he is obliged to take care of and provide for them, and have the custody of them during the recess of the court; and because he happened to be called upon as a witness to prove a fact in the case, however immaterial or unimportant, it seems to me that it ought not to be presumed that he violated his duty and his oath, without any motive for so doing.
In this case it does not appear that the deputy was summoned as a witness. He was not examined in chief, but was called on as rebutting evidence to prove a single fact, viz: that the prisoner did not fall when he was stricken by Merriman- a fact not very material, and which was proved by a number of other witnesses who testified in the cause—indeed, by every one who testified on the subject, except Jordan Martin. The sheriffs who had custody of the jury were sworn in court every evening in the presence of the prisoner and his counsel; and if there was any objection to any of them having charge of the jury, it ought to have been made then; and if there was any reason for it, the court would doubtless have prevented any improper person from having charge of it. That the deputy sheriff, Kasey, should have been casually called on in the progress of the trial, to prove a single fact which transpired in his presence, and had been already proved by several 'witnesses, certainly did not show that he had ari3T feeling about the result of the prosecution, or legally disqualify him from keeping the jury. It did not tend to show that he was an unfit person to perform that office, and he might, notwithstanding that fact, have been a very fit person for that purpose. The prisoner may have had perfect confidence in his integrity, and may | have preferred that he should continue to keep the jury after he had given evidence. That he was sworn for that purpose in the presence of the prisoner, without any objection being made on his part, shows that he had no objection to *make; and it is now too late to make such" an objection, for the first time, in the appellate court, even if it could have been made successfully at any time. It will be I presumed that the officer performed his duty ' and his oath, in the absence of any evi- , dence to the contrary.
*340My attention has been called to the case of McElrath v. The State, 2 Swan R. 378, which is supposed to have a material bearing on the question I am now considering. I always regard with respect a decision of the highest court of a sister State, especially when it is supported by good reasons, although it is not a binding authoritjT in this State. But in my opinion, and with all respect for the opinions of those who differ from me, that case is not at all in point. There a new trial was awarded, a prisoner convicted of manslaughter, because it appeared that during the progress of the trial .the prosecutor spent a night in the room with the jury, who had been committed by the court to the care of a constable, though the prosecutor was the sheriff of the count3', and all exceptions to the competency of the panel of jurors 'summoned by him were waived by the prisoner, and though the prosecutor stated in an affidavit, that he “made use of no means of any sort to influence the jury.”
Of all persons concerned in a prosecution, the prosecutor himself is the most interested, and the most unfit to have charge of the jury; and accordingly, in-that case, the jury was placed in the care of a constable, who took an oath to keep them separate from all other persons, and suffer no one to have any communication with them. Under these circumstances, it was an act of great misbehavior in the prosecutor (though he was sheriff) to obtrude 'himself into the room with the jury and stay with them all night, and it was an act from which the prisoner might have sustained great detriment, notwithstanding the affidavit of the sheriff that he made use of no means to influence them. It is true *that the court, in its opinion in that case, makes use of an expression which, taken • by itself, might seem to imply that a witness is in no case a proper person to have charge of a jury. But we must construe this expression with the context. “The simple inquiry, then, is (say the court): Can it be tolerated that the prosecutor may, at his pleasure, associate and hold communication with the jury during the progress of the trial? And this inquiry, it seems to us, admits of no discussion, if the purity of the trial by jury be deemed worthy of preservation. If the prosecutor may do so, who may not? May not any stranger to the prosecution, or ahy witness in the case, or any relative of the deceased, thus intrude himself upon the jury?” The responsibilities of a prosecutor, further say the court, “a»e of a nature to inspire him with a feeling of personal interest in the result of the prosecution. He may be, and frequently is, a witness; his reputation is, in some .degree, not unfrequently involved in the issue; he is liable to be subjected to costs, in the event that the. court should be satisfied that the prosecution was either frivolous or malicious; and likewise to an action for damages at the suit of the injured party.” How unlike in its circumstances is that case to this? If, in this case, Merriman had intruded himself into the same room with the jury and staid all night, and conversed freely with them, the cases would have -been more alike. Here, after the testimony in chief was closed on both sides, a deputy sheriff was called on by the attorney for the Commonwealth and testified to a single fact of little importance, which happened to be within his observation, and which had already been proved by nearly all the witnesses on both sides. After this the deputy was sworn, as on former occasions, in the presence and without any objection of the prisoner or his counsel, to keep the jury; and the only question is, whether, as matter of law, the verdiet *is invalid for such a cause and under such circumstances? I say, clearly not.
I am of opinion that this fourth and last ground relied on for setting aside the verdict was insufficient for that purpose.
And now I have but one remaining point to consider, which is the point presented by the second bill of exceptions, to wit: that on the 11th day of September 1872, when the prisoner was brought into court to hear judgment on the verdict, the term of the court at which he was tried had ended, and it was not competent for the court to enter up judgment on said verdict: and, therefore, that the court ought to have sustained, and not overruled, his motion to arrest said judgment on that ground.
By the Code, ch. 157, \ 15, it is provided, that “every such term of said courts (to wit: the county courts) may continue, if it be a monthly term, not exceeding six days, and if it be a quarterly term, not exceeding twelve days. ’ ’ By the act of April 27, 1867, acts of Assembly 1866-’67, ch. 118, | 3, p. 944, the 15th section of ch. 157 of the Code is amended and re-enacted, the amendment providing that “every such term of said courts may continue, not exceeding fifteen days, and may adjourn from day to day, or to any day within the fifteen days.” By the act of April 2, 1870, acts of Assembty’ 1869-’70, ch. 38, p. 35, passed after the adoption of the present constitution, chapter 157 of the Code of 1860, was amended and re-enacted. The chapter as amended consisted of 11 sections, while the original chapter consisted of 18. The amended chapter, $ 2 provides, that “there shall be held in each county of this Commonwealth, monthly, a term of the County court, to be held at the times prescribed by law, and with the jurisdiction hereinafter provided.” But neither in that section nor any where else in the chapter, is any thing said about the duration of the term; while § 10 repeals “all acts *and parts of acts inconsistent with the provisions of this act.” .If this act repeals the provision of the act of 1867, fixing the duration of the term at fifteen days, then there is now no other limitation of the term than that which is implied in the declaration contained in the act of 1870, that thgre shall be held in each county, monthly, a term of *341the County court, to be held at the times prescribed by law—the effect of which would be, that the term must commence at the time prescribed by law, but might continue as long as the business of the court required; not longer, however, than until the day fixed for the commencement of the next succeeding term. If this be the true construction of the act of 1870, then certainly the term of the court at which the prisoner was tried had not ended when the judgment against him was pronounced.
But it is contended that the provision in the act of 1867, fixing the duration of the term, not being inconsistent with any provision of the act of 1870, is not repealed by that act, but yet remains in full force; that the term of the court at which the prisoner was tried could not be continued longer than fifteen days, counting the Sundays which happened during that period in the number of days fixed for the duration of the court; and that the judgment having been pronounced on the 11th day of September 1872, which was the sixteenth day from the commencement of the term, counting' the two Sundays which intervened (though only the fourteenth day from said commencement, not counting those Sundays), the said judgment was pronounced after the end of the term, and therefore was void.
The question whether the aforesaid provision of the act of 1867 was repealed by the act of 1870, is an interesting question, but not necessary to be decided in this case in my view of it. As I am clearly of opinion that, if the said provision was not so repealed, but yet remains in full force, and the duration of the term of *the County court is still limited by law to fifteen days, Sundays are not by our laws judicial days, and are not to be counted in the number of the fifteen days during which the County courtis authorized by law to sit in a term. The term “may continue not exceeding fifteen days,” that is juridical days on which the court may lawfully sit, and not including Sundays, which are dies non, on which the court cannot sit. That such is the construction of everj- such law in this State, unless where a contrary intention is clearly indicated in the law, is expressly decided by this court in the recent case of Michie, &c., v. Michie’s adm’r, &c., 17 Graft. 109, in which it was held that Sunday, being dies non juridicus, is not one of the days of the term of a court. See also the Code, ch. 16, 'i 17, 8th clause, p. 115; and Hill’s case, 2 Graft. 594, 612-13. A contrary intention is not indicated in the act of 1867. The counsel for the prisoner seemed to think that it was by the provision that the court may adjourn “to any day within the fifteen days.” But that means “any juridical day within the fifteen judicial days, during which the court is authorized to be continued. ” It is much more important that the law should be settled than that it should be settled in any particular way (which indeed is a matter of little importance), and it has accordingly been settled with us. I am, therefore, of opinion that the County court did not err in overruling the prisoner’s motion to arrest the judgment.
I have now considered and disposed of all the questions arising in this case. I regret that my opinion should have been extended to so great length, but felt that it was proper to examine fully the arguments made by the very able counsel of the prisoner, both in this court and in the court below. I think there is no error in the judgment, and am for affirming it.
ANDERSON, J.
“When fresh provocation occurs between ^preconceived malice and death, it ought clearly to appear that the killing was upon the antecedent malice, which may be difficult in some cases to show satisfactorily, if the new provocation be a grevious one. In such cases, says Hawkins, it should not be presumed that they fought on the old grudge, 'unless it appear by the whole circumstances of the fact.” Wharton’s Grim. Daw, 6 Ed., § 955; 1 Russell 484. I do not think it appears from the evidence in this case that the prisoner had preconceived malice. It is true that he threatened the prosecutor that if he did not withdraw a grievous charge he had made against him, he would shoot him. But such threat does not seem to have been made in malice. The prisoner did not so regard it; for their relations, which were of the most friendly character, were not affected by it. They seemed to have met and parted as friendly as before, associated together, drank together, and talked with each other in the most friendly manner. And the prosecutor evidently did not regard his threats as serious. The prisoner does not appear to be a malicious man, as he is exhibited in this record. His conduct was not that of a man who had a murderous purpose. He was doubtless grieved by the imputation made upon his character, and his threat of shooting was evidently made, not with a malicious or murderous purpose, but as a means of relieving his character from the imputation, by inducing Merriman, the prosecutor, to withdraw it. I do not think from the evidence that he had formed a fixed resolution to put his, threats in execution; but he had serious thoughts of it on the day the shooting took place, as is shown by the inquiry he made of the witness Wingfield, will you back me if I get into any difficulty; will you go my bail? He was evidently considering the consequences of such an act, if he was not too drunk then for reflection. But it does not show that he had made up his mind to it.
But whatever may have been his intention or purpose *then, if it was to shoot the prisoner, I think the evidence shows plainly that he abandoned it.
If there was preconceived malice, it appears from the evidence that he received grievous fresh provocation; and it does not clearly appear from the evidence, in my opinion, that the shooting was upon the antecedent malice, which, as we have seen, it was incumbent on the Commonwealth to *342make clear. On the contrary, I think it does plainly appear that it was caused by the fresh provocation. I am convinced from the evidence, that the prisoner would not have shot if he had not been struck by Merriman. And there is no evidence that he did any thing to provoke him to strike him. On the contrary, the evidence shows that he endeavored to appease him; that he put his hand gently upon him and begged him to desist, and let the matter drop, when he was struck a blow by Merriman, as to t'he force and violence of which there is a difference of opinion among the witnesses; but which was of sufficient violence, according to" the testimony of Merriman himself, to stagger him back two or three feet; according to the testimony of other witnesses eight or ten feet, and according to the testimony of one to fell him to the ground, he catching on his hands. No other witness saw him fall. The prisoner then drew his pistol, and about the same time Merriman attempted to draw his, but it hung in his coat, and the prisoner shot first, evidently, according to the testimony of the physician who dressed Merriman’s wounds and extracted the ball, while he (Merriman) was in the act of drawing his pistol.
I concur with the president in his exposition of the law, and only differ from him in inference from the facts proved. I regard the certificate of the judge of the court of trial as a certificate of facts, upon the authority of our decision in McClung’s adm’r v. Ervin, recently decided and not yet reported, in which the cases on the subject of new trials are reviewed. But if it is a certificate *of evidence, as was said by Judge Brockenbrough in Green v. Ashby, 6 Leigh, p. 135, I can perceive no difference between evidence admitted to be true and facts proved. In this case I do not think there is any material or substantial conflict in the evidence, or facts certified as proved. Some of the witnesses saw what others did not, as is universally the case among the witnesses of such conflicts. And the difference as to the force of the blow struck 'is only a difference of opinion. The effect of the blow, according to all the testimony, shows that it was a violent one; as, indeed, it is most likely it would have been from a man who exhibited the indecent rage and violence that Merriman did at the time.
I am of opinion, therefore, that the fresh provocation which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting, and that the jury were not justified by the evidence in ascribing it to preconceived malice—if, indeed, any ever existed. I think the evidence shows that the prosecutor was to blame from the beginning to the end of the controversy. He charged the prisoner with stealing his money, and instead of prosecuting him for it, and discarding him as a thief, he was cheek by jole with him whenever the3r met; his social and friendly intercourse with him were unaffected by the belief of Merriman that he was a felon. But on the occasion of the fight, conscious of being armed himself with a revolver, he goaded the prisoner to make an assault on him, by hectoring and bullying over him, and belching in his teeth the most abusive and insulting language, and assuming towards him the most offensive attitudes, all of which was unavailing to provoke the prisoner to an attack, until he, without provocation, struck the blow which sent him reeling from him; and then the prisoner drew his pistol (the prosecutor drawing his almost simultaneously) and fired on him, and slightly wounded him. *Some little time elapsed before the second fire, when they both fired nearly simultaneously, and Merriman was again slightly wounded. They had one or two more rounds, Merriman’s pistol snapping every time, when the prisoner retreated into the tavern near by, one barrel of his revolver being still loaded, and Merriman pursued him to the door, apparently anxious to continue the fight.
I am of opinion, from the best view I can take of the evidence, that the fresh provo-" cation, which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting; and that the jury were not justified by the evidence in ascribing it to preconceived malice.
I deem it unnecessary to notice the other grounds on which the reversal of the judgment is asked, this being, in my opinion, sufficient. But I will only add that I think it a bad practice, during the pendency of a criminal trial, to commit the custody of prisoner to a sheriff, who is examined as a witness for the Commonwealth, whether he had been regularly subpoenaed as a witness or not. In order to preserve the purity of trial by jury, I am not prepared to say that public policy does not require that the judgment in this case should be reversed upon that ground alone, if there was no other.
Upon the whole, I am of opinion that the judgment should be reversed, and a new trial awarded the prisoner.
CHRISTIAN and STAPLES, Js., concurred in the opinion of Moncure, P.
BOUUDIN, J., concurred in the opinion of Anderson, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481814/ | Moncure, P.,
after stating the case, proceeded:
First — Did the Circuit court err in refusing to give the instruction asked for by the defendants, as mentioned in their first bill of exceptions ?
This instruction was asked for after all the evidence had been given to the jury. All the facts proved by the evidence are certified by the court in the second bill of exceptions; and though none of the evidence or facts proved are set out in the first bill of exceptions, I will consider the question as to the propriety of giving the instruction therein mentioned in reference to the facts of the case, as certified in the second bill of exceptions. So considering it, the question was not an abstract one, and could not, properly, have been refused on the ground that it was. Then, was it proper to refuse it on any other ground ?
‘ During the war, neither the law of the United States, nor any policy of their government, was in force in any part of the Confederate States not in the possession or under the control of the United States. That law and that policy, in contemplation of law, are presumed to have been, and actually may have been, unknown to the citizens of the Confederate States, who were alien enemies to the citizens of the United States, between whom all intercourse, social, commercial or otherwise, was interdicted by the laws of both countries and the law of nations; and the interdiction was enforced by the armies of both countries. The law and the policy of the Confederate States were binding on the citizens thereof, and the obligation was enforced by the power of those *11States, which was perfectly irresistible by the citizens thereof, however much they may have been disposed to make such resistance. The power of the United States was wholly insufficient to enable such citizens to make such resistance, or to afford them any protection against the consequences of making it. According to the facts as certified, the defendants were agents of the Confederate government, to exchange tobacco with the enemy for bacon, one of the prime necessaries of life, which could not be otherwise procured; and it cannot be supposed that all the power of that government would not, if necessary, have been exerted to compel its citizens to afford all the facilities in their power to the only operation by which bacon could be procured for the use of the government, in that part of the country in which the plaintiff resided, during that period of the war in which the transaction in controversy occurred. So that, if it was not the patriotic duty of the plaintiff, as a good citizen of the government under which he lived, and which alone afforded him protection, to render any facilities he may possibly have rendered to the defendants, in regard to that transaction, he was, in contemplation of law, under the necessity of doing so. The law on this subject is so fully and clearly laid down by Judge Staples, in his opinion in the case of Newton's ex'or v. Bushong & al., 22 Gratt. 628, that it is only necessary here to refer to that case.
I will now proceed to consider the next question, which is:
Secondly — Did the Circuit court err in overruling the motion of the defendants to set aside the verdict and grant them a new trial, upon the ground that the said verdict was contraiy to law and evidence, as mentioned in their second bill of exceptions.
How, the facts proved, which are certified by the *12court and repeated m the statement ot the case, fully sustain the contract, as set out m the declaration; and show, what is not there set out, that the defendants were acting, as represented to the plaintiff ^at they were acting, as agents of the Confederate States government, and exhibited to him the written authority under which they professed to be acting. They also show, or strongly tend to show, that the plaintiff fully complied with the contract on' his part; that he received the tobacco in his barn and took good care of it; that in consequence of the tobacco being there deposited his property was burned by the forces of the United States, whereby he sustained damage to the amount of $6,352, of which the defendants had due notice, and which they were requested to pay, but wholly failed and refused to pay to the plaintiff.
That the plaintiff’s property was burned in consequence of the tobacco having been deposited in his barn, was expressly found by the jury, who were instructed by the court, on the motion of the defendants, that “unless they should believe from the evidence that the property of the plaintiff was burned and destroyed by the forces or troops of the United States government, because the tobacco of the defendants had been stored in the houses of the plaintiff, then they must find for the defendants.” On the contrary, they found for the plaintiff; and the evidence well warranted them in so finding. It is more reasonable to believe that the property was burned because the tobacco had been deposited in the barn, than that it was burned because the plaintiff, who resided near the river, had been in the habit of entertaining at his house refugees from Maryland and Yirginia, or because the members of a signal corps of the Confederate States, stationed near his house, had frequently been at his house; or because some of Mosby’s men had been there *13on one occasion. Such hospitalities were universally practiced by our citizens residing near the river; and if the property of every man who practiced them had been destroyed, there would have been a general destruction of all the buildings in that locality. The plaintiff had not himself been engaged in the blockade business There is not sufficient- reason for believing that the property would not have been burned, if the tobacco had not been removed and concealed by the plaintiff The plaintiff, if he was not bound as bailee, had certainly a right to try to save the defendant’s tobacco; and if the effect of his effort has been to save the tobacco, but to lose his own property, the defence that he was not bound by his contract to try to save the tobacco by removing and concealing it, comes with a very ill grace from the defendants. If he had not removed the tobacco, it would certainly have been lost by the defendants; and probably the plaintiff’s property would still have been burned; the loss of which would also have fallen on the defendants by the very terms of the contract. The plaintiff, by his act of removing the tobacco, at least saved them from one of these losses. But it was for the jury to decide the question of fact, upon the evidence; and they did expressly decide that the burning was in consequence of the tobacco having been stored in the houses of the plaintiff.
Then, the case of the plaintiff is fully made out by the facts proved. In other words, the verdict is clearly not against evidence. Is it against law ? Is there any thing in the facts proved, which shows that the plaintiff is not legally entitled to recover?
I have already shown that, considering the defendants as agents of the Confederate States government, in exchanging tobacco for bacon for the use of that government, the plaintiff might lawfully have contracted with *14them to receive the tobacco in his barn, even though he might thereby facilitate the operation by which that exchange was sought to be effected. And the defendants must be so considered in this case, whether they were in ^ae* so or n°t > because they so represented themselves to the plaintiff, and are estopped from denying that they were such agents. Indeed they do not now deny the fact, or attempt to deny it. I deem it unnecessary to say any thing further on that subject.
But, suppose the defendants were not the agents of the Confederate States government, to exchange tobacco for bacon, and that they were engaged in an unlawful act on their own account, in carrying or attempting to carry tobacco to Maryland, to exchange it for bacon: Is there any thing in the act of the plaintiff, in receiving the tobacco in his barn, which makes the contract of the defendants, for whose benefit the act was done, unlawful, and enables them to get rid of their promise to indemnify him against loss arising from that act? Did he thereby become a pariiceps criminis in the supposed unlawful act? And does the maxim ex turpi causa non oritur actio apply to hi3 case ? I think not. He was not at all engaged in any act of running the blockade, in which the defendants may have been engaged. On the contrary, it is expressly certified as a fact proved in the cause, “that the plaintiff had not been engaged in the blockade business and of course was not engaged in this blockade business, if that was its nature. He was to derive no benefit from it. He knew nothing of it, until the defendants presented themselves at his house, near night, and requested him to permit them to deposit the tobacco, for the night, in his barn; which he refused to do, until he was assured that they were armed with the authority of the Confederate government to do the act in which they were engaged; and not then, until they *15promised to indemnify him against all loss. He knew that whether he was in fact concerned in blockade running or not, he would be suspected of being guilty by the enemy, if the tobacco was found by them on his premises; and therefore he properly stipulated with the defendants for his indemnity by them. He afterwards removed and concealed the tobacco, both for his own benefit and that of the defendants, and especially of the defendants, who were bound for his indemnity. He hoped thereby to have saved the property of both. He did save that of the defendants, but lost his own. He did not contract to conceal the tobacco, but merely to afford it shelter and house room; which were necessary, whether the tobacco was to be used in a lawful or an unlawful purpose. It was np part of the process of “running the blockade;” of carrying the tobacco into Maryland. The defendants arrived near night at the plaintiff’s house, near the river. The river was then blocked up with ice; and the defendants wanted accommodation and shelter for themselves and their tobacco ; and the plaintiff reluctantly, on account of the danger of doing so, afforded them the hospitality which they needed, on their promise to indemnify him against loss. Did he thereby make himself a particeps eriminis ? — commit an act of turpitude, from which no action can arise, even against the defendants, at whose instance and for whose benefit the act was done? If there be any, the least, guilt on his part, is not their guilt infinitely greater, and would they not, even on that ground, be liable to the plaintiff? The plaintiff did not expect any favors from the forces of the Hnited States, if they found the tobacco in his barn; but he did expect, and had a right to expect, that the defendants would stand up to their bargain. What is it to the government — how can it be against the policy of the law, if the defendants be corn*16pelled to comply with their contract? Suppose the plain-A xxx tiff had given a meal of victuals, or a night’s lodging, to supposed blockade runners, would that have made him a particeps eriminis f He not only did that, but he aff°r<^ec^ them shelter and a place of deposit for their tobacco which they had along with them. Hid that any more make him a particeps eriminis l Must he, of necessity, permit their tobacco to remain exposed to the weather, and be thus destroyed? We must bear in mind that there is no evidence tending to show that there was any purpose of concealment of the tobacco in view of the parties, or any other purpose than that of affording temporary shelter to the defendants and their tobacco, during the night, or until they could carry it away. We know very well, that to make a contract unlawful, as being against law or public policy, “it must be manifestly and directly so; and it is not enough that the contract is connected with some violation of the law, however remotely or indirectly.” Let it be remembered that this is not a controversy between a citizen of the Confederate States and a citizen of the United States; nor between a citizen of the Confederate States and the government, either of the Confederate States or United States; but between citizens of the Confederate States inter se ; and that the effort of the defendants is, to get rid of the obligation of their express promise, of which they have received the full benefit, upon the ground that it was contrary to the policy of a law of which they have been the chief, if not the only, violators.
I am, therefore, of opinion that the verdict is not against law, any more than it is against evidence; and that the Circuit court did not err in overruling the motion of the defendants to set it aside.
The court gave to the jury an instruction, on the motion of the plaintiff, which is embodied in the defend*17ants second bill of exceptions. But that exception was taken only to the opinion of the court overruling the motion of the defendants for a new trial, and not to tne opinion of the court in giving that instruction. There was no exception to that instruction; and therefore it cannot be objected to, for the first time, in the appellate court. But, in fact, it is not liable to any well founded objection. It presents a case which made the defendants liable, according to what has been already said. That it proceeds further to state that the defendants, after becoming so liable, assumed to pay such damage as the plaintiff had sustained by the destruction of his property, can do no harm, if it does no good. The next and last question, is:
Thirdly — Did the Circuit court err, in overruling the demurrer to the declaration ?
This question would seem properly to be the first which should have been considered in regular order, but I thought it more convenient to consider it lastly. The declaration contains two counts, which seem not materially to vary from each other. The demurrer is general to the whole declaration, and not to each count; so that, if either be sufficient, the demurrer was properly overruled. I think both are sufficient. The declaration says nothing about the authority of the defendants, as agents of the Confederate States, to exchange tobacco for bacon ; and therefore it presents the question, whether the contract, without reference to that fact, was legal; and upon that question I have already fully expressed my opinion, that there was nothing in the contract, as stated in the declaration, which made it illegal or void. As to the addendum to the declaration, concerning which the learned counsel for the defendants seemed to be at a loss whether it was intended by the pleader to be a separate count, or what else — I do not consider it as a separate *18count, nor that it was intended to be such. It is not accurately drawn, though it may have been intended as a common head to the two counts; and may well serve as a head to the first count, which, otherwise, seems to be without a head. The second count has a head, and is a perfect count. At all events, the addendum does no harm.
Upon the whole, I think there is no error in the judgment, and that it' ought to be affirmed.
The other judges concurred in the opinion of Mon-cure, P.
Judge Bouldin did not sit in the case; he not having been on the Bench when it was argued; but he said, he concurred in the first proposition considered by Judge Moncure.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481816/ | Anderson, J.,
delivered the opinion of the court.
The purpose of the writ of scire facias is to give notice-to the defendant of an application for award of execution. The writ may be returnable at rules in the office, or in court. And the order awarding execution is made upon due return of the process, unless good cause be-shown against it. If the writ is returnable to rules, it is-made at rules, and if not set aside at the next succeeding term, becomes a final judgment of the last day of the" term. If the writ is returnable to the court, the order is-made in court. It is not necessary to send the case to rules, because it is not a proceeding which requires a declaration or a rule to plead; the purpose' for which rule days are required in the office. Code of 1860, ch. 171, sec. 4. The default of the defendant in not appearing is a sufficient foundation for award of execution Williamson v. Crawford, 7 Gratt. 202. But now, by sec. 6, chap. 170, of Code of 1860, no judgment by default on a scire facias or summons shall be valid, if it become-final within one month after the service of the process ,- which is not the case here. The court is, therefore, of” opinion that there is no ground for reversal in the first" assignment of error.
As to the second assignment of error: Where the law provides that a term of the court shall be held monthly, it would not be competent for the court to pass over one term prescribed by law, and adjourn to a subsequent term. That is, it would not be competent for the county court, at its July term, to adjourn to the first day of the September term, passing over the August term, if the.*39law required a term to be held in the month of August. But if the court failed to meet at the August term, by section 15, chap. 161, of Code of 1860, it would work no discontinuance; but every notice, recognizance or process given, taken or returnable to the August term, and all matters ready for the court to act upon at the August term, shall be in the same condition and have the same effect, as if given, taken or returnable, or continued to the next court in course. And the 16th section provides for the continuance of all causes to the next term, where no order of continuance is made. These sections provide for cases in reference to which no order has been made, and the 16th section provides for a general continuance . of tbe causes to tbe next term in course, where no order has been made by tbe court on the subject; but if the court bad made an order continuing the trial of any particular cause to any particular day in the next term, or to the subsequent term, passing over the intervening term, the case would not fall within this provision of the statute. And no good reason can be perceived why the court may not, for good cause shown, on the motion of the accused, postpone the trial of a cause, to any particular day in the next term, or to a term subsequent to .that. It could work no discontinuance; for the record shows that the cause was continued to a day, in the term of a court competent to try it; which would not be the case, if it were continued to a day in vacation. In Sands’ case, 20 Gratt. 800, the cause was continued upon the motion of the commonwealth’s attorney, at the June term of the Hustings court of the city of Richmond, to the September term of that court, passing over the July term of the court. It bad no term for the month of August. In this case the continuance of the trial from the August to the October term, was ordered on motion of the accused. The court is of opinion that *40there is no error in that; and that the demurrer to the scire facias, on that ground, was properly overruled.
But it is contended that there is a variance between. the scire facias and the recognizance; which question was ra^se<^ by the demurrer, the defendant having craved oyer of the recognizance; that for that cause the demurrer should have been sustained, or the recognizance should have been excluded as evidence.
It appears from the recognizance that the accused was indicted for embezzlement, and was recognized to appear to answer that offence; as required by chap. 209, § 40, of acts of 1866-7, p. 942. The scire facias recites that he was to appear and answer, not for “a felony” generally, but “a certain felony lohereof he stood accused.” Embezzlement being made felony by statute, the court can perceive ho variance between the recognizance and the scire facias. Section 11, of chap. 211, of acts of 1866-7, p. 943, provides that “nojaction or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court or officer authorized to take it, and be substantially sufficient.” The court is of opinion that the recognizance» in this case is substantially sufficient, and is substantially set out by the scire facias, and that there is no ground in this assignment of error for reversal.
; The court is further of opinion, that there is no error in sustaining the demurrer of the plaintiff to the defendant’s special pleas. While it is true that the bail may be excused for his default in performing the condition of the recognizance, when it becomes impossible of execution by the act of God, or of the law, or of the cognizee, it is not competent for the accused to absolve himself or his bail by accepting office under the government of the United States.
*41The court is, therefore, of opinion to affirm the judgment of the court below.
Judgment APPIRMED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481817/ | Staples, J.
The first question to be considered is, whether the court below erred iu admitting as evidence the record of the proceedings and decree of the Circuit court of Edgar county, Illinois. It is insisted that this record was not competent evidence for any purpose; for the reason, that the defendants in that suit were not residents of the State of Illinois, were not served with process, or otherwise notified of the institution of the *60suit. It is true that none of the defendants lived in that State; but the land is located there, and that is sufficient to give the court jurisdiction. It is the settled . . . . ,. . , , , . . doctrine ot the common law, that the Lex rei sitae governs exdugjye^ in respect to the rights of parties, the modes of transfer and alienation, and the nature and extent of the interests to be alienated. And, although property within a country does not make the owner generally a subject of the sovereign, it subjects him to the jurisdiction secundum quid et aliquo modo. And as immovable property is to be held “according to the laws of the country where it is located, controversies relating to such property can only be decided in the State where it belongs.” Story, Conflict of Laws. S. p. 552, 557, 592.
How, it is clear that if Cornelius and Mary Burtner had been before the Illinois court by appearance or the service of process upon them personally, the record of the suit, so far as it tended to establish the eviction of the plaintiff, would have been competent evidence in the present action.
The land being in Illinois, the non-residence of Cornelius and Mary Burtner could not deprive the plaintiff' of his right to institute his suit there, provided the statutes of Illinois conferred upon the courts authority, in proper cases, to proceed against absent defendants. That these statutes do authorize, proceedings and decrees against non-residents, is unquestioned. The practice in such cases is substantially the same as that in Virginia.
The plaintiff has, therefore, done no more nor less than was his clear right to do. He brought his suit in the courts of the country where the land is situate, and he has perfected it according to the laws of that country. Decrees and judgments rendered in such suits are *61treated, to a certain extent, as proceedings in rem; they bind the property which is the subject of the suit; though they create no personal charge against the defendants. Whether they are of a conclusive character, it is not material to enquire, as no such question arises iii this case. Conceding that they are examinable when introduced collaterally in foreign courts, they are certainly prima facie evidence, so far as they affect the title or status of the property which is the subject of adjudication. Cochran v. Fitch, 1 Sandf. Ch. R. 142; Rootes' ex’or v. Tompkins’ trustees, 3 Gratt. 98; Boswell’s lessee v. Otis, 9 How. U. S. R. 336; Green v. Van Buskerk, 7 Wall, U. S. R. 139; Cooper v. Reynolds, 10 Wall. U. S. R. 308. See especially Freeman Judgments, sec. 607, 611, 612.
There is no difficulty in applying these principles to a controversy between vendor and vendee. When the vendee sues upon the covenant of warranty, it devolves upon him to show an eviction, or what is equivalent to it, under a paramount title. This fact may be established by the production of the record of the recovery in ejectment or other real action, brought by the adverse claimant, in connection with evidence of a change of possession. If the vendee has given the vendor proper notice of the pendency of the ejectment, and required him to defend it, in the action upon the covenant, the judgment in ejectment is evidence, not only of the recovery, but of the existence of a valid paramount title. The vendee is, however, not compelled to give the notice. When he omits it, the vendor is not regarded as a party or privy to the adverse proceeding; and as against him, the record cannot be relied on to show a paramount title. It is, however, prima facie evidence of a recovery and of the eviction ; the vendee being then required to establish, by independent evidence, that the recovery was by lawful *62right and paramount title. Rawle on Covenants for Title, 225 to 232; 2 Barb. R. 171.
According to this view, the plaintiff might have given defendants notice of the Illinois suit; it would have been better that he should have given it, but it wits not essential to the maintenance of this action, or to the admissibility of the record as evidence. Having failed to do so, the record is evidence of a recovery and eviction only, open to examination by defendants for fraud or collusion and want of jurisdiction in the court.
The rule is not varied by the fact that the plaintiff himself was the party suing in the courts of Illinois, and thereby seeking an adjudication of the validity of his title; for whether-the vendee yields the possession J:o the rightful owner, or is evicted by him, or brings-his suit ineffectually to recover the possession, the' result is the same. In either case there is a breach of the covenant.
The authoi’ities • are not entirely agreed whether a mere recovery sufficiently establishes an eviction without some evidence of a disturbance or cessation of the possession. The decision of this point is not necessary in this case,- inasmuch as evidence was adduced tending to show that the plaintiff was at no time in possession of the land which was the subject of controversy. It is to be observed that the plaintiff did not offer the record as conclusive of any question. There is nothing to show it was so treated by the court or by the jury. Ho complaint is made that defendants were not permitted to impeach it for Avant of jurisdiction in the' court, or for fraud in obtaining it; or even that they were precluded from showing it was erroneous, or against equity and conscience. Bor aught that appears to the contrary, each and all these defences were open to the defendants. All that appears in. connection with this record is, that the *63defendants objected to it as evidence, and the objection was overruled by the court. The ruling was clearly correet, unless there is more weight in defendant’s other ’ ° objections.
One of these is, that the Circuit court of Edgar county, sitting in chancery, is not authorized to adjudicate questions of title to land; and the plaintiff’s remedy was by action of ejectment. The Circuit court of Edgar county is a court of general jurisdiction, exercising both common law and equity powers vested in the same judge. Thus constituted, the court had plenary jurisdiction of the “subject-matter of the suit. Whether this jurisdiction belonged to the common law or equity side of the court, depends upon the course of practice and precedent in the State of Illinois. The jurisdiction of equity, as distinguished from common law, in a large majority of cases is not defined or fixed by any statute. It depends upon principles and precedents announced by equity judges and by learned commentators. The practice varies in different States and at different eras, according to an infinite variety of circumstances. It may be, that in Virginia equity has no jurisdiction to settle the title or bounds of land between adverse claimants. But even here there are well established modifications of this rule. I shall not stop to enumerate them. They may be found in the reports and in the works on equity jurisprudence. When the decree of a sister State court is offered here as evidence, is the judge to look into the bill and proceedings to determine whether the case comes within the rule, or some qualification or exception to it; and if he is of opinion the jurisdiction appertained to the common law rather than the equity side of the foreign court, is he to declare the decree null and void ? Ho case has gone that far. It is impossible to foresee the mischiefs and confusion that would arise *64in the administration of justice, if this was the established doctrine of the courts.
If a court of general jurisdiction may, under some circumstances, on its equity side, settle a controversy C0Ucermng the title to land, it is the province of the court in which the controversy is pending, to determine for itself whether those circumstances exist which justify the adjudication; and however erroneous the decision may be, it is of universal obligation, until reversed by the proper appellate tribunal. This, I think, is a well settled principle. It is fully sustained by the case of Cox et als. v. Thomas, 9 Gratt. 312; where the whole question is fully considered, and all the principal authorities reviewed by Judge Allen. In the course of his opinion, he declares: “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. And the correctness of such judgment can be enquired into only by some appellate court.” The* same rule must be applied to the Circuit court of Edgar county, in the exercise of its chancery powers. It was the province of that court determine whether the case before it was within its jurisdiction; and until reversed, its decree must be deemed valid to the same extent as if pronounced in a case of acknowledged equity jurisdiction.
The next objection is, that the decree was obtained by fraud — fraud apparent on the face of the record; and this was still more manifest when the evidence came to be heard on the trial of the cause. This question of fraud in procuring the decree is, for the first time raised in this court. At any rate, it does not distinctly appear it was brought to the attention of the court below as a specific ground of objection to the record as evidence. Are we to assume that it was? I think not. The defend*65ants may have preferred to take their chances upon that question before the jury. "Whether they did or not, we have no means of determining, as the evidence is not before us; the judge having declined to give a certificate, in consequence of the contradictory character of the testimony. It is to be inferred, however, from the statement of counsel, that the question was brought to the consideration of the jury: for he tells us, that the plaintiff’s fraud in obtaining the decree was made more manifest when the evidence came to be heard on the trial. If we are permitted to consider this statement of counsel, it would seem that the whole matter was the subject of investigation before the jury; and they, by their verdict, have gone very far in relieving the plaintiff of the charge. In the face of this finding — in the uncertainty as to what occurred at the trial — it would be a very strong exercise of an appellate jurisdiction for this court to say that the record so conclusively shows fraud on its face as to require its exclusion from the jury, and to render a new trial of the cause as necessary and proper.
I admit that the record does not exhibit the plaintiff' in a very favorable light; but the whole subject was peculiarly proper for the jury. It was more just to submit it to them, and thus afford the plaintiff an opportunity of explaining all the facts and circumstances connected with the institution and conduct of the Illinois suit, rather than for the court to cut off all investigation by arbitrarily rejecting the evidence.
After the evidence was concluded the defendants asked the court to give the jury three instructions; which were objected to by the plaintiff; and the instructions refused. To this ruling the defendants excepted.
The first instruction affirms substantially, that the first the land with *66warranty to Ezra Burtner, and Ezra Burtner having ° conveyed it with general warranty to Cornelius and Mary Burtner, the subsequent conveyance of the same- *** land by the defendants to the plaintiff did not vest any |jeneficiai interest in the plaintiff; but said conveyance enured to the benefit of Cornelius and Mary Burtner exclusively: and so the deed in favor of the plaintiff failing to take effect, the covenants of warranty therein contained also failed to take effect. The proposition here asserted is, that where a deed is executed containing a covenant of warranty, and the vendor afterwards acquires an estate which is within the scope of the covenant, such after acquired estate enures to, and is actually transferred to the purchaser, by operation of the doctrine of estoppel. In other words, the warranty creates an estoppel which takes effect on the subsequent interest, and passes it to the vendee.
How, this proposition may be correct when applied to fines, feoffments and other common law recoveries. In this class of cases, it seems that the warranty not only concluded the grantor or feoffer, but it possessed the high function of actually transferring the after acquired estate or interest. But deeds of bargain and sale and other conveyances, operating under the statute of uses, have never had any such effect. They only pass such estate as the grantor has at the time; the warranty merely serving as a remedy, or operating to estop the party from denying the ownership of the estate at the time of the conveyance executed. In such cases the, principle of the estoppel is, that if a person conveys; land with general warranty, and does not own it at the time, but afterwards acquires the same land, such acquisition enures to the benefit of the grantee; because the grantor is estopped to deny, against .the terms of hie warranty, that he had the title in question; but it does' *67/not operate actually to transfer the estate subsequently 1 acquired.
I admit that this view is not in accordance with a .... number of American decisions, which give to the estoppel the effect of passing an interest,; but it is sustained by the English cases, by many well considered decisions in the United States, and by the most approved text writers of the present day. See Judge Carr’s opinion in Doswell v. Buchanan’s ex’ors, 3 Leigh 365, 407; 1 Smith Lead. Cases, marg. 626; Bigelow on Estoppel, 337, 360-3; Rawle on Covenants for Title, chap. 11, pages 375 to 456 inclusive.
According to this view, and it seems to be a sound •one, the interest conveyed by defendants to plaintiff enures to the benefit of Cornelius and Mary Burtner, under operation of plaintiff’s warranty in their favor; and that warranty estops plaintiff to claim the estate against them; but it does pass such interest, or operate as a conveyance. As against the plaintiff, the defendants are not bound by any such estoppel; and they can derive no benefit from it. It is not for them to say their deed vested nq beneficial interest or title in the plaintiff. They'-cannot avoid the effect of their warranty by claiming the benefit of an estoppel created by the law solely for the benefit of Cornelius and Mary Burtner and those claiming under them.
But if it be conceded that defendants’ deed enures to the benefit of Cornelius and Mary Burtner exclusively, it does not therefore necessarily follow, that the plaintiff -cannot maintain an action thereon. It may be true that .an assignee can only take advantage of the covenant of warranty when an estate passes by the deed. This, however, is only because at common law a covenant, like •every other chose in action, was incapable of assignment. It could only pass as an incident to an estate; *68and if the grantee had no estate, his assignment could ° not transfer the covenant of warranty. In such ease-there was nothing to which the covenants could attach.
A very brief consideration will show that these principles do not apply to the original contracting parties. Warranty, as known to the earlier common law, was exclusively a covenant real, running with the land. The remedy for its breach was not in damages, but primarily in the recovery of other lands. In this sense, however, ifhas since been discontinued; and warranty is now considered a personal covenant, sounding merely in damages. Under our statutes -and decisions it is treated as a covenant to warrant and defend, while it has also all the effect of a covenant for quiet enjoyment. Tabb's adm'r v. Binford, 4 Leigh 132; 2 Rob. Prac. 86. It creates personal rights, wholly independent of the estate, and which may survive long after it is extinguished, for the benefit of the covenantee. When the deed containing the eovenaut of warranty passes no estate, it is considered a covenant in gross, to be enforced, and only enforced, by the covenantee or his representatives. The contract being made with him directly and in person, he takes the benefit of it by virtue of his contract, and not as incident to the estate. 2 Lomax Dig. 260-8; 1 Smith’s Lead. Cases 158.
This rule of construing the warranty as a covenant in gross for the protection of the covenantee, where no estate passes, attains substantial justice, and effectuates the intention of the parties. In Virginia the rule is absolutely necessary to prevent the gravest injustice and wrong. The covenant of warranty is almost uniyersally the only covenant resorted to under our system of conveyancing. And in no other State has the government pursued to the same extent the policy of granting the same lands to successive grantees. As the first patent *69confers both, title and seizin, the second patent confers neither; and as a necessary consequence, the deed of the junior patentee in many instances passes no estate whatever. In all this class of cases, according to the theory of the learned counsel for defendants, as the deed does not operate to pass any estate the warranty fails to take effect. It is wholly valueless to the purchaser when most needed for his indemnity against a paramount title. As was said by Judge Moncure, in Dickinson v. Hoomes, 8 Gratt. 353, 399, “of what avail would be these covenants if an outstanding paramount title would render them ineffectual. They could only be broken by an eviction or ouster by title paramount; and yet the very existence of such an outstanding title would render the covenant ineffectual. So far from affording any protection to the assignee, they would afford none, even to the covenantee.”
It follows from what has been said, the court did not -err in refusing to give defendants’ first instruction.
The second instruction declares, that if the plaintiff, at the time of the execution of the deed by the defendants to them, had notice of the rights of Cornelius and Mary Burtner to the land in question, and it was his purpose, in taking the deed, to secure the land to him■self, the defendants also being apprized of the title of Gornelius and Mary Burtner, the covenant was thereby so far tainted with fraud as to prevent a recovery in this action. This instruction was doubtless intended to assert the common law doctrine of. ex turpi causa non oritur actio. -
How far this doctrine applies to a case of this character, it is not material now to enquire, as the point involved may be disposed of upon other grounds, which do not admit of much controversy under the previous rulings of this court. In the case of Harris v. Harris’ *70ex'ors, decided at the last Staunton term, 23 Gratt.737,thiscourt held that a bond executed by a debtor in fraud of' his creditors, though void as to them, is nevertheless valid between the parties; and that the debtor will not be permpqecj set Up pis 0wn fraud in avoidance of the bond-The whole question is fully considered in that case, and all the authorities carefully examined by Judge Christian. The same principle applies to a grantor executing a deed in fraud of a previous purchaser from him. The deed from the defendants to the plaintiff, with all its covenants, is valid between the parties. Whatever-fraud the plaintiff meditated they were privy to and participated in; and they cannot now rely upon their own turpitude to defeat the covenants contained in their deed.
The third instruction affirms that if the jury are satisfied that the plaintiff took the deed from the defendants with intent merely to remove a cloud upon the title of Cornelius and Mary Burtner,who were his grand children, and this object has been accomplished, there has been no breach of covenant. It does not appear there was any evidence whatever before the jury of the supposed intention of the plaintiffs in taking the deed. If the defendants desired to rely upon the point here, it was incumbent upon them to spread upon the record so much of the testimony as would show the relevancy of the-instruction proposed. As they have failed to do so, this court cannot say there was any error in refusing it.
But the instruction is objectionable in itself. It proposes that the jury, shall enter into an examination of the plaintiff’s private reasons for taking a deed, in order to vary and defeat the legal operation and effect of the most solemn covenants taken by him for his protection. This would be to substitute parol evidence, in its worst form, for the written contract of the parties. It would *71be, indeed, to say that a plain covenant, express and unequivocal in its terms, is not a covenant. It is to be conclusively presumed that the plaintiff, in taking a deed with general warranty, intended the covenant for his own security against any and every paramount title; and no averment can be received to rebut this plain and very reasonable legal intendment.
The defendants also excepted to an instruction given at the instance of the plaintiff’. This instruction is to the effect that the covenants in the defendants deed to plaintiff, are binding upon defendants, although the jury may believe the execution of said covenants was induced by the fraudulent misrepresentations of the plaintiff’ as to the effect of said covenants. The only question we are now to consider, is, whether this instruction was proper under the pleadings in the cause. It is very clear, according to the common law rule, that in a court of common law fraud may be given in evidence to vacate a deed, if the fraud relates to the execution of the instrument. But where the deed -was procured by fraudulent misrepresentation, relief can be obtained only in a court of equity. Under the 5th section of chap. 172, Code of 1860, the defendant in any action is now permitted to allege and show any such fraud in the procurement of the contract as would entitle him to relief in a court of equity. In this case issue was joined upon the pleas of covenants performed, covenants not broken, and a general plea of non est factum. Leave was given the defendants to file a special plea of non est factum in "writing; but it does not appear that any such plea was ever filed. And the question is, whether the defence contemplated by the statute, can be made under either of these pleas. It is very manifest from the whole scope and spirit of the statute, that a special plea should be filed, averring the fraud, or special circumstances, which entitle the defend-*72an^ re^ef ia equity- And it would seem that the facts should be set forth with sufficient precision and certainty aPPiaze the plaintiff of the character of the defence intended to be made, and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief. This is plainly to be inferred from the language of the 6th section, in which it is provided: “ If any such plea be rejected by the court as bad, or adjudged insufficient on demurrer, or if when issue in fact is joined therein, such issue be found against the defendant, he shall be barred-of all relief in equity, upon the matters alleged in the plea.
These provisions plainly contemplate a plea stating the whole matter of defence with such particularity that if found against the defendant oh demurrer, or by the jury, he shall be barred of all relief in equity upon the same ground. Whether the defendant is so barred, is to be determined, not by parol evidence of what occurred on the trial at law, but by a reference to the form and matter of the plea itself. The plea must, therefore, disclose the ground of the defence in all cases under this statute.
In this case no such plea having been filed, the jury was rightly instructed that the defendants were bound by the covenant, notwithstanding it may have been executed under the influence of fraudulent misrepresentations on the part of the plaintiff'.
The learned counsel insists, however, that the evidence establishing the fraudulent misrepresentations was admitted without objection; and it was the duty of the jury to base their finding upon the evidence before them. The question of fraud was not in issue. All testimony upon that point was, therefore, irrelevant; and it was competent for the plaintiff'to object to its introductioh, or to move to exclude it, or to ask the court to instruct *73the jury to disregard it. The latter course was pursued; and it is not perceived that the defendants were in any manner prejudiced by this mode of raising the question. Kincheloe v. Tracewell, 11 Gratt. 600.
I have thus considered all the material points presented by this record; and am satisfied the judgment should be affirmed. This result is the more satisfactory because it is substantially just. The land which has been in controversy is in the possession of Cornelius and Mary Burtner, to whom it rightfully belongs; and the defendants have only been required to refund to the plaintiff a consideration to which they have no claim in law or equity, as the case is now exhibited by the record.
The other judges concurred in the opinion of Staples, J.
Judgment aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481818/ | Bouldin, J.,
delivered the opinion of the court.
This case is before us on a writ of error to a judgment of the Circuit court of Madison county, at a special term thereof,'held in August 1870, in an action on the case brought by the appellant against the appellees, to recover damages for injury alleged by the appellant to have been done to his land by a dam alleged by him to have been illegally erected across the stream below, by one Geoi’ge Ficklin, under whom the appellees claim, and continued by said appellees down to the institution of the suit; and the single defence was, that the defendants were protected in their alleged right to continue said dam by lapse of time. It very plainly appeared that the dam was not erected under any order of court; and the right set up under an adversary use of the easement for more than twenty years constituted the entire defence. The injury to the land of the plaintiff was plainly proved. The land was sobbed and rendered unfit for cultivation.
Under the rulings of the court, some of which were excepted to on both sides, the jury rendered a verdict of not guilty, which was approved by the court; and a judgment rendered for the defendants; and the case comes before this court on a writ of error and supersedeas to that judgment.
The deposition of the appellant Field was taken, to be *84rea<^’ ^ene esse> and the first error assigned was to the exclusion by the court of certain questions and answers in that deposition.
The defendants moved to exclude the questions and answers 011 the examination in chief from the 6th to the 20th inclusive, the 22d and the last paragraph of the 21st; and also questions from 8 to 12 inclusive on cross-examination, and the answers thereto, upon the ground that George Ficklin, under whom defendants claim, is now dead, but was alive at the period referred to in the questions, and was a party to the transaction which' was the subject of investigation.
The court sustained the exceptions to all the questions and answers aforesaid, except to the answers to the 16th, 17th, 18th and 19th questions in chief, to the last paragraph of the 21st, and to a portion of the 13th. And this ruling formed the subject of the appellant’s first exception. The defendants excepted to the same ruling, because the court did not sustain all their exceptions. These exceptions, on both sides, are embraced in the first bill of exceptions.
This court is of opinion that there was no error in excluding the 6th, 7th, 8th, 10th and 12th questions and answers in chief. These related to the acts and declarations of Ficklin; and he being dead, it was not competent to prove them by the appellant. But we are of opinion that the Circuit court erred in sustaining the defendant’s exceptions to the other questions and answers in chief or any part thereof. The questions and answers did not relate to declarations of Ficklin to conversations between him and the appellant Field, or to transactions between them. They had reference to the condition of the appellant’s land, the character of the stream, the effect of the dam on the stream and adjacent land of appellant, and other independent facts, as to *85which his testimony, if untrue, could be rebutted by others as readily as by Ficklin. Such testimony does not come within the principle on which the exclusion was asked.
The court is further of opinion, that the court below erred in excluding, on the motion of the defendants, the appellants’ answers to their own questions from 8 to 12 inclusive, on the cross-examination. There is, perhaps, but one of these questions, No. 8, that would have come within the rule of exclusion, had it been propounded by the appellant. That question seems to have been based on something appellant had at some time said, or was supposed to have said, but which he certainly had not proved as a witness; and whilst he could not legally prove such fact, Ficklin being dead, it was certainly competent to the defendants, claiming under Ficklin, to call for it from him. This they have done; and there would seem to be no propriety in excluding, at their motion, the answers to that and the other questions aforesaid, propounded by themselves.
The next error assigned by the appellant, is to the exclusion of the testimony of Henry S. Field, as set forth in the second bill of exceptions.
It appears that after the death of Ficklin, one Mozingo rented the mill; and in the last year of his tenancy, 1856, H. S. Field, a son of the appellant, who attended to his business, heard a knocking at the dam, and found Mozingo fastening on the comb of the dam a log about ten or twelve inches thick. Field, in the name of his father, forbid the proceeding, and was proceeding to state what passed between him and Mozingo, when he was arrested by a motion, by the defendants, to exclude the testimony; which was sustained by the court: and the appellant excepted. The appellant then asked the witness the following question: “At the time referred *86to, did Mozingo claim it as a right to put said log across the dam, or simply ask it as a privilege, and for a short time?” This question was objected to by the defendants, and excluded by the court; and the appellant again excepted : And these two exceptions form the subject of the second bill of exceptions.
It will be observed that the log referred to was placed on the dam prior to the purchase of the property by the defendants; and it had been proved by the appellant that this log was on the dam when it went into the possession of the defendants, and had not been removed ; that Mozingo, who had put it on the dam, had promised the appellant to remove it, but had failed to do so. It must be remembered also, that defendants relied only on a prescriptive right to the dam, as it was, which they sought to maintain by proof of adversary possession thereof for more than twenty years, under such circumstances as would create the presumption of a grant. Such evidence is presumptive only, and not conclusive; and may always be rebutted by evidence showing that the adversary use and enjoyment relied on was not acquiesced in, but the right thereto contested; and any evidence tending to show such resistance is proper evidence to rebut the presumption. Nichols v. Aylor, 7 Leigh 546.
If a mere denial of the right of the defendants to the use and enjoyment of the dam within the period of prescription is proper evidence to rebut the presumption, a fortiori, would such denial be proper testimony, accom•panied by acquiescence therein to a certain extent, on the other side, and an arrangement between the parties for a temporary raising of the dam, and the use thereof as thus raised, for a limited period. Such was the testimony sought to be elicited from. H. S. Field. He was present when the dam was thus being raised; forbid the *87raising thereof; but was prevented by the court from disclosing the conversation with Mozingo, who raised the dam, at the time of the act, and from proving whether or not Mozingo claimed it as his right or asked it as a privilege to put on the log. We are clearly of opinion ■ that the entire conversation of Mozingo, occurring at the time of the act aforesaid, was proper evidence as part of the “res gestee;” and that the court erred in excluding that conversation, and the question subsequently propounded to the witness.
The court is further of opinion, that there was no error in the rulings of the court below, set forth in the plaintiff’s 3d, 4th and 5th bills of exception.
In the progress of the trial the defendants not having been able to secure the attendance of a witness, Fayette Mauzy, clerk of the county court of .Culpeper county, by consent of the plaintiff, read to the jury a statement or certificate, in writing, prepared and signed by said Mauzy, and sent to counsel as his testimony. The defendants then asked to be allowed to prove by one of their counsel, D. A. Grimsley, that the certificate failed to state one or more facts which had been deposed to by Mauzy on a previous trial, and what those facts were; to which the plaintiff objected; but the court overruled the objection, and allowed the witness to prove that one fact deemed material by defendants had been deposed to by Mauzy at the previous trial, and was omitted in his certificate ; but would not allow the witness to state what that fact was. To this ruling the' plaintiff excepted; and this constitutes his 6th exception.
We do not see how this ruling of the court operated seriously, if at all, to the prejudice of the appellant; but we regard it as plainly erroneous. The defendants having themselves introduced the written statement of their own absent witness, in lieu of his personal attend*88anee, are not at liberty to discredit that- statement by proving that it was variant from the witness’ statement on a former trial. They were not compellable to read the statement; but having voluntarily done so, it became their own testimony; and it was error to allow them to impeach it to any extent.
The 7th exception of the plaintiff was to the exclusion by the court, as evidence on the trial, of the record of a suit brought by Field, in the Circuit court oí the county of Culpeper, in June 1855, against the personal representative of George Ficklin, dec’d, to recover damages for the injury done his land in Eicklin’s life-time, by the dam aforesaid; and in which judgment had been rendered for the plaintiff. This record was offered, not as evidence to conclude the defendants, but for the purpose of rebutting the testimony introduced by the defendants to prove a prescriptive right to their dam. But the defendants moved to exclude it; and their motion was sustained by the court. In this we think the court erred. The injury for which the suit was brought was not the original erection of the dam in 1825, but was the result of the dam, as renewed and raised above its former height in 1845 or 1846. Both dams being wholly on the land of Ficklin, and no injury having resulted to the appellant from the dam of 1825, he had no cause of action by reason of the erection of that dam. It was the renewed dam of 1845 or 1846 which caused the injury of which he complained; and that is the dam for the use and enjoyment of which the defendants attempt to show a prescriptive right. To rebut such presumption, we have already seen that a denial of the right within the period of prescription is proper evidence; and we can conceive of no higher evidence of a denial of the right claimed, than a suit instituted within ten years from its inception, to recover damages for the exercise of *89the supposed right, and a successful prosecution thereof to final judgment. We are of opinion, therefore, that the record aforesaid was proper rebutting testimony, and that the court erred in excluding it.
It may not be necessary to dispose of the defendants’ exceptions in this case; but the court is further opinion, that there was no error in the ruling of the Circuit court as set forth in their first and second bills of exception: but we are inclined to think that it was error to admit the parol testimony set forth in the defendants’ fourth bill of exceptions. The plaintiff was allowed to prove by parol evidence, not only the pendency, but the object, of a pending suit. Of that object, being matter disclosed by the record, we think the record itself the best, if not the only evidence.
After the evidence and arguments of counsel on both sides had been fully heard, the court was asked by the plaintiff to give to the jury the following instructions:
1st. If the jury believe, from the evidence, that the mill-dam and abutment of the defendants at Castleton was built without an order of court, or without the return of the inquest of a jury of ad quod damnum, and that the lands of the plaintiff have been injured by the building of said dam and abutments, then they must find for the plaintiff’.
2d. If the jury believe, from the evidence, that the dam and abutment at Castleton, across Hazle river, wag built under an order of court, and upon the return of an inquest of a jury of ad quod damnum, and that the lands of the plaintiff have been injured thereby, they must find for the plaintiff, unless they believe, from the evidence, that the injuries to the plaintiff’s land were actually foreseen and estimated for by said jury of ad quod damnum.
*903d. If the jury believe, from the evidence, that the dam and abutment of defendants across the Hazle river, at Castleton, were built without authority of law, and in pursuance of the act of assembly, and that thereby the lands of the plaintiff' have been injured, then the said dam and abutment constitute a private nuisance; and each day they are continued creates a fresh nuisance, for which the plaintiff has a right of action against the defendants, and is entitled to recover any damages sustained between the 6th of April 1863, when the notice to abate was served, and the date of the writ in this suit.
4th. If the jury believe, from the evidence, that George Picklin, and those under whom he claimed, had legal authority to build the dam across the Hazle river at Gastleton, at the point P on the diagram of A. Tutt, made under the order in this cause, and that said Picklin, in his life-time, abandoned the dam at P, and built another dam across said river two hundred and thirty-one yards below the point at P, without authority of law, then the said dam last mentioned is an illegal structure, and the plaintiff is entitled to recover for any injuries done his lands by reason of the continuance of said illegal structure in the said river by the defendants.
5th. The court further instructs the jury, that the right to a dam at “P,” on-the diagram of the survey of A. Tutt, made under an order in this cause, and known as the “ old dam,” which did no injury to the lands of the plaintiff', conferred no right to a dam at “ 0,” on said diagram, known as the “ new dam,” which does injure the lands of the plaintiff. And if the jury believe, from the evidence, that the lands of the plaintiff' are injured by the dam of the defendants at “0,” then they must find for the plaintiff; unless they believe that the last mentioned dam was built by authority of law, and the *91said damages to the plaintiff’s lands were foreseen, and estimated for by the jury of ad quod damnum.
And the defendants’ moved the court to give the following :
1st. Defendants move the court to instruct the jury as follows: If the jury believe, from the evidence, that the dam and mill in the declaration mentioned were erected by George Ficklin, dec’d, in the year 1824, or prior thereto, and that from the date of their erection he claimed and held the possession, use and enjoyment thereof, and of the water power on Hazle river afforded by said dam and used in the working of said mill, adversely and uninterruptedly as to the plaintiff and those to whom he is and was in privity, for twenty years from the period of such erection, then the said Ficklin had, and those claiming under him have, a lawful right to continue the said possession, use and enjoyment of said dam and mill.
2d. If the jury believe, from the evidence, that in the year 1845 George Ficklin claimed to be the owner of the dam and mill in the declaration mentioned, and had so claimed and held adversely to the plaintiff for twenty years prior thereto, and in the said year 1845, or subsequently thereto, he raised the said dam higher than it had been previously thereto; and also believe that the injury to the lands of the plaintiff, in the declaration specified, was thereby occasioned, inasmuch as the plaintiff’s declaration does not cover said raising of the dam and damages arising, therefrom, he has no right to recover said damages in this action, and they must find for the defendants.
3d. The jury are instructed to disregard as inadmissible, under the pleadings and issue in this cause, so much of the evidence as pertains to the proposition, that the dam in question has, since its original erection, been *92ra*8ec^ a^ove ^s original height, :and as pertains to the proposition, that the plaintiff’s lands have been damaged by such raising of the dam.
But the court refused to give any of the instructions asked by the plaintiff; and refused to give numbers 1 and 3 askedaby defendants; but gave the defendants’ 2d instruction, and added the following:
If the jury believe, from the evidence, that George Ficklin erected the mill and dam and abutment referred to in the declaration, and that thereafter the said Ficklin and parties claiming under him, continued in the exclusive and uninterrupted possession and enjoyment of the said mill and dam and abutment and water-power of Hazle river, afforded by said dam and used in the working of said mill, with claim of right and title thereto, from a period more than twenty years prior to the institution of plaintiff:'’s suit v. A. J. Coons and wife, (who inherited the property from Ficklin, and through whom the defendants claim title,) now pending in the Circuit court of Culpeper county, Va., up to the time of the institution of the said suit, such possession, use, &c., entitle the defendants in this action to the benefit of the presumption that the construction of said mill and dam and abutment was authorized by law; and as there is no evidence to the contrary, presented to the jury, they must presume that the plaintiff' and those under whom he derives title to the lands alleged to have been damaged, was at the time of the erection of the mill, &c., or prior thereto, fully compensated for all injury which might be occasioned by such mill-dam and abutment, to his lands; and they must find upon the issue joined in this cause for the defendants.
To this action of the court the plaintiff excepted; and on his motion, the court certified all the evidence oh which the instructions ásked for and given were based.
*93We are of opinion, that there was no error in the refusal of the court to give the instructions moved by the plaintiff, in the form in which they were presented. They are, all of them, evidently based on the ■ assumption that there can be no legaLdam across a water course, unless established by legal proceedings under the act of assembly; ignoring entirely rights acquired by actual grant, by permission and by prescriptive right, derived from long use and enjoyment. They were properly rejected, therefore, by the court. 'We are also of opinion that there was no error in refusing to give the 1st and 3d instructions moved by the defendant.
The first instruction ignores utterly the important distinction between lapse of time as evidence, and lapse of time as a bar. In the latter case, it is conclusive; in the former, presumptive only, and liable to be rebutted by circumstances. The case before us is of the latter character. In the case of Nichols v. Aylor, 7 Leigh 546, already cited, this court held, 1st: that “the use and enjoyment, by the defendant and those under whom he claimed, although it was exclusive and adversary, and existed for more than twenty years, was not conclusive evidence of the defendant’s right; but presumptive merely: Secondly — that evidence tending to show that such use and enjoyment was not acquiesced in, but the right thereto contested, was proper evidence to rebut the presumption.” Such rebutting evidence is abundant in this record; and it would have been plainly erroneous to declare that twenty years exclusive and adversary use and enjoyment of the easement was conclusive of the right. The instruction was, therefore, properly refused.
hTor was there error in refusing to give the defendants’ 3d instruction. That instruction affirmed that under the pleadings in the cause, evidence to show that since the original erection of the dam it had been raised in *94height, and that injury to plaintiff’s land had resulted therefrom, was inadmissible. This instruction, although directly pertinent to the facts, the court refused to give, and we think properly; thereby affirming, in effect,that such evidence was admissible under the pleadings.
But we are of opinion that the court did err in giving the second instruction moved by the defendant; and also in giving the instruction added by the court.
The second instruction affirms, substantially, but in different form, what was disaffirmed by the court in its refusal to give the third instruction. It affirms, in substance, the proposition that if Mcklin, prior to 1825,had erected a dam across the stream which did no injury to the plaintiff, and held and used this dam adversely until 1845, and then repaired the dam and raised its height so as to injure the lands of the plaintiff, that this raising, and the injury resulting therefrom, was not covered by a declaration counting on said act as an erection of a dam, and claiming compensation for damages resulting from the continuance thereof by defendants. We think the declaration does cover the case; and the court below had itself so decided, in refusing to direct the jury to disregard the evidence- tending to establish the raising of the dam in height since its original erection, and the injury resulting therefrom.
The court erred, also, in giving the last instruction prepared by the court. It decides, instead of leaving that question to the jury, that there was no proof to rebut the presumption of a prescriptive right, and gives substantially the first instruction asked by the defendant, which we have already seen had been properly rejected. The law should have been laid down by the court, as it was held to be in in Nichols v. Aylor, above referred to.
*95Judgment reversed, with costs to the appellant; and cause remanded to the Circuit court of Madison county, to be further proceeded in, according to the principles above declared.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred, to the prejudice of the plaintiff in error, as follows, viz:
First. In sustaining the defendants’ in error exceptions to any of the questions and answers in the deposition of the plaintiff in error, either on his examination in chief or on cross-examination, except to the 6th, 7th, 8th, 10th and 12th questions, and answers in chief, as set'forth in the plaintiff’s in errors first bill of exceptions.
2dly. In excluding the testimony of Henry S. Field, in relation to his conversation with Mozingo, as set forth in the plaintiff’s in error second bill of exceptions; all that passed between the witness and Mozingo, at the time of and relating to the act of Mozingo therein referred to, was proper evidence as part of the res gestae.
3dly. In allowing the defendants in error, after they had, with the consent of the plaintiff in error, introduced and read to the jury, the written statement of an absent witness of their own, to prove by one of their counsel, that at a former trial of the cause, this witness had stated a material fact not contained in his written statement, as set forth in the plaintiff’s in error sixth bill of exceptions. The defendants in error should not have been allowed to discredit that written statement in any respect whatever.
4thly. In excluding from the jury, as rebutting evidence, the record set forth in the plaintiff’s in error seventh bill of exceptions: That record, for the purpose *96for which it was offered, was proper testimony, and should have been admitted.
5thly. In giving to the jury the second instruction moved by the defendants in error, and in adding thereto the instruction prepared by the court, as set forth in the plaintiff’s in error eighth bill of exceptions. On the facts of this case the court should have instructed the jury, in substance, as follows, it being the law of the case, as laid down in Nichols v. Aylor, 7 Leigh 546. The use and enjoyment of the dam in question by the defendants in error, and those under whom they claim, although it may have been exclusive and adversary, and had existed for more than twenty years, is not conclusive evidence of the defendants’ in errors right, but presumptive merely; and evidence tending to show that such use and enjoyment was not acquiesced in, but the right thereto contested, is proper evidence to rebut that presumption.
The judgment of the Circuit court is reversed, with costs to the plaintiff in error; the verdict of the jury set aside, and the cause remanded to the Circuit court, for a new trial to be had therein, in accordance with the foregoing principles.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481820/ | Moncure, P.
There are four assignments of error in this case, three of them made by the counsel of the appellants in the petition of appeal, and one of them by the counsel of the appellee, Holland, in his printed argument. I will first consider those of the appellants.
1st. They assign as error, that a certain debt due to the testator, Samuel P. R. Moorman, at his death, by one Wesley Peters, and collected by the administrator, James F. Johnson, in May and July 1863, was charged to the administrator, in the settlement of his accounts, at the scaled value of so much Confederate currency at the time it was received, instead of being charged to him at its nominal amount in good money.
*101A personal representative is not warranted in receiving a specie debt due to tbe decedent’s estate in a greatly depreciated currency — depreciated to tbe extent to wbicb • . , , . £ . , , it was depreciated when tbe money was received by tbe representative in tbis case — unless there be something in tbe condition of the debt, or in tbe state of tbe demands of creditors or legatees of tbe estate, or otherwise, which makes it to tbe interest of tbe estate that tbe debt should be so received. In tbis case it is not pretended that the debtor, Wesley Peters, was not perfectly solvent, and likely to continue so, at tbe time bis debt was received by tbe administrator of tbe creditor; nor that the collection of tbe debt was required for tbe purpose of being paid to creditors or legatees of tbe deceased. Tbe money was not, in fact, paid to creditors or legatees after it was received by tbe administrator, but was either used by him for bis own purposes, or remained in bis bands until after tbe war; on wbicb subject there seems to be no evidence in the record. Where, then, was tbe necessity or propriety of receiving it in a depreciated currency — depreciated, it is said, to tbe extent of 8£ to one, as compared with gold? How was tbe estate benefited thereby?
The only way in which it is claimed by the administrator that the estate was benefited by this transaction, is, that a large portion of the debt due by Peters, to wit, $8,860 38 cents, was a simple contract debt barred by the statute of limitations; and payment of it could not, therefore, be coerced; and that the administrator was enabled to collect that part of the debt, and a balance of $1,786 66 cents, only by agreeing to receive, and actually receiving, both amounts, $5,147 04 cents, in Confederate currency.
The appellants’ counsel argue, very strongly, to show that even if a large portion of tbe debt Was, in fact, *102barred by tbe statute of limitations, and would not have been paid otherwise than in Confederate currency, still there was a balance of the debt remaining due in specie greatly exceeding the scaled value of the whole amount of Confederate currency received from the debtor in payment of the debt; so that, even in that view, the administrator was guilty of a devastavit in making the arrangement which he did.
Without considering and expressing an opinion upon that matter, however, I will proceed to consider other grounds which they take in their argument, viz: 1st, that no portion of the debt due by Peters was, in fact, barred by the statute of limitations; and 2dly, that if the statute were applicable to any portion of the debt, it does not appear that the debtor would have availed himself of the defence of the statute, if the administrator had not been willing to receive payment of the debt in Confederate currency.
The portion of the debt referred to, is the amount due upon three bonds of Wesley Peters and A. C. Rucker to Wm. B. Preston, commissioner, &c., for $858 14 cents each, dated the 27th day of August 1851, payable, one of them on or before the 27th day of February 1852, another on or before the 27th day of August 1852, and the other on or before the 27th day of February 1858. These bonds were due by Wesley Peters; and by an arrangement between him and the testator, S. P. R. Moorman, they were taken up by the latter for the former as they fell due. On each of the bonds is endorsed a receipt, dated about the time of its maturity, for the amount of the bond in full, received of S. P. R. Moorman, and signed by “ Wm. B. Preston, Ex. of E. H. Preston, dec’d,” or “Wm. B. Preston, Com.” On the second bond is a credit endorsed in these words : “ The within bond is entitled to a credit of $531 92, Aug. 27th, 1852.” *103This payment was no doubt made by the debtor to Moorman, as the receipt endorsed on that bond is dated two days before the date of said credit, and is for the amount of the bond in full. These bonds remained m the possession of Moorman until his death, and in the possession of Moorman’s administrator until the settlement between him and Peters, when they were delivered to Peters. There cannot be a doubt, I think, but tt at they were considered by all parties concerned, as the still subsisting bonds of Peters, after they were taken up for him by Moorman; and the only effect of the transaction, so far as concerned Peters, was, that thereafter Moorman was to be his bond creditor instead of Preston; in other words, to substitute Moorman in the place of Preston, as the obligee of the bond. ' The same thing, in effect, might have been accomplished by an assignment without recourse by Preston to Moorman The receipt was, of “S. P. R. Moorman,” not of “ Wesley Peters, through S. P. R. Moorman.” The bonds were not given up by Moorman to Peters to be cancelled, but were continued to be held by Moorman as still subsisting bonds. Moor-man took no new note or bond of Peters, or any other evidence of the debt than the old bonds themselves, with the receipts endorsed thereon, showing his title to them. Would he have so acted if he had not regarded the bonds as due to him, after he paid the amount to Preston ? He might, at his own costs, and for his own use, have sued upon the bonds in Preston’s name, indemnifying Preston against the costs of the suit. Wesley Peters, whose deposition was taken by Moorman’s administrator, therein confirms the foregoing view of the transaction between himself and Moorman. He explains the reason which induced Moorman to take up the bonds,-, and which need not be repeated here. In answer to a question propounded to him by the plaintiff’s counsel: *104“ Did you not consider that the amount you owed him on account of these bonds, was evidenced by them — and did you not, in fact regard your obligation to pay the bonds as merely transferred from Preston to Moorman— or> *n °tber words, did you .not regard Moorman as an assignee of the bonds?” — he answered: “When I gave ^ " these bonds I expected to pay them; and while Mr. Moorman paid them off for me, of course I felt bound to Mr. Moorman ; and I considered that Mr. Moorman would hold the bonds until I paid them off; then, when I paid them off, I did not expect to hear of them. I did look upon him as holding the bonds against me. As to Mr. Moorman’s being an assignee, I thought nothing about it. I expected Mr. Moorman to pay the bonds and hold them; and whenever I got able I was to pay him.” In answer to another question put to him by the plaintiffs’ counsel,’- he said: “ There were other transactions between us (Moorman and himself) besides the bonds; and there was a running account kept between us. I regarded the indebtedness on account of the bonds as a separate transaction, because there was no entry or any account made of that sort. I considered that he held those bonds against me. I considered that I owed him that amount of money.” In regard to an item of $958 96, charged in his account with Moorman, as having been paid to the latter May 15, 1857, he said: Moorman “ was to credit me with said amount on my land bonds.” C. C. Peters, whose deposition was taken by the plaintiffs, says: “ The statement shown to me is in my hand-writing, and I made it. My recollection is, that Wesley Peters had purchased land of Wm. B. Preston, Commissioner, to sell lands of Elisha H. Preston, dec’d, and had executed his bonds to Preston for the purchase money. When the bonds became due, he, Peters, was not ready to pay them. Samuel P. R. Moor-*105man paid the bonds to Preston, and held them; and the A $958 96 was to be credited on those bonds. I have no recollection as to the time of payment, but suppose was as stated on the paper, from my certificate.” The statement above referred to is returned with the deposition. Under the item of “1857, May 15, to cash paid you $958 96,” is the certificate of C. C. Peters, in these words: “ I was present on the above date, and the understanding was, that the amount $958 96 was to be entered as a credit to the said Peters’ land bond to Moorman. C. C. Peters.”
I think, therefore, that these bonds were not discharged by the payment of the amounts of them by Moorman to Preston, but enured thereafter to the benefit of Moorman, who thereby became, not a simple contract, but a specialty creditor of Wesley Peters; and whose claim on that account was not barred by the statute of limitations when it was settled with his administrator by Peters, as aforesaid.
After expressing the foregoing opinion, it is hardly necessary to say any thing upon the other'ground above mentioned, that if the statute were applicable to any portion of the debt, it does not appear that the debtor would have availed himself of the defence of the statute if the administrator had not been willing to receive payment of the debt in Confederate currency. If a portion of the debt had been actually barred by the statute, and Wesley Peters had refused to pay it except in Confederate currency, and had threatened to plead the statute if sued for the debt, the administrator would, doubtless, have been warranted in receiving at least that portion of the debt in Confederate currency. But it is not pretended that he ever said one word about any portion of the debt being barred by the statute; much less that he eyer threatened to plead the statute, if sued for the debt; *106an<2 Mere can be no doubt but that he considered his , . bonds to be m full force, for the security and indemnity of Moorman, for the money paid by him in taking them , , . -i-i-,.r aP; and that he would, it requested, have renewed his bonds to Moorman for the same amount. Not a word is said in the answer of the administrator about any objection by Peters to the payment of any portion of his debt on account of its being barred by the statute of limitations; and no question is asked him on that subject on either of his two examinations.
I am, therefore, of opinion that the Circuit court erred in scaling the amount received by the administrator of Moorman, in discharge of the debt due from "Wesley Peters; and that, instead of doing so, that court should have held him liable for the whole amount received, as if it had been good money.
2d. The next ground of error assigned by the appellants, is, that the administrator, in the settlement of his account with the estate of his testator, was allowed credit for the full amount of the Confederate money paid by him in discharge of certain debts due by the estate, instead of the scaled value of such money; the appellants contending that only such value ought to have been allowed, though the said debts, or most of them, were specie debts.
Clearly there is no error in the decree of the Circuit court in this respect. These payments were made out of Confederate money received by the administrator on account of the estate. If it was improperly received its being applied at par to the payment of debts which might have been demanded in specie, made it as valuable to the estate as if it had been specie ; and thus prevented any less to the estate, from the act of the administrator in receiving such money. If it was properly received, then the money of the estate was applied to the pay*107raent of the debts of the estate, which of course was right; and the estate was thus benefited by the payment of its specie debts in its own depreciated currency
3d. The last ground of error assigned by the appellante, is, that the Circuit court, by its decree, instead of holding the appellee, Thomas Holland, liable in good money for the price agreed to he given for the land lo ought by him of the administrator, gave him an election to take the land on those terms, or to rescind the sale, and receive out of the pi’oceeds of a re-sale of the land the value of the Confederate money paid by him for the land.
It will follow, from what I am about to say in regard to the error assigned in the brief of the counsel of the appellee, Holland, that I am of opinion that the appellants’ third and last ground of error is not well founded. I, therefore, proceed to consider:
4thly. The ground of error assigned by the appellee, Holland. That error is, that the Circuit court, instead of making the decree which it did, in regard to his purchase of the land,'ought to have decreed that the administrator, Johnson, should execute and deliver to him a deed with special warranty, conveying to him in fee simple the tract of land aforesaid.
The testator by his will, after making provision out of his estate for his wife — having first charged it with the payment of his debts — directed .that the remaining part of his estate, except the negroes, should be converted into money; which, with the remaining negroes, after his wife’s selection, should be divided into three equal parts; one part to be placed in the hands of Achilles H. Moorman, as trustee for the benefit of his daughter, Sarah J. Richey, and her children; and the other two charts to he placed in said Moorman’s hands, as guardian *108*'or'daughter Mary James Moorman, and his son Charles Pleasant Moorman. The will is dated Hovem3d, 1852. The testator died in October or November 1861, and his will was admitted to probate November 25th, 1861; and his administrator qualified December 3d, 1861. The inventory and appraisement of the estate, real and personal, was made on the 27th of December, 1861; and on the same day the slaves were divided according to the will, by the same persons who appraised the estate, and who had also been appointed-commissioners to make the said division. On the same day, also, the perishable estate was sold by the administrator. The land afterwards sold to Holland was appraised at $8 per acre. The appraisement was ordered to be made in current money, and was made accordingly: current money at that time being State bank notes and Confederate States treasury notes. The administrator was present at the appraisement; and then took Wesley Peters aside and told him if he would sell the land in question at $8 per acre, the appraisement price, to do so; that he, the administrator Johnson, was confined in Richmond (being a member of the State Senate) and could not attend to it, and would be glad for Peters to assist him in selling it. Very soon thereafter a negotia-' tion was commenced by Holland, by letter, with Johnson, and afterwards carried on in person with Peters, until the 26th of February 1862, just two months after the appraisement, when a sale was effected by Peters for Johnson to Holland, with the knowledge and approval of the testator’s widow, and with the sanction of Johnson, at ten dollars per acre for 280 acres, being the larger portion of the said land. One thousand dollars of the purchase money, was paid in hand, in current money, and the balance was to be paid, one-half on the first of January 1863, and the other'half on the first of January *1091964. For the cash payment, a receipt was given on the same 26th of February, 1862, by Johnson, as administrator. Shortly thereafter, the residue of said tract of land, 84-j- acres, was sold to said Holland at $8 per acre; and on the 24th of November 1862 the residue of the purchase money of the whole tract $2,159, was paid by the purchaser to the administrator, who thereupon executed a receipt in full for the purchase money of both portions of the said tract ; the deferred instalments of the first portion being thus paid in advance. The quantity of that portion turned out to be 248J acres, instead of 280 acres, as mentioned in the first receipt; which reduced the amount afterwards paid to that extent. No conveyance was executed by the administrator to Holland, during the war; no doubt because the parties were seldom if ever together; Johnson being generally in Eichmond, attending to his duties in the Senate, and Holland probably at his residence on the said land, which was situated in a part of the county remote from the court-house, or perhaps in the military service of the country. At all events, there can be no doubt but that the administrator would, at any time when requested by Holland, have executed a conveyance of the land to him; and Holland knowing that fact, and having possession of the two receipts aforesaid, which showed that he was entitled to a deed, therefore delayed making a request for one until after the war. Now the question is, whether he is entitled to demand a deed for the land, or whether he can be subjected, either to the terms which the appellants insist should be imposed upon him, or to the terms imposed upon him by the decree of the Circuit court? If he had gotten his deed, as'Brosius, the purchaser of the lot in Liberty did, during the war, his title would have been held to be good, as the title of Brosius was, by the Circuit court. Can the mere accident of his *110not getting Ms deed during the war, to which he was clearly entitled, and which he could easily have gotten, the important effect of preventing him from now getting it?
The power of the administrator to make the sale was exPress and unquestionable. He and his agent Peters, and the purchaser Holland, all acted in perfectly good faith. The property could only be sold at the time for current money, which consisted of State bank notes and Confederate .notes. The currency was at that time but little depreciated in value; and it was not generally expected, if at all, that there would thereafter be any greater depreciation. All, or nearly all, were hopeful that the war would soon end, and we would then have a better and a stable currency. There was no impropriety in making a sale of the land, under the circumstances. It was made as soon as it well could be made, after the qualification .of the administrator. That it was a private, instead of a public sale, makes no difference. The law does not require such a sale to be a public and not a private sale — the will being silent as to the manner of the sale. It ought to be made in such manner as may be most to the advantage of the parties concerned; and we all know that a better sale can sometimes be effected privately than publicly. The sale was made at a fair price, under all the circumstances, regarding it as a sale for current money. The land, just before the Bale, was appraised at eight dollars per acre, by three gentlemen who were appointed by the county court for the important duties of appraising the estate and dividing the slaves, and who performed those duties under oath. The presumption is, they were very fit to perform them, and their fitness is not questioned. They were all well acquainted with the land, and owned land in the same neighborhood. They appraised the land at eight dollars per *111acre, though at least one of them, was for fixing it at a lower price. The administrator, an eminent lawyer, residing in the county, and perhaps well acquainted with ., , , t + the land, concurred with the appraisers m thinking that eight dollars was a fair price, and requested one of them to aid him in effecting a sale at that price. In sixty days a sale was effected of most of it at ten, instead of eight dollars per acre; and shortly thereafter the balance was sold at eight dollars, the appraisement price. This evidence of the value of the land at that time is much more reliable than the evidence of its value introduced on the other side. The evidence of witnesses as to the value of land during the war, given after the war was over, and post litem moiam, cannot be much relied on, even though the witnesses be persons of good character for veracity; as is no doubt the case here. But, if we suppose that in fact the land, at the time of the sale, was intrinsically worth more than was gotten for it, yet if the sale was fairly and bona fide made, and especially if it was as good a one as could be made at the time and under the circumstances, it is unquestionably valid. Although Confederate money was depreciated to some extent at the date of the sale, yet the depreciation was not large, and there was not much difference between the price of land then and before the war. Confederate money was, generally, current at par in payment of specie debts, and was worth more than its gold value for the purposes for which money is ordinarily used. If the whole amount of the purchase money had been paid in hand, instead of one thousand dollars only, on the 24th of February 1862,. I presume there could have been no doubt of the propriety of the' transaction. But the balance was not paid until the 24th of November 1862, when there was still greater depreciation of the currency. "Was it proper in .the purchaser, then to pay, and the *112administrator then to receive, that balance in the then depreciated currency, at par ? That payment and receipt were long in anticipation of the maturity of the deferred instalments of the purchase money; and if they could kave been lawfully discharged at maturity in Confederate money, at par, it was certainly a very beneficial arrangement for the estate that payment in full should be made and received on the 24th of November 1862. Without enquiring whether the deferred instalments could have been thus lawfully discharged at maturity, I think it was perfectly competent for the parties to settle the matter as they did on the 24th of November 1862. The purchaser then paid the full balance of the purchase money, as claimed by the vendr, and received from him an acquittance therefor; which he had full power to give. In this transaction both parties acted in good faith. It is not pretended that they did not. And uj)on the payment of the balance and the execution of the receipt in full by the administrator, Holland became entitled to demand the execution and delivery of a conveyance to him of the legal title. The administrator was thenceforward seized of the naked legal title, as trustee for Holland, and could not withhold it from him. NO' terms could be imposed upon him by a court of equity a condition for decreeing him the legal title, whenever he chose to demand it. The administrator had no equity against him. He had fully performed his part of contract, and nothing was left to be enforced against him, either at law or in equity. It is only when a party in default, that equity can impose terms upon him. Hale v. Wilkinson, 21 Gratt. 75, 90 and 91. The purchaser could successfully defend himself in an action at against him by the administrator, without a convey-of the legal title. Code, ch. 135, § 20.
I am, therefore, of opinion, that the Circuit court *113erred in its decree in regard to the purchase of land made by the appellee Holland, of the appellee Johnson, administrator as aforesaid; that the said purchase was :i valid and legal one; that the terms of it were fully performed on the part of said Holland, who is theref : e entitled to have the land conveyed to him by the s id administrator ; that the said administrator ought to be charged in the settlement of his account with the amount of the purchase money of the said land, at the scaled value of so much Confederate currency at the time it was received; and that the said land should be decreed to be conveyed to the said Holland, in fee simple, by deed, with special warranty.
I am, therefore, for reversing so much of the said decree as is in conflict with the foregoing opinion, and affirming the residue thereof; and remanding the cause for further proceedings, in conformity with the said opinion.
Christian and Staples, Js., concurred in the opinion of Moncure, P. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481821/ | Anderson, J.,
concurred in the results of the opinion, and generally in the opinion; except, that he did not think an administrator should be held liable for receiving payment of a debt due the estate in Confederate money, where it is used or invested for the estate. In this case as the administrator has not so used or invested it, he should be held liable. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481822/ | Bouldin, J.,
concurred in all the results of the opinion ; hut he was not prepared to concur in what was said in relation to the application of the statute of limitations to the bonds of Peters.
The decree was as follows:
*114For reasons stated in writing and filed with the record, the courtis of opinion that the appellee, James F. Johnson, administrator of Samuel P. R. Moorman, dec’d, was not warranted in receiving in Confederate money the amount of the debt due by Wesley Peters to the said testator, depreciated as said money was in May and July 1868, when it was so received; and that in the settlement of the account of the said administrator, instead of being charged with the scaled value of so much Confederate currency as at the time at which it was received, he ought to have been charged with the par amount of the said debt and interest thereon in good money. The Circuit court, therefore, erred in that respect.
The court is further of opinion, that the sale of land made by the said administrator to the defendant Thomas Holland, was a valid and legal sale; that the terms of it were fully performed on the part of said Holland, who is therefore entitled to have the land conveyed to him by the said administrator; that the said administrator ought to be charged, in the settlement of his accounts, with the amount of the purchase money of the said land, at the scaled value, of so much Confederate currency at the time it was received; and that the said land should be decreed to be conveyed to the said Holland in fee simple, by deed, with special warranty. The Circuit court, therefore, also erred in that respect.
