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https://www.courtlistener.com/api/rest/v3/opinions/8482037/ | Staples, J.
The appellant filed her bill in the corporation court for the city of Lynchburg, asking for a divorce a mensa et thoro from the appellee. Cruelty and desertion are alleged as the grounds of the application. Both are positively denied by the appellee in his answer. Subsequently the appellant filed an amended bill, in which she not only reiterates the charges of cruelty and* desertion, but avers lewdness of conduct and adultery on' the part of the appellee.. The latter filed his answer, denying the charges in the most positive and explicit terms. In the progress of the suit numerous depositions were taken, in many of which the examination was protracted to great length, one of the appellant’s witnesses being asked on cross-examination one hundred and one questions, and one of the appellee’s witnesses being *310asked one hundred and'twenty-nine questions. The record, numbering some four hundred pages, exhibits a controversy through all its stages conducted with the greatest bitterness and asperity. Even the private letters of the parties, written in the confidence of friendship and affection, have been subjected to the ordeal of public scrutiny and criticism. The counsel on both sides have argued the case with an ability and fervor which plainly show how deeply their feelings are enlisted in “the cause of their clients. And not merely the parties, their counsel and friends, but it is apparent a large part of the community where the case originated are deeply interested in the controversy. This is not at’all surprising, for both parties are persons of high social position. The appellant is represented as a lady of many personal attractions, and of the highest culture and refinement; and the appellee as a man of excellent character, of amiable temper, and of unimpeached integrity. This court—no court—could view without the deepest concern such a controversy, not only on account of its disastrous consequences to the parties, but from its deleterious effects upon the community. The difficulties of the case are greatly increased by the fact that, in addition to the matter of the divorce, we are called upon to decide the question of custody and control of the helpless infant, the only fruit of this unhappy marriage. Our consolation is that, in performing this duty, 'we have neither partiality nor prejudice, that our utterance is but the voice of the law as the wisdom of sages has established it. We are powerless to prevent or to settle controversies; we can only decide them as they are brought before us.
The first question, if not in order of time, certainly in importance, is the one involving the charge of adultery. The bill avers that the appellee has committed adultery on various occasions. Only one instance, however, is specified, and that is that the appellee was guilty *311■of adultery in the city of Philadelphia, at a house of ill-fame, in a certain street named, on Sunday, the night ■of the 10th September, 1876, the names of the females being unknown. In support of this charge a single witness is introduced, who states that during the centennial exposition he saw the appellee in a house of ill-fame, in the city of Philadelphia. The witness states that as he entered the door of one of the parlors, he saw the appellee, in company with a friend, arise from a sofa, and that he was bidding one of the women of the house goodbye. He supposes the appellee had had some words with her; he, the appellee, turned around and left the parlor door; he does not know whether the appellee went to the street or -to some other part of the house. This is the whole case, allegation and proof, with respect to the commission of adultery.
The appellee, in his answer, says he admits that on the evening of the 10th September, 1876, he, in company with a friend, J. H. Ballard, did visit a house in Philadelphia, which, after he entered it, he found to be & house of ill-fame. He states that he and Ballard, being in that city without comfortable quarters, on Sunday evening appellee suggested they should look out for another room. Ballard said he had seen a placard on a house just around the nearest corner with rooms to let ” on it. . They went to the house, ringing the hell at the front door, which was opened by a white woman, supposed to be a servant, who, upon being told what was wanted, conducted appellee and Ballard to the parlor. On stating the object of their visit, one of the women said they could accommodate them with rooms, but she thought it probable they had made a mistake, and that they, the inmates, were rather too fast for them. They at once got up and left the premises. This was the only time appellee was ever in •said house. He was there only for a few minutes. Hu*312ring the time, he uttered no word and committed no act in violation of the strictest propriety.
This is the appellee’s explanation. To sustain it he adduces the testimony of Ballard. I do not deem it necessary to state any portion of that testimony here. It is sufficient to say it fully corroborates the account given by the appellee. The learned counsel for the appellant quotes an observation of Lord Stcnoell, that “ the act of going to a house of ill-fame is characterized by our old saying that ‘ people do not go there to say their ;pater nosters,’ that it is impossible they can have gone there for any but improper purposes, and that it is universally held as proof of adultery.” To this it is answered by an eminent writer, “ Obviously, however, such a visit is open to explanation, as it may be one of philanthropy, or of accident, or even of lawful business, which should not be construed into an act of guilt.” 2 Bishop on Marriage and Divorce, § 626.
And this would seem to be the dictate of common sense and common justice. For nothing could be more manifestly unjust than to say that a man who should go to a house of ill-fame, necessarily goes there for an improper purpose. Such an act, wholly unexplained, might be considered evidence of guilt, but it is clearly not one which precludes explanation.
In this ease the appellee, in direct response to the charge in the bill, has made a statement of the circumstances of his visit to the house in Philadelphia.- He is called upon to answer, and he has given his answer, and I think he is entitled to the benefit of it, as in other cases in chancery. The statute provides that the suit for a divorce shall be instituted and conducted as other suits in equity. The single exception is that the bill shall not be taken for confessed, and that whether the defendant answer or not, the cause shall be heard independently of the admissions of either party, in the ’ *313pleadings or otherwise. As was said in Bailey v. Bailey, 21 Graft. 43, 90, the purpose of these provisions was to prevent a decree being obtained by collusion of the parties, and not to change the rules of evidence, or to provide a different mode of proving the facts from that pursued in other cases.
The defendant, in every case, may respond to the charges in the bill in his answer; and he is entitled to the benefit of it. It is the law of the forum, and all who apply to it for relief must submit to have their causes tried according to the established mode of procedure. Thornton v. Gordon, 2 Rob. R. 719-726. Cases of divorce, so far from justifying a relaxation of this rule, would seem to call for its special observance. Bor while the plaintiff, for reasons of public policy, cannot obtain a decree upon the admission of the defendant, clearly the latter, against his or her express denial, ought not to be convicted of a violation of the mariage vow; nor should so important a relation be dissolved upon less evidence than is required to annul an ordinary contract for the sale of property. If it be conceded, in the present case, that the circumstances of suspicion against the appellee are of a grave character, this court cannot refuse him the benefit of his answer, nor would it be inclined to do so, especially when such refusal would be to fix upon him the imputation of perjury, in addition to the crime of adultery. •
Rut, discarding this view entirely,, we have the testimony of Ballard. Ho effort has been made to impeach his reputation as a man of veracity. Ho witness says he is unworthy of belief. He was subjected to a very rigorous cross-examination, but I think it wholly failed to throw any discredit upon his testimony. It is true that the appellant’s witness, Dawson, says he does not think Ballard is the friend he saw with the appellee on the *314occasion of the visit to the house in Philadelphia. He says, however, he is by no means certain—he could not see the person plainly that night—he was not acquainted with him, and did not take particular notice of him. It must be borne in mind it was not the appellant, but the appellee who brought out this testimony. It was the appellee who confronted appellant’s witness with Ballard, and demanded of the former to say whether he was not the same person seen in Philadelphia, which I think would scarcely have been done if the account of Ballard’s presence had been a fabrication. Ballard says that upon his return from the centennial, he mentioned to several persons in Lynchburg—and he gives the names of some of them—the fact of this visit to the house of ill-fame, as a good joke upon the appellee and himself. None of the persons named are called to contradict him; and it is to be presumed he did mention the subject of the visit. If he did, it would go far to show that the parties regarded the whole affair as a harmless joke,-of which they were the victims,.and that they made'no effort whatever to conceal the occurrence. Upon the whole I am satisfied that the account of this affair given by Ballard and the appellee, is true in every material particular, and that the charge of adultery is not sustained by the proof.
The bill contains another charge, not of actual adultery, but of improper solicitation on the part of the appellee, introduced, no doubt, for the purpose of showing the adulterous intent. The charge is that the appellee, in the month of September, 1876, solicited Eliza Patterson, a young mulatto woman, then a servant of his wife, to have carnal intercourse with him. It is not pretended that adultery was actually committed, but simply that there were repeated solicitations to that effect. The only witness relied on to support this charge is Eliza Patterson herself—without a single corroborating circumstance to *315support her. The force of her testimony is entirely destroyed by the evidence of three witnesses. It is true they are the mother and brothers of the appellee. JBut the record shows they are persons of high social position, and it is impossible to believe they are capable of wilful and corrupt perjury with respect to the matters to which they testify. If these witnesses speak the truth, it is manifest that the story as told by Eliza Patterson is an entire fabrication from beginning to end. In this connection it is worthy of observation that this witness, previous to the present deposition, had given an affidavit in which she detailed, with great particularity, numerous acts of an objectionable character on the part of the appellee; but she made no allusion whatever to the alleged solicitations stated in her deposition. When asked the reason of her silence in this respect, she could only say she did not think of them at the time. I am of opinion that this charge is not sustained.
Another charge bearing upon the question of adultery, not made, however, in the bill, but brought out for the first time in the evidence, is that the appellee was an attendant upon a ball given at a house of ill-fame, in the city of Lynchburg, in the year 1876, during the session of the United States court in that city. Two witnesses are introduced who say they saw him on that occasion. Eow it is a little remarkable that, although the person of the appellee was well known in the community, out of some thirty or forty persons who must have been present at this ball only two can be found who testify to his being present on the occasion referred to. One of these is proved to have been much intoxicated at the time; and the other had but a slight acquaintance with the appellee. On the other hand, the appellee has taken the depositions of some ten or twelve witnesses, including young men to whom he was well known, and police officers whose occupation makes them familiar *316with the haunts of vice, and whose duty requires them to be present on such occasions, and all of them concur saying the appellee was not present at the ball described by the appellant’s two witnesses. At all events, ^ no£ See or hear of his being there—that, if a married man had attended such a place, it would have been the subject of conversation at the time, and on the streets the next day. These witnesses say they never at any time saw the appellee in a house of ill-fame, and they never even heard of such a thing until this charge was made. This evidence is, of course, purely of a negative character, but it is certainly very persuasive. One can but be struck with.the fact that the appellee has himself throughout opened the door to the severest enquiry. His witnesses, men most likely to be informed, were not confined to the charge of attendance upon this particular hall, but were asked to speak with reference to his habits generally, in respect to such places—to tell not only what they had seen, but what they had heard, as to his attendance upon other balls, and other houses of ill-fame; and upon these points the testimony, so far as negative testimony can go, is a very satisfactory vindication of the appellee.
"With respect to the only remaining charge, bearing upon the question of adultery, also brought out in the evidence, that of making the signal upon the Danville bridge, I deem it unnecessary to discuss it. It is fully and completely disproved by the evidence.
Before passing from this branch of the case, it is proper to allude to the earnest efforts made to fix upon the appellee the commission of adultery, or some other lewdness of «conduct inconsistent with his marital duties. The evidence strongly tends to show that, to this end, extraordinary efforts w7ere made, rewards were offered, detectives were put on the track, and all the sources and avenues of information fully explored. The only result *317has been the several charges already considered. I do not allude to this for the purpose of attaching censure to any one. I think it is proper to say that a man who can pass through such an ordeal unscathed has shown a correctness and propriety of deportment deserving, at least, some notice and consideration.
The next subject of enquiry is the charge of cruelty. As this is, perhaps, mainly relied on as a ground of divorce, it becomes necessary to examine the allegations of the bill, and the evidence bearing upon this point, with more minuteness than is required in other branches, of the case.
The appellant, in her original bill,.states that “among the acts of cruelty which chai’acterized the earlier portion of her married life, she was required by her husband, before they went to Danville, to conceal her want of sympathy with his political course; that her obedience to his injunctions in this respect eiit her off from all other sympathy, and that she found herself alone with him, a social pariah.” This certainly is a most extraordinary statement, in view of the fact, disclosed by this record, that the parties lived together for several years in the greatest harmony and affection, and that, both in Danville and in Lynchburg, wherever they resided, or wherever they visited,- they were received into the best society and were upon terms of friendship, if not of intimacy, with the best people in those cities. It will he seen further on how groundless is this charge, as well as many others contained in this record. The parties were married in the fall of 1873, and shortly thereafter removed to the town of Danville, Va., where they resided until the summer of 1875. They then went to Kentucky upon a visit, remaining there some four or five months. Kumerous witnesses have been examined as to their conduct during this period—witnesses living upon terms of the closest intimacy with them—and not one of them testifies to any *318unkindness, in acts or words,,on the part of the appellee to the appellant, on any occasion. It is very clear that their difficulties did not commence until after their .removal to Lynchburg, in the winter or spring of 1876, and after they had become inmates of the family of "Woodville Latham, Jr., the brother of the appellee.
Let us, then, enquire into the conduct of the appellee during the period of the residence at the house of Wood-ville Latham, Jr., and subsequent to it.
Some of the witnesses state that the appellee was very indefferent to the appellant, and studiously neglected her on many occasions; but when pressed upon the cross-examination, they are only able to say they have seen him pass her on the streets without speaking to, and apparently without noticing her. Others testify that it was the habit of the appellee to take the child away with him in the morning, and not to return with it until the afternoon, thus depriving the mother of its company and its nurture. And yet one of these witnesses, a lady of intelligence, living near the parties, upon being asked if she noticed where the child was kept before and after their difficulties were made public, states that she usually saw the child in the parlor, playing about the window, and that it was there very often. This was after their differences were made public. Before this, she never noticed it at any particular place, saw it playing in the porch and with its mother, but after this usually saw it at the parlor wdndow.
Again it is said that the relatives and friends of the appellant were not treated with civility and respect by the family of the appellee. Miss Graves, a sister of the appellant, visited the latter at the house of Woodville Latham, Sr., in November, 1876, and remained there some time. Upon leaving there she expressed herself as highly pleased with the manner in which she had been entertained, and grateful for the kindness she had re*319ceived. In her deposition, given in this case, she admits that, upon arriving at the house of Mr. Woodville Lafham, Sr., she was received very cordially, and and so treated for a few days. After that, they were polite and civil, but not at all cordial she thought. It has been asserted and reiterated, again and again, that the family of Woodville Latham, Sr., were hostile to the appellant, and that they had banded together to destroy her peace and happiness. I have examined this record with the greatest care, and I have not been able to find a scintilla of evidence tending to show that either the father, mother or sisters, on any occasion, were guilty of incivility or unkind acts or words to the appellant. It may be there were such, and that they have been carefully concealed from the public eye. The record does not exhibit anything of the kind; and this court- cannot act upon mere conjectures and presumptions having no support from the evidence.
Again it is said, and this charge is reiterated with great earnestness, that the appellee actually sold the bed and bedding of the appellant, and left her without the common comforts and necessaries of life. The evidence shows that the appellee owned the furniture, including the bed and bedding in the room occupied by the appellee and appellant in the house of Woodville Latham,
Sr., and that this furniture, with the exception of some articles belonging to the appellant, was sold by the appellee to his mother. It is manifest, however, that this sale was made after the appellant had left there, after all efforts at an adjustment had failed, and the appellant had determined to live separate and apart from her husband.
I have thus attempted to notice briefly all the charges of cruelty brought against the appellee. Most of them have reference to a period when the difficulties between the parties had become open and notoiious, and when both had become embittered by the controversy in which *320they were engaged. It is no part of my duty to vindicate the appellee any further than is proper to a right understanding of the merits of the case. It may be conceded that his conduct has been far from blameless, but if each and every specification of cruelty had been established it would not constitute such legal cruelty as would justify a decree for a divorce. The appellant in her bill charges coldness on the part of her husband, non-appreciation of her efforts in the discharge of her wifely duties, his treatment often degenerating into sneers and taunts and bitter complaints. ' But she does not charge any acts of cruelty or violence, or even threats and menaces. Her brother states that, during the whole of his visit in the fall of 1876, he never observed anything like a disturbance, a dispute, or quarrel between them. "With respect to the bruises upon the wrists of the appellant, they are fully explained. The appellant coming down stairs, and finding the front door locked, attempted, in a paroxysm of excitement, to jump through the parlor window into the street. She was caught by the appellee and held by the wrists. The door was immediately unlocked, and she was implored to go out by that way; but she refused to do so, persisting in her purpose of going through the window. There is no doubt that the sole purpose of the appellee was to prevent a scene on the street mortifying to all concerned. "With this exception, if exception it can be considered, there is not a particle of testimony showing any act of cruelty or violence on the part of the appellee, or any menaces, or conduct to justify an apprehension of bodily harm, or that the appellant was, at any time, molested or in any manner restrained in her perfect freedom of action.
In applying the law to the evidence just considered, I ■shall not attempt any definition of cruelty, as used in our statutes, beyond what is laid down in the books. According to the authorities, the cruelty that authorizes *321a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life, limb or health. I agree there nniy he eases in which the husband, without violence, actual or threatened, may render the marriage state impossible to be endured. There may be angry words, coarse and abusive language, humiliating insults, and annoyances in all the forms that malice can suggest, which may as effectualty endanger life or health as personal violence, and which, therefore, would afford grounds for relief by the court. I5ut it is obvious that what merely wounds the feelings without being accompanied by bodily injury or actual menace—■ mere austerity of temper, petulance of ,manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offences against morality in the married state, does not amount to legal cruelty. It is so laid down by the leading authorities in England, and in this country, and is so declared by this court in Carr v. Carr, 22 Gratt. 168, 175; 1 Minor Institutes and cases cited, 256, 257. In the language of a very great judge: “Under such misconduct of either of the parties, for it may exist on one side as well as the other, the suffering party must bear, in some degree, the consequences of an injudicious connexion; must subdue, by decent resistance or prudent conciliation; and if this cannot be done, both must suffer in silence. And, if it is complained that by this inactivity of the courts much injustice may be suffered, and much misery produced, the answer is that courts of justice do not pretend to furnish cores for all the miseries of human life. They punish or redress gross violations of duty—they cannot make men, virtuous; and as the happiness of the world depends upon its virtue, there may be much unhappiness *322■which human laws cannot undertake to remove. * * Petty vexations applied to a diseased and exquisite sensibility of mind, may certainly, in time, wear out the animal machine; hut still they are not cases for legal relief. People must relieve themselves as well as they can by prudent resistance, by calling in the means of religion, and the consolations of friends; but the aid of the courts is not to he resorted to in such cases with any effect.” I have thus quoted, at length, some of the observations of Sir William. Scott, in Evans v. Evans, 1 Hagg. Cons. R. 35, because they are very appropriate to the present case, and because they express the rules which govern the courts upon questions of this kind with a force, a wisdom and an elegance which command almost universal approbation. Tested by these rules, the application for a divorce on the ground of cruelty, cannot he sustained.
The next subject of enquiry is the charge of desertion. And here it is important to consider what constitutes desertion, as described in the books. Fortunately we are saved any discussion of that question, or reference to authorities elsewhere, by an adjudication of our own court. The case of Baily v. Baily, 21 Gratt. 43, was decided by a unanimous court. It was followed and approved in Carr v. Carr, 22 Gratt. 168, and is sustained by the general current of authorities. In Baily v. Baily, the doctrine is thus laid down by Judge Christian, speak-for the whole court: “Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the matrimonial cohabitation, and secondly, an intent to desert, in the mind of the offender. Both must combine to make the desertion complete. The intent to desert is usually the principal thing to be considered. Obviously a mere separation by mutual consent is not desertion in either. For, as a matter of proof, can desertion be inferred against either from the mere *323unaided fact that they do not live together, though protracted absence, with other circumstances, may establish the original intent. The courts have not laid down particular rules of evidence for determining whether a ■separation does or does not, as matter of proof, amount to desertion; and the question does not admit of such rules, but each case must rest on its own circumstances.”
Bearing these principles in mind, we are now to consider whether the evidence sustains the charge of desertion. A brother of the appellant, who was examined as a witness, states that in a conversation had with the appellee in February, 1878, he proposed that the appellee should take his wife and child and go to Kentucky or Texas. The appellee replied there could be no reconciliation between him and his wife; that the matter had gone too far; that they would never live together again as man and wife. I do not think that the appellee by this, intended to avow a purpose on his part not to be reconciled to his wife, or not to live with her again; but rather to convey the idea that the difficulty had proceeded so far as to preclude all hope of reconciliation. The same witness proves that but a few months previous the appellee mentioned to witness their difficulties, telling him he thought his wife was attached to witness and was greatly under his influence, and that he asked witness if he could not bring about a better state of feeling between them. "Witness replied that he did not think he could, that he had never tried to exercise any special influence over his sister in Ms life; that she was perfectly conscientious in everything she said and did, and when she had formed an opinion was firm and uncompromising in it; that he could see no present remedy for their misfortunes; that he sympathized deeply and sincerely with them, and that he hoped time and their mutual interests would produce the harmony that was so desirable between man and wife.
*324Certainly nothing had occurred to warrant the belief that between the dates of these two conversations the state of feeling between the parties was at all improved or modified. The appellee, in his answer to the averment of the bill, that he was unwilling to be reconciled to his wife, says it is not true he ever refused to be reconciled to her. On the contrary, he has hoped for such reconciliation more than for anything else on earth. He-has never to this dark and miserable hour abandoned all hope that she would yet see the error of her ways, and thus save him from a life of unendurable wretchedness. The evidence does not discredit this declaration; it is in direct response to the bill, and the appellee cannot be denied the benefit of it. In the correspondence between the counsel for the appellant and the counsel for the appellee, respecting their several clients, the latter, in their letter of the 9th of January, 1877, say: “Wo assure you and I)r. Dulaney (it seems a friend and relative of the appellant), most earnestly, that we wanted to settle this controversy first by reconciliation if possible, if not, then by some fair and just compromise.” There is no doubt of the perfect sincerity of this declaration. The counsel of the appellant, in reply, on the same day, after expressing their conviction that there was no possible way of settling the trouble out of court, say: “We cannot close, this letter without again assuring you of our appreciation of your kind and Christian disposition in this case, with which wre have all the time sympathized.” Whatever may be the real state of the case, the inference fairly to be drawn from the record is, that the appellant, and not the appellee, presented the chief obstacles in the way of reconciliation. The fact or facts mainly relied on to show the desertion are that the appellee, in February, 1877, sold his furniture, left the city of Lynchburg, and went to the town of Danville secretly and clandestinely, taking the child with him, without consultation with the *325appellant, anrl without her knowledge, oi’ consent. The note written by the appellee to the appellant at the time shows that neither his purpose nor destination was cealed. That note informed her that the condition of his business made it necessary he should go to Danville that day; that lie would go to his brother’s house; that for •obvious reasons he took Roy (the child) with him, and that she (the appellant) might follow the next day. Whether he was sincere or not in stating she might follow him, he certainly did not prohibit her from so doing. Possibly he hoped the desire to sec her child might induce her to do so and eventually lead to a reconciliation. Had she followed him, or even written him, and he bad refused to receive her, or provide for her, the entire aspect of the case might have been changed. But, without taking a step to ascertain his purpose, this suit was brought mainly upon the idea that the conduct of the appellee justified the charge of desertion.
The appellee states that he went to the town of Dan-ville for the purpose of attending the United States coui’t then in session, which was no doubt the fact. It is very probable—indeed, it seems to be very clear—he took the child with him because lie feared that if he left it behind the appellant would get possession of it and remove it ■out of his reach beyond the limits of the state. This •apprehension, I think, explains much of his conduct throughout this entire controversy with reference to the •control and management of the child. I attach no sort of importance to the sale of the furniture, because, in view of the separation of the parties, it was of no use or benefit to the appellee.
But with whatever motive the trip to Danville was made, even though a change of residence ■was contemplated, it would not constitute a desertion. All prospect of reconciliation or compromise had then vanished; the counsel for the appellant had declared there was no hope *326of adjusting the difficulty out of court. It is vain to say that the removal of the appellee to another place of residence, even without the knowledge of the appellant, would constitute a desertion. Even where the parties-separate by consent, neither can complain of desertion in the other unless there is some- desire expressed for reconciliation—some overture made in good faith for a restoration of the conjugal relation. 1 Bish. on M. & D. § 784 a.
In looking over this record it is not very difficult to-find an explanation of the causes which led to the estrangement, and finally to the.separation of the parties. It seems that they differed a good deal with respect to-the management, control and training of the child. Who is to blame upon this point, it is impossible to say. It is very probable that both were wanting in a true spirit of conciliation and compromise. This, however, was not the real cause of the dissension. ■ Its origin lies much deeper. It is manifest that the appellant had made up her mind to bear no more children to the appellee; and in that temper she had denied him access to her bed. This was no mere whim or caprice, but a determined purpose, founded, as she said, upon conscientious convictions. I know it has been suggested that disease was the cause, and the deposition of Doctor Dulaney, her cousin, has been taken to show that during the appellant’s visit to Kentucky in the fall of 1875, he treated her for local affection. But it is most remarkable that during the whole of her sojourn, both in Danville and Lynchburg, which embraces nearly the entire period of her married life, the appellant never required any medical treatment whatever. And nowhere in the record is it pretended or claimed by any of her friends that her conduct, in the particular alluded to here, was the result of local disease, or infirmity of any description. Her counsel, in the eloquent and exhaustive brief filed by him *327in which he alludes to the subject, does not justify her conduct on any such ground. On the other hand, it is in proof that a short time before her confinement August, 1874, the appellant said to a lady friend she would die and go to perdition before she would have another child; that she considered a women disgraced who had children. She was told if she persisted in that course she would drive her husband away from her, and be the means probably of his going among bad women. She replied, it would be much better, and she greatly preferred it. And in 1876, she told a distinguished physician of Lynchburg she did not intend to have any more children; she knew how to prevent such an occurrence. And upon another occasion, upon being told by him that the differences between her and her husband ought to be settled—they were nothing but words—that she must consent to act as other women did, and allow her husband the privileges which other husbands had, she replied that her conscience would not allow her to do it, without saying why. Her exact language was: “You can’t surely ask me to do a thing which is against my conscience ? ” Doctor Owen says he did not understand her to give even an intimation that ill health w-as the obstacle in the way. He says she was apparently in good health; she looked badly then, but was apparently in good health at all other times.
Against this overwhelming array of facts and circumstances, it was vain to say that the conduct of the appellant was due to disease, when neither she nor her intimate friends, nor her counsel, have ever, at any time, put forth such a pretension.
This is a topic of so much delicacy that I feel the greatest hesitation and repugnance even in alluding to it, much more so in discussing it. I shall therefore dismiss it with the remark that, in my opinion, this has been the main cause of all these troubles—it is this that has cast *328its shadow over the pathway of these parties, producing controversy, estrangement and separation. In no other does this record explain how it is that two people, remarkable, as their friends say, for their many good qualities, should so rapidly have fallen from their happy estate into their present deplorable condition.
My belief is that the remedy for these troubles is with the appellant; that she is to blame for the evils that have overtaken her, and she cannot ask, with any hope of success, for the aid of the courts so long as she persists in her present views and purposes.
But if the causes suggested be not the real ones—if the true ground is in a want of congeniality of temper and character—it is obvious that the court cannot grant a divorce because the parties cannot live together in harmony and peace. As was said by Chancellor Kent in Burwell v. Saunders, 4 Johns. Ch. R. 502, the law regards the marriage contract as a stable and sacred contract of natural as well as of municipal lawn It is a contract juris gentium, and parties cannot lawfully rid themselves of its duties at the pleasure of either or of both of them. And Sir William Scott, in Evans v. Evans, already cited, says: “ The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. 'When people understand that they must■ live together, except for a few reasons known to the law, they learn to soften, by mutual accommodation, that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and waves; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust,'married persons might be legally separated, many couples who now pass through the world with mutual comfort—with attention to their common offspring, and to the moral order of civil society—might, *329at this moment, have been living in a state of mutual unkinclness—in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.”
Before passing from this branch of the case, it is proper to notice a fact much relied on by the appellant’s counsel; and that is, that the appellee himself had brought suit for a divorce from the appellant a short time before the filing of this bill. Whatever may have been the motives of the appellee, or the grounds on which he relied, they can have no sort of influence upon the decision of this case.. Upon this record, as it now stands, the appellee, in applying for a divorce, would have shared the same late as the appellant. Neither is entitled to it upon any or all the grounds stated. Marriage is a contract formed with a view not only to the benefit of the parties themselves, but to the benefit of third persons, to the benefit of their common offspring, and to the moral •order of civil society. Husband and wife cannot, by their conduct, pave the way to a divorce, or by agreement to live separate, entitle themselves to the aid of the courts to make valid that separation. In this state the courts and the legislature have adhered to the policy of refusing •divorces except for a few and weighty causes. Amid the demoralization of the times, and the attacks now elsewhere made upon the sanctity of the marriage tie, this policy has preserved and consecrated the domestic hearth and the domestic circle in Virginia. Holding these views I am of the opinion the appellant is not entitled to a •divorce from her husband.
It only remains to consider the question of the custody of the child. It is manifest that to the parties this is the paramount question. With them the matter of the di*330vorce derives its chief interest from its bearing upon the fate of the infant, the only issue of the marriage.
The bill charges that the appellee is not a fit and proper person, socially or morally, to have the raising of the child confided to him; and upon that ground it asks the court to decree to the appellant its custody and control.
As a general rule, it would seem that, upon application for a divorce, if the bill is dismissed, the court will decline to interfere either way, but leave the parties to such remedies as they may have by habeas corpus or otherwise. It is only when the divorce is granted that the court goes further and makes such order touching the proper custody and nurture of the offspring, as to it may seem right under all the circumstances. Our statute provides that the court, upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony, or from bed and board, may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, .custody and maintenance of the minor children, and may determine with which of the parents the children, or any of them, shall remain. Code of 1860, ch. 109, § 12. So it would seem that the court in which the divorce suit is pending is authorized under this statute to make an order touching the custody of the minor children only where there is a decree for a divorce.
There is another statute which confers a general jurisdiction upon the circuit, county and corporation, courts in chancery to hear and determine controversies between guardians and wards, to remove guardians, &c., and make any orders for the custody and tuition of an infant, and the management and preservation of his estate. Code 1860, ch. 127, § 13. It has been made a question whether this statute does not relate exclusively to matters of controversy between guardians and wards, and to the custody *331and tuition of the infants who have estates and thus become wards of the court. See Bev. Code of 1819, p. 406.
It is unnecessary to express any opinion upon either of these points, and I do not wish to be understood as doing so. It may be conceded it is competent for a court of. chancery, in pursuance of its general jurisdiction, for good and sufficient reasons, to make any proper order touching the custody and tuition of an infant; and that this may be done in a pending suit for divorce, even when the divorce is denied. All will concede that this jurisdiction is of the most delicate nature, and to be administered with the utmost caution. 2 Rob. Prac. 154; 1 Minor Inst. 399.
"When the application for divorce is by the wife, and the application is refused, the question of taking from the custody of the husband or father the minor child, is one of great difficulty and delicacy.
The father is the legal guardian of the infant; the law gives it to him against all the world. The right of the father (say all the cases) to the custody of his legitimate minor children, of whatever age they may be, is perfectly clear—too well settled to admit of dispute. 1 Minor Inst. 397, and cases there cited; 2 Kent, 194; Tyler on Coverture and Infancy.
Is this right affected by the voluntary separation of the parents ? If so, to what extent ? Does the mother thereby acquire any additional powers and privileges ? Does the father forfeit any of his? In England the courts have uniformly adhered to the common law doctrines, holding that the father has an absolute right to the custody of his children, and to the exclusion of the mother from all access to or communication with them, however pure and virtuous she might be, and however profligate might be Ms habits. To remedy this evil a statute was passed, known as Mr. Justice Talfourd’s act, which gives *332the equity courts a very large discretion with respect to the control and possession of the infant children, where the parents live separate and apart. But even under this act the courts still accord to the father the paramount right to the child; and they will not interfere with that right, unless in cases of gross misconduct on his part, or unless the interest or happiness of the child imperatively require it. Wellesly v. Duke of Beaufort, 2 Rus. R. 1, 43; Exparte Bartlett, 2 Coly. R. 661; In re Curtis, 28, L. J. ch. 458.
In a very recent case of Symington v. Symington, decided by the house of lords, and reported in 12 Eng. R. 109, 2 Sch. & D. App. L. R. 415, the subject received a very exhaustive discussion. It was there said: “The father’s right to the guardianship of his child is high and sacred, the law holds it in much reverence, and it should not bé taken from him without gross misconduct on his part and danger of injury to the health or morals of the children.” And further, the court would consider all the circumstances of the particular ease, the circumstances of the misconduct which led to a separation, the circumstances of the general character of the father and of the mother, and above all, the court would look to the interests of the children.
In this country the doctrine is not materially different from that now held by the English courts. The father is universally considered as having claims paramount to those of the mother, his legal authority only yielding to the claims of the infant, whenever the morals or interests of the latter strongly-require it. Whenever the father so conducts himself that it will not be for the benefit of the children to live with him, if his domestic habits, associations or opinions are such as to tend to the injury of his children, the court will withdraw them from him and confer the custody of them upon the mother, or take the children from both and commit them to some *333third person to nurture and educate. When the child is a daughter of very tender years, and the mother is deemed a suitable person, the custody is given to her, as essential to the health and life of the infant; while in conformity with the English rule the male child is given to the father, except in very extreme cases. In passing upon the claims of the parents, the court will enquire who is most to blame for the separation, giving the preference to the innocent party, because with such a party the infant is most likely to be cared for properly. 2 Bishop on Marriage and Divorce, 582.
In New* York they have a statute equally liberal with the English act conferring upon the courts very enlarged powers with respect to infants when the parents do not live together. It is there uniformly held that the father lias the paramount right to the child in the absence of any positive disqualification for the discharge of his parental duties; that when the wife has separated from her husbam 1 without any sufficient cause, she ought not to have the custody of the child, unless its health and present condition imperatively require it. People v. Humphreys, 24 Barb. R. 526; People v. Brooks, 35 Barb. R. 85. It is also there held that the welfare of the child will presumably be promoted by delivering it to its father, its rightful guardian; and those who maintain the contrary must show the fact. The same view is taken in Ohio. Gishwiler v. Dodez, 4 Ohio n. s. 615.
A very noted case arose in New York some years ago: The People v. Mercein, 3 Hill’s R. 363, 25 Wend. R. 64. An English subject having married a lady of New York, had by her two children, a boy and a girl He wished to go to Nova Scotia to live, but his wife refused to accompany him. It was finally agreed she should retain the girl, and he should take the boy. He returned not long after, and a controversy arose between him and his wife as to the custody of the girl, an infant *334about twenty-three months of age. The supreme court °f New York decided that the father was entitled to the This decision was reversed by the court of appeals of that state upon several grounds, one of which was that a 0£ suc^ ten(jei, years stood in need of maternal care an¿ attention. Afterwards, when the child had attained the age of four years and six months, the ease was again brought before the supreme court, and determined in favor of the father, upon the ground that the infant could now be delivered to the father, without .injury. The court held that, in cases of voluntary separation between husband and wife, there must be some rule in relation to the custody of their minor children, because without one the matter will probably be determined by violence, and that which the law had established should be followed; that although the court had a discretion in the matter, it was not an arbitrary discretion; on the contrary, the father had a paramount right to the custody of his infant child which no court could disregard in the absence of some positive disqualification on his part. It was not to be presumed, without proof, that the welfare of the child would be pi’omoted by leaving it with the mother. The law has settled the question otherwise by preferring the father. This claim could not be set aside on slight grounds, or because it was conjectured that the interests of the child required it. The court further held that where a wife left her husband without, cause, his right to the custody of the children was indubitable, and should be vindicated, from a regard to the interests of society, not less than of the parents. See Leading Oases in Equity, Vol. II, Pt. 2, pp. 1507-1514 for numerous cases on this subject.
The same doctrines are laid down in Massachusetts in the construction of a statute similar to that of New York—Commonwealth v. Briggs, 16 Pick. R. 203—and indeed in most of the states. See also Johnson v. Terry, *33534 Conn. R. 259. See cases cited at page 1517, Vol. II, Pt. 2, Lead. Cases in Equity; Anonymous case, 4 Des. R. 94, 102.
In Carr v. Carr, 22 Gratt. 168, this court affirmed a decree of the circuit court giving to the father the custody of a female child of the age of four years, the mother having left the house of her husband without sufficient cause. Judge Bouldin, delivering the unanimous opinion of the court, said: “The conduct of the husband was far from blameless. His conduct towards his young and inexperienced wife was, in many respects, in the highest degree reprehensible. He had treated her with too little tenderness and consideration. He' had been at times coarse, rude and petulant, when he should have been gentle, soothing and affectionate; but as these were not sufficient grounds to justify the wife in abandoning her homfe, this court would not sanction her conduct by awarding the child to her.”
In the case before us the infant is a male child four years of age—not sickly, or feeble—with nothing in its condition requiring the special attention of the mother beyond that of any other infant of like age. As was said by Judge Bouldin in Carr v. Carr, “with it the tender nursing period has passed by, and the time for moral training and impressions has arrived.” The child is now in custody of its father, and was in his custody when this suit was brought. Can we take it from him and confer it upon the mother ? She has failed in her application for a divorce; hut she avers he is not a fit person, socially or morally, to be entrusted with its custody and nurture. Is she sustained by the proofs ? Hpon this, as upon all other questions, we must look to the record, and to the record alone.
The appellee lived in Culpeper for eight or ten years previous to this marriage. Evidence has been taken there as to his character. Mr. James Barbour says his *336standing was as high as that-of any other young man in the community. He moved among the best people in the town. Ilis moral and social character was without reproach. lie was a man of remarkable amiability and good temper; and (so far as the witness observed) without any tendencies towards dissipation or immorality in his life or conduct. Other witnesses of- the highest respectability, among them the Honorable James G. Field, present attorney-general, testify to the same effect. Dr. Samuel Iiixey says: “Ilis character was good—he was respected and beloved by all who knew him—I never knew a more popular man among his associates here; he was very temperate, and I never knew him to indulge in dissipation of any kind; he was regarded as a very remarkably amiable man, and thought more like a, woman than a man, in that respect.” This is the uniform testimony as to his character before his marriage. The witnesses at Danville speak of him after his marriage as having a very happy temperament—as cheerful, agreeable and playful in his disposition; as affectionate and warm-hearted, as refined and gentlemanly in his deportment, and as respectful, kind and considerate to his wife, and cheerfully disposed to carry out all her wishes. The evidence taken at Lynchburg is that he is a man of good temper, polite, unexceptionable in his manners and conduct—a man of firmness, not impulsive, but quiet; not addicted to any habits of dissipation. Against all this array of testimony there is not a scintilla of evidence except the specific charges of misconduct which have already been fully noticed as unsustaiued by the proofs.
Among all the witnesses examined in this case there is not one, except the brother and sister of the appellant, that proves the appellee ever gave her an unkind speech. They testify to sneers and taunts, and bitter complaints, but nothing more.
On the other hand, it must be conceded the evidence *337shows that the appellant is a lady of very high character, socially and morally—beautiful in appearance—elegant, accomplished and attractive in her manners—and possessing, in an eminent degree, all those qualities which adorn and beautify the sex. There is also evidence tending to show that she is a person of very pronounced and positive character, and when once forming an opinion, not likely to abandon it. And long before these troubles occurred, lier manner towards her husband was far from respectful, treating him rather as an inferior than an equal.
It is, however, not with the appellant’s character and conduct we have to deal. She is not on trial. All the encomiums pronounced upon her may be conceded to be just. Iso one can justly question her devotion to her child, her anxiety for its welfare. It is the appellee who is arraigned. It is lie who is on trial, wdiose conduct and life are the subject of investigation here. The question is not whether the appellant may be properly entrusted with the custody of the child, but whether there is anything in the conduct, habits, opinions of the appellee which will justify this court in depriving him of the custody of the child, and in conferring it upon the mother. The testimony, as exhibited in this record, is an answer to the question.
In this case all our sympathies are naturally with the appellant; but sitting here to administer the law as we find it established by the wisdom of ages, we are not permitted to indulge our personal sympathies and feelings. For myself, I can say I never read a record with more regret than this. I never undertook to decide a cause with half the sorrow that moves me in this. The evidence, in my judgment, shows nothing, absolutely nothing, to prevent a complete reconciliation of the parties upon terms honorable and acceptable to both of them. JBut this failing, *338I was inclined to the opinion that suitable provision should be made to secure access on the part of the appellant to her child. Subsequent reflection has satisfied me this cannot be done. If the application for divorce is refused, if we are satisfied that the appellant is the chief obstacle in the way of a reconciliation, and that the appellee is, under all the circumstances, entitled to the' custody of the child, it is impossible to impose terms upon him, and to say he shall be compelled to have the child, under the' decree of the court, at particular places and times, to gratify die wishes and feelings of the appellant.
Another objection made to the decree of the court below is the failure to allow alimony to the wife.
Alimony is an allowance made to the wife out of the husband’s estate or income upon a decree of separation.
In England, and in some of the United States, it'is a mere incident to the divorce, and is never allowed when the divorce is refused, or even upon an independent bill for separate maintenance. The reason assigned is that it is against the policy of the law to make a separate judicial provision for the wife out of the husband’s estate, to be expended apart from him, except in those cases where the separation is sanctioned by the courts.
In Virginia the statutes allow alimony as incident to a decree for a divorce. But this court has gone farther, and held that equity has jurisdiction in an independent suit to decree in favor of the wife in proper cases—as, for example, when she has been abandoned by the husband, or driven from his house by ill treatment, and compelled to seek an asylum elsewhere. In Almond v. Almond, 4 Rand. 662, Judge Carr, delivering the opinion of the court, said: “Suppose the husband turns his wife out of doors, or treats her so cruelly that she cannot live with him; suppose him to persevere in refusing to take her back, or to provide a cent to feed and clothe her. Surely, in á civilized country, there must be some tri*339bunal to which she may resort. In such a case a court of equity would unquestionably stretch out its arms to save and protect her.”
The difficulty in the present case is that the wife has applied for a divorce, and has failed upon every ground upon which she could rely for a separate maintenance.
I do not mean to assert that there may not be cases in which the courts might refuse a divorce and yet allow alimony. But is this one of them ?
If the appellee is willing to be reconciled to the wife upon terms she can properly accept, if he has not abandoned her, if his conduct has not .been such as to justify her in separating from him, upon what basis or principle is sbe to be decreed the means of living apart from him ?
It may be that the appellee, after the marriage, possessed himself of a portion of her property, but it was done with her consent; and even though without her consent, there is nothing to show he had not the right, as husband, to reduce it into his possession. If the husband, by virtue of his marital rights, obtain the control of his wife’s property, not settled to her separate use, this court has no power to decree its restoration because the parties refuse to live together. Until separated by judicial proceeding they are husband and wife, invested with every right and subject to every duty involved in that relation.
I am, therefore, brought to the conclusion that this is not a case in which the court is authorized to allow ■ alimony.
It only remains, before concluding this opinion, to notice an objection made by appellant’s counsel to certain depositions taken by the appellee. The latter gave notice that he would take depositions at Culpeper Courthouse on the 25th day of May, 1877, and at Danville on the same day. An exception was made on this ground at both places, and these exceptions were overruled by the *340court below. The mode of proceeding pursued by the appellee in giving such notices was, of course, very ob-but it is difficult to see how this court or the court below,could apply a remedy. The appellant’s counsel ought, upon receiving the notices, to have elected which place they would attend; and the court would have suppressed the depositions taken at the other place, and the appellee would have been afforded an opportunity of re-taking the objectionable depositions. Upon this point the case of Fant v. Miller & Mayhew, 17 Gratt. 187, is a direct authority. Instead of pursuing this course, the appellant’s counsel attended at both places and cross-examined the witnesses, and thus removed all the difficulties arising out of the two notices to take depositions at different places on the same day. I think, for this reason, there was no error in overruling the appellant’s objections.
I have thus endeavored to go over all the grounds, to discuss all the questions arising in this case. It has been my earnest desire to avoid saying anything hurtful to the feelings of the appellant, who has my most sincere sympathies. It is proper to state that the testimony of the solitary negro witness—an old family servant—introduced by the appellee, and the letters of the appellant and her mother, have not been considered at all by me in foi’ming the conclusions now arrived at. Although these letters, in my opinion, have no proper place in this record, I must say I do not concur in the severe denunciations of the appellee because he has thought proper to introduce them. He has certainly had great provocation. Denounced as tyrannical to his wife, charged with adultery and lewdness of conduct, with attempting to debauch his own servant, almost in the presence of his own family, with being a frequenter of bawdy-houses, it is not unnatural that the appellee has exhibited considerable temper and a spirit of retaliation.
*341All these are the natural fruits of such a controversy. They will pass away with the occurrence which has produced them. Time and reflection, it is hoped, will satisfy hoth parties that their true happiness, and the comfort and welfare of the child, can only be found in that union which has the sanction and pledge of both Divine and human laws.
Anderson, J. I have taken a very different view of ■this case from that which has just been presented. And considering the magnitude of the interests involved, I feel it my duty to give, as fully as I can within the limits of an opinion, the facts and reasons which have brought me to my conclusions.
The defendant, who was temporarily residing in Kentucky, in the year 18G6, found the plaintiff, a school-girl, at a celebrated female college in that state, at the head of her class. She is represented by the testimony as unusually beautiful, and attractive in her person and manners, as amiable and affectionate in her disposition, as well educated and elegantly accomplished, and distinguished for her excellent qualities of mind and heart. She was the daughter of a widowed mother, who was eminent for her virtues. The family occupied the highest social position, and she was trained by her excellent mother to practice the duties which she owed to God and man. She is represented as being the favorite of her teachers and schoolmates, and as being universally beloved and admired in the community in which she lived. And she was in possession of an inheritance from her deceased father, which placed her above want and dependency.
Such was Miss O. Dannie Graves when the defendant, a young man of about twenty-five or twenty-six years, of handsome person and fine physique and pleasing society manners, was introduced to her as a Virgifiian *342of good social position in Ms native state, and who had done his duty to his state as a Confederate soldier. He succeeded in winning her young heai’t, and after an engagement of about five years, they were married at her mother’s residence in Kentucky, on the 30th of September, 1873. He brought her to the city of Dan-ville, in. the state of Virginia, where they lived until about June, 1875. About that time she returned to Kentucky with her infant son LeRoy, who was horn' on the 17th of August, 1874. After a vist there, she returned to Virginia with her husband, who came for her. He brought her to his brother •’Woodville’s, in the city of Lynchburg, where they stayed about a month. He then took her to board at his father’s, whose family consisted of his wife and four grown maiden daughters. She besought her husband to select some other place for their abode, but unsuccessfully. There it was that this unhappy breach became flagrant.
In December, 1876, Mrs. Graves, mother of plaintiff’, was in Lynchburg on a visit to her daughter, when she received a communication from defendant’s counsel, dated December 23d, 1876, informing her that they had been instructed by the defendant to procure a divorce or separation from his wife. They say: “ We have drawn all the necessary papers looking to a divorce, but have declined to file them in court, hoping that such publicity might be avoided by some private agreement for a perpetual separation.” (Italics mine.) They say further, that they have advised their client that, upon the facts stated, and which he says he will be abundantly able to prove, the court will decree him a divorce a mensa, ei thoro. Their client had actually presented his bill for a divorce, and upon his exparte statement, had obtained an injunction from the judge of the hustings court restraining his wife from removing her child from the state. Krúitless efforts were made by the counsel and friends *343of the parties to effect a private adjustment; and finally, Mr. Latham, in person, broke off a negotiation with the brother of his wife by declaring to him that there never could be a reconciliation between him and his wife, and that they never could live together again as man and wife. This was on the 16th of February, 1877, and on the 21st following, without the knowledge of his wife, or notice to her of such intention, he moved off to Dan-ville, a city near the border of the state, clandestinely carrying her infant son with him, then just two years, six months and four days old. Before leaving, he dismissed her servant maid and sold the furniture of his wife’s chamber to his mother, as claimed by her, including the bed upon which she slept,* and the next day caused his other effects to be sent after him. It is true he left a note for his wife, informing her that he would leave that day and would take B037 with him, but it was so arranged that the note was not delivered to her until after night, when he was in Danville with her baby. I will have more to say in relation to this note and this transaction.
Mrs. Latham feeling herself thus abandoned b}i her husband, and bereft of her darling child, as her last resort, exhibited her bill in chancer}' for a divorce a *344mensa et thoro upon the grounds of cruelty, reasonable apprehension of bodily hurt and desertion or abandonment, and for the custody of her child. Her hill was filed on the 2Gth of February, 1877, and was answered by the defendant on the 7th of March following.
Before considering the evidence in support of the allegations of the bill, it is proper that I should consider the charges made hy the defendant against his wife in this most remarkable answer. In. this he occupies the place of assailant; and in the investigation of these charges against the plaintiff, and of the whole case, I feel it to be my duty to strip the case as far as I can of its glosses, and to place those who have acted a part in it in their true light. I have no prejudices or predilections to indulge. The partios and nearly all of their witnesses are strangers to me; I know nothing of them except what I have learned from this record; and it would be more pleasant to throw a mantle over the faults and errors of all than to expose them, if it could be done with justice to the wronged. But the interests involved in this controversy are too great in magnitude to be passed over superficially or in palliation of offences. I feel- that justice requires that the conduct of every one who has acted a part in this unhappy drama should be placed in its true light. Let truth cut its way.
The answer abounds in affirmative allegations of the *345■conduct, character, temper and disposition, and principies of the plaintiff, which are exceedingly disgraceful and disreputable to her if true. They constitute defendant’s indictment. The onus is upon him to prove them, and those which are unsupported by evidence are not entitled to the weight of a feather in the decision of this cause. Of this description are the following:
The allegation that the plaintiff called him a liar on a particular occasion whilst they were hoarding at his father’s in Lynchburg. There is no proof of this allegation. He says himself that he said to his wife that “no man, woman or child ever called him aliar before.” But he attempts to establish it by the testimony of a negro woman, which we shall hereafter notice, that she heard her call him a fool and a liar, too, at a previous, time, when they were occupying rooms in Mr. Bugger’s house in Banville, thus contradicting his own declaration. But he admits that he threatened to “punish” his wife.
His allegation as to the cause of his removal from the house of his brother Woodville is not supported by any ■evidence in the record. But the allegation in the bill that it was occasioned by a quarrel between the brothers has some support in the testimony of Mrs. James Lea.
The allegation that respondent wishing to spend a short time with his father who was about to leave home, and his little boy asking to go down with him, his wife, then in a very bad humor, ordered him to leave the child behind, but that he took the child with him, and after a little while she came down, remarking as she entered the room, “ as you have brought the child down here you may have the pleasure of having my company also,” and at once commenced to abuse his father. She denounced him in the bitterest terms, &e. I find no proof in the record of this allegation, and it must be rejected as untrue.
*346The allegation in which he undertakes to give verbatim a conversation between his wife and his brother "Wood-ville, which was begun by her requesting him not to-speak to her child, &c., is not proved, and can receive no other weight than a sketch of fancy.
The allegation that she threatened again and again to leave him, and take her child, never to return, is unsustained by proof, and must also be rejected.
The allegation that she took from her trunk and showed respondent one of those filthy and wicked publications, in which it is declared that sexual intercourse is not a necessary or proper consequence of marriage, and that she said that they were her sentiments, is not sustained by a particle of proof in the record. Even in her most confidential letters, written with perfect freedom from restraint, and which he has published in this record, an expression cannot be found which indicates in the slightest degree that she entertained such sentiments, or that she had any sympathy with the dogmas known as- “ woman’s rights,” which he ascribes to her. Fortunately for truth and justice, he has furnished us with evidence-of what were her serious views on the subject of marriage, in one of her confidential letters addressed to him during their engagement of October 5th, 1870, before referred to. In that letter she says: “I have always believed that a marriage based on respect, appreciation, sympathy, and above all, devoted and abiding love, is the most sacred and grandest relation of life, and would surely be followed by happiness as complete as any we are permitted to enjoy in life. But I also think most marriages failures; and why? Because the parties entering into it are influenced by unworthy motives, and because husbands being considered superior in station to their wives, therefore being in authority, do not exercise it. aright—failing in the tenderness and consideration which is their due.” She does not object to but recog*347nizes tlieir position of authority, and only claims that it should be exercised with tenderness and consideration, which she rightly claims is due to the wife. Let the record show how this just claim has been respected by her husband for several months prior to the institution of this suit.
With regard to their contemplated union, having said that before sbe knew what love was she would not have risked matrimony for his happiness regardless of her own, she says: “But now believing that such a union as ours would be, God and his angels would sanction as true, I am willing (not to risk it, for it could be no risk,) to be yours; to travel with you the flinty or flowery .path of life, for I know that only as your wife can joy and content bo found for your ‘ darling ’ (a quotation), and I am satisfied Ghat you will prove to me it is not so great a humbug as I at first supposed.’ ” Again marks of quotation, implying it was a promise contained in his letter. But, alas! what a dark and sorrowful disappointment has she been doomed to experience in a few fleeting years.
The allegation that he has longed for reconciliation with his wife, and that he has never abandoned all hope that she would see the error of her way and save him from a life of unutterable wretchedness, is eloquently expressed by the draftsman, but is not consistent yith bis conduct towards her, is disproved by his conduct and declarations when not employed in the pleadings; nor does it comport with the assaults upon her character in this answer. •
The allegation that his wife, without his permission, when she supposed that all the family were at dinner, tried to leave the house secretly, talcing the child with her, the nurse meanwhile being sent down for her dinner, is not proved. But if she had taken the child with her out on the street, the fact of her having sent for her dinner to *348be taken to her room, showing that she expected soon to return, was the right of the mother without asking his permission. .And his conduct in going after her and forcing the child from her on the street and bringing it back in despite of her wishes, was ungenerous and unbecoming in the extreme. It was arbitrary, tyrannical-and cruel, and was not calculated to restore the reconciliation which he professes to long for. The pretence that he was afraid she would run off with the child from rhe state without any pre-arrangement for the removal of her clothing and effects, or the child’s, which were in his powder, and a-guarantee against any such vain fear, cannot excuse the outrage. . .
The allegation that he deserted her room upon her command is not proved. I do not think there is any proof that she desired him to leave it; on the contrary, it seems that at the time of her sister’s second visit to her, on the 30th of December, 1876, the day of her arrival in Lynchburg from Covington, Kentucky, Mr. Latham had not then been ordered by his wife to-leave her room, but that at that time he occupied the room with his wife; and it -would seem from what then transpired it is improbable that she would have ventured to order her husband to leave her room, or if she had, that he would have obeyed. It is improbable from what is disclosed by the testimony of Miss Lou. Graves, who I take to be, from her deposition and her whole bearing as it appears in the record, a lady in the highest sense of the word, and a lady of great sell-possession, truthfulness and intelligence. On her arrival in Lynchburg, she says she stopped at the Lynch hotel, and sent word to her sister that she was in the city, and she came to see her. She says: “I went home with her that afternoon; she told me that she wanted to go to see Mr. 'Williams on business, and wished me to stay in the room with Roy while she -was gone and stayall night with her. I told *349her that I could not stay all night with her unless I asked Robert’s permission, for I did not care to stay in any room but her own, and I would have to ask him to give up his place.”
“Question. Please state whether or not you heard Robert Latham say anything to your sister about your staying all night; if so, what did he say ?
“Answer. When she came back from Mr. Williams’ I heard the parlor door open, and Robert called out in a very loud and angry tone, ‘Is Lou. going to stay here all night ? ’ She (sister) said ‘ Yes, of course.’ He said, ‘Why of course?’ and went in and banged the door.
“ Question. Upon your arrival at their house the evening above referred to, did any of his father’s family speak to you, or make their appearance; if so, who of them ?
“Answer. Ho, I did not see any of them until my sister sent down for the baby, then Miss Mamie came up; she was the only one I saw.
“ Question. Did Robert Latham present himself when you called ?
“ Answer. Ho, I did not see him until I sent for him. When sister came up, after her return from Mr. Williams’,. I asked her to go down and tell Robert that I wanted to see him a few minutes, and after a good while he came up; I asked him if he would give up his place to me that night; he said, ‘Yes, to-night.'1
“ Question. Do you know whether he, or any of the family, knew of your being in the house ?
“Answer. I suppose they all knew it; the nurse went down to bring the baby up and to tell them that I was there; he certainly knew it, or he could not have called out to know if I was going to stay all night.
“Question. Were you at the house at supper-time; if so, were you invited to supper, or was your supper sent to your room ?
*350“Answer. Yes, I was there at súpper-time, but was not asked to supper, nor whether I would have any sent to me. Yone was sent to me.
“ Question. Did you stay all night; if so, when did you leave there ?
“Answer. Yes, I stayed all night and left there about eight o’clock the next morning, before breakfast, and went to the Lynch house to breakfast.
“Question. "Were you invited by Robert Latham or any of his family to stay to breakfast or to return again ?
“Answer. I did not see Robert again, nor any of the family, nor was I invited to breakfast, or to return again.
“ Question. Did you pay any subsequent visits to your sister while she remained at Robert Latham’s father’s ?
“Answer. Yes, I was there almost every day until I was shut out of the house and refused admission.”
I have deemed it proper to give the foregoing literal .transcript from the deposition of this intelligent and reliable witness to show not only that Mr. Latham was not denied by his wife, at that time, access to his wife’s chamber, but that his right to it was unequivocally recognized by his wife; but also to show what was the temper and disposition of himself and his father’s family towards his wife, which is still more fully developed in the progress of the cause, as we shall see in the course of this opinion. But enough has been shown of the conduct and disposition of the wife and of the husband to repel the allegation, of which there is no proof, that he deserted her room upon her command.
His allegations that she is unfit to have the control and training of her child on account of her unwifely and unwomanly course and her unbridled temper, and the disparagement of her affection for her child, is not only *351not proved, but is disproved by the overwhelming weight of evidence in 'the cause.
A very considerable part of the defendant’s answer •consists of transcripts of letters written to him in strict confidence by Mrs. Graves, the mother of his wife, and which she directed him to burn, but which he preferred to keep in violation of her injunction, and has presumed to break the seal of confidence, as he did in the case of letters written to him by the plaintiff' during their engagement and before their marriage, with the confiding spirit of trustful love and innocence. I had siipposed that if there was any one sentiment upon which society was agreed it was that the seal of confidence ivas sacred, and could not be broken without dishonor. The letters of Mrs. Graves were doubtless written upon representations made to her by defendant, in whom she then had confidence, which impressed her with fears that her daughter was to blame for the difficulties she had with her husband; and they were written to conciliate and to entreat his forbearance, in strict confidence. But it is evident that Airs. Graves had then heard only one side, and I think this is clearly shown by the record. The love which the plaintiff had for her husband, notwithstanding her ill treatment and her desire to couceal his faults from her family, and her refined sensibility and womanly pride prevented her from communicating to her mother and sister his ill treatment of her, until it had become unsupportable and flagrant, and probably not until after she had been informed that her husband was seeking a divorce. (See Lou. Graves’ deposition.) After she had talked freely with her truthful daughter and had obtained from her a true representation of the facts, Mrs. Graves entirely changed her opinion. But these letters which the defendant had drawn from the mother he preserved, and by breach of confidence incorporated in his answer, and then offered them as evidence against his wife. But *352they are not evidence against her, as was rightly held by the court below, and were improperly transcribed iu his answer, and ought not to be read, and if read ought not to have the slightest influence in the decision of this cause.
The plaintiff charged in her bill that before they went to Danville the defendant required her to conceal her want of sympathy with his political course. She says the shock was great to her when she found, after her marriage, that her husband, whom as a girl she had admired and honored as one who had done his duty to his native state in arms, and whom she supposed to be still true, had in fact allied himself with what are. known in Virginia as Radicals, &c. The defendant in his answer avers that it is not true that the complainant was ignorant of his political relation; and he avers that before he sought the office he now holds he consulted her wishes, and she advised him to seek it, and that the second time he met with her she was a guest in the house of the most decided and out-spoken Republican in all that section of Kentucky, then on a long visit to his daughter, the most intimate friend she ever had. This might all be so—but there is no proof of it in the record—yet it is not responsive to the allegation of the bill.' The vice charged was not political, for doubtless honorable and patriotic men are Republicans; hut the shock and mortification to her was to find that her husband had not been true; that he had deserted his friends with whom he had made common cause, and with whom he had been confederated during the war, and had gone over to the enemy and joined him in waging a more cruel war against them than the war of arms whilst arms remained. It was the perfidy—the moral taint—which she felt attached to him, and which would likely exclude him from the best society of the state. It was the idea that *353lier husband was not true that caused her the shock and sense of humiliation.
And now it was, when her husband was about to introduce her at Danville into such associations, she says that he required her to conceal her want of sympathy with his course. Such would naturally have been his wash, but he denies it, and it is not susceptible of proof. But he shifts the subject and introduces another couut into his indictment, and charges her with holding the principles of “woman’s rights” and “strong-minded women,” and says he advised her to conceal from, his mother and sisters her opinions on that subject, as it would injure her in their estimation. These are affirmative allegations, and the onus is on him to prove them; yet in this whole record there is not a syllable of evidence to be found— not even in her most confidential letters, which he has broken the seal of confidence to spread upon the record—to indicate that she ever entertained such sentiments, or a sentiment allied to them. He attempted to prove it by Miss Rose Allen Heal, whose love for him and hatred for his wife would not have inclined her to conceal anything that would' have been to her prejudice, but wholly failed.
He charges that she refused to cultivate the good will and friendship of those who sought her acquaintance in Danville, and habitually showed, and in her letters to respondent’s family expressed, her dislike for the most intelligent and refined citizens of Danville who called to see her.
From the genial, refined and cultivated society in which she had been reared defendant transferred his beautiful, refined and elegantly accomplished wife to a society at Danville composed, in the main, of his political associates, their families, dependants and retainers: an association with which she had no sympathy, and., *354which want of sympathy he doubtless felt it was desirable she should conceal from his associates. -And this he construes into a refusal to cultivate the good will and friendship of the most refined and intelligent citizens of Danville. And to establish this charge he produces certain letters written by her to his mother. These letters show upon their face that they ivere written in confidence, with perfect freedom from restraint, often carelessly, sometimes jestingly and playfully, as one writing to a trusted friend who would be ready to overlook any indiscreet ior thoughtless expression, or e,ven erroneous sentiment, as merely the suggestion of the moment, without due consideration—the writer just dotting down her thoughts as they were suggested the moment of writing, feeling that they were communicated only to one who appreciated her and who would be ready to make allowances for all errors and mistakes, and that what she wrote would he communicated only to the friend to whom it was confided, and would go no further. Private letters thus written by the plaintiff to the mother of her husband were preserved by her and given up to her son, who, disregarding the circumstances of confidence under which they were written, has exposed them to the public view, by spreading them upon this record, and has made them evidence in this case.
And they prove not what the defendant claims—her dislike for the most intelligent and refined citizens of Danville and her refusal to cultivate their good will and friendship—but her opinion of many of those, it may be the mass of them, whom the defendant desired to introduce to her friendly association, and whose friendship he desired her to cultivate. She is evidently a woman of penetration, and whatever her opinion of those people to whom she refers is worth, he has made it evidénce. And the opinion she formed of them was so unfavorable that it is not strange that she was not disposed to cultivate *355them. This was not so with regard to all the ladies and gentlemen with whom she met in Danville. Doubtless there were many as refined and cultivated people Danville as those in whose society she had been reared and educated; with but few of íbera, it would seem, she liad an opportunity to cultivate an intimate association. Such were Mrs. Dice, Mrs. Carrington, Air. Dugger and his family, Dr. and Mrs. Martin, Airs. Gravely, and doubtless there were others; hut as proved by Air. Dugger, Mrs. Carrington, Airs. Dice and others, she was polite and’respectful to all. She would be so through respect for her husband; but whilst she was so, in her freo and unrestrained correspondence with her husband’s mother, she expressed her private opinion of many of them; and she must have been impressed with a horrible idea of their grovelling nature when she compares them to “hshing worms.” She calls them “fishing worms,” and apologizes to her mother-in-law for the use of that expression, saying: “D. (her husband) taught me that bad word.” It would seem from this that he had no better opinion of them than she had, and yet he complains that she refused to cultivate their good will and friendship. She speaks of these calls on her as having been a perfect bore.
But there were exceptions. There were many, numerous exceptions in the society of Danville, with a few of whom, in her new relation, she was thrown. And in this letter she expressly mentions Dr. Martin and his wife, and speaks of Mrs. Martin as “ charming.” AVe know from the record there were others with whom she was associated on the most intimate terms. One is mentioned by Miss Lou. Graves. In answer to defendant’s question, upon her cross-examination, she testified that on one occasion, when her sister was on a visit to her mother, in 1875, she entered the parlor and saw they all looked a little disturbed. She asked what was the mat*356ter? Her sister, she thinks it was, said that she had made a remark about her friend Mrs. Gravely of .Dan-ville, that she thought she was one of the most refined ladies that she ever saw, and that Eobert had said that was as much as to say his mother and sisters were not refined, and she told him that she had no reference to his mother and sisters, or to any one else; that they were not even in her mind. I think we may fairly conclude, therefore, that her visitoi’s, to whom she refers in her letter to her mother-in-law, did not embrace the intelligent and ]’efined citizens of Danville, but only those-who were not embraced in that description, to whose association her husband had introduced her. Nor does-it show that she refused to cultivate their good will and friendship, although she had no sympathy or congeniality with them. It is only her private opinion of them, expressed in a letter, not addressed to a mere acquaintance, but the mother of her husband, in whose bosom she then felt free to confide every thought and feeling of her heart, as I think the record abundantly shows. But whilst her opinion of them was so unfavorable and their calls were a bore to her, she may have felt it her duty, through respect to her husband and her own good breeding, to treat them politely and with respect; which it appears from the evidence in the cause she did.
I have now travelled over the bulk of this most remarkable answer, and there remain but few items yet to consider’, but they will 3’equii’e. careful consideration.
He alleges that his wife’s “temper is oftentimes so irritable and sometimes so morose and gloomy that respondent has often suspected that possibly her mind was unhinged.” If so, it should have excited his sympathy and compassion instead of a disposition to crush her and to overwhelm her with ignominy and disgrace. The evidence, however, shows that he had no ground for such an apprehension.
*357But making a sudden departure from that view, he •charges that “it is habitual with her to see only her own interest, utterly to disregard the rights and feelings of others, and to magnify beyond all reason any infringement of her rights, as she sees them, and any offence or slight received from others, and she prides herself on her inability to forget or forgive an injury.”
The above is a very grave charge. It is a charge of moral depravity of a heinous character. It involves a charge of uncharitableness, want of candor, injustice, dishonesty and gross malevolence. This is the first branch of this count. The second is as follows, viz: that “though she has often confessed that she was wanting in ordinary maternal affection, and has declared that she looked upon her child as a curse which Providence has inflicted upon her,, yet she has insisted on the exclusive control and management of that child, declaring that respondent, as its father, had no rights in the matter, and that its management should, under no circumstances, and to no degree, be interfered with by him.” And he adds that “she not only hates her husband, but has sought to make his little child look on him as the vilest creature of the earth.” I will say at once that in my opinion, alter a most thorough and careful reading and analysis of the evidence in this voluminous record, not one of these charges is sustained, and the just tribute to the character of this lady, in the opinion of the majority of the court, repels them.
But let us consider the evidence in relation to the first branch of this allegation. I will first examine the testimony relating to the plaintiff’s conduct and character whilst domiciled by her husband at Danville in the society to which he sought to introduce her whilst there, to which I have before alluded. And first the defendant’s depositions in support of the charge.
Mrs. Susan Allen, with whom the defendant and his *358wife first boarded in Danville about four months, is a relative, and seems to be a warm personal friend and of the defendant, and is his witness. Even she testifies that Mrs. Latham was “respectful” to her husband. She says: “I never saw her disrespectful, but never saw any great display of affection.” And she discreetly adds, “that is not usual with ladies; ladies who> have great affection frequently fail to show it.” Consequently, unlike Mrs. Edmonia 'Washington, another of defendant’s witnesses, she did not conclude they were not affectionate, because “she did not see them kiss and hug.”
Mrs. Allen was asked upon her examination in chief to give her opinion of plaintiff, as formed from her association with her during her stay; and she undertakes to give it upon a four months’ acquaintance, which seems not to have been at all intimate.
Most likely* this hostess thought, when the young bride came to live with her, that she would be very yielding, and that she should take the direction of her and mould her to suit herself, particularly as she was the friend and relation of her husband; and she found herself disappointed. She found that the young bride had an opinion of her own and was not willing to be moulded, and acted toward her, not as an invited guest, which she was not, but as a pay-boarder (which she was) had a right to act. And it is not unlikely that the hostess felt, not only disappontment, but chagrin and mortification, and she concluded that she was a woman of unyielding will, great self-esteem, extremely selfish, and thinks she does not appreciate a kindness. But this, as bad as it is, does not come up to the charge. If this woman was correct in her opiniou, which evidently she is not, it is not that ‘«‘it is habitual with her (the plaintiff) to see only her own interest, utterly to disregard the rights and feelings of others and to magnify beyond all reason any infringe*359ment of her rights, as she sees them, and any slight or offence received from others, and she prides herself on her buibilitg to forget or forgive an injury.” The character thus described, and ascribed to the plaintiff by the defendant, is not sustained by this witness either in the facts or the opinions to which she testifies. It falls far short of it. She admits that she was kind and respectful to all in her house, except in two instances which she refused to explain. And what is more to the point in this suit, she admits that she was respectful to her husband; she never saw her otherwise'.
Mrs. Eose Allan Neal, a daughter of the aforesaid Mrs. Allan, who saj’s she is a third or fourth cousin of Mr. Latham, and his friend, expresses pretty much the same opinion that her mama entertains of Mrs. Latham, She thought Mrs. Latham tyrannical and exceedingly vain. Tyrannical, because she insisted on having a tin set for her chamber, and a grate instead of a stove, and a wardrobe; and particularly because as soon as she got one she insisted upon having the others. And she thought she showed her vanity by her manners and the care she took of herself and her appearance. Is it remarkable that a young lady, and particularly a bride, should be particular in her toilet and endeavor to make a good appearance ?
We next come to the deposition of Mrs. Isabella Lewis, wife of assistant United States attorney for the western district of Virginia. Mr. Latham took his wife there next to board. She seems to be very much embittered against Mrs. Latham. The main causes of offence, as I can gather from her deposition, are, because Mrs. Latham required her chamber to be cleaned out neatly and thoroughly eATery morning, and not merely once a week on Friday mornings, and kept the chamber-maid employed as long as it was necessary to have it well done, when she, the hostess, needed her; and moreover, because she *360cutout her work in the parlor; and because, when she sent for her to call her to account for sending her a mes-which she says was unlady-like, though she does not tell us what it was, Mrs. Latham acknowledged that a^e genj. mesgagej alld jn rather plain terms told }ier to her face what her opiuion was of her, to-wit: “that she was a perfect tyrant, and that she had not only ruled her, but every one on the lot, with a rod of iron.” That was too much for Mrs. Lewis to stand, and she formed a very unfavorable opinion of her character, but it seems not more unfavorable than Mrs. Latham had formed of her. In answer to the defendant’s seventh question-in-chief, she says: “ She only made one exhibition of temper in my presence,” which she afterwards somewhat varied. And she concluded that she was a vey high-tempered woman and a very exacting woman; but she says she never saw Mrs. Latham display any temper towards her husband. This is the only point of her testimony bearing on the main issues, and yet I think if the record vindicates the character of the plaintiff from such aspersions, it is due to an injured woman that it should so appear. Her testimony, though splenetic, also falls very far short of ascribing to the plaintiff the infamous character which the defendant’s allegation imports.
Then we have the deposition of Mr. H. S.' Lewis, assistant attorney of the Hnitecl States for the western district of Virginia. His feelings were; of course, not very amiable towards Mrs. Latham, after learning the grievances of his wife, if there was not a deeper seated cause of ill-will in him. He could not say that he ever heard Mrs. Latham speak an unkind word to her husband, but he thought her bearing was that of a superior to an inferior, and that her expressions were sometimes contemptuous; but he refused to give any instances. TYom her conduct towards those in the house with her, *361he considered her to be a person of high temper, though he could recall no particular facts that induced him to form that opinion. The deposition of this witness, though like the others showing strong prejudice, fails to sustain the defendant’s charge in its atrocity.
Then we have the deposition of Mary J. Waldron. She is the witness who was hunted up by C. P. Latham, clerk of the United States district and circuit courts at Danville, and brother of defendant, and who got his wife to write out her affidavit and sign her name to it. Her deposition shows that she knew nothing prejudicial to the plaintiff, whilst it shows at the same time a great disposition to say something, and a desire to conceal and cover up what she seemed to think would be prejudicial to her friend. But it really amounts to nothing, and I dismiss it with that remark.
As countérvailing this testimony and proving the falsehood of this atrocious charge, we have the following testimony: Ohrissv Hairston’s deposition is very conclusive as to the propriety of Mrs. Latham’s conduct to all, and her respectful and affectionate deportment towards her husband whilst they boarded at Mrs. Allen’s, which is consistent with her deportment whilst they hoarded at Air. Lewis’, and lived at Air. Dugger’s, as proved by Airs. Rice, Airs. Carrington and Air. Dugger.
Mrs. M. J. Rice had a room in Mr. Lewis’ house at the same time Air. and Airs. Latham boarded there, and saw a great deal more of them than Mr. or Airs. Lewis. Their rooms were only separated by the hall or passage. She saw Air. and Airs. Latham very often every day, sometimes three or four times a day. She add Airs. Latham were in one another’s room, off and on, all during the day, and witness was often in her room at night. And she testifies: “I never saw Airs. Latham out of temper in my life; they, her husband and herself, were *362just as kind to each other as they could be. When I heard of the difficulty between them, of their trying to get a divorce, I thought it was a joke, and didn’t believe it until I was told that it was so, because I never heard them speak an unkind word to one another in my life.” She says she remarked to Airs. Harvey several times, that she thought they were a happy couple together. She visited Mrs. Latham after she left Lewis’, at Air. Kingsley’s, and also when she kept rooms at Daniel Dugger’s.
Airs. Ellen A. Carrington, whose high character is known to at least one member of the court, who lived in the same house in Danville with Airs. Latham (Mr. Danigl Dugger’s) for seven months, testifies as follows: “I saw her from four to six times a day. I always found her to be a lady'of the greatest delicacy and refinement of feeling, exceedingly kind and polite to every one in the house, and had the very strictest regard for the truth. I never knew her to give way to any bursts of temper on any occasion, but she was always amiable and gentle and very kind to the inmates of the house who were sick.” Doth of these ladies had the best opportunities of knowing Airs. Latham, of witnessing her deportment, and of forming a just opinion of her character. Mr. Dugger, in whose house she lived for about seven months, testifies that so far as he knows anything abput it, “ her conduct was that of a high-toned lady.” As to her disposition, he says: “ I regarded Airs. Latham as a lady of decided will of her own, at the same time I never saw anything in Mrs. Latham that ivas not in entire harmony with her husband.” He says she was regardful and considerate of the feelings and the rights of those around her, as far as he knew. He says she was pleasant and agreeable to his own family and others about her. The testimony of these highly respectable witnesses falsifies this atrocious charge/and so does the testimony of that eminent divine and excellent gentle*363man, Dr. Allen Martin, whose church she regularly attended, though' not a member, and to whose Bible-class she belonged, and whom he visited frequently. He tersely says: “I regarded her as an amiable, well-principled, high-bred lady.” He saw her with her husband occasionally during his visits and at other times, and on such occasions, he says, “ her conduct was wifely and lady-like.”
And such was the opinion formed of her character by the ladies of Lynchburg who became acquainted with her after her removal to that place, as appears from the testimony of Mrs. Ella II. Eord, Mrs. Eliza Boyd, Mrs. Marion C. Tyree and others. The latter says: “ I will say she is not only womanly, modest and refined, but honorable and truthful in a high degree. I'have always been struck with her truthfulness.” And the estimation of her character formed by these respectable witnesses, comports with the character given her by people' of highest standing in Kentucky, gentlemen and ladies, in the midst of whom she. was reared and educated, and who knew her from infancy.
But the limits of an opinion will not allow me to do more than to compress the testimony of these witnesses, which shall be, for the most part, in their language. The following traits of character are established by their testimony: Her truthfulness: “ Her love of truth was a part of lief.” “Kever knew her, as a girl or a woman, to prevaricate, and she had a contempt for one who would.” “She was sound in morals, brought up by Christian parents, and was fcrfecthj just and conscientious.” “ She was a girl of strong individuality, decided in everything, nothing negative about her, high-toned, courageous and true in every respect, scorning what was mean, little or under-handed.” “Kemarkable for her kindness to old persons and desirous to do all she could for their comfort;” and for “her love for children, her *364gentleness and tenderness with them. They always loved her.” “She was a favorite with her teachers and at the head of her class.” “Her moral and intellectual qualities were of the highest order, as were also ke]> education and accomplishments.” In respect to her moral qualities, she was a woman of “ chastity, integrity, purity, charity, justice, truth, conscientiousness, refinement, cultivation, attractiveness and right feeling toward her Creator and her fellow-man ? ” “A true woman, of sterling constancy and fidelity.” Just the reverse of the charges under consideration, and proves them to be false and slanderous,
“In respect to her mental qualities, she has a mind of unusual natural vigor and brilliancy, developed by careful training to well-balanced reliant action.” “She is a woman of independent thought, untramelled by ignorance, superstition or prejudice, yet not erratic or unreasonable in her will, actions, or motives.” She is a woman who feels sorrow or grief keenly, though she may appear cheerful. In disposition she was affable to all, though reserved as to her personal affairs. Her character was of the highest order. She excelled in music, both vocal and instrumental; and, one of her classmates says, “in everything she undertook.” “Her personal appearance was very striking. She was unusally beautiful; ” and was in her manners and mental culture, in the language of one of her teachers, “ an elegant young woman.” “She had many friends at Shelbyville, by whom she was loved and admired, and in fact by the whole community.” Such is the tribute to her loveliness of character and person and eminent virtue, by the testimony of nine witnesses, gentlemen and ladies of the highest standing in their state, who knew her from her childhood, and who knew how she was appreciated by the people amongst whom she was born and reared. How different the portraiture they *365have given of her from that infamous one drawn by the defendant, and how differently she is esteemed by these intelligent and respectable witnesses, who have her all her life, and by Mr. and Mrs. Lewis, and Mrs. Allen, and Mrs. Eose Allen Heal, though they fell far short of proving defendant’s atrocious charge. Yet looking at her through a jaundiced medium, she appeared to them in a different light from the true light in which she appeared to all the other ivitness who have testified at Danville, Lynchburg and Kentucky. It is worthy of note that not a witness in this cause has testified in any manner to the disparagement of the plaintiff’ who was not connected in some way with the defendant’s coterie of friends and political associates, unless Mrs. Edmonia Washington should be excepted.
We come now to consider the other branch of this count in the indictment. It is in substance:
I. That she has often confessed that she was “ wanting in ordinary maternal affection.”
II. That “ she has declared that she looked upon her ■ child as a curse which Providence had inflicted upon her.”
HI. That “ she has insisted on the exclusive control and management of that3 child, declaring that respondent, as its father, had no rights in the matter, and that her management of it should, under no circumstances and to no degree, be interfered with by him.”
TV. That “ she not only hates lier husband, but has sought to make his little child look on him as the vilest creature of the earth.”
These are grave charges. We will not consider them in their exact order, but will proceed to enquire, Pías the defendant sustained them by evidence? The onus is upon him.
To support these charges he introduces as a witness a negro woman by the name of Edmonia Washington, to *366whom I have before alluded. This woman had been employed by Mr. Latham as a cook and nurse, whilst they had rooms at Mr. Dugger’s, and the conversations with Mrs. Latham, which she professes to detail, she regj.esen^g occurred during the time Mr. and Mrs. Latham had rooms at Mr. Dugger’s. She represents Mrs. Latham as “sitting down, talking like anybody else in the roomthat is, as I take it, putting herself on an equality with her, and saying to her that her love for Mr. Latham was getting weaker and weaker, and “that she didn’t love enough to bo married no how; that she ought not to have married.” She said she didn’t bring any particular charges against him, but “said she thought he loved his mother better than he did her.” Some time afterwards, upon her cross-examination, in answer to the question, “lias she ever told you she thought he loved his mother more than he loved her ? ” she answered: “She never told me anything about that; she said once that she thought he did pay more attention to his mother and sisters than he did to her, but she never told me that he loved his mother better-than he did her.” At this point in' her deposition it appears on the record, that the counsel turned to her examination-in-chief to see if she had not directly contradicted what she had testified in her direct examination, which she observing, added: “There was one time she said she “thought he loved his mother and sisters better than her, and she wanted to go to Texas,” &c., thus testifying backwards and forwards. Now, it will be remembered that she professes to be detailing a conversation which took place while they lived in Danville, in the house of Mr. Dugger, before they -went to Lynchburg, and when they had been very little with Mr. Latham’s mother and sisters, when kindly and affectionate relations existed between them and Mrs. O. Fannie Latham, and she could have had no cause of jealousy, and when it is *367shown by the testimony of Airs. Rice and Airs. Oarrington that Air. and Airs. Latham were very happy in their married life; which is fully confirmed by the raneous evidence of her letters which the defendant has spread upon the record. And the language which she attributes to her, that she didn’t love enough to be a married woman, is in conflict with the affectionate mark tal relations subsisting between her and her husband at that time, as abundantly proved, and about which there is no difference of opinion in the court, and also with the evidence of her devoted love to the defendant, by her constancy and devotion during their long engagement, under circumstances of great trial, and by her letters to the defendant during that period, which he has made evidence in the cause.
She says she heard her call him a fool and liar, hut in ths she contradicts the defendant himself, as we have seen, for long after this he says he told his wife that no man or woman ever called him a liar before, and it is contradicted by the whole testimony as to their deportment towards each other whilst they' occupied rooms at Air. Lugger’s. All her statements about the temper the plaintiff exhibited towards her husband during this period are contradicted by all the witnesses who, testify as to this period, both the plaintiff’s and the defendant’s, except L. S. Lewis, and his testimony yields it no support.
She further testifies that she told her during this same period “ that she did not love children as other mothei’s did; that she did not have that tender feeling for them like other mothers; that she loved it well enough to make clothes for it, and keep it comfortable and feed it. She said it was a curse sent upon her from the Almighty,” &c. How, at the time this woman says these declarations were made to her by Airs. Latham, Airs. Rice testifies: “ I never saw her treat it (her child) amiss in my life, and thought she was perfectly devoted to it. I don’t *368think I ever saw a mother more 'devoted to a child than she was to hers when I saw her at Mr. Dogger’s.” Mrs. Carrington, who lived seven months with Mrs. Latham, all the time this witness was a cook and nurse for her there, sajs: “I saw her with him (her child) daily and constantly, and never witnessed tenderer care and devotion from any woman. And I also saw her with it when it was sick, and she nursed it untiringly. In its sickness she was extremely anxious and attentive.” Dr. Martin, her pastor, testifies that “I saw her from time to time-with her child (it was during the samé period); on such occasions she impressed me as a devoted mother. She-appeared to me to he a mother proud and happy in her child.” And yet this unscrupulous servant-woman swears that during the period to which the testimony of these respectable ladies and Dr. Martin relates, Mrs. Latham told her that this child, which the foregoing testimony, and in fact the overwhelming weight of testimony, in the cause, proves she most tenderly loved, and in which she took so much pride, “ was a curse sent on her from the Almighty.” If the character of our wives or sisters or daughters are to be tested by such a witness, there would be no security to the most exalted character. And yet this is the only testimony in the record to support this allegation of the plaintiff. The allegation must have been made upon information from this witness that she would swear to it; yet she swears that she had no conversation with him, with his father or brothers, during the two months she was with them in Lynchburg, or before, as to what would be the character of the testimony she would give in the cause. It is incredible, as is her whole story. It is not only unsustained, but it is in conflict with the established facts in the record.
As to the specification, which I have designated as Do. 1 in the charge, “ that she had often confessed she was deficient in maternal affection,” there is not a particle of *369testimony, if we throw out the deposition of Edmonia Washington, which I feel bound to do, as utterly unworthy of credit. And there is no evidence of having often made such confession, or at all, but the evidence is overwhelming, not only conclusively to show that she is not deficient in maternal affection, but that her maternal affection was intense and absorbing.
Miss Lou. Graves, sister of the plaintiff—whose clear, intelligent, consistent, calm and unimpassioned testifying in this case, and her ladj'-like deportment under a rigoious and scrutinizing cross-examination, which was not at all times courteous, in which she sustained herself throughout, I confess inspires me with great confidence in her testimony, and great respect for her character—was called on to testify as to the affection of her sister for her child, and her treatment of it. She was asked to state whether her sister was regardful and anxious of the welfare of her child or otherwise. Her answer is: “Yes, she has always been so. She seems to be miserable if she does not know7 where he is, and whether he is happy and comfortable. She has always been so since I have known her, with her child. There was never anything which she could contribute to its comfort or happiness which she did not do. She vras perfectly self-sacrificing, never thinking of her own comfort or rest, hut giving up all to him. It w7as always her habit even to wash his flannel clothes for fear the washwoman might spoil them.
She always washed and dried his hair herself, and took care that the water for his bath was of the right temperature. She always took the greatest pains in cutting and fitting his clothes, so that they would be perfectly comfortable. She wrould never leave him by himself, and would stop anything in the world she was at in order to play with and amuse him, often when she w7as too tired to do so. I would often beg her not to do it myself. *370When she was at our home in Kentucky, we would often try to persuade her to leave him a day and go to places: Cincinnati Exposition, &c. I offered, and mother offered to stay and take care of him, but she would not go unless she could take him with her.”
To the same effect, and with at least equal force, is the testimony of Mrs. S. Willie Lyle, Dr. J. J. Dulaney, Mrs. Belle Buckner, Mrs. Mary E. Graves, of Kentucky, and Mrs. B. L. Owen, wife of Dr. W. O. Owen, of Lynchburg, who says: “ Erom little incidents I know, I judge she is a vei’37 affectionate mother.” And Mrs. O. M. Jordan, who testifiés: “ I have never seen a more tender, loving, devoted mother.” Mrs. Lyle says: “ She fondled and nourished him herself; she washed and dressed him, watched him, slept with him and sat awake with him in her bed several times at night (whilst she was with her), holding him asleep in her arms, because he did not sleep well when laid on the bed.” I might refer to other witnesses who testify as strongly, but it is sufficient to say that the testimony from Danville, Virginia, Kentucky and Lynchburg, abundantly shows that never was a mother more ardent in her affection and devotion to her child. He seemed to be her pride and joy and the light of her life, and never did mother exhibit a more anxious and earnest desire and purpose fully to meet her responsibilities for his right training and treatment, morally, intellectually and physically. We look in vain in this record to find any evidence that she was wanting in ordinary maternal affection, or that she had ever made such a confession, which the whole record shows is not true.
Hor is there any evidence to support the other allegations, that she insisted on the exclusive control and management of the child, declaring that his father had no rights in the matter’, and that her management of it should, under no circumstances and to no degree, be *371interfered with by him, and that she hates her husband, and has sought to make his little child look on him as the vilest creature of the earth. We look in vain in this record for the slighest proof in support of these charges, hut we find much to disprove them.
All the witnesses, both for plaintiff and defendant, who testify as to her deportment towards him while they lived in Danville, say they never heard her speak an .unkind word to him or of him. And after she left Danville, to spend four or five months in Kentucky, the testimony is that she invariably showed respect and affection for her husband; and after they went to Lynch-burg the testimony is that when she spoke of her troubles to her friends, she spoke with leniency of her husband and sought to apologize for his conduct.
Mrs. Ella II. Ford sajs,.. that when speaking of her troubles, she would speak with leniency of her husband, and say she thought he would not have acted so if he had not been influenced by others. She says: “I never heard her speak harshly of him or reproach him.” The testimony of Mrs. Doyd and Mrs. Tyree is to the same effect. Miss Sue Matthews, one of her most intimate friends, with whom she has had regular correspondence both before and since her marriage, says “ she loved him devotedly and was almost blinded to his faults. Kot once in all the long years (alluding to their long engagement, I suppose), did her feelings change. She believed in him implicitly, never doubted him, but was perfectly true to him, as she was in everything else. * # * Since her marriage she has always spoken of him in the most respectful, loving manner until this unfortunate affair; and never since has she said anything unkind of him in any of her letters—not even since this suit began; but .she has shown herself the true, noble, lovable woman she is under all trying circumstances.”
We come now to the consideration of the last count *372in this remarkable indictment of a husband against his wife, which will disclose (without considering the influence which questions of property may have had, as indicated by the remark made by the defendant’s mother to Miss Lou. Graves, and the enquiries as to property made by the defendant of the plaintiff’s brother, and the cross-examination of Miss Lou. Graves by defendant on the question of property), the probable origin and chief cause of the cruel treatment which this unfortunate lady has received from her husband. He charges that for months before this controversy became flagrant, and, with short intervals, for long periods before, that she had refused respondent access to her bed, sometimes on one pretext and then on another, but finally on the ground of her sovereign will and resolution, never again to bear children by him. A pretty complaint for a man to make to a court of justice against his wife! If it was true, why didn’t he put her privately away and let her take her child with her? How much better, more manly and magnanimous and noble, than, to come into a court of justice with this indelicate complaint on his lips against his wife. But as it has been made, indelicate and unpleasant as it is, we will have to look into it and get at the truth, if we can. Why didn’t he let his wife go and stay with her excellent mother, as she requested, and take her infant child, of such tender years, with her, and spend a few months with her in peace and quiet under the treatment of her confidential physician, and see whether all impediments to the conjugal happiness which thejr had previously enjoyed, would not be removed, which I think, in the light of this record, would most probably have been the result if he had been a man to have pursued that course, and had treated Ms wife with that tenderness and consideration she was entitled to ? But if such had not been the result, and time had shown that there was an immovable impedi*373ment to a reunion as man and wife, as indicated by tbe allegation, then it would have been better, and more noble, and more just for him to have given her up, and the child too—better for him and far better for the child—than to have tortured her maternal feelings as he has done, and to have exhibited towards her the coldness and indifference he has, and the ill feeling and bitterness he has, and to have come into court with such a complaint against his wife.
.But what real ground has he for complaint against his ■wife on this score ?
There is no doubt that during her visit to Kentucky in 1875 she was and had been suffering from diseases for which she was not responsible or in any manner culpable, which should have shielded her from the censure, complaint and resentment of her husband. I will only refer to the deposition of Dr. J. J. Dulaney, her distinguished and confidential physician and relative, who conclusively establishes this fact (p. 247 of the record). After describing her situation, he says he “procured for her a mechanical support, and prescribed remedies suited to her diseased condition.” It now seems that in following the prescribed remedies of her physician she incurred the complaint and cenhure of her husband and his bitter and cruel resentment.
“At Lynchburg, Va., in January, 1877,” Dr. Dulaney says, “I last saw her, and she was at that time still feeble and debilitated; she was not suffering as much from local disease as she was in 1875, and I think she would have appeared better at that time if it had not been for the mental distress occasioned by the suit then pending between her husband and herself for divorce.” He must have referred to the suit brought b'y her husband against her, as this suit had not then been commenced.
Dr. "W. O. Owen, an eminent physician of Lynchburg, and relation of defendant, and his witness, concurs in *374opinion with Dr. Dulaney as to the effect of such diseases, and I think, also, as to the remedy.
The doctor had said upon his direct examination: “ I told her (Mrs. Latham) that she must consent to act as other married women did, and allow her husband the privileges that other husbands had. She replied that her conscience would not allow her to do it, without saying why. Her exact language was, ‘You .surely can’t ask me to do a thing which is against my conscience ? ’ And. now plaintiff’s counsel asked him, when Mrs. Latham used this expression, might she not have referred to what she regarded as her duty in respect to her physical health? To which the doctor answered, “I suppose it is susceptible of that construction, but I did not so understand it.” She had not been under Dr. Owen’s treatment, and he could express no opinion as to her diseased condition; but he did say that he noticed a change for the worse in her physical condition. But the testimony of Dr. Dulaney is conclusive on this point, and her disease existed during the whole period embraced by the defendant’s allegation, and doubtless had much influence in producing the trouble. But it appears from her reply to Dr. Owen that her refusal to take his advice was not put on*, that ground, but was made a point of conscience. And yet she could not have meant that she had moral or religious scruples on the subject of cohabitation between husband and wife; the fruit of her marriage is a standing and conclusive fact against such a conclusion. It is impossible to believe that a woman whose principles were so decided and matured on moral subjects could be brought suddenly to regard that as sinful which the Bible sanctioned, and which the Christian ■world has ever practiced, and without which the human race would become extinct. Her well balanced mind and Christian principles could never have allowed her to embrace any such false and morbid notions of religious *375oi’ moral duty; and especially must we so conclude when her difficulties in conscience can be accounted for on high and honorable principles.
About the middle of December, 1876, the defendant had a bill of divorce prepared, and presented it to the judge, and obtained an injunction to restrain her from removing her child. I am of opinion that the hustings court erred in overruling the motion of plaintiff to require defendant to produce that paper and file it in the cause. It tvas an important act in this painful drama, and would have been evidence of the animus with which the defendant persecuted the plaintiff, and would have had an important bearing upon the merits of this controversy. But the plaintiff' knew that the defendant was seeking a divorce from her. She was informed by his counsel that they were instructed by him to obtain a divorce, and that the papers had all been prepared for the purpose; and whilst they do not inform her what were the allegations of the bill, they say that they were sufficient to entitle him to a divorce. It was after this procedure by the defendant, that the conversation detailed by Dr. Owen occurred. She had then, after a long course of maltreatment, disclosed by the evidence, been cast off' by her husband, and' was not recognized by him as his wife. Could she have consented to be the expectant mother of other children by him, to have them torn from her in tender infancy, as he had torn from her the child she had borne him, to be deprived of a mother’s care and training ? Could she consent to be the mother of his children, when they were to be taken from her as soon as they were old enough to receive instruction, and she would not be allowed the office of a mother in inculcating in their tender minds the duties which they owe to God and man ? Could she have consorted with him as his wife, whilst he held a bill of divorce over her, indicting charges against her, it may be, as. infamous as those *376he made against her in his answer to her bill, which he might file in court any day, and which she was instructed his counsel was only held up to see if they could not get for him a permanent separation by private agreement? gpe cou]<p not -then regard him as her husband, and spe might well have considered that to yield to him would be to take the place of his legalized mistress, and not of a wife. To have given him the privileges of a husband under such conditions would have been to yield her body to him for prostitution. ETo honorable, conscientious, virtuous and high-principled woman could ever submit to occupy such a position. This view of the case, I think, satisfactorily explains her reply to Dr. Owen, and is a complete justification of her course.
“The doctor mentions also a remark she made to him long anterior to his having any knowledge of a disagreement between her and her husband. “Although,” he says, “her air was serious, I did not think the expression was one of any importance.” That is the best interpretation of the character of her remark.
Old Airs. Latham is also introduced by her son to testify that she declared to her just before the birth other first child that .she would never have another. From the strength of her expressions on that occasion, as detailed by the old lady, which probably have lost nothing clothed in her language, she must have felt deeply. It was the language of passionate grief and suffering. I do not know that it is unnatural that a lady of great refinement and delicacy of feeling and innate modesty, and under great suffering, should have the feelings this lady expressed to her mother-in-law just before her accouchment with her first child. I have heard of a gentleman saying that his - wife had had twelve children, and he was under the impression that she never failed to declare before the birth of each one that she never would have another.
*377That no inference can be drawn from the passionate declarations made to old Mrs. Latham, that the plaintiff had any fixed false notions on this subject, or any that such indulgence was immoral and in-eligious, is evident from the fact that after those declarations were made, and after her accouchment, she and her husband lived a happy married life together at Danville, which the proof clearly establishes, and with regard to which there seems to be a concurrence of opinion between my brethren and myself; and in fact it is admitted by the allegation itself that even after they left Danville for short intervals the defendant was not excluded from the privileges of a husband. There is no complaint of this nature which extends back of the period of her becoming diseased, except that she would not allow the consummation of the marriage until several weeks after its solemnization—until after their arrival in Maryland, which is indelicately exposed in his answer. If it is trúe, it only shows that his wife was not sensual, and it is not inconsistent with the modesty and refinement attributed to her by her friends. But that she yielded we must conclude, from the fact of the birth of their child in less than eleven months after their marriage.
After her visit to Kentucky, and probably before they left there, under the advice of her physician, their intercourse was more restricted, and then the ill temper and dissatisfaction of her husband began to show itself. From these facts I think it may be fairly inferred, first, that the strong and passionate expressions made to her mother-in-law just before the birth of her child, as detailed in her deposition, were the result of her suffering and distress at the time, and cannot be construed as indicating any fixed moi’bid religious scruples on the subject of cohabitation between husband and wife; and, secondly, a confirmation of the opinion before expressed, *378that the ill temper of the husband and his ill treatment of his wife has been' primarily and mainly caused, not the influence which questions of property have had, by her restricting him in his otherwise lawful gratifica¿jon. there is a strong presumption from the discourteous and inhospitable treatment which his wife’s mother and sister and other friends received from members of his family, and from other circumstances disclosed by the record, that in his mal-treatment of his wife he acted not without prompting and encouragement from them.
As to defendant’s social position, I know nothing more than the record shows; but I should suppose that in Virginia society, or well-regulated society anywhere, a man could hardly occupy a high social position who would treat the mother or sister of his wife, or other ladies of refinement visiting at his house, with rudeness and insult, or who would deny the mother and sister of his wife, or his son’s wife, by ad insulting letter, the privilege of visiting her at his house. Any one wishing to know more of this can read the depositions of Mrs. Tyree, Mrs. Ford, Mrs. Manson and Miss Lou. Graves, and the note of ~VV. Latham, Sr., to Mrs. A. C.’ Graves, which was introduced in evidence by the defendant, remembering that the imputations he makes against Mrs. Graves and her daughter are not supported by a particle of testimony, and in the absence of such testimony, by the known character of those ladies they are repelled, and must be taken as an intentional insult.
This conduct towards the mother and sister and the lady friends of the plaintiff was with the concurrence of the defendant. . They would hardly have been so treated if it was displeasing to him; in fact, in much of it he ■ was himself an actor. I am not oblivious to the fact that several respectable witnesses of Culpeper have testified most favorably to the impressions he made on them *379in his boyhood and early youth, and of the tenns of eulogy in which they speak of him, and I wish there was nothing in this record to mar and deface that picture. I have felt it 3ny duty in the course of this opinion to exhibit the facts. I forbear further comment.
I think the inference is plain, from all that has been said, that the defendant in arraigning his wife upon all the various chai’ges which we have been patiently and laboiiously investigating, has shown that he is uttei’ly estranged and alienated from her; that he has no regard or love for her as his wife, but that he hates hei’, and would ruin her if he could; and that in the publication of her sti’ictly confidential letters, written to him in relations of confidence of the most delicate and most sacred character, and the private confidential letters written by her to his mother with perfect freedom from restraint, in the confidence that she was writing to one who would not abuse her confidence and use it to her prejudice; and in the betrayal of the confidence reposed -in him by his wife’s mother, by publication of letters which she addressed to him expressly under the seal of condfidence, there is no justification for defendant. He can find neither justification nor apology on the ground that his wife had unjustly charged him with the crime of adultery, and employed detectives to hunt up evidence to establish the chai’ge. There is no evidence that she employéd detectives. It was not impi’oper for her or her friends to employ any lawful means to discover testimony to support the charge. There is no evidence that they employed unfair means. But the charge had not been made when the defendant’s answer was filed, nor when he broke the seal of confidence in publishing the letters. It was not made in her oiiginal bill. • She had then not a thought or suspicion that her husband had ever been guilty of such unfaithfulness to his marriage vow, as she avers in her amended bill. And it appears *380from the testimony of Eliza Patterson that she did not communicate it to the plaintiff until after she went to with Mrs. Dawson, when the plaintiff remarked that she had never thought of such a thing; and she says she wenj. £0 pve jy[rs_ Dawson on the 7th of March, which is the day the defendant’s answer was filed. The charge was made in the amended bill which was filed the" 4th of July, 1877, and not before. And no testimony wras given tending to implicate him until the 4th of June, 1877—long after the defendant had made his unfounded charges against his wife in his answer, and long after the publication of the aforesaid letters. It was nearly three months after his answer was filed before the depositions were given which implicated him in the offence, and nearly four months before the charge was made by the plaintiff’s amended bill. And I think her counsel would have been derelict in duty if they had not advised it after what had been disclosed by the testimony of Eliza Patterson and Maurice Dawson.
A most unwarrantable attempt was made by introducing testimony of alleged declarations made by the witness, Eliza Patterson, to the mother, brothers and sisters of the defendant, of base and profligate attempts made by the plaintiff to influence and suborn the witness in her testimony, under the specious pretext of invalid ating the witness. B u t all such testimony was mere hearsay, and was not entitled to the weight of a feather against the plaintiff. And the most of it was inadmissible for the purpose of invalidation, and the court below erred in not sustaining the exceptions taken to it by the plaintiff’s counsel, and in not excluding it from the record.
This brings us to the consideration of the issue made by the amended bill. I think the testimony of Eliza Patterson and Maurice Dawson, if believed and unexplained, were sufficient to sustain the charge of adultery in a bill *381for a divorce. The. credibility of the former is fiercely assailed. She is a colored girl, and at the time of the alleged overtures and solicitations of the defendant she was a servant in his employment, but at the time her deposition was given was not in the employment of either of the parties to this suit. I think the testimony of a witness in her position ought to be received by the courts with great caution, because, in their ignorance and weakness, they are liable to be influenced improperly. The court should look to the capacity of the witness, the intrinsic character of the testimony, its reasonableness and consistency with itself and the established facts of the case, and the influences -which may have been actually exerted, of which would likely have operated on the witness.
In this case the witness does not appear to be deficient in capacity, and her testimony is not unreasonable or inconsistent with itself or the established facts of the record. Old Mrs. Latham, years before, seemed to have apprehended danger, and* says she warned the plaintiff against it. And about the time the witness testifies these overtures were made, with the solicitude of a mother,she felt uneasiness. She knew that her son and his wife were occupying different chambers, he having given up his place in his wife’s chamber to her sister, and this mulatto girl was attending to his chamber, and she may have noticed something specially which excited her fears, and she takes the girl to task, and charges her with pregnancy wThen there could have been nothing visible to indicate it, as she was not. The reason she assigns— that if it were so, she did not wish the girl to be a burden on her hands—would seem to be insufficient. It would be time enough, if she were in that condition, to relieve herself of the burden after it became manifest. She most probably wished to find out the character of the girl and to ascertain whether her son was not in *382danger. And afterwards, when her son deserted his wife’s chamber, she had a bed for him in her chamber, of the one he had occupied before alone. And when, after the plaintiff had been informed that the defendant had caused a bill to be prepared for a divorce, wpich be had presented to the judge, who had granted him an injunction, which was only held in abeyance pending negotiations for a permanent separation by agreement, in preparing for her defence in said suit, a sister of defendant ascertained from Eliza Patterson that she was sent by the plaintiff to her counsel, Mr. Williams, to make a statement of what she knew and could testify in said suit in her behalf, it was soon made known to tlie family of the defendant, his mother, two of his brothers, Woodville and Charles, and his sisters, and it seems to have caused quite a sensation and stir amongst them; their sympathies were very much excited for the girl, who they represent to have been in great distress, and in the kindness of their hearts they catechised the plaintiff’s witness as to what she knew, and advised her as to how she might relieve herself .from the difficulty; for it seems she did not wish to be a witness. Wood-ville says he had two interviews with her; the first some days before she went to see Mr. Williams. This was of his seeking. He says that he was at his father’s house in the evening, when some member of the family remarked that Eliza Patterson was in great distress on account of an interview she had had with Mrs. Latham in regard to her giving testimony for her, and he sent for her to come in the parlor. And the next interview he had with her was some days after she had been to see Mr. Williams. His brother Charles had come down from Danville, and he, and one of his sisters also, had an interview with her before she went to see Mr. Williams, and he one after. The witness and Charles Latham differ as to what they advised her. She testifies that they told her to tell Mr. *383"Williams that what she had to say would not do Miss Fannie any good, and that it wouldn’t be worth while in him questioning her. Whether she, or he, is mistaken as to the advice given her, she seems so to have understood it, for that is the course she pursued; for she says: “After I told him that, he did not ask me but two questions, that I can remember.” I infer from the solicitude and anxiety manifested by the mother, brothers and sisters of the defendant, that they must have apprehended that she would testify to something that would be very damaging to the defendant. They probably had some intimation before that of her having said that solicitations had been made to her by the defendant, for in answer to the twenty-second question of the cross-examination, she says the first morning he said anything to her she went straight down into the kitchen and told the cook, “ Aunt Lizzie Adams;” and the second time he said anything to her she told her again, and told no one else but her at that time. About a month or two afterwards they got another cook, and she says she was talking with her about it in the kitchen, and the little boy was up stairs over the kitchen and heal’d her; who, she says, always said he would tell it.
If these statements were not true, it was in the power of the defendant to have shown.it by introducing the persons named by the witness to contradict her. It was not competent for the plaintiff to introduce them to support the witness, and the presumption is, that the defendant did not, because they would, if introduced, have sustained the witness. But the plaintiff had then never heard of it; she did not communicate it to her until after she had left the Lathams’ house and was boarding at Mrs. Jordan’s, and of course was seeking her testimony for no such purpose, but only to prove the treatment she had received from her husband in presence of the witness.