The court is, therefore, of opinion that so much of the said decree of the said Circuit court as is in conflict with what is above declared is erroneous ; and it is decreed and ordered that the same, to that extent, be reversed and annulled, and the residue thereof affirmed ; and that the appellee, James F. Johnson, administrator with the will annexed, of Samuel P. R. Moorman,dec’d,' do, out of the assets of his testator in his hands to be administered, if so much he hath — and if not, then ou *115of his own estate, and Albon A. Arthur and Alexander Jordan, his securities, do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is further decreed and ordered, that this cause be remanded to the said Circuit court for.further proceeding to be had therein, in conformity with the foregoing opinion and this decree. And as the amount due by the parties against whom the said decree of the Circuit court was rendered, will be increased by the operation of this decree, it is further decreed and ordered, that any lien which may have been created by the said decree of the Circuit court shall remain in full force for the security, pro tanto, of the amounts which may be found to be due by the parties respectively against whom the said decree was rendered; and that to that extent, and for that purpose also, the said decree be affirmed. And the said parties are to have credit for any payments which may be made by them respectively under the said decree, on account of the amounts which may be found to be due by them, as aforesaid.
"Which is ordered to be certified to the said Circuit court of Bedford county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481823/ | Anderson, J.,
delivered the opinion of the court.
This cause comes here upon a supersedeas to a judgment of the Circuit court of Rockingham county, affirming the judgment of the County court of said county.
Section 6 of chap. 182 of Code of 1860, p. 745, requires, that with the petition for an appeal, supersedeas, &c., there shall be a transcript of the record of so much of the case as will enable the court, if the petit ion he *120Sranted’ properly to decide the questions that may arise before it. In this case, the transcript of the record of the County court, certified by the clerk of that court, was filed with the petition to the Circuit court; and that transcript, together with a transcript of the judgment of the Circuit court thereon, is certified to this court, by the clerk of the Circuit court; and is a substantial compliance with the requirement of the statute.
The supersedeas was granted on the 29th of July 1866, by Judge Sheffey, one of the Circuit judges, to the judgment of the County court of Rockingham; and on the 18th of December 1868 Judge Sheffey modified the order he «had made awarding a supersedeas, so as to reduce the penalty of the supersedeas bond from 15,000 dollars to 8,000 dollars. The court is of opinion that it was competent for him so to do. And that the modification of the terms, upon which the supersedeas was awarded, did not impair or annul the plaintiff’s in error right to a supersedeas, which had been awarded to him on the 29th of July 1866, but continued the same on terms less onerous. It was not the inception, of the proceeding, but only the modification and continuation of the previous order. Consequently, by reason thereof, the plaintiff’s in error right to a writ of error and supersedeas is not barred.
The court is further of opinion, that the declarations of the defendant in error to other persons, not in the presence and hearing of the plaintiff in error, prescribing different terms of sale from those set forth in the published advertisement, and publicly announced on the day of sale, were inadmissible as evidence against the plaintiff in error, unless shown to have been communicated to him; and that the second instruction, founded evidently upon this illegal testimony, and otherwise irrelevant, was calculated to mislead the jury.
The court is also of opinion that the third instruction, *121if not erroneous in terms, is expressed in language calculated to mislead the jury; and probably did mislead them. It implies that the bond upon its face imports a contract to pay in specie, according to the common law presumption, which it was held in Walker's Per. Rep. v. Pierce, 21 Gratt. 722, was designed to be altered by statute, in relation to contracts of that period. In that case it was said: “ The obvious design of the act of 1867 • [1866,] (meaning the adjustment act,) is to ascertain and enforce the actual contract between the parties; to do which, it in effect annuls the presumption of law as to the kind of currency in which the contract is to be solved, whether common law or statutory.” This instruction might be understood to exclude, contrary to the terms of said act of assembly, and the repeated decisions of this court, an implication that the contract was made with reference to Confederate currency as a standard of value, or was solvable in that kind of currency, from the character of the currency which prevailed at the date of the. contract, and the price paid for the land, which was the consideration of the bond, and other facts proved in the cause. The presumption was one of fact, and was a question for the jury.
It is certified by the court below, as proved on the trial, that the bond which is the foundation of the suit, was given for the last instalment of purchase money for a tract of land, which was sold at public auction on the 30th of March 1863; that nothing was said in the advertisement-or public announcement, of the terms of sale, as to the kind of currency which would be received in payment of the purchase money; but that Confederate States treasury notes were the only currency of the country at the time; and that the land, which had been assessed at 80 dollars an acre before the war, and could not have been sold in March 1863, or any time during *122the war, at its assessed value in specie, and was not worth, in the opinion of any of the witnesses, more than $100 an acre before the war, was sold to the plaintiff in error for $210 an acre; that he paid $14,135 dollars in hand, and gave his bond for $7,067 70-|, for the residue of the purchase money, payable on the 30th of March 1865, with interest from the 30th of March 1863, the date thereof; that the whole of the hand payment was-applied to the payment of old debts by the vendor, and actually discharged 14,135 dollars of specie debts; that Confederate money at the time was rating at about 5 for 1 in gold; but in land sales was rating at from two-to three for one; and the witnesses at the time of the sale considered it a sale for Confederate money. These facts-plainly imply that it was a sale for Confederate money; which any rebutting testimony in the cause does not repel. And the defendant in error having already received payment of what was of far more value to him than the land,, the court is of opinion that the verdict of the jury, which gives him in addition thereto $7,067 70 cents, with interest thereon from the 30th of March 1863, (the face of the bond,) is not only manifestly contrary to the law and evidence, but is hard and oppressive, and ought to have been set aside. There were other questions raised in the cause, which the court deems it unnecessary now to decide; but for the reasons given, we are of opinion to reverse the judgment of the court below, and to remand the cause for further proceedings to be had therein, in conformity with this opinion.
The judgment was as follows:
This cause, which is pending in this court, at its place of session at Staunton, having been fully argued, but not determined at the said place of session, this day came here the parties, by their counsel; and the court having maturely considered the transcript of the record of the *123Judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the declaration of the defendant in error to other persons not in the presence and hearing of the plaintiff in error, prescribing different terms of sale from those set forth in the advertisement, and publicly announced on the day of sale, were inadmissible in evidence against the plaintiff in error, the same not having been communicated to him before he purchased; and that the court erred in admitting such evidence; and that the second instruction given by the court to the jury, •which is evidently founded upon it, was calculated to mislead the jury. The court is also of opinion that the third instruction, if not erroneous in terms, undertakes to instruct the jury as to what their presumption should be as to the kind of currency in which the obligation was to be discharged; which being a presumption of fact and not of law, was a question for the jury and not for the court; and was also calculated to mislead them, and ought not to have been given.
The court is also of opinion, that upon the facts certified the contract was plainly made with reference to Conferate money as a standard of value, and was solvable in that kind of currency; and that the verdict of the jury is plainly contrary to the law and evidence, and unjust and oppressive; and ought to have been set aside and a new trial granted.
Therefore it is considered, that the judgment of the said Circuit court be reversed and annulled; and that the plaintiff in error recover against the defendant in error his costs by Mm expended in the prosecution of his writ of error and supersedeas aforesaid here. And this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is further considered, that the judgment of the County court be reversed *124and annulled, and the verdict of the jury set aside, and a new trial granted the defendant in that court; and that the plaintiff in error in the said Circuit court recover against the defendant in error in that court his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid in said Circuit court. And the cause is remanded to the said Circuit court, for further proceedings to be had therein, in conformity with the principles herein declared.
And it is ordered, that this judgment be entered on the order book here, and be forthwith certified to the clerk of the court where the same is pending as aforesaid ; who shall enter the same on his order book, and certify it to the clerk of the said Circuit court of Rockingham county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481824/ | Staples, J.
The principal points in this case are discussed and decided in Henderlite v. Thurman, reported in 22 Gratt., p. 446. In that case, as in this, the contract for the purchase of the slaves was made subsequent to the emancipation proclamation of January 1st, 1863. In that, as in this, it was insisted that the slaves were free by force of that proclamation: that the considera-' tion had wholly failed, and the contract was contrary to *129public policy. It is, therefore, only necessary to refer to that case and the opinion there found, for the views of this court in reference to these questions. This case, however, presents another point not discussed or decided in Henderlite v. Thurman, which is now to be considered and settled.
It seems that the plaintiff', George Eives, on the 2d of August 1865, received from the President of the United States a special pardon for all offences by him committed, arising from his participation in the rebellion, so termed. By the terms of this pardon it was “to begin or take effect from the day on which the said George Eives should take the oath prescribed in the proclamation of the President dated May 29th, 1865 ; and to be void and of no effect if the said George Eives shall hereafter, at any time, acquire any property in slaves, or make use of slave labor.” The oath here alluded to was taken by the plaintiff, and was to the purport that he “would thenceforth faithfully support, protect and defend the constitution of the United States, and the union of the States thereunder; and that he would, in like manner, abide by and faithfully support all laws and proclamations which had been made during the existing rebellion, with reference to the emancipation of slaves.”
The proposition of the defendants is, that the plaintiff', by accepting the pardon and taking this oath, agreed that he would recognize, and as far as he could, give effect to the emancipation of his slaves under the proclamation of the 1st of January 1863; and that he would maintain that they had become free on that day, and had all the while thereafter continued to be free persons, and not slaves. And it is insisted, that the present pretension of the plaintiff is wholly inconsistent with the obligation thus assumed; inasmuch as he now claims that the negroes sold by him to one of the defendants.. *130wrere slaves after the 1st day of January 1863; and that a sale made by him subsequent to that day is valid, and should be enforced in his favor.
As no authorities directly bearing upon tl is question have been adduced on either side, it must be considered and discussed upon principle exclusively. In Henderlite v. Thurman this court held, that the emancipation proclamation of January 1st, 1863, if valid at all, was only so as a war measure; and as such it had no effect in regions beyond the control of the federal authorities; and that those slaves only were emancipated which came within the federal lines of occupation while that proclamation was in active exercise; that this was the construction given to that measure by Mr. Lincoln himself, by all the judges of the United States courts who had held the subject under consideration, and by a large majority of the State courts. If this point was correctly decided, if the negroes sold by the plaintiff, being in the county of Albemarle, were not embraced by the proclamation, beyond all controversy they were slaves at' the time of the sale, recognized as such by the parties, by the constitution of the United States, and the law's and constitution of Virginia. Nothing had then occurred, no act had been done, to impair the plaintiff’s right of property; and he was fully protected in his enjoyment and dominion by a competent military and civiL pow'er. The contract w'as, therefore, valid. The sale passed a clear legal title to the purchaser, and the plaintiff acquired a clear vested right to the purchase money.
A valid title having vested by the sale, no act the plaintiff might thereafter perform, no recognition by him of the validity of the proclamation, could affect that title, or interfere with the purchaser’s claim agaiust the government, if any he had, for compensation. The *131defendant’s promise to pay is, therefore, in full force and effect, unless we are to assume that it has been extinguished by the mere fact that the plaintiff has taken upon himself certain duties and obligations to the federal government which do not concern the defendants, which entailed no loss and imposed no liabilities upon them.
If I rightly understand the argument of defendant’s counsel, they do not maintain that the contract is discharged by the plaintiff’s action. They seem to rely upon the principle of estoppel, as applicable to the case. Give, then, to the plaintiff’s oath, and his acceptance of the pardon, all the effect of the most conclusive estoppel: can the defendants claim the benefit of it? — can they rely upon it? They are clearly not bound by it. Tüey were no parties to the arrangement (if it may be so termed) between the government and the plaintiff. That arrangement was the result of a public policy inaugurated by the executive of the United States, to secure to the negro the freedom won for him by the federal arms. "When the war closed the government of the United States was not looking, to the previous status of the freedmen in the southern States. It was a matter of no concern whether they were emancipated by force of a proclamation, or by the conquest of the north. It was a fixed fact that the slaves were free, free by the results of the war. The institution of slavery being thus at an end, the object of the government was to prevent ever thereafter, even the agitation of the question of its reestablishment. Its measures did not look to the past, but to the future. They were wholly prospective in their operation, intended to protect the negro in the enjoyment of his freedom. For these ends the whole power, all the machinery of the federal government, was brought into requisition. One of the means adopted was to im*132Iose ^errns upon those applying for executive clemency. The applicants were required to take an oath faithfully to abide by and support the laws and proclamations , . n , , j o which had been made with reference to the emancipa ^on slavesi and it was further provided, that if the applicant should thereafter at any time acquire any property whatever in slaves, or make use of slave labor, the pardon was to be- void and of no effect.
Construed by the light of surrounding circumstances, this provision or condition in the pardon clearly was not intended to exact from the applicant an admission that Ms slaves had become free in any particular way, or under any special law or proclamation; but that the sole object was to preclude any question in the future as to the right of these slaves to freedom; and to secure that right beyond the reach of cavil or controversy. In this sense, and this alone, it seems tome, the plaintiff, in common with others who applied for pardons, was required to support the laws and proclamation in reference to emancipation.
It is not to he presumed that the President of the United States intended, as a condition of Ms clemency, to exact from the citizen an admission which might perchance involve him in a perplexing controversy with his former slaves, concerning their right to compensation for services rendered after the proclamation was issued. ISTor is it to be presumed it was his purpose to impose conditions which would constrain one party to surrender valuable rights, originating in contracts valid when made, and the enforcement of which can in no manner affect the rights and privileges of the freedman, or the well established policy of the government. If such was the purpose of the President — and such is the legal operation and effect of the oath taken by the plaintiff— then I think the courts would not hesitate to declare the *133condition annexed to the pardon a mere nullity The President of the United States is authorized to gi’ant conditional pardons. A performance of the condition renders the pardon absolute, and entitles the party to a full discharge from all the penalties and disabilities attached to the offence. On the other hand, a failure to perform the condition renders the pardon utterly void; and the offender is remitted to his former condition. But the President is not authorized to annex to his pardon a condition that is impossible, or contrary to law. In such case the pardon is absolute, and the condition void. If the proclamation was the exercise of a constitutional power by the President, and its effect was to confer freedom upon all the slaves in the designated States, it is not perceived how the oath of the plaintiff could give to it any additional obligation. It is binding upon him with or without this oath. If, on the contrary, it was illegal and unconstitutional, no oath the plaintiff' might take, no promise he might make to the executive to support it, can preclude him from asserting his l’ight of action growing out of a valid contract with another citizen. And it may be safely said, that the promise to support an unconstitutional act would be void, and the pardon absolute; or the promise not being observed, the condition not being performed, the pardon is void, and the grantee remains in the condition he was when the par-, don was granted. And it would seem to be very clear, that in no case was the President authoi’ized to annex to his pardon a condition requiring the offender to support an act which is an infringement of the constitution and a violation of the rights of property.
But waiving all this, let it be conceded that the plaintiff is absolutely precluded, by his acceptance of the pardon, from contesting the validity of the proclamation, or the emancipation of his slaves thereunder, I repeat what *134has been before merely suggested, the defendants are in no condition to take advantage of the estoppel. When an estoppel is relied on to conclude a party, from claiming a clear, well ascertained legal right, he who claims the benefit of such estoppel, ought himself to be bound by it. If any proposition of law can be regarded as well settled, it is this. It is only necessary to cite a single authority. In Deery v. Cray, 5 Wall. U. S. R. 795, 803, the Supreme court of the United States say: “ That no person can rely upon an estoppel growing out of a transaction to which he was not a party nor a privy, and which in no manner touches his rights. There is no mutuality, which is a requisite to all estoppels. This (say the court) is precisely the case before us. The plaintiff claimed under Brent and his deed. Defendants claim nothing under that deed, and deny all connection with the title it proposes to give. They are strangers to it, and have no right to set up its recitals as estoppels.” It seems to me, therefore, that whatever may be the obligation of the plaintiff to the government, the defendants are in no condition to rely upon it as relieving them, or impairing plaintiff’s right to enforce the contract.
There is one other view, perhaps more satisfactory than any yet mentioned. If, as already suggested, the proclamation is to be regarded as a war measure, conferring freedom only upon such slaves as came under federal control during the war, an oath to support that proclamation cannot, by any process of reasoning, be tortured into an obligation to maintain or agree that hose slaves not under federal control were thereby emancipated ; because such was not the legal operation and effect of the measure. Let it be conceded that the plaintifl’ is estopped to deny the constitutionality of the proclamation: surely he is not therefore precluded from *135an enquiry into the extent of its operation, and from showing, according to a fair interpretation, that his slaves were not within its influence and operation. Whether they were embraced by it, is a question for the courts. If they were not so embraced — if, indeed, being wholly within the Confederate lii. es, they were not emancipated, how is it possible to hold the plaintiff is compelled by his oath to acknowledge that they were in fact emancipated? This would be to deprive him of all claim to compensation for his property, because he has assumed an obligation to support a measure which in no way affected his title. The whole extent of the plaintiff’s oath is, to support the proclamation, as interpreted by the courts. When he has done that he has fulfilled all the conditions of his pardon. And this court having held, in Henderlite v. Thurman, that the proclamation did not affect slaves situated as those belonging to the plaintiff, it must follow, according to this view, there is nothing in the pardon, or in the oath taken by the plaintiff, to preclude him from maintaining that he had a valid title at the time of sale, and that his slaves were not emancipated by operation of that measure.
I have thus given this case a somewhat extended consideration, not because in my judgment it deserved it, but from a feeling of respect to the opinion of the Circuit court, and the views of able counsel, who seem to have entire confidence on the point; and because it is understood the case is to be taken hence to the Supreme Court of the United States.
For the reasons stated, the judgment must be reversed, and the cause remanded to the Circuit court, to be proceeded with in accordance with the principles herein announced.
*136The other judges concurred in the opinion of Staples, J.
The judgment was as follows:
This cause, which is pending in this court, at its place of session at Staunton, having been fully heard, but not determined, at the said place of session : This day came here the parties, by their counsel: and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the judgment of the said Circuit court, in sustaining the defendant’s demurrer to the plaintiff’s declaration, and each and every count thereof, is erroneous : Therefore, it is considered, that the same be reversed and annulled; and that the defendant in error, out of the assets of his testator in his hands to be administered, pay to the plaintiff in error his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here.
And this court, proceeding to render such judgment as the said Circuit court ought to have rendered on said demurrer to the plaintiff’s declaration, and each and every count thereof, is further of opinion, that said declaration, and each and every count thereof, is sufficient in law for the plaintiff to have and maintain his action against the defendant: And, therefore, it is further considered by the court here, that said demurrer to the declaration, and each and every count thereof, be overruled; and that this cause be remanded to the said Circuit court, for further proceedings to be had therein. And it is ordered, that this order be entered' on the order book here, and be forthwith certified to the clerk of the court where the cause is *137pending, as aforesaid; who shall enter the same on his order book, and certify it to the clerk of the said Circuit court of Albemarle county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481881/ | Anderson, J.,
delivered the opinion of the court.
Upon the authority of repeated decisions of this court, it was premature and error to decree the sale of' the real estate in the bill and proceedings mentioned, until the court had ascertained and adjusted the amount of liens thereon and their priorities. Cole’s adm’or v. McRae, 6 Rand. 644; Smith & al. v. Flint & al., 6 Gratt. 40; Lipscomb v. Rogers, 20 Gratt. 658; White v. Mech. Building Fund Association, 22 Gratt. 233. A reference should have been made to a commissioner of the court with instructions to convene before him in such manner as to the said court should seem proper, Bassil B. Hopkins and Robert Hull, assignors of Charles P. Shaw, there being nothing in the record to show how much of the whole debt secured by the-first deed of trust has been satisfied, and all the lien creditors of Anthony Moran, and to ascertain and report the amount of subsisting liens upon the said-real estate and their several priorities, prior to a decree for the sale thereof. It is therefore considered by the court, that the decree of the Corporation court, of Alexandria city in this cause be reversed and annulled, and that the appellant recover his costs incurred in the prosecution of his appeal here; and the cause is remanded to the said Corporation court for further proceedings to be had therein in conformity with this opinion.
Decree Reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481882/ | Monguee, P.,
delivered the opinion of the court.
The many controversies which have arisen in regard to the construction of Samuel Miller’s will, seem to have been settled by compromise between the parties ■concerned, with a single exception, viz: whether the 25th clause of the said will is a valid disposition of the residuum of his estate as against his heir or heirs-at-law ? That question, however, is a most important *111one, as it involves the title to almost the whole of the immense estate of which said Miller died seized and possessed, and as upon its solution against the heir or heirs the said compromise expreásly depends. This will fully appear by reference to an act of the general assembly approved February 24,1874, entitled “an act to give effect to a compromise of the litigation in respect to the construction and effect of the will of Samuel Miller deceased, and to establish the manual labor school provided for in the twenty-fifth clause of said will.” Acts of Assembly 1873-’4, p. 52. The Circuit court of the city of Richmond decided that question against the claim of the heirs-at-law, and this appeal was taken by them, or some of them, from that decision; and thus the same question comes up for decision by this court.
In the solution of this question it is only necessary for us to decide whether the said clause is a valid disposition of the said residuum against the said heir of heirs-at-law, and not whether it is a valid disposition of said residuum in favor of the charity therein mentioned and provided for, or in favor of the Davidsons, ■the alternative or contingent residuary devisees and legatees therein named. In other words, it is not necessary for us to decide the question which was in controversy between these conflicting claimants, the charity and the Davidsons, and which is a subject of ~the compromise aforesaid. But if it shall appear to us, and we shall accordingly decide, that the said ■clause is a valid disposition of said residuum in favor of either of the said conflicting complainants, no matter which, it will then follow as a necessary consequence, that the said clause is a valid disposition of said residuum, as against the said heir or heirs-at law.
We are of opinion that the said clause is a valid *112disposition of the said residuum in favor of the charity aforesaid, either as a devise and bequest under section 2 of chapter 80 of the Code of 1860, p. 419, or as an executory devise independently of that statute. And,
First. As a devise and bequest under the statute, the second section of which is in these words: “Every gift, grant, devise or bequest which since the second day of April in the year one thousand eight hundred and thirty-nine, has been, or at any time hereafter shall be, made for literary purposes, or for the education of white persons within this state (other than for the use of a theological seminary), whether made to a body corporate or unincorporated, or to a natural person, shall be as valid as if made to or for the benefit of a certain natural person, except,” &c.
The third and fifth sections are in the following words:
“ 3. When such gift, grant, devise or bequest is to the Board of the Literary Fund or any other corporation, or any county or natural person, the subject shall be taken and held by them respectively. If any such corporation, county or natural person refuse to take and hold, the subject shall be taken and held by trustees appointed as hereinafter directed. In either case it shall be taken and held for the' uses prescribed by the donor, grantor or testator, or such as have been prescribed in any particular case, by any law passed since the said act of the second day of April in the year 1839.”
“ 5. When any such gift, grant or will is recorded, and no trustee has been appointed, or the trustee dies, or refuses to act, the Circuit court of the county or corporation in which the trust subject, or any part thereof may be, in the case of a gift or grant, or in which the *113will is recorded, may, on the motion of the attorney for the commonwealth in such court, (whose duty it shall be to make such motion) appoint one or more trustees to carry the same into execution. The trustees, whether appointed by such instrument, or under this section, may sue and be sued in the same manner, as if they were trustees for the benefit of a certain natural person; and for enforcing the execution of such trust, a suit may be maintained in the name of the commonwealth, when there is no other party capable of prosecuting such suit.
“ 8. In case any devise or bequest, authorized by the second section of this chapter, shall hereafter be made, the legislature, as to any such, reserves the right at any time to suspend or repeal the authority thereby given. But if in any case it shall do so, it will provide that the subject of such devise or bequest shall vest or be vested in such person, his heirs, executors or administrators, as would have been entitled had the devise or bequest not been made.”
We think the devise and bequest of the residuum in this case come within the true intent and meaning, and, indeed, within the literal terms of the statute aforesaid. The said devise and bequest were “ made for literary purposes, or for the education of white persons within this state, (other than for the use of a theological seminary).” They were made to “the Board of the Literary Bund” (a corporation created by law) and to their successors forever, “ in trust for the benefit of the county of Albemarle, in the state of Virginia, to be appropriated to the uses and purposes, and in the manner following and none others; that is to say, that the said Board of the Literary Bund shall, through the agency of the County court of the said county of Albemarle, appropriate the income and *114Pro^s °f stocks and securities, to be purchased as aforesaid, to the founding, establishment and perpetual support of a school on the manual labor principle, on the tract of land in the county of Albemarle,” &c., “^0 suPerhrtended by a competent teacher or teachers, wherein at all times there shall be fed, clothed and instructed in all the branches of a good, plain, sound English education, the various languages, both ancient and modern, agriculture and the useful arts, and wholly free of expense to the pupils, as many poor orphan children, and other white children, whose parents shall be unable to educate them (the said orphans and other children being residents of the said county of Albemarle), as the profits and income of the funds herein devised and bequeathed will admit of or compass,” &c., &c.
The clause, among other things, further provides for erecting and keeping in good repair such buildings of brick, or other durable materials, as shall be sufficient for the comfortable accommodation of one hundred pupils and their teachers-; for the appointment, annually, by the County court of Albemarle, of two respectable, intelligent and well educated gentlemen, to act as visitors of the said school during the year, whose duty it shall be to select and employ, whenever necessary, competent and suitable teachers for the said school (subject, however, to the approval of the said County court), to visit the said school quarter-yearly, examining into its condition minutely, and make written reports thereof to the said County court; that “the school commissioners of the said county of Albemarle, if any there be, and if there be none, then the overseers of the poor of ■said county, shall, from time to time, select and designate the poor orphans and other children of the *115description hereinbefore mentioned who shall he admitted into the said school, and shall determine the length of time they shall respectively continue there, and shall make written reports semi-annually of the said selections to the said County court:” the charges and expenses attending the establishment and support of said school, &c., “shall, when examined, allowed and certified by the said County court of Albemarle, be paid by the said board of the literary fund, out of the income and profits of the trust fund created by this clause,” &c.; and that the second auditor (who, by the act of assembly creating the said board, is constituted the accountant thereof) shall open and keep a separate account of the trust fund created by said clause, to be denominated “the Miller fund,” and make out and render annually a true and accurate account of said fund, a copy of which account, verified by his oath, shall, as soon thereafter as may be, he delivered to the Governor of the commonwealth, to be by him laid before the legislature thereof; and another copy, verified in like manner, shall be published forthwith, for one month, in certain newspapers. And the said clause contains the following provisions:
“ Should the legislature of this commonwealth pass any act or law which will defeat or prevent the carrying out of the objects and purposes of this clause, as hereinbefore declared and set forth, then, in that event, I do hereby give, devise and bequeath the trust fund created by this clause, or so much thereof as may remain unappropriated, to the children of Mary D. Davidson, hereinbefore named, to wit,” &c.
“My executors are authorized and requested, if necessary, to petition the legislature of Virginia for the passage of any laws which may be requisite for *116more effectually carrying out the objects and purposes of-this clause in regard to the school therein men-&c.
We think that the said clause provides for the educa^011 white persons only; for although the word “ white” is not expressed, it is plainly implied, before the word “ children,” in the phrase, “ as many poor orphan children;” that phrase being immediately followed by the words, “and other white children.” Moreover, the draftsman of the will seems to have had the provisions of chapter 80 of the Code of 1860, before his eyes, or in his mind, when he drew the will, and must have known that at that time a school could not lawfully be created for the education of colored children within this state.
¥e think that the provisions in the said clause, that the school should be established on the manual labor principle; that the pupils should be fed, clothed and instructed, wholly free of expense to them; and that they should be instructed not only “in all the branches of a good, plain, sound English education, and the various languages, both ancient and modern, but also in agriculture and the useful arts;” are perfectly consistent with, and in strict pursuance of, the plain and express intent and meaning of the statute-aforesaid, in regard to the validity of a gift, grant, devise or bequest “made for literary purposes, or for the education of white persons within this state (other than for the use of a theological seminary).”
We think that the changes which have been made by the constitution'and laws of the state, or either of them, since the date of the said will, or the death of the said testator, in regard to the Board of the Literary Fund, the County court, school commissioners, overseers of the poor, and the second auditor, do not *117at all affect the validity of the said devise and bequest for the purpose of establishing and supporting a school as aforesaid; that those agencies were merely adopted and pointed out .by the testator as convenient and appropriate means for carrying into execution his main intent to establish and support such a school; that the continued existence of those public agencies, in form or substance, as they were at the date of the will, or death of the testator, were not intended to be conditions of the said devise and bequest; but, on the contrary, it was obviously intended by the testator that if those agencies, or any of them, should cease to exist, or could not or should not perform the offices assigned to them respectively by him, for the purpose of carrying into effect his scheme of charity aforesaid, application should be made to the legislature to provide other and suitable and sufficient agencies for the purpose. That such was' his intention, seems to be clearly shown by the provision contained in the said clause as aforesaid, authorizing and requesting his executors, if necessary, to petition the legislature for the passage of any laws which may be requisite for more effectually carrying out the objects and purposes of the said clause in regard to the school therein mentioned. In conformity with the said provision, the executors petitioned for the passage of such a law, and accordingly the act aforesaid was passed, which seems to remove every difficulty which might otherwise have existed in regard to the execution of the charitable purpose of the testator, as set forth in the said clause of the will.
We do not think that the validity of the said devise and bequest is at all affected by the fourteenth amendment to the constitution of the United States. The first section of that amendment is in these words: *118*' ^ persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. -N"° state shall make or enforce any law which shall bridge the privileges or immunities of citizens of tbe United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
The only portion of this amendment which can have any bearing on the subject we are considering, is that which declares that “ no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Negroes are made citizens of the United States by the fourteenth amendment, and the question is, “ Are their privileges or immunities abridged by chapter 80 of the Code of 1860, which makes valid every gift, &c., made for the education of white persons (and not of colored persons) within this state, &c. ?
Certainly when that law was made, it did not abridge the privileges or immunities of citizens of the United States. It certainly was then valid, and continued to be so, at least until the fourteenth amendment of the constitution of the United States was adopted. Did that amendment make it invalid, and render its enforcement thereafter unconstitutional? We think clearly not. What privilege or immunity of any citizen of the United States does that law or its continued enforcement abridge? How can it injure any colored citizens of the United States, even such as reside in the state, that a gift for the education of white persons only is authorized bylaw to be made and enforced? Have such citizens any privilege or immunity in regard to gifts, &c., for their education ? *119Is it not a question alone for the legislature to decide whether such gifts shall be valid or not, and to what extent, and for what purpose ? And if the legislature deem it proper to authorize a gift for the education of white persons only to be made and enforced, how can it benefit colored persons to have such a law declared to be void? What they need in the matter is, the enactment of a similar law as to them ; and certainly, as things now exist, there are strong reasons for such an enactment. But those reasons must be presented to the legislature and not to the courts. They have, in fact, been presented to the legislature, and with prevailing effect; for we find that by an act approved March 28, 1878, entitled “An act to amend and reenact section 2, of chapter 80 of the Code of 1860, in relation to funds from gifts, grants, devises and bequests” (Acts of 1872—’73, p. 243, chap. 265), a gift, &c., for the education of colored persons within this state, &c., is made valid. So that there is now no just ground of complaint on this score, even against the legislature, if there ever was any. But in fact there was not.
But in this case there is no person complaining that his privileges or immunities as a citizen of the United States would be abridged by an enforcement of the laws aforesaid, and that it is therefore unconstitutional. The controversy is confined to white persons, no privilege or immunity of whom can possibly be abridged by the law. In such a case a court will certainly not go out of its way to declare a law to be unconstitutional. On this subject the authorities referred to by Judge Meredith, one of the counsel of the county of Albemarle, have great force. Hoover v. Wood, 9 Ind. R. 287.
The case of Kelly &c. v. Love’s adm’rs &c., 20 Gratt. *120is the only decision of this court in regard to the construction and effect of chapter 80 of the Code of 1860, and it has an important bearing upon this case. It was held in that case (all the judges concurring in °Pilli011 delivered by Judge Staples), that the devise there in question was void at common law upon the authority of numerous decisions of this court (which are cited), but that it was valid under chapter 80 of the Code. The charity was at least as indefinite in that case as it is in this.
Secondly. We are of opinion that the 25th clause of the will of Samuel Miller is a valid disposition of the residuum of his estate in favor of the charity aforesaid, independently of chapter 80 of the Code of 1860, and considering the said clause as an executory devise and bequest.
That this is so we think is conclusively shown by the cases of Literary Fund v. Dawson and others, 10 Leigh 147, and Literary Fund v. Dawson’s ex’or & heirs, 1 Rob. R. 402, which are like this case in all substantial respects; and we have no doubt the draftsman of the will in this case had those cases in his view as well as chapter 80 of the Code, and endeavored so to draw the 25th clause of the said will as to make it effectual, under one or the other or both of those authorities, for the establishment of the charity which the testator had so much at heart and to which he devoted the main body of his estate. The principle maintained by both of those cases is, that wherever a devise or bequest is made to a coloration, to be afterwards, within a period not too remote, created by law for the purpose of carrying into effect a charitable intention of the testator, expressed in his will, the same may be good and valid as an executory devise or bequest, and will become absolute and executed, if, and when, such. *121a corporation shall he created accordingly. It must of necessity be created, if at all, within the period prescribed by law in regard to perpetuities; that is, within the term of a life or lives in being and twenty-one years thereafter. The same principle had before been declared and acted upon by the Supreme court of the United States in Inglis v. The Trustees of the Sailors’ Snug Harbor, 3 Peters R. 99. In that ease the residuum of the testator’s estate was given by his will to .the chancellor of the state of Hew York, &c. (naming several other persons by their official description), to have and to hold the same unto them and their respective successors in office, to the uses and trusts, &c., declared in the will; which were out of the rents, issues and profits thereof to erect and build upon the land on which he resided, which was given by the will, an asylum or marine hospital to be called “ The Sailor’s Snug Harbor,” for the purpose of maintaining and supporting aged, decrepid and worn-out sailors, &c. After giving directions as to the management of the fund by his trustees, and declaring that the institution created by his will should be perpetual, and that those officers and their successors shall forever continue the governors thereof, &c., he adds, “it is my will and desire that if it cannot legally be done according to my above intention by them, without an act of the legislature, they will, as soon as possible, apply for an act of the legislature to incorporate them for the purpose above specified,” &c. Within five years after the death of the testator, the legislature of the State of Hew York, on the application of the trustees, also named as executors of the will, passed a law constituting the persons holding the offices designated in the will, and their successors, a body corporate by the name of “ The Trustees of the *122Sailors’ Snug Harbor,” and enabling them to execute the trusts declared in the will. This was held to be a valid devise to divest the heir of his legal estate, or, at all events, to affect the lands in his hands with the trust declared in the will.
In the cases,of Literary Fund v. Dawson &c., supra, the testator gave the residuum of his estate to be used by his executors in constituting a part of the literary fund of the state of Virginia, to be used by the school commissioners of the counties of Albemarle and JSTelson in the same way that the school fund allotted to-said counties is used, and in the proportion of two-thirds to the former and one-third to the latter county. The will contained a further provision in these words:“And from time to time, as the legislature may think advisable, the principal may be used for like objects for the benefit of the said counties, in same proportions as the interest is directed to be used. An act of assembly for said object supposed can be obtained.” A bill was filed by the heirs-at-law and next of kin of the testator, Martin Dawson, to have the said devise and bequest declared void, and the executors and the president and directors of the literary fund and others were made defendants. The court of chancery deemed the said devise and bequest to be void for the vagueness and uncertainty of the charity and of the beneficiaries thereof. From the decree the president and directors of the literary fund obtained an appeal; and upon the appeal, this court, 10 Leigh 147, reversed the decree. Tucker, P., being of opinion, that the will was equivalent to a devise of the testator’s real and personal estate to the executors in trust for the purpose of procuring an act of assembly with the necessary provisions for constituting the funds devised a part of the literary fund, in strict conformity *123with the terms, provisions and conditions of the will; that by such an act of assembly all the difficulties suggested by counsel would be avoided, and the benevolent intentions of the testator carried into complete effect; that as this act was to be obtained by the executors, the contingency of its passage was within a life or lives in being, and therefore not too remote; and that the case was very much the same with that of the Sailors’ Snug Harbor, 3 Peters R. 99.
An act of assembly was accordingly passed March 10, 1841, entitled “ an act concerning the estate of Martin Dawson, deceased, and for other purposes.” Acts of Assembly 1840-’41, chap. 26, p. 52. This act was passed on the petition of the president and directors of the literary fund. Under this act the said president and directors filed their bill against the executor and heirs of said Martin Dawson, to recover the said residuum and its profits. The executor filed an answer, in which he claimed that he was the only person in the universe authorized or capable to take the steps necessary to carry the testator’s designs into effect, that is, to obtain the act of assembly requisite for the purpose. The adult heirs-at-law demurred to the bill. The court of chancery, upon the said demurrer of the heirs and answer of the executor, dismissed the bill with costs. Prom this decree also the president and directors of the literary fund obtained an appeal; and upon the appeal this court, in 1 Rob. R. 402, reversed the decree. This case, as well as the other, in 10 Leigh, was argued with very great ability by very able counsel. Judges Allen and Baldwin, in their several opinions delivered in the case, fully sustain the validity of the residuary devise and bequest for the purpose of the charity. One great question in the case was, whether the testator did not refer to the exeeu*124^ors a^one question, whether an application should. be made to the legislature for the contemplated act, and devolve on them the duty of making it if they thought fit to do so. But the court considered that great and chief intent of the testator was to estab]ish the charity, and that the means which he marked out for that purpose were entirely subordinate to the main intent, and must give way to other and more suitable means that might be provided for the purpose by the legislature if necessary. “ The question now before the court,” said Judge Baldwin, “is simply and exclusively whether the contingency has occurred upon which the trust for the literary fund, created by the will, and engrafted upon the devise to the executors, was to take effect. To determine this, we must, of course, look to the nature of the contingency; and that must depend altogether upon the intent of the testator. He had resolved to establish a charity, to be administered by the president and directors of the literary fund, through the agency of the school commissioners; and that resolution was fixed and final, so far as he and his representatives were concerned. But it required for its accomplishment the concurrence of another will, that of the legislature; and it required nothing more. Itwas wholly immaterial whether such concurrence was granted with or without solicitation, whether upon or without the application of the trustee or cestui que trust, whether at the suggestion of a member of the legislature or a stranger, whether as an act of grace or favor on the part of the government, or of public duty as the representative of a great public interest.” P. 419. “ The general and leading intention,” said Judge Allen, “to dedicate this estate to the purposes of education within the counties of Albemarle and Nelson, is clearly established. As re*125garded his rllations, he had made such provision for them before as he thought proper. His first and favorite scheme is. developed in the sixteenth section. But he seems to have apprehended that difficulties might obstruct its execution. He looked to the possibility of its failure; and to provide for that gency, and ensure an application of this estate to the leading intention of his will, he made the devise contained in the seventeenth clause. Is there anything which indicates an intention to confide this matter to the discretion of the executors; to leave it to their judgment, whether this leading intention should or should not be carried into effect?” P. 425. “The testator no doubt had confidence in the good faith of his executors, and did not contemplate any failure on their part to perform the trust confided to them. He intended that they should apply for the act. An act was necessary to effectuate the end he had in view, and an application by his executors the means of obtaining it. But if they refuse to apply, and the end is attained in another mode, is the whole will to be defeated because this particular intent fails ?” P. 427. And the same judge quoted .with approbation from the case in 3 Peters 117 the words, that “where the court can see a general intent consistent with the rules of law, it is to be carried into effect, though the particular intent shall fail.”
We cannot fail to see how strikingly appropriate are these cases decided by this court, and what was said by the judges in them, to the case we now have under consideration. In this case the general intent of the testator was to devote the bulk of his great estate to the creation and perpetual support of a school upon the manual-labor principle, in his native county of Albemarle, for the education of poor oi’phan *126an<^ otber white children, residents of said county, whose parents should be unable to educate them. He had and expressed many particular intents in regard to the mode of effecting his general intent. He pointed 0U^ su°b public agencies then existing as, in his opinion, would be most likely to carry out his views. But he knew that those agencies were liable to continual change; and he actually provided for a particular change, which he seemed to anticipate might take place. And he certainly could not have intended that a change of any or all of those agencies should have the effect of defeating his general intent. He relied on the legislature to supply suitable means to take the place of those which he had marked out, but which it might destroy. And he therefore expressly provided in the 25th clause of his will that “ my executors are authorized and requested, if necessary, to petition the legislature of Virginia for the passage of any laws which may be requisite for more effectually carrying out the objects and purposes of this clause in regard to the school therein mentioned.” This petition was to .be made by the executors, as in the case of Dawson’s will, and of course the legislation contemplated was to be within the period prescribed by law for a good executory devise. The acting executor in this case did, in a reasonable time petition for such legislation as he was advised was necessary, and as the court below decided to be necessary, to effectuate the intention of the testator; and accordingly the act was passed which has been before referred to, and which seems fully to supply the necessary means for that purpose. But, if it should be found that it does not, the deficiency can at any time be provided for by additional legislation.
This testator, after providing bountifully for all *127those who seemed to' have any claims upon him, devoted the most of his immense estate, the fruit of a long life of labor and toil and self-denial, to the endowment of a school for the education of orphan and other poor white children of his native county of Albemarle. Few men ever did more for their native counties than did this testator, by this act, for his. He has conferred on it the best of all boons, the means of securing a good education to all its poor. May we not hope that all the benefits which he anticipated will be realized from his bounty. The matter rests with the legislature, and with the agents whom it has entrusted, and may hereafter entrust with the administration of this great charity. Fidelity on their part, seems to be all that is necessary to make it productive of the greatest possible good to those for whose good it was intended.
We are therefore of opinion, in any view of the case, that the 25th clause of the will of the said Samuel Miller is a valid disposition of the residuum of his estate as against his heir or heirs-at-law; that there is no error in the decree appealed from; and, without deciding any other question arising in the cause (it being unnecessary to do so), that the said decree ought to be affirmed.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, and also a copy (filed with the record in this cause) of an act of the general assembly approved February 24, 1874, entitled “ an act to give effect to a compromise of the litigation in respect to the construction and effect of the will of Samuel Miller deceased, *128and to establish the manual labor school provided for in the twenty-fifth clause of said will,” is of opinion and doth decide and determine, that the twenty-fifth clause of the will of said Samuel Miller deceased is a valid disposition of the residuum of his estate as against his heir or heirs-at-law. Therefore, without deciding any other question arising in the cause (it being unnecessary to do so), the court is of opinion that there is no error in the decree appealed from in this cause, and it is decreed and ordered that the said decree be affirmed, and that the appellants pay to the appellees thirty dollars damages, and their costs by them about their defense in this behalf expended.
"Which is ordered to be certified to the said Circuit court of the city of Richmond.
Decree aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481883/ | Boulbin, J.,
delivered the opinion of the court.
This case comes before us on a writ of error to a judgment of the Circuit court of Patrick county, in a case of ejectment. Both parties claim under the same person, James Nowlin; the plaintiff in ejectment, under a deed of trust executed by said Nowlin on 2d of March, 1846, and the defendant under a sale by the same party, made prior to the execution of the deed of trust aforesaid, accompanied by delivery of the possession of the premises, payment in full of the purchase money, and the execution and delivery of a deed or title bond for the property, which was mislaid and never recorded, and on adverse possession of the pro*140Perty under this claim and color of title for more than tweuty years prior to the institution of the suit.
On the trial, the plaintiff below made out a complete paper un(jer James Nowlin, proved the value of rents; and rested his case. The defendant then proved the sale above mentioned as the foundation of his claim or title; and proved further, that after he had purchased and paid for the land in dispute, as above* set forth, and had received a deed or title bond therefor, and had been put in possession of the premises, he “immediately went to work, erected a dwelling house thereon, and put up other buildings.” And then, in further support of his claim to the land, he introduced a witness, to prove that he had been in actual adverse and peaceable possession of the premises in controversy for more than twenty years before the institution of the suit; but the court excluded the testimony, being of opinion “that adversary possession without title could be shown before the execution of the deed of trust from Nowlin to Staples, but not afterwards.” To this ruling of the court the defendant below excepted, and his bill of exceptions was signed and sealed by the court. The case was then submitted to the jury, who rendered a verdict for the plaintiff below for the premises in controversy, and $25 damages.
The defendant below then moved the court to set aside the verdict and award him a new trial, because the plaintiff had wholly failed to prove that the defendant was or ever had been in possession of the premises claimed. This motion was overruled by the court, and judgment was entered for the plaintiff below in accordance with the verdict; and, thereupon, the defendant below again excepted.
To this judgment a writ of error was awarded by a judge of this court, on which the case is now before us.
*141It is very clear that the possession of a mere intruder on the land of another, without pretence or color of title, no matter how long such possession may continue, will not be deemed in law adverse to the title of the true owner, and can never ripen into a good title. But it is equally clear, that possession under color and claim of title does amount to adverse possession; and if held long enough will, under our laws, ripen into a good title; and “it has never been considered as necessary to constitute an adverse possession that there should be a rightful title.” Adams on Ejectment, appendix, p. 552, and cases there cited. “ Adverse possession is a possession under color and claim of title.” Ibid, p. 553, and cases cited. And it is wholly immaterial whether this claim of title be “ under a good or a bad, a legal or an equitable title.” Shanks v. Lancaster, 5 Gratt. 510.
This latter proposition should be qualified, however, by stating that 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 a legal title. See opinion of this court delivered by Judge Allen, in Clarke v. McLure, 10 Gratt. 305. The case is different, however, when the defendant in ejectment or vendee claims absolute title under a deed purporting to convey title. In such case he enters and holds adversely to all the world. In the language of Judge Allen, in Clarke v. McLure, he enters and holds “ as vendee of the absolute estate, and not in subordination to a title which he supposed to be extinguished by his own deed. The defendant holding in his own right, by a deed which purported to pass the legal title, there was nothing in *142re^a^on °f the parties which estopped him from showing the plaintiff had no title whatever.” Ibid, p. And on same page, commenting on the case of The Society for the propagation of the Gospel v. Clarke, 4 Peters R. 480, Judge Allen said: “The court held that the town claimed as grantee of the state; that their title, though derivative from and consistent with the plaintiff’s title, was a present claim in fee, in exclusion of the plaintiff’s, and their possession was adverse. This, therefore, was the ordinary case of a vendee, to whom a deed has been made. He claims through, but recognizes no subsisting title in the vendor.” And in commenting on another case, referred to in the same opinion, Bradstreet v. Huntington, 5 Peters R. 402, Judge Allen says: “ The court held, that one who enters under a deed purporting to convey to him an estate in fee, claiming to be sole and exclusive and absolute owner in fee thereof for forty years, may be regarded as holding adverse to all the world.” And the j'udge goes on to say : “In this the same principle is affirmed as in the other cases, the entering and holding was not in subordination to a subsisting admitted title in another.” These principles, he says, are entirely consistent with the principles established by this court in the case of Williams v. Snidow, 4 Leigh 14. “They establish the rule as the law of that tribunal, that a person having complete legal title and possession, or entering under a deed purporting to convey the legal title, and holding the exclusive possession, is considered as holding adversely to all the world, including those from whom his title an,d possession are derived.
The entry, or the holding in such case, imports no recognition of a subsisting title in another, by whose permission and in subordination to whose subsisting and continuing title the party enters and holds.” And *143he attributes the same effect to a defective conveyance, believed to be good by the parties. The continuing title of the grantor is not recognized by taking posses-' sion under such a deed, “the quo animo with which he enters and holds is the same as if the conveyance clothed him with the complete title; and, therefore, such possession, so taken and held, may be adverse to ■the legal owner.” "When the contract is executory, however, and the legal title is left with the grantor for future conveyance, the privity between the parties forbids the idea of adverse holding.
Whether the contract is executory or executed, whether the defendant or vendee claims title under an absolute deed or not, is a question of fact for the jury, and not of law for the court. Adams on Ejectment, appendix, p. 600, and cases there cited.
Now, the proofs in this case show that prior to the execution of the deed of trust under which the plaintiff below claims “the said James Nowlin bargained and sold the said tract of land to his son, who was then seventeen years of age, received the entire purchase money, executed a deed or title bond thereto, which was lost or mislaid and never entered of record, and delivered it to the said Columbus Nowlin, and put him in the possession of the premises, who immediately went to work, erected a dwelling house thereon and put up other buildings.” The defendant below then offered a witness to prove that he had been in actual, adverse and peaceable possession of the land thus acquired, for more than twenty years before the institution of the suit. The court excluded this testimony; being of opinion, as above stated, that “adversary possession without title could be shown by the defendant before the execution of the deed of trust from Nowlin to Staples, but not afterwards.”
*144How a possession conceded by the court to be adJ versary against the father before the execution by him of the deed, could cease to be adversary against the ^rus^ee ajier execution of the deed of trust, withou(; action or consent on the part of the son, we are wholly at a loss to conceive. It would seem to be much more reasonable to hold the converse of the proposition to be true—that there was no such actual privity between the son and the trustee as should prevent the former from holding adversely to the latter— whilst as between the son and father on the facts proved, there might perhaps, in one aspect of the case, be such privity. But, however that may be, and without deciding what privity might exist between the father and son, or the grantee of the father and the son, should the jury believe from the testimony that the claim of the son was under a title bond and not a deed; it is perfectly clear under the principles of law above laid down, that if the claim was under a deed, purporting to convey the title to the property, whether recorded or not (which is wholly immaterial to its validity as a deed as between the parties), an exclusive possession under such title is adverse not only against the grantor himself, but against all the world. Whether the claim of the plaintiff in error in this case was under a deed or a title bond was purely a matter of fact for the consideration of the jury. If the claim was under a deed, although not recorded, the evidence of adversary possession was clearly admissible, and the period of the continuance of such possession offered to be proved was, under the Virginia statute of limitations, more than sufficient to constitute a good title, and bar the demand of the defendant in error. By the action of the Circuit court the plaintiff in error was deprived of this defense, *145and the case, in effect, was taken from the jury and decided, both on the facts and the law, by the court. In this we are of opinion that the Circuit court erred. The judgment must therefore be reversed, with costs to the plaintiff' in error, the verdict set aside and a new trial awarded, and the cause remanded to the Circuit court with instructions on the same or a like state of facts to admit the excluded testimony.
Judgment Eeversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481884/ | Christian, J.,
delivered the opinion of the court.
The act of the general assembly passed Pehruary 12th, 1866, requiring the hanks of the commonwealth to go into liquidation, was the subject of judicial con*380struction and interpretation by this court in tbe case of “ Exchange Bank v. Knox,” and “ Farmers’ Bank v. Anderson,” 19th Gratt. 739; which cases were after-wards reaffirmed in “Saunders v. White,” 20 Gratt. 327. By these decisions it was held—
1. That the act forbids and prevents all preferences among the creditors of the bank.
2. That a debtor of the bank cannot set off notes of the bank bought up by the debtor after the execution and recording of the deed and notice thereof to the debtor.
3. The banks being utterly insolvent, the trustees are the trustees of the creditors, not of the banks, and are purchasers and assignees for value of all the property and effects of the banks for the benefit of the creditors.
4. Though the charters of the banks require them to take these notes in payment of debts due to them, this does not authorize debtors of the bank to pay their debts in the notes of the bank, bought up after the execution and recording of the deeds conveying their assets to trustees for the benefit of their creditors, because the debts are no longer due to the bank but to the creditors of the bank.
These principles must govern the case now before us. If there was no other plea but payment and set off, this case would be precisely the same as those reported in 19 and 20 Grattan. There was, however, in this case a plea of tender, or what the learned •counsel for the appellee calls a special plea in the nature of a plea of tender; and it is insisted that this plea, and the evidence to sustain it, distinguishes this from the decided cases, and withdraws it from the operation of the principles above stated.
Respect for the opinion of the able and learned *381judge who decided the case in the Circuit court, and for the learned counsel who maintain that view in argument here, requires a brief consideration of the points raised. The suit is brought upon, notes due the Valley Bank, of which the defendant, James Marshall, is endorser.
At the June term of the Circuit court the defendant pleaded payment and set off, and filed with his plea of set-off notes of the Bank of the Valley to the full amount upon their face value of the plaintiff’s claims. These bank notes were not held or owned by the defendant when the notes sued upon came into the hands of the trustee, but were acquired by the defendant aeter the defendant’s notes came into the hands of Fant, as receiver, and after the institution of this suit, and after knowledge of the assignment to Brent, trustee. Upon the filing of this plea of set-off the cause was continued from term to term until July term 1872. At that term the defendant tendered a plea in the following words: “ The defendant for further plea states, that pursuant to a decree and order of the Circuit court of the United States, made in the cause of the Merchants Bank of Baltimore v. The Bank of the Valley of Va. et al., in which case the said Fant was appointed receiver, dated day of September 1869, herewith exhibited, he, the said defendant Marshall, did heretofore, to wit, on the day of 1870, offer to pay the whole sum with interest and costs claimed in the plaintiff’s declaration in circulating notes (commonly called bank notes) issued theretofore, and put in circulation by the said nominal plaintiff to the said Fant as receiver; which offer was by said Fant refused, saying that he would not receive said circulation; and said defendant brings said money in court with this plea, and has already filed the same *382with his plea of set-off. Wherefore he says, that he has fully tendered the whole sura claimed by the plaintiff in a currency which he was bound by said decree to take in payment; and this he is ready to verify,” &e., &e.
To this plea the plaintiff demurred; but the court overruled the demurrer: and thereupon the plaintiff replied generally. A jury was waived, and all' the matters of law and fact submitted to the court. And the following judgment was entered: “And the parties waiving a trial of the issue by a jury, agreed to put themselves upon the judgment of the court; and being fully heard, it is the opinion of the court, that the defendant hath paid the debt and interest in the writ mentioned, by the payment of money into court since the institution of this suit. Therefore it is considered by the court that the plaintiff may have execution for its costs about its suit in this behalf expended ; and as to said debts and interest the defendant go thereof without day,” &e. To this judgment a writ of error and supersedeas was awarded by this eourt.
The pretension of the appellee (the defendant in the court below) is, that he is discharged by his tender of the circulating notes of the Bank of the Talley, because of the following order entered in the Circuit ■court of the United States, by Judge Underwood, on the 21st September 1869, before the decision of the court in Exchange Bank &c. v. Knox, 19 Gratt. 789, to wit: “It is ordered and decreed by this court, that the receiver in this cause be and he is hereby authorized to receive the bank bills or circulating notes ■of the Bank of the Talley in payment of all notes, bills discounted or receivable, or other debts of any *383kind whatsoever, due to said Bank of the Valley and now in his hands as receiver.”
I do not deem it necessary to enter upon the discussion of the question argued by the counsel here, whether this order was merely permissive, or mandatory and imperative.
Conceding that the order of Judge Underwood was imperative on his receiver, yet when the judgment of the Circuit court of Frederick was entered {July term 1872) this order of Judge Underwood had been rescinded by Judge Bond, who followed the decision of the Supreme court of this state, which had declared that a debt due to the bank could not be paid in the depreciated notes of the bank, acquired after notice of the assignment of the assets of the bank.
This suit having been brought in a state court, must be governed by the laws of this state as expounded by this court.
It is urged, however, that the defendant ought to be protected because he acquired these depreciated notes, and was induced to purchase them in consequence of the order of Judge Underwood authorizing the receiver to take them in payment of debts held by the bank.
But the proof shows that Mr. Marshall in acquiring these notes, had no reference to the order of the said Circuit court of the United States; but that they were acquired by him because he was firmly of opinion that these notes of the bank could be pleaded as a set-off to the notes the bank held of which he was endorser; and the notes filed with his plea of tender are the same notes which he had before filed in his plea of set-off.
Mr. Barton’s deposition proves conclusively that Mr. Marshall did not acquire the notes filed with his plea of set-off and afterwards filed (the same notes) *384with his plea of tender, because of the order of Judge x ' 0 Underwood; but because, as Mr. Barton states, that he (Marshall) was confident that this court would hold that the debtors to the bank could pay their indebtedness with the depreciated notes of the bank. There is nothing in the record to show that Mr. Marshall ever saw or heard of the order of Judge Underwood authorizing his receiver to take the notes of the bank. But if he had, this was an erroneous order, so declared by Judge Bond of the Circuit court and revoked by him. He certainly could acquire no rights under an order confessedly erroneous, and revoked by the court which made it.
When the plea of tender was filed (July 2d, 1872,) this court had decided that a debtor of the bank could not pay his debt by notes of circulation acquired after notice of the assignment by the bank of its assets; and the Circuit court of the United States had, on the 23d November, 1871, revoked the order of Judge Underwood, and after referring in its order to the decision of this court in Exchange Bank v. Knox, and Farmers’ Bank v. Anderson, 19 Gratt. 739, and adopting these decisions as the law of the land, had prohibited the receiver “ from receiving any circulating notes of the Bank of the Yalley, except in cases where such circulating notes were acquired by the debtors before any assignment was made by the Bank of the Yalley to a trustee for the benefit of its creditors.”
The Circuit court of Frederick, however, notwithstanding the decision of the court above referred to, and the order of Judge Bond in accordance therewith, appears to have felt itself constrained, by the original' order of Judge Underwood, authorizing its receiver to take the depreciated notes of the bank in payment of debts due the bank.
*385No doubt this conclusion was adopted by the learned judge upon the theory that the Circuit court of the United States having jurisdiction of the subject, and having settled the mode of payment of debts due to the bank, the parties who acted under this order were fully discharged when they complied with it. But it must be remembered, that when the plea of tender was filed, the order referred to had been declared erroneous, and had been revoked by the same court which had entered it. The notes tendered by the defendant were not a legal tender in any sense; but, on the contrary, were such notes as both the court and the Circuit court of the United States had declared should not be received in payment of debts due the bank, because they (it is conceded) were acquired after notice of the assignment by the bank of its assets for the benefit of its creditors.
The court is therefore of opinion that the judgment of the said Circuit court of Frederick, declaring-that “the defendant has paid the debt and interest in the writ mentioned, by his payment of money into court since the institution of this suit,” is erroneous, and that the same be reversed and annulled; and that a judgment be entered for the plaintiff in conformity with the principles herein declared.
Staples, J., dissented.
The judgment is as follows:
This day came again the parties by their attorneys, and the court, having maturely considered the transcript of the record of the judgment'aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said judgment is erroneous. Therefore it is considered *386that the same be reversed and annulled, and that the plaintiff in error recover against the defendant in error its costs by it expended in the prosecution of its writ of error and supersedeas aforesaid here. And this court now proceeding to render such judgment as the said Circuit court ought to have rendered, it is further considered that the plaintiff recover against the defendant the sum of eleven hundred dollars ($1,100), the debt, and $5.56, the costs of protest in the declaration mentioned, with legal interest on $900, part thereof, and $2.76 costs of protest, from the 26th day of June 1861, and on $200, the residue, and $2.80 costs of protest, from the 26th day of April 1861, till payment, and the costs expended by the said plaintiff in the prosecution of the suit in the said Circuit court. Which is ordered to be certified to the said Circuit court of Frederick county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481885/ | Moncure, P.,
delivered the opinion of the court.
The court is of opinion that the following may be laid down as sound and well settled principles of law, and are applicable to this case, viz:
1st. A married woman is regarded by a. court of equity, as the owner of her separate estate; and, as a general rule, the jus disponendi is an incident to such estate; that is, it is an incident thereto, unless, and ’except so tar as it is denied or restrained by the instrument creating the estate.
2d. But it is subject to such limitations and restrictions as may be contained in such instrument; which may give it sub modo only, or withhold it altogether.
3d. In regard to separate personal estate, and the rents and profits of separate real estate, this power of disposition, if it be unrestrained, may be exercised in the same way, by deed, will or otherwise, as if the owner were a feme sole. But in regard to the corpus of separate real estate, it can be disposed of only in such mode, if any, as may be prescribed by the instrument creating the estate; or, unless prohibited by such instrument, in the mode prescribed by law for the alienation of real estate by married women.
4th. While the rents and profits of a wife’s separate real estate remain subject to her power of disposition as personal estate so long as they continue in that form, yet, when they are, by the wife, or by her direction, converted into realty, such realty can be disposed of only as other separate real estate of a married woman; that is, in the mode, if any, prescribed by the instrument by which it is conveyed to her or to trustees for her separate use; or, unless prohibited, or except so far as it may be restrained by the instrument, in the mode prescribed by law for the *401alienation of real estate of married women. She may-have the realty, acquired by means of such rents and profits, conveyed for her separate use, subject to any restrictions she may choose to prescribe in regard to the mode of alienation, or, -if she prefer it, without restriction at all.
Other principles of law on the subject, no less sound or well settled, might here be laid down, but it is unnecessary for the principles of this case. Hor is it necessary in this case to express any opinion upon the much vexed and yet unsettled question, whether, where the instrument creating the separate estate, prescribes a mode of disposing of the estate, that mode is in exclusion of any other; upon the principle of expressio unius est exclusio alterius. Certainly, the instrument may, either expressly or by plain implication, exclude any other.
The court is further of opinion that in regard to the two hundred acres of land in the county of Augusta, conveyed by the deed of the 21st day of July, 1856, in the proceedings mentioned between Samuel B. Brown of the first part, Mary Ann Brown, his wife, of the second part, and Thomas J. Michie and Wm. H. Harman of the third part, the said land could be disposed of either by an act to take effect during her lifetime, or by an act to take effect after her death. The only mode by which it could be disposed of, in order that such disposition might take effect during her life was under that trust of the deed which declares that the “ said Mary Ann Brown may by writing, under her hand and seal, attested by two witnesses, or acknowledged before a justice of the peace, direct said trustees (Michie and Harman) to sell said tract of land, or any part thereof; but said trustees shall invest and hold the proceeds of said tract of land for the sole use *402and benefit of said Mary Ann Brown as aforesaid.” The only modes by which it could be disposed of, in order that such disposition might take effect after her death, was under that trust of the deed which declares that, on the death of the said Mary Ann Brown, the said trustees shall convey said tract of land, or dispose of the proceeds thereof, if it, or any part of it, should be sold during her lifetime, as the said Mary Ann Brown shall direct, by will duly executed as if she were a feme sole, or by other writing attested by at least three witnesses.”
The deed expressly provides, that “ if she fail to make any such will, or to execute any such writing, then the said trustees shall convey the said tract of land,” &c., “to all such children of said Mary Ann Brown born of her marriage with the said Samuel B. Brown, as may be then living, and to the descendents of such as may be dead, per stirpes, whether such children be now in esse or hereafter to be born of such marriage; or, in case no such issue shall be then in being, to the right heirs of the said Mary Ann Brown.” She died without having made any such will, or executed any such writing; and under the limitation of the said deed, the corpus of the trust supject devolved on her children then living born of her marriage with the said Samuel B. Brown, of which there were several, there being no descendants then living of any such children as were then dead. The only mode by which she could possibly have defeated the said limitation in favor of the said children, was to dispose of the corpus of the trust subject by will, duly executed, as if she were a feme sole, or by other writing attested by at least three witnesses, as prescribed by the said deed. . She had no right to spend the proceeds of sale, or any part thereof, of the corpus of the trust subject, or any *403part thereof, if sold in her lifetime; but it was the duty of the trustees to invest and hold the proceeds of any such sale for the uses and purposes declared in said deed.
The court is further of opinion that the exchange in the proceedings mentioned, of the said two hundred acres of land for the American Hotel property was a valid sale of the said two hundred acres of land, and a valid investment of the proceeds of said sale in the said American Hotel property under the trusts and powers created by the said deed, whereby the said American Hotel property, to the extent of the said investment, to wit: the sum of $12,000, the agreed value in said exchange of the said two hundred acres of land, became subject to all the trusts and powers created by the said deed, just as if the said hotel property had been the subject conveyed by the said deed instead of the said two hundred acres of land.
The court is further of opinion that the said American Hotel property, to the extent to which the purchase money thereof was paid by the said Mary Ann Brown out of its profits after the said exchange was made, became also the separate estate of the .said Mary Ann Brown. So that the whole of the said hotel property thus became the separate estate of the said Mary Ann Brown, subject, however, to the payment of the balance of the purchase money yet remaining due and unpaid to those who sold the property to her or her trustees.
The court is further of opinión that after the said exchange was made, there was no other sale or investment under the trust and powers created by the said deed; but the said American Hotel property, subject to the lien thereon as aforesaid, having become the separate estate of the said Mary Ann Brown as afore*404said, and not having been disposed of by her in her lifetime or at her death, belonged, at the latter event, which happened in the year 1868, to her children, who were entitled thereto, either under the limitation contained in the said deed, or as her next of kin, and in the same proportions, whether entitled in one or the other of these two ways.
To the extent that the said property represents or was purchased with the original trust subject, it was, of course, subject to the limitations and restrictions declared by the said deed. To the extent that the purchase money was paid out of the profits of the property after the said exchange was made, it seems also to be subject to the said limitations and restrictions. The profits of the separate estate, whether it be the original subject or that for which it was exchanged, were as they accrued, separate personal estate of Mrs. Brown, and might have been disposed of by her according to her pleasure, as if she had been a feme sole. She had power to spend them, or she had power to invest them in real or other estate, and on such trusts and limitations as she thought proper. She chose to invest them in real estate, to wit: in the American Hotel property. They then ceased to be personal estate, subject to her general right of disposition as of separate personal estate, and became real estate, subject only to such right of disposition as she had, either under the powers created by the original deed, or under the law in regard to the real estate of a feme covert. The case of West v. West’s ex’ors, 3 Rand. 373, shows that while the profits of her real estate before they were invested were personal estate, subject to her general jus disponendi, yet so soon as they were invested by her in real estate, they became thenceforward separate real estate, sub*405ject only to such a jus disponendi as belongs to such an estate. Were they invested in the said estate generally, without any limitations or restrictions, or were ' they invested under any, and if any, what limitations or restrictions? She had the right to consult her pleasure in this respect, and it seems that she intended to invest the said profits in the said real estate, subject to the limitations and restrictions declared by the original deed. There was an exchange of the original trust property for the American Hotel property, and no doubt it was intended that the latter should he held on the same trusts on which the former had been held. Ho other trusts were declared. There was no reason for holding a part of the property under those trusts and the residue under other trusts, and if such a different holding had been intended, it is reasonable to believe "-that the intention would have been declared. It seems that mutual deeds were executed for the property exchanged, but they are not in the record. There is in the record, however, a copy of the decree made in the case of Breckenridge’s creditors v. Breckenridge’s adm’rs, &c., by which commissioners were appointed to convey to Thomas J. Michie and William H. Harman, trustees of Mary Ann Brown, the “American Hotel property”; thus showing that it was intended that the whole property should be conveyed to the said trustees, subject to the trusts of the deed by which they were created trustees.
But however that may be, the effect is precisely the same, whether that part of the property in which the profits were invested be subject to the limitations and restrictions of the original deed, or be separate real •estate free from such limitations and restrictions; and it must, as we have seen, be one or the other. Pre*406cisely the same persons would be entitled to it as the heirs-at-law of Mary Ann Brown, who would be entitled to it under the limitations of the deed. It was converted from personalty into realty; and the surviving husband has no interest in the subject as teuant. by the curtesy, as is clearly shown by Judge Carr in the case of West v. West’s ex’ors, supra. That case is one of very great importance, has a strong bearing-upon this, and, indeed, seems to be conclusive of it. It was decided by four judges, who delivered seriatim opinions, and there was no disagreement among them. It is therefore unnecessary to determine the question,, whether the American Hotel property, so far as it represents, or was purchased out of the rents and profits thereof, received or realized by the said Mary Ann Brown as aforesaid, was subject to the limitations and restrictions declared by the said deed, or was her separate real estate, free from said limitations and restrictions.
The court is further of opinion that the appellants purchased the said American Hotel property not of the said Mary Ann Brown, nor of her said trustees, Miehie and Harman, or either of them, but of the appellees, A. S. Lara and Samuel B. Brown, Jr., who claimed to have derived it from Samuel B. Brown,. Sr.; and the whole amount of the purchase money contracted to be paid by them, to wit: $80,000 in Confederate currency, was paid by the said purchasers to the said Lara, -for himself and the said Samuel B. Brown, Jr., on his giving a bond of indemnity with surety; and no part of the said purchase money was paid to the said Mary Ann Brown, or ever enured to her benefit. The acts and conduct of the said Mary Ann Brown, and of her trustees, the said Miehie and Harman, after the said purchase was made, and the *407purchase money was paid as aforesaid, which are relied on by the appellants as having the effect of confirming their title, and making it good under the trusts and powers of the said deed, can have no such effect. There was no sale and conveyance of the property to them by Mrs. Brown or her said trustees in the mode prescribed by the said deed, or in the mode prescribed by law for the conveyance of the real estate of a fem.e covert; and there was no contract between her and her said trustees, or any or either of them, and the appellants for the sale and conveyance of the said hotel property, which can be enforced by a court of equity. The deed of trust conveying the two hundred acres of land to Michie and Harman was duly recorded, and was known to the appellants when they became the purchasers of the American Hotel property, and it was known to them that the said property was subject to the trusts of the said deed. They, no doubt, confided in the ability of their vendors to make them a good title, and in the security afforded them by the indemnifying bond: and they chose to run the risk for the sake of the advantages which they hoped to derive from the purchase. Mrs. Brown, being a feme covert, had no power to convey the property nor to contract in regard to it, except in strict pursuance of the powers conferred by the said deed, or at least of the powers conferred by law in regard to the conveyance of real estate of a feme covert; and therefore all her acts, and all instruments signed by her in reference to a transfer of the said property, or any interest therein to the appellants, were utterly null and void. Hor had the trastees any power to sell the property, or to sanction the sale of it to the appellants, except in pursuance of the deed of trust; nor does it appear that they had any intention of doing so; and certainly *408the husband, Samuel B. Brown, Sr., had no such power. The deed was intended to secure the property against his power and control, and even against the power and control of his wife, except under the restrictions and limitations declared by the deed. Her acts might be influenced, as they no doubt were, by him; and it was therefore intended to afford her protection even against her own acts, except as aforesaid. If she had no power to convey the property otherwise than as aforesaid to the appellants or their vendors, she had no power to make a contract for such a conveyance, which a coui’t of equity could enforce, much less could any voluntary promise she may have made, without any valuable consideration, to confirm the title of the appellants, be so enforced. But it does not appear that she ever made such a promise, at least until after they had made the purchase of Lara and Samuel B. Brown, Jr., paid the purchase money, and taken a bond of indemnity to secure the title. The children of a marriage, when provided for by a settlement, whether it be ante or post-nuptial, are always regarded as being embraced within the consideration of the settlement; and the rights thereby secured to them cannot be released by the wife by any instrument however formal. So far from any imperfect act of hers, founded on no valuable consideration,flowing to her or to them, being regarded as a defective execution of a power which a court of chancery will help, it would rather be regarded as an abuse or perversion of power on which that court will frown.
The court is further of opinion that it does not sufficiently appear that the said purchase money, or any part thereof, was invested in the purchase made by the said Samuel B. Brown, Sr., and Lara, of land and slaves in Georgia-, or was applied to the payment of *409the purchase money thereof; and, at all events, that the appellants are entitled to no further relief than has been afforded them by the decree of the Circuit court, in giving them the benefit of the rents of the said American Hotel property after their purchase thereof, and until the death of the said Mary Ann Brown; and also the benefit of the shares and interest of the said Samuel B. Brown, Jr., and A. S. Lara in the said property.
The court is therefore of opinion that there is no error in the decree of the Circuit court, and that it ought to be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481886/ | Christian, J.
delivered the opinion of the court.
This is an appeal from a decree of the Circuit court of Augusta county. The record discloses the following facts: Peter- Crickard, late of said county, departed this life on the 15th day of August-, 1857. He left a will, which was duly admitted to probate in the County court of said county, and which disposed of a large estate, real and personal. He appointed as an *412executor and executrix Henderson M. Bell and Ms wife Rose Ann Crickard. His wife having renounced the provisions of said will, and also her right to act as executrix, Bell became the sole executor, and proeeeded to administer the estate of his testator, and to ’ execute the trusts imposed by said will. ■ The testator directed a sale of the whole of his real and personal estate, except a small portion of his real estate, which was specifically devised. Leaving no issue, he gave numerous legacies to his collateral kindred, and directed that his executors should invest the sum of $6,000 in bank or state stocks, or well secured bonds, for the benefit of his wife. His wife having renounced the provisions of the will made for her, and claiming her dower in the real estate of the testator, negotiations were entered into between her and the executor, by which it was agreed that she would receive her interest in the purchase money, instead of having dower assigned to her in the real estate. The widow, although renouncing the provisions of the will made for her, expressed the desire that her husband’s disposition of his estate might be carried out as nearly as possible, notwithstanding her renunciation of the will.
On the 20th July, 1857, the executor, Henderson M. Bell, filed his bill in the Circuit court of Augusta, setting forth, that before the renunciation of the will by the widow they had sold a part of the real estate; but that before the expiration of twelve months after the probate of the will Mrs. Crickard had appeared in open court and renounced the provisions of the will made for her by her husband, and resigned her executorship of said will. He filed with his bill her agreement in writing, by which she stipulated that the said •executor should proceed, in execution of the will, to make sale of the real estate directed by said will to be *413sold, free from all incumbrance of her dower, upon condition, that the executor’s proceedings under said will should be reported to a court of competent jurisdiction, and that she should receive a fair equivalent for her right of dower in the whole real estate, and her distributive share in the personal estate and slaves of said Peter Crickard, deceased. His bill prays, that the court .will ascertain and assign to Mrs. Crickard, either in kind or by proper commhtation, her dower right in the real estate of her husband, and her distribution in the slaves and other personal property left by him. He also asks that his accounts as executor may be referred to one of the commissioners of the court, who may be directed to state and settle the same; and that said commissioner be also directed to distribute among the several legatees under the will such portions of his estate as may appear to be in the hands of the executor, and also such portions as might be thereafter realized, upon such principles and terms as to the court might seem equitable and proper to direct.
Under certain proceedings in this suit, the commuted cash value of the dower right of Mrs. Crickard was assigned to her, and an account of the transactions of the executor was settled before a commissioner of the court.
This account showed a balance in the hands of the executor of $9,543.48, on the 1st day of September 1859. Ho further proceedings connected with the matter now in controversy were taken in the cause until the 9th day of June 1863, when the executor filed the following petition: “ To Hon. L. P. Thompson, judge. Tour petitioner, Henderson M. Bell, executor of Peter Crickard, deceased, respectfully represents to the court, that he holds in his hands, *414under the will of said Peter Crickard, certain funds # 7 ♦ for the benefit of his legatees, as follows;” and then follows a list of the names of the numerous legatees, . 0 with the amounts due to each severally, the whole amounting to the sum of $7,078.86; “ which he asked the authority of the court to invest in the bonds of the Confederate States, uuder the act of the general assembly of Virginia in that case made and provided, passed June 9th, 1863.” Signed H. W. Bell, executor of Peter Crickard, deceased. Upon the coming in of this petition, on the same day it was presented, to wit: on the 9th day of June 1863, the following order was entered by the said Circuit court: “ On the motion of Henderson M. Bell, the executor of Peter Crickard, deceased, who filed his petition praying leave to invest $7,078.86, belonging to the estate of the decedent, or to the legatees mentioned in said petition, leave is granted to him to make the investment according to the prayer of his petition.”.
In accordance with this order the executor invested in the bonds of the Confederate States, bearing seven per cení, interest, the amount referred to in the petition and order. Whether the parties interested in this petition of the executor had notice of his application, or whether they were present, either in person or by counsel, the record fails to disclose. The presumption is that they had no notice, and were not present or represented by counsel, or the fact would have appeared.
Thus matters stood until after the close of the war, when, on the 10th of January, 1869, an order was •entered by the said Circuit court, directing the executor to settle before one of the commissioners of said •court an account of his administration of. the estate of Ms testator, Peter Crickard. Before any account *415was taken under this order, a petition was filed by James Crickard and his children (for whose benefit the testator had directed a certain sum to be invested by his executor), together with other legatees of said Peter Crickard, in which said petition, after setting forth the provisions of the testator’s will, the fact that upon a regular settlement of the accounts of the executor made and returned in this cause, and to which no exception was filed, there appeared to be in the hands of the executor for distribution among the legatees on the 1st day of September, 1859, which was to carry interest from that day, the sum of $9,543.48. And after referring to the order entered upon the motion of the executor in 1863, directing him to make investment in Confederate States bonds, insist that said order was illegal and void, and of no binding force or effect whatever on the petitioners; that the fund received by the executor came into his hands in a sound currency; that having failed either to pay it over, or to invest it, as both the law and the will of the testator required, but retaining it in his own hands, he cannot now discharge his obligation by the worthless securities in which he invested—a currency depreciated at the time of the investment to less than one-tenth of the value of the funds which came into his hands. They further insist that the act of March 1863, under which the order of June 1863 was entered, has no application to such a case; and they pray that the executor may be compelled to account to them for good money, in discharge of the balances ascertained to be due them by the report of the commissioner referred to, with legal interest upon the respective balances from 1st September, 1859; and that the sums ascertained to be due the petitioner, James Crickard and his children, may, under the order of the court, *416l°ane4 °ut and invested in good real estate securities, in accordance with the trusts and limitations of the will of Peter Crickard, deceased.
They further ask, that if the court deem it necessary or ProPer f°r the making up of a more formal issue, that a cross-bill should be filed, then they pray that their petition may be considered, received and read as a cross-bill, and that the said executor may be required to answer its allegations in due form, &c.
On the 6th July 1871, the cause came on to be heard on the papers formerly read and the petition above referred to; and thereupon a rule was awarded against the executor to appear on the first day of the next term to show cause, if any he can, why he should not pay over to the legatees of said Peter Crickard, the balances ascertained to be respectively due to each by Commissioner Hendren’s report, No. 2, filed August 13th 1859, and confirmed by a decree entered on the 30th Nov’r 1859. The executor filed his answer to this rule on the first day of the following term. In this answer he avers that he had fully paid off to all the parties entitled to receive from him the amounts ascertained to be due by the report of Commissioner Hendren, referred to in the order of the court, shortly after the confirmation of said report; that the parties to whom be did not so pay were not competent at the time to receive the amounts reported in their favor; that the amounts which he could not pay over were invested by him according to his best judgment and discretion in the management of his trust, and the interest paid over to the parties entitled, or to their use when they could not themselves receive the same; that the war coming on, these investments became, beyond the control of respondent, converted into Confederate money, and on the 9th day of June *4171863, respondent being unable to pay over or loan out the money then in his hands, filed his petition in this cause, asking- the then judge of the court for leave, under the provisions of the act of assembly passed March 5th, 1863, to invest the funds in the bonds of the Confederate States of America, that being the only investment available. That the leave was granted by the decree entered on the 9th June 1863. Bespondent in pursuance of this leave invested the fund then in his hands in the said bonds, which he now has in his possession. Bespondent continued to collect and pay over to the parties the interest upon this investment as long as it was available.” That “since the close of the war the fund thus invested having been entirely lost, respondent was desirous of making some compromise with these parties. He felt that the loss of the fund was by no fault of his own, but was the result of causes beyond his control; and, although he had lost heavily of his own property, in common with his neighbors, yet he had not lost all. He, therefore, in a spirit of liberality, as he believed, proposed to these parties to divide the loss with them; or in other words, to pay one-half of the amount coming to each of them. That this proposition was accepted by much the larger number of the parties interested (respondent believed by all who were competent to accept), and that respondent has paid over to said parties the full amount coming to them under this arrangement, as he is prepared to show before a commissioner of the court.” He expressed his willingness to make the same arrangement with the other parties. After protesting that he is not legally or equitably bound to pay over any portion of the fund which he had invested under the order of the court, he says he is prepared to render such account as the court may *418direct. Upon this answer to the rule awarded at the previous term, the court entered a decree directing one of its commissioners “to take an account of the payments made by H. M. Bell, the executor, to the legatees of Peter Criekard, deceased, and how the funds remaining in his hands were and are invested.”
In execution of this order, the commissioner, to whom the matter was referred, returned to the court several alternate statements, showing, according to the principles adopted by the commissioner in making each several statement, different balances due by the executor to the legatees. The one adopted by the court, as ascertaining the correct balances due from the executor to the legatees, and designated in the decree as “the first alternate statement,” rejected the investment made by the executive in Confederate States bonds, and holding him bound for the amount found due the legatees by commissioner Hendren’s report on the 1st September 1859, to-wit: the sum of $9,543.48, gives him credit by the sums paid to the legatees in Confederate money .at its face value (it being for interest and small sums accepted by the parties), and also recognized as a full settlement the compromises which had been made by the parties who were sui juris, reported the balances due to the legatees respectively, which still remained unsettled. The executor excepted to this report, upon the ground that the commissioner failed to credit the executor with the amount invested by him in Confederate bonds. This exception was overruled, and the court entered a decree directing the executor to pay over to the legatees the sums found due to them respectively by said report, except as to James Criekard and his children. Por them the testator had made the following provision in his will: “ 6th. I give and bequeath to my *419brother, James Crickard, the house and lot in'which he now lives, in the town of Staunton, and the sum of $3500 in money, which bequest' is' intended for the ■use and support of said James Crickard and his family' during the natural life of said James, and after his death for the use and benefit of his children; and my executors are directed so to invest the said $3,500 as may in their judgment best conduce to the support and comfort of said James and his family,'and at his death to distribute the same among his children.”
As to this legacy, the court entered in its decree the following directions: “And James Crickard and. his children, who are entitled.to the fund created by the sixth clause of the will of Peter Crickard, deceased, having nominated Robert G-. Bickle as á suitable person to act as trustee and to take charge of said fund, and the court approving of said'nomination, it is therefore further adjudged and decreed that the said •H. M. Bell pay to said Robert G. Bickle $3,700.79; with legal interest on $2,561.10, part thereof, from ls.t day of June 1872, till paid. .But said ¡Robert G. Bickle shall not receive said fund .of said'Bell until he shall, have executed before the clerk of this court bond with good security in the penalty of $9,000, payable .to the commonwealth of Virginia, and conditioned for the .'faithful discharge of his duties in the preservation and management of said fund, according to the trusts imposed by. the. will of' said Peter Crickard; .deceased, and subject to, all future orders and decrees of .this court.”
: It was from, this decree that an appeal was allowed to, .this .court. .
. The court is of opinion that there is no! error in the ■decree of the Circuit court.' . •
.The law makes it the duty of an. executor, after he *420has paid the debts of his decedent’s estate, to pay over the legacies bequeathed by the will to those entitled receive them within'a reasonable time.
If the legatees are so situated, or from ahy other cause, there is no hand to receive the legacies from the executor, then it is his plain duty to invest the fund in safe interest-bearing securities to await the time when the same can be paid over to the legatee. If the executor fails to do this, and retains the fund in his own hands, he thereby becomes a debtor to the legatee, chargeable with legal interest, and he can no more than any other debtor discharge his debt in a depreciated currency when he received a sound currency, but must pay it in the same currency which came into his hands, or in one of equal value.
In the case before us the executor (according to the report of commissioner Hendren, not excepted to, and confirmed by the court,) had in his hands for distribution among the legatees, the sum of $9,543.48, on the 1st day of September 1859. For nearly two years before the commencement of the war this fund was in his hands. Why was it not paid over before there was any change in the currency? Or if some of the parties were infants, or so situated from other causes as not to be in a condition to receive their legacies, why was not such portion invested for them in some safe interest-bearing securities, which might have prevented loss both to him and to them? But in June 1863, nearly five years after the fund came into his hands, and which was paid to him in gold or its equivalent, he brings into the Circuit court, in Confederate currency, $7,000, and upon an ex parte order, made without notice to the parties interested, leave is obtained from the court to invest • that amount in Confederate bonds, for the benefit of the legatees, who *421were entitled to receive payment of their legacies in a sound currency. He is thus permitted to pay a debt of $7,000 in currency worth at the time less than $800.
The executor, both in his petition and answer to the rule, says that he asked leave of the court to make this investment under the provisions of the act of assembly passed March 5th, 1868. The act relied upon has no application to such a case as this. It has already received judicial construction by this court more than once. See Campbell’s ex’ors v. Campbell’s ex’or, 22 Gratt. 649, and Mead v. Jones, supra 347. In the first named case, the president delivering the opinion of the court says, p. 648: “ The act expressly provided that whenever a fiduciary had in his hands -moneys received in the due execution of his trust, which from the nature of his trust, or any cause whatever, he was unable to pay over to the parties entitled thereto, it should be lawful for him to apply by motion or petition to any judge, &c. The money was required to be in hand, and to have been received in the due exercise -of his trust, and he for some cause must be unable to pay it over to the parties entitled.” These three conditions must concur. In the case before us none of these conditions concur, but all are wanting. The money he received for the legatees was not in hand; for that was gold or its equivalent. The Confederate •money he proposed to invest in Confederate bonds was not received in the due exercise of his trust. The ■conversion of gold which he received nearly five years before into Confederate currency, was, no matter how converted, an undue and illegal exercise of his trust, and as to those parties who, from infancy or other causes, were not in a condition to receive it, it was the plain duty of the executor to have made investments *422for them before the war, in securities which were safe and valuable. The court is therefore of opinion that the act of March 5th, 1863, did not confer upon the Circuit court any authority to allow the executor in this ease to maté the investment in Confederate bonds.
But it is ai’gued by the learned counsel for the appellant, that independent of the act of March 5th, 1863, which is wholly relied upon by the executor in answer' to the rule, the court had the authoi’ity to make the order of investment entered June 9th, 1863. “That,” to use the language of the petition for appealj “ either by nature of the inherent powers of courts of 'chancery, or in accordance with the spirit if not the letter of the 24th section of chapter 132, Code 1860, it appearing to the court from the report filed and its own decree, that the moneys specially mentioned in' the petition filed on the 9th June 1863, were in the executor’s hands, the court had power and jurisdiction to order said moneys to be paid into court, to be invested or loaned out, or to make any order respecting the same which to such court might seem proper. And it is insisted that the order having been' entered in a pending cause, to which the legatees were parties, and having been made by a court of competent jurisdiction, having the parties before it, and having ■control of the fund, must stand until set aside upon a petition for re-hearing and review, or reversed upon ■appeal. *
■ ■ The conclusive answer to this position is, that the petition filed by the legatees, which is the foundation of all the proceedings against the executor, must be •treated as it is in effect a petition to review and set aside the order of June 9th, 1863. The very object of that petition was to get rid'of that order, which alone *423stood in the way of recovery against the executor, by showing that it was illegal and void; and the decree of the court appealed from is in effect a review and rescission of that order. The decree of the Circuit court makes special reference to that order, and in effect overrules and sets it aside, when it says: “The court is also of opinion that the said Bell received the assets of his testator’s estate in the year 1859; he ought now to account with the legatees for good money, and the alleged investment in Confederate bonds did not release said executor Bell from his responsibility to the legatees of said estate.” It is plain, therefore, from the petition and decree, that the object of the one and the effect of the other was a rehearing and rescission of the order of 9th June, 1863. It is equally plain that said order was erroneous and ought to have been set aside. It was entered on a petition ex farte in its character, and without notice to the parties interested. It was confessedly and on its face entered on a petition filed under the act of March 5th, 1863; and the court, in the absence of the real facts, might well presume that the funds which the executor asked leave to invest were such as the act authorized to be invested in Confederate bonds; that is, that they were received in the due exercisd of his trust, and that he was unable to pay over to the parties entitled. It is inconceivable to suppose that such an order ever would have been entered if it had been known to the court that the Confederate money which the executor proposed to invest represented a fund which he had received in gold nearly five years before.
We would not do the slightest injustice to the executor, and therefore will not fail to notice any ground upon which he rests his defence. In his answer, he says “ that the amounts which he could not pay over *424were invested by him according to his best judgment and discretion in the management of his trust, and the interest collected and paid over to the parties entitled or to their use when they could not themselves receive same; that the war coming on, these investments became, beyond the control of respondent, converted into Confederate money; and on the 9th day of June 1863, respondent being unable to pay over or loan out the money thus in his hands, filed his petition in this cause, asking the then judge of this court for leave, under the provisions of the act of assembly passed March 5th, 1863, to invest the funds in the bonds of the Confederate States of America.