*384But the weeping and great distress of the witness, as represented by them! Why should it have caused her so much distress to give a statement to the plaintiff’s counsel of all that the plaintiff' was aware at that time that she knew, and which is contained in hér deposition ? It must have been caused by the dread of displeasing the defendant, in whose employment she was, and his family, that caused her such great distress, and the idea that if she gave testimony at all that she would have to expose the conduct of the defendant, of which at that time the plaintiff had not been informed, and of which she had not even a suspicion. It was very natural that it would be repulsive to her to make a public exposure of those matters, and more especially if she had reason to believe it would make a breach between her and Mr. Latham and his mother and sisters and brothers, as it would most likely do. It seems to me that it is only in this way that the distress which she manifested, as is represented, can be accounted for. It could not be from a dread of displeasing the plaintiff if she did not testify to it; for she was aware that the plaintiff was then wholly ignorant that such interviews had occurred between her and her husband, and consequently if she had suppressed it in her testimony it could have given her no displeasure, for she was not expecting her to give such testimony. In answer to the defendant’s forty-first question, she says': “ She (Mrs. Latham) only told me to go and see Mr. Williams, and I hesitated to go, but she talked with me a while, and I consented to go. She said, she thought it was very unkind in me not to go; that is all I remember.” She testifies that she did not tell Mrs: Latham until after she left her and went to live at Mrs. Dawson’s. She told her in her room at Mrs. Jordan’s. This was long after the plaintiff had left the house of her husband’s father, and after she had requested the witness to go to Mr. Williams, and in fact after the *385defendant had filed his answer to her bill. And she testifies in answer to'defendant’s twenty-eighth question that, she told the plaintiff without her asking her thing about it—“she told her of her own accord,” and the plaintiff'remarked “she never had thought of such a thing.” I am perfectly satisfied from the evidence that no improper influence was exerted by the plaintiff to induce her to give the testimony she gave, or to give any testimony, and that her testimony was given against strong influences that were brought to bear upon her from the other side. I think that the testimony of the defendant’s witnesses as to declarations made by the witness to them, as to the influence the plaintiff' exerted over her to induce her to testify, is no evidence against the plaintiff', being mere hearsay, and is incredible in itself, and is contradicted by the witness when on oath, and that it was, at least nearly all of it, inadmissible even for the purpose of invalidating the witness, no proper foundation having been laid for its introduction; and that if it were admissible it would not show, under the circumstances, that the witness had not told the truth when she testified on oath. I am of opinion that her testimony is not inconsistent with other facts in the record, that it is consistent with itself, and seems to have been given without prejudice or partiality, and I do not feel at liberty to disregard it.
Ho attempt has been made to' discredit Maurice Dawson, but the plaintiff has introduced a witness, J. H. Ballard, then a United States officer, by whom he proves they went together to the house of ill-fame innocently, and from no improper purpose, mistaking it for a respectable boarding house, and left it as soon as they discovered their mistake. He says he and the defendant went to this house “just before night” on a Sunday evening, “ only a short while; don’t remember whether the suú was down *386or not; it was not getting dark though.” Dawson says ^ was on Sunday night between seven (then after dark) eleven o’clock when he saw defendant with his friend, who was, a stranger to him, at that house. He thinks it was nearer seven than eleven. He was, after he gave his deposition, introduced to Mr. Ballard, and afterwards testified that he did not think he was the man he saw with defendant, but was not certain, because he couldn’t see the gentleman plainly that night, had never seen him before, and did not notice him as particularly as he did the defendant. Assuming that it was, when J. H. Ballard was with him that the witness Dawson saw the defendant at the house of ill-fame, no presumption of guilt from the fact of his being seen at that house can be raised against the defendant if Ballard is credited, and so much doubt is thrown upon the other testimony offered in support of the charge by the defendant’s testimony that I think the evidence, taken altogether in support of it, is insufficient in law to establish the charge.. Having disposed of these matters, and endeavored to clear the case of what has been improperly thrown into it to prejudice the plaintiff, we are prepared to consider the grounds upon which she seeks a divorce from bed and board and the custody and nurture of her infant child by her original bill. They are the statutory grounds of cruelty, a reasonable apprehension of bodily hurt or abandonment or desertion. The evidence is entirely satisfactory to my mind that the plaintiff is entitled to a divorce upon each and all of them.
I thinkthe evidence shows that she has been treated with cruelty—yea, the refinement of cruelty. Her husband seems to have taken a mistaken view of the marital -rights of himself and wife, and has failed to appreciate the conduct of his wife in its true light; and this has led him to a course of conduct towards her that is cruel and inhuman.
*387It is true that it is the husband’s God-given prerogative to be the head of his family, and to be the ultimate authority in his domestic circle, and a good wife will spect his authority when exercised within proper hounds; but a woman when she marries does not surrender all her rights. It is an old common law doctrine, that her legal rights are merged in her husband; but courts of equity and modern legislation have greatly modified the old common law doctrine and enlarged the legal rights and equities of the wife. The wife does not lose her individuality, morally or socially. She retains her moral and human rights—her moral and religions responsibilities—her natural and moral sensibilities—her liberty of thought and freedom of speech. She is not the slave of her husband (though she is too often made such); she is morally and socially his equal. She has her rights and privileges within her sphere, which the husband cannot ■withhold from her except by an act of oppression. And the care and nurture and training of her children in the nursery is within her sphere, and properly belong to her peculiar province. The husband should give such assistance as he can to his wife in raising their children, and especially in supporting her authority. Hut surely it is not his duty or his privilege to go into the nursery and take charge of them and supersede their mother in her position of authority there. The children, and especially such as are of the tender years of this plaintiff’s child, need the constant care and watchful superintendence of' the mother. This cannot be rendered by the father, who has out-door duties to perform, and hence must devolve on the mother. And there are duties which must he performed by the tender female hand; and if not performed by the mother, must he by some other female. I deny the right of the father to take the child from the mother against her consent, and to place it under the care of another woman in opposition to her wishes.
*388The training and instruction of the children in early life, and during the period when their characters are being formed, properly devolves on the mother. The responsibility rests on her more than on the father, for tile reason that she can be always with them, whilst the father, who has his out-door duties, cannot; and the mother is usually better qualified to train and instruct her children. The maternal influence is proverbial. Ho-man, perhaps, ever excelled in life who could not ascribe the qualities he possessed which gave him success to maternal influence. I say, then, this is the peculiar province of the mother; it is the positiou wherein God placed her, and she is responsible to Him for the manner in which she discharges the duty. Aud the husband who interferes with her, takes her child from her, and prohibits-her from having the care and training of it, if she is capable, prevents her from meeting the responsibilities ■which she is under to her Maker, inflicts upon her unmitigated cruelty, and incurs guilt in the sight of Heaven. Such acts are an abuse of his authority and a flagrant violation of his marital obligations.
Hut the wife is entitled to have her child with her for her happiness, solace and comfort. It is generally believed,, I think, that the affections of a mother are stronger than those of a father; and I believe it. What affection is-stronger than a mother’s love ? Whilst a father may exercise an advisory influence with the mother in the management, control and training of her children, I deny emphatically his right to take away the care and custody of the child from the mother, as' in this case, and give it to Ms mother or sisters, or anybody, against her consent and wishes. It is an enormous wrong and cruel outrage upon the rights of the mother. Even brute beasts are allowed in general to have their young offspring with them. It is painful to separate the tender offspring of a brute beast from its mother.
*389The moral sentiment of the woi’ld looked with abhorrence on the separation of a female slave who was a mother from her offspring of tender years. It was not ■often done when slavery was sanctioned by law, though the master had the,power; and when it was done, the mind of every man and woman of moral- sensibility in the community where it occurred revolted and condemned it. But to tear from ■ the bosom of a young, ardent, refined, highly cultivated, amiable, devoted mother, eminently qualified, morally and mentally, for rearing it, in defiance of her cries and entreaties, the infant child that she has borne, and to consign it to the rearing and training of the mother or sisters of the father, or any other person, is a barbarity and refinement of cruelty which no man has a right to inflict on his wife. I care not what precedents may be hunted up to support it—and none, I believe, can be found—I hold that it is opposed to all righteous law, human and divine; and I will never sanction it. It is cruelty when inflicted, which entitles a wife to be released from her obligations to her husband and to the protection of the law in her custody of her child.
That these cruelties, besides various other methods of showing his ill-will to her, have been inflicted by the defendant upon his wife, beyond all question or controversy, and I think, under circumstances of great aggravation, is abundantly shown by the testimony in this record. I regret that the limits of this opinion will not allow the recital of it. I must content myself with a reference to the depositions of Miss Lou. A. Graves, Charles A. Graves, Dr. Dulaney, Eliza Patterson, Mrs. Eord, Mrs. Tyree and Mrs. Boyd. He first takes her child from her most of the day and places it in charge of his mother and sisters, or takes it to his brother 'Woodville’s, but usually returns it to her in the evening, though sometimes she is not allowed to see it until the next morning. He pro*390Mbits her from taking it with her in her walks for recreation, or in making calls on her friends. Soon privileges are further restricted, and the child is taken from her also for the night, and she is denied the prjyQege 0f f0Ming him in her arms to sleep. Finally, her cMld, the pride and joy of her heart, is torn from her embraces and her sight, clandestinely and secretly, and.carried to Danville, under circumstances indicating that the separation was designed to be final; and thus abandoned by her husband and bereft of her child, she is at last driven, as her last hope, to appeal to the laws of her country for protection. If the statute is to be construed as using the term, cruelty, in a sense different from its use in common parlance, and implies injui’y to the body only (which includes the life or health), I agree with Bishop, that the more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference' to the effect it must necessarily produce on the life or health of the wife; and if it has been such as to injure either, to regard it as true legal cruelty. To hold absolutely that if a husband avoids positive or threatened personal violence, the wife has no protection against any means short of these, to which he may resort, and which may destroy her life or health, is to invite such an infliction by the indemity to the wrong-doer. 1 Bish. M. & D. edition, § 732. Again : “Suppose the body is the only thing to be considered in these cases, yet if we find various avenues to it, through any one of which may run the waters to drown its life or health, surely we cannot say that the approaches through one avenue should be left open by the law, while the others are closed.” Ib. § 733. This I hold to be sound doctrine, and it applies to the case in hand, for such cruelties as this record exhibits, must prey upon the sensitive and refined nature of the plaintiff’, and undermine and destroy her health and imperil her life. *391And it has been shown that her health has already been injured, by the testimony of Dr. Owen, defendant’s own witness, Dr. Dulaney, and especially Mrs. Owen. The. ground of divorce for cruelty, I think, is fully established.
I am also of opinion that the plaintiff has “reasonable apprehension of bodily hurt.” She says in her bill, so bitter and relentless is the treatment she has received, that she does not feel safe in the house, and is afraid to remain there. She has continued to remain there for the child’s sake and the fear she had of impairing her claim to him if she withdrew without the defendant’s consent. He did presume to lay violent hands upon her, and bruised her hands and arms. The bruises could be seen four days afterwards, as proved by Mrs. Boyd. On another occasion he admits that he threatened to punish her, thereby asserting a right to punish her. The husband has no right to punish his wife. Ho language with which a wife might reproach her husband could justify him in inflicting punishment on her. He acknowledges without shame or apology, in his address to the court, that he did threaten to punish her, as if it were his right to do so, which he evidently claims. Before God he promised “to love and cherish her, to honor and keep her in sickness and in health, as long as they both lived; ” and yet he dares now threaten to punisli her.
From this threat, acknowledged before the court in a way implying a claim of right to punish his wife, in connection with the fact of his once laying violent hands upon her, and with the temper and spirit he manifested towards her by his studied indifference, neglect, harshness, bitterness and cruelty which the evidence unfolds, I am forced to the conclusion that she had cause for her sense of insecurity, “ and reasonable apprehension of bodily hurt,” if she remained with him.
But he abandoned her. In Bailey v. Bailey, 21 Gratt. *39243, we held that “desertion is a breach of matrimonial duty, and is composed, first, of the actual breaking off the matrimonial cohabitation; and, secón dlyT, an intent to desert in the mind of the offender. Both must com-make tpe desertion complete.” In this case it js proved that there was an actual breaking off’ of the matrimonial cohabitation. It is proved that some time before he went off’ to Danville and carried her child with him, he had not only deserted his wife’s chamber and slept in another room, but took the child from its mother and carried it into his mother’s room to sleep with him. Here was a breaking oft’ of matrimonial cohabitation.
The defendant, it is true, alleges that ho deserted his wife’s room because she demanded it; but, as we have seen, there is no proof to sustain the allegation, or that it was at her request, or with her consent. The fact of the breaking off the matrimonial cohabitation is established; was it done'by the husband with intent to abandon her ? I think the fact that he wanted a perpetual separation, and had employed counsel to procure it, and had a bill and the papers necessary to procure a divorce prepared, and had declared to her brother that there never could be a reconciliation between them, and that they never could live together again as man and wife, and a few days afterwards, without any notice to his wife, moving off to Danville, and clandestinely, as shown by the deposition of Bichard Jackson, the haekman, carrying her child of such a tender age with him, selling the chamber furniture used by his wife, including the bed upon which she slept, and dismissing her maid-servant, and causing his other effects, in two trunks heavily packed, to be sent after him the next day, is as conclusive as evidence could well be of his intent to abandon her; and that the note he left, to be handed to her after he was gone, and which was not delivered to her until the night after he left, and when he was in Danville,, and *393delivered by a stranger who refused to give his name, does not alter this conclusion.
That note is dated Lynchburg, Virginia, February 21, 1877, and is in these words: “Dr. Fannie—The condition of my business makes it necessary for me to go to Danville to-day. For obvious reasons I take Boy with me. I will go to my brother’s house; you may follow7 us to-morrow.” This w'as the first intimation she had.of his purpose to go to Danville, as the note itself implies. He ■was going that day, and would take her baby -with him, but four days over tw7o and a half years old. His business requires him to go there. Ho intimation when, or that he ever will return to Lynchburg. He had discontinued his residence at his father’s, in the way he had been residing there, by selling out his chamber furniture to his mother, without consulting his wife, and dismissing her servant maid, and does not inform her that he had made any other agreement with his father or mother to return and resume his residence there upon a new arrangement, nor is there any evidence that he had; nor does he inform her that he had made any agreement with either of them to continue her board there, nor is there any evidence that he had; or that after breaking up the former arrangement, he had made any new provision for her to remain there; or that he had provided any place as a home for her in Lynchburg. He tells her I am going to my brother’s. The same brother who had come from Danville to Lynchburg and held a parly with her witness, to advise her what to do; and such a parly as this record show's! He says I am going there— I have a place provided for myself—you may follow. Hut does not request her to do so; does not say I have provided a place there for you too, or my brother invites you to come—but you may follow' to-morrow, and can look out for yourself; I have provided no. place for you. *394He knew when he penned that note that his wife could not follow him; that it was morally impossible that she under the circumstances. And he didn’t want her to follow him. If he had, he would have told her before ^ 2ept ^ha^ Pq was going to Danville, and would pave requested her to go with him. He had deserted her chamber and taken her child from her before be left his father’s, and declared that there never could be a reconciliation between them, and that they never could live together again as man and wife; and had employed counsel to procure a divorce for him, or a permanent separation, and it is evident he did not wish her to follow him to Danville, and he had made no provision for her there, and had provided no home for her where she was. And so he left his wife, whom he was bound by the most sacred obligations to provide for and protect, a deserted waif upon the sea of life. There she stood alone, without a home, bereft of her darling child, deserted by her husband, surrounded by his friends—her enemies. It is, in my opinion, clearly a case of desertion and abandonment—of cruel desertion; and the note which was delivered to her the night after he left, was an aggravation of its cruelty. This case is much stronger than that put by Bishop, when he says: “If the husband causes to be prepared the necessary papers for a divorce, and so informs his wife, his departure in a secret and clandestine manner establishes at once a desertion.” 1 Bishop, 5th edition, § 783.
In case of a decree of divorce the court is invested with plenary power by section 12 of the statute, to determine with which of the parents the child should remain. The statute makes no provision for its care and custody in a case where there is no decree of divorce. The statute does not in that case vest the court with authority,' nor does it take it away. It is silent on that subject, and *395therefore, I maintain, leaves the court to its general jurisdiction.
But I am so firmly couvinced that the plaintiff here entitled to a divorce from bed and board that I will not stop to debate that question now, especially as this opinion has unavoidably been extended to an unusual length.
It cannot be questioned that this lady has been subjected to cruel treatment (at least as that word is understood in common parlance), humiliation and oppression. I think I have shown by a review of the testimony that the main cause of it -was no fault of hers, but her misfortune. She rests now under the frown and bitter reproaches of her husband and all his family. He has made no overtures to her for reconciliation or of affection, as the husband did in the case of Kerr v. Kerr. He gives no indication of relenting, or assurance that if she returned to him she would be treated as a wife should be, as was given by the husband in that case, but exhibits unabated indifference toward her, alienation, and positive hatred. She has been abandoned by him, and left to drift on the stormy ocean of life without a home, and bereft of her child, who has been ruthlessly torn from her bosom. If her bill should be dismissed it would be to say to her: The courts can give you no relief; you belong to your husband; you must submit to his exactions, however cruel and injurious to your health. You have no civil rights; you are his slave, and, he willing it, you must be subordinate in rank and station to his mother and sisters. Or you must surrender the child you have borne, though you feel it is a part of yourself; though you brought it into life and being in anguish and travail, and nurtured it from your own breasts, and nursed it in sickness and in health, through day and through sleepless nights, and have raised it to its present stature and taught its little feet to walk and its tongue to *396prattle—your sweetest music:—though God has thrown on you the responsibility of training it, not only for this life, but for a better life to come. That duty must be discharged by others who do not love it as you do, and cannot discharge the duty as a mother can.
Such is the cruel alternative that would be presented to this “amiable, well-principled and high-bred lady” by a dismissal of her bill. What will be her decision I will not conjecture. I have ever been in favor of maintaining the marital relation on just principles, and have been opposed to granting divorces upon slight grounds; but in this case, if the plaintiff should be influenced by a mother’s love to sacrifice herself, I do not think she should be subjected to such a sacrifice. Better that they should never be reunited. A reunion thus coerced, I cannot see that it could ever result in a .happy reconciliation and a happy married life. In this case the husband was the first to move for a divorce, and his conduct towards her has been such as was evidently calculated and designed to drive her from him, with the feeling, as he declared, that there could be no reconciliation, and that they never could live together again as man and wife. And under these circumstances, should she be constrained by torturing her maternal feelings to throw herself at his feet and implore his mercy to be treated by him as he lists, and to be subordinated to his coterie of friends and relatives? If it is done, I can have no hand in -it. I cannot sanction it.
But if this court could recognize her strong claims to its interposition for her'protection and legalize a separation from her husband, who claims the right to punish her, and has threatened her, and has abandoned her, and allow her to have the society of her child, at least for a time, during its pupilage-, when it needs á mother’s watchful care and training; and she could return to her widowed mother and friends in her native state and *397enjoy a little peace and quiet and the treatment of her physician, feeling once more freed from the shackles which have oppressed and crushed her, there would be a good prospect for the restoration of her health; and her husband, seeing that she was nd longer in his power, might relent and repent of his ill-advised course towards his wife, and be prepared to sue for reconciliation; it is not impossible, if he has not utterly forfeited her respect and confidence, and a reunion could ever be desirable, that it might be successful upon terms that -would secure to her the rank and position which a wife and mother is entitled to in the family; and on no other terms ought they ever to be reunited.
But if such should not be the result, it would be far better for the child. The evidence in the cause abundantly shows that the mother is eminently qualified, morally and mentally, to have the custody and training and education of her child, and no one can fill the place of a mother; and the child would be constantly under her care and supervision. But the father, circumstanced as he is, is not a fit person to have the cafe and training of this child. I think it was Lord Brougham’s opinion that the character of the man is formed before the child attains the age of seven years. The defendant holds a public office, which requires him to be absent from home niuch of his .time, and often attending the courts. If he carried his child with him he could not be under his supervision. Until he is several years older, he would have to take his nurse with him, or employ one where he took him. And when he is old enough to dispense with a nurse he could not be with his father and under his superintendence, and would have to be let run at large if he took him with him, which would soon be his ruin.
But if his father does not take him with him he could not be in his custody; he would have to place him in the *398care and custody of some woman. I conclude, there-f°re> that the father is not a fit person to have the cusof the child; in fact, it would be impossible that he could personally take the custody of him. He would have to place him irt the costody of some woman; and p unqualifiedly assert that there is no woman on this earth who is as well qualified to have the rearing and custody of that child as his own mother. It is reduced then to a question, not between the child’s father and his mother which should have his custody, hut whether his mother or some other woman should have the custody of him. If it were a question between the -mother and the father, it is palpable that it would be for the good of the child that the mother should have him. And all the authorities hold that the good of the child is the turning point. I do not understand that there could be any question as to the right of its custody between its own mother and the mother or sisters of its father, or any other woman. I must say that there is a conviction of my mind that if this dear child should be placed in the custody of his mother, and God spares' his life, he will be raised up to be a useful and respectable member of society; but if taken from her, and placed in the custody of his father, there Is a fearful probability that his ruin will be the consequence.
I am of opinion, therefore, to reverse ,t.he decree of the hustings court, to decree a divorce a mensa et tlioro in favor of the plaintiff, to settle her entire estate which she derived from her father upon her, and to give to her the custody of her child, and to remand the cause for an account, to ascertain what sum would be a proper charge against the defendant, considering his circumstances, as alimony to his wife, and for the support and maintenance of the child. I therefore dissent from the opinion of the court, but am not opposed to the provision in the decree, as the bill of the plaintiff is dismissed, that the *399dismissal shall he without prejudice to any right she may have to institute a suit in her own behalf, or on behalf of the child, for its custody.
Moncure, P., and Christian and Burks, J’s, concurred in the opinion of Staples, J.
Decree affirmed.
Note by the Judge.—It is admitted in the opinion of the majority of the court that he sold the furniture of his wife’s chamber to his mother, but it is suggested that he sold it after he went to Danville. If that is so he must have sold it on the 22d of February. On the 21st he went to Danville. On that day he dismissed his wife’s servant-maid. The next day, the 22d, his trunks were sent after him. The next day, the 23d, Charles A. Graves was informed by the defendant's mother that he had sold the furniture to her. He testifies that on the 23d he went to the house of W. Latham, Senior, to remove the plaintiff’s personal effects, and he says: “I met Mrs. W. Latham at the door, to whom I stated my errand. She. said Fannie had only a few things—her trunks, sewing-machine, a small stand, with perhaps some few other things; that everything else in the room Robert 'had sold to her, and that she had paid him the money for them. (Italics mine.) I mentioned a work-table (and) pair of chromos, which Robert had presented to Fannie. She stated that she had bought those things of Robert, and that I must not take them.”
I understood from the foregoing that the sale was made by the defendant to his mother before he left for Danville, and that, I think, is the fair infer*344ence. Besides, there was not time for the negotiation and sale and payment •of the money between the 21st and the 23d of February—one party being in Danville and the other in Lynchburg. There was no correspondence between them in that brief interval of time, so far as appears. If there had been the letters could have been produced. That was not pretended in the argument. But if it was after the defendant got to Danville it does not help him; it only shows a more deliberate intention to break up and abandon his home in Lynchburg. It can’t be said that it was because his wife was seeking a divorce from him. She did not sue out her spa in chancery until the day after this claim was made to the furnit are by old Mrs. Latham by purchase from the defendant, to-wit: on the 24th day of February, 1877 ; and her bill was not filed until Ihe 26th. Doubtless he sold his wife's furniture because he had deserted her chamber some time before he left for Danville» and had resolved they never could live together as man and wife, as he had declared to her brother, a few days before he left for Danville. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481931/ | Moncure, P.,
delivered the opinion of the court in McPherson’s case.
*The court, without deciding any of the questions presented by the first and second bills of exceptions, is of opinion, in regard to the question presented by the third bill of exceptions, that the hustings court of the city of Manchester erred in overruling the motion of the defendant in that court, the plaintiff in error, to set aside the verdict, because the same was contrary to the law and the evidence, and grant a new trial. It appears from the certificate of the facts which were proved upon the trial that Rowena McPherson, with whom George Stewart is alleged to have intermarried, is not a negro; and therefore the said marriage is not on that account illegal. It appears from said certificate, among other things, “that her father was a white man; that her mother was also by a white man, out of a brown skin woman; that Washington Goode, the half-uncle of the said Rowena McPherson, testified that the said brown skin woman, who was his grandmother, and the great-grandmother of said Rowena McPherson, told him that she was a half-Indian; and that his mother, her daughter, also told him the same.” It thus appears that less than one-fourth of her blood is negro blood. If it be but one drop less, she is 'not a negro. Besides having certainly derived at least three-fourths of her blood from the white race, she derived a portion of the residue from her great-grandmother, who was a brown skin woman, and, of course, not a full-blooded African or negro, whose skin is black, and never brown. It was said in the family that the said brown skin woman was a half-Indian — a fact which is confirmed by the color of her skin. If any part of the said residue of her blood, however small, was derived from any other source than the African or negro race, then Rowena McPherson cannot be a negro.
*The court is therefore of opinion that the judgment of the said hustings court is erroneous; and it is considered that the same be reversed and annulled, that the verdict of the jury be set aside, and that the cause be remanded to the said hustings court for a new trial to be had therein, in conformity with the foregoing opinion.
Which is ordered to be certified to the said hustings court of the city of Manchester.
Christian, Staples and Burks, Js., concurred in the opinion.
In Stewart’s case the opinion and judgment was the same.
Judgments reversed.
Cited and approved in Jones v. Com., 80 Va. 538. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481932/ | Christian, J.,
delivered the opinion of the court.
This case is before us upon a writ of error to a judgment of the hustings court of the city of Richmond. The prisoner was indicted for the larceny of twenty dollars from the person of McDonough, the prosecutor.
Neither the facts proved on the trial, nor the evidence, are certified in the record.
The single question we have to decide is as to the admissibility of certain testimony offered by the commonwealth’s attorney, as shewn by the following bills of exceptions:
EirST bile OE EXCEPTIONS.
Be it remembered, that on the trial of this cause, *the commonwealth introduced as its first witness, Dominick McDonough, the prosecutdr, who gave evidence on examination in chief, tending to show that the accused had, on the night stated in the indictment, stolen from his person his pocket book, containing the money named in the indictment, and on cross-examination he was asked whether he had not been drinking liquor on that night, to which he replied, yes, but that he was sober and in his perfect senses. Whereupon, on reexamination, he was asked by the attorney for the commonwealth, if he did not, immediately after the alleged larceny, go to the house of one William Disney, who lived a few doors from the place where the alleged larceny occurred, and tell him that he had been robbed, and the circumstances of the robbery as he had detailed them on his examination in chief; to which question the prisoner, by counsel, objected, and the court sustained the objection to so much of the question as referred to the details of the statement, but permitted so much of it as stated to Disney that he had been robbed; to which question, as modified, the accused excepted; and thereupon the witness stated that he had gone to Disney’s, who lived three or four doors from the place of the alleged larceny, and told him he had been robbed; tO the admission of which evidence the accused also excepted, and asked that the same be excluded; but the court overruled said objection, and admitted and refused to rule out the said evidence; to which two opinions, in permitting said question, as modified, to be put. and in permitting the same to be answered, the accused, by counsel, excepts, and prays that this, his first bill of exceptions, may be signed, sealed and reserved to him, which is accordingly done.
’-’SECOND BILL OE EXCEPTIONS.
Be it remembered, that after the testimony stated in the first bill of exceptions (which is herein referred to and made part hereof) had been given, the commonwealth called William Disney, who was asked by the attorney for the commonwealth on his examination in chief, whether Dominick McDonough, the prosecutor and witness who had just testified,'as stated in the first bill of exceptions, had not come to his house on the night of the alleged larceny, as stated in the indictment, and informed him that he had been robbed; to which question the accused, by counsel, objected; but the court allowed the said question to be put; to which the witness *294answered, yes, he had come to his house and said he had been robbed; to which evidence the accused objected, and asked the court to exclude; which the court refused to do: to which question and answer the accused, by counsel, excepts, and prays that this, his second bill of exceptions, may be signed sealed and reserved to him; which is accordingly done.
.These two bills of exceptions' raise the single question, whether the statement made by the prosecutor to the witness Disney as testified to, by the prosecutor and by Disney, was legal and proper evidence to go to the jury. Its admissibility is urged here by the attorney general, and by Mr. Wise, the commonwealth’s attorney of the city of Richmond who appeared with him, on three grounds. First, for the purpose of rebutting the imputation of drunkenness, suggested by the cross-examination of prisoner’s counsel. Second, that it was admissible as part of the res gestee; and third, that it ought to be received as a *complaint made by the prosecutor shortly after an outrage perpetrated against him.
As to the first ground it is sufficient to say, that if the credibility of the witness was assailed because he was intoxicated, the only way to meet such an assault upon his credibility, was to prove by other witnesses his actual condition at the time of the transaction of which he speaks, and not by statements a”d declarations of his own, to others, which might at the same time prejudice the prisoner, while given in evidence under .the pretence of showing that they were such as a sober man would utter under the presumed circumstances of the case. If the prisoner’s counsel imputes drunkenness to the prosecutor, this imputation may be repelled 'by direct testimony, showing that he was sober, but certainly not by statements or declarations which are mere hearsay, and may be used to the prejudice of the prisoner, and which as independent evidence must be excluded as hearsay evidence.
As to the second ground upon which the admissibility. of this statement of the prosecutor to the witness, Disney, is urged, to wit, that it is a fact of the res gestee, we are of opinion that this statement could not be introduced as a part of the res gestee.
As a definition of what in law is res gestee, the following may be adopted as accurately defining its limits and meaning: Facts which constitute the res gestee must be such, as are so connected with the very transaction or fact under investigation as to constitute a part of it. Now the statement made by the prosecutor to Disney after the larceny, was no part of the transaction under investigation, but was something that occurred afterwards, and was not so connected with it as to form a part of it. It was the prosecutor’s narrative ■of a past transaction, and was mere hearsay. Nor *could such evidence be received for the purpose of corroborating the evidence of McDonough, the prosecutor? Such evidence upon both the English and American decisions is plainly inadmissible.- See 1 Parker Crim. Cases, and cases there cited. Robb v. Hackley, 23 Wend. 50; King v. Parker, 3 Doug. R. 242; Bull, N. P. 291; 1 Starkie 149, note; 1 Cowen and Hill’s notes 776.
Thirdly. It is urged in argument that this evidence is admissible as a coinplaint made by the prosecutor recently after the outrage had been perpetrated; and it is evident that it was upon this ground that the learned "judge of the hustings court of the city of Richmond admitted the evidence, because the bill of exceptions shows that while he excluded all the details of the statement of the prosecutor, he admitted the statement made to Disney that he had been robbed, &c.
_ - We have carefully examined all the authorities referred to by the learned counsel to sustain this position, and it is manifest that the only exception (established by well-considered cases and reliable text-writers) to the general rule excluding the statements or declarations of parties as hearsay evidence, as a complaint is the exception in cases of rape. For peculiar reasons, the complaint of the victim of this diabolical outrage and crime is received as evidence. Such a victim must at once make complaint, or she will be suspected of consent. The instincts of human nature, revolting at this unnatural and heinous crime, compels the victim to cry out and denounce its foul perpetrator; and such complaint, made under the smart and indignation of such a cruel injury, has been received by the courts as evidence. But even in such cases the evidence is confined to the new complaint, and no detailed statement of the transaction is permitted to go in evidence. *See 3 Starkie (Metcalf’s ed.) 1266, and cases there cited; Regina v. Osborne, 41 Eng. C. L. R. 338.
This is a well recognized exception to the general rule, excluding the declarations of the party injured, which are not admissible as part of the res gestee. Such statement in the form of complaint is admissible, though not a part of the res gestee. But we think the exception must be confined to cases of rape for the peculiar reasons above stated. It does not apply to any other case, unless the statement or declaration comes within the res gestee. There is one case cited by the attorney general, and it is the only one that can be found, which seems to hold that the complaint of a. party who has been robbed may be given in evidence. That is an English case decided at nisi prius, and reported very briefly and obscurely in 25 Eng. Crim. Law Rep. 456, Rex v. Wink.
There is no case which we can find which affirms the doctrines of this case, though it is referred to in the notes to some of the text-writers on the Law Evidence. But it is opposed by all the recent English and American cases. See People v. Finnegan, 1 Parker Crim. Cases 147, and numerous cases there cited; 1 Bush R. 208, Morris v. Hazelwood; Tucker v. Hood, Ib. 210, and cases cited.
We are not disposed to extend this exception to the rulé of evidence further than to cases of rape, and only to recognize thh exception as one growing out of the peculiar reasons 'already adverted to.
*295It would be dangerous, to the last degree, to permit a party making a criminal charge against another to support his own evidence by proof of declarations made by him subsequent to the alleged crime.
The adjudication of the rights and the protection of the liberties of the citizen require that mere hearsay **evidence should be excluded, and that the court in every case should confine the testimony to the issue made by the ple-adiiigs^ and to that character of evidence which is legal and admissible under the settled principles of the laws of evidence.
We are of opinion, for the reasons herein stated, that the judgment of the hustings court of the city of Richmond, in admitting the testimony of the prosecutor McDonough and of the witness Disney, as to declarations made by the former to the latter subsequent to the alleged larceny, was erroneous and must be reversed. And in consequence of such error a new trial must be awarded to the prisoner.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481933/ | STAPLES, J.,
delivered the opinion of the court.
The court is of opinion it was not necessary to aver in the declaration that payment of the execution was demanded of the defendant, John J. Grandstaff, in his county before the commencement of the action. The statute provides that an officer receiving m-oney under an execution, when the creditor resides in a different county, shall not be _liable_ to have any judgment rendered against him or his sureties for the non-payment of the money until a demand of payment shall be made of such officer in his county or corporation. Code of 1873, ch. 183, § 37.
If the declaration had averred the non-residence of the plaintiffs, it might be contended, with some reason, it should also aver a demand of payment. But the declaration does not show where the plaintiffs resided. For aught that appears to the contrary they resided in the same county with the sheriff. It will be so intended unless the evidence shows the fact to be otherwise. If it appears on the trial that the plaintiffs and the sheriff are residents of different counties, it will devolve on the ^former to prove the demand in accordance with the provisions of the statute. The court is therefore of opinion that this ground of error is not well taken. O’Bannon v. Saunders, 24 Gratt. 138.
The court is further of opinion that a sheriff or other officer has no authority to receive payment under an execution after the return day thereof, unless the execution has been previously levied. Such payment would not bind the creditor, nor would it impose any liability^ upon the sureties of the sheriff on his official bond. Although the sheriff may be responsible in his private capacity for money so received, no responsibility *20would attach to him in his official character on that account. 1 Rob. Prac. 533; Chapman v. Harrison, 4 Rand. 336; Herman on Executions, 464, 336; O’Bannon v. Saunders, 24 Gratt. 138. This was the settled doctrine prior to the revisal of 1849. The provisions then adopted ga've to the writ of fieri facias an absolute lien upon the debtor’s personal estate, not limited to the time during which the execution was to run, but continuing until the right to levy a new execution ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process, subject, however, to certain exceptions which do not apply to the present case, and need not now be considered. Charron & Co. v. Boswell & als., 18 Gratt. 216. and cases there cited; Code of 1860, ch. 189, §§ 3, 4.
These provisions do not enlarge the powers of the sheriff with respect to executions, and were not so' intended. They simply_ extend the lien for the benefit of the creditor. The authority of an officer to collect money in -discharge of the execution does not result from the lien, but is a, consequence of the right to sell the debtor’s property under the execution. So long as the right to sell continues, the right to receive payment remains, but no longer. If the officer levies before the return day of the writ, he may sell, notwithstanding the return day has *passed; and, as a necessary consequence, he may receive payment without selling. But if he fails to levy before the return day, his authority to sell after-wards ceases, and with it the right to receive payment in discharge of the writ. He may, of course, receive payment at any time before the return day without a levy.
Tested by this principle, the first count in the declaration must be held to be deficient in proper averments. It alleges that while the execution was in the hands of the deputy and a lien on the property of the debtor, the latter paid the deputy the whole amount of the debt in discharge of the execution. It does not, however, aver that the payment was made before the return day, or indeed when it was made; nor doe's it aver that the execution had ever been levied; so that every fact stated in the declaration may be true, and yet no liability may attach to the sheriff and his sureties by reason of the peyment made to the deputy. The court is therefore of opinion that the demurrer to the first count ought to have been sustained.
The court is further of opinion that, although a sheriff is liable to a fine, at the discretion of the proper court, for his failure.to make due return of an execution, he is also liable to an action on his official bond by the party injured by such failure. The fine is in the nature of a punishment for a personal offence, and is not considered as any satisfaction for the damage sustained by the creditor in being unjustly kept out of his money by the default of the sheriff or his deputy. When the fine is paid by the sureties .of_ the .sheriff, in any subsequent proceeding against them to enforce the judgment or decree upon which the execution issued, they will be entitled to a credit upon the judgment or decree for the amount of the fine, or fines, so paid. Code of 1873, ch. 49, § 28, page 475. See also McDonald v. Burwell, adm’r, 4 Rand. 317; Pardee v. Robertson, 6 Hill’s R. 550.
*The fifth count of 'the declaration is founded upon an alleged breach of duty in failing to make due return of an execution in the hands of the deputy. This count, although not so specific in its averments as it might have been, is substantially sufficient upon general demurrer. The circuit court did not, therefore, err in overruling the demurrer to that count, nor in overruling the demurrer to the remaining counts in the declaration.
The court is further of opinion that-the circuit court did not err in overruling defendants’ objection to the witness, James M. Bradford, introduced by the .plaintiffs; as set out in the first bill of exceptions, nor in overruling defendants’ objection to the testimony of the same witness, as set out in the second bill of exceptions. Although the witness was the judgment debtor, and was offered to prove, among other things, a payment made by him to the defendants’ deputy, he was not so directly interested in the result of the suit, or in the verdict and judgment to be rendered, as to render him incompetent to testify in the cause. His testimony was clearly admissible at that stage of the trial, to prove the payment, because the plaintiffs might adduce evidence tending to show the levy before the return day of the execution. If they failed to do so, it was competent for the defendants to move to exclude all that the witness said with respect, to the payment made by him.
The evidence set out 'in the third bill of exceptions was offered to show that the debtor, a few days after the payment, had directed that it should be -applied to the plaintiffs’ execution, and that the officer made no objection. This evidence was properly left to the jury to determine whether the officer had acquiesced in the direction of the debtor, and whether, under the circumstances, the officer could properly apply any part of the money to other claims in his hands against-the debtor.
*The court is further of opinion that the circuit court did not err in refusing to admit in evidence the execution set out in the fourth bill of exceptions. The return thereon showed it had been satisfied as far back as the 8th November, 1861. It was issued long after the plaintiffs’ execution. It had, therefore, no apparent relevancy to the matter in controversy, and its only effect was to confuse the jury by multiplying collateral issues. The bill of exceptions does not show what was the amended return defendants proposed to make on the execution. Whatever it was, the application to amend ought to have been made to the county court from which the execution issued, and not to the circuit court in which the .case was then being tried.
The court is further of opinion that the circuit court erred in refusing to permit B. *21F. Murray, the deputy sheriff, to testify as a witness in behalf of the defendants. The action was against the sheriff and his sureties for the default of this deputy in failing to pay over money collected.under an execution. Second, for failing to levy and make due return of the execution. The witness was excluded upon the ground of interest in the result of the trial, arising out of his liability over to his principal, and because some of the sureties upon the official bond of the sheriff being dead, the plaintiffs could not testify under the statute.
The language of the section of the statute relied on is as follows : And where one of the original parties to the contract or other transaction, which is the subject of investigation, is dead or insane, or incompetent to testify by reason of infamy or other legal cause, the other party shall not be permitted to testify in his own favor, or in favor of any other party having an interest adverse to that of the party so incapable of testifying, &c.
In the case of Grigsby v. Simpson, assignee, decided by this court and reported in the April number, 1877, of *the Virginia Law Journal, pp. 230, 232 (28 Gratt. 348), this court, Judge Christian delivering the opinion, held that the test of competency under the section just quoted is the cause of action in issue and on trial, not the fact to which the party is called to testify. If the cause of action was a matter transacted with a person who has deceased, the other party to that transaction is not admitted at all, and cannot testify to any fact in the case, otherwise he is admitted as a witness. The object of the statute is to put the parties (to the contract or other transaction) on the terms of equality, so that when the lips of one of them are closed by death, or other cause, the adverse party shall not be heard.
The case of Mason v. Wood et als., 27 Gratt. 783, is not at all in conflict with this view. There the witness was called on to testify as to matters occurring after the death of one of the obligors, and of which the latter of course knew nothing; but this court held the witness incompetent. Judge Anderson, delivering the opinion of the court, said that under the statute there was no limitation of the incompetency as to the subject matter of the testimony. The witness could not be heard at all as to any fact. The reason was the obligor, who had died, ivas a parly to the contract which was the subject of investigation.
In this case the transaction which was the subject of investigation was the alleged default of the deputy sheriff. All the parties to that transaction were living and competent to testify in the cause. The sureties of the sheriff were liable on their bond for the default of the principal and his deputy, but they were not parties to the transaction which was the subject of investigation. They are neither within the letter nor spirit of the statute. Without, therefore, enquiring into the operation and effect of the release executed by the sheriff, the court is of opinion *that the deputy is a competent witness for the defendants in this case.
The court is further of opinion that the circuit court committed no error in refusing the application set forth in the seventh bill of exceptions, or in permitting the witness to testify as stated in the eighth bill of exceptions.
The court is further of opinion that the circuit court did not err in giving the first, third and fourth instructions asked for by the plaintiffs. The second instruction affirms the erroneous proposition already adverted to in connection with the first count of the declaration, and that is, that a payment made to the sheriff is valid to bind him and his sureties upon the official bond, although made after the return day of the execution, and although the execution was not levied upon the property of the debtor. This subject has been already discussed, and need not be further considered. For the reasons heretofore stated, this instruction is erroneous, and ought not to have been given. And for the same reason the circuit court erred in refusing to give defendants’ third instruction.
The court is further of opinion that the circuit court did not err in refusing to give the defendants’ fourth instruction. It is the duty of an officer receiving money to apply it in satisfaction of the oldest execution in his hands. But in this case it did not necessarily follow that because the sheriff may have had older executions in his hands than the plaintiffs’, it was his duty to apply to them the money received from the debtor in 1862. The plaintiffs had offered testimony tending to show that a short time after the payment was made the debtor requested the deputy to apply the money to the plaintiffs’ execution; to which the deputy made no answer. This evidence was properly left to the jury, upon the question of the application of the payment with the consent of the deputy. 'The court could not. therefore, give the *defendants’ fourth instruction without a manifest disregard of this evidence.
The court is further of opinion that the circuit court did not err in giving to the jury the instruction substituted by the court for the defendants’ fifth instruction. Both instructions, the defendants’ and that given by the court, informed the jury that an officer receiving money under an execution, but residing in a different county from the creditor, is not liable to have a judgment rendered against him or his sureties, for the non-payment thereof, until a demand of payment is made of such officer in his county or corporation, by the creditor or his attorney, or some person having a written order from the creditor; and in this case if the jury believed from the evidence that the plaintiffs resided out of the countv (the sheriff’s), and that no such demand for the said monev was made, they cannot find for the plaintiffs as for money collected.
To this the court made the following addition: “But the jury, in investigating the alleged breach of the condition of the bond for a failure to return the execution of the ‘plaintiffs against defendants.’ may consider whether from the evidence the fact that no demand was made (if such was the fact) re-*22suited from ignorance of the collection of the money, growing out of the failure to return the said execution.”
This addition was, perhaps, calculated, in some degree, to confuse the jury. When the creditor proceeds against the sheriff for money collected under an execution, a demand of payment in the sheriff’s county is absolutely essential if the parties reside in different counties. In such case it does not matter whether the execution is or is not returned, or whether the creditor is or is not ignorant of the collection of the money. But when the creditor is also suing for a failure to make due return of the execution, as in the fifth count, no demand of payment *is necessary previous to a judgment for such breach. The gist of the action is the failure -to return the execution. The circuit court might, therefore, have told the jury that so far as the action was for the failure to make return of the execution, no demand of payment was required. It was not necessary to encumber the instruction with the qualification in regard to the ignorance of the plaintiffs. This qualification, however, was not prejudicial to the defendants, and affords no just ground of complaint on their part.
The court is further of opinion that the circuit court committed no error in refusing the seventh, eighth and ninth instructions asked for by the defendants. But for the errors already stated, the verdict and judgment must be set aside, and the cause remanded to the circuit court for a new trial, in conformity with the views herein expressed.
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 in overruling the demurrer to the first count in the declaration, and in refusing to permit B. F. Murray, the deputy sheriff, to testify as a witness in behalf of the plaintiffs in error, and in giving to the jury the second instruction óf the defendant in error, and in refusing to give the third instruction of the plaintiffs in error, and that there is no other error in said record. It is therefore considered by the court that for the errors aforesaid the said judgment of the circuit court be reversed and annulled, and chat the defendants in error do pay to the plaintiffs in error their costs by them incurred in the prosecution of their 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 considered by the *court that the verdict of the jury be set aside, and a new trial awarded; that the demurrer to the first count in the declaration be sustained,' and leave given to the plaintiffs to amend their declaration, if they shall so desire, and upon any new trial to be had the said-circuit court to conform to the judgment.
And the .cause is- remanded to the said' circuit court for further proceedings in conformity with the views herein expressed.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481934/ | STAPLES, J.
The question presented by the demurrer to the declaration may be more satisfactorily disposed of in passing upon the instructions and the motion for a new trial. Two of the instructions were given on the motion of the defendant, and of course there is no complaint with respect to them. The third was given by the court in answer to a question propounded by the jury. In order properly to understand the bearing of this instruction, it will be necessary to recur briefly to the facts upon which it was based. It seems that one of the charges preferred by _ the defendant, as mayor, against the plaintiff, as chief of police, and upon which the removal of the latter was partly founded, was, that the plaintiff “had continued to act as agent for Dr. W. O. Owen, contrary to the express written and verbal order of the defendant, as mayor.” When this charge was under investigation before the defendant, the plaintiff was examined on oath by the defendant, and admitted that he “was agent of Dr. Owen, to collect his medical accounts and keep his books;” but he also proved that he had not neglected any of his duties as chief of police by reason of his being such *agent, and that he had not been occupied more than five minutes of his time any day in a year in attending to Dr. Owen’s business; nor was there any evidence that he had ever neglected any of his duties as chief of police in consequence of such employment. The plaintiff also proved that he had been told by James W. Cobbs, the former mayor, John W. Carroll, president of the council, and James Garland, judge of the hustings court, members of the former police board, that he might act as such agent for Dr. Owens when it did not interfere with his official duties as chief of police, and that he had a like permission from two of the present board of police commissioners. It further appeared that while under examination before the mayor the plaintiff said that he had acted, and would continue to act, as agent of Dr. Owen, notwithstanding the order of the mayor. These matters, as they occurred before the mayor, were proved during the progress of the trial in the court below. The jury having retired to consult of their verdict, came into court and enquired of the court whether or no the mayor had a right to prevent the plaintiff from acting as agent of Dr. Owen. To this, the following answer was made by the judge in writing: "If the chief of police had a license by an order or permission from the board of police commissioners to act as collector or agent of Dr. Owen, or if by so acting his official duties as such chief of police were or could in nowise be interfered with, and his efficiency as a public officer in nowise impaired thereby, then the mayor had no right to inhibit him from so acting as collector or agent. But on the other hand, if he had no such license or permission from the police board, and his so acting did in. any wise interfere with his duties as chief of police, or render him in any way less efficient as a public officer, then the mayor had a right to inhibit him from so acting, if he in good faith *believed that the public interest would be promoted by so prohibiting him.”
The main objection to this instruction is based upon the idea that the mayor is the chief executive officer of the city of Lynch-burg, and as such has the' supervision and control of the chief of police; that the pro*24priety of his orders to that officer, or to any other subordinate, cannot be called in question in any other tribunal; that this rule is essential to the enforcement of discipline and the preservation of order; that the judge of the circuit court ought so to have told the jury, and that his answer in the form in which it was given, was calculated to lead the jury to the erroneous conclusion that they had the right to pass upon the propriety of the order in question.
Without undertaking now to concede or to controvert: the soundness of this proposition, I think it is sufficient to say that the learned judge of the circuit court, on the motion of the defendant’s counsel, and in the very language selected by him, had already fully stated the law applicable to this branch of the case. He had declared that the gist of the action is want of probable cause; and although the jury should believe the defendant was hostile to the plaintiff, arid was actuated by malice, still, unless each one of the charges of the defendant was unsupported by any evidence tending to prove it, or the charge was in itself so frivolous that the defendant did not and could not reasonably regard it as a real offence, they must find for the defendant; provided the matter so charged related to the official duty of the plaintiff, and was a misconduct in office or a neglect of official duty, or such as the defendant might reasonably believe, and did honestly believe, was such misconduct or neglect of official duty. •
And the judge further told the jury, that if they believed from the evidence that any one of the specifications on which the defendant found the plaintiff guilty *was a misconduct in office or neglect of official duty, proved to the reasonable satisfaction of the defendant, and being so'proved, was, in his opinion, just cause for the removal of the plaintiff from office, they must find for the defendant.
Now, if these instructions, instead of preceding, had followed the answer given by the judge to the enquiry made by the jury, it is impossible there could have been any ground for misapprehension. The court gave the defendant all he asked. It laid down the law in his favor in the most liberal manner; and we must suppose the jury had the intelligence to comprehend and to remember what was said in the first as in the last instruction. Taking them altogether, how are they to be construed? Plainly, as declaring that, although the jury might believe the plaintiff was not guilty of any neglect of duty in collecting Dr. Owen’s accounts, and although the defendant had no right to prohibit him from so acting, and although the defendant may have removed the plaintiff for a violation of his orders in that particular, the defe'ndánf could’ not be held liable if the conduct of the plaintiff was such as the defendant might reasonably believe, and did honestly believe, was a neglect of duty. ' In other words, however erroneous may have been the orders of'the defendant, and however malicious his motives, he is exempt-from all liability if the alleged misconduct or neglect of official duty was proved to his reasonable satisfaction, and being so proved, was, in his opinion, just cause for the removal of the plaintiff from office.
It is rarely that a cáse occurs in which the law is so fully and favorably expounded for one of the parties upon a question of this character.
Under such instructions it might well be supposed that the jury would have found a verdict for the defendant, and it is very probable they would have so found, but *that the plaintiff produced evidence tending to show that before any of the charges were preferred against him the defendant had determined to remove him from office, under color of his authority as mayor, in consequence of personal enmity and dislike, whether there was any cause for removal or not; and he also offered to show that the said charges were false and malicious, but was stopped by the court upon objections made by the defendant. Under all the these circumstances, it is plain that the defendant did not and could not sustain any injury by the instruction given in answer to the question propounded by the jury. It is equally apparent, for the same reasons, that the court did not err in overruling the motion for a new trial.
But there is another and more satisfactory reason which applies equally to the demurrer, to the instruction, and to the motion for a new trial; and that is, that the defendant, as mayor, had no power under the constitution and laws to remove the plaintiff from his office of chief of police. This question has been very ably argued by counsel, and has received the careful consideration of the court. The provision of the constitution under which this power is claimed as belonging to the mayor is found in section 20, article 6, of that instrument. (Code of 1873, page 88.) It provides that the mayor shall see that the duties of the various city officers are faithfully performed. He shall have power to investigate their acts, have access to all books and documents in their offices, and may examine them and their subordinates on oath. He shall have power to suspend or remove such officers, whether they be elected or appointed, for misconduct in office or neglect of duty, to be specified in the order of suspension or removal.
On the other hand, the amended charter of the city of Lynchburg (found in Acts of 1871-72, page 118), provides for a police department, to be under the control *and management- of police commissioners, consisting of the mayor, the president of the cit-y council, and the judge of the corporation court.
It is made their duty to appoint the chief of police, through whom they may promulgate all rules and regulations and orders to the whole police force of the city. The said chief of police holds his office during the term of two years, or until said board, for malfeasance or misfeasance shall remove him; but in case of misconduct on his part, he may be removed by the votes of two-thirds of the city council. The .mayor, at *25any time upon charges being preferred, or upon finding said chief of police to have been guilty of misconduct, shall have power to suspend him from office until the board of commissioners shall convene and take action in the matter; such suspension, however, not to last longer than ten days without affording the party an opportunity of-being heard in his defence; and upon hearing the proofs a majority of the commissioners may discharge or restore him. See sec. 36, paragraphs 1, 2, 3 and 4, pages 128-9.
It will be perceived there is an apparent conflict between these provisions of the Lynchburg charter and the clause of the constitution already cited. Lor if the chief of police be a city officer within the meaning of the constitution, he is subject to removal by the mayor only, and the provision of the charter taking the power from him and vesting it in the police board is null and void.
This court has been repeatedly called on to pronounce legislative enactments void upon the ground of their repugnancy to the constitution, and it has always declined to do so unless this repugnancy is, in its judgment, beyond all reasonable doubt. It has always proceeded upon the idea that the opposition between the constitution and the law is such that the judge feels a clear and strong conviction of their incompatibility with each other. Whenever a statute can be so construed and applied as *to avoid conflict with the constitution such construction will be adopted. In the language of Mr. Justice Washington: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the constitution is proved beyond all reasonable doubt.” Ogden v. Saunders, 12 Wheat. R. 213, 270; Cooley’s Const. Limitations, page 182, 183.
In the present case this rule of construction deserves special consideration, because the same provisions in regard to the appointment, control and removal of the chief of police are found in the charters of the cities of Richmond and Norfolk, and perhaps other cities, and the effect of an adverse decision by this court will be to annul important and salutary laws carefully framed for the government and security of the chief cities and towns of the commonwealth. Are we to declare these charters null and void? Are we to overthrow institutions deemed by the legislature and the people of the cities of the greatest value? I think not, unless upon very convincing reasons.
It must be borne in mind that cities and towns are mere territorial divisions of the state, endowed with corporate powers to aid in the administration of public affairs. They are instrumentalities of the government acting under delegated powers, subject to the control of the legislature, except so far as may be otherwise expressly provided by the constitution.
Although the mayor is invested with the power of removing city officers, it will not be denied, I imagine, that the legislature may establish an office and appoint the incumbent, who, although exercising his jurisdiction exclusively in the city limits, is not yet a city officer within the true intent and meaning of the constitution. This distinction is recognized in the clause of the constitution ^already cited relating to the powers of the mayor. It is there declared that all city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of said cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the general assembly shall designate. “All other officers, whose election or appointment is not provided for by this constitution, and all other officers whose offices may hereafter be created by law, shall be elected by the people, or appointed as the general assembly may direct.” Thus recognizing a distinction between those who are technically “city officers” and others whose jurisdiction and functions may be limited to cities, and yet are not considered “city officers.” In the former case the appointment is always made by the electors of the city, or some authority of the city. In the latter case it is made in such mode as the general assembly may direct. Indeed it would be a most remarkable condition of things that the legislature, by the mere act of creating a municipal corporation, thereby divests itself of all jurisdiction and control of every officer elected or appointed for such corporation.
Who, then, are the “city officers,” in the true and literal sense of the term? It is not easy to define them in all cases; but there are many such provided for in the charter of the city of Lynchburg, and in the charters of other cities. Among these are, perhaps, city engineers and surveyors, officers having superintendence and control of streets, parks, water-works, gas-works, hospitals, sewers, cemeteries, city inspectors, and no doubt many others well known in large cities. Their duties and functions relate exclusively to the local affairs of the city, and the city alone is interested in their conduct and administration.
On the other hand, there are many officers, such as *city judge, sergeant, clerk, commonwealth’s attorney, treasurer, sheriff, high constable, and the like, some of whom are recognized by the constitution, while others are not. All these are generally mentioned as city officers, and they are even so designated in the constitution; but no one has ever contended that "ither of them is in any manner subject to the control and removal of the mayor. The reason is, that while they are elected or appointed for the city, and while their jurisdiction is confined to the local limits, their duties and functions, in a measure, concern the whole state. They are state agencies or instrumentalities operating to some extent through the medium of city charters in the preservation of the public peace and good government. However elected or appointed, however paid, they are as much state officers as constables, justices of the peace *26and commonwealth’s attorneys, whose jurisdiction is confined to particular counties.
That the chief of police is within the influence of the same principle is apparent from the most cursory reflection. Under the charter of the city of Lynchburg — and the same is true elsewhere — he has generally the power to do whatever may be necessary to preserve the good order and peace of the city. It is his duty at all times to see that the police force-preserves the'public peace, to prevent the commission of crime, and arrest offenders, and protect the rights of persons and property. (Sec. 36. §§ 1, 2, 3, 4, page 128, Acts of 1871 and 2; Police Regulations, § 14.) Among the thousands of citizens and strangers that enter a great city in the course of a year, in pursuit of business or pleasure, there is not one that is not interested to a greater or less degree in this officer, not only as a conservator of the peace generally, but in the special protection he affords against violence and wrong. When the mob rages in the streets, when the incendiary and the assassin are at work, they do not *offend against the city, but against the state. When they are detected and arrested it is by the chief of police and his subordinates, under the authority of the state laws and as an officer of the state; and when they are tried and convicted, it is by officers representing the state and her sovereign power.
This distinction has been recognized and enforced in a number of well considered cases, and by able commentators. It is important, says Judge Dillon,' to bear in mind the distinction between state officers — that is, officers whose duties concern the state at large or the general public, although exercised within defined territorial limits, and municipal officers whose functions relate exclusively to .the particular municipality. The administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern, while the enforcement of municipal by-laws, the establishment of gas-works, of water-works, the construction of sewers, and the like, are matters which pertain to the municipality, as distinguished from the state at large. And it has been several times determined that the legislature may, unless specially restrained in the constitution, take from a municipal corporation its charter powers respecting the police and their appointment, and by statute itself directly provide for permanent police for the corporation, under the control of a board of police not appointed or,elected by the corporate authorities, but consisting of commissioners appointed by the legislature. Baltimore City v. Board of Police, 15 Maryland R. 376; People v. Mahaney, 13 Mich. R. 481; People v. Draper, 15 New York R. 532, where the act to establish the Metropolitan police district was held constitutional; Police Commissioner v. City of Louisville, 3 Bush. Kentucky R. 597; Diamond v. Cain, 21 La. Ann. R. 309; State of Louisiana v. Levi, Id. 538. The cases concur, in holding that the police officers are *in fact state officers, and not municipal, although a particular city or town be taxed to pay them. 1 Dillon on Municipal Corporations, §§ 33, 34; § 773 and note 1, where the foregoing views are expressed.
In Buttrick v. City of Lowell, 1 Allen’s R. 172, it was held that a city is not liable for an assault committed by its police officers, even though it was done in an attempt to enforce an ordinance of the city. Bigelow, Chief Justice, delivering the opinion of the whole court, said: “Police officers can in no sense be regarded as agents or officers of the city. Their duties are of a public nature, their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted, are derived from the law, and not from the city or town under which they hold their appointment.”
In the case of the People v. Hurlbut, 24 Mich. R. 44, the question was as to the constitutionality of a statute creating a board of public works for the city of Detroit, appointed by the legislature, and having charge of the city buildings, with authority to make contracts on behalf of the city, and to do many other things of a‘legislative character which generally belong to the common councils of cities alone. The whole subject was discussed by Chief Justice Campbell and Judge Cooley, in opinions evincing profound research and ability. Chief Justice Campbell drew a distinction between the police act under which a board of police commissioners was appointed for the cities, and the act then under consideration, which was known as the public works acts. He said: “The general purposes of the police act were such *as appertain directly to the suppression of crime and the administration of justice. There is therefore no constitutional reason for holding it to be other than a regulation of matters pertaining to the general policy of the state and subject to state management. The police board is clearly an agency of the state government, and not of the municipality, whereas the purposes of the public works act were directly and evidently local and municipal.” 81-83.
Judge Cooley said in the course of his opinion:. “For those classes of officers whose duties are general, such as the judges, the officers of militia, the superintendent of police, of quarantine, and of ports, by whatever name called, provision has, to a greater or less extent, been made by state appointment. But these are more properly state than local officers; they perform duties for the state in localities, as collectors for the general government, and a local authority for their appointment does not make them lo.cal officers when the nature of their duties is essentially general. In the case before us the *27offices in question involve the custody, care, management and control of the pavements, sewers, water-works, and public buildings of the city, and the duties are purely local.”
In Cobb v. City of Portland, 55 Maine R. 381, the same question was presented, and was decided in the same way. Dickerson, J., delivering the unanimous opinion of the court, said: “But the plaintiff was not agent or servant of the city of Portland, nor was the policeman whom he arrested. Both were acting under the authority of the state, as the conservators of the public peace, the peace of the state, not the peace of the city of Portland alone. It is true they derived their authority immediately from .the city of Portland, but that was done by the legislature as a matter of convenience.”
*While engaged in the service stated (preserving the peace), they represented the authority and dignity of the state, and not that of the city of Portland.
The cases of Fisher v. Boston, 104 Mass. R. 87; Cobb v. City of Portland, 55 Maine R. 381; The People v. Draper. 25 Barb. R. 341, 374; Mayor of Baltimore v. State Board of Police. 15 Maryl. R. 376., are in entire accord with the decisions already cited. See also 2 Dillon, sec. 773, and notes, and numerous cases there cited. The distinction recognized in all of them is between officers whose duties are exclusively of a local nature and officers appointed for a particular locality, but yet whose duties are of a public or general nature. When they are of the latter character they are state officers,_ whether the legislature itself makes the appointment or delegates its authority to the_ municipality. The stale, as a political society, is interested in the suppression of crime and in the preservation of peace and good order, and in protecting the rights of persons and property. No duty is more general and all-pervading than this. It extends alike to towns and cities_ as to the country. It looks to the preservation of order and security in the state, at elections, and at all public places; the protection of citizens, strangers, travelers at railway stations, at steamboat landings; the enforcement of the laws against intemperance, gambling, lotteries, violations of the Sabbath, and, in fine, the suppression of all those disorders which affect the peace and dignity of Ihe state and the security of the citizen. The instrumentalities by which these objects are effected, however appointed, by whatever name called, are agencies of the state, and not of the municipalities for which they are appointed or elected. The whole machinery of civil and criminal justice, s^ys a learned judge, has been so generally confided to local agencies, it is not strange if it has sometimes been ^'considered as of local concern. But there is a clear distinction in principle between what concerns the state and that which does not concern more than one locality.
These are the principles established by the cases already cited. Against them not a decision, not even the dictum of a writer has been produced, except a single observation contained in the opinion of this court, in Burch, Mayor, v. Hardwicke (the same parties now before the court, reported in 23 Gratt. 51), where Judge Bouldin seems to concede that the power of removing the chief of police is vested in the mayor. It is, however, but just to say that the question received but little consideration by this court in that case; nor was there anything in the case itself requiring a decision of the point. The real contention was. whether the writ of prohibition would lie in the case. Judge Bouldin laid down the rule as well established that the writ of prohibition is a proceeding between courts bearing the relation of supreme and inferior, and that it does not lie from a court to an executive officer. The case was disposed of upon that ground alone, and all that was said outside of it was an obiter dictum of the court. That decision, therefore, does not preclude us from determining the present case according to our best convictions. If the view already taken be correct, it is plain that the defendant, in removing the plaintiff from his office of chief of police, exceeded his powers. This being so, it is quite immaterial to enquire whether the instruction of the circuit judge be strictly correct. Plainly the defendant could not be prejudiced by it; for if it be conceded that the plaintiff was not justified in disobeying the order given him. the defendant exceeded his powers in removing him on that ground. All that the defendant could do was to suspend the plaintiff until the matter could be investigated by the board of police commissioners.
It is no part of our duty to enquire into the motives of *the legislature in creating a board of police for the city of Lynchburg, or any other city, and in clothing it with the absolute control of the chief of police. The legislature may have supposed that the mayor being elected by the popular vote, might be under strong temptation to use the police force for the purpose of securing his own promotion and success. It is not to be denied that in a large and populous city such a body of men, dependent upon the will of one man, may become a political engine of mischief in times of high political and party excitement.
On the other hand, a board of police composed of the mayor, the president of the common council, and the judge of the hustings court, would be equally as efficient as the mayor in the control of the police department, especially when the latter is invested with the power of suspension for a disobedience of orders or other misconduct. Three of the largest cities of the state have been acting under the same system for several years, and no complaint has been made of the want of discipline, insubordination and good government in either of them. In such case nothing would justify the interference of the courts except the clearest conviction that the constitution had been violated.
Another question argued before this court is, whether the mayor of a city, in exercising the power of removal of a subordinate, can in any case be held liable for damages, however malicious or corrupt may have been *28his motives. Upon this question a great number of authorities have been cited on both sides. Some of these maintain the doctrine that no public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, or however malicious the motive which produced it; and this rule extends to judges, from the highest to the lowest, and all public officers, whatever name they may bear, in the exercise of judicial powers. *On the other hand, there are numerous authorities which hold that this exemption from civil liability is confined exclusively to those judges of general jurisdiction whose proceedings are matters of record,' and has no application to inferior judges and others whose acts are not verified by record evidence.
Whatever may be the conflict of judicial opinion on this point, all the authorities are agreed that when the judge or other officer has no jurisdiction over the subject matter, and when the act of which complaint is made is maliciously or corruptly done, he is liable in damages to the party aggrieved by his conduct. This whole question is discussed in a very able opinion of Mr. Justice Field, in Bradley v. Fisher, 13 Wall. U. S. R. 335. I do not deem it necessary to refer to any other authority upon this point.
In the present case it is clear that the defendant exceeded his jurisdiction in removing the plaintiff; and it must be assumed that he was prompted by malice in doing so, for the plaintiff offered to prove the fact, but was prevented by the objection of the defendant; and the defendant cannot now be heard to deny th$ existence of malice on his part. There is no doubt but that the defendant believed that the power of removal was vested in him by the constitution, and for an innocent mistake in assuming that power, under all the circumstances, no jury or court would be inclined to hold him responsible in damages. It is only when the power is used for the gratification of personal hostility and dislike, that the question assumes am entirely different aspect and in that aspect alone it is now presented to this court.
It has been suggested, however, that the action is based upon an actual removal of the plaintiff from his office by the defendant; and according to the -present view, the proceeding of the defendant was a mere nullity, and the ^plaintiff was still the incumbent of the office. It is sufficient to say that the plaintiff, as a matter of fact, was removed from his office and denied the privilege of exercising its functions by the defendant; and however illegally it may have been done, it was a power exercised under color of the office of mayor, and it does not lie in the mouth of the defendant to evade liability for his acts upon the ground that he exceeded his powers and jurisdiction.
The plaintiff attempted to restrain the defendant from removing him from his office, by judicial process; but was denied relief upon the ground that the courts had no power to award a writ of prohibition against an officer exercising merely executive functions. After this .the plaintiff, instead of continuing an angry and unseemly contest with the defendant, perhaps to the injury of the city of Lynchburg, might well acquiesce in his ejection from the office, and resort to the courts for redress of any wrong he had sustained. The defendant has certainly no cause to complain that this course has-been pursued.
As all the testimony is not before us, it is impossible to say that the damages are excessive. This may be said, however, that the case was tried by an intelligent and impartial jury, before an able and impartial judge, all of whose rulings were of the most favorable character for the defendant. It is scarcely necessary to add that the' circuit court did not err in overruling the motion for the new trial, either upon the merits of the case generally, or upon the special grounds upon which the motion was based in the lower court. My opinion, therefore, is to affirm the judgment.
MONCURE, P„ and ANDERSON and BURKS, J’s, concurred in the opinion of STAPLES, J.
CHRISTIAN, J., dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481935/ | ANDERSON, J.
Luther Pixley, one of the appellees, on the 9th day of June, 1874, executed his deed of homestead, setting apart certain personal property which he valued at $816, and claiming the residue of what he was entitled to under the homestead law out of his hotel situate in Clarksville, which he valued at $3,000,which deed was afterwards, on the 11th of June, admitted to record.
Afterwards, on the 1st of August, 1874. the said Luther Pixley and Nannie, his wife, united in a deed conveying in trust to W. E. Homes, trustee, to secure a debt due from the said Luther Pixley to W. T. White by bond for $2,888.97, with interest thereon from the 1st of September, 1874, till paid, and also “a further amount to said White, not now recollected,” the said hotel in the town of Clarksville, with all of the real estate thereto attached; also all of his personal property “except what is known as the poor debtor’s exemption under the laws of 1860.” *The personal property is specified, and embraces all that is contained in his homestead deed, and likewise all of the real estate.
At the September term, 1874, of the Mecklenburg circuit court, T. R. Owen obtained a judgment against George A. Reardon and Luther Pixley for $612.50, with interest and costs, and subsequently brought his bill in chancery to set aside the said deed of trust as usurious and fraudulent, and to subje.ct the property conveyed by it to the satisfaction of his judgment, making Pixley and wife, Homes and White parties defendant. Pixley, White and Holmes answered severally, and each of them denied the allegations of fraud and usury. Afterwards the deposition of Pixley was taken by the plaintiff Owen to contradict his answer, but it is unsupported by any other witness, and is contradicted by the depositions of Homes and White, the former of whom does not appear to have any interest. The allegations of fraud and usury are not sustained by the proofs in the cause, nor by the decree of the court, and there is no appeal from the decree on that ground.
But a petition was filed in the cause by Luther Pixley, setting up his homestead deed aforesaid, and claiming the full benefit of it, both against Owen’s judgment and W. T. White’s deed of trust. And the court held by its decree of the 6th of December, 1876, that the deed of homestead is entitled to precedence over the said deed of trust, and that the deed of trust preceding in date is entitled to priority over the judgment in favor of plaintiff. From so much of said decree as gave precedence to the homestead deed over the deed of trust, this appeal was taken by W. T. White and W. E. Homes, the trustee, and it presents the question for the decision of this court: Can property which has bfien set apart by a householder and head of a family, by his deed of homestead, duly recorded, be subjected by his subsequent deed of *trust, his wife uniting therein, to the payment of his debts? In other words, is property, after it has been so set apart, exempted by the constitution of this state from sale under the deed of trust? This question can only be determined by a right understanding of Article XI of that instrument.
To construe this article aright, it will not do to assume that the framers of the constitution had an object in view in the homestead provision, or ought to have had, which the language they employ does not import, and then to supply terms to attain the supposed or desired object. Thus whilst it plainly appears that it was their purpose to enable the householder or head of a family to set apart and hold such portion of his property as does not exceed $2,000 in value, exempt from execution or other legal process, if there is no language employed conveying the idea that it should be so held by him as to be thereafter exempt from sale or incumbrance by his own act, we cannot assume that such was the intention of the framers of the constitution, even though we should think it was proper and reasonable to have imposed such a restriction upon his right to dispose of his property by his own act, or because we can see no good reason why the constitution should authorize the householder to exempt his property from execution, and allow him the unrestricted right of disposing of it by his own act. They may have had reasons for the distinction which were satisfactory to themselves, though not satisfactory to us. We cannot be responsible for the reasons which influenced the framers of the constitution; nor is it incumbent on us to show that in proposing one object, as for instance the exemption of the debtor’s property, or a part of it, from sale under execution or other legal process, that the other object, to leave the owner unrestricted in his right to dispose of it by his own act, was not inconsistent or unreasonable.
*30But whilst I hold these to be sound principles of construction, *1 do not think that there is anything unreasonable or inconsistent in the object and intention of the framers of this article to authorize the householder or head of a family to set apart and hold his property, or a part of it, exempt from sale under execution or other process, and at the same time to leave him the unrestricted right of disposing of it by his own act.
Let us now, by an inspection of the article, ascertain from its language what was the intention of its framers. Though it may be a labor barren of interest and attractiveness, yet it seems to be necessary. Section 1 provides that every householder or head of a family shall be entitled to hold his property, to be selected by him, not exceeding the value of $3,000, in addition to what is exempted by the poor laws, “exempt from levy, seizure, garnisheeing, or sale under any execution, order or other process.” It does not declare that his property shall be exempt absolutely as by the laws known as “the poor laws.” But he shall be entitled, not required, to hold it exempt. If he chooses he may hold it exempt. He cannot be compelled to do it. There is no power vested in his wife or children, or other member of his family, to require him to hold it exempt.
He shall be entitled to hold exempt. Not his wife or children shall be “entitled,” but he personally. It is a discretion or privilege wholly conferred on him.
And it does not entitle him to hold it exempt in general, but only from sale under any execution, order or other process. It evidently has reference to sales by judicial procedure, or under legal process, as contradistinguished from sales by his own act, as by mortgage, deed of trust, pledge, or other security created by his own act.
This is made plain by section 3, where it is expressly declared that “nothing contained in this article (in no section of it, nor in all the sections taken together) in this article, shall be construed to interfere with the sale of the *property aforesaid, or any part thereof, by virtue of any mortgage, deed of trust, pledge or other security thereon.”
But it is contended that this third section means only sales made under mortgages, &c., which were executed prior to the setting apart of the property by deed of homestead; or if subsequent, not for antecedent debts. My answer is, there is no such restriction or qualification in the language of the instrument, and no language employed which implies such an intention as either by the framers of the constitution. The language is general, “any mortgage, deed of trust, &c.,” which embraces all mortgages or other securities, whether given before or after the deed of homestead, and whether given for antecedent or 'subsequent debts. And it is further ■ objected that the section does not applv to property which has been set apart by" deed of homestead, so as to inhibit an interference with its sale under deed of mortgage, &c. The language is, “of the property aforesaid, or any portion thereof.” In section 3, next preceding, it is provided that “the foregoing section (section) shall not be construed as subjecting the property hereby exempted, or any portion thereof, to any lien by reason of any execution levied on property which has been subsequently restored to the defendant,” or to other lien described in the section.
The property herein mentioned, which shall not be subjected to the liens described in the section, is unquestionably the same property which is referred to in the third section as the “property aforesaid.” The property, which is not to be subjected to the liens mentioned in section 3, is “the property hereby exempted,” which can only be the property which has been selected and set apart by the householder by his deed of homestead, for until that is done it is not exempted. And this is the property which, as declared in the third section, that nothing in the homestead article shall be construed to interfere with the sale of, under mortgage, deed of trust, &c.
*But if the provision is not made with reference to the property exempted by the homestead, to what property of the householder can it apply? If it should lie said that it applies to the property which by the first section he is entitled to hold exempt from execution, that cannot be known as exempted property, and it is not, in fact, exempted property until it is set apart by the deed of homestead, and after being so set apart and exempted, it may lie sold under any mortgage, deed of trust, pledge or other security, whether given before or after it is so set apart by the owner; for the language is broad enough to embrace both descriptions, and there is no exception or qualification. And I think it will be seen in the further investigation of the subject that this interpretation is consistent with the whole scope of the homestead article, and with all its parts.
I find nothing contained in this article which shows an intention to divest the householder and head of a family of his property, and of the unrestricted right to dispose of it as he chooses — nothing, which by express terms or by implication, divests him of his title, and vests it in his wife and children, severally or jointly with himself. If it could be construed to divest him of his property and to vest it in others, it would operate to vest in persons, if he had no wife or children, who bore to him no such relation —to any who might constitute his family, though not even of his kindred. Such cari hardly be conceived to have been the intention. It is plain that the whole purpose and intent of the article was to enable the owner of the property, if he desired, for the benefit of his family, to hold so much of it exempt from execution or other legal process as did not exceed in value $3,000. There is not a sentence or syllable in the whole article which indicates a purpose to deprive the owner of the property of his jus disponendi, or to hold it exempt *from seizure and sale, except under execu*31tion, order or other judicial process. Nor is there in the deed of homestead which he is authorized to make by the act of assembly pursuant to the fifth section of this article of the constitution. It is not an alienation of his property. It does not divest him of his title and vest it in others. It is.merely designed to set apart — to designate the portion of his property which he claims to hold under the homestead provision of the constitution, exempt from seizure and sale under any execution, order, or other legal process, and to give notice of it to the world.
But it is contended that although the title does not pass by his deed of homestead from himself to others, it is a covenant on his part to hold it for himself and others, and that he cannot afterwards alien or encumber it. There is no express trust. If it can be implied, what is the object and purpose of the trust? It cannot exceed the powers vested in the householder by the constitution; that is, to hold it exempt only from execution or other legal process. He is not required to hold it for the uses of the trust, exempt from sale under mortgage, deed, of trust, pledge or other security, to which he may choose in the exercise of his jus disponendi to subject it. The sale or encumbrance of the property by the owner himself, after he has executed the deed of homestead, is not incompatible with such a declaration of trust. His agreement to hold it exempt from levy, seizure .and sale under execution for the benefit of himself and family, as he is authorized to do by the constitution, does not forbid his making .sale of it, or encumbering it. Such an inhibition might not be for the benefit of his family. It might be seriously to its advantage. The right to alien or encumber might be necessary. to give him credit, or the means of providing for his family’s subsistence, whilst a sale under execution or other process would take it away from his family without yielding anything in return *to contribute to its support. The effect might be the same of a sale under mortgage to satisfy antecedent debts. But that would be no worse than a sale under mortgage which was executed prior to his deed of homestead. And it is conceded that he could not hold his homestead exempt from sale under prior mortgage. The framers of the constitution seem to have considered that there were grounds for a distinction between sales under execution or other legal process and sales made under mortgage or deed of trust, or other securities created by the act of the party. Hence they authorized the owner of the property to hold it exempt in the one case whilst they did not in the other. And now, if after the execution of the deed of homestead, the householder must be regarded as holding the property in trust for the benefit of himself and family, it is only that it may be exempt'from sale-under execution, or other process (for no other , exemption is authorized by the constitution) and does not and was not intended to interfere with his right to alien or encumber the same.
The fifth, section does riot vest the homestead in his family. It only authorizes the legislature to prescribe in what manner and on what conditions he may set apart and hold for the benefit of himself and family a portion of his property exempt from execution or other legal process. This section was designed to provide for carrying into execution the homestead provision, which the legislature has done by chapter 183, Code of 1873, page 1168. After authorizing every hauseholder and head of a family, almost in the precise, language of the constitution, to hold a portion of his property not exceeding in value $2,000, to be selected by him, exempt from execution or other process — which evidently means judicial or legal process — it provides in section 3. that nothing in this act shall be construed to interfere with the sale of» said property, or any portion thereof, by virtue of any mortgage. *deed of trust, pledge, or other security thereon. “Other security” means, of course, security of a like character; that is, such as is created by his own act. This provision of the act is in exact conformity with the constitution.
But the legislature has gone beyond the requirements of the constitution, it seems to me, in restricting the rights of the owner of the property, by section 7 of this act, where it provides that a homestead so set apart “shall not be mortgaged, encumbered or aliened by the owner, if a married man, exi cept by the joint deed of himself and wife, executed and acknowledged after the manner of conveyance of lands of a married woman,” &c. This provision seems to be designed to protect the wife against alienations or encumbrances. by the husband without her consent, whilst such purpose is not contained within the article of the constitution, but only to entitle, the husband to afford that protection against sales under execution or other process of his property, or so much of it as was necessary for the use of his family. But. as in this case, the wife united with her husband in the deed of trust, it is unnecessary to decide this question.
It is also provided in said third section that, “in all cases where a debtor or contractor shall declare in the"body of the bond, note or other evidence of the debt or contract, that he waives as to such debt or contract the. exemptions from liability of the property which he may be entitled to hold exempt under the provisions of this act, the said property, whether previouslysetapartor not, shall then be liable to be subjected for such debt or contract, under legal process, in like manner and to the same extent as other estate of the said debtor or contractor,” &c. Tf a mere waiver by the householder of his right to exemption, after he had set apart the property which he claimed in his deed of homestead, would render the property so set , apart subject’ to ,the payment of his debt, the *conveyance of said property by mortgage or deed of .trust for the payment of the said debt, would effectually subject it to the payment of the debt. For it is in effect, and to all intents and pur*32poses, a waiver of his. right to exemption.
The constitutionality of'this clause of the said third section of the act aforesaid was brought in question in re Joseph Solomon, 2 Hughe’s R. p. 164, and was held to be constitutional. It is true that the waiver in that case was made prior to the deed'of homestead, and the decision was only in reference to the validity of the waiver prior to the -setting apart the property claimed as the homestead; yet Chief Justice Waite, in considering the question as to the constitutionality, of this provision of the act, makes no distinction between prior and subsequent waivers. And his reasoning tends to sustain the waiver, whether made before or after the homestead deed. And the reasoning of this court in the recent decision of Reed v. The Union Bank of Winchester, 29 Gratt. 719, Judge Christian, delivering the opinion, fully "sustains the views which I have taken of the constitutional provision in relation to the homestead. Judge Christian says, speaking for the whole court: “The jus disponendi is one of the most valuable incidents of property. Without it property is of little or no value. The value which this right gives to property is a benefit to the family as well as to the head of the family. In the impoverished condition of this state the great majority of householders and heads of families do not own over $2,000 worth of property. If this could not be the basis of credit; if the head of the family is prevented by the fact that he cannot waive his homestead from obtaining credit, his family must of course suffer by it. So far from being a benefit to his family, it would seem to me a positive disadvantage to allow him to hold $2,000 worth of property upon which *he could never raise a dollar for the support of his family, or the education of his children. The true interest and real benefit to the family is, I think, to utilize the property exempted and to make it the basis of credit. This reasoning is as appropriate and as persuasive to enforce the right of the householder to dispose of his property, after it has been set apart, as before.”
These conclusions have been drawn from the homestead article of the constitution itself, seeking only to arrive at the intention and design of the instrument and its framers from the language they employed. And if it be said that the design and purpose are different from what was supposed to have been intended by the framers of the constitution, our only reply is, ita lex scripta est, and that must be our guide. It is not the province of the courts to make constitutions and laws, but to expound and enforce them as they are_ written.
I have deemed it unnecessary to go outside of Virginia to'consider the decisions upon the homestead provisions of other states, or to reconcile them with the foregoing views, there being essential differences in our homestead law and that of several of the states, as shown by Judge Christian, supra, to which I beg to refer.
Upon the whole I am of opinion to reverse' the decree of the circuit court so far as it gives precedence to the homestead deed over the deed of trust, and to affirm it so far as it is not inconsistent with this opinion.
STAPLES, J.,
was of opinion that a conveyance of or encumbrance upon the homestead by the husband, his wife uniting therein, is effectual to divest the title to'the homestead, and as that was don,e in the present case by the deed of trust, the property is liable to the claim of the trust creditor. Whether the husband may alien or encumber the homestead without the concurrence of the *wife, is a question which does not arise in this case. He did not desire, therefore, to be understood as expressing any opinion upon that question-.
MONCUE, P., concurred in the opinion of STAPLES, J.
CHRISTIAN, J., concurred in the opinion of ANDERSON, J.
The decree was as follows:
Upon the motion of the appellant, by his counsel, it is ordered that so much of the decree entered in this cause on the 22d day of March, 1878, as remands the cause to the circuit court of Mecklenburg county, be set aside; and this court proceeding to render such decree as ought to have been rendered by the said circuit court, it is decreed and ordered that the plaintiff’s bill be dismissed with costs.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481936/ | STAPLES, J.
This is a controversy concerning the probate of a paper purporting to be the last will of Mrs. Ann P. Hatcher. The parties in the court below waived a trial by jury and submitted the whole matter to the ^determination of the judge, who. after hearing all the evidence, was of opinion that “the paper writing in question is not the last will of Ann P. Hatcher,” and refused to admit the same to probate. From that order an appeal was taken to this court. The only question in the case we have to determine is, whether the will was subscribed by the witnesses in the presence of the testatrix, in the manner required by the statute. Upon this question there is some conflict in the testimony, and if the learned judge of the circuit court had based his decision upon the credit given by him to the witness against the will rather than to those in its favor, this court, upon familiar principles, would not undertake to reverse that decision, unless, indeed, in case of a plain and palpable mistake or error. It, is obvious, however, that the learned judge proceeded upon no such grounds. His written opinion, which is part of the record, shows that, according to his viéw, it is necessary to a valid will that every fact relating to the execution of the instrument and the sanity of the testatrix, shall be proved by the two subscribing witnesses.
After citing the statute and a decision of Chancellor Walworth, in Scribner v. Crane, 2 Paige R. 147, he proceeds as follows: “Judge Brooke, in the case of Dudleys v. Dudleys, 3 Leigh 436, reiterated_ in Clarke and others v. Dunnavant. 10 Leigh 13, 29, savs: ‘that however full the testimony of one witness may be to prove a will, our statute requires two witnesses to the facts which are necessary to be proved.’ Let us, then, apply these principles to the case before us.” The learned judge then comments upon the evidence of the two subscribing witnesses— first of Dr. Grymes, and then of Clarke. He declares that they are at points; that Clarke says that he never at any time heard Mrs. Hatcher acknowledge the will; that he did not see her sign or make her mark as a signature; she did not speak while he (Clarke) was *in the room, nor is it pretended that she ever spoke after-wards; and, to use his own language, she was in a “dying condition,” and her eyes set in death. The learned judge then asks: “Is it necessary, then, that two witnesses should certify to their knowledge of the mental capacity of the testatrix at the time the paper is completed; that it was executed by her freely and understandingly, with a full knowledge of its contents? Surely Clarke could not so testify.”
After these explicit avowals, I cannot see how it is possible to avoid the conclusion that the learned judge was of opinion that the two subscribing witnesses must prove the proper execution of the will and the capacity of the testatrix; and his rejection of the will was based upon the absence of such *34proof in this case. This view is strongly confirmed by the fact that, although there is other testimony in the record besides that of the two subscribing witnesses, bearing directly upon the question of the due execution of the will and the capacity of the testatrix. no allusion is made .to that testimony. It is impossible for this court to say what would have been the decision of the circuit judge had he felt himself at liberty to consider the evidence of the other witnesses, or had he been of opinion that a will may be proved by one of the subscribing witnesses only. It is fair to presume that he had believed that Mrs. Hatcher was unconscious at the time of Clark’s attestation, or had he believed upon the whole evidence that the will was not duly executed, that he would have so declared, instead of confining his view to the testimony of the two subscribing witnesses as affected by the particular rule of law announced by him. At all events, a careful reading of the opinion would satisfy every one that the judge of the circuit court refused the probate, not because he believed the statement of Clarke inpreference to the other evidence, *but because he held to the idea that the will must be proved, as also the capacity of the testatrix, by the two subscribing witnesses.
I have thus dwelt upon this point because it is necessary to understand precisely the ground upon which the will was rejected in the court below. For all will agree that if that decision was based, not upon the weight and credibility of all the evidence, but upon an erroneous principle announced, with respect to the number of witnesses required to establish a particular fact, the parties have a right to insist that the case shall be reviewed in this court: The farthest this court has gone is to declare that the decision of the trying court for or against the will, is to conclude all mere questions of fact depending upon the credit to be given to the witnesses. Jesse et als. v. Parker’s adm’rs, 6 Gratt. 57. The question then arises, Is the construction of the statute correctly given by the learned judge of the circuit court? The opinion of Judge Brooke, in Clarke et als. v. Dunnavant. from which the extract is given, was not concurred in by the two other judges who sat in that case. Judge Parker said: “The law regulating devises requires reasonable proof that every statutory provision has been complied with, but it does not prescribe the mode of proof, nor that the will shall be proved, as well as attested, by two or more credible witnesses, nor that(frail memory shall change its nature and*perform impossibilities.” And this was the view taken by Judge Tucker.
In Pollock and wife v. Glassell, 2 Gratt. 439. 462. Judge Baldwin said: “The statute does not prescribe the number of witnesses by whom a will shall be proved, but the number only by whom it shall be attested. Any one of the subscribing witnesses may prove the execution of the will and its due attestation by himself and the others, and if his testimony be satisfactory, it is sufficient. If this were otherwise, then the proof of a duly attested *will might be defeated by the death or forgetfulness of some of the other witnesses.” In this part of the opinion I understand all the judges as concurring, including Judge Brooke.
In Jesse v. Parker’s adm’rs et als., 6 Gratt, 57-64, Judge Allen, delivering the opinion of the whole court, said that, “Although there must be satisfactory proof that every statutory provision has been complied with, in order to establish a will, the law does not prescribe the mode of proof, nor that the will shall be proved, as well as attested, by a specific number of witnesses. If such proof were to be required from each subscribing witness, validity of wills would be made to depend upon the memory and good faith of a witness, and not upon reasonable proof that all the requirements of the statute had, in fact, been complied with.”
The authorities elsewhere are equally explicit in support of the same doctrine, as may be seen by reference to the cases cited in Judge Baldwin’s opinion, and in Tarrant v. Ware, 25 New York 425; Nelson v. McGiffert, 3 Barb. Ch. R. 158; Jauncey v. Thorne, 2 Barb. Ch. R. 40.
The law would seem, therefore, to be too well settled to be called in question.
It is now to be considered whether the will in this case was properly executed. I think it may be regarded as proved beyond controversy that the will was written at Mrs. Hatcher’s request; that every word of it wasodictated by her; that it is in conformity with her wishes; that it was subscribed by Dr. Grymes in her presence and at her request, and that she was at that time possessed of sound and disposing mind and memory.
It may be assumed also, as fully established by the evidence, that Clarke, the other attesting witness, was present in the room when the will was written, when' it was signed by the testatrix, acknowledged by her and attested *by Dr. Grymes; and was a witness to these acts as they were successively performed. In regard to these matters there can be no solid ground for dispute. The real difficulty in the case is in ascertaining whether Clarke subscribed the will “in the presence of Mrs. Hateher.” Was she at that time in a condition to know and understand that the paper he was attesting was the same she had caused to be written and had signed and acknowledged as her will? When she was told by her physician that she must die very soon, she said she wished Mr. Brooks, an attorney, sent for. She was told he could not get there. She again peremptorily said. I want Mr. Brooks sent for. Being told it was useless, he could not reach there in time, she called Mr. Cheatham and asked him to bring pen, ink and paper, which he did, and the will was written as she dictated. She was asked if that was the disposition she desired of her property? She said yes; except she wished to leave Bettie Ferguson $1,500, and to Desdie Lester her gold watch. This clause *35being added, the will was read over to her a second time. She said it was as she wished it. She was asked if she was ready to sign. She said no; she wanted to read it —called for her glasses and seemed to be reading it — then called for a pen. It was suggested that Mr. Cheatham would sign for her. She said no; she generally did that sort of business herself. She took the pen and her hand trembled; she then handed it to Cheatham, saying, you sign my name and I will make my mark; which was done. Dr. Grymes then said, do you wish me to sign it as a witness? She said she did. And he then subscribed his name in her presence.
All will agree that up to this period Mrs. Hatcher displayed good sense, clearness of mind, and a resolute purpose, with regard to the disposition of her property. After Dr. Grymes had signed the will, Mr. Cheatham said to Clarke, who was in the room. you can also act as a ''witness. And there is no doubt that Clarke then expected to become a subscribing witness. He was, however, not then further called on. The reason was that none of those present supposed it to be necessary for two witnesses actually to subscribe the will.
Immediately after these occurrences, Clarke was sent for a Mrs. Morris, a lady living a mile and a half distant, to assist in attending to Mrs. Hatcher. During his absence it was ascertained, by a message from Mr. Lester, that two subscribing witnesses were necessary. It became the subject of conversation in the room in the presence of Mrs. Hatcher. To use the language of the witnesses. it was talked about that it was necessary for Clarke to sign. A messenger was at once dispatched for Clarke. When he returned and entered the room Dr. Grymes remarked it was necessary for him to sign, saying to Clarke, you were present and saw Mrs. Hatcher sign it, and heard her acknowledgment when I signed it? He said yes, he was. He was told it was necessary to sign in the presence of Mrs. Hatcher. The will was taken from a chair and subscribed by Clarke within a few feet and directly in front of her. Dr. Grymes says he is satisfied she was then entirely conscious; that she could see, and knew what we were doing when he signed; that he had a conversation with her just before Clarke came in, and that she retained her consciousness for some time after the will was subscribed by Clarke. He took it for granted on calling for Clarke she wanted her will, which disposed of her property, properly attested, and if she disapproved of the attestation by Clarke she was in a condition to show her disapprobation if she. chose.
Clarke, on the other hand, says her eyes were set in death. He admits, however, “he did not know anything about her mind at the time.” “He had reason to think it was not good.” The reason he assigns is she did not *say anything when he signed and when the will was read to her. He further says that when Dr. Grymes and Mr. Cheatham called upon him to sign, Mrs. Hatcher could hear — everybody could hear— and if she was conscious, she must have known they called upon him to sign the paper as her will; and she was in a position to see, as he was in front of her. only about three feet from her. The testimony of Clarke, it will thus be seen, does not show Mrs. Hatcher’s want of capacity or unconsciousness at the time. It merely suggests a doubt upon that subject. Whatever weight it might otherwise have had in this case is impaired, if not wholly destroyed, by the circumstances surrounding him. In the first place, it is apparent he is a very illiterate witness, whose mere opinion upon a question of testamentary capacity is of but little value. In the second place, by his act of subscribing the will, he solemnly attested the capacity of the testatrix, and when he undertakes to invalidate the will his testimony is to be received with suspicion. It was said, in Kinleside v. Harrison, 2 Phill. R. 449, that no fact stated by such a witness can be relied on when he is not corroborated by other witnesses.
In the third place, it is certain that his testimony on the trial was directly at variance with his previous statements made shortly after the will was executed. He is proved to have said, on several occasions, that he agreed with Dr. Grymes in regard to the acknowledgment of the will by the testatrix, and also with regard to her condition when he subscribed the will. Either he had been tampered with or he had forgotten what had occurred at the time of the execution of the will.
I do not accuse him of falsehood wilfully uttered; his conduct shows the wisdom of the rule which authorizes the material facts to be proved by one of the subscribing witnesses. or even by any other competent testimony, *a-nd if it were otherwise the proof of a duly attested will might be defeated by the forgetfulness or perjury of some of them.
On the other hand. Dr. Grymes was at the time, and had been for several years, Mrs. Hatcher’s family physician. He had been in constant attendance upon her during the three weeks’ illness preceding her death. He is proved to be a man of high character and unquestioned veracity. Tn every view his evidence is entitled to the highest consideration.
In Burton v. Scott, 3 Rand. 399, 403, Judge Carr said: “The opinion of a witness as to the sanity of a person, depends for its weight on the capacity of the witness to judge, and his opportunity. Physicians are considered as occupying a high grade on such questions, both because they are generally men of cultivated minds and observation, and because, from their education and pursuits, they are supposed to have turned their attention more particularly to such subjects, and therefore to be able to discriminate more accurately, especially a physician who has attended the patient through the disease which is. supposed to have disabled his mind.”
The evidence of T. M. Cheatham confirms that of Dr. Grymes in every particular. *36Throughout they fully concur in their statements and recollection of the occurrences at the time the will was signed and acknowledged by Mrs. Hatcher, and when it was attested by Clarke. Speaking with reference to the latter occurrence, this witness says: “I saw nothing to lead ñre to believe she was not conscious then. She had been talking just before he (Clarke) came; it was talked about the necessity of Clarke signing in her presence; don't know whether she engaged in the'discussion; my conclusion and impression were that she heard the discussion, and that Clarke was sent for with her approbation and according to her wishes.”
*It is very true that Mr. Cheatham is a devisee under the will, and that fact detracts somewhat from the force and value of his statements. But his conduct throughout seems to have been characterized by good sense and' absolute fairness. His testimony is remarkably clear and consistent, and bears the impress of truth.
We have, therefore, the evidence of two competent witnesses (one of them the family physician) in support of the capacity of the testatrix, and the formal execution of the will. We have proof of that capacity in the intelligent conversation of the .testatrix but a few minutes before the attestation of Clarke, and all the presumptions in favor of its continuance. Against all this, we have the doubtful opinions of another witness in contradiction of his previous opinion, expressed soon after the will was executed. Here, then, is a will executed in conformity with all the requirements of the statute, signed and acknowledged in the presence of two witnesses, whose attestation was in the presence of the testatrix.
If it is to be defeated it is solely upon a mere presumption that the testatrix was in an unconscious state at the time the last attesting witness subscribed his name. This presumption is based mainly on the fact that she did not speak at the time, or request the witness to attest the will.
The cases are numerous in which wills have been established although the testator did'not request the witness to sign — when the request was made by some one in his presence, and therefore, presumably with his consent.
In the case of Inglesant v. Inglesant, 3 Law Reports, P. & D. 1872-75, p. 172, the testatrix was an old lady ninety years of .age, whose will was executed in the house of a Mrs. Lee, and the question there, as here, was, whether the witness had attested the will at the request of the testatrix. Sir J. Hannen, in commenting upon the evidence, feaid: “The peculiarity of this case is, that *the two attesting witnesses agree in this, that the signature of the deceased was put to the will before one of them came into the room. Both agree that Mrs. Lee. in the presence of the testatrix, upon the second witness coming into the room, requested him to put his name under the name of the testatrix. Both also agree that the testatrix did not say anything or do any act in reference to the will after the two witnesses were there, and consequently the question turns upon this, Whether the words used by Mrs. Lee can be taken to be the words of the testatrix.” After some discussion of the authorities, after citing and commenting' upon the case of Faulds v. Jackson, decided by Lord Brougham, the learned judge proceeds to say, “That case, therefore, is, as nearly as can be, parallel with the present, and the only question is, Is there evidence which leads me to conclude that the words used by Mrs. Lee were heard by Mrs. Inglesant, the testatrix? If so, the case applies. As the evidence stands, I must adopt the view that the words were heard by the testatrix. Mrs. Greaves had just before been conversing with her, and no question has been put to any witness to raise a doubt that the testatrix did hear the words used by Mrs. Lee. Moreover the execution was undoubtedly in furtherance of the wishes expressed by the testatrix when she sent for the witness.”
In Rutherford v. Rutherford, 1 Denio R. 33, it was held that the jury might have found, a sufficient request to one of the witnesses. where it was made by the draftsman of the will, in the presence of the testatrix. In Peck v. Cary, 27 New York R. 9-10, Denio, C. J., said: “Thereupon Morgan, the draftsman of the will, and who was attending to its execution, called upon three persons who were within hearing, to come forward and witness the will, and they came. I think they should be held to have signed at the request of the testatrix.” See also Nelson v. McGiffert. 3 Barb. Ch. R. 163.
*In Smith v. Smith, 2 Lansing R. 266, the supreme court of New York said: “The witnesses signed, knowing what paper they were attesting. The testatrix was present when they signed, and made no objection. The person whom she had employed to draw the will requested the witness to sign, and the request being made in her presence, is, in law. her request.” See also Moore v. Moore, 2 Brad. Surrogate R. 261. Some of these are decisions by the highest courts of New York, where there is a statute expressly requiring that the witness must attest the will at the request of the testatrix.
The authorities, I think, are almost uniform in holding that a request made by a person in the presence of the testatrix will be held to be the request of the latter, if no objection is made; and an attestation thus made is presumed to be with the concurrence and wishes of the testatrix. See Williams on Ex’ors, top p. 117, marg. 99, and cases there cited. Rogers v. Diamond, 13 Ark. R. 475; Trustees, &c., of Auburn v. Calhoun, 25 New York R. 422.
In the present case it is true that the testatrix at no time requested Clarke to attest her will — neither did she request Dr. Grymes to do so until she was asked the question. It is verv probable she did not know that a subscribing witness was necessary, and no doubt she supposed, as did the others, that the attestation of one was sufficient, until the subject was discussed ir> her presence. There is no doubt she heard Mr. Cheatham say to *37Clarke he could also act as a witness. There is no doubt she was well aware of the information received from Lester, that another witness was necessary, as it was the subject of conversation about the time she is proved to have conversed with persons in the room. There is no doubt that when Clarke entered the room she heard Dr. Grymes and Mr. Cheatham request him to sign the will — she heard and she understood all this if she was conscious — *and that she was conscious, I have already attempted to show from the testimony of unimpeached witnesses, and from the surrounding circumstances; that all the witnesses and friends so thought at the time, is evident from the fact that Clarke was requested to take his position directly in front of Mrs. Hatcher, so that she could plainly see him subscribe the will.
An unfavorable inference is sought to be drawn from the remark made by Dr. Grymes to Clarke, that Clarke was present when Mrs. Hatcher signed the will and heard her acknowledgment. It is said that Clarke was sent for and reminded of what had occurred in his presence, because it was well understood that Mrs. Hatcher was then in an unconscious state. The evidence shows that although Clarke did not actually sign his name, he was considered as a witness to the transaction — he was requested to witness the reading of the will. He was not then requested to sign because it was thought that one subscribing witness was sufficient; but when it was ascertained that two were necessary, it very naturally occurred to them, that as Clarke had witnessed the previous proceedings, including the reading, the signature and acknowledgment, he was the proper person to attest them by the actual subscription of his name.
This view is borne out by the evidence, and is consistent with the integrity of the witnesses.
The other view supposes they are not only guilty of perjury, but that they conspired to use Clarke as an instrument to accomplish a gross and palpable fraud.
Again, it is said that Cheatham, the chief legatee, was the draftsman of the will. That circumstance does not invalidate the will; it simply imposes upon the court the duty of increased vigilance in seeing that the will was fairly executed, and that it does in fact carry out the wishes of the testatrix with respect to her property. See Riddell v. Johnson, 25 Gratt. 152. Tt is perfectly certain *that this will is in conformity with the wishes of Mrs. Hatcher. It is the precise disposition she desired to make of her property. She had no children or descendants — her relations were very numerous, scattered over several states, the names and even residences of many of them, probably unknown to her — for most of whom she could have no sort of affection. Her property. divided among so manv. could be of little value to anv one. Nothing was more natural than that she should prefer to give it to those who had been kind to her, and who were bound to her by the ties of affection, blood and long continued service and devotion.
Very unexpectedly to herself and friends, she was suddenly taken dangerously ill. So soon as she was apprised of her condition, she manifested the most eager wish to make her will. She would not be denied or delayed. No one had suggested’it; no one had even hinted at any special bequest; it was written as she dictated, without comment or remark. And when, as she supposed, the instrument was complete, she quietly composed herself to die. If her wishes are to be defeated by the courts, it will be upon an inference. Lord Mansfield once said that in such a case as this, the courts lay hold of a very light presumption.
In Van Alst v. Hunter, 5 John. Ch. R. 169, Chancellor Kent, after quoting from Voet, in his Commentaries on the Pandects: “Licet enim non santi tantum sed et in agone mortis positi seminece ac balbutiente lingua voluntatem promentes, recta testamenta condant si modo mente ad hunc valeant,” proceeds to say: “It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law gives to aman oyer the disposal of his property is one of the most efficient means which he has-in protracted life to command the attention due to his infirmities. The will of such an aged man ought *to be regarded with great tenderness, when it appears not to have been procured by fraudulent means, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dic- , tated.” I think these just and noble sentiments fully apply to the case in hand, and' I am for admitting the will to probate.
CHRISTIAN and BURKS, J’s, concurred in the opinion of Staples, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481937/ | ANDERSON, J.,
doubted as to the consciousness of the testatrix at the time Clarke signed the paper, but waived his doub* and concurred in the opinion of Staples, J.
MONCURE, P., dissented.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the paper writing bearing date the 16th of August, 1871, purporting to be the last will and , testament of Ann P. Hatcher, offered for probate in the circuit court of ChesterfieM county, is the last will and testament of the said Ann P. Hatcher, and the said circuit court erred in rejecting the same. Wherefore it is considered by the court, that for the error aforesaid the said sentence of the circuit court be reversed and annulled, and that the appellees pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And this court, proceeding to pronounce such sentence as the said circuit court ought to have pronounced, it is ordered that the said paper writing be established and recorded as the last will and testament of the said Ann P. Hatcher.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481940/ | ANDERSON, J.,
delivered the opinion of the court.
The doctrine has been well settled by several decisions of this court, that a fiduciary is not justified in receiving greatly depreciated currency in payment of a gold debt, or a debt which was equivalent to gold, unless it was necessary for the payment of debts or legacies, or unless other circumstances in relation to the safety of the debt or the condition of the estate made it expedient and proper. Hannah’s adm’r v. Boyd & wife, 25 Gratt. 692, 701-2; Tosh v. Robertson, 27 Gratt. 270; Bedinger v. Wharton, Ib. 857. It has also been *held that a fiduciary had no right to collect a specie debt in Confederate money when greatly depreciated, for the purpose of investment. Campbell’s ex’ors v. Campbell’s ex’or, 22 Gratt. 649; Crickard’s ex’or v. Crickard’s legatees, 25 Gratt. 410. That it would be a devastavit and breach of trust in an executor. It is also the settled doctrine of this court that the debtor, or he who pays the money to the executor, in discharge of the obligation, knowing that it was not needed for the payment of debts or legacies, or that the safety of the debt did not require its collection, but that if received it would be for investment, and would involve the executor in a devastavit and breach of trust, will be held to be a participant in the devastavit and breach of trust. Pinkard v. Woods. 8 Gratt. 140; Cocke & al. v. Minor & als., 25 Gratt. 246; Jones’ ex’or v. Clarke, Ib. 642; and Tosh v. Robertson, supra.
The court is of opinion that the bond of Thomas M. Bondurant, deceased, and Grandison Mosely, involved in this suit, was for a gold debt or its equivalent. It was executed to James M. Patteson, prior to the late war, for a tract of land in Buckingham county, known as Oaklawn. The tract of land was sold by the said Patteson to Thomas M. Farrow, in 1857, for $12,000, and the said Farrow executed his bond, with security therefor, on the 23d of January, 1858, payable six years after date, with interest from the 1st of January, 1858. The said Farrow, some time in 1800, sold the same tract of land to Thomas M. Bondurant, for a fraction less than $13,000; and by agreement between the parties, Bondurant executed his bond jointly with Grandison Mosely for $12,000, pari thereof, to James M. Patteson, which he _ received in place of Farrow’s bond, which he surrendered to him. The Bondurant bond was payable at the same time, the 23d of January, 1864. In 1862, James M. Patteson died, and by his will appointed his wife, *Willie Ann Patteson, his executrix, requesting that she should not be required to give security. lie directed that his estate should be kept together until his youngest child attained twenty-one years of age, for the purpose of raising and educating his children, unless his representatives should think it practicable to advance his children, as they became of age or married, not exceeding in any case their distributive shares of his estate respectively. He also authorized his three sons to qualify as his executors, as they respectively attained twenty-one years of age. It does not appear that either of them ever qualified. He left five children, all of whom were infants at his death.
Thomas M. Bondurant also died the same year, and Thomas and Alexander J., his sons, and William P. Hall, qualified as his executors. In the month of December, 1863, Alexander J. Bondurant, as executor, paid the executrix the amount of said bond of $12,000, in Confederate money, dollar for dollar, and took up the bond. At that time Confederate money was so depreciated that twenty dollars of it was worth only one in gold, and the said executor discharged a gold debt of $12,000 in a currency which was *46worth only one-twentieth of its value, or $600.