The executor does not inform the court, though required to do so by its order, in what manner he invested the funds in his hands, which he declares in his answer “were invested by him according to his best judgment and discretion in the management of his trust;” nor does he offer any explanation of how “ these investments became, beyond his control, converged into Confederate money.” One of two things is certainly true; and in either event the executor is equally responsible. He either retained the money in his own hands, paying interest to the parties entitled, and regarded it as an investment in his hands for them; or he loaned it out upon securities of some sort. If he retained it, he became the debtor of the legatees'; and having received gold, cannot discharge his debt in a depreciated currency. If he loaned it out he had no right to receive it in • Confederate currency, depreciated in June 1863 to one-tenth of its face value. And if he changed the investment he had made, and suffered safe and solvent securities to become “converted into Confederate money,” he committed a devastavit, for which the law will hold him responsible. *425This has been expressly decided by this court, not only in the case of Campbell’s ex’ors v. Campbell’s ex’or, 22 Gratt. 649, above referred to; but in a number of cases where appeals have been refused, where the record and petition presented this precise question.
In any and every view we can take of the case, the loss consequent upon the investment in Confederate bonds must fall, not on the legatees, but on the executor, who caused this loss by failing to do that which both the law and the will of his testator required at his hands.
In coming to this conclusion, we do not mean in any manner to impute to the executor any fraudulent purpose or misconduct. His high character and standing, well known to this court, as well as his conduct since the loss occurred, in seeking to repair it, and taking upon himself a part of its burden, all repel any such idea.
We mean only, without reference to the motives or ■conduct of parties, to fix the responsibility where the law places it, and to lay the burtheu of the. loss upon him who caused it.
There is one other assignment of error which must be mentioned briefly; and that is, that there is error in the decree in appointing a trustee to receive that portion 'which was due from the executor to James ' Crickard and his children. It is objected, that inasmuch as the will appointed the executor trustee for these legatees, the court had no power to remove him and appoint another. The record shows that seven if not all of the parties interested, filed a petition to the court asking that Kobert G. Bielde might be appointed a trustee to take charge of and manage for them the trust fund created for their benefit by the sixth clause of Peter Crickard’s will. The court *426below granted the prayer of their petition and appointed the party whom they nominated as their trustee, requiring of him bond and security for the faithful discharge of his duties.
The court is of opinion that there is no error in this order. A court of chancery having trust funds under its control, may make such orders as may in its opinion be necessary-for its safety and proper administration. The manner of doing this must be left in a great degree to the discretion of the court having-charge of the fund. If the parties interested desire the appointment of another trustee, and the court thinks it necessary to a proper management of the trust fund, this court will not interfere, although it might think such an order unnecessary. It must be left to the discretion of the court of chancery having control of the fund and charged with its safety and proper administration.
' It may be observed, too, that the will did not in terms appoint Bell the trustee; but simply directed him as executor to carry out the provisions of the will in making the investment for James Crickard and his children. So that in point of fact there was no removal of the trustee and appointment of another.
The court is therefore of opinion that there is no error in the decree of the Circuit court of Augusta, and that the same be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481887/ | Anderson, J.
delivered the opinion of the court.
This is a bill in equity to enforce the specific performance of a contract for the sale of land. The plaintiff alleges in his bill that he entered into the •contract on the 1st. day of April 1863.with William D. Ewing, Rebecca Ewing, Elizabeth and Mary- A. Ewing, for the purchase of their tract of four hundred acres of land situate in the county of Augusta. This contract, which is exhibited with the bill,is signed and ¡sealed by only;three of the vendors above named.
Mary A. Ewing, in her answer avers that the com *431tract was not signed by her, or by any one professing to act for her, and is therefore not in any manner her contract. She denies that she made said contract, or authorized any one to make it for her, and declines to perform it, or to allow any one to perform it for her. The statute requires contracts for the sale of land' not only to be in writing, but to be signed by the party to be charged therewith, or by some one thereunto lawfully authorized. In this case the contract is not signed by the party sought to be charged, nor by any person for her, whether lawfully authorized or.not.
But in the argument it was urged with great ingenuity and ability, that though she is not bound by the written contract, there is evidence of a parol contract between her and the appellant through her agents, under which contract he paid the purchase money, and was let into the possession, which he has held ever •since the 1st of July 1863, with the. knowledge and acquiescence of the said Mary, until the filing of her answer in this cause on the 16th of June -1870; and that such part performance takes the case out of the .Statute of Frauds.
The bill does not allege such a parol agreement.- It ■sets out the written contract, and relies upon that as binding upon the said Mary, upon the ground of her acquiescence, and that she is bound by.the act of her joint tenants. Her answer is fully responsive to, •and positively denies' the allegations in the bill. And .she being entitled to one undivided fourth part of the tract of land, the court is of opinion that she could not be divested thereof without' hér consent, not even by the act of her coparceners. But is', there proof of such a parol.agreement-on the part of Mary A. Ewing, as is alleged in argument ?'
The appellant testifies that he made the contract *432with Rebecca and Elizabeth Ewing; that neither Wil0 liam nor Mary were present when the contract was made, written and signed by the said Rebecca and . put that they represented that they were aut^orize4 to sell the shares of William and Mary Ewing, and that they did sell to him the entire farm.
Elizabeth Ewing testifies that she did not positively undertake to sell the interests of William and Mary Ewing. She supposed that her brother and sister would be willing to accede to whatever they did under the circumstances, as they were very much annoyed, and very unpleasantly situated, and probably so represented to the appellant. But she says she referred the appellant to her sister, who was in Rockingham,, and wrote to her brother, who was then acting as surgeon in the Confederate service in the Way Hospital at Lynchburg. And the proof is, that she placed his letter in reply in the hands of the appellant a few days after the contract was signed, and before its execution was completed. She says she had no positive written or verbal authority to receive money for either her brother or sister Mary, and received it at her own risk. Her testimony is strongly corroborated by the written contract, in which they only undertook to act for themselves, as they did not sign it for the absent, which seems to imply that they had no authority to do so.
But if they represented that they had authority to sell their absent brother and sister’s interests, and had no such authority, it could not bind them. Mary Ewing positively denies that she made thé contract alleged in the bill, or authorized any one to make it for her, and refers to the paper itself, as showing that it was prepared upon the idea that she had a-right to act for herself and would act for herself. Elizabeth *433says that Mary objected to the contract the first time she saw her after it was written, which was a considerable time; but she heard that she had objected to it all the while. Daniel B. Ewing testifies that Mary, as far as he knew, never did consent to the sale, but that she has persistently and constantly, at all times, re- . fused to ratify the transaction. The onus of proving the authority rests upon the appellant. The record is barren of any such proof. But it is contended that there was an acquiescence on the part of Mary from which the authority of her sisters to sell her interest may be inferred. The proof does not show acquiescence, but persistent and constant refusal, at all times, to ratify the contract. But she did not notify the appellant of her non-acquiescence. The paper was not signed by her, which he knew; what further notice did he need ? He alleges in his bill, that during the further continuance of the Confederate government matters stood as they were; the parties not calling for any further payments, but rather avoiding the receipt of any more money; and that soon after the break down of the Confederate government, he learned, to his surprise, that they did not intend, if they could avoid it, to execute their contract. And in his first deposition he testifies that he had information, several months after the downfall of the Confederate government, that they did not intend to comply with the contract. And yet it is alleged, that he was not informed that Mary Ewing would not confirm the contract until after the filing of her answer; which was not until the 15th of June 1870. He knew, two or three months after the contract was written, that she had not signed it; and he believed the contract was not complete without her signature. It is strange that after the close of the war,'when he was informed that *434the parties did not intend to comply with their contract, he had not enquired whether Mary Ewing had signed it, if he had not known that she repudiated it.
Mary Ewing does not seem to have made any concealment of her determination not to unite in the contract; and if he wished more explicit information as to what her determination was, it was his place to in- ■ quire. If he considered himself entitled to her signature, and that it was important that he should have it, he should have called on her to sign it, after he knew she had not signed it. She had never had any communication with him on the subject of a sale, and had never authorized any one to enter into a contract with him for the sale of her interest; and no such contract had been made for her, although a paper had been drawn for her to sign, if she was willing to do so, and thereby to become a party to the contract; which she did not sign. She may well have considered that her not signing it was sufficient notice to him that she was unwilling to unite in the contract. It did not devolve upon her to look him up to give him further notice of her determination; and he had no right to presume her ratification, because she had not done so. The court is of opinion that there is no sufficient proof of a parol authority to Rebecca and Elizabeth Ewing from their sister Mary to bind her by any contract of sale they may have made with the appellant, or indeed to show that they made a contract of sale on her behalf. And if there was no contract on her part, there could have been no part performance for her. Her sisters admit that they had no authority from her to receive the purchase money, and she denies that she had anything to do with placing the appellant in possession, who, in fact, testifies that he got possession, from Rebecca and Elizabeth.
*435The allegation of the bill, that William D. Ewing entered into the contract on the 1st of April 1863, is not sustained by the proof. He was not present. And it appears from the evidence in the record, that Rebecca and Elizabeth Ewing, at the date of the contract, had no authority to sell his interest. The contract, signed by Rebecca and Elizabeth for themselves respectively, does not import an authority to them from their brother. One of them, Elizabeth, after negotiation had commenced with the appellant, wrote to him to know whether he would unite in the sale. This cotemporaneous act is confirmatory of what the written contract imports, and of the positive testimony of both Elizabeth and Rebecca, that at the time that contract was written and signed by them they had no authority to sell his interest in the land. This conclusion is put beyond all question by the letter itself, which they received in reply. It is in these words: “Mr. Kemper can have my share in the Riverton farm for $7,500, in his individual bonds, secured by lien on the land, one-half bearing interest from day of sale, the balance in two payments (equal annual).” This letter was not received until after the contract had been written, signed and sealed by the two sisters, and by Mr. Kemper, and most of the purchase money had been paid. The price agreed upon was $30,000 cash; and on the same day that the contract was signed as aforesaid, Mr. Kemper paid $10,500, and the next day, the 2d of April, he paid $15,009.33, as appears from the receipts signed by Rebecca D. Ewing. These payments were made in Confederate money. On the 7th of April he paid $1,000 in Confederate money, and gave his bonds for $3,490.67 in full of the Riverton farm; that is, one for $1,745.33 on demand, being one-half, and two others, one for $872.66f- in twelve *436months, and the other for $872.66 in two years from the date of the contract. The bonds are payable to William D. Ewing. This last payment was made, and bonds executed after William D. Ewing’s letter was received and placed in the appellant’s hands and read by him. It is true, the appellant says that he does not remember to have read the letter; hut both Rebecca and Elizabeth Ewing testify that it was placed in his hands to read, and that he opened it, and Elizabeth says he read it, and after meditating a while said it was more than he could give; and then after a while said: “I will tell you what I will do, I have a thousand dollars with me, and if you will take that, I will execute my bonds for the balance.” She says her sister Rebecca refused to touch it, because she knew her brother would be dissatisfied. “I consented to take the thousand dollars myself.” She says Mr. Kemper then wrote the bonds, signed them, and handed them to her. “My sister did not look at them at all, and I did not have legal knowledge to know anything about their nature.” Rebecca testifies, “that when Mr. Kemper came, I saw my sister place the said letter in his hands.” He seemed to read it, then remarked, “I have one thousand dollars with me, if you will receive that I will execute my bonds for the balance.” I remarked that I would not do it, for when my brother hears his requirements were not complied with he will be very much dissatisfied. “ My sister said she would be responsible for the thousand dollars, and received it. The bonds were then prepared, signed and handed over.” Her testimony supports the testimony of Elizabeth; and both are corroborated by the fact that the written contract was changed, which required the whole $80,000 should be paid in cash, and the appellant paid only $1,000 in *437Confederate money of the balance due, and executed his bonds for the residue in exact compliance with the requirements of Dr. Ewing’s letter to that extent. He made the bonds payable to him. We think these facts tend strongly to show that he had read the letter, and to confirm the positive testimony of Rebecca and Elizabeth Ewing. The positive testimony of two unimpeached witnesses must outweigh the negative testimony of one witness, however respectable, that he don’t recollect, especially when the positive testimony is concurrent with the facts and circumstances of the case. The positive testimony of the two witnesses in this case is also against their own interest. We are therefore obliged to conclude that appellant made the payment of $1,000, and executed his bonds payable to William D. Ewing, knowing that it was contrary to the instructions he had given to his sisters, and not in accordance with the terms upon which he was willing to sell his interest; and if the case rested here, we could not hesitate to refuse the enforcement of the contract against William D. Ewing.
But it is asserted that he afterwards ratified what had been done and signed the contract. That he signed it is not disputed. But he alleges in his answer that he signed it under the impression and with the belief that the terms he prescribed had been complied with. And that he never received, or saw or got the benefit of any Confederate or other money paid by the complainant, or authorized any one to receive it for him. In his deposition, taken and filed October 29, 1872, he testifies to the allegations thus made in his answer; and, unless invalidated, fully sustains the allegations. But it is attempted to invalidate it by showing that it is contradicted and disproved by himself in a subsequent deposition which he gave in the cause a few months afterwards.
*438The contradiction is alleged to be in his answer to this question: “ In a former deposition by you in this cause, you stated, and in your answer you also said, that you had received no part of the money paid by Mr. Kemper, on account of the land in controversy. Your sister, Miss Elizabeth A. Ewing, has testified to-day that she paid over to your wife $1,000 of Confederate money, received of Mr. Kemper while you were absent in the army. Please say when you first heard of that thousand dollars?”
He answers: “I never heard oYit until after the war; I never saw the bonds of Mr. Kemper until after the war. I was under the impression from what I had heard, that I had Mr. Kemper’s bonds for $4,000,” -&c.
On the 1st and 2d of April the appellant had paid $25,509.33, of the $30,000 he was to give for the land, leaving a balance of $4,490.67; and the subject of three depositions which had been given just before Ewing’s said deposition was taken was chiefly in relation to that balance; how it was settled, &e. Elizabeth Ewing had just deposed—the same day—that Mr. Kemper handed to her $1,000 of it in Confederate-money and his bonds for $3,490.67, amounting together to $4,490.67, the balance due for the Riverton farm; which she immediately handed to the wife of her brother. And it was now the point of inquiry was not Ewing aware of this payment to his wife ? His answer is that he was under the impression he had Mr. Kemper’s bonds for the whole amount which he designated $4,000; though the exact amount was $4,490.67; and adds, “it was upon that impression that I signed the contract. After the war, when I came to examine these bonds, for the first time, being after this suit was brought, I discovered there were *439only $3,500 of bonds.” That is over the amount. There were only $3,490.67. It is evident he mentions these sums only for designation, not professing to give the exact amounts.
He was testifying in relation to the balance, which was the subject of previous depositions, for which he said he supposed he had Mr. Kemper’s bonds; and when, after the war, he found he had his bonds for only $3,500 ($3,490.67) he inquired where the other money was, and says, “ for the first time I ascertained that my wife had received $1,000, which I never saw.” The two depositions do not point to the same thing. The first was in relation to the consideration which he received for his interest in the land, which he was under the impression and belief was $7,500 in appellant’s bonds. The second was in relation to the sum which was unpaid when the bonds were executed— whether $1,000 of it was paid in money, and bonds executed only for the balance. His answer is, substantially, that he was not until after the war, and after this suit was brought. He was under the impression that he had the appellant’s bonds for the whole amount of it and not merely for $3,490.67. He says he expected to find bonds for the whole of that amount—but does not say what he expected for his entire interest in the land; that he had said in a previous deposition. The subject of this inquiry did not call for such an answer.
There is no contradiction. He does not say that he expected to find bonds for only $4,000 and no more. His meaning evidently is that he expected to find bonds for the whole of this balance, which he designates as $4,000, and not for only a part of it. That was the matter of inquiry, whether he knew that a part of this balance of $4,490.67, to wit, one thousand *440dollars, had been paid in money. His answer is he did not until after the war. He believed he had bonds for the whole of it; but he does not say, nor mean to say, that was all for which he believed he had appellant’s bonds. He had shortly before said in his answer, and testified in his deposition, that he believed he had his bonds for $7,500. He did not mean to contradict that solemn asseveration, twice made just a few months before, in the same cause, and we do not think that he has contradicted it in this deposition. His attention was not called to the seeming discrepancy and an opportunity given him to explain. And we think it would be harsh and unjust upon such grounds to conclude that one of high character and respectability, a tiibute paid by the appellant in his bill to all the appellees, had wilfully and deliberately sworn falsely.
The court is therefore of opinion that the most just and reasonable conclusion is that William D. Ewing signed the contract, as he alleges in his answer, and testifies, under the impression and belief that the appellant had executed his bonds to him, according to the terms hie required in his letter of instructions to his sisters.
But conceding that he signed the contract under a mistake, as he alleges, is it equitable that he should rely upon it under the circumstances of this case ? He signed the contract, and thereby ratified the act of his sisters, who were acting for him, when they accepted the execution of the contract for his benefit, though not in strict compliance with the terms of his instructions. Undoubtedly the appellant regarded it as a complete ratification, and, so regarding it, he acted upon it. Eelying upon this ratification by Ewing, he was induced to abide the contract, although it had not been signed by Mary; removed to the farm; was put *441in full possession by Rebfecea and Elizabeth, doubtless with the knowledge and consent of their brother, and has continued in the possession to this day. He did not take possession until after the contract was signed by Ewing. It may be fairly presumed that it was the turning point with him. If the contract had not been signed by Ewing, he had an election to hold on to the contract for so much of the land as he could get, or to surrender it, as he could not get all that was contemplated by his contract, get back his money, and make another investment of it. By this act of Ewing he was induced to take possession,-which shows an election to abide the contract, and thus surrendered his right to recall the money he had paid for it, and lost the opportunity of making other advantageous investments; and was most probably induced to believe that -as he had signed the contract, Mary, his sister, would also sign it, and thus was induced not to recall the money he had paid for her interest. By that act of Ewing, he was, in a word, induced -to adhere to the contract, and not to abandon it, and to incur all the hopes he may have sustained by that choice, and to forego all the advantages which he might have derived by its early abandonment.
But the plea of Ewing is, that he signed the contract under a mistake as to the facts. He does not pretend that he was led into that mistake by the appellant. Appellant had reason to believe that Ewing was fully informed as to the facts when he signed the ■contract. They had but one brief interview, after the •contract had been closed with Ewing’s sisters, when he approached him in a way to impress him with the belief that he had been fully informed as to what had been done. “You have executed your bonds for the balance of the purchase money,” he said; appellant *442reP^e^ ^ie liad, and asked him to sign the contract, which he promised to do. There is not a single cir-tending to show that Ewing was misled Qr c]eeejveq py appellant, or that the latter had any reason even to suspect that he had not been accurately informed as to what had been done. And if Ewing had used ordinary diligence and precaution, he could easily have known what had been done, and need not have been mistaken. lie had only to have inquired of his sisters, one of whom was with him at Winchester, and traveled with him to his home in Harrison-burg, and they would doubtless have informed him of all that had been done before he signed the contract. And the appellant, it is fair to presume, believed that he had been fully and accurately informed by his sisters of what had been done, and that his signing the contract was done with his full consent, with an understanding of all the facts, and was an unqualified ratification of whatever departure there had been, by his sisters from his instructions in accepting the terms which he proposed. Under these circumstances the court is of opinion that it would be inequitable to-allow this defence of Ur. Ewing, and that he'is bound by his solemn act of signing and sealing the written contract, for the sale of his interest in the Riverton farm to the appellant.
How is it with regard to Rebecca and Elizabeth Ewing?
They entered into the contract- for themselves,, with their eyes open. And although they did so with the expectation that their sister would unite in it, we-are clearly of opinion that they are bound—although she has refused to execute it and is not bound—if the-appellant chooses to hold them to it. And as the appellant entered into the contract and paid his money *443with the expectation of getting the whole farm, but is disappointed in getting the whole, by the refusal of Mary A. Ewing to sign the contract,-he has the option to take three-fourths of the whole, or to get back his money which he paid for it at its scaled value.
But as to the money he paid Rebecca or Elizabeth over their and their brother’s shares, viz: $7,500, whether he is entitled to a decree against them for that, is not so clear. It is a total loss, and the question is upon whom it should fall ? It was paid for the interest of Mai’y A. Ewing, provided, of course, that she united in the contract.
This payment by the appellant before the contract was signed by her was spontaneous and voluntary on his part. It does not appear that Rebecca or Elizabeth required it. And they both testify, against their own interest, that they had no authority from her to receive it.
They did not profess, in the written contract of sale, to act for her. The sale is not made by them as agents for their brother and sister, but it purports to be a sale made by each one in person for himself. Rot having assumed authority to sell their sister’s interest, they can hardly be held to have assumed authority from her to receive the money which was paid for her interest. The receipt is given by Rebecca in her own name for the money, and not as agent. The appellant in paying the money to her upon her receipt, reposes in her a personal trust, that she would properly apply it. Would she have been justified in paying the money to Mary before she signed the contract? And was she bound to have notified the appellant of what he was already informed, that Mary had not signed the contract? Mary had not signed when the money was paid; and was it for *444Rebecca to determine how long the .appellant should wait for her signing before she should return the rnoney to him? She had no right to return the money to him as long as he held that Mary was bound by the contract of sale, which he holds to this day; and she had no right to pay the money to Mary until she had signed the contract, without his consent or direction.
It was incumbent on the appellant to call on Mary to sign the contract after he knew that she had not signed it. It no where appears that Rebecca or Elizabeth undertook to get her signature to it. Mr. Daniel Ewing was going to Harrisonburg, where she lived, and as a matter of favor, as much to appellant at least as to his sisters, agreed to take the contract with him to get Mary’s signature, and was instructed by appellant to leave it with Mr. Craig of Harrisonburg, showing that he claimed the right to its possession. But Mr. Ewing assumed no obligation to have it signed; nor does it appear that the sisters, or either of them, assumed such an obligation. If it was necessary to have her signature to it; it was for the appellant to obtain it. If she refused to sign it, and he did not hold her bound, then it was incumbent on him to notify Rebecca, that he did not or could not hold Mary bound by the contract, and request her to return the money to him which he had paid for her interest; and if she had failed to do so it would have been at her risk, and would have been her loss. It was not for Rebecca to determine whether the appellant held Mary bound by the contract, and until he notified her that he did not, she was not warranted in paying it back to him. She did not hold the money, it is true, as agent for her sister, but she stood, as it were, a stake-holder between the parties, awaiting the action of the appellant (and he still holding her sister bound), before any notice *445from him that he did not hold her bound, and request made to return the money to him, it was not proper that she should do so. She had no right to return the money paid to her for Mary’s interest, while the appellant held that Mary was bound by the contract of sale; and indeed he made no request of her to do so. The money lay invested with her own, awaiting the action of the appellant, and perished without fault on part of herself, or her sister Elizabeth. It was invested just as hundreds of our most prudent and judicious citizens and the courts of justice invested funds, and precisely as she and her sister Elizabeth invested their own, and was certainly as secure as the Confederate treasury notes she received from the appellant, if she had retained them. It was not their money; and we have held that it was not the money of their sister Mary. It was then lost—the money of the appellant; and we think it would be inequitable to throw the loss upon Rebecca and Elizabeth Ewing, or either of them.
This case being one of great hardship, in whatever way decided, the court has given the most anxious consideration to the subject, satisfied that both parties to the transaction have acted with perfect good faith, but improvidently and under mistake. We regret that such a loss should fall on any one. We can only announce our conclusions as to the responsibilities of the parties under the law. In this case, we think the law, as we construe it, throws the loss where the hardship is less than if it had fallen upon Rebecca and Elizabeth Ewing. Their inheritance in the land is a total loss, whilst appellant holds it in place of the Confederate money which he gave for it. He has something valuable for his Confederate money, even with this loss falling on him, whilst if it fell on them they would be losers not only of their inheritance, but would have *446a large debt to pay, for which they have not and never did receive any sort of consideration; and this ruin brought upon them by a transaction in which, though they acted mistakenly, the court is well satisfied they acted with perfect good faith.
Upon the whole case, the court is of opinion that the appellant should get three-fourths of the laud in value, William D., Eebecca and Elizabeth Ewing’s interests, and that Mary A. Ewing should get the other fourth part, and recover from the appellant the rental value of the same from the date of filing the bill in this cause, with interest on the annual arrearages of rent until paid : Under all the circumstances of this case, the court being of opinion that it would be inequitable to hold the appellant liable for the rents of her share prior to the commencement of the litigation in relation to it. And the court is further of opinion, that William D. Ewing should recover from the appellant the scaled value of the bonds he executed to him at the date of the contract, with interest therefrom. And that the decree of the Circuit court be reversed so far as it is not.in conformity with this opinion, and in all other respects be affirmed. And. the cause is remanded, &e.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that there is error in the said decree of the said Circuit court, in holding Eebecca D. Ewing and Elizabeth A. Ewing liable to the appellant for the value of the Confederate currency received by them in excess of three-fourths of the purchase money of the land in controversy, and in decreeing against them for the same; and also in -allowing Mary A. Ewing rents for her share of the *447land prior to the institution of this suit. It is therefore decreed and ordered that so much of the decree of the said Circuit court as gives to the appellant a recovery against Rebecca D. Ewing and Elizabeth A. Ewing of 'the value of the Confederate currency received by them in excess of the three-fourths of the purchase money of the land aforesaid, and as gives to Mary A. Ewing a recovery for the rents and profits of her one-fourth of the said tract of land prior to the institution of this suit in the said Circuit court, be reversed and annulled and that in all other respects it be affirmed. And the appellees being the parties substantially prevailing, it is further decreed and ordered that the appellant do pay to the said appellees their costs by them about their defense here in this behalf expended. And this cause is remanded to the said Circuit court for further proceedings to be had therein to a final decree in conformity with the foregoing opinion and decree; which is ordered to be certified to the said Circuit court of Augusta county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481888/ | Staples, J.
delivered the opinion of the court.
In this case, the vendor of a tract of land having taken two bonds for a balance of unpaid purchase money, made an assignment of the one last falling due,' retaining the first in his own possession. The land is insufficient to satisfy both bonds, and the question before us is, which is entitled to priority of payment.
The representatives of the vendor or assignor, as he-may be termed, insist that inasmuch as the bond retained first matured, it is, by the terms of the contract, to be first paid; and this affords a sufficient, ground for precedence of satisfaction out of the fund provided as a security for the debt.
In support of this pretension much reliance is-placed upon the case of Gwathmeys v. Ragland, 1 Rand. 466. In that case a deed of trust had been given to secure the payment of the debt. The obligee made an assignment of the second note. He after-wards assigned the third and last note to another person, and with it the deed of trust. This court held *453that the assignee of the second note had the preferable right to satisfaction out of the proceeds of sale over the third note. The deed of trust followed.the notes into the hands of the several holders, and it was not competent to the obligee, by an assignment of the deed to the holders of the third note, to deprive the first assignee of his priority of right to demand a sale of the trust property in the order of payment expressly directed by the deed.
I do not understand the court in that case as deciding that the maturity of the notes gave priority, hut that the first assignee had by the act of assignment acquired lights which could not he defeated by any act of the assignor. One of these was the right to subject the proceeds of sale of the land to the satisfaction of his debt in the manner directed by the deed. The first assignee being the holder of the note first due had the preference, as well by priority of assignment as by the express directions of the deed.
In the present case, the written agreement contains no stipulation whatever in regard to the time or mode of payment. One of the bonds is payable 1st of January 1859, and it is therein stated to be for the second payment of the purchase money. The other bond is payable the 1st of January 1860, and is stated to be for the third and last payment. Obligations of this sort, to pay in successive instalments, are usually, if not universally, made for the accommodation of the debtor. Uo one ever supposes the effect of such an arrangement is to give priority of satisfaction to the first instalments out of a common fund equally hound for the whole and every part of the debt.
The rule is well settled, that both deeds of trust and mortgages are regarded in equity as mere securities for the debt, and whenever the debt is assigned, the *454deed of trust or mortgage is assigned or transferred along with it. Leading Oases in Equity, vol. ii, part 2,. page 236. The same principles apply to the vendor’s lien, resulting from the retention of the legal title. 1 Lomax’s Digest 220. The assignment or transfer of the note given for the purchase money operates as an assignment or transfer of the lien as effectually as it existed in the vendor. There is no controversy upon this point. The difficulty is in regard to the rights arising out of successive assignments of different debts, and the fund is insufficient to discharge all of them, who has the better title to the security afforded by the lien? In such case, it seems to me the assignment of the bond carries with it the assignment of so much of the lien as is necessary to pay the bond. If the vendor means to restrict or qualify the effect of the assignment, he should do so by express reservation. In the absence of such reservation, or some stipulation qualifying the rights of the parties, the assignee may justly regard the assignment as securing to him the benefit of the lien, so far as it is necessary to his protection or indemnity.
This question has been the subject of judicial consideration in other states. In some of them it has been held that the rights of the assignor and assignee to the benefit of the incumbrance are equal, and the fund must be divided between them according to their several proportions. In none of them has it been held, so far as my reading extends, that the assignor is entitled to the preference merely by reason of his having retained the bonds first maturing. In Griggsby v. Hair, 25 Alab. R. 327, the very reverse was held. It is there decided, that where several notes taken for the purchase money of land are assigned at different times, the assignment of each note is pro tanio an assignment *455of the vendor’s lien, unless expressly waived, and the liens of the several assignees are to be preferred according to the priority of their assignments, without reference to the maturity of the notes. See also Bank of Mobile v. Plant. M. Bank of Mobile, 9 Alab. R. 645: Cullum v. Erwin, 4 Alab. R. 492.
In his Commentaries, 1 vol. 353, Judge Tucker takes substantially the same view. He thus lays down the rule: “It is said if several bonds be secured by mortgage, and the fund prove insufficient to pay all, and the bonds he assigned to different persons, who shall have priorty? I should conceive that he should have preference who was first assignee; for by the assignment he at once acquired a preference over his assignor, who then remained the holder of the other bonds; and this, preference would not be taken away by subsequent assignments.” It will be perceived that, according to Judge Tucker’s opinion, the priority of the parties depends not upon the maturity of the bonds, but upon the date of the assignment. In this view of the case he is strongly supported by the case 'of Taylor's adm'r v. Spindle, 2 Gratt. 44, 71. In that case Glass had sold to Baker a tract of land for which Baker paid in cash, fifteen hundred dollars, and executed his four bonds for the deferred instalments, payable respectively in 1816, 1817, 1818 and 1819. It did not appear what had become of the two first bonds; it was alleged they had been paid. They were not, however, the subject of controversy. The bond due in 1818 was assigned to Basye and by him to Spindle. That due in 1819 was assigned to Hormán and by him toRixey. This latter assignment was made in 1815; the date of the other does not appear. The purchaser of the land claimed an abatement of the purchase money on account of a deficiency in the number of acres; *456and one 0f fhe questions in the ease was as to the application of this abatement. Judge Standard, speak-for the court said, “If the assignment to Basye wag prjor f0 0f jj,ixey then the title to credit for the abatement would act first on the bond assigned to Bixey, and the bond assigned to Basye would be subject to credit for only the surplus, if any, of the abatement beyond the principal and interest of the bond assigned to Bixey.”
Clparly, according to Judge Standard’s opinion, the right of the parties was to be determined, not with reference to the time of the maturity of the bonds, but the date of the assignment. There would seem to be no substantial distinction between the ease of a deficiency of the fund, arising from the mere depreciation of the property, and a deficiency resulting from an abatement of the purchase money. If the first assignee is entitled to throw upon the second the whole burden of the abatement of the purchase money, he may with equal reason, require him to bear the loss arising from the depreciation of the property, or from any other cause.
The same principles apply to the case of several purchasers at different times, of several parcels of land, subject to the lien of a mortgage or deed of trust. It is well settled that the last purchasers can not call upon the first for contribution; but they, the former, must sustain the whole burden of tjhe incumbrance to the extent of their purchase. In such case, as the alienor cannot call upon the purchaser for contribution to the relief of the land reserved by him, his subsequent alienee, standing in his place, can occupy no higher ground. Conrad v. Harrison, 3 Leigh 532; McClung v. Beirne, 10 Leigh 394.
The decisions I have cited relate to controversies *457between successive assignees or alienees. Here the contest is between an assignor and an assignee: an assignor attempting to compete with his own assignee for preference of payment out of the common fund. The ground taken in the court below for this assumed preference is, that the assignee, by his want of due diligence against the obligor, has lost his right of recourse against the estate of the assignor. I do not think the right of the assignee to subject the land fund results at all from the personal liability of the assignor, or that the failure to pursue the obligor affects the right to enforce the lien upon the land.
The assignee, in the case supposed, has three remedies: An absolute right to resort to the debtor himself; 2d, to the lien upon the land; and 3d, contingently to the assignor himself. The loss of the latter remedy, by the want of due diligence, can no more affect the right of recourse to the land than it can ■affect the right of reverting to the debtor himself. The assignment of the bond is, ipso facto, an assignment of the lien. Having once vested by the assignment, that lien is not divested by the failure to sue the debtor. The assignee having two remedies, both absolute and undoubted, may resort to either. The case of Rippordon v. Cogine, 8 B. Mon. R. 465, is a direct authority upon this point. The court say, the fact that the assignee had no recourse upon the assignor, did not sever the lien from the note; but as he (the assignee) acquired the equitable right to the note itself, he ■acquired with it the equitable right to all remedies for its enforcement. The continued substance of the ■lien in his (the assignee’s) favor, or for his benefit, does ■not depend upon the subsistence or continuance of a personal liability of the assignor to him, nor upon *458there being a written transfer of the note passing the legal title.
In the present case, the charge of laches equally applies to the assignor as to the assignee. At the time of the assignment the first bond had been due several months; the second'was not due until the first of January thereafter. So that the assignor had nearly a year the advantage of the assignee in prosecuting a suit against the common debtor. But he wholly failed to take any step to enforce this liability. Under the-circumstances, the assignee had the right to suppose the first bond had been paid, or at any rate that it would constitute no obstacle in his way. During all the succeeding years it does not appear he had the slightest, intimation the debt had not been paid, or that the assignor claimed the right to appropriate to his exclusive use the benefit of a security he had already transferred to the assignee. Under these circumstances, it seems to me the assignee has the superior equity; and if a loss is to ensue from the partial failure of the security, it ought not to be imposed upon him.
It only remains to notice one other ground taken by the counsel of the appellee—it is, that the vendor reserving the legal title may, upon default in the payment of the purchase money, bring his ejectment against the purchaser, and recover and hold possession of the premises; and he cannot be required to convey the title or surrender the advantage until his purchase money is paid. The argument proves too much. It is conceded that if the vendor assigns the bond first due, the assignee has the preferable right to subject the land; and yet, in that case, the vendor having the legal title may recover in ejectment, and it might be-contended with equal reason he could not be com*459pelled to surrender this advantage, or make a conveyanee until the amount of the second bond is paid him. The answer to all this reasoning is, that if the vendor having assigned one of the bonds given tor the purchase money, brings his ejectment against the purchaser, and recovers the possession, he recovers in subordination to the rights of the assignee. The assignee having by the assignment acquired the benefit of the lien, whatever it may be, is entitled to all the remedies of the vendor to enforce it. He cannot be deprived 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. The land being sold under the decree of the court, a commissioner may convey the title to the purchaser. Whether the vendor is or is not satisfied his debt, the sale is effectual to divest him of all interest in or control over the land thus sold under a decree of the court.
I cannot perceive, therefore, how in a contest between the vendor and his assignee the former can derive any advantage from his retention of the legal title, or from the fact that he may recover in ejectment against the purchaser who may be in default. If, as I have attempted to show, the assignée has the preferable right to the land fund, all the rights of the vendor as against the vendee must be held to be in subordination to that right. Upon the whole, whether we consider the case upon general principles, or with reference to the peculiar circumstances attending it, I think the assignee has the superior equity. The decree of the Circuit court must therefore be reversed with costs.
A question arises, however, as to the extent of the reversal. At the time the decree of the Circuit *460court was rendered ordering a sale of the land the assignee was not a party to the suit. This was clearly erroneous; no decision ought to have been made adjudicating the question of priority or directing a sale, until the vendor and the assignee, or their representatives, were before the court. Each was directly interested in making the land bring a sum sufficient to satisfy the respective debts. The assignee was, therefore, an indispensable party, and if he and the representatives of the vendor were alone concerned in the subject matter, there would be no difficulty as to the decree to be entered here. But in the mean time a purchaser has intervened; all the purchase money may have been paid, a deed executed, and other valuable rights accrued, which cannot be disregarded by the courts. How while it is true that a purchaser at a judicial sale must see to it at his peril that all persons who are interested in the title are before the court, this court is not in possession of sufficient information to determine whether this rule can be justly applied to the persons who may be in possession of the land under said decree. The purchaser ought to have an opportunity of being heard. The cause must therefore be remanded to the Circuit court, and if the appellees desire it, a rule awarded against the purchaser to show cause why the sale should not be set aside, and such proceedings thereupon had as the case may require. But in no event is the sale to be set aside and the land resold ■except at an jipset price; and the appellees will be required to give bond with proper security for a substantial advance upon the price stipulated for by the present purchaser.
Monoure, P., dissented.
*461The decree was as follows:
This day came again the parties by their and the court having maturely considered the transcript of the record of the decree aforesaid, and the * arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the appellant, William H. McClintic, has the preferable right to satisfaction of the bond in his hands out of the proceeds of the sale over the bond retained by the vendor; and that the Circuit court erred in holding that said bonds must be paid in the order in which they matured. It is therefore adjudged, ordered and decreed, that the decree of the Circuit court, of the 14th day of May Í872, be reversed and annulled, and that the appellees pay to the appellant his costs by him expended in the prosecution of his appeal here.
The court is further of opinion that the said Circuit court erred in decreeing a sale of the land until the said William McClintic was, by some proper proceeding, brought before the court, and the question of priority settled between the conflicting claimants. And this court would for said error now reverse the decree of the 16th day of October 1869, and set aside the sale thereunder, but that the purchasers at that sale are interested in the decision of that question, and ought to have an opportunity of being heard in opposition to any order affecting their interest. The court doth therefore order that this cause be remanded to the Circuit court, and that a rule, if desired by the appellees, be awarded by that court against' said purchasers, to show cause why /aid sale shall not be set, aside, and the said tract of land be resold; and thereupon the said court shall render such decree in the premises as may be just and proper under all the cir*462cumstances. In no event, however, is said sale to be set aside and a resale ordered, unless the appellees, or some one for them, shall give bond with proper security before said court, for a substantial advance upon the price for which said property heretofore sold. And it is further adjudged and ordered, that in the event no such resale shall be made, the fund now under the control of the court, the proceeds of the sale of the land is to be applied, or so much of it as is necessary, to the satisfaction of the appellant’s debt, and the residue, if any, to that of the appellees. Which is ordered to be certified to the said Circuit court of Bath county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481889/ | Bouldin, J.,
delivered the opinion of the court.
This is a writ of error to a judgment of the Cii’cuit coui't of Augusta county, reversing and annulling a judgment of the County court of said county, by which the sum of $5,046 was awarded the appellant against the appellee, as compensation for land of the *469appellant taken by tbe appellee in the construction of its road, and for damages to the residue of his tract, and the costs of the proceeding.
A preliminary question has been raised by the appellee’s counsel in this court. It is insisted that the writ of error should be dismissed as improvidently awarded, because the case on reversal by the Circuit court was retained in that court for further proceedings, and no judgment finally disposing of the case has yet been rendered by said Circuit court.
There can be no doubt about the finality of the judgment of the County court. That judgment was for the amount of compensation and damages awarded by the commissioners, and for costs; it was appealed from by the appellee as a final judgment, and we are of opinion, as above stated, that about its finality there can be no doubt.
When such final judgment has been reversed by the Circuit court and the cause is retained for further proceedings, is it necessary for the judgment creditor in the County court to await the ulterior proceedings in the Circuit court; or may he not at once seek to secure the benefit of his final judgment in the County court, by appealing from the judgment of the Circuit court reversing it?
This question we think is no longer an open one in this court. In the most recent case on the subject, the case of Brumbaugh v. Wissler, decided at September term 1873, and not yet reported, it was held by all the judges that when a final judgment of a County court had been reversed on appeal by the Circuit court, and the cause retained for further proceedings, without acquiescence in such further proceedings by the appellee in the Circuit court, the judgment of reversal was proper subject of appeal. The finality of the *470judgment of the County court was, for the purpose of appeal, imparted to the judgment of the Circuit court. We think this rule of practice alike reasonable, economical and convenient; and we reaffirm it. Our opinion is, that the writ of error was not improvideutly awarded, and the objection is overruled.
On the merits : The appellant insists that the judgment of the Circuit court should be reversed, and that of the County court affirmed, because there was nothing in the record showing that the damages ascertained by the commissioners, and awarded by the judgment of the County court, were excessive, or based on erroneous principles, or were the result of misconduct or mistake on the part of the commissioners.
The appellee, on the other hand, insists that the damages awarded toere based on illegal and erroneous estimates, and were exorbitantly excessive.
Without considering the very interesting question which has been so earnestly and so ably discussed at the bar, as to the functions of the commissioners in cases like the present, the capacity in which they act, and the weight and effect in general of their report, we hold it to be clear and unquestionable, under the plain mandate as well as the spirit of the statute, that the report of the commissioners, ascertaining the amount of compensation and damages to be paid to the land owner, must be confirmed by the court, and judgment entered for the amount reported, unless, in the words of the statute, “good cause be shown against it.” This makes the commissioner’s report, if no illegality nor irregularity appear on its face, at least prima facie evidence of the propriety and correctness of the award of compensation and damages; and that award must therefore stand as the judgment of the *471court, or rather, the judgment of the court must accord, therewith, unless some sufficient matter be established to vary or arrest it. The land owner may be passive, and the entire onus of showing such sufficient cause is thrown on the objector.
Was good and sufficient cause to alter the report shown in this case ? It was attempted; but we concur with the County court in the opinion that the appellee has wholly failed to show “ that the commissioners in the discharge of their duties demeaned themselves otherwise than with the strictest propriety; or that they proceeded on other than correct legal principles in making up their appraisement of damages; or that in their estimates of the defendant’s damages, as agreed on and reported to the court, they, according to a reasonable probability even, much less plainly and palpably, exceeded the just and proper measure of the defendant’s claim to compensation in this case.” So far, indeed, from showing palpable error, or any error in the commissioner’s report, we are of opinion on the contrary, without undertaking to analyze or to comment in detail on the evidence in the cause, that it abundantly sustains the estimate of the commissioners and the judgment of the County court. In fact, the estimates of a very large majority of the witnesses examined, as intelligent aud as well qualified to form a correct judgment as any in the cause, greatly exceed the estimate of the commissioners. We arc therefore of opinion that the judgment of the Circuit court reversing that of the County court is erroneous, and should be reversed and annulled, and the judgment of the County court should be affirmed with costs to the appellant, CrawTford, in both courts.
*472The judgment of the court was as follows:
This day came again the parties by their attorneys, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said judgment of the said Circuit court is erroneous, and that there is no error in the said judgment of the said County court. Therefore it is considered that the said judgment of the said Circuit court be reversed and annulled, and that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his supersedeas aforesaid here; and this court, proceeding to render such judgment as the said Circuit court ought to have rendered, it is further considered that the said judgment of the said County court be affirmed, and that the defendant recover against the plaintiff damages according to law, and his costs by him about his defense in the said Circuit court expended. Which is ordered to be certified to the said Circuit court of Augusta county.
Judgment oe the Circuit court reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481890/ | Anderson, J.
delivered the opinion of the court.
Where an issue out of chancery was directed to be-tried at the bar of the common law court, it was a. *476well established rule of practice, before the common law and chancery jurisdictions were united in the same judge, that the verdict of the jury should, be certified by the judge before whom the issue was tried to the chancellor; and that a motion to set aside the verdict, and to direct a new trial, could not be entertained by the common law court, but must be made in the chancery court. But if the judge of the common law court, certified to the chancellor that the verdict was against evidence, it was the duty of the chancellor, at least, if there had not been more than one trial, to set aside the verdict and award a new trial. In Grigsby v. Weaver, 5 Leigh 197, the judge before whom the.issue was tried, certified not only that the verdict was against evidence, but also the facts proved. The chancellor not only refused to direct a new trial, but entered a decree, founded upon the verdict, dismissing the bill. And the Court of Appeals—only three judges sitting—affirmed the decree; Broekenbrough, J., dissenting. Judge Carr, referring to Pleasants & als. v. Ross, 1 Wash. 156, and Southall v. McKeand, 1 Wash. 336, says, the farthest they go, is to hold, that as a general rule the chancellor ought not to be satisfied, where the certificate is against the verdict; admitting at the same time that the rule only holds where there is no circumstance appearing to vary the case. Brooke, J., says, that “if the judge had certified the verdict was contrary to the evidence, ■and no more” he (the chancellor) would have been bound to direct a new trial. Judge Brockenbrough ■did not think it clear that the judge had no other evidence than what he certified. And he thought the chancellor erred in confirming the verdict and decreeing upon it. He says no case has been produced, in which after a single trial, the certificate of the judge *477against the verdict has been entirely disregarded. In that case all the judges concurred in the general rule, that where the judge before whom the issue is tried certifies to the chancellor against the verdict, it is the duty of the chancellor to set it aside, unless it appears from the evidence certified, or circumstances varying the case, that the verdict was wrong.
Since the union of the two jurisdictions of law and chancery in Virginia, although it is the policy of the law, that the distinctive character of the two jurisdictions shall be preserved in the exercise of their respective functions, yet, as prior to the union of the two jurisdictions, the issue might be tried at the bar of either, it cannot now be a matter of any consideration whether it is tried on the common law or the chancery side of the court. £Tor can it be material, as the issue is to be tried before the same judge, whether tried on the common law or chancery side of the court, to require the verdict to be certified to the same judge who presided at the trial. Though it might be well to observe this formality, it would be going too far to hold, that the order made by the judge, on the chancery side of his court, in the cause there depending, setting aside the verdict, which he thought contrary to the evidence, should be reversed, because he had not observed the formality of certifying to himself that it was against evidence. The court is therefore of opinion that there was no error in the decretal order made in this cause on the 17th day of September 1868, setting aside the verdict and directing a new trial of the issue, as altered and modified in said order; being of opinion that section 15 of eh. 177, Code of 1860, p. 738, was never designed to take from a court of chancery the power to direct a new trial of an issue in a cause depending therein.
*478^he court is further of opinion that the subsequent order made in the cause, on the 17th of April 1869, setting aside the decretal order of 1868, is unwarranted by anything appearing on the face of the record. We have seen that said decretal order was valid; that it rendered null and void the verdict, and directed a new trial of the issue. If the defendant had felt himself aggrieved by the order setting aside the verdict, he might have excepted to the ruling of the court, and had the facts proved at the trial, or the evidence spread upon the record, and thus said order might be reviewed. But that was not done, and there is nothing in the record to show that said order was erroneous. That decretal order could only be rescinded, and the verdict which it annulled revived, for cause appearing upon the face of the record. No such cause appears, and nothing even assigned as cause for its rescission. It could not have been set aside at a subsequent term, by the arbitrary order of the same judge who made it, much less by another judge who did hot preside at the trial of the issue, and who was not informed, so far as this record shows, of what was proved on the trial of the issue. If, when the courts were separate, it was error for the chancellor, not knowing what had been proved on the trial, to ratify the verdict, which had been certified by the judge who presided at the trial to be against evidence, much more would it be error for a judge who had not presided at the trial, nor been informed as to what was proved, to rescind at a subsequent term the decretal order of the judge who had presided at the trial, setting aside the verdict, and directing a new trial. It does not appear that the judge who set aside the decretal order of 1868, and restored the verdict, was informed as to what was proved' on the trial of the *479issue, or that he was the same judge who had at a previous term set aside the verdict. It is a fact that he was not the same judge, which may be judicially known, though not appearing upon this record, being evidenced by the public records of the country.
The court is further of opinion that the final decree in this cause being founded upon the aforesaid erroneous order and abrogated verdict, is likewise erroneous.
The court is therefore of opinion, without looking into the merits of this case, or indicating any opinion thereon, to reverse said decree with costs, to set aside and annul the order of April 17th, 1869, which sets aside the decretal order of December 17th, 1868, and to remand the cause for further proceedings to be had therein in conformity with this opinion.
The decree was as follows:
The court is of opinion, for reasons stated in writing, and filed with the record, that there is no error in the decretal order of the 17th day of December 1868, setting aside the verdict of the jury, and directing a new trial on the issue as amended; and that the order of April 17th, 1869, setting aside said decretal order is erroneous, and should be set aside and annulled; and consequently that the decree of July 21st, 1871, founded upon said verdict, is erroneous. It is therefore ordered and decreed that the said last mentioned decree, and the said order of April 17th,. 1869, be reversed and annulled; and that the appellee, out of the estate of his intestate, pay to the appellant his costs expended in the prosecution of his appeal aforesaid here; and the cause is remanded to the said Circuit court of Rockbridge county, for further proceedings to be had therein in conformity with this decree, *480without prejudice to the right of said Circuit court to make any change in the decretal order of December 1868, as to the court at whose bar the issue shall be tried, as may be deemed proper under the circumstances as they may then appear. Which is ordered to be certified to the said Circuit court of Rockbridge county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481891/ | Staples, J.,
delivered the opinion of the court.
It is the established doctrine of this court, that a married woman, as to property settled to her separate use, is to be regarded as a feme sole, and has the right to dispose of all her separate personal estate, and the rents and profits of her separate real estate, in the same manner as if she were a feme sole, unless her power of alienation be restrained by the instrument creating the estate. West v. West's ex'ors, 3 Rand. 373; Vizonneau v. Pegram et als., 2 Leigh 183; Woodson, trustee, v. Perkins, 5 Gratt. 346.
As incident to this jus disponendi, a feme covert may charge the separate estate with the payment of her debts. She may charge it as principal or as surety for her own benefit, or that of another. She may appropriate it to the payment of her husband’s-debts. She may even give it to him if she pleases, no improper influence being exerted over her. Penn v. Whitehead, 17 Gratt. 503; Muller v. Bailey, 21 Gratt. 521; Hill on Trustees 424; Schouler’s Domestic Bel. 219, 225; 1 Bishop on the Law of Married Women, sec. 848. And although the separate estate is conveyed to a trustee, his assent is not necessary to a valid alienation *487or charge by the wife, unless it is required expressly or by strong implication in the instrument under which the property is derived.
In Hulme v. Tenant & wife, 1 Bro. Ch. R. 16, the estates of the wife had been conveyed to trustees upon the trust to receive and pay the rents and profits to the wife for her separate use. Lord Thurlow said the mere appointment of trustees is not sufficient to deprive the wife of the authority to bind her separate estate, unless their consent is made essential; and he decreed the payment of a bond executed by the husband and wife out of the rents and profits of her separate real estate.
In Vizonneau v. Pegram, already referred to, the settlement provided that the separate estate should be held by a trustee for the use of the wife : notwithstanding, this court said she must be regarded as the absolute owner, and should be permitted any disposition that she might desire to make. It was decreed that the entire fund should be taken from the trustee and paid to her. If other authority upon this point were needed, it maybe found in Essex v. Atkins, 14 Ves. R. 542; Tawney v. Ward, 1 Beav. R. 563; Baker v. Newton, 2 Beav. R. 112; 2 Bright’s husband and wife 220; Schouler’s Domestic Rel. 219 to 225.
But it is not enough that the wife has the separate estate; it must also appear that it was her intention to charge it with the debt in question. In some of the eases it is held that when the debt is not for the benefit of the wife herself but for another person—for example, when she executes the obligation merely as surety—it is essential that the writing shall contain some reference to the separate estate indicating a purpose to create the charge.
In other cases, it has been decided that if the wife *488execute a bond or note as principal or as surety, she must be presumed to have intended a charge on her estate, since in no other way can the instrument be made effectual. And this is the prevailing opinion, supported by a great weight of authority. So that it must be taken as the settled rule, that if the wife contract a debt as principal or as surety for herself, or for her husband, or jointly with him, the instrument executed by her is sufficient to charge her separate estate without any proof of a positive intention to do so, or even a reference to such estate contained in the writing. 2 Story’s Eq. Jur., sec. 1400; Schouler’s Domestic Eel. 230.
It is with reference to these principles the present case must be decided. The bond in controversy was given by Steele, the husband, with his wife as surety, for a slave purchased from the executor of the estate, in which the wife was interested as legatee and devisee, The executor was not willing to take the husband’s bond unless Mrs. Steele would also join in its execution. It is very clear, that Mrs. Steele was well aware that in signing the bond she was creating a charge upon her separate estate, and that in the end her property might be taken to satisfy the debt. And although she consented with some reluctance to sign the bond, she was willing to incur the hazard rather than surrender the slave to the executor.
But apart from the peculiar circumstances attending this transaction, the bond itself under the rule already mentioned, must be considered as satisfactory evidence of a purpose on the part of Mrs. Steele in signing it as surety to charge her separate property with the payment of the debt.
The next question to be considered is, had she the power to create such charge under the will of her *489father. By the third clause of the will the “Brown farm” is given to her for her sole and separate use, free from the control and management and debts of her husband; aud at her death to go in remainder to her children.
By the fifth clause she is given full control of the personal property therein bequeathed to her, free from the liabilities or debts of her husband. By the seventh clause it is directed that the farm upon which William J. McKee resides, shall pass into the hands of a trustee, and be managed by him, and the net proceeds to be paid over annually to Mrs. Steele, for her sole and separate use, as long as she lives, and at her death to go in remainder to the children of Mrs. McKee in fee simple in equal parts.
And in the eighth clause it is provided that the trustee shall control all the said real and personal estate to carry out the provisions of the will, so as not to .give any control of the real and personal estate to the husband, or to be subject to his liabilities. It will, be perceived that the chief object of the testator in thus disposing of his property was to deprive the husband of all manner of control of the estate given to the wife, and to protect it against any liability for his debts. It will be also observed, that the concurrence of the trustee is not made necessary to the wife’s alienation of the property given to her. It is true that the estate i$ subject to the control of the trustee, but the manisfest intention was not to interfere with the dominion of the wife, but with that of the husband. The testator, in effect, so declares in the eighth clause of the will. But if it be conceded that by the terms of the settlement, the assent of the trustee was necessary, that was expressly given; he, in his charae*490ter of executor having made the sale and taken the bond in controversy.
The learned counsel insists, however, that the trusr tee in becoming a party to such a transaction committed a breach of trust; that it was his duty to protect the separate estate against the improvidence of the wife and the influence of the husband. If, as I have attempted to show, the concurrence of the trustee was not necessary to enable the wife to dispose of or create a charge upon the separate estate, it is clear he cannot be held liable for any improper alienation of it on her part. If the wife may charge the estate with the payment of her husband’s debts, without the consent of the trustee, the mere fact that he was a party to the transaction, giving his consent, cannot impose upon him any additional responsibility.
It is very certain there is nothing in the transaction itself incompatible with the obligations and duties of the trustee.
It was incumbent upon him as executor to make sale of the slave iu the possession of Mr. and Mrs. Steele, a family servant belonging to the estate of the testator. As I have before stated, they were anxious to retain the slave, and it was finally agreed that Steele should purchase her. There were also other articles of personal property, of no great value, belonging to the estate, which Steele seems to have been anxious to buy. He was, however, unable to give the necessary security, unless Mrs. Steele would join in the bond. And she was informed, unless she would do so, the-slave would have to be given up to the executor. This-was the extent of the argument used to induce her to join in the execution of the bond. It certainly is not sufficient to show the exercise of any improper in*491fluenee on the part of the husband or of the executor. The latter manifestly derived no benefit from the purchase. It is impossible, therefore, to attribute any improper motive to him. His evident purpose was to discharge his duty to the estate, and at the same time to gratify the wishes of Mr. and Mrs. Steele. It is true that Steele appears to have been an improvident man, and embarrassed in his pecuniary matters. But this is not sufficient to vacate the contract, if, in other respects, valid as to the wife. If she may charge the separate estate with the payment of her husband’s debts, she may exercise that power in his behalf, whatever may he his pecuniary condition. The validity of her obligation does not depend upon his solvency. The courts will closely scrutinize transactions of this character between husband and wife; but if no undue influence appears, there is no alternative but to sustain them.
The same is true with reference to the trustee in this class of trusts. There is no reason why the wife may not execute a bond to him if founded upon a valid consideration, and free from the imputation of fraud and undue influence. In Duncan v. Gardner, Lord. Hardwicke said, “ that if the wife sell her separate estate to her trustee for an adequate consideration, and the transaction - be bona fide, the sale will be sustained.”
In Parkes v. White, 11 Ves. R. 210, 222, Lord Eldon said, “the wife had the right to dispose of the estate as a feme sole, and that ‘ White ’ being a mere trustee to preserve contingent remainders, and to pay the rents to the wife’s separate use, was not such a trustee to whom the doctrine of the courts in regard to trustees buying trust property applied.”
In Essex v. Atkins, 14 Ves. R. 542, Sir William. *492Grant declared, “that if upon the whole evidence the wife was a free agent, and understood what she did, the court had no choice, but must give effect to her contract.” See also Grigsby v. Cox, 1 Ves. Sen. R. 517.
Applying these plain tests to the case before us, it is difficult to escape the conclusion, that the separate estate is chargeable with the debt in question. Subsequent events show that the purchase of the slave was unwise; but the court can only look at the transaction as it occurred, and not by the light of subsequent events. So regarding it, we have no choice but to enforce the debt out of the separate property by a decree against the personal estate, and the rents and profits of her real estate.
The record discloses the fact, that Mrs. Steele, after the death of her first husband, sold and conveyed her interest in the McKee tract, mentioned in the seventh clause of the will, and that all the purchase money has been paid, except the sum of $507.68, for which a judgment was recovered against the purchaser. The Circuit court rendered a decree for this sum in favor of the plaintiff in this suit, requiring the judgment debtor to pay the amount to him. It is insisted that this is erroneous, because it is an appropriation of the principal of the fund, whereas the plaiutiff is only entitled to the interest as a substitute for the rents and profits of the tract.
It does not distinctly appear what was the price paid, or stipulated to be paid, by the purchaser. It may be fairly inferred it was about $1,250, in instalments of $208.33 each. The amount decreed by the Circuit court would about equal one of these instalments, and a part of another with their accruing interest—rather more than one-sixth of the purchase money—Mrs. Steele having, by her alienation of this *493tract, withdrawn the rents from the control of the court, and placed them beyond the reach of the creditor, the court may justly subject so much of the prin-' cipal money, by way of substitution, as will constitute a just compensation for the rents and profits. The amount thus appropriated by the decree does not exceed what might have been derived from the land itself had it continued in the possession of Mrs. Steele. Ho injury is done Mrs. Steele by this application of the purchase money, because the effect is to relieve pro tanto the remaining separate estate in her possession. Upon the whole, I think there is no error in the decree, and it must therefore be affirmed.
In arriving at this conclusion, I must be permitted to say for myself, that if the question was res integra, it would be a matter of grave consideration whether it would not better accord with justice, humanity and the intention of the parties to hold with Chancellor Kent, that the right of a married woman to dispose of or encumber her separate estate is not absolute, but only sub modo, to the extent of the power given her by the instrument creating the estate. The doctrine of the courts as now expounded, while protecting the wife against the debts of her husband, leaves her helpless and exposed not only to her generous impulses in his favor, but to his secret influences, as difficult to be resisted as they are to be detected. The law upon this subject is, however, too firmly established, in this state at least, to be now called in question. And it must be admitted there is great force in the idea that the courts having once established that a married woman may hold separate "estate as a feme sole, the jus disponendi necessarily followed as an incident to the estate. Restrictions upon the power of aliening or charging the estate are modifications of the right of *494property, and can, of course, only exist when found in the instrument under which the estate is derived. Besides, as has been said by Chief Justice Gibson, considerations of this sort are better addressed to those who frame settlements than to those who interpret them. If they have not chosen to do it; if they have made the use in the married woman general, employing the broad term and no restraining words, why should a judge who may think differently from them of what is expedient undertake to alter what they have provided. Thomas v. Folwell, 2 Wharton R. 11. The remedy is not in the courts, but with those who create the estates.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481892/ | Anderson, J.,
delivered the opinion of the court.
This is an action of slander at common law, and not under the statute, and must therefore be governed by common law rules. It lies for words which are actionable in themselves, or for those which, though not actionable in themselves, have caused some actual consequential damage, which must be alleged and proved. Words of the first description must impute guilt of some offence, for which the plaintiff, if guilty, might be indicted in the temporal courts, and punished as for an infamous crime, at least punishable with imprisonment. 2 Chit. Black., book iii, c. 8, top p. 95, side 123, note 14, and cases cited.
The words themselves may not import an imputation of crime, but spoken with reference to preexisting or extrinsic facts, as shown by the conversation or discourse of the defendant, at the time the words were spoken, do impute crime. But to be actionable, they must be shown by the averment of the extrinsic facts, and by the colloquium referring to them to impute crime, or some high misdemeanor punishable ignominiously by the temporal courts.
In Holt v. Scholefield, 6 T. R. 691, Lord C. J. Kennyon said, “Either the words themselves must be such as can only be understood in a criminal sense, or it *498must be shown by a colloquium in the introductory part that they have that meaning, otherwise they are not actionable.” The words must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor. Onslow v. Horne, 3 Wils. R. 177. And it is necessary to set forth' precisely the words spoken. It has been held by some that it is sufficient to set out the words in substance. But the weight of authority is contra. Mr. Robinson, in his valuable work, says the rule is now well established that the words themselves must be set out. 4 Rob. Prac., p. 688, citing Parsons v. Bellows, 6 Newh. R. 289; Haselton v. Weare, 8 Verm. R. 480. And it has been held, that the same strictness in setting out the words spoken is required in civil as in criminal proceedings, the action being ex delicto. Ibid, citing Cook v. Cox, 3 Maule and Sel. 110.
Let us apply these principles to the case in hand. In the first four counts the words are laid without a colloquium. In the first count they are, “Dick Stinnett killed my beef.” Innuendo, “meaning thereby that the plaintiff had killed and carried off feloniously a beef, which some person or persons had shortly before that killed and stolen from the field of the defendant.” In the second count they are, “he (meaning the plaintiff) killed the beef,” “meaning that the plaintiff had clandestinely and feloniously killed and carried off a beef belonging to her the said Ann.”
The office of the innuendo is only to ■ give the meaning of the words spoken. It cannot extend or enlarge the meaning of the words, or introduce new matter. Rex v. Howe, Cowp. R. 672; Moseley v. Moss, 6 Gratt. 534; Holt v. Scholefield, 6 T. R. 691; 4 Rob. Prac. 694-5. An innuendo cannot be given to words which they do not necessarily import, either of themselves *499independently of any other circumstances, or with necessary reference to some other circumstances occurring at the time of the accusation. 2 Chit. Bla., B. iii, c. 8, top p. 95, side 123, note 14, and eases cited. In Van Vechten v. Hopkins, 5 Johns. R. 211, 219, Van Hess J. says, “ An innuendo is explanatory of the subject matter, sufficiently expressed before, and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain.” That can only be put upon the record by the averment and the colloquium.
It is clear that the words laid in these two counts do not of themselves import an accusation of felony. “He feloniously killed and carried away my beef,” is not the necessary or natural import of the words, “He killed my beef.” It is clear that these counts are fatally defective and demurrable. And the third and fourth are obnoxious to the same objection.
The fifth count sets out a colloquium in these words: “Onthe day and year aforesaid, in the county, &e., in a certain other discourse, which the said Ann, wife of the said Hansbrough, had with divers other persons, of and concerning the said Richard, and of and concerning a certain steer or beef, the property of said Ann, which had shortly theretofore been by some person or persons, to the plaintiff unknown, feloniously killed, taken and carried away from a field belonging to the said Ann, she, the said Ann, spoke and published, in the presence and hearing of said persons, these false, malicious, scandalous and defamatory words of and concerning the plaintiff: ‘Dick Stinnett killed my beef;’ innuendo, (meaning thereby that the plaintiff had feloniously killed the steer or beef aforesaid, belonging to the said Ann, in her field). ‘He *500killed the beef;’ innuendo, (meaning thereby that the plaintiff had feloniously killed the beef oi’ steer' aforesaid, belonging to the said Ann, in the field, and carried the same away).” The question is, do these innuendos give the necessary or natural meaning of the words laid, taken in connection with the extrinsic facts averred, and the colloquium? And does it appear upon the face of this count, clearly and unequivocally, that the defendant imputed to the plaintiff felony, by the words which she is alleged to have spoken ? The words themselves not being actionable at common law, unless the averment of extrinsic facts, and the colloquium concerning them, show that the defendant, in speaking the words laid, imputed the crime of felony, they are not actionable, and consequently, the defendant was not bound to answer; and the demurrer should have been sustained.
To say that one “ killed my beef,” without an allusion to any circumstance connected with the killing, could not be construed to be a charge of felonious killing. And it may be that the beef had been feloniously killed and taken away a short time before the words were spoken, as is averred in this count, but if nothing was said about it at the time the words were spoken, or it be, not averred that she had notice of the felonious killing and taking away, or that it was so reported in the community, and known to her when she spoke the words, it would by no means be a natural or necessary conclusion, that she meant to accuse the plaintiff of felony, by merely saying “he killed the beef,” or “my beef.” It is averred that the beef had been “ feloniously killed and carried away,” but it is not averred that there was any colloquium about the felonious hilling, or that the defendant knew that it had been feloniously killed and taken away, or that it *501was so reported in the community, and that she knew that it was so reported at the time of the speaking of the words laid in this count of the declaration.
If the accusation is not made by the words spoken, "taken in connection with the colloquium and averments, it cannot be supplied by the innuendo. For it is a clear rule of law, that the innuendo cannot introduce a meaning broader than that which the words, taken in connection with the‘averments and the colloquium, will naturally bear. Nothing, says Lord Chief Justice Ellenborough, can be more clear than the rule laid down in the books, and which has been constantly adopted in practice, not only where the words spoken do not in themselves, naturally convey the meaning imputed by the innuendo, hut also where they are ambiguous and equivocal, and require explanation by reference to some extrinsic matter to make them actionable, it must not only be predicated that such matter existed, but also that the words were spoken .of and concerning that matter. Hawkes v. Hawkey, 8 East’s R. 427. In that case there was an averment that the defendant had put in his answer on oath, to a bill filed against him in the exchequer; and the words laid were, “I have no doubt you (meaning the plaintiff’s servant) will forswear yourself, as your master •(the plaintiff) has done before you.” There was no •colloquium that the words were spoken with reference to that answer. But there was an innuendo that the plaintiff had perjured himself in what he had sworn in the aforesaid answer. The chief justice said, “The prefatory allegation that the plaintiff’ had put in his answer on oath to a bill filed against him in the exchequer is right, but whether the words were spoken with relation to that answer, does not appear, unless after verdict it must be taken that they were so *502spoken.” After careful deliberation the court held, that the innuendo could not supply the want of a colloquium, even after verdict, on a motion in arrest of judgment. And this is reasonable. The averments and colloquium, if material to impute criminality, must be proved. But the innuendo, being a mere explanation of antecedent words, need not be proved; and would tend to mislead the jury if it extends the meaning of the words further than they will naturally bear, even when read in connection with the averments, and the colloquium. Indeed, if the innuendo be allowed to enlarge the meaning of the words, a party may be held legally responsible for words spoken, which by the law ai’e not actionable, and for which he fs not legally responsible.
In this case the defendant’s beef may have been killed by the plaintiff without any participation by him in taking and carrying it away. It might have been killed by him by accident, or it might have been shot by him by design as a trespasser, and others may. have feloniously taken it away. The defendant may have had good reason to believe that he killed it, whilst she had no reason to believe that he killed it animo furandi. And she only charged him with the killing. She never said that he took and carried it away, or that he feloniously killed it, so far as - it appears from this declaration. Is it right to hold her resppnsible for words which she did not utter, or for imputing a crime to the plaintiff which the words spoken do not import ? Surely not, unless it clearly appears from matter extrinsic averred, or from her discourse at the time, that the words spoken by her in that connection imputed to the plaintiff the crime. And that such imputation was made by the words spoken should clearly appear upon the record, other*503wise, the words spoken not being actionable in themselves, she is not bound to deny that she spoke them, or to justify. She is not bound to answer. The de-' claration is demurrable, because it does not show a right of action in the plaintiff. It was rightly said by Baldwin, J. in Moseley v. Moss, supra, “When the ground of defamation is, that the words imputed to the plaintiff a criminal offence (the case here) it must be made to appear so, clearly and unequivocally, either by the words themselves, or, if they do not express that meaning clearly, by proper averments as to the subject-matter of the discourse.” “ The meaning cannot be supplied by an innuendo.”
The sixth count is liable to all the objections mentioned to the fifth count. The words laid are, “We have no idea that Leighton killed the beef. Mr. Garland says that Stinnett (meaning the plaintiff) came out there in the field the day before waiving a stick about, and he killed the beef.” The allegation in this count is, not that the defendant made any accusation against the plaintiff, but that she said, Mr. Garland says, &c. And the innuendo from these words is, an accusation by the defendant “that the plaintiff had been seen waiving his walking stick in the field, in which the beef was killed, the day before the killing occurred, and that the said plaintiff had feloniously killed, taken and carried away the said beef, the property of the said Ann.” The words laid in this count do not justify the inference.
The seventh count sets out the colloquium, and the averment as in the two preceding counts, and then adds, “ she, the said Ann, in order to cause the said plaintiff to be falsely suspected of committing the said felonious killing and carrying away,” spoke, &c. The declaration must show, either by the words them*504.selves, or by extrinsic matter in reference to which they were spoken, that an offence was imputed by the defendant to the plaintiff, which would constitute slander at common law. And all the facts which are necessary, to show that the words are actionable, and to make out a case of grievance, for which the defendant is responsible to the plaintiff in an action at law, should be set out in the record, otherwise the defendant is not bound to answer. In Rex v. Horne, Chief Justice De Grey said, “In all cases those facts which are descriptive of the crime must be introduced on the record by averments, in opposition to argument and inference.” The objection to the clause in question is, that it is an inference; and that the facts put upon the record, by the averments and colloquium, do not justify it. If the facts averred, and the colloquium had justified the inference, the count would have been good.
After the evidence on both sides had been closed, the court allowed the plaintiff to amend his declaration by adding an eighth count. We are of opinion that the amendment was material to the merits, and therefore not allowable at that stage of the proceedings by the statute. Code of 1873, c. 173, p. 1119, sec. 7. But if it had been properly allowed, it is liable to the objections made to the fifth count.
It is proper to say that the declaration appears to have been skilfully drawn, and the defect seems to have been not in the pleader, but in the facts of the plaintiff’s case. But as it does not appear from the record that all the evidence has been certified, it may be a case for amendment upon the decision of the demurrer, and in conformity to precedents established by this court, the cause will have to be remanded, that *505the plaintiff may have an opportunity to amend if he desires it.
Other errors have been assigned. We will notice •only such as raises questions which may arise again upon another trial of the cause. As to evidence of the speaking of like words, antecedent or subsequent to the words laid in the declaration, it has been held that it is admissible upon the question of damages, but not until the words laid have been proved. Before that is done, it seems to be contrary, both to reason and authority, to admit such evidence, as it can be admitted only to affect the measure of damages.
The court can perceive no reason why a deposition, which has been read to the jury, may not be given to the jury in their retirement, if what is objectionable in it has been erased.
This court cannot review the ruling of the court of trial, upon the motion to set aside the verdict and grant a new trial, as the facts are not certified.
It does not appear from the record that the action was barred by the statute of limitations which was pleaded.
The only remaining assignment of error which we deem it necessary to notice, is that the words spoken were privileged communications, or were spoken under circumstances which rebut the imputation of malice. It is essential to all defamation, that it should he malicious. But it is an implication of law that all unauthorized defamation is malicious. There are, however, cases in which this inference of law does not arise, and where communications which would ■otherwise be defamatory, are justified by the occasion •on which they are made. In such cases express proof of malice is necessary to render the communication •defamatory. Such is the law with regard to con*506ditionally privileged communications. Mr. Starkiedescribes them to comprehend all cases, where the author of the alleged-grievance acted in the discharge of any public or private duty, whether legal or moral,, which the ordinary exigencies of society, or his own private interest, or even that of another, called upon him to perform.
But, it not being certified that the record contains all the evidence in this cause, it is not in the power of this court to decide whether the circumstances under-which the words were spoken, in this ease, rebuts the implication of malice.
The judgment of the court below must be reversed, with costs, and the verdict set aside; the demurrer to-the. declaration sustained, with leave to the plaintiff, if he desires it, to amend his declaration.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the judgment of the court below, overruling the demurrer to the original and amended declarations, is erroneous. It is therefore considered that the judgment of the Circuit court of Botetourt county be reversed and annulled, and that the defendant in error do pay to the plaintiffs-in error their costs expended in the prosecution of their writ of error here; and that the cause be remanded, with instructions to the said Circuit court to-give the plaintiff' leave to withdraw his joinder in the demurrer, and to amend his declaration if he desires-to do so, and if he does not wish for such leave, to-give judgment upon the demurrer. Which is ordered-to be certified to the said Circuit court of Botetourt county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481893/ | Christian, J.
This cause is before us upon an appeal allowed to a decree of the Circuit court of Frederick county. A statement of the following facts is necessary to a proper understanding of the case, and the application of the principles of law which must govern it.
On the 2d day of June 1858, James 1L Hite, Sr., sold to his two sons, J. Irvine Hite and J. Madison Hite, his farm, lying in Clarke county, containing about seven hundred acres, for the sum of §45 per acre. One-eighth of the purchase money was to be paid on the 1st day of January 1859, and one-eighth annually thereafter, until one moiety should be paid; one-eighth of the other moiety was to be paid at the death of the wife of the said James M. Hite, Sr.; and one-eighth annually thereafter, until the whole should be paid, when the purchasers were to have a deed for the land; the interest on the whole amount to he paid annually, from the 1st day of January 1859.
Hite died in the latter part of the year 1859, having made and published his last will and testament, which was duly admitted to probate and record in the County court of Frederick county. By this will the sum of' five thousand dollars was directed to he applied to the *510support of the testator’s wife (then and now an inmate of the Lunatic Asylum at Staunton), and subject to this provision—all of his property was to be divided equally between three of his children, viz: J. Madison Hite, Ann Eliza Stinker, wife of T. J. Skinker, and Caroline, wife of Alexander Baker, whose share was devised in trust to her brother, the said J. Madison Hite, and the executor was authorized to make a deed to his sons, the purchasers of the said land, after the death of the testator’s wife, and when the entire purchase money should have been paid. Philip "Williams, of Winchester, a lawyer of eminence‘and large experience, was constituted the executor of this will.
In November 1859, the two sons of the testator, who had become the joint owners of the land under the purchase referred to, by agreement between themselves, appointed certain persons to make an equal division of the land between them, and, in January 1860, executed a deed of partition, whereby they conveyed in severalty to each other the portions which had been respectively allotted to them in said division.
At the death of the testator between two and three thousand dollars had been paid on account of the purchase money for the land. The whole balance amounting, at the death of the testator, to the sum of nearly thirty thousand dollars, remained unpaid, and for that balance the land stood as security for its payment; for, by the terms of the contract of sale, the title was to be withheld until the whole of the purchase money was paid. The debts of the estate were ■so inconsiderable that it was not necessary to collect any part of this fund for the payment of the testator’s debts.
The great bulk, if not the whole of the testator’s -estate, consisted of this fund in the hands of his two *511sons, due on account of the land, and for which the land was bound as security for its payment. By the provisions of the will of James M. Hite, Sr., this fund was to be equally divided between J. Madison Hite, Caroline Baker and Ann Eliza Skinker, three of the ■children, and the sole devisees of the testator.
In October or November of the year 1862, Irvine Hite having received what he considered an advantageous offer for the portion of the land allotted to him, in the division between himself and his brother, applied to the executor to know whether he would receive Confederate money for the debt due from him to his father’s estate.
The executor, after communicating with James M. Hite, and obtaining his assent in his own right, and as trustee for Mrs. Baker, to receive that currency in payment of their legacies, and after making an ineffectual attempt to obtain the assent of Skinker and wife, agreed with Irvine Hite that he would receive Confedérate money in payment of the debt he owed to his father’s estate. Accordingly, on the 24th day of November 1862, the sum of $19,234.12 (that being the price agreed upon between Irvine Hite and Wood, the purchaser of the land,) was paid to the executor in Confederate treasury notes, and a deed executed on that day by Hite and wife, and the executor, Williams, was delivered to Wood.
Out of this fund, thus received, the executor paid over to J. Madison Hite, in his own right and as trustee for Mrs. Baker, the respective proportions due them as the devisees and legatees of his testator. The proportion due to Mrs. Skinker remained in his hands, and failing to hear from Skinker, who was in the army, or Mrs. Skinker, who was in a distant part of the state, and for a long time within the lines of the *512Federal army, the executor invested the fund in seven per cent. Confederate bonds. Whether this investment was made in the name of the executor, or in the name of Skinker and wife, does not appear, nor, in my view of the case, is it material to be knowu.
Thus matters stood until after the close of the war, when, in February 1866, Skinker and wife' filed their bill in the Circuit court of Frederick against the executor and legatees of James M. Hite, Sr., Irvine Hite» and the purchaser of the land from him, in which they claim that they are entitled to one-third of the estate of James M. Hite, after payment of his debts; that this legacy to Mrs. Skinker was secured by a lien upon valuable real estate; that they have never received any part of that legacy thus secured; that they had never executed any transfer, release or acquittance for the'same, or any part thereof; nor given any consent or sanction, or done any other act tending to impair their right to the legacy, or any lien for the same; and they ask for such decree as may be necessary for payment of whatever sum may be justly due them, and for enforcing the same by sale of the lands or otherwise.
To this bill the defendants all answered. The only answer necessary to be noticed is that of the executor, Williams, which will be more particularly referred to presently. After the answers of all the defendants were in the cause, the executor filed a cross-bill by leave of the court, which he denominates a cross-bill for discovery, in which he charges that Skinker and wife knew of the sale made by Irvine Hite to Charles Wood as early as 1868, and neither of them informed said Williams, the executor, of their dissent or opposition to said sale; that said Thomas J. Skinker passed through Winchester, where executor resided, some*513time in 1863, and never called upon him, or gave him any information as to his objecting to said sale; and calls upon them to answer when they or either of them were informed of the sale made by Hite to Wood for Confederate money; and whether they or either of them ever informed the executor that they objected to the sale or the terms thereof; whether Thomas J. Skinker passed through Winchester in the year 1863; and when, and whether he made any communication of any kind in relation to said sale until after the surrender of General Lee’s army.
To this cross-bill Skinker and wife answered, that Mrs. Skinker heard of the sale from Irvine Hite to Wood as early as Hovember 1862, but had no communication with Mr. Williams, the executor, on the subject; that Thomas Skinker heard of the sale at the same time, but was in the federal lines, and could make no answer to Mr. Williams’ letter on the subject for want of mail facilities; that Thomas J. Skinker was a prisoner in Washington for some time in the spring of 1863, and was in a very critical state of health during the greater part of th'e war from a serious wound and other causes; that he did pass through Winchester just after the battle of Gettysburg, under military orders not to leave the ranks, and a few days thereafter returned from Williamsport through Winchester on the Sabbath, prostrated from sickness, and was ordered immediately to a hospital at Staunton. Such was the nature of the cross-bill and the answer thereto.
Depositions of numerous witnesses were taken to show that at the period when the land was sold by Irvine Hite, and at the time the Confederate money was received by the executor, that currency was the only currency in circulation, and that it was received *514in payment of 'debts generally, and that land was bought and sold for that currency.
In September, 1868, the case came on to be heard upon the bill and answers, the cross-bill for discovery and answer thereto, and the depositions of witnesses, and the court reserving certain questions for future adjudication, decreed “that the defendants, John J. and James H. Williams, administrators with the will annexed of Philip Williams, deceased, out'of the assets of said testator, in their hands, do pay to the complainants (Skinker and wife) the sum of four thousand nine hundred and eighty-nine dollars and fifty-five cents, with interest thereon at the rate of six per centum per annum, from the 24th day of November, 1862, until paid, and when paid, to be a credit pro tanto upon the executorial account of James M. Hite’s estate.” It is from this decree that an appeal has been allowed to this court.
The grave and important questions arising in this case (in the form in which they are presented here) are now before this court for the first time. In the numerous and multifarious cases growing out of dealings in Confederate currency, and contracts made with reference to that currency, the question has not yet been definitively adjudicated as to how far or under what circumstances an executor may be 'excused or justified in receiving a depreciated currency for a gold debt, well secured, without incurring a liability for a devastavit. This question we have to meet for the first time in this case. I do not deem it necessary, for the purpose of my conclusions, to refer to matters put in issue by the pleadings, or to the disputed facts. I shall ground my opinion upon the conceded facts in the cause, and upon those only. What are those facts ? It must be conceded—1st. That Mrs. Skinker is entitled, *515under the will of James M. Hite, Sr., to one-third part of his whole estate, subject, first, to the payment of his debts, and to the appropriation of $5,000 for the support of his insane wife. 2d. That the legacy to Mrs. Skinker was secured by a lien upon valuable real estate. 8d. That Skinker and wife have never executed any release, transfer or acquittance for this legacy, and have never given their assent or sanction, or done any other act tending to impair their right to their legacy, or any lien existing to secure its payment. 4th. That they have never, through themselves or their agents, received one dollar of this legacy, and never authorized the executor or any one else to receive for them any portion of the same in Confederate treasury notes, or to make an investment for them in Confederate bonds. 5th. That it was not necessary to collect the debt due from Irvine Hite to the estate of James M. Hite, for the purpose of paying debts of the estate, for no such debts were outstanding against the estate, all had been paid, and Irvine Hite’s debt was in fact due to the legatees: they were entitled to receive it through the hands of the executor, and he had no occasion to collect the fund except for the purpose of paying it over to them.
These are the undisputed and conceded facts in the cause; and the question arises upon these facts, whether the executor receiving this debt, well secured upon real estate, in a currency depreciated to nearly one-half its nominal value, without the consent of the legatee to whom it was to be paid, has incurred a responsibility for which he is personally liable; in other words, whether to the extent of receiving the proportion of the debt due to Mrs. Skinker, without her consent, he has committed a devastavit. It must be conceded also that no man knew better than Mr. *516Williams, the executor, that he had no authority as executor, to collect the debt due from Irvine Hite in Confederate currency, unless (there being no debts of the estate) the heirs and legatees would agree to receive it from him. He was a lawyer of large experience and eminent in his profession, and must be presumed to understand his duties and liabilities as an executor. But the following letter, filed in the record, shows that he well knew and fully understood his obligations to the estate and to the legatees. It is addressed to James M. Hite, himself one of the legatees, and is ip the following words: “ Irvine can make sale of his land in Confederate money to Charles Wood for a sum sufficient to pay all that is due from him to the estate. But as I am acting only as executor it would, not be proper for me to receive Confederate money unless the heirs will take it from me. I would advise them to take it. Will you be good enough to let me know whether you will receive Mrs. Baker’s share in Confederate money. It will be well, I think, to invest it in Confederate - bonds. Let me know immediately, as it is important to the estate and to you that the sale should be made.”
The result of this communication was that the executor obtained the consent of two of the legatees to receive their proportion of the legacies due them in Confederate money. But he never did obtain the consent of Skinker and wife; and after waiting for some time and making ineffectual attempts to get their consent, he deliberately took upon himself the responsibility of receiving it without their consent. He knew that in doing this he was incurring the risk of a refusal upon the part of Skinker and wife, and he sought to protect himself against that risk (in receiving Confederate money for them without their consent) by taking *517as indemnity from Hite the sum of upwards of four thousand dollars over and above their share of the fund collected. In making this statement I only give the executor’s own account of the transaction. Let him speak for himself. In his answer he says (after stating that he obtained the- consent of two of the legatees to a sale of the land in Confederate money): “The complainant, Thomas J. Skinker was then in the Confedei’ate army, and after waiting for a time to see or hear from him or his wife, but without success, said J. I. Hite, was so anxious to conclude the sale with Wood and pay off his debt, stating, aa well as respondent recollects, that he could never pay the debt without selling, a'nd if he did not sell then, that the interest accruing might so increase the debt that the land would not pay it, an opinion in which respondent concurred, that if he would unite in the deed to Wood, and receive the Confederate money in payment of his debt, that he would leave an excess of $4,100 or $4,200 in the hands of respondent to indemnify him; and if Skinker and wife require it, to pay so much or all of that excess to them over and above their equal share. He expressed the confident opinion that complainant would assent, in which respondent concurred; and said Hite agreed that he would endeavor to see complainants as soon as possible and get their consent to the arrangement; and l’espondent said he would also endeavor to communicate with them to obtain their written consent. Under these fads respondent agreed to receive the money and unite in the deed as executor, &e.”
It is manifest, therefore, both from the answer of the executor, as well as from the letter addressed to -James M. Hite, above quoted, that he was convinced that, in his own language, “ it was not proper for him to re*518ceive as executor the Confederate money, unless the heirs would consent to receive it from him.” Two of them having received it, he no doubt believed that the third (Mrs. Skinker) would also receive it. But he deliberately took upon himself the responsibility of receiving her share without her consent, feeling, it is evident, at the time satisfied that he would be fully indemnified for any risk he might assume in having in his possession upwards of four thousand dollars more than her share of the fund. Can he now be relieved of a responsibility which he deliberately assumed, and throw the loss upon the legatees, whose assent to these transactions the executor himself thought necessary, but vainly sought to obtain ? I think not. I think it is clear that without imputing any mala Jides, or intentional fraud to the executor, he has committed a devastavit to the extent of the amount which he received in Confederate money, without the consent of the legatees who were entitled to receive it.
It is not necessary, in order to subject an executor to personal liability, to show that he acted fraudulently. He is subjected by law to liability, personally, for various acts of misconduct, amounting to a violation or neglect of duty, and which is called in law a devastavit, or wasting of the assets. An executor may commit a devastavit by such acts of negligence or careless administration as defeats the rights of creditors, or legatees, or parties entitled to distribution. 2 Lomax’s ex’ors 475-77-485, and cases there cited.
It is a proposition too plain to require the citation of authority to support it, that where an executor releases a debt due to his testator, or cancels or delivers to the obligor a bond, of which the testator was obligee, this will charge him to the amount of the debt; and so if he releases a part of the debt, or can*519cels, or delivers up the whole obligation, when, in point of fact, he has received but a part of it, he commits a devastavit, and will be charged with the whole, though he received but a part. In the case before us, the executor in fact received a little more than half the debt, and gave an acquittance for the whole, and that too when the necessities of the estate did not require it, and without the consent of one of the legatees entitled to receive it. I do not mean to say that in every case where an executor received Confederate currency greatly depreciated, for a debt payable in a sound currency, he thereby commits a devastavit. There may be many cases where the courts would hold an executor justified in receiving such a currency; as where the necessities of the estate required it, where it could be used in payment of the debts of the testator, or where (there being no debts) the parties entitled to distribution consent to receive it, or where the security for the debt had become doubtful, and the estate could be benefited bjr receiving even a depreciated currency. It is difficult to lay down any general rules applicable to all cases which arise out of dealings by executors during the war. Each case must depend upon its own facts and the circumstances at the time surrounding the executor. But I think it is clear that where the exigencies of the estate do not require the collection of a debt, which rests upon undoubted security, and especially where the only object of the collection is for distribution among the legatees, and the collection is made without the consent of the legatees, the executor must be held personally liable when he permits the debtor to discharge his debt in a depreciated currency, and he will not be permitted to shift the responsibility from himself and cast the burden of loss upon the legatees. An execu*520tor, who receives a depreciated currency under such circumstances, commits a devastavit, for which the law casts upon him a personal liability.