It appears that less than twelve months before, this same executor, when he paid to Mrs. Patteson, the executrix, the interest then due on said bond, proposed to pay her in a short time the principal in Confederate money, when she informed him that she was unwilling to receive it, and had no úse for it. Confederate money was then of much greater value, being in relation to gold as three to one, than it was in December following, when she received it.
How can this be explained? It is accounted for by the evidence in the record. Shortly before the Confederate '*money was tendered to her by said executor, she had been informed by the Confederate assessor that she was required by the law then in force to receive payment of antebellum debts in Confederate money, or pay her taxes in gold or silver, and that unless she would take an oath or pledge her solemn word to receive payment of such debts in such currency, she would have to pay her taxes in gold or silver. She was unable to pay her taxes in gold and silver, and relying upon this representation, as she and her eldest son, George, who was then about seventeen years of age, understood it, she solemnly pledged her word to the assessor that she would receive payment of her ante-bellum debts in that currency. Soon afterwards her said son met the said executor in the road, who asked him if his mother would receive payment of the bond in question in Confederate currency? To which George replied that, as she would have to receive it in that currency, or pay her taxes in gold or silver, which she was unable to do, he supposed she would receive it. And thereupon he sent a message by him to his mother, that he would be down in a few days to pay the money. This is proved by George Patterson, and there is no testimony in conflict with him, and although Mr. Bondurant says in his answer that he does not recollect of sending the message, the testimony of George is corroborated by the circumstances.
He came down, he says, about the 11th of December. Mrs. Patteson and George both testify that it was the Saturday before the second Monday. Mr. Bondurant states affirmatively that he was there previously in November, but there is no testimony to support it, and the testimony of both Mrs. Patte'son and George is to the contrary. He_ is probably mistaken, and confounds the interview with George with an interview with his mother in November. It is probable he intended to call on Mrs. Patteson, and after meeting with George he deemed it Unnecessary. There is some discrepancy in his statement in his answer of what occurred when he called to pay the money and lift his testator’s bond, and the testimony of Mrs. Patteson and George; or at least his statement is not as full as theirs. It is doubtless an honest difference in recollection, so far as they differ, and is not material.
It is evident that the executrix, in accepting payment in Confederate money so depreciated, acted under constraint. She did not freely and willingly receive it; but she took it because she felt that there was no help for her, that she was obliged to receive it, or submit to what she regarded as a greater evil. The executor denies that' he had any complicity or connection with the statements and representations as laid to the door of William P. Oliver. If these representations had been made by his contrivance, or at his suggestion, it, would have been the perpetration of a gross fraud against the representative of James M. Patteson. There is no proof to sustain any such imputation. He does not believe that William P. Oliver made any such statements. That he did, is proved by two witnesses. And he adds, if he did, he was ignorant of it, and is in no manner responsible therefor. He says further, he does not know that he ever mentioned the $12,000 bond to Oliver, the assessor; if he ever did,' it was alone in connection with the lists of his testator’s estate. He does not say that it was not mentioned to him by one of his co-executors, nor do they deny having mentioned it to him. He admits that on the rendition of the lists, they indicated a willingness, as executors and as individuals, to receive Confederate States treasury notes for their respective dues. If such a declaration was required of them by the assessor, they might well conclude that it would be required of them by the assessor, they might well conclude that it would be required of Mrs. Patteson. He does not say that he did not know she had pledged her word to- the assessor that she would *receive Confederate money in the payment of ante-bellum debts. He 'must have had some information, or reason, which induced him to enquire of George Patteson if his “mother was ready to receive the money for the $12,000 bond,” when she had refused to receive it months before, when the currency was far less depreciated. At all events he learned from him the reason why she would receive it. if at all, because the lodgment had been made on her mind by some means or other, that if she refused to receive it, she would have to pay her taxes in gold or silver. He learned the same from Mrs. Patteson when he paid her the Confederate money and demanded his testator’s bond. He knew that she did not receive it of her free will and accord, but under the impression of constraint and compulsion; that she regarded it as almost worthless; that she had no use for it; that she did not need it for the payment of debts or legacies, because her calculation was that she would have to invest it; for she asked his advice how she had best invest it, and he gave it to her.
Upon this presentation of' the case by the record, it appears that for this gold debt of $12,000, due the estate of her testator, his children and distributees being infants, the executrix received from the executor of the obligor, Confederate money worth only about $600 in gold, when it was not necessary for her to collect it for the payment of debts or legacies, or for the safety of the debt, but for *47investment. The debt seems to have been at that time perfectly secure. The land was bound for it. It was also secured by Gradison Mosely being jointly bound for it with the estate of Thomas M. Bondurant. There is nothing in the record to show that Mosely was not entirely solvent and good for the debt; and the estate of the principal obligor is shown to have been at that time very valuable, both as to the personalty and the realty; so valuable that his executors, before qualification, were *required to execute a bond in the penalty of $400,000. The court is of opinion, therefore, upon the authorities above cited, that the executrix, in receiving payment of the said debt in a currency of so little value, committed a devastavit and brea'ch of trust. There is a class of cases in which this court has not held the payer of the money to an executor or administrator, to be a participant in the devastavit or breach of trust, upon the ground that he could not be presumed to know what was the condition of- the estate, or that there might not be uses for which it could be advantageously received and applied for the benefit of the' estate, or that there might be a necessity on the executor to receive it for payment of debts or legacies. Tosh v. Robertson, supra. But in this case no such presumption can be raised in favor of the executor of the principal obligor, for it is shown that he was informed that the executrix had no use for the money, and that if she received it she would have to seek out some mode of investment, and he required her to take it, though he was aware that she was very averse to it, and only yielded her objections under a wrong impression that if she did not, the estate would be subjected to greater evils.
Under these circumstances, as disclosed by this record, Alexander J. Bondurant, executor of Thomas M. Bondurant, the principal obligor, must be held, not only to have participated in the devastavit and breach of trust, but to be responsible for it, and to be primarily liable therefor to the heirs and distributees of James M. Patteson, deceased, and that the estate of the principal obligor and the surety Grandison Mosely are still liable on said bond, and that there should be a decree in favor of Willie Ann Patteson, executrix of James M. Patteson, against the executors of Thomas M. Bondurant, deceased, de bonis testatoris, for $12,000, the principal of said bond, with interest thereon at the rate of six per *centum per annum, from the 1st of January, 1864, till payment, subject to a credit as of the first of January, 1864, for $1,235.65, the value of the tobacco in which a portion of the Confederate money received by the executrix was invested, and which she realized, being more than the scaled value as of that date of the whole of the Confederate money paid to her by the said executor; and that the said tract of land known as Oaklawn, for the purchase money of which said bond of $12,000 was given, shall be sold and the proceeds of sale be applied to the payment of the balance due on said debt; and if that shall prove insufficient to satisfy the same, the decree should authorize the executrix to sue out an execution of fi fa. against the assets of the said Thomas M. Bondurant, deceased, in the hands of his executors to be administered for the residue of said debt; and if that should prove unavailing, that she be allowed to apply to the said circuit court for further assistance to obtain satisfaction, of what may remain of said debt, out of the estate of said Thomas M. Bondurant, deceased, and ultimately agamst the surety, Grandison Mosely, if the estate of said decedent should prove insufficient to satisfy the whole debt and costs, for what may remain to be satisfied.
The court is of opinion, therefore, to reverse the decree of the circuit court of Buckingham, with costs, 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 the executrix of James M. Patteson committed a devastavit and breach of trust in receiving Confederate money from Alexander J. Bondurant, executor of Thomas M. Bondurant, in December, *1863, when it was greatly depreciated, in payment of the bond of twelve thousand dollars, executed in 1860 by the said decedent jointly with Grandison Mosely as his surety, for the tract of land situate in Buckingham county. known as Oaklawn; and that under the circumstances of the case, the said Alexander J. Bondurant, as executor as aforesaid, must be held not only to be a participant in said devastavit and breach of trust, but should be held primarily liable therefor.
It is, therefore, adjudged and decreed that _ the decree of the circuit court dismissing the plaintiffs’ bill be reversed and annulled, and that the executors of Thomas M. Bondurant, deceased, out of any assets of said decedent in their hands, do pay to the plaintiffs their costs expended in the prosecution of their appeal here.
And the court, proceeding to render such decree as ought to have been rendered by the court below, it is decreed that Thomas D. Bondurant, Alexander J. Bondurant, and William P. Hall, executors of Thomas M. Bondurant, deceased, do pay to Willie Ann Patteson, executrix of James M. Patteson, out of any assets of the estate of said Thomas M. Bondurant in their hands to be administered, the.sum of twelve thousand dollars, with interest thereon at the rate of six per centum per annum from the 1st day of January, 1864, till payment, subject to a credit for $1,235.65 as of the said 1st day of January, 1864, and the costs of this suit in the said curcuit court. And unless the same be paid in a reasonable time, to be determined by said court, that a decree be entered therein for the sale of the tract of land in the bill and proceedings mentioned, known as Oaklawn. upon such terms as the said court may deem reasonable and just, to satisfy the same. And if the proceeds of such sale should be insufficient to satisfy the whole of said debt with interest and costs, and there *48is no estate of said decedent out of which the residue thereof can be *satisfied, the said Willie Ann Patteson, executrix as aforesaid, may apply to the said circuit court for a decree against Grandison Mosely, the surety of the said Thomas M. Bondurant in the said bond for $12,000, for the unsatisfied residue thereof. And this cause is remanded to the circuit court of Buckingham.county for further proceedings to be had therein, in conformity with this order and the opinion filed with the record.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481941/ | BURKS, J.,
delivered the opinion of the court.
*This is an appeal from certain decrees and orders of the circuit court of Northampton county. The bill was filed by William J. Robins in his right and as sole heir and distributee at law of Joseph W. Robins, deceased, against Henry H. Ayres, Willis Thompson, and the wife of said Ayres, for the specific execution of a contract made on the 31st day of July, 1866, for the sale of a tract of land called Salt Grove, in Northampton, bordering on Cherrystone creek.
The contract was in writing, signed and sealed by the parties, and a copy is filed as an exhibit and made a part of the bill. “By the terms of the contract, William J. Robins and Joseph W. Robins, the vendors, described as “parties of the first part,” covenant, in substance, that they will, on or before the first day of January, 1867, convey the said tract of land (the quantity and general boundaries of which are given), to the said Ayres and Thompson, the vendees, described as “parties of the second part,” at the proper costs and charges of the vendees, by such *49proper deed of conveyance as shall be tendered by them, and they (the vendors) will guarantee the title to the vendees by a clause of general warranty, and covenant that the land is free from all encumbrance.
This covenant, on the part of the vendors, is followed by other covenants, which will be best understood by giving the language in which they are expressed in the contract: “And it is hereby expressly agreed between the parties, that the said parties of the first part may give such deed of conveyance, as aforesaid, and deliver possession of the premises on the first day of January, 1867, or at any day previously to the first day of January, 1867, at the option of the said parties of the first part, and that the said parties of the second part shall accept and receive the same accordingly. In consideration whereof, the said parties of the second part do hereby covenant *and agree to and with the said parties of the first part, that they, the said parties of the second part, shall and will pay unto the parties of the first part, the sum of nine thousand dollars ($9,000), to be paid as follows: One hundred dollars ($100) to be paid in cash on the execution of these presents, five thousand dollars ($5,000) to be paid on the first day of January, 1867, if the said parties of the first part shall not have executed such deed of conveyance and delivered possession of the premises previously, and sooner if the said parties of the first part shall sooner execute such deed of conveyance and deliver possession as aforesaid, and upon such day as the said parties of the first part shall execute and deliver such deed, deliver such possession upon such deed being tendered as aforesaid, and the balance of said purchase money to be paid in two annual payments of equal amounts, to be secured by bonds and lien on the premises, the first payment to be made twelve months, and the other two years from the day of the said parties of the first part conveying said tract of land and delivering such possession as aforesaid, or being ready and willing so to do, and perform the covenants herein contained, on their part, with interest on said two deferred payments from date of such conveyance and possession. And it is hereby agreed between the parties that the graveyard, as now enclosed, is to be excepted out of such deed of conveyance and delivery of possession, and is to remain to the use of the said parties of the first part and their heirs forever, free from the use and control of the said parties of the second part, and that the said parties of the first part, their heirs and assigns, may and shall have right of way to go to and from the said ‘graveyard at all times at their will and pleasure. And the said parties of the first part hereby covenant with the said parties of the second part, that they, the said parties of the first part, shall and will, by or before the *first day of May, 1867, remove, or cause to be removed, the stakes marking the oyster-plantings of Messrs. Stevenson & Dunn, so that the oyster-grounds now staked out and occupied by said Stevenson & Dunn, shall be left unencumbered by the latter, and remain to the use of the said parties of the second part.”
The bill, admitting that the purchasers had made the cash payment promptly, and had also, in October, 3 867, paid the sum of $4,900 in discharge of the instalment of $3,000, the latter sum being by agreement abated by $100, because of payment before delivery of possession, and further admitting that the purchasers had made other payments at subsequent dates, alleges that they had wholly failed and refused to pay the third and last instalment of the purchase money and a part of the second, both of which instalments had been for s»me time due. It alleges that the purchasers were, under the contract, put into possession of the premises in December, 1867, (a short time after payment of the $4,900 as aforesaid), and admitting that no deed of conveyance had been made to the purchasers, alleges as a reason for it that the purchasers had never tendered any deed as by the contract they were bound to do, and that the vendors had always been ready and willing to execute such deed when tendered. and the surviving vendor was still ready and willing, as he had always been, to execute the deed when tendered. Besides these specific allegations, the bill alleges in general terms the performance of the contract on the part of the vendors, and readiness and willingness to perform the same, concluding with a prayer for general relief, and particularly for specific execution of the contract, and that the purchasers be required to pay the balance of purchase money remaining unpaid with interest, the complainant offering to convey the land to the purchasers by deed with general warranty and free of encumbrance, upon such deed being tendered *by the purchasers. The purchasers filed a general demurrer, and also a joint answer to the bill.
In their answer they admit the contract filed with the bill and their possession of the land under it. In addition to the payments admitted in the bill, they claim to have made other payments, and that all of the purchase money for the land has been paid, except a portion of the third and last installments, amounting to about $1,500, principal money, which they aver they are not bound to pay, and do not intend to pay until required by the court to do so.
They refer to the covenant of the vendors, “that they would on or before the 1st day of May, 1867, remove, or cause to be removed, the stakes marking the oyster plantings of Stevenson and Dunn,” and aver that “it was chiefly on account of this last mentioned covenant that they agreed to pay the said plaintiff and the said Joseph W. Robins the sum of $9,000; that it entered into the consideration of the contract, and was a part and parcel of the contract; that said contract was considered by them as a matter entire, and was executed by the parties to it as a whole.” They further aver, that this covenant has never been performed by the vendors, or either of them; that the oyster-planting grounds referred to in the covenant are still in the occupancy *50and under the control of the said Stevenson, thereby causing a loss and damage to the respondents equal in amount to the sum . or sums claimed by the plaintiff to be due .him, to-wit: about the sum of $1,500, in principal money. They further say that the said oyster-planting grounds are located in Cherrystone creek, adjacent to the land purchased by them, and that the privilege of using them was the great inducement for them to purchase the land, and without that privilege they would not have purchased it.
After thus averring non-performance of the covenant by the vendors and the damages consequent thereon, the *respondents do not ask a rescisión of the contract on equitable terms; they do not offer to restore the land, accounting for rents and profits while they had possession, and to have their purchase money repaid to them; nor do they ask that the plaintiff be denied relief in equity and left to his legal remedies on the contract; but they rather submit to specific performance of the contract, with compensation to be allowed them. The language of the answer is, “that there is such a failure of consideration, defect in title, laches and non-performance of covenants, pertaining to said ■ real estate and oyster-planting grounds, on the part of the parties of the first part to said contract, as to entitle them (the respondents) to an abatement of the purchase money, at least to the amount of the sum claimed by the said plaintiff to be due from them — that is to say, about $1,500 in principal money, and to relief in a court of equity.”
They admit that they have never tendered a deed of conveyance, assigning as a reason that the. vendors had never complied with the contract on their part, and they .(the respondents) did not wish to do any act that would amount to a waiver of their rights.
After depositions taken on both sides, the cause matured was brought to a hearing on the111th day of July, 1871, when the court by its decree overruled the demurrer to the bill, ordered an account of the purchase money and payments, and directed a jury to be empanelled to try the following issue. “Whether the said William J. Robins and Joseph W. Robins, in the lifetime of the latter, or the plaintiff since his death, ever removed or caused to be removed the stakes which on the 31st day of July. 1866, marked the oyster plantings of Messrs. Stevenson' and Dunn, both above and below low-water mark, so that the oyster grounds then staked out and occupied by said Stevenson and Dunn, adjacent to “Salt Grove,” were left unencumbered by said Stevenson and *Dunn, and if not, what damage have the defendants sustained by the failure of the said William J: Robins and” Joseph W. Robins, or either of them, so to do.”
On the trial of this issue .the jury found a verdict in these words: “We the jury find that the said William J. Robins and Joseph W. Robins, in the lifetime of the latter, did not remove, nor has the plaintiff, William J. Robins, since the death of the said Joseph W. Robins, removed, or caused to be removed, the stakes which on the 31st day of July, 1866, marked the oyster plantings of Messrs. Stevenson and Dunn, below low-water mark; but that the defendants, Thompson and Ayres, purchased the oysters of Dunn, laid out upon the grounds occupied by him on the 31st day of July, 1866; and that the stakes marking the oyster plantings of said Stevenson . above low-water mark were'removed by said Stevenson. And we further find, that by the failure of the said William J. Robins and Joseph W. Robins so to remove the stakes marking the oyster plantings of said Stevenson below low-water mark, the defendants, Thompson and Ayres, have sustained damage to the amount of two thousand, one hundred and thirty-seven dollars and fifty cents.”
This verdict the court, on the motion of the plaintiff (Robins), set aside, on the ground that it was contrary to the law and the evidence, and ordered a new trial. No exception was taken to this ruling, but the defendants, Ayres and Thompson, at a subsequent term of the court, moved to revoke the order setting aside the verdict and directing a new trial, on the ground that the court had no authority to make such an order. The motion was overruled, and the defendants excepted.
The second jury sworn to try the issue, after hearing the evidence, not being able to agree in a verdict, were discharged from rendering a verdict.
On the third trial the jury rendered a verdict, which is substantially the same as the verdict rendered at the *first'trial, with this important difference: that the amount of damages assessed by the last verdict was only $350. without interest, whereas the amount by the first verdict was $2,137.50. A motion by the defendants, Ayres and Thompson, to set aside this last verdict, on the ground that it was contrary to the law and the evidence, was overruled by the court, and they excepted. The bill of exceptions does not state either the evidence given or facts proved on the trial.
The cause was last heard on the 17th day of April, 1874, when the court, by its decree, affirming the verdict of the jury last rendered, ordered that the defendants, Ayres and Thompson, for $350, the amount of damages by the verdict found, should have credit on the balance of purchase money owing by them for land, as shown by a special statement reforming the report of the commissioner, who, under an order of the court, had taken an account of said purchase money and payments thereon. For this balance of purchase money, subject to said credit, the court decreed personally against Ayres and Thompson, and ordered that on payment by them of the amount decreed within four months, the complainant, Robins, 'upon tender by said Ayres and Thompson of a proper deed of conveyance according to the terms of the contract, should execute the same, and unless such payment should be made within said four months, that the land be sold, by a commissioner appointed for the purpose, to satisfy the sum decreed as aforesaid.
*51The counsel for the appellants, Ayres and Thompson, have assigned various errors in the decrees and orders of the circuit court, which we now proceed to notice.
The first is, that the demurrer to the complainant’s bill was improperly overruled. The demurrer is general for want of equity, and assigns as special cause, that the
*compiainant has a plain, adequate and complete remedy at law. The allegations of the bill, admitted by the demurrer to be true, show the case of a vendor who has made a written contract for the sale of a tract of land at a stipulated price, payable in installments; that he has good title, and is, and always has been ready to convey to the purchasers whenever they tender to him a deed of conveyance as required by the contract; that he has put the purchasers of the land in possession, as, he agreed to do; that a portion of the purchase money remains unpaid, and he has a lien on the land for its payment; that he has performed the contract in all things required to be performed by him before becoming entitled to demand and receive the balance of the purchase money; that the purchasers refuse to pay the balance, and he prays that they be required to make payment, that the contract be decreed to be specifically executed, and for general relief. Such is the case made by the bill, and of course, on demurrer, we can look only to the bill. It would seem to be a plain case for the relief prayed.
But it was argued with some earnestness, that the only object of the bill is to compel the payment of a sum of money, for the recovery of which the remedy at law is plain. No doubt the complainant might have brought his action at law. He had that remedy, but it was neither adequate nor complete, and it is for that reason that he is admitted into equity. Perhaps the most general, if not the most precise, description of a court of equity, in the English and American sense, is, says Mr. Justice Story, that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law. The remedy must be plain; for if it be doubtful and obscure at law, equity will assert a jurisdiction. I't must be adequate; for if at law it falls short of what the party is ’^entitled to. that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time, and in the future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. 1 Story’s Eq. Juris. § 33.
Now, an action at law by the vendor against the purchaser on an executory contract for sale to recover the purchase money due him, does fall short of what he is entitled to. It does not reach the whole mischief and secure the whole right of the vendor in a perfect manner. Pie may have his judgment in a court of law, and by execution pursue the personal property of the purchaser. He can-go no further. He is entitled under his contract to more perfect relief. He has not only the right to a personal judgment against the' purchaser and to subject his personal estate, which he may do in a court of law, but he _ has the right to subject the land for which the purchase money is owing. He has a lien upon it, which a court of law does not recognize and cannot enforce, and which is recognized and can be enforced only in a court of equity. In the latter forum he is entitled to a personal decree, and at the same time and in the same suit to á further decree for the sale of the land, if the personal decree be not satisfied. This is executing the contract fully, according to the agreement and intention of the parties, and this only is giving adequate relief, doing complete justice in the case.
Moreover,_ there is a peculiar reason why the vendor is admitted into a court of equity. The general rule is, that equity withholds aid by way of specific performance of contracts, unless the remedy is mutual between the parties;_and it is the principle of mutuality, it is said, which has led to the practice of compelling specific ^performance of contracts for sale against the purchaser, when in fact the claim against him made by the bill is only the sum of money agreed to be paid. Now, equity originally interfered to effect the performance of contracts, in order to give the party the interest contracted for, and at the instance of the •purchaser. But when once that jurisdiction was assumed, _ the principle of . mutuality compelled equity to assist the vendor. 2 Lomax Dig. 56 (marg. page).
Passing from the bill to the answer and’ proofs, including the verdict of the jury approved by the court, it is contended by the counsel for the appellants that the covenant of the purchasers to make payment of the last two installments of the purchase money, is dependent on the covenant of the vendors to remove or cause to be removed the stakes marking the oyster-planting of Stevenson & Dunn, and that the performance of the latter covenant was a condition precedent to the performance of the former; and inasmuch as it clearly appears that the vendors never perform their covenant, they were in no condition to require the purchasers to perform theirs, and it is assigned as error, that they were so required by the last decree of the circuit court.
Certainly, a party seeking the aid of a court of equity to compel another to perform his contract, ought to show himself prompt and ready and willing to perform the contract on his part, and if performance by him is a condition precedent to the right to demand performance of the other, he ought to show such performance, T>r at least a tender of it. It is often very difficult to determine whether covenants are dependent or independent, and to arrive at just and satisfactory conclusions by applying the rules of construction in such cases. There is, perhaps, no branch of the law, says Judge Daniel in Roach v. Dickinsons, 9 Gratt. 154, in which is to be found a *52larger number of decisions or a greater apparent conflict *of authorities than that in which the effort has been made to define the dependence and independence of covenants, and to designate the class to which any given case in dispute is to be referred. The great effort, however, in the more recent decisions has been to discard, as far as possible, all rules of construction founded on nice and artificial reasoning, and to make the meaning and intention of the parties, collected from all the parts of the instrument rather than from a few technical expressions, the guide in determining the character and force of their respective undertakings.
We think it quite clear that the covenants to execute the deed of conveyance when tendered and deliver possession of the premises, and the covenant to pay the first instalment of $5,000, are dependent and to be performed simultaneously. It was contemplated that these covenants should be performed on or befo.re the 1st day of January, 1867, and it is provided that the last two instalments should be paid at one and two years, respectively, from the day the vendors made the deed and delivered possession, or were ready and willing to do so. The stakes were to be removed from the oyster plantings of Stevenson and Dunn “by or before the 1st day of May, 1867,” which would be prior to the time at which the second deferred instalment would become payable, if the covenant for the execution of the deed and delivery of possession were performed, or performance tendered within the time stipulated. This would seem to' indicate an intention that the removal of the stakes was to be a condition precedent to the payment of the last two instalments of purchase money. This construction would seem, too, to be required by the language used in fixing the time for the payment of these two instalments — “the first payment to be made twelve months and the other payment two years from the day of the said parties of the first part conveying said land and delivering "such possession as aforesaid, or being ready and willing so to do, and perform the covenants' herein contained on their part,” &c. The last clause of the sentence is awkward in its relation to what immediately precedes it; but regarding it in the connection in which it is used, it would seem to be intended to require that the vendors should perform, or at least tender.performance, of all the covenants contained in the contract to be performed on their part before payment of these last two instalments should be exacted. But taking this construction to be the correct one, the purchasers, in their dealings with the vendors, do not appear to have insisted on its enforcement, but rather to have waived it; for, although the stakes had not been removed within the time stipulated, nor indeed removed at all, they nevertheless proceeded to make payments from time to time on the last two instalments, so that on- the 13th day of November, 1869, of the $4,000, aggregate of the two instalments, with the interest thereon, there remained unpaid only about $1,700 principal money. And in their answer to the bill, as before stated, they do not ask for a rescisión of the contract, but claim damages and indicate a willingness to accept performance with compensation. Hence the issue directed by the court, a proper mode of ascertaining the damages, and to which proceeding, it does not appear, that any objection was made. See Nagle v. Newton, 22 Gratt. 814.
But it is insisted that the damages allowed were inadequate, and that the circuit court erred in setting aside the first verdict, and also in refusing to set aside the last. As has been already stated, no exception was taken to the action of the court setting aside the first verdict, and the bill of exceptions taken to' the refusal of the court to set aside the last, states neither the evidence given nor the facts proved on the trial.
It is impossible, therefore, for this court to say that error was committed where none is shown. Fitzhugh’s *ex’ors v. Fitzhugh, 11 Gratt. 210. In the absence of any statement in the record, showing what evidence was before either jury, it is useless to speculate on the causes for the difference in the amount of damages allowed in the two verdicts. The learned judge who directed the issue and presided at both trials, was dissatisfied with the first verdict and approved the last. The presumption is that his rulings were right. There is nothing in the record to show that they were wrong. The depositions in the record were taken before the issue was directed. Whether they were read on the trial, and if read whether there was other evidence before the jury, and if so, what that evidence was, does not appear. The weight and force of the depositions, so far as they relate to the issue, may have been impaired, and for ought that appears, entirely overcome by other evidence not in the record. Some of the witnesses, in their depositions, on their basis of calculation, put the damages of the defendants at high figures, while Stevenson, who is presumed to be better acquainted with the subject than any one else, says that he did not occupy one acre in twenty of the oyster-planting grounds adjacent to Salt Grove shore, and of the grounds not occupied by him, the defendants occupied three-fourths, the residue being unoccupied; that they might plant oysters for fifty years, and if they did not plant more on an average than they had for the last four years, they need not plant any two years the same ground, and there would be enough ground for them to do so adjacent to the Salt Grove shore, unoccupied by him.
There is an assignment of error in the petition for appeal — which, however, was not much relied on in the argument — and that is, that the judge presiding at the first trial of the issue was without jurisdiction to set aside the verdict of the jury; that the trial was on the law side of the court, and a motion to set aside the verdict *and for a new trial could only be properly made in the chancery cause after the verdict and proceedings on the trial had been duly certified from the law to the equity side of the court.
This assignment of error would seem to *53be based on a misconception of the proceedings. The court, in its order made in the cancery suit, directing an issue, uses this language: “That a jury be empanelled at the bar of this court to try the following issue,” &c., and the decree reciting the verdict rendered by the jury, recites it as “the verdict of the jury empanelled at the bar of this court,” &c. The orders and proceedings during the trials, as disclosed by the record, are such as might have been entered as well on the chancery order-book as on the law order-book, and it is to be inferred that they were entered on the former as a part of the proceedings in the chancery suit, as there is in the record no certificate of the verdict and proceedings from the law side of the court showing that the trials were had on that side.
But practically it can make no difference on which side of the court making the order an issue directed in a chancery suit is tried. It may be tried on either side, (Code of 1873, ch. 173, § 4), and the proceedings would be the same and the orders the same, except that when the trial takes place on the law side, it would be more regular if the proceeding's were certified to the court on the chancery side.
Upon a bill filed under the 10th section of chapter 141 of the Code of 1860 (§ 13, ch. 137, Code of 1873), it is provided, that “the court shall cause an issue to be made and tried at its bar by a jury, whether or no the transaction be usurious.” The issue ordered under this section in the case of Brokenbrough’s ex’ors v. Spindle’s adm’r, 17 Gratt. 21, to be tried at the bar of the court which made the order, was tried on the law side of the court, where a new trial was granted and had, and the proceedings *were certified from the law to the chancery side. One of the questions raised in the case, was as to the regularity of the proceedings. Judge Moncure, in his opinion, concurred in by Judge Joynes, said: “Tlic statute seems to contemplate that all the proceedings, including the trial of the issue, are to be had in the chancery cause, instead of having the issue tried on the law side of the court, and the verdict and other proceedings on the trial certified from that to the chancery side of the court, according to the formality observed in the case of an ordinary issue out of chancery. 1 can see no well-founded objection to the former course, and it seems to be recommended by its simplicity and directness. The latter, however, was pursued in this case. But the difference is only in form, and the substance and effect are the same. All the proceedings were conducted before the same court, and ought to be regarded as proceedings in one and the same suit.”
Only one assignment of error remains to be noticed, and that is the refusal of the court on one of the trials of the issue, to permit certain questions to be answered by a witness, to which action of the court a bill of exceptions was taken. It is a sufficient answer to this assignment of error, that it does not appear by the record to which of the trials the bill of exceptions refers. It may as well refer to one as to another, so far as the record discloses. The verdict on the first trial was set aside, erroneously as the appellants contend; on the second the jury were discharged from rendering any verdict, and there is nothing to show that the bill refers to the last. 'It is worthy of notice, too, that no such assignment of error is made in the petition for appeal, prepared by the counsel, we presume, who represented the appellants in the court below, and was not the same counsel who argued the case here. The omission of this *assignment in the petition may have been because the counsel knew that the bill of exceptions had reference to the first or second trial, and not to the last. If, however, it appeared that the ruling excepted to was on the last trial, we should still be of opinion that no error was committed in excluding the questions and answers.
The court is of opinion there is ho error in the decrees and orders complained of, and that they should be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481942/ | MONCURE, P.,
delivered the opinion of the court.
The main question arising in this case is presented by the first assignment of error in the decree appealed from: “Because it enforces a purchase made by a guardian of his ward's real estate, sold under a decree of court in a suit instituted in accordance with the provision of the statute for the sale of land of persons under disability.”
We think the appellant is right in maintaining that the sale, which is the subject of controversy in this case, was made under a decree in a suit instituted under chapter 128 of the Code of 1849, concerning the sale of lands of persons under disability, and not under a decree in a suit instituted under chapter 124, of the same Code, concerning partition of lands.
But although section 6 of chapter 128 declares that at such sale as may be made under that chapter, “the *guardian or guardian ad litem, or committee, or trustee, shall not be a purchaser, directly or indirectly,” yet that section was enacted for the benefit and protection of the persons under disability, and not of their guardians, committees or trustees. And there may be a case in which a purchase made by a guardian or other fiduciary of the land of his ward or other beneficiary, sold under that chapter, would and ought to be sustained and enforced.
We think that this is such a case.
The sale of land in this case (450 acres) was made by commissioners under a decree of the said court, made at March term, 1859. The day of sale was the 11th day of August, 1859. The terms of the sale were: “Two _ hundred and fifty dollars cash, balance in equal instalments, payable in one and two years, from 1st October, 1859, and bearing interest from that day, the purchaser to execute bonds with good security for the deferred payments.” Thomas W. Williams, the_ guardian, who, as such, brought the suit, was the highest bidder for, and became the purchaser of said land at said sale, at the price of eighteen dollars and sixty cents per acre. Onewitness (Joseph A. Jones) proved that that was a good price for the land in 1858 and 1859; and though he could not say that^ it was a very exorbitant price, yet he considered it a very fine sale. Another witness (J. B. Williams) proved that “it was an enormous price at the time, and most unquestionably was to the advantage of the children.” There is not a particle of evidence in the case at all in conflict with the testimony of either of these two witnesses. Thomas W. Williams, the highest bidder for the land, to whom as purchaser it was cried out as aforesaid, entered into possession thereof as such purchaser in October, 1859, the time from which the deferred instalments of the purchase money was to bear interest. It is stated in the deposition of Thomas W. Williams that he took possession, “notwithstanding the *protest of J. W. Williams.” It is not stated in the record what was the ground of that protest. J. B. Williams was the administrator de bonis non, with the will annexed of his mother, Mrs. Eliza J. Williams, and no doubt as such had possession of the land, and *55was unwilling to surrender it to the purchaser until he had complied with the terms of sale. Certainly J. B. Williams did not make the said protest because he thought the price at which the land was cried out as aforesaid was inadequate; for we have seen how different from that was his testimony on the subject. Thomas W. Williams no doubt complied with the terms by making the cash payment of two hundred and fifty dollars; and he certainly did by giving bonds, with good security, for the two deferred payments, amounting each to the principal sum of $4,257.75. These bonds bear date on the - day. of October, 1860; bear interest from the first day of October, 1859, and are payable “to John E. Jones and T. H. Campbell, commissioners of the circuit court of Nottoway county, in the case of Williams’ guardian & others v. Williams & others;” one of them on demand, and the other on or before the first day.of October. 1861. The appellant, John C. Redd, and William F. Blackwell and James P. Street executed the said bonds with the said Thomas W. Williams, as his sureties and co-obligors. The said purchaser continued in quiet and uninterrupted possession of the said land, and enjoyed the issues and profits thereof from the time he look possession as aforesaid, in October, 1859, until he gave his deposition in this cause on the 24th of September, 1873; and may have ever since been, and yet be in such possession, for ought the.record shows. Neither the said Thomas W. Williams, nor any of the sureties in his bonds aforesaid, nor any other party concerned, so far as the record shows, ever questioned his right or liability as purchaser of the land aforesaid until after the institution of this suit, on the 23d *day of June, 1873. During the long period of his possession and enjoyment of the said land as purchaser as aforesaid, a period of more than fourteen years prior to the institution of this suit, it greatly depreciated in value; so that on the 24th of September, 1873, when the testimony in this cause was taken, one of the witnesses (Joseph A. Jones) did not think it would bring more than six dollars per acre, if then publicly sold upon the usual terms; and another of the witnesses (J. B. Williams) did not think it would bring more than five dollars, if then sold at public auction under decree of the court, and on the usual terms of one, two and three years. If the infant owners of the land or their heirs are to be subjected to the consequences of this great depreciation of its value, their loss therefrom would be immense, and they would be subjected to that loss by the act of their guardian, and as a result of a provision of law made for their protection. Instead of a shield of defence for which it was intended, it would be converted into a sword of destruction. For if a stranger, instead of the guardian, had been the purchaser, there could have been no doubt as to his liability.
Then is a court of chancery powerless to avert so great an evil and prevent so great a loss; to prevent wards from being made the victims of the act of their guardians? If he had not become the purchaser, there would have been another, &c., competent purchaser at the same price, or a few cents less per acre.
We are therefore of opinion that the purchaser by the guardian, under the circumstances of this case, ought to be enforced in favor of the owners of the estate, just as much as would have been a similar purchase by a disinterested person.
But it is said that no report of the sale was ever confirmed by, or ever made to the court.
That a report of the sale was made to the court, seems *to be very clear. The bonds were certainly returned to the court, among whose scattered and confused records they were found after the war. It is not perceived how they could have been returned to the court but by the commissioner who took them, or that they would have been so returned without a report, showing for what they had been taken, or why they were returned. Many of the records of the court were destroyed, and what were not destroyed were deranged and scattered by the federal army in April, 1865. It is not strange, therefore, that the report cannot be found.
That such report was never expressly confirmed by an order of court made before the institution of this suit, may be a more doubtful question. That it never was, seems to be probable from the circumstances of the case. The chancery order-book of the court has been found, containing the orders entered from 1858 to 1863 inclusive, and no order has been found in that book, where it would probably have been, if anywhere, confirming the said sale. It may probably have been confirmed after 1863, and before the end of the war.
Certain it is, that the purchaser might have had the report of sale confirmed at any time before the institution of this suit. None of the other parties interested in the land or the purchase money would have opposed it. He probably did not move in the matter because he did not choose, or was not ready to pay the purchase money, which he might have been required to do had he made any motion in the matter. The other parties interested in the land, who were mostly infants, or feme coverts, probably considered it the business of the guardian or commissioners. The commissioners were probably either dead or non-residents, or else waited for the action of the parties concerned, who were all members of the same family. That the purchaser considered himself bound *by his purchase long after it was made, is shown by the fact that about the 1st of October, 1861. he tendered the amount of his first bond to J. E. Jones, the commissioner, who would not receive it; probably because it was Confederate money. And even after the war, and so late as the 12th of March, 1866, in a deed dated on that day from Street and wife to said Thomas W. Williams, conveying to the latter the former’s interest in the estate of the said Eliza J. Williams, it is expressly stated that her land *56and slaves had “been sold by a decree or decrees of the circuit court of the county of Nottoway, through its commissioner,” and full power was given to any person authorized to convey title to the land known as Vermont, (no doubt the tract of 450 acres aforesaid), sold as afore'said, and purchased by said Williams, so far as the interest of said Street and wife were concerned.
The appellant, Redd, who is the father-in-law of the said Thomas W. Williams, and one of his sureties and .co-obligors in the bonds given for the deferred instalments of the purchase money of the said land, might, at any time, have had the question of his liability determined by the said court. If he had had any doubt on the subject'he might, at any time, have called upon the court to confirm or set aside the said sale, but he did not choose to do so. He knew that his son-in-law was in the quiet and peaceable possession and enjoyment of the land, claiming it as purchaser as aforesaid. He has no more right now than has Thomas W. Williams to question the validity of th.e said sale.
The third error assigned in the decree appealed from is: “Because it pronounces a sale firm and stable between the parties, when by the decree of April term, 1861, pronounced in the original suit of Williams’ guardian, &c., against Street and Wife, &c., the court had, in sum and substance, set aside said sale as null and void, and ordered a resale of said land.”
*We do not think that the said decree of April term, of 1861, had any such effect, or was intended so to have. In saying that the sales decreed by the former decree (of March term, 1859), had not been concluded, it was not intended to say that the sale of the land had not been concluded, but that.the sales of the slaves.and other personal property which had been also decreed to be sold had not been concluded. The said decree of April term, 1861, was “by consent of parties by counsel,” and the plaintiff, Thomas ■W. Williams, would hardly have consented to a decree in April, .1861, affirming that the sale of the land to him was not concluded, and in October thereafter tendered to the commissioner the amount of his first bond for the purchase money of the land.
In regard to the fifth assignment of error in the decree appealed from: “Because it gives to the plaintiffs E. P. Lyon and wife, one-ninth part of the alleged purchase price of said land, with interest from October 1st, 1859, when in fact, if entitled at all, they were only entitled to one-ninth of the principal thereof, with interest from the time at which William O. Williams would have arrived at the age of twenty-one years; and it does not appear when he would have so arrived, nor was this enquired- into by the court.”
We think there is no error in the decree in this respect. The parties, doubtless, intended that the deferred instalments of the purchase money of the land, with interest from the 1st day of October, 1859. should be distributed among the parties entitled to the land in proportion to their interest therein. At the time of the decree of March term, 1859, Davis D. Williams was dead, having died in 1855 under age, unmarried and without issue; whereby his interest in the estate of his mother devolved equally on his brothers and sisters. After the rendition of that decree and the sale of the land made under it — to-wit, in 1863 — William O. Williams was killed at the battle *of Gettysburg, and was then also under age, unmarried and without issue; whereby his interest in the estate of his mother devolved equally on his brothers and sisters. In regard to the trust created by her will, in expressing a wish that the 450 acres of land aforesaid should be worked for the benefit of her three youngest children (two of whom were her said sons, David D. and William O., and the third was her daughter, Mary Augusta), and that it should be kept as a house and home for her single daughters until William O. Williams should be twenty-one years old, and then to be equally divided between said David D. and William O., it was no doubt understood and agreed that those charges upon the use of the land antecedent to the period prescribed by the will for its division as aforesaid, should be otherwise satisfied out of her estate. By a decree of the said court made on the 29th of March, 1858, among other accounts directed to be settled was an account of the administration of R. H. and T. W. Williams, as executors of said Eliza J. Williams; also an account of the administration of Joel B. Williams, as administrator de bonis non, with the will annexed, of said Eliza J. Williams; and also “an account of the receipts and disbursements of the said executors, and of the said administrator in the administration of the land and personal estate set apart by the said testatrix for. the benefit of her single daughters and five youngest children, with a statement showing what would be a fair allowance to the three youngest children for the rent of said land.” In the decree of March term, 1859, for the sale of the said land, there was a direction that a commissioner of the court should ascertain and report “what will be a fair compensation to Martha V. and Cornelia R. Williams for their right of residence in the mansion house in the bill mentioned.” The said Cornelia seems to be the same person with the appellee, C. R. *Lyon, wife of E. P. Lyon, in whose favor the decree appealed from was rendered.
This case has been argued with great ability by the counsel on both sides, who cited many books and cases in support of their respective views. The following, among others, were referred to: 1 Leading Cases in Equity, with Notes of Hare and Wallace, Fox v. Mackreth, and Pitt v. Mackreth; Davone v. Fanning, 2 John. Ch. R. 252; 2 Tucker’s Commentaries, 459; 12 Leigh 1, Moore v. Hilton; 13 Gratt. 195, Daniel, &c., v. Leitch; 20 Id. 1, Howery v. Helms, &c.; 22 Id. 378, Cline’s heirs v. Catron; Id. 573, Phelps v. Seely, &c.; 26 Id. 517, Zirkle v. McCue, &c.; 27 Id. 812, Brock v. Rice, &c.; 6 Id. 339, Talley, &c., v. Starke’s adm’r. But, without noticing them any further, it is sufficient to say that we think they sustain, while there *57is nothing in any of them in conflict with the foregoing opinion.
Upon the whole, we are of opinion that there is no error in the said decree, and that it ought to be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481944/ | STAPLES, J.
The opinion just delivered by Judge Christian is an affirmance of the doctrines laid down in Antoni v. Wright. It was my misfortune to dissent, not only from the decision in that case, but the reasoning by which it was supported. Since that time the subject has received a full and exhaustive discussion in the public press, upon the hustings and in the legislature. That discussion and my own deliberate reflections have but confirmed my convictions of the soundness and justice of the views then entertained. I do not see, however, that any good can be effected by a further discussion of the question. Every one here present — • every intelligent mind in the state — has, perhaps, reached some fixed conclusion upon the subject, and nothing that can now be said by myself or others will tend to change or modify that conclusion. I will not, therefore, now undertake to enter into any discussion of those points with respect to which it was my misfortune in the. former case to differ with a majority of this court. This much may be said: If it is now to be considered as the settled rule of this court that every demand, debt, claim of the commonwealth, *of whatever character or description, to the amount of one million and two hundred thousand dollars annually, may be paid in these coupons; if the legislature, under no circumstances, has for the next thirty years the power to diminish the rate of taxation, whatever may be the condition or necessities of the people; if, during that time, whatever may be the public exigencies, the revenues of the state are irrevocably dedicated to the creditor; if, to such an extent and for such a time the legislature has surrendered all control of the revenues and resources of the state beyond recall, then, indeed, has the government abdicted its functions, and the state is stripped of one of its most essential attributes of sover*61eignty. We can form some faint idea of the magnitude of the surrender and of the principle involved in it when we remember that under the funding bill the entire public debt might have been funded but for the subsequent legislation arresting its operation.
To all this but one answer has ever been given, and that is, it is the duty of the legislature to lay a sufficient tax each year to pay the creditor and carry on the government. To this it may also be answered, that no legislature has the power to impose on succeeding legislatures such a duty. However strong the obligation of the public debt may be, there are periods in the history of every state when no part of it can be paid; when the government creditor and individual creditor must consent to wait for a season; and of such periods as they arise the legislature, and not the courts, must be the judge. Instances of the kind are found in the late civil conflict between the north and the south, and in times of great financial distress and disaster, when the collection of debts is universally suspended; and others will hereafter, no doubt, occur when such a suspense is essential to the public safety. The amount of taxation the people can bear— the mode and manner of imposing it —is a political question Ho be determined by the representatives of the people, from time to time, as the public exigencies may require.
This is the essential principle of the governments under which we live — state and federal. If is the vital element of all representative governments. In the language of the supreme court of the United States a legislative body cannot part with its power by any proceeding so as not to be able to continue the exercise of them. It cannot abridge its own legislative power by making permanent and irreparable contracts in reference to matters of public interest. East Hartford v. Hartford Bridge Co., 10 How. U. S. R. 511, 535; see also State Bank of Ohio v. Knoop, 10 How. U. S. R. 408; Ohio Life Ins. and Trust Comp. v. Debolt. 16 How. U. S. R. 416; Burroughs v. Peyton, 16 Gratt. 470.
With this brief discussion I am content to leave this branch of the subject, having already said, perhaps, more than was necessary. It may be proper further to say that the precise question now before us did not arise and was not decided in Antoni v. Wright. It is true it was discussed both by Judge Bouldin and Judge Anderson; and while it is perhaps covered by their reasoning, it was not necessarily decided. It is, therefore, an open question.
I agree that the funding act is broad enough to include fines imposed for the violation of the penal laws; and upon that ground I thought, and still think, it violates the seventh section of the eighth article of the constitution of Virginia. That section declares : “The general assembly shall set apart as a permanent and perpetual literary fund, the present literary funds of the state, the proceeds of all public lands donated by congress for public school purposes, of all escheated property, of all waste and unappropriated lands, of all fines accruing to the state by forfeitures, of all fines collected for offences *committed against the state, and such other sums as the general assembly may appropriate.”
Will it be maintained that it is competent for the legislature, by any contract made since the adoption of the present constitution, to divert the funds mentioned in this section from the objects therein designated? Take, for example, the proceeds of the public lands dedicated by congress for school purposes. If these lands, when sold by the state, may be paid for in coupons, are the proceeds set apart for the specific purposes prescribed by the constitution? Are they not in fact indirectly appropriated to the payment of the public debt? The same is true with reference to fines, instead of being “set apart as a permanent and perpetual literary fund,” according to the requirement of the constitution, they will be applied to the interest on the public debt. There is no practical difference between a law which directly hands them over to the state creditors, and a law which allows them to be paid in coupons.
The answer to this again, is, that the legislature must increase the taxes, and supply the deficiency from other sources. But the question still arises, can one legislature divert a fund from the purposes of a trust under the constitution, and rely upon another legislature to raise another fund from some other source with which to execute the trust. Suppose the succeeding legislature fails in its duty, what becomes of the constitutional requirement? The main design of the provision already cited was the creation of a fund beyond the reach of the legislature, in nowise dependent upon popular caprice for its preservation and application.
It is very true that the fines have heretofore been paid into the treasury indiscriminately with other public dues, and so long as the whole was paid in money no injustice or inconvenience could arise. But now the question is presented in an entirely different aspect. For if the Hcgislature shall pass a law, as it ought long ago to have done, carrying out this provision of the constitution and setting apart the fines for school purposes, under the . present ruling of the court the act must be held unconstitutional, because the funding bill authorizes the payment of all state dues in coupons. And thus it is that an unconstitutional contract is made paramount to the constitution. One legislature, by an agreement with the public creditor, may appropriate to his claim a fund set apart by the constitution irrevocably for another purpose, and if succeeding legislatures fail to supply the deficiency from other sources, there is no remedy for the breach of trust and a palpable infraction of that instrument. 1 can never give my assent to these positions. It is the duty of the legislature, by taxation, to pay the indebtedness of the state. It cannot for that purpose appropriate other revenues which by the constitution are placed beyond *62its control. Upon this point I think the argument of the attorney-general was unanswerable.
It is said, however, that the-duty of the state to pay its debts is of paramount obligation to that of providing fo‘r the education of its people; and the conclusion sought to be deduced from this is, that the constitutional provision dedicating certain funds to the cause of education, leaving the public debt unpaid, is inoperative and void.
The moral obligation of a state to pay its debts is not denied; but it has never been seriously contended by any one familiar with the principles of our government, that this obligation can be enforced by law. If the people of the state do not voluntarily raise the means by taxation to pay the public creditor, there is no way of coercing them. If this be not so, the holders of the unfunded debt will be very glad to know it, as they have not received one dollar of interest, and there is- but little probability of their doing so in the present condition of affairs. At the time of the adoption of the present constitution *the state was free to appropriate its revenues to any objects whatever. It will scarcely he contended there was anything to_prohibit; prevent the dedication of the funds named in the seventh section to the cause of education. That section, when adopted, became the supreme law of the land; and no legislature could by a contract with 'a creditor, or. by any device or contrivance whatever, evade the force and effect of the provision. The contract, if it is to be so termed, was an usurpation, so far as it attempted to appropriate the school fund to the payment of the public debt. For these reasons I cannot concur in the opinion just delivered.
Let me say in conclusion, however, I concur now, as I did then, with what was said by Judge Christian in the Homestead cases; that is, “The inviolability of contracts, public and private, is the foundation of all social progress, and the corner stone of all forms of civilized society, wherever an enlightened jurisprudence prevails.” Good faith is as essential in states as in men. Neither can be just or permanently prosperous without it. Upon that subject my own voice, feeble as it is, can never have any uncertain sound. When we speak of a contract, however, involving the public faith, such as the courts ran enforce, we mean a contract sanctioned by the constitution and the principles of government under which we live. Believing that the funding bill is in violation of both, I am for refusing the mandamus in this case. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481946/ | 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. Tames 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 *69Orphan 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 *of these deeds of trust. Indeed, the conveyance from Nathaniel Edwards to him declares that it is made subject to them. Although John C. 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, [f 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 C. 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 indemnity. 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 take the land, and, as he himself states, rely for his 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 it, 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, tie 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 purchase, *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 (he 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 purchase money which Joseph Stover gave for the land.
We have still further proof that John C, Edwards was to pay off and discharge (he deeds of trust as part of the purchase money for the land. It appears that for ten successive years, commencing in 1860 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 be accounted for, except upon the supposition that the trust debts constituted a part 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. For 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. Not until the spring *70of 1871, after the *land 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 a.bout 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 we have of the value of the lands is that of John C. Edwards, who 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 lie taken as proof of the value.
It is very true that John C. Edwards, in I860, offered the land for sale and received1 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 $31,500.
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, 1863, to October, 1865. They destroyed all the out-buildings 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 *in 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 five hundred dollars. • These facts conclusively show that at the time of the purchase by John C. 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 controversv. 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 C. 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 C. 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 precisely the 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 *off 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 off 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 when 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, was well calculated to lull the Orphan Asylum into a false security. If it had looked at the deed to him from Nathaniel Edwards, it would have seen that he purchased the property subject to all the deeds of *trust. 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. But for this conduct the *71Orphan 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 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 all the authorities. Without multiplying citations upon *this point, or protracting discussion, T think the decree should be affirmed.
ANDERSON, J., dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481947/ | 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 (balance) *of the bond is $3,000, carrying interest from the 2d of July, 1863.
The appellee, Uangdon 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, or 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 having 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 demandable 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 *or the enforcement of such contract, or for the recovery of damages for its non-performance; and if such party shall 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 be 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 was not to be performed in Confederate currency, nor made with reference to such currency as a standard of value. No 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 oayment 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 war. But this proof, I think, is more than counterbalanced by the proof on the other side. 'The appellant and his son both testify *positively, 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, 1863, when the only currency in circulation among our people was the treasury notes of the Confederate States, and the cases 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 *73the 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)4 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 the amount 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 evidence 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, *was 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 Confererate currency, ascertained hy 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 demandable” 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 Confedarate currency is reduced, according to the scale 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.
*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 be 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 tending 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 receive 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. By 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 *or jury, according to the circumstances; but it left it to the debtor, by tender under the rule already established, to 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 *74they 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 Reg. 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 *than the amount tendered, and yet 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.
Now, 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 right . 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 United 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 *of the circuit court so far as it is in conflict with this opinion, for affirming it in other respects, and remanding the cause for further proceedings.
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 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 *deed of trust given by the appellant to secure the payment of said balance of purchase money is a “legal remedy” within the spirit and meaning of said section 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 the 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 the 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 the 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 *75and annulled, and the residue thereof affirmed; and that the appellee, Dangdon C. Major, pay to the appellant his cosrts 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. . r . ; . . i . i
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481949/ | BURKS, J.,
delivered the opinion of the court.
It is conceded by the counsel on both sides that the estate of the appellee, Mrs. Chambers, in the property embraced in the antenuptial contract and deed of settlement of the 12th day of December, 1868, is a separate estate, and it was further very properly conceded in argument by one of the counsel for the appellants, that this estate of Mrs. Chambers is limited to the term of her natural life. What are her powers over it, is the question presenting most difficulty. Has she the power to dispose of it, or to encumber and charge it with the payment of her debts in such manner and to such extent as would lead to an alienation of it?
*It is the settled law of this state that a married woman is regarded in equity as the owner of her separate estate, and as a general rule, the jus disponendi (qualified as to the mode of disposal of the corpus of real estate), incident to such estate, unless and except so far as it is denied or restrained by the instrument creating it; but it is subject to such limitations and restrictions as are contained in the instrument, which may give it sub modo only, or withhold it altogether. McChesney & als. v. Brown’s heirs, 25 Gratt. 393; Nixon v. Rose, 12 Gratt. 425; Penn & others v. Whitehead & others, 17 Gratt. 503.
As incident to this jus disponendi, she may charge such estate with the payment of her debts. She may charge it as principal or 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. She may extend the charge to the whole, or confine it to a part of the estate. If no specific part is appointed for the payment of the debt, the fair implication is, that the whole was intended to be made liable. If, on the other hand, only a part of the estate, expressly or by fair inference, is designed to be charged, no liability whatever can attach to the residue. The liability of the estate can arise only out of the supposed intention of the wife to charge it, and no pecuniary engagement can be a charge upon the estate, which is not connected by agreement, express or implied, with such estate. Burnett & wife v. Hawpe’s ex’or, 25 Gratt. 481; Darnall & wife v. Smith’s adm’r & als., 26 Gratt. 878.
We do not find in the deed of settlement in this case any express interdiction or limitation of the jus disponendi, and of the incidental power to encumber and charge .the separate estate to an extent involving alienation, but, if by a fair construction of the instrument, the exercise *of these powers would be inconsistent with the plan and scheme of the settlement, and would defeat the plain intent pervading the deed, they must be considered as much forbidden as if expressly denied. The exclusion of the power of alienation, as said by Judge Mon-cure in Nixon v. Rose, trustee, supra, “is often, if not generally, necessary to effectuate the objects of the settlement, and to protect the wife as well from her own weakness, as from the power and influence of her husband. The law, therefore, favors the intention to exclude it, and will give effect to such intention whenever it can be ascertained, by a fair construction of the instrument.”
In the construction of every instrument, the paramount rule is so to construe it, as, if possible, to give effect to every part of it, and in order to discover the intention of the parties, we look not only to the terms of the instrument, but to the subject matter and the surrounding circumstances.
The settlement in this case appears to have been wholly of the property of the husband, and it would seem it was all he had. To what extent, if at all, he was indebted, is not disclosed. The property consisted in part of a lot with improvements, on which he resided, in the town of Dan-ville. Its value does not appear, except that on the pledge of it as security, the appellants agreed to advance from time to time a sum of money not exceeding at any one time $25,000. It must, therefore, have been regarded as valuable. The other property conveyed consisted of a small tract of land (thirty-five acres), a wooden factory-house with an unexpired lease of the ground on which it stands, divers fixtures for the manufacture of tobacco, household furniture, several horses and .other articles of personal property. From the enumeration and description of the property, it is evident that the property of principal value in the settlement *was in the house and lot in Danville, the home and residence of the grantor.
Looking to the deed, we cannot fail to discover that the leading intent was not only to provide, but to secure a home, maintenance and support, not for the wife only, but also for the children of the marriage. This is quite apparent from the preliminary recitals in the deed: “Whereas the said A. B. Chambers is desirous of securing and providing a comfortable home and proper maintenance and support for his intended wife, and any child or children there may be of the mar*81riage between them: Now, this indenture witnesseth,” &c.
This declared purpose to provide and secure a “home” for the wife and children is, by a subsequent provision of the deed, extended to the husband; for, after conferring upon the wife the power to have the property sold by the trustee and the proceeds invested in other property subject to the trusts impressed on the property conveyed, "it is expressly stipulated as follows: “But it is also agreed and understood between all the parties hereto, that the said A. B. Chambers shall be allowed to live in and upon said property, and the same shall be his home during the term of his natural life, though not subject to his control or management, nor liable for his contracts; and in case said property is sold, and the proceeds invested in other real property, then he shall be entitled to a home upon the same, as upon that herein conveyed.” Again, the only sale of the property expressly authorized by the deed is to be made by the trustee “upon the written request” of the wife, if at any time after the consummation of the marriage “she should deem it for the best interest of herself and family that the said real and personal estate herein conveyed should be sold, and the proceeds of such sale invested,” &c.
Thus it would seem, that the leading intent of the settlement was to provide for the “family” — to secure a *home for all, and the common support and maintenance of the wife and children. Accordingly, in harmony with this intent, the general features of the scheme were to sett1e the whole property to the separate use of the wife during her life, and to limit the equitable fee to the children of the marriage, with power in the wife to make appointment amongst them, observing the principle of equality, or on failure of issue of ri'.e marriage, as it would appear, to appoint the children of the husband by a former marriage to' take, observing the same principle of equality in the appointment; and cn failure of issue of the marriage and default of appointment to the children of the husband by the former marriage, at the death of the wife, she having survived the husband, to limit the fee to “those to whom by the laws of the state of Virginia it would go by virtue of their relationship to the said A. B. Chambers (the husband).” The only contingency in which no limitation is provided, is the death of the wife in the lifetime of the husband without issue of the marriage and without appointment by the wife among the children of the husband by the former marriage. Upon the happening of that contingency, the fee. by operation of law, would result to the husband, the grant- or. in the settlement.
Now, this whole scheme would seem to be designed to preserve the property, settle and secure its use and enjoyment to the family —to provide and secure a home for them and support and maintenance for the wife and children. The only change in the property which is expressly authorized, is a sale, on the written request of the wife, and reinvestment of the proceeds in other property, subject to the same trusts which are impressed on the property conveyed, if the wife should deem such sale and investment to be “for the best interest of herself and family.”
It is true, the trustee is directed to “hold, use and *manage” the property * * * “for the sole and separate use, benefit and disposal of the wife,” but the word “disposal” may appropriately be referred to the sale for reinvestment which has been mentioned, and the language descriptive of the control of the estate by the wife, while per se and disconnected from the other parts of the instrument it might not import with certainty any restraint against alienation, should, in its relation to other provisions, have a restricted meaning given to it. The language is, that “the said trustee will suffer and permit the said Fannie E. Major (the intended wife), after her marriage aforesaid shall have been consummated, to have, occupy, use and enjoy, in quiet and peaceable possession during the term of her natural life, all the property, both real and personal, herein conveyed, assigned and transferred, without interference on the part of any one, and of him, the said trustee, save and except as to such acts and things as he may be required either in law or equity to do and perform by virtue of his office of trustee aforesaid.”
Bearing in mind the leading intent of the settlement, to-wit: to provide and secure a home and support and maintenance for the family, the construction of the language just cited should be such as, if possible, to give effect to that intent, not to defeat it. The words “have, occupy, use and enjoy” may, and we think should be construed, as used with particular reference to the words which follow, relating to the possession of the property, the intent being that she should have “quiet and peaceable possession * * * without interference on the part of any one and of him, the said trustee * * * » These words too were the more proper as serving to qualify those preceding, by which it was declared that the trustee should “hold, use and manage” the property.
The language which immediately follows, to-wit: “the understanding and agreement between the parties hereto *being, in consideration of the premises and of the marriage aforesaid, to settle said property to the sole and separate use and benefit of the said Fannie E. Major (the intended wife), and after her, to any child or children which there may be of the marriage between herself and the said A. B. Chambers, and in such manner as shall be hereinafter named,” was more particularly intended to declare what had not been done before, the disposition of the estate after the death of the wife. It had already been declared that her interest should be for her life, that the martial rights of her husband should be excluded, and it only remained to limit the estate after her death. Some of the property embraced in the deed of settlement was personal property, which might perish from use or from natural causes. In *82the contingent limitation of the property to the heirs or next of kin of the husband after the death of the wife, the words “what remains of the same” are used, wt think, in reference to the possible diminution of the estate from the causes before mentioned.
We think, taking the whole deed together, the fair construction is, that it was intended that the property should be kept together during the life of the wife, so as to furnish a home for the family and for the common support and maintenance of the wife and children, and that it was never intended that the wife should have the power (except for the purpose of reinvestment, as' specially provided), to alien the property, or to encumber or charge it in such manner and to such extent as to lead to alienation. The exercise of such power would be inconsistent with the scheme of the settlement, and effectually defeat the leading and prevailing intent indicated by the deed.
It follows that, in our judgment, the claim of the appellants, whether under the deed of trust relied on, or under the alleged agreement of Mrs. Chambers to *charge the estate with the payment of the money advanced, cannot be sustained. She had no right lo charge her own separate estate, in the manner claimed, with the payment of the money advanced, nor can the arrangement made be sanctioned as a legitimate exercise of the power given by the deed of settlement to make sale of the property and invest the proceeds.
The money advanced on the credit of the trust property was to be used in a hazardous business, and the purposes to which it was to be implied could, in no just sense, be called an investment under the terms of the deed of settlement. The appellants, when they advanced the money, knew how it was to be employed. The deed of trust under which they claim shows on its face that they had this knowledge. With this knowledge, and a full knowledge of the deed of settlement and all its provisions, they advanced the money at a ruinous rate of interest (eighteen per centum per annum), and took a deed on the trust property to secure its payment. The deed is not' a valid security, nor are the notes which were given for the loan, nor any other engagement or undertaking of Mrs. Chambers, a valid charge upon the trust property or upon any estate or interest which she has in it.
Judicial decisions, based mainly on construction, can seldom be relied on as precedents for construction in other cases, for the obvious reason, that the instruments construed differ, more or less, in their terms, subject-matter and attending circumstances. They are sometimes alike, but nullum simile est idem. The case of Penn & others v. Whitehead & others, 17 Gratt. 503, in some of its features, resembles the case in judgment, but is very unlike it in other essential particulars. In that case, the settlement was post-nuptial, and the consideration flowed wholly from the wife. The property settled consisted of some slaves and other personal estate, of the *value, all together, of little more than one thousand dollars. The husband was insolvent, and there was a numerous family of children. The estate was limited to the separate use of the wife for her life, to remain in her possession for the support and maintenance of herself, her issue and family, and for no other purpose, and after her death, to her children. The profits of the estate were wholly inadequate to the support of the family, and it was held that the wife was not restrained by the settlement from engaging in a small mercantile business, to be conducted by her husband and his sons, on the credit of the separate estate. In the case before us, the consideration flowed from the husband. The settlement was before and in contemplation of marriage. The property of chief value was a house and lot, the residence and home of the husband. The primary object of the settlement was to provide and secure this home to the wife and any children there might be of the marriage. While, under the circumstances, it may reasonably have been supposed to have been in contemplation of the parties in making the settlement in the first case, that a small mercantile business might be undertaken on the credit of the estate, it would seem wholly inconsistent with the intent and objects of the settlement in the present case to permit the wife to engage in the hazardous business of buying, selling and manufacturing tobacco on the credit of the property dedicated and set apart to her as a home for herself and her family; and, if the adventure should prove disastrous, as in this case, she would be deprived of the very home intended to be secured to her and her family.
In the petition, briefs and oral arguments of counsel, several interesting questions have been presented for our consideration, such as whether the bill should not have been in the corporate name of the “Bank of Greensboro’,” and whether the bill, in its present form, may be treated *as such a bill; whether the trustee in the deed of trust to the appellants was competent, as notary public, to take and certify the acknowledgment and privy examination of Mrs. Chambers as a party to said deed; whether the contract for the loan made and security taken by the appellants was a Virginia contract or a North Carolina contract; and if the latter, whether the contract and security (being for a higher rate of interest than is allowed by the laws of North Carolina), can be enforced on a bill by the appellants in a court- of equity in Virginia.
The view we have taken of this case makes it unnecessary to decide these and other incidental questions raised.
We are all of opinion, for the reasons stated, that there is no error in the decree of the circuit court dismissing the bill of the appellants, and that said decree should therefore be affirmed.
Decree Affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481950/ | 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 day 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, defendants. The bond bears date on the — day of November, 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: “Now, 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 ^carriers or warehousers, that may in any manner be entrusted to him, the said R._ B. Kasey, during his continuance in said office of general ticket and freight agent; any such money or other effects which may be injured, lost or destroyed while in the custody or under the charge of the said R. B. Kasey as aforesaid, to be regarded and held as so injured, lost or destroyed by his negligence and fault, 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 full force and virtue.” A breach of the said condition was charged in the declaration.
On the 7th of November, 1873, “came the parties, by their attorneys, and mutually agreed that it be referred to Lawson Nunnally, 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 befóte 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 ac*84count between the parties should stand thus.” Then follows the said account, showing to be due thereon to the said companj' the sum of two thousand three hundred and nineteen *dollars and fifty-five cents, which should bear interest from the 1st day of April, 1873, till paid.
The depositions taken by the commissioner were returned with his report.
Four exceptions were taken by the defendants to the report of Commissioner Nunnally,- and will be hereinafter 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 Nunnally, 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 théir 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.
*The questions arising in this case are presented by the four exceptions taken by the defendants to Commissioner Nunnally’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 item charged to him (R. B. Kasey) for tickets and freight after his discharge. These items are charged between the 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 the gefteral 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 Nunnally 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 particularly *when corresponding credits were given therefor, and he has therefore allowed them.”
And in the deposition of said Yarrington, taken by 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 are 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 credits 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 every principle of law and equity are discharged from the loss that was caused by this change in the rule of the company.”
The company did -not sanction or approve Kasey’s ^giving credit for freights, nor did the president or *85treasurer of the company. The president of the company, T. 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 the payment of freights?” says: “Yes, sir, and I 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 fifth 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 rtie 5th of each month; Kasey never complied with this rule, and was in arrear on each successive month; on the 33d 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:
*“Thirty-seventh question. When did you first become aware that Kasey was in default to the company?
“Answer. 1 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 rules, 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 or directors of this fact?
“Answer. Vns, sir; I did.
“Thirty-ninth question. Were the securities of Kasey informed of it?
“Answer. Yes, sir; T cannot say when.
“Fortieth question. You have spoken of accounts rendered to you by Kasey; did you find those accounts generally correct?
“Ans-wer. No, 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.
*The third exception is as follows: “3. The default occurred in the first month, and was continued, with the knowledge of the company, each month until it reached the amount of the penalty of the bond. No information of this default was given to the sureties, and they had no opportunity of protecting themselves. It was the duty of the company to have discharged him at the end of the first mouth. Every subsequent defalcation was with the knowledge and concurrence of the company, and they should bear the loss. Tt 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 ^auditor in any transaction with Kasey in regard to his agency aforesaid for the company. The said president and treasurer seem to have acted in that regard with an eye solely to the interest of the company, which was at the same time the interest of the sureties. If they refrain for any time from removing him from office, or otherwise proceeding against him,itwasonlywith 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 which had the effect of tieing its hands for a moment and preventing it from enforcing the obligation of himself and his sureties,. *86.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 in 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 was turned out 'of office and a demand was 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 *to which we will refer, 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 *depot 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 the company for the purpose of facilitating passengers, and only the tickets actually sold by said Garber were charged to Kasey, and I am fully -satisfied that every ticket sold by Garber has been accounted for by him and Kasey credited- for the same; and upon reflection, since my deposition was given a few weeks ago, I am satisfied Kasey 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.
Kasey’s office was that of general ticket and freight agent. That Garber was employed by the company to help 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 Kasey’s name, because the company wished to have but one such agent. But this was done with the consent of Kasey, and his sureties can make no valid objection on^that account. Kasey no doubt, from necessity, had several assistants in the execution of his agency. That Kasey 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; *Dox, &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. Shœffer, 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, de_ cided 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 *87the 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 against 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 Dutch Church v. Vedder, &c., supra, decided 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 *by-law requiring the treasurer to account every six 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 af 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. Shœffer & als., 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 afterwards. 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, surpa, 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 responsible *for the fidelity of their principal. It is no collateral engagement into which they enter dependent on some contingency or condition different from the engagement of their principal. They become joint obligors with him in the 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 *knowledge _ of the master, and for _ which he might, and in justice to the surety, ought to have dismissed the servant; but instead of doing so, he concealed the fraud 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 *88the employer, under 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 Peters-burg 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 *are entitled to be discharged according to any of the cases referred to.
. We are therefore of opinion that the judgment of the circuit cr-’rt in favor of the said sureties is erroneous and ought to be reversed and annulled, and in lieu thereof a judgment 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 was as follows:
The court is of opinion, for reasons stated in writing and filed with 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 Nunnally, 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 a? the said 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. Whitlock, Peter J. Crew, Silas L. Johnson, and C. B. Lipscomb, twenty-three hundred and nineteen dollars and *fifty-five cents, with interest thereon from April 1st, 1873, 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/8481952/ | 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 tidal 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 ^imposed on the .party applying for a new trial. The new trial may be limited to a single point. Hilliard on New Trials, 2d edition, p. 68, citing Lainey v. Bradford, 4 Rich. R. 1. The practice of granting a new trial after judgment as to part, and letting the judgment stand for the residue of the demand-sued for, although sometimes questioned, is held to laave bfeen too long sanctioned now to be disturbed. Ibid., citing Edwards v. Lewis, 18 Alab. R. 494. A new trial may be ordered upon á particular question without reopening the whole case. 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 the parties, the probable consequences of delay, the advantage or disadvantage which may result to either party *93from 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.”
*ln Thwaites v. Sainsbury, 20 Eng. Com. L. R. p. 193, 7 Bingham, supra, the court observing that in causes where the defence was set out in pleading, the parties 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 precedent 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 *did 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 rulings 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 if 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 trials and in admitting the pleas of the defendants, which put new matters in issue; and that the circuit *court 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 to 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 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 *94pleaded 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 *in admitting the defendants to plead new matter which was not in issue in the former trial, the same not having arisen subsequent thereto; and, therefore, that the circuit court of Richmond erred in affirming said judgment of the 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 circuit 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/8481953/ | 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. For 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 wotild 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 *to which he testified be treated as transactions *96■which were the subject of investigation in the suit, and Jesse Crumpton, the other party to such transaction was dead, yet he did not testify in his own favor, or “in favor of any other party having 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, jf 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 *and 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, as donees, 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.
It is certainly true, that courts of equity do not aid in the execution of contracts or agreements purely voluntary; and notwithstanding respectable authorities to th.e 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 title 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 Bin. R. 378; Eckert and *others v. Ekert and others, 3 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 lessee v. Eckhart, supra, uses this language: “Although the courts are not disposed to extend the principles on which parol agreements concerning lands have been confirmed, 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 be 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 *of the agreement. It was there said that the expenditures for the improvements constituted a valuable consideration. See also Rerick v. Kern, 14 Ser. & Raule R. 267; Sheppard v. Bevin and others, 9 Gill R. 32.
An early decision (1811) of this court seems to accord with the Pennsylvania cases, *97supra. 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, 3 Leigh 569; Pigg v. Corder, 12 Leigh 69; Cox & als. v. Cox. 26 Gratt. 305, specific execution was denied, but 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 Reed in foregoing his intention to remove to the west, and in moving to and settling on the land promised him by his brother, James Reed; and Judge Cabell took occasion to say that if it *had appeared that such expense or loss had been 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. Burk-holder, resided in the city of Lynchburg in J 852, 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. Finding himself without sufficient 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 tor his daughter, Mrs. Burkholder, 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 3856. 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 *the earnings of his wife. It must have been completed as earfy 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 cáse, 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 property 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, Heineken & Co., and Taliaferro & Mus-grove 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 of the city of Lynchburg 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 *filed with the record, that the lot described in said decree as “lot No. 275 in the bill and proceedings mentioned” is not subject to the lien of the judgments in the bill mentioned of the appelless, Ludlam, H eineken & 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. Burkholder and Mary F,. his wife (defendants in this cause), and ordering the payment by the *98complainants 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 reversed and annulled, and that the appellees, Henry Ludlam, Gustave Heineken, and George W. Palmore, iate partners under the style of Ludlam, Heineken & Co., and Nathan C. Taliaferro and J. V. Musgrove, late partners under the style of Talliaferro & 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/8481954/ | MONCURE, P.,
delivered the opinion of the 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 sai'd 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 Illius, 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., *made 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 *99that 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 $684, with interest thereon from the 30th day of February, 1865. Wherefore the plaintiff demanded judgment against the defendants 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’ *firm 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 defendant's 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. on a barge for defendant, and at the same lime a bill and draft for the 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 I the same at such appraised value; that said ! Carter & Co. were not willing to do this, I but requested defendants to leave the matter open for future adjustment, to which defendants agreed; that before any 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 the adjustment '-That was to be made for the 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, &c.
Annexed to the said answer is an affidavit made by the said Charles Illius on the 17th day of July, 1869, stating that “he is one of the defendants above named, that he is acquainted with all the facts of the case, and that he has read the foregoing answ.er 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 seems, gave “notice of settlement or 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.
No further order or other proceeding appears to have been made or taken in the case after the said 30th day of *Jtlly, 1869, until the 28lh ,day of January, 1874, when notice was given by 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 service 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,, *100was 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,” he stricken out. And 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 dty of Richmond, as before mentioned, the parties to the action being described in the declaration therein as “Henry Huston, plaintiff,” and “Henry Bowler, Charles C. Herbert and Charles Illius, late partners doing business *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 non-residents 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 term 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:
“Plea 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 *and 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 feaid 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.
*By the constitution of the United States, Article IV, section 1, it is declared that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the congress 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 from whence the said records are or shall be taken.”
For the judicial decisions which have been made in regard to the aforesaid provisions of the constitution and the act of congress, reference may be had to 2 American Reading Cases, with notes by Hare & Wallace, 5th edition, pp. 597-664; the leading cases *101there reported being Mills v. Duryce, 7 Cranch R. 481-487, and McElmoyle v. Cohen, 13 Peters R. 313-330.
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 construction and effect of the provisions 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 ^another, is based upon the assumption that the court in which the judgment was obtained had jurisdiction of the case when it pronounced such judgment. It is not 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. Tt 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 resided 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 actully 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. 463 (1813); Starbuck v. Murray, 5 Wend. R. 148 (1830); Mervin v. Kumbel. 33 Id. 293 (1840); Wilson v. Bank of Mt. Pleasant, 6 Leigh, 2d edition, 570 (1835); Gleason v. Dodd, 1 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 Wise. 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 *rendered in another state may be 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, was 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 wh-ole 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 respects 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. McVeigh, 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: a Id. 437; 7 Id. 109; 1 Smith’s Ldg. *Cas., 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 add joined in the defence of the action, and made oath to the truth of the facts stated in the answer. The third defendant, Henry Bowler, 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 process or summons, or of any proceeding in j 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 afore- ¡ said. The said Henry Bowler no doubt resided in the city of New York when the contract was made, to-wit: in November, 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 *102pleas 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 *proceedings in said action. The said Henry Bowler ceased to be a resident of the city and state of New York, but 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 case 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.
*This was held in a very recent case, decided in 1875 by the supreme court of the United States, Hall & al. v. Lanning & 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 members 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 quaere 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 their argument of this case, that the action in New 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 proceeding to have been had and the ^judgment 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 perspns 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 provisions 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 person 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 *103judgment 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 *with 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 was 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. Tt 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 $1,621, 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 cf 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 Pluston, 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 *$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 ihe defence. The grounds of the defence were such as to show that, in the view of the parties making ii, 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 case 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 30th day of January, 1874, John P. Reed, 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. “Whose 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.
*It 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 ’’’argument, deem-*104mg it unnecessary to do so, and this opinio'n 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 be 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 'rejected by the court below. The defence could not have been made under the plea of nul tiel record; and the plea of nil 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 *rejecting the said special pleas and refusing to permit them to be filed.
Therefore it is considered that the said judgment of the said circuit court is 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 be 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/8481957/ | BURKS, J.
The appellants, March, Price & Co. filed their bill in the circuit court of Danville against the appellees, A. B. 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. From 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 *year 1860. On or about the 1st day . of January, 1866, under an agreement in writing, entered into between Chambers and William T. Raney, the former sold the lot to the latter, and on the 24th day of January. 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 *109August, 1866, William T. Raney having paid all the purchase money owing to Chambers, conveyed the lot to the appellee, John G. Raney, by mortgage deed to secure the payment of $4,000, with interest, owing by the said William T. Raney to the appellee. The mortgage was duly admitted to record in the corporation court of Danville, on the 24th day of August, 1866.
On the 8th day of April, 1868, William T. Raney 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 oí 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. Raney, 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. Raney 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. Raney, who ^thereupon took possession of the lot under said deed and had such possession at the date of the judgment of the appellants and continuously since.
The written contract for sale between Chambers and William T. Raney, was never recorded, nor was the deed of conveyance from the former to the latter recorded until the 18th day of September, 1873, more than twelve months after the appellants recovered their judgment against Chambers, and six months after the judgment was docketed.
As the answer of the appellee, John G. Raney, avers that the appellants had actual notice of the deed of conveyance from Chambers to William T. Raney, 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. Raney, is thus summarized in the conclusion of his answer: “Respondent relying upon the written contract between Chambers and William T. Raney, and the full payment for said land; afterwards the deed from Chambers to William T. Raney, which put in said Raney both the legal and equitable title to said property, and divested said Chambers of the same; upon the deed of mortgage from W. T. Raney to him, his purchase and payment for said property, and the several deeds, &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 allegations not depending upon exhibits of records made and furnished, calls for strict proof.”
The case thus presented by the record is essentially ^different 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 1873, ch. 114, §§ 4, 5, 6, 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 *within twelve months after it was recorded, and therefore operated as a lien from and after its date. It was decided that the title bond and deed were both void under the statute as to the judgment creditor, and that the surety bound with his principal by the judgment, having paid it for his principal, was entitled to stand in the shoes 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, *110it 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 place 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. Raney 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 be 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 *than 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 took 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.
MONCURE, P., and CHRISTIAN and STAPLES, J’s, concurred in the opinion of BURKS, J.
ANDERSON, J., dissented.
The decree was as follows:
This day came a,gain 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 record, that the lot of land, with the buildings and improvements thereon, in the bill of the appellants *mentioned, situate in the town of Danville, and as stated in said bill, “designated on the plan of said town as lot No. 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 the said decree is wholly 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 afqresaid here. And this cause is remanded to Jhe said circuit court of Dan-ville; and as it appears by the admission of the appellee, John G. Raney, 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8481958/ | STAPLES, J.
The appellant filed her bill in the corporation court for the city of Lynchburg, asking for a divorce a mensa et thoro from the appellee. Cruelty and desertion are alleged as the grounds of the application. Both are positively denied by the appellee in his answer. Subsequently the appellant filed an amended bill, in which she not only reiterates the charges of cruelty and desertion, but avers lewdness of conduct and ac-iltery on the part of the appellee. The latter filed his answer, denying the charges jn the most positive and explicit terms. In the progress of the suit numerous depositions were taken, in many of which the examination was protracted to great length, one of the appellant’s witnesses being asked on cross-examination one hundred and one questions, and one of appellee’s witnesses being *asked one hundred and twenty-nine, questions. The record, numbering some four hundred pages, exhibits a controversy through all its stages conducted with the greatest bitterness and asperity. Even the private letters of the parties, -written in the confidence of friendship and affection, have been subjected to the ordeal of public scrutiny and criticism. The counsel on both sides have argued the case with an ability and fervor which plainly show how deeply their feelings are enlisted in the cause of their clients. And not merely the parties, their counsel and friends, but it is apparent a large part of the community' where the case originated are deeply interested in the controversy. This is not at all surprising, for both parties are persons of high social position. The appellant is represented as a Jady of many personal attractions, and of the highest culture and refinement; and the appellee as a man of excellent character, of ¡amiable temper, and of unimpeached integrity. This court — no court — could view without the deepest concern such a controversy, not only on account of its disastrous consequences to the parties, but from its deleterious effects upon the community. The difficulties of the case aTe greatly increased by the fact that, in addition to the matter of the divorce, we are called upon to decide the question of custody and control of the helpless infant, the only fruit oi this unhappy marriage. Our consolation is that, in performing this duty, we have neither partiality nor prejudice, that our utterance is but the voice of the law as the wisdom of sages has established it. We are powerless to prevent or to settle controversies; we can only decide them as they are brought before us.
The first question, if not in order of time, certainly in importance, is the one involving the charge of adultery. The bill avers that the appellee has committed adultery on various occasions. Only one instance, however, is . specified, and that is that the appellee was guilty *of adultery in the city of Philadelphia, at a house of ill-fame, in a certain street named, on Sunday, the night of the 10th September, 1876, the names of the females being unknown. In support of this charge a single witness is introduced, who states that during the centennial exposition he saw the appellee in a house of ill-fame, in the city of Philadelphia. The witness states that as he entered the door of one of the parlors, he saw the appellee, in company with a friend, arise from a sofa, and that he was bidding one of the women of the house goodbye. He supposes the appellee had had some words with her; he, the appellee, turned around and left the parlor door; he does not know whether the appellee went to the street or to some other part of the house. This is the whole case, allegation and proof, with respect to the commission of adultery.
The appellee, in his answer, says he admits that on the evening of the 10th September, 1876, he, in company with a friend, J. H. Ballard, did visit a house in Philadelphia, which, after he entered it, he found to be a house of ill-fame. He states that he and Ballard, being in that city without comfortable quarters, on Sunday evening appellee suggested they should look out for another room. Ballard said he had seen a placard on a house just around the nearest corner with “rooms to let” on it. They went to the house, ringing the bell at the front door, which was opened by a white woman, supposed to be a servant, who, upon being told what was wanted, conducted appellee and Ballard to the parlor. On stating the object of their visit, one of the women said they could accommodate them with rooms, but she thought it probable they had made a mistake, and that they, the inmates, were rather too fast for them. They at once got up and left the premises. This was the only time appellee was ever in said house. He was there only for a few minutes.
During *the time, he uttered no word and committed no act in violation of •the strictest propriety.
This is the appellee’s explanation. To. sustain it he adduces the testimony of Bal*113lard. I do not deem it necessary to state any portion of that testimony here. It is sufficient to say it fully corroborates the account given by the appellee. The learned counsel for the appellant quotes an observation of Lord Stowell. that “the act of going to a house of ill-fame is characterized by our old saying that ‘people do not go there to say their pater nosters,’ that it is impossible they can have gone there for any but improper purposes, and that it is universally held as proof of adultery.” To this it is answered by an eminent writer, “Obviously, however, such a visit is open to explanation, as it may be one of philanthropy, or of accident, or even of lawful business, which should not be construed into an act of guilt.” 2 Bishop on Marriage and Divorce, § 626.
And this would seem to be the dictate of common sense and common justice. For nothing could be more manifestly unjust than to say that a man who should go to a house of ill-fame, necessarily goes there for an improper purpose. Such an act, wholly unexplained, might be considered evidence of guilt, but it is clearly not one which precludes explanation.
In this case the appellee, in direct response to the charge in the bill, has made a statement of the circumstances of his visit to the house in Philadelphia. He is called upon to answer, and he has given his answer, and I think he is entitled to the benefit of it, as in other cases in chancery. The statute provides that the suit for a divorce shall be instituted and conducted as other suits in equity. The single exception is that the bill shall not be taken for confessed, and that whether the defendant answer or not, the cause shall be heard independently of the admissions of either party, in the *pleadings or otherwise. As was said in Bailey v. Bailey, 21 Gratt. 43, 90, the purpose of these provisions was to prevent a decree being obtained by collusion of the parties, and not to change the rules of evidence, or to provide a different mode of proving the facts from that pursued in other cases.
The defendant, in every case, may respond to the charges in the bill in his answer; and he is entitled to the benefit of it. It is the law of the forum, and all who apply to it for relief must submit to have their causes tried according to the established mode of procedure. Thornton v. Gordon, 2 Rob. R. 719-726. Cases of divorce, so far from justifying a relaxation of this rule, would seem to call for its special observance. For while the plaintiff, for reasons of public policy, cannot obtain a decree upon the admission of the defendant, clearly the latter, against his or her express denial, ought not to be convicted of a violation of the marriage vow; nor should so important a relation be dissolved upon less evidence than is required to annul an ordinary contract for the sale of property. If it be conceded, in the present case, that the circumstances of suspicion against the appellee are of a grave character, this court cannot refuse him the benefit of his answer, nor would it be inclined to do so, especially when such refusal would be to fix upon him the imputation of perjury, in addition to the crime of adultery.
But, discarding this view entirely, we have the testimony of Ballard. No effort has been made to impeach his reputation as a man of veracity. No witness says he is unworthy of belief. He was subjected to a very rigorous cross-examination, but I think it wholly failed to throw any discredit upon his testimony. It is true that the appellant’s witness, Dawson, says he does not think Ballard is the friend he saw with the appellee on the ^occasion of the visit to the house in Philadelphia. He says, however, he is by no means certain — he could not see the person plainly that night — he was not acquainted with him, and did not take particular notice of him. It must be borne in mind it was not the appellant, but the appellee who brought out this testimony. It was the appellee who confronted appellant’s witness with Ballard, and demanded of the former to say whether he was not the same person seen in Philadelphia, which I think would scarcely have been done if the account of Ballard’s presence had been a fabrication. Ballard says that upon his return from the centennial, he mentioned to several persons in Lynchburg — and he gives the names of some of them — the fact of this visit to the house of ill-fame, as a good joke upon the appellee and himself. None of the persons named are called to contradict him; and it is to be presumed he did mention the subject of the visit. If he did, it would go far to show that the parties regarded the whole affair as a harmless joke, of which they were the victims, and that they made no effort whatever to conceal the occurrence. Upon the whole 1 am satisfied that the account of this affair given by Ballard and the appellee, is true in every material particular, and that the charge of adultery is not sustained by the proof.
The bill contains another charge, not of actual adultery, but of improper solicitation on the part of the appellee, introduced, no doubt, for the purpose of showing the adulterous intent. The charge is that the appellee, in the month of September, 1876, solicited Eliza Patterson, a young mulatto woman, then a servant of his wife; to have carnal intercourse with him. It is not pretended that adultery was actually committed, but simply that there were repeated solicitations to that effect. The only witness relied on to support this charge is Eliza Patterson herself — without a single corroborating circumstance to *support her. The force of her testimony is entirely destroyed by the evidence of three witnesses. It is true they are the mother and brothers of the appellee. But the record shows they are persons of high social ' position, and it is impossible to believe they are capable of wilful and corrupt perjury with respect to the matters to which they testify. If these witnesses speak the truth, it is manifest that the story as told by Eliza Patterson is an entire fabrication from beginning to end. In this connection it is worthy of observation *114that this witness, previous to the present deposition, had given an affidavit in which she detailed, with great particularity, numerous acts of an objectionable character on the part of the appellee; but she made no allusion whatever to the alleged solicitations stated in her deposition. When asked the reason of her silence in this respect, she could only say she did not think of them at the time. I am of opinion that this charge is not sustained.
Another charge bearing upon the question of adultery, not made, however, in the bill, but brought out for the first time in the evidence, is that the appellee was an attendant upon a ball given at a house of ill-fame, in the city of Lynchburg, in the year 1876, during the session of the United States court in that city. Two witnesses are introduced who say they saw him on that occasion. Now it is a little remarkable that, although the person of the appellee was well known in the community, out of some thirty or forty persons who must have been present at this ball only two can be found who testify to his being present on the occasion referred to. One of these is proved to have been much intoxicated at the time; and the other had but a slight acquaintance with the appellee. On the other hand, the appellee has taken the depositions of some ten or twelve witnesses, including young men to whom he was well known, and police officers whose occupation makes them familiar *with the haunts of vice, and whose duty requires them to be present on such occasions, and all of them concur in saying the appellee was not present at the ball described by the appellant’s two witnesses. At all events, they did not see or hear of his being there — that, if a married man had attended such a place, it would have been the subject of conversation at the time, and on the streets the next day. These witnesses say they never at any time saw the appellee in a house of ill-fame, and they never even heard of such a thing until this charge was made. This evidence is, of course, purely of a negative character, but it is certainly very persuasive. One can but be struck with the fact that the appellee has himself throughout opened the door to the severest enquiry. His witnesses, men most likely to be informed, were not confined to the charge of attendance upon this particular ball, but were asked to speak with reference to his habits generally, in respect to such places- — -to tell not only what they had seen, but what they had heard, as to his attendance upon other balls, and other houses of ill-fame; and upon these points the testimony, so far as negative testimony can go, is a very satisfactory vindication of the appellee.
With respect to the only remaining charge, bearing upon the question of adultery, also brought out in the evidence, that of making the signal upon the Danville bridge, I deem it unnecessary to discuss it. It is fully and completely disproven by the evidence. ■
.Before passing from this branch of the case, it is proper to allude to the earnest efforts made to fix upon the appellee the commission of adultery, or some other lewdness of conduct inconsistent with his marital duties. The evidence strongly tends to show that, to this end, extraordinary efforts were made, rewards were offered, detectives were put on the track, and all the sources and avenues of information fully explored. The only result *has been the several charges already considered. I do not allude to this for the purpose of attaching censure to any one. I think it is proper to say that a man who can pass through such an ordeal unscathed has shown a correctness and propriety of deportment deserving, at least, some notice and consideration.
The next subject of enquiry is the charge of cruelty. As this is, perhaps, mainly relied on as a ground of divorce, it becomes necessary to examine the allegations of the bill, and the evidence bearing upon this point, with more minuteness than is required in other branches of the case.
The appellant, in her original bill, states that “among the acts of cruelty which characterized the earlier portion of her married life, she was required by her husband, before they went to Danville, to conceal her want of sympathy with his political course; that- her obedience to his injunctions in this respect cut her off. from all other sympathy, and that she found herself alone with him a social pariah.” This certainty is a most extraordinary statement, in view of the fact, disclosed by this record, that the parties lived together for several years in the greatest harmony and affection, and that, both in Danville and in Lynchburg, wherever they resided, or wherever they visited, they were received into the best society and were upon terms of friendship, if not of intimacy, with the best people in those cities. It will be seen further on how groundless is this charge, as well as many others contained in this record. The parties were married in the fall of 1873, and shortly thereafter, removed to the town of Danville, Va., where they resided until the summer of 1875. They then went to Kentucky upon a visit, remaining there some four or five months. Numerous witnesses have been examined as to their conduct during this period — witnesses living upon terms, of the closest intimacy with them —and not one of them testifies to any *unkindness, in acts or words, on the part of the appellee to the appellant, on any occasion. It is very clear that their difficulties did not commence until after their removal to Lynchburg, in the winter or spring of 1876, and after they had become inmates of the family of Woodville Latham, Jr., the brother of the appellee.
Let us, then, enquire into the conduct of the appellee during the period of the residence at the house of Woodville Latham, Jr., and subsequent to it.
Some of the witnesses state that the appellee was very indifferent to the appellant, and studiously neglected her on many occasions; but when pressed upon the cross-examination, they are only able to say they *115have seen him pass her on the streets without speaking to, and apparently without noticing her. Others testify that it was the habit of the appellee to take the child away with him in the morning, and not to return with it until the afternoon, thus depriving the mother of its company and its nurture. And yet one of these witnesses, a lady of intelligence, living near the parties, upon being asked if she noticed where the child was kept before and after their difficulties were made public, states that she usually saw the child in the parlor, playing about the window, and that it was there very often. This was after their differences were made public. Before this, she never noticed it at any particular place, saw it playing in the porch and with its mother, but after this usually saw it at the parlor window.
Again it is said that the relatives and friends of the appellant were not treated with civility and respect by the family of the appellee. Miss Graves, a sister of the appellant, visited the latter at the house of Wood-ville Latham, Sr., in November, 1876, and remained there sometime. Upon leaving there she expressed herself as highly pleased with the manner in which she had been entertained, and grateful for the kindness she had received. *Tn her deposition, given in this case, she admits that, upon arriving at the house of Mr. Woodville Latham, Sr., she was received very cordially, and politely, and so treated for a few days. After that, they were polite and civil, but not at all cordial she thought. Tt has been asserted and reiterated, again and again, that the family of Woodville Latham, Sr., were hostile to the appellant, and that they had handed together to destroy her peace and happiness. I have examined this record with the greatest care, and I have not been able to find a scintilla of evidence tending to show that either the father, mother or sisters, on any occasion, were guilty of incivility or unkind acts or words to the appellant. Tt may be there were such, and that they have been carefully concealed from the public eye. The record does not exhibit anything of the kind; and this court cannot act upon mere conjectures and presumptions having no support from the evidence.
Again it is said, and this charge is reiterated with great earnestness, that the appellee actually sold the bed and bedding of the appellant, and left her without the common comforts and necessaries of life. The evidence shows that the appellee owned the furniture, including the bed and bedding in the room occupied by the appellee and appellant in the house of Woodville Latham, Sr., and that this furniture, with the exception of some articles belonging to th'e appellant, was sold by the appellee to his mother. It is manifest, however, that this sale was made after the appellant had left there, after all efforts at an adjustment had failed, and the appellant had determined to live separate and apart from her husband.
I have thus attempted to notice briefly all the charges of cruelty brought against the appellee. Most of them have reference to a period when the difficulties between the parties had become open and notorious, and when both had become embittered by the controversy in which *they were engaged. It is no part of my duty to vindicate the appellee any further than is proper to a right understanding of the merits of the case. It may be conceded that his conduct has been far from blameless, but if each and every specification of cruelty had been established it would not constitute such legal cruelty as would justify a decree for a divorce. The appellant in her bill charges coldness on the part of her husband, non-appreciation of her efforts in the discharge of her wifely duties, his treatment often degenerating into sneers and taunts and bitter complaints. But she does not charge any acts of cruelty or violence, or even threats and menaces. Her brother states that, during the whole of his visit in the fall of 1876, he never observed anything like a disturbance, a dispute, or quarrel between them. With respect to the bruises upon the wrists of the appellant, they are fully explained. The appellant coming down stairs, and finding the front door locked, attempted, in a paroxysm of excitement, to jump through the parlor window into the street. She was caught by the appellee and held by the wrists. The door was immediately unlocked, and she was implored to go out by that way; but she refused to do so, persisting in her purpose of going through the window. There is no doubt that the sole purpose of the appellee was to prevent a scene on the street mortifying to all concerned. With this exception, if exception it can be considered, there is not a particle of testimony showing any act of cruelty or violence on the part of the appellee, or any menaces, or conduct to justify an apprehension of bodily harm, or that the appellant was, at any time, molested or in any manner restrained in her perfect freedom of action.
Tn applying the law to the evidence just considered, I shall not attempt any definition of cruelty, as used in our statutes, beyond what is laid down in the books. According to the authorities, the cruelty
that authorizes * a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life, limb or health. I agree there may be cases in which the husband, without violence, actual or threatened, may render the marriage state impossible to be endured. There may be angry words, coarse and abusive language, humiliating insults, and annoyances in all the forms that malice can suggest, which may as effectually endanger life or health as personal violence, and which, therefore, would afford grounds for relief by the court. But it is obvious that what merely wounds the feelings without being accompanied by bodily injury or actual menace — ■ mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against moral*116ity in the married state, does not amount to legal cruelty. It is so laid down by the leading authorities in England, and in this country, and is so declared by this court in Carr v. Carr, 22 Gratt. 168, 175; 1 Minor Institutes and cases cited, 256, 257. In the language of a very great judge: “Under such misconduct of either of the parties, for it may exist on one side as well as the other, the suffering party must bear, in some .degree, the consequences of an injudicious connexion; must subdue, by decent resistance of prudent conciliation; and if this cannot be done, both must suffer in silence. And, if it is complained that by this inactivity of the courts much injustice may be suffered, and much misery produced, the answer is that courts of justice do not pretend to furnish cures for all the miseries of human, life. They punish or redress gross violations of duty — they cannot make men virtuous; and as the happiness of the world depends upon its virtue, there may be much unhappiness *which human laws cannot undertake to remove. * * Petty vexations applied to a diseased and exquisite sensibility of mind, may certainly, in time, wear out the animal machine; but still they are not cases for legal relief. People must relieve themselves as well as they can by prudent resistence, by calling in the means of religion, and the consolations of friends; but the aid of the courts is not to be resorted to in such cases with any effect.” I have thus quoted, at length, some of the observations of Sir William Scott, in Evans v. Evans, 1 Hagg. Cons. R. 35. because they are very appropriate to the present case, and because they express the rules which govern the courts upon questions of this kind with a force, á wisdom and an elegance which command almost universal approbation. Tested by these rules, the application for a divorce on the ground of cruelty, cannot be sustained.
The next subject of enquiry is the charge of desertion. And here it is important to consider what constitutes desertion, as described in the books. Fortunately we are saved any discussion of that question, or reference to authorities elsewhere, by an adjudication of our own court. The case of Baily v. Baily, 21 Gratt. 43, was decided by a unanimous court. It was followed and approved in Carr v. Carr, 22 Gratt. 168, and is sustained by the general current of authorities. In Baily v. Baily, the doctrine is thus laid down by Judge Christian, speaking for the whole court: “Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the matrimonial cohabitation, and secondly, an intent to desert, in the mind of the offender. Both must combine to make the desertion complete. The intent to desert is usually the principal thing to be considered. Obviously a mere separation by mutual consent is not desertion in either. Nor, as a matter of proof, can desertion be inferred against either from the mere *unaided fact that they do not live together, though protracted absence, with other circumstances, may establish the original intent. The courts have not laid down any particular rules of evidence for determining whether a separation does or does not, as matter of proof, amount' to desertion; and the question does not admit of such rules, but each case must rest on its own circumstances.”
Bearing these principles in mind, we are now to consider whether the evidence sustains the charge of desertion. A brother of the appellant, who was examined as a witness, states that in a conversation had with the appellee in February, 1878, he proposed that the appellee should take his wife and child and go to Kentucky or Texas. The appellee replied there could be no reconciliation between him and his wife; that the matter had gone too far; that they would never live together again as man and wife. I do not think that the appellee by this, intended to avow a purpose on his part not to be reconciled to his wife, or not to live with her again; but rather to convey the idea that the difficulty had proceeded so far as to preclude all hope of reconciliation. The same witness proves that but a few months previous the appellee mentioned to witness their difficulties, telling him he thought his wife was attached to witness and was greatly under his influence, and that he asked witness if he could not bring about a better state of feeling between them. Witness replied that he did not think he could, that he had never tried to exercise any special influence over his sister in his life; that she was perfectly conscientious in evervthing she said and did, and when she had formed an opinion was firm and uncompromising in it; that he could see no present remedy for their misfortunes; that he sympathized deeply and sincerely with them, and that he hoped time and their mutual interests would produce the harmony that was so desirable between man and wife.
*Certainly nothing had occurred to warrant the belief that between the dates of these two conversations the state of feelings between the; párties was at all improved or modified. The appellee, in his answer to the averment of the bill, that he was unwilling to be reconciled to his wife, says it is not true he ever refused to be reconciled to her. On the contrary, he has hoped for such reconciliation more than for anything else on earth. He has never to this dark and miserable hour abandoned all hope that she would yet see the error of her ways, and thus save him from a life of unendurable wretchedness. The evidence does not discredit this declaration; it is in direct response to the bill, and the appellee cannot be denied the benefit of it. In the correspondence between the counsel for the appellant and the counsel for the appellee, respecting their several clients, the latter, in their letter of the 9th of January, 1877, say: “We assure you and Dr. Dulaney (it seems a friend and relative of the appellant), most earnestly, that we wanted to settle this controversy first by reconciliation if possible, if not, then by some fair and just, *117compromise.” There is no doubt of the perfect sincerity of this declaration. The counsel of the appellant, in reply, on the same day, after expressing their conviction that there was no possible way of settling the trouble out of court, say: “We cannot close this letter without again assuring you of our appreciation of your kind and Christian disposition in this case, with which we have all the time sympathized.” Whatever may be the real state of the case, the inference fairly to be drawn from the record is, that the appellant, and not the appellee, presented the chief obstacles in the way of reconciliation. The fact or facts mainly relied onto show the desertion are that the appellee, in February, 1877, sold his furniture, left the city of Lynchburg, and went to the town of Dan-ville secretly and clandestinely taking the child with him, without consultation with the *appellant, and without her knowledge or consent. The note written by the appellee to the appellant at the time shows that neither his purpose nor destination was concealed. That the note informed her that the condition of his business made it necessary he should go to Danville that day; that he would go to his brother’s house; that for obvious reasons he took Roy (the child) with him, and that she (the appellant) might follow the next day. Whether he was sincere or not in stating she might follow him, he certainly did not prohibit her from so doing. Possibly he hoped the desire to see her child might induce her to do so and eventually lead to a reconciliation. Had she followed him, or even written him, and he had refused to receive her, or provide for her, the entire aspect of the case might ha,ve been changed. But, without taking a step to ascertain his purpose, this suit was brought mainly upon the idea that the conduct of the appellee justified the charge of desertion.
The appellee states that he went to the town of Danville for the purpose of attending the United States court then in session, which was no doubt the fact. It is very propable — indeed, it seems to be very clear —he took the child with him because he feared that if he left it behind the appellant would get possession of it and remove it out of his reach beyond llie limits of the state. This apprehension, I think, explains much of his conduct throughout this entire controversy with reference to the control and management of the child. I attach no sort of importance to the sale of the furniture, becausp, in view of the separation of the parties, it was of no use or benefit to the appellee.
But with whatever motive the trip to Dan-ville was made, even though a change of residence was contemplated, it would not constitute a desertion. All prospect of reconciliation or compromise had then vanished; the counsel for the appellant had declared there was no hope *of adjusting the difficulty out of court. It is vain to say that the removal of the appellee to another place of residence, even without the knowledge of the appellant, would constitute a desertion. Even where the parties separate by consent,, neither can complain of desertion in the other unless there is some desire expressed for reconciliation — some overture made in good faith for a restoration of the conjugal relation. 1 Bish. on M. & D. § 784a.
In looking over this record it is not very difficult to find an explanation of the causes which led to the estrangement, and finally to the separation of the parties. It seems that they differed a good deal with respect to the management, control and training of the child. Who is to blame upon this point, it is impossible to say. It is very probable that both were wanting in a true spirit of conciliation and compromise. This, however, was not the real cause of the dissention. Its origin lies much deeper. It is manifest that the appellant had made up her mind to bear no more children to the appellee; and in that temper she had denied him access to her bed. This was no mere whim or caprice, but a determined purpose, founded, as she said, upon conscientious convictions. I know it had been suggested that disease was the cause, and the deposition of Doctor Dulaney, her cousin, has been taken to show that during the appellant’s visit to Kentucky in the fall of 1875, he treated her for local affection. But it is most remarkable that during the whole of her sojourn, both in Danville and Lynchburg, which embraces nearly the entire period of her married life, the appellant never required any medical treatment whatever. And nowhere in the record is it pretended or claimed by any of her friends that her conduct, in the particular alluded to here, was the result of local disease, or infirmity of any description. Her counsel, in the eloquent and exhaustive brief filed by him *in which he alludes to the subject, does not justify her conduct on any such ground. On the other hand, it is in proof that a short time before her confinement in August, 1874, the appellant said to a lady friend she would die and go to perdition before she would have another child; that she considered a woman disgraced who had children. She was told if she persisted in that course she would drive her husband away from her. and be the means probably of his going among bad women. She replied, it would be much better, and she greatly preferred it. And in 1876, she told a distinguished physician of Lynchburg she did not intend to have any more children; she knew how to prevent such an occurrence. And upon another occasion, upon being told by him that the differences between her and her husband ought to be settled— they were nothing but words — that she must consent to act as other women did, and allow her husband the privileges which other husbands had, she replied that her conscience would not allow her to do it, without saying why. Her exact language was: “You can’t surely ask me to do a thing which is against my conscience?” Doctor Owen says he did not understand her to give even an intimation that ill health was the obstacle in the way. He says she was apparently in good health; she looked badly then, but was apparently in good health at all other times.
*118Against this overwhelming array of facts and circumstances, it was vain to say that the conduct of appellant was due to disease, when neither she nor her intimate friends, nor her counsel, have ever, at any time, put forth such a pretension.
This is a topic of so much delicacy that I feel the greatest hesitation and repugnance even in alluding to it, much more so in discussing it. I shall therefore dismiss it with *he remark that, in my opinion, this has been the main cause of all these troubles —it is this that has cast *its shadow over the pathway of these parties, producing controversy, estrangement and separation. In no other way does this record explain how it is that two people, remarkable, as their friends say, for their many good qualities, should so rapidly have fallen from their happy estate into their present deplorable condition.
My belief is that the remedy for these troubles is with the appellant; that she is to blame for the evils that have overtaken her, and she cannot ask, with any hope of success, for the aid of the courts so long as she persists in her present views and purposes.