The able counsel for the appellants seeking to relieve the executor in this cause, from the stress of those well settled rules of law which declare what constitutes a devastavit, and fixes a personal liability upon an executor, labored to show that the executor in receiving from Irvine Hite Confederate currency, benefited the estate, because the security for the debt was doubtful, inasmuch as the .debts due from Madison ■ and Irvine Hite exceeded the value of the land. They submit a statement in figures, by which they show that the debt secured by lien on the land amounted to $32,728.27, while the value of the land (after deducting a small portion sold to Bowen) was $31,644.03; showing an excess of debt over value of land of $1,084.24. And it is argued that while the debt was increasing by the accumulated interest, the land was [subject to be greatly'depreciated by the fact that it lay within a region much exposed to the casualties of war and the depredations of contending armies; and that the buildings, fences and timber were in constant danger of destruction; and that therefore the security for the debt was doubtful, and the executor was justified in collecting it in a depreciated currency. It is a sufficient answer to this view to note the fact that one-third of the debts secured upon the real estate, went, under the will, to J. M. Hite, and that in point of fact the amount due the estate, which the executor was charged with collecting, was only two-thirds of the amount estimated as the debt secured on the land, to wit: the sum of $21,818.84; so that in point of fact, there was a debt of $21,818.84 secured by lien on land worth at least $31,644.03; *521thus leaving a balance of nearly $10,Q00 over and above the debt which was to be paid. I think, therefore, it must be conceded that the land was the most ample and certain security for the debt.
But it is insisted by the learned counsel for the appellants that the executor acted in good faith, himself believing that it was best for the estate, and those entitled to • distribution, that the debt should be collected; and that upon the principles settled by this court in Davis, comm’r v. Harman and in Myers’ ex’or v. Zetelle, 21 Gratt. 194, 733, he ought to be excused from all liability. As has been observed before, the question how far, or under what circumstances an executor may be excused or justified in receiving Confederate money, greatly depreciated, for a gold debt well secured upon real estate, without incurring liability for a devastavit has never been settled by this court. Nor is it necessary to charge an executor for a devastavit to show that he has acted fraudulently, or shown mala jides in his administration of the estate. The cases relied upon involved very different questions from the case at bar. In the one case, Davis v. Harman, a commissioner of the court who had in his hands certain funds, claimed by contesting parties, was directed to hold the fund until the rights of the parties could be litigated. He put the fund in bank and there it perished, not in consequence of the deposit, but in consequence of “the sudden and irretrievable destruction of the whole currency of the country by the termination of a civil war, which had destroyed the very power that created it.” The court held that the commissioner had incurred no personal liability.
The case of Myers v. Zetelle, 21 Gratt. 733, rested upon the peculiar facts of that case. The pivotal *522point of that case was the power of attorney under which the agents acted, conferring upon them the amplest power and the largest discretion. They were clothed with authority to sell his real estate, and to collect his debts, whether due or not due. They collected a debt, it is true, which was not due, and which was secured by a lien upon a house in the city of Richmond, and this court held that, under the peculiar circumstances of that case, the agents could not be held liable. This point in that case is pressed in argument here as conclusive of the position that the executor in this case ought not to be held liable. But, in my view, the cases rest upon totally different grounds. In the' first place, the agents in the case of Myers v. Zetelle, were clothed with the undoubted authority to do what they did do by the very terms of the power of attorney; and the only question was, whether in the exercise of a full discretion, voluntarily conferred upon them by their principal, they acted with such a reckless disregard of their obligations as to impose on them a legal liability for their conduct. Referring to that case upon this point, I find that after noting the fact that they had the undoubted authority, under the power of attorney, to collect thiB debt, and referring to the circumstances-which then surrounded the agents, the court used the' following language: “The city of Richmond was threatened, if not actually invested, by powerful armies from different points. They had every reason to believe that the city would be bombarded and burnt if taken. The security for the debt of Pizzini was the house which was mortgaged to secure the debt. If that was burnt, it was doubtful if the debt could be made.
“ The evacuation of Richmond was an event that *523might be expected any day. They had no reason to suppose that the evacuation of the city would he followed by the surrender of the Southern armies, but that the war might still continue, and the Southern cause yet be triumphant, and that the best security they could have would be the bonds of the Confederacy. With this belief, and under these circumstances, they received the debt of Pizzini. Looking back upon these events from our standpoint, we may say it was an act of folly upon the part of these agents to collect this debt so well secured; but can we say, under the circumstances which then existed, they acted with such reckless disregard of their obligations as to impose on them a legal liability for their conduct. All we can say is, that as events have transpired, it would have been better if they had not collected this debt; but can we say that, under all the circumstances, they were guilty of a breach of trust and violation of duty. It is easy to conclude now that a deed of trust upon a house in the city of Richmond was better security for a debt of five thousand dollars than a bond of the Confederate States. But when that city is threatened by beleaguring armies with bombardment and fire, we may conclude that a man at least acted honorably and in good faith, who, having unwavering confidence in the triumph of the southern cause, preferred a bond of the Confederate States as better security than property thus threatened with destruction. * * * *
‘iBut let it be conceded that these agents did commit errorB of judgment; that, by a different course, they might have saved a large portion of their principal’s estate from the wreck and ruin of the war; that if they had not sold his real estate that would have escaped the hazards of sequestration as well as the fires-which did at last consume a large portion of the city;. *524that the debt of Pizzini, if they had let it remain till due, would have been also saved to their principal: Admit all this, and yet in the absence of any proof of fraud or malafides, upon the well settled principles of courts of equity they cannot be held liable for the loss their principal has suffered—that loss must fall on him and not on them.”
I have extracted this much from the opinion in Myers v. Zetelle for the purpose of showing the exact grounds upon which this court, in that case, relieved the agents from personal liability. In the first place, they had the undoubted authority to collect the Pizzini debt, though not due, by the express terms of the power of attorney. In the second place, they had the best reasons to believe, and did honestly believe, that the security (being a house in a city which was the objective point of all the operations of the Federal armies) was threatened with destruction. How, in the case before us, while, as a matter of course, the executor has the general power to collect the debts due his testator, he certainly has no right to release a debt, or to discharge a debtor of undoubted solvency from his whole obligation by receiving a part of it. He has no authority to receive in a depreciated currency a debt payable in gold and well secured upon real estate ample in value to make it perfectly safe, unless the exigencies of the estate require it; or, where there are no debts (as in this case), those who are entitled to distribution consent to receive it. In Myers v. Zetelle the agents had the express authority to collect Confederate money, for that money was in circulation at the time the power of attorney was executed, and was very soon afterwards the only circulating medium. Again, in the case 'before us the security for the debt was not a house in a city threatened with destruction, *525a large portion of which was actually consumed by fire upon being captured, but it was a large tract of land in the country, upon which there were no buildings to be destroyed, and which could not be so materially injured by the ravages of war as to seriously impair the security.
The two cases differ, therefore, in these two essential particulars. In the one case the authority to collect the debt was conceded; in the other, the executor himself admits, in writing, that “it would not be proper for him, as executor, to receive Confederate money, unless the heirs would agree to take it from him.” In the one case the security was, to say the least, doubtful; in the other it was ample and could not be destroyed.
But it is argued that the executor ought to be relieved because a majority of the heirs agreed to receive Confederate money. Surely, the consent of two of the heirs cannot affect the rights of the other one, who never gave her assent, but purposely withheld it. It was manifestly to the interest of James M. Hite, in his own right, and as trustee for Mrs. Baker, to give his assent to the arrangement proposed, to sell the land for Confederate money, and to receive that currency in payment of their legacies, for every dollar that was received from Irvine Hite to that extent relieved the land of James M. Hite from the lien fixed upon it by the will of his father for the payment of the purchase money. The interest of Mrs. Skinker was very different. Her whole patrimony consisted in her share of the debt due from Irvine and James M. Hite; and that debt had been secured to her by her father in reserving a lien upon land of sufficient value to make it secure, and its payment certain beyond a peradventure. There was no reason why she should give up. *526her whole interest in her father’s estate thus secured to her, and no consent on the part of the other heirs could possibly affect her interest. The argument now made, that a majority having assented to the arrangement the executor ought to be relieved, was not one which had any weight with as good a lawyer as Mr. Philip Williams; for the record shows that he made more than one attempt to obtain the consent of Skinker and wife, all of which were ineffectual, and it was not until Irvine Hite proposed to leave in his hands the sum of over four thousand dollars “ to indemnify him,” that he consented to the arrangement. He knew well, thai the assent of James M. Hite in his own right, could not bind Mrs. Skinker in any possible contingency. He not only sought himself to obtain their consent but gives prominence in his answer to the fact that Irvine Hite expressed the opinion that Skinker and wife would give their assent to the arrangement proposed, and that he promised to see them and obtain their assent. All this shows that it never entered into his head to conceive that the assent of two of the heirs could in any way' bind Mrs. Skinker.
But it is insisted that the executor is relieved from all liability, and the whole loss must fall upon the appellees, because Skinker and wife heard of the sale and did hot object to it, though they had opportunity to inform the executor-of their dissent, and, because they failed to do this, they must now be placed in the same situation as if they had given their assent. The record shows that Mrs. Skinker was in a distant county, which, part of the time, was in the lines of the federal armies, and all the time difficult of communication with the town of Winchester. It is not t shown that she knew anything of the matter till after *527the land was sold. Her husband, it is shown, was, 7 77 during the whole war, either in the Confederate army or in a northern prison, or in a hospital suffering wounds and sickness. He passed through Winchester but twice in the year 1863, once just after the battle of Gettysburg, under marching orders not to leave the ranks, and shortly afterwards on the Sabbath, when prostrated by sickness, and was sent immediately to a hospital at Staunton. Neither had the opportunity to express their dissent, if that was at all necessary to protect their interests. But was it necessary? Were their legal rights to be effected by the fact that they expressed no dissent? By no means. It was not a case where their “ silence gave consent.” If they had had the most ample opportunity to speak, their silence was sufficient to protect them. Without their voluntary consent, there was no power on earth that could wrest from Mrs. Skinker the patrimony which her father had so well secured to her, and compel her to receive Confederate money or Confederate bonds in the place of it. It was enough that she should remain silent and withhold her consent. ■ Without her consent, the executor has undertaken to convert her patrimony into a currency that has perished; without her consent, he has undertaken to put her all in Confederate bonds, not worth the paper upon which they were printed ; without her consent, he has deliberately chosen to take upon himself the responsibility of receiving a depreciated currency, and investing in worthless bonds what was a certain and ample security; without her consent, he has deliberately assumed upon himself the l’iskof assenting to a sale and receiving a depreciated currency, which at the time he admits in writing, under his own hand, “it was not proper for him to receive unless with the consent of the heirs;” and he *528executes a deed as executor, which he had no right under the will to execute (until after the death of the-testator’s widow), conveying the vei’y land upon which Mrs. Skinker’s legacy was secured. And while he has thus deliberately taken upon himself this risk and this responsibility, his representatives here are seeking to-throw the loss occasioned by it upon parties who never-have, by word or act, done anything to deprive them of their unquestioned legal rights. I am constrained, however'reluctantly I may be forced to that conclusion, to say that the executor by his conduct in this transaction has committed a devastavit, for which the law fixes, upon him personal liability. In saying this, I am very far from attributing to him any fraudulent purpose. The whole record, as well as the high personal and professional character, which has secured for him, wherever he was known, a reputation for integrity, second to none, all alike forbid any such imputation. His conduct no doubt was influenced by a desire to accommodate Irvine and James M. Hite, both of whom were interested in selling the land for Confederate money. He no doubt thought that the consent of Mrs. Skinker would be given to the arrangement. He felt .(confident as hé was in the final triumph of the southern cause) that he was secure against all loss in having in his hands upwards of four thousand dollars over and above the amount due to Mrs. Skinker, paid to him, as he says in his answer, to indemnify him in the event Mrs. .Skinker withheld her consent to receive it. But having assumed that responsibility, and deliberately incurred that risk, the court will not now permit his representatives to cast that loss upon parties who were never actors in the transaction which occasioned it; but it must rest where the law fixes it, upon the executor, whose acts *529amount to a devastavit, by which he incurs a personal liability.
Much has been said in argument about the hardship of holding the executor bound in this case. Such hardships meet us every day. The “ hard cases ” arising out of transactions in Confederate currency are constantly before us and constantly to be deplored. This is but another fragment of the numberless wrecks and widespread ruin which are found in the track of the terrible storm of civil war which has desolated our country and wrecked the hopes and the fortunes of a whole people.
But if a court is to be turned from its line of duty in the stern administration of justice upon the well settled principles of law governing each case, by considering the peculiar hardship of the case, would not that consideration operate with full force in favor of the appellees, Skinker and wife. Is it not as “ hard a case” that the loss should fall upon them ? Would it not be a great hardship to take away from a married woman who never, through herself or her husband, by word or act assented to any of these arrangements entered into by the executor and the other heirs, that patrimony which her father in his will and by his solemn agreement had so carefully secui’ed to her ? Would it be no hardship to Skinker, who, when these transactions were going on, was fighting the battles of his country, or languishing in a Northern prison, or sick and wounded in a hospital, and had nothing to do with them, except to withhold his consent from an arrangement which others were deeply interested to make but which must certainly impair if not certainly destroy his wife’s patrimony. Would it be no hardship to him, after the war was over, after suffering all its privations and dangers and wounds and imprison*530ments, when he comes to demand the little patrimony of his wife, which he properly refused by any act of his to deprive her of, that the court should thrust upon him a bundle of worthless Confederate bonds, and say to him there is the patrimony of your wife which her father was so careful to secure to her, and which you were so careful never to release, or transfer, or impair by any act of yours, but which without your consent, without her consent, has been converted into worthless trash. If the. case is to be tried by the hardship which is to result from the decision, that consideration, it seems to me, operates with double force in favor of the appellees. But we have nothing to do with the hardship of the case. The hardship cannot be mitigated; the loss cannot be divided. It must fall on the one side or the other. It must be placed where the law fixes it. In my opinion, it must fall in this case upon the executor, who has knowingly and deliberately assumed the risk, and by his own conduct incurred a personal liability. I am of opinion that the decree of the Circuit court should be affirmed.
Moncure, P., and Anderson, J., concurred in the opinion of Christian, J.
Staples and Bouldin, Js., dissented.
The court having affirmed the decree, the appellant asked for a rehearing of the case.
Anderson, J.
I have had great difficulty in bringing my mind to the conclusion, in this case, that the appellees are entitled to hold the executor responsible for that portion of Mrs. Skinker’s legacy from her father, which has been lost by the executor’s receiving payment thereof in Confederate securities, although *531received by bim without her consent. The executor undoubtedly' acted in good faith. He had no private interest to subserve in what he did. He made investments about the same time in Confederate securities. His most prudent and judicious neighbors did likewise. It is probable that he believed such investments were safe, having confidence in the success of the Confederacy. Hnder such' circumstances I do not think it would be right to hold a fiduciary, an executor or administrator, responsible for the loss, if he acted within the scope of his authority and duty. But he must act strictly within the line of his duty.
Although a personal representative, acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation of the fund in which any part of the estate may be invested, yet if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or securities not authorized, or be put within the control of persons who ought not to be entrusted with it, and a loss thereby be eventually sustained, such personal representative will be liable to make it good, however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from any improper motive. 2 Lomax’s ex’ors, top p. 483, side p. 293.
In this case, upon mature deliberation, I am reluctantly forced to the conclusion that the executor did not act strictly within the line of his duty and authority. The will was his directory. It clothed him with all the authority he had in the premises. It was the law to him. It was his duty to follow its directions, and to carry out the intention of the testator. When a dying man confides to a surviving friend the execu*532tion of the testamentary disposition of his estate, in relation to those who are the objects of his bounty and affection, he ought to die with the assurance that his intentions will be carried out. It is a sacred trust, and must be enforced. When the will contains express directions what the executors are to do, an executor, who proves the will, must do all which he, as executor, is directed to do. (Ibid as above, § 2, top p. 475, side 288.) It is true that an executor has an absolute power of disposal over the whole personal effects of the testator, so that they cannot be followed by creditors or legatees, either general or specific, into the hands of the alienee. But in disposing of them I apprehend he must follow the directions of the will, otherwise he is not acting in the line of his duty. 80 he may collect debts due the testator, and it is his duty to do so, but not, as a general rule, to receive payment in a depreciated currency. He may collect them if necessary to pay debts or legacies, but not, when well secured, for the purpose of investment in uncertain securities, or to receive payment in a depreciated currency for the payment of legacies without the consent of the legatees. But in the exercise of these powers, if the will has given directions how they are to be exercised, he is not acting in the line of his duty if he does not follow these directions.
In this case, if the executor had conformed to the provisions of the will and to the contract which the testator had made with his sons, which was evidently made in contemplation of death, and may be regarded as a part of his testamentary disposition, and which at least as executor he was bound to enforce, it is unquestionable that no loss could have been sustained by the legatees, by himself, or anybody else. By the express stipulation of this contract of sale to his sons *533the testator had bound himself only to convey the title “as soon as the whole of the purchase money and interest thereon shall be paid.” It was a joint contract with his two sons. Each of them was bound for the whole purchase money and the whole land was bound for the whole purchase money. The sons afterwards divided the land between them, and as between themselves, each one was bound to pay his proportion of the purchase money; but as between them and the testator they were jointly bound, and the whole land was bound for the whole of the purchase money. For by the contract the testator had stipulated to retain the title until the whole of the purchase money was paid.
It seems to me that the executor was not acting in the line of duty, when, in order to enable J. I. Hite, one of the purchasers, to pay up and discharge his proportion of the purchase money (as agreed between his brother and himself) in a very depreciated currency, he united with him in a deed of conveyance to the purchaser from him of one-half the land for depreciated Confederate money, and releasing thereby one-half the security for the remainder of the purchase money, without the consent of the legatee who is appellee here. In doing so he also departed from the only authority given to him to convey the title under the contract aforesaid, after the death of the testator’s wife, who was then living. Although he acted from the most generous motives toward J. I. Hite and his sister Caroline, who was importuning him for money, and toward James Madison Hite, he was acting not by the request or with the consent of Eliza Skinker, the legatee who brought this suit for her legacy, and in acting as he did he assumed a personal responsibility. He was aware of it *534himself. In his letter to James M. Hite, he admits, that as executor it was not proper for him to do it without the consent of the legatees. He accordingly seeks to obtain their consent. He gets the consent of James Madison in his own right and as trustee for his sister Mrs. Baker, and Mrs. Baker’s consent. But he fails to get the consent of Skinker and wife, and, finally, determines to act without their consent, no doubt hoping to get it afterwards; but for his security takes indemnity from Irvine Hite, the party most interested. These facts are convincing to my mind that this intelligent executor and sound lawyer was conscious of assuming a personal responsibility in what he did. And he, I concede most disinterestedly and from the best of motives, resolved to assume it and run the risk, relying, in pa^t at least, for his security upon the indemnity which he had taken. But Mrs. Skinker and her husband declined, as they had a clear right to do, to give their consent or sanction to what had been done. It was the misfortune of the executor to lose the investment which he had, at his own risk, made for them in Confederate bonds, together with his indemnity for the personal risk. And Mrs. Skinker in this suit seeks to recover her legacy, which was. well secured to her by the will of her father upon real estate, which she had never, by any act of hers, sur rendered, and which the executor had no authority under the will to surrender for her. I think she is entitled to it, and I therefore concur in the result of Judge Christian’s opinion.
The decree was as follows:
October 8th, 1873.—This day came again the parties by counsel, and the court having maturely considered the transcript of the record of the decree *535aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that there is no error in said decree; therefore it is decreed and ordered that the same be affirmed, and that the appellants pay to the appellees thirty dollars damages, and their costs by them about their defense in this behalf expended.
Whereupon, the appellants by counsel moved the court to set aside the foregoing decree and grant them a rehearing thereof; but because the court here is not yet advised of the judgment to be rendered in the premises, time is taken to consider thereof.
And at another day, to wit: the 17th day of November, 1871.—The appellants having submitted a motion at the last term of this court to set aside the decree pronounced in this cause on the 8th day of October 1873, and grant a rehearing thereof, and the court having maturely considered the motion aforesaid, and the arguments of counsel filed therein, doth order that the motion aforesaid be overruled, and that the decree pronounced in this cause, on the 8th day of October 1873, be certified to the Circuit court of Frederick county.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481894/ | Christian, J.,
delivered the opinion of the court..
*590It is a doctrine of courts of equity, supported by abundant authority, and established by the decisions this court, that a post nuptial settlement in favor of a wife, made in pursuance of a fair contract for valua^e consideration, will be held good. And although it may have been made under such circumstances, that it must be pronounced fraudulent and void as to the creditors of the husband, yet if the wife have relinquished her interest in property, on the faith of such settlement, it will be held good to the extent of a just compensation for the interest she may have parted with. William & Mary College v. Powell, 12 Gratt. 372, and cases there cited.
The wife’s right of dower is a valuable interest, which she cannot be compelled to resign, and which the law very carefully protects from the control of her husband. And therefore the release of her dower is held to be a good consideration for a settlement, and is good against creditors of the husband to the extent of the value of the dower released.
Courts of equity are always liberal towards the wife in supporting such settlements, when fairly made, and will not interfere in favor of creditors, unless the estimated value of the dower released be shown to be excessive. When found to be excessive, courts of ■equity will generally not set aside the deed of settlement as null and void, but will reduce the amount settled upon the wife to a fair and just compensation for the interest she may have parted with. Harvey v. Alexander, 1 Rand. 219; Quarles v. Lacy, 4 Munf. 251; Sykes v. Chadwick, 18 Wall. U. S. R. 141.
Let us now apply these principles to the case before us. Bratton Davis being heavily indebted to numerpus creditors, and being the owner of large and valuable real estate, executed two deeds, each bearing date *591the 22d May 1866. By the one he conveyed to Alex. H. H. Stuart and John B. Baldwin, certain personal estate and three valuable tracts of land, and his interest in a fourth tract, in trust to secure his creditors. This deed empowered the trustees to make sale of the real and personal estate conveyed at such times as they may deem expedient; and provides that at such sales any of the creditors of said Davis shall be allowed to purchase and receive credit on account of their respective purchases, for any just claims they may hold or acquire prior to said sale. The trustees were directed to pay “first, all debts for which any one might be hound as surety for said Davis; all the other creditors to be paid pari passu.”
This deed had this further provision: “In order to ascertain the amount of the debts, the sum due to each creditor, said trustees may convene all the creditors, by publication, before a commissioner, who shall determine in each case how much is justly due.”
The other deed, executed the same day, after reciting “that whereas said Braxton Davis is now advanced in life and encumbered by many outstanding debts, which he wishes to secure by deed of trust on various tracts of valuable land, in all of which the said Agnes M. Davis has a right of dower; and whereas it is desirable that the said Agnes M. Davis should unite in the deed of trust so as to secure a perfect title to the purchasers under said trust deed; and whereas she has agreed to unite in said deed upon the condition that said Braxton Davis shall convey to a trustee for the benefit of herself and her children by her marriage with said Davis, other lands and personal property of a value equivalent to her right of dower in the whole estate of said Braxton Davis,” &c., the grantor conveyed to John B. Baldwin *592trustee, in consideration of the premises, and in order to carry into effect the above recited understanding and agreeement, two tfacts of land, one being the tract on which the said Davis resided, containing one hundred and ten acres, and the other, known as the Porterfield tract, containing three hundred and eleven acres, together with all his household and kitchen furniture, and certain other personal estate therein-named, “ upon the following trust, viz: that he shall allow said Agnes M. Davis to occupy and reside on said farms for and during her coverture, free from the debts or contracts of her husband; and in the event of the death of her husband, that he will convey said lands to said Agnes M. Davis to hold it during her natural life, with remainder to the children of said Braxton and Agnes M. Davis, in fee.”
The creditors were no parties to these deeds, nor is. it pretended that they were represented by the trustees in the first named deed, or had any notice of it until it was admitted to record.
But in this connection may be noticed the position taken by the learned counsel in his petition of appeal,, and urged in argument here. Admitting that the creditors were not present, consenting to this disposition of his property by Davis, the grantor, and that the trustees did not represent them, he insists that they accepted and ratified this arrangement made for-their benefit, by proving their respective claims before the commissioner appointed by the trustees, under the-provision of the deed before referred to, and that having thus accepted the provisions of the deed thej cannot now claim against it. It is sufficient to remark,, that the record in this case does not show that any commissioner was ever appointed to audit their claims,, though it is asserted by the counsel for the appellant. *593that the fact did appear in the court below; and he suggests a diminution of the record if this court should agree with him in considering it a fact of sufficient importance. On the other hand, the counsel for the appellee denies that the plaintiffs in this suit (there seems to be other suits involving the same questions in the Circuit court) ever did present their claims before a commissioner appointed by the trustees under the- deed. However the fact may be, the court will not hold the creditors bound by the provisions of the deed, upon the ground that they were accepted and ratified, simply because they proved their respective claims before a commissioner appointed by the trustees. If they did thus produce and prove their debts, it was before the large indebtedness of the grantor was known, and before it was ascertained what was the probable value of the estate, real and personal, which he had dedicated to the payment of his debts by placing it in the hands of trustees. They might well have produced their claims before the commissioner, under the conviction that the property in the hands of the trustees was amply sufficient to pay all his debts. But when it turns out upon the actual sale of the property conveyed that there is not enough in the hands of the trustees by many thousand dollars to pay the debts of the grantor, surely the creditors, who were no parties to the deed, are not bound by it, simply because, at the invitation of the trustees, they brought their claims before a commissioner of their appointment to be audited. This cannot be construed into a purpose on their part to claim only under the deed, or in any manner as a ratification of its provisions.
The case, unencumbered by this pretension of the appellant, presents one single question as to whether the settlement made upon the wife is excessive, or, *594rather so excessive, that a court of equity will set it aside as a fraud upon the rights of the creditors; and, if so set aside, what are the rights of the wife as against the creditors. The grantor was the owner of five tracts of land, and a supposed interest in a sixth, which last turned out to be of no value.
He conveyed three of these tracts to trustees for the benefit of his creditors, to wit: the “Turk Place,” containing five hundred acres, the Craig tract, containing about five hundred acres, and the Coiner tract, containing over two hundred acres. These three tracts are estimated by the commissioner (and we think it a fair estimate upon the evidence) at the aggregate sum of §35,675.
Two tracts of land were settled by the grantor upon his wife, upon consideration that she should relinquish her right of dower in the whole. These were the Porterfield tract, containing three hundred and eleven acres, and valued by the commissioner at $20,860, and the Rader tract, containing one hundred and ten acres, valued by the commissioner at $7,471, aggregating $28,331, being more than two-thirds of the amount in value of the lands conveyed to his creditors.
The court is of opinion that the settlement of this amount upon the wife was grossly in excess of a fair and just compensation for her dower rights in the whole real estate of her husband, and that there is no error in the decree of the Circuit court in so declaring.
But the court is further of opinion that the Circuit court ought not to have set aside the settlement made in favor of Mrs. Davis without first giving to her the election either to accept a reasonable amount in lieu of her right of dower, or to have laid off to her in kind in the land not sold by the trustees, her dower in the whole real estate of her husband.
*595Where a wife is induced to unite with 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 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; provided this can be done without prejudice to the rights of creditors or purchasers.
In the case before us we must regard the two deeds executed and recorded on the same day, as one and the same transaction; and so regarding them, it is apparent that it was agreed between the said Braxton Davis and the said Agnes M. Davis that the conveyance for her benefit of the Porterfield tract and the Bader tract would be a fair equivalent for her right of dower in his whole real estate; and that she united in ■the deed to the trustees upon condition that these two tracts of land should be settled on her. This was the consideration upon which she parted with her interest in the three valuable tracts of land conveyed by her husband for the benefit of his creditors. One of the tracts settled upon her -was the homestead,' which, it is fair to presume, had in her eyes peculiar valué. The presumption is she would never have united in the deed but for this specific arrangement for her. At any rate, this was the specific consideration upon which she eseeuted the deed. She was parting with valuable interests. Her husband was advanced in years; she was young. She had the right of dower in five valuable estates. She had the right to demand a settlement to compensate her for the relinquishment of her rights.
*596Do doubt at the time tbe settlement was made, the grantor believed that the three valuable farms and the lai’ge personal estate which he had dedicated to the payment of his debts, and directed his trustees to sell for that purpose, would be amply sufficient to satisfy all his creditors. But owing to the depreciation in the market value of the land, the sales will not meet the debts by a large deficiency; and the court below was compelled to declare the settlement on-Mrs. Davis excessive, and forced to decree to her what was, in its opinion, a fair settlement.
We'are of opinion, however, that Mi's. Davis, under the circumstances of this case, was entitled to be restored, as far as possible, to the same position and invested with the same legal rights she had before she united in the deed with her husband; and the husband being dead, she may, if she so elects, claim her right to dower in the whole real estate of her husband;, the value either to be commuted in money or laid off in kind, in the lands not sold by the trustees. This can be done without prejudice to the rights of creditors or purchasers, as the value of her dower in each of the five tracts of which her husband died seized, may now be laid off in the lands still unsold, to wit, the Porterfield and Bader tracts.
The court is therefore of opinion that the decree of the Circuit court be reversed, and the cause be remanded to said Cii’cuit court to be proceeded in in accordance with the principles herein declared.
The decree was as follows:
The court is of opinion, for- reasons stated in writing and filed .with the record, that there is no error in the decree of the said Circuit court in declaring the settlement made upon the appellant, Mrs. Agnes. *597Davis, widow of Braxton Davis, deceased, by deed bearing date May 22d, 1866, was excessive, “and that the same if uncorrected would operate a gross fraud upon the large number of unpaid creditors of Braxton Davis.” But the court is further of opinion, that inasmuch as Mrs. Davis united in the deed made by her husband to Stuart and Baldwin, trustees, for the benefit of his creditors, upon condition that the “Porterfield” and “ Bader” tracts of land should be settled upon her; and as this settlement cannot now be enforced, because it is excessive, the said Circuit court ought, instead of reforming and reducing the amount of the settlement to what it considered a fair and just compensation for the relinquishment of her contingent right of dower, should first have restored Mrs. Davis to the same position and the same legal rights which she had before she united in said deed with her husband, and should therefore have given to her the election, whether she would accept a reasonable settlement to be made by the court in lieu of the settlement made by her husband, or whether she would elect to assert now her claim of dower in all the real estate of her husband, he being now dead, and there being two tracts of land not yet sold by the trustees, in which her dower in kind can now be laid off and assigned to her. It is therefore decreed and ordered, that the decree of the said Circuit court (except so far as it declares that the said settlement is excessive, in which respect it is affirmed,) be reversed and annulled, and that the appellants recover against the appellees, the creditors of said Braxton Davis, deceased, their costs by them expended in the prosecution of their appeal aforesaid here; and that the cause be remanded to the said Circuit court with instructions to give to the appellant, Agnes M. Davis, the option whether she will *598accept a reasonable allowance to be made by the said Circuit court in lieu of the settlement made by her for her by the deed of the 22d May 1866, or whether she will now assert her claim to dower in the whole real estate of her husband, Braxton Davis, deceased; and if she claims the latter, then the same shall either be laid off to her in kind in the “ Porter-field” and “Rader” tracts, which remain unsold, which said dower may, with the assent of the. creditors, and, if she so elect, be commuted under the direction of the court to its value in money. But whether her dower be laid off in kind, or commuted to its value in money, such dower shall be credited by the amount of personal property she has already received. And it is ordered that this decree be entered on the order book here, and forthwith certified to the clerk, where the cause is pending as aforesaid, who' shall enter the same on his order book, and certify it to the said Circuit court of Augusta county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481895/ | Anderson, J.,
delivered the opinion of the court.
By an act of assembly, in force April 1st, 1873, the owner or occupier of land having a water front, suitable for planting or sowing oysters thereon, might have *788so much of the “beds or shores assigned to him by ° J the inspector of the district, for his exclusive use and occupancy for the period of one year, as the inspector might deem necessary for the quantity proPose(^ planted or sowed.” (Sess. Acts 1872-’3,. ch. 333, §§ 6, 7 and 8.) In pursuance of this act, Sallie and Eliza W. Tazewell, who were the owners of land having a water front suitable-for such pui’pose, had a part thereof assigned to them by the said inspector; which, before the 1st of May 1874, they caused to be “marked by suitable stakes,” in compliance with the requirement of the statute.
On the 3rd of June following, they had a summons issued from the clerk’s office of the Circuit court for Northampton county, against Joseph P. Power and Benjamin Kellog, plaintiffs in error here, alleging that they were in possession of and unlawfully detained from them the land and oyster grounds therein described, which are the same that were assigned to them as aforesaid; in which action they obtained judgment, and an award of the writ of habere facias possessionem; to which judgment the defendants obtained a writ of error and supersedeas from one of the judges of this court.
It is contended for the plaintiffs here, that the defendants in error have acquired no rights under the act of April 1st, 1873; and that if they have, and the plaintiffs in error have interfered therewith, they have mistaken their remedy. That it is not a case for an action of unlawful entry and detainer. That the statute does not authorize a grant of the soil, or an estate or interest in the soil; but only a license, which is an authority to do a particular act, or series of acts,, upon the land of which the commonwealth is proprietor, without passing an estate therein; and which license is revocable.
*789Whether the statute can be construed as authorizing a lease or a mere license, it gives to the lessee or licensee an exclusive right to the use and occu-' pancy of beds or shores of creeks, &c., for the period of one year, for the purpose of planting or sowing oysters, which' might theretofore have been used or exercised in common by the citizens of the commonwealth. And the court is of opinion that after he has ■acquired such exclusive right under the statute, he may resort to the summary action of unlawful entry and detainer, as an appropriate remedy to assert and and enforce his exclusive right against any one who enters thereon and withholds from him the exclusive use and occupation thereof for the purpose aforesaid. And the court is further of opinion that the proof in this cause shows that the plaintiffs in error,- when the summons was issued had such occupation and possession of the premises as was incompatible with the enjoyment by the defendants of their exclusive right, if such right existed, to the use and occupation thereof for the purposes aforesaid, and that they withheld from them such possession.
The whole case then turns upon the question, had they an exclusive right to the use and occupancy of the premises when the summons was issued in this cause? In Olinger v. Shepherd, Judge Moncure, in delivering the opinion, in which a majority of a full court concurred, said: “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 involved in an action of ejectment. * * 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.” In the action of unlawful entry *790and detainer he says, “if the defendant enters unlawfully, the plaintiff is entitled to recover without any regard to his right of possession.” 12 Gratt. 462, 470. But it is necessary to show that the defendants’ entry was unlawful, and that he unlawfully withholds the-possession. And in this case, the defendants’ entry and withholding the possession of the premises was-not unlawful, unless the plaintiffs below had acquired the exclusive right to their use and occupancy, or had not lost their right to the priority. It would seem to-be necessary therefore in this case, to entitle the plaintiffs belowr to a recovery, that they should show an exclusive right to the use and occupancy of the premises, or, at least, a right of priority over the defendants. Had they acquired that exclusive right ?
It is contended that they' had not, and that position is supported by the counsel for the plaintiffs in error-in an argument of much ability and ingenuity. They insist that the act of 1873 only authorizes a license, which is revocable; and that the act of April 18, 1874, having repealed the act of April 1, 1873, it is a revocation of the license.
Hirst, is it a mere license which is revocable ? Licenses to do a certain act, but passing no estate in the land, may be pleaded without a deed. And this doctrine does not, we are told, trench upon the policy of the law which requires that contracts for the sale of real estate, or a lease thereof for more than one year,, shall be in writing. And the reason is, because licenses amount to nothing more than an excuse for the act which would otherwise be a trespass, and render the party liable to damages. Cook v. Stearnes, 11 Mass. R. 538. Such is not the nature of this act. It is not merely a permission to do an act or series of acts upon another’s land, which would excuse him *791from trespass. It is not a permission to do certain r acts—that privilege was enjoyed independently of the statute—and the doing of those acts would have been no trespass. But the design and object of this statute was to give an exclusive right to the licensee or lessee, to use and occupy the land, for the period of one year, for his benefit, for a consideration payable to the state, the proprietor. It confers in fact an exclusive right to use, occupy or take the profits of land, by planting or sowing oysters upon it, which grow and fatten upon the soil and the salt water, and increase in value, I am informed, from seventy-five to one hundred per cent. Such a permission may be sometimes called a license. It is more in the nature of a lease. 1 Wash, on Real Property, 3d ed., p. 543, and cases cited. Licenses which in their nature amount to the granting of an estate for ever so short a time, are not good without deed (a lease for one year without writing is good by our statute), and are considered as leases, and must always be pleaded as such. And this is in fact the principle decided in the case of Cook v. Stearnes, 11 Mass. R., supra, cited by the counsel for the plaintiffs in error. In that case the defendant pleaded a license, and the court held that the plea was bad, because the interest claimed was not in the nature of a license, but of an estate, or at least an easement, in the land, which cannot be acquired without writing or prescription, or such a possession or use as furnishes presumption of a grant; neither of which is avowed in (the) plea.” There is nothing in that case which militates against the above view; but it in fact supports it. If a man license me to enter into his land, and to occupy it for a year, half a year or such like, this is a lease, and so shall be pleaded. Viner’s Abridg., title License, p. 92.
*792Again, it cannot be maintained that the right acquired by the lessee or licensee is not transferable or transmissible at his death. Suppose there had been no repeal of the statute, or revocation, and that the defendants in error, after they had planted or sown oysters upon their.reservation, had made sale of their land fronting on the shore, and were about to remove from that country; can there be any question of their right to transfer their oyster grounds to the purchaser of their farm? Or if they died, that their oyster plantation, in the same plight in which they held it, would be transmitted to their personal representatives? Yet a mere license is so much of a personal trust and confidence, that it does not extend to any one but the licensee, and the death of either the licensor or the licensee, or the transfer by either party, will revoke it (1 Wash. on Real Property, p. 545). That is not the nature of the assignment in question, and it cannot be regarded therefore as a mere license.
If it is a liceQse it is coupled with an interest; it gives an exclusive right to use and occupy and take the profits of the soil upon which the oysters are planted or sown. It was anciently held, that “ there is a great diversity between a license in fact, which giveth an interest, and a license in fact which giveth only an authority or dispensation; for the one is not to be countermanded, but the other is.” Arg. Lane’s Rep. p. 46, citing 5 H. 7, and Mar. Dyer 92.
If it is a license, it is a license which not only gives an interest—a right to its exclusive use and occupancy—but gives it for a certain period, for one year, and for a valuable consideration which is paid. If a certain time is limited, it is not revocable though the thing is not done. Jenk. Rep. 209, pl. 41.
But whether it be a lease or a license, has there *793been a revocation by the state in this case? If the ° state has not revoked it, though it be revocable, the defendants below could not derive advantage in defense upon the ground that it was revocable. There is no express revocation by the state. But it is argued that the repeal of the act of 1873, by the act of 1874, was a revocation of the license. It is enacted (chap. 15, § 13, p. 196, Code of 1873), “that no law shall be construed to repeal a former law;” first, “as to any right accrued; or,” second, as to any “claim arising under the former law;” “or in any way whatever to affect” “any right accrued, or claim arising,” “before the new law’ takes effect.” In this case it is at least a claim arising under the act of 1873, before the repealing act took effect, if indeed the right had not accrued. They had in all respects complied with the terms and requirements of the statute. They were entitled to a priority over all others on certain conditions, which they had fulfilled. They had made application in time to the inspector. They had paid the rent which wms the consideration of the assignments. And the assignments had been executed to them by the officer of the state, who was clothed with authority for that purpose.
But it is said that the payment of the rent was voluntary, that it was paid in advance of the obligation to pay, and therefore could give no good foundation for their claim. The statute does not say at what time the rent should be paid, whether in advance or during the year, or at its close. But it is argued that as rent is usually not due until the end of the year, it is presumable that the legislature did not intend that it should be paid until then; and that when the legislature intended otherwise, as in section 11, it expressly required the rent “to be paid in advance.” It may *794rather be inferred therefrom, that in the mind of the-legislature the payment in advance was not incomwith the idea of rent. The requirement to pay advance not being expressed in the previous sec^ons does not imply that the legislature intended that it should not be paid in advance. But those sections-being silent as to the time of payment, it is implied that it was left to the discretion of the inspector to prescribe the. time of payment. And in the proper-exercise of his discretion having required the rents to be paid in advance, it was as obligatory upon the assignees as if it had been expressed in the statute.
The new act, which repeals the act of 1873, was approved on the 18th of April 1874. By the acts of assignment, which were executed when the act of' 1873 was in force, they were invested with the exclusive right to the use and occupancy of the premises, provided they caused them -to be marked by suitable stakes before the 1st of May 1874, which requirement and condition was strictly within the inspectors authority. They complied with that proviso to the letter,, and caused the reservations to be marked with suitable stakes before the 1st of May 1874; that is, about-the 26th of April. And the court is of opinion that although it was not done until after the. repealing act was passed, it was a fulfilment of the condition which entitled them to the right, and that upon the performance thereof their right to the exclusive use and occupancy of the premises vested, and cannot be affected in any way by the repeal of the former act.
The court is therefore of opinion to affirm the judgment with costs and damages to the defendants in error.
Judgment áeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481896/ | Christian, J.
On the 5th day of December 1872, the following order was entered by this court in the case of Kent, Paine Co. v. Bailey:
“This day came the parties by their counsel, and the record in this cause which was pending in the District Court of Appeals held at Lynchburg, when the present constitution took effect, and which were *818transferred by law to this court, having been received J by the clerk of this court, and this court being satisthat it has no jurisdiction of this cause, it is ordered that it be transferred to and docketed in the Circuit court of Charlotte county, from whence the . . , , , appeal was originally taken; there to be heard and fully disposed of as by an appellate court, according to law.”
This order was made by this court in conformity to the provisions of the fifth section of chapter 171, Sess. Acts 1869-’70, which is in the following words: “§ 5. All eases which were pending in the District courts, when the present constitution took effect, of which the Supreme Court of Appeals may not have jurisdiction, shall be transferred to and docketed in the Circuit courts of the counties or corporations whence the appeals were originally taken;'there to be heard and finally disposed of as by an appellate court. When the judge of the court to which any such case is referred, is the same person before whom the case was originally tried, then the judge, either in term-time or vacation, may remove such case to any other Circuit court, there to be heard and finally disposed of, as by an appellate court.”
By this order, made in conformity to this provision of the statute, the cause was transferred to the Circuit court of Charlotte. That court, on the 13th of October 1874, dismissed the appeal, upon the ground, as set forth in the order of dismission, that the several District courts had ceased to exist when the appeal was allowed by one of the judges of the District court of Lynchburg; the Circuit court of Charlotte being of opinion that the “ present constitution took effect” on the 6th July 1869; and consequently that the said District court was no longer in existence; and *819that therefore this cause was not “pending in said ° court when the present constitution took effect.”
After this dismission of their appeal, the applied to this court for a mandamus to compel the judge of the Circuit court of Charlotte to proceed to ^ ° r hear and finally dispose of their case, in pursuance of the order of this court and of the said fifth section of ch. 171 of Bess. Acts 1869-70.
A mandamus nisi was awarded by this court; to which the Hon. A. D. Dickinson returned his answer on the 28d January last.
The learned judge, in the very respectful answer he returned to the rule of this court, summoning him to show cause why the commonwealth’s writ of mandamus should not be awarded, submits as the only reason why such writ should not issue, that he was of opinion “that by the constitution of Virginia, adopted by the people on the 6th July 1869, the several District Courts of Appeals had ceased to exist, and that the Hon. S. S. Weisiger was no longer judge of such District court, and had no authority of law for granting the appeal to the decree of the Circuit court of Charlotte on the 24th January 1870, rendered by Hon. P. A. Bolling, the judge of said court when said appeal was granted; and that the appeal allowed was improvidently awarded.”
The question we now have to determine is, Is this a sufficient answer to the rule ?
It is conceded that the Circuit court of Charlotte did not hear and finally dispose of the cause on its merits; but simply dismissed the appeal, because, in its opinion, the District court had ceased to exist, and that the judge awarding the appeal had no authority to allow it. This was, in effect, to decide that the cause was not “pending in the District court at Lynch-*820burg when the present constitution took effect;” and 0 it is plain the appeal was dismissed upon that ground But that precise question had been determined hy this court. In its order entered in this very cause, this court had declared that this cause was pending in a ^ the District court at Lynchburg when the present constitution took effect. That order was before the Circuit judge, and in plain terms had adjudicated that very question. IsTo matter what may be the opinion of the circuit judge as to when the constitution took effect, he had no right to declare the ease not pending in the District court, when this court had declared it was so pending.
The very question which the circuit judge undertook to decide had already been passed upon by this court, and of necessity must have been decided. If the District courts had ceased to exist when the appeal was allowed, then the cause was not pending in the District court when the present constitution took effect. And when this court declared by its order that it was so pending, it decided, in effect and in terms, that the District courts had not ceased to exist on the 24th January 1870.
The case was either pending in the District court when the present constitution took effect, or it was not pending there. It was for this court, and not the Circuit court, to decide that question. This court did of necessity decide that question when it sent the case to the Circuit court. It was no longer an open question, and the Circuit court could only dismiss the appeal by reversing the decision of this court.
In Cowan v. Doddridge, 22 Gratt. 458, and Cowan v. Fulton, 23 Gratt. 579, where the circuit judge dismissed the appeal because in his opinion the law transferring such cases to the Circuit courts to be heard and finally *821disposed of as by an appellate court was unconstitutional and void, this court, without dissent, held that this question was not one to be determined by the Circuit court, but had already been passed upon by this court; and that when, in pursuance of the act of assembly above referred to, this court sent a cause which had been pending in a District Court of Appeals to a Circuit court, that of itself was a decision of this court that the act was constitutional, and that the circuit judge had no right to dismiss the case, but must proceed to hear and finally dispose of the case; and he was compelled to do so by a peremptory mandamus issued by this court.
The case before us is still stronger, blot only may it be said that the fact that the cause was sent to the Circuit court was a decision of the question that it was a proper ease to be sent, but the order transferring it in terms declared that this case was pending in the District court in Lynchburg when the present constitution took effect.
When therefore the circuit judge undertook to declare that the cause was not pending in the District court at Lynchburg, and therefore dismissed the appeal, he reversed the decree of this court made in the same cause and entered of record in the very order which transferred the case to the Circuit court.
But it is insisted in the argument of the able counsel who appeared here for Judge Dickinson, that the dismissal of the appeal was a final judgment in the cause, and that it is not competent to the appellate court by mandamus to compel in effect a rehearing of the cause. I do not deem it necessary to review the numerous cases which the research and learning of the able counsel produced; because they do not, in my. judgment, apply to such a case as the one we are now *822considermg; and the principles of those cases when properly applied are sound and admitted law. But both the argument and the authorities may be fully met by the lucid opinion of Judge Bouldin in the ease Cowan v. Fulton, Judge, supra. Not only the principles there declared and the authorities there relied on, but the very language used by him, mutatis mutandis, may be applied to this case.
In answering the same position taken in that case which has been taken here, Judge Bouldin says: “ If the premises were true the conclusion might perhaps be conceded; for it certainly is not regular nor proper to use the writ of mandamus to review and rehear the judgments of a subordinate court. But the fallacy of the argument consists in the assumption that there was a judgment in the cause; whereas the court positively and unequivocally refused to pass upon it at all, either to review, reverse or affirm the judgment, and merely directed the cause to be dismissed and stricken from the docket. It was a simple refusal to hear and decide the case; and this court having held that no appeal lies from such refusal, it is exactly the case to which the high remedial writ of mandamus is most frequently applied in order to prevent a failure of justice.”
I refer to this opinion, and the authorities cited, as conclusive, without repeating them here, to show that this case is peculiarly one to which the writ of mandamus is applicable. It seems to my mind impossible to draw any distinction between the case before us and the case of Cowan v. Fulton, Judge, 23 Gratt. 579. In the latter case Judge Fulton dismissed the appeal, because in his opinion, the law under the provisions of which the case was sent to him, was unconstitutional and void. But it was held, that this court passed on *823that question, by sending the case to him for trial; that he had no right to decide that question, as it had already been adjudicated by this court; and that his judgment dismissing the appeal was not a final judgment. Consequently a writ of mandamus was awarded by this court to compel him to hear and finally dispose of the case. How how does this case differ from the one before us? Judge Dickinson also refused to.hear and finally dispose of the case sent by this court to him, but dismissed the appeal because, in his opinion, the District courts were not in existence when the appeal was awarded, and that therefore no case was pending in the District court of Lynchburg. But this court had already decided that question, not only (as was settled in two cases by this court) by sending the case to him, but by its order transferring the case in terms declaring that the case was pending in the District Court of Appeals at Lynchburg, when the constitution took effect. It was not- for the circuit judge to say that the case was not pending in the District court when the constitution took effect, when this court had declared it was so pending, no more than it was competent for Judge Fulton to declare an act of the general assembly unconstitutional which this court had declared to be constitutional and valid. In both cases alike the dismissal of the appeal was not a final judgment, but was in both cases a refusal to hear and decide the controversy.
It is well settled that applications for a mandamus to a subordinate court are warranted by the principles and usages of law in cases where the subordinate court having jurisdiction of a case refuses to hear and decide the controversy. 15 Wall. U. S. R. 165, Ex parte Newman, and cases there cited. How that is precisely what has occurred in this case.
*824Original jurisdiction to award writs of mandamus upon the principles of the common law has been con-1 ferred on this court by the constitution and laws of the state, and in accordance therewith I think we must say to the judge of the Circuit court of Charlotte that this f ° cause is properly before him, and that he must go on and hear and finally dispose of the same. For that purpose a peremptory mandamus should issue.
Moncure, P., concurred in the opinion of Christian, J.
Staples, J., said he had been counsel in the case of Cowan v. Doddridge, and therefore did not sit in it; and, if he might not have concurred in that decision, still it decides this case.
Anderson and Bouldin, Js., dissented.
Peremptory mandamus ordered. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481898/ | Bouldin, J.,
delivered the opinion of the court.
*839This is an appeal by A. G. Dabney from a decree of the Circuit court of Lynchbui'g, entered in a suit brought against said Dabney by the personal representatives of Pleasant Preston, deceased, and S. C. Hurt, as surviving partner of the firm of Hurt & Preston, which consisted of said S. C. Hurt and Pleasant Pi’eston, deceased.
The suit was brought to obtain an account and settlement of certain transactions growing out of a contract entered into about the first day of February 1856, between said firm of Hurt & Preston, by S. C. Hurt of the one part, and said A. G-. Dabney of the other part; and it was so proceeded in that on the 20th day of November 1871, the cause came on to be heard on the bill set for hearing as to one of the defendants, and on the bill, answers and exhibits filed, as to the other defendants, without replication to the answers; and the court, after settling an important principle in the cause, ordered sundry accounts to be stated and settled by one of its commissioners.
From that decree A. G. Dabney, the party mainly affected thereby, applied to a judge of this court for an appeal, and prayed a supersedeas. The appeal was allowed and supersedeas awarded.
At the next term of the Circuit court after the decree aforesaid was rendered, and after the case had been taken to this court by appeal and was here pending, the plaintiffs below moved the court to amend the record and allow them to file a replication to A. G. Dabney’s answer, to be entered nunc pro tunc. Notice of the motion was given to Dabney, and it was duly heard on affidavit and arguments of counsel; and thereupon the court entered an order allowing the replication “ to be entered nunc pro tune as an act of the ■last term, and to have the same effect as if it had been then ■entered before the hearing.
*840proceedings on this motion appear in a supplemental record attached to the record on which the apwas allowed; and the legality of this action of C0luq; and its effect on the previous decree, constituted the chief subjects of discussion before this court.
The question is interesting, and was earnestly and ably argued by counsel on both sides; but the decision thereof is rendered unnecessary by the view taken by this court of á question of practice, raised by the record, but not noticed at the bar.
The bill shows on its face, that at and before the institution of this suit, S. C. Hurt, one of the plaintiffs therein, had been duly declared a bankrupt, and, of course, all his rights of property and action, existing at the date of his bankruptcy, passed from him and vested in his assignee in bankruptcy, who alone could legally assert such rights; and it further appears from exhibit 8. C. H., filed with and as part of the bill, that as far back as January 4th, 1861, all Hurt’s interest in the firm of Hurt & Preston, and in several other concerns therein mentioned, including the Phoenix foundry, one of the subjects of controversy in this, suit, had been assigned to Hurt & Preston for proper settlement of accounts, and after paying to his partners respectively all balances that might be due from him to them, the surplus, if any, was to be paid to Robert W. Crenshaw. His entire beneficial interest in this suit, then, long before its institution had been transferred, subject to the rights of his co-partners, to-said Robert W. Crenshaw, and all his other interests and rights of every description, whether of action or-of property, had, from the date of his bankruptcy,, vested in his assignee. "Whether the assignee in bankruptcy was directly interested in the issue of this suit *841or not, depends on the character and purpose of the assignment to Crenshaw. If that assignment was in payment of a debt, or merely for collection, then, in either event, the assignee was directly interested in watching the settlements and swelling the surplus. It is apparent that Hurt had no beneficial interest in the litigation; and that his assignee in bankruptcy and Robert W. Crenshaw, one or both, subject to the rights of his partners, represented his entire beneficial interest in this suit. That interest is material and substantial; and, according to the well established practice of courts of equity, the assignee in bankruptcy and Robert W. Crenshaw should have been parties to this suit.
It is an old and familiar rule of equity that “ all persons materially interested in the subject of controversy ought to be made parties in equity; and if they are not the defect may be taken advantage of either by demurrer or by the court at the hearing.” And if the defect be apparent on the face of the record, although the bill was not demurred to in the court below, nor the defect noticed by that court at the hearing, it will be noticed at the hearing in this court, and the decree reversed for that cause. These principles have been recognized and affirmed by this court as well established rules of equity, in cases too numerous to mention. In Sillings v. Bumgardner, guardian, 9 Gratt. 273, 275, Judge Moncure delivering the opinion of the court says: “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.” Citing *8422 Rob. Prac., 273, 433, and cases cited; Richardson’s ex’or v. Hunt, 2 Munf. 148; Sheppard’s ex’or v. Starke & wife, 3 Munf. 29; and tbe principle has been reaffirmed to its full extent in the most recent case in this court on the subj'ect, Armentrout’s ex’or v. Gibbons, supra 371, where some of the numerous decisions of this court on the question are cited.
The practice of the United States Supreme Court accords with that of this court. Hoe et al. v. Wilson, 9 Wall. U. S. R. 501. In that case, after stating that the rights of persons not parties would be materially affected by a decree in the cause, the court say, p. 504, “ According to the settled rules of equity jurisprudence the case cannot proceed without their presence before the court. The objection was not taken by the defendant, but the court should, sua sponte, have caused the bill to be properly amended, or have dismissed it, if the amendment were not made. Instead of this being done, the case was heard and decided on its merits. This was a manifest error. The decree must therefore be reversed and the cause remanded to the court below. In that court both parties can take leave to amend and can modify' their pleadings so as to exhibit the case as they may desire respectively to present it.”
We are therefore of opinion that the Circuit court erred in entering a deeree settling an important principle in the cause in the absence of the assignee in bankruptcy of S. C. Hurt and of Robert W. Crenshaw as parties to the suit.
And without deciding whether the case, as shown by the supplement to the record, was or was not a proper case for allowing a replication to be filed and entered nunc pro tunc, or whether the supplement to the record can or can not be considered by this court *843as part of the record, we think it proper to say that in our opinion it was clearly error in the Circuit court to allow it to be so filed without requiring the plaintiffs below to pay the costs of the amendment; and without allowing the defendant Dabney time to take testimony to meet the new phase of the case presented by the issue thus taken on his answer.
The decree of the Circuit court of the 20th November 1871 must be reversed and annulled with costs to the appellant, and the cause remanded to said Circuit •court with instructions to require the plaintiffs below to amend their bill, and make Robert ~W\ Crenshaw, and the assignee in bankruptcy of S. C. Hurt, parties to the suit; and liberty must be allowed to both parties, should they desire it, to amend and modify their pleadings, so as to exhibit the case, as they may desire, respectively to present it.
The decree was as follows:
This day came again the parties by counsel, and the court having maturely considered the transcript of the record and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that it plainly appears on the face of the bill that before the institution of this suit, S. C. Hurt, one of the plaintiffs below, had been duly declared a bankrupt, •and that his assignee in bankruptcy was a necessary party to this suit to assert and protect any interest of the bankrupt, direct or indirect. And the court is further of opinion that it also plainly appears from exhibit (S. C. H.) filed with the bill, that after full settlement of the accounts of the several firms therein mentioned, and payment to them of whatever might be due by Hurt, the entire residue of Hurt’s interest, if any, in the subject of this suit was transferred, or ordered *844to be paid, to Robert W. Crenshaw. It is obvious,, therefore, that Crenshaw is directly interested in the matter in controversy, and should also have been made-a party to the suit before any decree settling the principles of the cause could be properly entered. It is-therefore decreed; and ordered, that the decree of the 20th day of November 1871 be reversed and annulled, and that the appellees do pay to the appellant his costs by him about the prosecution of his appeal in this behalf expended.
And the cause is remanded to the said Circuit court, with instructions to that court to require the plaintiffs, to amend their bill, and make the assignee in bankruptcy of S. C. Hurt and Robert W. Crenshaw, parties to the suit; that liberty be allowed the parties respectively, if so desired by them or either of them, to amend and modify their pleadings, so as to exhibit the case, as they may desire respectively to present it.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481899/ | Staples, J.,
delivered the opinion of the court.
The court is of opinion, that whether general pecuniary legacies are chargable on real estate is always a question of intention; that this intention is to be ascertained, not by parol proof of the declarations of' the testator, but by reference, as in other cases, to the provisions of the will and the circumstances surround*848ing its author. And in examining the instrument, the language used must receive that interpretation which a long series of decisions have attached to particular words. One of the rules or canons of construction is, that where there is a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are chargeable upon the realty. It is considered that the testator, in blending his real and personal estate into a common fund, plainly indicates his purpose to make no distinction between them. And as there is no previous devise of any portion of the real estate, the residue can only mean what remains after satisfying the legacies.
This is the established doctrine of the English courts; is almost universally recognized in this country; and was acted on by the court in Crouch v. Davis’ ex’or, 23 Gratt. 62; where the authorities are cited. See Greeville v. Brown, 7 House of Lords cases 688; Smith’s ex’or v. Smith, 17 Gratt. 268. In the present case the testator, after various pecuniary legacies to a large amount, gives all his remaining estate, property and credits, real and personal, to his daughter, Mrs. Susan J. Walker. The testator in thus using the words “remaining estate,” can only mean what remains after the previous dispositions; and as there is no previous disposition of any part of the realty, the legacies must be looked to to satisfy the terms of the residuary clause. The court is therefore of opinion that the Circuit court erred in holding that the legacies given by the testator are not chargable upon his real estate.
The court is further of opinion that Mrs. Mary ■Sampson, the wife of the testator, having died during his lifetime, leaving issue who survived the testator, the .legacy of twenty thousand dollars which was given to her passed to her issue under the provisions of the *84913th section, chap. 122, Code of 1860. That section declares that “if a devisee or legatee die before the testator leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had sur- ° vived the testator, unless a different disposition thereof be made or required by the will.”
There is nothing in the will here indicating in the slightest degree, that the testator designed or desired a different disposition of the legacy from that pointed out by. the statute. The court is therefore of opinion that the Circuit court erred in holding that the legacy aforesaid lapsed by the death of Mrs. Sampson in the lifetime of her husband, and passed into the residuum of the estate.
For these errors the decree must be reversed, and the case remanded for further proceedings in conformity with these views.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481902/ | Moncure, P.,
delivered the opinion, of the court.
This is a writ of error to a judgment of the Circuit court of Clarke county, convicting Lyeurgus Little of murder in the second degree, and sentencing him therefor to confinement in the penitentiary for the term of fourteen years, the period by the jurors in their verdict ascertained. # There are seven assignments of error in the judgment, which arise on as many bills of exceptions taken to opifiions of the court given during the progress of the trial. We will consider the questions thus presented for the decision of this court, or such of them as it may be necessary for us to decide, or as we may think it proper to decide, in the order in which they arise on the bills of exceptions.
1. The first bill of exceptions was taken by the-prisoner to the action and ruling of the court in overruling his objection to William A. Riely as a competent juror for his trial. It is very clear that the objection was invalid, and the juror was competent, and that there was no error of the court in this respect. Jackson’s case, 23 Gratt. pp. 919, 927-933, and the-cases there cited. Indeed, this objection, though taken in the court below, does not seem to be relied on in this court.
2. The second bill of exceptions was taken by the-prisoner to the ruling of the court in excluding, as-incompetent evidence, a statement of the prisoner, made to Miss Hattie Prichard, a witness introduced by the commonwealth; the prisoner, by his counsel, contending that the statement was admissible as part of the res gestee.
The surrounding circumstances of a fact in controversy are generally admissible evidence as reasonably tending to explain the nature of such fact, even. *924though such circumstances consist of mere deelara0 tions, and be of the character of hearsay evidence. “ These surrounding circumstances,” says Greenleaf, “constituting parts of the res gestee, may always be shown to the jury along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of s a more particular description. The principal points of attention are whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether- they were so connected with it as to illustrate its character. Thus, on the trial of Lord George Gordon for treason, the cry of the mob who accompanied the prisoner on his enterprise was received in evidence as forming part of the res gestee, and showing the character of the 'principal fact.” 1 Greenl. on Ev., § 108.
Sow let us apply the principle as thus laid down to this case, which is thus stated in the second bill of exceptions. The commonwealth proved that Clinton Little came to his death by a wound received in the basement of the house, and that the door leading to said basement entered upon the south side of the house, under a porch; and introduced a witness, Miss Hattie Prichard, who testified that on the morning of the 5th of July 1878, after having breakfasted at the usual hour, she, in company with Amanda, the sister of the deceased, and Miss Villary, had gone to an apple tree in the garden, not a great distance from the house; it was the first tree in the garden; that there was a fence between the yard and garden; that she remained but a short time at the tree—about five min*925utes—likely not that long; whilst there she heard shots fired; it seemed as if only one shot; from the sound it must have been from the basement; when she heard the sound she came to the house; the ice house obstructed the view; “when I got to the yard I saw Columbus and Gilbert Little in the south porch, that looks towards the stable; I call it the back porch; I saw Oscar Little and the prisoner at the bar in a slow walk, not in a run, going towards the stable; in a minute, m a second, they came back;” “I do not know what caused them to return; Columbus and Gilbert were walking around carelessly; Columbus had a pistol in each hand; Gilbert had a gun; don’t know what sort; they had left the porch; when the prisoner and Oscar came back, Oscar was wounded; he was limping, which I then first observed; the prisoner told me when I met them”— The attorney for the commonwealth, at this point in the evidence of the witness, objected to her repeating the statement of the prisoner then made. The prisoner, by his counsel, moved the court that the witness be allowed to repeat the statement as part of the res gestae, but the court oveiTuled said motion, and excluded said statement.
We think that the court erred in refusing to permit the witness to state what was said by the prisoner on the occasion referred to. What was so said might well have been, in whole or in part, admissible evidence, either for or against the prisoner. It was very closely connected, both in time and place, with the homicide, which was the subject of the prosecution, and might well have tended to elucidate that fact as part of the res gestae. It was said when the deceased was lying close by, in a dying state, from the effect of the wounds he had received, and in the presence, and it seems the hearing, of Columbus and Gilbert Little, *926the former of whom had a pistol in each hand and the _ r latter a gun in his hand, and also in the presence and of Oscar Little, who was also wounded. It is n°l probable that the prisoner had either time or motive to fabricate a statement under such circumstances. There were present on that occasion those who were eye-witnesses to the homicide, and who could disprove any misstatement which the prisoner might have made in regard to it. As the commonwealth did not, as she might have done, produce those eye-witnesses to teatify upon the trial, it seems to be more reasonable on that account, that the statement made by the prisoner at the time of the transaction should not be excluded. At all events, that statement ought to have been heard by the court below, so that that court might determine whether all or any part of it was admissible evidence, and this court might revise the judgment in that respect. We certainly cannot say, a priori, that no part of that statement could have been legal evidence. It would have been competent for the court, after hearing the evidence, to exclude the whole or any part of it, if illegal; and it would have devolved on the jury to attach to the statement, or so much of it as the court might have held to be admissible, only so much weight as they might have considered it entitled to. The question of credibility of the evidence being one exclusively for the jury.
3. The third assignment of error is the subject of the third bill of exceptions, and is, that “ the court erred in refusing to allow James F. Milton, jr., to be recalled for the purpose of enabling the prisoner to ask him a question with a view to impeaching his testimony, and also to show malice on the part of said Milton towards the prisoner; it appearing that this ■evidence was only discovered after the said Milton had *927left the stand, and after the commonwealth had closed 7 its evidence.” It does not appear from the bill of exceptions, on what ground the court refused to the witness, Milton, to be recalled, though the petition for the writ of error states, that “the ground taken by the court in refusing to allow the witness to be recalled was, that the application came too late, although it appeared by the affidavit of Mr. Hesser (which is set out in the bill of exceptions), and by the averment of counsel, that the proposed evidence was just discovered.” But in the view of the court it is immaterial whether the refusal was upon that ground or not, and that whether it was or not, the court erred in so refusing.
“The credit of a witness,” says G-reenleaf, “may also be impeached by proof that he has made statements out of court contrary to what he has testified at the trial. But it is only in such matters as are relevant to the issue, that the witness can be contradicted; and before this can be done, it is generally held necessary, in the case of verbal statements, first to ask him as to the time, place and person involved in the -supposed contradiction. It is not enough to ask him the general question whether he has ever said so and so, nor whether he has always told the same story, because it may frequently happen that, upon the general question, he may not remember whether he has so said; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said. This course of proceeding is considered indispensable, from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that, by first calling his attention to the subject, he should have an opportunity to recollect the *928facts, and, if necessary, to correct the statement already given, as well as by a re-examination to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said.” 1 Greenl. on Ev., § 462.
In the Queen’s case, 2 Brod. & Bing. R. 313, this subject was very much discussed, and the rule and the reason of it were' laid down to the same effect in the unanimous opinion of the learned judges, which was delivered by Abbott O. J. See that part of the opinion set out in note 1 to 1 Greenl. on Ev., § 462. In the United States the same course has been generally adopted, as appears from the cases cited in the same note. Though in Massachusetts and some of the other states the rule appears to be different, as appears from cases also cited in the same note. In this state the existence of the rule was affirmed in Unis &c. v. Charlton’s adm’or &c., 12 Gratt. 484, 494, in which the question was for the first time distinctly presented to this court for its decision; though no doubt always our practice has conformed to the rule as laid down by Greenleaf, which we consider a good rule, and one that ought to prevail heré. Conceding that it is our rule, we think that the court ought to have permitted the witness to be recalled, in order to comply with the requisition of the rule. Certainly it ought, if, as is alleged, the prisoner and his counsel were uninformed of the fact set forth in the affidavit of Hesser until after the witness, Milton, had left the stand. But the court ought to have given such permission, even if the fact was known to the prisoner and his counsel before the said witness had left the stand, and the omission then to ask the question of him was a mere oversight. The testimony of that witness was all important, and upon the question of his credibility depended do doubt *929the issue of life and death, which the jury had to determine. It would have been very unreasonable to make the life of a human being; depend upon a mere ~ rule of practice adopted for the sake of convenience only. But in fact the rule is founded on a sense of justice to the witness, and was established for his benefit. If it could be considered that the rule does not exist here (as it certainly does), then the prisoner would have had a right to introduce Hesser when he offered to do so, for, the purpose of contradicting the witness for the commonwealth. So, that in any view of the rule, and whether it be considered as existing here or not as a rule of practice, the court certainly erred either in .refusing to permit the witness, Milton, to be recalled as aforesaid, or in refusing to permit Hesser to be examined as a witness to contradict the testimony of Milton, if in fact the court did so refuse, as seems to have been the case.
4. The fourth assignment of error is the subject of the fourth bill of exceptions, and is that the court refused “to permit the prisoner to prove by Col. Washington Dearmont that the witness, James F. Milton, Jr., had made before the grand jury that indicted the prisoner, a statement of the alleged confession, altogether different from the statement made by him at the trial; and that he did not make before said grand “ jury the statement made by him” at said trial.
It does not appear from the bill of exceptions what was the ground of the court’s refusal; but in the petition for the writ of error it is said that “the court refused to permit Col. Dearmont to prove what Milton had stated in the grand-jury room, upon the ground that such testimony was contrary to public policy.” We can conceive of no other ground on which such refusal could have been based.
*930We are of opinion that the court erred in such refusal, whatever may have been the ground on which it was based. The proceedings of grand jurors seem to be regarded as privileged communications, and' upon grounds of public policy. “It is the policy of the law,” says Greenleaf, “that the preliminary enquiry as to the guilt or innocence of a party accused should be secretly conducted. And in furtherance of this object,” he further says, “ every grand juror is sworn to secrecy.” 1 Greenl. on Ev., § 252. And by Bigelow, J., in Commonwealth v. Hill, 11 Cush. R. 137, 140, it is said, that “ the extent of the limitation upon the testimony of grand jurors is best defined by the terms of their oath of office, by which the commonwealth’s counsel, their fellows, and their own, they are to keep secret.” But the form of the oath required by our law to be administered to grand juries is very different, and they are not required to be sworn to secrecy. Code, ch. 200, § 6, p. 1237. If the obligation of secrecy arises alone from the form of the oath, there is therefore no such obligation in this state. But the rule for the exclusion of such evidence is, no doubt, not founded alone on the form of the oath, but also upon public policy. It has not been precisely determined, however, how far the rule extends, and what is the reason of it. “ One reason,”, says Greenleaf, “may be to prevent the escape of the party should he know that proceedings were in train against him; another may be to secure freedom of deliberation and opinion among the grand jurors, which would be impaired if the part taken by each might be made known to the accused. A third reason may be to prevent the testimony produced before them from being contradicted at the trial of the indictment by subornation of perjury on the part of the accused.” *9311 Greenl. on Ev., § 252. Hone of these reasons seem to require or authorize the exclusion even of a grand juror as a competent witness to prove that a statement made by a person before the grand jury on the finding of an indictment, was different from the statement made by the same person before the jury on' the trial of the indictment. And in 4 Chitty’s Bl., p. 126, note 4, it is said—that a few years ago, at York, a gentleman of the grand jury heard a witness swear in court upon the trial of a prisoner directly contrary to the evidence which he had given before the grand .jury. He immediately communicated the circumstance to the judge, who, upon consulting the judge in the other court, was of opinion that public justice in this case required that the evidence which the witness had given before the grand jury should be disclosed, and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury. It was held, the object of this concealment was only to prevent the. testimony produced before them from being counteracted by subornation of perjury on the part of the persons against whom bills were found. This is a privilege which may be waived by the crown. See 1 Chit. Cr. Law p. 317, mai’g. Such seems to have been held to be the law even in England, where, by the express terms of the grand juror’s oath, he is bound to secrecy. It cannot be said, therefore, at least as a matter free from grave ■doubt, that even if the witness in this case had been one of the grand jury that found the indictment, he would have been incompetent to testify as to the evidence of the witness Milton before the grand jury.
But, however that may be (and we do not mean to decide the question, because it is unnecessary in this ■case), we consider it very clear that Dearmont was a *932comPetent witness to testify as to the said evidence,. and ought not to have been excluded by the court. Though the rule has been said to include not only the grand jurors themselves, but their clerk, if they have one, and the prosecuting officer, if he is present at their deliberations; all these being equally concerned in the administration of the same portion of penal law; 1 Greenl. on Ev. § 252; yet it has been expressly held, in England, on the trial of an indictment for perjury committed in giving evidence before the grand jury,' that another person who was present as a witness in the same matter, at the same time, is competent to-testify to what the prisoner said before the grand jury; and that a police officer in waiting was competent for the same purpose; neither of these being sworn to secrecy. Regina v. Hughes, 1 Car. & Kir. R. 519; cited in note 4 to 1 Greenl. supra. This case comes directly within the principle of that decision, and if it be sound law, as we think it is, it follows, a fortiori, that the testimony of Dearmontwas competent for the purpose for which it was offered in this case.
5. The fifth assignment of error is the subject of the fifth bill of exceptions, and is that “the court erred in ruling that the question put to the witness James E. Milton, Jr., by counsel for the prisoner, viz: If he Milton, had not stated on last Wednesday, on the front porch of the courthouse, in conversation with two gentlemen whose names were not known, ‘ If I had my way I would kill the damned rascals,’ referring to the prisoners, was improper, and in excluding the same on the ground that the names of the two gentlemen were not given.”
The question presented by the fifth bill of exceptions is not accurately stated in the fifth assignment of' error, though the effect is the same. It appears from *933the bill of exceptions that the question was actually-put to and answered by the witness Milton; and that William Lewis, .a witness for the prisoner, was asked if he had not heard said Milton, at the time and place ■ referred to in the above interrogatory, in a conversation with two gentlemen (whose names the counsel for the prisoner stated were not known at the time the above question was asked said Milton, and had not been ascertained till afterwards), make use of the expression quoted in the above interrogatory. To which question the attorney for the commonwealth objected, and the court sustained the objection, upon the ground that a proper foundation had not been laid for the question by informing -the witness of the names of the persons with whom the alleged conversation was held, and would not permit the witness to answer. To which ruling of the court the prisoner, by his counsel, excepted.
We think that the court erred in so ruling; and that there was a sufficient specification as to the time, place and persons involved in the supposed contradiction, within the meaning of the law on this subject. 1 Greenl. on Ev. § 462. The names of the persons could not be given because it appears they were unknown ; but they were otherwise sufficiently described, and that is -all that the law requires.
6. The sixth bill of exceptions was taken to the refusal of the court to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the evidence; which is the subject of the first •assignment of error. The facts proved in the case are certified in the bill of exceptions, except that in some respects therein stated the testimony was conflicting, in which respects, therefore, the facts were not certified.
*934We think it very clear that the refusal of the court to set aside the verdict and grant a new trial affords no-good ground for reversing the judgment, according to the well settled law of this state, as may be seen by reference to Read’s case, 22 Gratt. 924, in which all the-1 other cases on the subject are referred to. We deem it unnecessary to say anything further on this subject.
7. The question presented by the sixth assignment of error and the seventh bill of exceptions (both of which present the same question), is rendered immaterial by our decision of the question arising on the-third assignment of error, and we will therefore take-no further notice of it.
8. The last assignment of error is, that “it is not proven that the felony with which the prisoner was charged was committed within the county of Clarke, as the indictment alleges, or within the jurisdiction of the court that tried him.”
No notice was taken of any such point in the court below, but it is noticed for the first time in the petition for a writ of error. Had it been noticed in the-court below, the alleged defect would no doubt have been at once supplied. The omission in the proof, if any, was a mere oversight. The prisoner is charged in the indictment with committing the offence in the-county of Clarke. It was proved that the act was done in the house of Franklin Little, the father of the prisoner and the deceased, the location of which in the-county of Clarke was no doubt notorious to all the jury and all the parties concerned in the trial. The jury found the prisoner guilty of committing the of-fence in the county of Clarke, as charged in the indictment. And we think the ground relied on in the last assignment of error for the reversal of the judgment,, is insufficient for that purpose.
*935But upon the grounds relied on in the second, third, fourth and fifth assignments of error and bills of exceptions, as aforesaid, we think the judgment is erro-' neous and ought to be reversed, the verdict of the jury set aside, and the cause remanded for a new trial to be had therein in conformity with the foregoing opinion.
The judgment was as follows:
This day came as well the plaintiff in error by counsel, as the attorney general on behalf of the commonwealth, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in refusing to permit the witness, Miss Hattie Prichard, to repeat the statement made to her by the prisoner as mentioned in the second bill of exceptions. That statement might well have been, in whole or in part, admissible evidence, either for or against the prisoner. It was very closely connected, both in time and place, with the homicide, which was the subject of the prosecution, and might well have tended to elucidate that fact as part of the res gestee. It was made when the deceased was lying close by in a dying state from the effects of the wounds he had received, and was made in the presence, and no doubt in the hearing, of those who, it seems, were eye-witnesses to the homicide, but who were not examined by the commonwealth as witnesses in regard to the same. At all events, that statement ought to have been heard by the court below, so that such court might determine whether all or any part of it was admissible evidence, and this court might re*936vise the judgment in that respect. We certainly cannot say a priori, that no part of that statement could have been legal evidence. It would have been competent for the court, after hearing the statement, to exclude the whole or any part of it if illegal; and it would have devolved on the jury to attach to the statement, or so much of it as the court might have held to be admissible, only so much weight as they considered it entitled to.
The court is further of opinion that the Circuit court erred in overruling the motion of the prisoner, that the witness James F. Milton,'Jr., might be again put on the stand for the purpose of allowing the prisoner to cross-examine him with a view to his contradiction, as mentioned in the third bill of exceptions.
The court is further of opinion that the Circuit court erred in refusing to permit Washington Dearmont, a witness introduced in behalf of the prisoner, to state what the witness James F. Milton, jr., said before the grand jury, as mentioned in the fourth bill of exceptions.
The Court is further of opinion that .the Circuit court erred in sustaining the objection of the attorney for the commonwealth to the question propounded to William Lewis, a witness for the prisoner, as mentioned in the fifth bill of exceptions.
The court is further of opinion that there is no error of the court in any of its other rulings in this cause, except that this court does not decide the question presented by the seventh bill of exceptions, the decision of. which is unnecessary. Therefore, for the reasons aforesaid, it is considered by the court that the said judgment of the Circuit court be reversed and annulled, that the verdict of the jury be set aside, and that the cause be remanded to the said Circuit *937•court for a new trial to be had therein in conformity with the foregoing opinion. Which is ordered to be •certified to the said Circuit court of Clarke county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481904/ | Christian, J.
This case is before us upon a writ of error to a judgment of the Circuit court of the city of Richmond, affirming a judgment of the police justice of said city, imposing a fine upon the plaintiff in error for running its cars propelled by steam upon Broad street east of Belvidere street, in violation of a city ordinance passed September 8th; 1873.
This ordinance is entitled “an ordinance to amend the third section of an ordinance to regulate the use of Broad street by the Richmond, Fredericksburg and Potomac^ Railroad Company;” and is in the follow-” ing words:
“Be it ordained by the council of the city of Richmond, *that section three of an° ordinance passed May 13th, 1872, entitled an ordinance to regulate the use of Broad street by the Richmond, Fredericksburg and Potomac Railroad Company, be amended and reordained so as to read as. follows:
“Sec. 3. That on and after the 1st day of January 1874, no car, engine, carriage, or other vehicle of any kind, belonging to or used by the Richmond, Fredericksburg and Potomac Railroad Company, shall be drawn or propelled by steam upon that part of their railroad or railway track on Broad street east of Belvidere street in said city. The penalty for failing to comply with this section shall be not less than one hundred dollars nor more than five hundred dollars for each and every offence, to be recovered before the police justice of the city of Richmond. ’ ’
*41The plaintiff in error (the railroad company) admits the violation of this ordinance, but contends that the ordinance is invalid, because it is in violation of its chartered rights.
On the other hand, the city of Richmond claims that it has the right, not only under the general police power vested in it as a municipal corporation, which antedates and overrides the charter of the railroad company, but under authority conferred upon the city council, by act of the legislature amending the city charter, to the exercise of the complete and absolute authority to regulate the use of Broad street by the said railroad company.
The legislature, by an act providing a charter for the city of Richmond, approved May 24th, 1870, vested in the council of said city the power “to prevent the cumbering of streets, avenues, walks, public squares, lanes, alleys or bridges, in any manner whatsoever,” and the power “to determine and designate the route *and grade of any railroad to be laid in said city, and to restrain and regulate the rate of speed of locomotives, engines and cars upon the railroads within said city, and may wholly exclude said engines or cars if they please; provided no contract may be thereby violated. ’ ’
It is insisted by the counsel for the railroad company, that this provision of the charter of the city of Richmond cannot be executed against it, because it is excluded from its operation by the proviso; inasmuch as by its charter it has the right by contract forever, and under all circumstances, to run its cars by steam through the whole length of Broad street to its depot and terminus at the corner of Eighth and Broad streets.
The question therefore we have to determine is, whether the ordinance of the city council is void and invalid because it is in violation of the chartered rights of the said railroad company and therefore violates the obligation of the contract between the state and the said railroad company, as evidenced and declared by said charter of incorporation.
We are therefore called upon to examine carefully the provisions of that act, and to determine whether the state has by an ever-continuing contract committed itself for all time to this railroad compa ny to run its cars propelled by steam through the heart of the capital city of the commonwealth, and through the most important and populous street of that city, without regard to the safety, comfort and convenience of its citizens, and without regard to the general prosperity and welfare of the whole city.
The Richmond, Fredericksburg and Potomac Railroad Company was incorporated by an act of the legislature of the state passed February 25th, 1834.
This act provided, that under the direction of certain ^persons therein named, books should be opened at Richmond, Fredericksburg and other places, “for the purpose of receiving subscriptions to the amount of seven [hundred thousand dollars, in shares of one hundred dollars each, to constitute a joint capital stock, for the purpose of making a railroad from some point within the corporation of Richmond, to be approved by the common council, to some point within the corporation of Fredericksburg ; and for the purpose of extending the same, should the company hereby incorporated, at the commencement of the work or at any time afterwards, deem it advisable to do so, from its termination within the town of Fredericksburg to the Potomac, river or some creek thereof, and for providing everything convenient and necessary for the purpose of transportation on the same.” Sess. Acts 1834.
The only other section of the act (which comprises thirty-eight sections), necessary to be referred to, is the twenty-fourth section, which is as follows:
“Sec. 24. The president and directors, or a majority of them, shall have power to purchase with the funds of the said company, and place on the railroad constructed by them under this act, all machines, wagons, vehicles, carriages and teams of any description whatsoever, which they may deem necessary and proper for the purpose of transportation. ’ ’
These are the two sections of the act upon which the railroad company relies, to show that the ordinance of the city council is void and invalid as to it, because they create a contract which is perpetual with the state, permitting them to run their engines for all time on Broad street. These two sections will be considered more particularly presently.
The record further shows, that on the 22d December 1834, at a meeting of the president and directors of the *Rich~ mond and Fredericksburg Railroad Company, the following preamble and resolutions were adopted:
“Whereas, by the act incorporating this company, it is requisite that the point at which the railroad terminates, within the corporation of Richmond, should be approved by the common council, and it appears to the board most expedient to conduct the same from the Richmond turnpike along H street (now Broad street) to a point at or near the intersection of the said street and Eighth street, and for the present to terminate the same by suitable connections with the contemplated warehouses and workshops of the company on lots Nos. 477, 478, purchased by them from John Heth;. Therefore,
“Be it Resolved, That the approbation of the city council be requested to the above plan.
“Resolved, That the president" cause a copy of the foregoing resolutions to be transmitted to the city council, ’ ’ &c.
In response to these resolutions of the president and directors of the Richmond, Fredericksburg and Potomac Railroad Company, the city council on the 23d December 1834 adopted the following preamble and resolutions:
“Whereas, by a resolution of the president *42and directors of the Richmond, Fredericksburg and Potomac Railroad Company, submitted to the common council, it appears that it is deemed most expedient by the president and directors to conduct the said railroad from the Richmond turnpike along H street, to a point .at or near the intersection of said street and Eighth street, and for the present to terminate the same by suitable connections with the contemplated warehouses and workshops of the company on lots Nos. 477, 478, purchased by them from John Heth: ^“Resolved, That the common council do appro.ve the proposed location of the said railroad, and the present termination of the same as described in the foregoing resolution, and authorize the prosecution of the said work within the limits of the .city on the above locations: provided, that in locating the said railroad no injury shall be done to the water pipes now laid in and along said street: provided further, that the ■corporation of Richmond shall not be considered as hereby parting with any power or chartered privilege not necessary to the said railroad company for constructing said railroad and connecting the same with the depot of said company within the limits of the city.”
These proceedings of the city council, and the two sections of the act of incorporation above quoted, constitute the foundation of the claim on the part of the railroad company, of a perpetual and' irrepealable contract between the state and that company, by which for all' time, and under all circumstances, they may run their cars propelled by steam through one of the principal and most populous streets of the capital city cf the commonwealth.
It will be conceded, that if such contract exists at all, it originated in the two sections of the act of incorporation and proceedings thereunder above quoted. These, therefore, require a careful and candid consideration.
It is apparent that by the first section of the act incorporating the railroad company, the legislature delegated to the city council cf Richmond the powers to select the terminal point within the corporate limits of the city, and under this act the railroad company could only locate its terminus at such point within the city of Richmond as should approved by the city council. This plain construction of the first section is recognized *and acted upon by the president and directors of the railroad company when they declare, in the resolutions adopted by them and sent to the city council, that “it is requisite that the point at which the railroad terminates within the corporation of Richmond should be approved by the city council.”
And the city council in approving the terminal point, suggested by the president and •directors of the Richmond, Fredericksburg and Potomac Railroad Company, adopted it (the intersection of Eighth and Broad streets) as the then ‘ ‘present termination cf the same,” and upon the express condition “that the corporation of Richmond shall not be considered as hereby parting with any power or chartered privilege not necessary to the railroad company for constructing said railroad, and connecting the same with the depot of said company within the limits of the city.”
Upon this construction of the first section, and with these plainly expressed conditions, asserting in emphatic terms the chartered powers and privileges of the corporation of the city of Richmond, the railroad company adopted the corner of Eighth and Broad streets as the terminal point within the city of Richmond from which they should build their road, and on which they built their depot and warehouses, &c.
In the resolutions approving the terminal point (without which approval the railroad company could not have commenced their work beginning within the corporation of Richmond,) we find the express and positive reservation of all the chartered rights and powers of the municipality. These included an absolute and entire control over the streets of the city, excepting only the privilege to the railroad company of constructing and connecting their road with the depot on Broad street. Not a syllable is recorded about the mode or *manner of transportation, whether by horsepower or steam, the entire regulation of that subject being reserved to the corporation with the rest of its chartered powers.
It is argued, however, that the twenty-fourth section of the act of incorporation above quoted, giving to the company the power “to purchase and place upon their road all machines, vehicles, &c., of any description whatsoever, which they may deem necessary and proper for the purposes of transportation,” confer upon the company the authority to run locomotives within the city limits. This reasoning is altogether inconclusive and illogical. If the assent of the city council had been absolute and unconditional, this view would not have been sound. It is manifest that this twenty-fourth section is a general provision extending to the whole road. The road passes through '■ the counties of Henrico, Hanover, Caroline and Spotsylvania. The legislature did not require these counties to give their assent to the construction of the road, because these counties have no chartered rights and privileges; and in these counties the railroad company acquired not only a right of way, but an absolute right of property in their road, and necessary property acquired in. those counties, because, as empowered by their charter, they condemned the lands of individuals for these purposes, and paid them an equivalent in money. But the legislature did require the assent of the city authorities before the company could lawfully pass its boundaries. Within the limits of the city of Richmond all the right which the company acquired was the right of way over the street for transportation of passengers and freight. This right was subject to the right inherent in the municipal authorities to control the use of the streets, and to protect the safety, comfort and *43general welfare *of the citizens of the municipality. The general right, therefore, to use machines on their road, as provided in this twenty-fourth section, does not embrace the right, against the consent of the city authorities, to use locomotives on •one of the principal and most populous streets of the city.
It is worthy of remark, that the city council have, ever since its approval of the terminal point in 1834, constantly asserted their right to prohibit the introduction of steam engines into the city. In 1845, after much contention for years on the subject between the railroad company and the city authorities, on motion of Mr. Wickham, one of the most distinguished citizens, as well as one of the most learned lawyers of the city, the following resolution prepared by him was adopted by the city council.
“Resolved, That the council of the city of Richmond not only maintains its right to prohibit the use of locomotives within the city whensoever it shall appear expedient to do so, but in contradiction to all allegation to the contrary they do most positively deny all responsibility to indemnify the railroad company for any such exercise of its legitimate powers. They admit no other right in this respect on the part of that company but to a favorable and indulgent consideration— a claim which, from its nature, becomes less :and less the longer it is favored.”
Up to the present time the city council have repeatedly and constantly asserted their right to prohibit the use of locomotives within the city limits, which they might or might not exercise in their own discretion, according as the safety and welfare of the citizens should require.