But if the causes suggested be not the real ones — if the true ground is in a want of congeniality of temper and character — it is obvious that the court cannot grant a divorce because the parties cannot live together in harmony and peace. As was said by Chancellor Kent in Burwell v. Saunders, 4 Johns. Ch. R. 502, the law regards the marriage contract as a stable and sacred contract of' natural as well as of municipal law. It is a contract juris gentium, and parties cannot lawfully rid themselves of its duties at the pleasure of either or of both of them. And Sir William Scott, in Evans v. Evans, already cited, says: “The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. When people understand that they must live together, except for a few reasons known to the law,'they learn to soften, by mutual accommodation, that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that ■upon mutual disgust, married persons might be legally separated, many couples who now pass through the world with mutual comfort — with attention to their common offspring, and to the moral order of civil society — might. *at this moment, have been living in' a state of mutual unkindness — in a state of estrangement from their common offspring and a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness ■ of some individuals must be sacrificed to the greater and more general good.”
Before passing from this branch of the case, it is proper to notice a fact much relied on by the appellant’s counsel; and that is, that the appellee himself had brought suit for a divorce from the appéllant a short time before the filing of this bill. Whatever may have been the motives of the appellee, or the grounds on- which he relied, they can have no sort of influence upon the decision of this case. Upon this record, as it now stands, the appellee, in applying for a divorce, would have shared the same fate as the appellant. Neither is entitled to it upon any or all the grounds stated. Marriage is a contract formed with a view not only to the benefit of the parties themselves, but to the benefit of third persons, to the benefit of their common offspring, and to the moral order of civil society. Husband and wife cannot, by their conduct, pave the way to a divorce, or by .agreement to live separate, entitle themselves to the aid of the courts to make valid that separation. In this state the courts and the legislature have adhered to the policy of refusing divorces except for a few and weighty causes. Amid the demoralization of the times, and the attacks now elsewhere made upon the sanctity of the marriage tie, this policy has preserved and consecrated the domestic hearth and the domestic circle in Virginia. Holding these views I am of the opinion the appellant is not entitled to a divorce from her husband.
It only remains to consider the question of the custody of the child. It is manifest that to the parties this is the paramount question. With them the matter of the divorce *derives its chief interest from its bearing upon the fate of the infant, the only issue of the marriage.
The bill charges that the appellee is not a fit and proper person, socially or morally, to have the raising of the child confined to him; and upon that ground it asks the court to decree to the appellant its custody and control. ■
As a general rule, it would seem that, upon application for a divorce, if the bill is dismissed, the court will decline to interfere either way, but leave the parties to such remedies as they may have by habeas corpus or otherwise. It is only when the divorce is granted that the court goes further and makes such order touching the proper custody and nurture of the offspring, as to it may seem right under all the circumstances. Our statute provides that the court, upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony, or from bed and board, may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody and maintenance of the minor children, and may determine with which of the parents the children, or any of them, shall remain. Code of 1860, ch. 109, § 12. So it would seem that the court in which the divorce suit is pending is authorized under this statute to make an order touching the custody of the minor children only where there'is a decree for a divorce.
There is another statute which confers a general jurisdiction upon the circuit, county and corporation courts in.chancery to hear *119and determine controversies between guardians and wards, to remove guardians, &c., and make any orders for the custody and tuition of an infant, and the management and preservation of his estate. Code 1860, ch. 127, § 13. Tt has been made a question whether this statute does not relate exclusively to matters of controversy between guardians and wards, and to the custody *and tuition of the infants who have estates and thus become wards of the court. See Rev. Code of 1819, p. 406.
Tt is unnecessary to express any opinion upon either of these points, and I do not wish to be understood as doing so. It may be conceded it is competent for a court of chancery, in pursuance of its general jurisdiction, for good and sufficient reasons, to make any proper order touching the custody and tuition of an infant; and that this may be done in a pending suit for divorce, even when the divorce is denied. All will concede that this jurisdiction is of the most delicate nature, and to be administered with the utmost caution. 2 Rob. Prac. 154; 1 Minor Inst. 399.
When the application for divorce is by the wife, and the application is refused, the question of taking from the custody of the husband or father the minor child, is one of great difficulty and delicacy.
The father is the legal guardian of the infant; the law gives it to him against all the world. The right of the father (say all the cases') to the custody of his legitimate minor children, of whatever age they may be, is perfectly clear — too well settled to admit of dispute. 1 Minor Inst. 397, and cases there cited; 2 Kent, 194; Tyler on Coverture and Infancy.
Is this right effected by the voluntary separation of the parents? If so, to what extent? Does the mother thereby acquire any additional powers and privileges? Does the father forfeit any of his? Tn England the courts have uniformly adhered to the common law doctrines, holding that the father has an absolute right to the custody of his children, and to the exclusion of the mother from all access to or communication wdth them, however pure and virtuous she might be. and however profligate might be his habits. To remedy this evil a statute was passed, known as Mr. Justice Talfourd’s act, which gives *the equity courts a very large discretion with respect to the control and possession of the infant children, where the parents live separate and apart. But even under this act the courts still accord to the father the paramount right to the child; and they will not interfere with that right, unless in cases of gross misconduct, on his part, or unless the interest or happiness of the child imperatively require it. Wellesly v. Duke of Beaufort, 2 Rus. R. 1, 43; Exparte Bartlett, 2 Coly. R. 661; In re Curtis, 28, R. J. ch. 458.
In a very recent case of Symington v. Symington, decided by the house of lotds, and reported in 12 Eng. R. 109, 2 Sch. & D. App. L. R. 415, the subject received a very exhaustive discussion. It was there said: “The father’s right to the guardianship of his child is high and sacred, the law holds it in much reverence, and it should not be taken from him without gross misconduct on his part and danger of injury to the health or morals of the children.” And further, the court would consider all the circumstances of the particular case, the circumstances of the misconduct which led to a separation, the circumstances of the general character of the father and of the mother, and above all, the court would look to the interests of the children.
In this country the doctrine is not materially different from that now held by the English courts. The lather is universally considered as having claims paramount to those of the mother, his legal authority only yielding to the claims of the infant, whenever the morals or interests of the latter strongly require it. Whenever the father so conducts himself that it will not be for the benefit of the children to live with him, if his domestic habits, associations or opinions are such as to tend to the injury of his children, the court will withdraw them from him and confer the custody of them upon the mother, or take the children from both and commit them to some *third person to nurture and educate. When the child is a daughter of very tender years, and the mother is deemed a suitable person, the custody is given to her, as essential to the health and life of the infant; while in conformity with the English rule the male child is given to the father, except in very extreme cases. In passing upon the claims of the parents, the court will enquire who is most to blame for the separation, giving the preference to the innocent party, because with such a party the infant is most likely to be cared for properly. 2 Bishop on Marriage and Divorce, 532.
In New York they have a statute equally liberal with the English act conferring upon the courts very enlarged powers with respect to infanls when the parents do not live together. It is there uniformly held that the father has the paramount right to the child in the absence of any positive disqualification for the discharge of his parental duties; that when the wife has separated from her husband without any sufficient cause, she ought not to have the custody of the child, unless its health and present condition imperatively require it. People v. Humphreys, 24 Barb. R. 526; People v. Brooks, 35 Barb. R. 85. Tt is also there held that the welfare of the child will presumably be promoted by delivering it to its father, its rightful guardian; and those who maintain the contrary must show the fact. The same view is taken in Ohio. Gishwiler v. Dodez, 4 Ohio n. s. 615.
A very noted case arose in New York some years ago: The People v. Mercein, 3 Hill’s R. 363, 25 Wend. R. 64. An English subject having married a lady of New York, had by her two children, a boy and a girl. He wished to go to Nova Scotia to live, but his wife refused to accompany him. It was finally agreed she should retain the girl, and he should take the boy. He returned not long after, and a controversy arose between him *120and his wife as to the custody of the girl, an infant *about twenty-three months of age. The supreme court of New York decided that the father was entitled to the child. This decision was reversed by the court of appeals of that state upon several grounds, one of which was that a child of such tender years stood in need of maternal care and attention. Afterwards, when the child had attained the age of four years and six months, the case was again brought before the supreme court, and determined in favor of the father, upon the ground that the infant could now be delivered to the father without injury. The court held that, in cases of voluntary separation between husband and wife, there must be some rule in relation to the custody of their minor children, because without one the matter will probably be determined by violence, and that which the law had established should be followed; that although the court had a discretion in the matter, it was not an arbitrary discretion; on the contrary, the father had a paramount right to the custody of his infant child which no court could disregard in the absence of some positive disqualification on his part. It was not to be presumed, without proof, that the welfare of the child would be promoted by leaving it with the mother. The law has settled the question otherwise by preferring the father. This claim could not be set aside on slight grounds, or because it was conjectured, that the interests of the child required it. The court further held that where a wife left her husband without cause, his right to the custody of the children was indubitable, and should be vindicated, from a regard to the interests of society, not less, than of the parents. See Leading Cases in Equity, Vol. II. Pt. 3, pp. 1507-1514 for numerous cases on this subject.
The same doctrines are laid down in Massachusetts in the construction of a statute similar to that of New York — Commonwealth v. Briggs, 16 Pick. R. 203 — and indeed in most of the states. See also Johnson v. Terry, *34 Conn. R. 259. See cases cited at page 1517, Vol. II, Pt. 2, Lead. Cases in Equity; Anonymous case, 4 Des. R. 94, 102.
In Carr v. Carr, 22 Gratt. 168, this court affirmed a decree of the circuit court giving to the father the custody of a female child of the age of four years, the mother having left the house of her husband without sufficient cause. Judge Bouldin, delivering the unanimous opinion of the court, said: “The conduct of the husband was far from blameless. His conduct towards his young and inexperienced wife was, in many respects, in the highest degree reprehensible. He had treated her with too little tenderness and consideration. He had been at times coarse, rude and petulant, when he should have been gentle, soothing and affectionate; but as these were not sufficient grounds to justify the wife in abandoning her home, this court would not sanction her conduct by awarding the child to her.”
In the case before us the infant is a male child four years of age — not sickly or feeble —with nothing in its condition requiring the special attention of the mother beyond that of any other infant of like age. As was said by Judge Bouldin in Carr v. Carr, “with it the tender nursing period has passed by, and the time for moral training and impressions has arrived.” The child is now in custody of its father, and was in his custody when this suit was brought. Can we take it from him and confer it upon the mother? She has failed in her application for a divorce; but she avers he is not a fit person, socially or morally, to be entrusted with its custody and nurture. Is she sustained by the proofs? Upon this, as upon all other questions, we must look to the record, and to the record alone.
The appellee lived in Culpeper for eight or ten years previous to this marriage. Evidence has been taken there as to his character. Mr. James Barbour says his *standing was as high as that of any other young man in the community. He moved among the best people in the town. His moral and social character was without reproach. He was a man of remarkable amiability and good temper; and (so far as the witness observed) without any tendencies towards .dissipation or immorality in his life or conduct. Other witnesses of the highest respectability, among them, the Honorable James G. Eield, present attorney-general, testify to the same effect. Dr. Samuel Rixey says: “His character was good —he was respected and beloved by all who knew him — I never knew a more popular man among his associates here; he was very temperate, and I never knew him to indulge in dissipation of any kind; he was Regarded as a very remarkably amiable man, and thought more like a woman than a man, in that respect.” This is the uniform testimony as to his character before his marriage. Thewitnesses at Danville speak of him after his marriage as having a very happy temperament — as cheerful, agreeable and playful in his disposition; as affectionate and warm-hearted, as refined and gentlemanly in his deportment, and as respectful, kind and considerate to his wife, and cheerfully disposed to carry out all her wishes. The evidence taken at Lynchburg is that he is a man of good temper, polite, unexceptionable in his manners and conduct — a man of firmness, not impulsive, but quiet; not addicted to any habits of dissipation. Against all this array of testimony there is not a scintilla of evidence except the specific charges of misconduct which have already been fully noticed as unsustained by the proofs.
Among all the witnesses examined in this case there is not one, except the brother and sister of the appellant, that proves the appellee ever gave her an unkind speech. They testify to sneers and taunts, and bitter complaints, but nothing more.
On the other hand, it must be conceded the evidence *shows that the appellant is a lady of very high character, socially and morally— *121beautiful in appearance — -elegant, accomplished and attractive in her manners — and possessing, in an eminent degree, all those qualities which adorn and beautify the sex. There is also evidence tending to show that she is a person of very pronounced and positive character, and when once forming an opinion, not likely to abandon it. And long before these trembles occurred, her manner towards her husband was far from respectful, treating him rather as an inferior than an equal.
It is, however, not with the appellant’s character and conduct we have to deal. She is not on trial. All the encomiums pronounced upon her may be conceded to be just. No one can justly question her devotion to her child, her anxiety for its welfare. It is the appellee who is arraigned. It is he who is on trial, whose conduct and life are the subject of investigation here. The question is not whether the appellant may be properly entrusted with the custody of the child, but whether there is anything in the conduct, habits, opinions of the appellee which will justify this court in depriving him of the custody of the child, and in conferring it upon the mother. The testimony, as exhibited in this record, is an answer to the question.
In this case all our sympathies are naturally with the appellant; but sitting here to administer the law as we find it established by the wisdom of ages, we are not permitted to indulge our personal sympathies and feelings. Tor myself, I can say I never read a record with more regret than this. I never undertook to decide a cause with half the sorrow that moves me in this. The evidence, in my judgment, shows nothing, absolutely nothing, to prevent a complete reconciliation of the parties upon terms honorable and acceptable to both of them. But this failing, *1 was inclined to the opinion that suitable provision should be made to secure access on the part of the appellant to her child. Subsequent reflection has satisfied me this cannot be done. If the application for divorce is refused, if we are satisfied that the appellant- is the chief obstacle in the way of a reconciliation, and that the appellee is, under all the circumstances, entitled to the custody of the child, it is impossible to impose terms upon him, and to say he shall be compelled to have the child, under the decree of the court, at particular places and times, to gratify the wishes and feelings of the appellant.
Another objection made to the decree of the court below is the failure to allow alimony to the wife.
Alimony is an allowance made to the wife out of the husband’s estate or income upon a decree of separation.
In England, and in some of the United States, it is a mere incident to the divorce, and is never allowed when the divorce is refused, or even upon an independent bill for separate maintenance. The reason assigned is that it is against the policy of the law to make a separate judicial provision for the wife out of the husband’s estate, to be expended apart from him, except in those cases where the separation is sanctioned by the courts.
In Virginia the statutes allow alimony as incident to a decree for a divorce. But this court has gone farther, and held that equ-ty has jurisdiction in an independent suit to decree in favor of the wife in proper cases — as, for example, when she has been abandoned by the husband, or driven from his house by ill treatment, and compelled to seek an asylum elsewhere. In Almond v. Almond, 4 Rand. 663, Judge Carr, delivering the opinion of the court, said: “Suppose the husband turns his wife out of doors, or treats her so cruelly that she cannot live with him; suppose him to persevere in refusing to take her back, or to provide a cent to feed and clothe her. Surely, in a civilized country, there must be some tribunal *to which she may resort. In such a case a court of equity would unquestionably stretch out its arms to save and protect her.”
The difficulty in the present case is that the wife has applied for a divorce, and has failed upon every ground upon which she could rely for a separate maintenance.
I do not mean to assert that there may not be cases in which the courts might refuse a divorce and yet allow alimony. But is this one of them?
If the appellee is willing to be reconciled to the wife upon terms she can properly accept, if he has not abandoned her, if his conduct has not been such as to justify her in separating from him, upon what basis or principle is she to be decreed the means of living apart from him?
It may be that the appellee, after the marriage, possessed himself of a portion of lier property, but it was done with her consent; and even though without her consent, there is nothing to show he had not the right, as husband, to reduce it into his possession. If the husband, by virtue of his marital rights, obtain the control of his wife’s property, not settled to her separate use, this court has ro power to decree its restoration because the parties refuse to live together. Until separated by judicial proceeding they are husband and wife, invested with every right and subject to every duty involved in that relation.
I am, therefore, brought to the conclusion that (his is not a case in which the court is authorized to allow alimony.
It only remains, before -concluding this opinion, to notice an objection made by appellant’s counsel to certain depositions taken by the appellee. The latter gave notice that he would take depositionsiat Culpeper Courthouse on the 25th day of May, 1877, and at Danville on the same day. An exception was made on this ground at both places, and these exceptions were overruled by the *court below. The mode of proceeding pursued by the appellee in giving such notices was, of course, very objectionable; but it is difficult to see how this court or the court below could apply a remedy. The appellant’s counsel ought, upon receiving the notices, to have elected which place they would attend; and the court would have suppressed the depositions taken at the other *122place, and the appellee would have been afforded an opportunity of re-taking the objectionable depositions. Upon this point the case of Fant v. Miller & Mayhew, 17 Gratt. 187, is a direct authority. Instead of pursuing this course, the appellant’s counsel attended at both places and cross-examined the witnesses, and thus removed all the difficulties arising out of the two notices to take depositions at different places on the same day. I.think, for this reason, there was no error in overruling the appellant’s objections.
I have thus endeavored to go over all the grounds, to discuss all the questions arising in this case. It has. been my earnest desire to avoid saying anything hurtful to the feelings of the appellant, who has my most sincere sympathies. It is proper to state that the testimony of the solitary negro witness —an old family servant — introduced by the appellee, and the letters of the appellant and her mother, have not been considered at all by me in forming the conclusions now arrived at. Although these letters, in my opinion, have no proper place in this record, I must say I do not concur in the severe denunciations of the appellee because he has thought proper to introduce them. He has certainly had great provocation. Denounced as tyrannical to his wife, charged with adultery and lewdness of conduct, with attempting to debauch his own servant, almost in the presence of his own family, with being a frequenter of bawdy-houses, it is not unnatural that the appellee has exhibited considerable temper and a spirit of retaliation.
*A11 these are the natural fruits of such a controversy. They will pass away with the occurrence which has produced them. Time and reflection, it is hoped, will satisfy both parties that their true happiness, and the comfort and welfare of the child, can only be found in that union which has the sanction and pledge of both Divine and human laws.
ANDERSON, J.
I have taken a very different view, of this case from that which has just been presented. And considering the magnitude of the interests involved, I feel it my duty to give, as fully as I can within the limits of an opinion, the facts and reasons which have brought me to my conclusions.
The defendant, who was temporarily residing in Kentucky, in the year 1866, found the plaintiff, a school-girl at a celebrated female college in that state, at the head of her class. She is represented by the testimony as unusually beautiful, and attractive in her person and manners, as amiable and affectionate in her disposition, as well educated and elegantly accomplished, and distinguished for her excellent qualities of mind and heart. She was the daughter of a widowed mother, who was eminent for her virtues. The family occupied the highest social position, and she was trained by her excellent mother to practice the duties which she owed to God and man. She is represented as being the favorite of her teachers and schbolmates, and as being universally beloved and admired in the community in which she lived. And she was in possession of an inheritance from her deceased father, which placed her above want and dependency.
Such was Miss C. Fannie Graves when the defendant, a young man of about twenty-five or twenty-six years, of handsome person and fine physique and pleasing society manners, was introduced to her as a Virginian *of good social position in his native state, and who had done his duty to his state as a Confederate soldier. He succeeded in winning her young heart, and after an engagement of about five years, they were married at her mother’s residence in Kentucky, on the 30th of September, 1873. He brought her to the city of Danville, in the state of Virginia, where they lived until about June, 1875. About that time she returned to Kentucky with her infant son LeRoy, who was bom on the 17th of August, 1874. After a. visit there, she returned to Virginia with her husband, who came for her. He brought her to his brother Wood-ville’s, in the city of Lynchburg, where they stayed about a month. He then took her to board at his father’s, whose family consisted of his wife and four grown maiden daughters. She besought her husband to select some other place for their abode, but unsuccessfully. There it was that this unhappy breach became flagrant.
In December, 1876, Mrs. Graves, mother of plaintiff, was in Lynchburg on a visit to her daughter, when she received a communication from defendant’s counsel, dated December 23d, 1876. informing her that they had been instructed by the defendant to procure a divorce or separation from his wife. They say: “We have drawn all the necessary papers looking to a divorce, but have declined to file them in court, hoping that such publicity might be avoided by some private agreement for a perpetual separation.” (Italics mine.) They say further, that they have advised their client that, upon the facts stated, and which he says he will be abundantly able to prove, the court will decree him a divorce a mensa et thoro. Their client had actually presented his bill for a divorce, and upon his exparte statement, had obtained an injunction from the judge of the hustings court restraining his wife from removing her child from the state.
Fruitless efforts were made by the counsel and friends *of the parties to effect a private adjustment; and finally, Mr. Latham, in person, broke off a negotiation with the brother of his wife by declaring to him that there never could be a reconciliation between him and his wife, and that they never could live together again as man and wife. This was on the 16th of February, 1877, and on the 21st following, without the knowledge of his wife, or notice to her of such intention, he moved off to Danville, a city near the border of the state, clandestinely carrying her infant son with him, then just two years, six months and four days old. Before leaving, he dismissed her servant maid and sold the furniture of his wife’s chamber to his *123mother, as claimed by her, including the bed upon which she slept,* and the next day caused his other effects to be sent after him. Tt is true he left a note for his wife, informing her that he would leave that day and would take Roy with him, but it was so arranged that the note was not delivered to her until after night, when he was in Danville with her baby. I will have more to say in relation to this note and this transaction.
Mrs. Latham feeling herself thus abandoned by her husband, and bereft of her darling child, as her last resort, exhibited her bill in chancery for a divorce a *mensa et thoro upon the grounds of cruelty, reasonable apprehension of bodily hurt and desertion or abandonment, and for the custody of her child. Tier bill was filed on the 26th of February, 1877, and was answered by the defendant on the 7th of March following.
Before considering the evidence in support of the allegations of the bill, it is proper that I should consider the charges made by the defendant against his wife in this most remarkable answer. In this he occupies the place of assailant; and in the investigation of these charges against the plaintiff, and of the whole case, I feel it to be my duty to strip the case as far as I can of its glosses, and to place those who have acted a part m it in their true light. I have no prejudices or predilections to indulge. The parties and nearly all of their witnesses are strangers to me; I know nothing of them except what I have learned from this record; and it would be more pleasant to throw a mantle over the faults and errors of all than to expose them, if it could be done with justice to the wronged. But the interests involved in this controversy are too great in magnitude to be passed over superficially or in palliation of offences. 1 feel that justice requires that the conduct of every one who has acted a part in this unhappy drama should be placed in its true light. Let truth cut its way.
The answer abounds in affirmative allegations of the *conduct, -character, temper and disposition, and principles of the plaintiff, which are exceedingly disgraceful and disreputable to her if true. They constitute the defendant’s indictment. The onus is upon Irm to prove them, and those which are unsupported by evidence are not entitled to the weight of a feather in the decision of this cause. Of this dc- . scription are the following:
The allegation that the plaintiff called him a liar on a particular occasion whilst they were boarding at his father’s in Lynchburg. There is no proof of this allegation. He says himself that he said to his wife that “no man, woman or child ever called him a liar before.” But he attempts to establish it by the testimony of a negro woman, which he shall hereafter notice, that she heard her call him a fool and a liar, too, at a previous time, when they were occupying rooms in Mr. Dugger’s house in Danville, thus contradicting his own declaration. Buthe admits that he threatened to “punish” his wife.
His allegation as to the cause of his removal from the house of his brother Wood-ville is not supported by any evidence in the record. But the allegation in the bill that it was occasioned by a quarrel between the brothers has some support in the testimony of Mrs James Lea.
The allegation that respondent wishing to spend a short time with his father who was about to leave home, and his little boy asking to go down with him, his wife, then in a very bad humor, ordered him to leave the child behind, but that he took the child with him, and after a little while she came down, remarkirg as she entered the room, “as you have brought the child down here you may have the pleasure of having my company also,” and at once commenced to abuse his father. She denounced him in the bitterest terms, &c. I find no proof in the record of this allegation, and it must be rejected as untrue.
*The allegation in which he under*124takes to give verbatim a conversation between his wife and his brother Woodville, which was begun by her requesting him not to speak to her child, &c., is not proved, and can receive no other weight than a sketch of fancy.
The allegation that she threatened again and again to leave him, and take her child, never to return, is unsustained by proof, and must also be rejected. The allegation that she took from her trunk and showed respondent one of these filthy and wicked publications, in which it is declared that sexual intercourse is not a necessary or proper consequence of marriage, and that she said that they were her sentiments, is not sustained by a pgrticle of proof in the record. Even in her mo.st confidential letters, written with perfect freedom from restraint, and which he has published in this record, an expression cannot be found which indicates in the slightest degree that she entertained such sentiments, or that she had any sympathy with the dogmas known as “woman’s rights,” which he ascribes to her. Fortunately for truth and justice, he was furnished us with evidence of what were her serious views on the subject of marriage, in one of her confidential letters addressed to him during their engagement of October 5th, 1870, before referred to. In that letter she says: “I have always believed that a marriage based on respect, appreciation, sympathy, and above all, devoted and abiding love, is the most sacred and grandest relation of life, and would surely be followed by happiness as complete as any we are permitted to enjoy in life. But I also think most marriages failures; and why? Because the parties entering into it are influenced by unworthy motives, and because husbands being considered superior in station to their wives, therefore being in authority, do not exercise it aright — failing in the tenderness and consideration which is their due.” She does not object to but recognizes *their position of authority, and only claims that it should be exercised with tenderness and consideration, which she rightly claims is due to the wife. Let the record show how this just claim has been respected by her husband for several months prior to the institution of this suit. With regard to their contemplated union, having said that before she knew what love was she would not have risked matrimony for his happiness regardless of her own, she says: “But now believing that such a union as ours would be, God and his angels would sanction as true, I'am willhig (not to risk it, for it could be no risk,) to be yours; to travel with you the flinty or flowery path of life, fer I know that only as your wife can joy and content be found for your ‘darling’ (a quotation), and I am satisfied ‘that you will prove to me it is not so great a humbug as I at first supposed.’ ” Again marks of quotation, implying it was a promise contained in his letter. But, alas! what a dark and sorrowful disappointment has she been dooni“d to experience in a few fleeting vears.
The allegation 1h~t he has longed for reconciliation with his wife, and that he has-' never abandoned all hope that she would see the error of her way and save him from a life of unutterable wretchedness, is eloquently expressed by the draftsman, but is not consistent with his conduct towards her, is disproved by his conduct and declarations when not employed in the pleadings; nor does it comport with the assaults upon her character in this answer.
The allegation that his wife, without his permission, when she supposed that all the family were at dinner, tried to leave the house secretly, taking the child with her, the nurse meanwhile being sent down for her dinner, is not proved. But if she had taken the child with her out on the street, the fact of her having sent for her dinner to *be taken to her room, showing that she expected soon to return, was the right of the mother without asking his permission. And his conduct in going after her and forcing the child from her on the street and bringing it back in despite of her wishes, was ungenerous and unbecoming in the extreme. It-was arbitrary, tyrannical and cruel, and was not calculated to restore the reconciliation which he professes to long for. The pretence that he was afraid she would run off with the child from the state without any prearrangement for the removal of her clothing and effects, or the child’s, which were in his power, and a guarantee against any such vain fear, cannot excuse the outrage.
The allegation that he deserted her room upon her command is not proved. I do not think there is any proof that she desired him to leave it; on the contrary, it seems that at the time of her sister’s second visit to her, on the 30th of December, 1876, the day of her arrival in Lynchburg from Covington, Kentucky, Mr. Latham had not then been ordered by his wife to leave her room, but that at that time he occupied the room with his wife; and jt would seem from what then transpired it is improbable that she would have ventured to order her husband to leave her room, or if she had, that he would have obeyed. It is improbable from what is disclosed by the testimony of Miss Lou. Graves, who I take to be, from her deposition and her whole bearing as it appears in the record, a lady in the highest sense of the word, and a lady of great self-possession, truthfulness and inte'ligence. On her arrival in Lynchburg, she says she stopped at the Lynch hotel, and sent word to her sister that she was in the city, and she came to see her. She says: "I went home with her that afternoon; she told me that she wanted to go to see Mr. Williams on business, and wished me to stay in the room with Roy while she was gone and stav all night with her. I told *her that I could not stay all night with her unless I asked Robert’s permission, for I did not care to stay in any room but her own, and I would have to ask him to give up his place.”
“Question. Please state whether or not you hear Robert Latham say anything to your sister about your staying all night; if so, what did he say?
“Answer. When she came back from Mr. Williams’ I heard the parlor door open, and *125Robert called out in a very loud and angry tone, ‘Is Lou going to stay here all night?’ She (sister) said ‘Yes. of tourse.’ He said, ‘Why of course?’ and went in and banged the door.
“Question. Upon your arrival at their house the evening above referred to, did any of his father’s family speak to you, or make their appearance; if so, who of them?
“Answer. No, I did not see any of them until my sister sent down for the baby, then Miss Mamie came up; she was the only one I saw.
“Question. Did Robert Latham present himself when you caled?
“Answer. No, I did not see him until I sent for him. When sister came up, after her return from Mr. Williams’, I asked her to go down and tell Robert that I wanted to see him a few minutes, and after a good while he came up; I asked him if he would give up his place to me that night; he said, ‘Yes, to-night.’
“Question. Do you know whether he, or any of the family, knew of your being in the house?
“Answer. I suppose they all knew it; the nurse went down to bring the baby up and to tell them that I was there; he certainly knew it, or he could not have called out to know if T was going to stay all night.
“Question. Were you at the house at supper-time; if so, were you invited to supper, or was you supper sent to your room?
*“Answer. Yes. I was there at supper-time, but was not asked to supper, nor whether I would have any sent to me. None was sent to me.
“Question. Did you stay all night; if so, when did you leave there?
“Answer. Yes, I stayed all night and left there about eight o’clock the next morning, before breakfast, and went to the Lynch house to breakfast.
“Question. Were vou invited by Robert Latham or any of his family to stay to breakfast or to return again?
“Answer. I did not see Robert again, nor any of the family, nor was 1 invited to breakast, or to return avain.
“Question. Did you pay any subsequent visits to your sister while she remained at Robert Latham’s father’s?
“Answer. Yes, I was there almost every day until 1 was shut out of the house and refused admission.”
I have deemed it proper to give the foregoing literal transcript from the deposition of this intelligent and reliable witness to show not only that Mr. Latham was not denied by his wife, at that time, access to his wife’s chamber, but that his right to it was unequivocally recognized by his wife; but also to show what was the temper and disposition of himself and his father’s family towards his wife, which is still more fully developed in the progress of the cause, as we shall see in the course of this opinion. But enough has been shown of the conduct and disposition of the wife and of the husband to repel the allegation, of which there is no proof, that he deserted her room upon her command.
His allegations thatsheis unfitto have the control and training of her child on account of her unwifely and unwomanly course and her unbridled temper, and the disparagement of her affection for her child, is not only *not proved, but is disproved by the overwhelming weight of evidence in the cause.
A very considerable part of the defendant’s answer consists of transcripts of letters written to him in strict confidence by Mrs. Graves, the mother of his wife, and which she directed him to burn, but whkh he preferred to keep in violation of her injunction, and has presumed to break the seal of cpnfidence, as he did in the case of letters written to him by the plaintiff during their engagement and before their marriage, with the confiding spirit of trustful love and innocence. I had supposed that if there was any one sentiment upon which society was agreed it was that the seal of confidence was sacred, and could not be broken without dishonor. The letters of Mrs. Graves were doubtless written upon representations made to her by defendant, in whom she then had confidence, which impressed her with fears that her daughter was to blame for the difficulties she had with her husband; and they were written to conciliate and to entreat his forbearance, in strict confidence. But it is evident that Mrs. Graves had then heard only one side, and I think this is clearly shown by the record. The love which the plaintiff had for her husband, notwithstanding her ill treatment and her desire to conceal his faults from her family, and her refined sensibility and womanly pride prevented her from communicating to her mother and sister his ill treatment of her, until it had become unsupportable and flagrant, and probably not until after she had been informed that her husband was seeking a divorce. (See Lou. Graves’ deposition.) After she had talked freely with her truthful daughter and had obtained from her a true representation of the facts, Mrs. Graves entirely changed her opinion. But these letters which the defendant had drawn from the mother he preserved, and by breach of confidence incorporated in his answer, and then offered them as evidence against his wife. But *they are not evidence against her, as was rightly held by the court below, and were improperly transcribed in his answer, and ought not to be read, and if read ought not to have the slightest influence in the decision of this cau«e.
The plaintiff charged in her bill that before they went to Danville the defendant required her to conceal her want of sympathy with his political course. She says the shock was great to her when she found, after her marriage, that her husband, whom as a girl she had admired and honored as one who had done his duty to his native state in arms, and whom she supposed to be still true, had in fact allied himself with what are known in Virginia as Radicals, &c. *126The defendant in his .answer avers that_ it is not true that the complainant was ignorant of his political relation; and he avers that before he sought the office he now holds he consulted her wishes, and she advised him to seek it, and that the second time he met with her she was a guest in the house of the most decided and out-spoken Republican in all that -section of Kentucky, then on a long visit to his daughter, the most intimate friend she ever had. This might all be so — but there is no proof of it in the r-ecord — yet it is not responsive to the allegation of the bill. The vice charged was not political, for doubtless honorable and patriotic men are Republicans; but the shock and mortification to her was to find that her husband had not been true; that he had deserted his friends with whom he had made common cause, and.with whom he had been confederated during the war, and had gone over to the enemy and joined him in waging a more cruel war against them than the war of arms whilst arms remained. _ It was the perfidy — the moral taint — which she felt attached to him, and which would likely exclude him from the best society of the state. It was the idea that *her husband was not true that caused her the shock and sense of humiliation.
And now it was, when her husband was about to introduce her at Danville into such associations, she says that he required her to conceal her want of sympathy with his course. Such would naturally have been his wish, but he denies it, and it is not susceptible of proof. But he shifts the subject and introduces another count into his indictment, and charges her with holding the principles of “woman’s rights” and “strong minded women,” and says he advised her to conceal from his mother and sisters her opinions on that subject, as it would injure her in their estimation. These are affirmative allegations, and the onus is on him to prove them; yet in this whole record there is not a syllable of evidence to be found — not even in her most confidential letters, which he has broken the seal of confidence to spread upon the record — to indicate that she ever entertained such sentiments, or a sentiment allied to them. He attempted to prove it by Mrs. Rose Allen Neal, whose love for him and hatred for his wife would not have inclined her to conceal anything that would have been to her prejudice, but wholly failed.
He charges that she refused to cultivate the good will and friendship of those who SoU^lit her acquaintance in Danville, and habitually showed, and in her letters to respondent’s family expressed, her dislike for the most intelligent and refined citizens of Danville who called to see her.
From the genial, refined and cultivated society in which she had been reared defendant transferred his beautiful, refined and elegantly accomplished wife to a society at Danville composed, in the main, of his political associates, their families, dependants and retainers: an association with which she had no sympathy, and *which want of sympathy he doubtless felt it was desirable she should conceal from his associates. And this he construes into a refusal to cultivate the good will and friendship of the most refined, and intelligent citizens .of Dan-ville. And to establish this charge he produces certain letters written by her to his mother. These letters show upon their face that they were written in confidence, with perfect freedom from restraint, often carelessly, sometimes jestingly and playfully, as one writing to a trusted friend who would be ready to overlook any indiscreet or thoughtless expression, or even erroneous sentiment, as merely the suggestion of the moment, without due consideration — the writer just dotting down her thoughts as they were suggested the moment of writing, feeling that they were communicated only to' one who appreciated her and who would be ready to make allowances for all errors and mistakes, and that what she wrote would be communicated only to the friend to whom it was confided, and would go no further. Private letters thus written by the plaintiff to the mother of her husband were preserved by her and given up to her son, who, disregarding the circumstances of confidence under which they were written, has exposed them to the public view by spreading them upon this record, and has made them evidence in this case.
And they prove not what the defendant claims — her dislike for the most intelligent and refined citizens of Danville and her refusal to -cultivate their good will and friendship — but her opinion of many of those, it may be the mass of them, whom the defendant desired to introduce to her friendly association, and whose friendship he desired her to cultivate. She is evidently a woman of penetration, and whatever her opinion of those people to whom she refers is worth, he has made it evidence. And the opinion she formed of them was so unfavorable that it is not strange that she was not disposed to' cultivate *them. This was not so with regard to all the ladies and gentlemen with whom she met in Danville. Doubtless there were many as refined and cultivated people in Danville as those in whose society she had been reared and educated; with but few of them, it would seem, she had an opportunity to cultivate an intimate association. Such were Mrs. Rice, Mrs. Carrington, Mr. Dugger and his family, Dr. and Mrs. Martin, Mrs, Gravely, and doubtless ‘ there were others; but as proved by Mr. Dugger, Mrs. Carrington, Mrs. Rice and others, she was polite and respectful to all. She would be so through respect for her husband; but whilst she was so, in her free and unrestrained correspondence with her husband’s mother, she expressed her private opinion of many of them; and she must have been impressed with a horrible idea -of their grovelling nature when she compares them to “fishing worms.” She calls them “fishing worms,” and apologizes to her mother-in-law for the use of that expression, saying! “R. (her husband) taught me that b-'d word.” It would seem from this that he had no better opinion of them *127than she had, and yet he complains that she refused to cultivate their good will and friendship. She speaks of these calls on her as having been a perfect bore.
But there were exceptions. There were many, numerous exceptions in the society of Danville, with a few of whom, in her new relation, she was thrown. And in this letter she expressly mentions Dr. Martin and his wife ,and speaks of Mrs. Martin as “charming.” We know from the record there were others with whom she was associated on the most intimate terms. One is mentioned by Miss Lou. Graves. In answer to defendant’s question, upon her cross-examination she testified that on one occasion, when her sister was on a visit to her mother, in 1875, she entered the parlor and saw they all looked a little disturbed. She asked what was the matter? *Her sister, she thinks it was, said that she had made a remark about her friend Mrs. Gravely of Danville, that she was one of the most refined ladies that she ever saw, and that Robert had said that was as much as to say his mother and sisters were not refined, and she told him that she had no reference to his mother and sisters, or to any one else; that they were not even in her mind. I think we may fairly conclude, therefore, that her visitors, to whom she refers in her letter to her mother-in-law, did not embrace the intelligent and refined citizens of Danville, but only those who were not embraced in that description, to whose association her husband had introduced her. Nor does it show that she refused to cultivate their good will and friendship, although she had no sympathy or congeniality with them. It is only her private opinion of them, expressed in a letter, not addressed to a mere acquaintance, but the mother of her husband, in whose bosom she then felt free to confide every thought and feeling of her heart, as I think the record abundantly shows. But whilst her opinion of them was so unfavorable and their calls were a bore to her. she may have felt it her duty, through respect to her husband and her own good breeding, to treat them politely and with respect; which it appears from the evidence in the cause she did.
I have now traveled over the bulk of this most remarkable answer, and there remain but few items yet to_ consider, but they will require careful consideration.
He alleges that his wife’s “temper is oftentimes so irritable and sometimes so morose and gloomy that respondent has often suspected that possibly her mind was unhinged.” If so, it should have excited his sympathy and compassion instead of a disposition to crush her and to overwhelm her with ignominy and disgrace. The evidence, however, shows that he had no ground for such an apprehension.
*But making a sudden departure from that view, he charges that “it is habitual with her to see only her own interest, utterly to disregard the rights and feelings of others, and to magnify beyond all reason any infringement of her rights, as she sees them, and any offence or slight received from others, and she prides herself on her inability to forget or forgive an injury.”
The above is a very grave charge. It is a charge of moral depravity of a heinous character. It involves a charge of uncharitableness, want of candor, injustice, dishonesty and gross malevolence. This is the first branch of this count. The second is as follows, viz: that “though she has often confessed that she was wanting in ordinary maternal affection, and has declared that she looked upon her child as a curse which Providence has inflicted upon her, yet she has insisted on the exclusive control and management of that child, declaring that respondent, as its father, had no rights in the matter, and that its management should, under no circumstances, and to no degree, be interfered with by him.” And she adds that “she not only hates her husband, but has sought to make his little child look on him as the vilest creature of the earth.” I will say at once that in my opinion, after a most thorough and careful reading and analysis of the evidence in this voluminous record, not one of these charges is sustained, and the just tribute to the character of this lady, in the opinion of the majority of the court, repels them.
_ But let us consider the evidence in relation to the first branch of this allegation. I will first examine the testimony relating to the plaintiff’s conduct and character whilst domiciled by her husband at Danville in the society to which he sought to introduce her whilst there, to which I have before alluded. And first the defendant’s depositions in support of the charge.
Mrs. Susan Allen, with whom the defendant and his *wife first boarded in Danville about four months, is a relative, and seems to be a warm personal friend and admirer of the defendant, and is his witness. Even she testifies that Mrs. Latham was “respectful” to her husband. She says: “I never saw her disrespectful, but never .saw any great display of affection.” And she discreetly adds, “that is not usual with ladies; ladies who have great affection frequently fail to show it.” Consequently, unlike Mrs. Edmonia Washington, another of defendant’s witnesses, she did not conclude they were not affectionate, because “she did not see them kiss and hug.”
_ Mrs. Allen was asked upon her examination in chief to give her opinion of plaintiff, as formed from her association with her during her stay; and she undertakes to give it upon a four months’ acquaintance, which seems not to have been at all intimate.
Most likely this hostess thought, when the young bride came to live with her, that she would be very yielding, and that she should take the direction of her and mould her to suit herself, particularly as she was the friend and relation of her husband; and she found herself disappointed. She found that the young bride had an opinion of her own and was not willing to be moulded, and acted towards her, not as an invited guest, which she was not, but as a pay-boarder *128(which she was) had a right to act. And it is not unlikely that the hostess felt, not only disappointment, but chagrin and mortification, and she concluded that she was a woman of unyielding will, great self-esteem, extremely selfish, and thinks she does not appreciate a kindness. But this, as bad as it is, does not come up to the charge. If this woman was correct in her opinion, which evidently she is not, it is not that “it is habitual with her (the plaintiff) to see only her own interest, utterly to disregard the rights and feelings of others and to magnify beyond all reason any infringement *of her rights, as she sees them, and any slight or offence received from others, and she prides herself on her inability to forget or forgive an injury.” The infamous character thus described, and ascribed to the plaintiff by the defendant, is not sustained by this witness either in the1 facts or the opinions to which she testifies. It falls far short of it. She admits that she was kind and respectful to all in her house, except in two instances which she refused to explain. And what is more to the point in this suit, she admits that she was respectful to her husband; she never saw her otherwise.
Mrs. Rose Allen Neal, a daughter of the aforesaid Mrs. Allen, who says she is a third or fourth cousin of Mr. Latham, and his friend, expresses pretty much the same opinion that her mama entertains of Mrs. Latham. She thought Mrs. Latham tyrannical and exceedingly vain. Tyrannical, because she insisted on having a tin set for her chamber, and a grate instead of a stove, anda wardrobe; and particularly because as soon as she got one she insisted upon having the others. And she thought she showed her vanity by her manners and the care she took of herself and her appearance. Is it remarkable that a young lady, and particularly a bride, should be particular in her toilet and endeavor to make a good appear- < nee?
We next come to the deposition of Mrs. Isabella Lewis, wife of assistant United States attorney for the western district of Virginia. Mr. Latham took his wife there next to board. She seems to be very much embittered against Mrs. Latham. The main causes of offence, as I can gather from her deposition, are, because Mrs. Latham required her chamber to be cleaned out neatly and thoroughly every morning, and not merely once a week on Friday mornings, and kept the ohamber-maid employed as long as it was necessary to have it well done, when she, the hostess, needed her; and moreover, because she *cut out her work in the parlor; and because, when she sent for her to call her to account for sending her a message, which she says was unladylike, though she does not tell us what it was, Mrs. Latham acknowledged that she had sent the message, and in rather plain terms told her to her face what her opinion was of her, to-wit: “that she was a perfect tyrant, and that she had not only ruled her, but every one on the lot, with a rod of iron.” That was too much for Mrs. Lewis to stand, and she formed a very unfavorable opinion of her character, but it seems not more unfavorable than Mrs. Latham had formed of her. In answer to the defendant’s seventh question-in-chief, she says: “She only made one exhibition of temper in my presence,,” which she afterwards somewhat varied. And she concluded that she was a very high-tempered woman and a very exacting woman; but she says she never saw Mrs. Latham display any temper towards her husband. This is the only point of her testimony bearing on the main issues, and yet I think if the record vindicates the character of the plaintiff from such aspersions, it is due to an injured woman that it should so appear. Her testimony, though splenetic, also falls very far short of ascribing to the plaintiff the infamous character which the defendant’s allegation imports.
Then we have the deposition of Mr. D. S. Lewis, assistant attorney of the United States for the western district of Virginia. His feelings were, of course, not very amiable towards Mrs. Latham, after learning the grievances of his wife, if there was not a deeper seated cause of ill-will in him. He could not say that he ever heard Mrs. Latham speak an unkind word to her husband, but he thought her bearing was that of a superior to an inferior, and that her expressions were sometimes contemptuous; but he refused to give any instances. From her conduct towards those in the house with her, *he considered her to be a person of high temper, though he could recall no particular facts that induced him to form that opinion. The deposition of this witness, though like the others showing strong prejudice, fails to sustain the defendant’s charge in its atrocity.
Then we have the deposition of Mary J. Waldron. She is the witness who was hunted up by C. P. Latham, clerk of the United States district and circuit courts at Danville, and brother of defendant, and who got his wife to write out her affidavit and sign her name to it. Her deposition shows that she knew nothing prejudicial to the plaintiff, whilst it shows at the same time a great disposition to say something, and a desire to conceal and cover up what she seemed to think would be prejudicial to her friend. But it really amounts to nothing, and I dismiss it with that remark.
As countervailing this testimony and proving the falsehood of this atrocious charge, we have the following testimony: Chrissy Hairston’s deposition is very conclusive as to the propriety of Mrs. Latham’s conduct to all, and her respectful and affectionate deportment towards her husband whilst they boarded at Mrs. Allen’s, which is consistent with her deportment whilst they boarded at Mr. Lewis’, and lived at Mr. Dugger’s, as proved by Mrs. Rice, Mrs. Carrington and Mr. Dugger.
Mrs. M. J- Rice had a room in Mr. Lewis’ house at the same time Mr. and Mrs. Latham boarded there, and saw a great deal *129more of them than Mr. or Mrs. Lewis. Their rooms were only separated by the hall or passage. She saw Mr. and Mrs. Latham very often every day, sometimes three or four times a day. She and Mrs. Latham were in one another’s room, off and on, all during the day, and witness was often in her room at night. And she testifies: “I never saw Mrs. Latham out of temper in my life; they, her husband and herself, were *just as kind to each other as they could be. When J heard of the difficulty between them, of their trying to get a divorce, 1 thought it was a joke, and didn’t believe it until I was told that it was so, because I never heard them speak an unkind word to one another in my life.” She says she remarked to Mrs. Harvey several times, that she thought they were a happy couple together. She visited Mrs. Latham after she left Lewis’, at Mr. Kingsley’s, and also when she kept rooms at Daniel Dugger’s.
Mrs. Ellen A. Carrington, whose high character is known to at least one member of the court, who lived in the same house in Danville with Mrs. Latham (Mr. Daniel Dugger’s) for seven months, testifies as follows: “I saw her from four to six times a day. I always found her to be a lady of the greatest delicacy and refinement of feeling, exceedingly kind and polite to every one in the house, and had the very strictest regard for the truth. I never knew her to give way to any bursts of temper on any occasion, but she was always amiable and gentle and very kind to the inmates of the house who were sick.” Both of these ladies had the best opportunities of knowing Mrs. Latham, of witnessing her deportment, and of forming a just opinion of her character. Mr. Dugger, in whose house she lived for about seven months, testifies that so far as he knows anything about it, “her conduct was that of a high-toned lady.” As to her disposition, he says: “I regarded Mrs. Latham as a lady of decided will of her own, at the same time I never saw anything in Mrs. Latham that was not in entire harmony with her husband.” He says she was regardful and considerate of the feelings and the rights of those around her, as far as he knew. He says she was pleasant and agreeable to his own family and others about her. The testimony of these highly respectable witnesses falsifies this atrocious charge, and so does the testimony of that eminent divine and excellent gentleman, *Dr. Allen Martin, whose church she regularly attended, though not a member, and to whose Bible-class she belonged, and whom he visited frequently. He tersely says: “1 regarded her as an amiable, well-principled, high-bred lady.” He saw her with her husband occasionally during his visits and at other times, and on such occasions, he says, “her conduct was wifely and lady-like.”
And such was the opinion formed of her character by the ladies of Lynchburg who became acquainted with her after her removal to that place, as appears from the testimony of Mrs. Ella H. Eord, Mrs. Eliza Boyd, Mrs. Marion C. Tyree and others. The latter says: “I will say she is not only womanly, modest and refined,' but honorable and truthful in a high degree. I have always been struck with her truthfulness.” And the estimation of her character formed by these respectable witnesses, comports with the character given her by people of highest _ standing in Kentucky, gentlemen and ladies, in the midst of whom she was reared and educated, and who knew her from infancy.
But the limits of an opinion will not allow me to do more than to compress the testimoney of these witnesses, which shall be, for the most part, in their language. The following traits of character are established by their testimony: Her truthfulness: “Her love of truth was a part of her.” “Never knew her, as a girl or a woman, to prevaricate, and she had a contempt for one who would.” “She was sound in morals, brought up by Christian parents, and was perfectly just and conscientious.” “She was a girl of strong individuality, decided in everything, nothing negative about her, high-toned, courageous and true in every respect, scorning what was mean, little or under-handed.” “Remarkable for her kindness to old persons and desirous to do all she could for their comfort;” and for “her love for children, her ^gentleness and tenderness with them. They always loved her.” “She was a favorite with her teachers and stood at the head of her class.” “tier moral and intellectual qualities were of the highest order, as were also her education and accomplishments.” In respect to her moral qualities, she was a woman of “chastity, integrity, purity, charity, justice, truth, conscientiousness, refinement, cultivation, attractiveness and right feeling toward her Creator and her fellow-man?” “A true woman, of sterling constancy and fidelity.” Just the reverse of the charges under consideration, and proves them to be false and slanderous.
“In respect to her mental qualities, she has a mind of unusual natural vigor and brilliancy, developed by careful training to well-balanced reliant action.” “She is a woman of^ independent thought, untrammelled by ignorance, superstition or prejudice, yet not erratic or unreasonable in her will, actions, or motives.” She is a woman who feels sorrow or grief keenly, though she may appear cheerful. In disposition she was affable to all, though reserved as to her personal affairs. Her character was of the highest order. She excelled in music, both vocal and instrumental; and, one of her classmates says, “in everything she undertook.” “Her personal appearance was. very striking. She was unusually beautiful;” and was in her manners and mental culture, in the language of one of her teachers, “an elegant young woman.” “She had many friends at Shelbyville, by whom she was loved and admired, and in fact by the whole community.” Such is the tribute to her lovliness of character and person and eminent virtue, by the testimony of nine witnesses, gentlemen and ladies of the highest *130standing in their state, who knew her from her childhood and who knew how she was appreciated by the people amongst whom she was born and reared. How different the portraiture they *have given of her from that infamous one drawn by the defendant, and how differently she is esteemed by these intelligent and respectable witnesses, who have known her all her life, and by Mr. and Mrs. Lewis, and Mrs. Allen, and Mrs. Rose Allen Neal, though they fell far short of proving defendant’s atrocious charge. Yet looking at her through a jaundiced medium, she appeared to them in a different light from the true light in which she appeared to all the other witnesses who have testified at Danville, Lynchburg and Kentucky. It is worthy of note that not a witness in this cause has testified in any manner to the disparagement of the plaintiff, who was not connected in some way with the defendant’s coterie of friends and political associates, unless Mrs. Edmonia Washington should be excepted.
We now come to consider the other branch of this count in the indictment. It is in substance:
I. That she has often confessed that she was “wanting in ordinary maternal affection.”
II. That “she has declared that she looked upon her child as a curse which Providence had inflicted upon her.”
III. That “she has insisted on the exclusive control and management of that child, declaring that respondent, as its father, had no rights in the matter, and that her management of it should, under no circumstances and to no degree, be interfered with by him.”
IV. That “she not only hates her husband, but has sought to make his little child look on him as the vilest creature of the earth.”
These are grave charges. We will not consider them in their exact order, but will proceed to enquire. Has the defendant sustained them by evidence? The onus is upon him. _ ■
_ To support these charges he introduces as a witness a negro woman by the name of Edmonia Washington, to *whom I have before alluded. This woman had begn employed by Mr. Latham as a cook and nurse, whilst they had rooms at Mr. Dugger’s and the conversations with Mrs. Latham, which she professes to detail, she represents occurred during the time Mr. and Mrs. Latham had rooms at Mr. Dugger’s. She represents Mrs. Latham as “sitting down, talking like anybody else in the room;” that is, as I take it. putting herself on an equality with her, and saying to her that her love for Mr. Latham was getting weaker and weaker, ' and “that she didn’t love enough to be married no how; that she ought not to have married.” She said she didn’t bring any particular charges against him, but “said she thought he loved his mother better than he did her.” ■ Some time afterwards, upon her cross-examination, in answer to the question, “Has she ever told you she thought he loved his mother more than he loved her?” she answered: “She never told me anything about that; she said once that she thought he did pay more attention to his mother and sisters than he did to her, but she never told me that he loved his mother-better than he did her.” At this point in her deposition it appears on the record, that the counsel turned to her examination-in-chief to see if she had not directly contradicted what she had testified in her direct examination, which she observing, added: “There was one time she said she thought he loved his mother and sisters better than her, and, she wanted to go to Texas,” &c., thus testifying backward and forwards. Now, it will be remembered that she professes to be detailing a conversation which took place while they lived in Dan-ville, in the house of Mr. Dugger, before they went to Lynchburg, and when they had been very little with Mr. Latham’s mother and sisters, when kindly and affectionate relations existed between them and Mrs. C. Fannie La- , thani, and she could have had no cause of jealousy, and when it is *shown by the testimony of Mrs. Rice and Mrs. Carrington that Mr. and Mrs. Latham were very happy in their married life; which is fully confirmed by the contemporanéous evidence of her letters which the defendant has spread upon the record. And the language which she attributes to her, that she didn’t love enough to be a married woman, is in conflict with the affectionate marital relations subsisting between her and her husband at that time, as abundantly proved, and about which there is no difference of opinion in the court, and also with the evidence of her devoted love to the defendant, by her constancy and devotion during their long engagement, under circumstances of great trial, and by her letters to the defendant during that period, which he has made evidence in the cause.
She says she heard her call him a fool and liar, but in this she contradicts the defendant himself, as we have seen, for long after this he says he told his wife that no man or woman ever called him a liar before, and it is contradicted by the whole testimony as to their deportment towards each other whilst they occupied rooms at Mr. Dugger’s. All her statements about the temper the plaintiff exhibited towards her husband during this period are contradicted by all the witnesses who testify as to this period, both the plaintiff’s and the defendant’s, except D. S. Lewis, and his testimony yields it no support.
She further testifies that she told her during this same period “that she did not love children as other mothers did; that she did not have that tender feeling for them like other mothers; that she loved it well enough to make clothes for it, and keep it comfortable and feed it. She said it was a curse sent upon her from the Almighty,” &c. Now, at the time this woman says these declarations were made to her by Mrs. Latham, Mrs. Rice testifies: “I never saw her treat it (her child) amiss in my life, and thought she was perfectly devoted to it. I don’t *think I ever saw a mother more devoted to a child than she was *131to hers when I saw her at Mr. Dugger’s.” Mrs. Carrington, who lived seven months with Mrs. Latham, all the time this witness was a cook and nurse for her there, says: “I saw her with him (her child) daily and constantly, and never witnessed tenderer care and devotion from any woman. And I also saw her with it when it was sick, and she nursed it untiringly. In its sickness she was extremely anxious and attentive.” Dr. Martin, her pastor, testifies that “I saw her from time to time with her child (it was during the same period); on such occasions she impressed me as a devoted mother. She appeared to me to be a mother proud and happy in her child.” And yet this unscrupulous servant-woman swears that during the period to which the testimony of these respectable ladies and Dr. Martin relates, Mrs. Latham told her that this child, which the foregoing testimony, and in fact the overwhelming weight of testimony in the cause, proves she most tenderly loved, and in which she took so much pride, “was a curse sent on her from the Almighty.” If the character of our wives or sisters or daughters are to be tested by such a witness, there would be no security to the most exalted character. And yet this is the only testimony in the record to support this allegation of the plaintiff. The allegation must have been made upon information from this witness that she would swear to it; yet she swears that she had no conversation with him. with his i father or brothers, during the two months j she was with them in Lynchburg, or before, as to what would be the character of the testimony she would give in the cause. It is incredible, as is her whole story. It is not only unsustained, but it is in conflict with the established facts in the record.
As to the specification, which I have designated as No. I in the charge, “that she had often confessed she was deficient in maternal affection,” there is not a particle' of Testimony, if we throw out the deposition of Edmonia Washington, which I feel bound to do, as utterly unworthy of credit. And there is no evidence of her having often made such confession, or at all, but the evidence is overwhelming, not only conclusively to show that she is not deficient in maternal affection, but that her maternal affection was intense and absorbing.
Miss Lou. Graves, sister of the plaintiff'— whose clear, intelligent, consistent, calm and unimpassioned testifying in this case, and her lady-like deportment under a rigorous and scrutinizing cross-examination, which was not at all times courteous, in which she sustained herself throughout, 1 confess inspires me with great confidence in her testimony, and great respect for her character — was called on to testify as to the affection of her sister for her child, and her treatment of it. She was asked to state whether her sister was regardful and anxious of the welfare of her child or otherwise. Tier answer is: “Yes, ; she has always been so. She seems to be ¡ miserable if she does not know where, he is, [ and whether he is happy and comfortable, j She has always been so since I have known j her, with her child. There was never any- ' thing which she could contribute to its com-i fort or happiness which she did not do. She ! was perfectly self-sacrificing, never thinking of her own comfort or rest, but giving ! up all to him. It was always her habit even ; to wash his flannel clothes for fear the ; wash-woman might spoil them. She always | washed and dried his hair herself, and took ; care that the water for his bath was of the | right temperature. She always took the greatest pains in cutting and fitting his clothes, so that they would be perfectly comfortable. She would never leave him by himself, and would stop anything in the j world she was at in order to play with and amuse him, often when she was too tired to do so. I would often beg her not to do it myself. *When she was at our home in Kentucky, we would often try to persuade her to leave him a day and go to places: the Cincinnati Exposition, &c. I offered, and mother offered to stay and take care of him, but she would not go unless she could take him with her.”
i j To the same effect, and with at least equal force, is the testimony of Mrs. S. Willie Lyle, Dr. J. J. Dulaney, Mrs. Belle Buckner, Mrs. Mary E. Graves, of Kentucky, and Mrs. R. L. Owen, wife of Dr. W. O. Owen, of Lynchburg, who says: “Prom little incidents I know, 1 judge she is a very affectionate mother.” And Mrs. C. M. Jordan, who testifies: “I have never seen a more tender, loving, devoted mother.” Mrs. Lyle says: “She fondled and nourished him herself; she washed and dressed him, watched him, slept with him and sat awake with him in her bed several times at night (whilst she was with her), holding him asleep in her arms, because he did not sleep well when laid on the bed” I might refer to other witnesses who testify as strongly, but it is sufficient to say that the testimony from Danville, Virginia, Kentucky and Lynchburg, abundantly shows that never was a mother more ardent in her affection and devotion to her child. He seemed to be her pride and joy and (he light of her life, and never did mother ex- , hibit a more anxious and earnest desire and purpose fully to meet her responsibilities for his right training and treatment, morally, intellectually and physically. We look in vain in this record to find any evidence that she was wanting in ordinary maternal affection, or that she had ever made such a confession, which the whole record shows is not true.
Nor is there any evidence to support the other allegations, that she insisted on the exclusive control and management of the child, declaring that his father had no rights in the matter, and that her management of it should, under no circumstances and to no degree, be interfered with by him, and that she hates her husband, and has sought to make his little child look on him as the vilest creature of the earth. We look in vain in this record for the slightest proof in support of these charges, but we find much to disprove them.
All the witnesses, both for plaintiff and defendant, who testify as to her deportment *132towards him while they lived in Danville, say they never heard her spealc an unkind word to him or of him. And after she left Danville, to spend four or five months in Kentucky, the testimony is that she invariably showed respect and affection for her husband; and after they went to Lynchburg the testimony is that when she spoke of her troubles to her friends, she spoke with leniency of her husband and sought to apologize for his conduct.
Mrs. Ella H. Ford says, that when speaking of her troubles, she would speak with leniency of her husband, and say she thought he would not have acted so if he had not been influenced by others. She says: "I never heard her speak harshly of him or reproach him.” The testimony of Mrs. Boyd and Mrs. Tyree is to the same effect. Miss Sue Matthews, one of her most intimate friends, with whom she has had regular correspondence both before and since her marriage. says “she loved him devotedly and was almost blinded to his faults. Not once in all the long years (alluding to their long engagement, I suppose), did her feelings change. She believed in him implicitly, never doubted him, but was perfectly true to him, as she was in everything else. * * * Since her marriage she has always spoken of him in the most respectful, loving manner until this unfortunate affair; and never since has she said anything unkind of him in any of her letters — not even since this suit began; but she has shown herself the true, noble, lovable woman she is under all trying circumstances.”
We come now to the consideration of the last count *in this remarkable indictment of a husband against his wife, which will disclose (without considering the influence which questions of property may have had, as indicated by the remark made by the defendant’s mother to Miss Lou. Graves, and the enquiries as to property made by the defendant of the plaintiff’s brother, and the cross-examination of Miss Lou. Graves by defendant on the question of property), the probable origin and chief cause of the cruel treatment which this unfortunate lady has received from her husband. He charges that for months before this controversy became flagrant, and, with short intervals, for long periods before, that she had refused respondent access to her bed, sometimes on one pretext and then on another, but finally on the ground of her sovereign will and resolution, never again to bear children by him. A pretty complaint for a man to make to a court of justice against his wife! If it was true, why didn’t he put her privately away and let her take her child with her? How much better, more manly and magnanimous and noble, than to come into a court of justice with this indelicate complaint on his lips against his wife. But as it has been made, indelicate and unpleasant as it is, we will have to look into it and get at the truth, if we can. Why didn’t he let his wife go and stay with her excellent mother, as she requested, and take her infant child, of such tender years, with her, and spend a few months with her in peace and quiet under the treatment of her confidential physician, and see whether all impediments to the conjugal happiness which they had previously enjoj'ed would not be removed, which I think, in the light of this record, would most probably have been the result if he had been a man to have pursued that course, and had treated his wife with that tenderness and consideration she was entitled to? But if such had not been the result, and time had shown that there was an immovable impediment *to a reunion as man and wife, as indicted by the allegation, then it would have been better, and more noble, and more just for him to have given her up, and the child too —better for him and far better for the child —than to have tortur.ed her maternal feelings as he has done, and to have exhibited towards her the coldness and indifference he has, and the ill feeling and bitterness he has, and to have come into court with such a complaint against his wife.
But what real ground has he for complaint against his wife on this score?
There is no doubt that during her visit to Kentucky in 1875 she was and had been suffering from diseases for which she was not responsible or in any manner culpable, which should have shielded her from the censure, complaint and resentment of her husband. I will only refer to the deposition of Dr. J. J. Dulaney, her distinguished and confidential physician and relative, who conclusively establishes this fact (p. 247 of the record). After describing her situation, he says he “procured for her a mechanical support, and prescribed remedies suited to her diseased condition.” It now seems that in following the prescribed remedies of her physician she incurred the complaint and censure of her husband and his bitter and cruel resentment.
“At Lynchburg, Va., in January 1877,” Dr. Dulaney says, “I last saw her, and she was at that time still feeble and debilitated; she was not suffering as much from local disease as she was in 1875, and I think she would have appeared better at that time if it had not been for the mental distress occasioned by the suit then pending between her husband and herself for divorce.” He must have referred to the suit brought by her husband against her, as this suit had not then been commenced.
Dr. W. O'. Owen, an eminent physician of Lynchburg, and relation of defendant, and his witness, concurs in *opinion with Dr. Dulaney as to the effect of such diseases, and I think, also, as to the remedy.
The doctor had said upon his direct examination: “I told her (Mrs. Latham) that she must consent to act as other married women did, and allow her husband the privileges that other husbands had. She replied that her conscience would not allow her to do it, without saying why. Her exact language was, ‘You surely can’t ask me to do a thing which is against my conscience?”’ And now plaintiff’s counsel asked him, when Mrs. Latham used this expression, might *133she not have referred to what she regarded as her duty in respect to her physical health ? To which the doctor answered, “I suppose it is susceptible of that construction, but I did not so understand it.” She had not been under Dr. Owen’s treatment, and he could express no opinion as to her diseased condition; but he did say that he noticed a change for the worse in her physical condition. But the testimony of Dr. Dulaney is conclusive on this point, and her disease existed during the whole period embraced by the defendant’s allegation, and doubtless had much influence in producing the trouble. But it appears from her reply to Dr. Owen that her refusal to take his advice was not put 011 that ground, but was made a point of conscience. And yet she could not have meant that she had moral or religious scruples on the subject of cohabitation between husband and wife; the fruit of her marriage is a standing and conclusive fact against such a conclusion. It is impossible to believe that a woman whose principles were so decided and matured 011 moral subjects could be brought suddenly to regard that as sinful which the Bible sanctioned, and which the Christian world has ever practiced, and without which the human race would become extinct. Her well balanced mind and Christian principles could never have allow her to embrace any such false and morbid notions of religious *or moral duty; and especially must we so conclude when her difficulties in conscience can be accounted for on high and honorable principles.
About the middle of December. 1876. the defendant had a bill of divorce prepared, and presented it to the judge, and obtained an injunction to restrain her from removing her child. I am of opinion that the hustings court erred in overruling the motion of plaintiff to require defendant to produce that paper and file it in the cause. It was an important act in this painful drama, and would have been evidence of the animus with which the defendant persecuted the plaintiff, and would have had an important bearing upon the merits of this controversy. But the plaintiff knew that the defendant was seeking a divorce from her. She was informed by his counsel that they were instructed by him to obtain a divorce, and that the papers had all been prepared for the purpose; and whilst they do not inform her what were the allegations of the bill, they say that they were sufficient to entitle him to a divorce. It was after this procedure by the defendant, that the conversation detailed by Dr. Owen occurred. She had then, after a long course of mal-treatment, disclosed by the evidence, been cast off by her husband, and ivas »ot recognized by him as his wife. Could she have consented to be the expectant mother of other children by him, to have them torn from her in tender infancy, as he had torn from her the child she had borne him, to be deprived of a mother’s care and training? Could she consent to be the mother of his children, when they were to be taken from her as soon as they were old enough to receive instruction, and she would not be allowed the office of a mother in inculcating in their tender minds the duties which they owe to God and man? Could she have consorted with him as his wife, whilst he held a bill of divorce over her, indicting charges against her, it may be, as infamous as. those *he made against her in his answer to her bill, which he might file in court any day. and which she was instructed by his counsel was only held up to see if they could not get for him a permanent separation by private agreement? She could not then regard him as her husband, and she might well have considered that to yield to him would be to take the place of his legalized mistress, and not of a wife. To have given him the privileges of a husband under such conditions would have been to yield her body to him for prostitution. No honorable, conscientious, virtuous and high-principled woman could ever submit to occupy such a position. This view of the case, I think, satisfactorily explains her reply to Dr. Owen, and is a complete justification of her course.
The doctor mentions also a remark she made to him long anterior to his having any knowledge of a disagreement between her and her husband. “Although.” he says, “her air was serious, I did not think the expression was one of any importance.” That is. the best interpretation of the character of her remark.
Old Mrs. Latham is also introduced by her son to testify that she declared to her just before the birth of her first child that she would never have another. From the strength of her expressions on that occasion, as detailed by the old lady, which probably have lost nothing clothed in her language, she must have felt deeply. It was. the language of passionate grief and suffering. I do not know that it is unnatural that a lady of great refinement and delicacy of feeling and innate modesty, and under great suffering, should have the feelings this lady expressed to her mother-in-law just before her accouchement with her first child. I have heard of a gentleman saying that his wife had had twelve children, and he was under the impression that she never failed to declare before the birth of each one that she never would have another.
*That no inference can be drawn from the passionate declarations made to old Mrs. Latham, that the plaintiff had any fixed or false notions on this subject, or any belief that such indulgence was immoral and irreligious, is evident from the fact that after those declarations were made, and after her accouchement, she and her husband lived a happy married life together at Danville, which the proof clearly establishes, and with regard to which there seems to be a concurrence of opinion between my brethren and myself; and in fact it is admitted by the allegation itself that even after they left Danville for short intervals the defendant was not excluded from the privileges of a husband. There is no complaint of this nature which extends back of the period of her becoming diseased, except that she would not allow the consummation of the *134marriage . until several weeks after its solemnization — until after their arrival in Maryland, which is indelicately exposed in his answer. If it is true, it only shows that his wife was not sensual, and it is not inconsistent with the modesty and refinement attributed to her by her friends. But that she yielded we must conclude, from the fact of the birth of their child in less than eleven months after their marriage.
After her visit to Kentucky, and probably before they left there, under the advice of her physician, their intercourse was more restricted, and then the ill temper and dissatisfaction of her husband began to show itself.' From these facts I think it may be fairly inferred, first, that the strong and passionate expressions made to her mother-in-law just before the birth of her child, as detailed in her deposition, were the result of her suffering and distress at the time, and cannot be construed as indicating any fixed morbid religious scruples on the subject of cohabitation between husband and wife; and,' secondly, a confirmation of the opinion before expressed, *that the ill temper of the husband and his ill treatment of his wife has been primarily and mainly caused, not excluding the influence which questions of property have had, by her restricting him in his otherwise lawful gratification; whilst there is a strong presumption from the discourteous and inhospitable treatment which his wife’s mother and sister and other friends received from members of his family, and from other circumstances disclosed by the record, that in his maltreatment of his .wife he acted not without prompting and encouragement from them.
As to defendant’s social position, I know nothing more than the record shows; but I should suppose that in Virginia society, or well-regulated society anywhere, a man could hardly occupy a high social position who would treat the mother or sister of his wife, or other ladies of refinement visiting at his house, with rudeness and insult, or who would deny the mother and sister of his wife, or his son’s wife, by an insulting letter, the privilege of visiting her at his house. Any one wishing to know more of this can read the depositions of Mrs. Tyree, Mrs. Ford, Mrs. Manson and Miss Lou. Graves, and the note of W. Latham, Sr., to Mrs. A. C. Graves, which was introduced in evidence by the defendant, remembering that the imputations he makes against Mrs. Graves and her daughter are not supported by a particle of testimony, and in the absence of such testimony, by the known character of those ladies they are repelled, and must be taken as an intentional insult.
This conduct towards the mother and sister and the lady friends of the plaintiff was with the concurrence of the defendant. They would hardly have been so treated if it was displeasing to him; in fact, in much of it he was himself an actor. I am not oblivious to the fact that several respectable witnesses of Culpeper have testified most favorably to the impressions he made on them *in his boyhood and early youth, and of the terms of eulogy in which they speak of him, and I wish there was nothing in this record to mar and deface that picture. _ I have felt it my duty in the course of this opinion to exhibit the facts. I forbear further comment.
I think the inference is plain, from all that has been said, that the defendant in arraigning his wife upon all the various charges which we have been patiently and laboriously investigating, has shown that he is utterly estranged and alienated from her; that he has no regard or love for her as his wife, but that he hates her, and would ruin her if he could,; and that in the publication of her strictly confidential letters, written to him in relations of confidence of the most delicate and most sacred character, and the private-confidential letters written by her to his mother with perfect freedom from restraint, in the confidence that she was writing to one who would not abuse her confidence and use it to her prejudice; -and in the betrayal of the confidence reposed in him by his wife’s mother, by publication of letters which she addressed to him expressly under the seal of confidence, there is no justification for defendant. He can find neither justification nor apology on the ground that his wife had unjustly charged him with the crime of adultery, and employed detectives to hunt up evidence to establish the charge. There is no evidence that she employed detectives. It was not improper for her or her friends to employ any lawful means to discover testimony to support the charge. There is no evidence that they employed unfair means. But the charge had not been made when the defendant’s answer was filed, nor when he broke the seal of confidence in publishing the letters. It was not made in her original bill. She had then not a thought or suspicion that her husband had ever been guilty of such unfaithfulness to his marriage vow. as she avers in her amended bill. And it appears *from the testimony of Eliza Patterson that she did not communicate it to the plaintiff until after she went to live with Mrs. Dawson, whan the plaintiff remarked that she had never thought of such a thing; and she says she went to live with Mrs. Dawson on the 7th of March, which is the day the defendant’s answer was filed. The charge was made in the amended bill which was filed the 4th of July, 1877, and not before. And no testimony .was given tending to implicate him until the 4th of June, 1877 — long after the defendant had made his unfounded charges against his wife in his answer, and long after the publication of the aforesaid letters. It was nearly three months after his answer was filed before the depositions were given which implicated him in the offence, and nearly four mqnths before the charge was made by plaintiff’s amended bill. And I think her counsel would have been derelict in duty if they had not advised it after what had been disclosed by the testimony of Eliza Patterson and Maurice Dawson.
A most unwarrantable attempt was made-by introducing testimony of alleged decía*135rations made by the witness, Eliza Patterson, to the mother, brothers and sisters of tile defendant, of base and profligate attempts made by the plaintiff to influence and suborn the witness in her testimony, under the specious pretext of invalidating the witness. But all such testimony was j mere hearsay, and was 'not entitled to the weight of a feather against the plaintiff. And the most of it was inadmissible for the purpose of invalidation, and the court below erred in not sustaining the exceptions taken to it by the plaintiff's counsel, and in not excluding it from the record.
This brings us to the consideration of the issue made by the amended bill. I think the testimony of Eliza Patterson and Maurice Dawson, if believed and unexplained, were sufficient to sustain the charge of adullery in a bill *for a divorce. The credibility of the former is fiercely assailed. She is a- colored girl, and at the time of the alleged overtures and solicitations of the defendant she was a servant in liis employment, but at the time her deposition was given was not in the employment of either of the parties to this suit. I think the testimony of a witness in her position ought to be received by the courts with great caution, because, in their ignorance and weakness, they are liable to be influenced improperly. The court should look to the capacity of the witness, the intrinsic character of the testimony, its reasonableness and consistency with itself and the established facts of the case, and the influences which may have been actually exerted, or which would likely have operated on the witness.
In this case the witness does not appear to be deficient in capacity, and her testimony is not unreasonable or inconsistent with itself or the established facts of the record. Old Mrs. Latham, years before, seemed to have apprehended danger, and says she warned the plaintiff against it. And about the time the witness testifies these overtures were made, with the solicitude of a mother, she felt uneasiness. She knew that her son and his wife were occupying different chambers, he having given up his place in his wife's chamber to her sister, and this mulatto girl was attending to his chamber, and she may have noticed something specially which excited her fears, and she takes the girl to task, and charges her with pregnancy when there could have been nothing visible to indicate it, as she was not. The reason she assigns — that if it were so, she did not wish the girl to be a burden on her hands — would seem to be insufficient. It would be time enough, if she were in that condition, to relieve herself of the burden after it became manifest. She most probably wished to find oul the character of the girl and to ascertain whether her son was not in *danger. And afterwards, when her son deserted his wife’s chamber, she had a bed for him in her chamber, instead of the one he had occupied before alone. And when, after the plaintiff had been informed that the defendant had caused a bill to be prepared for a divorce, which he had presented to the judge, who had granted him an injunction, which was only held in abeyance pending negotiations for a permanent separation by agreement, in preparing for her defence in said suit, a sister of defendant ascertained from Eliza Patterson that she was sent by the plaintiff to her counsel, Mr. Williams, to make a statement of what she knew and could testify in said suit in her behalf, it was soon made known to the family of the defendant, his mother, two of his brothers, Woodville and Charles, and his sisters, and it seems to have caused quite a sensation and stir amongst them; their sympathies were very much excited for the girl, who they represent to have been in great distress, and in the kindness of their hearts they catechised the plaintiff’s witness as to what she knew, and advised her as to how she might relieve herself from the difficulty; for it seems she did not wish to be a witness. Woodville says he had two interviews with her; the first some days before she went to see Mr. Williams. This was of his seeking. He says that he was at his father’s house in the evening, when some member of the family remarked that Eliza Patterson was in great distress on account of an interview she had had with Mrs. Eatham in regard to her giving testimony for her, and he sent for her to come in the parlor. And the next interview he had with her was some days after she had been to see Mr. Williams. His brother Charles had come down from Danville, and he, and one of his sisters also, had an interview with her before she went to see Mr. Williams, and he one after. The witness and Charles Latham differ as to what they advised her. She testifies that they told her to tell Mr. *Williams that what she had to say would not do Miss Fannie any good, and that it wouldn’t be worth while in him questioning her. Whether she, or he, is mistaken as to the advice given her, she seems so to have understood it, for that is the course she pursued; for she says: “After I told him that, he did not ask me but two questions, that I can remember.” I infer from the solicitude and anxiety manifested by the mother, brothers and sisters of the defendant, that they must have apprehended that she would testify to something that would be very damaging to the defendant. They probably had some intimation before that of her having said that solicitations had been made to her by the defendant, for in answer to the twenty-second question of the cross-examination, slie says the first morning he said anything to her she went straight down into the kitchen and told the cook, “Aunt Lizzie Adams;” and the second time- he said anything to her she told her again, and told no one else but her at that time. About a month or two afterwards they got another cook, and she says she was talking with her about it in the kitchen, and the little boy was up stairs over the kitchen and heard her; who, she says, always said he would tell it.
If these statements were not true, it was in the power of the defendant to have shown it by introducing the persons named by the wit*136ness to contradict her. It was not competent for the plaintiff to introduce them to support the witness, and the presumption is, that the defendant did not, because they would, if introduced, have sustained the witness. But the plaintiff had then never heard of it; she did not communicate it to her until after she had left the Lathams’ house and was boarding at Mrs. Jordan’s, and of course was seeking her testimony for no such purpose, but only to prove the treatment she had received from her husband in presence of the witness.
*But the weeping and great distress of the witness, as represented by them! Why should it have caused her so much distress to give a statement to the plaintiff’s counsel of all that the plaintiff was aware at that time that she knew, and which is contained in her deposition? It must have been caused by the dread of displeasing the defendant, in whose employment she was, and his family, that caused her such great distress, and the idea that if she gave testimony at all that she would have to expose the conduct of the defendant, of which at that time the plaintiff had not been informed, and of which she had not even a suspicion. It was very natural that it would be repulsive to her to make a publjc exposure of those matters, and more especially if she had reason to believe it would make a breach between her and Mr. Latham and his mother and sisters and brothers, as it would most likely ■do. It seems to me that it is only in this way that the distress which she manifested, as is" represented, can be accounted for. It could not be from a dread of displeasing the plaintiff if she did not testify to it; for she was aware that the plaintiff was then wholly ignorant that such interviews had occurred between her and her husband, and consequently if she had suppressed it in her testimony it could have given her no displeasure, for she was not expecting her to give such testimony. In answer to the defendant’s forty-first question, she says: “She (Mrs. Latham-) only told me to go and see Mr. Williams, and I hesitated to go, but she talked with me a while, and I consented to go. She said she thought it was very unkind in me not to go; that is all I remember.” She testifies that she did not tell Mrs. Latham until after she left her and went to live at Mrs. Dawson’s. She told her in her room at Mrs. Jordan’s. This was long after the plaintiff had left the house of her husband’s father, and after she had requested the witness to go to Mr. Williams, and in fact after the *defendant had filed his answer to her bill. And she testifies in answer to defendant’s twenty-eighth question that she told the plaintiff without her asking her anything about it- — -“she told her of her own accord,” and the plaintiff-remarked- “she never had thought of such a thing.” I am perfectly satisfied from the evidence that no improper influence was exerted by the plaintiff to induce her to give the testimony she gave, or to give any testimony, and that her testimony was given against strong influences that were brought to bear upon her from the other side. I think that the testimony of the defendant’s witnesses as to declarations made by the witness to them, as to the influence the plaintiff exerted over her to induce her to testify, is no evidence against the plaintiff, being mere hearsay, and is incredible in itself, and is contradicted by the witness when on oath; and that it was, at least nearly all of it, inadmissible even for the purpose of invalidating the witness, no proper foundation having_ been laid for its introduction; and that if it were admissible it would not show, under the circumstances, that the witness had not told the truth when she testified on oath. I am of opinion that her testimony is not inconsistent with other facts in the record, that it is consistent with itself, and seems to have been given without prejudice or partiality, and I do not feel at liberty to disregard it.
No attempt has been made to discredit Maurice Dawson, but the plaintiff has introduced a witness, J. H. Ballard, then a United States officer, by whom he proves they went together to the house of ill-fame innocently, and from no improper purpose, mistaking it for a respectable boarding house, and left it as soon as they discovered their mistake. He says he and the defendant went to this house “just before night” on a Sunday evening, “only a short while; don’t remember whether the sun was down *or not; it was not getting dark though. Dawson says it was on Sunday night between seven (then after dark) and eleven o’clock when he saw defendant with his friend, who was a stranger to him, at that house. He thinks it was nearer seven than eleven. He was, after he gave his deposition, introduced to Mr. Ballard, and afterwards testified that he did not think he was the man he saw with defendant, but was not certain, because he couldn’t see the gentleman plainly that night, had never seen him before, and did not notice him as particularly as he did the defendant. Assuming that it was. when J. H. Ballard was with him that the witness Dawson saw the defendant at the house of ill-fame, no presumption of guilt from the fact of his being seen at that house can be raised against the defendant if Ballard is credited, and so much doubt is thrown upon the other testimony offered in support of the charge by the defendant’s testimony that I think the evidence, taken altogether in support of it, is insufficient in law to establish the charge. . Having disposed of these matters, and endeavored to clear the case of what has been improperly thrown into it to prejudice the plaintiff, we are prepared to consider the grounds upon which she seeks a divorce from bed and board and the custody and nurture of her infant child by her original bill. They are the statutory grounds of cruelty, a reasonable -apprehension of bodily hurt or abandonment or desertion. The evidence is entirely satisfactory to my mind that the plaintiff is entitled to a divorce upon each and all of them.
I think the evidence shows that she has been treated with cruelty — yea, the refinement of cruelty. Her husband seems to have *137taken a mistaken view of the marital rights of himself and wife, and has failed to appreciate the conduct of his wife in its true light; and this has led him to a course of conduct towards her that is cruel and inhuman.
*It is true that it is the husband’s God-given prerogative to be the head of his family, and to be the ultimate authority in his domestic circle, and a good wife will respect his authority when exercised within proper bounds; but a woman when she marries does not surrender all her rights. It is an old common-law doctrine, that her legal rights are merged in her husband; but courts of equity and modern legislation have greatly modified the old common-law doctrine and enlarged the legal rights and equities of the wife. The wife does not lose her individuality, morally or socially. She retains her moral and human rights — her moral and religious responsibilities — her natural and moral sensibilities — her liberty of thought and freedom of speech. She is not the slave of her husband (though she is too often made such); she is morally and socially his equal. She has her rights and privileges within her sphere, which the husband cannot withhold from her except by an act of oppression. And the care and nurture and training of her children in the nursery is within her sphere, and properly belong to her peculiar province. The husband should give such assistance as he can to his wife in raising their children, and especially in supporting her authority. But surely it is not his duty or his privilege to go into the nursery and take charge of them and supersede their mother in her position of authority there. The children, and especially such as are of the tender years of this plaintiff’s child, need the constant care and watchful superintendence of the mother. This cannot be rendered by the father, who has out-door duties to perform, and hence must devolve on the mother. And there are duties which must be performed by the tender female hand; and if not performed by the mother, must be by some other female. I deny the right of the father to take the child from the mother against her consent, and to place it under the care of another woman in opposition to her wishes.
*The training and instruction of the children in early life, and during the period when their characters are being formed, properly devolves on the mother. The responsibility rests on her more than on the father, for Ihe reason that she can be always with them, whilst the father, who has his out-door duties, cannot; and the mother is usually better qualified to train and instruct her children. The maternal influence is proverbial. No man, perhaps, ever excelled in life who could not ascribe the qualities he possessed which gave him success to maternal influence. I say. then, this is the peculiar province of the mother; it is the position God placed her, and she is responsible to Him for the manner in which she discharges the duty. And the husband who interferes with her, takes her child from her, and prohibits her from having the care and training of it, if she is capable, prevents her from meeting the responsibilities which she is under to her Maker, inflicts upon her unmitigated cruelty, and incurs guilt in the sight of Heaven. Such acts are an abuse of his authority and a flagrant violation of his marital obligations.
But the wife is entitled to have her child with her for her happiness, solace and comfort. It is generally believed, I think, that the affections of a mother arc stronger than those of a father; and I believe it. What affection is stronger than a mother’s love? Whilst a father may exercise an advisory influence with the mother in the management, control and training of her children, I deny emphatically his right to take away the care and custody of the child from the mother, as in this case, and give it to his mother or sisters, or anybody, against her consent and wishes. It is an enormous wrong and cruel outrage upon the rights of the mother. Even brute beasts are allowed in general to have their young offspring with them. It is painful to separate the Lender offspring of a brute beast from its mother.
*The moral sentiment of the world looked with abhorence oil the separation of a female slave who was a mother from her offspring of tender years. Tt was not often done when slavery was sanctioned by law, though the master had the power; and when it was done, the mind of every man and woman of moral sensibility in the community where it occurred revolted and condemned it. But to tear from the bosom of a young, ardent, refined, highly cultivated, amiable, devoted mother, eminently qualified, morally and mentally, for rearing it, in defiance of her cries and entreaties, the infant child that she has borne, and to consign it to the rearing and training of the mother or sisters of the father, or any other person, is a barbarity and refinement of cru- ! city which no man has a right to inflict on his wife. I care not what precedents may be hunted up to support it — and none, I believe. can be found — 1 hold that it is opposed to all righteous law. human and divine; and I will never sanction it. It is cruelty when inflicted, which entitles a wife to be released from her obligations to her husband and to the protection of the law in her custody of her child.
That these cruelties, besides various other methods of showing his ill-will to her, have been inflicted by the defendant upon his wife, beyond all question or controversy, and I think, under circumstances of great aggravation. is abundantly shown by the testimony in this record. I regret that the limits of this opinion will not allow the recital of it. I must content myself with a reference to the depositions of Miss Lou. A. Graves, Charles A. Graves, Dr. Dulaney, Eliza Patterson, Mrs. Ford, Mrs. Tyree and Mrs. Boyd. He first takes her child from her most of the day and places it in charge of his mother and sisters, or takes it to his brother Woodville’s, but usually returns it to her in the evening, though sometimes she is not allowed to see it until the next morning. He prohibits *138*her from taking it with her in her walks for recreation, or in making calls on her friends. Soon her privileges are further restricted, and the child is taken from her also for the night, and she'is denied the privilege of folding him in her arms to sleep. Finally, her child, the pride and joy of her heart, is torn from her embraces and her sight, clandestinely and secretly, and carried to Danville, under circumstances indicating that the separation was designed to be final; and thus abandoned by her husband and bereft of her child, she is at last driven, as her last hope,, to appeal to the laws of her country for protection. If the statute is to be construed as using 'the term, cruelty, in a sense different from its use in common parlance, and implies injury to the body only (which includes the life or health), I agree with Bishop, that the more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife; and if it has been such as to injure either, to regard it as true legal cruelty. To hold absolutely that if a husband avoids positive or threatened personal violence, the wife has no protection against any means short of these, to which he may resort, and which may destroy her life or health, is to invite such an infliction by the indemnity to the wrong-doer. 1 Bish. M. & D. edition, § 732. Again: “Suppose the body is the only thing to be considered in these cases, yet if we find various avenues to it, through any one of which may run the waters to drown its-life or health, surely we cannot say that the approaches through one avenue should be left open by the law, while the others are closed.” Ib. § 733. This I hold to be sound doctrine, and it applies to the case in hand, for such cruelties as this record exhibits, must prey upon the sensitive and refined nature of the plaintiff, and undermine and destroy her health and imperil her life. * And it has been shown that her health has already been injured, by the testimony of Dr. Owen, defendant’s own witness, Dr. Dulaney, and especially Mrs. Owen. The ground of divorce for cruelty, I think, is fully established.
I am also of opinion that the' plaintiff has “reasonable apprehension of bodily hurt.” She says in her bill, so bitter and relentless is the treatment she has received, that she does not feel safe in the house, and is afraid to remain there. She has continued to remain there for the child’s sake and the fear she had of impairing her claim to him if she withdrew without the defendant’s consent. He did presume to lay violent hands upon her, and bruised her hands and arms. The bruises could be seen four days afterwards, as proved by Mrs.' Boyd. On another occasion he admits that he threatened to punish her, thereby asserting a right to punish her. The husband has no right to punish his wife. No language with which a wife might reproach her husband could justify him in inflicting punishment on her. He acknowledges without shame or apology, in his address to the court, that he did threaten to punish her, as if it were his right to do so, which he evidently claims. Before .God he promised “to love and cherish her, to honor and keep her in sickness and in health, as long as they both lived;” and yet he dares now threaten to punish her.
From this threat, acknowledged before the court in a way implying a claim of right to punish his wife, in connection with the fact of his once laying violent hands upon her, and with the temper and spirit he manifested towards her by his studied indifference, neglect, harshness, bitterness and cruelty which the evidence unfolds, I am forced to the conclusion that she had cause for her sense of insecurity, “and reasonable apprehension of bodily hurt,” if she remained with him.
But he abandoned her. In Bailey v. Bailey, 21 Gratt. *43, we held that _ “desertion is a breach of matrimonial duty, and is composed, first, of the actual breaking off of the matrimonial cohabitation; and, secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete.” In this case it is proved that there was an actual breaking off of the matrimonial cohabitation. It is proved that some time before he went off to Danville and carried her child with him. he had not only deserted his wife’s chamber and slept in another room, but tookthe child from its mother and carried it into his mother’s room to sleep with him. Here was a breaking off of matrimonial cohabitation.
The defendant, it is true, alleges that he deserted his wife’s room because she demanded it; but, as we have seen, there is no proof to sustain the allegation, or that it was at her request, or with her consent. The fact of the breaking off the matrimonial cohabitation is established; was it done by the husband with intent to abandon her? I think the fact that he wanted a perpetual separation, and had employed counsel to procure it, and had a bill and the papers necessary to procure a divorce prepared, and had declared to her brother that there never could be a reconciliation between them, and that thev never could live together again as man and wife, and a few days afterwards, without any notice to his wife, moving off to Dan-ville, and clandestinely, as shown by the deposition of Richard Jackson, the hackman, carrying her child of such a tender age with him, selling the chamber furniture used by his wife, including the bed upon which she slept, and dismissing her maid-servant, and causing his other effects, in two trunks heavily packed, to be sent after him the next day, is as conclusive as evidence could well be of his intent to abandon her; and that the note he left, to be handed to her after he was gone, and which was not delivered to her until the night after he left, and when he was in Danville, and *delivered by a stranger who refused to give his name, does not alter this conclusion.
That note is dated Lynchburg, Virginia, February 21, 1877, and is in these words: “Dr. Fannie — The condition of my business makes it necessary for me to go to Danville *139to-day. For obvious reasons I take Roy with me. I will go to my brother’s house; you may follow us to-morrow.” This was the first intimation she had of his purpose to go to Danville, as the note itself implies. He was going that day, and would take her baby with him. but four days over two and a half years old. His business requires him to go there. No intimation when, or that he ever will return to Lynchburg. He had discontinued his residence at his father’s, in the way he had been residing there, by selling out his chamber furniture to his mother, without consulting his wife, and dismissing her servant maid, and does not inform her that he had made any other agreement with his father or mother to return and resume his residence there upon a new arrangement, nor is there any evidence that he had; nor does he inform her that he had made any agreement with either of them to continue her board there, nor is there any evidence that he had; or that after breaking up the former arrangement, he had madeanynewprovision for her to remain there; or that he had provided any place asa home for her in Lynchburg. He tells her I am going to my brother’s. The same brother who had come from Danville to Lynchburg and Held a parley with her witness, to advise her what to "do; and such a parley as this record shows! He says I am going there— I have a place provided for myself — you may follow. But does not request her to do so; does not say I have provided a place there for you too, or my brother invites you to come — but you may follow to-morrow, and can look out for yourself; I have provided no place for you. *He knew when he penned that note that his wife could not follow him; that it was morally impossible that she could, under the circumstances. Ami lie didn’t want her to follow him!" If he had, he would have told her before he left that he was going to Danville, and would have requested her to go with him. He had deserted her chamber and taken her child from her before he left his father’s, and declared that there never could be a reconciliation between them, and that they never could live together again as man and wife; and had employed counsel to procure a divorce for him, or a permanent separation, and it is evident he did not wish her to follow^ him to Danville, and he had made no provision for her there, and had provided no home for her where she was. And so he left his wife, whom he was bound by the most, sacred obligations to provide for and protect, a deserted waif unoii the sea of life. There she stood alone, without a home, bereft of her darling child, deserted by her husband, surrounded by his friends — her enemies. It is, in my opinion, clearly a case of desertion and abandonment — of cruel desertion; and the note which was delivered to her the night after he left, was an aggravation of its cruelty. ¡ This case is much stronger than that put | bv Bishop, when he says: “If the husband causes to be prepared the necessary papers for a divorce, and so informs his wife, his departure in a secret and clandestine manner establishes at once a desertion.” 1 Bishop, 5th edition, § 783.
In case of a decree of divorce the court is invested with plenary power by section 12 of the statute, to determine with which of the parents the child should remain. The statute makes no provision for its care and custody in a case where there' is no decree of divorce. The statute does not in that case vest the court with authority, nor does it take it away. It is silent on that subject, and ^therefore, I maintain, leaves the court to its general jurisdiction.
But I am so firmly convinced that the | plaintiff here is entitled to a divorce from I bed and board that I will not stop to de1 bate that question now, especially as this opinion has unavoidably been extended to an unusual length.
It cannot be questioned that this lady has been subject to cruel treatment (at least as that word is understood in common parlance), humiliation and oppression. I think I have shown by a review of the testimony that the main cause of it was no fault of hers, but her misfortune. She rests now under the frown and bitter reproaches of her husband and all his family. He has made no overtures to her for reconciliation or of affection, as the husband did in the case of Kerr v. Kerr. He gives no indication of relenting, or assurance that if she returned to him she | would be treated as a wife should be. as was ¡ given by the husband in that case, but exhibits unabated indifference toward her, alienation, and positive hatred. She has been abandoned by him, and left to drift on the stormy ocean of life without a home, and bereft of her child, who has been ruthlessly torn from her bosom. If her bill should be dismissed it would be to say to her: The courts can give you no relief; you belong to your husband; you must submit to his exactions, however cruel and injurious to your health. You have no civil rights; you are his slave, and. he willing it, you must be subordinate in rank and station to his mother and sisters. Or you must surrender the child you have borne, though you feel it is a part of yourself; though you brought it into life and being in anguish and travail, and nurtured it "from your own breasts, and nursed it in sickness and in health, through day and through sleepless nights, and have raised it to its present stature and taught its little feet to walk and its tongue to *prattle —your sweetest music — though God has thrown on you the responsibility of training it, not only for this life, but for a better life to come. That duty must be discharged by others who do not love it as you do, and cannot discharge the duty as a mother can.
Such is the cruel alternative that would be presented to this “amiable, well-principled and hi<rii-bred lady” by a dismissal of her bill. What will be her decision I will not conjecture. T have ever been in favor of maintaining the marital relation on just principles, and have been opposed to granting divorces upon slight grounds; but in this case, if tlie plaintiff should be influenced by mother and sisters. Or you must surrender *140think she should be subjected to such a sacrifice. Better that they should never be reunited. A reunion thus coerced, I cannot see that it could ever result in a happy reconciliation and a happy married life. In this case the husband was the first to move for a divorce, and his conduct towards her has been such as was evidently calculated and designed to drive her from him, with the feeling, as he declared, that there could be no reconciliation, and that they never could live together again as man and wife. And under these circumstances, should she be constrained by torturing her maternal feelings to throw herself at his feet and implore his mercy to be treated by him as he lists, and to be subordinated to his coterie of friends and relatives? If it is done, I can have no hand in it. I cannot sanction it.
But if this court could recognize her strong claims to its interposition for her protection and legalize a separation from her husband, who claims the right to punish her, and has threatened her, and has abandoned her, and allow her to have the society of her child, at least for a time, during its pupilage, when it needs a mother’s watchful care and training; and she could return to her widowed mother and friends in her native state and *enjoy a little peace and quiet and the treatment of her physician, feeling once more freed from the shackles which have oppressed and crushed her, there would be a good prospect for the restoration of her health; and her husband, seeing that she was no longer in his power, might relent and repent of his ill-advised course towards his wife, and be prepared to sue for reconciliation; it is not impossible, if he has not utterly forfeited her respect and confidence, and a reunion could ever be desirable, that it might be successful upon terms that would secure to her the rank and position which a wife and mother is entitled to in the family; and on no other terms ought they ever to be reunited.
But if such should not be the result, it would be far better for the child. The evidence in1 the cause abundantly shows that the mother is eminently qualified, morally and mentally, to have the custody and training and education of her child, and no one can fill the place of a mother; and the child would be constantly under her care and supervision. But the father, circumstanced as he is, is not a fit person to have the care and training of this child. I think it was Lord Brougham’s opinion that the character of the man is formed before the child attains the age of seven years. The defendant holds a public office, which requires him to be absent from home much of his time, and often attending the courts. If he carried his child with him he could not be under his supervision. Until he is several years older, he would have to take his nurse witb him, or .employ one where he took him. And when he is old enough to dispense with a nurse he could not be with his father and under his superintendence, and would have to be let run at large if he took him with him, which would soon be his ruin.
But if his father does not take him with him he could not be in his custody; he would have to place him in the *care and custody of some woman. I conclude, therefore, that the father is not a fit person to have the custody of the child; in fact, it would be impossible that he could personally take the custody of him. He would have to place him in the custody of some woman; and I unqualifiedly assert that there is no woman on this earth who is as well qualified to have the rearing and custody of that child as his own mother. It is reduced then to a question, not between the child’s father and his mother which should have his custody, but whether his mother or some- other woman should have the custody of him. If it were a question between the mother and the father, it is palpable that it would be for the good of the child that the mother should have him. And all the authorities hold that the good of the child is the turning point. I do not understand that there could be any question as to the right of its custody between its own mother and the mother or sisters of its father, or any other woman. I must say that there is a conviction of my mind that if this dear child should be placed in the custody of his mother, and God spares his life, he will be raised up to be a useful and respectable member of society; but if taken from her, and placed in the custody of his father, there is a fearful probability that his-ruin will be the consequence.
I am of opinion, therefore, to reverse the decree of the hustings court, to decree a divorce a mensa et thoro in favor of the plaintiff, to settle her entire estate which she derived from her father upon her, and to' give to her the custody of her child, and to remand the cause for an account, to ascertain what sum would be a proper charge against the defendant, considering his circumstances, as alimony to his wife, and for the support and maintenance of the child. I therefore dissent from the opinion of the court, but am not opposed to the provision in the decree, as the bill of the plaintiff is dismissed, that the *dismissal shall be without prejudice to any right she may have to institute a suit_ in her own behalf, or on behalf of the child, for its custody.
MONCURE. P., and CHRISTIAN and BURKS. T’s, concurred in the opinion of STAPLES, J.
Decree affirmed.
N«TK by the Judge. — It is admitted in the opinion of the majority of the court that he sold the furniture of bis wife’s chamber to his mother, but it is suggested that he sold it after he went to Danville. If that is so he must have sold it on the 22d of Fcbniary* On the 21st he went to Danville. On that day he dismissed his wife’s servant-maid. The next day, the 22d, his trunks Were sent after him. The next day, the 23d, Charles A. Graves was informed by the defendant’s mother that he had sold the furniture to her. He testifies that on the 23d he went to the house of W. Latham, Senior, to remove the plaintiff’s personal effects, and he says: “I met Mrs. W. Latham at the door, to whom I stated my errand. She said Fannie had only a few things — her trunks, sewing-machine, a small stand, with perhaps some few other things; that everything else in the room Robert had sold to her, and that she had paid him the money Jor them. (Italics mine.) I mentioned a work-table (and) pair of chromos, which Robert had presented to Fannie. She stated that she had bought those things of Robert, and that I must not take them.”
I understood from the foregoing that the sale was made by the defendant to his mother before he left for Danville, and that, I think, is the fair inference. Besides, there was not time for the negotiation and sale and payment of the money between the 21st and the 23d of February — one party being in Danville and the other in Lynchburg. There was no correspondence between them in that brief interval oí time, so far as appears. If there had been the letters could have been produced. That was not pretended in the argument. But if it was after the defendant got to Dan-ville it does not help him; it only shows a more deliberate intention to break up and abandon his home in Lynchburg. It can’t be said that it was because his wife was seeking a divorce from him. She did not sue out her spa in chanceiy until the day after this claim was made to the furniture by old Mrs. Latham by purchase from the defendant, to-wit: on the 24th day of February, 1877; and her bill was not filed until the 26th. Doubtless he sold his wife’s furniture because he had deserted her chamber some time before he left for Danville, and had resolved they never could live together as maij and wife, as he had declared to her brother, a few days before he left for Danville. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481960/ | CHRISTIAN, J.,
delivered the opinion of the court.
'The main question we have to determine in this case is, whether the widow of a decedent who, in his lifetime, has failed to claim and set apart a homestead, and who dies leaving no children, and there being no creditors. *143can claim a homestead in the estate of her husband?
In the case before us. commissioners appointed for that purpose, after laying off and assigning to her one-third of the real estate of her husband as her dower, also set apart to her the remaining two-thirds, that being valued at the sum of $8,000, the amount of homestead exemption in this state. So that, according to the report of the commissioners, the whole real estate of the decedent was transferred to the widow for life, to the exclusion oí the heirs. Exceptions, however, were taken to *the report of the commissioners by the heirs of decedent, one of which (the third exception) was as follows:
“3d. And complainants further except to the assignment of homestead for the following reason: That the widow is not entitled to homestead in addition to her dower and year’s support.”
The court sustained this exception by the following decree:
“And the court sustains the third exception to the report of commissioners of assignment of homestead, the court being of opinion that the widow of a decedent who died since the present constitution of Virginia went into effect is not entitled to a homestead in the estate of her husband; whereas in this instance the decedent died owing no debts, and that while said homestead may be claimed and held as against creditors whose claims were contracted since the present constitution went into effect, in case there is no waiver of homestead in favor of said creditors. that said homestead cannot be claimed and held against heirs at law and distributees of the decedent’s estate.”
Erom this decree an appeal was allowed by one of the judges of this court.
The question we have to determine is one purelv of construction, and must be determined alone upon the true interpretation to be given to the provisions of the constitution in relation'to the homestead exemption, and the statute law passed in pursuance thereof.
Section 1, article 11, of the constitution, provides that “every householder or head of a family shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnisheeing or sale, under any execution, order or other process, issued on any demand for .any debt * * * hereafter contracted, his real and personal property, or either, including money or debts due him, whether heretofore *or hereafter acquired or contracted, to the value of not exceeding two thousand dollars, to be selected by him: provided.” &c., (and then follow; certain specified exceptions to which such exemption shall not apply, not necessary to be noticed here).
The fifth section of said article contains the following provision: “The general assembly shall, at its first session under this constitution, prescribe in what manner and on what conditions the said householder or head of a family shall thereafter set apart and hold for himself and family a homestead out of any property hereby exempted, and may, in its discretion, determine in what manner and on what condition he may thereafter hold for the benefit of himself and family such personal property as he may have, and coming within the exempti m hereby made. But this section shall not be construed as authorizing the general assembly to defeat or impair the benefits intended to be conferred by the provisions of this article.”
Section 7 declares that “the provisions of this article shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.”
I have thus quoted in full all the provisions of the constitution having reference to the subject under enquiry.
In accordance with the requirements of the fifth section above quoted, the general assembly duly proceeded, at its first session after the adoption of the constitution, to prescribe “in what manner and on what conditions the householder or head of a family should set apart and hold for the benefit of himself and family a homestead out of any property exempted.”
In doing this they went a step beyond the specific requirements of the constitutional provisions above quoted, and provided for the case of a party dying without claiming a homestead, making provision for the widow and infant children of such decedent. It is noticeable ’That the constitution, by its terms, makes no provision for the widow or infant children of a decedent who dies without having claimed a homestead. The provisions of the constitution are confined to the party himself, declaring that he “shall be entitled to hold and set apart for the benefit of himself and family” the exempted property. And it has been earnestly contended, and with much force, that it was not contemplated by the framers of the constitution that any provision should be made further than for the benefit of the party who, in his lifetime, claims and sets apart his homestead — the constitution itself making no mention of the widow and children of a decedent who, in his lifetime, has failed to claim his homestead. But I think it is clear, that while the legislature cannot impair or abridge the rights of homestead secured by the constitution, it may enlarge such rights and confer them upon a class of persons not specifically mentioned in the constitution. Indeed, this question has already been definitely settled by this court. In Hatorf v. Wellford, Judge, 27 Gratt. 356, the precise question as to constitutionality of the act which confers the right to claim a homestead upon the widow or minor children of a decedent, who had not claimed and set apart his homestead, in his lifetime, was raised and argued in that case, and this court decided in favor of the constitutionality of the act, and of the right of the widow to claim a homestead in the estate of her deceased husband. In that case, however, the claim was asserted and upheld against the claim of creditors. The question, whether *144the widow could, under the statute, claim a homestead against the heirs, where there were no creditors, did not arise, and was not decided. On the contrary, Judge Staples, delivering thé opinion of the court, said: “It has been held in Georgia and North Carolina certainly, and probably *in other states, that the object of the homestead laws is the security of the debtor and his family against the demands of the creditor, and where there are no debts the homestead cannot be held against the adult children, and the assignment does not preclude them from asserting their title to a share of the estate, citing Kemp v. Kemp, 42 Geo. 523; Hager v. Nixon, 69 N. C. 108. Upon these questions this court is not now called upon to express any opinion. It is sufficient to say that the petitioner and her children are entitled to have assigned them, and to hold exempt from levy, seizure or sale, so much of the personal estate of the father or head of the family as he himself would be entitled to select or set apart were he now living and asserting his claim to the homestead.” The only question, therefore, decided in Hatorf v. Wellford, Judge, (supra), was that the widow has the right to claim homestead for herself and minor children in the estate of her deceased husband, where he has not claimed it and set it apart in his lifetime as against the creditors of her husband. So that we have now before us, for the first time, the question, whether under the constitution and statute law of this state a widow can claim a homestead where there are no creditors against the heirs. This question, as was said in the beginning, must be determined alone upon the true construction to be given to the act of assembly and the provisions of the constitution upon which it is founded. It is to be premised that while in the petition of appeal it is assigned as one ground of error, that the court did not direct its commissioners to enquire whether there were debts due for which the real estate was liable, it was regarded as a concessum in the case, in the court below, that the decedent died owing no debts. The bill asserts that the personal estate was more than sufficient to pay any debts for which decedent was liable. This is nowhere denied, and indeed, the court, by its decree, declares that the *“decedent died owing no debts.”