This right was as firmly maintained and confidently asserted under the general chartered powers, and the ^rights inherent in every municipal corporation to guard and protect the safety of the citizens, and to regulate the use of the streets of the city, from the very inception of the construction of the railroad, as it is now, when, by the amended charter above referred to of the city, special power is conferred upon the city council to regulate the rate of speed of locomotives, engines and cars upon the railroads within the city, and to wholly exclude said engines and cars if they please; provided no contract will be thereby violated. ’ ’ But the railroad company confidently rely upon this proviso; and it is earnestly argued, that the adoption by the legislature of this proviso was a recognition of the claim of the railroad company to run their locomotives on Broad street for all time. This pretension is unreasonable and illogical. The only fair and legitimate inference to be drawn from the adoption of this proviso is, that the legislature, aware of the controversy between the city authorities and the railroad company on this subject, left it as an open question for the courts to decide, whether the chartered powers and privileges of the corporation of Richmond had been so modified and restricted by the act of incorporating the Richmond, Fredericksburg and Potomac Railroad Company, as to deprive the corporate authorities of the right to prohibit the company from running steam engines on the streets of the city. This question was not intended to be decided by the legislature, but was reserved as a judicial question. The legislative declaration by the amended charter was simply that the city council should have power to regulate the speed of locomotives and remove them altogether, if in so doing no contract was violated. And the question as to the violation of the contract rights of the company is by that proviso submitted *to judicial determination; and that is the main question now submitted to this court.
Now it must be borne in mind that when the act incorporating the Richmond, Fredericksburg and Potomac Railroad Company was passed by the legislature in 1834, the charter of the city of Richmond was then in existence; and certainly none of the provisions of that charter were repealed by the adoption of the act incorporating the Richmond company; but remained in full force and effect. By the charter of the city, the corporate authorities are invested with the power to make and establish such bylaw, rules and ordinances, not contrary to the constitution or laws of the commonwealth, as shall by them be thought necessary for the good ordering and government of such persons as shall from time to time reside within the limits of said city and corporation, or shall be concerned in interest therein.” Not only were they invested with these chartered rights, specifically conferred by the terms of the charter, but with all those powers and privileges which by law are inherent in every municipal corporation, to guard the safety and promote the comfort and welfare of the citizens of the corporation.
The railroad company accepted the charter not only subject to existing laws and chartered corporate powers vested in the corporation of Richmond, but they adopted the terminal point of their road within the corporate limits approved by the city council, with the express reservation “that the corporation of Richmond shall not be considered as parting with any power or chartered privilege not necessary to the railroad company for constructing the said road, ’ ’ &c.
It is conceded that a charter granted to a corporation by the state may be, according to its terms, a contract between the state and corporation, the obligation of *which cannot be impaired by subsequent legislation; but at the same time while this is conceded, it is also certainly true that corporations, like natural persons, are subject to remedial legislation, and amenable to general laws. Private corporations, even without any express reservation of the powers over them by the legislature in their charters, are subject, like individuals, to be restrained, limited and controlled in the exercise of their powers by such laws as the legislature may pass, based upon the principles of safety to the public.
It is well settled, and cannot now be dis-*44pitted, that the legislature may control the actions, prescribe the functions and duties of corporations, and impose restraints upon them to the same extent as upon natural persons, subject, of course, to the limitation of not impairing the obligation of contracts made between the corporation and the state. See Redford on Railways 428, and note and cases there cited.
“A corporation is,” in the language of Chief Justice Marshall, in Dartmouth College v. Woodward, 4 Wheat. R. 518, “the mere creature of the law; it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.” And as was expressed by the same great judge in Providence Bank v. Billings, 4 Peters’ R. 514: “Any privileges which may exempt a corporation from the burdens common to individuals do not flow necessarily from the charter, but must be expressed in it, or they do not exist.”
A cardinal rule, in the interpretation of charters of incorporation, is thus laid down by Mr. Justice Grier in Richmond Railway Co. v. The Louisa Railway Co., 13 How. U. S. R. 71. “Public grants are to be construed strictly, and any ambiguity in -the terms of the grant *must operate against the corporation and in favor of the public; and the corporation can claim nothing but what is clearly given by the act. ’ ’
In Charles River Bridge v. Warren Bridge, 11 Peters’ R. 420, 548, Chief Justice Taney enforcing the same rule said: “The continued existence of a government would be of no great value, if by implications and presumptions it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to privileged corporations.” And this eminent jurist concludes his discussion of the subject by the declaration, “that no claim in any way abridging the most unlimited exercise of the legislative power over persons natural or artificial can be successfully asserted except upon the basis of an express grant in terms or by necessary implication.”
Applying these rules of law and canons of interpretation to the charter of the Richmond, Fredericksburg and Potomac Railroad Company, it is clear that there is nothing in the privileges and franchises conferred by that charter which prevents the legislature either of itself (or through a municipal corporation to which it has delegated its authority), from prescribing rules and regulations for the exercise of those privileges and franchises. And it is equally clear that the authority granted in the charter of incorporation, to construct a road “from a point within the corporation of Richmond, to be approved by the city council to a point within the corporation of Fredericksburg,” and the authority “to place upon said road machines and other vehicles necessary for the purposes of transportation, ’ ’ do not constitute a contract by which the said company may for Lall time run their engines upon
Broad street within the corporation of Richmond, and which perpetually *prohibits legislative interference and control. Nor upon the most liberal rules of interpretation can it be said that the charter has conferred such extraordinary and unlimited powers upon this corporation, either “by express grant in terms or by necessary implication.” Certainly there is no such express grant in the charter of incorporation. It cannot be implied from the fact that one of its terminal points was to be within the corporate limits of Richmond-The power to lay its track and move its cars through one of the streets of the city does not necessarily imply the power to move them by steam, nor does the authority to use steam engines on their road necessarily imply a perpetual grant for all time to run steam engines through the most populous streets of the city.
To give to. the charter such an interpretation, would be to hold not only that the legislature had deliberately violated the chartered rig'hts of the principal and capital city of the commonwealth by depriving it of the power to protect the public safety and promote the public welfare, but that the legislature had tied its own hands, and placed this corporation above and beyond the reach of the law. Before we can reach such a. conclusion, we must see in the charter itself either an express grant in terms, or one which arises from the most patent and necessary implication. Seeing neither, I am forced to the conclusion that it was competent for the legislature to confer upon the city council the power “to regulate the rate of speed of locomotives, engines and cars upon the railroads within the city of Richmond, and to wholly exclude said engines if they please;” and that the ordinance passed in conformity with this act is valid.
Nor do I perceive that this ordinance is unreasonable and oppressive, and for that reason, as was argued by *the learned counsel for the plaintiff in error, ought to be set aside.
This company was chartered more than fifty years ago. At that time much of what is now known as Broad street was a mere turnpike, neither graded nor paved, with, scattered here and there, houses on each side. It is now one of the most attractive and populous streets in the city. It being the most level and the widest street, and one most convenient to that part which contains the largest number of private residences, Broad street has now become the principal street, for the shop and retail business of this growing city. There is not only on this street a large and constantly growing resident population, but crowds are attracted to it, every day, and all hours of the day, from all parts of the city, especially ladies and children, from the fact that this street has now become the great mart for supplying the wants of families, in the varied and multiform retail business, necessary to meet the wants of a populous and growing city.
It is not therefore “unreasonable” that the city council, should, under this change *45of circumstances, prohibit the use of steam engines on this street.
The voluminous evidence taken in this case not only shows, that these locomotives had the effect to injure the business and general prosperity of this principal street, and consequently of the whole city; but it is also proved that notwithstanding the great care and watchfulness with which this railroad has been managed, the use of steam power has been the occasion of many fearful accidents.
And under the general police power inherent in every municipal corporation (independent of the special powers conferred by the legislature “to regulate the rates of speed” of these engines “or to remove *them if they please”) the city council might well exercise this authority. The general police power existing in the legislature, is transferred to every municipal corporation to be exercised by it, for the protection of the safety and general welfare of the citizens of such corporation, and in the exercise of such authority the municipal legislature •(the city council) must of necessity be invested with a large discretion. Ogden v. Saunders, 12 Wheat. R. 213; Fisher v. Harrisburg, 2 Grant’s (Pa.) cases 291; St. Louis v. Weber, 44 Mo. R. 547; Commonwealth v. Robertson, 5 Cush. R. 431. As was said by Mr. Justice Barbour, in City of New York v. Miles, 11 Peters R. 102, 139, in speaking of the general police power of a State—“By virtue of this it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness and prosperity of its people and provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained. ’ ’ All those powers which relate to merely municipal legislation, or what may perhaps, more properly be called internal police, are not thus surrendered or restrained; and consequently in relation to these the authority of the state is complete unqualified and exclusive.
This police power, says Chief Justice Redfield, in Thope v. R. & B. R. Co., 27 Verm. R. 140, 149, “extends to the protection of the lives, limbs, health, comfort and quiet of all persons and the protection of all property within the state. It must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. ’ ’ The same eminent judge and author says in his valuable *work on the Haw of Railways: “There are confessedly certain essential franchises of such corporations (railroad companies) which are not subject to legislative control; and at the same time it cannot be doubted that these artificial beings or persons, the creations of the law, are equally subject to legislative control and in the same particulars precisely as natural persons. Railroads —so far as the regulations of their own police affecting the public safety, both as to life and property, and also the general police power of the state as to their unreasonable disturbance of, and interference with, other rights, either by noise of their engines in places of public concourse, as in the streets of a city, or damage to property, either in public streets or highways—there can be no question whatever, are subject to the right of legislative control.” 2 Redf. on Rail. | 232. And again, referring to the case of Buffalo & Niagara Falls Railroad v. City of Buffalo, 5 Hill (N. Y.) 209, the author says: “It has been held that a statute giving power to a common council of a city to regulate the running of cars within the corporate limits, authorizes the adoption of an ordinance entirely prohibiting the propelling of cars by steam through any part of the city. We should entertain no doubt of the right of the municipal authorities of a city or large town to adopt such an ordinance without any special legislative sanction, by virtue of the general supervision which they have over the police of their respective jurisdictions. Such must have been the opinion of the court in the case last referred to. Nelson, C. J., says: ‘ ‘A train of cars impelled by the force of steam through a populous city may expose the inhabitants and all who resort thither for business or pleasure, to unreasonable perils; so much so that unless conducted with more than human ^watchfulness the running of the cars (in that mode) may well be regarded as a public nuisance.” Ib. \ 250, p. 646.
In “Pierce on American Railroad Haw” the doctrine on this subject is thus succinctly and clearly laid down under the head of “Police Haws:” “A railroad company, although no power is reserved to amend or repeal its charter, is nevertheless subject, like individuals, to such police laws as the legislature may from time to time enact for the protection and safety of citizens, and the general convenience and good order. These laws although imposing liabilities and duties on the company other than those contained in its charter or existing when it was granted, do not impair the obligations of the contract implied therein.
Its property and essential franchises are indeed protected by the constitution, but the company itself is not thereby placed above the laws. It seems not to have been the design of that instrument to disarm the states of the power to pass laws to protect the lives, limbs, health and morals of citizens, and to regulate their conduct toward each other. Such laws may incidentally impair the value of franchises or of rights held under contracts, but they are passed diverso intuitu and are not within the constitutional inhibition. ’ ’
Without multiplying- authorities on this point I will simply refer to the following cases. Vanderbilt v. Adams, 7 Cowen R. 349; Coates v. Mayor N. Y. Id. 585; Baker v. Boston, 12 Pick. R. 184; 10 Barb. R. 245; 45 Maine R. 560; 5 Hill R. 209.
But it is insisted by the learned and able *46counsel for the appellants, that the ordinance of the city council complained of, takes from the company one of its essential franchises, and seriously affects their rights of *property without compensation, and is therefore void and invalid.
It has already been shown that upon a fair construction of the charter of the Richmond, Fredericksburg & Potomac Railroad Company, there was no contract either express or implied, by which the state bound itself for all time and under all circumstances, to permit this company to run its locomotives through the streets of the city; and that the ordinance violated no contract rights of the company.
Does it violate any essential franchise? and, does it appropriate any property of the company? Clearly not. The ordinance does not prevent the company from making its connections with the depot on Broad street, but only regulates the mode by which these connections are to be made. It only declares that these connections shall not be made by steam. It only says to the company that the public safety and the general welfare of the city, in the opinion of the city council, (who are competent to judge of this matter, as the municipal legislature), requires now that the locomotives shall no longer traverse this most important street, because it exposes the inhabitants to unreasonable and constant perils and seriously affects the prosperity of the whole city. In doing this the city council are acting within their legitimate powers. They have violated no chartered rights; they have interfered with no essential franchise; nor can the railroad company claim any compensation; for in so doing the city council have not appropriated for the public use one dollar of the property of the company. It may be the company may in a certain sense, and to some extent be the loser by this ordinance; but upon well established principles they have no claim to compensation, ^because there is here no appropriation of the company’s property, or violation of its essential franchises, but only a regulation of the mode in which their chartered rights and-franchises may be exercised; and the company, like natural persons, must be subject always (unless protected by chartered rights or constitutional inhibition), to the salutary and all-pervading maxim of the law sic utere tuo ut alienum non laedas. The law is well established, by indisputable authority, and the universal assent of an enlightened jurisprudence, that every person (artificial as well as natural) holds his property subject to the limitation expressed by this maxim, exercised either by the legislature directly, or by public corporations to which the legislature may delegate it. Daws and ordinances relating to the safety, comfort, health, convenience, good order and general welfare of the inhabitants are comprehensively styled “Police Daws and Regulations.” And it is well settled, that laws and regulations of this character though they may disturb the enjoyment of individual rights are hot unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury it is. either damnum absque injuria or in the theory of the law he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to-secure. The citizen owns his property absolutely it is true; it cannot be taken from him for any private use whatever, without his consent, nor for any public use without compensation; still he owns it subject to this restriction; namely, that it must be soused as not to injure others, and that the sovereign authority may by police regulations, *so direct the use of it, that it shall not prove pernicious to his neighbors or to the citizens generally.
These regulations rest on another maxim salus populi suprema est lex. This power to restrain a private injurious use of property is very different from the eminent domain. Under the latter, compensation must always be made. But under the former, it is not a taking of private property for public use, but a salutary restraint of a noxious use by the owner contrary to the maxim sic utere tuo ut alienum non laedas.” Seé Dillon on Corporations, p. 209, 210; and cases there cited.
In Commonwealth v. Alger, 7 Cush. R. 53, Chief Justice Shaw, in an able and exhaustive opinion, in which the police power as contradistinguished from the right of eminent domain, is discussed and is peculiarly applicable to this case, says: “We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property however absolute and itnqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. * * * Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain, the right of a government to take and appropriate private *property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same.”
*47There are many cases in which such a power is exercised by all well ordered governments , and where its fitness is so obvious as to be recognized by all as reasonable and proper. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways, to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or with incombustible material; to prohibit buildings being used for hospitals for contagious diseases, or for the carrying on noxious or offensive trades; to prohibit the raising of a dam, and causing stagnant water to spread over meadows near inhabited villages, thereby raising noxious exhalations injurious to health and dangerous to life. And so, upon precisely the same principle a railroad company may be prohibited from running their cars propelled by steam through the crowded streets of a populous city, thereby subjecting property to serious injury and human life to constant and unreasonable perils.
Nor does the prohibition of the noxious use of property, although it may diminish the profits of the owner, make it an appropriation to a public use, so as *to entitle the owner to compensation. If the owner of a warehouses in the midst of a city could store in it quantities of gunpowder he might save the expense of transportation and storage at a distant point. If a landlord could let his building for a smallpox hospital, or a slaughter-house he might obtain an increased rent. If a railroad company is permitted to run their cars through the streets of a city propelled by steam, it might be less expensive and more convenient than if the same were drawn by horses. But all these are restrained, not because the public have occasion to make the like use, or make any use of the property, or to take any benefit or profit to themselves for it, but because it would be a noxious use contrary to the maxim sic utere tuo ut alienum non laedas.
It is not an appropriation of the property to a public use but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain. This distinction is manifest in principle and is recognized by unquestioned authority. Commonwealth v. Alger, 7 Cush. R. 53; Commonwealth v. Teuksbery, 11 Metc. R. 55; Baker v. Boston, 12 Pick. R. 184; Wadleigh v. Gillman, 12 Maine R. 403; Vanderbilt v. Adams, 7 Cow. R. 349; Coates v. Mayor &c., New York, 7 Cow. R. 585; 1 Dillon on Corporations § 93, pp. 209-210; 2 lb. § 565, and cases there cited.
I am of opinion for the reasons given, that the ordinance complained of is within the scope and power of municipal authority —that this power has not been unreasonably or oppressively exercised—that the ordinance merely preventing the use of locomotives on the streets does not impair the obligation of any contract, nor violate the chartered rights or any essential *franchise of the railroad company and that it is therefore valid and of full force and effect.
The judgment of the Circuit court should be affirmed.
Anderson and Bouldin, Js., concurred in the opinion of Christian, J.
Staples, J., dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481905/ | Anderson, J.,
delivered the opinion of the court.
By the 4th section of the act amending the charter of Lynchburg, passed December 8, 1866 (Acts 1866-’7, p. 460), jurisdiction is given to the court of Hustings for the said city, “not only within the corporate limits of said city, but also for the space of one mile without and around said city.” .On the 31st of July 1869, Thomas L. Johnson, S. W. Younger, and John T. *Smith, who were partners constituting the firm of Younger & Co., executed a deed of trust, conveying, with other property situated and being within the corporate limits of the city of Lynchburg, a lot of four acres of land lying outside of said corporate limits, in the county of Campbell, but within the jurisdiction of the Hustings court of said city, to the appellants, trustees, to secure the appellees equally with all other creditors of Younger & Co. And on the same day said deed of trust was admitted to record in the clerk’s office of the Hustings court of said city, but never was recorded in Campbell county.
Afterwards, in 1870, judgments were severally recovered by the appellees ag'ainst Younger & Co. in Lynchburg courts, which were regularly docketed in the clerk’s office of the County court of Campbell county. And the question raised by this appeal is, was the recording of the deed of trust in the clerk’s office of the Hustings court of the city a valid recordation as against creditors, or was it necessary that it should have been recorded also in Campbell county?
By section 5 of chapter 119, Code of 1860, p. 566, deeds of trust, &c., shall be void as to creditors and subsequent purchasers without notice, until and except from the time that they are duly admitted to record in the county or corporation wherein the property embraced in such contract may be. This section was amended and re-enacted by the act of January 16, 1867 (Acts of 1866-’7, p. 538), toread as follows: “Every such contract, &., deed of trust, &c., shall be void as to creditors, &c., until and except from the time that it is duly admitted to record in the county or corporation wherein the property embraced in such contract or deed may be : provided, however, that all deeds *77of bargain and sale, of trust, of gift, or mortgage, or *power of attorney, and all writings in respect to real or personal estate, intended to be recorded, where such real or personal estate, is situated, lying and being within the jurisdiction of a corporation or Hustings court, shall be recorded in the clerk’s office of such corporation or Hustings court;” which means, we think, that when the property conveyed is within the jurisdiction of the corporation or Hustings court, the deed shall be recorded in the clerk’s office of that court, and shall be void as to creditors until and except from the time it is so recorded: which clearly implies that from the time it is so recorded, it shall not be void as to creditors and subsequent purchasers without notice. It was the intention of the legislature, we think, by this proviso, to prescribe this recordation as to property so situated, as a substituir for recordation in the County court. But it is nowhere said, nor, we, think is it implied, that deeds thereafter made, of property so situated, shall be recorded in the county, as well as in the clerk’s office of the corporation and Hustings court.
The foregoing section, as amended and re-enacted, is not in conflict with $ 6 of the Code, which is as follows: ‘ ‘Notwithstanding any such writing shall be duly admitted to record in one county or corporation, wherein there is real estate, or goods, or chattels, it shall nevertheless be void as to such creditors and purchasers in respect to other real estate, or goods, or chattels, without the same, until it is duly admitted to record in the county or corporation wherein such other real estate, or goods, or chattels, may he.” By virtue of the preceding section, as amended and re-enacted, the property lying or being within the jurisdiction of the Hustings court of the city, although outside of the corporate limits proper, is, as to purposes of recordation, ^virtually within the corporation, and need only be recorded in the corporation court; and in this case, the deed, not embracing other real estate, or goods and chattels, without the same, need not be recorded elsewhere. But if there is any conflict, section 6 must yield to section 5 as amended and re-enacted, which in point of time is the later enactment. Section 6 was not re-enacted, and is not therefore cotemporaneous with section 5, as amended and re-enacted by the act of January 16th, 1867, but was enacted prior to the Code of 1860. If any of its provisions are in conflict with section 5, as amended and re-enacted, they are virtually repealed by the latter.
The deed of trust in this case having been recorded in the clerk’s office of the Hustings court of the city of Bynchburg, conveying the lot or lots of land in question, lying within the jurisdiction of the Hustings court, was such a recordation as the statute required, and was valid against creditors and subsequent purchasers. And consequently, the lien so acquired by the trustees on the property embraced in the deed of trust overreached any liens upon the same property acquired by subsequent judgments. The court is of opinion, therefore, to reverse the decree of the Circuit court with costs; and doth proceed to enter such decree as ought to have been entered by the said Circuit court.
Decree reversed.
Deeds—Recordation.—For reafflrment of the doctrine laid down in the second headnote, see Burgess v. Belvin, 32 Gratt. 633; Campbell v. Nonpereil, 75 Va. 292; Boston v. Chesapeake, &c., R. Co., 76 Va. 185, citing the principal case. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481907/ | Staples, J.
It has been held by this court that the provision in the constitution of 1851, declaring that “taxation shall be equal and uniform throughout the commonwealth, and all property, other than slaves, shall be taxed in proportion to its value,” relates to taxation by the general assembly for purposes of state revenue; and does not apply to taxes and levies by *counties and corporations for local purposes. Gilkeson v. The Frederick Justices, 13 Gratt. 577.
The present constitution however includes counties and corporate bodies also; so that the prohibition, which was formerly confined to the state g-overnment, must now equally apply to corporate bodies; but in either case the prohibition relates to taxation for purposes of revenue, and not to those assessments made by municipal authorities, upon the owners of real estate within the corporate limits, for local improvements. These assessments are not founded upon any idea of revenue, but upon the theory of benefits conferred by such improvements upon the adjacent lots. It is regarded as a system of equivalents. It imposes the tax according- to the maxim, that he who receives the benefit ought to bear the burthen; and it aims to exact from the party assessed no more than his just share of that burthen according to an equitable rule of apportionment.
Whether these assessments are to be regarded as an exercise of the taxing power or the police power, or whether they are based exclusively upon the idea of compensation received in the form of benefits conferred upon the owner’s property, is a question not necessary now to be discussed or decided. It is sufficient to say, that the right to make such assessments, unless prohibited by some constitutional provision, is almost universally conceded. Concurring with Judge Anderson that the power unquestionably exists; that it is vested in the corporate authorities of Norfolk, I am led to a conclusion the very reverse of that which he reaches. His view seems to be, that as the owner of real estate in a city is liable to an assessment only by reason of benefits conferred, all levies in excess of such benefits are unconstitutional and void. But who is to "^determine whether such excess does in fact exist? What tribunal is to settle the question? Are the courts to take cognizance of such cases, enter into a critical examination of the assessments, strike a balance of benefit on one side and burden on the other, and sustain or annul as the one or the other may seem to prevail? In a large majority of such *85cases, in the very nature of things, the courts cannot have before them the proper material for such investigations. I do not mean to say, that cases may not occur of such gross oppression and injustice as to require judicial interference: but they are exceptional, and must be decided as they arise upon the particular circumstances attending them, rather than upon any general rule or principle. My understanding has always been, that if the mode of assessment is regular and constitutional, if the power to levy the tax exists in that class of cases, the courts are not authorized to interfere merely because they may consider the taxation impolitic, or even unjust and oppressive. In such case the remedy is in the legislative and not in the judicial department. Cases, without number, might be cited in support of this principle. People v. Lawrence, 41 New York R. 137; Providence Bank v. Billings, 4 Peters' R. 514; Langhorne & Scott v. Robinson, 20 Gratt. 661; where the authorities are reviewed by Judge Joynes. In the case before us it appears that the city council of Norfolk, for the purpose of grading and paving its streets, has adopted the system of assessment by the front foot on lots adjacent to the street to he improved. The same system has been adopted in other towns and cities in the United States, and has been generally recognized by the courts as constitutional and valid. It is sustained by the highest courts in New York, Ohio, Michigan, Wisconsin, Missouri, California, Kansas, Connecticut and Pennsylvania. See Sedgwick on Stat. and Const. Baw 502-’3-’5; and cases cited in Cooley’s Const. Bimitation 507.
I admit there are some opposing cases; but neither in number, learning, or weight of authority, do they bear any comparison with the decisions which affirm the validity of this mode of assessment. Upon reason and principles of natural justice, it may be sustained as apportioning the burden according to the benefit, as nearly, perhaps, as any other that can he adopted. That it may in some instances operate harshly, and even oppressively, is conceded; but this is true of all forms of taxation.
It has been well said by a learned jurist, “taxation is sometimes regulated by one principle, sometimes by another; and very often it is apportioned without reference to locality, or to the tax payer’s ability to contribute, or to any proportion 'between the burden and the benefit.” The citizen who is required to pay a tax of one thousand dollars for the support of free .schools, to which he sends no children, while his neighbor, who has a half dozen to be educated, contributes nothing, may well complain of inequality of burdens. A county levy for the construction of a free bridge or other local work not unfrequently operates with peculiar hardship upon persons residing remote from the locality; and yet no one now questions the validity of such taxation. An ad valorem tax is regarded as the most just and equitable for the general purposes of government. The reason is, that a rich man derives more benefit from taxation in the protection of his property than a poor man, and ought therefore to pay more. The same rule, however, does not necessarily apply to local assessments. They are based upon the idea of benefits conferred by the work upon *the owners- of adjacent lots. If the owner of the unimproved lot pays only according to its value as ascertained at the time, his contribution is not in proportion to the benefits derived. The lot which is worth but little to day may, by the opening, grading and paving of the street adjacent, he enhanced in a few weeks in value to the amount of thousands of dollars.
We are, however, not called upon to decide which is the most just and equitable system of taxation, but whether the one tinder consideration is in conflict with the constitution or laws of the state. And in this connection I cannot do better than quote from the opinion of Judge Peck, of the Supreme Court of Ohio, in the case of Northern Ind. R. R. Co. v. Connelly, 10 Ohio R. N. S. 159. He thus states and answers the objection to this form of assessment: “But it is said, that assessments, as distinguished from general taxation, rest solely upon the idea of equivalents, a compensation proportioned to the special benefits derived from the improvement; and that in the case at bar the railroad company is not, and in the nature of things cannot be, in any degree benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equivalent; but it by no means follows that there must he in fact such full equivalent in every instance, or that its absence will render the assessment invalid. The l'ttle of apportionment, whether by the front foot or a per centage upon the assessed valuation, must be uniform, affecting all the owners and all the property abutting on the street alike. It is manifest that the actual benefits resulting from the improvement may be as various almost as the number of owners and the uses to which the property may be applied. No general rule, therefore, could be laid down which' would do exact justice to *all. * * * * The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although, in fact, the burden imposed may greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner’s interest in the land, his remedy would seem to be to procure, by timely appeal to the city authorities, a reduction of the special assessment, and its imposition, in whole or in part, upon the public at large.” I refer also to the cases of People v. Mayor of Brooklyn, 4 New York R. 419; and People v. Lawrence, 41 New York R. 137; where the whole subject is exhaustively treated, and the law of local assessments placed upon impregnable grounds.
Upon my first examination of this record *86I was inclined to think that the assessment here was upon the owners of the several lots for the expense of paving the street in front of each lot respectively. This upon well settled principles is illegal. A more careful examination has satisfied me, that the assessment is apportioned at uniform rates among all the owners of lots lying upon that particular street. It is one 'of the facts agreed, that the plaintiff has been assessed at the same rate per front foot, on his property, that all other owners of real estate on said street have been assessed on their property. In other words, the street to be improved is made a taxing district, and the expense of paving it is assessed upon the adjacent lots in proportion to the frontage of each upon said street.
Unless the expense of paving a street is very enormous, it is difficult to understand how a tax apportioned in this manner, can operate with very great hardship upon the owners of real estate abutting on the street. It appears also, that the pavement was directed by *a unanimous vote of the two councils in joint meeting, upon the petition of a majority of the owners of real estate fronting on the street. The city pays one-fourth, and the owners of adjacent lots pay three-fourths of the expense. They are permitted to make their payments in what is known as paving bonds, received at par and payable in annual instalments of five years. The very fact that this improvement is made at the instance of a majority of those upon whom the burden falls, and that among all the members of the' city councils not a vote is recorded against it, is very persuasive evidence, at least to my mind, there is no great hardship in the assessment, nor injustice in the system under which it was made. If either exists, • if there are individual cases of wrong, the remedy is by a timely appeal to the city authorities; or to the legislature for an amendment of the charter. The courts cannot interfere except by an assumption of power not properly belonging to the Judicial Department.
These are my views, the results of a careful examination of the authorities, and such reflection as I could give the subject. The question is an important one, and I regret extremely that my other duties have prevented the preparation of a more elaborate opinion. Ror the reasons stated I think the judgment of the corporation court erroneous, and should be reversed.
Anderson, J. Upon petition of a majority of the owners of lots fronting on Wood street, in the city of Norfolk, the city council ordered it to be paved, and that one-fourth of the expense should be paid out of the public treasury, and three-fourths be assessed on the lots fronting on the street. The defendant in *error being owner of one of the lots was assessed with $874.11, which he paid under protest, and then brought suit in the Corporation court of said city to reclaim it, and obtained judgment. And the case is brought here by the city of Norfolk upon a writ of error. The main questions are, “Have the city council authority to make assessments upon the owners of real estate, especially benefited, to pay the expense of the improvement, or any part of it? And is the per front foot apportionment lawful?”
I am not aware that these questions have ever been decided in Virginia. But numerous cases have been cited from other states, in which the power to make such local assessments has been maintained, though upon different grounds. In some of them the power has been derived from the right of eminent domain; in others from the taxing power. I think it is clear that the power cannot be derived from the former source. Government cannot take private property in the right of eminent domain, except by giving to the owner a just compensation therefor. And it has been held, and I think rightly, that money is not subject to the right of eminent domain. Why should the government take the citizen’s money, to return it to him as soon as taken? The power cannot be derived from that source.
Is it taxation? If it is, it is prohibited by the constitution of this state. Section 1, article 10, provides “That taxation, except as hereinafter provided, whether imposed by the state, counties, or corporate bodies, shall be equal and uniform, and all property shall be taxed in proportion to its value, to be ascertained as prescribed by law. ’ ’ To raise revenue, it is required that all property shall be taxed, and it must be taxed in proportion to its value. *But it is contended that although it is taxation, it does not fall within this constitutional limitation, because though it is a tax, it is not a tax on property but on benefits. But it seems to me that is untenable. If it is a tax at all, and is not a tax on property, it would be difficult to perceive what is a tax on property. It is an assessment upon the land of the defendant in error to pay for the improvement of public property, the paving of a public street, which incidentally enhances the value of his property. It cannot be said that it is not a tax on property, but on benefits, because it incidentally enhances the value of the property taxed. All taxation is for the benefit of the body politic; and the well being and benefit of the body politic benefits all its members. Therefore it may be said, that all taxation is incidentally for the benefit of the taxpayers, and may as logically be said to be a tax on benefits.
In other cases cited, it is said that whilst it is an exercise of the taxing power, it is not exerted for the purposes upon which the constitutional limitation was designed to operate. And in support of this position, Gilkeson v. Rrederick Justices, 13 Gratt. 577, is relied on. In that case, art. 4, l 22, of the constitution of 1851, that “taxation shall be equal and uniform throughout the commonwealth, and all property, other than slaves, shall be taxed in proportion to its value,” &c., was construed to apply “to the commonwealth’s revenue, and to nothing else. ’ ’ This construction was put upon the *87ground, that County courts, city councils, &c., had always exercised the power of local taxation for local purposes, and upon different rates and upon different subjects, and-they were not expressly embraced in the ■constitutional limitation. Judge Samuels, speaking for the whole court, says (p. 583) “the power of the general *assembly to confer authority on County courts, city councils, corporations, and other organized bodies, to impose local taxes for local purposes, had been exercised from the adoption of the first constitution down to the formation of the last. The rates and subjects of taxation were different in many instances, if not in all; the powers conferred were not always the same, but were varied to meet the exigencies -of particular circumstances, and frequently were left to the discretion of the body on which they were conferred. All this was known to the convention, yet no explicit provision was inserted in the constitution changing this power of the general assembly. Surely if a change in the whole scheme of taxation was intended, the convention would have expressed the intention in plain terms, and not have left us to arrive at it by forced construction.” In the present constitution it is expressed in plain terms; and perhaps with reference to the above decision. Counties and corporations are expressly embraced within the limitation. And as the public streets are a subject of municipal regulation, and the putting them in good condition, and keeping them in repair, and paving them when necessary, and the raising money for such purposes, are as much a public duty and necessity, as to raise money for any other branch of municipal administration, taxation for such purpose necessarily falls within the aforesaid constitutional limitation; and this reasoning is consistent with the principles ■enunciated in Gilkeson v. Frederick Justices, ■supra. The case of Eanghorne & Scott v. Robinson, 20 Gratt. 661, is under the constitution of 1830, which contained no restriction on ttve taxing pcmei, and consequently has no application to this case.
If therefore it is a tax I can see no reason why it is not included in the general terms “taxation” and *'“tax” as employed in the constitution. If it is taxation, or an exercise of the taxing power it seems to me, that it plainly falls within the letter of the constitutional limitation; and within its spirit too. For I can see no reason why the legislature and municipal corporations should be limited in laying a tax for general purposes to uniformity and equality amongst those who are assessed with the tax, and should not be so restricted in laying a tax for local purposes. Equality in the one case is as essential to justice as in'the other. Unless then we can find some other ground upon which the ■assessment is warranted it seems to me, that it is plainly prohibited by the clause ■in our constitution referred to above. If it is taxation, it is prohibited upon the ground that it is not equal and uniform; and further, upon the ground that it is a tax on property, and is not apportioned according to the value of the property.
But I am inclined to the opinion, that it is not properly a tax; and that it is erroneously ranged under the taxing power, in the cases cited by the plaintiff’s counsel. Whilst we have great respect for the judicial decisions of our sister states, and for the opinions of the able text writers, who seem to follow them, they are not binding authority upon this court: and I am the less reluctant to dissent from them upon this question, inasmuch as the decisions of other courts, equally entitled to our respect, hold that it is not an exercise of the taxing power. The question is one of first impression in this state; and not being trammeled by authority I feel free to consider it upon what I consider sound principles of law, and reason.
It is an assessment. But the word assessment does not always mean a tax. A jury of inquest, upon a writ of ad quod damnum, is directed to assess the damage *to the owner of the lands through which the road passes, or which shall be condemned for the abutment of a mill dam, and the like. And a jury is required to assess the damage, to which the plaintiff in an action at law is entitled, in the execution of a writ of inquiry. And by section 67 of this same charter, the city councils are required to assess, and pay to any one whose house has been destroyed by the city authorities to arrest the progress of a fire, the damage he has sustained. In these cases assessment does not mean a tax. And so it may not in the provision of the charter now under consideration. It is evidently a mode of raising money to defray the expense of improving the streets, which is different from the mode of raising it by taxation. The charter empowers the councils to determine what proportion of the expense of the improvement shall be paid out of the public treasury, and what proportion shall be paid by the owners of real estate who are bene^ted. For the former the money is raised by taxation; for the latter it is raised by an assessment on the owners of the real estate which is specially benefited.
In the class of cases now under consideration, the improvement is chiefly for the benefit of the ownefs of the real estate which is adjacent to the street which is paved. And the design is, that they shall pay a proportion of the expense of the improvement beyond their contribution in common with other citizens, by taxation, according to the special benefits they receive. And the city having paid the whole cost by its bonds, the city councils are authorized to assess—that is, to ascertain and determine—what proportion of the cost paid by the city was for the owners of the real estate thus exceptionally benefited; a bill or an account of which is to be stated by the commissioner of the revenue, *and placed in the hands of the city collector. And to enforce the payment he is required to collect it as city *88taxes are collected. This very language implies, that these assessments were not regarded as taxes. The city having paid part of the cost of a street improvement, which certain owners of real estate ought to have paid, it being to that extent for their peculiar benefit, in order to have it refunded to the city, the councils are authorized to assess each one with his fair proportion—that is, to ascertain and determine what he shall pay—which I think is made a charge upon his estate, real and personal, by the provision that it shall be collected as city taxes.
It seems to me, that these local assessments fall neither under the head of the taxing power nor the power of eminent domain. It is a distinct power vested in the councils by the charter, to enable them to perform their important function of providing- suitable streets and highways for the city, to determine what proportion of the cost, if any, shall be paid by the city, and what portion the parties benefited shall pay. The portion of the expense which the city shall pay they may raise by taxation, it being for a corporate purpose; the part which the owners of real estate benefited should pay, being for individual benefit, and therefore wanting in an essential element of taxation, which must be for a public purpose, the charter impliedly authorizes the councils to apportion it amongst them, and to assess the amount against each of them, as a jury would assess damages. Independently of the power thus conferred upon the councils by the charter, they could not make the requisition upon the parties benefited. They could not do it under the taxing power, because the constitution requires a tax on property to be apportioned according to the value of *property, real and personal. If this power was not specially given, all that the councils could do', if they were petitioned to have a street paved, and did not regard it of such public interest as to justify its being done wholly at the public charge, would be to agree that they would pay out of the public treasury, one-half, one-third, or one-fourth, or other proportion of the expenses as they might consider the public interest in the work would justify, provided the balance should be raised by the parties to be benefited. Such it is believed, has been the common usage in the administration of county affairs. The inhabitants of a section of a county, are desirous of having a bridge over a stream. It is a work in which they are peculiarly interested. And whilst it will be of general advantage to the county, the justices do not regard it as of such general advantage as to justify its construction wholly at county expense; and they propose to order it, and to pay a part of the cost, provided the balance is raised by private contribution. And in order to have the bridge those who are interested must raise the balance. And so, whilst the paving of a street may be of public benefit to a city, the council may consider that it will not be of such benefit as to justify an outlay to have it done at the public expense in the whole, or in some cases, even in part. If then it is done, it must be entirely by private contribution in the one case, or partly in the other.
These contributions must be either voluntary or compulsory. If the former, the misfortune is that all will not contribute in proportion to the benefits they will receive from the improvement. The more liberal and public spirited will contribute more than their just proportion; some will barely do their part, and others will do little or nothing, willing to share in the benefits, *but not in the burden. The inhabitants of Norfolk in providing a government for their city, provided in their charter that contribution in such case should be compulsory, and that the amount which those benefited ought to pay should not be left to their own biased judgment, but should be determined by the city councils, not arbitrarily, but according to benefits received. And the ground of compulsory contribution is, that it is a public improvement which enhances the value of their real estate in a way that it does not the real estate in the city generally, and benefits them especially as it does not the citizens in general, and that it is just and proper that they should be required to contribute specially to the cost of making it. The authority given by the charter to make these assessments is founded in this (under proper restrictions) just principle, and I do not regard it as falling strictly or appropriately under the head of the taxing power. But it is a distinct power vested by the charter in the councils, with the assent of the corporators, to ascertain and determine upon a question of quid pro quo what a member of the corporation should pay to it for the special benefits he receives from the improvement. If it be said he did not ask for it, that the work was not done at his instance and request, it might be answered, that he, being a member of the corporation consented, (for his consent to the charter must be presumed,) that the councils might, under certain prescribed conditions, decide for him whether the work should be undertaken and assess him with sttch portion of the expense as ought to devolve on him in proportion to the special benefits which he derives from the improvement. Their decision that the improvement is i a work of public convenience or necessity, and that it shall be made, supersedes *the necessity of a special request from him. It being a public work which must be paid for by the citizens, it is not right that those who derive special and extraordinary benefits from it should pay no more than the citizens generally. Therefore the principle of the charter, which authorizes an assessment on the owners of real estate who are specially benefited by the improvement, to pay a part of the expense of the work, in proportion to the special benefits which they derive from it, over and above what they receive in common with the other citizens, it seems to me, is *89founded in reason and justice, and a sound public policy. The power can only be exercised on this principle, or on the principle of taxation. If on the former, it is on the principle of a return for benefits received: If on the latter, it is on the principle the right of sovereignty to command. But we have seen that this right to command, this power of taxation, is limited by the constitution: That taxation must be equal and uniform, and that all property, real and personal, shall be taxed in proportion to its value, whether levied by the sovereign legislative power of the commonwealth or by municipalities. And if these assessments can only be supported as a tax, or under the taxing power, I could not consistently with my obligations to the constitution, sustain them. A plain mandate of the constitution ought not to be evaded by ingenious construction.
But the assessments being warranted, upon the other principle, the councils are clearly not authorized to make an arbitrary assessment—that would be despotism; nor an assessment in proportion to the value of the property owned by the parties assessed; or of their ability to pay; or of the value of their lots fronting on the street; or the size of them; or their *'per front foot. But these matters may all be considered, as well as the condition and situation of the lots, and the use to which they are or may be applied, and any other circumstance which may have any bearing upon the question of proportion of benefits received. Upon this principle in no case could the owner of a lot be assessed with a sum which would necessitate a sale of his lot for less than the amount of his assessment. Ror if he is benefited it must be by the enhanced value given to his real estate; and I cannot see how he would be benefited by the improvement if he was thereby forced to sell his real estate to pay it at a price not exceeding the amount of his assessment. It is in fact a judicial inquiry, and should be proceeded with as such.
■ It is contended that the councils in making the assessment exercise their legislative function. That I apprehend is a great mistake. The councils are invested with both legislative and judicial functions, as will be readily seen by inspecting the charter. This is a judicial function. The determination of what constitutes a benefit, and its valuation, says Mr. Sedgwick, are judicial acts, which do not pertain to the legislative function. Sedgw. on Const. Daw, pp. 169, 174-’5, 177. In State v. Collector of Newark, 1 Ducher’s R. 315, it was held that these local assessments were of a judicial character, and that the power of the court to review them was too well settled to be questioned. In The People v. The Mayor &c., of New York, 5 Barb. R. 43, it was held that it was competent for the Supreme court to vacate the estimate and assessment of the common council for the construction of a sewer, as the common council then acts in a judicial capacity. In Parks v. The Mayor &c. of Boston, 8 Pick. R. 218, it was held that the power vested in the mayor *and aldermen of Boston, as to the laying out and altering of streets, is judicial, and a certiorari lies in such case. But it is unnecessary multipy citations of authority further, in support of this proposition. It seems to be very clear both upon reason and authority, that the function is judicial and not legislative.
In my opinion it would be competent for the councils, and it would be the right way, to summon the parties sought to be assessed before them, to show cause against it, who should be allowed to be heard, and to adduce evidence upon the question: or the councils might make the inquiry through a commission, as is required by the statute of New Jersey, who upon an actual view, and upon such evidence as either party might adduce, should make their report to the councils for confirmation; and in either case the party should have notice. It has. been held in New York and New Jersey that notice is necessary, although not expressly required by the statute.
But it is contended, that an apportionment according to the front foot extent of the lots along the street paved may be adopted as a safe and uniform rule for a just apportionment of the expenses according to the benefits received. It is possible that there might be a case in which it would so operate. But if so it would be an exception to the general rule. In New Jersey and the great State of Illinois, where they have immensely wealthy and populous cities, their experience seem to be different. In State v. Hudson City, 5 Dutch. R. 116, 117, it was. held that an impost according to extent of front, absolutely excludes the idea of an assessment in the ratio of benefits. See also City of Chicago v. Darned, 34 lili. R. Whether it is true to that extent or not, T think that enough may be seen in this brief record of the operation of the rule in this case, to *show that the reverse of the proposition contended for is true. It shows that in the assessments made by the councils, under the operation of that rule adopted in this case, the owner of a lot valued at $150, before the improvement of the street, was assessed with $1,000 as his. share of the expense of the improvement. A rule which produces a result so shocking to our every sense of justice cannot have the merit which is claimed for it, and cannot be relied on as the best practicable rule to make an apportionment among the owners of the lots benefited according to the benefits they receive from the improvement. But it is attempted, by the advocates of the rule, to parry the effect of this damaging fact, by alleging that the party thus demnified had not then applied to the councils for relief. He may be awaiting the decision of this cause, which seems to be treated as a test case. Whilst I would not regard the value of the real estate benefited as the rule upon which the assessments should be made, I would regard it as having an important *90bearing, with other circumstances, in making a just apportionment of the benefits received; which we have seen is the only principle upon which the assessment can be made. The owner of a lot handsomely improved, with a costly residence upon it, would be greatly more interested in having a well-paved street than the owner of an unimproved lot; but upon the basis of apportionment per the front foot the owner of ■the unimproved lot having double the front, ■although the area was no greater, would be required to contribute twice as much to the pavement of the street. And between lots unimproved there might be a great difference in the benefits which they receive from the improvement on account of situation and other circumstances, although they were equal in the front foot. And *yet the owners on this basis are required -to pay the same. Their benefits are not ■equal. ‘ One may own a lot on which he has a costly hotel, and the pavement of the street may add 50 per cent, to its value by in•creasing his custom; but he is required to pay no more than the owner of an unimproved lot which is not a tenth of its value ■and from which he derives no income. Do -they derive equal benefits from the improvement? A man of plain common sense would •answer no. The same may be said with regard to the owner of a lot upon which there are valuable stores or machine shops. Is it not manifest that he derives much greater benefits from the improvement than the owner of an unimproved lot, or of one the improvements on which are of inconsiderable value, though of equal front, and from which he derives little or no income.
It is not without doubt and difficulty I bave reached the conclusion that, under the ■constitution of Virginia this power of local assessment can be maintained at all. I am clear that it cannot be maintained under the taxing power. And that if it can be maintained at all it is by virtue of the judicial power vested in the councils by the charter, to assess the owners of real estate with a just proportion of the expense, according to the special benefits which they respectively derive from the improvement. I cannot conceive of any other principle upon which they could justly or lawfully be required to pay for a public work beyond their just liability, in common with other citizens, to taxation for public objects. The improved street is not theirs: It is public property. They have no right to use it that does not equally pertain to every other citizen. And it is urged with much force of reason, that it ought to be made at the cost of the city by a ‘^constitutional tax upon all the citizens. The only ground upon which they can be required to pay beyond their common liability with all other citizens, is, that the improvement is a benefit to them in a way that it is not to the citizens in common. And it is only to the extent of those benefits, and in proportion to the value of those .they respectively receive, that they can be held liable. And this is a judicial question, which ought not to be determined against them without notice and an opportunity to be heard. And in no case can they be assessed beyond the value of the benefits which they specially receive from the improvement.
But it is said that it is a power which the legislature could not exercise and therefore could not delegate. It is true that it is a power which the legislature could not exercise. And it is true, that the legislature cannot delegate a legislative power with which it is not itself invested. But I apprehend it is not true as to judicial power. The legislature can surely invest another tribunal with judicial power which it cannot exercise itself. And therefore it is only upon the ground that it is a judicial power vested in the councils by the consent of the corporations, that it can be maintained, and in my opinion, can only be maintained under the restrictions and qualifications which I have endeavored to explain.
It does not appear from the record, that these restrictions were observed by the councils in this case. It appears to be an arbitrary assessment per the front foot of the lots, and not, nor professed to be, in proportion to the benefits which the owners of the real estate derived from the improvement. The councils have not therefore confined themselves within the limits of their authority; and the asessment is void. *In this conclusion I am fortified by the recent decisions of the Supreme court of Illinois; in one of which the great city of Chicago was a party; by repeated decisions of the Supreme court of New Jersey, and other cases. I am of opinion for the foregoing reasons, that the assessment in this case being without authority, is null and void, though it is competent for the councils to make another assessment upon the principles indicated in this opinion. I am therefore for affirming the judgment of the Corporation court.
Moncure P. and Christian J. concurred in the opinion of Staples J.
Bouldin J. concurred in the results of the opinion of Anderson J., but not in all his views.
Judgment reversed.
Local Assessments.—See Sands v. City of Richmond, 31 Gratt. 571, and note, and Violett v. Alexandria, 92 Va. 561, where the subject of local assessments Is discussed in all Its aspects and all the Virginia cases on the subject are thoroughly reviewed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481908/ | *Staples, J.
The law is well settled that where an executor or administrator having assets in his hands, becomes the guardian of the legatee or distributee, he may elect to hold the share of such legatee or distributee in his character of guardian; and thus while he charges his sureties in the guardian bond he exonerates those in the administration bond. And it is equally well settled, that in order thus to shift the responsibility from one class of sureties to the other, some distinct act or declaration is necessary on the part of the executor or administrator, indicative of his intention to hold the fund in his character of guardian. Myres v. Wade, 6 Rand. 444; Suope v. Chambers, 2 Gratt. 319; Alston v. Munford, 1 Brock. R. 266, 278; note 6.
These principles are not controverted by the counsel on either side. While, however, they have a strong bearing upon the point in controversy they do not cover the entire ground. The question arising here involves some additional issues necessary to be considered. This will be better understood by a brief reference to the facts of the case.
The testator Robert T. Gregory, died in October 1856. James A. Gregory, one of the executors appointed by the will, qualified as such shortly thereafter. In April 1860 he also qualified as guardian of Rosa B. Gregory, an infant daughter of the testator and the principal legatee under the will. Both as executor and as guardian he executed *94bond with sureties for the faithful performance of the duties of these several offices. As executor he received assets to a large amount; and at the time of his qualification as guardian in 1860, there was an acknowledged balance against him of more than four thousand dollars. Neither at that time nor at any subsequent period, had he *in his possession or under his control, any money, bonds, stocks, credits or assets of any description belonging to the estate of his testator, but this balance was the executor’s own indebtedness growing out of assets received by him and wasted or converted to his own use. This fact is proved by the executor himself, and is not controverted.
It is also claimed and not denied, that the executor after his qualification as guardian, by distinct acts and declarations more particularly to be adverted to hereafter, elected to charge himself as guardian with the balances due by him as executor. The controversy here is not between different sets of sureties; but between the infant legatee and the sureties in the administration bond. The guardian is himself a bankrupt; and the sureties upon that bond are in doubtful circumstances, if not entirely insolvent.
The ground taken by the appellants, is, that the same person being both executor and guardian, he had the right to decide for himself, when and to what extent he would transfer his account as executor to his account as guardian; and when he has made his election to transfer and does transfer a balance from one account to another his sureties, who have trusted to his discretion, are bound in the one case and relieved in the other by his acts; and in this case such acts of election were neither slight nor trivial, but they were solemn, decisive and repeated.
On the other it is insisted by the counsel for the legatee, that while the executor may elect to hold in one character or the other property in his actual possession or under his control, he cannot thus transfer a mere liability from one set of sureties to another; that all the cases upon the subject, proceed upon the idea that the executor has funds actually in hand, and *that he is not a mere debtor for converted assets; and when he has been g-uilty of a devastavit in wasting or appropriating the estate a right of action* at once accrues upon the bond, his liability and that of his sureties becomes fixed, and can only be discharged by actual payment, or what is equivalent to it: and when the executor is also guardian, although he cannot make a payment to himself; it is incumbent upon him to do what he would do if the payment was to be made to a third person, he ought to keep the trust fund separate and distinct from his own estate, and easily identified as the property of the ward.
These views, it seems to me, are so sensible, so manifestly in accordance with the dictates of common justice, they ought to prevail, unless the authorities plainly establish a different doctrine.
The Virginia reports do not show that this precise question has ever been decided, or even considered by this court. In tl^e various cases upon this subject it does not distinctly appear, whether the executor had or had not wasted or converted the assets; but in the opinions of the judges expressions occur which plainly indicate that the funds were in the hands of the executor, or under his control, at the time of the election to-hold in the character of guardian.
Thus in Myers v. Wade, 6 Rand. 444, 446, Judge Green says: The Chancellor properly held in this case, that the sureties for the guardianship, and not those for the administration, were responsible.
Mrs. Myers’ admission in her answer that upon qualifying as guardian, she received the estates of the infants into her hands, though not conclusive, is prima facie evidence against her sureties, and is not contradicted.” The decision might have been very different had evidence been adduced contradicting the answer and showing *that Mrs. Myers had not in fact received the estate in her hands as guardian, but was a mere debtor for assets received and converted.
In Morros’ adm’or v. Peyton’s adm’or, 8 Leigh 54, it appeared that the estate of one decedent was indebted to that of another, and the same person was administrator of both, and wasted the assets of the debtor estate. This court held that if it should ultimately appear that the funds received by the administrator from the debtor estate ought to have been passed over by him to-the credit of the creditor’s estate, then the sureties for the administration of that estate should be held responsible for the omission to pass them over, and for the administrator’s devastavit of those funds.
It must be borne in mind, that at the time the funds were received by the administrator of the debtor estate, he was then administrator of the creditor estate also; and having the funds in hand it was his duty to pay himself as representative of the creditor estate if there were no debts of superior dignity against the debtor estate. And for his failure to do so his sureties for the due administration of the creditor estate were liable. Bitt Judge Tucker declared that for the waste or misapplication of the assets of the debtor estate the sureties on that administration bond would be also liable. And so in the present case, if at the time or after his qualification as guardian, the executor had funds in his hands which he ought to have passed to himself as guardian, but failed so .to do, the sureties for the guardianship might be held responsible. It would not follow that the sureties for the administration would not be also liable. In the case supposed, the executor having received assets his sureties become at once responsible. That responsibility can only be discharged by showing that he has properly applied the *funds in his hands to the purposes of the estate; or not being so needed, they have been passed to his credit as guardian. *95These are the views, I think, substantially, presented in Morros’ adm’or v. Peyton’s adm’or. That case so far from being adverse to the ground taken in the present case, may be reg-arded rather as an authority in support of it.
I do not propose to notice the other cases decided by this court, because it is not pretended that in either of them the question now before us was discussed or considered. The point being undecided in this state, the learned counsel on both sides have been extremely diligent in examining the decisions of other states. They have found many. It would be a most unprofitable consumption of time, it would extend this opinion an undue length, to enter into a discussion of these decisions, and to attempt to show wherein they have or have not any bearing upon the present case. It is sufficient to say, that they are conflicting, and while in some of them expressions occur which seem to accord to a personal representative the power to shift the liability from one set of sureties to another even where he has converted the assets, yet whenever the question here has been distinctly made and considered, the weight of authority sustains the views presented in this opinion.
It may be proper, however, to notice briefly, the case of Taylor v. Deblois, 4 Mason R. 133. That is a leading case, and is mainly relied on by the appellant. When carefully examined, however, it will be found there is nothing in it in conflict with what has been said here.
There the same person was both administratrix and guardian. The administratrix had settled her accounts in the Probate court, which showed a considerable *balance against her due the distributees. She afterwards qualified as guardian of one of the minors; and thereupon she presented a certificate to the same court, stating that she had in her possession the funds belonging to her ward; and upon that she obtained from the court a quietus or decree exonerating her as administratrix and her sureties upon that bond.
Upon a suit afterwards brought by the ward, the question was whether the sureties on the administration or on the guardian’s bond were liable. It was alleged by the ward, that at the time the certificate was presented to the Probate court and the quietus obtained the administratrix did not have the funds in her possession or under her control; but that they had been wasted by her or her agent. That in this respect the certificate was false, and the quietus fraudulently obtained.
This was the real issue between the parties. The sureties of the administratrix relied upon the decree as conclusive in the absence of fraud, under the statutes and practice of Rhode Island. And the court held there was nothing to show that the certificate was false or fraudulently obtained. Throughout the case, both in the pleadings and in the very learned and elaborate opinion of Mr. Justice Story, it was impliedly conceded, that if the administratrix at the time of obtaining the quietus, did not have the distributive share in her possession, but had wasted the same, her sureties for the administration would still be liable to the distributee.
Row if an executor who has wasted the assets may, by his mere election, transfer his liabilities to his guardianship account, it was a matter of no sort of importance whether the certificate was true or false,, whether the administratrix had or had not the funds in hand. *Such an inquiry was altogether immaterial. It would have been sufficient to say, that the certificate itself was an open and notorious act of election to hold as guardian, and such election exonerated the administration sureties, no matter what was done with the assets. But no such ground was taken by the counsel or the court; and I think the case strongly discountenances the idea that a personal representative, who is also g'Uardian, guilty of a devastavit may at his pleasure charge one set of sureties and exonerate the other from all liability to parties interested in the estate.
It is true that Mr. Justice Story, in the course of his opinion, states another ground upon which, as he thinks, the responsibility of the administratrix and her sureties is. discharged. He says: The administratrix after the guardianship having assets to pay the amount of the distributive share it was presently satisfied by way of retainer; and by operation of law there was a transmutation of the same to her as guardian, and she no longer held the same as administratrix.
Row it is sufficient to say, that this doctrine of transmutation of possession by operation of law, where the same person is both executor and guardian, has been repudiated by this court in every case before it. It was disapproved in Morros’ adm’or v. Peyton, 8 Leigh 54; in Swope v. Chambers, 2 Gratt. 319; in Harvey’s adm’or v. Steptoe’s adm’or, 17 Gratt. 289, 300, 301; and by Judge Story himself in the subsequent case of Pratt v. Northam, reported in 5 Mason 95. As the time when the transfer is to be made depends upon the condition of the estate and the state of the administration, the court will not shift the responsibility from one set of sureties to the other without some act or declaration on the part of the representative, indicating *an intention to transfer the assets. Harvey’s adm’or v. Steptoe’s adm’or, 17 Gratt. 289, 301.
I do not deem it necessary to answer further the various cases upon this subject, but will refer to Phillips v. Minnings, 14 Eng. Ch. R. 309, 315; Harrison v. Nard, 3 Dev. Law R. 417; Claney v. Carrington, Id. 529, and especially to the case of Conky, Judge v. Dickinson et als., 13 Metc. R. 51. Tn the latter case the question arising here was discussed and carefully considered. The Supreme court of Massachusetts lays j down the doctrine broadly, that if the stireI ties on the bond of the executor were liable-*96by reason of his misapplication of the assets, it was not competent for him to transfer that liability to his sureties on the guardian’s bond. The assets were never in the possession of the guardian as such; nor was there any means by which he could obtain possession in that character. He could not sue himself; and he is not chargeable on the ground, that an executor or administrator is chargeable for a private debt which he owes the estate. That principle is grounded on the necessity of the case; and no such necessity exists in the present instance.
It seems to me that this view is well nigh conclusive. The ground usually taken in opposition to it is, that as the executor, being also guardían, cannot sue himself nor make a payment to himself, he must from the necessity of the case, have the right to charge himself in either character. The answer is, that if the executor does his duty no suit is required. It is only necessary for him to keep the funds of the estate separate and distinct from his own, faithfully apply them to the purposes of the estate if needed, and when the administration is closed, transfer the surplus in his *hands to the guardian account, and the obligation of his bond is at once discharged and the sureties released. This court said in Morrow’s adm’r v. Peyton’s adm’r, that when the same person is representative of both debtor and creditor estate, it is his duty as representative of the debtor estate, to pass the funds over to himself as representative of the creditor estate. The same rule applies when the same person is both guardian and executor. Having the funds in his hands as executor, he may elect to hold them in his character of guardian ; and his sureties will be bound by his election. In this way he fulfills the condition of his executorial bond as completely as if he had made the payments to a third person.
The rule which allows an executor guilty of a devastavit, at his pleasure to shift his liabilities from one set of sureties to another, is calculated to produce much inconvenience and injustice. Its effect is to hold out a premium for fraud and collusion by giving the power to the executor to favor one set of sureties at the expense of the other, without fear of detection and exposure.
It enables him at his pleasure, to transfer a liability from the party who ought primarily to bear it, to innocent parties, who ought not to be the sufferers.
It enables him, if so inclined, to defeat the just claims of the distributee by shifting the responsibility from capable and solvent sureties to those that are doubtful and insolvent.
It clothes a defaulting fiduciary who has wasted a trust fund, with an unlimited discretion, which ought to be accorded only to one who has faithfully performed his duty.
And finally, it takes from the sureties a strong motive to see to it that the personal representative faithfully discharges all the trusts and obligations of his office.
It is said, however; that much of the evil thus apprehended is imaginary, as this right of election can only be exercised by an executor or administrator whose solvency is unquestioned. But it is often difficult if not impossible to determine, especially after the lapse of years, what was the pecuniary condition of the executor at a given time. He may be a man of fortune to-day and a bankrupt to-morrow. He may be apparently possessed of ample means and at the same time overwhelmed with debt. The'law does not look to the solvency of the fiduciary, but to that of his sureties. The object in taking the bond is to protect parties interested ag'ainst losses and contingencies of this very character.
In the present case the executor is a bankrupt. He tells us, however, that before the war he was possessed of an estate amply •sufficient to discharge all his liabilities. It appears that his bankruptcy -was the result of debts contracted almost exclusively prior to the year 1860. Within fifteen months after his qualification as executor he had wasted or misapplied the assets to the amount of two or three thousand dollars; and within the next two years succeeding he had wasted more than two thousand dollars besides. The executor has never replaced the amount, nor attempted to do so. The funds were probably used in the payment of his private debts, or in the support of h'is family. It may be fairly presumed, that at no time could he have replaced the amount except by a sale of property. Upon his qualification as guardian he quietly transfers the devastavit to that account, and thus relieves himself and his sureties from any suit upon the administration bond. But even after he had become guardian his *settlements before the commissioners were made in his executorial capacity; and these settlements were continued down to the 1st of January 1862; on which day a large balance is reported against him as executor. It does not appear that any other settlements were made during the war. The only transfer made to the guardianship account before the year 1866, consists of entries in the executor’s private account book, made after his qualification as guardian in the year 1860. Ho such transfer appears by any of the settlements made in the County court.
The executor tells us he presented to the commissioner his book as guardian and asked him to make the settlement in that way; but the commissioner said there was but one legatee and it made no difference in which way the settlement was made.
Under our statutes and rules of practice these settlements before the County courts are entitled to peculiar respect and consideration. They ai-e the sources to which creditors and legatees look for information touching the administration of the estate, and upon which sureties on the administration and guardian bonds rely to ascertain the nature and extent of their own liabilities. When a fiduciary thus charges himself with assets, when he deliberately holds himself out to the world as chargeable in a *97particular character, neither he nor his sureties should be permitted to destroy the effect of admissions thus solemnly made, by any mere private entries of the executor himself, or by parol proof of verbal instructions given to the commissioner who made the settlements. As the records show ■one state of facts, and the executor’s account book shows another, we must look, I imagine, to the records only. These show that he was never charged as guardian with these balances until the year *1866. In that year a bill was filed in the Circuit court of Mecklenburg in the name of the ward, by her next friend, against the guardian and executor, asking for a settlement of his accounts in both capacities. In the progress of the suit the accounts were referred to a commissioner, and a settlement made by him. It seems that the commissioner refused to recognize the transfers made by the executor to his guardianship account in 1860. He brings the executorial transactions down to the 1st of January 1863; and on that day he finds a balance against the executor of nearly five thousand dollars. The commissioner then opens a guardianship account, and transfers to that account the executorial balance just mentioned ; and this account is brought down to the 1st of September 1866.
The bill was filed the first Monday in July; the answer of the executor and guardian on the same day. Two months thereafter, on the Sth September 1866, the order for an account was entered; the account was taken and completed on the same day, and a decree rendered confirming it on that day.
It is admitted that the infant had no agency in bringing the suit, that it was brought by the executor, and conducted by him and in his interest throughout. It was to all intents and purposes his suit, in which for all practical purposes, he was both plaintiff and defendant. Neither the sureties •on the administration bond nor the sureties on the guardian’s bond were parties to it. This decree is relied on as conclusively settling the rights of the parties. In my judgment it binds no one except the executor and guardian. It may show an election in 1866, on the part of the executor, to transfer his liabilities to his guardianship account. It cannot operate as an election and transfer in 1863, when there was no such election and *transfer, and in the very teeth of the public records to the contrary. Nor can it operate as a release of .a previous well ascertained liability on the part of the executor and his sureties, for a devastavit continued and acknowledged for years upon the public records. Had the sureties upon the guardian’s bond been made parties they might be bound; but their liability would be merely cumulative, and would not affect that of the sureties for the administration. There is nothing in the decree which professes to exonerate them.
The executor’s election to hold as guardian could not have any such effect, according to the principles already discussed. No such election would be permitted at this late day, after such a length of time, except upon the most satisfactory proof of the entire solvency of the executor himself and the sureties upon the guardian’s bond. The latter are confessedly in doubtful, if not insolvent circumstances. How they were in 1866 we do not know. We do not know what was the condition of the former at that time. We do know that he went into bankruptcy under the act of 1867 upon debts contracted before the war; and the reasonable, the fair presumption is, that he was much embarrassed if not insolvent in 1866.
I do not mean to impute any bad faith, or unfair conduct, or improper motives, to this executor. He is represented as a conscientious and honorable man. Whatever may have been his motives, however fair his proceedings, the proposition to my mind is not tenable in law or equity, that he can be permitted by his mere fiat to exonerate the only solvent sureties, the parties who are justly liable, and compel this legatee to seek redress upon a doubtful bond against parties who are not properly chargeable for the loss of this estate.
*In every point of view in which the case can be considered, I think the decree of the Circuit court is clearly right, and ought to be affirmed.
The other judges concurred in the opinion of Staples J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481909/ | Anderson J.
delivered the opinion of the court.
Joseph W. Mason by his last will and testament, dated December 29, 1854, after authorizing his executor at his discretion, to sell his whole estate, real and personal, loans it to his wife Frances, for the purpose of supporting herself, and supporting and educating his daughter Rucy, until she attains to lawful age or marries. He then provides for the contingency of his wife marrying again, which contingency never happened. He then by the 4th clause declares, “Should my wife not marry, I wish when Rucy becomes of age or marries, one-half of my estate to go to my wife for life, and the other half to Rucy absolutely, and at the death of my wife the other half.” Rastly he appointed J. T. J. Mason, the appellant, his executor, and guardian *for Rucy, who made probate of the will on the 4th of January 1855, and qualified as executor; but as the bill alleges, declined the office of guardian.
In October 1866, Rucy, having then attained eighteen years of age, intermarried with J. B. Jones. In 1869 they filed their joint bill in chancery against Rouisa F. Mason, the widow of the said Joseph W. Mason, and J. T. J. Mason, his executor, and his securities, alleging that there was a balance of $16,785.67; in the hands of the said executor, of which the said female plaintiff was entitled to one-half, which was due and payable to her, on the 23d of October 1866, the date of her marriage; and praying a decree for the same, with interest from that date, against the party or parties liable therefor; .and further that the said executor be required to give additional security, to have the other moiety forthcoming at the death of the widow.
The executor answered, and admits his qualification as executor, and that he took possession of the money, bonds and other papers of his testator, and a small portion of the personal property, which he sold, leaving the land, slaves, and the bulk of the perishable estate, on the plantation in possession of the widow, according to the direction of testator’s will.
He proceeded to collect and pay off the debts of the estate as rapidly as he well could. The widow took possession of the land, slaves, and other estate left on the plantation, hired an overseer, hired out one or more of the negroes, sold the crops, and collected the money, and exercised entire control over the same for that year, 1855. Rate in that year, at her request, as he was authorized to do by the will, he offered the *99land for sale, when the amount bid for it, not being as much as the widow thought it should sell for, she bought it herself, *at the price of $2,854, for which she executed her bonds, payable in one, two, and three years, the widow still keeping all the property, and absolutely controlling the same, until some time in the month of February 1856, when the executor, in the exercise of his discretion under the will, offered all the slaves and chattel estate for sale; at which sale she purchased all the slaves but two, and most of the perishable estate; and executed her bonds for the same, not paying one cent for the land, slaves, and perishable estate; and the whole remained unsettled until the fall of 1858.
On the 3d of June 1858 the executor settled his accounts with a commissioner of the court of Sussex county; which settlement was returned to the court and was confirmed, after lying one term without exception. In this settlement it seems that the executor was debited with the bonds executed to him by the widow for the land, slaves and other personal property; and the commissioner reported a balance against him on the 1st of July 1858, of $18,075.49; of which the sum of $1,289.52 was interest. The plaintiffs take no exception to this settlement, and seek not to disturb it.
On the 7th of October 1859, after the settlement aforesaid was confirmed by the court, the executor had a settlement with the widow, who executed to him her receipt in full, for the balance of interest due by him as executor as aforesaid, the same being due to her absolutely under the will of her deceased husband; and at the same time under her hand acknowledged the receipt from him of $16,785.67, the balance of principal in his hands. This constituted the whole estate after payment of debts, which was loaned to her by the testator, by his will. He also took her bond for the amount bearing interest from the 1st of July 1858.
*As a result of the war the slave property, which probably chiefly constituted the estate, perished, and the widow was unable to pay over to her daughter on her marriage, one-half the amount which had been loaned to her. How much she paid or turned over to her, does not appear from the record. The answer avers from information received, that the appellee Jones, soon after the marriage took possession of all the property lately belonging to the estate of Joseph W. Mason, and had a sale of the same, except the real estate, which he rented out, and had received considerable money in that and other ways, in part, or whole of the estate which he now claims.
According to this averment the widow had surrendered everything to her daughter’s husband, so that there was nothing found upon which the execution sued out by the executor against her upon the judgment which he had recovered against her in 1869 upon her bond aforesaid, could be levied; which tends to confirm the averment of the answer. He also avers that a proposition had been made to him by Jones,before he broug'ht this suit, that if the widow would convey to him the land he would accept it in full of his wife’s interest in the estate, and obligate himself to support her the balance of her life; which proposition she had agreed to accept, showing- a disposition on .her part to surrender to her daughter’s husband, not merely a moiety, but the whole of the estate which had survived the wreck of the war, and to be content with a mere support, which she would probably more than earn by assistance which she would render her daughter in her family.
There is nothing in the record to show that the female plaintiff would have been any better off if no sale had been made of the estate; or that she has lost *or her mother gained anything- by the sale, which the executor in his discretion might, or might not have made; or that she would have gained, if the sale had been made to a stranger; to which, however, the executor was in no manner restricted by the will. But if he had sold to a stranger the widow was entitled to the proceeds of the sale, by virtue of its being loaned to her by the testator; and whether she would have been able to have carried it, or any part of it, safely through a war which has wrecked the hopes and the fortunes of so many, is at least problematical.
But is the executor liable for the balance which was in his hands, and which he turned over to the widow, as is shown by her receipt? That is the main question. The decree appealed from holds him liable for the whole, without even an abatement-for what the plaintiffs may have received from the widow, since their marriage.
Not even an inquiry was directed • to ascertain the amount so received.
When property is vested in a trustee, and is trust property, and consists of stocks and other personal securities, it is conceded, that the trustee in whom the legal title is vested, must retain possession for the benefit of the remainder-man; but he may put the tenant for life in possession of the dividends, interest or income, by giving him a power of attorney to collect them as they become due. But the estate of Joseph W. Mason is not vested by his will in his executor in trust for his wife and daughter. By a fair construction of the will, if his executor should not sell, he lends his whole estate real and personal in kind, to his widow; if in the exercise of the discretion with which he is invested he should sell, he lends the proceeds of the sale to his widow'; in either case after payment of his debts, for the support of herself and *the support and education of his daughter, until she attains full age or marries; then to be equally divided, and one moiety to go to his wife for life, remainder to his daughter, and the other moiety to his daughter absolutely. He does not give it to his executor to be held in trust for such purposes. It is a loan directly to his wife, without the interven*100tion of a trustee. Nor is it an authority to his executor to loan it to his wife, which might imply a trust reposed in his executor, but it is a confidence reposed by himself in his wife, by a direct loan to her. If there is a trust and confidence placed, it is in his wife, and not in his executor. If there is an implied trust it is in his wife, as the trustee, and not in the executor; and she alone was amenable to the person in remainder.
“If the title of the tenant for life is a legal and not an equitable title, he is of course entitled to the possession; but the tenant for life is in such case an implied, or quasi trustee for the remainder-man, and a court of equity can enjoin him from injuring the inheritance.” Perry on trusts | 540; Joyce v. Gunnels, 2 Rich. Eq. R. fj 259. This was the case of a devise of real estate and slaves, by the testator to his wife for life, remainder to all the children of his daughter. The court held that it now may be considex-ed as settled, that the tenant for life stands in the nature of a trustee to the remainder-man.
In Hovey v. Glover, 2 Hill Ch. R. 515, it was held that the tenant for life of slaves is bound tq-¿account, as a trustee for the remainder-man. It was also held in this case, that limitations of trusts of personalty are the creatures of equity, and it is by regarding the tenant for life as trustee of the remainder-man, that equity takes jurisdiction to compel the execution of the trust to the remainder-man.
The office of the executor in the case under judgment, *"was to collect and pay the debts and to make sale of. so much of th,e property as was necessary for the payment of debts, or the whole estate if in his discretion he deemed it to the interest of the estate to do so; and to turn over the residue of the estate, whether in kind or converted into money, to the widow to whom the testator had loaned it. This done he had completed the administration of the estate. He had discharged his executorial duty, and was functus officio. Kenney’s adm’ors v. Kenney & als., 25 Gratt. 293. The executor sold the whole estate to the widow. If she had paid cash for the px-operty he was required by the will to pay it over to her. It seems síie gave her bonds for the property which she never paid. But as she was entitled to the money, if she had paid off hex-bonds, she settled with the executor, and gave him her receipt in full for the whole balance in his hands, as money lent to her by the testator. This receipt was a full discharge to him as executor, at least as against legatees.
Judge Eomax says, “There may be a case, Eord Redesdale has observed, where executors would be Charged as against'creditors, though not as against legatees; for legatees are bound by the terms of the will, creditors are not; and, therefore, if the testator direct the executor to collect the assets, and pay the proceeds into the hands of A, which is done accofdingly, and A fails, if a creditor remain unpaid he may chax-ge the executors; but, as regards the legatees, the executors may justify themselves by the direction of the will. 2 Eomax on ex’rs, top p. 500, side p. 304; citing Doyle v. Blake, 2 Sch. & Lef. R. 229, 245. In this case the Eord Chancellor said, legatees are bound by the terms of the will; creditors ax-e not so; and therefore in many cases executors would be discharged *as against legatees, though not as against creditoi-s. Eor example, in the present case if these gentlemen (the executors) had collected the effects and had paid the amount to Martin Horan, (who afterwards became insolvent, to whom the will had directed it to be paid, for certain legatees,) still, if a cx-editor had i-emained unpaid, he might have charged them upon the insolvency of Horan; whereas in the case of a legatee, the executox-s might justify themselves by the dii-ections of the will.” We think the law as thus laid down is reasonable and just, and it is decisive of this case. As against the legatee the executor may justify the payment of the balance due the estate in his hands, to the widow by the will.
The execution of her bond to the executor could not create a liability in him which otherwise had not existed. The bond, although for the whole principal sum, and interest thereon from the 1st of July 1858, she could have dischax-ged, by the payment of only one-half the principal sum, to her daughter on her marriage. It would in equity have been a full discharge of the obligation. She would then be in possession of a life estate in the other moiety, and her daughter would be entitled to the remainder; and if any action of the court were necessary for its preservation, it‘could only be ttpon the application of the husband and wife, and not of the executor, who is functus officio. If thex-e ever was any sort of trust in the executor it is tex-minated, whether by operation of’ law, or by a surrender of the trxxstee to the cestui que trust, or a presumption of a surrender from the fact that the purposes of the trust are accomplished, and the property is vested in the cestui que trust, who may after that time maintain an action on the title. Perry on trustees g 328.
*The court is therefox-e of opinion that the appellant from anything that appears in this recox-d to the contx-ary, has faithfully executed the will of his testator, and thex-e is no liability on him to the legatees, or either of them, for or on account of the fund which he had placed in the hands of the depositoi-y to whom the testator had loaned it; that he acted under the directions of the will, and cannot be liable to either of the legatees, who are likewise bound by the will, and that the bill ought to be dismissed as to him and his sureties. Bxxt as Eouisa Prances Mason, the widow, may be liable to the plaintiffs, to what extent, it is not px-oper for this court to indicate, as it has not been passed on by the court below, the case will have to be remanded to that court, for further proceedings as against her, if desired by plaintiffs, *101and dismissed as to the executor and his sureties with costs.
The court is therefore of opinion to reverse the decree of the Circuit court with costs, and to remand the cause.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the executor of Joseph W. Mason, the appellant, having tujrned over the whole of the estate in his hands to Louisa Frances Mason, the widow, to whom it had been loaned by the testator by his will, he is not liable therefor, or for any part thereof to the legatees. It is therefore ordered and decreed that the decree of the Circuit court of Sussex be reversed and annulled, and that the bill be dismissed as to the appellant and his securities, with costs; 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 Sussex county for further proceedings to be had therein, if desired by the appellees, against Louisa F. Mason, in conformity with the opinion filed with the record.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481913/ | Moncure, P.,
delivered the opinion of the court.
This is a writ -of error and supersedeas to a judgment of the circuit court of Mathews county, rendered on the 36th day of Octoher 1873, affirming a judgment of the county court of said county, rendered on the ilth day of March 1873, in an action of unlawful detainer, in which William H. Hudgins was plaintiff, and J. W. Marchant & Go, were . defendants. The ■ action was v_/U, wcic . ucituucuua, x iJ.*- at-uuu was brought to recover possession of a lot of land in said county commonly known as “Cricket Hill;” was tried on an issue joined on the plea of not guilty, and verdict *and judgment were rendered therein for the defendants. Two bills of exceptions were taken by the plaintiff to rulings of the court against him in the progress of the trial.
In the first bill of exceptions are set out the facts of the case, which were agreed by the parties, and, so far as it is material to state them here, are as follows: The said William H. Hudgins was the owner of the said lot of land up to the time the same was sold by virtue of a decree of the circu't court for said county made on the 11th day of’ October 1870, in a cause therein pending in which Lanier Bros. & Co. were plaintiffs and said Hudgins was defendant, of which decree a copy is inserted in the bill of exceptions. Thereby it was decreed that unless the said Hudgins should within a certain period therein' mentioned, pay to the said Lanier Bros. & Co.. the amount of their judgment therein mentioned against the said Hudgins, certain commissioners appointed by the decree should proceed to sell, in the manner and on the terms prescribed by said decree, the property real and personal conveyed by the said Hudgins and his wife, for the benefit of his creditors, by deed of trust mentioned in the decree. The lot of land in controversy was a part of the real estate thus decreed to be sold. The said commissioners accordingly sold the said lot of land under the said decree, and the said J. W. Marchant & Co. became the purchasers thereof at said sale, made the cash payment, and executed and delivered their bonds for the deferred payments to the said commissioners. A report of said sale having been made to the court, the same was excepted to by the said Hudgins, on various grounds, which are set out in the bill of exceptions. Afterwards, to wit: at October term of said circuit court 1871, the cause *came on to be again heard, on uuaeu, me exceptions thereto &c and was argued by counsel. On consideration whereof, the courts, overruled the exceptions and confirmed the said report and sale And it being suggested to the court that Walter G Hudgins was in possession of the property sold by said commissioners in the. W the papers formerly read, and the report of said commissioners of the sale by them of the real estate in the report mentioned, the exceptions thereto, &c., and was i---------- ’ ~ w .... ______ jvvwue.aui/h ox Liic property sold by said commissioners in the report mentioned, it was ordered that he should, wiihin ten days from the service upon him of a copy of said decree, surrender and deliver to said J. W. Marchant & Co., the purchaser of said property, possession thereof. And it was further ordered that unless said Walter G. Hudgins should so surrender possession of said land to said purchasers, and if he should continue to hold possession of the same until the 1st day of December 1871, then the sheriff of said county was ordered to remove him from said property, and put the said purchasers in possession of the same. A copy of the said decree of October term 1871 is also inserted in the bill of exceptions. The purchasers were accordingly put in possession of the property purchased by them as aforesaid.
i
*68Afterwards the said William H. Hudgins applied to this court for an appeal from, and supersedeas to the decree last mentioned, which were accordingly allowed and awarded. A supersedeas was accordingly issued in the usual form, and the bond with security thereby required was accordingly given.- But the said purchasers being then in possession of the said premises, refused to deliver the same to the said William H. Hudgins.
Upon the foregoing, which were all the facts and '^evidence in the cause, the plaintiff moved the court to instruct the jury as follows:
“That if they believed from the evidence in the cause, that the complainant, William H- Hudgins, was the owner of the tenement ^nd. premises in the complaint in this cause mentioned, before the decree of sale and sale made in the chancery cause of Lanier, Bros. & Co. against Wm. H. Hudgins now pending in the circuit court for the county of Mathews; that at the said sale the defendants became the purchasers thereof; that said sale was confirmed by the said circuit court, and the defendants put in the possession of said premises by virtue of the decree of said court, which said decree has been superseded by a decree of the supreme court of appeals of Virgina; they are bound to find for the complainant.”
Which instruction the court refused to give; but gave an instruction prayed for by the defendants as follows:
“The jury are instructed that if they believe from the evidence in the cause that the complainant, Wm. H. Hudgins, was the owner of the tenement and premises in the complaint in this cause mentioned before the decree of sale, and sale made in the chancery cause of Lanier, Bros. & Co. against Wm. H. Hudgins, now pending in the circuit court for the county of Mathews; that at the said sale the defendants became the purchasers thereof; that said sale was confirmed by the said circuit court, and the defendants put in possession of said premises by virtue of the decree of said court before the supersedeas hereafter mentioned was awarded; and that the said decree has been superseded by a decree of the supreme court of appeals of Virginia; they are bound to find for the defendants in possession.”
*To which rulings of the court, refusing to give the instruction prayed for by the plaintiff, and giving that prayed for by the defendants, the first of the said two bills of exceptions was taken.
The other bill of exceptions was taken to the opinion of the court overruling the motion of the plaintiff to set aside the verdict and award a new trial, on the ground of misdirection by the court to the jury, and because the .said verdict was against the law and the evidence in the cause.
The county court having rendered judgment for the defendants in the said action, the same was affirmed by the circuit court; whereupon the plaintiff applied to this court for a writ of error and supersedeas to the judgment of the circuit court; which were accordingly awarded.
The only assignment of error in this case is contained in the petition for a writ of error and supersedeas in the case, and is in these words: „
“Your petitioner is advised that the said J. W. Marchant & Co., by bidding off the said land at the sale thereof by the commissioners aforesaid, acquired no right tp the possession of said land (the decree under which it was sold not ordering possession thereof to be given), and could only claim that their offer should be reported to the court, subject to its approval or disapproval (and here it will be noticed that said decree did not direct the said commissioners to deliver possession to the highest bidder). They are no parties to the case of Lanier, Bros. & Co. v. your petitioner, and their right to the benefit of their, bid for said land depends on the decision of that case by. this honorable court. Your petitioner is also advised that the said Marchant & Co. having no claim to the possession of said land, except by virtue of the decree aforesaid, made in the^ *case of Lanier, Bros. & Co. v. Hudgins; when that decree was superseded by the order of this court, their title to the possession failed, and your petitioner became entitled to the possession.”
When property is sold under a decree of a court of chancery, and the report of the sale is confirmed by the court, the purchaser is entitled .to possession of the property from the time of such confirmation, unless there-be something in the decree to the contrary, even though there be in the decree no express direction for the delivery of such possession to the purchaser. But in this case there was an express direction in the decree that the purchaser should be put in possession of the property, which was accordingly done before any appeal from the said decree was allowed by this court. A purchaser under a decree of a court of chancery, though not an original party to the cause in which the decree is rendered, becomes a party thereto by his purchase, so far as his rights as a purchaser are concerned. A supersedeas to a decree perfected before the decree is executed, operates as a stay of such execution until the cause is determined in the appellate court. But when the decree is executed before the supersedeas thereto is perfected, the supersedeas does not operate as a writ of restitution to restore them to the condition they were in before the execution of the decree.
In this case possession of the property in controversy was delivered to the purchasers under the decree before a supersedeas to the decree was awarded, and of course that supersedeas cannot of itself operate as a writ of restitution to deprive the purchasers of possession and restore it to the plaintiff in the suit.
A decree, though appealed from, is presumed to be right until it is reversed, and purchasers under it, who ‘have been put in possession accordingly, are entitled to retain such possession until deprived of the right thereto by such reversal.
It can hardly be necessary to cite author*69ities in support of principles before stated, which seem to be well settled and to admit of no question. References are made in the brief of the counsel of the appellees which are very pertinent, and among them are the following to our own reports: White v. Jones, 1 Wash. 117; Wilson v. Stevenson’s adm’r, 2 Call 213; Rucker v. Harrison, 6 Munf. 181; Newcomb v. Drummond, 4. Leigh 57; Spencer v. Pilcher, 10 Id. 490; and Jones v. Tatum, 19 Gratt. 720. Bacon’s abridgment, title supersedeas is also referred to in regard to the common law doctrine on the subject; and some notice is taken of a modification of the doctrine made by our statute, but it does not affect this case.
It results from what has been said that there is no error in the judgment of the circuit court, and that the same must be affirmed.
But in addition to what has been said it may be proper to state, that pending (his case in this court the appeal from the decree under which the said J. W. Marchant & Co. became purchasers of the land in controversy as aforesaid, has been decided by this court, by which decision the said decree was affirmed. Hudgins v. Lanier Pro. & Co., 23 Gratt. 494. That decision would have been conclusive of this case in favor of the defendants, if it had not been otherwise in their favor. But it is needless to say any thing further on that subject.
Judgment affirmed.
Same- — Conditional Clmracier — Confirmation. — In Childs v. Hurd, 25 W. Va. 533, the principal case is cited approvingly for the proposition that a sale made by a commissioner under a decree in a court of equity is not an absolute sale and docs not become such until it has been confirmed by the court. Citing also, Hartly v. Roff, 12 W. Va. 401; Cooke v. Gilfin, 1 Rob. 39; Crews v. Pendleton, 1 Leigh 297; Heywood v. Carrington, 4 Leigh 373; Taylor v. Cooper, 10 Leigh 317. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481915/ | Christian, J.
The plaintiff in error (the Manhattan Fire Insurance Company) seeks to avoid the obligation of its policy issued to the defendant in error upon two grounds:
First, that the building insured stood upon leased ground, but was not so represented to the company, and not so expressed in the policy.
Second, that at the time of the insurance, the house was encumbered by a deed of trust, which fact was not represented to the company, and not expressed in the policy.
The condition of the policy upon which this defence is based is as follows:
“iv. If the interest of the assured in the property be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, or if the buildings insured stand on leased ground, it must be so represented to the company, and *so expressed in the written part of this policy, otherwise the policy shall be void.”
Evidence was offered to prove that the general agent of the company, who issued this policy to defendants in error, knew that the building insured stood on leased ground at the time he issued the policy. There was a motion to exclude this evidence from the jury, which was overruled by the court, and was the subject of a bill of exceptions, which set forth the evidence offered and admitted by the court as follows:
Be it remembered, that after the jury were sworn to try the issue joined in this cause, the plaintiffs to maintain the said issue on their part, after having offered in evidence to the jury (1) the policy, (2) the authenticated copy of the deed'of lease, (3) the admissions of the parties, and (4) the proof of loss, as these several matters are set forth in the defendant’s bill of exceptions No. 1, introduced (5) R. F. Vaughan as a witness in their behalf, who testified as follows:.
“Previous to the first day of January, A. D. 1873, the firm of which I was a member, had been agents for the Maryland Fire Insurance Company, and that company had insured the same building described in the policy of the Manhattan Fire Insurance Company of New York City, mentioned in the plaintiff’s declaration, .and it was then ■owned by the plaintiffs, and described in the policy of the Maryland Fire Insurance Company as it is described in the said policy of the said Manhattan Fire Insurance Company. The agency for the said Maryland Fire Insurance Company, before the said first day 'of January, A. D. 1873, had been transferred from our firm to A. M. Vaughan, and the plaintiffs applied to our firm for a renewal of their policy in the Maryland Fire Insurance Company,' but our agency for that company having ceased, and *we having no^ company in which we could place it, I applied to A. M. Vaughan to take the risk, giving him in writing a description of the said building as it was described in the policy of the Maryland Fire Insurance Company. I did not then know that the said building, stood on leased land. I have ascertained that since. Our firm was then composed of J. C. Deming, R. C. M. Wingfield and myself. A. M. Vaughan then issued the policy sued on, and delivered it to me, and then I delivered it to the plaintiffs, and received from them the premium, and gave A. M. Vaughan credit for it on our books. We retained one-half of the commissions on the premium, and paid the rest of the premium to A. M. Vaughan.”