This will be taken as a concession in this court, as it was in the court below.
The decedent in this case left no children. His heirs-at-law were his mother, brothers and sisters, and their descendants. Under the statute of descents and distributions, the real estate descended to these heirs, subject to the widow’s dower in one-third thereof, which was duly assigned to her. Upon the death of John Helm, his real estate immediately descended, and the title thereto became at once vested in these heirs. Was it divested and transferred for her life to the widow by virtue of the act of assembly above referred to?- Section 10 of that act provides that “if any such householder^ or head of a family shall have departed this life since the adoption of the present constitution, leaving a widow or infant children, and such homestead shall not have been selected or assigned in the lifetime of said householder, she, if remaining unmarried, or they, if she marry or die before such selection, shall be entitled to claim the same; and the court shall appoint commissioners to assign the same, in the same manner that commissioners are appointed to assign dower; and the homestead so assigned shall be held by the widow and children to the extent and on the same conditions prescribed in section 8 of this act.” Section 8 herein referred to, declares that the homestead provided in this act shall continue after his death (i. e., after the death of a decedent who has claimed and set apart the homestead during his lifetime), for the benefit of the widow and children of the deceased, until her death or marriage, and after her death or marriage for the exclusive benefit of his minor children until the youngest child becomes twenty-one years of age.
Under these provisions it is plain, when construed, as they must be, with reference to the provisions of the constitution, that the homestead which the widow may *claim after the death of her husband (who dies without having selected and set apart a homestead) is of the same character as that which the husband may have been “entitled to hold” in his lifetime; that is, a homestead held “exempt from levy, seizure, garnisheeing or .sale under any execution, order or other process issued on any demand for any debt,” &c. The claim of homestead to be asserted by the widow, under statute and the constitution, is a claim which she can only assert against the creditors of her husband, and not against his heirs. If there be no creditors, she is not entitled to claim homestead in her husband’s estate. The question, whether a widow without minor children, can claim for herself a homestead against creditors, does not arise in this case, and upon this question I express no opinion. The homestead, when claimed bv her in a proper case, as when there are creditors, must be held by her “to the extent and upon the same conditions prescribed in section 8 of the act” — that is, “for the benefit of the widow and minor children.” If there be no minor children, she cannot holdahomestead against the adult children, nor can she hold it, if there lie no children, as in this case, against the heirs of her husband. In such case she is only entitled to her dower, but not to a homestead in her husband’s estate. Any other construction of the statute would be to declare that the- statute of descents and distributions had been repealed or modified by the homestead laws. Surely the legislature never intended, by the enactment of a homestead law, to repeal or modify the statute of descents in this state, which has become sacred by its antiquity, and one of the most important and valuable enactments, affecting the rights of property in the jurisprudence of this state. We cannot give such a construction to these laws as will repeal or modify to any extent this useful and venerable statute, unless such intention plainly and unmistakably appears *by a direct repealing *145c-lause or the most necessary implication.
If we give to the homestead law the construction contended for in this case, we would give to the widow not only her dower, but the whole of the real estate of her husband, to the exclusion of his heirs. We would, in effect, declare that a law, the sole object of which is the security of the debtor and his family against the demands of the creditor, should have the effect to taking away, in many instances, the whole property of a decedent from his children and heirs, and giving the whole to his widow during her life, and of changing the whole course of descents and distribution of property which has flowed in one channel for more than a century. Such a construction can never have the assent of my judgment, or the sanction of my judicial action. I am of opinion that the claim of homestead can only be asserted by a widow against the creditors of her husband, and never against his heirs; and in the case before us that the widow is only entitled to dower and not to a homestead.
There is only one other question raised in the record necessary to be noticed. The widow had. upon her motion in the county court of Floyd county, procured the appointment of commissioners to assign her dower, and also a homestead in the real estate of her husband, and upon the report of these commissioners, the county court had transferred to her the whole real estate of her husband — one-third as dower and two-thirds as homestead. It was insisted that this was a decree of a court of competent jurisdiction, and that the circuit court could take no cognizance of the case, except by appeal from the county court.
It is sufficient to say that all the proceedings in the county court were mere nullities, and were properly so treated by the circuit court. The homestead act provides that the homestead shall be assigned to the widow in the *samc manner as dower is assigned — that is, on motion of the heirs or devisees. In this case, after a bill was filed by the heirs in the circuit court, the widow went into the county court, and. upon her motion alone, all the proceedings in the county court were had, and to these proceedings the heirs were not even made parties, and, of course, were not bound by them. Such proceedings could not in any manner affect the rights of the heirs to have the whole question adjudicated in the circuit court.
Upon the whole case, I am of opinion there is no error in the decree of the circuit court, and that the same should be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481988/ | STAPLES, J.,
delivered the opinion of the court.
The court is of opinion that the circuit court did not err in overruling the demurrers to the first and third counts of the plaintiff’s declaration. In an action for damages occasioned by the negligence or misconduct of the defendant, it is not necessary for the plaintiff to allege and prove the existence of due care and caution on his part to entitle him to recover. If the defendant relies upon contributory negligence of the plaintiff to defeat the action he must prove it, unless indeed the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the circumstances. As proof of due care is not a part of plaintiff’s case, it is of course not necessary he should aver it in his declaration. Railroad Company v. Gladmon, 15 Wall. U. S. R. 401; Shearman & Redf. on Negligence, § 43, and cases cited.
The court is further of opinion that the circuit court erred in overruling the demurrer to the second count in the declaration. Substantially, the allegation is that the defendants were possessed of certain engines and cars used and employed in carrying passengers and freight along the line of their railway in Frederick county, Va., and that on the 23d of June, 1874, the defendants conducted themselves so negligently and unskilfully in the operation of their said business as to inflict upon the plaintiff’s intestate severe bodily injuries, by reason -'whereof he died. Now, whether the plaintiff’s intestate was at the time a passenger on the train and received his injuries as such, or whether he was an employee of the company and was injured while engaged in their service, or whether he 'was a stranger crossing the track of the company’s road, or whether he was on the track at all, or in the cars, or at a station, or in what manner he was injured, the declaration does not inform us. It was impossible for the defendants to learn from this declaration the ground upon which plaintiff was proceeding. The declaration amounted to an averment simply, that the plaintiff’s intestate was injured by the negligence of the defendants in the operation of their business in using and employing their engines and cars on their railway. The object of a declaration is to set forth the facts which constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment. 1 Chitty Plead. 256; Barton’s Law Prac. p. 103. It is very true that in actions for torts it is frequently sufficient to describe the injury generally, without setting out the particulars of the defendant’s misconduct. In such cases great latitude of statement is allowed. But this rule does not justify a. general and indefinite mode of declaring, admitting of almost any proof. 1 Chitty Plead. 406, note; Jones v. Stephens, 11 Price’s R. 235; 1 Saunders on Plead, and Evidence, 510.
The learned counsel for the plaintiff insist^ that if greater particularity is required in stating the cause of action, the plaintiff is liable to be defeated on the trial by a variance between the allegations and the proofs. A declaration can, however, subserve no good purpose unless it be sufficiently specific to inform the adverse party of the ground of the complaint. If it is deficient in that particular it may as well be dispensed with altogether. *The plaintiff is presumed to have some knowledge of the facts upon which his action is founded. If he is in doubt as to the precise nature of the evidence, he may frame his declaration with different counts, varying his statements to meet every possible phase of the testimony.
The second count being defective in the particulars already mentioned, the demurrer to it ought to have been sustained.
*270The court is further of opinion that the circuit court did not err in rejecting the special pleas tendered by the defendants and set out in their first bill of exceptions. The facts stated in their pleas were covered by the general issue joined at a previous term. It was announced by the court and conceded by the counsel for the plaintiff, that the matters set -forth in the pleas could be shown under the issue joined, and they were in fact relied on before the jury. Under such circumstances it is clear the defendants could not have been in the least prejudiced by the rejection of the pleas. The circuit court very properly exercised its discretion in refusing to allow them to be filed. 1 Rob. Prac. 233.
The court is further of opinion that the circuit court erred in not setting aside the verdict and granting the defendants a new trial. The certificate of facts given by the presiding judge, shows that the plaintiff’s intestate was in the service of the defendants as manager or foreman of the hands employed in making repairs on a section or sections of the road near Newtown station; that he had been .thus employed for- several years, and -that while standing near the track of the road he was struck by one of the passenger trains. In what manner this occurred does not very clearly appear. The theory of the plaintiff’s counsel is, that the deceased being at work in repairing the track of the road, upon the approach of the train, withdrew from the track a sufficient *distance to be entirely safe, if the train had been running at its usual speed and with its usual cars. But on that day the train was running on a new schedule with greatly accelerated speed, and with a Pulman or sleeping car attached, which is much wider than the ordinary car, and that the deceased was not notified of either of these facts; that at the point where the injury occurred, there is a curve in the bed of the road, and as the train was passing around this curve the increased speed ‘of travel imparted to it a vibratory or oscillatory motion, and by reason of this motion and the greater width of the Pulman car, the deceased was struck by the iron step attached to that car.
These are mere inferences of the learned counsel, for the record contains no proof of the supposed curve in the road, or that the Pulman car was for the first time attached to the train that day, or of -the alleged vibratory motion, or the extent of it, or of the important fact that the deceased was at a sufficient distance to be secure if the train was running upon the previous schedule. This whole theory of the learned counsel is based upon the proposition that a railroad employee may nicely calculate or estimate the exact distance at which a man may stand from the railroad track when a. train is approaching, supposing the train to travel at its usual speed, and that he has the^ right to assume that this speed will not be increased without notice to him, and if without such notice it is increased, and the_ employee is thereby injured, it is such negligence in the company as entitles the party to damages, although it is manifest that the employee might avoid every injury simply by placing himself a few feet further from the track of the road.
This, it must be admitted, is reducing the calculation of escape and accident to a fractional point. When it is considered that upon many of the railroads there are hundreds and even thousands of laborers daily and hourly *employed all along the line, and not unfrequently twenty and even fifty trains a day, this proposition that a company is under obligation to give notice to each of its employees of every change of schedule, and of every alteration in the width of its coaches, involves consequences of the greatest magnitude. It is not denied that a company may be liable to an employee for an injury occasioned by a change of schedule of which the employee has no notice, provided he is without fault or negligence himself. But it is obvious to every mind, that a man who stands near enough to a railroad track to be struck by a train, if perchance there should be an increase of speed, or a change of cars, is simply guilty of the greatest imprudence and negligence.
No man is justified in placing himself near a passing train upon any such idea or presumption. It is inexcusable rashness and folly to do so. The instincts of self-preservation, the dictates of the most ordinary prudence, would suggest, and 'even require, that every person upon the approach of a train shall retire far enough to avoid injury, whatever may be the speed of the train or the width of the cars/ He must at his peril place himself where he cannot be struck by the train so long as it continues upon its track. Of course the result might be very different where the employee in remaining on or near the track is acting under the instructions of the company.
In the present case the deceased both saw and heard the train long before it reached him. It is not denied he had ample time to get out of the way. He knew, or ought to have known, the train was considerably behind its usual time that day, and was, therefore, necessarily running at- an increased speed.
O’Neil, a subordinate of the deceased, was on the same side of the road with the deceased, but separated from him by a bridge; he, upon the approach of the train, stepped five or six feet down the side of the embankment *from the track, and thus placed himself in a position of security. Cross, another employee, saw the train coming and stepped out upon an abutment of the bridge, and was unhurt. Rogers, another laborer under the deceased, had been working on the side of the track immediately opposite the place the deceased was working, had passed to the deceased’s side of the track just before the train came, and assisted hjm in raising and ramming a loose joint in the rails; he heard the train whistle at Newtown station, saw it coming and stepped immediately across the track to the side on which he had previously stood, and escaped all *271danger. The deceased, who was a superintendent, a foreman, and presumably possessed of more intelligence than the others, could have done the same thing, or he might have gone down the embankment as wes done by O’Neil. The only witness who saw him at all while the train was passing, states that at the rear platform of the rear car he saw a man apparently within a foot of the train, with his face to the train, in the act of spinning or whirling around, tumbling down the embankment.
If this be so, and it is certified as a fact in the cause, it would of itself go very far to show the grossest negligence on the part of the deceased iu remaining so near the road as to incur all the risks of injury from the passing train. Under such circumstances it is clear there can be no recovery. The rules of law governing in cases of contributory negligence are well settled. They have been very recently the subject of consideration in the case of the Baltimore & Ohio R. R. Company v. Sherman, decided at the present term. The principle of the cases is, that if tlie wrongful or negligent act of the plaintiff co-operated with the misconduct of the defendant to produce the damage,^ the action cannot be maintained. In other words, if the plaintiff through want of ordinary care has materially contributed to the injury he has sustained, *he is precluded from a recovery, although the defendant may be chargeable with negligence also. If, therefore, it should be conceded in this case that the defendants were guilty of negligence in not apprising the deceased of the change of schedule time and of the addition of the Pulman car, and that the deceased was injured by reason of the operation of these two causes, still it is plain the deceased, by the exercise of Ordinary care and prudence, such as was shown by his associates, would have sustained no injury whatever. 2 Redf. on the Raw of Railways, 244; Peirce on Amer. R. R. Law, 272.
These principles of law apply with peculiar force to employees of a railroad company, who are in a relation of privity with their principals, have every opportunity of becoming well acquainted with the business, and are presumed to know and understand something of the risks and dangers incident to that business. Prom such persons a greater degree of caution in avoiding dangers ought to be required than from passengers and others having no privity with the company and no especial acquaintance with the operations of the road. And this distinction is not only sustained by the authorities, but is founded in reason and sound policy.
Por these reasons the court is of opinion that the verdict is contrary to the law and the evidence, and the circuit court erred in not setting it aside and granting the defendants a new trial. This renders unnecessary any special consideration of the several instructions asked for by the defendants, and set out in their bills of exceptions Nos. 4 and 5. Besides, it is apparent the questions presented by these instructions are not likely to arise upon any future trial.
Plaintiff’s instruction set out in defendants’ third bill of exceptions is as follows:
“If the jury believe from the evidence that the death of Whittington was the result of a change of the usual *train from an accommodation train of moderate rate of travel to what is known as a lightning express train of a rate of travel from twenty-five to thirty-five miles per hour, and of a change of schedule of the time of running the train passing the point at which Whittington was killed, that said changes were by the chief authority of the Baltimore and Ohio Railroad Company, and that the death of said Whittington was without fault on his part, and that said company had not given notice of said changes to its employees — Whittington being one of them— so as to enable them to avoid danger, they are instructed that it was the duty of said railroad company to give such notice; and their failure to do so is the negligence of the said company, for which said company is responsible in damages.”
This instruction, in itself, is not objectionable. From what has been already said, however, upon the subject of the motion for a new trial, it has been seen that the evidence shows that the death of the plaintiff’s intestate “was not without fault on his part.” In this view it may be a question whether the facts justified an instruction of the kind; but in the language of this court in Early v. Garland’s lessee, 13 Gratt. 1, 14: “To withdraw a case from a jury by first passing upon a question of fact and then refusing the instructions because in the opinion of the court the evidence failed to prove the case assumed, would necessarily involve a confusion of the boundaries separating the province of the court from that which properly belongs to the jury. Where there is any evidence tending to make out the case supposed in an instruction, it is safest and best to give the instruction, if it propound the law correctly.” Early v. Garland’s lessee, 13 Gratt. 1, 2.
In this view it cannot be affirmed that the circuit court erred in giving the instruction, more especially as the question of negligence was peculiarly one for the consideration ot the jury. But for the reasons already *stated, the court is of opinion that the judgment of the circuit court is erroneous and must be reversed and annulled, the verdict set aside, and a new trial awarded the defendants, with liberty to the plaintiff to amend his declaration if he so desires.
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 second count in the plaintiff’s declaration is not sufficiently certain in setting forth the facts upon which the cause of action is founded, and the court therefore erred in overruling the demurrer to that count, but the said circuit court did not err in overruling *272the demurrer to the other counts of the declaration.
_ The court is further of opinion that the circuit court did not'err in giving to the jury the instruction set out in the defendants’ third bill of exceptions. The court deems it unnecessary to express any opinion upon the two instructions asked for/ by defendants and refused by the court, as it is obvious the questions presented by said instructions are not likely to arise upon any future trial.
The court is further of opinion that the said circuit court did not err in rejecting the special pleas tendered by the defendants, as the matter of said pleas was covered by the general issue, and under that issue were relied on before the jury.
The court is further of opinion that the circuit court erred in refusing to set aside the verdict and grant the defendants a new trial, for the reason that the verdict was contrary to the law and the evidence. *It is therefore considered by the court that, for the_ reasons aforesaid, the judgment of the circuit court be reversed and annulled, the verdict set aside, and a new trial awarded the defendants in copformity with the views herein expressed; and that the plaintiffs in error recover against the defendant in error their costs by them expended in the prosecution of their writ of error and supersedeas aforesaid here; and the cause is remanded to the said circuit court and leave given the plaintiff to amend his declaration, if he desires to do so; all 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/8481989/ | ANDERSON, J.,
delivered the opinion of the court.
The important question in this case is, were the witnesses. Solomon Garber, Abraham Paul and John M. Kiser, who were parties to the suit, competent to testify? At common law, being parties to the suit, they would have been incompetent for that cause; but under the statute, Code of 1873, p. 1109, ch. 173, § 31, they would not be incompetent on that ground unless they come within one of the exceptions contained in the 33d section.
If they are incompetent it must be becam e they *fall within the exception which provides that when one of the original parties to the contract, or other transaction, is dead, * * * the other party shall not be admitted to testify in his own favor, unless first called to testify on behalf of the party first named. This disqualification which renders a party to the suit incompetent, we held in Martz’s ex’or v. Marlz’s hears, 35 Gratt. 361, applies only to one who is a party to the contract or transaction, which is the subject of investigation. The appellant alleges that these witnesses were not only parties to the suit, but to the transaction to which Samuel Parent, who was deed when they testified, was also a party, and which was the subject of investigation, and that it is by reason of his alleged acts and declarations in that transaction which these witnesses were introduced to prove, that his estate is sought to be held liable. The appellant, by his counsel, excepted to the competency of each of them upon this grrund, as they were introduced to testify, before either of them had answered a question.
What was the transaction? Samuel Parent and Hugh Connell, administrators of George W. Cupp, deceased, who had reported a sale of the Dayton mill property, which they had mad", under a decree of the court, to B. E. Byerly, and which was confirmed by the court, wpp authorized to withdraw the bonds for collection, which had been returned to court with their report, and to collect them, which bonds had been executed for the balance, of the purchase money — $4,375— by two of the said witnesses, Garber and Paul, and another, jointly with the said Byerly. as Irs sureties. Byerly, after his purchase, sold the property to John M. Kiser, the oth"r witness.
These witnesses were introduced to prove that they met Byerly and Parent at the law office of A. C. Bryan in Harrisonburg, in February, 1863, to have a final settlement of these matters. The amount due from John *M. Kiser to Byerly, was to be ascertained and paid, so as to furnish Byerly with the means of paying the balance due from him and his sureties on their joint bonds to the said commissioners; until which was done, the said John M. Kiser could not get his deed. They expected to meet both commissioners, but only one of them, Samuel Parent was present. They nevertheless proceeded with the business. To attain their object, in the first place, it was necessary to have a settlement with Parent to ascertain what was the balance due upon their joint bonds. This could only be attained by the assent of Parent. This was a part of the transaction, and it was an important subject of investigation in this suit tO‘ determine how much, if anything, was due upon these bonds. The next thing was to discharge the obligations by the tender and acceptance of the Confederate money to Parent, and to get the deed. And these witnesses are offered to prove, not only the tender of the money, but the acceptance of it by Parent. This is the transaction, in part at least, to which Parent was a party and in which his estate is deeply interested, in which he participated, and without whose assent the results claimed by the appellees could not have been reached; a transaction to which the witnesses, Garber and Paul, jointly bound in the contract, were parties. And Parent, the other parly to the transaction, being now dead, and unable to testify, we are clearly of the opinion they were incompetent to testify under the statute. How is it as to the other witness, Kiser? He was not a party to the contract to which Parent was a party. Bui was he not a party to the transaction? What was his connection with it? His business there on that occasion was to have all matters finally settled, so that he could get his deed; to get that it was necessary that the whole of the bonds for the purchase money should be fully discharged. The commissioners were not authorized to make a deed until all the purchase money *was paid. But that could not be done until he paid the balance that was due from him to Byerly, so as to put him in possession of the means to pay. And that he would be unwilling to do until he was sure of the deed from the commissioners. This assurance he could only get from Parent, and in fact only in part from him, as a deed from him, unless jointly with his co-commissioner, would be of no value. At all events, whatever assurance he may have had, he must have derived from the acts and declarations of Parent in this transaction as Connell was absent; and to prove the was introdued as a witness. It was in reference to his getting a title to the property he bought from Byerly, that his business was a party with Parent. And he was directly and *274deeply interested in all that was said and dene and transacted in reference to that matter. And he is introduced to prove that upon what was said and transacted by and between Parent and the rest of them, he paid the money to Byerly, and Byerly paid it to Parent, and that the latter accepted it as a payment, and executed the deed. To the transaction, so far as the payment of the money by him, and the execution of the deed by Parent depended upon the result of it, he was a party; and he is introduced as a witness to prove the declarations of Parent and the part he acted in that transaction. And to those matters he testifies. Now, if Parent was living, he might give a different version to the transaction. Connell says he did. He might testify that he was unwilling to act definitely in the matter in the absence of his co-commissioner, but was willing jointly with him to receive the money and execute the deed;, that he was willing to sign the deed himself, but would not execute it by acknowledgment and delivery, unless his co-commissioner acted jointly with him, and that in consequence of that, the money was not paid to him, but was put in the hands of Paul, one of the obligors in the bond, to be *paid to the commissioners when they jointly executed the deed, which it was thought might probably be done that day. We do not say that if he had been alive he would have so testified as to the part he acted in that transaction. But we do say that he might have so testified; and his testimony would be supported by the fact, that the deed, though signed by him, was not acknowledged by him; that he did not hold the money; that it was in the hands of one of the joint obligors, ready to be delivered when the deed was executed, but that it never was delivered to him or his co-commissioner, but deposited in bank, not to the credit of the commissioners, or either of them, but' to the credit of the holder, Abraham Paul, where it was suffered to lie without the knowledge of the commissioners, and then withdrawn by the said Paul himself. We conclude, therefore, that it was a transaction to which John M. Kiser was also a party, and Samuel Parent being dead and unable to speak to it, the door to testify is and ought to be also closed against John M. Kiser.
The court is also of opinion that the testimony of these three witnesses being excluded, there is no sufficient testimony in the cause, without intending to indicate an opinion that it would be sufficient if it was received, to warrant the decree against the appellant, or to hold his estate, or Hugh Connell, the other commissioner, liable for the money which was placed in the hands of Abraham Paul and deposited in the bank by him to his own credit, and over which said. commissioners-have had no control, or to absolve the said B. F. Byerly and his sureties from the liability to the commissioners for the balance of the purchase money due for the Dayton mill property, the court not intending to indicate any opinion as to the question upon whom the loss of the money so deposited in the bank should fall, that question not properly *being before them; only intending to decide tha-t there is no sufficient evidence in the record to fix the liability of loss on the appellant, or the co-commissioner, or his intestate. The court is of opinion, therefore, to reverse the decree of the circuit court of the 15th day of June, 1876, and all.the subsequent decrees, with costs to the appellants; and the cause is remanded to the circuit court for further proceedings to be had therein 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 resord of the decree 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 overruling the appellant’s exceptions to the testimony of Solomon Garber, Abraham Paul and John M. Kiser, witnesses introduced by the appellees, on the ground of their incompetency to testify in this cause, and in admitting their testimony; and also in holding the estate of 'Samuel Parent liable for the money placed in the hands of Paul for the purpose of discharging the debt due from Byerly and his sureties, the said Garber and Paul and another, upon their bonds executed to Samuel Parent and Hugh Connell, administrators and commissioners, for the balance of the purchase money due for the Dayton mill property. And the court being' further of opinion that said debt has not been discharged, and that the said property is still liable for it, it is therefore decreed and ordered that the decree of the said circuit court of June 15th, 1876, and the decree subsequent thereto be reversed and annulled, and that the appellees, William L,. Mowry, sheriff*of Augusta county, and as such administrator de bonis non of Jacob C. Spitler, *deceased (out of the assets of his intestate in his hands to be administered), B. F. Byerly, Abraham Paul, Solomon Garber, Daniel Bowman, John M. Kiser and’ George Kiser, do pay to the appellant his costs by him expended in the prosecution of his appeal and supersedeas aforesaid here. And the cause is remanded to the said circuit court for further proceedings to be had therein in conformity with the views herein declared.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481990/ | ANDERSON, J.,
delivered the opinion of the court.
This is an action of debt by the holder against the maker and endorsers of a negotiable note for $2,000, *and $2.61 costs of protest, with interest thereon from the 24th of June, 1875, till payment. The defendants severally pleaded nil debit and usury, upon which issues were joined; and neither party desiring a jury, the cause was submitted to the decision of the court. And the court being of opinion that the contract sued on was usurious, and that the sum of money actually loaned by the plaintiff. was the sum of $1,745, gave judgment for the plaintiff for that amount, without interest on said sum or on said judgment, and also for the sum of $2.61, the costs of protest, with interest thereon. The plaintiff excepted to the said ruling and judgment of the court, and the case is brought here upon a writ of error and supersedeas to said judgment.
The errors assigned are — first, that the court by its judgment extended the plaintiff’s forfeiture of interest beyond the maturity of the note; secondly, that it extended the forfeiture after judgment, and indefinitely until payment.
Section 5, of chapter 122, Acts of 1874, declares that “all contracts and assurances made, directly or indirectly, for the loan or forbearance of money or other thing at a greater rate of interest than is allowed by the preceding section, shall be deemed to be for an illegal consideration as to the excess beyond the principal amount so loaned or forborne.”
The question for the court was; What is lawfully due and owing to the plaintiff? For so much he was entitled to a judgment. The principal amount loaned by him was unquestionably owing to him. For^ that there was a valuable and lawful consideration — the amount actually loaned to the borrower — and for that he was entitled to a judgment. But for the interest which had accrued on that sum, being an excess beyond the principal, which by the terms of the statute shall be deemed to be for an illegal consideration, the plaintiff was-not entitled to a "’judgment. The court is of opinion, therefore, that it was not error to disallow interest to the date of the judgment.
Was it error to disallow interest upon the judgment itself? The amount for which the judgment was rendered was not by the statute tainted with usury. According to the statute, the usury did not affect the principal sum loaned. The consideration for that (the amount loaned) was not illegal. The illegality of the consideration extended only to the excess beyond the principal sum loaned.
This section of the act of 1874, makes a radical change in the law of usury, as it existed prior to the Code of 1873. At common law the whole contract was tainted with the usury, principal and interest. And prior to the statute, as it is in the Code of 1873, when the contract was for a greater rate of interest than was lawful, the contract was declared to-be void by statute. The revisors in their report of 1846, page 714, proposed, in accordance with the English statute of 5 and 6 Will. IV,, ch. 41, § 1, instead of making the contract void, to declare that it shall, as to the excess, be deemed to be for an illegal consideration. This recommendation was not adopted at the revisal of 1849, and the contract continued to be void until the Code of 1873, when it is made void only for the interest in excess of six per centum per annum. By the act of 1874, supra,, the law was amended so as to repeal the provision which makes the contract or assurance void, and to declare only that it shall be deemed to be for an illegal consideration, as to the excess beyond the principal amount loaned or forborne. And when the judgment gives the plaintiff the principal sum loaned, without interest to the date of the judgment, it fully meets and satisfies the requirements of this section; and it is an adjudication of what is due the plaintiff at the date of the judgment. The contract "‘becomes merged in the judgment, and the plaintiff holds his debt by a higher security, a security which charges the whole real estate of his debtor. The judgment is-for a debt which is neither tainted with usury nor founded upon an illegal consideration.
As the law now is, it is eliminated from all usurious taint, and from all that was founded on any illegal consideration, and stands upon the same footing of any other debt for which there is a judgment, and is in like manner entitled to bear interest from the date of the judgment. By the 14th section of chapter 173 of Code of 1873, a verdict which does not allow interest, shall bear interest from its date, and judgment shall be rendered accordingly. The court is of opinion, therefore, that the judgment in this cause is erroneous in disallowing interest upon the debt found to be due the plaintiff from the date of the judgment. And it being an error in the judgment of the court, and not a mistake, miscalculation, or such error as could have been corrected by motion to the court which rendered the judgment under section 5 of chapter 177 of the Code, the plaintiff’s rem*276edy was by writ of error and supersedeas from this court. The court is of opinion, therefore, that there is error for this cause, for which the judgment of the circuit court should be reversed. And the court here proceeding to render such judgment as the court below should have rendered, makes the following order:
The court being of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in rendering judgment for the plaintiff for the debt found to be due, without interest upon the said judgment, it is considered that the said judgment be reversed and annulled, and that the plaintiff in error .recover his costs of the defendants in error, expended in the prosecution of his writ of error here. And this court proceeding to render such judgment as ought to have been rendered by the *court below, it is considered that the plaintiff recovered from the defendants the sum of $1,745, with interest from the 10th day of May, 1877, the date of the judgment, till payment; and the further sum of $2.61, the costs of protest, with interest thereon from the 24th day of June, 1875, till payment, and his costs expended in the prosecution of his suit in the circuit court.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481991/ | CHRISTIAN, J.,
delivered the opinion of the court.
This is a writ of error to a judgment of the- circuit court of Washington county, affirming a .judgment of the *county court of said county, convicting the prisoner of arson, and fixing the term of his imprisonment in the penitentiary at six years.
Several bills of exception were taken during the trial, but they raise only two points which this court is called upon to decide. For while there was a motion to set aside the verdict and grant a new trial, which was overrule \ it does not appear that this judgment of the court was excepted to by the prisoner, nor is there any certificate of all the facts proved, or of all the evidence heard on the trial. The bills of exceptions state only so much of the evidence as was objected to as inadmissible.
The first question we have to determine is. whether the court erred in overruling the demurrer to the indictment.
The prisoner was indicted under the 6th’ section of chapter 188, Code 1873, which provides that “if a person maliciously burn any building, the burning whereof is not punishable under any other section of this chapter, he shall, if the building with the property therein be of the value of one hundred dollars or more, be confined in the penitentiary not less than three nor more than ten years, and if it be of less value, be so confined not less than one nor more than three years; or, in the discretion of the jury, in jail not more than one year, and be fined not exceeding five hundred dollars.”
The indictment in this case charges that the prisoner “did feloniously and maliciously burn a certain barn and the property therein, said barn and the property therein being the property of one H. H. Dulaney, and situated in said county, which said barn, with the property therein, was then and there of the value of $1,500.”
The “ground alleged for the demurrer, as stated by the counsel for the petitioner, is, that “the offence is not charged with sufficient certainty, there being no allegation *that there was actually any property in said barn, and the said property in said barn is not specified, or in any way stated so as to give the petitioner any notice of what he was called upon to answer.”
The court is of opinion that this objection is not well taken, and the court did not err in overruling the demurrer.
The indictment was framed nearly in the very language of the statute. The charge was that the accused did “maliciously burn a barn, which, with the property therein, was of the value of $1,500.” The statute does not prescribe that the property in the barn shall be specified, nor its value, independent of that of the barn, shall be proved.
It only fixes- the term of imprisonment *277according to the value of the building and property therein that is burned. All this is a matter of proof. If the building and property therein contained is of the value of one hundred dollars, then the punishment is by confinement in the penitentiary not less than three nor more than ten years; if both building and contents are of less value than one hundred dollars, then the punishment is for a term of not less than one nor more than three years, &c. The prisoner was not taken by surprise in any sense when he was called upon to answer the charge of having burned a barn of H. H. Dulaney, which barn, with the property contained therein, was of the value of $1,500. It was still his privilege to show, if he could, in order to reduce the punishment, that the value of the barn and contents was less than $100, and it was legitimate for the Commonwealth to show that it was of a greater value than $100. All this was matter of evidence, and did not affect the sufficiency or validity of the indictment.
The next question we have to determine is, whether the court erred in admitting the confessions of the prisoner ’'“offered by the Commonwea'th in evidence. These confessions and the circumstances under which they were made are set out in two bills of exceptions, marked No. 2 and 3. In the first-named, as follows:
“The Commonwealth, to further maintain the issue on her part, asked the witness, H. 11. Dulaney, if the defendant had told him anything about the burning of the barn above referred to, and the witness replied that he had stated in December after said burning, in the town of Goodson, -; the defendant approached witness and told witness that he had been wanting to talk to witness and defefidant’s father, and the-•, thinking he wanted to talk to him about the barn-burning, said to defendant to be certain not to implicate himself or any one else that was not guilty, and that he (witness), without waiting to hear what defendant then had to say, procured one Hamlett the sergeant of said town, to take prisoner in charge until he (witness) could procure a warrant for his arrest; that after witness returned the defendant, in presence of witness, and a man whom said Hamlett had procured to guard the prisoner, told the witness that he (the defendant) and Jack Ross went to the barn on the night of the burning, and that said Ross struck a match and threw it on some straw and set the barn on fire; and that no notice or warning was given to the defendant at or before the making of said statement by witness or said guard. And the counsel for the prisoner thereupon objected to the introduction of said statement in evidence; and pending the argument thereof by defendant’s attorney, the witness, in answer to a question from the court to re-state his testimony, testified as follows: That Wolf told him that he and Jack Ross went there on the night the barn was burnt to burn it, and that Ross struck a match and threw it on the straw. And the defendant’s attorney insisted on his motion to exclude the whole of said statement; which motion the ’•“court overruled, and the defendant excepted. And to further maintain the issue, the attorney for the Commonwealth asked the said witness if defendant had at any time made any statement to him in regard to said burning, and if so, to state the time and circumstances under which said statements were made; and the said witness stated that after the finding of this indictment, and when the prisoner was arrested, after having escaped from -;, the witness accosted prisoner and said to him that he had been at liberty, had been loose, and that he had once told witness that he had taken part in burning the barn (referring to conversation at Good-son, referred to above), and asked him if he yet said that he had helped to burn the barn. Tn answer to which the defendant said, Jack Ross set fire to the barn, and that he (defendant) did not. but that he was there with him, and that he had denied setting the match to the barn, and that he would not own what he was not guilty of. After the said witness had detailed the said facts above, and before he gave the answer of defendant, the defendant by attorney, objected to witness answering the question asked by the attorney for the Commonwealth as to what defendant then said; which objection the court overruled, and permitted the witness to answer the question as stated, and the defendant excepted.”
The court is of opinion that the confession contained in this bill of 'exceptions, under the circumstances under which it was given, was clearly admissible evidence, and that the court did not err in permitting it to go to the jury.
The confession in this case was not made to one in authority, nor was it made in consequence of any threat made or promise held out to the prisoner. On the contrary, it was made to one not in authority, and so far from being made under threat or promise of reward, was voluntarily made to one who had a short time before said *to prisoner “to be certain not to implicate himself or any one else that was not guilty.”
The rule upon this subject was laid down by this court in the case of Smith v. Commonwealth, 10 Gratt. 734. Judge Lee, in a very able and elaborate opinion, in which he reviewed many of the English and American authorities, says (page 739): “The rule which may be fairly deduced from authoritative decisions on the subject is, that a confession may be given in evidence unless it appear that it was obtained from the party by some inducement of a worldly or temporal character, in the nature of a threat or promise of benefit, held out to him in respect of his escape from the consequences of the offence or the mitigation of the punishment by a person in authority, or with the apparent sanction of such a person.”
The doctrines of this case were reaffirmed and approved in the case of Thompson v. Commonwealth. 20 Gratt. 724.
The court is therefore of opipion, that the court did not err in admitting the confession *278of the prisoner as set forth in the second bill of exceptions.
We come now to consider the third and last bill of exceptions. The confession set out in that is as follows:
“The Commonwealth, further to maintain the issue on her part, introduced one W. M. Rutherford, and asked the said Rutherford if he was present at the examination of the defendant and Jack Ross before one Esquire Campbell; to which the witness replied that he was; and then asked the said witness if the defendant made any confession to or before said Magistrate Campbell; and upon objection being made by defendant’s counsel to the answering of said question, the court asked the witness to state the facts surrounding the said transaction, and the witness answered that he was unable to do so, and could not state anything that occurred, except that the *said magistrate asked a question, and the defendant answered it, and the court directed said Rutherford to stand aside, and called H. H. Dulaney to the stand, and told him to state the facts occurring at the time, and said witness stated that he was present at the trial until the time that Esquire Campbell was reading the warrant to the prisoners, and then went out of the room and was absent about three minutes, and when he returned the prisoners were just in the act of sitfing down; that previous to leaving the room, nothing had been said to the prisoners in relation to the charge against them, and that he did hear the prisoners asked if they were guilty or not gtiilty, and did not hear them reply; and thereupon the witness Rutherford was recalled, and stated that he was standing very close to the prisoners, and heard nothing said to them except the question of Esquire Campbell and their reply, and that said prisoners were standing up when they replied to the question of Esquire Campbell, and that there was a large crowd in the room, and he was unable to state what occurred; and then the court, on consideration, overruled the objection of the defendant, and permitted said witness to answer said question, in answer to which the witness said that the said magistrate (Campbell) asked the said prisoners if they were guilty or not guilty, and that the defendant (Wolf) answered, ‘We are guilty;’ to which ruling of the court the defendant objected, and, to save the benefit thereof, filed this his bill of exceptions, which is signed, sealed, and made a part of the record.”
The question raised by this bill of exceptions differs from the one we have just been considering only in this: Here the confession was made to a person in authority; indeed, to the magistrate before whom the prisoner, together with one jointly charged with the same offence, was being examined. But in order to exclude a confession it is not sufficient, according to the rule laid down *in Smith’s case, supra, that the confession should be simply one made to a person in authority, it must also appear that the .confession was made under inducement of a threat or promise of benefit. • If made voluntarily to a person in authority, or even to one having the prisoner in custody, it is still admissible.
In 1 Whart. Am. Cr. Law, §§ 689, 690, where a large number of cases, English and American, are collected, it is said: “A confession made to an officer who has the prisoner in custody is admissible, provided it was not induced by improper means.” And a confession is admissible although it is elicited by questions put to a prisoner by a magistrate, constable or other person; provided, of course, it is not induced by any threat or promise of benefit. The cases referred to by Mr. Wharton fully sustain the propositions laid down by him, and are settled by the great weight of authoritative decisions on the subject. See also Joy on Confessions, page 59 (marg.), section 7, and authorities cited in notes.
The evidence set forth in this bill of exceptions shows that the confession was induced by no improper means. The magistrates simply asks the prisoners, after reading the warrant to them: “Are you guilty or not guilty?” and Wolf, the prisoner whose case is now before us, answers, “We are guilty.” We think this evidence was properly admitted.
We are therefore of opinion upon the whole case, that there was no errof in the judgment of the circuit court, and that the same be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481992/ | MONCURE, P.,
delivered the opinion of the court.
This is a writ of error to a judgment in a case of misdemeanor. The plaintiff in error, William Massie, was indicted in the county court of Franklin county on the 6th day of March, 1876, for that he, “on the - day of May, 1875, at Prillman’s precinct, in the said county of Franklin, did sell by retail, wine, spirituous and malt liquors, and mixtures thereof, to be drunk in and at the place of *279sale, without having first obtained the
certificate *and a license, according to law, to keep an ordinary or a licensed eating-house at the said place of sale, against the peace and dignity of the Commonwealth ■of Virginia.” The general issue on the plea of “not guilty” was joined in the case, which was tried by a jury on the 6th day ofjune, 1877, when a verdict was rendered in these words: “We, the jury, find the defendant guilty, and assess the fine at thirty dollars.” An entry on the record in these words immediately follows the entry of the verdict: “And the defendant, by his attorney, desiring to move the court for an arrest of judgment and a new trial, judgment on said verdict is withheld.” On the next day, to-wit: the 7th of June, 1877, it is stated in the record that on “this day came,” &c., “whereupon the defendant, by his attorney, moved the court for an arrest of judgment on the verdict rendered against said defendant on yesterday, which motion being fully argued, the same is overruled; whereupon the defendant, by his attorney, tendered a bill of exceptions, which was signed, sealed and made a part of the record; and the court proceeding to render judgment on said verdict, it is considered that the Commonwealth recover against said William Massie $30, the fine by the jury in their verdict ascertained and the ■costs of this prosecution.”
The bill of exceptions states that “the prisoner moved the court to arrest the verdict rendered by the jury, because the evidence did not authorize or justify the same, and the court certifies that the proof in the cause showed that no liquor was sold by the defendant at the house where the elections are held, or in the curtilage of said house, known as the Prillman precinct; but it was proved that on said day the defendant did sell ardent spirits in the woods near the public road, at the distance of three or four hundred yards from the house at which the votes were polled in said precinct, and nowhere else so far as the proof disclosed; but the court refused to *arrest said verdict, and rendered a judgment on the same. To which opinion of the court the defendant excepts,” &c.
The defendant applied to the judge of the circuit court of said county for a writ of error to said judgment of the county court, which was refused; and then he applied to this court for such writ of error, which was allowed.
The only errors assigned in the judgment are:
“1st. It appears from the certificate of the evidence furnished by the court that no liquor was sold by the defendant at the house or in the curtilage known as Prillman’s precinct; but the only liquor proved to have been sold by the defendant was sold in the woods three or four hundred yards from said house, and your petitioner represents that it does not appear from said proof that the place in the woods at which said liquor was sold was in Prillman’s precinct at all; and,
“2d. It does not appear from the facts proved, as certified by the court, that Prillman’s precinct is in the county of Franklin, or that the place in the woods at which the liquor was proved to have been sold is in said county.”
The court is of opinion that there is no error in the said judgment on either of the said two grounds assigned as such, or any other.
In regard to the first assignment of error, it is not charged in the indictment that “liquor was sold by the defendant at the house or in the curtilage known as Prillman’s precinct,” but only that it was sold “at Prillman’s precinct in said county of Franklin.” It is said in this assignment of error, that “the only liquor proved to have been sold by the defendant was sold in the woods three or four hundred yards from said house,” and “it does not appear from said proof that the place in the woods at which said liquor was sold was in Prillman’s precinct at all.” A conclusive answer to this objection *is, that the bill of exceptions does not set out, nor profess to set out, all the facts proved or evidence introduced on the trial. Non con-stat that it was not, and the presumption is that it was, proved on the trial that the place in the woods at which said liquor was sold was in Prillman’s precinct.
In regard to the second assignment of error, it is also a conclusive answer to it that the bill of exceptions does not set out. nor profess to set out. all the facts proved or evidence introduced on the trial. Non constat that it was not, and the presumption is that it was, proved on the trial, that Prillman’s precinct, and also the place in. the woods at which the liquor was proved to have been sold, are in said county.
The court is therefore of opinion that the said judgment ought to be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481994/ | ANDERSON, J.,
dissented. He thought a new trial should be granted. That being refused, he concurred in recommending the prisoner to the mercy of the governor.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that though the judges thereof would probably have given a verdict of not guilty in the case if they had been the jury, or set itsidk the verdict which was rendered if they had presided at the trial, yet there is nq error in the judgment for which it can properly be reversed. Therefore, it is considered that the said judgment be affirmed; which is ordered to be certified to the county court of King William county.
*But the court is unanimously of opinion that the case is a proper one for the exercise of executive clemency, and therefore respectfully recommend that a *284pardon be granted to the accused for the offence of which he has been convicted as aforesaid, and it is ordered that a copy of this recommendation and of the above judgment be certified to his excellency, the governor of the Commonwealth, and that a printed copy of the record in the case be also sent to him.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481996/ | ANDERSON, J.,
delivered the opinion and decrees of the court.
This day came again the parties, by their counsel, and the court, having maturely considered the transcript of the record oí the decree aforesaid and the argument of counsel, is of opinion as follows, to wit:
It appears from the decree of March, 1877, that all the debts of the company, except a trifling amount, have been paid, and that the balance in the hands of the receiver, or his attorney, will be sufficient to pay the same, together with any costs or expenses incurred by the special receiver in the discharge of his duties; consequently the further collection required to be made are for distribution amongst the stockholders as they may be severally entitled, which should have been ascertained before further collections were ordered to be made.
It also appears from the report of Master Commissioner L. N. Huck. filed October 15th, 1875, to which there was no exception, and which was subsequently confirmed by *the court, that the available assets consists of certain notes and obligations given by the stockholders for their unpaid subscriptions of stock, and that there are no other available assets, and it would seem inequitable that those who are in arrear should be required to pay up in good money to create a fund for distribution upon terms of equality amongst those stockholders who paid their subscription in Confederate money, which was greatly depreciated. There are three classes of stockholders: 1st, those who have paid up their stock, in whole or in part, before the war in good money; 2d, those who have paid up, in whole or in part, during the war in Confederate money; 3d, those who, at the end of the war, had paid nothing.
Upon what principal shall the stockholders’ accounts be settled, the amount of assets for distribution be ascertained, and division be made amongst them?
The court is of opinion that in the statement of the account of the stockholders with the company and ascertaining the assets, we cannot disregard payments that have been made in Confederate money.
These must stand, and the stockholder must be credited by his payments in Confederate money, without abatement. But in the statement of the account between the stockholders to ascertain what dividend each one shall be entitled to in the distribution of the assets, the payment of stock in Confederate money, whether in whole or in part of the shares, since the 1st of January, 1862. should be scaled as of the date of paymentj and each stockholder shall receive his dividend of the assets in the proportion of his input thus ascertained.
The sum to be divided will be the aggregate of balances due from the stockholders severally, thus ascertained, including any funds in the hands of the court,_ in which each one will be entitled to share in propor*94tlon to his input, ascertained as hereinbefore indicated.
By this mode of stating the account, each stockholder *gets a dividend in the precise proportion of his actual input, rating the Confederate money at its value when paid.
The stockholders being- parties to the suit — and if any of them are not they should be made parties — accounts should be ordered and taken preparatory to the division upon the principal hereinbefore declared, and the Stockholders in arrear should not be required to pay until the accounts are taken and the dividend of each stockholder ascertained.
Each stockholder in arrear should then be credited with his dividend, and be ordered to pay into the hands of the receiver the balance due on his stock, to be divided amongst the other stockholders in the proportion of their respective dividends.
Upon this plan and mode of procedure, the whole matter in controversy can be finally adjusted in this suit more to the advantage of all parties concerned and in accordance with justice, than by the institution of separate actions, at law against the stockholders, which is unnecessary and would not be proper or allowable under the circumstances; a court of equity being the proper forum for the adjudication and settlement of the matters in dispute between the parties.
The court is, therefore, of .opinion and doth decree and order that the decree of the 37th day of March, 1877, and the decree on which it is founded, or which it revives and puts in operation, so far as they require a further collection of money from Stockholders on stock account, or is in toy other respect inconsistent with this opinion and- order, be reversed and annulled, and that the appellees pay t'o the appellants their costs expended in the prosecution of their appeal here.
And this cause is remanded to the circuit court of Frederick county to be further proceeded with, in- conformity with the principles herein declared, in order to final decree.
All of which is ordered to be to the said circuit court of Frederick county.
#And again, on the 10th of October, 1879, on motion, the decree pronounced
in this cause during the- present term on the 2d inst., requiring the appellees to pay the costs incurred by the appellants in the prosecution of their appeal here, is modified So as to except from the appellees so liable the appellees Conway Robinson, J. L. Bacon the Virginia State Insurance Company, Wm. L. Brent, secretary; Wm. Byrd, special receiver; The Insurance Company of the Valley of Virginia, Richard R. Brown; Hugh Sidwell’s personal representative and Richard Sidwell’s administrator — it appearing to the court that the reversal of the decree of the court below is not to their prejudice.
Which is ordered to be to said circuit court of Frederick county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481997/ | CHRISTIAN, J.,
delivered the opinion of the court.
This case is before us on appeal from a decree of the chancery court of the city of Richmond.
*As the case is presented by the record before us, we are not required to pass upon the merits of the controversy.
The only question we have to determine is, whether the chancery court erred in abating the attachment sued out by the appellants (the attaching creditors) against the appellee, the “Universal Life Insurance Company.”
This question, elaborately and ably argued by the counsel on both sides, is, we think, on examination of the record, a very narrow one-It is simply this — whether the Universal Life Insurance Company, a company incorporated by the state of New York, but doing business in this state, and complying with the requisitions of the statutes of this state respecting foreign insurance companies, is liable to suit in foreign attachment.
The solution of this question depends upon the further and sole question whether, in view of our statutes authorizing such companies to transact business in this state, they are to be regarded as residents of this state within the meaning of the foreign attachment laws.
If the appellee was, at the time of suing out the attachments in this case, resident in the state of Virginia, then the chancery court abated the attachment.
Tf, on the contrary, the appellee was nonresident of this state, it was error in the chancery court to abate the attachments sued out by the appellants.
Nothing is better established by all the cases and textwriters on the subject of corporations, than that a corporation can have no legal existence outside of the boundaries of the sovereignty by which it was created. While it may, by its agents, transact business anywhere, unless prohibited by its charter or prevented by local laws, it can have no residence or citizenship except where it is located by or under the authority of its charter. As was said by Chief Justice Taney, in Bank of Augusta v. Earle, 13 Peters’ R. 519, “It exists by force of the law (creating it), and where that ceases to operate, the corporation can have *no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty.” In ex parte Schollenberger, 6 Otto, 377, Chief Justice Waite said, “A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter, but it may, by its agents, transact business anywhere, unless prohibited by its charter or excluded by local laws.”
In Drake on Attachments (3d ed.), § 80, the proposition is stated, on abundant authority, as follows: “The foreign character of a corporation is not to be determined by the place where its business is transacted, or (even) where the corporators reside, but by the place where its charter was granted. With reference to inhabitancy, it is considered as an inhabitant of the state in which it was incorporated.”
These general principles, respecting the residency or inhabitancy of corporations, cannot be denied or questioned.
But it is earnestly contended, with much ingenuity by the learned counsel for the appellee, that the case before us is taken out of the operation of these acknowledged rules of law applicable to corporations generally, by the provisions of our statutes respecting foreign insurance companies doing business in this state, and the decisions of this court construing such statutes. It is necessary, therefore, to refer to the statutes of this state, and to the decisions of this court construing these statutes, to determine whether these statutes and these decisions, remove this case out of the operation of the general legal principles above declared.
The 19th section of Chapter 36, Code of 1873, provides that no insurance company, unless incorporated by the legislature of the commonwealth, shall make any contracts of insurance within this state, until such insurance company shall comply with the provisions of the act as therein declared. One of these provisions is, that every such insurance ^company shall, by a written power of attorney, appoint some citizen of this commonwealth, resident therein, its agent or attorney, who shall accept service of all lawful processes against such company in this commonwealth, and cause an appearance to be entered in any action, in like manner as if such corporation had existed and been duly-served with process within this state. And the statute further provides, that every foreign insurance company, carrying on business in this state, shall first obtain a license for that purpose; and the conditions upon which such license shall issue is declared to be a deposit with the treasurer of the commonwealth, certain bonds therein named, to the amount of at least ten thousand dollars.
It is plain that these provisions of our statute simply grant to foreign insurance companies the privilege of doing business in this state, upon the conditions prescribed in the statute.
The decisions of this court relied on by the appellees counsel as construing this *158statute and as declaring in effect that such foreign insurance companies are residents of this state, are the two cases of Continental Ins. Co. v. Kasey, 25 Gratt. 268, and Connecticut Mut. Life Ins. Co. v. Duerson's ex’or, 28 Gratt. 630. It is insisted that these cases determine that foreign insurance companies doing business in this state, and who have complied with the provisions of the statute above referred to, are residents of this commonwealth, and therefore no foreign attachment can be issued against them, they being residents and .not nonresidents of this state.
In the first named case — Continental Ins. Co. v. Kasey — the only question was the right on the part of the company to remove the cause from the state court, where it was pending, to the 'circuit court of the United States. Whatever was said in that case was, of course, said with reference to the question of removal, and to that question only.
*That case was an action on a policy of fire insurance issued by the Continental Insurance Company, a corporation chartered by the state of New York, but doing business under a license granted by this state, after complying with the provisions of the statute in appointing its agent to acknowledge service of process, and depositing the required amount with the treasurer of the commonwealth. The question, as presented by the record in that case, did not involve the merits of the controversy, but, as stated in the very first sentence of the opinion, presented the single question, whether the company had the right to remove its case from the state court to the federal court.
Upon that question this court, after carefully reviewing the statutes respecting foreign insurance companies, said: “The plain object of these provisions of the statute is to give to our citizens the privilege of suing these foreign corporations in the courts of this state. It would be in the last degree a futile and incongruous provision of the law if the privilege to sue in the state courts is to be at once defeated; if the corporation, as soon as suit is brought, may remove the case to another and foreign jurisdiction. This would be to defeat the very object of the statute. These corporations are placed by our statute on precisely the same footing quoad hoc as home corporations, and when they come into this state and accept the provisions of our statute law, they become domiciled here; and as to all contracts and obligations made and assumed under the provisions of our laws, they are no longer citizens of another state, but are subject to the laws, to sue and be sued as citizens of this state. The Continental Insurance • Company, though chartered by the state of New York, when it commences business in this state, and complies with the terms of the statute of Virginia, by making the necessary deposit and appointing an agent to accept_ process, becomes, as to all contracts with citizens of Virginia, domiciled here, and in contentions with our citizens growing *out of policies of insurance must sue and be sued in our state courts, and do not come within the terms or spirit of the act of congress relating the removal of causes from a state court to a federal court.”
Now the general language here used must of course be explained with reference to the subject before the court; 'and the principles declared in general terms must be understood only with reference to the facts before the court and the case in hand.
In that case (Continental Ins. Co. v. Kasey), the only and single question (stated in the first sentence of the judge who delivered the opinion) was, whether the court below erred in refusing to remove the cause to the federal court.
To this proposition to remove the cause to another jurisdiction on motion of the foreign insurance company, this court (affirming the judgme/it of the circuit court) simply said to the company: “No; you cannot do this. You have come into this state to transact business upon the " conditions which the statute laws of this state has plainly prescribed. You have accepted the privilege, from which the state had a right to exclude you altogether, and that privilege — to carry on business in this state — was upon the express condition that you should have an agent here to accept service of all the process in suits brought by citizens of this state on contracts made with you with reference to insurance. By accepting the conditions imposed by the statute, you have submitted to the .jurisdiction of the state courts, and you cannot evade that jurisdiction by claiming that you are resident in another state. Quoad hoc you are a resident of this state, and domiciled here, so. far as the right to sue you here, on all contracts of insurance made here, is concerned. Coming here, and availing yourself of the privilege to do business in this state, you accepted the provisions of the statute and waived quoad hoc your rights as a non-resident.”
This is all the court meant to declare and did declare in *the case of Continental Ins. Co. v. Kasey, and the language of the court, when construed with reference to the case in hand, means this and nothing more.
Certainly it was never intended in that opinion to declare the broad proposition that a foreign insurance company doing business in this state has its residence and inhabitancy in this state.
As was well'said by Chief justice Campbell, in the Michigan case above cited, “Where a foreign insurance company submits itself to the exclusive jurisdiction of the courts of this state as a condition of doing business here, it waives any right it may possess as a quasi citizen of another state to remove its case to the courts of the United States”; and this was all this court decided in Continental Ins. Co. v. Kasey.
Nor is the more recent case of Connecticut Mut. Ins. Co. v. Duerson’s ex’or, 28 Gratt. 630, at all in conflict with the views above expressed. Upon an incidental question raised in that case, on the-plea of the statute *159of limitations, Judge Anderson said, in careful and guarded language, “The company having a local existence and domicile in this state, for the purpose of being sued, the statute of limitations may be relied on just as if the company had been chartered by an act of the Virginia legislature.” I understand the opinion in this case simply to declare that with respect to suits brought on contracts of insurance made in this state, the company complying with the terms of the statute has a local existence and domicile here with respect to such cases; and when sued in our courts may, like other defendants, plead the statute of limitations, or make all the defences which any other defendant may make.
I am of opinion, therefore, that neither the statute law, nor the decisions of this court construing those statutes, changes the status of foreign insurance companies with respect to their residence and habitat. Under the law, well ^established by the authorities above referred to, a foreign insurance company cannot change its residence or its citizenship. In the language of Chief Justice Waite, in ex parte Schollenberger, 6 Otto. 377, “it can have its legal home only at the place where it is located by or under the authority of its charter.”
I am, therefore, of opinion that the Universal L,ife Insurance Company is a nonresident of the state of Virginia, and may be proceeded against as any other non-resident under our foreign attachment laws, and that the decree of the chancery court abating the attachment must be reversed.
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 decree of the chancery court of the city of Richmond abating the attachments sued out in these causes was erroneous; it is therefore decreed and ordered that the said decree of the said chancery court be reversed and annulled, that the appellants recover against the appellees, the Universal Life Insurance Company, their costs by them expended in the prosecution of their appeal here. And this court, now proceeding to enter such decree as the said chancery court ought to have rendered, doth decree and order that the said attachments were properly sued out against the said Universal Ufe Insurance Company; the said company, in the opinion of this court, being a non-resident within the meaning of the foreign attachment laws of this state.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481998/ | MONCURE, P.,
delivered the opinion of the court. After stating the case, he proceeded:
There are five assignments of error in the decrees appealed from in this case made in the petition for appeal, which will be examined and disposed of, so far as it may be deemed necessary or proper to do so, in the order in which they are made.
1. The first assignment of error is, the affidavit on which the attachment is based was defective.
The Code, ch. 148, § 1, page 1009, requires that the affidavit to be made for the purpose of obtaining an attachment on the institution of an action at law, shall, among *other things, state, that “affiant believes that the defendant 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.” And § 11 of the same chapter, page 1011-12, requires that the affidavit be made for the purpose of obtaining an attachment on the institution of a suit in equity, may be according to the nature of the case, conforming as near as its nature will admit, to what is specified in previous sections; and such affidavit may be at the time or after the institution of the suit.”
The reason for requiring that the affidavit ill the former case shall state that affiant believes that the defendant has estate, &c., within the county, &c., in which the suit is. or that he is sued with a defendant residing therein, is to show that the court of law in which the action is brought has jurisdiction of the case. If it has, as it certainly has, when the defendant against whom the attachment issued either has estate in the county in which he is sued, or issued with a defendant residing therein; then-the attachment, whether it be sued out in an action at law or suit in equity, may (except where it is sued out specially against specified property) be levied upon any estate, real or personal, of the defendant, or so much thereof as is sufficient, &c., whether the same be in the county, &c., where the suit is, or in any other, &c., § 7, p. 1010. If it appear from a bill in equity that the court in. which the suit is brought has jurisdiction of the case, as it certainly does in this case, then the affidavit on which an attachment, is issued in the case need not state that the property on which it is to be levied is situate in the county, &c., in which the suit is. brought, but may state that it is situate in and county of the state. § 7, supra.
If the affidavit had been defective in this case, the remedy for the defect would have been by a motion to quash the attachment. There was no such motion in this case, though the defendant appeared and offered to defend himself in the suit upon the merits.
*The court is therefore of opinion, that there is no error in the decrees appealed from in respect to the matter of the first assignment of error.
2. The second assignment of error is, that the decree of the 20th day of October, 1875. for the sale of the property is erroneous, in that it failed to require an attachment bond, as directed by the Code of 1873, ch. 148, § 24, page 1015.
The said section provides, that if the defendant against whom the claim is has not appeared or been served with a copy of the attachment sixty days before such decree, the plaintiff shall not have the benefit of the preceding section (providing for a sale of the property attached), unless or until he shall have given bond “with sufficient security,” &c., “with condition to perform such future order as may be made upon the appearance of the said defendant and his making defence. If the plaintiff-fail to give such bond in a reasonable time, the court shall dispose of the estate attached, or the proceeds thereof, as to it shall seem just.”
The certificate of Benjamin Mackall, if it. be regarded as evidence, certainly shows that a copy of the attachment was served upon the defendant more than sixty days before the said decree. The attachment consisted of the said summons and the endorsement thereon. And as the defendant was served with a copy, not only of the said summons, but also of the endorsement thereon, he was served with a copy of the said attachment sixty days before said decree.
. But must we not regard the said certificate as evidence, at least in the appellate court, as no exception was taken to it as. *196such in the court below, though the defendant appeared in person and by attorney in the court below and offered to defend himself therein on the merits in the said suit?
We are of opinion that we must; and we are therefore of opinion that there is no error in the decrees appealed from in respect to the matter of the second assignment of error.
*3. The third assignment of error is, that “the circuit court erred in refusing to permit thq defendant to make defence, as .he asked in his three several petitions.”
By § 27 of ch. 148, of the Code, p. 1015, it is enacted, that “if a defendant against whom, on publication, judgment or decree is rendered under any such attachment, or his personal representative, shall return to or appear openly in this state, he may, with-:m one year after a copy of such judgment or decree shall be served on him at the instance of the plaintiff, or within five years from the date of the decree or judgment, if “he be not so served,, petition to have the proceedings reheard. One giving security for costs, he shall be admitted to make defence against such judgment or decree as if he had appeared in the case before the same was rendered, except,” &c. “But this section shall not apply to any case in which the petitioner or his decedent was served with a copy of the attachment, or with process in the suit wherein it issued more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence.”
On the 20th day of October, 1875, the decree aforesaid was rendered under the attachment aforeasid against the defendant therein on publication. And thereafter, before there was an effectual sale under the said decree — to wit: on the 26th day of May, 1877 — the said defendant, Thos. H. Anderson, personally appeared in court — to wit: the court in which the decree was rendered as aforesaid - — and asked leave of the said court to file his petition in writing, together with a plea and answer; to the filing of which petition, plea and answer the plaintiff objected. Inthesaid petition, the said defendant represented that he had a good and valid defence to the claim ?nd of the plaintiff against him, to recover which the said suit was brought; asked that the proceedings' and decrees in the cause might be reheard, and that he might be permitted to make defence; and tendered as security for costs Samuel J. C. Moore and *son, who were willing to become such security. Afterwards, during the ■same term — to wit: on the 1st day of June, 1877 — the cause came on to be again heard on the papers formerly read and the said motion of the defendant Anderson, made at the same term, to file the said petition, and the plaintiff’s objection thereto: whereupon, for reasons appearing to the court, leave to file said petition was refused. And thereafter, during a subsequent term — to wit: on the 29th day of May, 1878 — the cause came on again to be heard upon the papers formerly read, &c.; the said defendant Anderson again presented his petition to the said court in the said cause, stating in substance, among other things, “that a decree was rendered against him in said cause at October term, 1875, of said court; that petitioner has since returned to and appeared openly in this state; that he has a good defence to the claim of the plaintiff in this cause; which is, 1st, that he has paid said claim; 2d, that the statutes of limitations of this state and of the state of Ohio, where said contract was made, are, and were at the time of the institution of this said suit, a complete bar to the action of the plaintiff. Your petitioner therefore now appearing openly in this state, prays that he may have leave to file this his petition in said cause; that the proceedings in said cause may be reheard, and that- he' may have leave to set up his said defences to the said action.” And the said defendant tendered S. J. C. Moore and son as security for cost upon his said petition. And the objection of the plaintiff to the filing of said petition was argued by counsel; upon consideration whereof it was decreed that the said objection be sustained and leave to file said petition was refused.
Now it is very clear, that the defendant had a right to appear personally in the said cause in the said court and make his defence therein, as proposed in his said petition, under the said 27th section of ch. 148, of the Code, page 1015. unless he was deprived of that right by the concluding ^portion of that section, which declares: “But this section shall not apply to any case in which the petitioner, or his decedent, wal served with a copy of the attachment, or with process in the suit wherein it issued more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence.” The court is of opinion, that the said portion of the said section has no such effect; that the service “with a copy of the attachment or with process in the suit,” therein mentioned, refers to such a service in the proceedings in the suit, and not to a service out of the suit and out of the state; that a service out of the state and out of the suit can have no greater effect than, if so great as, “an order of publication duly posted and published (Code 1873, ch. 166, § 15, page 1087). If then he had a right to make defence after a decree entered upon an order of publication (as he surely had) how could that right be impaired by the alleged service in Ohio? This language is used in the petition for the appeal in this case and seems to be correct.
The court is therefore of opinion, that the circuit court erred in refusing to permit the defendant to make defence as he asked in his petitions as aforesaid.
4. The fourth assignment of error is, that “the circuit court erred in overruling the petition of J. W. Anderson and others, the purchasers of the land attached, who had acquired an interest therein and an equitable title thereto, before the attachment was sued out.”
By § 25 of ch. 148, of the Code, page 1015, it is enacted, that “any person may file his petition at any time before the property attached as the estate of a defendant is *197sold, or the proceeds of the sale paid to the plaintiff under the decree or judgment, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving ’^security ior costs, the court, without any other pleading, shall empanel a jury to enquire into such claim, and if it be found that the petitioner has title to, or a lien on, or any interest in, such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which enquiry shall be paid by either party, at the discretion of the court.”
J. W. Anderson, George W. Anderson, David R. Anderson and Eliza C. Jackson, filed their petition by leave of the court, in the said cause, before the proceeds of sale of the said land were disposed of under a decree of the court in the said cause — to wit: at February term of said court, 1877— in which petition they represented, in substance, that they were purchasers for valuable consideration of the tract of land attached in this cause; that they purchased it before the institution of this suit, and were advised their title to it was good against the claim of the attaching creditor. They exhibited with their petition the contract of sale to them from the defendant, dated the 5th day of May, 1873, for said laud, which never was admitted to record in Clarke county, Virginia; and as they were non-residents of the state, they did not kno-w (as they stated in their petition) that under any provisions of the laws of said state such contracts could or should be admitted to record. They further represented, that subsequent to said purchase, they complied with its terms by paying the purchase money, and on the 22d day of January, 1876, a deed was executed conveying said land to them, which deed was also exhibited with said petition. They said they were .advised that their title to said land is good against said attaching creditor, and they prayed for special and general relief against the same.
Samuel J. C. Moore and son entered themselves as security for costs in said petition; and the contract of sale and deed for the land, referred to in the partition, were exhibited therewith; and it was or-ordered that so much of the ^decree rendered in the cause as directed a sale of the land lie suspended until the further order of the court.
On the 29th day of May, 1878, the cause came on to be again heard upon the papers formerly read, the petition of J. W. Anderson, George W. Anderson and Eliza C. Jackson, and the exhibits filed therewith, claiming the property attached in this cause, &c. And the court, being of opinion that-the complainant, as against the petitioners, J. W. Anderson, G. W. Anderson and al., claiming the land attached in this cause, is entitled to subject said land to the payment of their said debt, decreed that unless payment should be made within thirty days oi the rising of the court of the debt and interest due by the defendant to the plaintiff as aforesaid, then the sheriff should make sale of the said land, in the manner and on the terms aforesaid, and report the same to the court.
The court is of opinion that the circuit court erred in disposing of the case as it did in regard to the said petition without tile-intervention of a jury, but that instead of doing so, the said circuit court, as directed by section 25 of chapter 148 of the Code as. aforesaid, should, upon the petitioners giving security for costs, and without any other-pleading, have empanelled a jury to enquireinto such claim; and if it had been found that the petitioners had title to such property the court should have made such order as was necessary to protect their rights.
5. The fifth assignment of error is, that “the circuit court erred in entering any decree for the complainant after his non-residence has been suggested and security for cost required.” On the 31st day of May, 1876, on the motion of the defendant, it was ordered that the complainant, who was suggested to be a non-resident of this state, give security for the costs within sixty days from that date. The Code (p. 1161, § 2, ch. 181) provides that “after sixty days from such suggestion,” the suit shall, by order of the court, be dismissed, unless, before the dismission, the plaintiff *be proved to be a resident of the state, or security be given before said court or the clerk thereof for the payment of the costs and damages which may be awarded to the defendant, and for the fees due, or to become due, in such suit to the officers of the court.”
Although more than sixty days elapsed after such suggestion, and the plaintiff was not proved to be a resident of this state, nor was security given before said court, or the clerk thereof, for the payment of the costs, &c., as aforesaid, yet the suit was not, by-order of the said court, dismissed; but, on the contrary, the court proceeded further in the case until the decree of the 29th day of May, 1878, was entered for the sale of the said land for the payment of the claim of the plaintiff, unless payment thereof should be made within thirty days from the rising of the said court.
The court is of opinion that the circuit court erred in regard to the matter of the said 5th and last assignment of error.
The court is therefore of opinion that so much of the decrees appealed from in this case as are inconsistent with the foregoing opinion are erroneous, and ought to be reversed and annulled, and that the residue thereof is not erroneous, and ought to be affirmed; and that the cause ought to be remanded to the said circuit court for further proceedings to be had therein, in conformity with the said opinion.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the decrees appealed from are erroneous on the grounds taken in the 3d, 4th and 5th assignments of error in the petition for the appeal in this case: but are not erroneous on the grounds taken in the 1st and 2nd assignments *198of error in said petition, or either of them, or any other ground.
*In regard to the 3d assignment of error, that “the circuit court erred in refusing to permit the defendant to make defence as he asked in his three several petitions;” this court is of opinion that, as stated in the said petition for the appeal, “when petitioner appeared openly in the state and petitioned to have the cause reheard, tendering security for the costs, he had a right to be admitted to make defence, against the action as if he had appeared in the cause before the decree was rendered. (Code 1873, ch. 148, § 27, p. 1015.)”
In regard to the 4th assignment of error, that “the circuit court erred in overruling the petition of J. W. Anderson and others, the purchasers of the land attached, who had acquired an interest therein and an equitable title thereto, before the attachment was sued out.” This court is of opinion that the said petition having been filed by leave of the said circuit court in this cause before the proceeds of the sale of the said land were disposed of under a decree of the court in the said cause, disputing the validity of the plaintiff’s attachment thereon and stating a claim thereto, or an interest in or lien on the same, and its nature, and giving security for costs, in compliance with the requisitions of the 25th section of chapter 148 of the Code of 1873, page 1015,.the said circuit court erred in not impanelling a jury, without any other pleading, to enquire into the said claim; and if found that the said petitioners had title to or a lien or any interest in said land or its proceeds, making such order as might have been necessary to protect the rights of said petitioners, according to the directions of the said 25th section; and instead of doing so, in deciding, without the intervention of a jury, that the plaintiff, as against the said petitioners, claiming the land attached in this cause, is entitled to subject the same to the payment of the claim for which it is so attached.
In regard to the 5th assignment of error, that “the circuit court erred in entering any décree for complainant *after his non-residence has been suggested and security for costs required.” On the 31st day of May, 1876, on the motion of the defendant, it was ordered that the complainant, who was suggested to be a non-resident of this state, give security for the costs within sixty days from that date. The Code, p. 1161, § 2, ch. 181, provides that “after sixty days from such suggestion, the suit shall, by order of the court, be dismissed, unless, before the dismission, the plaintiff be proved to be a resident of the state, or security be given before said court, or the clerk thereof, for the payment of the costs and damages which may be awarded to the defendant, and for the fees due, or to become due, in such suit to the officers of the court.” Although more than sixty days elapsed after such suggestion, and the plaintiff was not proved to be a resident of the state, nor was security given before said court, or the clerk thereof, for the payment of the costs, &c., as aforesaid, yet the suit was Hot, by order of the said court, dismissed, but,on the contrary, the court proceeded further in the case until the decree of the 29th day of May, 1878, was entered for the sale of the said land for the payment of the claim of the plaintiff, unless payment thereof should be made within thirty days from the rising of the said court.
Therefore it is decreed that the decrees appealed from be reversed and annulled so far as they are hereinbefore declared to be erroneous, and be affirmed so far as they are hereinbefore declared not to be erroneous; and that the cause be 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.
But the suit shall not be dismissed on account of the failure to give security before said court, or the clerk thereof, for the payment of the costs and damages which may be awarded to the defendant, and for the fees due, or to become due, in such suit to the officers of the court, as aforesaid, unless such failure .shall continue to exist after *the expiration of a reasonable time which shall be afforded by order of the said court for giving such security.
And it is further decreed and ordered that the appellee pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here.
Which is ordered to be certified to the said court of Clarke county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481999/ | ANDERSON, J.,
delivered the opinion of the court.
This case has been most elaborately argued, and at great length, especially by the learned counsel for the plaintiff in error. We deem it unnecessary to a right decision of the cause to follow the counsel through the learning they have evolved in the investigation of many of the questions they have raised.
The enquiry which is first suggested is. by what statute, or statutes, is the case governed? By the provisions of the statute, Code of 1873, ch. 86, p. 757, found in acts of Assembly of 1870-71, ch. 227, or by the act approved March 29, 1877, entitled “an act to establish a department of agriculture, mining and manufacturing in the state”? (Acts of assembly for 1876-77, p. 240). Does the latter act repeal the former, or are both in force? This is determined by the last section of the latter act, which declares “that all acts or parts of acts in conflict with this act are hereby repealed.” Any provision in the former statute, consequently, which is in conflict with this act is repealed; otherwise not. Tt is not perceivable how the latter act can be a substitute for the former, unless it repeals it.
Section 48 of the act of 1871, declares that all commercial manures and fertilizers “brought into or manufactured in the state of Virginia for sale, or sold, or kept for sale therein, shall have permanently affixed to everv sack, bag (&c.), a stamped or printed label, which shall specify, legibly, the name or names of the manufacturer or manufacturers, his, her or their place of business, the net weight of such sack, bag (&c.), the component parts of such manure or fertilizer, the percentage. by weight, which it contains of the following constituents, viz: of phosphoric acid, soluble in pure cold water; of phosphoric acid, insoluable in pure cold water; of available ammonia, potash and soda.”
Section 49 imposes a penalty of $100 for the first offence, and $200 for the second and each subsequent offence, on any person who shall sell or keep for sale any commercial manures or artificially manufactured or manipulated fertilizers not labeled in accordance with the requirements of this act, or shall affix any label not expressing truly the component parts of said manures of fertilizers, or expressing a larger percentage of the constituents, or either of them, mentioned in the 48th section, than is contained therein.
Is there anything in these sections in conflict with the act of 1877? The design of this act, as its heading shows, was “to establish a department of agriculture, mining and manufacturing in the state.”
*Section 1 authorizes and requires the governor to establish such department.
Section 2 provides that said department shall be under the control and management of one officer, who shall be known as the commissioner of agriculture; how he shall be appointed, where his office shall be, and how provided for him, and allowing him one clerk.
Section 3 fixes his salary and the salary of his clerk.
Section 4 prescribes his duties—
_First. Relative to the geological formation of the various counties of the state, and the general adaptation of the soil of said counties for the various products. And for the purpose of analyzing the soils and minerals of this state, and guanos and fertilizers, as he may deem of importance, provides for his being furnished with a sufficient chemical apparatus to use in connection with his office; and further provides for his giving information upon the above subjects, and others of interest, to those who till the soil of this state.
Second. The commissioner to have charge of the analysis of fertilizers sold to be used for agricultural purposes in this state; requiring a fair sample of every brand thereof to be first submitted to said commissioner; makes it his duty thoroughly to test the same, and if he finds the same of no practical use, after he shall have summoned the parties interested before him, and given them every opportunity to be heard in defence, the sale of the same for use in this state as a fertilizer is prohibited; and a fine of not less than $100 nor more than $1,000 is imposed _ on any person who shall' violate the provisions of this act by selling auy fertilizer to be used in this state, without first submitting a fair sample of the same to said commissioner. And agricultural lime and certain other articles named are excepted from the operation of this act. And the analysis made by the commissioner is to be made without charge.
Various other duties, of an interesting and highly important *character, are assigned to the commissioner in the subsequent clauses of this section; but neither they nor the subsequent sections of the act have any bearing upon the subject of the *200act of 1871, or the question now under consideration.
The act of 1871 requires that the. manufacturer or manipulator of the fertilizer shall label the bag or package containing it, before he sells the same in this state, and imposes a penalty on him for omitting it, or for false representations in the label as to the quantity or quality of the fertilizer contained in the bag or package. The act of 1877 requires him, before he sells, to furnish the superintendent of agriculture, under the penalty of a fine from $100 to $1,000, with a fair sample of the fertilizer which he has for sale in this state, who is required to analyze it carefully, and to determine whether it is of any practical value or not. And if he determines that it is of no practical value, after the parties interested have been summoned before him, and have had full and sufficient opportunity to contest it, the sale of it is prohibited as a fertilizer for use in this state.
These two clauses are not in conflict. The fertilizer may not conform in quantity and quality with the labels thereon, and yet may be of some practical value; so that the sale will not be prohibited under the act of 1877, which does not in such case afford protection to the purchaser. But he has remedy under the 50th section of the act of 1871 aforesaid, which is not taken away by the act of 1877; not being in conflict with it. There is nothing in the former act which prohibits the sale of the article if it has been labeled 'as required by the act, even if it should be of no practical value; and the purchaser’s remedy is under section 50 of that act. The two acts are not in conflict; but the act of 1877 imposes additional duties on the manufacturer or seller, and and provides additional securities for the purchaser; and the two acts should be, considered together in pari materia..
*The court is of opinion that § 48, and those following on this subject, of ch. 86 of the Code of 1873, taken from the act of March, 1871, were not repealed by the act aforesaid of 1877, and were in force, and required thé plaintiff in error to affix to each bag containing the fertilizer it sold to the makers of the negotiable notes in controversy a label, in conformity with the requirements of section 48.
The plaintiff’s action is debt, and the plea is nil debet. The facts are agreed. And under the plea of nil debet, it was agreed that the defendant should have the benefit of all the facts agreed, as fully and effectually as he could under any special pleas which he could file in the cause. &c.
It seems that the defendant did not rely upon any defects in the fertilizer which the plaintiff sold to the makers of the notes, or upon the ground that the makers, or either of them, were injured or defrauded by the contents of the bags not conforming in quality or quantity to the labels thereon, or that there -was any failure of consideration; but solely upon the ground that the labels were not in conformity with the requirements of the statute, and that the sales to them were _ consequently illegal and void, and the plaintiff was not entitled to the aid of the court' in the enforcement of on illegal contract.
The first enquiry, then, is, were the bags containing the fertilizer labeled in conformity with the requirements of the statute?
The defendant contends that the label affixed to the bags does not specify the component parts of the fertilizer they contain, as required by the statute; and upon that ground alone contends that the sale of it in Virginia was prohibited and illegal. According to the statement of agreed facts, the plaintiffs became the purchasers of the formula for making the fertilizer in question, and the right to use the brand of “Eureka” thereon, in July, 1873, and then commenced its manufacture — and used the same materials *and the same formula, and adopted the same process, that had been used and adopted by those who preceded them in its manufacture from the year 1865 down to that time, and under the supervision of the same person who originated the said fertilizer, and who has continued to supervise the manufacture of the same for the plaintiffs. And they stamped on each bag the following label: “Eureka. 200 lbs. Ammoniated Bone Superphosphate of Lime. Manufactured by Atlantic & Virginia Fertilizing Co. Orient, L. I.” And these words, they contend, express the component parts of the fertilizer, as required by the Virginia statute. They are not words in common or popular use, but are technical words used by chemists, and have a certain and exact meaning; and the question is, do they express what are the component parts of the said fertilizer? This is a question which chemists alone can satisfactorily answer.
We have the statements of Dr. Pollard, commissioner of agriculture for the state of Virginia, and Dr. William H. Taylor, state chemist, as experts, which, by the agreement of the parties, are to be taken as facts proved in the cause. Dr. Pollard states, as an expert, that the words “ammoniated bone superphosphate of lime,” on the said label, do sufficiently express the component parts of said fertilizer, and gives his reasons for that opinion. He further states, as an expert, and as commissioner of agriculture, that in his opinion said label does comply with the requirements of ch. 86, § 48 of the Code of 1873; and from the nature and character of what is required, could not well be done in any other way or manner; and is the mode usually adopted by all manufacturers of such fertilizers, since the passage of the act requiring them to have stamped labels on the bags. Dr. Taylor, the regularly appointed state chemist, entirely concurs with Dr. Pollard in all his statements and opinions, and as an expert fully endorses them. What better evidence could we have of the meaning of the *words of art put upon these labels, and that they express the component parts of the fertilizer — at least what the manufacturers claimed for it? Indeed, there is not a particle of evidence in the *201record in conflict with it. And we cannot resist the conclusion that the terms “ammoniated bone superphosphate of lime,” legibly-stamped or labeled on the bags containing the fertilizer, are a specification of its component parts. It is true that it is expressed in words which are not in common or popular use, but in technical terms, which would not convey to the mind of an uneducated farmer, who was not a chemist, what were the component parts. But the statute does not require that it shall be specified in words which are in common or popular use. It only requires that the stamped or printed label shall specify legibly the component parts. It does not say that it shall be specified in terms which may be understood by an unlettered man what are the component parts. It only requires that it shall be legibly specified on the label what are the component parts that is in such manure, that it may be read. And the statute being highly penal, must be construed strictly. The idea may be expressed in technical terms with more certainty and exactness, than when expressed in words in common and popular use. And if the purchaser does not understand the words of art, he may be readily informed by enquiring of the commissioner of agriculture, or of any good chemist, what they import. If it were expressed in the plainest terms, and in the most legible characters, it would not be understood by the man who could not read. But the statute does not require that it shall be expressed in words in common or popular use, and not in words of art.
It is expressed, the commissioner of agriculture says, in the mode usually adopted by all manufacturers, and in the mode which received his approval as commissioner of agriculture, and which he, in that capacity, having charge of the analysis of fertilizers sold to be used in this state for ^agricultural purposes, decided to be in conformity with the requirements of the statute; and now to hold that the purchasers of the plaintiffs’ fertilizer, who have had the use of it, were released from the price which they agreed to pay for it, not for any defect in it, but on the ground that the label, contrary to the decision of the commissioner of agriculture, and contrary to the opinion of competent experts, did not exactly meet the requirements of the statute, would be an injustice to the plaintiffs of which they would have cause to complain.
The only impeachment of the label is the alleged nonspecification of the component parts of the fertilizer. No fault, as we understand, is ascribed to it in other respects; and we think there is not the slightest ground for it; but that in all other respects it fully meets the requirements of the statute. And we are of opinion upon the agreed facts, and the best, and in fact, the only evidence in the record, that, in the point where it is assailed it is groundlessly assailed, and that in that respect also it conforms to the requirements of the statute. It is therefore unnecessary to consider the question, which has been so elaborately and ably argued by the learned counsel, whether the contracts in question, if prohibited, were illegal, and if illegal, could be enforced. We are of opinion for the reasons given, and upon the grounds stated, that the judgment of the court below is erroneous and must be reversed.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the bags which contained the fertilizer sold by the plaintiffs to the makers of the negotiable notes, which was the consideration thereof, were labeled substantially in conformity with the requirements of the statute, and that the contracts of sale which were the foundation of said notes consequently were not illegal and *void; and that the judgment of the court below was erroneous. It is therefore considered, that the said judgment be reversed and annulled, and that the plaintiffs in error recover their costs expended in the prosecution of their writ of error here. And this court, proceeding to render such judgment as ought to have been rendered by the court below, it is considered that the plaintiffs recover of the defendant the sum of $ü(¡7, with interest at the rate of 6 per centum per annum, &c., on $487, part thereof, from the 4th day of October, 1878; and on $35, another part thereof, from October 13, 1878; and on $10, another part thereof, from October 21, 1878; on $50. another part thereof, from October 27, 1878; and on $25, the residue thereof, from October 29, 1878, till payment, and their costs expended in the prosecution of their suit in the court below.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482000/ | STAPLES, J.,
delivered the opinion of the court.
This is an action of detinue. The declaration contains two counts. The first sets forth the delivery of the property by the plaintiff to the defendant, to be redelivered on request, and a failure to do so. The second avers that the plaintiff, being lawfully possessed of the property, casually lost it, put of his possesison, and the same afterwards came to the defendant by finding, and that the defendant had refused to deliver the same, although often requested. It is by no means clear, but it may be conceded, that the first count is defective in failing to allege right of property in the plaintiff; and that the circuit court erred in refusing defendant’s leave to demur to that count. Still, it does not necessarily follow that the judgment is therefore to be reversed.
*If the defendant was not and could not have been prejudiced by the ruling of the court below, the appellate court will not disturb the judgment, merely because the ruling may have been erroneous.
Had the jury found a general verdict, this court could not say whether it was based on the first or second counts. But the verdict is special. It expressly finds that the goods claimed are the individual property of the plaintiff. This is directly responsive to the second count, which asserts title in the plaintiff.
It was apparent that the jury intended to conform their verdict to that count.
The defendant might have asked the court to instruct the jury to disregard the first count; had he done so, and had the court granted siich instruction, the verdict must have been the same. Under these circumstances, the action of the court upon the demurrer was wholly immaterial.
The next question for consideration is, whether the court committed any error with respect to the instructions which entitles the defendant to a reversal.
*203The defendant asked for three instructions. The first of these asserts that if the jury believe that the property claimed was not the individual property of the plaintiff, but belonged to the firm or partnership of A. K. Adams & Co., of which plaintiff was a member, and that A. K. Adams, the other partner bona fide sold the property to Walker & Saunders, under whom defendant claimed, the plaintiff was not entitled to recover. The second instruction is substantially the same. The third instruction is not material to the present discussion, and need not be repeated here. The court refused to give either of these instructions, and in lieu thereof instructed the jury — first, that if they believed from the evidence that the plaintiff purchased the property as his individual property, paying for it and using it as his own, and that he has never parted with the title thereto, and the defendant obtained the possession ^without the plaintiff’s knowledge or consent, and has refused to surrender the same, they ought to find for the plaintiff.
The court further instructed the jury in effect, that even if they believed the property belonged to A. K. Adams & Co., a sale by one of the partners, without the knowledge or consent of the other, for the purpose of paying the individual debts of the partner so selling, would not be effectual to pass the title.
It is not necessary now to determine whether the court erred in refusing to give the instructions of the defendant, or in giving the second instruction actually given. What has been already said with respect to the action of the court touching the demurrer, applies to the instruction.
An appellate court will not reverse the judgment for an erroneous instruction, if it can clearly see that the losing party could not have been prejudiced by it. In Kincheloe v. Tracewells, 11 Gratt. 587, 609, this court said, “If the questions involved in the instructions, are decided erroneously the judgment should not on that account be reversed, if the court can see from the bill of exceptions that they did not and could not affect the merits of the case before the jury. Danville Bank v. Waddill, 27 Gratt. 448. See also 8 U. S. Digest, N. S., Title Appeal, p. 29.
In the case before us, the court, in its first instruction, told the jury that if they believed from the evidence that the plaintiff had purchased, paid for and used the property as his own individual property, and had never parted with the title, and that the defendant had obtained the possession without the plaintiff’s knowledge or consent, and refused to surrender the same, they must find for the plaintiff. The jury, in rendering their verdict, say, we, the jury, find, under the first instruction of the court, that the mules and wagons and gear are the individual property of the plaintiff.
*From this it is plain the jury were satisfied that the property did not belong to A. K. Adams & Co., but to the plaintiff individually; and therefore it was a matter of no sort of consequence what the court said with reference to the power of one partner to dispose of the partnership property. With or without the instructions on that branch of the case, it is certain the finding of the jury must have been the same, and the defendant could not, by possibility, have been prejudiced by the action of the court with respect to the instructions.
The case, in some of its features, is like that of Fleming v. Toler, 7 Gratt. 310. There the defendant had filed a special plea, upon which issue was joined. He afterwards tendered other pleas, which were rejected. This court said the pleas so tendered were good in form and substance, and presented a substantial defence; but as the facts set forth therein were the same substantially as set forth in the plea filed, and as those facts had been negatived by the finding of the jury, the defendant could not have been prejudiced by the rejection of the two pleas.
The view here taken was not at all in conflict with the decision of this court in Wiley et als. v. Givens & als., 6 Gratt. 277. There the lower court had instructed the jury that they were at liberty to regard the recitals in certain deeds as evidence. This instruction, it was contended, even if erroneous, worked no injury, inasmuch as the jury would have been warranted in finding the same verdict upon the whole evidence.
But this court said it could not determine what influence the recitals may have had on the minds of the jury, and therefore it would look no further than to the propriety of the instruction, based upon such recital. That case came within the influence of the principal that a misdirection of the trying court is always ground of reversal, tinless it can be plainly seen from the record that the error did not, and could nof, affect the verciict. Rea’s adm’x v. *Trotter & Bro., 26 Gratt. 585, was decided on the same ground; Town of Danville v. Waddill. On the other hand, the converse of the proposition is equally true, that if the appellate court is satisfied that the jury, in rendering their verdict, could not have been influenced by the misdirection, it will not, merely because of such misdirection, reverse the judgment. See also 9 vol. U. S. Digest, N. S. p. 538, 635, 682.
_ In placing our decision on this ground, we are not to be understood as holding that the lower court erred in its instruction with respect to the limitations upon the power of one partner to dispose of partnership property, under the circumstances set forth in the insfruction. The rule seems to be settled that the authority of each partner to dispose of partnership property extends only to the business and transactions of the partnership. And any disposition of the property beyond such purposes, without the consent of the co-partner, is an excess of authority. And further, one partner cannot pledge or sell the partnership’s property, in payment of his individual debts, without the consent of his co-partner; and the title is not divested by such pledge or sale in favor of a separate creditor, even though the latter may not know it was partnership property. S«e *204Rodgers & Sons v. Batchelor & als., 12 Peters R. 221; Story on Partnership, § 133, and note.
However, we do not deem it necessary to express any decided opinion on this subject. Upon the grounds already stated, we think the judgment should be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482001/ | MONCURE, P.
The constitution of Virginia which is published in the Code of 1873, pp. 60-101, contains the following provisions which seem to be material to be considered *262in the decision of the question now before the supreme court of appeals, in regard to county court judges.
Code, p. 84, article VI, § 1. “There shall be a supreme court of appeals, circuit courts and county courts.”
P. 85, § 5. "The judges shall be chosen by the joint votes of the two houses of the general assembly, and shall hold their office for a term of twelve years.”
P. 86. § 11. “For each circuit (of the sixteenth judicial circuits into which, by § 9 of the same article, the state was directed to be divided), a judge shall be chosen by the joint vote of the two houses of the general assembly. who shall hold his office for a term of eight years, unless sooner removed in the manner prescribed by this constitution.’’
*P. 87, § 13, (headed “county courts”). “In each county of this commonwealth there shall be a court called the county court; which shall be held monthly, by a judge learned in the law of the state, and to be known as the county court judge: provided, that counties containing less than eight thousand inhabitants shall be attached to adjoining counties for the formation of districts for county judges. County court judges shall be chosen in the same manner as judges of the circuit courts. They shall hold, their office for a term of six years, except the first term under this constitution, which shall be three years, and during their continuance in office they shall reside in their respective counties or districts. The jurisdiction of said courts shall be the. same as that of the existing county courts, except so far as it is modified by this constitution, or may be changed by law.”
P. 89. “General provisions.”
“Sec. 22. All the judges shall be commissioned by the governor, and shall receive such salaries and allowances as may be determined by law, the amount of which shall not be diminished during their term of office. Their terms of office shall commence on the first day of January next following their appointment; and they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.
“Sec. 23. Judges may be removed from office by a concurrent vote of both houses of the general assembly; but a majority of all the members elected to each house must concur in such vote, and the cause of removal shall be entered on the journal of each house. The judge against whom the general assembly may be about to proceed shall have notice thereof, accompanied by a copy of the cause alleged for his removal, at least twenty days before the day on which either house of the general assembly shall act thereon.”
*“Sec. 25. Judges, and all other officers elected or appointed, shall continue to discharge the duties of their offices, after their terms of service have expired, until their successors have qualified.”
The foregoing are all the provisions of the constitution which seem to have a material bearing on the subject under consideration.
The last term of six years of the county court judges of the state commenced on the first day of January, 1874, and ended on the last day of December, 1879. The succeeding term of six years of the said judges commenced on the first day of January, 1880, and will end on the last day of December, 1885. The judges elected for the last term ceased to be judges at the end of that term, except that, under § 25 aforesaid, they are to “continue to discharge the duties of their offices, after their terms of service have expired, until their successors have qualified.”
As soon as their successors have qualified, then, of pourse, they will instantly cease to discharge those duties.
The election of judges of the county courts for the term of six years, which commenced on the first day of January, 1880, devolved on the present legislature; which certainly entered upon the discharge of that duty in due time. Some, and perhaps many, of those judges were elected and qualified before the first day of January last, and no question has been raised, nor, I presume, can be raised, as to the legality or regularity of their appointment.
But all of the appointments were not made before that day. Why, not does not ajipear. Doubtless different reasons existed in different cases. Some of those reasons may have concerned the old incumbents of the office nd the question of their reappointment. Some of them may have concerned the question as to a propriety of choice between competitors for the office in various cases. At all events, the legislature, for some cause or other, deemed it proper to delay the completion of the election for a few days after *the first day of last January; after the lapse of which few days they completed the election, and the persons so elected qualified according to law, and proceeded to enter upon the execution of the duties of their office. But in some of the cases, at least, the old incumbents denied their right to do so, and claimed a right for themselves to hold on to the offices, and perform all their duties, and receive all their emoluments, until the first day of January, 1881. notwithstanding the election and qualification of their successors, and the offer of the same to enter upon and perform immediately and henceforth the duties of their offices. The said old incumbents placed their claim alone upon the ground of the appointment and qualification of their successors after, instead of on or before, the 1st day of January. If such appointment and qualification had been on or before that day, they would have made no difficulty and raised no question on the subject.
Now, can it be that this accidental delay for a few days in the appointment of the successors in these offices is to have such an important effect as would be produced by sustaining the views of the old incumbents who are competing in this case?
Could the framers of the constitution have intended that a circumstance so apparently slight and immaterial as a few days difference in the time of the appointment of a judge of the county court who might be *263appointed on the 31st day of December, 1879, or on the 1st day of January, 1880, should have such an important effect as that on the former case, he would go into office and become entitled to receive his salary immediately from and after the former day; whereas in the latter he would not, until about twelve months thereafter — as that, in the former case, the old encumbent would be entitled to nothing; whereas in the latter he would be entitled to continue to hold the office and receive the salary for twelve months after the expiration of the term for which he was elected, *while his successor would be entitled to receive nothing on account of his office until after the expiration of about twelve months from the time of his election and qualification as such? I think that such could not have been the intention of the framers of the constitution. They could not have intended anything so unreasonable; and to warrant the court in deciding that they did, the evidence of such an intention should plainly appear in the constitution. Does such an intention so appear in the constitution? I think not.
The only provision in the constitution which can create any doubt or difficulty on the question is that it contained in section 22 of article 6. page 89, of the Code. The language of that section is: “All the judges shall be commissioned by the governor, and shall receive such salaries and allowances as may be determined by law, the amount of which shall not be diminished during their term of office. Their terms of office shall commence on the first day of January next following their appointments; and they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.”
Now, the framers of the constitution evidently designed that the terms of office of all the judges should commence on the first day of January next following their appointment; and such is the express language of the constitution. This provision was made with a view to the organization of the machine of government and setting it in motion. They determined to fix upon a certain day for the commencement of the terms of office of all the judges, and they fixed on the first day of January for that purpose. But before the arrival of that day next after the adoption of the constitution, it was necessary that the duties of their respective offices should be discharged by some person. By whom were they to be discharged? The constitution expressly declares._ After providing in regard to all the *iudges, that “their terms of office shall commence on the first day of January next following their appointment,” it thus proceeds: “And they shall discharge the duties of their respective offices from their first appointment and qualification under this constitution until their terms begin.”
The constitution was adopted and put in operation some eight or nine months before the 1st day of January, 1871. Infixing on a day for the commencement of the terms of office of the judges, the first day of January next following their appointment was selected for that purpose. There was a long interval between that day and the day of the appointment and qualification of the judges under the _ constitution; and it was necessary that provision should be made in the constitution for the discharge of such judicial duties as might be necessary in the state during that long interval. Therefore it was provided, in section 32 as aforesaid, that the judges “shall discharge the duties of their respective office's from their first appointment and qualification under this constitution until their terms begin.” This sentence is separated by a semi-colon, only, from the one which immediately precedes it, in these words: “their terms of office shall commence on the first day of January next following their appointment;” thus showing that the whole section has relation to the time when the constitution was adopted, which was very shortly before the time of the first appointment and qualification of judges under the same. If we read the section in this view of the facts, we can have no doubt or difficulty about its meaning or the priority of construing it in reference to the first day of January next succeeding the first appointment and qualification of the judges.
On or before the said first day of January a judge was no doubt elected by the general assembly for each county of the state, for the term of three years from the 1st day of January, 1871; and on or before the 1st day of January, 1874, *a judge was probably elected by the general assembly for each county of the state, for the term of six years from the last named day. On or about the 1st day of January, 1880, the time came for making another election of county judges, some of whom were elected before the first day of January; as to the validity of whose election no question is raised. Others of whom were elected a few days after the 1st day of January. But it is contended by some of the old incumbents of a county judgeship that an election made after the first day of January last cannot take effect until the 1st day of January, 1881; twelve months after it would have taken effect if it had been made a few days before it actually was made; that is, on or before the first day of January last.
Now, here is a case in which all the county judgeships of the state became vacant on the 1st day of January, 1880, and the duty of filling the vacancies by new elections on or about that day devolved on the general assembly which was then in session. Some of the vacancies were accordingly filled by elections so made on or before that day; while the filling of the others was delayed for a few days for the sake of convenience, and under a bona fide belief on the part of the electors th' t such delay could make no difference. But is now contended by some of the judges, whose terms of six years expired on the first day of January last, that they are entitled to hold on to their offices till the first day of January next, because the appointment and qualification of their successors *264took place a day or two after, instead of on or before the first day of January last.
I think the constitution ought to receive not a strict and narrow, but a liberal and reasonable construction. The legislature is invested by the constitution with the elective franchise in this case, for the benefit, of course, of the state. It is intrusted with the duty of filling the county judgeships, all of which have become vacant. Its right to perform *this duty is disputed because not performed on or before _ certain day, though performed a day or two thereafter. A judge whose term of service has expired claims to be entitled to hold his judgeship a year longer, because his successor was not appointed and did not qualify on or before the first day of January last, though he was and did a day or two thereafter. Now, this delay of a day or two could not have injured, but may have benefited the state, for which latter purpose it was doubtless incurred.
The first day of January was regarded both by the convention that framed the constitution and the legislatures convened under it, as the proper day for the commencement of a term of a judgeship. The 1st day of January, 1871, being the first after the adoption of the constitution, some nine or ten months before, was therefore fixed as the day for the commencement of thefirst terms of thejudgeships under the constitution; and provision was made therein for the immediate appointment and qualification of the judges whose judicial terms were to commence on the first day of the next succeeding January, but who were to discharge the duties of their respective officers from their first appointment and qualification as aforesaid until the commencement of their terms.
Now, a term of six years of the county court judgeships of the state commenced on the' 1st day of January, 1880; a like term of .the same judgeships having ended on the preceding day — to wit: the 31st day of December, 1879. No doubt it was expected and intended that all the judges who were to act as such on and after the 1st day of January, 1880, would be appointed and would qualify on or before - that day. But as we have seen, only a portion of the said judges then was appointed and qualified, while the rest of them, for different reasons, were not aopointed and did not qualify for several days thereafter. Still, whether they were appointed and qualified on, before or after that day, the term of the office to which they were appointed *respectively commenced on the same day — to wit: the 1st day of January, 1880, and was to continue for the period of six years thereafter. Certainly it was not the intention of the framers of the constitution that the terms of the particular judgeships might begin and end on different days. They intended the contrary, and fixed upon the 1st day-of January as the proper day for that purpose, though that day was a long way off when the constitution was adopted and went into operation.
The result of my opinion is, that the petitioner, John E. Broadus, is legally; detained in custody under a commitment issued by Edmund Waddill, jr., as judge of the county court of Henrico, on the 9th day of February. 1880, and that the said Waddill, jr., was, at the time of issuing said commitment, the judge of the said court, duly appointed and qualified as such under the constitution and laws of the state; and therefore the petition of said Broadus to be discharged from said custody must be denied. And that the petitioner, William Walsh, is illegally detained in custody under a commitment issued by Edward C. Minor, styling himself judge of the county court of Henrico, on the — -day of February, 1880, and that the said Minor was not, at the time of issuing the said last mentioned commitment, the judge of the said court, duly appointed and qualified as such under the constitution and laws of the state; and therefore the petition of said Walsh to be discharged from said custody must be granted. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482003/ | CHRISTIAN, J.
This is a writ of error to a judgment of the circuit court of the city of Richmond.
*The suit was an action of trespass on the case, brought by the plaintiff, Elizabeth Courtney, against the city of Richmond, to recover damages for injuries received by her in consequence of a fall on *266one of the streets of said city, produced by an alleged defect on the sidewalk caused by the negligence of the defendant. In the court below the defendant demurred to the plaintiff’s evidence, and the jury found a verdict subject to the demurrer for the plaintiff and assessed her damages at the sum of $1,500.
And thereupon the court overruled the demurrer, ' and entered judgment for the amount of damages assessed by'the jury.
To this judgment a writ of error was awarded by one of the judges of this court.
The question we have to determine is, whether, giving full effect to all - the evidence introduced by. the plaintiff, and all fair and legal inferences to be deduced from the same, such a case,is made out as entitles the plaintiff to recover, and fixes liability upon the defendant for injuries, received by the plaintiff.
To determine this question it becomes necessary to examine minutely and in detail the evidence produced by the .plaintiff.
It was proved by the plaintiff that at the time of the accident — October 12th, 1876 — she lived on Leigh street, in, the city of Richmond, four squares form the scene of the accident; that her niece was on her death-bed, and the attending doctor — D. Davis — gave a prescription which he said she must have immediately; that witness would not wait for niece’s husband to return, but started to the drugstore herself for the medicine required; that in going she went on the side of the street opposite to that on which she fell returning; that when she came out of the drugstore she was in a hurry, and about twenty steps from the drugstore she struck her foot against a loose brick in the sidewalk, and fell; that she was stunned for awhile, and *when she got up and went home she suffered much pain, but did not go after a doctor until 9 o’clock next day, when she went to Dr. James’ office, who set her arm; that the gas was lit in the street lamps at the corner of the street, some twenty paces off,’ but the light was behind her; it was getting dusky at the time, and she could hardly see at all; that she knew of the broken place in the sidewalk, but was in such a hurry and such trouble about her niece’s health that she did not think of it; the pavement was broken up, and she fell right in among the loose bricks; that some five years ago she had an attack of neuralgia, whjch resulted in her partial' blindness, but she was cured of that; that she is in her sixty-fifth year; and upon being asked by her counsel to tell the time of day on a clock about twenty-six feet distant, about a foot across the face, could not tell' it; and on being asked the' color of an inkstand about twelve fee distant, testified that it was blue —which it was; that at the time of the accident, and ever since the marriage of her niece, shortly after the war, she had lived with her, waiting in the house; that she had lived since before the war in the neighborhood, and had been dealing with Mr. Saunders, where she went for the medicine, ever since he started business at that place —a year or more before the accident; that she has no use of her left arm — the broken one — and has to give up sewing, and cannot work; that she is now living with another niece; that she is not in the habit of going out at night — never liked to travel after dark, even when she was a girl; that she used to work in a factory, but since the war only waited on her niece; that she had passed over the broken place once or twice on other occasions without, stumbling.
The plaintiff exhibited her arm to the jury, which had the appearance of stiffness and a large the point of fracture.
And the plaintiff showed to the jury, by Dr. M. L. James, another witness, that the plaintiff came to his office *about the time specified, with a fracture of the two bones — the redius and ulna — -of her left lower arm, near the wrist joint; that the fractures were so near the wrist that it was difficult to keep the portions accurately in place by splint; that all fractures near the joint are serious; that the fracture healed slowly, as was to be expected in one of her age; that the plaintiff, being an old woman, will probably never regain the use of her arm; that her age would doubtless contribute to that result; that she was, as he believed, very poor; that he never attended her for any defect of eyesight, and was aware of none; that if there had been any serious defect he would probably have noticed it — his profession inducing him to notice such things more particularly than a layman; that in his judgment the delay in her seeking professional aid had not af-' fected the result.
And the plaintiff showed to the jury, by another witness, Charles W. Epps, that he is, and was at the time of the accident, and for several years before, a captain of police of the city of Richmond, and that his station house is on Brooke avenue, at the corner of Marshall street, and immediately across the street from the point at which the accident happened; that his duty as to such defects was to report the same to the chief of police, and he (the chief) reported them to the city engineer; that he (witness) was acting chief of police at the time and for two weeks afterwards; that he kept no record of his reports, but is satisfied he reported this defect, as he did all cases of needed repair, to the chief; that the defect had continued, he supposed, three or four months; that it consisted of a place in the pavement 3x5 feet, or thereabouts, from which bricks had been removed, and a few bricks were lying about loose in the opening; that he was not certain he reported to anybody, but if he did, it was to the chief — certainly not to the city engineer or city contractor; that the method of repairing streets was to report to the chief of *police, and he would report to the city engineer, who notified the city contractor to do the work; that whenever the defect was dangerous he reported at once to the city engineer as well as the chief of police; that these defects are at all times numerous; that within the past week he had reported 222 similar defects in his district, *267(that portion of the city west of fourth street), and their habit was and is, every three or four months, to make a thorough overhauling of the streets, and make up their report of defects; that this was simply a case of a sidewalk out of repair from use; that there was no excavation, and that he had never heard of anyone else ever stumbling there; that he himself had walked over the place many a time, and never thought it dangerous; that the street — Brooke avenue — had recently been paved and graded for a long distance, including this portion, and it was necessary to relay the curbing and paving; that the whole sidewalk had to be relaid; and he supposed the contractor, if he knew, was waiting for this general repair, but this is only supposition.
And the plaintiff proved by another witness, Thornes M. Saunders, that he had noticed the defect in the sidewalk before the accident; that it had existed for four or five months, and had told policemen that it ought to be fixed; that he had not reported it at the station house, but to policemen casually in his store; that he could not say it was a dangerous place, but thought some one might fall there and get hurt, and had so told the policemen; that it was repaired thirty or sixty days after the accident, and that he never heard of any other accident there; that he remembered seeing Mrs. Courtney in his store that evening, but knew nothing of the accident; that he observed no defect in her eyesight.
And the plaintiff showed by William J. Orange, another witness, that he is and was at the time a policeman of the city of Richmond, belonging to the district where the ^accident occurred; that no one ever called his attention to this broken place in the sidewalk, but that he had himself noticed it; that it consisted of a few displaced bricks and no hole; that it was not calculated to trip any one who took care, for Brooke avenue at that point was a great thoroughfare, and no one else that he ever heard of had tripped there; that he never reported it to anybody, as he did not think it at all dangerous.
And the plaintiff further showed by another witness, William Baldwin, that he was the husband of the plaintiff’s niece; that the plaintiff had lived in his family for many years, waiting on his wife and looking after his children; that he had often noticed the defect in the sidewalk, and having to pass it every day, he used to go down the street on the other side to avoid it; that the bricks were knocked about and the sand underneath scattered, he supposed, by boys playing at the spot. On the night in question when he came home he found the plaintiff suffering very much, and much troubled in mind as well as body; that he had to get another niece to come and wait upon his wife, who died some six weeks after, and in the following July broke up house, when the plaintiff went to live with another niece; that since his marriage the plaintiff had lived with him, doing no work, except as stated, and after the accident she could not do this work; that he was willing to give her support for the work she did. She was of great use to him, and after the injury she could do no work; that he had to break up housekeeping because she was of no further use to him; that she is now living on the charity of another niece.
This is all the evidence introduced by the plaintiff, and we have to determine, upon the defendant’s demurrer to this evidence, whether such case is made out as entitles the plaintiff to recover, hi determining this, upon well recognized principles repeatedly declared by this court, we must give full credit to the plaintiff’s evidence as truc and *uncontradicled, and also such fair and legal inferences as a jury might draw from the facts proved. But conceding to the plaintiff the benefit of these rules, I am of opinion that the defendant, the city of Richmond, cannot be held liable in damages for the injuries received by the plaintiff.
In the first place, it is to be remarked that there is no express statute which imposes upon the city of Richmond in express terms the duty of keeping its streets in any prescribed order, or declaring its liability for a failure so to do.
In the absence of any express statute, the only responsibility for which the city can be held to account, which arises from the implied liability of all municipal corporations who have conferred upon them powers respecting streets and sidewalks within their limits, is that duty which they owe to the public to keep the same in a safe condition for use in the usual mode by travelers.
A municipal corporation is not an insurer against accidents upon its streets and sidewalks.
Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day. It is not to be expected, and ought not to be required, that a city should keep its streets at perfectly level and even surface. Slight obstructions, produced by loose bricks in the, pavement, or by the roots of trees which may displace the pavement, from the very nature of things cannot be prevented. And so there cannot be perfect uniformity of a level surface where curbstones and culverts are necessary to be constructed on the streets. In a large city, with many miles of paved streets, it must often happen from the very nature of the material out of which the pavement is constructed, that the bricks from the very wear and tear of the use to which they are subjected, will become broken *and displaced so as to cause the fall of a person not careful in walking over them. Certainly if the obstructions are of such a character as those indicated, and which would not cause the fall of a person exercising ordinary care, the city in such case could not be held liable.
Tt is essential to such liability that the plaintiff should show reasonable and ordinary care to avoid the accident, or, in other *268words, was free from any such fault or negligence on his or her part as will in actions for negligence defeat a recovery. (See Dillon on Corporations, § 789, and numerous cases cited in notes).
The defect in the pavement for which the city is sought to be held liable for negligence is described by various witnesses for the plaintiff.
The plaintiff herself described it as a broken place in the sidewalk and says that she struck her foot' against a loose brick in the sidewalk and fell. She says further, that the pavement was broken up and she fell in among the loose bricks. Another witness, Charles W. Epps, then captain of police, describes the defect as follows: “It consisted of a place in the pavement 3x5 feet or thereabouts, from which bricks had been removed, and a few bricks were lying about loose in the opening;” * * * “there was no excavation, and that he had never heard of any one else stumbling there; that he himself had walked over the place many a time and had never thought it dangerous.”
Policeman Orange describes the defect complained of as follows: “It consisted of a few displaced bricks and no hole; that it was not calculated to trip any one who took care; that that point on Brooke avenue was a great thoroughfare, and that no one else that he ever heard of was ever tripped there; that he had never reported it to any one as he did not think it at all dangerous.”
Another witness, William Baldwin, nephew of the plaintiff, describing this defect in the pavement says, that “the *bricks were knocked about and the sand underneath scattered, he supposed by boys playing at the spot; that he had noticed this defect in the sidewalk, and used to go down the street on the opposite side to avoid it.”
The only other witness said he had noticed this defect in the sidewalk, but he could not say that it was a dangerous place but thought that somebody might fall there and get hurt.
I do not think that upon this testimony, and giving full effect to the strict rules applicable to a demurrer to evidence, the plaintiff has made out such a case of negligence on the part of the city as will render -it liable in damages for the injuries received by her fall. Mrs. Courtney in her hurry and distress in going to the drugstore on the night of the accident to procure medicine for her dying niece, might instead of striking her foot against a loose brick on the pavement, have well, by mere accident, have stumbled over a curbstone or cellar door or any other uneven projection common in all streets and have met with the same unhappy accident and injury, for which no one could say that the city was liable in damages.
But if it be conceded that the defect in the pavement, as proved by the plaintiff’.s evidence, was of such a character as to bind the city, for negligence, yet in my opinion the plaintiff cannot recover. Por, according to her own evidence, she well knew of the broken place in the sidewalk where her •fall occurred, and went on the opposite side of the street in going to the drugstore to avoid it. Knowing the defect, she might, with ordinary care have avoided the defective sidewalk by simply passing on the same side of the street on which she had walked to the drugstore. Reasonable care and diligence on her part would have prevented the injury. The law is well settled that it is always essential to fix liability for injuries received by accident that the plaintiff should use reasonable and ordinary care to avoid the accident.
*The party complaining of injury caused by the negligence of another cannot recover, if it appears that by want of ordinary care and prudence on his part, he contributed directly to the injury.
Where negligence is the issue, it must be a case of unmixed negligence to justifjr a recovery. Dillon on Corporations, § 789, and cases there cited. Toledo and Wabash R. R. Co. v. Goddard, 25 Ind. R. 185; and also Judge Burk’s opinion not yet reported in Danville R. R. Co. v. Morris.
Upon the whole case I am of opinion that the judgment of the circuit court is erroneous and must be reversed.
MONCURE, P., concurred in the opinion of Christian, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482004/ | ANDERSON, J.,
concurred in the judgment.
STAPLES, J.,
said he was not prepared to concur in so much of the opinion of Judge Christian as declares that the city of Richmond is not guilty of negligence with respect to the defect in the pavement. He thought, however, it plainly appeared from the plaintiff’s own testimony that she was guilty of contributory negligence and therefore not entitled to recover. Upon this latter ground he was for reversing the judgment, and to that extent he concurred in the opinion of Judge Christian. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482007/ | STAPLES, J.,
delivered the opinion of the court.
This is an appeal from a decree of the chancery court of Richmond. The evidence satisfactorily establishes that John A. Hutcheson, in the month of March, 1862, sold a tract of land near the city of Richmond, known as Windsor, for the sum of $22,570 in Confederate money; that his wife, Mrs. Emily T. Hutcheson, when she was informed of the sale, was greatly disturbed and dissatisfied with it, and peremptorily refused to relinquish her contingent dower interest therein. After repeated consultations *on the subject, Mr. Hutcheson agreed that he would purchase another tract, and settle it on his wife, if she would unite with him in the deed of conveyance to the purchaser of the Windsor farm. With this understanding Mrs. Hutcheson executed the deed, and relinquished her dower interest in the Windsor farm. Shortly afterwards— not later than the 3d of April, 1862 — Mr. Hutcheson accordingly purchased what is known in the record as the Winkler farm, containing about forty acres, at the price of $3,200, Confederate money. There is good reason to believe that Mrs. Hutcheson did not sign the deed for the Windsor place until her husband had actually purchased the Winkler land; nor is there a shadow of doubt but that this latter purchase was made for the purpose of carrying out in good faith the agreement between Mr. and Mrs. Hutcheson. No deed was, however, executed till November, 1867, when Winkler’s executrix conveyed the property to a trustee for the benefit of Mrs. Hutcheson and her children.
The delay in executing the deed grew out of causes connected with the war and certain litigation which need not be explained here, as it is not material to the present enquiry.
After the purchase, however, Mrs. Hutcheson was recognized as the owner, the property was understood in the community to be hers, and in due time it would be secured to her and her children. These facts are fully established by the testimony of witnesses.
That such agreements between husband and wife, when executed, will be sustained by *273courts of equity, or, if not executed, will be specifically enforced, is now will settled. It is only necessary to refer to Davis’ widow v. Davis’ creditors, 25 Gratt. 587; Burwell’s ex’or v. Lumsden, 24 Gratt. 443, and the authorities there cited, for a full discussion of the principles involved in this class of cases.
*The next point of enquiry is whether the settlement is either fraudulent or excessive. There is not the slightest proof of fraud in the transaction. On the contrary, all the circumstances tend to repel any such idea.
If Mr. Hutcheson owed any debts at the time, they were very small compared with the value of his estate, and they have long since been paid off.
It seems, however, that Mr. Hutcheson qualified in April, 1867, as the administrator of Thomas S. Dickins, and entered into bond in the penalty of $13,000 for the faithful discharge of his duties. He wasted or mismanaged the estate, and his liability thus incurred is the foundation of this suit by the legatees to impeach the settlement. It is very true that this liability relates to the time of the qualification as executor, which was anterior to the execution of the deed to Mrs. Hutcheson’s trustee, but the agreement to make the settlement was entered into in 1862, nearly five years before Mr. Hutcheson’s qualification as executor, and.before any liability had occurred from the administration of the estate. The appellants are therefore subsequent creditors, and as such, in the absence of actual fraud, occupy no higher ground than their debtors. The equity of the appellee, Mrs. Hutcheson, is as strong against them as against her husband.
If, therefore, the settlement should be regarded as voluntary or excessive, it would still be valid as against the appellants.
But discarding this view entirely, let us enquire whether the settlement is in fact excessive. And here it may be proper to say the court will not interfere with the settlement unless it plainly appears that the property conveyed to the wife greatly exceeds the value of the dower interest. As was said in Burwell’s ex’or v. Lumsden et als., it is extremely difficult to determine, with anything like accuracy, the value of the wife’s contingent right of dower, the husband *being still alive. No fixed rule can be laid down on the subject. The most that can be said is. that in the absence of fraud, the settlement will not be disturbed unless it plainly appears to be grossly excessive.
In the present case, according to the report of the commissioner, if we go back to 1862, and make a conjectural estimate of the wife’s contingent dower interest, founded upon the tables of mortality, it would seem that the settlement is excessive. But it appears that Mr. Hutcheson died in 1871, and if we look to the actual value of the dower as now appears after the death of the husband, Mrs. Hutcheson has not received more than a just equivalent for what she relinquished. It may be admitted that when the suit is brought to impeach the settlement while the husband is alive, resort must of necessity be had to the tables of mortality to ascertain the value of the contingent right of dower after the death of the husband. This rule, in many cases, could not be adopted with safety after the death of the husband, or with justice to all parties. The calculation of the chances of life must be made, not only with reference to the wife, but the husband also; his health, peculiarities of constitution, and other attending circumstances.
Without a full understanding of these matters, no commissioner can fix a reliable estimate of the husband’s expectancy of life; no court could safely pronounce a .settlement excessive upon any calculations made in the absence of such data.
An estimate of the value of the dower interest in 1862, made after his death in 1871, without reference to the circumstances affecting his expectancy of life, must of necessity be unreliable. The delay of the appellants, in instituting their suit, renders it necessary and proper that the court should look at all the facts as they existed before and since the death of Mr. Hutcheson, in order to form a just estimate of the settlement.
*In the fight of these facts, it is manifest that the wife has hot received more than a just equivalent for the interest relinquished by her. No injustice has been done the creditors. The appellants certainly have no just cause for complaint. We are therefore of opinion that the decree of the chancery court is correct, and should be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482010/ | ANDERSON, J.,
This case comes up on a motion to dissolve an injunction on bill and ánswer. The injunction was to enjoin the sale of a tract of eleven hundred and seventeen acres of land in the county of Pittsylvania, by a substituted trustee, under a deed of trust, to satisfy a debt of $4,000, and the interest which had accrued on it, and five per cent, commissions to the trustee.
One of the grounds of the injunction was, that the trustee as alleged by the bill was insolvent, and otherwise unfit for the execution of such a trust, and ought at least to be required to give security before he should be allowed to proceed with the execution of the trust. Another ground is that the land is a large and valuable tract, and ought to Be divided and sold in separate parcels. That there are now four settlements on it, and two others have been commenced, and that it might- be divided into six convenient and valuable farms. The plaintiff alleges that he knew persons who would bid for and pay a fair price for the different parcels, if sold separately, but knew of no one who would bid against the creditor, William R. Fitzgerald, if the land was sold in one body.
He alleges that the said Fitzgerald positively refused to allow the trustee to sell m any other way than for cash and the land in one body, his object being to bid it off for himself at a great sacrifice.
He also alleges that he went to the said 'Fitzgerald, and desired him to sell the land in separate lots and parcels, and proposed to advertise and sell himself, notifying the purchaser to pay the purchase money to the said Fitzgerald, but he positively refused to allow him to sell at all; and he then insisted that he should direct the trustee, *Tredway, to sell the land in different lots and parcels to suit purchasers; and he alleges that if it is fairly and properly sold in parcels, it will not require the sale of the whole to pay said debt, but enough can be sold to pay what is due, and leave him a comfortable home. The trustee himself represents the land as very fertile, and highly productive-for all crops raised in that section. “There are,” he says, “good and valuable improvements, consisting of a large dwelling house, outhouses, stables, barns, &c., &c., in fact the property is well improved, in a high state of culture, and considered one of the best farms in this whole region of country.”
Insolvency does not disqualify a person to act as a trustee, though it has not been uniformly so held. Mr. Hill says: For the
removal of an insolvent trustee, and the appointment of a new trustee in his place, a bill must be filed in a court of chancery;
*283and the insolvency would unquestionably be sufficient foundation for such an application. Hill on Trustees, top p. 832, side 534. But in 1 Perry on Trusts, 2 ed., p. 353, § 279, it is said that generally the insolvency or bankruptcy of a trustee does not disqualify him for the trust. Yet he says that in the United States trustees are or may be required, in the great 'majority of cases, to give bonds or security for the safety of the trust fund. In McCullough & al. v. Sommerville, 8 Leigh, 415, both the trustees were wholly irresponsible individuals, owning no property of any description, and this court held that the circuit court acted with entire propriety in relieving the trustees from the execution of the trust, and in taking a control of the funds for the purpose of distribution. P. 439-40.
There were other grounds urged also m the lower court for the removal of the trustees, but this court does not appear to have sustained the removal upon them.
We think that where money of the trust fund is to pass through the hands of an insolvent trustee, upon the application *of one who is interested in the right disbursement of the money, and who is apprehensive that it may be misapplied or misused, a court of chancery ought, undoubtedly, to require of the trustee security before he is allowed to proceed with the execution of the trust. Whether the sale of the land by the trustee in this case would be a discharge pro tanto of the debtor’s obligation to the creditor, in case the trustee fails to pay over the money to him, is a question abijut which there may be different opinions. It is implied, by a declaration in the answer of Fitzgerald, that he would, in that case, consider the debtor absolved. And if that dec's ration could be regarded as a release of the debtor from responsibility in case of a diversion and misuse of the money by the trustee, he had not the benefit of it when he filed his bill, and it could not indemnify him .for any surplus the land might bring over paying the debt if used by the trustee. Suppose the land should sell for three or four thousand dollars more than the amount of the incumberance upon it, which is not an unreasonable supposition, from the trustee’s description of it, and the trustee refused to pay it over to the owner, where and to whom could he look for indemnity?
The answer does not deny the insolvency of the trustee. The trustee has not answered at all; and the creditor, in his answer. says, although the said Tredway might be utterly solvent, (which the defendant does not admit), yet such insolvency could entail no loss on the complainant, &c. On a motion to dissolve an injunction, the allegations of the bill which are not denied must be taken to be true, although they are not admitted. The allegation of insolvency, not being denied, must be taken to be true, although it is not admitted by the answer. Although the said Tredway was substituted as trustee by an order of the court, on motion of which the debtor had notice, we are of opinion that he is not thereby precluded from applying to a court of equity to require of him bond and ^security before he proceeds to execute the trust. And it would be no hardship on the creditor if it devolved on him the necessity of going his security, as it seems, according to his view, it would not increase his responsibility; and for the debtor, it is but what sheer justice requires. The bill alleges, that Samuel M. Stone was appointed trustee in the deed because he was known to the grantor to be a good business man, of high character, and a man of substance, and entirely solvent, who would act impartially and fairly in the matter. It is true that he had notice of the motion that would be made by Fitzgerald to substitute Ro. H. Tredway. his counsel, in the place of Stone, who, he represented, had refused to act. As soon as he received this notice, he went to see Fitzgerald about it, and to learn from him why he proposed to appoint his counsel, Ro. H. Tredway, trustee in place of Stone, who informed him that Stone had refused to act. He says he had never had any conversation with Stone on the subject, but has no doubt, that if he refused to act it was because of unjust requirements made of him by the said Fitzgerald. Fie avers that he would have objected to the appointment of said Tredway, trustee, if the said Fitzgerald had not induced him to believe that there never would be any necessity for the trustee to sell the said land. If he was thereby prevented from appearing in court, and objecting to his appointment, it would have been a fraud upon him, and the order appointing him ought not to be binding on him. The answer of Fitzgerald is not directly responsive to this allegation, though he “utterly denies that he ever, at any time, gave any assurance to the complainant that he did not wish to close said deed, or that he did (not) want the principal, as well as the interest, of his money;” which is responsive to another allegation of the bill. He does not deny that Tredway was his counsel, but denies that he is or has been his counsel in this proceeding since his appointment as trustee. The bill charges *“that the said Tredway is not a fit or proper person to act as trustee in the deed of trust aforesaid; that he is the counsel of the said Fitzgerald, and employed and paid by him to represent his interest entirely, and is insolvent, and ought not to be allowed to sell the land, without first giving security, even if he was a lit and proper person to act as trustee.”
A trustee, who is to act as the agent of both parties, should have no bias or partiality which would disqualify him fairly to discharge his duty, and to do justice to both parties. Where the parties agree that their respective counsel may act as trustees, it may be done. But where there is but one trustee, he ought not to be the counsel of one of the parties, especially where, as in this case, he may have to decide questions which may be of vital interest to the adverse party.
The answer does not deny the allegations before recited, that the plaintiff applied to the creditor, and also to the trustee, to have the land laid off and divided into different *284tracts, and sold separately, and that they both refused to comply with that request. He denies only that he ordered the trustee to advertise the whole of said tract of land for sale, or that the trustee so advertised it, but affirms that he advertised strictly in conformity with the provisions of the deed so much_ of said land as might be necessary to pay the debt, and refers to the advertisement, which is made an exhibit. The advertisement is that he will sell, by way of public auction, so much as may be necessary to pay the debt, &c. He and Fitzgerald both' refused, as is alleged, the request of the grantor to divide the tract, laying it off into four, five or six different farms, for which it was well adapted, and selling them separately, or so many of them as was necessary to pay the debt, &c. And this allegation, not being denied on a motion to dissolve, must be taken to be true. The plaintiff had a right, therefore, to conclude that they had no other purpose, from the advertisement, *than to offer the whole in a body, for to do so — the creditor having no competition in the bidding — it would hot sell for more than enough to pay his debt, interest and costs, if that. Under that advertisement they might have offered it to the bidder who would pay the debt, &c., for the smallest quantity of the land, as in the sale of land for taxes. Or on the day of sale, they might have offered such part of it as they chose, and if insufficient, then offer another part of it, and so on until 'they sold enough to pay the debt. But this advertisement gives no notice to the public that it would be so offered, or how the tract would be divided, or description of the parcels that would be offered separately, so as to invite the attendance of bidders, who might wish to purchase portions of the tract.
It is true, that the deed directs the trustee to “sell the said land, or enough thereof, to pay the debt and interest then due. and the costs of sale.” The trustee being the agent of both parties, it was his duty to sell the land as a whole, or in separate parcels, as would be conducive to its bringing the most money. It was his duty to sell it so as to get the best price for it. And the deed does not prescribe any particular mode of selling it. He is only limited not to sell more than enough to pay the debt, &c. It does not provide that he shall sell it in one tract, nor does it prohibit him to sell it in parcels. We hold that it was the duty of the trustee to sell it in parcels, if by that mode it would bring the best price. And although he has a discretion, it is a legal discretion which is subject to the control of a court of equity. And if the land will bring a better price by dividing it and selling it in separate lots, and the owner desires and requests it, and the trustee refuses, the owner thereby invokes the intervention and assistance of a - court of equity, in a proper cause to control him in the exercise of his discretion. In Crenshaw v. Seigfried, 24 Gratt. Judge Moncure, speaking *for the whole court, said, If the debtor desires that a particular and designated portion of the land, fully adequate by a sale for cash to produce the amount of the debt and expenses, such desire ought to be carried into effect. In this case the debtor does not insist that only a part of the land shall be sold, or object to selling the whole if necessary for the payment of the debt and expenses,'but only insists that it shall be laid off into particular and designated portions, having assurance that it will sell better, and will not require the sale of the whole to pay the debt and expenses. The principle as laid down in the cited case, we think, clearly applies to this. In that case it was further held, that “the court in the exercise of a sound discretion, had authority to substitute a commissioner'of sale in lieu of the trustee named in the deed,” and a fortiori a substituted trustee.
The court having possession of this case ought, instead of dissolving the injunction, to have retained it, and directed the execution of the trust. It had authority to appoint commissioners • to view the land and take testimony, and to report whether it was susceptible of division into different tracts, and in what way, with power to employ a surveyor to lay it off into as many different tracts as would promote an advantageous sale. And if upon the coming in of the report, the court was satisfied, from it and the testimony, that it would be conducive to an advantageous sale to have it so divided and sold in separate parcels, it would have authority to direct that it should be advertised and sold in-such lots or parcels, and the cyder in which they should be sold, until enough were sold to pay the debt, interest, and expenses. And there is nothing in the deed which is restrictive of the power of the court, to so direct.
That such a mode of procedure would in this case conduce to an advantageous sale we must conclude from what is before us. The bill so alleges, and that allegation is not *contradicted by the answer; it ought, therefore, on this motion to have been taken as true. And that- allegation of the bill seems to be well supported by the consideration, as is alleged, if the tract is offered as a whole for cash, Fitzgerald would have no competition in bidding for it, and would get it at any price he might choose to bid, and the land would necessarily be subjected to a great sacrifice. Whereas if it were laid off into a number of small convenient farms, the plaintiff declares that there were persons within his knowledge who were able and willing to buy and pay fair prices, and he believed that in this way the sale of a part of the tract would pay the debt and costs and leave him a comfortable home; and these allegations of the bill are not denied in the answer. And why should not this just demand of the debtor be conceded to him when it could not prejudice the rights of the creditor? It seems it is prevented by the refusal of the trustee, who has not answered the bill. The creditor, in his answer, says, “As to the allegation in regard to the parceling out said land, this defendant can only say that all he desires is the payment of his debt and interest *285and costs, and would be satisfied with the sale of any portion of said land, however small that might be, sufficient for that purpose.”
That was all he was entitled to require; and the grantor had a right to require the trustee to proceed, in a way to effect that object, by the sale of as little of the land as practicable. And the creditor does not now seem to object to it. Why, then, should it not be done?
The court is of opinion, therefore, that the circuit court, instead of dissolving the injunction, should have continued it, retained the cause, and had the sale made under its supervision and direction, as indicated by its own commissioner; and might have appointed the substituted trustee such commissioner, upon his giving bond, with security, conditioned lor the faithful execution of the trust, if not deemed otherwise unfit and disqualified for the discharge of the trust.
’¡'The court is of opinion, therefore. to reverse the decree of the circuit court dissolving the injunction, with costs, and to remand the cause to the said circuit court, to be proceeded with in conformity wi£h the principles declared in this opinion.
STAPLES and BURKS, J’s, concurred in the opinion of Anderson, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482098/ | J-A26013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD UNRATH :
:
Appellant : No. 1966 EDA 2021
Appeal from the Judgment of Sentence Entered May 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008350-2019
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 7, 2022
Edward Unrath appeals from the judgment of sentence of forty to
eighty-four months of imprisonment imposed following his convictions of
aggravated assault, simple assault, recklessly endangering another person
(“REAP”), and possession of an instrument of crime (“PIC”). We affirm.
The trial court offered the following summary of the facts underlying
Appellant’s convictions:
[The victim, Jason Gotwalt,] left his home to go to work at
approximately 7:00 a.m. on August 12, 2019. He left through the
front door of the house, which faces the street, and walked
towards his driveway via the front walkway. [An] assailant
approached Mr. Gotwalt holding a taser. This prompted Mr.
Gotwalt to flee towards the front steps of his home, where he fell
to the ground. While on the ground, Mr. Gotwalt was tased twice
on the back of his shoulder. Mr. Gotwalt then turned over, and
the assailant punched Mr. Gotwalt’s face and upper body
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* Retired Senior Judge assigned to the Superior Court.
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repeatedly (approximately 15 times). The attacker then ceased
his attack, and ran down the front lawn toward the street as a
pickup truck pulled up near the house. The attacker got into the
truck, and it [sped] away. Mr. Gotwalt sustained injuries of a
broken nose, skin lacerations to his shoulders and arms, and
bruising on the back of his shoulder. All parties agree that the
assault occurred as described by Mr. Gotwalt, and that the
assailant fled as a passenger in the vehicle.
Mr. Gotwalt identified [Appellant] as the driver of the
getaway vehicle. Mr. Gotwalt knew [Appellant] prior to the assault
because [Appellant] is Mr. Gotwalt’s ex-girlfriend’s uncle. Mr.
Gotwalt had previously met [Appellant] in this context on five or
six occasions. On these occasions, Mr. Gotwalt also observed
[Appellant]’s vehicle, which he found memorable because it is a
silver pickup truck with mismatched doors and fenders. Mr.
Gotwalt identified the getaway vehicle as that same silver pickup
truck with mismatched doors and fenders.
Trial Court Opinion, 5/4/22, at 1-2 (citations omitted).
Appellant was charged with the above-referenced offenses along with
criminal conspiracy. At the conclusion of a bench trial, the trial court found
Appellant guilty of all charges.1 Appellant filed a pre-sentence motion for
extraordinary relief contending that the evidence was insufficient to sustain
his convictions and the verdict was against the weight of the evidence. The
trial court granted the motion as to conspiracy, changing the verdict on that
count to a judgment of acquittal. The trial court denied the motion in all other
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1 The man charged with being the assailant was acquitted based upon
insufficient identification evidence.
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respects, and imposed the sentence indicated above on the remaining
convictions.2
Although Appellant indicated at sentencing his desire to file an appeal,
trial counsel failed to do so. Appellant’s direct appeal rights were subsequently
reinstated through a Post Conviction Relief Act (“PCRA”) petition, and this
appeal was timely filed. Counsel failed to timely comply with the trial court’s
order to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b). The trial court nonetheless addressed the issues raised
in Appellant’s late filing in its Rule 1925(a) opinion, rendering the issues ripe
for our review.3 Appellant raises the following question for our consideration:
“Was there sufficient evidence to prove aggravated assault, [PIC], simple
assault and [REAP] beyond a reasonable doubt?” Appellant’s brief at 3.
The following principles guide our review:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for a
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
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2Specifically, the court sentenced Appellant to forty to eighty-four months for
aggravated assault and imposed no penalties for the other convictions.
3 See Commonwealth v. Williams, 245 A.3d 710, 715 (Pa.Super. 2021)
(“‘When counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed those issues, we need not remand [pursuant to Rule
1925(c)(3)] and may address the merits of the issues presented.’
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012).”).
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possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence received must be considered.
Finally, the trier of fact, while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Hobel, 275 A.3d 1049, 1069 n.8 (Pa.Super. 2022)
(internal quotation marks omitted).
Appellant does not dispute that the Commonwealth proved that Mr.
Gotwalt’s assailant committed aggravated assault, simple assault, REAP, and
PIC.4 Appellant’s challenge is to the evidentiary support for a finding that he
was vicariously liable for the assailant’s criminal conduct. Specifically,
Appellant argues that there was no evidence offered to prove that he had prior
knowledge of the assault or that he was present during its commission. See
Appellant’s brief at 5. He maintains that his lone act of driving the assailant
away was not itself enough to establish his culpability. Id.
Appellant was legally accountable for the conduct of the assailant if he
acted as his accomplice. See 18 Pa.C.S. § 306(a), (b)(3). One is culpable as
an accomplice if, “with the intent of promoting or facilitating the commission
of the offense, he . . . aids or agrees or attempts to aid such other person in
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4The trial court’s opinion details the evidence that proved each element of
each crime. See Trial Court Opinion, 5/4/22, at 5-8.
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planning or committing it[.]” 18 Pa.C.S. § 306(c)(1)(ii). “Accomplice liability
requires only aid, not an agreement.” Commonwealth v. Jordan, 212 A.3d
91, 95 (Pa.Super. 2019). “An accomplice’s conduct does not have to result in
and of itself in the criminal offense, but rather an accomplice’s conduct must,
with the intent to promote or facilitate, aid one whose conduct does causally
result in the criminal offense.” Commonwealth v. Bridges, 381 A.2d 125,
128 (Pa. 1977). Similarly, the accomplice’s intent need not be to cause a
particular result, only to aid in the principal’s commission of the offense. See,
e.g., Commonwealth v. Roebuck, 32 A.3d 613, 624 (Pa. 2011).
Mere presence at the scene of a crime is insufficient to establish
accomplice liability. See, e.g., Commonwealth v. Lambert, 795 A.2d 1010,
1024 (Pa.Super. 2002). Rather, the Commonwealth’s burden is to prove that
the defendant had some slight participation in the crime. See
Commonwealth v. Wagaman, 408, 627 A.2d 735, 740 (Pa.Super. 1993).
However, “[t]he least degree of concert of collusion is sufficient to sustain a
finding of responsibility as an accomplice.” Commonwealth v. Coccioletti,
425 A.2d 387, 390 (Pa. 1981).
Direct evidence of an accomplice’s intent to aid the perpetrator of a
crime is unnecessary. As with any element of a crime, “the Commonwealth
may rely wholly upon circumstantial evidence.” Jordan, supra at 95. As our
Supreme Court has explained, “a shared criminal intent between the principal
and his accomplice may be inferred from a defendant’s words or conduct or
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from the attendant circumstances.” Commonwealth v. Le, 208 A.3d 960,
969 (Pa. 2019). Inferences may not be based upon mere suspicion, but must
be logical conclusions drawn from proven facts. See Commonwealth v.
Jackson, 955 A.2d 441, 444 (Pa.Super. 2008).
With these principles in mind, we turn to the evidence at issue in the
case sub judice. The trial court rejected Appellant’s claim that the
Commonwealth failed to offer sufficient evidence that he acted as an
accomplice, explaining as follows:
For purposes of a criminal conviction as an accomplice, the
amount of aid rendered may be insubstantial, provided it was
rendered in support of a criminal act. Commonwealth v.
Murray, 83 A.3d 137 (Pa. 2013). A person who waits in the
vicinity of a criminal act for the purpose of acting as a getaway
driver is as guilty of the underlying crime as is the main criminal
actor. Commonwealth v. Coyle, 203 A.2d 782 (Pa. 1964).
Acting merely as a driver is not sufficient to demonstrate that a
person was an accomplice—there must be some evidence, or
inference from [the] evidence, which suggests that the driver was
aware they were facilitating a crime by providing a getaway.
Commonwealth v. Finley, 383 A.2d 1259, 1260 (Pa. 1978)
(citing Commonwealth v. Lowry, 98 A.2d 736 (Pa. 1953) (“If
he watched for his companions, in order to prevent surprise, or
remained at a convenient distance in order to favor their escape
. . . he was aiding and abetting.”)).
The facts of the present case are sufficient to prove beyond
a reasonable doubt that [Appellant] was the driver of the pickup
truck and was acting as an accomplice to the assault and related
crimes by acting as the getaway driver. The fact that the pickup
truck drove up to the house to pick up the assailant just as the
assault was complete is consistent with the pattern of a person
acting as a getaway driver. . . . The facts of this case strongly
support the inference that the getaway driver not only waited
while the assault was occurring, but also watched the assault in
progress to know when to pick up the assailant. Mr. Gotwalt
positively identified the driver as [Appellant] and the pickup truck
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with unique mismatched paint as the vehicle known to be driven
by [Appellant].
Trial Court Opinion, 5/4/22, at 4-5.
Appellant attempts to distinguish the cases relied upon by the trial court
by noting that they each involved direct evidence that the accomplice had
either provided more assistance to the perpetrator, or had been with the
primary actor before or during the commission of the crimes. See Appellant’s
brief at 9-11. However, our review of the certified record, viewed in the light
most favorable to the Commonwealth, confirms that the Commonwealth
proffered sufficient circumstantial evidence to allow the fact-finder to
reasonably infer that Appellant was not a mere bystander who innocently
stumbled onto the scene.
In addition to the circumstantial evidence highlighted by the trial court,
the Commonwealth further established that Appellant “had motive to attack
because [Appellant’s] niece and Mr. Gotwalt were engaged in a contentious
custody battle over their son at the time of the incident.” Commonwealth’s
brief at 9 (citing N.T. Trial, 2/24/21, at 47). The Commonwealth offers the
following succinct explanation why Appellant’s claim is meritless:
[The] circumstantial evidence demonstrates that [Appellant]
acted as an accomplice because he acted with the intent to
facilitate the attack. The attack was completed in seconds, and
. . . the assailant knew to run to the exact area where [Appellant]
would appear to pick him up moments later. . . . Had [Appellant]
not intended to promote or facilitate the crime, it is highly unlikely
he would have stopped to pick up an unknown man running down
a hill toward him at that time of day. It is even more unlikely that
he would let this man enter his car and then immediately speed
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away from this seemingly random location at the bottom of a hill
if he did not know that he was absconding from a crime scene.
Id. at 8-9 (citing N.T. Trial, 2/24/21, at 37, 52, 78).
As discussed above, the Commonwealth’s evidence does not have to
preclude any possibility of innocence, but rather must prove sufficient facts to
surpass mere surmise and establish a foundation for logical inferences made
beyond a reasonable doubt. See Hobel, supra at 1069 n.8; Jackson, supra
at 444. We hold that it did so in this case. The verdict is the product of the
logical, factually-supported determination that Appellant did not just happen
to drive by the home of the opposing party in his niece’s custody battle in the
early morning hours, at the exact time that the assailant had run to the road,
and then opt to pick up a stranger and speed away, unintentionally aiding the
assailant in fleeing from a crime scene. Accord Commonwealth v. Causey,
833 A.2d 165, 173 (Pa.Super. 2003) (“The evidence at trial showed that
appellant, at the very least, was the getaway driver of the vehicle from which
his brother shot at the victim. We conclude that the evidence, if believed, was
sufficient for the jury to find that all the elements of aggravated assault had
been proven against appellant under a theory of accomplice liability beyond a
reasonable doubt.”). Therefore, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
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https://www.courtlistener.com/api/rest/v3/opinions/8485317/ | OPINION OF THE COURT
MORROW, Chief Judge.
Laumea filed his application to be registered as the holder of the matai title Nua attached to the Village of Siufaga in Ta’u, Manua. Toatolu, Tigilau, and Uluvalu Nua each filed an objection to the proposed registration, each of them becoming a candidate for the name. Hence this litigation. See Section 932 of the A. S. Code.
When the hearing began, both Tigilau and Uluvalu Nua withdrew their respective objections and ceased to be candidates.
Section 926 of the A. S. Code as amended prescribes the qualifications for holding a matai name or title. The evidence established that each of the two remaining candidates, viz. Laumea and Toatolu, possesses the necessary qualifications and is, therefore, eligible for registration as the holder of a matai name or title.
Section 933 of the A. S. Code as amended prescribes the law which the Court shall follow in determining which one of opposing candidates for a matai title or name shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female de*225scendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
With respect to the issue of hereditary right, the undisputed evidence establishes that Laumea is the great-grandson of Nua Aufotu and has 1k Nua blood in his veins, and that Toatolu is the blood-son of Nua Seanoa and has lh Nua blood in his veins. It follows, therefore, that Toatolu prevails over Laumea on the issue of hereditary right.
Laumea objected to 284 signers on Toatolu’s list while Toatolu objected to 295 on Laumea’s list.
Toatolu claimed that 295 on Laumea’s list were not blood members of the Nua Family. He claimed that they were Mailo Family members instead. Laumea testified that the Mailo title is a lesser matai title in the Nua Family. Toatolu testified that it was not. Laumea is the blood son of the present Mailo who is living on Nua land. While the testimony is conflicting, we think that the evidence preponderates in favor of the view that these 295 persons objected to by Toatolu are blood members of the Nua Family. We believe from the evidence that Mailo is a lesser matai title in the Nua Family.
Laumea claimed that 211 signers on Toatolu’s list were not blood members. His claim is grounded upon the further claim that the grandfather of Toatolu, Nua Seanoa, was an adopted child and that his brother Tiula, from whom many of the signers for Toatolu claimed descent, was never a Nua. Toatolu claimed that his grandfather was not adopted and that his brother Tiula was a Nua according to family tradition. There was contradictory evidence on both of these matters. However, if it should be granted that *226Toatolu’s grandfather was an adopted child, it would not follow at all that he did not have Nua blood. Many times a Samoan couple will adopt an aiga who has the blood of one of them. The testimony respecting the claimed adoption was grounded on hearsay and, consequently, not very reliable.
And if Toatolu’s grandfather did have Nua blood when he was adopted, if he was adopted, then his brother Tiula would have Nua blood and the brother under those circumstances could well have become a Nua. We know that many times in the olden days that when a chief died his brother succeeded to the title. Taking the testimony as a whole, we think that the weight of evidence favors the view that the 211 objected to by Laumea are blood members of the Nua Family.
There were 32 signers who were on both petitions. Under those circumstances we are unable to say which candidate they really favored. There were six children under 14 years of age who signed for Toatolu. Laumea claimed that 29 signatures on Toatolu’s list were forgeries. There was no testimony by an expert on handwriting with respect to this matter. Also, it was claimed that six on Toatolu’s list purported to sign in Ta’u when they were in Tutuila. However, a Ta’u man signing in Tutuila could well have given his village as Ta’u, considering that to be his home. We think that there should be deducted from Toatolu’s list of 396 signers the 32 who signed on both petitions. That leaves 364. If we take off the six under 14 years of age, that leaves 358.
It is clear to us from an examination of p. 3 in Toatolu’s petition that if there were some forgeries there, the total number is considerably less than 29. However, if it be conceded that Laumea is correct in claiming that the 29 signatures were forged and that the six who purported to sign in Ta’u when they were actually in Tutuila were improp*227erly on the petition, there would be left on Toatolu’s petition 358 less 35 (29 plus 6) or 323.
And having deducted the 32 who signed on both petitions from Toatolu’s list, we should do likewise from Laumea’s list, which would leave 305 on his list. There are two signers under 14 years of age on Laumea’s list. These should be deducted, thereby leaving 303 on his list as against 323 left on Toatolu’s list.
As we view the evidence, Toatolu prevails over Laumea on the issue of the wish of the majority or plurality of the blood members of the Nua Family, Toatolu having 323 blood-family members supporting his candidacy while 303 support Laumea. However, we think that a few more than 323 support Toatolu, because we do not think that there are 29 forged signatures on p. 3 of Toatolu’s list; also, we do not believe that six of the signers who signed for Toatolu in Tutuila and not Ta’u, though they gave Ta’u as their village, were not blood members. Nevertheless, we have deducted the 29 and six in reaching the figure of 323 for Toatolu.
We find for Toatolu on the issue of the wish of the majority or plurality of those members of the family connected by blood to the title.
Laumea speaks English. He is a graduate of Papatea Junior High School in Ta’u, Class of 1946; also a graduate of the Samoan High School in Utulei, Class of 1951. He has been a teacher for 10 years and has attended ten teachers’ institutes, each about two months in length. He has taught in various schools and is now the Principal of Papatea Junior High School, which has an enrollment of over 200 students. As Principal he receives a salary of $1701.20 a year after Social Security deductions. He receives $180 a year as a part-time employee of the United States Post Office Department. He is the part-owner of a store in Ta’u and has an income of $50 to $75 a month from the store. *228He sells about $800 worth of copra a year; also from $200 to $300 worth of pigs. He also sells about $50 worth of poultry in a year. He receives contributions from his brothers on the mainland which he turns over to his father Mailo. Laumea has put up a fresh water storage tank in Ta’u from which many people get water. He has plantations. Laumea is 33 years old.
Toatolu speaks English. He graduated from the Papatea School in 1936 and then attended the Marist Brothers School in Tutuila for awhile. He then returned to Ta’u to render service to the Nua title. He is a carpenter and has participated in the building of many Samoan houses. Toatolu was at the head of about 40 carpenters building a Samoan guest house in Aua when this case was being heard. He has travelled in the United States and, of course, spoke English there. Toatolu was selected as a member of the Agricultural Committee in Ta’u. He is a boatbuilder as well as a carpenter. He has an income of about $700 a year from the sale of copra, bananas, and taro. He receives substantial contributions from áiga, some in Samoa, some in the States. However, most of these contributions go to the support of the Aufotu title. He is looking after the Aufotu Family. We understand that Aufotu is a lesser matai title in the Nua Family. Toatolu is 44 years old. In accordance with Samoan customs, Toatolu receives compensation when he builds a house. This may run as high as $500.
During the course of the hearing, the Court had an opportunity to observe the personalities of both candidates.
Our conclusion from the testimony and our observation of the candidates is that Laumea prevails over Toatolu on the issue of forcefulness, character, personality and capacity for leadership, and we so find.
The value of the holder of a matai title to the Government depends in large measure upon his capacity for leadership. In this case, Laumea has demonstrated his capacity *229for leadership by the fact that he has been a teacher and has been promoted to the principalship of Papatea Junior High School. He is a law-abiding person and a trusted part-time employee of the U.S. Post Office Department. Toatolu is a carpenter and boatbuilder. We think his capacity for leadership is not as great as that of Laumea. Furthermore, it appears to us from the evidence that Toatolu has been using the matai title Aufotu in violation of law. Everything considered, it is our conclusion that Laumea prevails over Toatolu on the issue of “the value of the holder of the matai name to the Government of American Samoa.”
To sum up, we have found that Toatolu prevails over Laumea on the first two issues while Laumea prevails over Toatolu on the last two issues.
Under Section 933 of the A. S. Code, as amended, we must give most weight to the first issue, less to the second issue, still less to the third issue, and the least weight to the fourth issue.
Since Toatolu prevails over Laumea on the first two issues, viz. hereditary right and the wish of the majority or plurality of the blood members of the family, it follows that according to the law we must award the matai title Nua, attached to the Village of Siufaga, to Toatolu.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Toatolu shall be registered as the holder of the Nua matai name attached to the Village of Siufaga.
Costs in the sum of $46.00 are hereby assessed against Laumea, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482038/ | Moncure, P.,
delivered the opinion of the court.
This cause, which is pending in this court at Richmond, having been there fully heard but not determined, this day came here the parties, by their counsel, ánd the *402court having maturely considered the transcript of the record of the decree aforesaid and the argument of counsel, is of opinion that only the estate of a bankrupt, whatever it may be at the time of his becoming such, including of course any estate he may have aliened, by 'an act fraudulent and void as to his creditors, is vested in his assignees in bankruptcy for the benefit of his creditors; and, therefore, that no estate which may have been sold and conveyed by him, by deed duly recorded, to a bom fide purchaser for valuable consideration fully paid prior to the act of bankruptcy, becomes so vested in said assignees.
The coui’t is further of opinion, that a judgment creditor of the bankrupt, whose judgment is a lien upon any estate so sold and conveyed by the bankrupt, may claim and secure in the proceeding in bankruptcy his portion of the estate of the bankrupt, in virtue of his said judgment, without accounting or giving credit for anything on account of the lien of his judgment upon the estate so sold and conveyed as aforesaid.
The court is further of opinion, that notwithstanding such creditor may have so claimed and received in the ■ proceeding in' bankruptcy his portion of the estate of the bankrupt as aforesaid, such judgment creditor may, by a suit in equity, enforce the lien of his said judgment upon the estate so sold and conveyed as aforesaid, for the recovery of any balance of said judgment which may remain unrecovered in the said proceeding in bankruptcy; and that notwithstanding he may not, in the said proceeding, have asserted or given any notice of the lien of his said judgment upon the estate so sold and conveyed as aforesaid.
The court is therefore of opinion, that the circuit court erred in dismissing the original and amended bills of the complainants; and that instead of doing so, the said court ought to have proceeded to adjudicate the rights of the *403parties involved in the case, in regard to which rights it is not deemed proper by this court, as it would be premature, to express any further opinion than as aforesaid •until the said circuit court shall have adjudicated upon them, and it may become the duty of this court to supervise the judgment of that court on appeal.
• Therefore, it is decreed and ordered that the said decree appealed from be reversed and annulled; that the •appellee, Robert A. Walters, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here; and that the cause be remanded to the said circuit court for further proceedings to be had therein to a final decree, in accordance with the principles herein-before declared; which is ordered to be. entered on the order-book here and forthwith certified to the clerk of this court at Richmond aforesaid, who shall enter the same on his order-book and certify it to the said circuit court of Pittsylvania county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482039/ | Christian, J.,
delivered the opinion of the court.
The main question we have to determine in this case is, whether the widow of a decedent who, in his lifetime, has failed to claim and set apart a homestead, and who dies leaving no children, and there being no creditors, can claim a homestead in the estate of her husband ? .
In the case before us, commissioners appointed for that purpose, after laying off’ and assigning to her one-third of the real estate of her husband as her dower, also set apart to her the remaining two-thirds, that being valued at the sum of $2,000, the amount of homestead exemption in this state. So that, according to the report of the commission ei’s, the whole real estate of the decedent was transferred to the widow for life, to the exclusion of the heii’s. Exceptions, however, were taken to *407the report of the commissioners by the heirs of decedent, one of which (the third exception) was as follows:
“ 3d. And complainants further except to the assignment of homestead for the following reason: That the wddow is not entitled to homestead in addition to her dower and year’s support.”
The court sustained this exception by the following decree:
“And the court sustains the third exception to the report of commissioners of assignment of homestead, the court being of opinion that the widow of a decedent who died since the present constitution of Virginia went into effect is not entitled to a homestead in the estate of her husband; whereas in this instance the decedent died owing no debts, and that while said homestead may be claimed and held as against creditors whose claims were contracted since the present constitution went into effect, in case there is no waiver of homestead in favor of said creditors, that said homestead cannot be claimed and held against heirs at law and distributees of the dece-. dent’s estate.”
From this decree an appeal was allowed by one of the judges of this court.
• The question we have to determine is one purely of construction, and must be determined alone upon the true interpretation to be given to the provisions of the constitution in relation to the homestead exemption, and the statute law passed in pursuance thereof.
Section 1, article 11, of the constitution, provides that “ every householder or head of a family shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnisheeing or sale, under any execution, order or other process, issued on any demand for any debt # * * hereafter contracted, his real and pei’sonal property, or either, including money or debts due him, whether heretofore *408or hereafter acquired or contracted, to the value of not exceeding two thousand dollars, to be selected by him: provided,” &c., (and then follow certain specified exceptions to which such exemption shall not apply, not necessary to be noticed here).
The •fifth section of said article contains the following provision: “The general assembly shall, at its first session under this constitution, prescribe in what manner and on what conditions the said householder or head of a family shall thereafter set apart and hold for himself and family a homestead out of any property hereby exempted, and may, in its discretion, determine in what manner and on what conditions he may thereafter hold for the benefit of’ himself and family such personal property as he may have, and coming within the exemption hereby made. But this section shall not be construed as authorizing the general assembly to defeat or impair the benefits intended to be conferred by the provisions of this article.”
. Section 7 declares that “ the provisions of this article shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.”
I have thus quoted in full all the provisions of the constitution having reference to the subject under enquiry.
In accordance with the requirements of the fifth section above quoted, the general assembly duly proceeded, at its first session after the adoption of the constitution, to prescribe “in what manner and on what conditions the householder or head of a family should set apart and hold for the benefit of himself and family a homestead out of any property exempted.”
In doing this they went a step beyond the specific requirements of the constitutional provisions above quoted, and provided for the case of a party dying without claiming a homestead, making provision for the widow and infant children of such decedent. It is noticeable *409that the constitution, by its terms, makes no provision for the widow or infant children of.a decedent who dies without having claimed a homestead. The provisions of the constitution are confined to the party himself, declaring that he “shall be entitled to hold and set apart for the benefit of himself and family” the exempted property. And it has been earnestly contended, and with much force, that it was not contemplated by the framers of the constitution that any provision should be made further than for the benefit of the party who, in his lifetime, claims and sets apart his homestead—the constitution itself making no mention of the widow and children of a decedent who, in his lifetime, has failed to claim his homestead. But I think it is'clear, that while the legislature cannot impair or abridge the rights of homestead secured by the constitution, it may enlarge such rights and confer them upon a class of persons not specifically mentioned in the constitution. Indeed, this question has already been definitely settled by this court. In Hatorf v. Wellford, Judge, 27 Gratt. 356, the precise question as to constitutionality of the act which confers the right to claim a homestead upon the widow or minor children of'a decedent, who had not claimed and set apart his homestead, in his lifetime, was raised and argued in that case, and this court decided in favor of the constitutionality of the act, and of the right of the widow to claim a homestead in the estate of her deceased husband. In that case, however, the claim was asserted and upheld against the claim of creditors. The question, whether the widow could, under the statute, claim a homestead against the heirs, where there were no creditors, did not arise, and was not decided. On the contrary, Judge Staples, delivering the opinion of the court, said: “It has been held in Georgia and North Carolina certainly, and proba*410bly in other states, that the object of the homestead laws is the security of the debtor and his family against the demands of the creditor, and where there are no debts the homestead cannot be held against the adult children, and the assignment does not preclude them from asserting then title to a share of the estate, citing Kemp v. Kemp, 42 Geo. 523; Hager v. Nixon, 69 N. C. 108. Upon these questions this court is not now called upon to express any opinion. It is sufficient to say that the petitioner and her children are entitled to have assigned them, and to hold exempt from levy, seizure or sale, so much of the personal estate of the father or head of the family as he himself would be entitled to select or set apart were he now living and asserting his claim to the homestead.” The. only question, therefore, decided in Hatorf v. Wellford, Judge, (supa), was that the widow has the right to claim homstead for herself and minor children in the estate of her deceased husband, where he has not claimed it and set it apart in his lifetime as against the creditors of her husband. So that we have now before us, for the first time, the question, whether under the constitution and statute law of this state a widow can claim a homestead where there are no creditors against the heirs. This question, as was said in the beginning, must be determined alone upon the true construction to be given to the act of assembly and the provisions of the constitution upon which it is founded. It is to be premised that while in the petition of appeal it is assigned asoné ground of error, that the court did not direct its commissioners to' enquire whether there were debts due for which the real estate was liable, it was regarded as a concessum in the case, in the court below, that the decedent died owing no debts. The bill asserts that the personal estate was more than sufficient to pay any debts for which decedent was liable. This is nowhere denied, and indeed, the court, by its decree, declares that the *411“ decedent died owing no debts.” This will be taken as a concession in this court, as it was in the court below.
The decedent in this case left no children. His heirs-at-law were his mother, brothers and sisters, and their descendants. Under the statute of descents and distributions, the l’eal estate descended to these heirs, subject to the widow’s dower in one-third thereof, which was duly assigned to her. Upon the death of John Helm, his real estate immediately ' descended, and the title thereto became at once vested in these heirs. "Was it divested and transferred for her life to the widow by virtue of the act of assembly above referred to ? Section 10 of that act provides that “if any such householder or head of a family shall have departed this life since the adoption of the present constitution, leaving a widow or infant children, and such homestead shall not have been selected or assigned in the lifetime of said householder, she, if remaining unmarried, or they, if she marry or die before such selection, shall be entitled to claim the same; and the court shall appoint commissioners to assign the same, in the same manner that commissioners are appointed to assign dower; and the homestead so assigned shall be held by 'the widow and children to the extent and on the same conditions prescribed in section 8 of this act.” Section 8 herein referred to, declares that the homestead provided in this act shall continue after his death (i. e., after the death of a decedent who has claimed and set apart the homestead during his lifetime), for the benefit of the widow and children of the deceased, until her death or marriage, and after her death or marriage for the exclusive benefit of his minor children until the youngest child becomes twenty-one years of age. ”
Under these provisions it is plain, when construed, as they must be, with reference to the provisions of the constitution, that the homestead which the widow may *412claim after the death of her husband (who dies without having selected and set apart a homestead) is of the same character as that which the husband may have been “ entitled to hold ” in his lifetime; that is, a homestead held “ exempt from levy, seizure, garnisheeing or sale under any execution, order or other process issued on any demand for any debt,” &c. The claim of homestead to be asserted by the widow, under statute and the constitution, is a claim which she can only assert against the creditors of her husband, and not against his heirs. If there be no creditors, she is not entitled to claim homestead in her husband’s estate. The question, whether a widow without minor children, can claim for herself a homestead against creditors, does not arise in this case, and upon this question I express no opinion. The homestead, when claimed by her in a proper case, as when there are creditors, must be held by her “ to the extent and upon the same conditions prescribed in section 8 of the act”—that is, “for the benefit of the widow and minor children.” If there be no minor children, she cannot hold a homestead against the adult children, nor can she hold it, if there be no children, as in this case, against the heirs of her husband. In such case she is only entitled to her dower, but not to a homestead in her husband’s estate. Any other construction of the statute would be to declare that the statute of descents and distributions had been repealed or modified by the homestead laws. Surely the legislature never intended, by the enactment of a homestead law, to repeal or modify the statute of descents in this state, which has become sacred by its antiquity, and one of the most important and valuable enactments, affecting the rights of property in the jurisprudence of this state. We cannot give such a construction to these laws as will repeal or modify to any extent this useful and venerable statute, unless such intention plainly and unmistakably appears *413by a direct repealing clause or the most necessary implication.
If we give to the homestead law the construction contended for in this case, we would give to the widow not only her dower, but the whole of the real estate of her husband, to the exclusion of his heirs. We would, in effect, declare that a law, the sole object of which is-the security of the debtor and his family against the demands of the creditor, should have the effect of taking away, in many instances, the whole property of a decedent from his children and heirs, and giving the whole to his widow during her life, and of changing the whole course of descents and distribution of property which has flowed in one channel for more than a century. Such a construction can never have the assent of my judgment, or the sanction of my judicial action. I am of opinion that the claim of homestead can only be asserted by' a widow against the creditors of her husband, and never against his heirs; and in the case before us that the -widow is only' entitled to dower and not to a homestead.
There is only one other question raised in the record necessary to be noticed. The widow had, upon her motion in the county court of Moyd county, procured the appointment of commissioners to assign her dower, and also a homestead in the real estate of her husband, and upon the report of these commissioners, the county court had transferred to her the whole real estate of her husband—one-third as dower and two-thirds as homestead. It was insisted that this was a decree of a court of competent jurisdiction, and that the circuit court could take no cognizance of the case, except by appeal from the county court.
It is sufficient to say that all the proceedings in the county court were mere nullities, and were properly so treated by the circuit court. The homestead act provides that the homestead shall be assigned to the widow in the *414same manner as dower is assigned—that is, on motion of the heirs or devisees. In this case, after a bill was filed by the heirs in the circuit court, the widow went into the county court, and, upon her motion, alone, all the proceedings in the county court were had, and to these proceedings the heirs were not even made parties, and, of course, were not bound by them. Such proceedings could not in any manner affect the rights of the heirs to have the whole question adjudicated in the circuit court.
Upon the whole case, I am of opinion there is no error in the decree of the circuit court, and that the same should he affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482040/ | Burks, J.,
delivered the opinion of the court.
*417This is an application to this court to issue a writ of mandamus to compel the Honorable William I. Clopton, judge of the hustings court of the city of Manchester, sign several bills of exceptions tendered by the relator, Samuel M. Page, to a judgment for a line imposed on him for an alleged contempt by misbehavior in the presence of the said court:
Original jurisdiction to issue writs of mandamus and prohibition to the circuit and corporation courts, and the hustings court and chancery court of the city of Richmond, and in all other cases in which it may be necessary to prevent a failure of justice, in which a mandamus may issue according to the principles of the common law, is conferred upon this court by statute enacted pursuant to the constitution of the state; and it is provided that “the practice and proceedings upon such writs shall be governed and regulated in all cases by the principles and practice now prevailing in respect to writs of mandamus and prohibition, respectively.” Code of 1873, cli. 156, § 4; Con. of Virginia, art. 6, § 2.
Por the pleadings and practice in writs of mandamus as regulated by statute, see Code of 1873, ch. 151.
This court refused to award the mandamus applied for in Barnett v. Meredith, 10 Gratt. 650, because neither the constitution of 1850 nor the statute then in force conferred the jurisdiction to award the writ. The provisions of the present constitution in relation to the awarding of such writs are substantially the same as those contained in the constitution of 1850, but the present statute expressly confers the jurisdiction which the former statute did not confer.
The office of the writ of mandamus is to compel corporations, inferior courts and officers to perform some particular duty incumbent upon them, and which is imperative in its nature, and to the performance of which *418the relator has a clear legal right, without any other adequate specific legal remedy, to enforce it; and even though he may have another specific legal remedy, if such remedy be obsolete or inoperative, the mandamus will be granted. 6 Bac. Abr. (Bourrier’s ed.) 418 ; Broom’s Leg. Max. 192, note; Carr, J., in King William Justices v. Munday, 2 Leigh, 168-9. The remedy is extraordinary, and if the right is doubtful, or the duty discretionary, or there be any other adequate specific legal remedy in use, this writ will not be allowed.
Lord Mansfield is authority for saying that “it was introduced to prevent a failure of justice and defect of police; therefore,” said he, “ it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” Rex v. Barker, 3 Burr. R. 126.
In relation to courts and judicial officers, it cannot be made to perform the functions of a writ of error or appeal, or other legal proceeding to review or correct errors, or to anticipate andforestall judicial action. It may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.
These principles are recognized and illustrated by multitudes of decisions, English and American. Some made by this court and the general court of this state, and by the supreme court of the United States, are here cited: Com. v. Justices of Fairfax Co. Ct. 2 Va. Cas. 9; Dawson v. Thurston & others, 2 Hen. & Mun. 132; Brown v. Crippen & Wise, 4 Hen. & Mun. .173; King William Justices v. Munday, 2 Leigh, 165; Harrison v. Emmer*419son others, Id. 764; Mann v. Givens & others, 7 Leigh, 689; Morris, ex parte, 11 Gratt. 292, 297; Yeager, ex parte, Id. 655; Randolph Justices v. Stalnaker, 13 Gratt. 523; Comon. v. Fulton, judge, 23 Gratt. 579; Kent, Paine & Co. v. Dickinson, judge, 25 Gratt. 817; United States v. Lawrence, 3 Dall. R. 42; Exparte Crane, 5 Pet. R. 190; Exparte Roberts, 6 Pet. R. 216; Exparte Bradstreet, 7 Pet. R. 634; Exparte William Hany, 14 How. U. S. R. 24; Life & Fire Ins. Co. v. Wilson’s Heirs, 8 Pet. R. 291; Life & Fire Ins. Co. v. Adams, 9 Pet. R. 571, 592; Exparte Hoyt, 13 Pet. R. 279; Fxparte Cutting, 94 U. S. (4 Otto), 14.
Our statutes provide that “ a party iu a criminal case, or proceeding for contempt, for whom a writ of error lies to a higher court, may except to an opinion of the court and tender a hill of exceptions, which (if the truth of the case be fairly stated therein), the judge, judges or justices, or the greater part of those present, shall sign; and it. shall be a part of the record of the case; ” and that a writ of error shall lie “ to a judgment for a contempt of court, other than for the non-performance of or disobedience to a judgment, decree or order.” A similar provision is made for allowing bills of exceptions in the trial of civil cases “in which an appeal, writ of error or supersedeas lies to a higher court.” Code of 1873, ch. 203, §§ 1, 4; ch. 173, § 8.
In either of the cases in which bills of exceptions are allowed, that is, in the trial of a case at law, or in a criminal case or proceeding for contempt in which a writ of error lies to a higher court, if a party excepts, as he may, to an opinion or judgment of the court in due time, and tenders in due time his bill of exceptions, the judge is required to sign the bill, “if the truth of the case be fairly stated therein.” If the conditions of the statute are satisfied, the right of the party is clear and the duty of the judge equally clear, and it is imperative. *420He has no discretion in the matter. The language of the law is, he “ shall sign.” If, in the ease supposed, the judge refuse to sign the bill, then, “ according to the principles of the common law,” the party has-the indubitable right to the writ of mandamus to compel him to sign, unless the law has provided some other adequate, specific remedy for the particular grievance—otherwise, there would be a palpable and essential failure of justice—for, a writ of error allowed would be futile and wholly inoperative quoad matters alleged in exceptions which are no part of the record. The enquiry then is, does the law provide any other specific remedy in 'such a case ?
At common law, as we ■ know, a writ of error lay for an error in law apparent in the record, and not for error in law not appearing in the record; and therefore, where the parties, plaintiffs or defendants, alleged anything ore terns, which was overruled by the judge, it could not be assigned as error in law, because it did not appear in the record; and so the party grieved was without remedy. 2 Bac. Abr. (Bourrier’s ed. 1843), 112; 2 Inst. 426.
This was a grave defect in the common law, for remedy whereof the English parliament passed the act of Westminster 2, 13, Edw. 1, ch. 31, whereby bills of exceptions were allowed, by means whereof matters occurring in the trial of cases were made a part of the record, and were thus reached by writ of error. This act, the body of which may be found in Bac. Abr. ubi supra, is the model of the various statutes on the same subject in the United States. It was adopted in Virginia, with slight modifications affecting the matter of jurisdiction (1 R. Code, ch. 133, § 1, p. 523), and was cut down to its present dimensions at the revision of the laws 'in 1849.
The English act was construed as not extending to criminal cases, at least to cases of treason and felony *421(2 Bac. Abr. 114), and hence the second section of our act in the Revised Code supra, which provides for bills of exceptions in criminal cases also. The bill of exceptions under the English statute formed no part of the record of the case until made so by proceedings had in conformity to the statute. As soon as the bill was signed, a writ was issued to the judge who signed the bill, framed upon the statute, called scire facias ad cognoscenduru scrip-turn, summoning him, as the terms imply, to appear and confess the writing or deny it. If he appeared and confessed his seal, or denied it, and proof of it was made, the bill was entered on "the issue roll and thus made a part of the record. This writ was never used in Virginia, because, in practice, the judge who signed the bill at the same time ordered it to be enrolled and made a part of' the record. By the statute as it now stands, the bill when signed becomes by express provision “ a part of the record.”
Such was the permission under the statute to make a bill of exceptions, which had been duly sealed, a part of the record. But while the act in terms provided, that if the party impleaded (cum aliquis implacitatur, &c.) “ doth allege an exception, praying that the justices will allow it if they will not allow it, and he that allegeth the exception do write the same exception, and require that the justices will put their seals in testimony thereof, the justices, or the greater part of them present, shall do so.” Yet it did not expressly provide for any writ or process to compel them to seal the bill. The act, however, being mandatory, it was considered that a writ grounded on the statute might be framed to compel the performance of this duty. Such peculiar writ, nameless it would seem, was accordingly devised, and the form of it, we are told, may be seen in the Registrant Brevium, 182, pronounced by Lord Coke to be the oldest book in the law. We have not access to “that most ancient and *422highly venerable collection of legal forms (3 Bl. Com. 183), but in the case of Conrow v. Stroud, decided by supreme court of Pennsylvania in 1867, cited in argument, we find in the report of the case in 6 Amer. Law Reg. (U. S.), 298, the form of a writ used in that ease, “which was adopted,” it is said by the editor, “from the ancient writ found in the Registrum Brevium.” See form also in Robinson’s Forms, ed. 1841, p. 345.
This ancient writ, according to Butter’s Nisi Frius, 5th Eng. ed. 316, recites the form of an exception taken and overruled, and it follows, “ vobis prcecipimus, quod si ita est, tunc sigilla vestra dpponatis-,”' and if it be returned “ quod non ita est,” an action will lie for a false return, and thereupon the surmise will be tried, and if found to be so (si ita est), damages will be given, and upon such a recovery, a peremptory writ commanding-the same.
This writ, it is said, has occasionally issued out of the English chancery, and was never known to issue-from the king’s bench, though there is no ease denying to that court the power to award it. In Sikes v. Ransom, 6 Johns. R. 279, the supreme court of New York speaks of it as, “ in effect, a writ of mandamus,” and so treated it in that case. In Exparte Crane, 5 Pet. R. 190, 218, Mr. Justice Baldwin, who dissented from the other judges in the case, speaks of it as “ a special writ from chancery, returnable before the king in chancery, reciting the mandatory parts of the statute of Westminster,” and he insisted that there was “a specific and legal remedy by action on the statute, for a false return, and a special action on the case, if the judges refuse to seal the bill of exceptions when duly taken and tendered,” and, therefore, that mandamus would not lie to compel a judge to sign and seal a bill of exceptions. In the same case, however (p. 194), Chief-Justice Marshall, in whose opinion all the associate justices concurred except Justices Bald-, *423win and Johnson, said, “ that a mandamus to sign a bill of exceptions is warranted by tbe principles and usages of the common law, is, we think, satisfactorily by the fact that it is given in England by statute; for the writ given by the statute of Westminster the Second, is so in fact, and is so termed in the books.” In repeated decisions afterwards, the supreme court of the United States followed this decision, and the appellate courts of the several states (unless, perhaps, Pennsylvania may be an exception), where this or similar statutes are in force, seem to pursue the same course of decision. We have seen no ease where the statutory writ in forma is adopted, except the case before cited from Pennsylvania, and the writ used in that case seems to be in substance a mandamus nisi.
This court has never been called upon until now to determine the proper remedy to compel a judge to sign a bill of exceptions when tendered. The question was discussed by Judge Baldwin in Taliaferro v. Franklin, 1 Gratt. 332, and he there expressed the opinion that the proper remedy was by special writ grounded on the statute, and that this court might frame the writ under power conferred by the Code. 1 Rev. Code, ch. 64, § 23, p. 123. (See corresponding provision in Code of 1873, ch. 157, § 4, p. 1054.) The other judges (Allen and Cabell) who sat with him, declined to express any opinion on the question, Judge Allen saying, “it is not necessary to decide it here, and as the question is one of great interest in practice, I should prefer postponing it until we can have the aid of a full court and the benefit of an argument on the very point;” Judge Cabell using substantially the same language. See suggestions of Mr. Leigh, arguendo, Vaughn v. Green, 1 Leigh, 287, 292; Tucker, P., Jackson’s adm’x v. Henderson, 3 Leigh, 196, 215, 216.
If the writ framed under the statute of Westminster *4242 be the technical legal remedy to compel a judge to sign a proper bill of exceptions duly tendered, and remedy may be resorted to under our statutes in their present form, applying as ivell to criminal as civil eases, still it is obsolete, and if put in force, we are of opinion, for the reasons already assigned, it would be, at least in effect, if not in fact, a writ of mandamus as used and applied at common law.
This case is heard on the petition of the relator and exhibits filed therewith, the-rule awarded on the petition against the respondent, and the return of the respondent to the rule and the exhibits filed with the return. There is no plea or demurrer to the return, and no exception filed by either party. In this condition of the case, “according to the principles and'practice now prevailing in respect to writs of mandamus,” and our statutory regulations on the subject, there being no traverse of the return, it must be taken as true.
In Exparte Newman, 14 Wall. U. S. R. 152, 166, Mr. Justice Clifford thus states the rules and principles of pleading in such cases: “Due service of the rule being made, the judge is required to make return to the charge contained in the rule, which he may do by denying the matters charged, or by setting up new matter- as an answer to the accusations of the relator, or he may elect to submit a motion to quash the rule, or to demur to the accusative allegations. Matters charged in the rule and denied by the respondent must be proved by the relator, and matters alleged in avoidance of the charge made, if denied by the relator, must be proved by the respondent. Angell & Ames on Cor. 9th ed. § 727; Cagger v. Supervisors of Schuylkill, 2 Abbott’s Prac. N. S. 78. Motions to quash in such cases are addressed to the discretion of the court, but if the respondent demurs to the rule, or if the relator demurs to the return, the party demurring admits everything in the rule or the return, as the case *425may be, which is well pleaded, and if the relator elects to proceed to hearing on the return, without pleading to the same in any toay, the matters alleged in the return must be taken to be true to the same, extent as if the relator had demurred to the return. Tapping on Mandamus, 347; Moses on Mandamus, 210; Commercial Bank v. Commissioners, 10 Wend. R. 25; The People ex rela. Ryan v. Russell, 1 Abbott’s Prac. N. S. 230; Hannahan v. Board of Police, 26 N. Y. R. 316; Commonwealth ex rela. Middleton v. Commissioners, 37 Penn. St. R. 245; 3 Stephen’s Nisi Prius, 2326 ; 6 Bac. Abr. ed. 1856, 447.”
Prom the return and from such charges in the rule as are not controverted by the return, it appears, in substance, that during the session of the hustings court of the city of Manchester, held by the respondent as the judge of the said court on the 22d day of March, 1878, the respondent imposed a fine of fifteen dollars on the relator, who was engaged as counsel in the trial of a cause, for alleged contemptuous misbehavior in the presence of the court, and at the same time a motion was made by a member of the bar—not as counsel, however, it would seem—to remit the fine, which motion was continued generally to a further day of the term, ivitliout specifying any particular day; and on the 25th day of the same month the court overruled the motion and ordered the sergeant to take the relator into custody and so detain him until the fine be paid. The relator was present in court when the orders of the 22d and 25th of March were made, and no objection or exception was made or taken to the judgment or action of the court on either day. On the 27th day of the same month, and -during the same term of the court, the relatoi’, who had been taken into custody by the sergeant under the order of the 25th, and, to release himself from custody, had under protest paid the fine, appeared in court and offered *426to except to the judgment imposing the fine, and moved the court to certify the facts on which the judgment was rendered, and that witnesses he called to' testify as to those facts. In the language of the return, “the court was inclined and did offer, as a matter of favor, to certify the facts, which offer was rejected by the petitioner, and the motion to call witnesses to testify as to the facts was conducted in a manner so impertinent and unpleasant that the court was compelled, for the preservation of order, decorum, and the due administration of affairs in court, to decline to listen further, and ro put the petitioner’upon such recourse, if any he had, as the law gave him; and thereupon the petitioner, of his own motion, desired that the facts be certified by the court, which motion was then overruled.” It does not appear that any bill or bills of exceptions were tendered on the said 27th day of March, but it does appear by the return that on the 30th day of March, the last day of the term of the court, the relator tendered three several bills of exceptions to the judgment, action and rulings of the court, which bills the court refused to sign. These three bills (and a fourth, which need not be noticed further, as the return denies that it was ever tendered and that its statements are true) are filed with the petition, and the prayer is that the respondent be required by mandamus to sign them. The respondent, in his return, avers that these bills do not state truly the facts of the case, and he specifies wherein the statements are not true, but he does not say that when tendered he made known these objections, and offered, if the bills were corrected so as to remove the objections, to sign them as amended. On the contrary, as has been seen, when the relator on a previous day, the 27th of the- month, made his exception and prayed the court to certify the facts, the respondent, for the reasons stated in his return and hereinbefore recited, refused to certify the facts, and determined to *427“put the petitioner upon such recourse, if any he had, as the law gave him; ” and he claims and urges in his return that the law gives the relator no recourse, because he did not except to the judgment of the court in due .time; that he should have excepted on the 22d of the month, when the judgment for the fine was rendered, or at least on the 25th of the month, when the motion to remit the fine was overruled; -and not having then excepted, he must be taken to have acquiesced in the judgment and to have waived all objection or exception thereto, and therefore he could not be heard to object or except at a later day of the term.
As to the particular bills of exceptions filed with the petition, it is too clear to admit of doubt that the writ of mandamus cannot be used to compel the respondent to sign said bills. Exparte Martha Bradstreet, 4 Peters’ R. 102. A judge is required by the statute to sign a bill of exceptions only on condition that “ the truth of the case be fairly stated therein.” The statement in the return not travelled, that these bills do not contain the truth of the case, must be taken as conclusively true in this proceeding. But the duty of a judge is not ended and fully discharged when he merely refuses to sign a particular bill tendered, on the ground that the truth of the case is not fairly stated therein. He should go further. He should proceed, with the aid of counsel, to settle the bill, and when settled, to sign it. Orignally it was supposed that the judge was only bound to sign the bill when a true one was .presented to him, and where there was any objection to it that he was not required to aid in its correction, and might, therefore, refuse to sign it. But the practice has for a long time been otherwise. Powell on Appellate Proceedings, ch. 5, § 20, p. 224.
If the bill presented is not truthful or fair, the judge should alter it and make it such, or suggest what alteration should be made. Where such alteration can be made in *428the draft, or when necessary, he may require it to be redrafted in accordance with such suggestions; for he is bound to sign a bill that is not true. Id. ch. 5, § 84, p. 235.
H a j idge, therefore, refuses to sign a proper bill, or to proceed to settle the matter of a bill objected to, he may, in either case, be compelled by mandamus to act; but if he states in his return to the rule or mandamus nisi, that the particular bill presented does not contain the truth of the case, and therefore he refused to sign it, whether such statement must be taken as conclusive in the proceeding by mandamus, or whether it may be traversed and the truth of the bill enquired into and settled one way or the other, are questions which do not necessarily arise in the case before us, as there is no plea to or traverse of the return by the relator. The questions suggested are of great importance in practice. They have not been argued in this case, and as it is not necessary to decide them now, we express no opinion upon them. Bee what is said in Powell on Appellate Proceedings, ch. 5,*§ 62, p. 256, and High on Extraor. Leg. Rem. part 1, ch. 3, §202, p. 159, and cases there cited by these authors.
"When the relator in this case tendered the bills of exceptions filed with his petition, if the only objection to them had been that they did not state fairly the truth of the case, it would have been the duty of the respondent to specify the objections, and, in conjunction with the relator or his counsel, to amend the bills so as to present the case fairly, and when settled to sign them, and he may now be compelled by mandamus to proceed to do so, unless the relator has waived or lost his right to except by not exercising it at an earlier day.
Much depends on the practice of the court in the taking and noting exceptions, and drawing, presenting, settling and signing the bills, but the general rule seems *429to be that, if intended to be relied on, exceptions should be taken and notice thereof given at the time the decision to which they apply is made, and in jury trials they should be taken at least before verdict. Wash. & New Orl. Teleg. Co. v. Hobson, 15 Gratt. 122, 138; Matz's ex'or v. Matz's heirs, 25 Gratt. 361; Peery's adm'r v. Peery, 26 Gratt. 320, 324.
The usual practice is to give notice of the exception at the time the decision is made, and reserve liberty, with the permission of the judge, to draw up and present the bill for settlement and signature either during the trial or after trial and during the term, as may be allowed or directed by the judge. The bill should be presented and signed at least during the term at which final judgment is entered in the suit or other proceeding in which the exception is taken, and it will be disregarded in the appellate court, if signed after the end of such term, although signed pursuant to a previous order allowing it, unless perhaps such order be made by consent of parties entered of record. Winston v. Giles, 27 Gratt. 530, 535.
One reason for the rule requiring this promptness in taking the exception and giving notice thereof is, that an exception taken and made known for the first time at a subsequent period might affect very injuriously the rights of the opposing party, for if he have seasonable notice of the exception, he may perhaps have it in his power at the time or during the trial to obviate or counteract it, and it would be unjust to allow his adversary to insist on the exception and have the benefit of it, after, by his own negligence, or it may be by his contrivance, he has made it impossible to meet it. Wash. New Orl. Teleg. Co. v. Hobson (supra), 2 Tidd’s Prac. (9th ed.) 863. Another reason for the rule is, that the judge may note the matter of the exception while it is fresh in his mind, and *430thus be enabled the better to settle the bill when it is presented for his signature.
The rule in its general operation is a wise one, but we . do not think this case comes within the reason of the rule, and cessante ratione legis cessat ipsa lex.
This is not the case of a suit inter partes. It was a summary judgment for contempt without the formality of a trial. It was wholly ex parte. The exception, of necessity, was to the judgment after it was rendered. There was no opposing party to be affected by it, who might have insisted on earlier notice of the exception and claimed that he was or might have been injured for want of it. The matter was wholly between the relator and the judge. The judgment for the fine was entered on the 22d day of the month, and the execution of it was, on motion, at once suspended. The motion was overruled on the 25th of the month, and the judgment then put into execution. Un the second day thereafter, the 27th of the month, the relator asked to except. It is conceded that an exception on the 25th would have been in due time. It cannot be said that the judge needed any earlier notice of the exception to enable him to bear in mind the facts he was called upon to certify. He makes no such pretension in his return. The whole matter was of recent occurrence, and the facts were no doubt firmly impressed on his mind and fresh in his recollection. The motion to remit the fine, which he took time to consider, made it necessary for him to recall, revolve and retain in mind all the facts and circumstances. He must have been as well prepared, as to knowledge, to certify the facts on the 27th as he could have been on the 25th, and he actually files with his return such certificate in a bill of exceptions made out by himself after service of the rule in this case.
To deny to the relator the right to except at the time *431he desired and offered to do so, and have his exceptions embodied in a bill and made a part of the record, so as to enable him to have the judgment reviewed on a writ of error, if applied for and allowed, would, we think, be a harsh and rigorous application of the rule as to the time of tendering exceptions, not warranted by the circumstances of this case. The respondent is mistaken in supposing, as by the return he seems to have supposed, that it was “ a matter of favor ” to the relator to allow him to except to the judgment of the court when he offered to do so on the 27th of the month. It was the relator’s absolute right then to except, and as clearly the duty of the respondent to sign a proper, bill of exceptions, with a certificate of the facts.
The bill filed with the return was not a bill tendered by the relator, nor was he heard, or allowed the opportunity of being heard, in its preparation and settlement. Tie has the right of being heard in the settling of any bill which may be proper in the case.
We are therefore of opinion, that the rule against the respondent should be made absolute, and that a peremptory writ of mandamus should be issued, directed to the respondent, commanding him, on the tender by the relator of a bill of exceptions to the judgment rendered against him,.if the truth of the case be fairly stated in said bill, to sign it; and if the truth of the ease be not fairly stated therein, to proceed to settle the same, and when settled, to sign it; and in either case to order the bill so signed to be made a part of the record in the proceeding in which said judgment was rendered, and such will be the order of this court.
The judgment of the court was as follows:
This cause, which is pending in this court at its place of session at Richmond, having been fully heard, but not determined at said place of session, this day came here *432the parties by their counsel, and the court having maturely considered the petition of the relator and exhibits with said petition, the nile awarded against the-respondent, the return of the respondent to the said rule and the exhibits filed with the said return, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the relator had the right to take exceptions to the judgment in the said petition and proceedings mentioned, rendered against him by the hustings court of the city of Manchester, and to tender a bill of exceptions to be signed by respondent as judge of the said hustings court, and that the exceptions taken by the relator to the said judgment were taken in due time; and although the respondent, as judge of said hustings court, cannot be required to sign the particular bills of exceptions filed with said petition, because it is shown by said return, w'hich is not traversed, that the truth of the case is not, fairly stated therein; yet, as when said bills were tendered the respondent did not suggest any alterations to be made therein, or then offer or proceed to settle the truth of the same, he should now be required to proceed with the aid of the relator, or his counsel, to settle the matter of a bill to be signed, and when settled to sign the same; and the writ of mandamus is the proper remedy to compel him so to proceed. It is therefore adjudged and ordered that the said rule be made absolute, and that a peremptory writ of mandamus be issued directed to the respondent, the Honorable William I. Clopton, judge of the hustings court of the city of Manchester, commanding him, on tender by the relator of a bill of exceptions to the judgment aforesaid rendered against him by the said hustings court, if the truth of the case be fairly stated therein, to sign the same, and if the truth of the case be not fairly stated therein, to proceed with the aid of the relator, or his counsel, to settle the same, and when set-*433tied to sign it, and in either ease to cause said bill when so signed to be made a part of the record of the proceedings in which said judgment was rendered.
And it is further ordered that a copy of this order be duly served on the said respondent, and that such service shall have the same force and effect as the execution upon him of a peremptory writ of mandamus issued in pursuance thereof.
And it is ordered that this order be entered on the oi’der-book here, and forthwith certified to the clerk of this court at its place of session aforesaid, who shall ■enter the same on his order-book.
Peremptory mandamus issued. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482041/ | Moncure, P.,
after stating the case, proceeded:
The first and principal assignment of error in the decree appealed from in this case is, that credit was not therein given to the trustee, Coltrane, in the settlement of his account as trustee, for eight hundred and ten dollars, claimed by him as having been invested in 1863 or 1864 in Confederate bonds on account of the trust. This is indeed the only assignment of error on account of which, it seems, that an appeal in this ease was allowed, though all the assignments of error made in the petition, •or ore tenus or in writing, in the argument, will be noticed in this opinion.
I do not think there is an}' error in the decree in *444respect to the said first and principal assignment of error. The investment of $810 therein mentioned was made out of money the largest part of which the trustee, Coltrane, admits he collected in Confederate money, in the spring of 1868, from C. F. Worrell. He says there were some small amounts collected from other parties, hut he cannot state from whom.
How, was he warranted by law in making such collection when and under the circumstances he did ?
I say no, according to well-settled principles of law. In the spring of 1863 Confederate money was very greatly depreciated, and a fiduciary had not then a right to receive Confederate money at par in discharge of a well-secured specie debt, except under peculiar and extraordinary circumstances. The debt on account of which the said collection was made was certainly a well-secured specie debt when such collection was made, and was most likely so to continue. Coltrane himself proves-that C. W. Worrell, the debtor from whom the collection was made, “was and has been solvent.” But the debt due by Worrell was also secured by a lien on real estate, which was duly recorded. It was a part of the purchase money of land sold and conveyed by William Kyle, trustee for Amos and Darthula Worrell, by deed dated the 23d of February, 1858, and duly recorded on the same day in the clerk’s office of the county court of Carroll, in which county the said land was situate. In the said deed a lien was expressly reserved on the said land for the purchase money. It is not pretended that the land was not ample security for the purchase money. Here, then, was a double security of this debt, the solvency of the debtor personally, and the specific lien reserved upon the land. Were there any peculiar and extraordinary circumstances in existence which warranted the collection of the said debt or any part of it in Confederate money at par, depreciated in value as it was *445In the spring of 1863 ? Certainly not. What occasion had the trustee, in the execution of his trust, for the money, or any part of it, at that time ? Bone whatever. The only person in the world who had any interest in it was the beneficiary in the trust, who had removed to the state of Missouri before the war, and continued since to reside there. Bo payment had been made to her by the trustee since the war commenced, and there would be no power to make such payment until the war was ended, Virginia and Missouri being on opposite sides of the belligerent line. Bo one could tell in the spring of 1863 when the war would be at an end. That was about the middle of the war. It was the plain duty of this trustee to continue to hold, as he had a right to do and easily might have done, this well and permanently secured specie debt until the end of the war, instead of collecting it or any part of it in the spring of 1863 in greatly depreciated Confederate currency at par, only to invest the same in Confederate bonds, no less depreciated in value below their nominal amount. In regard to the small amounts said by Coltrane to have been collected from other parties, he could not state from whom, the matter is altogether too vague to be of any account. Most* if not all, of the bonds and notes placed in his hands as trustee were doubtless good debts. He says in his answer, that “believing those amounts as secure as he could make them, he deemed it unnecessary to collect and loan the same to others, perhaps not as responsible.”
These bonds and notes were placed in his hands as trustee on the 27th of June, 1857. They were all due except the three bonds of C. F. Worrell, on the 30th of October, 1857, three and a half years before the war. The trustee had ample time to have collected them before the war, if such collection had been necessary or proper. If he did not do so, it was no doubt because *446he considered them perfectly good. The bonds of "Worrell, we have seen, were not only good by reason of the solvency of the debtor, but also because they were secured by a lien on real estate;’ and they amounted to more than double the amount of all the other bonds put together. It may well be assumed in this controversy, therefore, that all of these bonds were good and solvent and well secured, and that the trustee had no power, in the spring of 1863, to receive payment of any of them in depreciated Confederate currency at par.
I am, therefore, clearly of opinion, that there is no-error in the decree in respect to the matter of the first assignment of error, and that this position is fully sustained by the cases cited on the subject by the counsel for the appellee. The following are the cases, or some of them, which were so cited: Williams’ adm’r v. Skinker, 25 Gratt. 507, 518, 519 and 524; Crickard’s ex’or v. Crickard’s legatees, Id.410, 418, 219, 424 and 425; Moss v. Moorman, 24 Id. 97; Hannah v. Boyd, 25 Gratt. 692, 701; Ammon’s adm’r v. Wolfe, &c., 26 Id. 621; Walker v. Beauchler, 27 Id. 511.
The second assignment of error in the decree (which, however, is not made in the petition for an appeal in the case), is that the appellant is charged with interest during the war.
In the ordinary case of debtor and creditor, where they reside on the same side of a belligerent line, the debt bears interest during the war, which is recoverable, notwithstanding the act of assembly on the subject. J3ut where they reside on different sides of the belligerent line, interest on the debt during tbe war is not recoverable; and this is- not tbe effect of tbe said act of assembly, but of principles of law which have been long since recognized and established. This, however, is not an ordinary case of debtor and creditor, but a case in which a trustee holds bonds and notes in his hands for *447the benefit of a cestui que trust. Can such a trustee avoid liability to his cestui que trust for interest on the trust fund during the war, when he has already collected such interest or may collect it hereafter ?
It does not appear that the debtors to the trustee for the trust fund, or any part of it, ever have refused or will refuse to pay such interest to the trustee. The fact is, those debtors and the trustee always, during the war, lived on the same side of the belligerent line, and there was always on that side a hand to receive payment of interest from them. A trustee cannot derive a profit from the trust fund without rendering any equivalent therefor. He is bound to execute the trust for the benefit of the cestui que trust, whether the latter live at home or abroad, or the trust is to be executed in peace or in war. If the trust fund be perfectly secure, and bearing interest at the beginning of the war, he cannot voluntarily change it so as to make it insecure and bear no interest. I am therefore of opinion that there is no error in the decree in respect to the matter of the second .assignment of error.
The third assignment of -error in the decree is that the accounts should have been stated on the principle of the cases of Granberry v. Granberry, 1 Wash. 246, and Burwell's ex'or v. Anderson, adm’r, 3 Leigh, 348. (And this assignment of error was made for the first time in the ai’gument.)
Without stating what the principle of those cases is, I think it very clear that the account stated by the commissioner in this case is stated on a principle which can do no injustice to the trustee who was bound by the express terms of the trust to apply the interest and so much as might be sufficient of the principal of the trust fund in his hands or under his control, to the sole and separate use of the said Larthula Worrell. She has not received from the trustee, as he admits, the whole amount of the *448interest on the trust fund, which she was certainly entitled to receive, and he has not been charged with any interest upon interest in the mode of stating the account.
The fourth and last assignment of error in the decree is, that “ the direction for the removal of the fund to Missouri was erroneous. The trustee appointed in Missouri was not legally appointed, and is not entitled to receive the fund.”
I think the decree is not erroneous in this respect. The law under which this proceeding for the appoinment of a trustee in and the transfer of a trust fund to another state, is in the Code, ch. 125, §§ 6 and 7, p. 936, and is in these words:
“6. "When any personal estate in this state is vested in a trustee resident therein, and those having the beneficial interest in the said estafe are non-residents of this state, the circuit court of the county or corporation in which the said trustee may reside may, on a petition or a bill in equity, filed for that purpose, order him or his personal representative to pay, transfer and deliver the said estate, or any part of it, to a non-resident trustee appointed by some court of record in the state in which the said beneficiaries reside.
“ 7. Ko such order shall be made in the case of a petition until notice of the application shall have been given to all persons interested in the trust estate, nor until the court shall he satisfied, by authentic documentary evidence, that the non-resident trustee appointed as aforesaid has given bond, with sufficient security, for the faithful execution of the trust, nor until it is satisfied that the payment and removal of such estate out of the state will not prejudice the right of any person interested or to become interested therein.”
The proceedings in this case for the appointment of a trustee in the state of Missouri are very formal, and there seems to be no defect therein, except that there is *449no certificate of “the judge of the circuit court of Clinton county, Missouri,” added to the record of that court, attested by the clerk thereof, with the seal of the court annexed, which record is filed as an exhibit in this case. See Code,' ch. 172, § 15, p. 1108. lint there was no exception or objection to the said exhibit on that ground or any other, either in any of the answers or other proceedings in the case in the court below, nor until the said fifth assignment of error was made to the said decree. I think it was then too late to make the objection for the first time, and that the trustee in Missouri must be considered, as no doubt he was in fact, duly appointed. ■
The case comes within the category of cases to which the statute applies, authorizing a transfer of property of a cestui que trust to another state. “When any personal estate in this state is vested in a trustee resident therein, and those having the beneficial interest in the said estate are non-residents of this state,” is the language of the statute.
Now, Mrs. Worrell is the only person who can be said to have any beneficial interest in the said estate, in the meaning of the statute. During her life she is certainly entitled to the interest on the subject, and so much of the principal as may be necessary for her comfortable maintenance ; “ and full power is given to her, if she should die before her husband, to dispose of the trust fund by any last will and testament by her to be made and executed as the laws of Virginia direct wills of personal estate to be executed; and in case she should survive her husband, then the funds of said trustee are to be paid over to said Darthula, to he disposed of and used by her as her absolute property.” After this full conveyance of the subject to her or for her use, the deed thus proceeds: “And the said Amos Worrell doth hereby relinquish *450and release all claim to the said fund for himself and all persons claiming under him, and doth agree that the full and use thereof shall be in the said Darthula, as herein provided for.” She is certainly entitled to the absolutely, subject only, if to anything, to one possible contingency, to-wit: the contingency of her dying before her husband .without having disposed of the trust fund by last will and testament as aforesaid. What would become of the fund in that single contingency it is unnecessary here to decide. But it is a contingency entirely within her power and control, which may at any time easily be exercised by her, and has no doubt already been so exercised. It cannot be regarded by the husband as of any value, and he has interposed no objection, on that or any other ground, to the removal of the trust fund to the state wherein the beneficiary resides. Can the trustee in Virginia interpose any such objection ? The only substantial beneficiary having been for many years a resident of the state of Missouri, and intending permanently to reside there, ought not the trust fund to be there also ? The record shows how inconvenient has been her distant separation from the fund heretofore, how seldom and at what expense she has received any benefit from it, and how beneficial it would be to her to have it near at hand, while no person would be thereby injured.
Upon the whole, I am of opinion that there is no error in the decree, at least in substance, and that it ought to be affirmed, after being amended in the form of a draft • which I have prepared, as a part of the foregoing opinion.
The other judges concurred in the opinion of Mon■eure, P.
*451The decree was as follows:
This day came again the parties by their counsel, the court having maturely considered the transacript of the record of the said decree and the arguments of ■counsel, is of the opinion, for reasons stated in writing and filed with the record, that the decree appealed from instead of being as it is, should, and it is accordingly adjudged, ordered and decreed, that it be so amended as to be in words and figures following, to-wit: The cause came on this day to be heard upon the bill of complaint, the exhibits filed, the several answers, the depositions of witnesses, the order and decree heretofore entered therein, the report of Commissioner Brown, and argument of counsel. And the court being of the opinion that the first statement of Commissioner Brown is the correct one in this case, with this exception, that the defendant, Ira B. Coltrane, should receive a credit for the amount of Confederate money paid in taxes in 1864 and 1865, at its par value instead of its scaled value, a further credit of $23.75, of date March 12, 1864, and $147 of date February 1st, 1865, being the difference between the par value of said amount and the scaled value allowed by the commissioner. And the court doth receive, adopt and confirm the first statement of said report wdth the amendment aforesaid. It is therefore adjudged, ordered and decreed that the complainant, Darthula "Worrell, recover against the defendant, Ira B. Coltrane, the sum of $2,557.54, principal, with legal interest thereon from the 20th day of April, 1875, and $495.28, interest, subject to a credit of $23.75, of date March 12th, 1864, and $147, of date February 11th, 1865, to be applied as a credit on the last mentioned amount, to-wit: the $495.28, interest.
And the court being satisfied by authentic documentary evidence in the cause that Granville M. Hiatt, of the *452county of Clinton, in the state of Missouri, in which the-said Darthula Worrell resides, has been duly appointed the circuit court of said county to receive and hold as trustee the fund now held by the said Ira B. Coltrane, as trustee, for the benefit of the said Darthula Worrell, under the deed of trust in the proceedings mentioned, and also that the said Granville M. Hiatt, the now nonresident ti-ustee appointed as aforesaid, has given bond with sufficient security for the faithful execution of the trust, and that the payment and removal of the said fund out of the state will not prejudice the right of any person interested or to become interested therein, it is therefore adjudged, ordered and decreed that , the said trust fund now held by the said Coltrane as aforesaid, being the sums of money and interest hereinbefore recovered against him by the said Darthula Worrell as aforesaid, be paid, transferred and delivered to the said Hiatt, the non-resident trustee aforesaid, to be held and disposed of by him as such according to the terms of the deed of trust and the condition of the bond aforesaid. And to enforce the payment of the said sums of money and interest to him, he may sue out executions for the same on this decree and in the name of the said Darthula Worrell for his use as such trustee. And it is'further adjudged, ordered and decreed that the said Darthula Worrell recover against the said Ira B. Coltrane her costs by her expended in the prosecution of this suit; and liberty is reserved to her, or her non-resident trustee for her benefit, to apply to this court in this cause hereafter, by motion or petition, for any further order or decree which may be necessary to carry into effect the decree.
And it is further adjudged, ordered and decreed that the said decree appealed from, as hereinbefore amended, be affirmed, and that the appellee, Darthula Worrell, recover against the appellant damages according to law *453and her costs by her about her decree in the appeal expended; which is ordered to be certified to the circuit •court of Carroll county.
Decree amended and affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482042/ | Christian, J.,
delivered the opinion of the court.
The single question we have to determine in this case is, whether the circuit court erred in sustaining the demurrer to the plaintiff’s bill. The bill charges that the plaintiff’ and his wife on the 27th November, 1872, executed a deed conveying to his son a certain tract of land therein mentioned, in consideration (as expressed in the deed) that his son “ should provide for and take good care of him and his wife so long as they may live, in a comfortable manner, both in sickness and in health;” and for the further consideration (not expressed in the deed) that his said son should build on the land conveyed a good and comfortable dwelling-house.
The bill contains further allegations, as follows: “ The said Ephraim Wampler fraudulently induced your oratorio believe, by his repeated promises and assurances, that if your orator would convey him the said 170 acres of land, that he would take care of and comfortably support your orator aud his wife during their entire life, and would build them a comfortable dwelling-house; and, with a view to make himself and wife comfortable in their declining years, they were induced to execute said deed, the said Ephraim not only promising to take care of your orator and wife comfortably, but promised and agreed to build your orator a good, comfortable dwelling-house on your orator’s land for his residence. *456Your orator avers that the said Ephraim has utterly failed and refused to comply in any respect with his part of agreement—has utterly failed and refuses to furnish one iota of the consideration promised, and that said Pr0™8es 80 made by said Ephraim Wampler were resorted to by him fraudulently for the fraudulent purpose of obtaining said deed, and that your orator relied on said promises, and would not have executed said deed if they had not been made; and your orator charges that said deed was obtained by means of said fraud, so practiced on him hv said Ephraim Wampler; that he took possession of said 170 acres of land immediately after-said deed was executed, and is still in possession thereof and residing thereon with his family, and has not furnished to your orator and his wife or to either of them anything whatever toward their maintenance or support, but on the contrary has obtained property from your orator to a considerable amount and has not paid him therefor, nor has he built your orator the dwelling-house promised; on the contrary has contented himself with simply putting in a window of four panes of glass in your orator’s own old house in which he now lives, and which is but a miserable cabin, almost entirely unfit for human habitation. Though the said Ephraim has had five years in which to do something toward complying with his said contract, he has done literally nothing towards it, although your orator has frequently urged him to do so, but he has uniformly failed to do so, and leaves your orator, in his old age, to take care of himself and wife as best he can, without the benefit or income which your orator could derive from said land. Your orator charges that the said contract of his said son amounts to a fraudulent acquisition and inequitable holding of said land, which a court of conscience will not tolerate or permit, but will hold, as your orator avers, that said fraud so practiced by said Ephraim Wampler, upon your orator, *457constitutes said Ephraim, an implied trustee, holding said land for your orator’s benefit, and that a court of equity for said fraud will set aside and annul said deed, said contract and remit your orator to his rights in said 1 o 53 iana*
The bill then prays that the deed be set aside and annulled, and the land be reconveyed to the plaintiff, and for general relief.
To this bill the defendant demurred; and the circuit court sustained the demurrer, and rendered the following decree: “The court is of opinion that the plaintiff has ample relief at law, and that the demurrer be sustained and the bill dismissed, and that defendant recover of complainant the costs of this- suit.”
To this decree an appeal and supersedeas was awarded by one of the judges of this court.
The court is of opinion that this decree of the circuit court is erroneous.
Upon the demurrer, of course, all the allegations of the bill must be taken as true. It is plain that the plaintiff did not have a complete and adequate remedy at law. The consideration for the deed of conveyance for the land, as alleged in the bill, Avas the comfortable support of the grantor and his wife during their lives, ‘and the erection on the land conveyed of a good and comfortable house. This Avas a continuing obligation on the part of the grantee. It Avas to continue during the lives of the grantors and each of them. At the end of the first year, or sooner, the grantors had the right of action, if the covenant for support Avas not complied with, for a breach of the covenant. In such action damages could he recovered only for the refusal of the grantee to perform his coAmnant up to the time of the commencement of the suit.
But the obligation for support and maintenance con*458tinued for an indefinite time, during the lives of the grantors and each of them; it may be for ten or twenty Must the grantors bring their suit every six months or twelve months for damages for a failure upon Pai't grantee to supply them with food and clothing ? And in the meantime, having conveyed their all to the grantee, having deprived themselves of the means of support, must they sutler and starve until by suits at law and executions they could compel the grantee to supply them with the means of support ?
But beside the consideration of support and maintenance, another consideration alleged in the conveyance (and this upon demurrer must be taken to be true) was that the grantee should-erect upon the land a comfortable dwelling. How could this covenant, so important to the comfort of the grantees, be enforced in a suit at law?
We think it is clear that the grantors in this case did not have a complete and adequate remedy at law, and that upon the facts stated in -the record, admitted by the demurrer to be true, a court of equity had the undoubted jurisdiction, there being no complete and adequate remedy at law, if not to compel a specific performance of the contract' on the part of the grantee, certainly to rescind the contract, annul and set aside the deed, and put the parties in the same position they were in before the contract was made and the deed delivered.
But there is another ground of equity jurisdiction in this case. There ig a positive and distinct allegation of fraud in the bill. The following allegation is contained in the bill: “That said promises (i. e. for support and maintenance and the building of a comfortable dwelling), so made by said Ephraim Wampler, was resorted to by him fraudulently for the fraudulent purpose of obtaining said deed, and that your orator relied on said promises, and would not have executed said deed if *459they had not been made. And your orator charges that said deed was obtained by means of said fraud so perpetrated on him by said Ephraim "Wampler.” Here, we have a distinct and specific charge of fraud, to-wit: that the promises which induced the grantor to part with his land were resorted to by the grantee with a fraudulent purpose and intent to obtain a deed for the land conveyed.
How, fraud is universally conceded to be a ground of equitable jurisdiction. The first province of a court of equity being to enforce truth and fairness in the dealings of men, the prevention and correction of fraud is part of the original and proper office of the court.
Courts of equity have an original, independent and inherent jurisdiction to relieve against every' species of fraud. Every • transfer or conveyance of property, by what means soever it be done, is in equity vitiated by fraud. Heeds, obligations, contracts, awards, judgments, or decrees may be the instruments to which parties may resort to cover fraud, and through which they may obtain the most unrighteous advantages, but none of such devices or instruments will be permitted by a court of equity to obstruct the requisition of justice. If a case of fraud be established a court of equity will set aside all transactions founded upon it by whatever machinery they "may have been effected, and notwithstanding any contrivance by which it may have been attempted to protect them. These principles have now become axioms of equity jurisprudence.
Applying these principles to the case before us, we are of opinion that the decree of the circuit court sustaining the demurrer to the plaintiff’s bill was plainly erroneous. The plaintiff ought to have been permitted to establish by proof the fraud alleged in his bill instead of being dismissed by that court and sent to a court of law to litigate his rights, when it is plain, from the very *460nature of his demand and the continuing obligation of the defendant, the plaintiff could not have a complete adequate remedy.
For these reasons the court is of opinion that the decree the circuit court sustaining the demurrer and dismissing the plaintiff’s bill be reversed and the cause remanded to said circuit court with instructions to overrule the demurrer and require the defendant to file his answer to said bill, that the case may be heard and determined upon bill and answer, and such evidence as either party may lawfully produce.
The decree was as follows :
This day came again the parties by their council, and the court having maturely considered the transcript of the record of the decree, and the arguments of counsel, is of the opinion, for reasons stated in writing and filed with the record, that the decree of said circuit court sustaining the defendant’s demurrer to the plaintiff’s bill is erroneous. It is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellant recover of the appellee his costs by him expended in the prosecution of his appeal and writ of supersedeas here. And this court, proceeding to render such decree as the said circuit court ought to have rendered, it is further decreed and ordered that the said demurrer he overruled; and the cause is remanded to the said circuit court for further proceedings to be had therein. All of which is ordered to be certified to that court.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482043/ | Anderson, J.,
delivered the opinion of the court.
A bill was filed at the June rules of the county court of Tazewell county by Mrs. Nancy Harman, widow of Edwin H. Harman, deceased, and her infant sons, Charles "W. Harman and Davis E. Harman, heii’s and distributees of the said decedent, against John Mosby Davis, the administrator of the said E. W. Harman, deceased, and Henry B. Harman and Beuben C. Eudge, his sureties in his administration bond, for their distributive shares in the estate *463of said decedent. The bill alleges that for a number of years previous to the death of E. H. Harman, he and the said J. M. Davis had been in partners in the mercantile business on Bluestone, in the county of Tazewell, the profits of which were very handsome; and that in the year 1858 they formed a partnership in the mercantile business with John L. Heel, which was carried on for upwards of a year, at the expiration of which time they bought out the said Heel and continued the business themselves, until the war put a stop to all transactions of the kind; and the said E. H. Harman entered the service of the Confederacy and was killed in battle. And the said J. M. Davis being the sole survivor of the firm, it devolved on him to settle up the partnership concerns, and to receive in his capacity as administrator of the said E. H. Harman, his share of the partnership fund and effects, and to account for and pay over the same to them, his distributees. And the prayer of the bill was that he should be compelled to settle the said partnership accounts,and his administration accounts, and account for and pay over to them their distributive shares in the estate of said decedent, and for general relief.
The defendant, J. M. Davis, answered the bill, to which the plaintiffs replied generally, and an account was ordered and taken and reported, showing a balance against the administrator, J. M. Davis, of $7,942.39; to which the defendants filed exceptions, and depositions were taken. Said exceptions were afterwards withdrawn, and the following decree was entered: “ This cause came on to be heard this the 2d of July, 1873, upon the papers heretofore read, and the report of Samuel C. Graham and the exceptions thereto; and the defendants withdrawing all exceptions to said report, admit here in court that the defendant, Davis, as administrator of E. H. Harman, H. B. Harman and R G. Eudge, his securities in his administration bond, are responsible to the complainants, the *464widow and distributees of E. Ii. Harman, for the sum of $5,000, the amount with which the said Davis and his sureties admit themselves to be chargeable for distribution among the said widow and said children, with interest from the 1st of February, 1873, and the complainants, the widow and heirs at-law of said E. II. Harman, being willing and consenting here in court to accept the said $5,000 and interest as aforesaid, in full satisfaction and discharge of their claim against the said administrator and his sureties,” the court proceeded to decree, by and with the consent and agreement of all the parties, that the said complainant, Haney Harman, recover of said defendants $1,666.66-|, with legal interest thereon from February 1st, 1873, till paid, and that Charles W. Harman and Davis K. Harman, infant children of E. H. Harman, suing by Haney Harman, their next friend, recover of said defendants $3,333.33. with interest from February 1st, 1873, till paid. And the defendants, by like agreement of all said parties, were allowed to make payment in three equal instalments, in ten, twenty and thirty-six months from the date of the decree, and if punctually paid no execution to issue; and it was decreed that the complainants recover their costs. And it was agreed that all the unpaid claims due the estate of E. H. Harman were the property of said Davis.