And then the plaintiffs introduced (6) A. M. Vaughan as a witness in their behalf, who testified as follows:
“I was, and still am, the agent of the defendant, the Manhattan Fire Insurance Company. R. F. Vaughan, of the firm of Deming, Wingfield _& Co., applied to me in behalf of the plaintiffs, for an insurance on the building mentioned in the policy sued on, furnishing me with a written description of the property as it is stated in that policy. In behalf of the defendant I accepted the risk, and issued the policy. At that time I knew that the building stood on leased ground, and if the .application had been made to me by the plaintiffs I might have so described it. But supposing that the description in writing furnished me by R. F. Vaughan was the form by which the other companies — those represented by Deming, Wingfield & Co. had written — and the form adopted in their policies, I followed the written description furnished me in making out the policy sued on. I did this, although I knew at the time that the building stood on leased ground; but I do not recollect that this occurred to me at that time.”
*And then the plaintiffs introduced (7) J. C. Deming as a witness in their behalf, who testified as follows:
“I have for several years — ten years— been engaged in insurance agencies, and have done an extensive business in that line in this city. I am not now so engaged. Wingfield and *131Vaughan were my partners for several years. Both of them were my partners on the first day of January, A. D. 1873. I can’t say I know any thing about the getting out of the particular policy sued on by the plaintiffs. I can only speak in general terms of what I have done for the plaintiffs. I would state that those gentlemen have for several years confided their insurance business to our firm with special reference to myself. I know the particular property on which the building in suit stood. I have known for some time that it stood on leased ground. T would state that a large number of the companies by common consent have waived a written application for a policy on ordinary risks. 1 can’t say that at the time the plaintiffs stated to me that the building stood on leasehold ground, but I have known that fact for a long while. The reason that I cannot state whether the plaintiffs told me that the building stood on leased ground is, that I rarely made that a question in my practice. I represented two companies, vhich had given policies on that building, and was a special agent, and adjusted for one of them. They have both paid their pro rata shares of the loss occasioned by its destruction by fire, with a full knowledge of the fact that it stood on leased ground. Each of those policies contained the same general provision as in article iv of the terms and provisions of the policy sued on, and all the modern policies are alike in this respect. I state the fact, that the companies T represented had full knowledge of the fact that the building stood on leased ^ground when they paid their pro rata shares of the loss aforesaid, from the fact that their representatives, who supervised the ascertainment of that loss, had full access to, and availed themselves of the records of the clerk’s office of the corporation court of this city in regard to the title.”
The first question we have to determine is whether the court below erred, in admitting this testimony. The rule of evidence invoked to exclude it is, that which does not permit the written contract to be contradicted and varied by parol testimony. The great value of this rule of evidence cannot be easily overestimated, and merits the eulogies it has received.
In a proper case its application always promotes the ends of justice, by protecting parties against fraud and false swearing, a.gainst carelessness and inaccuracy, by furlrshing evidence of what was intended by the parties, which can always be produced without fear of change or liability to misconstruction. But experience has shown that it is not a rule of universal application. And if there did not exist some authority to correct the universality of its application, then a rule of evidence adopted by the courts as a protection against fraud and false -swearing, would, as was said in regard to the analagous rule known as the statute of frauds, become the instrument of the very fraud it was intended to prevent.
In the case before us the general agent of the plaintiff in error filled up the policy and took the description of the property from a policy on the same house, which had been issued by the Maryland Fire Insurance company. This agent says he knew at the time that the building stood upon leased premises. This knowledge of the general agent must be imputed to the principal. Regarding the fourth clause of the policy *as a warranty, then there was a breach of warranty eo instanti of the making of the contract. This the company knew when it issued the policy. It knew when it accepted the premium the policy was void: that when it took the premium they took no risk, and that the insured had paid his money for a policy of insurance which the company knew was void at the moment when it was issued. To allow this would be to permit the company to receive a premium when they incurred no risk, and would' encourage and promote the grossest fraud.
It is precisely in such cases as this, that the courts of law in m-odern times have introduced the doctrine of equitable estoppels, or as 'it is sometimes called estoppels en pais.
The principle is that where one party has by his representation or his conduct, induced the other party to a transaction to give him an advantage which it would be against equity and good conscience to assert, he would n-ot in a court of justice be permitted to avail himself of that advantage.
See Insurance Company v. Wilkinson, 13 Wall U. S. R. 222; Plumb v. Cattaraugus Insurance Company, 18 New York R. 392; Rowley v. Umpire Ins. Co., 36 New York R. 550; 31 Conn. R. 526; 42 Missouri R. 148; Bidwell v. North Western Ins. Co., 24 New York R. 302.
In the last named case the court says : “Indeed it is not easy to perceive why an insurance company by reason oí the formal words or clauses (of a general and comprehensive nature), inserted in a policy, intended to meet broad classes of contingencies, should ever be allowed to avoid liabilities on the ground that facts, of which the company had full' knowledge, at the time of issuing the policy were then not in accordance *with the formal words of the contract, or some of its multifarious conditions. If such facts are to be held a breach of such a clause, they are a breach eo irstanti of the making of the contract, and are so known to be by the company as we'l as the insured. And to allow the company to take the premium without taking the risk, would be to encourage a fraud. 11 would, as a legal principle, be equivalent, to holding that the warranty of the soundness of a horse is a warranty that he has four legs, when one has been cut off.” In the case before us the knowledge of the agent must be taken as the knowledge -of the company, and to avoid the policy upon the ground the building insured was upon leased ground, would be to permit the company to say, “it is true, we knew that the building was upon leased ground; we knew that our agent, and not the insured, had filled up the description of the property, and had omitted to state the fact; but we hold it to be *132void because one of the conditions of the policy makes it void, if the fact that the property stands on leased ground is not so represented or. expressed in the policy; and while we have received your money, we issued to you a policy which we knew to be void, eo instanti of its delivery. We took the premium, but took no risk.” Where good faith and fair dealing are of the very essence of a' contract of insurance, insurance companies will be estopped from asserting a defence which not only tends to a breach of good faith, but to actual and positive fraud.
I am, therefore, of opinion that the evidence admitted by the court below was properly admitted because it proved such a state of facts as constituted an estoppel, and that the court did not err in overruling the motion to exclude the same. In addition to the authorities above cited, see Judge Burks’ opinion in *the case of Georgia Home Insurance Co. v. Kinnier’s adm’x, and cases cited by him, supra, 88.
The second ground upon which the company seek to relieve itself against liability for loss is, that at the time the insurance was affected, there was an incumbrance in the form of a deed of trust. Now it is not pretended that there was any misrepresentation or fraudulent concealment, as to the fact of the existence of such incumbrance. On the contrary it does not appear that any question was asked the assured on that subject: but as has already been seen, the agent of the company filled up the description of the property, copying it from a policy in another company. But it is insisted that this incumbrance, existing at the time, of itself avoided the policy, under that condition which declared: “If the interest of the assured in the property be other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, * * * it must be so represented to the company, and so expressed in the written part of the policy. Otherwise the policy shall be void.”
It was held by this court, in West Rock. Mutual Fire Ins. Co. v. Sheets, 26 Gratt. 871, that unless there be a warranty, or a representation that amounts to a warranty, a policy cannot be avoided for incumbrances unless upon the applicants false and fraudulent answers to interrogatories. Of course if there be a warranty, or a representation amounting to a warranty, that there are no incumbrances on the property, whether such answer be given in answer to a question or rot; if it be untrue, the policy would be void, even though the insured might not be guilty of actual fraud.
The question then in this case turns upon the construction to be given to the condition in the policy above quoted. Can that be construed to be a warranty *on the part of the assured that there was no incumbrance on the property insured? This condition does not refer to the legal title, but to the interest of the assured in the property; that he warranted to be no “other than the entire unconditional and sole ownership of the property.” This was no warranty against liens and incumbrances. His interest was the sole ownership. The fact that he had mortgaged the property did not make the mortgagee a joint owner with him. The fact that he may have incumbered it with a deed oí trust does not make the cestui que trust a joint owner. The fact that there may have been liens for taxes, or liens by judgment, did not effect his ownership. He is still the sole owner, though he may have incumbered it, or liens may exist against it, and the existence of such is no breach of a condition declaring sole ownership. This is the doctrine of the courts, settled by repeated decisions. Strong v. Manufacturers Ins. Co., 10 Pick. R. 40; Ætna Fire Ins. Co. v. Tyler. 16 Wend. R. 385; 12 Wend. R. 507; Smith v. Columbia Ins. Co., 17 Penn. State R. 253; Hough v. City Fire Ins. Co., 29 Cow. R. 10. In the last námed case, it was a condition of the policy, that “if the interest in the property insured is not absolute, it must be so represented to the company and expressed in the policy in writing, otherwise the insurance shall be void. The applicant represented the property as his house, and it was so represented in the policy. In fact he had only agreed to purchase, the property, but under his agreement had paid part of the purchase money, had taken possession, and made valuable improvements. It was held that the statement made by the assured, that the property was his was true, and his interest was an absolute one. The court said, “the subject of insurance was an interest, not a title. It is *an interest, not a title, of which the conditions of insurance speak. The terms interest and title are not synonymous.
A mortgagor in possession, and a purchaser holding under a deed defectively executed, have both of them absolute as well as insurable interests in the property, though neither of them has the legal title. The condition in question speaks only of the character of the interest to be insured, not of its quality.”
In Aurys v. Hartford Fire Ins. Co., 17 Iowa 176, the court holds the following language, speaking upon this point, and which very aptly applies to the case before us: The object of the insurance company by this clause (i. e., a claim providing against change of interest, &c.) is, that the interest shall not change, so that the assured shall have a greater temptation or motive to burn the property, or less interest or watchfulness in guarding and preserving it from destruction by fire. Any change in, or transfer of the assured in the property, of a nature calculated to have this effect, is in violation of the policy. But if the real ownership remains the same, if there is no change in the fact of title, but only in the evidence of it, and if the latter change is only nominal, and not of a nature calculated to increase the motive to burn, or diminish the motive to guard the property from loss by fire, the policy is not violated.” See also Shepard v. Union Fire Ins. Co., 38 New H. 232.
I am of opinion, both upon principle and authority, that the condition referred to is not a warranty against incumbrance, and that the fact that the assured had incum*133bered the property was no breach of that condition.
As was said by the president in W. R. F. C. v. Sheets (supra) : “There is noth ing in this policy (when *fairly construed) which required a disclosure by the insured of the liens upon the insured property. There was no question proposed by the insurer to the insured in regard l.) the existence of such liens. The insurers might have examined the records for such liens, and made inquiries about them of the insured, or others, but they failed to do so. Can they now avoid the obligation of the policy on the ground that the insured, without being inquired of, and without any fraud, omitted to give notice of the lien at the time of obtaining the policy? I think they cannot.” Page 870.
I am therefore of opinion that in the absence of all fraud, in the absence of all proof of pretence of any misrepresentation or fraudulent concealment, on the part of the assured, the defense set up by the insurance company, is purely technical, and ought not to shield them against their just liability to the assured for the loss he has sustained.
I am for affirming the judgment of the corporation court of the city of Norfolk.
Moncurb, P., and Stapi,es and Burks. Js., concurred in the opinion of Christian, J.
JUDGMENT AFFIRMED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482030/ | Christian, J.
This is an appeal from a decree of the chancery court of the city of Richmond. The facts shown by the record, material to be noticed, are as follows: Margaret Stern an intermarried with Christian J. Stockmar in the year 1857. She was' then the owner in fee simple of certain real estate, derived under her former husband’s will, she being the widow of Charles Sternan at the time of her intermarriage with Stockmar. *237There was a marriage contract between the parties, executed before the marriage, and bearing date February 24th, 1857.
On the 1st day of August, 1859, a bill was tiled in the county court of Henrico by the husband, Christian J. Stockmar, asking for a construction of the deed of marriage settlement. That bill contains the following allegation, after referring to said deed of marriage settlement :
“ At the time said deed was prepared it was the intention of your orator and of his wife, said Anna Margaret, that the land and other property of said Anna should be secured to her, and the land and other property of your orator should be secured to him, but by mistake of the draftsman the deed was drawn as appears by the copy above.”
The bill further declares as follows:
“Your orator and his said wife, and said Henry Stock-mar, and William Hebei and Emilie his wife, each desire that all of the property which said Anna Margaget held at the time of her marriage, as well as any she may hereafter acquire, shall be settled upon the said Anna Margaret as her absolute property, free from any claim on the part of her husband, and with power to said Anna Margaret to dispose of the same as she may desire, either by a writing executed as a deed or will; and that all of the property belonging to your orator at the date of his marriage, and any acquired since, or which may be hereafter acquired, shall be secured to your orator, free from all claim on the part of his said wife and of any other party to this bill; it being the intention of the parties to said marriage contract, at the time it was executed, that each of the parties thereto should have no interest in the property of the other, whether then owned or thereafter acquired.”
And then the prayer of the bill is that the court shall *238enter a decree correcting the mistake in said deed, and securing the property belonging to said Anna Margaret the date of said deed, or since acquired, or which may be hereafter acquired, to said' Anna Margaret, as if she were a feme sole, and with power to dispose of the same hy a writing in the nature of a deed or will, and in like manner to secure to your orator all property to him at the date of said deed, or which has been or may be since acquired, as completely and fully as if he ha'd never been married, and to grant him such other and further relief as may be consistent with equity and the nature of the ■case may require.
To this ‘bill all the defendants, the parties interested, -to-wit: the wife of the plaintiff, Anna Margaret Stock-mar, Henry Stockmar, son of plaintiff’, and Eliza his wife, Henry Hebei, son of Mrs. Stockmar, and Emilie his wife, answered the bill by joint and separate answer, in which they say that the statements contained in said bill are true; that they desire the property of the plainitaff' and of Anna Margaret Stockmar settled on them respectively, and ask that the prayer thereof be granted.
Appended to this answer was the following certificate of a notary public:
“ City of Richmond, to-ioit:
“I, Henry G. Cannon, a notary public in and for the city aforesaid, in the state of Virginia, do ' certify that Anna Margaret Stockmar, the wife of Christian Jacob Stockmar, and Emilie Hebei, the wife of Wilhelm Hebei, and Eliza Stockmar, the wife of Henry Stockmar, ■ each personally appeared before me, in my said city, and made oath that the statements contained in the answer ' hereto annexed are true to the best of their knowledge .and belief, and the said Anna Margaret, Emilie and Eliza being examined by me privily and apart from their ¡said husbands, and having said answers fully explained *239to them, acknowledged that they had willingly signed .and executed the same, and did not wish to retract it, and desired that the prayer of the bill referred to herein should be granted.
“Given '.under my hand this 27th day of July, 1859.
“Henry G. Cannon,
“Notary Public.”
On the same day on which this bill and answer was filed, to-wit: on the 1st day of August, 1859, the court ■entered the following decree:
“This cause came on to be heard, by consent, on the bill and exhibits and answers of A. M. Stoekmar, Wilhelm A. Hebei, Emilie Hebei, Henry Stoekmar and Eliza Stoekmar, filed by like consent, with general replication to said answers, and was argued by counsel. On consideration whereof, the court (being of opinion that there is a mistake in the deed of marriage settlement between the plaintiff, Christian Jacob Stoekmar, and the defendant, Anna Margaret Stoekmar, and that the intent and design of said deed was to secure to each of the parties thereto whatever estate either held at the date thereof, and all estate which either might thereafter acquire), doth adjudge, order and decree that all of the property, real, personal and mixed, belonging to said Anna Margaret Stoekmar at the date of said deed of marriage settlement, and all she has since acquired, or may hereafter acquire or become entitled to, shall be and is hereby secured to her as fully and completely as if she were a feme sole, free from the debts of her said husband, and in no manner liable for his debts or contracts; and all of the property, real, personal and mixed, belonging to said Christian Jacob Stoekmar at the date of said deed of marriage settlement, and all he has since acquired, or may hereafter acquire, shall be the property of said *240Christian Jacob Stockmar as fully and completely as if he had never intermarried with said Anna Margaret, ánd said Anna Margaret shall be forever barred from all right of dower or other claim upon the estate of said Christian Jacob Stockmar by reason of the said marriage.”
The record further shows that on the 28th February, 1868, Mrs. Margaret Stockmar (who had separated from hef husband, Christian Stockmar, and assumed the name of Sternan, which was her name before she intermarried with Stockmar), conveyed by deed to Burging a piece or parcel of land lying in the county of Henrico, for the sum of $4,995. This property was afterwards sold by Burging to McDowell, for which, under their agreement, he paid one-third of purchase money in cash, and for the remaining two thirds executed his two negotiable notes, payable at six and twelve months after date respectively. And thereupon Burging and wife executed and delivered to McDowell a deed with general warranty. Shortly after this transaction, McDowell, alleging that he had discovered a defect in the title to said property, filed his bill in equity, in the chancery court of the city of Bichmond, praying for an injunction restraining Burging from using or negotiating said notes, and asking for a rescisión of the sale and the repayment of the purchase money to him which he had paid in cash.
An injunction was awarded, and upon the hearing, a decree was entered by the said chancery court to the effect that unless the defendant, Burging, should obtain, within four months, a deed from Wilhelm Hebei and Emilie, his wife, conveying their interest^ in said property to McDowell, that said injunction should be perpetuated, and the notes for the purchase money be surrendered, and so much of the purchase money as had been paid should be refunded.
*241From this decree an appeal was allowed by one of ,. . , „ ., . . ™ . the judges ot this court.
The only question we have to determine is, Margaret Sternan had the right to make the conveyance in question to Burging, as a feme sole.
It is manifest, by an inspection of the ante-nuptial marriage settlement, that it was the intention of the parties that the property held by each should be held free from the marital rights of the other. At the date of the marriage settlement Mrs. Sternan was the owner in fee of the real estate (now the subject of controversy), which she derived as a devisee under her former husband’s will. It is plain that this real estate was intended to be settled on her, to be held as her separate estate, freed from the fetters and disabilty of coverture. But the instrument intended to secure this right to her was so inartificially drawn, that doubts might arise as to the true character of the estate with which she was vested. And in order to remove all doubts, a bill was filed by her husband, as heretofore set out, asking for a construction of- the marriage settlement, in accordance with the real intention and purposes of the parties. In • this bill it was alleged, as seen from the extract above referred to, that Christian Stockmar “ and Margaret, his wife, and Ilenry Stockmar and Wilhelm Iiebel and Emilie, his wife, each desire that all of the property which said Anna Margaret Sternan held at the time of her marriage, as well as any she may hereafter acquire, shall be settled upon the said Anna Margaret as her absolute property, free from any claim on the part of her husband, and with power to said Anna Margaret to dispose of the same' as she may desire, either by writing executed as a deed or will.” ' To this bill, as has been seen, the parties, who alone were interested in the matter, and who were all of full age, were made parties. They *242answered the bill, and admitted that “the statements contained in the bill are trae, and that they desire the of the plaintiff and Anna Margaret Stockmar settled on them respectively, and ask that the prayer of this bill be granted.” The defendants, who were mar-pied women, were examined privily and apart from their husbands, and having the bill and answer fully explained to them, “acknowledged that they had willingly signed the answer, and desired that the prayer of the bill should be granted.” Upon this bill and answer, and upon an inspection of the instrument containing the marriage settlement filed with the bill, the court decreed “that all the property, real, personal and mixed, belonging to Anna Margaret Stockmar at the date of said deed of marriage settlement, and all she has since acquired, or may hereafter acquire or become entitled to, shall be, and is hereby secured to her as fully and completely as if she were a feme sole.” -
■ I am of opinion, that under this decree, founded upon the bill and answer in this case, that Mrs. Stockmar was invested with a separate estate of which she had the power of disposal, as clearly and absolutely as she had on the day before her marriage. It is true the decree does not in terms confer upon her the jus disponendi. 13ut that is its legal effect. The bill, answer and decree all bear date the same day. "We must read the decree as if the bill and answer were embodied in it. If there be any doubt as to the scope and effect of the decree, we may interpret its meaning by reference to the bill and answer. See Walker’s ex’or v. Page, 21 Gratt. 636.
The prayer of the bill is (and the answer admitting its allegations to be true asks that the prayer of the bill be granted), that all the property, real and personal, held by Mrs. Stockmar at the time of her marriage, or which she may afterwards acquire, may be settled upon her as her absolute property, free from any claim on the part of *243her husband, “ with power to dispose of the same as she may desire, either by a writing, executed by deed or will.” blow, when in reference to such a bill the court decrees that her property to which she, at the time of her marriage, was entitled in fee, “ shall be, and is hereby secured to her as fully and completely as if she were a feme sole,” I think it clear that this decree not only confers upon her a separate estate, but also the power of alienation; and that a deed conveying her separate real estate, executed by her (her husband not uniting in it), conferred upon the grantee a perfect title. As confirmatory of this construction of the decree, may be mentioned the fact that Stoekmar had separated from his wife and gone to a foreign country, making it impossible for Mrs. Stoekmar to dispose of her separate estate, if it can only be done by Stoekmar uniting in a deed with her.
It seems to be well established by the modern authorities, and especially by the English Chancery, as a general proposition, that a married woman having real property settled to her separate use, in fee, and not restrained from alienation, has, as incident to her separate estate, and without any express power, a complete right of alienation by instrument inter vivos, or by will. And this doctrine of the English Chancery is founded on this principle : When the court of equity established the doctrine ■of the separate use of a married woman, and applied it to both real and personal estates, it became necessary to give the married woman, with respect to such separate property, an independent personal status, and to make her in equity a feme sole. It is of the essence of the separate use that the'married woman shall be independent of and free from the control and interference of her husband. With respect to separate property, the feme covert is released and freed from the fetters and disabilities of coverture and invested with the rights and powers of *244a person who is sui juris, and to every estate and interest held by a person who is sui juris the common law a .right of alienation. See Leading Cases in Equity, vol. 1, pt. 2d, p. 686-7, and cases there cited.
^is court has never gone to the extent of the doctrine above declared by the English cases, and the decisions of many of the American courts. But, on the contrary, the power of alienation with respect to separate real estate is limited to the mode prescribed by the instrument creating the estate; and if none be prescribed in the instrument, then in the mode prescribed by law for the alienation of real estate by married women.
In the last case on this subject decided by this court (McChesney & al. v. Brown's heirs, 25 Gratt. 393), Judge Moncure, delivering -the opinion of the court, said: -“The following may be laid down as sound and well-settled principles of law: 1st. A married woman is regarded by a court of equity as the owner of her separate estate, and as a general rule the jus disponendi is 'an incident to such estate—that is, it is an incident thereto, unless and except so far as it is denied or restrained by the instrument creating the estate. 2d. But it is subject to such limitations and restrictions as may be contained in such instrument, which many give it sub modo only, or withhold it altogether. 3d. In regard to separate personal estate and the rents and profits of separate real estate, this power of disposition, if it be unrestrained, may be exercised in the same way by deed, will or otherwise, as if the owner were a feme sole; hut in regard to the corpus of separate real estate, it can be disposed of only in such mode, if any, as may be prescribed by the instrument creating the estate, or unless prohibited by such instrument in the mode prescribed by law for the alienation of real estate of married women.” See also Lee et al. v. Bank U S., 9 Leigh, 200.
These ■ principles, so clearly declared in the case of *245Mc Chesney v. Brown, must govern the case before us. I am of opinion that the decree of the county court of Henrico (interpreted, as before shown, by reference the bill and answer, which may be read as if embodied in that decree), invests, if not expressly, by the. clearest and most necessary implication, Mrs. Stockmar with an absolute and separate estate in the real estate in controversy and with the full power of alienation, as if she were a feme sole; and that the deed which she executed and •delivered to Burging conveyed to him a perfect title. Especially is the title perfect in Burging, as Stockmar, who was the only person in the world who had any intesest in the question whether the property in controversy was the separate estate of his wife, not only filed the bill praying that the property might he settled on his wife, with full power of disposal in her, but also executed and delivered his deed releasing all interest which he might have in said property.
Upon the whole case, I am of opinion that the decree of the chancery court is erroneous, and that instead of perpetuating the injunction bn the conditions prescribed in said decree, the said court ought to have dismissed the plaintiff’s bill.
I am therefore, for the reasons stated, of opinion that the decree of the chancery court be reversed.
The other judges concurred in the opinion of Christian, J.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the said decree of the said chancery court is erroneous. It is therefore decreed and ordered, that the same be reversed and annulled, and that the appellee pay to the appellant his costs by him *246expended in the said chancery court, and also his costs expended in the prosecution of his appeal and writ of supersedeas here. And this court now proceeding to render such decree as the court below 'ought- to have rendered, it is further decreed and ordered, that the injunction awarded by the judge of the said chancery court be dissolved and the appellee’s bill be dismissed.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482031/ | Anderson, J.,
delivered the opinion of the court.
This cause is brought here by the plaintiff in error, who was also plaintiff below, by writ of error to the judgment of the circuit court of Richmond affirming the judgment of the county court of Pittsylvania. The cause was first tried in the circuit court of Pittsylvania upon an issue of non-assumpsit, which was the only issue. The jury rendered a verdict for $1,092.94, with interest, for which there was judgment. Upon motion of the'defendants, •“ the court ordered that the said verdict and judgment should be set aside and a new trial granted the defendants, upon condition that they would pay costs of this trial, and agree that upon any future trial of this cause, it should be tried solely upon the issue already made up, without any additional plea; and thereupon the defendants agreed to said conditions, and the said verdict and judgment were accordingly set aside and a new trial granted.” At a subsequent day the cause was removed to the county court of Pittsylvania county.
The court is of opinion that the judge of the circuit court had the power, in the exercise of a sound discretion, to restrict the new trial to a particular issue, and consequently to the issue which had been made in the first trial, and to grant the new trial upon the conditions recited. Other terms than the payment of costs may be *250imposed on the party applying for a new'trial. The new trial may be limited to a single point. Hilliard on New 2d edition, p. 68, citing Lainey v. Bradford, 4 Rich. R. 1. The practice of granting a new trial after j udgment as to part, and letting the judgment stand for the residue of the demand sued for, although sometimes questioned, is held to have been too long sanctioned now to be disturbed. Ibid., citing Edwards v. Lewis, 18 Alab. R. 494. A new trial may be ordered upon a particular-question without reopening the whole ease. Ibid., p. 69, citing Thwaites v. Sainsbury, 7 Bing. R. 437, where the new trial was ordered, but upon conditions of payment of costs, bringing into court the sum claimed, and restricting the second trial to a single point.
In Graham & Waterman on New Trials, Vol. I, p. 604, the author says: “ The terms imposed on setting aside verdicts, in addition to costs, may be divided into ordinary and extraordinary.” “The extraordinary terms arise out of the merits of the case, the relative situation of rhe parties, the probable consequences of delay, the advantage or disadvantage which may result to either party from the state of the pleadings, the prejudice which may result to the prevailing party from opening the whole case; ” these, and other considerations which he mentions,, he says, “ all press upon the mind of the court, and call for salutary conditions to accompany the relief granted.” And he adds: “To accomplish at the same time the claims of justice by sending the case to another jury, and protect the rights of the party in possession of the verdict, the courts will direct the requisite stipulations tO' be inserted in the rule.” After citing many cases in which conditions had been imposed, he says: “It may be safely asserted, that no case can occur presenting circumstances timely addressed to the discretion of the court, in which the rights of the parties may.not be fully protected by the imposition of conditions meeting the exigency.”
*251In Thwaites v. Sainsbury, 20 Eng. Com. L. R. p. 198, 7 Bingham, supra, the court observing that in causes where the defence was set out in pleading, the would on a second trial be necessarily confined to the issues which were on the record at the first trial, and that it was expedient the same course should be pursued where a particular line of defence had been relied on under the general issue, imposed the following conditions on the defendant: payment of costs, bringing into court the money sought to be recovered, and limiting the enquiry on the new trial to a single point. If the court could limit the enquiry to a single point, which was within the line of defence at the former trial, it could surely confine the party to the issue which was made up at the first’ trial. It is not necessary for the court to go .to the extent of the cases cited to reach the conclusion to which we have been brought in this case. And there is nothing in our statute law which takes away from the courts or impairs their inherent and essential power to impose other preceden^ conditions than the payment of costs upon the party applying for a new trial.
But it was contended by the learned counsel for defendants, that the circuit court of Pittsylvania did not properly exercise a sound discretion in thus restricting the defendants to the issue made at the first trial. How can it be so held by the appellate tribunal ? The facts which show the grounds- upon which the circuit court imposed that condition, are not set out, and do not appear in the record. It was competent for the defendants to have objected to it and refused to accept the new trial upon that condition, and to have taken exceptions to the ruling of the court requiring it, and had the.facts certified, which would have enabled the appellate court to review the grounds upon which the court of trial, in the exercise of its discretion, deemed it proper to grant the new trial only with such restriction. But the defendants *252did not deem it judicious for them to pursue that course, but, on the contrary, they agreed to accept the condition, which agreement was entered of record. They are after-wards estopped to object to it; and if they were not, the facts upon which the ruling of the court was founded are not set out in the record, so as to enable this court to determine that the ruling of the circuit court was erroneous. And upon the principle that what has been done by a court of competent jurisdiction, must be presumed to have been rightly done until the contrary appears, we cannot say that there was error in the ruling of the circuit court now objected to.
The court is also of opinion that it Was not competent for the county court, to which the cause was removed, to revise and set aside the order of the circuit court restricting the new trial as aforesaid, or to change the terms upon which the new trial was granted to the defendants by the circuit court. The circuit court only, before whom the first trial was had, was competent to determine whether a new trial should be granted, and to decide upon what terms it should be granted; subject, of course, to review by the appellate court, upon an exception to its decision, with the facts spread upon the record. If the same court before whom the trial was had and the evidence was given, could, at a subsequent term, revise its order and remove the restriction, it could not be done by another court, even of equal jurisdiction, who had not heard the evidence at the first trial and was not cognizant of the facts and considerations upon which the court before whom the first trial was had deemed it proper to impose the condition upon which a new trial would be granted. The court is of opinion, therefore, that the county court erred in not restricting the new trial to the issue which had been made up at the first trial, and in admitting the pleas of the defendants, which put new matters in issue; and that the circuit *253court of Richmond, to which the cause was removed, erred in affirming the judgment of the county court by which the errors aforesaid were committed.
The court is further of opinion that the defendants are entitled to a new trial upon the issue which was of record at the first trial, by the order of the circuit court of Pittsylvania, and which, it seems, was the only issue upon which they sought a new trial, notwithstanding the error of the county court in allowing the new trial tó be had on other issues; and that therefore it would not be proper now to enter up a judgment upon the verdict of the jury on the first trial.
Upon the whole the court is of opinion to reverse the judgment of the circuit court of Richmond, and to remand the cause, with instructions to reverse the judgment of the county court of Pittsylvania county, set aside the verdict of the jury upon the trial in that court, and the issues upon the new pleas of the defendants, and to award a venire facias de novo, to try the cause again; and if in the the further progress of the cause, the new pleas filed by the defendants at the second trial and upon which the plaintiff was required to take issue, or any other new plea should be tendered, the same shall be rejected, and the trial be confined and restricted to the issue which was made at the first trial, unless the new matter of defence pleaded arose subsequent 'to the order granting a new trial.
The judgment was as follows:
The court-is of opinion, for reasons stated in writing and filed with the record, that the county court of Pittsylvania should have confined the parties in the new trial to the issue that was made up at the previous trial in the circuit court of said county in conformity with the order of said court, and that the said county court erred *254in admitting the defendants to plead new matter which was not in issue in the former trial, the same not having subsequent thereto; and, therefore, that the circuit court of Richmond erred in affirming said j udgment of ^ie county court of Pittsylvania. It is therefore considered by the court that the judgment of the circuit court of Richmond be reversed and annulled, and that the defendants in error do pay to the plaintiff in error his costs expended in the prosecution of his writ of error here. And the cause is remanded to the circuit court of the city of Richmond, with instructions to reverse the judgment of the county court of Pittsylvania, with costs, to set aside the issues made upon the pleas of discharge in bankruptcy filed by the defendants severally, and award a venire facias de novo to try the cause again, either at its own bar or in such court as it may be deemed proper to remove the cause; and upon such trial the parties shall be confined to the issue which was made upon the record, and tried at the first trial before the circuit court of Pittsylvania county; and if the defendants shall again offer their pleas of discharge in bankruptcy, or any pleas of new matter of defence, the same shall be rejected, unless the new matter of defence pleaded shall have arisen subsequent to the order of the cii’cuit court of Pittsylvania county granting a new trial; which new matter, if any, they may be allowed to plead, if in form and substance it be matter proper and sufficient to be pleaded post darrein continuance, in bar of the plaintiff’s action; and further to proceed with the cause in conformity with this order and the opinion filed with the record.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482032/ | Burks, J.,
delivered the opinion of the court.
The counsel for the judgment creditors of William Crumpton (appellees), in their brief, complain of alleged errors in the decree of the 16th November, 1871. It is a sufficient answer to say that the appeal allowed in this case does not bring that decree under review. It adjudicates matters wholly between the creditors and defendants other than the appellants. The only decree affecting the interests of the appellants is the decree of the 13th November, 1872, which is the decree appealed from, and the only one to be now examined. Bor the rule in such cases, see Walker's ex’or & als. v. Page & als., 21 Gratt. 636, 652, and cases there cited.
The deposition of the appellee, William Crumpton, was twice taken. The one first taken was read at the hearing of the cause without objection or exception.
The objection to it here now for the first time comes too late.
The last deposition was excepted to when taken, by the judgment creditors, on the ground of the alleged incompetency, of the witness. If it were excluded altogether, the exclusion would not affect the decision on this appeal, as it relates almost entirely to a question with which the appellants have no concern—the title to the lot claimed by the defendants, Una Crumpton and her children and trustee—as to whom the bill was dismissed under the first decree.' But it is clear that the witness was not incompetent. Although the transactions *259to which he testified be treated as transactions which were the subject of investigation in the suit, and Jesse Crumpten, the other party to such transaction was dead, yet he did not testify in his own favor, or “in favor of any other party Taaving an interest adverse” to Jesse Crumpton or those claiming under him. On the contrary, he testified against his own interest, and against the complainants having an interest adverse to Jesse Crumpton. Code of 1873, ch. 172, § 22.
The principles of several recent decisions of this court, reported in 28 Gratt., to-wit: Floyd, trustee, v. Harding & als., 401, 407; Hicks v. Riddick & als., 418; Borst v. Nalle & als., 423, 432, 433; Shipe, Cloud & Co. v. Repass & als., 716, 723, establish the proposition that the lot claimed by the appellants is not subject to the lien of the judgments of the appellees, Ludlam, Heineken & Co., and Taliaferro & Musgrove, if when these judgments were recovered against William Crumpton, the appellants, or either of them, had a valid, equitable title to said lot.
Whether they had such title, therefore, is the only ■question to be considered and determined.
The claim of the appellants to the lot in question, at the date of the judgments, was under a parol agreement, and if it were a contract for sale, to take the case -out of the operation of the statute of fraud and perjuries and entitle the appellants to specific -execution, on the .ground of part performance, it is well settled that the agreement and acts of part performance must be clearly proved, and it must appear that the agreement is certain and definite in its terms, that the acts proved in part performance refer to, result from, or were done in pursuance of the agreement proved, and that the agreement has been so far executed that a refusal of full execution would operate a fraud upon the party seeking execution *260and place him in a situation which does not lie in compensation. Wright v. Pucket, 22 Gratt. 370.
The appellants, however, do not claim that the agreement was a contract for sale, but a parol gift of the lot. It becomes important, therefore, to enquire whether, asdonees, under the facts and circumstances proved, they occupied any worse attitude than if they had been purchasers for value; whether they could have demanded a conveyance of the legal title without condition.
Itis certainly true, that courts of equity do notaid in the execution of contracts or agreements purely voluntary; and notwithstanding respectable authorities to the contrary and what Mr. Justice Story pronounces the “ very able” reasoning of Lord Chancellor Sugden, in Ellis v. Nimmo (Loyd & Goold, 333), it would seem also to be now the general rule that such aid will not be given to carry into-execution contracts or agreements based wholly on a. meritorious consideration—that is, the moral duty of a parent to make provision for his child, or of a husband to make like provision for his wife. 1 Story’s Eq. Juris., § 793, and authorities cited in the notes.
But whether a court of equity will compel the conveyance of the legal tide, of land claimed under a parol gift, supported by a meritorious consideration, and by reason of which the donee has been induced to alter his-condition and make large expenditures of money in valuable permanent improvements on the land, is a question on which the authorities are not agreed.
.Some adjudged cases determine the question in the negative. Pinckard & Pool v. Pinckard’s heirs and others, 23 Alab. R. 649; Rucker, for, &c. v. Abell and others, 8 B. Mon. R. 566; Adamson v. Lamb, adm’r., 3 Blackf. R. 446. The doctrine of other cases is, that the donee, under such circumstances, becomes the equitable owner -of the land, and may rightfully demand the legal title. Syler’s lessee v. Eckhart, 1 Binn. R. 378; Eckert and *261others v. Eckert and others, 8 Penn. R. 332; Eckert v. Mace and others, Id. 364; Stewart v. Stewart, 3 Watts R. 253; France v. France, 4 Halstead Ch. R. 650; Lobdell v. Lobdell, 36 New York R. 327; Bright v. Bright, 41 Ill. R. 97; Law v. Henry, 39 Indiana R. 414; Young v. Glendenning, 6 Watts R. 509; Mahon v. Baker, 2 Casey R. 519; Atkinson v. Jackson, 8 Indiana R. 31; Freeman v. Freeman, 43 New York R. 34; Peters v. Jones, 35 Iowa R. 512 ; Neale v. Neales, 9 Wall. U. S. R. 1.
The ground of these last named decisions is, that the parol gift, with the concurring facts established, rests on the same foundation with a parol contract for sale partly performed, and that equity will carry both into complete execution, notwithstanding the statute of frauds and perjuries, for the same reason, to-wit: to prevent the statute, which was designed to guard against fraud, from being used as a means to perpetrate fraud.
Chief Justice Tilghman, in delivering the opinion of the supreme court of Pennsylvania, in the case of Syler’s lesse v. Eckhart, supra, uses this language: “ Although the courts are not disposed to extend the principles on which parol agreements concerning lands have been coniirmed, farther than they have already been carried, yet they are bound by what has been decided. It has been ■settled that where a parol agreement is clearly proved, in ■consequence of which one of the parties has taken possession and made valuable improvements, such agreement shall be carried into effect. We see no material difference between a sale and a gift; because it certainly would he fraudulent conduct in a parent to make a gift which he knew to be void, and thus entice his child into a great expenditure of money and labor, of which he meant to reap the benefit.”
Although the agreement in King's heirs and others v. Thompson and wife, 9 Peters R. 204, was not specifically •executed, it was because of the uncertainty in the terms *262of the agreement. It was there said that theexpenditures for the improvements constituted a valuable con-See also Rerick v. Kern, 14 Ser. & Raule R. 267; Sheppard v. Bevin and others, 9 Gill R. 32.
-A-11 early decision (1811) of this court seems to accord with the Pennsylvania cases, supra. A testator having put his daughter’s husband into possession of a leasehold tract of land and delivered him the lease, permanent improvements also being made by the son-in-law, with the assistance of- the family, and parol declaration by the testator, that he had given him the land in consideration of his having married his daughter and to prevent his moving to Kentucky, being proved, it was decided that the son-in-law had an equitable title to the land for the time the lease had to run, and to a release of the legal title from the heirs or executors, according as the interest conveyed by the lease might be greater or less. Shobe’s ex’ors v. Carr and wife, 3 Munf. 10. This was a. decision by a court consisting of Judges Roane, Brooke and Cabell, and they were unanimous in the opinion.
We do not find the principles of this decision denied or questioned in any subsequent decision of this court which has come to our knowledge. In Darlington v. McCoole, 1 Leigh, 36; Reed’s heirs v. Vannorsdale and wife, 2 Leigh, 569; Pigg v. Corder, 12 Leigh, 69; Cox & als. v. Cox, 26 Gratt. 305, specific' execution was denied, hut there is nothing to be found in either of these cases in conflict or at all inconsistent with the decision in Shobe’s ex’ors v. Carr and wife, supra. On the contrary, the reasoning of the judges in some of these cases would rather seem'to confirm the principles of that case.
In Reed’s heirs v. Vannorsdale and wife, no expense or loss was incurred by Charles Eeed in foregoing his intention to remove to the west, and in moving to and settling on the land promised him by his brother, Jamies Eeed; and Judge Cabell took occasion to say that if it *263had appeared that such expense or loss had heen incurred, he should have been' of opinion that specific execution ought to have been enforced.
The following are the material facts in the case before us: William Crumpton, the father of the female appellant, Mrs. Burkholder, resided in the city of Lynchburg in 1852, and until he removed to Danville, in 1865 or 1866. In 1852, the date of the marriage of his said daughter, he owned a good estate, estimated at from $50,000 to $75,000, and was free from debt. At the institution of this suit he had become insolvent. The year after his marriage, Burkholder purchased the lot in question, then unimproved, at the price of $50, intending to build upon it. Binding himself without sutficient means to accomplish this, he turned the lot over to Crumpton, who paid for it and took the title to himself, declaring that he intended it for his daughter, Mrs. Burk-holder, and commenced building a house upon it for her. Soon after this Burkholder removed with his family to Wytheville, and there engaged in his business, which was that of an architect, practical builder, and manufacturer of agricultural implements. While his business was in a promising condition, Crumpton proposed to him that if he would break up his business at Wytheville and return to Lynchburg, his wife “ should have the lot, together with the unfinished improvements thereon, as her own property.” Burkholder acceded to this proposition, returned to Lynchburg with his family, paying his own expenses of removal, and took possession of the lot under the agreement mentioned, and has had and- held actual, continuous, notorious, exclusive possession, with claim of title under the agreement thence hitherto. The possession commenced.in the year 1855 or 1856. At the time he and his wife and family entered into possession, the building on the lot was about one-third completed. He finished the building out of his own means and means saved by *264the earnings of his wife.' It must have been completed as early as 1858, for in that year the lot and buildings were assessed for taxation at the value of $2,150. The delay in making the deed of conveyance was caused by inattention. The house and lot was evidently intended as a home for Mrs. Burkholder and her family, which included nine infant children at the filing of the bill in this case, and her right was never denied or called in question by her father, or any other person, until the institution of the suit. It was proved that Crumpton had made advancements to his children, and that the house and lot held by Mrs. -Burkholder did not exceed in value the propei’ty advanced to any one of his other children. ‘ The two debts, upon which the judgments sought to be enforced against the lot were recovered, were contracted, the one in the year 1861 and the other in 1865,
Upon these facts, clearly .and satisfactorily proved, without laying down any general rule, we are of opinion that at the date of the judgments of the appellees, Ludlam, Hein eken & Co , and Taliaferro & Musgrove against William Crumpton, the appellant, Mrs. Burkholder had a valid equitable title to the house and lot in question, and that the said judgments are not liens thereon.
The decree of the circuit court oí the city of Lynch-burg must therefore be reversed, the bill of the appellees dismissed as to the appellants, and the cause remanded to the said circuit court for further proceedings against the remaining defendants, in order to final decree as to them.
The decree was as follows:
This day came again the parties by their.counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and *265filed with the record, that the lot described in said decree as “lot Ho. 275 in the bill and proceedings mentioned” is not subject to the lien of the judgments in the bill mentioned of the appellees, Ludlam, Heineken & Co. and Taliaferro & Musgrove, or either of them, and the ■said decree is wholly erroneous. Instead of said decree, the said circuit court should have entered a decree dismissing the bill of the complainants (the said appellees) as to the appellants and the children of Robert C. Burk-holder and Mary E. his wife (defendants in this cause), and ordering the payment by the complainants to said defendants of their costs by them expended in their defence in this cause in the said circuit court.
It is therefore decreed and'ordered, that said decree be revei’sed and annulled, and that the appellees, Henry Ludlam, Gustave Heineken, and George W. Palmore, late partners under the style of Ludlam, Heineken & Co., and Hathan C. Taliaferro and J. Y. Musgrove, late partners under the style of Taliaferro & Musgrove, pay to the appellants their costs by them expended in the prosecution of the appeal aforesaid here. And this cause is remanded to the said circuit court, with directions to said court to enter a decree in the cause dismissing the bill of the complainants (who are appellees here) as to the appellants and the children of Robert C. Burkholder and Mary E. his wife (defendants in the cause), and ordering the complainants to pay to said defendants their costs by them in-their defence in this cause in said circuit court expended, and for further proceedings, in order to final decree in conformity with the opinion and principles herein expressed and declared; which is ordered to be certified to the said circuit court of the city of” Lynchburg.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482033/ | Moncure, P.,
delivered the opinion of the1 court.
This is a writ of error to a judgment rendered by the circuit court of the city of Richmond on the 2d day of November, 1874, in an action of debt brought in said court on a judgment obtained at a supreme court of the state of New York for the city and county of New York.
A copy of the record of the case in which said judgment was obtained is set out in the declaration in said action of debt.
The parties to said case are described in said record as “ Henry Huston, plaintiff, against--Bowler (whose given name is unknown to plaintiff), Charles C. Herbert, and Charles Ulius, defendants.” The case was commenced early in June, 1869.
In the complaint, which was filed on or about the same day, and was signed by the plaintiff’s attorneys, it was charged that at all the terms thereinafter mentioned -Bowler (whose given name is unknown to plaintiff), Charles C. Herbert, and Charles Illius, the defendants above named, were partners in business in the city of New York, under the firm name of Bowler, Herbert & Co.; that on the 17th day of November, 1864, certain persons, under their firm name of N. T. Carter & Co., *268made their draft or bill of exchange in writing, dated on that day and directed to the defendants, under their firm name of Bowler, Herbert & Co., and thereby required the said defendants, three months after the date thereof, to pay to the order of themselves the sum of $1,624, and the said defendants afterwards, to-wit: on the 22d day of .November, 1864, for value received, accepted the said draft or bill; that thereafter, and before the maturity of said bill or draft, the plaintiff became, and then was, the lawful owner and holder for a valuable consideration; and that the defendants had not paid the same nor any part thereof, except the sum of $1,000, but were justly indebted to the plaintiff in the sum of $624, with interest thereon from the 20th day of February, 1865. ‘Wherefore the plaintiff demanded judgment against the defandants for the said sum of $624 and interest, besides the costs and disbursements of the suit, &c.
The summons to answer said complaint, was returned with an affidavit of service thereof, on the 24th day of June, 1869, on Charles C. Herbert, one of the defendants. It does not appear to have been ever served on either of the other two defendants, or that the defendant, Henry Bowler, the plaintiff in error, ever had any knowledge or information as to the existence of the case until after it had ceased to exist. But it does appear, as will presently be seen, that the defendant, Charles Illius, had knowledge of it soon after it was brought.
An answer was filed to said complaint in July, 1869, and was signed by “Sullivan & Bracken, defendants’ attorneys, 29 Wall street, New York.” It contains sixteen paragraphs, which are numbered accordingly, and states in substance, among other things, that on or about the 5th of October, 1864, a firm doing business as miners and shippers of coal in the city of Philadelphia, under the firm name of Carter & Co., through one Henry Huston, the plaintiff in said case, bargained with the defendants’ *269firm of Bowler, Herbert & Co., whereby said Huston, on the part of said Carter & Co., agreed to sell and deliver to said firm of Bowler, Herbert & Co. a certain quantity of good, clean anthracite coal; that defendants’ firm were to receive on their barge at Richmond, Pennsylvania, the said coal, and pay for the same by their note at three months; that in pursuance of said contract a certain quantity of coal was shipped by said Carter & Co. oil a barge for defendant, and at the same time a bill and draft for tbe amount thereof, $1,624, was sent to them; that said bill and draft were forwarded and received and accepted by said defendants’ firm long before the arrival of the coal at Albany, New York, where the defendants were to receive the same, and that said bill was received and draft accepted by the defendants, relying upon the good faith and honesty of said Carter & Co., and believing that they had fulfilled the terms of the contract; that on the arrival of the coal at Albany, and its being unloaded, it was found to be not of the quality contracted for, and totally unfit for use; that defendants’ firm immediately informed said Carter & Co. of this fact, and demanded, as same was bulky and expensive to load and return to Pennsylvania, that they should take the same under their control; that the defendants’ firm not being able to re-ship and return said coal to Carter & Co., and the latter not having taken possession of the same, defendants, in Order to save loss, notified them to have the same appraised, and that they would pay for the same at such appraised value; that said,Carter & Co. were not willing to do this, but requested defendants to leave the matter open for future adjustment, to which defendants agreed; that before ány adjustment was had, and about May, 1865, and long after the maturity of the draft accepted by defendants, they, at the earnest solicitation of Carter & Co., accepted and paid them a draft for the sum of $1,000, on account, for dhe adjustment *270that was to be made for tbe value of the coal; that though defendants’ firm have ever desired, asked for and tried to obtain the adjustment as aforesaid, they have never been able to obtain one, said Carter & Co. ever putting it off from time to time, and eventually neglecting and refusing to make the same; that subsequently said Carter & Co. wrongfully and fraudulently passed the draft accepted by defendants’ firm without consideration, and after its maturity to the plaintiff, for the purpose of harrassing defendants and forcing them to make an unjust settlement or purchase quiet, the said Huston, the plaintiff, having full knowledge of all the facts therein-before alleged, and that the amount paid by defendants, to-wit: the sum of $1,000, was more than sufficient to pay for the coal shipped to and forced upon defendants, and that said Carter & Co. and said plaintiff, their agent, were fully aware of this. Wherefore, defendants demanded judgment for dismissal of the complaint, &e.
Annexed to tbe said answer is an affidavit made by the said Charles Illius on the 17th day of July, 1869, stating that “he is one of tbe defendants above named, that he is acquainted with all the facts of the case, and that he has read the foregoing answer and knows the contents thereof, and that the same is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.”
A copy of said answer was served on plaintiff’s attorneys, who, it sqems, gave “ notice of settlement of order ” to defendants’ attorneys; but having made default on the same, it was dismissed by order of the court; whereupon the defendants’ attorneys gave notice to the plaintiff’s attorneys on the 30th of July, 1869, that the said answer was reserved.
Ho further order or other .proceeding appears to have been made or taken in the case after the said 30th day of *271July, 1869, until the 28th day of January, 1874, when notice was given hy the said plaintiff’s attorneys to the said defendants’ attorneys that the bill of costs endorsed in the. notice would be presented to the clerk of the county of New York for adjustment, &c., at his office in the city of New York, on Friday, the 30th day of January, 1874, &c.; and on the same day due sendee of a copy of said bill of costs and notice of taxation of the same was admitted by the said attorneys for defendants.
On the 30th day of January, 1874, John P. Reed, Jr., one of the attorneys of the plaintiff in’the case, made oath that on or about the 22d day of January, 1874, Charles Illius, one of the defendants, informed deponent that the full name of the defendant, Bowler, was Henry Bowler, and on the same 30th day of January, 1874, on motion of the said Reed, Jr., it was ordered that the summons and complaint in the case be amended by inserting the name Henry before the word “Bowler,” in the style of the case, and that the words “whose given name is unknown,” be stricken out. Aud on the same day the case was tried by the supreme court for the city and county of New York, and a jury, and the defendants not appearing, a verdict was rendered therein for the plaintiff for the sum of $1,014.69,. and his costs having been adjusted at $210.73, on the motion of the attorneys for said plaintiff, it was adjudged that the plaintiff recover of said defendants the sum of $1,014.69, found by the jury, with $210.73 costs, together amounting to the sum of $1,225.42.
On the 6th day of April, 1874, a little more than two months after the said judgment was obtained, an action of debt was brought thereon in the circuit court of the city of Richmond, as before mentioned, the parties to the action being described in the declaration therein as “Henry Huston, plaintiff,” and “Henry Bowler, Charles O. Herbert and Charles Illius, late partners doing busi*272ness in the city of New York, under the firm name of Bowler, Herbert & Co., defendants.” The said Henry Bowler, who resided in the city of Richmond, was the only one of the said defendants who was summoned and appeared to the said action, the other two being nonresidents of the state of Virginia.
On the 2d day of November, 1874, came the parties by their attorneys, and the defendant, Henry Bowler, pleaded nil debet, and put himself upon the country, and the plaintiff' likewise (issues having previously been also joined upon the pleas of nul tiel record and the statute of limitations) and the said defendant then tendered to the court three special pleas in writing, to the filing of which the plaintiff objected, and the court rejected said special pleas and refused to permit them to be filed (the same special pleas having also been tendered, objected to and rejected as aforesaid at previous terms of the said court); and neither party demanding a jury, and the evidence being heard, it was considered by the court that the plaintiff recover against the defendant, Henry Bowler, $1,225.42, with interest at the rate of seven per centum, per annum on $1,014.69, part thereof, from the 31st day of January, 1874, till paid, and his costs, &c.
To the opinion of the court rejecting the said special pleas, the defendant excepted, and the said pleas are set out in the bill of exceptions. They do not very materially vary from each other, and only one of them need to be set out here. The first is as follows:
“Elea No. 1.
“ And for a further plea in this behalf, the said defendant, Henry Bowler, says that though said judgment was in fact obtained by plaintiff against said defendant, Henry Bowler, and two other certain persons, named therein respectively, Charles C. Herbert and Charles Illius, in the supreme court of the state of New York, for the city *273and county of New York, said judgment was obtained fraudulently against this defendant, Henry Bowler, individually, insomuch as said defendant was not, at any time, served with process issuing out of said court at the suit of said plaintiff, for the cause of action upon which said judgment was obtained; nor did said defendant, Henry Bowler, ever appear in person in said court to answer the plaintiff in said action, for which said judgment was so obtained; nor did said defendant, Henry Bowler, at any time or in any way or manner authorize or empower any person or persons whomsoever to appear as his (said defendant’s) attorney, or attorneys, in said court to answer the plaintiff in said action in which said judgment was so obtained; nor had he, the said defendant, Henry Bowler, at any time before the recovery of said judgment, any notice or knowledge of any process or summons, or of any proceeding in said action, or any means or opportunity of defending himself therein or therefrom; and this he is ready to verify. "Wherefore said defendant prays judgment whether the plaintiff his action aforesaid ought to have and maintain against him, the said Henry Bowler. Henry Bowler.”
An affidavit to the truth of the plea is annexed thereto. The defendant applied to this court for a writ of error to said judgment, which was accordingly awarded. The main, if not the only error in the said judgment assigned in the petition for a writ of error, is the rejection of the said special pleas, which rejection is complained of for several reasons set forth in the petition.
Whether the said judgment be erroneous or not, is the question which this court has now to decide.
This is an action of debt brought in this state on a judgment of another state, to-wit: New York.
*274By the constitution of the United States, Article IV, section 1, it is declared that “full faith and credit shall given in each state to the public acts, records and judicial proceedings of every other state. And the con-gress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”
The act of congress of May 26th, 1790, Vol. I, p. 115, after providing the mode by which they shall be authenticated, declares that “the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have, by law or usage, in the courts of the state fs’om whence the said records are or shall be taken.”
For the judicial decisions which have been made in Tegard to the aforesaid provisions of the constitution and the act of congress, reference may be had to 2 American Leading Oases, with notes by Hare & Wallace, 5th edition, pp. 597-664; the leading cases there reported being Mills v. Duryee, 7 Cranch R. 481-487, and McElmoyle v. Cohen, 13 Peters R. 312-330.
In Mills v. Duryee, it was held that nil debet is not a good plea to an action founded on a judgment of another state; and such has been the uniform doctrine on the subject ever since.
As a necessary consequence, it has also ever since been uniformly held that nul tiel record is a good plea in ■such case.
In regard to the eopstruetion and effect of the pro-visions of the constitution of the United States and the act of congress aforesaid, it has been repeatedly held, and is firmly established by decisions of the supreme court of - the United States, and of many, if not most of the several states, that the effect thus given in an action in one state upon a judgment obtained in *275another, is based upon the ¿ssumption that the court in which the judgment was obtained had jurisdiction of the case when it pronounced such judgment. It. is necessary, of course, that a defendant against whom a judgment is obtained should reside in the state in which the judgment is rendered, in order to give the court rendering the judgment jurisdiction of the case.
It will have such jurisdiction, though the defendant be a non-resident of the state, if he be summoned therein, or appear in person, or by attorney, to the suit. But whether he reside therein or not, he must be so summoned, or appear, in order to give the court jurisdiction of the case, so as to give its judgment the effect in another state provided for by the constitution and act of congress aforesaid. And it is perfectly competent for a defendant in an action in one state, on a judgment rendered in another, to plead and show in his defence that he was not summoned and did not appear in person or by attorney in the suit in such other court; and that, too, even though it be expressly stated in the record of the suit in that court that he was actually summoned or did so appear. The judgment is not conclusive on either of those points, though it may be conclusive on the merits if the court have jurisdiction of the case.
That such has been the course of the decisions on this subject, will appear by reference to the following, among ■others: Bissell v. Briggs, 9 Mass. R. 462 (1813); Starbuck v. Murray, 5 Wend. R. 148 (1830); Mervin v. Kumbel, 23 Id. 293 (1840); Wilson v. Bank of Mt. Pleasant, 6 Leigh, 2d edition, 570 (1835); Gleason v. Dodd, 4 Metc. R. 333 (1842); Shelton v. Tiffin & al., 6 How. U. S. R. 163 (1848); D’Arcy v. Ketchum & al., 11 Id. 165 (1850); Rape v. Heaton, 9 Wisc. R. 328 (1859); Public Works v. Columbia College, 17 Wall. U. S. R. 521 (1873); Thompson v. Whitman, 18 Id. 457 (1873). In the last case, as in others, it was held that “ the record of a judgment *276rendered in another state may he contradicted as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.” Knowles v. The Gaslight Coke Co., 19 Id. 58 (1873). In that case it was held that, “in an action on a judgment in another state, the defendants, notwithstanding the record shows a return of the sheriff that he was personally served with process, may show the contrary, namely, that he was not served, and that the court never acquired jurisdiction of his person.” And the case of Thompson v. Whitman, supra, decided by the same court in the same year, ivas affirmed and applied. Hill v. Mendenhall, 21 Id., 453 (1874). In that case it was held by the Chief Justice, Waite, delivering the opinion of the whole court, that “since the cases of Thompson v. Whitman, 18 Wall. U. S. R. 457, and Knowles v. Gaslight & Coke Co., 19 Id., 58, it may be considered as settled in this court, that when a judgment rendered in one state is sued upon in another, the defendant may contradict the record to the extent of showing that in point of fact the court rendering the judgment did not have jurisdiction of his person. If such showing is made, the action must fail, because a judgment obtained under such circumstances has no effect outside of the state in which it was rendered. In Underwood v. McVeigh, 23 Gratt. 409, Judge Christian delivering the unanimous opinion of this court, laid down the principle, among others of a like kind, that “ no sentence of any court is entitled to the least respect in any other court or elsewhere when it has been pronounced ex parte and without opportunity of defence.” To the same effect is Windsor v. Mc Veigh, 3 Otto R. 274. See also the following books on the same subject, viz: 1 Kent’s Com., eleventh edition, p. 261, marg. and notes; 1 Rob.Pr.,219; 6 Id.437; 7 Id. 109; 1 Smith’s Ldg. *277Cas., 7th Am. ed. pp. 1118-1146; 2 Id. 828; 2 American Leading Cases, supra.
The summons to answer the complaint in the action of debt in New York appears from the record to have been executed on one only of the three defendants, to-wit: Charles C. Herbert; though another of them, to-wit: Charles Illius, had notice and joined in the defence of the action, and made oath to the truth of the facts stated in the answer. The third defendant, Henry JBowler, appears never to have been summoned to answer the complaint, nor to have appeared to defend the action, in person or by attorney, nor to have authorized any attorney to appear for him for that purpose, nor to have had ■“ at any time before the recovery of judgment in said action any notice or knowledge of any nrocess or summons, or of any proceeding in said action, or any means or opportunity of defending himself therein or therefrom,” as he avers in his special pleas which he offered, but which were rejected in the action brought in this' state on the said judgment as aforesaid. The said Henry Bowler no doubt resided in the city of New York when the contract was made, to-wit: in Hovember, 1864, and probably, also, when the said action was brought thereon in New York in June, 1869. If he did not then reside in the city, he no doubt resided elsewhere in the state of New York, as he does not aver in his said special pleas that he was then a non-resident of the state of New York. His Christian name was then unknown to the plaintiffs or their attorneys in the said action, and continued to be unknown to them until about the 22d day of January, 1874, a, few days before the judgment in the said action was rendered, when it was ascertained by one of the said attorneys; and a few days thereafter, and indeed on the very day on which the judgment was rendered, to-wit: the 30th day of January, 1874, it was inserted, for the first time, in the blank which had been left for it in the *278proceedings in said action. The said Henry Bowler ceased to be a resident of the city and state of New hut at what time does not appear, though probably after the said action there was brought, but no doubt before the judgment was rendered therein. When the action was brought in the circuit court of the city of Richmond on the said judgment he resided in the said city, but how long he had previously resided therein does not appear, nor is the fact material.
It was insisted by the counsel for the defendants in error in their argument of this case, that it appears from the record of the action in New York that the defendants appeared in that action by their attorneys, which means that all of the defendants so appeared; and that any or either of the defendants had a right to employ attorneys to appear for all in the action, even though the partnership may have been, as it no doubt was, previously dissolved; the said counsel contending that a partnership, though actually dissolved for all purposes of carrying on the business of the partnership, is considered as continuing until all its business is settled and ended.
In regard to what the record shows as to the appearance of the defendants by their attorneys, it was insisted by the counsel for the plaintiff in error that the word defendants here means only the two defendants, Herbert and Illius, who were actually before the court. But even if it was intended to embrace the third defendant also, Bowler, we have seen that it was still competent for that defendant to traverse the fact that any attorney -was employed in the ease by him or on his authority.
In regard to the authority of any of the members of a dissolved partnership to retain an attorney to defend the other members of the late firm in an action brought against them, it seems to be now well settled that no such, authority exists, unless specially given. It does not result from the partnership itself.
*279This was held in a very recent case, decided in 1875 by the supreme court of the United States, Hall and al. v. Lanning and al., 1 Otto, 160. There it was held that a member of a partnership residing in one state, not served with process and not appearing, is not personally bound by a judgment recovered in another state against all the parties after a dissolution of the firm, although the other membei’s were served, or did appear and cause an appearance to be entered for all, and although the law of the state where the suit was brought authorized such judgment; and that after the dissolution of a partnership one partner has no implied authority to cause the appearance of another partner to be entered to a suit brought against the firm. And a qucere is added by the reporter to his caption of the report of said case: Whether such implied authority exists during the continuance of the partnership ? But it is .unnecessary to decide that question in this case. *
It is obvious, and indeed seems to have been admitted by the counsel on both sides in them argument of this case, that the action in Hew, York was under section 136 (as amended in 1866) of the Code of Procedure of that state, page 101, which, so far as it relates to this case, is as follows: “ Where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff may proceed as follows: 1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendants served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served,” &c.
Supposing the procéeding to have been had and the *280judgment to have been obtained in New York under the section aforesaid, it is obvious that the judgment can have effect only in the state of New York, and against the joint property of all the defendants and the separate property of such of them only as were served with process there, and against the persons of the latter if they were subject to arrest; and that it cannot have any effect extra territorium. And at all events, that it cannot have the effect of a judicial proceeding of one state on which judgment may be recovered in another, under the provision of the constitution of the United States and act of congress aforesaid, against a defendant who was not served with process in such judicial proceeding, and did not appear therein, in pei’son or by attorney. The only purpose of an action in another state on such a judgment, is to obtain a personal judgment against the defendant residing or who may happen to be therein, and .who was not served with, process and did not appear to the first action. The judgment in that action is no evidence against him in an action brought thereon in another state. In its very nature it is confined in its operation to the state in which it was obtained and by which it was authorized. It was not, and could not have been, authorized with a view to another state, or to the provision of the constitution and act of congress aforesaid.. At all events it can have no greater effect than would a judgment of a foreign state in an action brought thereon in this state.
The proceedings in this case illustrate the wisdom of confining the operation of a judgment obtained under the aforesaid section of the New York Code of Procedure to the jurisdiction in which it is obtained, and not extending it to other states under the provision of the constitution and act of congress aforesaid, and show that the greatest injustice might otherwise be done.
The defendant in the action in this state was not served *281with process in the action in New York, and did not appear therein, and had.no knowledge or information, as he says on oath, of the pendency of that action. He ivas a member of the firm in the city of New York, which made the contract with the firm in the city of Philadelphia, on which contract that action was brought. The contract was for the purchase of coal, to be shipped from Richmond, Pennsylvania, to Albany, New York. It was made in October, 1864; shortly after which the coal was shipped and a bill of exchange at three months was drawn by the vendors on the vendees for $1,624, the price of the coal, according to the contract, which bill was accepted by the vendees before they received the coal. When the coal arrived at Albany it was found, as the vendees contended, to be not of the quality contracted for and totally unfit for use, and they offered to cancel the contract; but as that was inconvenient to the vendors, it was agreed, as the vendees contended, that the coal should be retained by them on terms to be adjusted afterwards between them. In May, 1865, long after the maturity of the said bill, the vendees, at the earnest solicitation, as they said, of the vendors, accepted and paid their draft for $1,000, on account of the adjustment that was to be made for the value of the coal; which said sum, the vendees insisted, was more than sufficient to pay for the coal. It does not appear that any further demand was made of the vendees, on account of the coal, until the 5th day of June, 1869, between three and four years after the said payment of $1,000, when the action in New York was brought by Henry Huston, to whom the said bill of exchange was endorsed, and who, .it seems, was privy to all the facts of the case. The amount claimed in that action was $624, with interest thereon from the 20th day of February, 1865, being the amount of said bill, after crediting the said payment of *282$1,000. That action was promptly defended by the defendants, Herbert and Illius;. the other defendant, Bowler, not having been served with process or appeared therein, or had, as he says, any knowledge or information thereof, and of course not taking any part in the defence. The'grounds of the'defence were such as to show that, in the view of the parties making it, they owed nothing on account of the claim. It seems that there was in July, 1869, some attempt made by the plaintiff' in the action to have a settlement with the defendants, but having made default in his proceeding therefor, the same was dismissed by order of the court.
Nothing further appears to have been done in' the ease from July, 1869, aforesaid, until four and a half years thereafter,-to-wit: the 28th day of January, 1874, when the plaintiff’s attorney served the defendant’s attorney with the notice of the taxation of costs in the case, service of which notice the latter thereupon admitted. Two days thereafter, to-wit: on the 80th day of January, 1874, John P. Beed, Jr., one of the plaintiff’s attorneys, made oath that on or about the 22d of January, 1874, Charles Illius, one of the defendants in the case, informed deponent that the full name of the defendant, Bowler, therein was Henry Bowler; on said deponent’s motion on the said 30th day of January, 1874, it was ordered by the court, that the summons and complaint in the action be amended by inserting the name Henry before the word “Bowler” in the style of the cause, and that the words, “ Whoso given name is unknown,” be stricken out. And on the same day last named, the cause was tried by the court and a jury, the defendants not appearing; and a verdict was rendered therein for the plaintiff', for the sum of $1,014.69; and his costs having been adjusted at $210.73, on the motion of his attorneys it was adjudged that' the plaintiff recover of the defendants the aggregate of said two sums, $1,225.42.
*283It does not appear why the defendants, who appeared to the action in New York, and at first made so earnest a defence therein, upon grounds so plausible, should, after the lapse of more than three years, -without any further action having in the meantime been taken in the case, have abandoned altogether their defence, discharged their attorneys, and suffered judgment to go against them by default for the whole amount of the plaintiff’s demand.
It does not appear that any attempt was made after the judgment was rendered, to recover the same or any part of it of the defendants, or either of them, who alone were served with process and appeared and defended the action in New York. Nor does it appear why no such attempt was made, which might have been done by merely suing out process of execution there. The reason may have been that they -were bankrupt or insolvent, and that such an attempt would have been vain. And the same reason may account for their having withdrawn their defence and suffered judgment to go by default as aforesaid.
It does appear, however, that immediately after that judgment was rendered, the plaintiff forwarded an exemplification of the record to the city of Richmond, Virginia, and just two months and a few days after the rendition of said judgment, to-wit: on the 6th of April, 1874, an action was brought thereon against the said Henry Bowler in the circuit court of said city for the whole amount of said judgment.
Under such circumstances we think that great injustice might, and probably would be done, by considering the said judgments as coming under the operation of the constitution of the United States and the act of congress aforesaid. But we do not so consider, for the reasons before mentioned.
We have not noticed all the cases referred to in the *284argument, deeming it unnecessary to do so, and this opinion has already been too much prolonged.
We are, therefore, of opinion, that the New York court had no jurisdiction to render judgment against the defendant, Henry Bowler, at least such a judgment as could be the foundation of- an action thereon against him under the constitution of the United States and the act of congress aforesaid; and that such want of jurisdiction is a good defence in this action; and we are of opinion that such defence may and ought to he made by special pleas; that the three special pleas offered by the defendant were good in form and substance, and ought not to have been rej ected by the court below. The defence could not have been made under the plea of nul tiel record; and the plea of nit debet was not a good plea. It is contended, however, by the counsel for the defendant in error, that though not a good plea, yet as it was actually plead, and he did not object to it, but joined issue upon it, the defence might have been as well made under it as under a special plea. Without deciding whether it might have been or not, we think the circuit court erred in excluding the special pleas; and that for that error the judgment ought to be reversed and a judgment rendered for the admission of the pleas, and that the cause ought to be remanded for further proceedings to be had therein to a final judgment, according to the foregoing opinion.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that each of the three special pleas in writing tendered by the defendant to, and rejected by the said circuit court, presented a good and valid legal defence to the action, and the said circuit court erred in *285rejecting the said special pleas and refusing to permit them to be filed.
Therefore it is considered that the said judgment of the said circuit courtis erroneous, and that the same be reversed and annulled, and that the plaintiff in error, Henry Bowler, recover against the defendant in error, Henry Huston, his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here. And it is further considered, that the cause be remanded to the said circuit court, with instructions to the said court to accept the said special pleas and permit them to be filed, and for further proceedings to he had therein to a final judgment in the case; which is ordered to be certified to the said circuit court of the city of [Richmond.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482034/ | Anderson, J.,
delivered the opinion of the court. ■
This is an action of debt which was instituted in the county court of Loudoun county, in the name of William 13. Grubb, for the use of J oseph P. Grubb, against Craven •James, executor of Mahlon Morris, deceased, on two bonds, each for the sum of $532.50, together $1,065, purporting to have been executed on the 12th day of April, 1856, by Eobort W. Morris and Mahlon Morris, jointly and severally, to the said William B. Grubb, payable, one of them, on the first day of April, 1860, with interest from the first day of January, 1856, and *287the other on the first day of April, 1861, with like interest. Both of said instruments were assigned by William B. Grubb to Joseph P. Grubb, for whose use this suit was brought.
The defendant pleaded two pleas, one non est factum, and the other, payment; on each of which issue was joined. The jury found for the plaintiff the sum of $651.81, with interest from the first day of April, 1861. Thereupon the defendant moved the court to set aside the verdict and grant him a new trial; which motion was overruled by the court and judgment entered for the plaintiff; and the defendant excepted.
In the progress of the trial, on motion of the defendant, the following bill of exceptions was signed and sealed by the court and made a part of the record, viz: Be it remembered that on the trial of this case the plaintiff having introduced evidence tending to prove that Joseph P. Grubb, the assignee of the bonds sued on in this case, and the person for whose use this suit was brought, sent his brother, Samuel 27. Grubb to Mahlon Morris to obtain from Morris an acknowledgment and ■delivery of said bonds, and then offered as a witness said Joseph P. Grubb. To the examination of said Grubb as a witness the defendant, by his counsel, objected, but the court overruled the objection of the defendant as to the competency of said Grubb, and allowed the said Grubb to be sworn as a witness, to which action of the court the defendant excepted, and tendered this his bill of exception,” &e.
It appears from the foregoing bill of exceptions that the objection to the introduction of Joseph P. Grubb as a witness was to his competency, but the ground of his in competency is not expressed; but that may be gathered from the fact of the death of Mahlon Morris, the suit being against his executor, from the character of the issues, and the purpose for which the evidence referred *288to in the bill was intoduced; and it is that Joseph P„ Grubb, the substantial plaintiff in the suit, was a party to the transactions which were put in issue by the pleas, and were the subject matter of investigation, the other party to the transaction, Mahlon Morris, being dead.
The defendant, in his plea of non est factum, craved oyer of the instruments upon which the suit iq founded; and it appears upon the face of the assignment of the first bond, that it was made on the 12th of April, 1856, and the assignment of the second bond is dated as of the same date; and it appears from the list of payments filed with the plea of payment, that they were all made subsequently to the said assignments; and it is conceded by the judge of the circuit court, in the lifetime of Mahlon Morris. Consequently, if made at all, they were made to Joseph P. Grubb, in the lifetime of Mahlon Morris, the testator of defendant. Consequently, the said Joseph P. Grubb was a party to the transaction which was the subject of investigation under the plea of payment; and the said Mahlon Morris being jointly bound with Kobert "W. Morris, if bound at all, in the bonds in satisfaction of which the payments were claimed to have been made, was a party to the transaction which was the subject of investigation under the plea of payment, as well as to that which was the subject of investigation under the plea of non est factum.
The court is of opinion that the transaction under investigation, upon the first issue being the factum of the bonds, and the evidence introduced by the plaintiff being for the purpose of showing an acknowledgment and delivery of the bonds by Mahlon Morris to his agent for him after he became the assignee thereof, shows that he relied upon the declarations and act of delivery by Mahlon Morris in his lifetime, made to him or his agent, in support of the issue on his part. The transaction, which was the subject of investigation upon that issue, was con*289sequeutly a transaction between Joseph P. Grubb and Mahlon Morris, in the lifetime of the latter, and he being dead, Joseph P. Grubb was incompetent to testify in the cause.
JBut it is contended that he was competent to testify under the issue of payments. All the payments claimed to have been made, were claimed to have been made in the lifetime of Mahlon Morris, and whether made by him or Robert W. Morris, they were payments which he was jointly bound with the said Robert to make. They were payments upon obligations, for'which the plaintiff alleges he was jointly bound, and which were in discharge pro tanto of his obligations, if any such devolved on him. JMahlon Morris, as is aptly said by counsel for plaintiff in error, “ may have been cognizant of the facts connected with the payments—the amount—source from whence derived—and the understanding as to their application.” It is immaterial whether the payments were made by him or by Robert Morris, they were made in satisfaction of his alleged obligation, which was matter in issue in this suit. Mahlon Morris was one of the original parties to these transactions, and was dead; and Joseph P. Grubb was an original party to the transactions under investigation, upon both of the issues—• to the former, if he could establish the factum by showing the acknowledgment and delivery of- the bond by Mahlon Morris to his agent after he had acquired possession of the instruments by assignment from William B. Grubb; to the latter, as all the payments were made and claimed to have been made to him in the lifetime of Mahlon Morris. He was not competent to testify in relation to their transactions, w’hen the other party, in consequence of his death, could not testify.
But his competen cyjmust be determined by his relation to the subject matter of investigation, and not by his tes- • *290timony given at the trial. Mason & als. v. Wood, 27 Gratt. 783. The principles of that decision are reaffirmed in Grigsby & als. v. Simpson, ass’ee, &c., 28 Gratt. 348. Judge Christian, speaking for the whole court, said: “If the contract or transaction- was with a person who has deceased, the other party is not admitted as a witness at all, and cannot testify to any fact in the ease.”
The court deems it unnecessary to express any opinion upon the exception to the ruling of the court refusing a new trial, as the cause will have to go back upon the assignment of error, already considered, and the defendant below will have the benefit of a new trial, and inasmuch as there is no question of law arising upon the latter assignment of error, which needs to be decided now for direction to the court below in the new trial, and it is not proper for this court, as there is to be another trial, to express unnecessarily any opinion on the facts of the case as they are set out in the bill of exceptions.
A writ of error was awarded by the circuit court of Loudoun county to the aforesaid judgment of the county court, which affirmed the same, and the cause is here upon a writ of error to the judgment of the said circuit court.
The court is of opinion to reverse the judgment of the circuit court with costs, and to remand the cause to said circuit court with instructions to that court to reverse the judgment of the county court, to set aside the verdict and grant the defendant helow a new trial, upon which second, trial, if Joseph P. Grubb should be again offered as a witness he should be excluded.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the county court of Loudoun erred in overruling the objection of the defendant below to the competency of Joseph P. Grubb to testify *291in the canse, and in admitting him to give testimony to the jury on the trial of the issues in the cause, and that consequently the judgment of the circuit court affirming the judgment of the county court is erroneous. It is therefore considered, that the judgment of the circuit court be reversed and annulled, and that the defendant in error do pay to the plaintiff in error his costs expended in the prosecution of his writ of error here. And the cause is remanded to the said circuit court with instructions to reverse the judgment of the county court, set aside the verdict of the jury, and grant the plaintiff in •error a new trial. And if upon said trial the said Joseph P. Grubb should be offered again as a witness, he should be excluded as incompetent to testify in the cause, according to the principles declared in the opinion of this court filed with the record.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481917/ | Staples, J.
The question presented in this case is substantially the same as that just decided. The only difference is, that here the lien asserted is under an attachment sued out against the debtor as a non-resident. It is claimed that this lien binds the property in the possession of a bona fide purchaser where title is derived from a parol contract with the debtor long before the lien of the attachment commenced. There is no conflict of testimony in respect to the terms of *the contract, and the payment of the purchase money in manufactured tobacco, as agreed by the parties, and the delivery of the possession of the house and lot to Moss & Brother, the purchasers. If the deed made by Riddick, the vendor, car be considered as ever accepted by Moss & Brother, it did not affect the pre-existing equitable estate acquired under the parol contract, complete and fully executed before the delivery of the deed. But it may be fairly presumed that Moss & Brother did not intend to accept the deed until the wife of Riddick had relinquished her contingent right of dower. It was returned by them to Riddick for that purpose; but the relinquishment was never made or the deed restored to the purchasers, although demanded by them.
The pretence set up by Riddick, years after the contract was made and the deed signed by him, of a defect in the quality of the tobacco, is not sustained by a particle of evidence, and is disproved by the only witness of the appellees.
The case presented is, therefore, of a parol contract so far executed as to entitle the purchaser to a deed without any conditions imposed; the deed improperly withheld by the vendor, so that it could not be recorded; possession taken and held uninterruptedly for nearly ten years, until this attachment was sued out by the appellant in J873. The case, as the preceding one just decided, illustrates very strongly the rigorous operation of the recording acts, according to the construction now sought to be given them. The attachment lien confessedly only binds such interest as the debtor has; and here lie had notoriously, years before, parted with every vestige of interest he had except the naked legal title; and that title he withheld in violation *of his express promise. My opinion, therefore, is. that the decree of the circuit court is right, and that the same must be affirmed.
Moncure, P., and Christian, J., concurred in the opinion of Staples, J.
Decree apeirméd. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481918/ | Burks, J.,
delivered the opinion of the court.
In November i860, the appellee, ThomasNalle, recovered a judgment in the county court of Culpeper against William B. Ross and James A. Beckham, his surety, and caused the same to be docketed in said county court on the 3rd day of November, 1865. At the date of the judgment, Beck-ham was seized of several tracts of land in the county of Culpeper, which he conveyed to John Minor Botts and Franklin '^Stearns by deed dated the 10th day of _ December, 1862, and admitted to record in the clerk’s office of said county court on the llth day of December, 1862.
Between the date of the judgment and the date of docketing thereof, John C. Tliom and William A. Thom, as the executors of Lucy Lewis Taylor, by deed conveyed to the said William B. Ross, a tract of land in said county called “Berry Hill,” which by the will of their testatrix they were empowered to sell; and Ross and wife thereupon conveyed the same to the appellant Peter B. Borst; both of which deeds were afterwards admitted to record in the county court aforesaid.
Nalle filed his original bill in the circuit court of Culpeper against Ross, Sternes, and the heirs of John Minor Botts (the latter being dead), to subject to the lien of his judgment the lands conveyed as aforesaid by Beckham to Botts and Stearns, alleging in the bill, among other things’, that Ross was insolvent. Some of the heirs of Botts answered the bill; and denying that the judgment of the complainant constituted any lien on the lands purchased of Beckham, and .averring that the “Berry Hill” estate conveyed by Ross to Borst, if there was any lien at all, was first liable to the satisfaction of the judgment, prayed that the complainant might be required to proceed against that estate, “as the lands of the principal debtor, and as the lands last aliened.”
Thereupon, Nalle filed his amended and supplemental bill against the parties defendant to the original bill (except Ross who had died), and against the personal representative and heirs of Ross, the heirs of Beckham and against Borst, seeking to subject to the satisfaction of his judgment the “Berry Hill” tract of land owned by Borst, and charging that it was primarily liable for the payment of said judgment. *Borst answered the bill, denying that the judgment was any lien on the “Berry Hill” tract; first, because, as he averred, the judgment was not docketed within the time prescribed by law; and second, because, as he further averred, Ross was never so seized of said land as to make it subject to the lien of the judgment. As to this second ground of objection, he. stated in substance, that the executors of Mrs. Taylor were empowered by the will of their testatrix to make sale of her real estate, of which “Berry Hill” was a part; that they employed the said William B. Ross as their agent to make sale of “Berry Hill” at a price of not less than $135,000 in Confederate currency; that Ross, as such agent, did make the. sale to him (Borst); that he (Borst) paid the purchase money to one of the executors, and after *141the payment was completed, that a deed of conveyance of the land from the executors to Ross, which had been theretofore prepared, signed and acknowledged, was then delivered to Ross, and at the same time a deed of conveyance of the same land from Ross was delivered to him (Borst) — the delivery of the two deeds being contemporaneous acts — and both deeds were admitted to record at the same time; and that in the whole transaction, Ross asserted no claim to the land, acted merely as the agent of the executors, and never in fact at any time had any beneficial interest whatever in the land.
These statements of the answer were fully proved by the deposition of John C. Thom (one of the executors of Mrs. Taylor, and a grantor in the deed to Ross), and Borst gave his own deposition to the same effect. No other depositions were taken in the case. Exceptions were filed to the depositions on the ground of the alleged incompetency of the witnesses, and the illegality *of parol evidence to establish the facts sought to be proved thereby.
.At the hearing of the cause, the court sustained the exceptions taken to the incompetency of the witnesses, held the land of Borst to be. primarily, and the land of Botts and Stearns to be secondarily liable to the Hen of the complainant’s judgment, and ordered an account to be taken of the fee simple and annual value of Borst’s land and of the liens thereon, including the lien of the complainant’s judgment. Erom this decree, an appeal was applied for by Borst, and allowed by one of the judges of this court.
It is objected, in the first place, by the appellant Borst. that even if Ross were the beneficial owner of the “Berry Hill” tract of land at the time he conveyed it to the appellant, still it was not bound by the judgment, because it was not docketed before the conveyance to him and within the time prescribed by law. The same objection is urged by the appellees owning the land purchased of Beckham.
This objection, we had supposed, was fully answered by the decision in Hill v. Rixey & als., 26 Gratt. 72, made by this court since an appeal was allowed in this case.
Notwithstanding that decision, however, learned counsel still insist, that the docketing of a judgment under § 8, ch. 186, Code of 1860. is not within the operation of the act passed March 3 4, 1862, entitled “an act to extend the time for the exercise of certain civil rights and remedies:” (acts of 3861-62, ch. 81, p. 99) or of the act with the like title passed March 2, 1866, (acts of 3863-66, p. 191, Code of 1873. ch. 3 46, §§ 6, 7, pp. 998-99): that the docketing of a judgment as required by the Code is not “an act to be. done to preserve or prevent the loss of a civil right *or remedy” within the meaning of those terms as employed in the aforesaid acts of 3 862 and 1866; and therefore that Nalle, having failed to docket his judgment within the time prescribed by the statute, and conveyances having beei made to the purchasers of the lands and admitted to record long before the docketing, the judgment constituted no lien on the lands conveyed.
Let us inquire for a moment into the origin, nature, and extent of the judgment Hen. At common law, lands of the debtor could not be taken to satisfy his debts, except judgments due to the king, and judgments therefore did not operate as liens on land. But by the statute of Westm. 2, 13 ' Edw. 3, ch. 18, substantially adopted in this I state, (1 R. Code, ch. 134, § 1, pp. 524, 525, 526, 527), a new execution was provided, the writ of elegit, by which a moiety of the lands of the debtor could be subjected to the satisfaction of the judgment.
The statute, however, did not in express terms give a lien on the land. It provided for j the writ, and prescribed the form of it. j By its terms, the officer was required to j deliver to the creditor all the goads and j chattels of the debtor, saving the oxen and beasts of his plough, and also a moiety of all his lauds and tenements whereof the debtor at the day of obtaining his judgment was seized, or at any time afterwards, by reasonable price and extent, to have and to hold the said goods and chattels to the creditor as his own proper goods and chattels, and the said moiety as his freehold, to him and his assigns, until thereof the judgment be satisfied, (“until he shall have levied thereof the debt and damages aforesaid).”
It was by the judicial construction given to this writ, that the judgment was said to be a lien on the *land. The lien resulted from the mandate of the writ to deliver to the creditor, by reasonable price and extent, a moiety of all the lands and tenements of the debtor, whereof he was seised at the date of the judgment or at any time afterwards. The lien was an incident of the writ and depended for its existence and continuance, upon the capacity to sue out the writ. As long as this capacity lasted, even although revived after being temporarily suspended, the lien continued, and whenever it finally ceased, the lien which was dependent upon it was extinguished.
As the mandate of the writ extended to all the lands and tenements of which the debtor was seised at the date of the judgment, j or at any time afterwards, it was by force of j this mandate also that the lien of the judgment over-reached all subsequent conveyances, although made to purchasers for valuable consideration without notice of the judgment, and extended to all the lands of the debtor within the jurisdiction of the state.
In the interest and for the protection of such purchasers, the act of March 3, 3843, was passed, which provided for the docketing of judgments; and further, that “no judgment, decree, bond or recognizance thereafter rendered, should bind the land of any party to the same against a bona fide purchaser for valuable consideration without notice, unless the same should be docketed in the county or corporation in which the land lay, within twelve months after the rendition or forfeiture of such judgment, decree, bond, or recognizance, or ninety days before such land shall *142have been conveyed to such purchaser.”
Except as thus modified, in respect to purchasers, by the -act of 1843, the lien of the judgment continued the same, in all respects, as to its nature, extent, and the mode of enforcing it, until the general revision of *the laws in 1849. Up to that time, as we have seen, it was a mere incident of the writ of elegit, resulting by construction from the mandate of the writ, and dependent for its existence and continuance on the capacity to sue out the writ.
It was now made for the first time, as to judgments thereafter to be rendered, an express, direct, positive, absolute lien on all the real estate of or to which the judgment debtor should be possessed or entitled, at or after the date of the judgment, or if it was rendered in court, at or after the commencement of the term at which it was so rendered, with the same qualification as to purchasers for valuable consideration witho.ut notice, as was made by the act of 1843. Code of 1860, ch. 186, §§ 6,'8. i
The writ 'of elegit was preserved and made to conform" to the statutory lien of the judgment, and an additional remedy in eqdity was given for the enforcement of the lien. Idem, § 9.