The first instalments falling due and being unpaid, the plaintiffs caused executions of ji. fa. to be issued therefor, and thereupon the defendants brought their bill in the circuit court of Tazewmll county against them, praying an injunction to said executions, which w^as granted, and upon the coming in of the answer of Haney Harman, w7as, by a decree of the court of the 18th of May, 1875, dissolved. And on the 10th day of September, 1875, the said J. M. Davis, administrator of E. H. Harman, deceased, H. B. Harman and Beuben C. Fudge, sureties of said Davis as administrator as aforesaid, *465by leave of the court, filed their bill of review and obtained an injunction to restrain the plaintifts, Nancy Harman and others, from all further proceedings under the decree rendered in the case of Nancy Harman and others against J. Mosby Davis and others in the bill of review mentioned, to which bill the defendants filed their answers—the infant defendants by guardian ad litem; and the' cause coming on to be heard on the 18th "of November, 1875, the court was of opinion that there was error apparent on the face of the decree complained of, in that it was a decree by consent, and some of the complainants being infants could not be bound thereby, and because refunding bonds were not required to be executed by the complainants before payment by the administrator. And for these reasons and causes of error decreed that the decree of the 2d of July, 1873, be reversed and annulled, from which decree the defendants to the said-bill of review appealed to this court, which is the case now to be decided.
The court is of opinion that it was not error to decree in that cause in favor of the plaintifts because some of them were infants. The defendants were adults, and •admitted that they were chargeable for distribution to the widow and children of E. H. Harman, deceased, with the sum of $5,000, and interest thereon from the first day of February, 1873, till paid, for which the defendant, Davis, as administrator of E. IT. Harman, and his securities in his administration bond, are responsible to the complainants, the widow and distributees of the said E. H. ITarman, deceased. And the court says the complainants, the widow and heirs aforesaid, being willing and consenting here in court to accept the same in full satisfaction and discharge of their claim against the said administrator and his sureties, “ it is therefore adjudged, ordered and decreed, by and with the consent *466and agreement of all the parties,” as herein-before set out, a decree for the distribution of that sum admitted to be due for distribution, by the administrator and his sureties in full satisfaction and discharge of all that is due them from the administrator and his sureties.
There is no claim made by the widow and distributees for more, nor dissatisfaction expressed by them with the amount decreed in their favor, but the complaint comes from the administrator and his sureties, that they admitted their liability for more than they ought, and they seek to be released from this acknowledgment on the ground that some of the parties to whom they acknowledged it to be due were infants. It is very clear that they being under no disability, their acknowldgmenf could not be impaired or affected by the fact that those to whom they acknowledge themselves indebted were -infants. But t]iey contend that their acknowledgment ought not to be binding upon them because it was made as a concession to the complainants upon the considerathat it would be received in full. satisfaction and discharge of all they owed them; that the complainants did agree to receive it as such, but that some of them are infants, and. are not bound by that agreement, and may, after they attain majority, refuse to be bound by it and compel them to pay more.
If there is any ground for their complaint that they acknowledged a larger indebtedness than they were in fact owing, and they are prepared to show it, they surely can have no ground for the apprehension that after the infants attain majority they may he able to have the decree complained of set aside and annulled, and subject them to the payment of an additional sum. It is not a motion of the infants to be relieved from a consent decree, which allowed them less than they were entitled to, upon the ground that they were incapable of giving their consent by reason of their infancy; but it is a motion *467by the adult administrator and his sureties to be relieved from a decree for a sum which they acknowledged in open court was due from them to the complainants, and which decree was entered by their consent and the consent of the complainants, in full satisfaction of all their claim against the defendants, because two of the complainants were infants.
The administrator'must be presumed to be well informed as to the condition of the estate and the state of the accounts between him and his intestate, and it is presumable that he would not have acknowledged a larger indebtedness to the distributees, or a larger sum in his hands for distribution than truth and justice required. The account taken by the commissioner showed a much larger amount due from the administrator to the estate; but there were still some outstanding debts of the decedent which had not been paid, and the administrator contended that some of his vouchers evidencing disbursements, had been erroneously rejected by the commissioner; but upon the whole, he was willing to acknowledge an indebtedness to the complainants—an amount in his hands, not for paying debts and distribution, but for distribution, of course after paying debts—an amount for which he and his sureties were responsible, not to creditors and distributees, but to the distributees, the complainants, of $5,000, with interest thereon as specified; and was willing that the plaintiffs should take a decree therefor in full satisfaction and discharge of their whole claim. They agreed to it, and the court entered such a decree, by consent and agreement of all the parties. The plaintiffs are satisfied with it, and seek to enforce it, and do not ask to be released from it, on the ground of the disability of two of them by reason of infancy. But the defendants seek to be released from it on the ground that it is not binding on the infant plaintiffs, they being incapacitated to give their consent. But that could be no .ground for *468relieving them from the decree in favor of the adult plaintiff.
And in this case the court is of opinion that it is no ground for releasing them from the decree in favor of the infant plaintiffs. Although the infants were incapable .of consenting to the decree, it is binding upon them, if for their benefit—as binding as it would have been if no consent had been given. An infant plaintiff is as much bound by a decree as an adult. Broion v. Arm.stead, 6 Rand. 594. .Unless the court was satisfied that this decre'e was for the benefit of the infants, it would have been error to have entered it as a consent decree. And this court, having the whole case before them, and being satisfied that the decree was for the benefit of the infants, and that they are therefore bound by it, there is no error upon the face of the decree on this account for which it could be reviewed or reversed.
The court is further of opinion that the decree of the 2d of July, 1873, sought to be reviewed is not erroneous, because it contains no provision requiring the plaintiffs to execute refunding bonds before enforcing payment. Such a provision would have been incompatibl e with the evident intent and legal effect of the decree, which was that the sum decreed to be paid by the administrator and his sureties was in his hands for distribution amongst them, which could not have been so if there were outstanding and unsatisfied debts of the estate for which it was liable; and that the defendants were responsible to them for that amount, which could not have been so if it were chargeable with, the payment of debts due from the estate; and that the same was to be paid them in full of their entire interest in the estate, and that all debts due the estate or the different co-partners, of which the defendant, Davis, was the surviving partner, were to be his property, not liable for any further claim on their part for distribution, but liable, of course, for any debts *469of the estate which might be outstanding and unsatisfied. Consequently a provision in the decree requiring the plaintiffs to give obligations to refund any propor- ■ tion of debts which might thereafter be recovered against the estate, would have been incompatible with the legal effect and intent of the decree. And furthermore, the defendants acknowledging that the amount specified was' in the hands of the administrator for distribution, and consenting to a decree in favor of the plaintiffs against them for their respective proportions thereof, was a waiver of any right of the administrator, to require refunding bonds.
The court is therefore of opinion to reverse the decree of the 18th of November, 1875, of the circuit court of Tazewell county, to dissolve the injunction, and dismiss the plaintiffs’ bill of review with costs.
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 said decree and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree of said circuit court rendered on the 2d day of July, 1873, and in the proceedings mentioned, for which the same ought to have been reviewed and opened; and hence that the decree of said court rendered on the 18th day of November, 1875, and which is the subject of this appeal, is erroneous. Therefore it is decreed and ordered, that said decree of 18th November, 1875, be reversed and annulled, and that the appellants recover of the appellees their costs by them in the prosecution of their said appeal here expended. And this court proceeding now to render such decree in the premises as the said circuit court of Tazewell county ought to have rendered, it is further *470decreed and ordered, that the injunction awarded in the cause depending on the bill of review in the proceedings mentioned be dissolved, and that said bill of review be dismissed, and that the defendants in said bill (who ai’e the appellants here) recover of the plaintiffs in the same their costs by them about their defence to said bill expended; which is ordered to be certified to the said circuit court of Tazewell county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482044/ | Staples, J.,
delivered the opinion of the court.
At the time of the commencement of this controversy, in the year 1871, the Virginia and Tennessee Railroad Company was required, by act of the legislature, to report annually to the auditor of public accounts the estimated value of all its real and personal estate of every description. It was also required to .report quarterly the net earnings of the road for the three preceding months, and at the same time to pay into the treasury of the state the taxes imposed by law. So that the company, instead of. being assessed in the different counties in which its road was located, was assessed as an entirety.
The assessment for state taxes was not made,-as in ordinary cases, by the township assessors, but by the company itself to the auditor of public accounts, and the taxes were paid, not to the county treasurer, but directly "into the state treasury.
The same provisions were applied to the other railroad companies and canal companies, and, with some modfications, to the insurance and telegraphic companies doing business in the state. This mode of assessment and taxation has been continued and is still pursued by the legislature. Acts of 1869-70, page 312; Acts of 1870-71, page 93.
*473In the year 1871, the County of 'Washington claimed the right to impose the county levies upon the property of the Virginia and Tennessee Eailroad Company in that county, and it caused to be assessed for that purpose the road-bed and other real estate within its limits. This claim was resisted by the company, but was sustained both by the county and circuit courts of that county. The case is brought here by writ of error to the judgment of the last-named court. The grounds upon which the parties respectively rest their pretensions will be considered in the course of this opinion.
An examination of the various acts of the legislature on the subject will show that for many years the county levies and poor rates were confined to the titheables within their limits. Eeal and personal property was not made the subject of county levy until long after the revisal of 1819. At what precise period this was done I have not been able to ascertain, as the acts of the general assembly showing the fact cannot be had in this place. It was probably as far back as the year 1824 or 1825. See 2 Rev. Code 1819, page 63; Code of 1849, page 277, sec. 4. But under all the acts subjecting property to county levies, the levy in every case was limited to those subjects assessed with state taxes within the county. Under former constitutions and laws the practice was for the justices of the county, a majority being present, to settle the accounts of the county, and to proceed to lay the levy upon property assessed with state taxes according to the land and property books as made out by the commissioner of the revenue for state purposes. The result was that under no circumstances could there be a county levy upon property unless it was assessed within the county for state taxation. This was the uniform rule, never departed from pi’ior to the adoption of the present constitution. It is claimed, however, *474that that instrument has changed the law upon this subj e°t, and that power is now conferred upon the county respectively to lay the county levies upon all subjects of taxation not specially exempt under the constihition, independently of legislative sanction, and whether such subjects are or are not assessed for purposes of state taxation.
jt will be admitted that when an enactment, constitutional or legislative, is relied on- as effecting a radical change in the policy of the government, as pursued for forty years—a policy founded upon sound reason and common justice—the language of such enactment ought to be very explicit in its terms. More especially is this true when applied to the subject of taxation, a subject peculiarly within legislative discretion, involving the highest attributes of sovereignty and affecting all classes and conditions of society. The legislature is invested with complete power over the subject of taxation, except so far as may be otherwise provided in the constitution. On the other hand, the counties are mere auxiliaries of the government, established simply for the more effective administration of justice; and the power of taxation as confided to them is a delegated trust, and is to be strictly construed. They act not by virtue of any inherent power, but as mere agencies of the state. City of Richmond v. Daniel, 14 Gratt. 385; 21 Gratt. 604, 617.
In this case it is claimed that an independent sovereign power not only of imposing taxes, but also of designating the subjects of taxation, is conferred upon each board of supervisors in every county and township of the state. It cannot be going too far to say that the men composing these boards are not generally elected with reference to such duties, nor are they qualified by their pursuits, information or position for the exercise of a trust so delicate and responsible. It is difficult to believe it was ever intended to confer upon these boards a power which the *475state would nevei* bestow upon her magistrates at a time when the county court was composed of some of the most intelligent and responsible citizens of the state.
The pi’ovision of the constitution relied on as conferring this power is found in section 2, article 7, of that instrument. That section, after providing that each county shall be divided into townships, in each of which there shall be annually elected one supervisor and certain other officers therein named; declares: “ The supervisors of each township shall constitute the board of supervisors for that county, and shall assemble at the court-house thereof on the first Monday of December in each year, and pi’oceed to audit the accounts of said county, examine the books of the assessors, and regulate and equalize the valuation of property, fix the county levies for the ensuing year, apportion the same among the several townships, and perform such other duties as shall be prescribed by law.”
The words relied on as conferring the power in question are, “ to fix the county levies for the ensuing year, and apportion the same among thé various townships.” The learned counsel for the county of "Washington, in commenting upon these words, insists they confer upon the supervisors authority to ascertain the levy, to establish a levy and to impose a levy, and to divide the same among the several townships; and that this is but an exercise of the taxing power under the constitution. All this may .be conceded, and the question still arises, how are the supervisors to ascertain the subjects of taxation for the county levy ? To what source are they to look for the necessary information to guide them with respect to the taxable property? The answer is found in the section already cited, which declares they shall “ examine the assessors’ books.” And a subsequent section of the same article provides that the general assembly, at its first session after the adoption of the constitution, shall *476pass such laws as may be necessary to give effect to the provisions of this article. The legislature accordingly provided for the election of assessors; it prescribed that their duties and powers should be the same as those of the former commissioners of the revenue; it required them to assess the property of their respective townships; to make out the land and property books in the manner required of the commissioners of the revenue—a copy of which was to be sent to the auditor of public accounts, another delivered to the county treasurer, and another to the' clerk of the county for the use of the board of supervisors. Acts of 1869 and 1870, pages 80 and 282. These are the books to which the constitution refers, by which the state taxes are ascertained and collected, and by which the supervisors must be governed, as were the former justices of the peace, in laying, the county and township levies. The conclusion is inevitable, therefore, that the board of supervisors in laying the county levies must look to the books provided for the state assessment, and to the subjects of taxation as contained in those books.
This must be so, unless we are to suppose that the framers of the constitution intended to inflict upon the state a complex and expensive system requiring two sets of assessors, one for the state and the other for the counties, with two sets of books containing different valuations of property and different subjects of taxation. The more reasonablé presumption is, that they legislated with inference to the former system, simply substituting the supervisors in place of the justices, and confining the county levy to such property, real and personal, as was assessed with a state tax within the county. Acts of 1869 and 1870, § 74, p. 284; p. 306, § 47.
It is very true that the section already quoted also confers upon the board of supervisors the power to equalize and regulate the valuation of property. I am free to confess that, after the most careful examination *477and reflection, I am unable to say what these words precisely mean. It is very probable they were taken from the constitution of some one of the northern states, where they have equalization boards, as they are called. These boards have a sort of appellate power for the purpose of an equalization, in case the assessment of one district is found to be relatively higher or lower than that of another, so that if the general taxes were to be assessed upon it, the district would pay more or less than its due proportion. This is not done by changing individual assessments, but by fixing the aggregate for the several districts at what in the opinion of the board they shall be, so that general taxes may be levied according to this determination, instead of on the assessors’ footings. This is the construction generally given to the laws relating to the equalization boards in other states. Cooley on Taxation, p. 290.
But whatever may be the meaning of the words in ■our constitution just quoted, it is very clear the power to regulate and equalize the valuation of property cannot be construed as giving authority to change the assessors’ books and to prescribe new subjects of taxation different from those assessed by the state.
The learned counsel for the County of Washington maintain that the legislature, in various acts passed from time to time since the adoption of the constitution, has recognized this power as vested in the board of supervisors ; and in support of this position he relies upon the fact that the legislature in prescribing the duties and powers of the supervisors, has used the same words contained in the constitution. I submit to the learned counsel, this is reasoning in a circle. If the words in question had a fixed, well-ascertained meaning, we might easily understand what the legislature intended in incorporating them in one of its statutes. Sometimes the legislative department, finding great difficulties in the construction *478of a constitutional provision, embodies it in a statute, leaving it to the courts to give to it the proper interpretation.
But in the present case we are left in no difficulty as the meaning of the legislature. In the very first act on the subject, passed 9th of July, 1870, Acts of 1869 and ’70, page 332, the supervisors of the respective counties are required to convene the 1st of July, 1870, and to lay the county levy for the year 1870, according to the provisions of sections 2, 3 and 4 of chapter 53, Code of 1860, so far as the same are applicable. One of the sections thus referred to limits the levy in express terms to property assessed with state taxes within the county. This act was followed by the act of March 19th, 1872, which confers upon the supervisors authority to “ fix the amount of the county levies for the ensuing year, to order the levy on all male persons over twenty-one years of age, and on all property assessed with state taxes within the countyor the order of levy may be a certain sum on all male persons over the age of twenty-one years, and for a certain per centum upon the amount of the state tax, and to apportion the same among the various townships of the county. Acts of 1871 and ’72, page 291. The act of March 26th, 1875, contains substantially the same provisions. Acts of 1874 and ’75, page 355. These enactments show that the legislature was of opinion that the supervisors are not clothed with the power of assessment and taxation under the constitution, without the aid of legislation. They further show that the design was to adhere to the policy pursued for forty years, and to confine the county levies to those subjects assessed with state taxes within the respective counties.
It is said, however, that the words “ within the county,” refer to the location of the property, and not to the place where the assessment may be made; and the statute *479ought to be construed as if it read: “ the board of supervisors shall have power to order the levy on all property within the county assessed with state taxes.” It is cient to say that the words used in the act of 1872 and in all the subsequent acts, are the same as those used in the Code of 1849, the Code of 1860, and indeed in all the acts prior * x to the adoption of the present constitution. Their meaning, as used in these prior enactments, was well understood, and that is, that the county levies were confined to property assessed with state taxes within the county by the commissioners of the revenue. It must be presumed that the legislature, in- adopting the same words in the more recent enactments, intended to give them the construction uniformly given to them.
There is but- one act, ever passed by the legislature which at all militates against this view, and that is the act of March 15th, 1872. It is there provided that “ where a railroad or canal shall pass through more than one of the counties of the state, the report (of the company) shall show the estimated value of the property herein-above classified that may be within the limits of each of said counties; and it shall be the duty of the auditor of public accounts to furnish tile board of supervisors of each of the counties of the state through which any railroad or canal passes, such estimated value of the property herein-above specified, as appears from such report to be within the limits of each of said counties.” Now, it would seem to be very clear that the object of this enactment was to furnish a basis for the assessment and imposition of county levies upon the various railroads of the state, and thus to remove all the difficulties growing out of a want of legislation upon that subject;' and yet we find at the next session of the legislature, April 5th, 1872, an act was passed in which it is expressly provided that section 91, just cited, shall not authorize the supervisors in any county through which said railroad or canal *480may pass, to assess, levy or collect any tax for county or township purposes on the valuation of properties classiin the report required hy the said 91st section of the assessment act.
The provisions of the act of March 15th, 1872, have been omitted in all the subsequent acts on the subject. 1 ü If, therefore, the legislature at one time manifested a purp0ge cpai.ge the various railroads of the state with county levies, that purpose was immediately abandoned and never again asserted.
The whole theory of our system of taxation is based upon the idea that it is prepared by the representatives of the people upon due deliberation and reflection, and when thus prepared for state purposes it may be safely applied to the counties and other local agencies of the commonwealth. And any rule of construction and doctrine which would give to these agencies a power of taxation under the constitution, independent of all legistive supervision and control, is in violation of the uniform policy of the state, and contrary to the true principles of the government. "When, therefore, the constitution gives the supervisors authority “ to fix the county levies,” it only means they shall ascertain and fix the amount of such levies, and the amount thus ascertained is to be collected from such subjects of taxation as. are prescribed by the legislature.
It has been argued, however, that under the present constitution taxation, whether imposed by the state, county or corporation bodies, shall be uniform; and all property, both real and personal, shall be taxed in proportion to its value, to be ascertained as prescribed by law. And in this respect the present constitution differs very materially from that of 1851. And further, that the legislature has no power to exempt any property from county levy if it so desired. See § 1, art. 10 of the constitution, let all this be conceded, and still it is not perceived in *481what way it helps the County of Washington. If all property must he taxed as well hy the county as by the state, it can be done only in the manner prescribed by law. As already stated, the constitution makes it the duty of the legislature to pass such laws as are necessary to carry its provisions, relating to taxation, into execution. The legislature has made no provision for imposing county levies upon the railroads of the state. So far from it, as has been seen, it has by inevitable implication •exempted them from such levies.
If the commissioners of the revenue, or the assessors in the different counties, should make an assessment of the railroad track, or other property within their limits, ■such assessment would' constitute no just basis of taxation. A part of a railroad running through one county may be of little value, but if taken in connection with the whole, it may be as valuable as any other part. As was said by the supreme court of Kentucky: “A railroad, from one end to the other, is an entirety. Fragmentary taxation or sales might be unjustly vexatious and injurious to the owners, prevent the destination of the road, and disturb the public use and interest. To avoid such evils and absurdities, the law treats a railroad and all its appurtenances as one entire thing, not legally subject to •coercive severance or dislocation. In that .consolidated character it must be taxed for state revenue, and cannot be a fit subject for local taxation by the separate counties through which it runs.” Applegate v. Ernst, 3 Bush. R. 648.
And in Gulph R. R. v. Moores, 7 Kansas R. 210, it was said : “A railroad is an entire thing, and should be assessed as a whole. It would be almost as easy and reasonable to divide a house or a locomotive into portions and assess each portion separately as to divide a railroad into portions and assess each portion of it sep*482arately.” The policy of Virginia has uniformly been in accordance with the views expressed in these cases. Prior to the war the assessment and taxation were based upon the dividends, or upon the receipts of the companies, ascertained by reference to the number of passengers or the amount of freight transported. Code of 1849, ch. 39, § 1 to 5; Code of I860, p. 200. Since the war, as has been already seen, the tax has been upon the net earnings of the respective roads, paid quarterly into the treasury. The state has, therefore, never regarded any mere local assessment of a part of a railroad within a county as furnishing any reliable basis of taxation. At the very time the legislature was providing for the reassessment of lands throughout the commonwealth, in the year 1870, it required the railroads and canals to be assessed, not with reference to any valuation so made, but entirely upon different principles. These considerations plainly show that the assessment of lands made in the different counties by the assessors of the several townships, for purposes of state taxation and county levy, were never designed to include the property of the railroad and canal companies located in those counties. It would be most extraordinary indeed that the legislature should repudiate the whole system of local assessment and taxation as utterly unjust and impracticable when applied to railroads, and at the same time confer upon the supervisors of each county the power to apply that system to the same railroads in its most objectionable form, based upon crude and conjectural valuations-by men without the necessary qualifications or means of information for such duties. It is impossible to foresee the mischiefs that would flow from such a policy, if every county from Norfolk to Bristol is to be invested with the power of assessing and taxing the railroad within its limits, and it is easy to see that this company, if not *483taxed out of existence, would have to bear the most grievous burdens, far beyond its resources.
It is stated by counsel that the state tax on that portion of the road between Lynchburg and Bristol, is ten thousand dollars. It is conceded that if the other eight counties between those points impose a levy in proportion to that of Washington County, the amount will exceed fifteen thousand dollars, five thousand dollars more than the entire state tax.
One of the counsel of the appellant, upon a calculation made by him, estimates the county levies as three times the amount of the state tax. However all this may be, it is most obvious that the legislature, so far from making any provision for imposing the county levies upon the railroads of the state, has plainly evinced a purpose to prohibit the imposition of county levies in such cases.
And until the legislature makes the necessary provision for carrying the constitution into effect in this particular, neither the supervisors of the county nor the courts can furnish a remedy or supply the want of proper legislation. In this connection it may not be amiss to quote from the observations of a very eminent author upon what are termed self-executing provisions in a constitution. He says: “ That although all the provisions of a constitution are to be regarded as mandatory, there are none which from the nature of the case are as incapable of compulsory enforcement as are directory provisions in general. The reason is, that while the purpose may be to establish rights, or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplementary legislation must be had, and the provision is in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. *484Sometimes the constitution, in terms, requires the legislature to enact laws on a particular subject, and here it is obvious that the requirement has only a moral force. The legislature ought to obey it, but the right intended to be given is only assured when the legislation is voluntarily enacted. Illustrations may be found in constitutional' provisions requiring the legislature to provide, by law, uniform and just rules for the assessment and collection of taxes. These must lie dormant until the legislation is had. They do not displace the law previously in force, though the purpose may be manifest to do away with it by the legislation required.” Cooley’s Constitutional Limitations, pp. 99, 100.
These observations of the learned author could hardly be more apposite if they had been made with direct reference to the provision of the constitution now under consideration. But in taking the view just now presented, it is by no means conceded that the constitutional provision requiring all property to be taxed according to its value, has any application to county levies. Under the. constitution of 1851, taxation was required to be equal and uniform throughout the commonwealth, and all property was to be taxed according to its value. It was held by this court that these provisions did not apply to county levies, but solely to taxation for purposes of state revenue. So that while the state taxes were required to be equal and uniform, the county levies were not subject to any such condition. Gilkeson v. The Frederick Justices, 13 Gratt. 577. Under the present constitution the rule of uniformity and equality is applied to county taxation as well as to the state, but it does not therefore necessarily follow that the rule requiring all property to be taxed according to its value, is also to be applied to county taxation. Upon this point we do not desire 'to express any opinion. It is a very grave and important question, only to be decided upon the fullest consideration. This *485case is readily disposed of upon other grounds already presented. I think that the supervisors of Washington County were not authorized to impose the levies upon the property of the Virginia and Tennessee Eailroad Company, not assessed with state taxes in that county. If the County of Washington and other counties oi the state are improperly deprived oí a source ot revenue from property within their limits, it is for the legislature to apply the remedy. It is worthy of remark, however, that no such power has ever been asserted by any of the counties until tiie present claim was put forth by the County of Washington; nor, so far as our information .extends, has there been any complaint of injustice done to the counties by the system of taxation adopted by the state with respect to her railroad companies. But without pursuing the topic further, I am of the opinion that the circuit court and county court of Washington County erred in refusing to exonerate the company from the payment of county levies and township taxes assessed against it by the County of Washington for the year 1870, and for that error both of said judgments must be reversed and a judgment entered in conformity with the views herein expressed. ■
The judgment in each case is the same, except that the first only referred to county and township levies. The second 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 argument of counsel, is of the opinion, for reasons stated in writing and filed with the record, that the county court and the circuit court of Washington County erred in refusing to exonerate the plaintiff in error, the Virginia and Tennessee Eailroad Company, from the county levy, town*486ship, school and road taxes for the year 1878. It is therefore considered by the court, that the said judgment of the said circuit court be reversed and annulled, and that the defendant in error pay to the plaintiff in error its costs by it expended in the prosecution of its writ of error and supersedeas 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 said county court be reversed and annulled, and that the defendant in error pay to the plaintiff in error its costs by it expended in the prosecution of its writ of error and supersedeas in the said circuit court. And it is further considered that the plaintiff in error be and it is hereby exonerated from the payment of the county levy and township, school and road taxes of the County of Washington for the year 1873, and recover of the county the costs of-its motion in said county court. All of which is ordered to be certified to the said circuit court.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482045/ | Burks, J.,
delivered the opinion of the court.
The court is of opinion, that the several writs of fieri facias, proceedings under which were enjoined by the judge of the circuit court of Wythe county, were irregularly and unlawfully issued.
*490Every execution should conform accurately' to the judgment or decree which it is used to enforce. 1 There is a substantial reason for this requirement. Where the judgment or decree is satisfied by execution in the hands of an officer, the defendant is entitled, for his protection, to record evidence of the discharge. This evidence is not furnished by an execution, although duly returned' satisfied by an officer, which does not correspond with the judgment or decree.
The decree of the said circuit court in the suit of Harkrader & als. v. Snavely als., pronounced on the 21st day of December, 1876, confirmed the report of Commissioner English, which ascei’tained the several amounts due from the defendant, Snavely, and his sureties (the present appellants), to the plaintiffs, respectively; but it did not order the defendants to pay those amounts to the several plaintiffs, or give the latter any recovei’y against the defendants. On the contrary, in express terms, it ordered payment to be made to H. E. Harkrader, attorney in fact of Robert C. Harkrader, and foreign guardian of the infant plaintiffs, and “ conservator ” (committee) of E. E. Hai’krader.
It would seem clear that on this decree, as it oi’igin ally stood, as to these several amounts, only one execution could have been issued, and that in the name and on behalf of H. E. Harkrader for the aggregate of the several sums ascertained by the commissioner’s report. Indeed; the decree expressly provides that “the said H. E. Hai’krader has leave to sue out his fieri facias against the said defendants for the amounts decreed him.” If there be any doubt as to whether only one execution could have been sued out for the aggregate of the sums fixed by the report, or separate executions for the several amounts, still, in either case, the execution or executions must have been in the name and on behalf of H. E. *491Harkrader, to whom, and to none other, payment was ■ordered to be made.
On appeal, this decree was partially reversed by the decree of this court rendered on the 25th day of September, 1877. It was expressly reversed and annulled, so far as it directed the appellants (Snavely and others) to pay over to the foreign guardian, H. E. Harkrader, the sums respectively found due to the appellees by the report of Commissioner English; and it was provided, that the said H. E. Harkrader, the foreign guardian, should have leave to file his petition in the said circuit, court, after due advertisement as prescribed by the statutes, and upon such petition so filed, the said circuit court should decree to be paid over to him the several amounts respectively due from the former guardian, Snavely, as already ascertained by said report of Commissioner English.
The decree of the circuit court gave costs jointly in favor of the plaintiffs against the defendants. As to these costs, the language of the decree aforesaid of this courtis as follows: “And it is further decreed and ordered, that said circuit court shall, through one of its commissioner’s, ascertain what proportion of the costs were incurred in taking evidence in reference to the sale of said infants’ real estate, and of the evidence certified from the state of Illinois as to the qualifications of said foreign guardian, and the costs of printing the same, and such costs so ascertained shall be, upon a final decree, decreed against the said H. E. Harkrader.”
How, under this decree, it is manifest that no execution could be properly sued out by any party without the further action of the circuit court. The infants, as already seen, could not rightfully sue out executions, because no money was decreed to be paid to them, and H. E. Harkrader, the foreign guardian, could sue out none, because the decree, so far as it ordered payment to be made to *492him, was i’eversed and annulled, and a further decree by the circuit court was required before he could lawfully receive anything. And as to the costs, the decree of this court would seem to contemplate a postponement of payment until the enquiry directed by this court should be ordered and made.
The court is further of opinion, that although the appellants had their remedy by motion to quash the executions, which motion, under the statute (Code of 1873, ch. 183, § 40), might have been made, after reasonable notice, as well before the judge of-the said circuit court in vacation as before said court in term; yet this remedy, under the circumstances of this case, was inadequate, and therefore the injunction was proper.
Every court has a perfect right to watch over the execution of its judgments, and where its process has been irregularly or fraudulently used, to quash it, as being the best and speediest mode of doing justice. Hendricks & Taylor v. Dundass, 2 Wash. 50.
Of whatever form the writ of execution may be, it must conform to the judgment; and if it does not, it will be quashed on motion. Herman on Executions, § 403, pp. 619, 620, citing Reese v. Burts, 39 Geo. R. 565.
When the statute law authorized the issuing executions on decrees, it clothed the courts of chancery with the power of watching over such process and correcting any abuses arising under it, to the same extent and by the same means that courts of law use. Carr, J., in Windrum v. Parker & als., 2 Leigh, 361, 367. And in deciding upon all questions in respect to executions on decrees, the courts of chancery are bound to abide by the common law and statutes respecting executions at law. Green, J., S. C. 369.
The motion to quash, as provided by our Code, ubi supra, must be “ after reasonable notice,” and such no*493tice, whatever may be the grounds on which the motion is based, does hot of itself suspend the execution of the writ. Hermon on Executions, § 405, p. 621, citing cases from Alabama, Louisiana and Mississippi.
The executions in this case were issued on the 10th day of October, 1877, and were returnable on the 3d day .of December following, which was the first day of the then next term of the circuit court of Wythe county. The bill of the appellants charges that the TIarkraders (the plaintiffs named in the executions), “are all nonresidents.” This allegation of the bill, on the motion to dissolve the injunction without answer, must be taken as true. Notice of the motion to quash could have been served only by publication thereof once a week for four successive weeks in a newspaper published in this state. Code of 1873, ch. 163, § 2. Before the motion, therefore, could have been regularly made, the apprehended mischief under the executions might have been accomplished ; the property of the appellants might have been seized and sold under process irregular and illegal. It is no answer to this view to say that the indebtedness of the appellants was ascertained and fixed by the report of the commissioner which was confirmed by the decree, and that, therefore, the appellants could not.be injured by executions compelling payment. Although the amounts due were definitely ascertained, there was no order in the decree, as modified by this court, for payment, and without such order, or what is equivalent thereto, there could be lawfully no execution to compel payment. An order to pay, or recovery in some form, is an essential prerequisite to an execution to compel payment.
In Shackelford v. Apperson, 6 Gratt. 451, it was held by this coui’t, Judge Bald-win delivering the opinion, that the excution in that case having issued irregularly and unlawfully, it was competent for the court to quash it in term time, or for the judge in vacation to restrain pro*494ceedings upon it by an injunction Órder. The remedy resorted to in that case was a bill with injunction. The court below, by its decree, had dissolved the injunction and dismissed the bill. The decree was reversed and the bill and injunction ordered to be reinstated.
At the date of that decision there was no statute authorizing a motion to quash an execution to be made before a judge in vacation, but if there had been such a statute, as there now is, the decision would doubtless have been the same, if it had appeared, as in this case, that notice of the motion could not have been given in time to make the remedy effectual.
In this case notice to the sheriff, as we have seen, would not of itself have suspended the execution of the writs in his hands, and hence the necessity of the injunction to restrain him.
The court is therefore of opinion, that the decree of the said circuit court, in so far as it adjudges and orders that the injunction theretofore awarded be dissolved as to all the executions in said decree mentioned, except the execution for costs, is erroneous, and should to that extent be reversed and annulled. The said circuit court should have wholly overruled the motion to dissolve said injunction as to all the executions mentioned in the decree. So much of said decree, therefore, as has been declared to be erroneous, must be reversed and annulled, and the residue thereof affirmed, the injunction, to the extent it was dissolved, be reinstated, and the cause remanded for further proceedings to final decree 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 decree aforesaid and the argument of counsel, is of *495the opinion, for reasons stated in writing and filed with the record, that the several writs of fieri facias in the said decree mentioned, proceedings whereon were restrained by the injunction order made by the judge of said circuit court, were irregularly and illegally issued. The court is further of the opinion that, although the appellants had a remedy by motion to quash the said executions, yet this remedy, under the circumstances of this case, was inadequate, and therefore they were entitled to file their bill, and to the injunction awarded thereon to enjoin, inhibit and restrain the appellees from all further proceedings on said executions.
. The court is therefore of the opinion, that the said decree of the said circuit court, to the extent that it dissolves the said injunction, is erroneous. The said circuit court should have wholly overruled the motion to dissolve the said injunction, not only as to the execution for costs in said decree mentioned, but as to all the other executions therein mentioned; it is therefore decreed and. ordered, that the said decree of the said circuit court, so far as the same is hereinbefore declared to be erroneous, be reversed and annulled, and the residue thereof be affirmed; and that the appellees pay to the appellants their cost by them expended in the prosecution of the appeal aforesaid here. And the cause is remanded to the said circuit court, with directions to reinstate the said injunction so far as the same has been dissolved by the decree aforesaid, and for further proceedings in the cause to a final decree in conformity with the opinions and principles herein expressed and decreed; all of which is ordered to be certified to the said circuit court of Wythe.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482047/ | Anderson, J.,
delivered the opinion of the court.
The court is of opinion that, there is nothing in the record to show that the debt of James A. Beville to Mrs. Jane E. Moore, as evidenced by his note, and secured by deed of trust on his house and lot, is not genuine and bona fide, and for the consideration appearing on the face of said papers. The proof is that Mrs. Moore after the death of her husband, which occurred in the fall or winter of 1877, received $5,000 in money, in payment of *508his life policy, and that she loaned $1,000 of it to her brother, the said James A. Beville, for which he executed to her the said note and deed of trust. She at another time loaned him $800 or $850, which was secured upon horses and other personal property, which they call “ livery stock.” That deed is absolute on its face, but was evidently intended only as security. She admits this debt was paid. And the bond for $800, with credits endorsed upon it, showing its entire satisfaction, is exhibited by James A. Beville with his deposition.
It is alleged by the creditors of Benjamin Beville, father of said James A., that the said lot was purchased and paid for by the said Benjamin, wrho caused the same to be conveyed to his said son in fraud of his creditors, and that Mrs. Moore had notice of it when she loaned the money on said security, and thereby became a pai’ticipant in the fraud. It is a well established principle, that fraud must be proved, and cannot be presumed. Both James A. Beville and Mrs. Moore deny the allegation of fraud, and the latter denies that she had any knowledge of it, if there was fraud in the procurement of the title to the lot by her grantor. James A. Beville testifies that he never informed her or any one that the lot was acquired by him from his father. And Mrs Moore, in answer to the question, if she ever had any intimation or knowledge of any kind that her father had advanced or paid the purchase money on this house of James A. Beville’s at the time of or prior to her loan of $1,000 to James A. Beville, swears that she never had. Her language is, “ none in the world.” And she declares, in answer to another question, that she loaned the money upon the faith of James Beville’s deed to the land. There is proof positive that Benjamin Beville was indebted to his son, and that Colonel Boyd was indebted to him, and that he told his son Colonel Boyd wished to sell him a lot, and proposed to him that if he *509would take it in payment of what he owed him, that they would make the trade; which his son agreed’ to. And the next day they went to see Boyd, and met him near where his (witness') house is. They walked up to where Susan Bumgardner now lives, and Colonel Boyd gave him the option to take that lot or the one he now owns. He told him he would take the latter, and lus father directed Colonel Boyd to have the deed made to him. Colonel Boyd does not remember the particulars, though he says they might have occurred as stated, and what he does remember is consistent with the foregoing statement. The foregoing is proved by James A. Beville, who does not appear to have any pecuniary interest in the question. He files with his deposition his account against his father, being for money loaned and work done; and swears to the correctness of it. Although he was under age, he had entered the army of the Confederacy, and having been wounded in the service in 1862, was at home for about eight months, when he made a large portion of the amount of his account by dealing in liquor. A portion of the money was made before he entered the army—his father giving him his time—and which, together with money he sent home to him from the army, and the money he had made by dealing in liquor, which he loaned his father, constitutes his account, of all which he says he kept memoranda in his memorandum book, from which the account exhibited was copied, and which book he exhibited when asked to do so by the adverse counsel. There is no evidence in the record contradicting the testimony of this witness, or to impeach his credit; nor is there any direct testimony to prove that Mrs. Moore had any knowledge or intimation of fraud, if there was fraud, in the transaction between Benjamin Beville and her grantor at the time she made him the loan and took the deed of trust as security, or prior thereto.
*510But the plaintiffs in the original suit and defendants to Mrs. Moore’s bill of injunction, rely on circumstances establish the alleged fraud in this transaction, and Mrs. Moore’s knowledge of it. They charge that Benjamiri Beville was largely indebted, and had previously executed a deed, to-wit: on the 28th of September, 1860, conveying to his son-in-law, A. A. Moore, all his property, real and personal, with the fraudulent intent of hindering and delaying his creditors in the recovery of their debts; and thence infer that he caused the deed to be made to his son with the same fraudulent intent. And Mrs. Moore having admitted that she had been informed by her father that said deed of September, 1860, had been made with such intent, they contend that it is thence inferable that she was aware that he caused the deed for the lot in question, of the 15th of September, 1863, to be made to his son James, with the same fraudulent intent, although she denies having had any such knowledge.
But the latter transaction seems to be distinct from and to have had no connection with the former, and to have occurred about three years thereafter. And the deed to secure her loan was made nearly nine years thereafter, six years after the deed conveying the lot to James A. Beville was made and recorded. And the adverse parties had acquiesced in his possession and •ownership during that whole period without setting up any claim upon it to satisfy their debts, and for several years afterwards. But she testifies that she never had an intimation or knowledge of any kind that her father had advanced or paid the purchase money on this house and lot of James A. Beville. Again, she swears that •she never heard from any. one that her father paid the money for this house and lot and had the deed made to •James. She also says she does not know when the lot in question was sold to James. But if she had no know*511ledge that her father had paid the purchase money for the lot and had the deed made to James, how can she be charged with notice of fraud in the conveyance of the title to James? Ve will attempt no further analysis ■of her testimony, but will only remark that, when fairly •construed, we think there is no part of it inconsistent or in conflict with the citations we have made from it; and she manifests in no part of it a disposition to withhold anything she knows, but the whole is characterized with perfect frankness, when her answers are prejudicial to her interest as well as when they are in her'favor. And the court is of .opinion that the plaintiffs in the •original bills and the defendants in the injunction bill, have wholly failed to invalidate the deed of trust executed by Janies A. Beville and wife on the house and lot in question, to secure the loan of $1,000 from Mrs. Moore.
But the defendant, David Sexton, claims to be substituted to the rights and remedies of the Southwestern Bank, which, he alleges, has a judgment lien upon the said lot, which is prior to the lien of the plaintiff; It is the judgment of said bank against Benjamin Beville, who, he contends, had an equitable title to the lot in question. Commissioner English, in his report, says it seems to have been rendered and docketed in August, 1861—more than two years prior to the date of the deed from Robert C. Kent, commissioner, to James A. Beville, and about •eight years prior to the conveyance of the same lot, with the improvements he had put upon it, in trust, to secure the loan he had made from his sister, Mrs. Moore. "We have seen that if said lot was purchased by Benjamin Beville, and paid for out of his own means, and that he •caused the deed for it to be made to his son James, in fraud of his creditors, that Mrs. Moore had no knowledge of it when she lent her money to the said James, *on the faith of said lot as a security, and he conveyed *512it in trust to secure her; and consequently that her deed was valid and unaffected by the fraud between Benjamin and James A. Beville, if any such existed. If the account given by James A. Beville of that transaction is true, and his father, Benjamin Beville, was indebted to him, and an agreement was made between them that if he would agree to take a lot from Colonel Boyd in satisfaction of what he owed him, he would purchase it from Colonel Boyd for him, and pay Boyd the price of the lot out of a debt Boyd was owing him, and that in pursuance of that agreement the lot was purchased from Boyd and conveyed to him, the said James, the said Benjamin did not thereby acquire any equitable title or interest in said lot which could subject it to the lien of the said judgment of the Southwestern bank. But if this were not so—if the said Benjamin Beville had purchased the said lot and paid for it out'of his own means, and had it conveyed to his said son in fraud of his creditors, of which the proof in the record is by no means full and satisfactory, we have seen that Mrs. Moore, being a purchaser of the legal title thereof six years afterwards, for value, without notice of the fraud, if there was fraud, or of any equity in Benjamin Beville, is unaffected by the fraud, and her title is good against any equity of Benjamin Beville—is it good against the equity of the creditor of Benjamin Beville by virtue of his judgment lien ?
If the said Benjamin Beville ever held any interest in said lot there is nothing upon record to show it. There is a clear title conveyed by It. C. Kent, commissioner of the court, to James A. Beville for the lot in question. The said deed passes Col. Boyd’s title directly to him, and it is made to him in pursuance of a decree of the county court of Wythe county of the 15th of September, 1863, to which David Sexton was a pai’ty, and which recites that it was theretofore purchased by David F. *513Boyd under a prior decree in said cause ordering the sale of Thomas J. Boyd’s lands for the sum of seven hundred and fifty dollars, which has beeu paid to said Kent as receiver; and the deed proceeds, “ therefore, in consideration of the premises aforesaid, and of a transfer from said David F. Boyd to said James A. Beville, the said Robert C. Kent, commissioner as aforesaid, doth hereby grant, with special warranty, unto the said James A. Beville and his heirs and assigns, a lot or parcel of land,” therein described, which is the lot in question. And the deed goes on further to state as follows: “ The above-named lot, purchased and paid for as aforesaid by said David F. Boyd, has been sold by him, by Thomas J. Boyd, his attorney-in-fact, in pursuance of a power of attorney executed by said David F. Boyd, and filed with the papers of said cause, for a valuable consideration, to .the said James A. Beville, which consideration has been paid by said Beville to Thomas J. Boyd as attorney-in-fact of the said David F. Boyd,” the receipt whereof is acknowledged. “ Therefore the said Robert O. Kent, commissioner as aforesaid, is hereby authorized and directed to convey the said lot of land to the said James A. Beville in the stead of the said David F. Boyd.” This deed was put upon record and was notice to the world, and instead of giving notice that Benjamin Beville was an intermediate purchaser, absolutely excludes the idea, because it represents that the sale was made by the commissioner to David F. Boyd, and by him, by his attorney, directly to James A. Beville, and the payment of the purchase money by said James A. Beville to the said attorney of David F. Boyd, and that the commissioner was authorized by him to make the conveyance directly to the said James A. Beville, and the name of the said Benjamin Beville is nowhere alluded to in the said deed. If it were true that Benjamin Beville had a secret equita*514ble interest in tbe said lot, which is contradicted by the recitals of the deed, could the creditor’s judgment lien attach to that so as to over-reach the legal title of the purchaser from James A. Beville for value and without notice ? The docketing of the judgment is required to give notice to subsequent purchasers. But the docketing of a judgment against Benjamin Beville could give no notice oí a lien of the judgment upon the land of James A. Beville, the holder of 'the legal title, by virtue of a secret equitable title which Benjamin Beville once had to the land, of which the bona fide purchaser for value from James A. Beville of the legal title, had no notice.
The deed of trust from James A. Beville to K. C. Kent for the benefit of David Sexton, was made subsequent to the deed of trust given to secure the debt to Mrs. Moore, and any admissions made by him in that deed could not be binding on Mrs. Moore.
Upon the whole, the court is of opinion that there is error in the decrees of the circuit court so far as they invalidate said deed of 29th of April, 1869, or subject said lot to the lien of any judgment or judgments against Benjamin Beville as against the said security of Jane E. Moore, or give priority to the subsequent deed of trust executed by James A. Beville for the benefit of David Sexton, or which require the sale of said lot for any purpose inconsistent with priority of right in -the said Jane E. Moore, and to this extent said decrees must be reversed with costs, and in all other respects the court is of opinion to affirm them.
Burks, J., dissented.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482048/ | Burks, J.
The appellee’s bill was filed to enforce his judgment lien against the unaliened lands of the appellant, and also against other lands which had been aliened by him to his wife, children and brother-in-law, parties to the suit, and which lands are charged in the bill to *522have been conveyed with the fraudulent intent to hinder, delay and defeat his creditors, and especially the appellee, in the recovery of their debts.
Process to commence the suit was served upon all the defendants. The appellant appeared and filed a demurrer,-plea and answer to the bill. The other defendants made default. No depositions were taken on either side, and the cause, duly matured, was heard on the bill of' the appellee, the demurrer, plea and answer of the appellant, replications and joinder, exhibits, and the decrees. nisi at the rules; and the court taking the bill for confessed as to all of the defendants except the appellant, and holding that all of the lands in the bill mentioned were subject to the lien of the appellee’s judgment, ordered them to be sold, the lands unaliened to be first sold, and the other lands in the inverse order of their alienation, and as to these last, the sale was suspended until the further order of the court. Prom this decree the appellant alone applied for and obtained an appeal. His counsel assigns as error in the decree, that the lands of the alienees are held liable and ordered to be sold. There are several answers to this assignment of error. In the first place, if there be error in decreeing these lands to be sold, it is not to the prejudice of the appellant The sale could injure the alienees only, and they are not here complaining. Moreover if they did complain it would be of no avail to them. The bill charges the conveyances to be fraudulent. The allegations are positive and explicit, and were in the court below treated as true on the bill taken for confessed as' to them. They never appeared and made defence in that court, doubtless because they had no defence to make, and for the same reason they did not unite in the appeal. It is incredible that they should not have defended their title to lands alleged in the pleadings to be valuable, if such title had been valid as against the lien asserted by the *523complainant. If we may look to, the appellant’s answer to the bill as a defence made for them, we see very readily why they did not answer in person.
The appellant’s deed of 6th February, 1873, to his son and to his daughter and her husband, purports on its' face to be for a nominal consideration only, and he admits that it is voluntary.
He denies that the deed of settlement to the separate use of his wife was either voluntary or made with intent to defraud his creditors, and claims, in substance, that the consideration was the wife’s property, received by him from her father’s estate, to which she was equitably entitled, and which she agreed he should take and have as an equivalent for the settlement which was made. The bill charges that he received the wife’s legacy ($1,880) from her father’s executor in 1862, in Confederate money, and at the same time, and in like currency from the same executor, a legacy of $400 bequeathed directly to him, and that the aggregate of these sums ($2,280) makes the precise sum recited in the deed of settlement as “received by him in her right from the estate of her deceased father,” and these allegations are not denied in the answer. The deed of settlement bears date on the 24th day of February 1869, nearly seven years after the legacies were received. It is true the deed recites the agreement referred to and the receipt of the wife’s legacy thereunder, as the consideration for the settlement upon the wife, but the recitals, although evidence against the grantor, are not evidence against a creditor of the grantor. "Where such recitals are relied on to affect a creditor not a party to the deed, there must be distinct proof of the previous agreement, and none was furnished m this ease. William & Mary College v. Powell & others, 12 Gratt. 372, 384, 386.
The conveyance to Charles R. Hancock, the brother-in-law of the appellant, bears date the day before the *524date of the settlement on the appellant’s wife, and both deeds were admitted to record on the same day. This conveyance purports to be in consideration of $1,800 in hand paid by the grantee, and the appellant, in his answer, says, that the money was actually paid to him “ in the presence of witnesses.”
The bill which was filed in February, 1874, charges that the grantee has never taken possession of the land covered by this conveyance, and that the same has been used and enjoyed by the appellant in the same manner as before the said conveyance, and these allegations are not denied in the answer, nor were any of the witnesses, in whose presence the money is said to have been paid, examined, nor has the grantee ever asserted any claim to the land in this suit.
Looking to the whole record I am well satisfied that each of these conveyances, if not fraudulent in fact, is at least not upon consideration deemed valuable in law, and is therefore void as to the appellee’s judgment. The debt on which the judgment was based is evidenced by bond dated nearly seven years before the first of these conveyances was executed.
Another assignment of error is that the unaliened lands of the appellant were ordered to be sold when it was neither alleged nor proved that the complainant (the appellee) had exhausted his remedy at law to obtain satisfaction of his judgment out of the personal estate of the appellant.
Previous to the general revision of the laws in 1849, there were two legal remedies by which the judgment creditor was enabled to reach the lands of his debtor. One was through the execution of ca. sa. under which the debtor was taken and imprisoned, and might be discharged from imprisonment on surrendering his property, and the other was by elegit, whereby all the goods and chattels of the debtor (except his oxen and beasts of *525the plow), and a moiety of all his lands and tenements whereof he was seized at the date of the judgment or at any time afterwards, were delivered to the creditor by reasonable price and extent, to have and to hold the goods and chattels as his own, and the moiety of the land as his freehold until thereof the judgment was satisfied.
The creditor having these legal remedies, equity jiad no jurisdiction to decree a sale of the lands to satisfy the judgment unless it was made to appear that the remedy at law to enforce the judgment was inadequate. It was always regarded that the legal remedy by elegit was inadequate where it was shown that the rents and profits of the land would not satisfy the judgment within a reasonable time, and in such case a court of equity would take jurisdiction and decree a sale.
Such was the state of thé law in 1849, when the ca. sa. was abolished, and to supply its place other existing remedies were enlarged and some new ones were provided. The liens of judgments and decrees for money, which theretofore had been mere incidents of, the elegit and attached to a moiety only of the debtor’s land, were made express, direct, positive, absolute charges on all the real estate of the debtor, and the elegit was made to conform to the statutory lien. Borst v. Nalle & als., 28 Gratt. 428, 430. Code of 1878, ch. 182, §§ 6, 1.
The lien of the fi. fa. was enlai’ged so as to extend to all the personal estate of or to .which the judgment debtor is possessed or entitled, although not levied on or capable of being levied on under the law, as it then existed, and this additional lien was made continuous; that is, it was provided that it should “ cease whenever the right of the judgment creditor to levy the fi.eri facias under which the lien arises, or to levy a new execution on his judgment, ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other *526legal process,” and means were provided for enforcing this lien. Code of 1873, ch, 184.
And it was at the same time enacted as follows: “ The lien of a judgment may ahoays be enforced in a court of equity. If it appear to such court, that the rents and profits of the real estate subject to the lien will not satisfy the judgment in five years, the court may decree the said estate, or any part thereof, to be sold, and the proceeds applied to the discharge of the judgment.” Code of 1873, ch. 182, § 9.
Looking to the policy of the legislature at the revision, and to the broad and comprehensive language of the enactment, I do not doubt that a judgment creditor, if he so elect, -may resort to a court of equity to enforce the lien of his judgment against the real estate of his debtor, without first proceeding by execution at law to subject the personal estate, or assigning any reason for not doing so. The remedy in equity against the real estate (now the only remedy since the elegit was abolished, Acts 1871-2, ch. 373, p. 469), is not dependent upon the inadequacy of the legal remedy to satisfy the judgment out of the personal estate, or the insufficiency of such estate for that purpose, but it may “ always ” be resorted to, whether there be or not personal estate of the debtor sufficient to. satisfy the judgment. The remedy is given in general terms, and if it had been intended to limit its application to cases in which there was no personal estate of the debtor, or where such estate was not sufficient to satisfy the judgment, it would doubtless have been so provided in express terms. See the case of the Commonwealth by, &c., v. Ford & als., 29 Gratt. 683, in which it was held, that the right of the commonwealth to seize ■and sell under execution the real estate of defendants .against whom she had judgments did not deprive her of the right, if she elected to exercise it, to resort to a court *527of equity to subject such real estate to the lien of such judgments.
All the property, real and personal, of the debtor, except what is exempt under the law, is liable for the payment of his debts. The' personal property may ordinarily be reached under execution at law, while the real estate can be subjected by suit in equity only. If the creditor resort to the real estate first, and the debtor has personal property which he prefers should be applied to the payment of the judgment, he certainly can make the application himself more speedily and at less expense than an officer of the law can under an execution, and thus relieve his real estate to the extent of the value of the personal estate so applied. If he fail or refuse to make the application, it is his own fault. Creditors seldom, if ever, resort to equity to enforce their judgments against the lands of their debtors, unless and until they are compelled to do so, because the proceeding is both dilatory and expensive. When they do resort to it, however, the rights of the debtor are protected in the most ample manner. Ilis lands cannot be sold if the rents and profits thereof will satisfy the judgment in five years, and when sold, a day is usually given him for the payment, and the sale must he on a reasonable credit.
While the appellant assigns as error that the appellee does not allege in his bill that he has exhausted the appellant’s personal property by execution, he yet complains in his answer that he has been harrassed with executions sued out by the appellant since' the commencement ot this suit. However that may he, he does not claim that he has not received credit for anything realized on these executions, and he does not deny that the greater part of the judgment still remains unpaid. He avers in his answer that his property, real and personal, which remains unaliened and therefore confessedly liable for the appellee’s judgment, is “at least of the value of $5,000, and more *528than three times the value of the balance of the said judgment;” “that individually he is singularly free from debt;” “ that his individual debts do not amount to more than $300, all told,” and leaves us to infer that his debts as surety are not large, for the judgment of the appellee is the only debt he specifies as owing by him as surety. The presumption is, that the judgment of the appellee is the only judgment against him, as none other is mentioned in his answer and no judgment creditor has ever applied to become a party to this suit. If hia statements be true, he might and should have paid the appellee’s judgment long ago. He admits that it is owing, and that his property is bound by it, and claims that, he owns property of value more than three times the balance due on the judgment. It would have been no less wise than just, I think, if he had paid the appellee’s judgment without this fruitless attempt to evade it.
Another assignment of error is that the appellant is surety on the debt upon which the appellee’s judgment was recovered, and that the deed of trust to Joseph M. Terry was given by the principal debtor, among other things, to indemnify the appellant as such surety, and that the court should have compelled the appellee to resort to this deed of trust in exoneration of the appellant before subjecting his property.
The alleged principal debtor is not a party to the suit, is bankrupt, and the appellee has no judgment against him. If the assumption of'the appellant’s counsel that the appellant is surety were true, without conceding that the appellee in that case should be required to resort to this deed of trust, it is a sufficient answer to this assignment of error to say, that it does not appear by the record that the appellant is surety. The bill contains no such allegation or admission. It is averred in the appellant’s answer to be so, but the averment is affirmative matter, and is not proved. The deed of trust indemni*529fies the appellant in general terms as surety upon any and all papers upon which the appellant is bound as such .surety. But the debt on which the appellee’s judgment was recovered is not specified in the deed as one of the ■debts on which the appellant is surety, and if 'it were so specified and described the deed would be no evidence of the fact against the appellee, as he is not a party to the deed.
There was no necessity of making Joseph M. Terry a party to the suit. He is the trustee in the deed of trust referred to, but as we have seen the appellee was not bound to resort to that deed in this suit. The appellant avers in his plea that Joseph M. Terry is the joint owner with the appellee of the judgment sought to be enforced. If the fací averred, taken as true, would be a sufficient reason for requiring him to be made a party, still there was no proof of such joint ownership. After the suit was brought, and a short time before the decree appealed from was rendered, as appears from a deed in the record, Hock-man and wife conveyed a portion of the land which had been conveyed to them by the appellant to one Lewis Huff, as trustee, to secure an alleged debt to W. 13. F. Duvall, and it is assigned as error that Huff and Duvall were not made parties by amended bill. If these persons had any interest in the subject of the suit they acquired it pendente lite, and it was not necessary, therefore, that they should be brought before the court to enable it to dispose of the subject. At all events, if they claimed any such interest as made their presence as parties necessary, they might and should have brought the matter to the notice of the court by petition, and had their claims passed upon.
The last assignment of error to be noticed, is that the unaliened lands of the appellant were ordered to be sold without its being made to appear that the rents and *530profits thereof would not satisfy the appellee’s judgment in five years.
The bill contains no allegation as to the rents and profits, and the answer of the appellant is silent on the subject. There is no proof; no enquiry was asked or ordered. The fact of the insufficiency of the rents and profits to satisfy the judgment within the prescribed period should be made to appear before any sale is made, and if the appellant desires it, he may have an enquiry to determine that fact. But this is no cause for reversing the decree. The decree being interlocutory may be amended in that respect, and as amended affirmed. Ewart v. Saunders, 25 Gratt. 203; Horton & others v. Bond, 28 Gratt. 815.
I am of opinion, on the whole case, there is no error in the decree complaiued of for which it should be reversed, but that the cleeree should be amended as above indicated, and as amended be affirmed.
■The other judges concurred in the opinion of Burks, J.
Decree amended and arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482049/ | Staples, J.,
delivered the opinion of the court.
The appellee, White, purchased the land in controversy under a decree of the county court of Russell. He complied with the terms of sale by making the cash payment and executing his bonds for the deferred instal*539ments, and there is every reason to believe ,he would have paid them'off at maturity but for the obstacles interposed by third persons. The sale was reported to the court by the commissioner, and was regularly confirmed without objection. The question now arises, whether there was any such irregularity in the sale or in the proceedings of the commissioner, or in the conduct of the parties, as to warrant this court in setting aside the sale and vacating the title of the purchaser.' In the first place, it is insisted that the land was sold at a very inadequate price; and that .the commissioner, in violation of the terms of the decree, made sale of the whole tract, when the sale of part only was necessary to satisfy the judgment creditor.
There is not in this record, nor in the record of the proceedings of the district court of the United States, any evidence tending to sustain either of. these allegations. The upset bid made in the latter court by Duff', the debtor, is not evidence of the value of the land, because, as was said by counsel, Duff being entitled to the surplus proceeds after the payment of all his debts, and these debts being greatly less than two thousand dollars, the amount of the appellee’s purchase, he might well afford to bid twice the value of the land. The district court of the United States in setting aside the sale made to the appellee, did not base its decree upon either of the grounds now suggested. The evidence shows that the land was assessed in 1872, the year in which the sale was made, at nine hundred and seventy dollars.; Duff', himself, in his deed of homestead filed in 1873, estimates it at eleven hundred and sixty’dollars.
In the face of these facts, without a scintilla of proof to the contrary, it is impossible, with any show of reason, to say that two thousand dollars was an inadequate price. The presumption is precisely the reverse. The decree directed the commissioner to sell the land in the bill and *540proceedings mentioned, or so much thereof as was necessary, to discharge the plaintiff’s debt. € The commissioner sold the whole ninety-seven acres. It may be that’ a sale of part would have been sufficient, and could have been made without detriment to any one. This depended upon the nature, quality and condition of the property. It maybe that the land was not susceptible of partition, and that its chief value consisted of buildings and other appurtenances which could not be conveniently sold in parcels. Upon these points the record furnishes no information, and we are now dealing with the rights of a bona fide purchaser, after a confirmation of the sale without objection, and after the lapse of more than three years before-the bill of review was filed. The district court of the United States, when it undertook to set aside the sale made to the appellee under the decree of the county court of Russell, at the instance of Duff’ himself, certainly with his consent, entered a decree for the sale of the entire tract. Surely the county court could do substantially the ¡same thing, by confirming a sale at an adequate price, made in the interests of all the creditors.
"When the decree of the district court just alluded tow7as reversed by the circuit court of the United States at Lynchburg, upon the ground that the whole matter properly belonged to the state court, which alone had jurisdiction, the circuit court made the following provision in its decree of reversal: “The district court is. advised to direct the assignee of said Duff to take such proper proceedings in the circuit court of Russell county as may be necessary to secure the .surplus of the proceeds of sale of said lands for the benefit of the bankrupt’s estate, if any there be.” It is very true the same decree contains a reservation of the right to Duff', the bankrupt, also to institute in the state court any proceedings he may deem necessary to the protection of his interests. He, however, has instituted no proceedings *541of any kind; he is not a party in this record except as a defendant in the original suit. The appellant, the assignee in bankruptcy, in filing this bill to set aside the sale, seems therefore to have gone beyond the instructions given him in the bankrupt court. His duty was not to ask for a vacation of the sale, but to secure the surplus of the proceeds for the benefit of the bankrupt’s estate. It is worthy of observation that in his bill of review he neither avers that the land was sold for an inadequate price, nor that the commissioner had violated his duty in selling the whole tract instead of a part. If the purpose was to impeach the sale on these grounds, the matter ought to have been put in issue by proper averments in the bill, and thus afford the appellee an opportunity of meeting the points by his answer and his proofs. Under all these circumstances the proposition cannot for a moment be entertained to set aside the sale to the appellee upon the ground of inadequacy of price, of irregularity in the sale, or in the conduct of the commissioner who made it.
The ground mainly- relied on in the bill of review for vacating the sale, is that upon Duff’s becoming a bankrupt the suit of Cecil, the creditor, abated, and no further proceedings could be lawfully had therein affecting his rights or the rights of his creditors, until the suit was properly revived against the assignee in bankruptcy. How it will be seen that the bill does not charge that 'White, the purchaser, either at the time of the sale or of its confirmation, had any notice of the bankruptcy. He is not charged with fraud or improper conduct in any respect, and there is no reason for attributing to him anything of the kind. The decree for the sale was rendered before the adjudication in bankruptcy, and the sale was made before the assignee was appointed. Ho suggestion of the bankruptcy was made on the record, nor was the matter brought in any manner to the atten*542tion of the court, although there was ample time to do so before the sale was confirmed. If the assignee failed in his duty in this particular the purchaser cannot be affected by his neglect or misconduct in the absence of all proof showing that injustice was done. The mere fact of the bankruptcy of the debtor could not of itself prevent the sale or its confirmation. It might render proper the introduction of a new party on the record, when properly suggested to the court, but it could not prevent or in any manner interfere with the execution of a valid decree. Upon this point the case of Eyster v. Graff et als., decided by the supreme court of the United States (1 Otto, U. S. R. 521) is a direct authority. In that case, Mr. Justice Miller, delivering the opinion of the court, said: “At the time the suit was commenced the mortgagor, McClure, was vested with the title, and was the proper and necessary defendant. Eut for the bankruptcy of McClure there can be no doubt that the sale under the foreclosure decree and the deed of the master would have vested the title in the purchased', and that this would have related back to the date of the -mortgage. Nor can there be any question that the suit having been commenced against McClure when the title or equity of redemption was in him, any person who bought of him or took his title or any interest he had, pending the suit, would have been bound by the proceedings and their rights foreclosed by the decree and sale. These are elementary principles. Is there anything in the bankrupt law, or in the nature of proceedings in bankruptcy, which takes the interest in the mortgaged property acquired by the assignee out of this rule ? ”
The learned judge then proceeds to show there is not, and that no reason existed why the same principle should not apply to the transfer made by a bankruptcy proceeding. He lays down the proposition that where an assignee in bankruptcy is appointed during the pendency of pro*543ceedings in a state court for the sale of mortgaged property, he stands as any other purchaser would stand on whom the title had fallen alter the commencement of the suit, a purchaser pendente Ute, and if there be any reason for interposing, the assignee should have himself substituted for the bankrupt, or be made a defendant on petition. But if he fail to do so, it does not invalidate the proceedings. And further, that a state court cannot take judicial notice of the proceedings in bankruptcy, and it is its duty to proceed as between the parties before it, until by some proper pleadings in the case it is informed of the changed relations of the parties to the subject matter. These citations are given because they are directly in point, and because they are conclusive of the question, if the decisions of the supreme court of the United States are authority in such cases.
In the present case, if the assignee did not choose to object to the sale, there was nothing to prevent the debtor himself from doing so. He was interested in the question of homestead, and he was interested in the surplus remaining after the claims of creditors .were satisfied. He had the right, notwithstanding his bankruptcy, to go forward and object to the confirmation of the sale, or to suggest his bankruptcy, and require his assignee to be brought before the court and to take care of his interests. Instead of this, he filed his petition in the United States court some eight or ten months after the sale was confirmed, with a view to oust the jurisdiction of the state court, to set aside the sale and to have his entire estate set apart as a homestead. This petition was dismissed, and he was again remitted to his remedies in the state courts. But instead of pursuing them, after the lapse of nearly two years, he again applies to the United States courts to interpose in his behalf. He at last succeeds in July, 1875, in obtaining a decree vacating the sale *544made to the appellee, not upon any of the grounds now suggested, but because, in the opinion of the district judge, it did not appear the rents and profits of the land would not pay off the judgment lien within five years, and because there was no return of nulla bona upon the execution before the land was decreed to be sold. This decree practically assumed for the district court of the United States appellate jurisdiction to revise the proceedings and decrees of a state court. As already stated, it was afterwards reversed hy the circuit court of the United States. And now, after all this delay, contention and expense, the state courts are asked to set aside a sale made in 1872, and regularly confirmed in February, 1873, without a particle of evidence impeaching its fairness, or the good faith of the purchaser.
It must not be forgotten that while a purchaser at a judicial sale acquires by his bid and its acceptance no independent right to have his purchase completed, but is merely a preferred proposer until confirmation, after confh’mation by the court, his condition is very materially changed. His contract is then executed, and he is regarded as a complete purchaser, with all the rights incident to that position. Against him the courts are never disposed to interfere, unless for very grave and substantial errors in the decrees and proceedings upon which his title, is founded. See Zirkle v. Mc Cue, 26 Gratt. 517, and cases there cited.
With respect to the objection that no decree for a sale of the land ought to have been entered without an enquiry to ascertain whether the rents and profits would pay off the debt within five years, it is sufficient to say that the bill contains a direct averment that the rents and profits are not sufficient for that purpose.
Ho answer being filed by the defendant, the bill was taken for confessed, and a decree for the sale entered *545before the adjudication in bankruptcy. And even now the record contains no evidence upon the subject, nor is the matter put in issue by the pleadings. Even though it appeared that the county court of Russell plainly erred upon this point, this court would not for that cause now set aside a sale fairly made for an adequate price, when it is manifest a sale is rendered necessary by the bankruptcy of the debtor, and when this court, if it should set aside the sale already made, would be compelled immediately to order a resale in the interest of all parties concerned.
One other objection remains' to be considered, which might more properly have been noticed in the beginning, and that is, that the county court of Russell was not authorized to decree a sale of the land until it appeared that the debtor had no personal estate upon which an execution could be levied. It appears that an execution was issued and levied upon certain effects of the debtor which were claimed by him under a homestead exemption. The creditor was under no obligation to contest this claim. Tie might, if he pleased, acquiesce in it and apply at once to a court of equity to enforce the lien of his judgment. It does not lie in the mouth of the debtor now to assert that his claim was unfounded; that the'creditor ought to have disregarded it and insisted upon a sale of the property under the execution. This is a sufficient answer to the objection that the land was not liable. Another is found in the circumstances already mentioned, that the sale was made under a fro confesso decree, confirmed without exception, and' no objection ever made until the bill of review was filed in this case.
But even though no execution had ever issued, the court had power to decree a sale under the statute. Upon this point it is only necessary to refer to the opinion of *546this court delivered by Judge Burks, in the case of Price v. Thrash, supra, p. 521. 1
Upon the whole, there is no error in the decree of the circuit court, and the same must be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482051/ | Staples, J.,
delivered the opinion of the court. .
The court is of opinion that the decree of the circuit court rendered at the August term, 1875, is founded upon a misconception of the meaning and effect of the answer of Isaiah A. Welch, administrator de bonis non with the will annexed of James R. Kent’s estate. That answer is not an unqualified admission of assets in the hands of the administrator sufficient to discharge all the liabilities of the estate, but an admission that certain assets then in litigation when collected would be sufficient for that purpose. This is rendered very clear by a statement at the foot of the answer, made by complainant’s counsel, to the effect that the assets referred to in it are the same as mentioned in the commissioner’s report of 31st March, 1875, and filed in the cause. A reference to that report will show that the administrator stated to the commissioner there were no assets in his hands, but that there was due .the estate about $23,000, $18,000 of which was then in litigation, $4,000 of bonds *559upon sales of lands in West Virginia, and the remaining §8,000 a debt upon the .Blacksburg Savings Bank. The administrator stated he did not know when any of these sums would be realized, and the commissioner -was unable to form any reliable opinion on the subject. This statement, thus carefully guarded, the circuit court treated as an unqualified admission of personal assets sufficient to pay all the debts of the testator, and upon it rendered a decree for the whole amount of complainant’s debt, being about §3,000, against the administrator, to be paid out of the assets in his hands to be administered; and in default of such payment leave was given to sue out execution. It does not materially concern us to enquire whether this is a decree de bonis propriis or de bonis testatoris. Conceding that it is of the latter description, the complainants may sue out execution, and upon a return of nulla bona, the complainants may institute an action for a devastavit upon the administration bond against the administrator and his sureties, and recover the full amount of the decree. Bush v. Beale, 1 Gratt. 229. And thus it is, the administrator and his sureties are to he held liable for the debts of the testator upon a supposed admission of assets, when no such admission was made, and when it plainly appears that the assets have not been collected, without default on the part of the administrator, and, indeed, never may be collected.
The decree of the circuit court is therefore clearly erroneous and must be reversed and annulled. And this court, upon such reversal, might now render such decree as is warranted by the answer, or remand the cause for further proceedings, were it not for a greater difficulty lying at the very foundation of the suit itself. A brief statement will show what this is.
It appears that some time prior to 1870, a general creditors’ bill was brought in the county court of Montgomery, and afterwards removed to the circuit court, *560against- the personal representative, legatees and devisees of James E. Kent’s estate, the object of which was to settle the administration accounts, ascertain the indebtedness of the estate, and to obtain a sale of real estate in the hands of. devisees to meet an alleged deficiency of personal assets. In the progress of this suit accounts have been taken from time to time, showing' the condition of the estate, the amount of assets, collected and uncollected, and the claims of creditors. This suit was pending in the year 1874, and there is every reason to believe it is still pending.
The present bill was filed in October, 1878, in the circuit court of Pulaski, by complainant, a judgment creditor of James E. Kent’s estate, against the administrator with thé will annexed and legatees and devisees of said estate. Complainant alleges that his counsel ■made an examination of the papers in the Montgomery suit, and advised complainant that the condition of that cause and the complications connected with it, precluded the .hope of his realizing anything but trouble and expense for years to come by becoming a party to it. He thereupon determined to proceed with his own suit, and if required to do so, to pay the costs of the same himself sooner than jeopardize his claim or indefinitely postpone its collection by making himself a party to a cause which, after years spent in its prosecution, has yielded the plaintiff nothing but disappointment. At the March term, 1874, the defendants demurred to the bill, but the' court overruled the demurrer and directed one of its' commissioners to settle the administrator’s accounts, and to report the value, location and quantity of the lands of which the testator died possessed. The commissioner made a partial settlement and report, based entirely upon papers and vouchers in the hands of the commissioner acting under the decrees of the circuit court of Montgomery, to which reference has already been made. *561This report was returned to the August term, 1874, at which time one of the devisees filed his answer. He insisted that the personal assets were sufficient to pay all the debts of the estate, but had not been collected by the administrator; and he explained the difficulties in the wray of the collection. He insisted that the circuit court of Montgomery had taken complete jurisdiction of the assets and the administration of the estate, and he denied there were any such difficulties or complications in that suit as precluded complainant from obtaining complete relief there.
Hpon the coming in of this answer the court directed the commissioner to ascertain and report the amount of assets then in the hands of the administrator or to be collected; of what they consisted; whether they could be realized in a reasonable time, and the probable time required for their collection. Pursuant to this decree the commissioner made the report alluded to in the outset of this opinion, and he also reported the amount necessary to be paid by each devisee to meet the claims of creditors in this suit. After this report was filed the administrator, having returned to the state, filed his answer, and upon that answer, complainant abandoning apparently his remedy against the devisees, took the decree against the administrator, which has been already considered.
. This brief statement will show the justice and wisdom of the rale which declares upon a decree for an account that the claims of all the creditors must be brought in under that decree; that such a decree operates as a suspension of all other suits, and is treated as a decree in favor of all the creditors. Stephenson v. Taverners, 9 Gratt. 398.
The complainant does not explain the character of the complications which interfered with his remedies in the Montgomery suit. In the nature of things there could *562be none which would not equally affect any other suit involving a settlement of the whole estate. It is very probable the delay in the Montgomery suit was due in part to the want of proper diligence, and in part to the difficulties attending the collection of debts due the estate. If the complainant was dissatisfied with this delay he might have applied for leave to prosecute .the suit in his own name, and if necessary to file a supplemental bill. Hallett v. Hallett, 2 Paige’s R. 21, and cases there cited. If the circuit court of Montgomery erred in not decreeing a sale of the real estate to satisfy the claims of creditors, the remedy was in an appeal to a higher court. If the complainant may file an independent bill every other creditor may do the same in any county where any of the devisees may reside. Learned counsel seem to suppose it is a mere question of costs, which his client is willing to pay rather than be involved in the complications of the Montgomery suit. This is a misapprehension. The expense of several suits by different creditors is of course a matter for consideration, but it is not the chief consideration. When a decree for an account upon a creditor’s bill is rendered it operates as a judgment in behalf of all the creditors. The court thereby takes control of the assets, and administers them under its own immediate supervision. The entire administration of the estate is drawn into that court. The same result follows when the heir or devisee is made a party with a view to the sale of the real estate. The court decrees the sale, takes control of the fund, and administers it in the interest of all concerned.
The practical effect of a bill by a separate creditor in another court, after a decree for 'an account in the first, is to oust the jurisdiction of the latter court of its administration of the assets. But this is not all; the proceeding is open to all the objections of a useless multiplicity of suits, and to all the difficulties consequent *563upon different decrees and different reports which, if conducted by different counsel and different commissioners, may vary in their principles and their results. Kettle & wife v. Craig, 1 Paige’s R. 416, in note.
In the present case the most that can be done would be to give complainant a decree for his debt to be paid out of the assets as they are collected. But it is obvious in this way he would obtain an advantage over the creditors in the Montgomery suit, if the personal assets prove insufficient to satisfy all the claims of creditors. If it be said he may at least obtain a pro rata share, the question arises, how is the Pulaski court to determine what is a pro rata share, without having all the creditoi’S before it, and thus in effect assuming the very jurisdiction already attached to the Montgomery court ?
The circuit court of Montgomery, in ignorance of the Pulaski suit, and of the claims asserted there, may make decrees and orders of distribution wholly inconsistent with the proceedings and orders in the Pulaski suit.
It is very manifest, however, that the complainant was not looking so much to the personal assets, which he regarded as unavailing, as to the real estate in the hands of the devisees. But surely the Montgomery court, which had before it all the creditors except complainant, was the proper tribunal to determine whether the condition of the estate and the interests of creditors required a sale. If. both courts decreed sales, it is easy to see the conflict and confusion resulting from different commissioners and different sales, as well as the inconvenience and expense to the devisees.
It is, however, unnecessary to dwell longer upon the evils necessarily flowing from two administrations of the same estate in different courts, at the suit of different creditors. That the Pulaski court erred in decreeing an account in this case does not admit of serious question. That court ought to have dismissed the bill upon the *564demurrer, because it showed that complainant was fully-apprised of the proceedings in the Montgomery circuit court, and he gave no sufficient excuse for not applying to that court for relief. No possible good could be effected in retaining complainant’s bill for any purpose, as his only remedy was in the suit in the Montgomery court.
For these reasons the decree must be reversed, and the bill dismissed.
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 argument of counsel, is of the 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 said decree of the said circuit court be reversed and annulled, and that the appellant recover of the appellee, David C. Kent, administrator of Gordon Oloyd, deceased, his costs by him in this hehalf expended, to be paid by the said administrator of Gordon Cloyd, deceased, out of the goods and chattels of his intestate in his hands to be administered. And the court now proceeding to render such decree in the premises as the said circuit court ought to have rendered, it is further ordered and decreed that the bill of the said David O. Kent, administrator as aforesaid, be dismissed and that the defendants therein recover against the plaintiff therein, their costs by them about their defence of said bill expended, to be paid out of the goods and chattels of his intestate in his hands to be administered ; which is ordered to be certified to the said circuit court of Pulaski county.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482052/ | Burks, J.
The heirs of Lucy Ann Leber, deceased, filed their bill in the chancery court of the city of Richmond against William M. Justis and others to set aside a deed made on the 7th day of May, 1847, by the said Lucy Ann Leber to John Watkins, and to have surrendered to them two lots of land near the city of Richmond, conveyed by said deed and claimed by the said Justis and others through said Watkins by successive conveyances.
The chancellor, at the hearing of the cause, rendered a decree declaring the deed to be absolutely null and void, and the lots to be the absolute property of the heirs, and refused to order an account requested by the de*567fendants. From this decree an appeal was allowed Justis by one of the judges of this court.
The record shows the following case: Lucy Ann Lebér, the widow of Jesse Blackburn, deceased, being the absolute owner of some personal estate, and entitled to an' estate for her life in a tract of land, some personal property and money, in contemplation of marriage with Christian Leber, by deed dated 14th February, 1883, conveyed and assigned her property and estate aforesaid to one Gustavus Adolphus Muir, to hold as trustee to her separate use. The trustee and intended husband united with her in the deed. After reciting the agreement between the parties and conveying the property to the trustee, the deed declares the following trusts: “ To have and to hold the said property hereby conveyed unto the said Gustavus Adolphus Muir, his executors, administrators and assigns, upon such trusts, nevertheless, and for such intents and purposes, and under such provisions and agreements as are herein mentioned; that is to say, in trust .for the said Lucy Ann Blackburn and her assigns, until the solemnization of the said intended marriage, then upon trust that the said Gustavus Adolpus Muir, his executors, administrators and assigns, shall and do permit the said Lucy Ann to have, receive, take and enjoy all the interest and profits of the said property assigned to and for her own use and benefit, uncontrollable as if she had never been married, and to transfer in such proportion and form as she, the said Lucy Ann Blackburn, shall, from time to time, direct, notwithstanding her coverture, by any writings under her hand and seal, attested by three or more credible witnesses, or by her will and testament, in writing, to be by her signed, sealed, published and declared in the presence of the like number of witnesses, direct, limit or appoint, to the intent that the same may not be at the disposal of or subject in *568any manner to the control, debts, forfeitures, or engagements of the said Christian Leber, her intended husband.”
The contemplated marriage was solemnized, and on the 22d day of October, 1838, Mrs. Leber, by writing under her hand and seal, attested by three witnesses, directed Henry L. Carter (who had been substituted as trustee in the place of Muir) to purchase for her two lots of land near the city of Richmond, owned by one Bern-hard Briel, provided the purchase could be made for $1,750, and further directed that in case the purchase could be effected, the purchase money should be paid out of the property held by said Carter as her trustee, or out of the proceeds of the sale thereof. It will be observed that this writing was in strict pursuance of the power reserved by the deed of settlement. Carter, the trustee, accordingly made the purchase óf the lots at the price limited by the written authority of Mrs. Leber, and Briel and wife conveyed the same to him by deed dated the 22d day of October, 1838. This deed refers to and recites in part the deed of settlement, and alscf refers to and annexes the written authority of Mrs. Leber for making the purchase, and contains the following declaration of trusts:
“Hpon the trusts, however, and for the purposes declared and expressed in the said indenture or marriage settlement first herein recited, executed to the said Gustavus Adolphus Muir, bearing date the' 14th day of February, 1833, and in whose place and stead the said Henry L. Carter has been appointed trustee as aforesaid, so that the said Lucy Ann Leber, late Lucy Ann Blackburn, may have, receive, take and enjoy all the interest and profits of the said property hereby conveyed and transferred in like manner as is provided in relation to the property assigned by the said indenture of the 14th day of February, 1833, and so that she may have the same *569rights, power and authority in ail respects over the property hereby conveyed, assigned and transferred, that she has or had over what was assigned by the said indenture.”
Carter, the trustee, afterwards died, and by decree of court, on a bill filed for the purpose, John Watkins and Charles II. Leber were appointed trustees, and invested with all the power and authority which were vested by the marriage settlement in the original trustee; and by the terms of the decree they were expressly “ directed and required to take and hold all the property, real and personal, and all the money therein specified, and all other property, money or effects that the said Lucy Ann Leber may have acquired under and by virtue of the said marriage settlement, and to hold the same subject to all the uses, trusts and conditions specified and declared in the said deed of marriage settlement.”
The trustees thus appointed accepted the trust, and on the 7th day of May, 1817, Mrs. Leber, still a married woman, by deed of that date conveyed, or attempted to convey, the two lots aforesaid to Watkins, one of her trustees. The deed was not executed by her husband, nor by either of the trustees. She alone signed it, and it was acknowledged by her before the clerk in his office for recordation, without privy examination and certificate thereof, and there was no writing directing a conveyance, signed, sealed and attested, as required by the deed of settlement.
All three of the deeds mentioned were recorded, and the deed to Watkins refers to the other two deeds as of record. It recites correctly the dates of the other two deeds and the names of the parties thereto, and describes the property embraced in the marriage settlement as “ conveyed to G. A. Muir, in trust, to hold the same to the separate use and benefit of the said Lucy Ann-, to be *570used and enjoyed by her as fully as though she were a feme sole, and to be transferred and conveyed to such person or persons as she should, by any writing under hand and seal, attested by three or more credible witnesses, direct, notwithstanding her coverture, and free from any control, contracts or liabilities of her husband, the said Christian Leber.” It purports to be a deed of bargain and sale for the consideration of $1,500, “which sum,” it is recited, “has been paid by the said John Watkins to the said Lucy Ann Leber and invested in other property.”
The deed also contains a covenant of warranty in these words: “And the said Lucy Ann Leber, for herself and her heirs, the title to the said two lots or pieces of land, with the buildings and appurtenances thereunto, unto him, the said John Watkins, his heirs and assigns, do by-presents warrant, and will forever defend against the claims and demands of all persons whomsoever.”
Watkins took possession of the land under the deed and held it until his death, which occurred in the latter pat't of the year 1861, and it then passed in parcels by successive conveyances to different alienees, the appellant being one of them.
Mrs. Leber died intestate on the 27th day of October, 1862. Her husband, Christian Leber, survived her and died on the 27th day of March, 1864. Charles H. Leber, the co-trustee of Watkins, died in June, 1870. The heirs filed their bill in March, 1875.
The first question to be determined, is whether the deed of the 7th May, 1847, from Mrs. Leber to W at-kins, under whom the appellant claims, passed a good title to the lots therein mentioned. At the date of this deed, Mrs. Leber was a married woman, and the lots were clearly a portion of her separate estate. Whether *571the deed, therefore, passed a good title, depends on the power she had to dispose of her separate estate.
In England, according to recent decisions, the power of a married woman in equity over her separate estate, both real and personal, unless restricted by the instrument creating it, is for the most part, that of absolute owner. There, in the absence of such restrictions, she may charge it, encumber it, alien and devise it by her sole act as effectually as if she were unmarried. In Virginia, her power is not quite so large. Eor here, while she may dispose of 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 restrained, as she may be, by the instrument creating the estate, yet as to the corpus or body of her separate real estate, according to the course of decision of this court, she can dispose of that only in the mode, if any, prescribed by the instrument creating the estate, or unless prohibited expressly or impliedly by such instrument, in the mode prescribed by law for the alienation of real estate by married women, or by last will and testament, it would seem as provided for the first time by the Code of 1849. See Code of 1873, ch. 118, § 3; 3 Lomax Dig. (ed. 1855), 11, note 1.
These are well settle principles; but whether, where the instrument creating the estate prescribes a mode of disposing of it, the prescribing of that mode, without negative words, is to be construed as intended to exclude any other, on the principle of the maxim expressio unius est exclusio alterius, or the maxim of like import expressum facit cessare taciturn, is still “ a much vexed and unsettled question ” in this state. Mc Chesney & al. v. Brown's heirs, 25 Gratt. 393, 401; Penn & als. v. Whitehead als., 17 Gratt. 503, 514; Nixon v. Rose, trustee, 12 Gratt. 425, 431, 432; Woodson, trustee v. Perkins, 5 Gratt. 345; Lee v. Bank U. States, 9 Leigh, 200; Wil*572liamson & Beckham, 8 Leigh, 20; Vizonneau v. Pegram, 2 Leigh, 183; West v. West’s ex’or, 3 Rand. 373; McDowell v. Burging; Hawley v. Flint; Bank of Greensboro’ v. Chambers & others; (the three cases last named lately decided by this court at Richmond, and not yet reported); Hulme v. Tenant, 1 Lead. Cas. Eq. Part 2 (ed. 1876,) 679, et seq., and English and American Notes.
How, if at all, equitable separate estates, of which we have been speaking, where they have been created by settlements since the married women’s act recently passed by the legislature, will he affected by such act, need not now he considered, as the act is not retrospective. Acts 1876-77, ch. 329, pp. 333, 334; Acts 1877-78, ch. 265, pp. 247, 248. Hnder the deed of marriage settlement, Mrs. LebeT reserved to herself the power of a feme sole over “ all the interest and profits ” of the property conveyed by that deed. This is plain from the language employed; the trust being to permit her “to have, receive, take and enjoy all the interest and profits of the said property hereby assigned to and for her own use and benefit, uncontrollable as if she had never been married.” These terms import absolute dominion and unlimited power of alienation, but they are confined to the “interest and profits.” They do not extend to the disposition of the “property” from which the “interest and profits” were to be derived. On the contrary and in immediate connection, she provides for the disposition of the “property,” the principal subject, and prescribes for herself a particular mode of disposal. It might be argued with great force, upon the principle expressum facit cessare taciturn, that the express reservation of “uncontrollable” power over the interest and profits, and in the same connection a special designation of. a particular mode of disposal of the principal subject should be construed as intended to exclude any other mode of disposing of such principal subject. However that may be, the writing of *573the 22d October, 1838, which she gave the trustee Carter, was a strict execution of the power reserved over the trust property. Whether the purchase money paid Briel for the two lots was “ paid out of the property or the proceeds arising from the sale thereof,” as authorized by the writing, or out of “ the interest and profits ” of the property, does not appear by the record, nor is it material. From whichever source derived, it was invested in real estate, subject substantially to the same powers and trusts provided by the deed of marriage settlement, as a comparison of the last-named deed with the deed from Briel and wife will show; that is, with absolute power in the wife to dispose of the rents and profits as if she were a feme sole, and with power to dispose of the corpus or principal subject, either in the mode prescribed by the deed, or if the prescribing of that mode does not exclude any other,.then in the mode provided by law for the alienation of real estate by married women, to-wit: by deed in which her husband should unite, with her acknowledgment and pi’ivy examination taken and certified, as the statute requires, and the deed duly admitted to record. As the latter mode was not adopted, it becomes unnecessary to decide what would have been the effect if it had been «adopted, and to determine the “ vexed question ” before referred to. I, therefore, express no opinion upon it.
I do not perceive on what ground it can be maintained that the execution of the deed to Watkins was such a disposition of the property as is authorized by the deed of settlement. The writing contemplated is a writing under the hand and seal of the cestui que trust, attested by at 'least three credible witnesses, directing the trustee to convey or transfer the property as may be appointed, The deed executed has none of the requisites, except that it is a writing under the hand and seal of the cestui que trust. It does not in terms direct a con*574veyance or transfer-of the property, is not addressed to the trustees with that view, and is not attested. It is however, that it is an attempted execution of a power and such a defective execution as will be aided ^ a ccmrt equity. It is certainly true that in some cases in favor of certain classes, equity will give such aid. It will do so in behalf of bona fide purchasers for value and some other parties, where the instrument by which the execution is attempted is informal or inappropriate, or being formal or appropriate, the execution is informal, as where a certain number of witnesses is required and a less number is present, or where the instrument is required to be signed and sealed, and it is signed only, and so on. Tollet v. Tollet, 1 Lead. Cas. Eq. (ed. 1876), top page 365, 372.
Aid is extended where the defect is in matter of form, never where it is in matter of substance. In the case before us the instrument is not only inappropriate, and the execution of it not according to the form prescribed, in that it is not attested by the requisite number of witnesses, but it is not attested at all. This is more than a mere informality. Attestation in some form, at least, or to some extent, would seem to be requisite. I regard it as essential to the due execution of the power in bases like the one before us. In marriage settlements the object generally is two-fold—to protect the wife against the control and influence of her husband, and also against her own weakness and incapacity, and I am not disposed, by construction and the active assistance of the court, to break down the safe-guards which she has deliberately thrown around herself and her property. By the instrument creating her separate estate, Mrs. Leber chose to restrain, limit and regulate her power of disposing of that estate. Equity, deviating from the rule of the common law, accorded her this right. The restraint imposed was a modification of her estate. She thought pro*575per to make the presence of witnesses—“ at least three credible witnesses”—necessary to attest the disposition of her property, and for a court of equity to give effect to an alleged disposition, and that to her own trustee, made in the' absence of any witness, would seem more like creating a power than aiding in the execution of one.
It may he that "Watkins, although trustee, yet being merely the passive depository of the legal estate, without any beneficial interest in it or power over it except to convey and transfer it to the appointee of his cestui que trust, acting in good faith, might not have been incapacitated, by reason of his fiduciary relation, from making a valid purchase of the equitable estate, if, in making the purchase, the provisions of the deed of settlement had been observed; but, as we have seen, they were not observed in any essential particular, and I am therefore of opinion that he acquired no estate, right, title, or interest, legal or equitable, under the pretended deed of the 7th May, 1847.
2. Can the appellant claim the protection accorded to a bona fide purchaser for valuable consideration ? Clearly not. "W'atldns, under whom he claims, held the legal title to the property jointly with his co-trustee, Charles H. Leber, and the latter never united in any conveyance of that title. But if the devise of "Watkins passed the title, those claiming under him were affected with notice of the trusts with which the title was clothed, and equity will treat them as trustees. "Watkins, being trustee, had actual notice of the trusts, and those claiming under him liad what is equivalent to such notice. The deeds on their face gave notice of the trusts, and they were of record. The appellant and all those claiming through "Watkins must be taken to have had the knowledge which these deeds directly imparted, or to which anything appearing therein would, on due inquiry, haye led. *576The appellant, in becoming a purchaser, was bound to make enquiry into the title, and wherever inquiry is a the party bound to make it is affected with knowledge of all the facts which he would have discovered performed the duty. Means of knowledge with the duty of using those means are in equity equivalent to knowledge itself. Cordova v. Hood, 17 Wall. U. S. R. 1, 8; Burwell’s adm’rs v. Fauber & als., 21 Gratt. 446, 463, et seq.
3. But the appellant, in his answer to the bill, and his counsel in argument, invoke for his protection the act of limitations and lapse of time and the alleged acquiescence and laches of Mrs. Leber and her heirs.
Equity, in obedience to the law, applies the statute of limitations to all demands of a strictly legal nature, and in equitable demands by analogy it applies the same bar that the statute fixes for legal demands of the like character, and upon its own inherent doctrine not to entertain stale or antiquated demands, and not to encourage laches and negligence, will sometimes, in cases not barred by the statute, refuse to interfere after a considerable lapse of time from considerations of public policy, from the difficulty of doing justice, when the original transactions have become obscure by time, and the evidence may be lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, vigilantibus, non dormientibus, jura subveniunt. 1 Story’s Eq. Juris. § 529; Id. § 64a; Bargamin & als. v. Clarke & als., 20 Gratt. 544, 553, and cases there cited.
While in cases of direct or express trusts, as between trustee and cestui que trust, the statute of limitations has no application during the continuance of the trust, the relations and privity between them being such that the possession of the one is the possession of the other; yet it has been held that if a trustee repudiates the trust by *577clear and unequivocal acts or words, and daims thenceforth to hold the estate as his own, not subject to any trust, and such repudiation and claim are brought to the notice or knowledge of the cestui que trust in such manner that he is called upon to assert his equitable rights, the statute will begin to run from the time that such knowledge is brought home to the cestui que trust. 2 Perry on Trusts, §§ 863, 864, and cases there cited. But in such case the bar is not applied, unless the cestui que trust be sui juris, or under no disability. Id.
Upon these principles, under the facts of this case, it is evident that the appellant is not protected in his claim by the act of limitations, lapse of time, alleged acquiescence or imputed- laches. The limitation to the legal remedy is fifteen years. Code of 1873, ch. 146, § 1. The saving (Id. § 4) is in these words: “ If at the time at which the right of any person to make entry or bring an action to recover any land shall have first accrued, such person was an infant, married woman, or insane, then such person, or the person claiming through him, may, notwithstanding the period mentioned in the first soction shall have expired, make an entry on, or bring an action to recover such land, within ten years next after the time at which the person to whom such right shall have first accrued as aforesaid, shall have ceased to be under such disability as existed when the same so accrued or shall have died, whichever shall first have happened.”
Taking it then to be true, as averred by the appellant in his answer, and of which there is some evidence in the record, that about or soon after the date of the deed to Watkins, 7th May, 1847, he entered thereunder upon the lot in controversy, and thenceforth until his death in 1861, with the knowledge of Mrs. Leber, had and held actual, eontinous, exclusive, adverse .possession thereof, yet Mrs. Leber, during all that time, and until her death in 1862, *578was a married woman, and consequently within the saving aforesaid of the statute. Continuously from the date of her death, when her estate devolved on her heirs, until the first day of January, 1869, stay-laws were in force and the operation of the statutes of limitation was suspended by legislative enactments. Danville Bank v. Waddill, 27 Gratt. 448; Johnston & als. v. Gill als., Id. 587. The heirs filed their bill on the first day of March, 1875, less than ten years from the first day of January, 1869, when the statute began to run against their claim. Acquiescence cannot be attributed to Mrs. Leber nor laches imputed to her, for the reason that she was all the while after marriage under disability, nor are the heirs justly chargeable with laches in not prosecuting their remedy during the continuance of the war, or for several years after its termination, while the condition of the country was unsettled and the statutes aforesaid were in operation; and the delay of six years after all obstructions were removed in filing their bill, is not so unreasonable as to be a bar to equitable relief.
4. It is finally urged by the appellant’s counsel that if the heirs are accorded the relief sought it should be on condition that they account for the consideration alleged to have been received by Mrs. Leber for the sale and conveyance of the lots. So far as this pretension is based on the idea that the separate estate is chargeable, on recovery of the lots, with the purchase money paid therefor, it cannot be maintained.
The power of a married woman to charge or encumber her separate estate is incident to the jus disponendi, and the liability of the estate can arise only out of the supposed intention of the wife, and no pecuniary engagement can be a charge on the estate which is not connected by agreement, express or implied, with such estate.
The wife is exempt from all personal liability, and *579from all personal decrees and judgments on her contracts. Her undertaking, so far as it is recognized by the court, is not that she will pay the debt, but that her separate estate shall be answerable for it; and that is bound so far only as she has agreed it shall be bound. Darnall & wife v. Smith's adm'r & als., 26 Gratt. 878; Burnett & wife v. Hawpe's ex'or, 25 Gratt. 481.
The writing of May 7, 1847, as has been seen, is void as a deed of conveyance. The covenant of warranty contained in it, if not wholly void, at least does not bind Mrs. Leber personally, nor does it bind her separate estate unless so intended. To construe the covenant as an undertaking binding the lots, which she was then attempting to convey, would be manifestly in opposition to her intention, if not absurd; and there is nothing in the nature and terms of the covenant, the subject matter, the situation of the parties, or the circumstances of the transaction; which indicates any intention on her part, or from which such intention may be fairly inferred, to charge the residue of her separate estate.
Tu enforcing the engagements of the wife against her separate estate, equity always has respect to her intention in making the engagements, and certainly never raises an implied assumpsit to charge the estate in opposition to her intention. In Williams v. Duke of Bolton, 4 Bro. C. C. 297; S. C. 2 Ves. Jr. 138, a married woman, having separate property, for a consideration which she received, sold an annuity charged upon that property. The annuity being void for want of a proper memorial, it was held that the grantee would not have an equity specifically to affect the fund clothed with a trust for the separate use of a married woman, with the •consideration, upon the ground of the difficulty of raising an implied assumpsit contrary to the intention of the parties. See 1 Lead. Cas. Eq. (ed. 1876), Part 2, pp. 696, *580697, where the case above referred to and other cases of like import are cited by the English annotators.
Although, however, the consideration for the lots is not. chargeable thereon, nor on the general separate estate, yet if it was paid by the trustee to Mrs. Leber and invested in other property, and as invested it remained until her death and then descended to her heirs, equity and good conscience would seem to require that they should surrender or account for it on receiving back the lots. In such case equity would be extended to them only on condition of their doing equity to others. But unfortunately for the appellant, the case supposed is not made out by the record. There is some evidence tending in some degree to show the purchase of other property by Mrs. Leber, and that possibly the purchase money claimed to have been paid by Watkins, may to some extent have gone into this property. But the evidence on this point is far too vague, uncertain and unsatisfactory, to be relied on as the basis of a decree. If, however, it had been made clear that Watkins paid a full consideration for the lots, and that the money so paid was invested by or for her in other property, to hold the heirs liable to account for this property in their suit to recover the lots, it would have been necessary to prove that such property descended to-’the heirs; and it is not pretended that there is any such proof in the record. Upon the whole case, I am of opinion that there is no error in the decree of the chancellor, and that the same should be affirmed.
The other judges concurred in the opinion of Burks, J.
The decree was as follows:
This cause, which is pending in this court at Bichmond, having been there fully heard, but not deter*581mined, this day came here 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 there is no error in the said decree. Therefore it is decreed and ordered, that the same be affirmed, and that the appellees recover of the appellant their costs by them about their defence of said appeal expended, and thirty dollars for their damages ; which is ordered to be entered on the order-book here and to be forthwith certified to the clerk of this coui’t at Eichmond, who shall enter the same on his order-book, and certify it to the said chancery court of the city of Eichmond.
Decree 'affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482053/ | Christian, J.,
delivered the opinion of the court.
Statement of the Case.
This was a case of caveat in the circuit court of Augusta county. The caveators are the appellants, A. D. Trotter, *584James I. A. Trotter, Thomas N. Kinney, and. other heirs at law of Jefferson Kinney. On the 10th day of Decemher, 1873, they filed in the office of the register of Virginia land office their caveat to prevent the issuing of a grant to the appellees, Isaac Newton and Major D. Vines, for forty-seven and one-half acres of land situated m said county of Augusta, on the water of Mary’s creek (now called Smith river), surveyed for said Newton and Vines on the 4th day of June, 1873, by James M. Silling, assistant surveyor of John D. Dilley, surveyor of Augusta county.
The specific grounds upon which they file their caveat are set foi’th as follows :
“ Said caveators respectfully represent that in the year 1854 said A. D. Trotter purchased of one David L. Young and William Kinney, commissioners in the cause of Harnesbarger’s adm'r v. Dowell's heirs, in the circuit court of Augusta'county, a tract of 4,660 acres of land, in which said tract of land the said 47| acres now sought to be entered by the said Newton was embraced, and went to make up said 4,660 acres; that a short time after said purchase said James I. A. Trotter and Jefferson Kinney, who was then living, became associated with said A. D. Trotter in said purchase and joint owners of said tract of land; said A. D. Trotter was placed in possession of said land, and immediately upon his said purchase, and he and said James I. A. Trotter and Jefferson Kinney held exclusive and uninterrupted possession of said tract of land, including said 47J acres, up to the day of the death of said Jefferson Kinney, and said caveators have held like possession ever since. The sale of said tract of land made by said commissioners, Young and Kinney, was ratified by decree of circuit court of Augusta rendered in the above named cause, and by a subsequent decree rendered therein said commissioner, Young, was required to convey said lands to said caveators by a good *585and sufficient deed; and said commissioner has so conveyed said tract of land to said caveators by deed duly .recorded in the clerk’s office of county- of Augusta. From the time said tract of land was sold to said A. D. Trotter as aforesaid, up to the present date, the taxes assessed against it have been promptly paid up. Said caveators object to the issuing of a grant to said Newton for said 47J acre tract of land—
“1st. Because saidNewton and Vines, and each of them, well know that said caveators were in the possession, use and enjoyment of said land, and had had the same in possession ever since the purchase by said A. D. Trotter from Commissioners Young and Kinney, as aforesaid, and yet wholly failed to notify said caveators of their intention to file an application for a grant thereof. (See § 18 of ch. 112 of Code).
“ 2d. Because the law has not been complied with by said applicants upon filing their said application, in this, that they have wholly failed to make and have endorsed upon the survey filed by them an affidavit such as is required from all persons applying for a grant of lands, under an act of assembly approved February 21, 1871, (see Session Acts of 1870-71, page 136); and in this, that they have wholly failed to have the affidavit of the surveyor of the county endorsed on said survey, as by said act above cited they are required to do.
“ 3d. Because said tract of land is not liable to entry. The survey filed by said applicants, show’s that said land has been surveyed and entered by Thomas Fulton and John Dougherty, March 10, 1795 ; there is no evidence to show that said land has been forfeited, or that it has in any wise become liable to re-entry.
“4th. Because the plat and survey returned by said Newton was made by the surveyor without any authority for so doing. It nowhere appears that said survey was *586made by virtue of a land office treasury warrant, issued from your office, and is therefore void.
“ Said caveators have had full and complete possession of said land for twenty years under color of title derived 6y decree in the above-named chancery cause, and for ^me they -^ave paid all taxes against said land; this it is insisted should make their claim superior to the claim of any party seeking a grant at this late day, and for reasons above set forth by said caveators, pray that the application of said Isaac Newton may be rejected, and said caveators left in the quiet and peaceable possession of said land; and as in duty bound they will ever pray, etc.
.“A. D. Trotter,
“ James I. A. Trotter,
“ Thomas N. Kinney,
“ And the other heirs at law
of Jefferson Kinney, deceased.”
To these specific grounds of caveat thus set forth, the caveatee filed his answer and pleas in the words and figures following, to-wit:
“This day came the defendant, Isaac Newton, by his attorneys, Sheffey & JBumgardner, and saith that the plaintiffs their caveat aforesaid ought not to have and maintain against the said defendant by reason of the matters and things in said caveat alleged, because said defendant, as to the first alleged cause for which a grant for the premises in said caveat mentioned should not issue to said defendant, saith:
“ 1. That said defendants, Isaac Newton and Major D. Vines, did not know that the caveators were in the possession, use and enjoyment of the said land in said caveat mentioned, or that said caveators had had the same in possession ever since the alleged purchase thereof by A. I). Trotter, one of said caveators, from Commissioners *587Young and Kinney, and therefore, said defendant, in Ms own right, and as assignee of said Major D. Vines, was well justified in applying for a grant for said land without giving notice to said caveators, or either of them.
“ 2. That as to said second cause or reason why said grant should not issue to said defendant, he saith, that the law has been complied with by said defendant, upon filing his said application, and that he did cause to be made and endorsed upon the survey filed by said defendant proper affidavits according to law.
“ 8. That as to said third cause or reason why said grant should not issue to said defendant, he saith, that, in fact, said caveators claim title and interest in said land mentioned in said caveat, under and by virtue of a grant issued by the commonwealth of Virginia to a certain Major Dowell; and said defendant further, in fact, saith, that said caveators have no title or interest in, and to the land in said caveat mentioned, and that said caveators have no title thereto, under and by virtue of any grant from the said Thomas Fulton and John Dougherty, or either of them, or from any person or persons whatsoever, claiming by, through or under the said Thomas Fulton and John Dougherty, or either of them.
“ 4. That as to said fourth cause or reason why said grant- should not issue to said defendants, he saith, that the plat and survey returned by said defendants was in fact made by the surveyor in pursuance and by authority of law; that said survey was in fact made by virtue of land office treasury warrants, duly issued according to law, and that it so appears by certificate of said surveyor on said survey and plat.
“5. That as to said last or fifth cause or reason why said grant should not issue to said defendant, he saith, that said caveators, or either of them, have not had full and complete possession of said lands for twenty years, under color of title, as alleged in said caveat; that in *588fact, said caveators have not had full and complete possession of said land at any time, and specially, that they did not have actual possession of said land at the time said defendant and said Major D. Vines made the entry upon, and by virtue of which said survey was made and said grant is demanded.