The lien of the judgment being now express, positive, and in no way dependent on the elegit, and the remedy in equity being preferred in practice, the elegit soon fell into' disuse, and was finally abolished by the legislature. Code of 1873, ch. 183, § 26, p. 1175.
' It can hardly be said of such a lien as we have described, that it is not' a “civil right” and one of a high order; seeing that is is, under the law as it stands, and by force of 'the law, a plain, direct, positive charge upon real estate. Having once attached, it continues; unless it is in 'some way discharged, as long as the real estate on which it rests remains the property of the judgment debt- or. It accompanies the land in its descent to the heirs, follows it into the possession of volunteers, and even into the hands of purchasers for value, if they have notice, or even if they do not have *notice, provided the judgment is docketed in the manner, and within the time prescribed .by law.
It is a mistake to suppose that the 8th section of ch. '186, of the Code of 1860, (amended in the Code of 1873, ch. 182, § 8,) was intended to create a lien against the purchaser by docketing the judgment. The lien is created by section 6, and attaches to all the real estate of the debtor, except so far as it is qualified by section 8. The qualification is, that it shall not extend to real estate aliened after judgment to purchasers for value who have no notice of the judgment, unless the judgment be docketed in the manner and within the time prescribed. The implication is irresistible, that if so docketed it shall be a lien: that is, that the lien which was created by section 6 shall continue as to such purchasers.
Section 8 is substantially the same a's section 4, of the act of 1843 before referred to, as may be seen by comparing the two sections.
In the opinion of Judge Stanard, in Taylor's adm'r v. Spindle, 2 Gratt. 44, 69, in which Cabeee and Baedwin (Judges) concurred, discussing .the nature and extent of the judgment lien under the law as it then stood, and referring to the act of 1843, he said: “The late act of March, 1843, respecting the docketing of judgments, clearly evinces that in the opinion of the legislature, the Hen of the judgment creditor operated from the date of the judgment, and continued thenceforward without qualification or impediment, while the^ creditor had or could get the capacity to issue the elegit on it, irrespective- of intervening abatements, suspensions or delays; and that the judgments docketed according to that act, would in like manner, preserve the past, and continue the existing lien indefinitely: that is, until from some supervening cause, it should be lost by the loss *of the rightful capacity to sue ex-cution on the judgment.”
We have said enough, we think, to show that by a proper construction of the several statutes, the lien of a judgment attaches to and follows the lands of the debtor into the hands of a purchaser for value without notice, and continues, provided the. judgment is docketed; and if so docketed, that it is a lien from the date of the judgment as against such a purchaser, in like manner and with like effect, as against the debtor: and while the docketing of a judgment does not per se create a lien as against a purchaser for value without notice, yet it is an act necessary under our statutes to be done in order to preserve or prevent the loss of the lien as against such purchaser.
It follows, therefore, that, in our opinion, in computing the time within which a judgment -is required by section 8, ch. 186, of the Code of 1860, to be docketed in order to preserve the lien of such judgment against purchasers, the period which, elapsed between the 17th day of April 1861 and the 2nd day of March 1866 is not to be computed as a part of such time, and therefore the judgment of Nalle, which appears to have been docketed on the 3rd day of November, 1865, has the same binding force against the alienees of Ross and Beckham in respect of the lands actually owned and aliened by the latter, as if no conveyances had been made by them.
We have dwelt longer on this branch of the case than we otherwise should have done, because the learned counsel for the appellant seemed to suppose, that in deciding the case of Hill & als. v. Rixey & als., supra, the court was not in that case fully possessed of all the views presented in argument in this.
*We proceed to consider the other questions presented by the assignment of errors.
These relate altogether to the “Berry Hill” tract of land conveyed by the executors of Mrs. Taylor to William B. Ross, one of the judgment debtors, and by Ross conveyed to the appellant Bors.t.
If John C. Thom was a competent witness, and his testimony was admissible to *143establish the facts which were intended to be proved by it, then beyond all dispute it is clear, that William B. Ross never at any time had any estate in this tract of land beyond the naked legal title, and that title he had for an instant only. He never had, even for an instant, the least beneficial interest in it. He was a mere conduit to pass the legal title to Borst the real owner. This being so, and the recording acts having no application to the case, there was nothing substantial to which the lien of Nalle’s judgment could attach. Authorities without number might be cited to show, that where statutory enactments do not interfere, the creditor can never get by his judgment more than his debtor really qwns, and to this he will be confined, as he should be, by courts of equity. In support of this proposition the following apposite authorities are cited by the appellant's counsel. White v. Carpenter, 2 Paige R. 217, 238, 266-7; Kiersted v. Avery, 4 Paige R. 9; Buchan v. Sumner, 2 Barb. Ch. R. 165, 207; Lownsbury v. Purdy, 11 Barb. R. 190; Towsley v. McDonald, 32 Barb. R. 604; Sieman v. Austin, 33 Barb. R. 9; Sieman v. Schenck, 29 New York R. 598; Smith v. Gage, 41 Barb. R. 60, 71-75; Schlœper v. Corson, 52 Barb. R. 510; Robinson v. Robinson, 22 Iowa R. 427; Thomas v. Kennedy, 24 Iowa R. 397; Brown v. Pierce, 7 Wall. 205, 218; Baker v. Morton, 12 Wall. U. S. R. 150.
Was John C. Thom a competent witness? lie was *one of the grantors in the deed to Ross; but he conveyed as executor and with covenant of special warranty. Pie was not a party to the suit, and had no interest in the result of it, nor in the record as an instrument of evidence. He was, therefore, clearly a competent witness at common law. He was not disqualified by the statute. Code of 1873, §§ 21, 22. The object of that statute was to remove disqualification from witnesses, not to impose it.
It only remains to consider, whether parol evidence was admissible for the purpose of showing, that notwithstanding the land was conveyed to Ross. Borst was the real or beneficial owner of it.
The proof is clear and satisfactory, that the executors of Mrs. Taylor employed Ross as their agent to make sale of the laud; that Ross, as such agent, made the sale to Borst; that Borst treated with Ross as agent only, and paid the purchase money to the executors; and after the payment of the purchase money was completed, the executors delivered to Ross the deed which had been sometime before prepared and acknowledged, by which the laud was conveyed to Ross, and at the same time Ross made and delivered a deed to Borst, conveying to him the same laud. We are satisfied from the evidence, that the two deeds were delivered and admitted to record at the same time.
We are of opinion, that this proof estab, lishes a trust, which by some text writers is denominated a resulting trust, and by others an implied trust. It matters not to which of these two classes of trusts it properly belongs, as both are founded on the presumed intention of the parties, both arise by operation of law upon the transactions of the parties, and the authorities generally concur, that both may be established by parol evidence.
*The evidence does not show any express agreement between Borst and Ross, that the latter should take the title to himself, but it does show conclusively that Borst paid the purchase money to Taylor’s executors before the latter delivered the previously prepared deed to Ross. If one pays the purchase money of an estate and takes the title deed in the name of another, in the absence of all evidence of intention, the law presumes a trust, from the natural equity that he who pays the money for the property ought to enjoy the beneficial interest. 1 Perry on Trusts, § 124. This presumption is stronger or weaker according to circumstances, and may be wholly rebutted. In this case it is greatly strengthened by the circumstances proved. No unfavorable deduction is to be drawn from the fact that the amount of Confederate money paid by Borst was larger than the sum received by Taylor’s executors: the difference in the sums expressed as the consideration in the two deeds was paid by Borst to Ross, and was doubtless composed of Ross’s commission for making the sale and the price of the two small parcels of land owned by Ross in his own right, and conveyed along with the “Berry Hill” tract in the same deed to Borst. This latter circumstance may also account for Ross’s wife uniting in the deed. This was done, no doubt, to secure the relinquishment of her contingent dower interest in the two small parcels.
By sections 7 and 8 of the English Statute of Frauds, 29 Car. 2, ch. 3, all declarations or creations of trusts or confidences of lands are required to be manifested and proved by writing, except such as arise or result by the implication or construction of law. This statute in varied forms has been adopted in most, if not in all of the states of the union, and *in perhaps the greater number, sections 7 and 8 of the English statute are in force. In Virginia, however, these two sections form no part of our statute. This fact is noticed and commented upon by the judges in the case of Bank of United States v. Carrington & others, 7 Leigh 566, and the opinion is there strongly intimated, that direct or express trusts are not within the operation of the Virginia statute, and it was so expressly held by the special court of appeals in Walraven v. Lock & others, 2 Patt. & Heath. R. 547. Notwithstanding, however, the decision in the last-named case and what was said by the judges in the former, this court in the very recent case of Sprinkle & als. v. Hayworth & als., 26 Gratt. 384, 392, considers the question as not j settled. “We do not mean to admit, however,” ] says the president, delivering the opinion of j the court, “that there is any difference in | effect between the English statute and ours arising from the omission in the latter of j the seventh and eighth sections of the for-l mer. That is a question which is unnec*144essary and not intended to be discussed in this case.” It is alike unnecessary to be determined in the case now before us, and we express no opinion upon it. This case is disposed of under the rules and principles governing _ resulting and implied trusts, which, it is clear, may be established by parol evidence. Bank of United States v. Carrington & others, supra, and authorities there cited; Phelps v. Seely & als., 22 Gratt. 573.
Parol evidence was admissible in this case upon other grounds perhaps than those already stated, even if the case had been one of express trusts.' The trusts here were fully executed by the parties long before this litigation was commenced. They are not controverting, but on the contrary admit *them; and it would seem, that strangers, the creditors of one of the parties, and others who do not claim in privity with the latter, should not be heard to make an objection to the nature of the evidence, which the parties themselves do not make. The doctrine of estoppel, as a general rule, applies only between parties and their privies. and as strangers are not bound by an estoppel, neither can they take advantage of it. Mauzy v. Sellers & als., 26 Gratt. 641.
The case of Sieman v. Austin, 33 Barb. R. 9, besides being otherwise interesting, is instructive on this point. A judgment creditor of Youngs, the apparent but not the real owner of lands, sought to subject the land to his judgment after Youngs had executed by deed of conveyances to the real owner, the trust with which he had been invested by parol at the time of taking the title to himself; and one of the questions before the court was, whether the trust, which seems to have been an express one, being executed, parol evidence was admissible as against the judgment creditor, to show the true nature of the transaction and of the title. EmoT, J., in his opinion, concurred in by one of the two remaining judges, said, “Now if the statute of frauds would have been in the way of the subjection of this property to the trust, if Youngs had never recognized or acted upon it, that was a defect in the evidence of the trust and not in the nature of the trust itself. The law refuses its aid to enforce agreements creating trusts or charges upon lands, when they rest altogether in parol, not because the trusts are therefore void, but because it will not permit'them to be proved by such evidence. But when a person who has received the title to lands purchased for the benefit of another, although without having declared the fact in writing, recognizes and fulfils the * trust, it is not the duty of a court to deny its existence. ***** This is no fraud or injustice to the creditors of Youngs, for the property never belonged to the debtor, nor did he obtain credit, much less incur this particular debt upon its possession. A debtor will riot be permitted to convey away his property, -either real or personal, and relieve it from incumbrances occasioned by his debts; but there is nothing to prevent his restoring to others their property, if it has been placed in his hands. Nor is there any reason why the property of others should be subject to the payment of his debts, if he is honest enough to refuse to avail himself of an opportunity to use it for that purpose. If it should be established, or should be conceded, that the rules of law would have defeated the enforcement of the rights of the plaintiff, in case Youngs had resisted and denied them, that question could not arise unless Youngs chose to avail himself of it. When he has admitted and acted upon the trust, and conveyed the property to its true and equitable owner, it cannot be tolerated, that his creditors should, question the title, or attempt to assert their lien upon what was really never his.”
The conclusion we have reached in this case is not to any extent based on the deposition of the appellant. He was incompetent to testify in his own behalf. He was a party to the suit, directly interested in the result of it, and a party to the transaction, the subject of investigation, and William B. Ross, the other party to the transaction, was dead when the deposition was given. The circuit court of Culpeper did not err, therefore, in sustaining the exception to said deposition: but it did err in sustaining the exceptions to the deposition of John C. Thom, in disregarding said deposition as evidence in the cause, and in holding *the “Berry Hill” tract of land conveyed to the appellant bound 'for the payment of the judgment of the appellee Nalle. The amended and supplemented bill of the appellee Nalle, so far as it seeks to subject to his judgment the “Berry Hill” tract of land should be dismissed, and the two small parcels of land, which was conveyed by Ross to the appellant being bound by said judgment, should be subjected to its payment before the-lands conveyed to Botts and Stearns are resorted to for that purpose.
The appellant’s costs in this court should be paid by the appellees, Stearns and the parties claiming under John Minor Botts. The decree of the said circuit court must be reversed and a proper decree entered in conformity with this opinion.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said decree is erroneous in sustaining the exceptions to the deposition of the witness John C. Thom, because of the alleged incompetency of said witness, and in not overruling said exceptions, and the other exceptions taken to the 3rd, 4th, 5th, and 6th questions and answers to the same in said deposition ; and that said decree is further erroneous in holding the “Berry Hill” tract of land in the amended and supplemental bill of the complainant Thomas B. Nalle mentioned, liable to the lien of the judgment of the said Thomas B. Nalle in said bill mentioned, and consequently further erroneous in ordering the accounts *directed by said *145decree so far as they relate to the said “Berry Hill” tract of land: it is therefore decreed and ordered, that the said decree, so far as hereinbefore declared erroneous, be reversed and annulled, and that the appellees Beverly B. Botts, Lunceford L. Lewis and Rose his wife, Daniel S. Lewis and Isabella his wife, B. W. Hoxie and Mary M. his wife, Franklin Stearns, and John F. Lewis, administrator of John Minor Botts, deceased, the said administrator out of the estate of his intestate in his hands to be administered, and the other said appellees out of their own proper estates respectively, do pay to the appellant his costs by him exjiended in the prosecution of his said appeal here. And this court, pronouncing such decree as the said circuit court ought to have pronounced, it is further decreed and ordered, that all of the exceptions taken to the deposition of the witness, John C. Thom, be overruled; and that the amended and supplemental bill of the complainant, Thomas B. Nalle, so far as the same relates to the “Berry Hill” tract of laud, conveyed by the executors of Lucy Lewis Taylor, deceased, to William B. Ross, and by the said Wm. B. Ross and wife conveyed to the appellant, and so far as said bill seeks to subject said “Berry Hill" tract to the judgment of the complainant in the bill mentioned, be dismissed; and that it be referred to one of the commissioners of the said circuit court to take an account of the two parcels of land said to contain 130 acres mentioned in the deed of conveyance from said Ross and wife to the appellant (a copy of which deed is filed as an exhibit in the cause,) and also of the lands in the complainant’s original bill mentioned, the same conveyed by James A. Beckham to John Minor Botts and Franklin Stearns; and of the fee simple and annual value of said several tracts *and parcels of land, and of the liens thereon and their priorities, if any. including the lien of the complainant’s said judgment, and make report to the said circuit court; and upon the coming in of said report, that the said two parcels of land of 130' acres conveyed as aforesaid, to the appellant, be first subjected to the payment of the complainant’s said judgment, and if they prove insufficient to satisfy said judgment, that the lands aforesaid conveyed to Botts and Stearns be subjected for the deficiency. And this cause is remanded to the said circuit court for further proceedings to be had therein in conformity with the opinion and principles herein expressed. Which is ordered to be certified to the said circuit court of the county of Culpeper.
Decree reversed.
Judgment Lieu — Extent and Effect. — The words of Judge Burks in the opinion of the principal case “that where statutory enactments do not interfere, the creditor can never get by his judgment more than his debtor really owns, and to this he will be confined, as he should be by courts of equity” are quoted in many subsequent decisions and the principle set forth therein is followed in many others. See Coldiron v. Asheville Shoe Co., 93 Va. 373; Burkholder v. Ludlam, 30 Gratt. 255, and note; National Bank v. Turnbull, 32 Gratt. 695; Hughes v. Harvey, 75 Va. 210; Cowardin v. Anderson, 78 Va. 90; Nutt v. Summers, 78 Va. 173; Powell v. Bell, 81 Va. 233; Braxton v. Bell, 92 Va. 237; Floyd v. Harding, 28 Gratt. 401, and note; Young v. Devries, 31 Gratt. 309; Summers v. Darne, 31 Gratt. 800.
Witnesses — Death of Party to Contract.— See Grigsby v. Simpson, 28 Gratt. 348, and note; Barton’s L. Pr. (2nd Ed.) 614. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481919/ | Moncure, P.,
delivered the opinion of the court. After stating the case, he proceeded:
The plaintiff in error, in his petition for a writ of error, assigns but two errors in the judgment, both of them being in the instruc*167tions given by the court to the jury. The chief of these assignments of error in the instructions is,
*lst. In ruling that fraud and false swearing as to one independent subject of insurance avoided the whole policy.
There is a provision in the policy that “all fraud, or attempt at fraud, or false swearing on the part of the assured, or on the part of any person in his behalf, shall cause a forfeiture of all claim under this policy.”
On the trial of this cause the defendants, to sustain the issue on their part, proved that the claim of the plaintiff for his alleged loss on his stock of grain. &c., named in said policy, was fraudulent, and false; and that the amount of loss designated in his proof of loss sworn to by him, was fraudulent and false, so far as the said stock of grain, &c., was concerned; but it was not shown that the claim of the plaintiff or his proof of loss as aforesaid, as to the buildings, or machinery and fixtures named in said policy was fraudulent or false.
The argument before this court of the counsel for the plaintiff proceeded upon the concession that there was such fraud and falsehood, so far as the said stock of grain, &c., was concerned — a fact which is certified in the record as having been proved on the trial, and was in effect found by the jury, and which, therefore, could not be denied by said counsel; and he admitted that, by reason of such fraud and falsehood, the plaintiff had forfeited all claim under the policy as to the said stock of grain, &c.; but he contended lhal as it was not shown that the claim of the plaintiff, or his proof of loss as aforesaid, as to the said buildings or said machinery and fixtures was fraudulent or false, the plaintiff had not forfeited his claim under the policy as to the said buildings or said machinery and fixtures. The said counsel also admitted that it was perfectly competent for the parties to argue that “all *fraud or attempt at fraud or false swearing on the part of the assured, or on the part of any person in his behalf, shall cause a forfeiture of all claim under the policy,” not only as to the particular subject named in the policy to which the said fraud or false swearing relates, but also as to all other subjects therein named.
The question to be now considered and decided therefore is one of construction merely; that is, whether, according to the true construction of the provision aforesaid, it was thereby intended that for a fraud, or attempt at fraud, or false swearing on the part of the assured, in relation to one only of several subjects embraced in one policy of insurance, as is this case, there should be a forfeiture of all claim under the policy, not only in regard to the particular subject aforesaid, but also in regard to all other subjects embraced in the policy, or only a forfeiture of all claim under the policy in regard to such particular subject.
The counsel for the plaintiff maintains the latter of these alternative constructions; while the counsel for the defendants maintains the former. Which of them is correct is the question which this court has now to solve.
We are all of opinion that the former is the correct construction, and that the forfeiture is total.
Supposing that to have been the true intention of the parties, we know not how it could well have been expressed in plainer language. “All fraud,” &c., “shall cause a forfeiture of all claim under this policy.” A more comprehensive word than “all” cannot be found in the English language; and it certainly has in this case the comprehensive meaning contended for by the counsel of the defendants, instead of the restricted meaning contended for by the counsel for *the plaintiff, unless very; strong reasons can be furnished for construing it in the latter sense.
So far from seeing any such reasons, we think there are strong reasons for believing that the real intention of the parties in making the provision aforesaid corresponded with the literal terms in which it is expressed, and that it was intended to create a general forefeiture as to all the subjects embraced in the policy, and not a forfeiture only as to the particular subject to which the fraud or false swearing might relate.
A policy of insurance is a contract, in the making of which, peculiar and great confidence must, of necessity, be reposed by the insurer in the insured. Good faith and fair dealing are especially required by the former of the latter. The former must mainly depend on the oath of the latter, and, the account he may render to show the fact of the loss of the property insured, and the amount of the damage incurred by him, for which he claims indemnity under the policy. Where there is no' good reason to suspect fraud or false swearing on the part of the insured, in making out his preliminary proof of loss, the insurer generally requires no further evidence to sustain the claim of the insured than his own oath and account, unless it be “the certificate under seal of a magistrate, notary public, or commissioner of deeds, nearest the place of the fire, and not concerned in the loss, or related to the assured, stating that he had examined the circumstances attending the loss, knows (he character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to such an amount as the said lofficial shall certify.” Such a certificate is generally provided for in a policy of insurance, and is provided for by the policy in this case.
*j\tow where, instead of there being no good reason to suspect fraud or false swearing on the part of insured in making out his preliminary proofs, it is proved that his claim for his alleged loss on one of the subjects insured was fraudulent and false, and that the amount of loss designated In his said proof of loss, sworn to by him as aforesaid, was fraudulent and false, so far as the said subject was concerned, is it unreasonable for the policy to provide that in such a case the insured shall forfeit all claim under the policy, not only as to the said *168subject, but also as to all other subjects included in the policy? Having been proved to be guilty of fraud and falsehood in regard to one of the subjects included in the policy, it is not unreasonable to suppose that he may be guilty of the like wrongs in regard to the other subjects included therein. He may be, so guilty, and the insurer may have no means of providing such guilt. He may himself have been the author of the burning of which he complains, or he may have obtained the insurance for the very purpose of obtaining money by committing fraud and perjury in regard to one or more of the subjects insured. He was capable of either of these crimes, as he was capable of the crime which was proved upon him.
We therefore think the construction contended for by the counsel for the defendants is a reasonable one, and that it is the true one. especially as it accords with the literal terms of the provision in question.
The learned counsel for the plaintiff, in his argument in this case, referred to a great many decisions of other States and countries, for the purpose of sustaining his views of the case, and especially of the question we are now considering. He referred to no decision of this court, because there is none on the question; *and he admitted that he could find no decision of ■any other court upon the very question in issue; which is certainly very strong negative evidence that no such decision exists. We have referred to all these decisions, or at least all of them, which, from the statement of the learned counsel in regard to them, seemed to be material to be referred to by us; and none of them seem to be in conflict with the views we have expressed. If any of them be so, we do not think they expound the law correctly, and we are therefore unwilling to be guided by them. The learned counsel argues, that though the policy in this case is a contract entire in form, being a contract by which “the Virginia Fire and Marine insurance company of Richmond, in consideration of the receipt of one hundred and twenty-five dollars, do insure (for one year) David W. Moore and his legal representatives five thousand dollars, to wit,” &c. Yet he contends that it is a several contract in substance, because it proceeds to value severally the different parts of the subject insured as follows, to wit:
“2,000 on his new wooden flour and corn mill building, moved by water power, and wooden and graveled lumber house connected. &c.
“$1,000 on machinery and fixtures of all kinds, including water wheel and mill stones in said mill building; and $2,000 on his stock of grain, flour, meal, offal and empty barrels and bags in said mill building and lumber house,” &c.
• And he argues, that the provision of forfeiture in question must be construed precisely in the same way in this contract as a like provision would be construed in a several policy on each of the subjects insured. In other word, that this policy, though joint in form, is several in substance, and must be construed accordingly, *as well in regard to the clause of forfeiture in question as to every other part of the policy. He applies to the case the rule of construction, reddendo singula singulis. That rule applies to many cases arising under policies of insurance, as some of the cases cited by the learned counsel show; but it does not apply to this case for reasons already stated, it being the manifest intention of the parties, as it is the express declaration of their contract, that “all fraud,” &c., “shall cause a forfeiture of all claim under this policy.” Where, in reason, is the difference between this case and a case in which the different parts of the same subject are included in one valuation, in regard to the clause in question? Suppose here the whole subject insured had been valued at $5,000, without any separate valuation of the different parts of the subject, and there had been fraud as to one of the parts only, would not all claim under the policy, as well to the other parts as to that part of the subject, have been forr feited? Certainly so, as all will admit. But where, in reason, is the difference between the two cases? What has the mode of valuation of the subject, whether it be joint or several, to do with the construction of the clause of forfeiture for fraud? Is not the evil of the fraud the same in either case? Is not the presumed intention of the parties in regard thereto the same in either case? And do not the literal terms of the clause apply alike to each case?
The policy in this case is an entire contract, notwithstanding the separate valuation of the different parts of the subject insured. That separate valuation was intended for the benefit of the insurers, and not the insured. The latter would have been benefited by letting the joint valuation of the whole subject insured remain at the sum of $5,000 fixed in the policy, instead *of apportioning it among the different parts of the subject, as is afterwards done in the policy. By letting the joint valuation remain at the sum .of $5,000, that would have been the only limit of the right to recover the actual value of any part of the subject insured which might be lost by any cause insured against. Whereas, by apportioning the amount of the joint valuation among the different parts of the subject, the valuation of each part is the limit of the right to recover for any loss sustained on account of such part. It cannot be supposed that either of the parties, much less the insurers for whose benefit alone the separate valuation was made, could have intended that it should have the effect of taking from them the benefit of the provision of the policy in regard to fraud or false swearing as to every part of. the subject insured, except as to that part to which such fraud or false swearing might directly and specially relate. We have seen both reason and the literal terms of the policy confirm the view, that in every such case of fraud or false swearing, the forfeiture extends to all claim under the policy on account of the subject insured or any part thereof.
*169There are cases, it is true, in which it has been held, and no doubt properly, that a policy may be avoided as to a part of the subject insured, and valid as to the rest, even though the language of the policy declaring it to be void in such a case may seem to be general, and apply to the whole policy. As, for instance, in a case in which a policy declares that it shall be void for any subsequent alienation by the insured. There, if only a part of the subject be aliened, and the risk as to the rest cannot be increased by such partial alienation, the policy as to the rest would not be thereby avoided, but would remain in full force, in *pursuance of the presumed intention of the parties. But such a construction has never been applied, and can never be applied, to a case like this, of fraud and false swearing which pervades and avoids the whole policy. To such a case the maxim, falsum in uno, falsum in omnibus, applies. The insured, having been convicted of falsehood in, regard to one of the subjects insured, will be considered as false in regard to all the rest. Suppose the parties had been asked when they entered into this contract, whether they intended that the forfeiture for fraud and falsehood of the assured as to one of the subjects insured, should be confined to that subject, or extend also to all the other subjects insured in the same policy, what would have been their answer? Can anybody doubt? Certainly the insurers would have answered, “the latter;” and surely the insured could not have answered otherwise; for that would have broken off the contract. The language of the policy, as already shown, literally accords with this obvious intention of the parties.
In regard to the first assignment of error, we are therefore of opinion, that the circuit court did not err “in ruling that fraud and false swearing as to one independent subject of insurance avoided the whole policy.”
The other of the two assignments of error in the instruction is,—
2d. That the court extended the penalty of forfeiture to any false representation or false swearing as to the amount and value of the property insured and destroyed, made either in the contract of insurance, or at any time thereafter, prior to any default on the part of the defendant in paying any loss incurred.
The cases referred to in support of this assignment of error, to wit: Ferris v. N. American Ins. Co., 1 Hill *R. 71 ; and Insurance Companies v. Weides, 14 Wall. U. S. R. 375; seem to decide that the fraud or false swearing referred to in such a provision as the one now in question, standing in the same connection and location in the policy as does the provision here, is such fraud or false swearing only as relates to the preliminary proofs. Without deciding, but conceding (for the purposes of this case) that to be true, there can be no doubt but that fraud on the part of the insured in making the contract of insurance, would render it void without any express provision to that effect in the policy, and even though there might be such a provision therein relating only to fraud or false'Swearing in connection with the preliminary proofs. In delivering the opinion of the court in the case cited from 1 Hill 71, supra, Cowen, J., takes occasion to say, expressly, that a policy “is always avoided by the common law for the least want of good faith on the part of the assured.”
We think there is no error in any of the instructions given by the court to the jury. The propositions of law therein announced are undoubtedly true. Nor were any of them mere abstractions. But if it can be said that any of them were such abstractions, the court would not on that ground reverse the judgment,-there being no error in law in the instructions, and they could not have had the effect of misleading the jury.
Upon the whole, we think there is no error in the judgment, and are therefore for affirming it.
Judgment aeeirmed.
See monographic note on insurance appended to Mutual Assur. Society of Va. v. Holt & als., 29 Gratt. 612. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481920/ | Moncure, P.,
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of the city of Richmond rendered on the 3d day of February 1873 in an action of assumpsit brought in said court by David W. Moore against the Fireman’s Fund insurance company, of San Francisco, on a policy of insurance. Issue was joined on the plea of non assumpsit, and leave was given to introduce any evidence under that plea which could be introduced under any special plea. The jury found a verdict for the defendants on the issue joined; and thereupon the plaintiff moved the court to set aside the verdict and grant a new trial, which motion was overruled, and judgment was rendered for the defendants.
The plaintiff excepted to an opinion of the court given against him 'on the trial of the cause. It is stated in the bill of exceptions that on the trial of the *cause the plaintiff, to sustain the issue on his part, offered the policy of insurance which is set out in haec verba in the bill. It is stated in the policy at its commencement that the said insurance company, “in consideration of $75, do insure David W. Moore to the amount of $2,500 — “viz: $1.000 on his stock of grain, flour, meal, offal and empty bar*170reís, contained in his new wooden flour and corn mill building and wooden and gravel lumber houses connected and communicating, on leased ground, and adjoined by his wooden plaster mill; and $1,500 on his machinery and fixtures of every description, including water wheel and mill stones contained in said mill building, which is moved by water power, and is situate near the mouth of Shockoe creek, Richmond, Va.” Then follow the other parts of the policy, in the ninth clause of which, being that which relates to the notice and preliminary proofs, is the following provision: “All fraud or attempt at fraud by false swearing, or otherwise, shall cause a forfeiture of all claim on this company under this policy.”
This case was tried at the same time, in the same court, by the same jury, with the case just decided by this court of Moore v. Virginia Fire and Marine insurance company. The same proceedings were had in both cases in the circuit court; and this case, as well as that, was brought to this court by writ of' error. The two cases involved the same questions, and were argued and heard in this court at the same time. The court is of opinion, for reasons stated in writing and filed with the record in that case and to be considered as filed with the record in this case also, that there-is no error in the judgment in this case, and therefore affirm the same.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481921/ | Christian, J.
There are certain preliminary questions to be disposed of before we pass upon the merits of the controversy.
First, It is insisted in behalf of the appellants, that the appeal in this case was improperly taken to the county court, and that it ought to have been taken directly to (he circuit court.
The decision of this question depends upon the true construction of the 10th and 13th sections of chapter 47, Code of 1873, page 443.
These two sections give the right of appeal from a ^decision of the board of supervisors, in general terms, both to the counties and to claimants against the county, to the county court. Appended to each section is a separate clause, following those clauses of the sections giving the right of appeal to the county court, which separate clauses are in these words: “Except that in case that-where the decision complained of is upon an order made by the county court or the judge thereof, or in a case involving the constitutionality or validity of an ordinance or by-law of a corporation, the appeal may be taken to the circuit court having jurisdiction over said county or corporation.”
I think it is plain that this clause was added in order to dispose of those claims which might arise upon orders made by the county courts as organized under the present constitution, and has no reference to claims arising upon orders of the county court made when composed of justices of the peace, which I courts had been abolished by the new constitution when this act went into operation. The terms used in the proviso — “county court or judge thereof” — plainly indicate that this clause applies to the county courts as at present organized. Claims that arise under orders of the county courts which had been abolished might well be adjudicated by the county court as at present established, held by a judge learned in the law, as required by the present constitution. But it would be incongruous, and amount to a barren right of appeal, if the claim allowed or disallowed by the board of supervisors, which arose “upon an order made by a county court or a judge thereof,” should be adjudicated by the same court or judge that made the order which is the foundation of the claim. In such a case it was proper to provide another tribunal to which the aggrieved party may appeal; and in such *a case the legislature wisely provided another and independent tribunal, to-wit, the circuit court. This, however, is in terms an exceptional case, and applies only to cases where the claim arises upon an order made by the county court as at present organized. or the judge thereof. In these cases the right of appeal may be taken to the circuit court having jurisdiction of the county or corporation. In all other cases the right of appeal is to the county courts. In the case before us the claim not being founded upon an order of the county court as at present organized, or the judge thereof, but on an order of a county court composed of justices (which is no longer in existence), the right of appeal from the decision of the board of supervisors was properly taken to the county court, and comes within the general provisions of the statute, and not under the exception. I am therefore of opinion, that the appeal in this case was properly pending in the county court; and that the proceedings in that court, and afterwards in the circuit court, by appeal from the county court, were regular and proper, and that the case is properly now before" this court for its final adjudication.
I am further of opinion, that the paper exhibited in the record as the bond of the county of Dinwiddie is invalid as a bond. Such invalidity, however, did not arise from any want of legal form. In form and legal effect it is a bond. It is an obligation, on the part of the county oí Dinwiddie, to pay a sum certain to Stuart, Buchanan & Co. It is sealed with the seal of the court. The seal is acknowledged in the body of the instrument as follows: “being a bond created by order of the county court of Dinwiddie, made in pursuance of an act of the general assembly of Virginia,” &c. This is equivalent to saying, being *an instrument under seal', an is a sufficient recognition of the I seal in the body of the instrument. But this paper is invalid, I think, as a bond of the county, because it does not appear from the record, that at the court at which it was executed the justices had all been summoned, or that a majority of them were present. Indeed, it appears that only three of these justices were present. It cannot be presumed, in a case like this, that the justices had been summoned. This ought to appear affirmatively, or the record should show that a majority was present. The court was acting upon a matter of special jurisdiction, conferred by a special statute, and upon a mat*172ter outside of its general jurisdiction.
The case does not, therefore, come within the doctrine declared by this court in Ballard & als. v. Thomas & Ammon, 19 Gratt. 14. Here the jurisdiction was special, fixed by a special statute, and must be exercised in accordance with the provision of the statute; that is, either when the justices had all been summoned, or when a majority was present. The proceedings in this case (the execution of a bond), not being a judicial proceeding within its ordinary jurisdiction, must be shown affirmatively to be strictly within the provisions of the statute under which the proceeding was had. I am, therefore, of opinion, that the bond referred to was invalid, as a bond. But I am further of opinion that, while the claim of Stuart, Buchanan & Co. cannot be asserted upon this bond, yet that is a valid claim, arising upon a contract made with the county court of Dinwiddie, for salt furnished said county, and the claim for which was recognized by said county in writing, and made a matter of record, as shown by the following order:
* Virginia:
In Dinwiddie county court, June 16th, 1873:
Ordered, that the clerk of this court issued a bond for $3,695.30, payable to Stuart, Buchanan & Co., for salt to be delivered by contract, the said bond to be paid the 1st January, 1866, with interest at three per cent, thereon from the 1st January, 1863.
A copy! Teste:
A. C. Winston, C. C.
The record shows that when this order was entered a majority of the acting justices were present. This order is the foundation of a valid claim against the county of Dinwiddie, if the same was presented within the period of the statute of limitations. In a case arising upon a claim to be settled by the board of supervisors, it must be conceded that the time of the commencement of the action is the date of the presentation of the claim before the board. It is proved by incontrovertible evidence that the claim of- Stuart, Buchanan & Co. was presented on the first Monday in December, 1873; which was at a period not barred by the statute of limitations. Mr. Thomas G. Watkins, one of the counsel of Stuart, Buchanan & Co., testified as follows:
On the first Monday in December, 1873, I, as one of the counsel for Stuart, Buchanan & Co., appeared before the board of supervisors of Dinwiddie county. As soon as the board met some member asked what business there was before the board. Some one then presented a long string of small claims against the county. I then got up and told them I had a claim of Stuart, Buchanan & Co., against the county. I unrolled a bundle of papers, took the claim out, *and proceeded to read it aloud to the board. When I had finished, one member of the board (I did not know the name of any of them) asked me whether the amount of three thousand odd dollars was the principal or principal and interest both. I replied it was the principal. One of them asked me if i had the bond. I told h;m I did, and took it out; I also told him I had a copy which I intended to leave with the clerk, and then handed a copy to a member of the board, who I supposed was the president. I then told them I had the orders of the court appointing the agent, &c., and started to read one of them; but had hardly read a sentence of - the order when some member of the board, got up, with a paper in his hand, and announced that a Mr. Carr, a member of the board, had died, read some resolutions, and moved that the board adjourn. I begged them not to adjourn, telling them I had come a long way and did not wish to return; when one of the board said that they had come a long way too, and their convenience ought to be consulted as well as mine. The commonwealth’s attorney; Mr. Epes, then arose and told the board that they had a precedent for adjourning on account of the death of a member; and he hoped they would adjourn, so that he would have time to look into the claim of Stuart, Buchanan & Co. Mr. Epes advocated an adjournment, and I opposed it. After we had been talking for some time, the member of the board who had moved to adjourn renewed his motion. They wanted to adjourn indefinitely, without naming any day. Mr. Epes then proposed some day in February, 1874. I then asked to make it the 15th day of January^ 1874; but Mr. Epes said he did not think it would give him time enough to look into the case. *Finally, however, he agreed to 30th of January, 1874, saying he might be able to get ready by that time.
Before the board adjourned I asked that I might be allowed to spread the papers upon the record. Mr. Epes objected, saying he did not see what good it would do my case. The clerk then said, “I suppose I will be paid for it.” I told him yes. to spread them on the record and send the bill to us, and we would pay for it. He then asked me to put them in the order I wanted them to come on the record. I took a pin and did so, handing them to him. I know that all the foregoing occurred on. the first Monday in December, 1873. I most undoubtedly left with the belief that all the papers would be spread on the record on that day.
This testimony of the counsel prosecuting the claim is corroborated in every essential particular by the clerk of the board of supervisors. He says:
“On the first Monday in December 1873, Mr. Thos. G. Watkins, as counsel for Stuart, Buchanan & Co., appeared before the board of .supervisors, and presented the claim of Stuart, Buchanan & Co., and orders of the court, and insisted upon their considering the claim and spreading it and the papers relating to the same, upon the record of said board. The board refused to consider the matter, and all other claims, but simply passed a resolution in relation to the death of one of its members, and then adjourned. Mr. Watkins left with me copies of the original papers relating to the claim of Stuart, Buchanan & Co., and which are set out in the *173record of appeal. Mr. Watkins urged upon the board the consideration of the claim that day. and of spreading all the papers upon the record. All the papers were so left with me at that meeting on that day.”
"He further says no entry of the application was made until the 3rd January 1874.
How it is insisted by the learned counsel for the appellant, that it can be shown by the record alone that the claim was presented; and as the record shows that the date of its presentation was 3rd January 1874, it is therefore barred by the statute of limitations. I cannot concur in this view. If the board, by its own fault, prevented the recordation of the claim and the papers to sustain it, it cannot be permitted to take advantage of its own default, to defeat a claim presented in due time; and which ought to have been recorded, and would have been recorded but for its refusal. Under the circumstances the board will be estopped from pleading the act of limitations, and the court will regard the recordation of the claim to have been made when it ought to have been made— when the claim was presented, and the papers sustaining it were delivered to the clerk, to wit: on the first Monday in December 1873.
I am therefore of opinion that the claim of the appellees was not barred by the statute of limitations.
The decision of all the preliminary questions brings me to consider the case upon its merits.
This contract of Stuart, Buchanan & Co. with the county of Dinwiddie, for furnishing salt during the late war, like those cases known as the Salt cases, decided by a divided court at the last term, all have two features in common. They all arose out of contracts made by the several counties named, under an act of the legislature of what is called the Richmond government, in contradistinction of what is known as the restored government of Virginia, and which was passed during the war, to wit: on the 9th May 1862. They all are denounced in common, as contracts unlawful *and invalid, because made and entered into for the purpose of aiding (the so-called) rebellion against the United States, and therefore void under the constitution of the restored government of Virginia.
The authority under which the contracts now sought to be enforced were made, is an act of the legislature assembled at Richmond, passed May 9th, 1863, entitled “An act to authorize the comity courts to purchase and distribute salt amongst the people and provided payment for the same;” and is in the following words:
§ 1. Be it enacted by the general assembly. that the courts of the several counties of this commonwealth, when a majority of the acting justices of the county is present, or when the justices have been summoned to attend to act upon the matter, are hereby authorized and empowered to order the purchase for the use of the people of said counties respectively, such quantities of salt as the said courts may deem necessary, and to provide for the payment of the same by county levies, or by loans negotiated upon the bonds of said counties, to be redeemed by county levies or otherwise.
§ 2. The said courts shall have power and authority to distribute the salt thus purchased amongst, or dispose of the same to, the people of their respective comities, in such quantities, upon such terms, and under such regulations as the said comities may prescribe.
§ 3. P'or the purpose of carrying out the provisions of this act, the said court may appoint or employ agents or commissioners, and take from them bonds with approved security, payable to their respective counties, in such penalties as such courts may prescribe, "with condition for the faithful performance of their duties as such agents or_ commissioners. The bonds so taken shall be filed in the clerk’s office of the court in which they are taken, and may be put in suit from time to time, by the said court in behalf of the said counties, or by any person injured by the breach of the said conditions.
§ —. This act shall be in force from its passage.
It was under this act that the contracts in the case before us, and those known as the Salt cases, are now sought to be enforced.
The learned counsel for the counties assail these contracts upon two grounds (common to all the cases). First, That the act of the legislature under which these contracts were made, was the act of a pretended legislature of an unlawful and usurped government; and that therefore all contracts made under this pretended authority of such legislation were illegal and void. Second, That all such contracts come within the prohibition of the present state constitution, which declares that “no county, city or corporation shall levy or collect any tax for the payment of any debt contracted for the purpose of aiding any rebellion against the state or the United States.” Art. 10, sec. 10 Const.
These are the two grounds upon which these contracts are assailed by the counsel representing the different counties.
As to the first position upon which counsel claim that these contracts cannot be enforced, viz: that the contracts were made under the pretended authority of an unlawful and usurped government, it is sufficient to say that the Richmond government (so called), as well as the Confederate government, of which it *formed a part, have been repeatedly recognized by this court, by the supreme court of the United States, and by the legislature of the restored government, as at least having all the attributes of a government de facto. Walker v. Christian, 21 Gratt. 291, 302; Walker v. Pierce, 21 Gratt. 722; Newton v. Bushong, 22 Gratt. 628; Ruckman v. Lightner’s ex’ors, 24 Gratt. 19; Texas v. White, 7 Wall. U. S. R. 702, 733; Thornington v. Smith, 8 Wall. U. S. R. 1.
In Walker v. Pierce, Judge Anderson, speaking for the whole court, and referring to an act of the legislature passed in 1863, in reference to Confederate currency, says: “The plaintiff contends that this act has no force *174or'validity as a law. I do not concur in that opinion. It was the act of the legislature of the _ state, which had the power to enforce all its enactments. It had the force and effect of a law of the state, and was as obligatory on the citizens of the state as is any law passed by subsequent legislatures.”
The opinion of Cheep Justice Chase, in Texas v. White, is as applicable to that portion of this state now recognized as Virginia, as it was to the state of Texas. He says, page 733, “And yet it is an historical fact, that the government of Texas, then in full control of the state, was its only actual government; and certainly if Texas has been a separate state, and not one of the United States, the new government having displaced the regular authority, and having established itself in the customary seat of power, and in the exercise _ of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government; and its acts, during the period of its existence as such, would be effectual, and in almost all respects valid. And to some extent this is ■ true of the actual government of
*Texas, though unlawful and revolutionary as to the United States,
It is not necessary to attempt any exact definition within which the acts of such a state government must be treated as valid or invalid. It may be said, however, with sufficient accuracy, that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating j¡he conveyance and transfer of property, real and personal, and providing remedies for injuries to person or estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual though unlawful government.”
See also Thornington .v. Smith, 8 Wall. U. S. R. 12; Sprott v. United States, 20 Wall. U. S. R. 459; Huntington v. Texas, 16 Wall. U, S. R. 402; Evans v. City of Richmond, Johns. Rep. Ch. J. Chase’s Decisions 551; Thomas v. City of Richmond, 12 Wall. U. S. 349, 357.
Upon these authorities, as well as upon the general principals of international law, recognized by all writers upon the subject, from Grotius, its father, down to Wheaton and Phillimore, its latest expounders, the government, which had its seat at Richmond during the late civil war, was at least a government de facto, and all its acts in the ordinary administration of law, and in the interests of civil society, and for the protection of civil rights, were valid, and all contracts, arising out of the laws of such a government will be enforced, after the restoration of peace, to the extent of their just obligations unless it be shown that such laws were enacted, or contracts entered into, “for the ^purpose of aiding any rebellion against the state or against the United States.”
Such laws and contracts are not only dedared valid and binding by the decisions of this court and of the supreme court of the United States, but by the express statutes of the restored government of Virginia— whose constitutionality or validity have never been questioned in this court or elsewhere.
On the 28th February, 1866, an act was passed by the legislature of the restored government, the very object of which, as shown by its title and preamble, was “to give effect to certain acts, contracts and proceedings during the late war.”
After reference to the existing and actual supremacy of the Confederate government and the state government as a part of it, it provides as follows: “And whereas doubts may arise whether any, and what acts, contracts and proceedings, done, made and had, and whether any, and what rights and titles acquired under the authority, or supposed authority, of the said governments, or either of them, are valid and effectual: Now, therefore, for the better protection of the people, and for preventing and settling such doubts,
“Be it enacted by the general assembly, that all contracts and agreements of every kind and nature whatsoever, whether executory or executed, all marriages, and all acts and proceedings whatsoever, made, done or had, and all rights and titles of every kind and nature whatsoever, accrued to or acquired by any person, under the authority of either of the governments aforesaid, or of any law established and recognized thereby, * * * and not inconsistent with the constitution and laws of the United States, or with the constitution of this state, and all such contracts *and other acts and proceedings made, done or had, and rights and titles acquired, by any person under the authority of the said state government or the laws established or recognized thereby, * * * shall be held and taken to be. and to have been, at all times, of the same force, virtue and effect, in all respects, and none other, as if no question had ever been made as to the lawful authority of said governments, or either of them.”
Thus it appeared that by an express enactment of the legislature of the recognized lawful and restored governments, all contracts made, and rights and titles acquired, under the authority of the Richmond government, or of laws established and recognized thereby, are expressly recognized as valid and binding, unless “inconsistent with the constitution and laws of the United States, or with the constitution of the state.”
I come now to notice the second ground upon which the validity of the contracts under consideration is assailed by the learned counsel representing the counties in these suits, to wit: “and all these contracts come within the inhibition of the state constitution, which declares that 'no county, city or corporation shall levy or collect any tax for the payment of any debts created for the purpose of aiding any rebellion against the state or against the United States.’ ”
The question we have to determine is, *175were the debts contracted by these counties, in the purchase of salt for the use of its citizens, ‘‘created for the purpose of aiding any rebellion against the state or the United States?”
1st. Was there anything- in the act itself which conferred the authority to make these purchases, which makes it liable to the objection that it was passed for *the purpose of aiding any rebellion against the state or against the United States?
It has already been shown that it was a legislative act of a government de facto, and is as operative and valid as if it had been the legislative act of a government de jure; provided it is not subject to the objection that it was passed for an unlawful purpose. Certainly no such unlawful purpose is indicated upon the face of the act, either from its object or express terms. Its title indicates its purpose: “An act to authorize the county courts to purchase and distribute salt amongst the people, and provide payment for the same.” Surely this is a lawful purpose. It cannot be held that the motive and object of the legislature in passing such act was unlawful and treasonable. The courts will not impute unlawful motives to the legislature where the terms of the act do not disclose the unlawful purpose. As was said by Judge Denio, in People v. Draper, 15 N. Y. 533, 545: “If a given act of legislation is not forbidden by express words or by necessary implication, the judge cannot listen to a suggestion, that the professed motives for passing it are not the real ones. If the act can be upheld upon any views of expediency or public policy which the legislature may have entertained, the law cannot be challenged in the courts.” See also People v. Shepard, 36 N. Y. 285, 289. The same doctrine is recognized by this court in Dearing v. Rucker, 18 Gratt. 427, 437, where it is said by Judge Joynes, “Whatever we may speculate about the real purpose of the legislature, we must, if the language will allow it, impute to them a lawful purpose, and put such a construction upon the act as will make it consistent with the supreme law.”
Adopting this rule of construction, it is plain that both the act itself, and the contracts made under it, -‘‘were not unlawful. If these debts had been created under the authority of a lawful government (I mean lawful in the sense of the decisions of the courts), no question could have been raised as to their validity. And the true test of their validity is, were they enacted “for the purpose of aiding any rebellion against the state or against the United States.”
The purpose of the act was “to furnish salt to the people of the commonwealth,” not to soldiers in armed rebellion against the state or the United States, but to the people of the commonwealth — women, children, old men, non-combatants, slaves — all which make up the people of the commonwealth. This article of prime necessity, absolutely requisite for the preservation of human life and animal life, was to be furnished and distributed by the terms of the act through agencies of the civil government, and not the military. Neither military officers were called upon, nor military orders issued, to effect its distribution. It was distributed to the people through the civil courts, which had their existence and regular constitutional organization long before any “rebellion” was dreamed of; and it was the agents of those courts, and not of the military authorities. then at war with the United States, through whom these bounties of charity and humanity were dispensed to the people of the commonwealth. It is true that supplies of salt to the people preserved life and promoted health, and thus enabled them the better to resist invasion, and to carry on the war then waged between the north and south; and in this sense may be said to be remotely and indirectly in aid of the rebellion. The same may be said of every act of charity, of humanity and self-preservation done during a civil war. If I gave to a starving soldier a crust of bread or a cup of cold *water — if a mother nursed and watched beside her sick or wounded son, seeking by her tenderness and care to restore him to health and strength — if amid the sickening horrors of the hospital and the prison angels of mercy were ministering to the suffering and the dying, and a single soldier be rescued from death — or a single wounded man is healed and sent back to the ranks — “aid” is given remotely and indirectly “to the rebellion.” Are such acts as these — dictated by the instincts of nature and the appeals of our common humanity — to be denounced as unlawful and treasonable? Does the existence of a civil war loosen the bonds of society and destroy all natural and civil rights? Are the horrors of war to be increased and intensified by a total suspension of the administration of laws? Must anarchy rule supreme because a people are engaged in civil war? Does the maxim, "inter arma leges „silent,” mean that all the laws of society and of self-preservation are to be silenced, and all natural rights and civil rights be destroyed, or yield to the laws of war?
Society has a right to protect itself. A state must provide for the health and the lives of its citizens. In doing this it but conforms to the law of nature and the law of God. “The law of nature,” says Blackstone, “being coeval with mankind, is supreme in obligation to any other. No human laws are of any validity if contrary to this.”
“The law of England (says Broom in his Commentaries on the Common Law), whether statutory or customary, professes lo act in accordance with, and to be regulated by. certain great fundamental principles. It professes to act and adjudicate conformably to the law of nature, the law of God, to common sense, to legal reason, to justice and humanity.”
*The enlightened jurisprudence of every civilized country recognize and enforee these doctrines. They have been repeatedly declared even by that tribunal (the supreme court of the United States) which would be very slow to legalize or validate any act intended to give aid to the rebel- ' lion.
*176In Texas v. White (supra) Judge Chase said: “Acts necessary to peace and good order, * * and other similar acts (and surely acts for the preservation of the health and life of the citizen come within the category), which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual though unlawful government.”
In Evans v. City of Richmond (supra) the same judge said: “In Texas v. White, the supreme court held that the acts of a body exercising authority in an insurgent state as a legislature must be regarded by the United States as either valid or not according to the subject matter of legislation.”
Again he says in the same case: “As to regulations concerning marriage, descents, conveyances of property — everything, in short, which belongs to ordinary business and the common transactions of life — its acts may be upheld as valid. But, on the other hand, those acts which were intended to give a sanction to proceedings of any body, corporate or otherwise, which would have a tendency to subvert the authority of the United States, cannot be so regarded.”
In Thomas v. The City of Richmond, 12 Wall. U. S. R. 349, 357, Mr. JTustice Bradley, declaring the unanimous opinion of the court, says: “Laws made , for the preservation of public order (and a fortiori for the preservation of life and health), and for the regulation of business transactions between man and man, and not *to aid or pro'mote the rebellion, though made by a mere de facto government not recognized by the United States, would be so far recognized as to sustain the transactions which have taken place under them.”
In Thorington v. Smith (supra) it was declared that “transactions in the ordinary course of civil society, though they may indirectly and remotely promote- the ends of the unlawful government, are without blame, except when proved to have been entered into with the actual intent to further insurrection or rebellion.”
The supreme court said in Huntington v. Texas, 16 Wall. U. S. R. 402, if the bonds in controversy “had been issued and applied to the support of schools, or the maintenance Of asylums for the insane, for the deaf, mute or the blind, or to other purposes equally legitimate, the presumption would be in favor of the holders of the bonds, and not against them.” * * * Whether the alienation of the bonds, by the usurping government, divests the title of the state, depends on other circumstances than the quality of the government. If the government was in actual control of the state, the validity of the alienation must depend on the object and purposes of it. If that was just in itself and laudable, the alienation was valid.
In conformity with these principles, so often and clearly defined by the decision of the supreme court of the United States, as well as by this court, it was perfectly competent for this de facto state government to pass the act of May 9th, 1862, under which those debts were created. The act itself makes no reference to war or state defence; its subject matter is in the interests of humanity and the preservation of society itself. Its professed object, as shown in its title, is to give relief to the needy, helpless, non-combatant people, and not to the maintenance of a military *force. These professed motives being not only innocent, but commendable', we ought not to entertain a suggestion that these were not the real motives. Every presumption will be made in favor of a lawful purpose. It must be proved that the actual intent in the passage of the act was “to promote the rebellion.” and that these debts were created for tfie purpose of aiding rebellion against the state or the United States. In these cases no such intent is proved; but, on the contrary, it is plain that the act was passed for the lawful and humane purpose of furnishing to the people that article of pure necessity, without which all human life and animal life must perish. It matters not that the scarcity of salt was produced by the war. Whether by war, or pestilence, or famine, or earthquake, or flood, or fire, or any other great calamity; if this great necessity for the preservation of health and of life existed, it was the duty of the state to supply it to its citizens; and every contract made for this lawful and humane purpose is as legal and valid, as sacred and binding, as any contract ever enforced in a court of justice.
I should say therefore, both upon principle and authority, that the obligations assumed by the counties for the purchase of salt, under the act of May 9th, 1862, are valid, and must be enforced.
Now at this "point, before entering upon a discussion of further views enforced by the learned counsel for the appellant, with much ingenuity and ability, I desire to say, in justice to my brother Anderson, that in the opinion I wrote, after the adjournment of the court, carrying out my oral opinion, delivered from the bench in the cases known as the salt cases, decided by a divided court in 1876, I unintentionally gave to his language an interpretation not intended by him. From *his explanation afterwards, I am satisfied I had misconceived his meaning, and I now take pleasure in repairing any injustice which may have been done him in the course of that opinion arising from such misconception; but I am constrained to say, most respectfully, that his views, as modified and explained, do not meet my concurrence, and admitting his premises to be correct, would lead my mind, to a contrary conclusion.
But it is urged by the learned counsel for the appellant, in his petition of appeal, that “the present county of Dinwiddie if a different county organization from that whose agent contracted the debt', and is no wise bound therefor.”
If I'understand this position it is this— that the counties which made the contracts are no't the same counties which are now called upon to meet them by payment. How have they lost their identity? When and where?
The state has certainty not lost its identity *177by the events of the war. That it has not has been solemnly decided by this court. In Higginbotham’s ex’x v. Commonwealth, 25 Gratt. 627, the lamented Judge Bouewn, speaking for the whole court said, page 635, “Virginia has not lost her identity by the loss of forty-eight counties and the inhabitants thereof. Impoverished, crushed and dismembered, like a multitude of her faithful defenders, she is Virginia still, and so 1 trust she will long remain. 1 am wholly unwilling to admit that her identity has been lost.”
_Now if dissolution cannot be predicated of the state, how can it be of the counties? Can the state live and the counties perish? Can the state “remain the same” and the counties change — can the state retain it£ identity and the counties lose their identity ?
*What is meant by the declaration that there is “a want of identity between the contracting party and Ihe paying party?” The contracting party is the county of Dinwiddie in January 1862. is not the county of Dinwiddie tbe same county in January 1862 as in January 1866 or in January 1876. Surely it will not be contended that its identity is destroyed because its citizens in 1862 are not the same m 1866 or 1876. If any change in the actual residents of a county could destroy its identity, it would lose its identity every day. The county of Dinwiddie continues to be the county of Dinwiddie, however its inhabitants may change either by increase or decrease. It is the identical county now that it was before any of its inhabitants were born. This court has more than once decided that not even an excision of a part of its territory and incorporation of a part of its inhabitants with another county or municipality destroys the identity of a county. Harrison Justices v. Holland, 3 Gratt. 247; Wade and others v. City of Richmond, 18 Gratt. 583. Within a few years past one-third of the population of the county of Henrico has been incorporated with the city of Richmond. Surely no one will contend that thereby the county of Henrico has lost its identity. It is still the same county that it was before. How can it be said, then, that the county of Dinwiddie as it stood in January 1862 is not the same as it stands at the present day. Its territory is the same, its population is but little changed, and substantially the same body of laws govern it now as in 1862.
The declaration that there is “want of identity” between the counties during the existence of the war and after its close is a declaration in another form that the counties perished or lost their identity during the war. It is admitted that the states did not; and a *fortiori the counties did not. If the state retained its identity, the counties a fortiori remained the same. But if by the argument that there is a “want of identity between the contracting party and tlie paying party” it is meant to assert that a county within the territory of a state, while it was one of the Confederate States, is not the same county after that state lias, by the destruction of the Confederacy, been restored to the Union, then all 1 have to say is, why is it that in the cases involving the same question, decided by this court and by the supreme court of the United States, no such ground has ever before been even hinted at either by court or counsel.
In Jones v. City of Richmond, 18 Gratt. 517, the city of Richmond made during the war, upon the eve of the evacuation, a contract to pay its citizens for all spirituous liquors which as a measure of peace and order, it was deemed necessary to destroy. This contract was enforced after the war. Ft was never hinted that the city of Richmond which made the contract was not the same city of Richmond which was required to pay the damages. There was the same “want of identity” between Richmond during the war and Richmond after the war as there was between the county of Dinwiddie during the war and the county of Dinwiddie after the war. So in the case of the Town of Danville v. Pace, 25 Gratt. 1, the bonds, the subject of controversy, were issued by the town of Danville during the war. Judgment was given upon these bonds after the war, which was affirmed by this court. It was never suggested by court or counsel that there was any “want of identity” between Danville during the war and Danville after the war, or that these contracts made by these towns during the war could not be enforced against them after the war. In both *cases the court was unanimous. See also Miller & Franklin v. City of Lynchburg, 20 Gratt. 330, in which Judge Anderson delivered the opinion of the court. So in the cases of Evans v. City of Richmond and Thomas v. same (supra), it never was hinted by Chief Justice Chase or Mr. Justice Miller, who delivered the opinion of the court in these two cases respectively, that the City of Richmond which issued the “small notes,” the subject of controversy, was not the same city of Richmond against which payment was to be enforced; but the case turned upon the ground that the purpose for which they were issued was unlawful, because in aid of the rebellion.
The fact that these suits were brought against municipalities can make no difference. The counties must be governed by the same principles which control these cases.
The argument that these contracts must now be declared invalid, because the county of Dinwiddie is a different county from that which made the contract, is but another form of asserting the proposition, that the counties and county courts during the war had no power to bind the counties or their people after the war. What are the consequences which would flow from the establishment of such a doctrine? Have they been seriously considered? What becomes of the judgments of the county courts of that time? Are they binding now? Or was there such a want of identity between the county courts that pronounced the judgments and the county courts of 1866 that the latter could not enforce them Are the roads which the county courts established in 1862 no public roads in 1866? Are the amounts awarded for condemnation *178in 1862 collectable now? Are the roads which were discontinued by county courts in 1862 still public *roads, notwithstanding their alleged discontinuance? Are the probates which they allowed during the war valid now? Are the wills which they admitted to probate then valid instruments now? Are the deeds recorded in the clerks’ offices of these courts legally recorded? Are the recognizances taken enforceable now? Are the administrations which they committed to the hands of sheriffs, administrators and executors lawfully in the hands of these parties now? Are the levies which they laid unlawful; and can the aggrieved citizen recover the unlawful tax he has paid? Are the bonds of public officers taken by these courts invalid and no longer binding? How can these questions, and a hundred others, be answered, if it be true that the counties of this state lost their identity during the war, and are not the same counties now that they were during the war? Are not these questions all solved in the confirming act of February 28th, 1866? And was it not the very purpose and obje'ct of that act to remedy the very evils which would arise from the doctrine 'asserted? The whole scope of the act is to carry out what its title asserts — “to give effect to certain acts, contracts and proceedings during the late war.” So even if it beitrue that the counties now are not the same counties which made the contracts (to. which I utterly dissent), yet, under the express terms of the confirming act, these contracts are still binding upon the counties and people thereof.
Public necessity, public morals, and the interest of good government require that this court shall carry out and firmly maintain the confirming act of 1866, passed by a legislature of our wisest and best men, at a period when anarchy would follow war, and when it required the voice of law to" dispel chaos and reproduce order.
*It is impossible to estimate the disastrous consequences which would flow from a failure to carry out and enforce these wise enactments.
Titles would be "destroyed; estates would be ruined; probate of wills would be invalid; the acts of administrators, executors, and guardians and other fiduciaries would be mere nullities. The bonds of matrimony would be dissolved, or marriage made adulterous and offspring illegitimate; the punishment of felons would be made false imprisonment or their execution murder: In a word, the bonds of society would be loosened and anarchy would reign supreme.
But it is further argued by the learned counsel for the appellant, that this and like debts were created in consequence of secession, and grew out of the war. and cannot therefore now be enforced; that the action of the county court to supply the people with salt was rendered necessary by the war, and was necessary to encourage and strengthen" the people to maintain the war for the establishment of the Confederacy.
This is carrying the doctrine far beyond that declared by the Federal courts. If anything is settled by the decisions of the supreme court of the United States, it is that the validity of the legislation, or other acts during the war, depends upon the character of the act, and not upon the fact that the particular legislation was consequent upon the events of the war, or flowed from the actual condition of things. The Federal tribunals have always applied the test ,to the act which was done, or the legislation which was enacted, and have never- stigmatized any act. or any legislation with illegality, merely because secession made it necessary, or because, if there had been no secession, the act would never have been done. Will *our courts establish a more stringent or sweeping rule than the Federal courts?
The only case relied upon by the learned counsel to sustain this position, is that of Leake v. Com’r of Richmond, 64 North Car. R.; opinion of Chief Justice Pearson since overruled.
This is the only case referred to, to sustain the view suggested; and this case is opposed by the whole current of decisions -in the Federal courts, in this court, and in the courts of Tennessee, Alabama, Mississippi and Texas.
I am the more confirmed in my opposition to these views of the learned counsel, because their logical conclusion and legitimate results would inevitably tend to a repudiation of all debts, public and private, contracted during the war. Why should not the same'principle be applied to a debt contracted by an individual during the war, as to a debt created by a corporation?
If a contract, made by a corporation, which “was rendered necessary by reason of secession,” cannot now be enforced, why should we enforce against individual contracts which also “were rendered necessary by reason of secession?” Was not the debt enforced in the case of Mann v. Dozier, 24 Gratt. 1, a contract which “was rendered necessary by reason of secession?” Are not all suits upon bonds given to substitutes which have been enforced since the war, suits upon contracts “rendered necessary by reason of secession?” Could it not be said, indeed must it not be said, ef all .contracts made for the payment of Confederate money, that they “were rendered necessary by reason of secession,” and that “had there been no Confederacy, no such contract could have been made?” And yet we know that such contracts, by the thousand. *have been enforced by this court and by every other court in the commonwealth. We hold that the contracts of individuals “which were rendered necessary by secession,” and which would never have been made “had there been' no Confederacy,” are binding and valid. How can we say that when such contracts are made by corporations and counties (which are quasi corporations), that they are invalid and void. There is no difference in principle. And indeed this court, at its last term, held *179that a corporation (the Eastern Lunatic Asylum) was bound for a claim which originated during the war, and which never could have arisen “if there had been no secession,” and no “Confederacy.” See Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163. I can see no reason why a different rule is to apply to corporations than to individuals. I would excuse neither from the payment of their just obligations, if lawful in themselves.
The constitution itself makes a distinction between contracts made by the state while under the dominion of the Confederate government and those made by cities, counties and corporations. Payment of the former is expressly prohibited; but payment of the latter is only prohibited when they are debts created for the purpose of aiding any rebellion against the state or the United States.
The constitution makes no other inhibition. The very distinction which it makes between debts created by the state and those created by counties and corporations, shows that whenever such debts are lawful in themselves they may still be enforced. It does not prohibit payment of such as “were rendered necessary by secession,” or such as would not have been contracted “if there had been no secession and no Confederacy;” but the inhibition is against the payment *of all debts “created for the purpose of aiding any rebellion against the state or the United States.” Unless it comes ■wiffein this category it is a lawful contract and mast be enforced. I cannot add another prohibition which the constitution does not recognize.
These considerations lead my mind to this conclusion: that whenever it appears from the facts clearly proved, or from fair i and legal inferences from the facts, that the contract of the parties was made “for the purpose (that is, with the intent) of giving aid to any rebellion against the state or the United States,” I should declare the contract invalid and void; but where this does not appear, I should uphold and enforce it; and. as I have already indicated, that a contract made by counties and corporations under act of May 9th, 1862, is not subject to the inhibition of the constitution, but is lawful and valid and must be enforced.
The counsel for the appellant' relies strongly upon the cases of Chalkley v. Commonwealth, 20 Gratt. 404, and De Rothschild v. The Auditor, 22 Gratt. 44, as ruling this case.
The argument is based upon an_ entire misconception of the principles decided in those cases; and they have no application to the case before us. In those cases it was held that the present state government (the restored government, so-called) was not the successor of the Richmond government, and was not responsible for debts contracted by that government; and that the present state government was inhibited by express terms of the constitution, from paying any debt contracted by the Richmond government during the war. Art. 10, sec. 10.
This positive inhibition of the constitution must be observed: but the same scction only prohibited the ^payment by counties and corporations of such debts as were created for the purpose of aiding the rebellion.
I am of opinion, for the reasons herein stated, that the contract of the county of Dinwiddie with Stuart, Buchanan & Co., for furnishing salt to the people of that county, during the late war, was a lawful contract, and must now be enforced.
But I am further of opinion, that said contract was one solvable in Confederate currency, and should be scaled to its value in gold at the date of the contract, to wit, on the 29th May, 1862.
Anderson, J. The contract in this case, it is claimed, was made by authority of an act of the Confederate state of Virginia, passed May 9th, 1862. Unless the power was vested in the county court by an act of the legislature, it could not bind the people of the county by contract.
The county court is invested with judicial power by the constitution; but not to make contracts for the county, or the people of the county. It is in no proper sense, the representative or agent of the people; was never constituted such by the voice or act of the people; and can only be authorized to bind the people by act and authority of the legislature of the state'. It is a delegated power.
Was the contract in question made pursuant to the authority given by the Confederate legislature? The first section, under which the authority is claimed, is as follows : County courts are “authorized and empowered to order the purchase, for the use of the people of said counties respectively, such quantities of salt as the said courts may deem necessary, and to provide for the payment of the same by county levies, or by loans negotiated upon the bonds of said counties, to *be redeemed by county levies or otherwise.” Upon a fair construction of this act it was evidently intended by the leg' ’ature in vesting this power in the county courts to contract for the purchase of salt, to invest them also with power to provide for its payment; and it was evidently contemplated that when providing for the purchase, the county courts should at the same timg provide for its payment by making a levy; or, if they determined to purchase for cash, and to raise the money by negotiating a loan on the bonds of the county, they were at the same time required to provide for the redemption of the bonds, by a levy, “or otherwise." The second section authorizes them to dispose of the salt to the people of their respective counties, under which clause they had authority to sell the salt to the people of the county for cash; as the county court of Dinwiddie county did. And in that case they might have met the requirement of the 1st section, in providing for the payment, by requiring the proceeds of the sales, to be applied to the redemption of the county bonds, or in paying directly for the salt, if no bonds had been issued; or if there was any better mode, in their opinion, by the terms “or otherwise,” they were authorized to adopt it. *180But the provision for payment, whatever in their discretion they might adopt, was to be made when they ordered the purchase, and not to leave it to their successors to levy, and future generations to pay for it. And this, it seems to me, is a qualification ■of the power to purchase, with which they were_ invested by the act. I do not think it was intended or contemplated by that legislature, to invest the county courts that made the contract, with power to bind future county courts, and certainly not county courts which were subordinate to the government of the United States, to order *a levy for their payment, after the Confederate legislature, from whom the power emanated, had become extinct. That legislature itself had no power to invest them with such authority.
If this construction is correct, then to order the purchase of salt, upon the bond of the county, payable at a remote period, reaching beyond the probable- continuance of the war, without providing in any way for its payment, as was done in this case, was a violation of the spirit, if not the letter, of the law. It was a speculation, in which it was not in the power of the county court, under this act, to involve the people of the county. And as the appellees co-operated with the county court in thus abusing, if not exceeding its authority, indeed it appears to have been done at their instance and request, they ought to bear the consequences; and the present population of Dinwiddie county .ought not now be subject to a levy to pay for salt which the people of the county, at the time they received it from the agents of the county, paid for in cash. But if I am mistaken in this view, and the acts of the county court of Dinwiddie in relation to the contract in question were in conformity with and in pursuance of the act of the Confederate legislature relied on, the contract ought not to be enforced on other grounds which I will not consider.
I do not hold that the legislature which passed the act aforesaid was a pretended legislature of “an unlawful and usurped government.” To the contrary, I am of ■opinion that it was the legislature not merely of a de facto, but of a de jure government; and that all its acts within the limits of its authority, under the constitutions of the state and the Confederate States, were valid and binding on the citizens of Virginia until the fall of the Confederacy and the submission of the *state to the power of the United States; and that then such of its unexecuted acts of legislation and administration as were the result of secession, and in the interest of the Confederacy, and for its support and maintenance in its resistance to the power and authority of the United States, became inoperative and void. I have, therefore, no fault to find with the decision in Walker v. Pierce, 21 Gratt. 722, and see no cause to change or modify the opinion I gave in that case.
By the ordinance of secession the seceding states dissolved their relations with the Federal government and the other states of the Union. The states thus withdrawing from the Union, entered into new political relations with each other, forming a political entity, or body politic, known as the Confederacy, which they invested with powers of sovereignty, for their government and protection.
The government of the United States refused to acknowledge the right of the states thus to dissolve the bonds of union, to absolve themselves from their obligations tc the Federal government, and to form a confederation independent of the Union; and resolved' to resist it with arms.
The Confederate States resolved to maintain their right to withdraw from the Union to form a new Confederate government for themselves, .and to resist force with force. Then ensued, the most gigantic and bloody war of modern times.
The Confederate States, after a brave and gallant resistance, for a period of four years, were obliged to succumb from exhaustion, to a power so vastly superior in numbers, and material resources, whose navy covered the seas, and whose armies were recruited from the four quarters of the globe, and whose arsenals *and commissariat were furnished by a world-wide commerce. During the four years existence of the Confederacy, a currency was created, based alone on faith in the Confederacy, which became the almost exclusive circulating medium of all the states within its limits and under its control. And contracts were entered into by the Confederate, and state governments of the Confederacy, and by the counties and municipalities of the Confederate States (such as the contract sought to be enforced' in this case) with individuals and corporations which were not fulfilled before the overthrow of the Confederacy. These contracts are vast in amount, and various in character. There are contracts which were made with the Confederate government itself, through different agencies. There are contracts made by state governments of the Confederacy, in diversified forms. And there are contracts made by counties and municipalities of the states in the Confederacy, under authority of laws passed by a Confederate state legislature. These are large in amount, and relate to diversified subjects. Many of the counties and municipalities, during the war, under authority of acts of the legislature," issued promissory notes, which were designed to supplement the circulating medium, vast amounts of which are still outstanding and unredeemed. Many of the counties under the same authority borrowed Confederate money, to be used in the purchase of supplies for soldiers and soldiers’ families, or for the poor generally; or for the purchase of salt for sale or distribution to the people of their several counties, or entered into contracts for the purchase of salt. These were of no higher / obligation than either of the former. All these acts of the legislation and administration, whether *by the state, or by the counties, by authority of the state, were binding at the time. But a grave question arises, are they operative now, and can they be enforced after the Confederacy has ceased *181to exist, and has no representative or successor? Or have those contracts which were made in the interest of the Confederacy, and for its support and maintenance, by the members of the Confederacy, or the subordinate political divisions of the Confederate states, by authority of the states, like the contracts made directly with the Confederate government — the head — become extinct by the death of the Confederacy, without a successor or representative?
It is true the states are indestructible, whilst the Confederacy was transient. It had but a fleeting existence, though it has left its impress on the world's history, which will be ineffaceable by time. But the states remain —though not as Confederate States, nor as a part and parcel of the organized system of resistance to the power and authority of the United States; but as constituents of the United States. They have abrogated and annulled their acts of secession, and have yielded to the demands of the Union, and are a part of it. Is there not an incongruity in holding them, the states or the counties, in the courts of the United States, state or federal, bound to fulfil contracts which were entered into by them as members or parts of a Confederacy which was organized in resistence to the power and authority of the United States, for the support and maintenance of that Confederacy, after they have been reduced to submission to the power of the United States, and have been rehabilitated in the. government of the Union?
I do not believe that a precedent can be found in the history of civil wars amongst civilized nations, *or of wars between federal states, of the successful belligerent undertaking to pay the war debt of the conquered party contracted in resisting' its authority. We have been referred by counsel in argument to the civil wars and revolutions in England, and were told that the monarchy under Charles II undertook to pay the debt contracted by Cromwell. We are told by the historian hume that the great debts of the republic were thrown upon the king after the restoration (Hume’s History of England, vol. vi., p. 366, edition-), but not the war debt which was contracted by parliament in the subversion of the regal power which was now restored in the person of Charles II. It is much more likely that the debt contracted by Charles 1 in the maintenance of the throne would have been assumed by the government which was restored in the person of his son. Indeed I think it will be found that any debts contracted by the king in his unsuccessful and unhappy resistence to the power of parliament were never assumed and paid by the republic under Cromwell which succeeded the monarchy. I think it will also be found that William and Mary, who by a successful revolution soon after the death of Charles 11 were raised to the throne, from which Janies IT, his successor, was expelled, never undertook to pay the debts contracted by James in the wars waged by him in his fruitless efforts to overthrow their government and to regain what he had lost.
Nor can it be maintained, I think, that the government of the United States was bound to assume and pay the debts contracted by the states or counties of the Confederacy in resisting its authority. And if not, the states which compose the United States and which are constituents of that government, and the subdivisions of the states, the counties, which are in *the protection of the United States government and owe obedience to its constitutions and laws as supreme, are not bound to pay such debts.
If it were competent for the county courts, during the war and when they were subordinate to the Confederacy, to bind the present county courts, which are subordinate to the Union, to make a levy for the payment of debts contracted by them, not in the ordinary course of legislation or administration, but which became necessary by reason of secession and the organized resistance to the power and authority of the United States, and for its maintenance, then we have the anomaly of a county court attached to the Union and a part of it, and subordinate to it, levying a tax on citizens oí the United States to pay a debt, which was contracted by a county court of the Confederacy, for citizens of the Confederacy, in the interest of the Confederacy, and to maintain it in its hostility to the United States. Such an auomalv can find no support in reason nor in the laws of nations.
The county court, as we have seen, is not the agent or representative of the people of the county to bind them by contract. If it has such power it is a delegated power, and can only be delegated to it as the organ of a quasi corporation by the sovereign legislative power of the state. The county, as a quasi corporation, is a political entity, which exists only in contemplation oí law, and must derive its character from the law which gives it such existence. It was, prior to the 37th of April 1861, a quasi corporation of the Union, because it derived its corporate character from the laws of a state which was a member of the Union, and it owed obedience to the constitution and laws of the United States as the supreme law of the land. It then ceased to be a corporation *of the Union, because the people of Virginia, in convention assembled, on that day passed an ordinance repealing and abrogating the ordinance of 3788, which ratified and adopted the constitution of the United States, and declaring that the Union between the state of Virginia and the other states of the Union, under that constitution, was dissolved, and that said constitution was no longer binding on any of the citizens of this state; the said ordinance to take effect as of that day. when ratified by a majority of the people of the state. It was submitted to the people, and the vole was taken by counties, and it was ratified by a majority of about one hundred and thirty thousand. The counties were represented in the convention, and after the said ordinance was thus ratified by the people, they ceased to be corporations of the Union as long as said ordinance was in force.
On the 19th of July following the conven*182tion passed another ordinance ratifying and adopting the constitution of the Confederate States, and declaring that it was binding on all the people of the state; and on the 1st of July “ordained that wherever the words ‘United States’ occur in the constitution, Code or other laws of Virginia, the words ‘Confederate States’ shall be and are hereby substituted therefor when applicable.” Thence forward the quasi corporation of the counties, which submitted to and ratified the ordinance of April 17th, 1861, was a Confederate quasi corporation, so far as it was subordinate to, and acted for, and in the interest of the Confederacy, until the Confederacy became extinct, and the ordinances aforesaid were abrogated. See the Historical Synopsis, Code of 1873, page 1.
For as a political entity of the Confederacy, its breath of life was imparted to it by the Confederate ^States to which it belonged. And the power which was vested in its organ, the county court, to contract for it, in the interest of the Confederacy, was delegated by a Confederate legislature, which .could not survive the Confederacy, but expired when the Confederacy expired.
This is well illustrated by what actually occurred in this state. The last legislature, which was elected under the Confederacy, never met. but was superseded and supplanted by another legislature, which was elected and assembled as the representative body of Virginia, in its legislative department, under oath to support the constitution of the United States. There were then two legislatures in the state at the same time, the one Confederate, and the other Union, unless the former had expired with the Confederacy. It was impossible that both could exist together as the representative legislature of Virginia. The former must therefore have expired with the Confederacy. It was as extinct as the Confederacy itself. And its acts of legislation, which were unusual, and the result of secession, in the interest of the Confederacy, and in aid of it, died with it; and the Confederate quasi corporations, with .their acts of legislation and administration, by the authority of the Confederate State legislature, expired with it. So that contracts made by the county courts, in aid of the Confederacy, .as Confederate quasi corporations, by virtue of a legislative authority, which had become extinct with the fall of the Confederacy, died with the authority by virtue of which they were formed, just as contracts, which had been made with the head of the Confederacy, died with it.
But it is said to be incomprehensible how a county could be “organized in hostility to the Union.” And we are told that “the counties never had any relation *to either the Confederacy or the Union;” and that “the county courts were never in any sense subordinate either to the government of the United States or of the Confederate States;” and that “there was nothing in the constitution or laws of that government (the Confederate) which made the county courts of the states subordinate to the Confederacy.”
The counties are integral parts of the states. They are political as well as territorial divisions of the state, to which they severally belong. And their relation to the United States, or to the Confederate States, was to the one or the other just as was the relation of their state. The counties voted for members of congress and for electors of president and vice-president of the United States or of the Confederate States, just as the relation of their state was to the one or the other. The counties had then a relation to the United States or the Confederate States; and during the war it was a relation of amity or hostility, just as was the relation of the state.
The county courts were, and in an important sense, subordinate to the United States or the Confederate States government; and the constitutions of both governments placed them in that state of subordination. ^ For by both the constitution, laws and treaties of the government are declared to be the supreme laws of the land; and “all executive and judicial officers, both of the Confederate States and the several states, shall be bound by oath or affirmation to support this constitution.” The constitution of (die United States has the same provision. See Constitution of Confederate States, article vi, clauses 3 and 4; and Constitution of United States, article vi, clauses 2 and 3. Can it be truly said that the county courts, composed of justices who were bound by one - or the other of these oaths, *were in no sense subordinate to either government? To ask the question is to answer it.
And is the assertion that the counties of a Confederate state “were organized in hostility to the United States” so preposterous as to be incapable of comprehension? The orders made by the county court of Dinwiddie from February 1861 to the August term 1864, set out in this record, plainly show how that court was organized in the interest of and subordinate to the Confederacy and in hostility to the United States. We need not to be informed at this day that if the justices of any county in a Confederate state had renounced their subordination to the paramount authority of the Confederate States, and had taken an oath to support the constitution of the United States, they would have soon found that they were subordinate to the Confederacy unless protected by the United States bayonets.
But it is further said, the counties could not have been organized in hostility to the Union, because their organization into counties antedated the Confederacy. I cannot agree that because bodies politic had a prior existence, they could not afterwards be organized in hostility to a common enemy. The states of the Confederacy all had an organization as states which antedated the Confederacy, yet they organized in hostility to the United States.
Having answered these objections, we will now come to the consideration of other grounds agai'nst the enforcement of such contracts. They cannot be enforced, because the party contracting to pay, and the *183party from whom payment is sought, are not the same.
This court in Commonwealth v. Chalkley, 20 Gratt. 404, refused to enforce the con tract, not upon the Aground that the contract was not just, or was not for a humane and lawful purpose; nor upon the ground that it was invalidated by the state constitution; for Judge Joynes, in his opinion, in which a majority of the court concurred, says (page 413) this question he does not propose to consider, and he rests his decision upon the ground, that the sales were made by Chalkley to the superintendent of the penitentiary, upon the credit of the Richmond state government, to which he looked alone for payment, and that the government from which he now sought payment (the present government) was nol the same government, nor its successor, nor responsible for its acts, nor bound by its contracts.
And this doctrine was again declared explicitly, in DeRothschild v. The Auditor, 22 Gratt. 41. Judge Staples, delivering the opinion concurred in by the other judges, says : It is easy “to demonstrate that this is not the Richmond government, nor the successor of that government, and consequently is not answerable for the debts contracted by that government.” In both of these cases, it was held substantially, that the party contracting to pay, and the party from whom payment was demanded, were not the same.
The counties, as before said, are territorial and political divisions — integral parts — of the state. And if the government of the state at Richmond, during the war, could not by its contracts bind the present government, because it is not the same government which made the contract, nor its successor, foi the same reason the county courts which made the contracts during the war, by authority alone of the state government, could not hind the present county courts to their fulfillment. A power cannot be delegated which the party delegating does noi itself possess, "it *is easier to say that these cases are not applicable to the case in hand, than to show it. In my opinion, those decisions, if they are to be respected, are decisive of this case; and that in fact the latter is a much stronger case against the enforcement of the contract, than either of the former.
Upon another ground, the party contracting and the party from whom payment is sought in this case, are not the same. If the county court which was the contracting party is identical with the present county court, it is" really not the paying party, against whom payment is sought to be enforced. Upon whom would the burden fall? Not upon the party who contracted the debt — a Confederate quasi cornoration, but upon the population of Dinwiddie county, who never contracted with or promised to pay to the appellees —upon men who received nothing for what is now sought to be wrenched from them: for they paid cash for all the salt they got to the agent of the county from whom they purchased; and if the county court misapplied it. it is not their fault, and it is inequitable to hold them bound to pay again. And as has been shown, the county court had no authority to act as their agent or representative to make such a contract. If it had any authority to make the contract, it was a Confederate * quasi corporation, acting under an authority delegated to it by a Confederate legislature, which power, as we have seen, was only co-extensive with the existence of the Confederacy. For when that was extinguished, the Confederate legislature ceased to exist, was defunct — dead, and has no living representative or successor. And the county quasi corporation, as a Confederate entity, to whom the authority to make this contract was delegated, if it was ever in fact delegated, is likewise extinct. To whom then can *the appellees look for payment? To the Confederate quasi corporation with whom they contracted? That is extinct. It died with the Confederate legislature, from which it claimed to have derived its authority, which has no more vitality now than tbe_ head of the Confederacy has. And if so, this Confederate entity, of which the county court of Confederate Dinwiddie county was the organ, like the Confederate legislature of Virginia, has no successor; and the present Union quasi corporation of Dinwiddie county is not bound by its contracts, just as the present government of Virginia was held not to be bound by the contracts of Chalkley & DeRothschild with the government of the Confederate state of Virginia. The people of Dinwiddie county who are now sought to be charged, paid for all the salt they got, and it would be very inequitable and unjust to compel them to pay for it again. And it would be equally unjust to compel those to pay who were not citizens of the county at the time.
Upon the foregoing grounds, I think the argument against the enforcement of the contract in question, and all such contracts, may firmly rest, without stigmatizing them as rebellious and treasonable — the ground upon which their payment is inhibited by the state constitution. If there is no other ground upon which they may be avoided than the inhibition of the state constitution, I cannot perceive how the state or the counties can be relieved from any of them.
Regarding Virginia as it is now, though disrupted and dismembered, upon the false pretence that she assented to it, as the identical Virginia which made those contracts, she could not repudiate her own obligations by so providing in her constitution. And we all hold that she is the same Virginia, though under a ^different government.
It was so held in Higginbotham’s ex’x v. The Commonwealth, 25 Gratt. 627, by the whole court. No more could she repudiate obligations which her counties had assumed by virtue of authority which she delegated to their county courts. I f she could not in the one case, she could not in the other. It is as much her act, if clone by a county court by her authority, without which the county court had no power to contract, as if done by the state *184itself. Qui facit per alium, facit per se, is a maxim of the law. And the doctrine is well settled that a state can no more impair the obligation of a contract by adopting a constitution than by passing a law. The Homestead cases, Judge Christian, 22 Gratt. 266, 281-2, and cases cited. If the -state could repudiate debts so contracted, it can only be upon the ground of a change of relation which affects her political identity, and which would authorize her as a member of the Union to disclaim the obligation of debts which had been contracted in resistance to the Union. And this is very questionable, as under the Federal constitution she is prohibited from passing any law (which embraces constitutional provisions, as is well settled,) which impairs the obligation of a contract. If it be said that the contract having been made in resistance to the power and authority of the United States, it imposed no obligation on the state, and her.repudiation of it in her constitution could not, therefore, be held to be the impairment of the obligation of a contract, that would be conceding that the contract was voidable, antecedent to, and independent of, the constitution, and that its invalidity does not depend upon the constitutional inhibition; and that is what I maintain.
It is otherwise as to an inhibition in the constitution *of the United States. If congress may not legislate to avoid a contract, although the provision in the constitution is only an express inhibition to such legislation by the states, upon which it is unnecessary to give an opinion; the states have the power to alter and amend the Federal constitution. They might erase from it the clause aforesaid altogether, or ordain that it shall not be applicable to a law of congress, or they may expressly provide (as they have done by the fourteenth amendment to the constitution, clause four,) that a certain class of contracts shall be null and-void; that is, that “neither the United States, nor any state, Shall assume or pay .any debt or obligation incurred in aid- of insurrection or rebellion against the United States.”
Whether or not it was rebellion, is a question which we do not mean now to discuss. From our standpoint we could not view it in that light, but it is evidently so treated in this amendment to the constitution. And if it was rebellion, it consisted in the act of secession and in the measures taken to sustain it. The withdrawal of a state and its citizens from the Union, and from obedience to the constitution and laws of the United States, and the confederation with other states to organize a government independent of, and alien to the government of the United States, and in defiance of its authority, constituted the rebellion, if there was rebellion; and this would depend upon the question, whether the states in thus seceding and organizing, were justified in so doing, by violation of the compact of Un.ion by the other states, who were parties to it. This is a question which I do not propose now to consider, because it is immaterial how it may be decided, as to the point in issue inasmuch as the clause in the fourteenth amendment, under consideration, *evidently points to the secession movement as rebellion, and inhibits the payment by the United States, or any state, of all debts contracted in aid of it.
The prohibition of payment is by the United. States or any state. Therefore it does not extend to debts due from individuals or bodies corporate, as distinguished from bodies politic, or such as constitute, or are a part of the political power. It embraces debts contracted by a state, and of course those which are contracted by counties by authority of the state.
It is a conclusion, therefore, which cannot be resisted, that if the contract in question was made in aid of the secession movement, but for which it never would have been made, and was important for the support and maintenance of the Confederacy in its resistance to the power and authority of the United States, its enforcement now falls within the foregoing inhibition of the constitution of the United States. It matters not whether the foregoing amendment to the constitution' was just and right or not. Thus it is written. It has been accepted as a part of the constitution of the United States, and it is binding upon all the courts, state and federal.
But it is only an authoritative declaration by the United States, in solemn form, of a right which I have endeavored to show belongs to the triumphant party in a civil war, or a war between federal states.
This inhibition in the Federal constitution was a matter of great importance to the government of the United States, indeed a requirement of state necessity. It is easy to see at a glance how embarrassing it would have been to the government to have restored all the states which had united in resistance to its authority, with the immense burden of debt which they and their several counties and municipalities had contracted *in maintaining the Confederacy. And upon no principle of law or reason or natural right could a refusal on part of the United States be condemned.
But this restriction was even more important to the states who resumed their position in the Union, and to their respective counties and their municipalities, than for the United States. For them to have undertaken to pay such debts, as were made necessary by secession, and were in aid of the Confederacy, would have been to assume a burden which would have been oppressive, insupportable, and absolutely ruinous to them. And this would have been really the source- of embarrassment to the government of the United States. This restriction imposed on them, in the constitution of the Union, was therefore for their benefit. The failure of the Confederacy. and the incalculable loss of property which it devolved upon its citizens, utterly incapacitated them to assume and pay the accumulation of debt which the states of the Confederacy and their respective counties and municipalities had contracted in their efforts to maintain it.
From what has been said, it is manifest *185that the contract in question is of the class that falls within the prohibition of the fourth clause of the fourteenth amendment of the constitution of the United States, upon which ground alone, if there was no other, it cannot be enforced. It was a contract made with the organ of a Confederate quasi corporation, the county court of a Confederate county. The contract itself was of a novel and unprecedented character, such as would never have been made but for the act of secession, and the formation of the Confederacy, in resistance to the power and authority of the United States. It was not an act of the county court of Dinwiddie, aside from, and independent of, its relation to the ♦Confederacy in the exercise of its ordinary functions. It was only by its relation to, and connection with the Confederacy, that it became necessary, and it was done, and could only be done by an act of the legislature of a state, which was a member of the Confederacy, and united in the organized resistance to the power and authority of the United States. And it was essentially in aid of the Confederacy and of that organized resistance to the United States. If the United States, one of whose methods of reducing the Confederate States to submission to their authority, was to cut off their people from a supply of food, of clothing, of medicine, and all the essentials of living, could have cut off the people of Virginia and of the Confederacy from a supply of salt, an article of vital necessity, it would have been effectual to the speedy overthrow of the Confederacy. The effect of these contracts was to supply that article of necessity, and to enable the Confederacy longer to resist the power of the United States. It is too plain for further discussion, that this contract, and all such, were made by the county courts in their relation to the Confederacy, and as the organs of Confederate quasi corporations in the interest of the Confederacy, and were important, if not essential, for its support and maintenance in resisting the power and authority of the United States, and were made by authority of a state, which was in the confederation against the United States.
But it is said it was an act of humanity to furnish salt to the suffering Confederates, and the claim for compensation should not be rejected. By another order of the same court, provision was made by a loan of money on the bonds of the county for the support of soldiers of the Confederacy, who were disabled, and of the fathers, mothers, wives and children *of soldiers who were killed or died in the service of their country. Can it be conceived that there rests upon the county of Dinwiddie an obligation to pay the claims of the appellees, which is more sacred and binding than the obligation to pay the former? Yet upon the competing doctrine that obligation is canceled, whilst the families of these soldiers who were killed or died in the service, and the soldiers who were disabled in the service of their country, are to be taxed to pay the latter.
But the case cannot be decided on such grounds. Doubtless the people would have suffered if they had not been supplied with salt, and the Confederacy would have sooner collapsed. And so a besieged city would have been forced to surrender if the besieged could not have been supplied with food. It would certainly be an act of humanity to supply food to the starving. But it could not be addressed to the conqueror as a reason why he should require the man to be paid who furnished salt in the one case, or food in the other, whereby resistance to his power and authority were protracted; that it was an act of humanity to furnish them, and that in so doing he had come to their relief as “angels of mercy.”
Doubtless Mess. Stuart, Buchanan & Co. employed their energies, and very commendably, in the production of salt. And whilst they in a legitimate way accumulated for themselves large fortunes, they were rendering essential service to the Confederacy — a service which relieved them from military duty, in the camp and the field, which otherwise would have devolved on them, as on others. Their exemption from military service was, probably, because the supply of salt was essential to the support and maintenance of the Confederacy. Others served the Confederacy in *other ways outside of the army; but all doing what they could for the common cause. They should be paid for the salt which they furnished the county court of Dinwiddie, in the performance of their part of the work, in which all true men in the state were engaged, to defend the liberties of their country, if the party to whom they sold, a quasi corporation of the Confederacy, were now in existence and had wherewithal to pay. And so they ought to be paid for salt which they sold to the Confederate government, if it were in existence.
But in no just sense are the people of Dinwiddie, who paid for all the salt they got, and never promised to pay Stuart, Buchanan & Co., bound morally, equitably or legally to pay it again. The only advantage they derived from the contract made by the county court, beyond what they paid for, was the aid given to the Confederate cause by the furnishing of salt, and that was as much to the advantage of the appellees as to them. If the appellees must lose it, thousands of our people toiled and periled their lives, and gave their time, their labor and their fortunes, for the common cause, and got nothing. The cause in which all were engaged perished, and desolation and ruin were brought upon the slates and their populations, who were consecrated to its success. And it does not seem right that the people who have paid for all the salt they got., and have derived no other advantage from the supply of the salt to the county, than such as was enjoyed in common with them by the appellees, that a people who periled their lives in the field and camp, who were disabled in the service, and the fathers and mothers and wives and children of those who were killed or died in the' service of their country — in a word a people who suffered the loss of property *and their almost entire means of subsistence, in their devotion to the cause *186which was lost, and which was the common cause of the appellees and themselves, should now be required to pay twice for the salt, in order to make good the losses incurred without their fault, by the appellees, in addition to bearing their own burdens and sustaining their own losses.
Numerous decisions of the Federal courts have been cited in opposition to positions which are attributed to counsel in argument, and consequences are deduced from those positions to show their absurdity. As I have' not assumed or sanctioned any of those positions, I am not responsible for the consequences deduced from them. Nor have I in this opinion assumed any position, I believe, which is in conflict with any of the decisions cited, except that I hold that the Richmond government was during the Confederacy the de jure government of Virginia; and inasmuch as the Federal courts, for the most part, concede that it was a de facto government, the difference of opinion on this point is not material in the decision of this case. If I seem to go further than the Federal courts, in relieving the states and the people who were united in the Confederacy from responsibility, embarrassment and loss, it enures to the benefit of those who suffered the loss of fortune and their almost entire means of subsistence by their devotion to what they believed to be the cause of national independence and liberty. And this should not be surprising when it is considered that the subject is viewed by us from different standpoints.
With regard to Jones v. The City of Richmond, 18 Gratt. 517, Town of Danville; v. Pace, 25 Gratt. 1, and Miller & Franklin v. City of Lynchburg, 20 Gratt. 330, it would be easy to show by a review of those decisions *that there is nothing in this opinion in conflict with either of them.
But it is said that the doctrines of this opinion tend to the repudiation of all debts contracted during the war; and this upon the ground that there is no difference as to the present obligation of debts contracted by individuals, and those contracted by the state or the counties of the state during the war; and that if the latter are not binding and valid now, the former are not.
If this is true, the competing view is equally liable to the same objection. For, according to that, contracts made by the state or the counties, by authority of the state, in aid of the rebellion, are valid; and if there is no difference, all contracts made by individuals in aid of the rebellion are invalid. But this court has held otherwise. Bier & Mann v. Dozier, 24 Gratt. 1. The constitution of the United States makes a difference. For the prohibition is limited to debts or obligations incurred by the state or the United States, and does not extend to contracts made by individuals. And I think there is good reason for the difference.
It is obvious that the principle upon which the contract is voidable is applir'''*’ to contracts of the political power wb' . resisted the authority which is established by the war, arid not to contracts in general made by individuals, though they gave aid to the resistance. Individuals were not responsible for the war, nor can be recognized as parties to it. It must, upon well established principles of international law, be regarded as a public war — a war inter gentes, and not as a war between individuals. Their contracts may, therefore, be enforced, though they were in aid of the war. There are other reasons which might be *given in support of this conclusion, if this opinion were not already too extended.
I will notice only one other objection which has'been urged against my conclusions. It is, that if the contract in question was not valid and binding on the people of Dinwiddie county before, the act of February 28, 1866 (Session Acts of 1865-’6, p. 187) gives validity to it and lays the people of the county under obligation to fulfill it.
I would not indulge in remarks of the slightest disparagement to the legislature which passed this act. It certainly embraced some of our ablest and best men. The lamented death of two of them that I might name I have regarded as a great loss to the state; Yet I cannot indorse as wise all that it did nor all that it did not do. It was assembled soon after the war, in troublous times, when everything was unsettled, and dark, angry clouds hovered over and obscured the political horizon. The times were certainly very unpropritious for calm and unbiased and unconfused legislation. This act shows upon its face that it was hastily, carelessly, and loosely drawn. It undertakes, it seems to me, not only to give validity to contracts made by the state government, but also to contracts made by the Confederate government. I was not aware before that much importance was ever attached to it. It is strange that it has not been relied on more frequently for the settlement of controversies by the courts. I do not remember to have known it to be relied on before, by either party, in any controversy in this, or any other -court. If it had never been passed, I hardly think that there would have been any destruction of titles, or ruin of estates, for the want of it; or that the, probate of wills, or the acts of executors, administrators, guardians or other *fiduciaries, would ever have been disturbed by reason of its not having been enacted. And it is my impression that if there had. been no such act in our statute book, the bonds of matrimony would have been as firm as they are with it, and the offspring of the marriages as legitimate. It is also my impression that the punishment of felons could not have been made false- imprisonment, nor murder — and that the bonds of society would have continued as unbroken as they are, and public morals as secure. And I think so because I do not think that it has ever been held by any tribunal that the acts of legislation and administration during the war, in the usual routine and ordinary course of administration, not in the interest or in aid of the Confederacy, and of the resistance to the power and authority of the United States, were not as valid and binding as they would have been *187if the states had remained in the Union and : there had been no secession. This is my opinion, and I believe it is the opinion of the court.
But I hold that the legislature which ( passed this act was invested with no power to impose such an obligation on the people of the state or the several comities. It had only legislative powers under the constitution. It had no power to pass judicially upon the question of the liability of a county or of the people thereof, to pay such debts, much less to create a liability on them to pay, when none antecedently existed. It is a judicial question which could ( ! ( only be decided by the courts.
I am of opinion, therefore, that the contract in question ought not to be enforced against the people of Dinwiddie county. I think there is error also in the order of this court, allowing six per cent, interest when the contract set up by the appellees stipulated *for only three per cent, interest.† I am of opinion that there is error in the judgment of the circuit court, and that the same be reversed.
MoncurE, P., concurred in the opinion of Anderson, Ji
Staples and Burks, Js., concurred in the opinion of Christian, J.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the circuit court did not err in declaring by its decree, that the appellant was liable to the appellees for the claim asserted and proved by them, for salt furnished to the said appellant, under said contract of the 19th May, .1803. But the court is of opinion that the circuit court did err in not scaling the amount of said claim from its nominal to its true value in gold, according to the scale of depreciation of Confederate currency at the time when such contract was made and entered into; and it is decreed and ordered that to this extent, the said decree be reversed and annulled. And the court proceeding to enter such decree as the said circuit court ought to have rendered, it is further decreed and ordered, that the appellees recover against the appellant *two thousand * and fifty-two dollars and ninety-four cents, with interest thereon, to be computed after the rate of six per centum per annum, from the 1st of January, 1863, till payment, and ■ their costs by them expended in the : ( \ prosecution of their appeal in the said circuit court; and they being the parties substantially prevailing, it is ordered that they also recover against the appellant their ( costs by them about their defence in thi! behalf expended in this court. Which is ordered to be certified to the said circuit court of Dinwiddie county.
Judgment reversed in dart, but affirmed ON THE IMPORTANT POINT.
The court in the opinion holds that the claim of the appellees “is a valid claim, arising upon a contract made with the county court of Dinwiddie for salt furnished said county, and the claim for which was recognized by said county in writing, and made a matter of record as shown by the following order:
“Virginia — Tn Dinwiddie county court, June 16th, 1863: Ordered that the clerk of this court issue a bond for 53,695.30, payable to Stuart, Buchanan & Co., for salt to be delivered by contract, the said bond to be paid the 1st January, 1866, with interest at three per cent, thereon from the 1st January, 1863."
Sealed Instruments — AeknOTrledging: Seal in Body of Instrument.—In Bradley Salt Co. v. Norfolk, &c., Co., 95 Va. 461 the discussion in the opinion of the principal case, pages 530, 531, concerning the validity of a paper exhibited in the record as a bond of the county of Dinwiddie is referred to as sustaining the proposition that by the Virginia statute in order to constitute a sealed instrument the seal (even if an actual seal and not a scroll) must be acknowledged in the body of the instrument. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481923/ | Burks, J.,
delivered the opinion of the court.
On the 10th day of May 1869, the plaintiff’s wife handed to the defendant what was claimed to be a thousand dollar National Bank note, she representing' that her little son had found it, and offering to pay the defendant one hundred or one hundred and fifty dollars if he would find out whether the note was good. *The defendant declining to make any charge, took the note and put it into his iron safe in his store-house for safe-keeping. Within a few days afterwards, according to the statement of the defendant, his store-house was broken into, the safe forced open, and the note, together with several hundred dollars of the,,, plaintiff’s own money in the safe was stolen, and never recovered. Suit was brought by the plaintiff in the corporation court of the city of Alexandria to recover the amount of the note from the defendant, and on the trial verdict and judgment, were rendered for the defendant, to which judgment a writ of supersedeas was awarded the plaintiff by one of the judges of this court.
At the trial both plaintiff and defendant prayed instructions to the jury. Those asked by the defendant were given, and those asked by the plaintiff were refused, and the plaintiff excepted. The plaintiff also moved *193the court to set aside the verdict of the jury and grant him a new trial, on the ground that the instructions given were erroneous. The motion was overruled, and the plaintiff again excepted.
It appears Irom the bills of exceptions that the plaintiff’s recovery was resisted mainly on two grounds : First, that the title of the plaintiff, acquired by the finding, which was communicated to the defendant at the time the note was delivered to him, was not sufficient to support the action; second, that the note was stolen from the possession of the defendant without negligence on his part.
Tf the owner of a personal chattel voluntarily and wholly abandons it, intending not to reclaim it, the first occupant acquires an absolute right to it. If, however, he merely loses it accidently, he does not part with his title, and the finder becomes a quasi depositary, invested with such possessory interest as will ’-entitle him to hold it against all the world except the rightful owner. This rule of law has never been seriously questioned since the leading case of Armory v. Delamirie, reported in 1 Strange 504 (see 1 Smith’s Read Cases, part 1, side p. 471, and notes).
It is contended, however, that the rule is limited to the finding of a personal chattel, and has no application to choses in action; and in support of this proposition we are referred to the case of McLaughlin v. Waite, 9 Cow. R. 670, affirmed (with much dissension) in 5 Wend. R. 404.
The reasoning of the distinguished chancellor (Walworth) in the case last named is somewhat subtle and not very satisfactory: but if his conclusion is sound, that negotiable notes, bankers’ checks and lottery tickets, payable to the holder, are not within the operation of the rule, still it by no means follows that current bank notes, convertible at par info money, are not subject to the rule. The finder of money, we apprehend, would acquire by the finding the same title to it that the chimney sweeper’s boy in the leading case acquired to the jewel which he found, and which he was permitted to recover in an action against a wrongdoer.
Bank notes are not money in a strict sense. They are not a lawful tender in discharge of debts and obligations solvable in money; but for most purposes in the transaction of business, and by common consent, they are considered and treated as money. “They are not esteemed.” says Rord Mansfield, “as goods, securities, or documents of debt; but are looked on as money, as cash, in the ordinary course and transaction of business, by the general consent of mankind; which gives them the credit and currency of money to all intents and purposes.” They are as much money as guineas ’-themselves are, or as any other current coin that is used as money or cash. Miller v. Race, 1 Bur. R. 452, 457.
Such being their character, we can see no good reason why the finder of a bank note of a solvent institution does not acquire by the finding the same title as the finder of a personal chattel, and why he is not entitled to the same remedies against third parties.
That his title and remedies are the same, notwithstanding what is said by the Chancellor in McLaughlin v. Waite, supra, would seem deducible from the case of Bridges v. Hawkesworth, 7 Eng. R. & Eq. R. 424. The plaintiff in that case having picked up from the floor of the shop of the defendant a parcel containing bank-notes, handed them over to the defendant to keep till the owner should claim them. They were advertised by the defendant, but no one appearing to claim them, and three years having elapsed, the plaintiff requested the defendant to return them, tendering the costs of the advertisements, and offering an indemnity. The defendant having refused to return them, it was decided that the plaintiff was entitled to the notes as against the defendants. The recent case (1874) New York & Harlem R. Road Co. v. Haws & al., 56 N. Y. R. 175, though not directly to the point, is suggestive.
Now, if the reasoning of Chancellor Walworth in the case cited from 5 Wend., supra, justly applies to bank notes, then the plaintiff was not entitled to recover in the case of Bridges v. Hawkesworth, supra. It is true, that in the last-named case indemnity was offered to the defendant before action brought; but it would seem that was necessary in that case because the notes were deposited by the finder with the defendant “to keep until the owner appeared to claim them." It is so expressly stated; and the defendant hav ing, by ’-the terms of the bailment and the advertisements, come under obligation to the owner, it was but just and reasonable that before he should be required to return the notes to the finder he should be indemnified against the liability he had incurred to the owner, should he after-wards appear and establish his right. There would seem to have been no necessity for the indemnity but for the undertaking of the bailee by his contract of bailment and by his advertisements, to account to the owner for the notes if he should appear.
As a general rule, the bailee is not allowed to dispute the title of his bailor, and we see no good reason why the depositary of a lost bank note, as between himself and the finder, should be an exception to this rule, where the owner is unknown and there is no assertion of claim on his part against the depositary. To permit the latter, under such circumstances, against his contract of bailment, to withhold the note from the finder, and if the owner never appears, to appropriate it to his own use, would be to protect him in his fraud and dishonesty — a thing not to be tolerated, much less sanctioned, in any court of justice.
The defendant being a mere depositary of the note, a bailee without reward, holding the note only for the benefit and accommodation of the plaintiff, he was not bound to use as great care and diligence in the custody of the note as if he had been a bailee with compensation, and therefore it the note was stolen from his posses*194sion he was not accountable for it unless the loss was the result of gross negligence on his part.
The first instruction given to the jury on the motion of the defendant, and the two instructions prayed by the plaintiff, and refused by the court are in conflict with our views of the law hereinbefore expressed. *The second and third instructions given seem free from error. . The court is therfore of opinion, that while the corporation court of the city of Alexandria did not err in giving-the second and third instructions as prayed by the defendant, nor in rejecting the instructions prayed by the plaintiff, yet the said court committed an essential error in giving the-first instruction asked for by the defendant: and for this error the judgment of the corporation court must be reversed and annulled, the verdict of the jury set aside and a new trial ordered.
The judgment was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the finder of a bank note, as against a bailee without reward, to whom he delivers it, to be kept for such finder, has such possessory interest in the note as entitles him to recover the same of said bailee on his refusal to re-deliver it to the finder on request and in the absence of any claim of the rightful owner made known by him to such bailee; and such bailee is not bound to use as great care and diligence in the keeping of. said note as he would be if he were a bailee with compensation, and if the note were stolen from his ¡possession he would not be liable for it unless the loss was the result of gross negligence on his part; and the court is further of opinion, that while the said corporation court did not err in giving the second and third instructions to the jury prayed by the defendant in *error, nor in refusing to give the two instructions prayed by the plaintiff in error, yet the said court did err. in giving the first instruction asked for by the defendant in error, and further erred in overruling the motion of the plaintiff for a new trial; it is therefore considered by the court that the said judgment be reversed and annulled, and that the defendant in error pay to the plaintiff in error his costs by him expended in the prosecution of his said writ of supersedeas here; and this court proceeding to render such judgment as the said corporation court ought to have rendered, it is further consider that the verdict of the jury be set aside,'and a new trial of the issues in the cause be granted, and upon such trial the said corporation court, in the giving or refusing of instructions to the jury, shall.be governed by the opinion and principles herein expressed; and this cause is remanded to the said corporation court for further proceedings to be had therein in conformity with the' directions herein contained: which is ordered to be certified to the said corporation court of the city of Alexandria.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481925/ | Staples, J.
The appellants purchased the land in controversy , from Nelson T. Pate. Before paying the purchase money they caused to be made a diligent search of the proper clerk’s office, to ascertain whether there were then any incumbraces upon the property. They did not search the judgment docket; but their counsel made a careful examination of the index to the docket,, and failed to discover any trace of a judgment against Pate. Thereupon the appellants paid the purchase money and recorded their deed. It now appears that the appellees had recovered judgments-*against D. B. Bridgford and N. Tinsley Pate, partners trading under the firm and style of Bridgford & Co., and in this form the judgments were docketed. The clerk, however, did not index the judgments in the individual name of Pate, as required by the statute, but only in the partnership name of Bridgford & Co.; and thus it was, the appellants, in making their search, failed to discover the judgments against Pate.
The question arising here is. whether the appellants are entitled to hold the land discharged of the lien of those judgments. In Beverley v. Ellis & Allen, 1 Rand. 102, this court held, that when a purchaser deposits his deed with the clerk for recognition, it is a full compliance on his part with the statute, although the deed is never recorded. A construction, said the court, could never be tolerated which would make the rights of a purchaser depend on the acts or omissions of the clerk, over whom he has no control, and with whom the law compels him to deposit his deed.
In the present case the chancellor, relying upon the principle as laid down in Beverley v. Ellis & Allen, was of opinion, that all the statute requires of the creditor to preserve his lien, is that he shall deliver to the clerk an authenicated abstract of his judgment and require him to docket it; that every other step must be taken by the clerk, over whom the creditor has no control, and for whose failure the creditor cannot be held responsible; and if the purchaser is misled by the failure to index, he must look to the clerk.
The learned counsel for the appellant has stK.ngly controverted this proposition. Pie insists that the statute under which Beverley v. Ellis & Allen was decided, is different in its phraseology from the statute relating to the docketing of judgments; and he has cited numerous decisions in other states, to show that *in cases of this character it is the duty of the creditor to see that his judgment is duly and properly docketed, and every requirement of the law fully complied with; otherwise the purchaser will hold the land discharged of the lien; and the creditor must look to the clerk.
In the view wc have taken of this case, it is unnecessary to decide this question. Conceding for the sake of the argument, it is the duty of the creditor to have his judgment docketed, the question still arises whether that has not been done in the case before us. As already stated, the abstract of the judgment was properly placed on the judgment docket, but it was not indexed in the individual name of the defendant Pate. The point presented is, whether “indexing” is a part and necessary part of the docketing. In other words, is the docketing incomplete until the judgment is also properly indexed in the name of the defendants. This ques*198tion must of course be solved by the provisions of our statute exclusively.
The first act passed upon this subject was in April 1843. A recurrence to that act will very materially aid us in reaching a correct conclusion. The first section provides, it shall be the duty of the clerk of the county court to keep in well bound books a judgment docket, in which shall be regularly docketed all such unsatisfied final judgments, decrees, &c., as any person interested therein shall require him to docket. In such docket there shall be plainly set down in separate columns the date of such judgment or decree, the name, description and residence of the parties, the amount of the debt, costs, &c., appearing in each case, and the amount and date of the credits, if any. We have here plainly pointed out what constitutes a . docket, the manner and form in which it shall be made out, *and the facts it is required to set forth for the information of parties concerned. Having thus provided for a docket, the act makes provision for an index as follows: “And, for the purpose of more convenient reference, there shall be made and preserved in the same books a plain and accurate index of all judgments, decrees, &&, docketed, and every judgment, &c:, in the said index shall be set down in alphabetical order, the names of the debtors, and each of them.”
The second section provides, that “if any clerk shall fail to docket without _ delay, in the manner herein prescribed, any judgment, &c., which he shall be required to docket, or shall fail to. make and preserve the index hereby required of him, he shall be liable to the action of the party aggrieved for such damages as he may sustain thereby.” It will thus be seen that the docket is one thing, and the index another, and quite a different thing. Nothing can more strongly enforce this distinction than the language of the second section just quoted. The clerk is required to docket only when requested, but it is his duty to index, whether requested or not. While the statute imposes upon the creditor the duty of requiring the clerk to docket the judgment, it imposes no duty upon him with respect to the indexing. With that the creditor need not concern himself. Certainly he is not compelled to make any demand upon the clerk by the express terms of the provision. The sole object of the . indexing, as disclosed in the statute, is “for the purpose of a more convenient reference, to facilitate the search, to enable parties more readily to find that which is contained in the docket.” The index is a guide to the docket; it saves labor and trouble in examining the docket, but it is not the docket itself, nor a part of it. We come then to the fourth section, which provides that “no ^judgment or decree shall bind the land against a bona fide purchaser for valuable consideration without notice, unless the same shall be docketed in 'the manner prescribed in the first section.”
Now if this section had provided that the judgment shall not constitute a lien unless docketed and indexed according to the first section, the question would be free from difficulty. But-it does not say so. The forfeiture results only from a failure to docket; and as we have seen, the docketing is complete without the indexing. If the clerk fails to make the index as prescribed by the statute and the purchaser is misled, the latter doubtless _ may have his action for damages. But this is no concern of the creditor. Having docketed his judgment, he may safely leave the rest to the clerk, whose duty as to the index does not depend upon any act or request of the creditor. The provisions found in the revisal of 1849 are substantially the same as the act of 1843. The only difference is, that in the former the revisors omitted the phrase “for the purpose of a more convenient reference.” It is certain that no material change was thereby intended. It was probably thought those words were unnecessary, and consequently they were left out in conformity with the plan of condensing all the statutes.
In the decision of questions of this character little aid is to be derived from the decisions of other states, unless their laws substantially correspond with ours. The statutes of the state of New York are perhaps more nearly like these of Virginia in this particular than those of any other state. There the law requires a record book of all deeds and mortgages; and it further declares that the clerk shall provide books for making general indices, and shall form in-dices therein in such manner as to afford convenient and easy reference *to the several books of record in their offices respectively. This ■ act was passed about the same time as ours, in the year 1843. In a very recent case—Mutual Life Ins. Company v." Drake, reported on the Central Law Journal, 340, of April 13th, 1877— the question arose as to the rights of a bona fide purchaser as against 'the lien of a mortgage. There also the purchaser had examined the index, but found no reference to a mortgage, although in fact it was duly recorded. The court of appeals held that the provision in respect to indexing instruments did not show any ground for claiming that the index should constitute notice. .The index was simply required to be attached to each book; and all this was for the convenience of these searching the records, but was not considered part of the records. Judge Smith, who spoke for all the_ judges, in closing his opinion, uses the following language: “On the whole, I am of opinion that under our statute the index is not an essential part of the record for the purpose of notice; that in this case the plaintiff’s mortgage was duly recorded so as to be regarded as giving notice to after-purchasers, and' that the lien of the plaintiff’s mortgage is superior to that of the Baity mortgage held by the defendant Dake. In reaching this conclusion. I have not overlooked the practical inconveniences that may result from it in searching records. But the duty of- the court is only to declare the law as the legislature has laid it down. Arguments *199ab inconvenienti may sometimes throw light upon the construction of ambiguous or doubtful words; but where, as here, the language of the law makes it plain they are out of place. Inconveniences in practice will result, whichever way the question shall be decided. The power to remedy them is in the legislature, and not in the “’'courts. Even as the law now stands, the party injured by the omission of the clerk is not without remedy, for he has his action against the clerk.”
All that is here said is equally applicable to the case before us. Indeed it would be difficult to find an authority more directly in point. Judge Smith further states, that the statutes of Vermont and Missouri are the same in many respects as those of New York, and he relies upon Curtis v. Lyman, 24 Vermont R. 338, and Bishop v. Schneider, 46 Missouri R. 472, in which the same questions arose, and the same doctrine was affirmed by a unanimous court. See also the recent case of Chatham v. Bradford, 50 Georgia R. 327, upon the construction of a statute similar in many of its provisions to the New York statute. These cases substantially assert that the index is no part of the record, but a means of easy reference to the record. If the clerk fails to make the index, he injures those who desire to make the search. The clerk’s duty is therefore to the searcher and to the public, and not to the holder^ of the deed. When the latter has placed his deed upon the record book he has done all the law requires him to do. Any one who will take the trouble can examine this record. The time and labor expended in making this examination is merely a question of degree. If the party pursuing the search is content with looking at the index, without an examination of the record, and he is thereby misled, his remedy is against the clerk, whose duty it is to prepare the index for the benefit of the searcher, and not of the holder of the deed. These views are not only in conformity with the provisions of our statute, upon a fair and reasonable interpretation, but they are intrinsically just and sensible in themselves. All that is said with reference to the holder of a deed admitted to ''record, but not_ indexed, is equally applicable to a judgment creditor, whose judgment is docketed and not indexed. Upon the whole, we are of opinion there is no error in the decree of the chancery court, and the same must be affirmed. Before concluding this opinion, it is proper to state that the legislature has recently amended the statute on this subject. And it is now provided, everv judgment shall so soon as it is docketed be indexed by the clerk in the name of each defendant "thereon, and unless so indexed it shall not be regarded as docketed. With the wisdom or propriety of this amendment the courts have no concern.^ Being prospective necessarily in its operation, it can have no application to the present case.
MoncurE, B., and Christian and Burks, Js„ concurred in the opinion of Staples, J.
Decree apeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481927/ | *Moncure P.,
delivered the opinion of the court.
The court is of opinion that the appellant has a right to prosecute this appeal; for although pending the suit, in which the decrees appealed from were rendered, he became a bankrupt, whereby his estate generally was vested in his assignee in bankruptcy; yet he still had, and continues to have, such an interest in his estate, on account of his claims to exemptions and homestead of the same, as entitles him to prosecute this appeal, which therefore ought not to be dismissed on the ground of his want of such an interest.
*270The court is further of. opinion that there is no error in the decree of the 29th day of May 1873, “because it decrees sale of land, the legal title to which is outstanding in Hercules Scott, who was no party to any of the suits, and was not in any way brought before the court.” The said legal title became vested in Hercules Scott, if at all, under and by virtue of a deed of trust bearing date the 5th day of April 1861, which was about that time duly recorded in the clerk’s offices of Mercer'and Tazewell counties, both of which were then in Virginia, and which adjoin each other. The land conveyed by the said deed is therein described as “a certain tract or parcel of land lying partly in Tazewell county, and the remaining part in Mercer county, the tract containing about three hundred and eighty acres, being the land whereon I no reside, containing all the land I own on the waters of the Brush Pork of Bluestone, the same composed of two surveys, be the same more or less, in trust to secure C. D. and H. W. Straley in the sum of $625, for which there is a bond this day executed, bearing date the 5th ApriJ 1861, and due twelve months after date, with interest from date.” Since the date of that deed Mercer county has become *a part of West Virginia, while Tazewell county, in which the mansion house on the said tract of land is situate, and in which the appellant always has resided, and yet resides, still remains in Virginia. The deed was executed only by Jacob Barger, the appellant. Hercules Scott did not execute the deed, and it does not appear that he ever acted under it, or accepted it, or its terms, or had any knowledge of its execution by the grantor. All the other parties having any interest in, or title to the land, resided and continued to reside in Virginia, except the said Scott and the Straleys, who, it seems, resided in West Virginia. The Straleys have filed their answer, and thus submitted themselves and their interest in the said land to the jurisdiction of the court in which the decrees appealed from were rendered. Under these circumstances, the circuit court of Tazewell county had jurisdiction to make the said decree of the29th of May,1873, notwithstanding the said Hercules Scott was not a party to the suits in which it was rendered. Penn v. Lord Baltimore, 1 Vez. Sr. R. 444; Massie v. Watts, 6 Cranch 148; Dickinson v. Hoomes’ adm’r &c., 8 Gratt. 353, 410-428. and cases therein cited.
The court is further of opinion, that there is no error in the said decree, “because it decrees substitution in favor of Austin Mullins to the lien of a debt which was a liability incurred prior to the 10th day of April 1865, arid then, without any waiver on the part of Jacob Barger, orders sale of the land on six, twelve and eighteen months, instead of one, two and three years credit. Code of 1873, ch. 174, § 3.” The liability of Austin Mullins as surety for Jacob Barger was incurred by a bond bearing date the 16th day of December 1870, payable twelve months after date, and •executed in pursuance of an act ap¡proved May 28, *1870, entitled “an act to prevent the sacrifice of personal property at forced sales” — Acts of Assembly, 1869-’70, chapter 120, page 162; which bond by said act was required to be returned in the same manner as a forthcoming bond is required to be returned, and was declared, from and after its return, to have, as against the obligors therein then living, the force of a judgment. The surety in this bond, Mullins, was entitled by substitution to the lien thereby created under the said act; which lien certainly was to secure a debt contracted. or liability incurred, after the 10th day of April 1865. Id., ch. 277, p. 426; Code, ch. 174, § 3, p. 1123.
In fact, all the judgments on account of which the land was decreed to be sold in these cases, were obtained after that day; and the deed of trust in the proceedings mentioned, of the 14th day of December 1871. from said Barger to Evan H. Brown, conveying the said land and other property to secure a debt therein mentioned, due by said Barger to C. D. and H. W. Straley, to satisfy which, as'well as the said judgment, the said sales was decreed to be made, expressly authorized a sale under the said deed to be made for cash. It was not erfor, therefore, to decree a sale of the said land on a credit of six, twelve and eighteen months; as was done in the said decree of the 29th day of May 1873.
The court is further of opinion, that there is no error, in the said decree, “because it decrees a sale of the land in the bill mentioned, which was three hundred and eighty acres, lying partly in Virginia and partly in West Virginia, thus going beyond the power and jurisdiction of the court.”
The reasons and authorities against this third assignment of error are the same as those already *stated and cited in regard to the first assignment of error. The court is further of opinion, that there is no error in the said decree, “because it did not specify in exact terms the land to be sold, but used such vague and indefinite terms with regard to it, that it was within the power or caprice of the commissioners to sell all the lands mentioned in the Brown trust deed.”
The decree was for the sale of the land in the bill and proceedings mentioned, or so much thereof as might suffice to satisfy the purposes of the decree. The land is described with sufficient certainty in the bills, and the decree could be made certain by reference to the bills. “That is certain which mav be made certain.” applies to the case.
The court is further of opinion that there is no error in the said decree, “because it did not dismiss the Marrs and Buckland bills and the Buckland petition, when the charges of fraud so freely made therein were ascertained and decreed to be false.”
The judgment creditors of Barger had a right to subject to the liens of their judgments respectively such real estate, or such' interest in such real estate, as was liable thereto. If he had conveyed any of his real estate by a deed fraudulent as to his creditors, they had a right to impeach such deed for fraud, and, if proved to be fraudulent, to have *271it set aside and the land entirely subjected to the payment of the debts due by him to them. Or, if the deed supposed and charged by the judgment creditors to be fraudulent as to them should turn out on investigation and enquiry to be fair and bona fide and intended to secure an honest debtor, and anything should remain after satisfying such debt, they would have a right to subject such residue to the payment of the debts due to them, and *to do so^ in the same suit brought by them to impeach and set aside the deed, without the necessity of dismissing that suit and bringing another. They may bring one suit in equity with a double aspect, and claim, in the alternative, to subject the whole estate conveyed by the supposed fraudulent deed, if it turn out to be fraudulent, or the surplus which may remain after satisfying any incumbrance on the estate which may turn out to be valid against creditors. This is common practice, both convenient and economical, well sustained by authority.
The court is further of opinion that there is no error in the said decree, “because it decrees large debts against Jacob Barger in Favor of C. D. and H. W. Straley, his co-defendants, when, first, there was nothing in the pleadings to justify such a decree between co-defendants; second, they had not been required to account for the thousands of dollars worth of property conveyed^ to their trustees for their benefit; and, third, they have been freely charged in two of the bills and the Buckland petition with guilty knowledge and participation in the frauds alleged against Jacob Barger.”
First. There was enough in the pleadings to justify such a decree between co-defendants.
The claims in the bills are of judgment liens upon the land conveyed by the judgment debtor to secure a debt alleged by him to be due to his co-defendant, but alleged by the judgment creditors to be a fraudulent contrivance as to them, or not to be due, or not to be due in so large an amount as to absorb the whole value of the land. In such a case it is manifest that there would be amply enough in the pleadings to warrant any decree between co-defendants which justice might require. Such a decree would, in effect, be a part of the relief to which the judgment creditors *would be entitled against their debtor. They would have a right to have the prior lien in favor of the co-defendant discharged, in order that the residue may be applied to the payment of their judgments.
Second. It is not alleged that they (the Straleys) have ever received any of the property conveyed to their trustees, or either of them for their benefit. No such allegation has been made, either by Barger or any of the other parties. No motion has been made by any party for any enquiry on the subject. If such an enquiry had been asked for, it would no doubt, as it should, have been, ordered. Probably it was not asked for, because it was known that none of the property had come to the hands of the trust creditors or their trustees, and because it was desired to avoid unnecessary expense. It may be asked for hereafter if desired. The deeds of trust were not executed by the trustees nor the trust creditors.
Third. As the proofs did not sustain the charges made in two of the bills, and the Buckland petition against the trust creditors of guilty knowledge and participation in the frauds alleged against Jacob Barger, they were entitled to decrees against him for the debts due them by lien and secured by the deeds of trust, in order that the surplus might be ascertained and paid to the judgment creditors.
The court is of opinion that there is no error in the said decree for the grounds assigned on the seventh, eighth, ninth and tenth assignments of error as follows, to wit:
“7th. Because it permitted the parties to an angry' controversy based upon charges of fraud, plaintiffs and defendants, to combine together against the other defendant for the purpose of dividing his property among them. If the charges of fraud were true, _ then *the Straleys were particeps criminis, and entitled to no favor from the court. If they were false, then the plaintiffs who made them deserved no countenance in a forum of conscience.”
This has been already answered.
“8th. Because it decreed in favor of J. W. Buckland for Tabor, without requiring process to be properly executed on Jacob Barger in that cause.”
Whether properly executed on him in that cause or not, it was properly executed on him in the other causes which came on to be heard together with that cause. He appeared and made defence to all the causes, without objecting that process had not been properly executed on him in that cause. He therefore waived the objection on that ground, if he had any.
“9th. Because the court had no right to sell to pay inferior debts, lands conveyed in trust, without either setting aside the deeds and divesting the trustees of the tifie, or else compelling a full settlement of the trusts, and requiring all the property conveyed in trust to be brought before it or accounted for.”
This has already been sufficiently answered.
‘Both. The causes having been consolidated, and two of them having been brought in the same court with knowledge of the pendency of the first therein, it was error to decree separate costs against the defendant, Barger, in each case, especially when the charges of fraud were not sustained.”
_ The plaintiffs in the several suits had a right to bring them severally and to recover several costs; and it is doubtful whether they could have been consolidated without their consent. Claiborne v. Cross &c., 7 Leigh 331. Tim case is different from that of Stephenson v. Taverners, 9 Gratt. 398, which was a creditors’ suit for the administration of assets, in which all the ^creditors ought to come in and prove *272their claims under a decree for, an account in a suit brought by one or more of the creditors, either for himself of themselves alone, or in behalf also of all other creditors who might choose to come in and prove their claims before the commissioner. Even in such a case the creditors may commence their suits severally, but must unite in taking one account under the first decree which is made for that purpose in any oi the suits. Id., and the authorities cited. But even in such cases as are now under consideration, they should at least be heard together, if not consolidated, and that is what was done in these cases. It does not appear that more costs were decreed in them in favor of the plaintiffs than were proper.
But the court is further of opinion, that in the decree made in these causes on the 5th day of September 1873, the circuit court erred in overruling the exceptions of the defendant Barger to the report of the commissioners apnointed to sell the land in the bills mentioned, and in confirming the said report, and in appropriating any part of the proceeds of said sale.
There is too much uncertainty as to what land was sold, or intended to be sold, by the commissioners, to warrant the confirmation of the sale and their report. They report that “they sold the tract of land in the bill mentioned, known as the home tract, at public outcry, to C. D. and H. W. Straley, on the 29th day of July 1873, that being court day, for the sum of $1,700, that being the highest bid offered, &c.” Now, “that the tract of land in the bill mentioned, known as the home tract,” is further described in the different bills as lying partly in Tazewell county, Virginia, and partly in Mercer county, West ^Virginia, but how *much in each is differently stated in the different bills. Did the commissioners sell and intend to sell the whole tract, or only so much as is situated in Tazewell county? From their report, it is doubtful. They therein say, that "they sold the tract in the bill mentioned known as the home tract;” which seems to embrace the whole tract lying in both counties, described in the deed as containing three hundred and eighty acres. But in an addendum to their report they further say, “that they find from the commissioner’s book, that the aforesaid 'lands so sold as aforesaid, was assessed at the last assessment made for the purposes of taxation, at $1,189.50. See abstract from commissioner’s books herewith filed, marked S. H. The land sold for more than its assessed value.” From the abstract referred to, the quantity of the land assessed is described as one hundred and eighty-three acres; which of course was only that part of the tract situated in Tazewell county, and that would seem therefore to be the only land intended to be sold. If the whole tract of three hundred and eighty acres was intended to be sold, the sale was no doubt at a sacrifice. If only the one hundred and eighty-three acres lying in Tazewell county, the sale may have been at a fair price. In this state of uncertainty the court erred in confirming the report of the sale.
The court is further of opinion, that the final decree made in these causes on the 17th day of May 1875 is erroneous, for reasons already stated and for others. Whether the decree rendered in the said causes on the 5th day of September 1873 was a decree by default or not, the circuit court erred in dismissing the defendant Barger’s motion for relief against that decree, which was erroneous for reasons before stated, if no other; and his motion might be regarded as a petition *for rehearing, and the relief sought obtained in that way, if it could not be obtained under the Code, chapter 177. section 5, page 1135. The said court also erred in not directing the assignee in bankruptcy of the defendant Barger to be made a defendant in these suits; and in not proceeding to adjudicate upon the question of the right of the said Barger to homestead under the constitution and law of the state of Virginia and the acts of bankruptcy of the United States. That claim had been asserted by him before the court of bankruptcy of the United States; but that court had referred it to the said circuit court in these cases. And the said circuit court erred in not taking cognizance of and adjudicating in regard to the same. But this court does not now express any opinion upon the question in regard to said claim, as it would be premature to do so.
The court is therefore of opinion that so much of the decrees appealed from as is in conflict with the principles above declared and opinion above expressed ought to be reversed and annulled, and the residue affirmed, and the cause remanded to the said circuit court, in order that the said assignee in bankruptcy may be made a defendant to the said suits, and that further proceedings may be had therein to a final decree in coformity with the said principles and opinion.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481928/ | Christian, J.
This is one of the numerous cases which have arisen since the close of the late civil war, upon contracts entered into by the county courts of this commonwealth under the act passed March 9th, 1862, “authorizing the county courts to purchase and distribute salt amongst the people, and provide payment for the same.”
The main question which arose in the other cases, to wit. that said act was void, because contrary to that provision of the constitution (article 10, section 10) which declares that “no county, city or corporation, shall levy or collect any tax for the payment of any debt contracted for the purpose of aiding any rebellion against this state or the United States,” need not be further considered in this case, as it has been definitely settled by the decision of this court in the case of Dinwiddie County v. Stuart, Buchanan & Co., decided at the last Richmond term, and not yet reported. Supra 526. In this case it was held that said act was not in violation of said provision of the constitution, and that all contracts made in pursuance of its provisions were valid and could now be enforced against the counties. Upon this point, therefore, the decision in that case is conclusive of this.
In the case before us there are several other errors assigned to the judgment of the circuit court. It is necessary to notice only one, as the decision of the question therein raised will be conclusive of this case. That assignment of error is, that the circuit court erred in giving judgment against the county of Pulaski, '-‘because the record of the county court did not show that when the purchase of salt was ordered by said court “a majority of the justices of said county were present, or that the justices had been summoned to attend to act upon the matter,” as provided by the first section of the act of May 9th, 1862.
This same question was raised incidentally in the Dinwiddie case (supra). In that case, the judge delivering the opinion of the majority (and in this part of the opinion the whole court it is understood concurred) said: “I am further of opinion that the paper exhibited in the record as the bond of the county of Dinwiddie is invalid as a bond. Such invalidity, however, does not arise from any want of legal form. In form and legal effect it is a bond. It is an obligation on the part of the county of Dinwiddie to pay a sum certain to Stuart. Buchanan & Co.. it is sealed with the seal of the court; the seal is acknowledged in the body of the instrument as follows: “Being a bond created by order of the county court of Dinwiddie, made, &c., in pursuance of an act of the general assembly of Virginia,” &c. This is equivalent to *274saying, “being an instrument under seal,” and is a sufficient recognition of the seal in the body of the instrument. But this paper is invalid as a bond of the county, because it does not appear in the record that at the court at which it had been executed the justices had all been summoned, or that a majority were present; indeed, it appears that only three justices were present. It cannot be presumed in a case like this that the justices had been summoned. This ought to appear affirmatively, and the record should show that a majority were present. The court was acting upon a matter, of special jurisdiction, conferred by a special statute, and upon a matter outside of its general jurisdiction. The *case does not therefore come within the doctrine declared by this court in Ballard & als. v. Thomas & Ammon, 19 Gratt. 14. Here the jurisdiction was special, fixed by a special statute, and must be exercised in accordance with the provisions of the statute; that is, either when the justices had all been summoned, or when a majority were present. The proceeding in this case (the execution of a bond) not being a judicial proceeding; within it,s ordinary jurisdiction, must be shown affirmatively to be strictly within the provisions^ of the statute within which the proceeding was' had.” ’ . ■
. The principles thus declared in the Dinwiddie case would seem to be conclusive of the case before us. But as it was urged by the able counsel for the appellees here that the question arose only incidentally in the Dinwiddie case, and that the attention of the court in that case was directed mainly to the great question of the constitutionality of the act, we have gladly permitted them t'o argue this point, as if no d'ecision had ever been made by this court in respect to it. And with an anxious desire to correct our judgment (if wrong) on this point, we have carefully considered their argument and the authorities upon which it was based, as well as all others at our command, apd our conclusion is, that both upon principle and authority the doctrines declared in the Dinwiddie case on this point are sound and true, and established by the decisions of the supreme court of the United States, as well as by the well considered decisions of the state courts.
It was argued by the learned counsel for the apellee that the case of Ballard & als. v. Thomas & Ammon, 19 Gratt. 14, was m opposition to the opinion of the court in the “Dinwiddie case;” and that to affirm the *Dinwiddie case would be to overrule the former case. These cases are perfectly consistent, and can well stand together. In the Dinwiddie case, the court distinguished that case from that of Ballard & als. v. Thomas & Ammon. The distinction is plain. In the Dinwiddie case, and in this case, the action of the county court was purely ministerial and not judicial. In the case of Ballard & als. v. Thomas & Ammon, the action of the court was judicial. Judge Joynes recognizes this distinction, and founds his opinion upon the ground that laying the county levy was a judicial act. He said (page 22): For while in the ássessment of th‘e tax the county court exercised power which does not come within the ordinary scope of judicial power, yet in the adjudication of the debts chargeable upon the county, on which rests the right of the creditor to proceed against the sheriff and his securities, the court exercises a power which is purely judicial in its nature, though it is not exercised in the usual form of judicial proceedings. The action of the court, in the exercise of such a power, cannot be questioned in a collateral proceeding.”
In Harvey v. Tyler, 2 Wall. U. S. R. 328, 342, the supreme court of the United States uses the^following language: “The jurisdiction which is now exercised by the common law courts in this country is, in a very large proportion, dependent upon special statutes conferring it. ***** In all cases where the new powers thus conferred'are to be brought into action in the usual form of common law and chancery proceedings, we apprehend there can be little doubt that the same presumptions as to the jurisdiction of the court and the conclusiveness of its action will be made as in cases falling more strictly within the usual power.s of the court. On the other hand, powers may *be conferred on the court and duties required of it, tobe exercised in a special and often summary manner, in which the order or judgment of the court can only be supported by a record which shows that it had jurisdiction of the case.”
In the case of Galpin v. Page, 18 Wall. U. S. R. 350, 370, Mr. Justice Field, in an able and exhaustive opinion in which he reviews many authorities, says, in noticing the argument of counsel in that case: “This reasoning would abolish the distinction in the presumptions of law when applied to the proceedings of a court of general jurisdiction acting within the scope of its general powers, and when applied to its proceedings had under_ special statutory authority. And, indeed, it is contended that there is no substantial ground for any distinction in such cases. The distinction, nevertheless, has long been made by courts of the highest character both in this country and in England and we had supposed its existence was not open to discussion.” “However high the authority to whom a special statutory power is delegated,” says Mr. Justice Coleridge, of the Queen’s Bench, “we must take care that in the exercise of it the facts giving jurisdiction plainly appear and that the terms of the statute are complied with.”
In Morse v. Presly, 5 Foster R. 299, referred to by Mr. Justice Field, the supreme court, of New^ Hampshire said: “A court of general jurisdiction may have special and summary powers wholly derived from statutes,, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases its decisions must' be regarded and-treated like those of courts of limited and *275special jurisdiction. The jurisdiction in such cases, both as to the subject matter of the judgment *and as to the persons to be affected by it, must appear by the record; and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it.”
In commenting upon the case, Mr. Justice Field, in Galpin v. Page (supra), p. 371, says: “The qualification here made, that the special powers conferred are not exercised according to the course of the common law. is important. When the special powers conferred are brought into action according to me course of mat law — that is, in the usual form of common law and chancery proceedings— * * * the same presumption of jurisdiction will usually attend the judgment of the court as in cases falling within its general powers. But where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction, upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgments of the court. The facts essential to the exercise of the special jurisdiction must appear in such cases upon the record.”
From these cases, and the principles therein declared, may be extracted the following general legal propositions of universal. application:
1. Where a court of general jurisdiction acts within the scope of its general powers, its judgments will be presumed to be in accordance with its jurisdiction, and cannot be collaterally impeached.
2. So also when a court of general jurisdiction has conferred upon it special powers by special statute, and such special powers are exercised judicially, that is, according to the course of the common law and proceedings *in chancery, such judgment cannot be impeached collaterally.
3. But where a court of general jurisdiction has conferred upon it special and summary powers, wholly derived from statutes, and which do not belong to it as a court of general jurisdiction, and when such powers are not exercised according to the course of the common law, its action being ministerial only and not judicial, in such case its decision must be regarded and treated like those of courts of limited and special jurisdiction, and no such presumption of jurisdiction will attend the -judgment of the court. But in such cases the facts essential to the exercise of the special jurisdiction must appear upon the face of the record.
Applying these principles to the case before us, it is plain that the judgment of the circuit court must be reversed. While it is true that the county courts, which were clothed by the act of May 1862, with the power to purchase and distribute salt, were courts of general jurisdiction, yet such power did not belong to it as a court of general jurisdiction, but was a special summary power conferred by statute. It was a power purely ministerial, and was not exercised judicially according to the course of the common law. The conditions prescribed for the exercise of this special power, outside of the scope of its ordinary powers, were either that all the justices should be summoned or that a majority should be present. These were the essential and prerequisite facts necessary to confer this extraordinary and special power; and these facts must appear upon the record to give validity to the judgment. In such a case no presumption of jurisdiction will attend the action of the court.
*Certainly the power to purchase salt and bind the people of the several counties for its payment was not judicial power, to be exercised according to the course of the common law. It was a special and extraordinary power, to be exercised ministerially, and not judicially.
It was natural and proper in the highest degree that the legislature should throw around the exercise of this extraordinary power, by which the county courts could bind the people of the several counties of this commonwealth to the payment of millions of dollars, all the checks and restraints possible to secure its judicious exercise.
It was not intended that so large a power should be exercised by the ordinary county court, composed of but three justices of the peace; but, in order that a matter of such importance to the public should be properly considered, the statute provided that all the justices should be summoned or that a majority should be present. In a matter like this, purely ministerial, and in which all the people of the counties were interested, the justices of the peace were in a certain sense the representatives of the people, and, as such, were to judge both of the necessity of appropriating the people’s money and the extent of such appropriation.
To give validity to such action of the county court, the condition prescribed by the statute must be complied with, and it must so appear upon the record. The facts essential to give the cóurt jurisdiction must appear affirmatively, and no presumption of jurisdiction will attend the judgment.
Inasmuch, therefore, as it does not appear upon the record in this case that when 1.he contract was made by the county court of Pulaski with Stuart, Buchanan *& Co., for the purchase of salt, the justices of the peace had been summoned, or that a majority were present, I am of opinion, for the reasons above stated, that the judgment of the circuit court is erroneous and must be reversed.
The other iudn-^s concurred in the opinion of Christian, J. '
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481930/ | Burks, J.
This is a writ of error awarded the plaintiffs in error to a judgment of the circuit court of Floyd county, rendered against them on behalf of the defendant in error in an action for malicious prosecution.
There was a general demurrer to the declaration, which was overruled, and the parties went to trial before a jury, on issue joined on the plea of “not guilty,” which resulted in a verdict for the plaintiff (defendant in error here) of $1,000,. as award for damages; ujjon which verdict, and in accordance therewith, the judgment aforesaid was rendered.
In the course of the trial the defendants tendered *four bills of exceptions *279to the rulings of the court, which were signed, sealed, and made a part of the record.
The first three are to the exclusion by the court of certain evidence offered by the defendants, and the fourth and last is to the refusal of the court to set aside the verdict of the jury and grant them a new trial, on a motion based upon the ground that the verdict was contrary to the law and the evidence.
There are six counts in the declaration. The last five substantially allege that the defendants maliciously and without probable cause procured the plaintiff to be charged with and prosecuted for felony, in that he did feloniously pass, utter, &c., a false, .forged and counterfeited United States treasury note of the denomination of fifty dollars, well knowing the said note to be false, forged and counterfeited, with intent to defraud, &c., setting out the complaint, warrant, arrest thereunder, examination, indictment, trial, imprisonment during the prosecution, verdict of acquittal by the jury, and final discharge by the Federal court, in which the trial was had; and further alleging that heavy and enormous costs had been incurred by the plaintiff in defence of the prosecution, &c.
The first count differed from the other five only in alleging that the grievances complained of were directly committed by defendants, instead of being instigated and procured by them as in the other counts alleged.
The declaration seems to have been carefully and skillfully drawn, and I think the demurrer, which was not argued before this court at all, was properly overruled.
On the trial before the jury, the plaintiff introduced *as a witness one John Walsh, a United States commissioner for the western district of Virginia, who testified that he issued the warrant for the arrest of the plaintiff on the sworn complaint of one George E. Smith; that the plaintiff was arrested on that warrant, examined and recognized by him to answer an indictment in the United States court; and that he had retained the complaint and sent the warrant, with a statement of the evidence of the witnesses who testified on the examination, to the clerk of the United States court at Abingdon.
“On cross-examination (of Walsh), the defendants asked him who were the witnesses before him. He replied, J. M. Boyd and Mr. Scott (the defendants). *, * * Witness said he took Boyd’s testimony in writing, which he filed in the papers in the case. Defendants then showed witness a paper taken from the files in the case, and asked him if that was the paper referred to. He said it was. Thereupon the defendants’ counsel asked the witness. ‘What was the conduct of J. M. Boyd (who was one of the defendants) before him, and whether he manifested any anxiety on the subject of the prosecution?”’ The plaintiff, by his counsel, objected to the answering of this question by this witness. The court sustained the objection, and gave as a reason for doing so, “that it was not a proper question to be asked by the defendants and have answered on cross-examination.” To this ruling the defendant’s first bill of exceptions was tendered and made a part of the record.
Evidently the court did not exclude the answer to the question propounded for the reason that it was incompetent and irrelevant evidence, but because the question was, in the opinion of the court, asked at an improper stage of the examination. The paper, which *had been shown to the witness for the purpose of identifying it, had not been offered in evidence. It contained what purported to be the testimony of the defendants as taken down by the witness on the examination of the plaintiff before him. The defendants, after asking whether the defendants testified at the examination, then propounded the question objected to. It seems to me they should have waited until the testimony contained in the paper had been offered by the plaintiff. The demeanor of the defendant Boyd, if a proper subject of inquiry at all, would have been more appropriately inquired into after it had been shown what his testimony was. At all events, as I construe the bill of exceptions, the answer was only excluded because the question was out of time. It appears, from the evidence set out in the fourth bill of exceptions, that the testimony of the defendant, Boyd, before the commissioner, as contained in the paper referred to, was, at some time during the trial, read in evidence to the jury. No doubt if, after the paper had been so offered and read, the defendants had renewed their question, the answer would have been admitted.
The general course of examination of witnesses in judicial proceedings is, and must of necessity be, for the most part, subject to the discretion of the presiding judge; and the exercise of such discretion will never be controlled or interfered with by an appellate court, unless it plainly appears that some injustice has been done. Brook v. Wilcox, 11 Gratt. 411.
I do not think that any injustice has been done to the defendants in this matter, and no error has been committed in the ruling complained of.
The defendants’ second bill of exceptions states that, on the trial, the plaintiff introduced a witness, *H. Alderman, who testified that he was a deputy marshal, and as such arrested the plaintiff. On cross-examination, the defendants’ counsel asked the witness the following question: “When you were on the way to arrest Shelor (the plaintiff), in July 1873, did you see Scott and Boyd (the defendants); and if so, did they or not manifest any anxiety for the prosecution to be carried on?” íhis question was objected to by the plaintiff’s counsel, and the court said that the witness might state the acts and conduct of Scotl- and Boyd, but not their declarations; and to this refusal of the court to permit the question to be answered, except as qualified by the court, the defendants excepted. It does not appear that the question, as limited by the court, was asked, or any answer given.
The declarations of a party are not, in general, admissible as evidence in his own favor; they are so admissible, however, *280when thej? are a part of what is called the res gestee. In a late English treatise of great excellence, condensing and illustrating the rules of evidence in admirable style, the author tersely states- the rule thus: When any act done by any person is a fact in issue, or is relevant to the issue, the following facts (among others) are relevant — that is to say, all statements made by or to that person accompanying and explaining such act. Stephens’ Digest of the.Raw of Evidence, ch. 2, art. 7, and note 5. art. 3. To come within the terms and operation of the rule, the declarations must accompany and explain an act done, which is a fact in issue or is relevant to the issue. Manifestly the sole object of the question propounded to the witness was to draw from him a narrative statement given by the defendants of something which had previously taken place, or some expression or indication of the present feeling or purpose of the defendants *unconnected with any act then done which was a fact in issue or relevant to the issue. Hence, as soon as the declarations were excluded, all inquiry into the acts and conduct of tne parties, allowed by the court, as tending, in its opinion, I suppose, to show their then disposition touching the prosecution, was dropped. I think the declarations were properly excluded; and if the court had gone further, and absolutely refused to allow answer to the question, even to a limited extent, I am not prepared to' say it would have been error. The prosecution had commenced. The warrant was in the hands of the officer for service, beyond the control of the parties, and no act or declarations of theirs would then be admissible, as it seems to me, when offered as evidence_ by themselves, to prove that the prosecution then in progress had not been set on foot maliciously and without probable cause. As to res gestee, see further 1 Greenleaf’s Ev., § 108, 110; Haynes v. Commonwealth, (Virginia Law Journal, June No., 1877), to be reported in 28 Gratt.
In the further progress of the trial, a witness, Jackson Huff, one of the jury that tried the plaintiff on the indictment, after testifying, without objection, it would seem, that the jury had deliberated from one to two hours on the question of the guilt or innocence of the plaintiff, was thereupon asked by the counsel of the defendants, “if, in considering their verdict, the jury, or he as a juror, took into consideration the rule of law that the prisoner was entitled to the benefit of a reasonable doubt, and if they were induced by said rule of law to render a verdict of not guilty?” The answer to the question, on objection by plaintiff’s counsel, was excluded; and the exclusion was the ground of the defendants’ third bill of exceptions.
*In Smith v. McDonald, Lord Kenyon is represented as saying, that if 'the evidence on the indictment was such as-to make the jury pause, he would hold it .probable cause; but this, of course, must be understood of their doubting on the evidence, where it is legal, and has no reference 'to the case where the evidence is afterjvards shown to be corrupt. 1 Amer. Lead. Cases, 217; 3 Esp. R. 7.
In 1 Hilliard in Torts, ch. 16, § 28, it is said: “It has been held that if the jury in the former trial entertained sufficient doubts upon the evidence to induce them to pause before rendering a verdict of acquittal, this is sufficient evidence of probable cause. (Smith v. McDonald, supra, and other cases cited.) The principle, however,” continues the author, “is usually stated with great qualification. And in late cases it has been distinctly decided that the opinion of the jury on the former trial is not material; and that, although an action cannot be maintained unless the plaintiff has been fully acquitted, and a nolle prosequi is not sufficient, the plaintiff is -not bound to prove that he was acquited by the jury promptly, with out hesitation, delay or deliberation.” See cases cited by the author.
If the deliberation of the jury on the former .trial is evidence at all o-f probable cause (which seems very doubtful from these authorities), and that fact may be proved, I should be unwilling to extend the rule so far as to allow enquiry to°be made of the jury, or any of their number, as to whether such deliberation was the result of doubt as to the guilt or innocence of the accused. Such evidence, at best, would be most unsatisfactory, and should not be allowed to influence the minds of any jury in determining the question of probable cause. The chief, if not the only object of *introducing the verdict on the former trial, is to show that the prosecution is ended; and if the verdict of acquittal is evidence at all oí the want of probable cause, it must be very slight and inconsiderable. I do not think any error was committed by the circuit court in refusing to allow an answer to be given to the question put to the witness.
This brings me to the fourth and last bill of exceptions taken by th'e defendants to the refusal of the court to set aside the verdict of the jury and grant them a new trial on their motion, based on the ground that the verdict .was against the law and the evidence.
To have warranted the verdict of the jury, which was jointly against the defendants, it must have been proved on the part of the plaintiff — ■
First. That the prosecution alleged in the declaration had been set on foot and conducted to its termination, and that it ended in the final acquittal and discharge _of the plaintiff.
Second. That it was instigated and procured by the co-operation of the defendants.
Third. That it was without probable cause.
Fourth. That it was malicious.
Upon an examination of the bill of exceptions, it is quite plain that the judge, for the most part, certifies the evidence given on the trial, not the facts proved by the evidence. The bill, it is true, purports to certif3r what was “proven” in detail, and concludes with the statement, “these being all the facts proven,” &c.; but a careful scrutiny of the whole bill shows that in many particulars what is certified as “proven” is merely what the witnesses said. Moreover, it distinctly *281appears that the evidence was more or less conflicting on material points. For example, after two witnesses had testified as to statements made by the ^defendant Scott, it is certified that “Scott, when he testified, denied the allegations of both of these witnesses.”
Considering and treating the bill, therefore. as containing a certificate of the evidence given, rather than of the facts proved, this court will not reverse the judgment of the court below, unless, after rejecting all the parol evidence of the defendants and giving full faith and credit to that of the plaintiff, the decision .of the court below still appears to be wrong. Read’s case, 22 Gratt. 924, 928, 929, and cases there cited.
Applying this rule, rejecting all the parol evidence of the defendants, and giving full faith and credit to the evidence of the plaintiff, does the decision of the court below still appear to be wrong? In other words, were the jury warranted, upon the plaintiff’s evidence alone, giving to it full faith and credit, in rendering the verdict which they did render?
First: To maintain the issue joined on his part, it was incumbent on the plaintiff, as before stated, to prove that he had been prosecuted for the offence alleged in the declaration; that the prosecution was ended, and had ended favorably to him. These facts were all proved. There is no dispute about them. He was charged with a felony, in passing a counterfeited United States treasury note of the denomination of fifty dollars, well knowing the same to be counterfeited, with intent to defraud, &c. Upon this charge he was arrested, examined, indicted. tried, acquitted and discharged.
Second: Was this prosecution instigated or produced by the defendants (plaintiffs in error here), and by their co-operation? To warrant the joint verdict, there must have been a joint wrong. The guilt of one only *of the two defendants, however clearly proved, would not have authorized a verdict against both. To support such a verdict, the evidence must have shewn that the two co-operated in the procurement or instigation of the prosecution. Did they instigate the prosecution and did they cooperate in doing so?
The evidence shews, that one George D. Smith, on the 21st day of May, 1873, made a complaint in writing on oath before John Walsh, a commisisoner of the United States for the western district of Virginia, “that William B. Shelor (the plaintiff), of Floyd county, Va., did, on or about the 17th day of May. 1873, or during said month of May, 1873, knowingly and willfully pass upon James M. Boyd (one of the defendants), of Jacksonville, Va., a counterfeit of a U. S. treasury $50 note, receiving therefore its face value.” Such is the tenor of the sworn complaint of Smith, which was produced and shewn in evidence. Upon this complainant, thus made, and on the day of its date, Walsh issued a warrant for the arrest of the plaintiff. It was placed in the hands of a deputy marshal of the United States for service. It appears not to have been executed until the 20th July, 1873. The plaintiff, when arrested, was taken before Walsh and examined by him; each of the defendants, who had been summoned for the purpose, appearing and testifying against the plaintiff. The examination resulted in recognizing the plaintiff for his appearance before the district court of the United States, at Abingdon, to answer an ¡ indictment; and the prosecution, thus commenced, was conducted to final trial, ending, as before stated, in the plaintiff’s acquittal by the jury and discharge by the court.
Why did Smith make this complaint? Was he possessed of any knowledge or reliable information as to *the facts to which he made oath so positively? If so, when, how, from whom, and under what circumstances, did he obtain such knowledge or information? The evidence furnishes the answer to these questions.
I shall, in this connection, refer only to such parts of the evidence as tend to show how and by whom the prosecution was set on foot.
It appears, that Scott & Boyd (the defendants), were merchants and partners, and sold goods at their storehouse in Floyd county. Boyd was the son-in-law of Scott. The plaintiff (Shelor), lived in the same county. In the month of March, 1873, Shelor, in the course of some dealings at the store of Scott & Boyd, the particulars of which will be hereafter noticed in a different connection, passed to Boyd (one of the firm), a fifty dollar treasury note of the United States. This note having been taken by Boyd to Baltimore. and its genuineness there questioned, he informed Shelor of the fact, and Shelor promised to take it back. A short time afterwards, (Shelor saw Boyd again, and not having the money with which to take up the note, asked that it be surrendered to him, as he was going to Lynchburg and Í would have the note examined there, and ¡ he would give Boyd his due bill for it and pay it on his return from Lynchburg. Boyd refused to do this, and thereupon Shelor became very angry, and used abusive language towards Boyd and the 'Scott family, telling him (Boyd) that he.took the note on'his own responsibility — to “crack his, whip,” &c. This, occurred on the 17th day of May. On the very next day, Scott wrote to George W. | Henderlite. a United States collector of in-1 ternal revenue, who resided at Marion, in . Smyth county, one hundred miles distant from Floyd Court-house where he (Scott) resided. That letter was not produced on the trial, but according *to the statements of Henderlite and Smith. the former handed it to the latter, and the latter to Walsh, the commissioner, and that was the last seen of it. Henderlite and Smith say that it was a letter on business. Smith says, that “in the latter part (of the letter), in a few lines, Matthew Scott mentions Wm. B. Shelor having passed a fifty dollar counterfeit note in the store of Scott & Boyd, upon one of the firm of their clerk.” Henderlite says it was “a letter-*282from Matthew Scott on business connected with the office, in which he complained of persons passing counterfeit money,” and that he referred the letter to Smith, who was his deputy, “to have the matter investigated.” Henderlite and Smith both say that the letter did not recommend or suggest any prosecution against Shelor. Upon the information contained in this letter,. Smith says he based the complainant which he made, and to which he made oath. It is to be observed that this letter was written, as. before stated, on the 18th of May. The distance it had to travel was one hundred miles. It probably did not reach Hender.lite under a day or two, and Smith’s complaint and the warrant were both dated on the 21st of May, so that ¡Smith had very little time “to have the matter investigated.” indeed, the only investigation it seems he proposed was upon a warrant on a charge of felony before a United States commissioner, based solely on the information contained in Scott’s letter. It was open to the observation of the jury that this letter, which was a most important piece of evidence, was not produced, and as it was the groundwork of the prosecution it ought to have been carefully preserved. Nor could it have escaped, the scrutiny of the jury that the written complaint of ’¡'Smith bears internal evidence of the fact that Scott’s letter, which gave him the only information he had, must have contained more information than the witnesses seem to have remembered, else how was it that Smith was enabled to swear that the counterfeit note was passed “on the 17th of May,” or sometime during the month of May? It will be remembered that the 17th of May was the day on which Shelor abused Boyd and the Scott family, and told Boyd to “crack his whip.” Smith knew nothing of this. Scott wrote the next day, and this date (17th of May) must have been referred to in Scott’s' letter in connection with the note, which he said in his letter Shelor had passed to Boyd. Again, Smith in his complaint swears positively that Shelor knew the note was a counterfeit at the time he passed it to Boyd. He says the only information- he had, and on which he based the complainant, was obtained from Scott’s letter. Now it. is perfectly apparent that Scott must have in some way referred in his letter to what passed between Shelor and Boyd on the 17th of May, for that date mentioned in the complaint shows it. Having stated, as he must have done, what occurred on that day, or- some part of what occurred, is it an unreasonable inference that Scott gave in his letter the same account which Boyd gave in his testimony before the United States commissioner? Boyd then stated that Shelor, on the 17th of May said that he knew the note was counterfeit when he let him (Boyd) have it. It was moreover proved in the case that Scott had said “Shelor had. abused his family about that note; that he, Scott, had written to a revenue officer about it, and he reckoned he never would hear anything more about that note that Shelor had been arrested and would be *tried; that when Boyd told him (Scott) about Shelor cursing him, he' told Boyd to. let that alone, he (¡Scott) would attend to that.”
It was further proved that “on the trial at Abingdon, Boyd admitted that he told Captain Shelton in a private conversation, that he would not have set the prosecution on foot if Shelor had not abused the Scott family. It was also proved that he made the same declaration to other persons that he made to. Shelton.” Now here is an unqualified admission by Boyd that he set the prosecution on foot because Shelor abused the Scott family; and the evidence as we have seen, was quite sufficient to show that Scott, operated upon by the same motives, cooperated with his son-in-law.
Third. Was the prosecution without probable cause?
Although the allegation of want of probable cause in the declaration in actions for malicious prosecution is negative in its character, yet it must be proved, or the plaintiff must fail. This rule, based upon considerations of public policy, is well settled, and need not be dwelt upon.
Mr. Justice Washington, in the case of Munns v. Dupont &c., 3 Wash., C. C. 31, 1 Amer. Lead. Cases 200, defines probable cause, in a case of criminal prosecution, as follows: “A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged.”. This is said to be one of the best definitions ever given, and has been frequently applied, 1 Amer. Lead. Cases 213; Spengler v. Davy, 15 Gratt. 381, 388. It has been held, in some cases, that probable cause has reference rather to the state of fact as it respects the person prosecuted, than to the degree of knowledge of that fact in the party prosecuting; *and so it seems to have been stated by Judge Tucker, in Mowry v. Miller, 3 Leigh 561. This proposition, however, is combatted by Judge Daniel in his opinion in Spengler v. Davy, supra, in which opinion the other judges concurred. The true doctrine, as it seems to me, and that which is supported by the greatest weight of authority, is declared by the supreme court of United States in the case of Wheeler v. Nesbitt, 24 How. U. S. R. 544, where it is held that “probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.”
The like doctrine' is elsewhere stated in somewhat different terms thus: “Probable cause for instituting a prosecution, is held to be such a state of facts known to and influencing the prosecutor, as would lead a man of ordinary caution and prudence, acting conscientiously,, impartially, reasonably, and without prejudice, upon the facts within the party’s knowledge, to believe or entertain an honest and strong suspicion that the person *283accused is guilty.” 1 Hilliard on Torts, ch. 16, § 18, and cases there cited.
I proceed to inquire whether the defendants, Scott & Boyd, at the time they instigated or procured the prosecution of the plaintiff for the offence of which he was charged, believed the plaintiff to be guilty, and whether such belief was warranted by the facts and circumstances then within iheir knowledge, taking them to be men of ordinary caution, prudence and judgment?
The evidence which can be regarded by this court, and to which full faith and credit must be given, shows that some time in March 1873 the plaintiff *Shelor went “to Floyd courthouse and purchased a small article at Scott & Boyd’s store, and offered to pay for it with a two-dollar note. In getting out his money. Boyd saw Shelor have a fifty-dollar note, and proposed to sell him goods for it or to give him small change, as he, Boyd, was about io go to Baltimore to buy goods. Shelor said he wanted no goods, and said the note had been disputed, and asked Boyd what he thought of it Boyd examined it, and said he thought it was good. He then gave the note to Boyd and received small notes for it. Some weeks afterwards, Boyd sent a message to Shelor that the note had been disputed in Baltimore. He took it to four banks; the first three would net receive or condemn it. but it was pronounced counterfeit by the fourth. Shelor came up and said, T will take it back.’ Boyd said, ‘any time within two or three weeks will do.’ Shelor . said, that was more time than he wanted. A short time thereafter, on the 17th day of [ May, Shelor came to Boyd’s store and called him out for a private conversation, in which he told Boyd he was going to Lynchburg with his tobacco next week, and he wanted to take the note and have it examined, and did not have' the money, but would give his due bill for it. and when he came back from Lynchburg would bring the money. Boyd declined to give up the note in exchange for the clue bill. Shelor started away; but immediately becoming very angry, returned and said, Y have asked you to take my due bill; you refuse to credit me; you must think I am insolvent; but (with an oath here omitted) I can buy you and the whole Scott family. You took the note on your own responsibility; now (oath used omitted) crack your whip.’ ” The foregoing evidence is from the bill of exceptions. _
_ In this connection, it is stated in the bill that “the -plaintiff assigned_ as a reason for becoming angry that it occurred to him, as he started off, that Boyd intended to prosecute him and do what he has done;” that “considerable abuse was then used by Shelor towards Boyd and Scott.” The facts and circumstances established by this evidence, together with the fact that Shelor resided in the same county with the defendants, had been long well-known to ttem and admitted by Scott to have been a man of reputed hcinesty, were all the facts and circumstances shown by such of the evidence as can be considered by this court, within the knowledge of the defendants, affecting the question of probable cause for the prosecution. It would be a waste of time to argue to show that they fall far short of proof of probable cause. No man of ordinary caution and prudence would be warranted in the conclusion of guilt based upon upon such facts and circumstances. They would indeed seem scarcely sufficient to raise a slight suspicion. Nor would it help Üie defendants if in deciding this cause we were to take into consideration all the facts and circumstances proved by the evidence, or which the evidence tends to prove, touching the question of probable cause, supposing they had all come to the knowledge of the defendants before the prosecution was commenced.
Shelor acquired the treasury note in 1872 from some persons in Franklin county, as part of the purchase money for land sold to them. In February 1873 he gave it to W. II. Frances, his son-in-law and partner in business, to be used in purchase of goods in Baltimore. It was passed by Frances to some merchants in Baltimore in payment for goods. The merchants returned the note to Frances “as doubted, but they would not condemn it.” It was then examined by two merchants in Christiansburg, good judges of *money, one of whom had been a teller in a bank, and they pronounced the note genuine. Afterwards, Shelor offered to pass it to a saddler at Franklin Court-house in the purchase of a saddle; and a question being raised about its genuineness. it was submitted to the examination of Greer, the cashier of a bank at Franklin Court-house, who pronounced it good. When Shelor passed the note to Boyd, he told him the note had been disputed, but did not tell him where or when it had been disputed. Scott had information at the time he wrote the letter to the revenue officer that Shelor had offered to pass the note at Franklin Court-house, but he did not regard the information as reliable. Now all these facts, treating them as proved, and’ assuming, contrary to the fact, that they were in the knowledge of the defendants when they commenced the prosecution, did not of themselves, nor in connection with what was actually known to the defendants, furnish anv reasonable ground of suspicion against Shelor. A prosecution based upon such facts would be a prosecution without probable cause.
Fourth. Was the prosecution malicious?
To maintain his action, the plaintiff must not only prove want of probable cause, but malice also. The two must concur. Both must be proved. Malice may be inferred from the want of probable cause, but the latter can never be inferred from even the plainest malice. _ In a legal sense, any unlawful act which is done willfully and purposely, to the injury of another, is as against that person malicious. 1 Hillard on Torts, ch. 16, § 24. The improper motive, or want of proper motive, inferrable from a wrongful act, based on no reasonable ground, constitutes of itself all the malice deemed assential in law to the maintenance of *284*the action for malicious prosecution. Spengler v. Davy, 15 Gratt. 381.
It is impossible to read the evidence in this, case without coming to the conclusion that the motive for the prosecution sprang from the abusive language used by Shelor on the 17th of May. Moved by resentment, engendered 'by this language, Scott wrote the letter to the revenue officer the next day. Indeed, it was proved that Boyd admitted “that he would not have set the prosecution on foot if Shelor had not abused the Scott family;” and he was heard further to say, after the prosecution commenced, “that he did not believe Colonel Shelor knew the note was counterfeit when he passed it.” Again, when Boyd testified before commissioner Walsh, on the examination of the plaintiff, touching the felony with which he was charged, he represented Shelor as having said to him on the 17th day of May that he (Shelor) knew that the note was counterfeit when he let him (Boyd) have it. And yet the language employed by Shelor, on the 17th of May, as proved on the trial of this case, contains no such admission as Boyd imputed to iShelor on the examination before the commissioner. From this evidence, and from other circumstances proved in the case, it is manifest that the prosecution proceeded from a desire and purpose on the part of the defendants to injure the plaintiff, and was therefore malicious.
Upon the whole matter, I conclude that the plaintiff proved his case, and was entitled to a verdict. He was maliciously, and without probable cause, arrested and prosecuted on a false charge of felony. He was taken from his home and his family, carried to a distant place, and there tried by a jury of strangers; in *the course of the trial was imprisoned; and besides the ignominy and annoyance to which he was subjected, it was proved that he incurred costs to the amount of six hundred dollars in defence of the prosecution. A special jury, selected under the law, assessed his damages at $1,000. The learned judge who presided at the trial found no fault with the verdict, nor do I find any.
I am therefore of opinion to affirm the judgment of the circuit court with damages.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482036/ | Burks, J.
The appellants, March, Price & Co. filed their bill in the circuit court of Danville against the appellees, A. JB. Chambers and John G. Raney, to subject a house and lot in the possession of Raney to satisfy the lien of a judgment recovered by the appellants against said Chambers. Raney and Chambers filed separate answers to the bill, and no depositions being taken on either side, the cause was heard on the bill, answers and exhibits, without replications to the answers, and a decree was entered dismissing the bill at the costs of the complainants. Prom this decree an appeal was allowed the complainants by one of the judges of this court.
The answers, whether responsive or not, there being no replications thereto, must be taken as true. 2 Rob. Prac. (old ed.), 312, and cases there cited. This is most favorable for the appellees; for, if replications had been filed, many of the essential statements in the answer being affirmative in their character, the case, without proof in support of these statements, must of necessity have been with the appellants.
The case made by the bill, answers and exhibits is, in substance, the following:
March, Price & Co. recovered their judgment in the corporation court of Danville, against the appellee, Chambers, on the 1st day of July, 1872, and the judgment was docketed in said court on the 11th day of March, 1873. The lot, which is claimed to be subject to the lien of the judgment, lies within the corporate limits of the town of Danville. It was purchased by Chambers from one S. H. Turner, and conveyed to the former by deed of Turner and wife, dated, executed and duly recorded in the *301year 1860. On or about the 1st day of January, 1866, under an agreement in writing, entered into between Chambers and William T. Eaney, the former sold the lot to the latter, and on the 21th day of Januai-y, 1866, by deed of that date, conveyed the same to him, reserving on the face of the deed a lien on the lot for the payment of the purchase money. On the 15th day of August, 1866, William T. Eaney having paid all the purchase money owing to Chambers, conveyed the lot to the appellee, John G-. Eaney, by mortgage deed to secure the payment of $1,000, with interest, owing by the said William T. Eaney to the appellee. The mortgage was duly admitted to record in the corporation court of Dan-ville, on the 24th day of August, 1866.
On the 8th day of April, 1868, William T. Eaney was, on his own petition, adjudged bankrupt by the district court of the United States 'for the district of Virginia. One Joseph A. Hobson was appointed assignee in bankruptcy of his estate, and on the 29th day of May, 1868, the register made the usual deed of conveyance of the bankrupt’s estate to the assignee. On the 22d day of September, 1868, on the joint application of the assignee and of the said John G. Eaney, as a lien creditor of the bankrupt, the court of bankruptcy ordered the sale of the lot aforesaid, which had been surrendered by the bankrupt in his petition as a part of his estate. The assignee made sale of the lot under the order, and the said John G. Eaney became the purchaser. The sale was reported, and by order of the 18th November, 1868, was confirmed, and the assignee directed to convey the lot to the purchaser by proper deed, it being recited that the terms of sale had been complied with and the whole of the purchase money paid. In pursuance of this order, the assignee, by deed dated and recorded the same day (18th November, 1868), conveyed the lot to the purchaser, the said John G. Eaney, who *302thereupon took possession of the lot under said deed and had such possession at the date of the judgment of the and continuously since.
The written contract for sale between Chambers and William T. Eaney, was never recorded, nor was the deed of conveyance from the former to the latter recorded , , „ „ until the 18th day of September, 1878, more than twelve months after the appellants recovered their judgment against Chambers, and six months after the judgment was docketed.
As the anwser of the appellee, John G. Eaney, avers that the appellants had actual notice of the deed of conveyance from Chambers to William T. Eaney, although the deed was not recorded when the judgment was recovered, such notice, in the absence of any replication to the answer, must be accepted as a fact, not deemed by me material, however, in the decision of the matters arising on this appeal.
Upon this case, made by the answers taken as true and exhibits filed, the defence of the appellee, John G. Eaney, is thus summarized in the conclusion of Ms answer: “Eespondent relying upon the written contract between Chambers and William T. Eaney, and the full payment for said land; afterwards the deed from Chambers to William T. Eaney, which put in said Eaney both the legal and equitable title to said property, and divested said Chambers of the same; upon the deed of mortgage from W. T. Eaney to him, his purchase and payment for said property, and the several deedsj &c.,to him, and the recordation thereof fully justifies this respondent in denying all the allegations of complainants’■ bill tending to establish a lien against said property, and he does hereby expressly deny them, and upon all matters of allegation not depending upon exhibits of records made and furnished, calls for strict proof.”
The case thus presented by the record is essentially *303different from Floyd, trustee, v. Harding & als., 28 Gratt. 401. In that case, the contract for sale was in parol, and had been so far performed, that the purchaser, before the date of the judgment against his vendor, had become invested with a perfect equitable title, and it was held that although the deed of conveyance was void under our registry laws, because so expressly provided, yet those laws do not apply to a parol contract for the sale of land, and that where the purchaser under such contract has acquired a valid, equitable title to the land, it is not subject to the lien of a judgment subsequently acquired against his vendor.
In the case before us, the contract for sale was in writing, and such a contract is literally within the terms of our recording acts, as fully so as a deed of conveyance, and each is declared to be “void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county or corporation wherein the property embraced in such contract or deed may be.” See Code of 1878, ch. 114, §§ 4, 5, 8, 7.
The executory contract for the sale, no less than the deed of conveyance, being void as to the creditor, whether he be a creditor with or without notice, the lien of the judgment is paramount to the title of any alienee claiming under such void contract and conveyance.
I regard this proposition as fully established by the case of Eidson v. Huff & al. (argued before I came to the bench, and therefore I did not sit in the case), 29 Gratt. 338. In that case, the purchaser had a title bond from her vendor, went into possession under it, paid all the purchase money, and afterwards had a deed of conveyance. The title bond was never recorded, and the deed was not recorded until after judgment was recovered against the vendor. The judgment, although not docketed until after the deed was recorded, was docketed *304within twelve months after it was recorded, and therefore-operated as a lien from and after its date. It was dethat the title bond and deed were both void under the statute as to the judgment creditor, and that the surety hound with his principal by the judgment, having* paid it for his principal, was entitled to stand in the shoes ^ j of the creditor and enforce the judgment against the lands in the hands of the alienee of the purchaser from the’ principal judgment debtor. That case, in its equity, was even stronger for the purchaser and his* alienee, than the one now under consideration, for there the purchaser from the judgment debtor went into possession under her title bond, while in the present case, it does not appear that the purchaser ever had possession. It does not appear in either case, that there was ever any other contract than the written contract under which the purchaser claimed. This may be a hard case on the purchaser and his alienee, but, as was said by Judge Staples in the opinion in Eidson v. Huff & al., concurred, in by the court: “This court cannot construe away a plain statute to avoid cases of individual hardship. The legislature has thought proper to pláce all written contracts for the sale of land upon the same footing with deeds of conveyance, so far as they come within the influence of the registration acts, and we have no alternative but to enforce the law as it is written.”
The written contract and the deed from Chambers to William T. Idaney being void as to the appellants, creditors of Chambers, all the subsequent alienations are in like manner void as to these creditors. The effect of the statute is that, as to the appellants, Chambers must he regarded as entitled to the Danville lot at the date of their judgment against him, in like manner and to the same extent as if he had never aliened it. As respects this matter, the mortgagee, assignee and purchaser under the bankruptcy proceedings occupy no higher ground *305than William T. Raney, the bankrupt and first' purchaser, does. The assignee took the bankrupt’s title and nothing more, and the purchaser from the assignee the same title, and both are void as to the judgment of the appellants. There is nothing in the bankrupt law, or in the bankruptcy proceedings, which, in a case like this, assures to the purchaser from the assignee under an order of the bankruptcy court any other or better title than the bankrupt had. The rule caveat emptor applies to such a purchaser as in other judicial sales. The appellants were not parties to the proceedings in bankruptcy for the sale of the bankrupt’s property, and their rights ■are not impaired or affected thereby.
It appears by the admission of the appellee, John G. Raney, in his answer to the bill, that the rents and profits of the lot will not satisfy the judgment of the appellants in five years. I am of opinion to reverse the decree of the circuit court of Danville and remand the cause, with directions to said court to enter a decree for the sale of the lot to satisfy said judgment, and for further proceedings to final decree in conformity with this opinion.
Moncube, P., and Cheistian and Staples, J’s, concurred in the opinion of Burles, J.
Andeeson, J., dissented.
The decree was as follows:
This day came again the parties, by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the ai’guments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the lot of land, with the buildings and improvements thereon, in the bill of the appel*306lants mentioned, situate in the town of Danville, and as stated in said bill, “designated on the plan of said town as lot Eo. 134,” is subject to the lien of the judgment of the appellants in the bill mentioned, and is liable to be subjected to the satisfaction of said judgment, and that c^ecree wh°0y erroneous. It- is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellees pay’to the appellants their costs by them about the prosecution of the appeal aforesaid here. And this cause is remanded to the said circuit cpui’t of Danville; and as it appears by the admission of the appellee, John G. Eaney, in his answer to the bill of the appellants, that the rents and profits of said lot will not satisfy the said judgment in five years, the said circuit court, by proper decree for the purpose, should order the sale of said lot to satisfy- said judgment, and otherwise proceed to final decree in the cause .in conformity with the opinion and principles herein expressed and declared; which is ordered to be certified to the said circuit court.
Decree reversed. | 01-04-2023 | 11-07-2022 |
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