“ Whereupon, said defendant prays judgment that said caveat be dismissed, &c.
“Sheeeey & Bumgardner,
“ For defendant.”
Upon these issues thus made up in said circuit court of Augusta county (a jury being waived and all questions of law and fact being referred ■ to the court), and upon the examination of evidence, documentary and oral, the said circuit court pronounced its judgment, and' to this judgment a writ of error was awarded by one of the judges of this court.
Opinion.
The .court is of opinion that there is no error in the judgment of the circuit court. While cases of this kind are now of rare occurrence in this court, the rules which govern them are well defined by the decisions of this court and may be stated as follows:
First. In every caveat founded on the alleged better right of the caveator to the land in controversy, the first enquiry is as to Ms title or interest in the subject. He cannot recover upon the mere infirmity of the title of the eaveatee; for however defective that may be, no one has a right to interpose for the purpose of preventing him from carrying his entry into grant, unless he have a better right, legal or equitable, in himself.
Second,. The caveator must state in his caveat the grounds oh which he claims the better right to the land i.n controversy, and he will not be permitted to abandon *589on the trial the right which he has set out in his caveat, as that under which he claims, and prove a different right. See Walton v. Hale, 9 Gratt. 194; Carter v. Ramey, 15 Gratt. 346; Harper, &c. v. Baugh & al., 9 Gratt. 508.
Let us now apply these principles to the case before us.
The caveators claim title to the land in controversy (the 47-|-acre tract) upon two grounds—First, as purchasers under a decree of the circuit court of Augusta county, rendered on the 7th November, 1856, directing a sale of the real estate of one Major Lowell. The sale was made by Young and Kinney, commissioners of said court, and at the sale the appellants (the caveators) became the purchasers. Under this purchase they claim title to the land in controversy. Second. They claim that they had the actual and uninterrupted possession of said land under a claim and color of title for the period of twenty years.
As to their claim as purchasers from Young and Kinney, commissioners, it is plain that they acquired at that sale only such title as was in Major Lowell. That was all the commissioners sold and conveyed, and that was all the purchasers acquired.
The record in this case conclusively shows that Major Dowell, under whom the appellants claim as purchasers at the judicial sale referred to, founded his claim to the lands sold by Young and Kinney, commissioners, upon a grant of the commonwealth issued by letters patent on the 9th day of February, in the year 1796. But in this very patent, containing the lands sold by said commissioners, and purchased by the appellants, the 47J acres (the land in controversy), is expressly excluded. That patéht contains the following clause: “But it is always to be understood that the survey upon which this grant is founded includes forty-seven and. a half acres of prior claims surveyed for Thomas Fulton and John Lough*590erty, the 10th of March, 1775, exclusive of the above quantity, &c., which having a preference by law to the warrants and rights upon which this grant is founded, liberty is reserved that the same shall be firm and valid and maybe carried into grant; and this grant shall be no bar in either law or equity to the confirmation of the title to the same as before-mentioned and reserved.” And accordingly we find that on the 11th of April, 1798, a grant by letters patent, reciting warrant issued on 18th day of August, 1783, was issued to the said Thomas Fulton and John Dougherty, for the said forty-seven acres of land, which is the same land now in controversy. It is plain, therefore, that Dowell never having the legal title in him, the purchasers at the sale of his lands acquired no title. And it being conclusively shown that the legal title was in Fulton and Dougherty, derived by them from the commonwealth, and the appellants not' connecting their title with them, they have failed to show any legal title in themselves.
But failing in this, the appellants (who are the caveators) rely upon an equitable title based upon actual adverse possession for twenty years under a color of title, which they insist has now ripened into a perfect title. Let us now examine this claim of the caveators. If they succeed in asserting their claim as caveators against the caveatees,-it must be upon the ground that they have the better title, derived not from any legal title in them, or in Dowell, under whom they claim, but upon the ground that they have had an adverse possession for the period of the prescriptive bar of the statute, which gives to them the better title against the caveatees.
Judge Baldwin, in the leading case of Taylor's devisees v. Burnsides, 1 Gratt. 165, 190, followed by this court ever since, has succinctly stated the rule governing a claim of title under adverse possession, as follows: “When we look to the elements of an adversary posses*591sion in reference to conflicting claims and the statutory prescriptive bar, we find it to consist of an exclusive, actual, continued possession, under a colorable claim of title.” It must be: first, exclusive; second, it must be actual as contrasted with constructive possession; and, third, such exclusive and actual possession must continue in the claimant or those under whom he claims for the period prescribed by the statute. These three things must concur in order to constitute a valid title founded on a claim of adverse possession.
Applying these principles to the case before us, it is clear that the caveators have no.t shown by the evidence such acts of actual and exclusive possession as entitle them to claim the land in controversy. The land which they purchased at the sale made by Commissioners Young and Kinney was an extensive boundary of wild mountain land, described by one of their own intelligent witnesses, Major Hotchkiss, “as a perfect wilderness, and did not look (in 1868) as if a human being had ever visited them.” There is some evidence, it is true, to show that cattle had been grazed on some parts of the land so purchased, and that brush fences had been placed upon some portions of the same, but even these temporary fences have gone down years ago and not a trace of them was left when the entry was made by the caveatees; nor is there any evidence showing that the forty-seven and one-half acre tract in controversy was so grazed, or that it was ever enclosed. Indeed, one of the caveators, who was examined as a witness, admits that the fences on the land were two miles from the forty-seven and one-half acre tract; that the lands were wild mountain lands, and that the fences spoken of were only at such points in the mountains as was necessary to keep stock from leaving the lands in certain directions; that the mountains most generally themselves made a fence.
There was evidence also proving that one of the cavea*592tors had frequently sent Ms son and others to get specimens of ores from the forty-seven and one-half acre tract, which had been sent to various parts of the United States, accompanied by maps he had made of these lands. And he admits he had no other possession, except by sending for specimens of ores, and by such fencing and grazing as above described.
The court is of opinion that such acts of ownership and possession on the part of the caveators as are proved by the evidence in the record, are not sufficient to constitute the elements of an adversary possession, which in order to give title must .be exclusive, actual and continuous, under a color of title, for the period of the statutory prescriptive bar. This would be true if the case stood alone upon the uncontradicted evidence of the caveators. JBut the evidence is conflicting and contradictory. It is proved by the caveatees that there was no actual possession by any one, and that the ore banks on the forty-seven and one-half acre tract were once mined by one Bryan, who had made or repaired a road in 1835 ; that all the work ever done on the forty-seven and one-half acre tract was done by Bryan, who died in 1852 or ’3; that no one had been in possession of the property since; that the whole was a vast wilderness of mountain land, over which cattle ranged generally, and it was no sign of separate ownership that cattle ranged over these mountains; and that caveatees never knew of any claim of ownership or possession on the part of caveators, who were never in actual possession.
Uow, in this ease a jury being waived, the court tried both questions of law and fact, and there being a certificate of the evidence, this court will treat it as a demurrer to evidence. So treating it, it is impossible to conclude upon the evidence set out in the record, that the caveators have established, as against caveatees, a better right to the land in controversy.
*593As to the second and fourth grounds of caveat set out by the caveators, it is sufficient to refer to the following agreement of counsel found in the record of the trial in the court below:
■ “It was agreed by the counsel for the caveators that the requirements of the statute, objected to in the specifications of the caveat, had been complied with, and these objections were waived.”
"With respect to the third specification, to-wit: “ 3d. Because said tract of land is not liable to entry. The survey filed by said applicant shows that said land has been surveyed and entered by Thomas Fulton and John Dougherty, March 10th, 1795. There is no evidence to show that said land has been forfeited, or that it has in anywise become liable to re-entry,” it is sufficient to say that the caveators do not profess to claim under Fulton and Dougherty; and it is no concern of theirs that the land has been surveyed and entered by the latter, unless they can show a better right in themselves. They cannot rely on any infirmity in the title of the caveatees, but can only succeed upon showing a better legal or equitable title in themselves. Carter v. Ramey, 15 Gratt. supra.
In.his petition for a writ of error, the learned counsel for the caveators relies upon the fact that they had also located a warrant on the land in controversy, and claims that they (the caveators) are protected by the provisions of the 14th section of chapter 108, Code 1873. That provision is as follows: “If any person not having such possession and claim shall locate a warrant on such land without having given such notice, then the person having such possession and claim, may, at any time before a grant issues to the person thus failing to give such notice, locate a warrant on such lands and file with the *594register a caveat to prevent the issuing of a grant to the person thus failing to give such notice.”
Now, in taking this position, for the first time in his petition here, the learned counsel assumes that the caveators were in actual possession of the land in controversy. This assumption, as has been seen, is not sustained, but is disproved by the record. But it is sufficient to say the point was not made in the court below. It was not alleged in the specifications as one of the grounds of caveat; it was not put in issue in the circuit court, and cannot be considered for the first time in the appellate court.
In Harper, &c. v. Baugh, &c., 9 Gratt. 508, it was held by this court that the caveator must state in his caveat the grounds’ on which he claims the better right to the land in controversy, and he will not be permitted to abandon in the trial the right which he has set out in his caveat- as that under which he claims, and prove a different right. .
Judge Allen, delivering the opinion of the court in that case, says: “ The law requires the caveat to express the nature of the right on which the plaintiff claims the land. The object of the caveat is, in part,, to notify the caveatee of the grounds on which the caveator claims the better right, that he come prepared to controvert it; and it would be surprise on him to permit the caveator to abandon at the trial the right which he had set forth in his caveat, as that under which he claimed, and prove a different right. Such a course would lead to injustice, and is in conflict with the terms of the statute, which requires the nature of the better right to be expressed in the caveat.”
Upon the whole case, we are of opinion that there is no error in the judgment of the circuit court of Augusta -county, and that the same be affirmed.
*595Anderson, J. The question is not whether the caveator has a good title against the world, but whether he has a better right than the caveatees. It is a comparison of their rights. The caveatees have no right at all. Their ■own survey, for which they seek to obtain a grant from the commonwealth, shows upon its face that the same land had been previously located by Fulton and Dougherty, .and the record shows, had been carried into grant by them, by patent bearing date as far back as 1798. That being so, it is not waste and unappropriated land, and it has not been forfeited to the commonwealth. There is not a particle of evidence to show that it has been forfeited. There are no other lands, than such as fall within one or the other of these two descriptions, that are subject to location by land office treasury warrant, or to grant by the commonwealth, except inclusive surveys. The commonwealth having previously parted with her title to other parties, she is invested with no title which can pass by her grant to others. And the statute expressly prohibits the register of the land office from receiving “ into his .office any plat and certificate of survey, which evidently comprehends the rights of any other than him for whom such survey is made, notwithstanding any deductions or reservations; ” and it declares that “every such survey shall be void.” It evidently appears on the face of the survey itself, which the caveatees returned to the register’s office for a patent, that it comprehends the rights of others, for it says “it is the same land formerly surveyed to Thomas Fulton and John Dougherty, March the 10th, 1795, and reserved in the survey of Major Dowell’s 15,100 acre survey of May 1, 1795, containing 47|- acres.” It may be said that the foregoing does not show that the survey returned to the register’s office “ evidently comprehends ” the rights of others, because the surveyor omitted to state that Fulton and Dougherty afterwards obtained a patent for their *596said survey. It seems to me that what is stated does evidently show that the caveatees’ survey comprehends the rights of others. Fulton and Dougherty had rights,, because they are reserved to them in Dowell’s patent; and this appears on the face of the caveatees’ survey. The prohibition is not made to depend upon evidence that the survey comprehends another’s legal title, but “ rights ” of others, which may be acquired by entry and survey. But the register has in his office the' patent which emanated to Fulton and Dougherty in 1798, a copy of which is filed in this cause. By turning to which, registered in his office subsequent to the date of the survey which is given, which he should do, he will find conclusive evidence that the survey for which he is asked to issue a patent to the caveatees, evidently comprehends the rights of others. And having this evidence on the face of the survey, and in his own possession, it seems to me that he could not issue a grant to the caveatees without violating a plain provision of the law; and that a grant so issued, by the express terms of the statute, would be void.
It was plainly the intention of the legislature to prevent the issuing patents for land, which evidently comprehended the rights of any other than him for whom the survey was made, in order to prevent the disturbance of titles to land and litigation and strife. And this is further shown by the next (the 48 d) section, which prohibits the issuing a grant upon the survey returned to the register’s office, “ unless there be endorsed on such survey the affidavit of the person applying for the grant, as well as that of the surveyor making the survey, that they verily believe that the land embraced in the suiwey has not been previously appropriated, or that it was at the time of the entry thereof liable to entry,” &c. The first they could not make, it is reasonable to presume, because they knew it had been previously appropriated. *597But if .they knew it had been previously appropriated, or had such knowledge of it that they could not swear that they believed it had not been previously appropriated, it cannot well be perceived how they could make affidavit that they believed it was liable to entry at the time of the entry thereof. I do not mean to say, or intimate, that they had not some views of their own which justified them in tlieir own minds in that belief, but I cannot conceive what they were. Certainly under the law, if the land had been theretofore appropriated by others, it was not subject to their entry, unless it had been forfeited to the commonwealth; and they have furnished not the slightest evidence of a forfeiture to justify their belief.
Of one thing I think there can be no question or contrariety of opinion, and that is, if a grant is issued to these caveatees, it defeats the purpose and intention of the legislature by these enactments.
These conclusions are well supported by authorities cited by Judge Fultz in the clear and forcible presentation of the case for the appellants in their petition. In Carter v. Ramey, 15 Gratt. 346, cited by him, the court said: “In this case it is agreed that the land embraced in the caveatees’ survey lies wholly within the boundaries of the tract of 4,000 acres, granted to one Richard Smith by patent bearing date 21st of February, 1768, and that the 4,000 acre tract had never been forfeited to the commonwealth, under her revenue laws or otherwise. Thus it is not liable to entry, either as waste or unappropriated or as forfeited land, and the entry of the caveator, so far as it embraced the land of the caveatee, being wholly unauthorized by law, was simply void, and could confer no equity whatever. And a grant founded upon such void entry would pass nothing, there being nothing in the commonwealth upon which the grant could operate.” In Levasser v. Washburn, 11 Gratt. 572, *598the court held that, “in the absence of a statutory provision authorizing the location of forfeited lands, no title-could be acquired to such land by entry and survey, and a patent obtained for them would be merely void.” Hannon v. Hannah, 9 Gratt. 146, is to the same effect.
If the grant for lands which have been previously appropriated, and which have not been forfeited, is void, surely the same causes which would avoid and annul it after it has been issued are sufficient to prevent the issuing of it.
But it is said this may all be true; but how does it concern the caveators? They have no interest in the land, and no rights which can be affected by the issuing of the grant, and have no right to come into court to resist the issuing of the grant to the caveatees. Is this so ? Have they no interest in the subject and no rights involved in the question ?
They were the innocent purchasers of the identical land for which the caveatees seek to obtain a grant from the commonwealth under a decree of the circuit court of Augusta in 1854, about twenty-three years ago. The sale to them was confirmed by a subsequent decree of the court, and a commissioner (1). S. Young)< appointed to convey the land to them, which conveyance he made, and the deed was recorded. The land they purchased contained 4,660 acres, and is part of a tract of 15,100 acres granted by the commonwealth to Major Dowell, upon a survey which included 47J acres of prior claims surveyed for Thomas Fulton and John Dougherty, which is reserved to them by the said grant. The land purchased by the caveators was laid off and surveyed from the main tract by the county surveyor, and no reservation made by said survey of the 47| acres. And no reservation of it is made in the decrees of sale and confirmation, or in the deed conveying the title to the caveators. There is no evidence in the cause that they *599knew that the 47J acres reserved by* the patent was within the boundary sold and conveyed to them, or in fact that they were aware that any reservation at all made by the patent, or that they had even seen the patent; and if they had seen it they could not have learned from that that any part of it was within the boundaries sold to them; and no reservation being made by the survey which was made under the supervision of the court, and the same being decreed to be sold without any reservation, and sold under that decree to them without any reservation, and so conveyed to them, they are the purchasers of all the land within the boundary sold to them, which embraces every foot of land embraced in the caveatees’ survey. • And they are the purchasers of the same, and have held it under the decree of the .court for more than twenty years, and by subsequent conveyance. And having purchased the whole tract of 4,660 acres by the acre, they have held the 47J acres precisely as they have held the balance of the tract ever since the purchase, and have paid for every acre of it. They allege that two of their joint purchasers, immediately after their purchase, took possession of it, and grazed cattle upon the whole tract, and fenced a portion of it, and that they have held peaceable and uninter rupted possession of it ever since, for more than twenty years.
There is no proof that these purchasers have ever had any visible occupation and improvement of any part of the forty-seven and a half acres, except the taking samples of ore from the ore banks upon it, and including the same in the maps of the 4,660 acres which Major Hotchkiss made for them and which were given to the public, and unless they can connect themselves with Elisha Bryan’s possession, I think that they have not proved such a possession as would, in a controversy between them and Fulton and Dougherty, or persons claiming under *600their title,, bar their better title. But I need not stop to pursue that enquiry, as it is not a question of title between -them and the holders of the outstanding better title; that is not involved in this suit, but it is a controversy between them and the caveatees, which has the better right. It is not necessary that they, the caveators, should show a better title than Fulton and Dougherty. There is no controversy between them. ‘ Dor can the cavatees rely on an outstanding better title in another, with which they do not and cannot pretend to connect themselves. By so doing they show that they themselves have no rights. All that it is necessary for the caveators to show is, that they have a better right than the caveatees have, and that they have an interest which entitles them to object to the issuing of a grant to the caveatees.
They have such an interest. They have better right than the cavatees, which involves a comparison of rights, and consequently leads to an enquiry as to what are the rights of the caveatees as well as the caveators. The former, we have seen, have no rights whatever, but are attempting to acquire what the law prohibits to them. The latter, as we have seen, is a purchaser of the identical forty-seven and a half acres of land under a decree of the court more than twenty years ago, and have paid for it, and have held such possession of it as would be good against the caveatees who had no title, nor color of title, the possession of a part being the possession of the whole as to them, though it might not be good against the holder of the better title, to bar which it would be necessary to have uninterrupted and exclusive possession, pedis possessionem, of apart of the forty-seven and a half acres, which cannot, however, benefit the caveatees; they have no connection with said title, and do not claim under it, but against it. It seems to me that the caveators have had such possession under color of title as would have clearly entitled them to have maintained an action of trespass against *601the caveatees, and consequently to maintain this caveat; and having shown that they have better right to the land than the caveatees have, as they bought and paid for it more than twenty years ago, have held it ever since under a decree of the court, and for years under a deed in execution of said decree, uninterruptedly until the present time, and paying the taxes upon it; that although they may not have as good a title as Fulton and Dougherty, they have a better right than the caveatees, and therefore I am of opinion to reverse the decree of the circuit court.
Judgment arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482054/ | Moncure, P.,
delivered the opinion of the court.
On the 14th day of December, 1874, Juan P. Sherman, administratrix of Nathan G. Sherman, deceased, brought an action of trespass on the case against the Daltimore and Ohio Railroad Company, in the circuit court of Shenandoah county. The action was brought under the provisions of the act of 1870-71, ch. 29, p. 27, §§ 1, 2, 3 and 4, which are embodied in the Code of 1873, p. 996, ch. 145, §§ 7, 8, 9 and 10, which are as follows:
“ 7. Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured, or if she be a married woman, her husband, either separately, or together with her, to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, *604shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death have been caused under such circumstances as amount in law to a felony, provided that in no case shall the recovery exceed the sum of ten thousand dollars.
-®very su°k action shall be brought by and in the name of the personal representative of such deceased pers011j anc! within twelve calendar months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased.
“ 9. The amount recovered in any such action shall, after the payment of costs and reasonable attorneys’ fees, be paid to the wife, husband, parent and child of the deceased, in such proportion as the jury may have directed, or if they have not directed, according to the statute of distributions, and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so received shall be assets in the hands of the personal representative, to be disposed of according to law.
“ 10. Eights of action under this act shall not determine, nor shall such actions, when brought, abate by death of the defendant.”
The declaration contains five counts, and is, in substance, as follows:
In the first count, it. is charged that the defendant on the 3d day of September, 1874, on the track of a certain railroad running through the corporate limits of the town of Edinburg in said county, and within the corporate limits of said town, then and before the committing of the grievances thereinafter mentioned, in the possession and use of, and operated by said company, for the purpose of running steam locomotive ■ engines and coaches on and over the same, did carelessly-and negligently, and *605with great force and violence run and drive its engines and coaches upon and against said Nathan G-. Sherman, there then being, and thereby, then and there, with engine and coaches, did so greatly wound said Nathan G-. Sherman, that by reason thereof he then and there difed, and his death was caused by said wrongful act, neglect and default of said railroad company, wherefore the plaintiff, administratrix aforesaid, says she is entitled to l’eeover damages to the amount of ¡§10,000 under the laws of Virginia for such cases made and provided, and therefore she brings suit, &c.
In the second count it is, among other things, charged that the defendant did so carelessly and negligently manage and conduct a train of cars, that by reason thereof the rear car of said train became detached and separated from the other cars of same, and being so detached and separated, ran with great force and violence against said Nathan Gr. Sherman there then being, and thereby did so greatly wound him that by reason thereof he then and there died, &c.
In the third, count it is, among other things, charged that the defendant did so carelessly and negligently manage and conduct a train of cars, that by reason thereof the rear cars of the same became detatched and separated from said train while it was in rapid motion, and being so detached and separated ran with great force and violence against said Nathan. Gr. Sherman, who was walking within the corporate limits of said town of Edinburg on the track of said railroad, in the same direction that said train was running, and who had stepped on said track after said train passed him, and in the interval between said train and said detached rear cai’S, and thereby with said cars then and there did so greatly wound said Nathan Gr. Sherman, that by reason thereof he then and there died, &c.
In the fourth and fifth counts it is, among other things, *606charged that the said injury complained of was done “ on the track of a certain railroad in Shenandoah county,” of “ a certain railroad running through the corporate limits of the town of Edinburg in said county,” as cffsn’ged in the other counts. The defendant demurred to the declaration, and to each count thereof, and the plaintiff joined in the demurrer. The defendant also put in the plea of not guilty, on which the plaintiff joined issue.
On the 25th day of August, 1875, the demurrer being argued, was overruled, and a jury was sworn to try the general issue joined between the parties, but being unable to agree after being together several days, a juror was withdrawn and the cause continued.
On the 8th day of December, 1875, another jury was sworn to try the case, which, after being several days engaged in such trial, at length found1' a verdict in these words: “We, the jury, find for the plaintiff upon the issues joined, and ascertain the damages of said plaintiff at the sum of $3,000.” And on the 20th day of Decembei’, 1875, a judgment was rendered in favor of the plaintiff’ against the defendant for the said sum of $3,000, with legal interest from the 18th day of December, 1875, until paid, and the costs of plaintiff in that behalf expended.
To the said judgment the defendant applied to a judge of this court for a writ of error and supersedeas; which was accordingly awarded.
The first assignment of error in this case is that' the court erred in overruling the demurrer to the declaration and each count thereof.
We are of opinion that the circuit court did not err in this respect. Neither is the whole declaration, nor is any count thereof, demurrable. The defendant is sued as a corporation, and there is no affidavit in the case denying such incorporation. In such case it is expressly made *607unnecessary, by statute, to prove the fact of the incorporation. Code, p. 1094, ch. 167, § 40. Much less is it necessary to aver such fact in the declaration. 8 son’s Pract. (new edition), p. 524, and the cases cited. This court as well as the court below will, ex officio, take notice of the fact.
The second assignment of error is that the court erred in allowing the evidence of the witness, Hockman, to go to the jury in reference to the family left by the deceased, 27. Gr. Sherman, after objection.
This assignment of error is founded on the first and second bills of exceptions taken ih the case. The first states that upon the trial of the cause, after the jury was sworn to try the issues joined, the plaintiff, before she had completed the examination of her witnesses in chief, called C. Hockman as a witness in her behalf, and propounded to him “the following question, after having examined him as to other matters: “ State whether 27. Gr. Sherman left at his death a widow, and whether she is still living ? ” To which question the defendant objected, but the court overruled the objection and allowed the witness to answer the same, who thereupon answered: “That the said Sherman left a widow who is now living, and who is the plaintiff in this suit; ” to which said ruling of the court the defendant excepted. The second bill of ■exceptions states that upon the trial of the cause the plaintiff, before she had completed the examination of her witnesses in chief, called C. Hockman as a witness in her behalf, and amongst other questions, propounded to said witness the following: “ State if the said 27. Gr. Sherman left any children that are now living ? ” To which question the defendant objected, but the court ■overruled the objection and allowed the witness to answer the question, and said witness thereupon answered that the said Sherman left five children now living, aged respectively twelve, ten, eight, six, four or five years—the *608first, second and fourth being girls, and the third and fifth boys; to which ruling of the court the defendant ■.also excepted.
"We are of opinion that the circuit court did not err in allowing the said evidence of the witness, Hockman, to go to the jury. The facts to which said evidence relates are pertinent and material in regard to the ascertainment and apportionment by the jury of the amount of damages to be allowed under the statute (Code, p. 996, ch. 145, §§ 7, 8 and 9); and there is no necessity to make any averment in regard to the same in the declaration, as the right of action is not dependent thereon, but only the quantum and distribution of the damages are affected thereby. It is not necessary to defer the introduction of such evidence until after the finding by the jury of the right of action in favor of the plaintiff; but all the evidence in the case, not only in regard to the mere right of action, but also in regard to the quantum and distribution of the damages, may properly be introduced together, and before the jury retire to consider of their verdict. See Balt. Ohio R. R. Co. v. Wightman's adm'r., 29 Gratt. 431.
The third assignment of error is, that the circuit court erred in overruling the motion of the defendant to set aside the verdict and grant a new trial on the ground that the verdict was contrary to the evidence, contrary to the law, and contrary to the instructions given by the court, as stated in the third bill of exceptions.
The question presented by this assignment of error is, by far, the most important one arising in the case, being in effect, whether upon the merits, the verdict ought not to have been in favor of the defendant, even conceding the correctness of the decision by the court of all the other questions decided in the case.
The facts proved on the trial of the cause are certified in the said third bill of exceptions. According to the facts *609as so certified the plaintiff’s intestate was killed on the track of the defendant’s railroad by the cars of the defendant, which ran over him while on his way from home to his place of business in the town of Edinburg, the two places being distant from each other about three-quarters of a mile. It is not pretended that the act which caused the death was wilfully done by the defendant. It was certainly the result of an accident, but whether such accident was occasioned by the neglect of the defendant, and whether there was contributory negligence on the part of the plaintiff’s intestate in producing the occasion, and whether, if there was, the negligence of the defehdant was such and so gross as, notwithstanding any such contributory negligence, to render the defendant responsible for the damages sustained by the plaintiff from the accident aforesaid, are the questions upon which this most important assignment of error seems to depend.
The facts of this case, as certified in the third bill of exceptions, are as follows:
“ That H. G: Sherman, the plaintiff’s intestate, on the morning of the 8d of September, 1874, at an early hour, left his home, distant some three-fourths of a mile from the phosphate works in Edinburg, for the purpose of going to said phosphate works, where he was employed as a workman; that his home was some five hundred yards outside the limits of. the corporation of Edinburg, and that he travelled a path leading across a partially plowed field to the railroad, and which path crosses said road near the mouth of the cut situated about seven hundred and seventy-five yards northeast of the railroad depot at Edinburg; that when said Sherman got "to the railroad he started down the track, either between or outside the rails, in the direction of said phosphate works, which are situated a "short distance from the railroad depot at Edinburg, on the southeast side of said *610railroad; that he travelled two hundred and three yards in the direction of said phosphate works along the railroad track until he reached a point where he was killed, designated on the map by a red mark, which is two hundred and three yards from the point where he first came upon the track, and three hundred and eighty-nine and one-third yards from the said phosphate works; that he was a man of sober and industrious habits, and that he was a man of ordinary intelligence, and had been a school-teacher—had taught a country school for a few months; that he was a man of fair English education ; that he provided well for his family and gave them every attention for a man in his condition of life.
It was further proven that the defendant’s cars, known as the through freight train, consisting of engine Ho. 159, a camel-back ten-wheel engine and tender, and eleven freight cars with a passenger car in the rear, left Sandy Ilook, on the Baltimore and Ohio Railroad, at 11:15 o’clock on the night of September 2d, 1874, in chai’ge of Conductor Lewis Farr, with George Riley as brakes-man, John O. Dempsey as engineman, Lewis Heard as pilot, and William Donnovan as fireman; that when the train reached Winchester, which is about thirty-five miles northeast of Edinburg, one of the said freight cars was taken from said train, and another car was added to the train at Strasbfirg Junction, a station seventeen miles from Edinburg; that said last named car was the seventh ear from the engine ; that when the train reached Woodstock, a station five miles northeast of Edinburg, the train was behind time, and just below said town of Woodstock, the train became uncoupled on an up grade by the breaking of a coupling-pin, which had been put in at Strasburg Junction in the bumper of the car which had been attached to the train at that point, and the engine with the six -front cars ran past the depot at Wood.stock to a point some one hundred and fifty yards south*611west of said depot, which breaking was not remembered by any of the hands on the train except George Riley, who coupled it up; that it then backed and was to the rear part which had been left some eight hundred yards northeast of said depot, by said George Riley, brakeman; that the train then went on after taking on a passenger at Woodstock, Mr. W. "W. Logan, who was .going to Staunton; that the train ran slowly up the grades until it crossed a point known as the summit, which is about one and one-half miles northeast of Edinburg depot, and from which point to the depot at Edinburg, the railroad is down grade at the rate of thirty-four feet to the mile; that there are two cuts through which said railroad passes between the summit and Edinburg, one •of them being about one hundred and fifty or two hundred yards long, the other about one hundred and fifty or two hundred yards long, and the southwestern mouth of the one nearest Edinburg being situated two hundred and thirty-six feet from the point where said E. G. Sherman came upon said railroad, out of the plowed field over which he came ; that the railroad runs on a considerable curve through said cut, and that about the time the engine got to the mouth of the cut next to Edinburg, the fireman discovered that the six rear cars had become detached from the rest of the train, and were about thirty yards in rear of same; that he immediately told the engine-man ; that the engineman immediately blew his whistle for brakes to be put down on the rear part which had become detached; that he also opened his valves and ran away from the rear part; and that he ran with the engine and other cars past the depot and water station at Edinburg, and stopped his engine about the bridge across Stoney creek, which bridge is one hundred and forty-five yards from the depot; that as soon as the whistle was blown for brakes, the conductor, who was in the passenger car in the rear of the detached section, responded to the *612signal and went to the brake on the front part of the passenger ear, which was a double brake that operated on the front and rear of the car at the same time, and which he put down; the brakeman was out on the platform when the signal was given and immediately wen.t forward on the train, putting down the brakes, and that they checked the speed of the said detached section of cars-within from one hundred to two hundred yards from the mouth of the cut and before they reached the point where said Sherman was killed; but the evidence was conflicting as to the rate of speed at which both sections were running from a point on the line of the road about one hundred yards north of the point on said road opposite Sherman’s house to the point where Sherman was-killed. At the first-named point the testimony of the defendant fixed the rate of speed at from six to twelve miles per hour—-that of the plaintiff at thirty miles or passenger rate, and from the mouth of the cut next Edinburg to and beyond the place where Sherman was killed, the evidence of the defendant fixed the rate of speed from four to eight miles per hour, and the evidence of the plaintiff was that the running was very rapid and- twice as fast as their usual rate of speed at and along that part of the line; that said Sherman got out of the way or was not injured by the engine and front part of the train, but that he stepped on the track just as the detached section reached the point where he was killed, and that he was run over and killed by said detached section of cars, and was found lying on his back with his head toward "Woodstock and his feet toward the Edinburg depot, with his body and right leg inside the track between the rails, on the east side, and his left leg and arm outside the rail; that the engine-man, pilot and fireman on the front part of the train did not see him as they passed, and that neither the conductor nor brakesman who had charge of the detached *613section saw nor knew he was on or near the track; that none of said employees knew that he was killed until the train arrived at Harrisonburg, a point on road about thirty-four miles southeast of Edinburg; that the rear part of the train which had become detached, was let gradually run down to a point near the depot at Edinburg, and that when it got there the •engine and other cars were backed and coupled to it, and that the engine took water and went on with the train in the direction of Harrisonburg; that when the rear part came down to the point near the depot an old hat was discovered on the bumper near the left-hand side—going west—of the car, which was the front car of said detached section, and which was a house-ear; and that George Riley, brakeman, saw the hat, and it was where the party coupling it up could see it, but no one about the depot knew that any one was hurt or killed until after the train had left the depot and started to Harrisonburg, when it was reported that a man had been killed; that there were some hands in the employ of the railroad company at the depot who, with others, went back in the direction where the deceased was lying, and took charge of his remains and brought them to the phosphate house; that a telegram was sent by the telegraph operator at Edinburg, to Mr. J. H. Averill, the assistant supervisor of the railroad, w'ho was at the time at Sandy Hook, and that he telegraphed to the conductor of the train at Harrisonburg that his train had killed a man, which was the first information any of the employees on the train had of the accident; that the accident occurred about sunrise on the morning of September 8d, 1874; that the weather had been dry for some time before; that it was a little foggy, and that the engine threw down considerable smoke, as is usual with freight camel-back engines; that from the point where said Sherman came upon the track to where he was killed, a *614distance of two hundred and three yards, the track is perfectly straight and runs on a high embankment or in some places forty feet high, with nothing to obstruct the view; that there was a path on either side of the track and ample room for a train to pass without injuring a person walking in either path; that there-was also a path on either side of the embankment which would lead to the phosphate works, and a wagon road from a point northeast of where he was killed to the-phosphate works, near the foot of said embankment; that there was a path across the railroad about two hundred or two hundred and twenty-five yards south of the point where he was killed, but no path across the road near where he was killed; that Sherman took the route of the railroad to the phosphate house on his way to and from his work; that on Sunday people from the villages would walk out on that part of the track; that people going to Edinburg from Taylortown and that direction, frequently walked that route, and Iiockman, a witness for plaintiff, who had lived on the road from the time it was built, had during that time met as many as one hundred people on said railroad, and that cattle passing on said road would walk the paths at either side of the track, and to some extent the road had been used by country people—one or two families going to the stores in Edinburg from the northwest, the route from Taylortown. that way being five hundred yards nearer to the depot and adjacent stores; that the point where the deceased was killed was within the corporate limits of Edinburg, a town of five hundred inhabitants, two hundred and eighty-one yards within said corporate limits, but some distance from that part of the town which is built up, and some distance from any street or alley; that there were no houses near the point and none between the place where he came upon the track and the phosphate works, except one small house at the right or west *615side of the road, designated on the map; that the engine was a camel-back ten-wheel engine, not as powerful as some engines of her make, but strong and enough for the purposes for which she was used; that the track from the north end of the cut next to Woodstock to the mouth of the cut next to Edinburg was in its usual condition; that considerable work had been done to it since the Baltimore and Ohio Railroad Company took possession of the road in September, 1873, and that although some of the cross-ties were sometimes found' loose, and some of the joints of the rails were sometimes lower than at other points (some dipped as much as an inch lower), yet it was regarded by the track-walker and supervisor of the track and the hands employed to keep it in order, as the best part of their track, and was regarded by all those who had any connection with the road as in good order and perfectly safe for trains; that the corporate limits of the town of Edinburg embraces a large quantity of farming land, some of it very rough and comparatively inaccessible, and a portion of this rough land lies adjacent to a part of the line of the railroad within the said corporation, and that it is three-fourths of a mile long by three-eighths of a mile wide, parallel with the Valley turnpike; and the corporate limits of Edinburg was only proven after a survey by an engineer, run according to the corporate lines heretofore established as the limits of said town as far back as 1857, and that the depot agent who was in charge of the depot when Sherman was killed, was present at said survey, but who was examined by the plaintiff and did not know at the time of the re-survey where the lines of the corporation west of the railroad ran—and by no other testimony; that from the point at which said Sherman was killed a person could see in the direction from which the train came one thousand and fifty-six feet, or three hundred and *616fifty-two yards, along the line of said, railroad track, there being no intervening object,'and into the mouth the cut, the distance to ’ the mouth of the cut being eight hundred and forty-five feet; that one witness, at th© distance of four hundred yards, and at an angle of forty-five degrees from said Sherman, observed him step upon the track just as the train struck him; that another witness at a distance of about ninety yards, and at right angles to him, also observed the train strike him, as it was afterwards shown by his finding the body of said Sherman on the track at a point where he had seen something white fly down the bank, which he took to he a paper thrown off by a train hand, but which proved to be a cloth around his, Sherman’s dinner, which he had in a basket, which was also found at the foot of the embankment. Said witness, upon going to the foot of the embankment, found the basket, and then went up to the track and found the body; that the attention of all the parties who observed the train that morning (except Isaac Ruby, the witness who was ninety yards at right angles, as aforesaid, from Sherman), being some six or eight in number, was called to the train by the unusual whistling of the engine as it came out of the cut, and before it reached said Sherman and after it had become detached. It was also proven that freight trains always carried a passenger car or conductor’s car, commonly called a caboose, at the rear end of every train; that the attention of Charles Holtzman and G. W. Miley, two of plaintiff’s witnesses, who were one hundred yards olf, was attracted to the fact that the train, as it passed the depot at Woodstock, after it had broken loose as aforesaid, had no passenger cal- or caboose attached—the same having become uncoupled before it got to Woodstock, and the witness, Logan, who was at the depot observed the same thing; that it was the duty of the engineman, when he discovered his train was uncoupled, to blow for brakes and then to run far *617enough away to keep the rear or detached part from running into his train; that it was also the duty, under the rules of the company, of those in charge of the rear part, to run it forward gradually to connect with the train, or to move forward to a point where a safe view could be obtained front and rear.
It was also proven that there was no brake on the front part of the foremost car of the detached section, but the brake was at the rear of said car, and that freight cars generally had but one brake; that the cause of the train becoming uncoupled after it passed the summit was the jumping out or breaking of a coupling-pin between the same-two cars which became uncoupled near Woodstock, but not in the same bumper, but no part of the pin was found in the bumper, where it is always found if the pin is broken; that said coupling-pin was a regular Baltimore and Ohio Bailroad pin, at least ten inches long, of usual length and thickness, which had been placed in the bumper by the brakesman, George Riley, before the train left Harper’s Ferry; that the usual length of the Baltimore and Ohio Railroad pin was not less than ten inches, and not less than one and one-fourth inches in diameter. It was further proven that pins came out from other cause than those named—from being too short or worn smooth; that a pin of greater length than that used would take longer in coming out, but that the pin used was as long as the pins usually used by other roads, and longer than that of the Chesapeake and Ohio, and Washington City, Virginia Midland and Great Southern railroad, and was considered safe; but'that the Manassas and Chesapeake and Ohio railroads used smaller pins; that the coupling used between said cars was the regulation coupling of the Baltimore and Ohio Railroad, a straight link coupling thirteen inches long and one and one-quarter inches in diameter, and that it was a safer link and bet*618ter than the crooked link, the only other used by railroads, and the pin was a regulation pin, and that the regulation pin was considered a safé and good kind of pin by railroad men; that the two which became uncoupled were both house cars—one was known as a high bumper, the other as a low bumper car, which bumpers varied in height ten inches, and that the pin broke in the lower bumper casting at Woodstock, and the pin that jumped out or broke was in the high bumper casting, near Edinburg; that said last named pin was the largest and best pin the brakesmen could get at Harper’s Eerry; that it was a sound and good pin, and was examined by the brakesman before he put it in the casting at Harper’s Eerry; that the rear part of the train which became detached, and which ran over Sherman, consisted of a passenger car, four gondolas and a house car, the passenger car being the hindmost one, and the house car the foremost one; that both freight and passenger trains are liable at all times to become uncoupled by the breaking or jumping out of coupling pins; that such accidents are of very frequent occurrence on railroads, and that no means has yet been discovered or devised to prevent it; that all the hands on the said train were proven to be competent hands, and of general good character as prudent and diligent hands; that the engine-man, John O. Dempsey, was an experienced engineman, and had been in the employ of the company for some time, but had only made a few trips over the l’oad from Harper’s Eerry to Harrisonburg, commencing on the 26th August and continuing until after the 3d of September, 1874, to-wit: to October 24th; that the pilot, L. Beard, was an experienced brakesman who was acquainted with the road, and who was put on the engine with said John O. Dempsey to show him the road, and had been with said engineman as pilot from the 26th August, 1874, on every trip he made over said road up to and including *619September 3d, 1874; that the fireman was an old and experienced fireman, and that the conductor and brakes-man were experienced and careful men, who their business, but the conductor had only been running over the road from Strasburg to Harrisonburg from the 20th of August, 1874, but the brakesman had been on said part of the road since September, 1873; that when the train crossed the summit the engineman shut off' steam and ran down 'the grade ; that after they crossed the summit one or two brakes were put down on the rear part of the train; that the brakesman’s duty was to attend to the brakes and also to any baggage, and also the company’s mail, both of which he received and delivered at stations, and it was proven that W. W. Logan was the only passenger.
It was further proved that there was a wagon road leading from Sherman’s home to the phosphate house, which was proven by Isaac Ruby, one of the plaintiff’s witnesses, to be always travelled when he lived in said house and worked at said phosphate works, which he did just previous to said Sherman’s occupancy of said house.
It was further proven that the track-walker on the road between Edinburg and "Woodstock passed over the road from Edinburg to Woodstock, through the two cuts, on the day before Sherman was killed, and also on the same day after he was killed, and that he found the road on both days in good order.
It was also proven by plaintiff that said Sherman left a widow and six children, one of whom has since died; that he was a man about thirty-five years of age.
Defendants also gave in evidence the map or diagram of the locality of the accident, which was proven to be a correct diagram made from actual measurement, and also profile maps of the same made from actual measurement, which maps are marked “A,” “B” and “0.”
*620It was also proven that from eight to ten trains pass over said railroad every day, and have done so since 1873.
It was also proven that said Sherman had worked for hoard and twelve dollars per month, and this was °n^ ev^ence the value of his services,
Plaintiff’ also gave in evidence to the jury the map of ^ town of Edinburg, which is recorded in the deed book of said county of Shenandoah (a copy of which is marked “D ”—Clerk).
It was further proven that after the remains of the deceased were taken to the phosphate house, the deceased was examined by Dr. D. W. Prescott, one of his employers and one of the owners of the phosphate works, but which fact was proven by another person introduced as a witness; that at the two points where the train became detached on the morning of September 3d, 1874, George Eilev, the brakesman, was the only person who examined into the cause of the breaking loose of the train, and he coupled up the detached sections both at Woodstock and Edinburg; that it was the general duty of the conductor to see to the coupling of his train, he being responsible for it, in person or by his subordinates, for wh'ose conduct he is responsible.
It was proven that the schedule time of the said train was an average for the whole distance, from Sandy Hook to Harrisonburg, of twelve and one-half miles per hour; that the train was behind time, but as to what length of time the evidence was conflicting; that between. Woodstock and Edinburg, on the morning of September 3d, 1874, the conductor and brakesman who had been running the train during the whole night appeared to be sleepy and drowsy in appearance and movement before the train was discovered to be'detached, but that they were in and out of the car, and when the train was discovered to be uncoupled one of them was at the brake *621on the passenger ear; that it was the duty of the brakes-man to be on the outside of the train on starting down a grade.
It was proven that a detached train of six cars going down a grade of thirty-four feet to the mile could be stopped within three hundred and fifty yards by the active exertions of a conductor and brakesman by the application of all the brakes, and that it was the conductor’s duty to aid in putting down the brakes; that when the rear part of the train was seen coming around the phosphate house, by the parties at the depot, it was coming slowly and gradually, and stopped before it got to the water tank; that the length of an ordinary railroad car is thirty-two feet, and that the length of an engine and tender is fifty feet from pilot or cow-catcher to the end of tender. Passenger cars average forty feet in length; that the railroad company were not in the habit of using bell-ropes on freight trains or such trains as the one hereinbefore described, and had not used them for several years, the same having been discarded as being too inconvenient and impracticable for freight trains, and that there was no bell-rope on this train connecting the rear car with the bell upon the engine; that such ropes would frequently but not always give notice of the separation of a train at the time when it occurred, but that it was difficult of use on freight trains on account of the frequency of their getting out of place, becoming fastened, and sometimes ringing the bell by accident and not by design, and because the company regarded them as useless, and that they have been generally discarded by railroads.
It was further proven that the train was first discovered by the men on the engine and by the conductor on the detached portion of the train, and by the blowing for the brakes, to be broken loose at a point somewhere between a point opposite Sherman’s house and the north end of *622the cut next to Edinburg, which cut is between one hundred and fifty and two hundred yards long.
It was further proven that the trains uniformly stopped at Edinburg, and that the trains were allowed, under special orders, to run fifteen miles per hour, but not to exceed that rate. It was proved that the penalty of the violations of the rules of the Baltimore and Ohio Company by its employees wras suspension or dismissal.”
First. Was the accident which produced the death of the plaintiff’s intestate, Hathan G-. Sherman, occasioned by the neglect of the defendant, the Baltimore and Ohio Railroad Company ?
The defendant’s cars which occasioned the damage, were known as the through freight train, consisting of a camel-back ten-wheel engine and tender Rnd eleven freight cars, with a passenger car in the rear; and was under the charge of Lewis Farr as conductor, George Riley as brakesman, John O. Dempsey as engineman, Lewis Beard as pilot, and William Donnovan as fireman. It is not pretended that the number of hands in charge of the train was not ample for its safe and proper management, nor that they were not properly distributed among the necessary portions of the work. It is certified as part of the facts proved in the cause, “ that all the hands on the said train were competent hands, and of general good character as prudent and diligent hands; that the engineman, John G. Dempsey, was an experienced engineman, and had been in the employ of the company for some time, but had only made a few trips over the road from Harper’s Ferry to Harrisonburg, commencing on the 26th August-, and continuing until after the 3d of September, 1874, to-wit: to October 24th; that the pilot, L. Beard, was an experienced brakesman, who was acquainted with the road, and who was put on the engine with said John C. Dempsey to show him the road, and had been with said engineman as pilot from *623the 26th August, 1874, on every trip he made over said road up to and including September 3d, 1874; that the fireman was an old and experienced fireman, and that the conductor and brakesman were experienced and careful men, who understood their business; but the conductor had only been running over the road from Strasburg to Harrisonburg from the 20th August, 1874, but the brakesman had been on said part of the road since September, 1873?’
It does not appear that any of the hands, thus proved to have been sufficient in number and competency for the duties they had to perform on the occasion referred to, were remiss in performing the duties which devolved upon them on the special occasion referred to. Such an uncoupling of cars as occurred on that occasion, was proved to have been a matter of common, if not frequent occurrence, without any default on the part of the company. The certificate of facts on this subject being: “That the cause of the train becoming uncoupled after it passed the summit, was the jumping out or breaking of a coupling-pin between the same two cars which became uncoupled near "Woodstock, but not in the same bumper, but no part of the pin was found in the bumper, which is always found if the pin is broken; that said coupling-pin was a regular Baltimore and Ohio Railroad pin, at least ten inches long, of usual length and thickness, which had been placed in the bumper by the brakes-man, George Riley, before this train left Harper’s Ferry; that the usual length of the Baltimore and Ohio Railroad pin was not less than ten inches, and not less than one and one-fourth inches in diameter. It was further proved that pins came out from other causes than those named—from being too short or worn smooth; that a pin of greater length than that used would take longer in coming out; but that the pin used was as long as the pins usually used by other roads, and longer than that of *624the Chesapeake and Ohio, Washington City, Virginia Midland and Great Southern railroads, and was considered safe; but that the Manassas and Cheaspeake and Ohio railroads used smaller pins; that the coupling used between the said cars was the regulation coupling of the Baltimore and Ohio Railroad, a straight link coupling, thirteen inches long and one and one-quarter inches in diameter, and that it was a safe link, and better than the crooked link, the only other used by railroads, and the pin was a regulation pin, and that the regulation pin was considered a safe and good kind of pin by railroad men; that the two which became uncoupled were both house cars; one was known as a high bumper, the other as a low bumper car, which bumpers varied in height ten inches, and that the pin broke in the low bumber casting at Woodstock, and the pin that jumped out or broke was in the high bumper casting near Edinburg; that said last named pin was the largest and best pin the brakesman could get at Harper’s Eerry; that it was a sound and good pin, and was examined by the brakesman before he put it in the casting at Harper’s Ferry; that the rear part of the train which became detached, and which ran over Sherman, consisted of a passenger car, four gondolas and a house car, the passenger car being the hindmost one, and the house car the foremost one; that both freight and passenger trains are liable at all times to become uncoupled by the breaking or jumping out of coupling pins; that such accidents are of very frequent occurrence on railroads, and that no means have yet been discovered or devised to prevent it.”
It was proved that the railroad, at and near the place where the accident occurred, was in good order at the time it occurred, it being certified as a fact “ that the ‘track-walker ’ on the road between Edinburg and Woodstock, passed over that part of the road through the two-' cuts on the day before Sherman was killed, and also on *625the same clay after he was killed, and that he found the road on both days in good order.” It does not appear that the discovery was not made on the train of uncoupling of the cars near Edinburg in a reasonable time after it occurred, or that the best means were not used to restore their connection, or that it was not restored in a reasonable time after the separation occurred. It does not appear that there was any want of diligence on the part of any of the hands on the train in looking out, after being informed of such separation, for any persons who might happen to be upon the track, and warning them against danger. The deceased, though on the track when the front part of the train approached the place where he was walking, stepped off the track before it reached him, and thus saved himself at that time; but he stepped back upon the track after the front part of the train had passed, and precisely at the time of so stepping back he was struck by the rear part of the train and killed; so that none of the hands on the train had time to warn him of his danger even if they had seen him when he stepped back on the track, which they did not.
“ The evidence was conflicting,” according to the certificate of facts, “ as to the rate of speed at which both sections were running, from a point on the line of the road about one hundred yards north of the point on said road opposite Sherman’s house, to the point where Sherman was killed. At the first-named point the testimony of the defendant fixed the rate of speed at from six to twelve miles per hour, that of the plaintiff at thirty miles, or passenger rate, and from the mouth of the cut next Edinburg to and beyond the place where Sherman was killed, the evidence of the defendant fixed the rate of speed at from four to eight miles per hour, and the evidence of the plaintiff was that the running was very *626rapid and twice as fast as their usual rate of speed at and along that part of the line.”
If there wras any neglect of duty on the part of the defendant which can be said to have occasioned, in whole or in part, the accident which produced the death of the plaintiff’s intestate, it must have been the undue speed at which the train was running when the accident occurred. Upon that question we have seen the evidence was conflicting ; according to that of the' defendant, the speed was certainly not undue, but was very moderate. According to that of the plaintiff', such speed exceeded what had been prescribed by the regulations of the defendant, but whether it can be said to have been undue or not, so far as concerns this case, is, to say the least, very doubtful. These regulations are adopted for the convenience and safety of the defendant and of those who. travel upon the road as passengers in the cars of the •defendant, or those who cross the road at a place where they have a legal right to cross it, and not of those who may choose to walk upon the road for their own convenience or pleasure, and without any legal right so to use it. It was “proven that the trains uniformly stopped at Edinburg, and that the trains were allowed, under special orders, to run fifteen miles per hour, hut not to exceed that rate. It was proved that the penalty of the violations of the rules of the Baltimore and Ohio Company by its employees was suspension or dismissal.”
But even if there was any neglect of duty on the part of the defendant which can be said to have occasioned, in whole or in part, the accident which produced the death of the plaintiff’s intestate, it is necessary to en-quire :
Secondly. Was there contributory negligence on the part of the plaintiff’s intestate in producing the cause of his death ? We think there certainly was. He chose to run the risk' of walking on the railroad as a part of his *627way from Ms home to his place of labor at the phosphate works, situated a short distance from the railroad depot at Edinburg. “He travelled two hundred and yards in the direction of said phosphate works, along the railroad track until he reached a point where he was killed; which is two hundred and three yards from the point where he first came upon the track and three hundred ánd eighty-nine and one-third yards from the said phosphate works.” There was no right of way, public or private, along this part of the railroad track, except the public right of way of the Baltimore and Ohio Railroad Company. There was no necessity for using it as a private way, even if there was any convenience in so doing. There was a path on each side of the track which might just as well have been used for walking as the track, and just as conveniently, and with perfect safety. “It was further proved that there was a wagon road leading from Sherman’s house to the phosphate house, which was proven by Isaac Ruby, one of plaintiff’s witnesses, to be always travelled when he lived in said house and worked at said phosphate works, which he did just previous to said Sherman’s occupancy of said house.” Sherman knew that trains travelled the railroad many times every day, and might travel it at unexpected times, and that trains might unexpectedly become uncoupled at any time, and that a person who chose to walk on the track instead of walking in one of the side paths or in the road at the foot of the embankment on which the railroad ran, must do so at his own risk, and must take care to look out for and avoid danger by stepping off' the track in time.
It is true the place where the accident occurred was within the territorial limits of a town containing five hundred inhabitants; but it was not within the settled or improved part of the town, and was not in one of its streets; but was “some distance from that part of the *628town which is built up, and some distance from any street or alley; there were no houses near the point, and none between the place where” Sherman “came upon the track and .the phosphate works, except one small house.” “ The corporate limits of the town of Edinburgembrace a large quantity of farming land, some of it very rough and comparatively inaccessible, and a portion of this rough land lies adjacent to a part of the line of the railroad within the said corporation.” “Erom the point at which said Sherman was killed, a person could see in the direction from which the train came 1,056 feet, or 352 yards, along the line of said railroad track, there being no intervening object, and into the mouth of the cut, the distance to the mouth of the cut being eight hundred and forty-five feet.” The attention of all the parties who observed the train that morning, except Isaac Ruby, “ being some six or eight in number, was-called to the train by the unusual whistling of the engine as it came out of the cut, and before it reached said Sherman, and after it' had become detached. It was-also proven that freight trains always carried a passenger car or conductor’s car, commonly called a caboose, at the rear end of every train; that the attention of Charles Holtzman and G. W. Miley, two of the plaintiff’s witnesses, who were one hundred yards off, was-attracted to the fact that the train as it passed the depot at Woodstock, after it had broken loose as aforesaid, had no passenger car or caboose attached, the same-having become uncoupled before it got to Woodstock; and the witness Logan, who was at the depot, observed the same thing.”
That the defendant did not prevent Sherman from walking on the track of the railroad, or object to his doing so, was merely a permission to him to do so at his peril. He knew the danger he thereby incurred, and how careful he would have to be to guard against it; *629and if he chose to encounter it on his own responsibility, the defendant was willing that he should do so. It cannot be inferred from such permission that the defendant intended to impair or diminish in the least degree its right to the full use of the road. To have that effect the evidence of their consent, if it could be given at all, should at least be very clear. It is not pretended that there is any such evidence in this case.
The instinct of self-preservation seemed therefore to require that Sherman should use incessantly, while he was walking upon the track, both his eyes and his ears to discover any signs of danger, whether approaching from behind or before. Had he heeded this plain admonition he would certainly have escaped all danger. His walking upon the track instead of in one of the paths on the sides of it, and his not properly looking at or listening for danger while so doing, have been the chief, if not the only cause of death, and at least made him guilty of contributory negligence in regard to such results. It now only remains to enquire on this branch •of the subject:
Thirdly. Was-the negligence of the defendant, if any, ■such and so gross as, notwithstanding such contributory negligence, to render the defendant responsible for the damages sustained by the plaintiff' from the accident aforesaid ?
We think that a negative answer to this question plainly results from what has already been said, and we will therefore say nothing more on the subject, but to ■express our conclusion in regard to it, which is that the •circuit court erred in overruling the motion of the defendant to set aside the verdict and grant a new trial.
We are therefore of opinion, that for that cause the judgment ought to be reversed and annulled, the verdict of the jury set aside, and the cause remanded for a new trial to be had therein according to the principles herein-*630before declared, which makes it unnecessary to consider* or decide the questions presented by the remaining bills of exceptions.
We have not referred .to any books or cases (with a single exception) in the foregoing opinion. The law on the subject, so far as material, can be found in Sherman & Eedfield on Negligence, ch. 3, p. 23, “contributory negligence”; ch. 17, p. 332, “injuries causing death”; ’Wharton on Negligence, ch. 9, “contributory negligence”; and in the cases referred to in the notes to-those chapters.
The judgment wás 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 circuit court did not err in overruling the demurrer to the declaration and each count thereof; nor in allowing the evidence of the witness Hockman to go to the jury, in reference to the family left by the deceased (N. G. Sherman) after objection, as mentioned in the first and second bills of exceptions taken in the case.
But the court is further of opinion, that the circuit court did err in overruling the motion of the defendant to set aside the verdict and grant a new trial, on the-ground that the verdict was contrary to the evidence,, contrary to the law, and contrary to the instructions given by the said court, as stated in the third bill of exceptions.
Wherefore, without deciding whether or not the said circuit court erred in refusing to give to the jury the thirty-three instructions which were offered by defendant’s counsel, or any of them; or in giving to the jury *631the twenty-eight instructions which were given hy the said court, or any of them, as mentioned in the fourth bill of exceptions taken in the case; or in refusing give to the jury the instructions líos. 19, 26 and 33, and in lieu thereof giving to the jury the twenty-eight instructions aforesaid, as mentioned in the fifth bill of exceptions taken in the case; the decision of the said questions, or any of them, being wholly immaterial and unnecessary to the determination of this case, in the view taken of it by this court, that according to the facts cei’tified in the record to have been proved on the trial, the law is plainly in favor of the defendant in the court below, the plaintiff in error here, so that, if the facts proved on another tidal be substantially the same as proved on the former trial, the case must then, according to the said view, be determined in favor of the plaintiff in error; it is considered, adjudged and ordered by the court, that for the error aforesaid the said judgment 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 aforesaid here, to be levied of the goods and chattels of her said intestate in her hands to be administered. And it is further adjudged and ordered, that the said verdict of the jury be set aside, and the cause remanded to the said circuit court for a new trial to be had therein in conformity with the principles declared' in the foi’egoing opinion and judgment; which is ordered to be certified to the said circuit court of Shenandoah county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482056/ | Burks, J.
This is an appeal from a decree of the circuit court of Frederick county. The bill was filed by "William L. Clark, as administrator of the estate of James Bowles, deceased, against Thomas K. Campbell, his wife, and others, to enforce the lien of a judgment against a house and lot in the city of Winchester. The judgment was recovered in June, 1872, on a bond exe*653cuted several years before the war, and was duly docketed on the 8th day of August, in the same year, in the county court of the county in which the lot was ated. At the time the suit was instituted in which the judgment was recovered, Campbell was the owner in fee simple of the lot aforesaid, and before judgment was recovered—indeed, within six days after the commencement of the suit, to-wit: on the 29th day of April, 1872, he, by deed of that date, conveyed the lot absolutely to one Samuel L. Larew, and the latter afterwards, by deed dated the 10th day of March, 1873, conveyed the same lot to John-’W. Grim, the father of Campbell’s wife, subject to the following declaration of trusts:
“To have and to hold unto the said John W. Grim, trustee, in trust for sole and separate use of Mary Elizabeth, wife of T. E. Campbell, and her present or any future children she may have by her present husband, the said T. E. Campbell, not to be subject in anywise to the debt, contract or control of the said T. E..Campbell. It is understood and agreed that the said trustee may at any time, at the request of said Mary E. Campbell, sell said property and reinvest the proceeds of sale upon like trust as above stated. It is further understood that until said property is sold, it is to be a home for the said T. E. Campbell and Mary E., his wife, and the survivor of them, with remainder to be equally divided amongst the children then living of said T. E. Campbell and Mary E., his wife, and the heirs of such as may be dead; and the said S. L. Larew hereby warrants such title to said property as was conveyed to him by the deed from T. E. Campbell and wife aforesaid.”
The bill, after stating the above facts, concludes with the following allegations and prayer for relief:
“Tour orator denies the truth of the recitals of consideration, which are made in these deeds, and he charges that the deeds were made to prevent your orator from *654subjecting the real estate of the said T. X. Campbell to the payment of the bond upon which he had instituted against him, and thus to delay, hinder and defraud the estate of which your orator is administrator. Your orator does not know what children there are of the said Thomas K. Camphell and Mary E., his wife, who' are made in part.beneficiaries, under the deed of March the 1.0th, 1873, but will, by an amended bill, make the parties defendant hereto, so soon as their names are ascertained.
“ The said Thomas X. Campbell has no property out of which your orator’s claim can be paid, except the property referred to in said deeds.
“ Eor as much, then, as your orator is remediless, save in a court of equity, he prays that the said Thomas X. Campbell and Mary Elizabeth Campbell, his wife, and the said John W. Grim, trustee, may be made defendants to this bill, and may be required to answer the same; that your honor will set aside the said deeds, and subject the property therein referred to, to the payment of your orator’s said claim, and that your honor will grant to your orator such other relief, general and special, as may be consistent with equity, and be required by the nature of the case. May it please your honor to grant to your orator the commonwealth’s writ of spa.”
Official copies of the two deeds were filed as exhibits with the bill.
The consideration of the deed from Campbell to Larew is thus recited therein: “The sum of twenty-five hundred dollars ($2,500) paid as follows: twenty-three hundred and fifty dollars cash in hand, the receipt whereof - is hereby acknowledged, and the balance, one hundred and fifty dollars, by rent, received in advance by said Samuel L. Larew, from the said Thomas X. *655Campbell for rent for tbe space of one year from this date of tbe property hereinafter to be conveyed,” &c.
The deed from Larew to Grim (trustee) recites the •consideration thereof as “the sum of twenty-five hundred dollars cash in hand paid, the receipt of which is hereby acknowledged,” &c.
Grim, who was a party as trustee, did not answer the bill, but Campbell and his wife filed separate answers, to each of which the complainant replied generally, and the cause being brought to a bearing on the pleadings and the depositions taken, tbe circuit court rendered its decree that the house and lot aforesaid was liable for the payment of the complainant’s debt, and should be subjected therefor.
The case is before us on an appeal from this decree allowed to Mrs. Campbell.
The first assignment of error by her counsel is set out in the petition for appeal in the following words: “ The ■case stated in the bill is utterly overthrown by the proofs, and the relief is granted upon an entirely new case set up by the proofs, viz: that while the deed to Lareio is valid, yet the property is liable in the hands of Grim, trustee, to the payment of Campbell’s debts, because purchased by Mrs. Campbell with her oum earnings.”
The rule in equity practice, that the allegations and proofs in a cause must correspond, is too familiar to need the citation of authority for its support. Eelief will not be granted on a case proved, which is materially different from the case stated in the bill. Whatever the prayer, the relief granted must be consistent, or at least not inconsistent, with the case made by tbe bill. A different rule would be attended oftentimes with surprise and prejudice. If, therefore, a complainant finds, in the. progress of the cause, as sometimes happens, that there is a discrepancy between the facts proved and those stated in 4he bill, he may, in some cases, obviate the difficulty by *656amendment, which is liberally allowed. While, however, the rule is as has been stated, under the liberal spirit inclines courts of equity to get over form in favor of substance, relief will not be denied unless the case stated and the case proven are so materially variant as to Preven* a decree in favor of the plaintiff. Chancellor Carr's opinion filed in Zone's Devisees v. Zane, 6 Munf., 406, 416.
I proceed to enquire whether there is that material variance between the statements of the bill and the facts proved, alleged in the assignment of error aforesaid. ■ It was to facilitate this enquiry that I have copied a portion of the bill in this opinion. Recurring to this it will be seen that fraud is the gravamen of the bill. The language is, “your orator denies the truth of the recitals of consideration which are made in these deeds.” This is in effect to charge that the consideration is feigned and the recitals false; and the bill further charges that the deeds were made to prevent the complainant from subjecting the real estate of the said T. X. Campbell to the payment of the bond upon which he had instituted suit against him, and thus to delay, hinder and defraud the estate of which the complainant is administrator.
The answers of Campbell and wife are singulaily briéf for such a case, each being embodied in about a dozen lines, and both in almost the same words.
Mrs. Campbell, after demurring to the bill for want of equity, admits the execution of the deed by Larew to her trustee, Grim, and then says: “Respondent denies that this deed was made to prevent complainant from subjecting the real estate of the said T. X. Campbell to the payment of the bond referred to in the bill. She denies that it was made to delay, hinder and defraud the estate of which complainant is the administrator. And not admitting any of the allegations of said bill, save *657those herein expressly admitted, she prays to be dismissed »,-i , , ^ with her usual costs.
Ho direct reference is made in this answer, or in answer of her husband, to the consideration of either of the deeds, nor is any explanation given or attempted. As Mrs. Campbell was a married woman and presumably without estate of her own, it might reasonably have been expected that in her answer she would have shown or attempted to show how, when, and from what source she derived the sum of twenty-five hundred dollars, stated in the deed as the consideration for the house and lot conveyed to her use. She does not, however, even allude to the matter, and contents herself with an answer which is substantially nothing more than a general plea of denial of the allegations of the bill. Such an answer under such circumstances is certainly not calculated to impress a court of equity very favorably with the respondent’s case.
As the answers give us no information on the subject, let us look to the evidence and ascertain, if we can, what was the consideration, if any, of the two deeds. The evidence consists, with incidental circumstances, mainly of the depositions of Larew and Grim, the latter the father of Mrs. Campbell and her trustee.
It would seem from these depositions that Campbell had no other property than the house and lot which he conveyed “to Larew, and after that conveyance was regarded as insolvent. He is represented as a man of dissipated habits, and Larew testifies that “he was drinking continually and gambling all during the war.” It seems he was absent from his home and family in "Winchester mostly during the war, returning occasionally when the federal troops appeared. With this knowledge of Campbell, his habits and circumstances, Larew says that at Martinsburg during the war, in the fall of *6581863, he lent him $1,500—not in Confederate currency, hut in greenbacks—to be returned in a few days. He it, according to his account, knowing it \yas to be used in gambling. Campbell lost the money, he says, an(l it has never been returned to him (Larew). He never took any bond, note, or evidence of the debt, " He pretends to have made repeated applications to Campbell to secure him on the house and lot; finally, but not till Bowles’ administrator had brought his suit, more than eight years after the alleged loan was made, he succeeded in getting a conveyance of the property at the price stated in the deed, $2,500. This he professes to have paid in the debt of Campbell, which he estimates at $1,800—$150 in rent of the property in advance, and the residue in cash. Ho vouchers and other evidences of the settlement are produced, and Larew is the only witness. He makes Campbell’s debt at the date of the deed in April, 1872, only $1,800, when the principal sum ($1,500) lent in 1863, with the accumulated interest, would have amounted to more than $2,200. He seems not to be certain as to what amount he paid Campbell in money, or whether he paid him anything, although, according to the estimated amount of Campbell’s debt, he must have paid him upwards of $500. He is asked this question:
“When you got the deed from Mr. Campbell, in which the consideration of $2,350 paid in hand is recited, did you pay him any money or any part of that consideration ? ”
“ Answer. I think I did; I think I paid the amount set out in the deed over and above the $1,800. I think I can say I did—that I paid him the money.”
By the terms of the deed, Campbell was left in possession of the property for at least a year. He seems never to have been out of possession. In less than twelve months afterwards, the conveyance was made to *659Mrs. Campbell’s trustee for tbe alleged consideration of $2,500. Larew’s account of tbe transaction is that one night when the year had about elapsed, Mrs. Campbell and her father (Grim) came to his house and proposed to purchase the property and have it settled upon herself and her children. The bargain agreed upon was, that she should have it at the same price Larew had given Campbell for it, and the deed was accordingly drawn. “ Then,” said he, “ Mr. Grim and her paid me the money. 'Mr. Grim counted me the money on my table in my dining room. Mr. Grim had the money and she stood by; that’s just what was done. I think the amount of money I got was $1,800; I think it was the amount that Mr. Grim counted to me; Iawpuldn’t state positive about the amount.” In the same deposition he says that the amount he paid Campbell for the property was the amount stated in the deed, $2,500 or $2,350, paid partly in Campbell’s debt and partly in cash, and although he was to get the same price from Mrs. Campbell, yet she only paid him $1,800.
Mr. Grim, the father of Mrs. Campbell, was examined as a witness on behalf of the complainant the saíne day •on which Larew was examined, but before the latter gave his deposition. He was asked to state all he knew about the execution of the deed to Mrs. Campbell. He answered, in substance, that about nine or ten months after the sale by Campbell to Larew, Mrs. Campbell informed him that she could purchase back the property from Larew, and he advised her to make the purchase, and consented to act as her trusteethat this was the only conversation he ever had on the subject, and all he knew about it.
The following questions and answers were then propounded and given:
“Third question by same. Were you present when the deed was executed ?
*660“Answer. No, sir; I was not. You might ask me questions from now till night and I don’t know no more.
“Fourth by same. The deed states that the consideration upon which Mr. Larew made it was twenty-five hun^red dollars, and that the said sum was paid in cash, Please state all you know about this ?
“Answer. I don’t know anything in the world about it. I told you I didn’t see any of the transaction. “Fifth. "Was the deed delivered to you ?
“Answer. No, sir ; and I never saw it.”
After Larew had^ testified and given the particulars before mentioned, as to the payment and counting the money in his dining room, Mr. Grim is then recalled by Mrs. Campbell’s counsel, against the objection of the complainant, and the following question is put to him:
“Mr. S. L. Larew has stated in his deposition that the money paid by Mrs. Campbell to him for the property was paid through jmu; please state your recollection of the matter ? ” He answered : “ It was a matter that had escaped my recollection, but when he spoke of it I remembered it very distinctly. I counted him out the money in his parlor. Mrs. Campbell was with me.”
He says further on cross-examination, that his impression is that it was twenty-three hundred and fifty dollars thus paid by Mrs. Campbell. Larew states the amount to be $1,800. Such is the confused, contradictory, unreasonable and improbable account given by these two witnesses of the alleged consideration of the two deeds. The statement that Mrs. Campbell paid to Larew for the house and lot either $2,350, according to her father’s testifnony, or $1,800, according to' Larew’s, is next to incredible. Grim and Larew both say she produced and paid the money; but from what source she obtained it, neither of them pretends to know. They intimate an opinion, that perhaps she might have saved it from her earnings during the war, in the baking business, and in *661boarding soldiers of both armies. But, according to their account, her husband was generally absent from home during the war, and she had to support and her family of three children, then small, according to the ages proved, and one would suppose that she would not be able to save anything after support. It does not appear that she had any property or estate of her own, and her husband had nothing except the house and lot which was their home. If she accumulated this money during the war, she kept it for seven years, and no one, not even her father, knew she had it. She neither put it in bank nor invested it, nor loaned it out, nor made any use of it. If she had done so, as she probably would have done if she had that amount of money, it doubtless would have been shown in evidence.
I am satisfied in my own mind, from the evidence in, the cause, that there was no consideration for either of the deeds of conveyance, that both were entered into with the intent to hinder, delay and defraud the estate of Bowles, and therefore that the case made by the bill is the case made by the proofs.
But suppose I am mistaken in the conclusion that both of the deeds are fraudulent, and the proper deduction to he drawn from the evidence be, as contended, that the deed to Larew is valid, and that the consideration recited in the deed to Mrs. Campbell’s trustee was actually paid by her from her own earnings, still I should not regard the case as so materially variant from the case made by the bill as to deny to-the complainant the relief extended to him by the decree if this appropriation of these earnings were fraudulent. The prime object of the bill is to reach the property conveyed. The ground on which it proceeds is fraud in the parties to the conveyance. Both deeds are charged to be fraudulent. The failure of the complainant to invalidate the first deed should not preclude him from relief as against the purchaser under *662the second deed, if such deed is shown to be fraudulent as against the complainant. The relief would be prethe same, whether both deeds were fraudulent or only the last one. In either case the property would be subjected to the complainant’s judgment,
This brings me to consider the question intended to’ be presented, as I understand it, by the appellant’s second assignment of error, and that question is whether, if the purchase money, as claimed, was paid by Mrs. Campbell out of her own earnings, she acquired a good title to the property as against the complainant’s debt ?
It is an undisputed principle of the common law that marriage is an absolute gift to the husband of all the personal estate of wrhich the wife is actually and beneficially possessed in her own right at the time of marriage, and such other personal estate as comes to her during the marriage. 1 Bright’s Husband and Wife, cb. 4, § 1, page 34.
The principle embraces her earnings, or the products of her skill nnd labor, as fully and completely as any other personal estate which comes to her during coverture. The common law makes them as absolutely the property of the husband as his own earnings. If she desires to secure them to herself against her husband and his creditors she may do so before marriage, and in contemplation thereof, by settlement to her separate use, and she will be protected in her rights in a court of equity, and she may be thus secured, even after marriage, but such post-nuptial settlement will be no protection against the creditors of the husband, existing at the time of the settlement, unless it is based on a valuable consideration.
The president of this court, in the opinion delivered in the case of Penn & als. v. Whitehead & als., 17 Gratt. 503, 527, said: “I take it to be a sound principle of law that ’ by no agreement or arrangement between husband and *663wife alone, founded on no valuable consideration, can the profits of the future labor of either of them, much less of the husband alone, be secured to the use of them, either of them or their famity, in exclusion of the claims of their creditors existing at the time such agreement or arrangement is made; and any such agreement or arrangement entered into for the purpose of having that effect would be a mere contrivance to hinder, delay and defraud creditors, and would be null and void as to such creditors, according to the true intent and meaning, if not the literal terms of the statute. Code, ch. 118, §§ 1 and 2.”
It is not pretended, certainly it is not proved, in the case before us—and the burden of proof was upon the wife, (Blow v. Maynard, 2 Leigh, 29; William & Mary College v. Powell & als., 12 Gratt. 372; Price v. Thrash, supra, p. 515)—that there was any agreement or arrangement, founded on valuable consideration, entered into between Campbell and his wife, by which she was to have the exclusive use and benefit of the products of her skill or labor, and the voluntary appropriation of her earnings to the purchase of the property and taking the title to the trustee for the wife’s benefit, would have been a fraud.on the existing creditors of the-husband, and the conveyance would have been void, or a trust would have resulted which could have been enforced by such creditors to the extent of their debts. 1 Perry on Trusts, § 149, and numerous authorities cited in note. But it is contended by the learned counsel for the appellant that Campbell deserted his wife during the war, and that where the husband from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for the support of his wife and children, or when he deserts her,, her earnings, afterwards accruing, are in equity her separate estate; and in support of this proposition he cites *6641 Bishop on Married Women, §§ 212, 213, 732, and cases from reports, most of which are not to be had here.
In the section (212) cited supra from Bishop, it is stated that it has been held in Pennsylvania, on a careful consideration of the English authorities and the legal princ^es Solved in the case, that if the husband has deserted the wife, her earnings afterward accruing are, in equity, her separate estate. Other decisions to the like effect in the same state are referred to by the author. I do not find any like decisions referred to in other states. But I do not deem it necessary in this case to express any opinion as to the effect of desertion by the husband on the equitable right of the wife to her earnings accruing during the period of desertion. Ho desertion has been proved in this case. The husband was absent from home, according to the testimony of Grim and Larew, generally during the war, but he occasionally returned when the federal troops occupied the city of Winchester, and since the war closed, it seems, he has been constantly at home and with his family. He may have had good cause for leaving home for aught that appears, and it may have been better for himself and his family that he should leave, and his wife may have advised and consented to his leaving. J3he certainly makes no complaint in her answer of his abandoning her, nor, if such was the fact, does she even allude to it. Hnder such circumstances, his temporary absence cannot be reasonably construed to be desertion.
Hpon the whole case, I am of opinion to affirm the decree of the circuit court.
The other judges concurred in the opinion of Burks, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482057/ | Anderson, J.,
delivered the opinion of the court.
At the January term, 1875, of the Eockingham circuit court, the appellee obtained two judgments against John F. Long and John Y. Long, partners in trade under the firm name of John F. Long & Co.; which judgments on the 18th of March, 1875, it caused to be docketed in the county court of Augusta, and afterwards brought its bill in chancery to subject to the same, among other things, a tract of seventy-four acres of land, as the property of said John Y. Long, situate in the county of Augusta.
Prior to the said judgments, in the month of October or November, 1874, John Y. Long had by parol contract sold the said tract of land to the appellants, and received payment from them of about $1,700 of the purchase money, which appears to have been all that was coming to him, the liens upon the land amounting to the balance, which they undertook to pay, and delivered to them possession of the land, which they accepted in pursuance of. said agreement, and were in possession when said judgments were rendered.
On the 4th of January, 18-75, John Y. Long conveyed by deed the land in question to the said purchasers, the appellants, which he had previously sold to them by parol contract, but which deed was not admitted to record until the 19th day of April, more than sixty days after its acknowledgment, and more than fifteen days after the *667docketing of said judgments; and the only question for our decision is, Was this tract of . land subject to the appellee’s judgment liens ? or .is the parol sale to the appellants valid as against the subsequent judgments of the appellee ?
The court below held that the judgments ai’e liens on the said tract of land, they being docketed on the judgment lien docket of the county court of Augusta county within sixty days next after the date of said judgments, and more than, fifteen days before the deed of conveyance to the appellants was recorded, and that the rights of the judgment creditor are superior to the rights of the appellants “ under the par’d or verbal contract between them and the said John Y. Long, in the fall of 1874, under which possession of the said tract of land was then delivered and accepted, and the purchase money paid,” and decreed that the said judgment liens be enforced against the said tract of land and the sale of the same, unless the judgment liens were satisfied and paid off within ninety days from the rising of the court.
The delivery and taking possession by the purchasers under the parol contract were unequivocally in consequence of the agreement, and in execution of it; and so was the delivering to the vendor his bonds, &c., in which the payment was made. These acts of part performance were done at the time of the purchase, and in pursuance of it. The possession of the purchasers was taken at the date of purchase, and although they were living on the place at the time, they were there as the sisters and .brother of the vendor and in his service. It was not a continuing possession under a former interest, as tenants or otherwise. They had no previous interest. They were in no sense tenants of the vendor, and had no sort of possession prior to their purchase; and the vendor upon their purchase immediately surrendered to them the possession, which they continued and held at the *668date of the appellee’s judgments. The vendor, it is not shown, ever occupied the land or any part of it, or that die has ever set his foot upon it since the said sale. He was at that time residing in Harrisonburg, and subsequently to his residence in Harrisonburg he removed to a farm belonging to his wife, where it is probable he still resides. It seems that he is now insolvent, and that if the sale which he made to the appellants was vacated they would be unable to get back their money, and that consequently his availing himself of the statute of frauds to avoid his contract would be a fraud upon his vendees. See 2 Minor’s Inst. p. 775, citing 2 Stor. Eq. §§ 760, 761. But there is no question raised as to the parol contract of sale or the acts of part performance, which are clearly proved, or as to the fairness of the transaction, and the same is admitted in fact by the decree itself, and the only question is as to how it is affected by the operation of our registration laws.
It is contended that the parol contract became merged in the deed, and that the deed not having been recorded within sixty days after its acknowledgment, and not within fifteen days after the docketing of the said judgments, the liens of the judgments attached to the land and superseded the appellants’ purchase. I cannot find from the record on what day of the month of January the term of the circuit. court of Rockingham county, at which the judgments were rendered, commenced. If it was before the fifth of January, the judgments would date prior to the execution of the deed, and at that date and after, the debtor, John Y. Long, was neither possessed nor entitled to the land, and the judgments against him, by the terms of the statute, could not attach to the land which was not his, but which was in the possession of the appellants under a parol contract which was unaffected by the registration acts. (Code of 1878, ch. 182, § 6). The subsequent conveyance of the title to them *669by the debtor could not be construed as an acquisition of title by him, and consequently could not, by the terms of the statute, subject the lands to the judgment liens of his creditor.
But if the term of the court commenced subsequent to the 5th of January, so that the deed was executed prior to the judgments, it would, by the acts of registration, be void as to the judgment creditor ; but the case would come within the principle of Withers v. Carter, 4 Gratt. 407, which is reaffirmed and applied to the case of a parol contract in Floyd, trustee, v. Harding, &c., 28 Gratt. 401. In that case it was held that parol contracts for the sale and purchase of land were unaffected by the recording acts. Judge Staples, in whose opinion the other judges sitting concurred, with regard to the case where the deed is executed after the judgment is recorded, observes, that if the title of the purchaser is good against the creditor when the judgment is recovered, the bare statement of the proposition that it becomes invalid by reason of a subsequent execution of a deed by the vendor, is its own refutation. He then speaks with regard to the case of valid parol contract, so far executed as to pass the equitable title, and subsequently a deed of conveyance, which is not recorded, or if recorded at all, not until after a judgment recovered. This (he says) is the case as presented in Withers v. Carter, except there the contract was in writing, but the principle is the same. And he quotes Judge. Baldwin as saying in that case: “Ho deed of conveyance is necessary to confirm its validity (the executory agreement), and how an abortive attempt to obtain a valid conveyance- can destroy the pre-existing title is beyond my comprehension. Hor can I conceive what merger there can be in regard to creditors of the equitable estate in the legal title by force of a deed which as to creditors is a blank piece of paper.” Judge Staples also cites the case of Morton v. Robards, *6704 Dana’s R. 258, a Kentucky case, in which the same doctrine is held. And he adds, “it will not be denied that these principles apply with equal force to a pre-existing equitable estate, acquired under a valid parol contract.” And in á later case, Eidson v. Huff & al., 29 Gratt. 338, this court held: “When there is a parol agreement under which the purchaser is in possession, and which is valid without a writing, the subsequent execution of a writing cannot invalidate the title previously acquired without it.”
For the foregoing reasons we are of opinion to reverse the decree of the circuit court, and to dismiss the plaintiff's bill as to the appellants, with costs.
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 of the circuit court is erroneous, so far as it held that the judgments were a lien upon the tract of seventy-four acres of land situate in the county of Augusta, which was in the possession of the appellants, and which they held under a parol contract with John Y. Long, made anterior to said judgments, and that the rights of the judgment creditor were superior to the rights of the appellants, and that the judgment liens should be enforced against the said tract of seventy-four acres, and decreed the sale thereof, unless the judgment liens were satisfied and paid within ninety days from the rising of the court; and this court being of opinion that the purchase made by the appellants from the said John Y. Long of the said tract of seventy-four acres, in October or November,-, which has been subsequently conveyed to them by deed, was *671valid against the appellee’s judgment, it is decreed and ordered that the said decree of the circuit court, so far as it invalidates the rights of the appellants under said purchase and subjects their land aforesaid to the satisfaction of said judgments, be and the samé is hereby reversed and annulled, and that the appellants be quieted in the possession of the said tract of seventy-four acres of land. And it is ordered that the appellants recover against the appellee, The Hagerstown Agricultural Implement Manufacturing Company, their costs by them expended in the prosecution of their appeal and supersedeas aforesaid here, and also their costs by them expended in their defence in the said circuit court. It is further ordered that the plaintiff’s bill, as against the appellants here, be dismissed. And this cause is remanded to the circuit court of Rockingham county, for such further proceedings to be had therein in relation to other parties as may be deemed right and proper.
Degree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482059/ | Moncure, P.,
delivered the opinion of the court.
This is an appeal from certain decrees and orders of the circuit court of Roanoke county. The facts of the case, and the pleadings and proceedings in it, so far as it is material tó state them, seem to be substantially as follows :
About the 26th of March, 1872, Shepherd Pollard contracted with John M. Brosius to purchase of the latter one steam saw-mill and fixtures, one wagon, one log carrier and one extra large saw; the first at $1,500, the second at $145, the third at $125, and the fourth at $20, all aggregated together, at $1,790 or thereabouts, all on time. The said pi’operty was to have been delivered on or before the 20th of April, 1872, but was not in fact delivered until the 11th of June, 1872, on which day the said Pollard executed his negotiable note at ninety days for $145, and his three bonds each, for $546.66, with interest thereon from the- date thereof till paid, and payable ■eight, sixteen and twenty-four months after date,- respec*691lively. The said negotiable note was endorsed or assigned by said Brosius to John R. Steptoe, and the said bonds were made payable to said Steptoe—the said Brosius being, it seems, indebted to the said Steptoe on account of the said mill. On the same day on which the said property was delivered, and the said bonds were executed, to-wit: on the said 11th day of June, 1872, the said Pollard executed a deed of trust conveying the same property and a tract of land, two mares and two horses, to Robert S. Quarles, in trust to secure the payment of the said debts to the said Steptoe.
The said Pollard having, as was alleged, made default in the payment of a part of said debt, the said trustee, Quarles, on the 23d of June, 1874, in pursuance of the said deed of trust, advertised for sale the property thereby conveyed; but before it was sold, and on the day on which the sale was advertised to have been made, to-wit: the 14th of July, 1874, the said Pollard applied for and ■obtained an injunction of said sale from the judge of the circuit court of Roanoke county.
In the bill on which said injunction was obtained, the said Pollard, the complainant, charged, among other things, that “ the said property was to be delivered on or before the 20th April, 1872, and to be delivered in good working order, all to be taken to pieces, overhauled, repaired, put in number one working order, and put up again so as to work in good condition on or before said 20th April, 1872, all whereof said Brosius guaranteed to complainant; that on the 11th June, 1872, the said property was all delivered, except a few parts of the wagons, which never were delivered; that the extra large saw never was put up and could not be got to work, but heated and bent and got warped and limber, and would not work and was perfectly worthless, whereby complainant was damaged $145; that complainant wrote to said Brosius three different times requesting *692Mm to take the said extra saw back or compensate complainant in some way, so that he would not be a loser thereby, but received no answer; that the engine had never been overhauled and repaired and put in good working order, as agreed upon, before its delivery to the complainant, but only blacked up, so that one of the flues'was in such condition that it had to be plugged by the said Brosius himself after its delivery, and never has been and could not be used at all since its delivery, and that in other respects it was defective and out of order, so as greatly to impair its value to the amount of at least $350; that from the 20th April, 1872, complainant was expecting the said steam saw-mill and other property, and was induced so to expect it by frequent letters from the said Brosius promising to deliver same from week to week, and so was kept from farming and other business to his damage to the extent of at least $200; that complainant paid a negotiable note for $145, given on said purchase; that one bond executed by complainant for $546.66, due 11th June, 1874, was assigned to Charles L. Cocke, to pay which complainant has already made arrangements or has actually paid the whole; that soon after the delivery of said property complainant paid $65 in one milch cow to said Brosius; that complainant knew nothing of steam saw-mills and engines and fixtures at the time of the purchase and delivery thereof to Mm by said Brosius; that said Step-toe and Brosius were present together at the time of the sale of said property to complainant, but the latter was not aware of the connection of said Steptoe with the transaction until afterwards. “ Complainant looked upon said Brosius as the actual owner of the said property, and gave the deed of trust as aforesaid merely to gratify him, and therefore let him have the cow at $65; that he was induced so to look upon said Brosius by the actions of said Brosius and said Steptoe; that it was not until *693•six months or more afterwards that complainant found out that the said Steptoe was the real owner of the said property,” &e., &c.
The said Steptoe, Quarles and Brosius were made defendants to the said bill and answered the same. The said Brosius in his answer, among other things, says: “ That in March, 1872, this respondent being indebted to his co-defendant, John R. Steptoe, and desiring to make an arrangement to pay the debt by appropriating the proceeds of the sale of the property specified in the bill, met the plaintiff and said Steptoe at Salem depot some few weeks after having bargained with the" plaintiff' for a sale of said property, and bn that day and at that place delivered the property to the plaintiff in the exact condition in which he had purchased it, and by agreement then and there between them the plaintiff executed his notes or bonds, not to this respondent, hut to the said Steptoe, and to secure their payment, the plaintiff that day, in pursuance of an agreement then made at the depot with said Steptoe, executed the deed of trust in the bill mentioned. This respondent was no party to that deed, and is in no way interested in it, the same being matter ■of arrangement and contract between Pollard and Step-toe to their mutual satisfaction. This respondent denies most positively that there was any warranty of the engine or any of the machinery, and affirms that he refused to warrant it, but left the plaintiff to judge of its value. He denies that there was any delay in its delivery, as charged in the bill, but that the property was delivered at Salem depot on the day the notes or bonds and deed of trust were executed, and was there and then received and hauled away by the plaintiff without objection or complaint of any kind,” &c., &c. “Respondent denies that any of this property was owned by bis co-defendant, Steptoe, when sold to the plaintiff, but was the bona fide property of this respondent, and Steptoe, as a creditor of *694respondent, agreed to take the notes or bonds of the plaintiff, properly secured, and give respondent credit therefor. Respondent denies the allegation that the plaintiff sustained damage in his farming operations by any delay in receiving the mill, but on the contrary, told respondent if he had had it sooner than he got it, he could not have used it by reason of other engagements. Respondent denies that there was any partnership between himself and said Steptoe up to and at the time of these transactions, or in the ownership of said property.” “ This respondent denies in toio every allegation of the bill imputing fraud, misrepresentation, covin or deceit to him, and insists that when the plaintiff received the property he had purchased from respondent, and recognized the transfer of the price by respondent to said Steptoe, and executed his notes or bonds to said Steptoe, and a deed of trust to secure them, it terminated all interest on the part of this respondent in the subject.”
The answer of Quarles is not material to be stated.
In the answer of Steptoe he says, among other things, which need not be here repeated, “ that he has read the answer of his co-defendant, John M. Brosius, to the bill in this cause, and he hereby adopts the same as a part of this answer, so far as the statements thereof are applicable to his defence.”
Many depositions w’ere taken and hied in the cause on the side both of the plaintiff and defendants. They-are very conflicting in their statements; those of the plaintiff' tending strongly to sustain the allegations of his bill, while those of the defendants tend stroDgly to sustain the contrary. It is not material to repeat here the details of the testimony, which is all set out in the record.
On the 9th of October, 1875, the cause came on to be heard upon the bill and exhibits, answers, depositions and motion of defendants to dissolve the injunction, and was argued by counsel; on consideration whereof, the *695court overruled, for the present, the motion to dissolve the injunction, and decreed “that a jury be summoned to try, on the common law side of this court, the and determine what amount of damage, if any, the complainant, Pollard, has sustained by any breach of warranty or misrepresentations falsely made by the defendant, John M. Brosius; said Brosius, at the time of making said representations, knowing them to be false as to the condition of the steam saw-mill sold by the defendant, Brosius, to the complainant, Shepherd Pollard ; upon the trial of which issue, the said Pollard is to hold the affirmative and the defendant the negative.”
The said issue was accordingly tried by a jury which, on the 7th day of October, 1876, found a verdict in these words: “ We, the jury, find for the plaintiff and assess his damages at six hundred dollars;” which verdict was ordered to bo certified to the chancery side of the court.
On the trial of the issue, the defendants excepted to an opinion of the. court given upon said trial, and tendered a bill of exceptions, which‘was accordingly signed and sealed by the court and made a part of the record; from which it appears “that on the trial of the issues in the cause, testimon3r having been introduced tending to show that the defendant, Brosius, sold to plaintiff, Pollard, the mill and engine in the proceedings mentioned; that the defendant, Steptoe, who was surety for defendant, Brosius, for the purchase money for the said steam saw-mill, and who was authorized (as well as was defendant, Brosius), to sell the same, and who was anxious to sell the same, and was looking around for a purchaser of the same, accompanied the complainant, Pollard, and the defendant, Brosius, from Liberty to the place where the steam saw-mill then was, a distance of eight miles, in order to effect the sale of the same, and was present pending part of the negotiations for the sale of the same, hut was not present at the conclusion of the said sale; *696that the said Brosius was the owner of the said engine, and at the time of sale agreed that he would put the ■ engine in repair so that the same should be as good as new; that the engine and mill was to be delivered at the Salem depot on the Atlantic, Mississippi and Ohio railroad ; and that the said Brosius should set and start the said steam saw-mill in good running order; that subsequently the engine and mill was brought to said depot, and that said Brosius, the defendant, Steptoe, and complainant being present, the said mill and engine -was delivered to and received by the complainant, who, accompanied by said Brosius, took same to Frautz’s farm, where the same was to be set up and started in good running order; but before the same was delivered, the plaintiff asked Brosius if had put the engine in good order, and was told by him that he had not, but that he would do so; that it was then agreed between Brosius, Pollard and Steptoe that the said plaintiff (Pollard), should execute his bonds to said Steptoe, who was a creditor of said Brosius for the purchase money of said mill and engine, and a deed of trust to secure the payment of the same; that accordingly the plaintiff did execute and deliver his bonds to the said Steptoe for the payment of the purchase money, and did execute the deed of trust to secure the payment of the same, the said Steptoe being then and there a creditor of said Brosius, who accepted said bonds and deed of trust in payment of said indebtedness of said Brosius to him. The plaintiff then asked a witness to state and detail conversations and declarations made by said Brosius at the said depot before the execution of the said bonds and deed of trust, and in the absence of said Steptoe, and on Frautz’s farm whilst Brosius was engaged in setting and starting the said steam saw-mill under the said contract of sale, after the execution of the said bonds and deed of trust, and in the absence of the said Steptoe, in respect to the condition and contract in regard to said *697engine; to which testimony, giving the declarations of said Brosius after the execution of the bonds and deed of trust, and in the absence of said Steptoe, as to what were the terms of said contract, and how far said contract had been performed, the defendant, Steptoe, by counsel, objected; but the court overruled the objection and permitted said testimony to be given to the jury; to which opinion of the court the defendant, Steptoe, excepted.”
A verdict having been found for the plaintiff’ on the issue as aforesaid, the defendant, Steptoe, moved for a new trial of said issue, because:—•
1. The verdict was contrary to the law and the evidence.
2. The court admitted improper and illegal testimony to go to the jury, in this, that the admissions and statements of John M. Brosius as to the terms of sale, and his failure to comply with his part of the contract made after the execution of the bonds and deed of trust, were allowed to be given in evidence to affect the rights of said Steptoe.
3. The verdict is not responsive to the issues directed.
4. The damages are excessive.
On the 14th of October, 1876, the cause came on again to be heard upon the papers formei’ly read and the certified verdict of the juxy upon the issue aforesaid and the said motion for a new tidal of said issue, and was ai’gued by counsel; upon consideration whereof the court overruled said motion and decreed that one of the commissioners of the court should take an account of the payments made by the complainant, or any one for him, in discharge of his indebtedness for the steam saw-mill aforesaid, and the balance due upon said purchase, and make report, &c. And by consent of pai'ties the court further decreed that the sheriff of the county should be appointed receiver in the cause to take charge of the steam saw*698mill and sell the same, either privately or by public auction, as in his judgment would best promote the interests of all concerned, upon a credit of twelve months, except as to so much as was necessary to defray the expenses of sale which might be required in cash; and said receiver was directed to advertise the sale and report his proceedings to the coui’t. And exception being taken by the defendants to the opinion of the court overruling their motion for a new trial of the issue by a jury as aforesaid, and a certificate of the facts asked for, the court declined to give such certificate because the evidence was conflicting, hut certified the evidence to have been as set forth in the certificate contained in the record, marked “certificate of evidence.”
Commissioner Palmer made a report in pursuance of said decree of the 14th of October, 1876, to which l’eport sundry exceptions were taken by the plain tilt'; and the receiver appointed by said decree also made his report in pursuance thereof, showing that after advertising the said steam saw-mill in the Salem Register for sixty days, and no bidders appearing to buy at the public sale- so advertised, lie sold the same to John Ii. Sicptoe privately, by and with the consent of Shepherd Pollard, for the sum of $850, of which sum $28 was paid in cash, and for the balance ($822) bond was taken from said Steptoe, with surety on twelve months’ time.
On the 20th of June, 1877, the cause came on to be heard upon the papers formerly read, the report of Commissioner Palmer and the exceptions thereto, on consideration whereof the court decreed that the said verdict be approved and confirmed, that the plaintiff’s first exception to said report be sustained, and his other exceptions thereto overruled. “And the court being of opinion that the damages found by the jury are for breach of warranty or misrepresentation at the time of the contract, the amount found by the jury should be *699entered as a credit to the complainant as of the date of the contract, and the court having the report of Commissioner Palmer corrected by said commissioner accordance with this opinion, as appears by statement , marked ‘ A,’ filed as part of the decree; and it appearing from said corrected statement that the amount due and unpaid by complainant to said Steptoe for said saw-mill, &c., was the sum of $602.06, as of April 1st, 1877, with interest on $524.62, part thereof from said date, which sum is to be reduced by $807.16, the worth at that time of the bond for $322 executed 19th January, 1877, by said Steptoe as purchaser of the said steam saw-mill, and payable at twelve months, shows as follows: An indebtedness of $602.06 less $307.16, or $294.90 as the balance remaining unpaid from the said complainant to the said Steptoe, as to which amount the injunction heretofore granted is dissolved, and as to the residue of the claim of the said Steptoe, said injunction is perpetuated; and it is decreed that the said Steptoe do recover of the complainant the said sum of $294.90, with interest thereon from the 1st day of April, 1877, till paid; and it is further decreed that unless the sum of $294.90, with its interest aforesaid, be paid by the complainant to the said Steptoe within sixty days from this date, then said Quarles, as trustee as aforesaid, shall proceed to enforce the deed of trust in the bill and proceedings mentioned as to the property in said deed mentioned (besides the steam saw-mill), so far as it may be necessary to pay the said sum of $294.90, with its interest and the cost and expenses of sale. And the bond of $322 executed by Steptoe having been directed to be credited on his claim against the complainant, Special Receiver W. W. 13rand is directed to cancel said bond and deliver it to said Steptoe.” And there was then a decree for the complainant’s costs against the defendant Steptoe, and that *700they may he set off against the said sum of $294.90, and its interest aforesaid, so far as the same may extend.
The appellant complains of being aggrieved by the orders and decrees made in this case, and especially the decree of the 20th day of June, 1877, and assigns the following errors in the same, which will be noticed in their order of assignment:
“1. The injunction should have been dissolved upon the motion first made, because it appeared that said complainant executed the bonds to your petitioner and the deed of trust to secure their payment, and thereby promised to pay said sums to your petitioner after said steam saw-mill had been received, and without informing your petitioner of any warranty or representation 'made by said JBrosius, and without making known to him any claim, .contingent or otherwise, against said Brosius, to be set off by said complainant against said bonds, and said complainant is thereby estopped from setting up any such claim against your petitioner.” 2 Rob. Prac. p. 267 (old ed.), and cases cited.
The court below did not err in this respect. The case is palpably different from the cases cited and relied on by counsel in support of this assignment of error. In those cases there was a manifest intention on the part of the debtor, in becoming bound to the third party, to waive any defences, legal or equitable, he may have had against the original creditor. The transaction with the new creditor, was, in effect, a novation of the debt, whereas in this case there was no intention of the parties to novate the debt, nor that any right of either of the original contracting parties, inter se, should be surrendered. Shepherd Pollard was willing, and he so declared, to pay any debt he might owe in the transaction to John M. Brosius, or any other person he might designate. It was immaterial to him to whom he paid it. He *701might have given his bonds to Brosius, who might have assigned them to Steptoe. Had he done so, he would in the absence of a special agreement to the certainly not have surrendered any of his defences, legal or equitable, to the assignee. The actual transaction was in effect the same thing. Instead of giving his bonds to Brosius to be assigned to Steptoe, he gave them directly to Steptoe. He derived no benefit whatever from that mode of settlement, while Steptoe was thereby himself greatly benefited. Instead of having Brosius alone for his debtor without any security for the debt, he acquired the bonds of Pollard secured by deed of trust, not only on the saw-mill and fixtures, but also on a large additional estate, real and personal, and Brosius himself remained still bound for the debt, but not as assignor. The negotiable note for §145 was payable to Brosius, who endorsed it to Steptoe, and the bonds would no doubt have been payable and assigned in the same way, but that the course actually pursued was more direct and simple. Pollard says that he considered Brosius as still the owner of the debt, notwithstanding the bonds were payable to Steptoe; which he supposed was induced by a purpose which he named. But whether that be true or not, the effect is the same, in the absence of a clear intention to the contrary. Instead of which, it is manifest from all the surrounding facts and circumstances, that Pollard intended by the form of the transaction to surrender no defence, legal or equitable.
The distinction between this case and the eases cited on this branch of the subject by the counsel for Steptoe is manifest. Those cases are Buckner, &c. v. Smith, 1 Wash. 296; Hoomes, ex'or of Elliott v. Smock, Id. 389; Davis'1 adm’r v. Thomas, &c., 5 Leigh, 1; Pettit v. Jennings, &c., 2 Rob. R. 676. But it is needless to state and review these cases, arid we will proceed to consider the next assignment of error, which is:
*702“ 2. It was error to direct an issue in said cause, because it was clear from the evidence that the mill had been delivered in good order, and that the complainant was fully satisfied with it and made repeated promises to comply with his contract to pay off his bonds long after he received said mill.”
The grounds of defence relied on in the injunction bill were palpable, if true. Had they been confessed by the answers, they would certainly have entitled Pollard to the relief which he claimed. They were denied by the answers of Brosius and Steptoe, to which the plaintiff replied generally. The evidence on each side was conflicting. The evidence of the plaintiff fully sustained the allegations of his bill, while that of the defendants, Brosius and Steptoe, was to the contrary. What, in such a state of doubt and difficulty, was the court to do but to direct, an issue to be tried by a jury? which was accordingly ordered. That it was proper so to order, is manifest, and such propriety is shown by the cases cited by the counsel for the appellees, if any citation of authority can be necessary on such a question. Those cases are Isler, &c. v. Grove, &c., 8 Gratt. 257; Mettert v. Hagan, 18 Id. 231; Hord’s ad’mr v. Colbert, 28 Id. 49. The complainant’s repeated promises to make payment, referred to in this assigment of error, no doubt had reference to what he actually owed after deducting all the discounts to which hq was entitled. But evqn if they referred to the whole original debt they would not estop him from making any defence to which he might otherwise have been entitled, as such promises were made without consideration. We think the court did not err in ordering an issue.
. “3. If an issue was proper, your petitioner should not have been made a party defendant, and required to defend the same for the reason that the issue to be tried was solely a matter between the said complainant and the *703said Brosius, as by his contract the said Pollard, in effect, agreed to look-to said Brosius alone for reparation in case he was injured, and your petitioner agreed to look to said complainant alone for the amount of said bonds, and said Brosius was relieved from his indebtedness to your petitioner to the amount of said bonds.”
We think this assignment of error is wholly unfounded in fact, as plainly appears irom what we have already said in regard to the first and second assignments of error, and nothing more need therefore be said in regard to it. The next assignment of error is—
“4. If your petitioner was to be affected by said verdict found upon said trial, then it was error in said court to allow to go to the jury as evidence the declarations made by said Brosius after said contract was entered into, and in the absence of your petitioner.”
There are several reasons why we think this assignment of error is not well founded. In the first place, Brosius and Steptoe were both interested in the sale made by Brosius to Pollard. But Brosius was the vendor and made the contract of sale for the benefit of himself and Steptoe. Steptoe was sometimes present and sometimes absent, pending the negotiation between vendor and vendee, and before and at the execution of the bonds and deed of trust. The transaction was not concluded on the last-mentioned occasion; after the delivery of the property and the execution of the bonds, note and deed of trust, something still remained to be done by Brosius and Pollard in execution of the contract. The mill was to be set up and set in motion under the superintendence and direction of Brosius, who was a machinist and had full experience in the matter, while Pollard was ignorant and knew nothing on the subject, as' he declared to Brosius. Immediately after the delivery of the property and the execution of the bonds and deed of trust at Salem, Brosius and Pollard went together to Prautz’s *704farm with the saw-mill to set it up and start it, under the said contract of sale. The “ declarations of said JBrosius, at the said depot, before the execution of the said bonds and deed of trust, and in the absence of said Steptoe, and on Prautz’s farm, whilst Brosius was engaged in setting up and starting the said steam saw-mill, under the said contract of sale, after the execution of the said bonds and deed of trust, and in the absence of said Steptoe, in respect to the condition and contract in regard to said engine,” were parts of the res gestee, and as such were admissible evidence. Steptoe trusted to Brosius to make and execute the contract, and in effect made him his. agent for that purpose. Pollard supposed that Brosius alone, and not Steptoe also, was interested in it, notwithstanding the form of the bonds and deed of trust. But even if he knew what was the interest of Steptoe in the transaction, he was yet warranted in dealing with Brosius as he did till the transaction was closed by setting up and starting the saw-mill as aforesaid. In the second place, it does not appear what were the declarations of Brosius which were objected to, and therefore it does not appear that they were material, or that Step-toe could have been injured by admitting them as evidence. And in the third place, the question arose upon the trial of an issue out of chancery, and it devolved on the court to render a decree upon the proper pleadings and proofs in the case, which it might do without regard to any improper evidence introduced on the trial of the issue, or even to the verdict itself, the only object of which is to inform the conscience of the court, which may be otherwise sufficiently informed. In this case we think the decree is fully sustained by the evidence, even if the portion which was objected to had been excluded. Indeed, that portion seems to be only cumulative.
This court had occasion in Brockenbrough's ex'ors v. Spindle’s adm’rs, 17 Gratt. 21, 27, 28, and in Powell & *705wife v. Manson, 22 Id. 177, 191, 192, to comment on the nature of an issue directed by a court of chancery in an ordinary suit, and the effect of the verdict on such an issue. In the latter case, in which one of the questions was whether the court below erred in refusing to grant a new trial of an issue out of chancery, upon the ground that the verdict was contrary to law and the evidence, which was set out in a bill of exceptions, Judge Staples, in an opinion in which the other judges concurred, said: “This court having before it this evidence, all the depositions and exhibits read at the hearing, is competent to decide whether the purposes of justice required another trial to be had. The rule in such cases is well settled. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. And although there may have been a misdirection, or evidence may have been improperly rejected, it will not grant a new trial if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected.” And among other references which he made was one to Barker v. Ray, 2 Russ. R. 63, in which Lord Eldon’s language is very pertinent to the present subject. In George & als. v. Pilcher & als., 28 Gratt. 299, this court reversed the decree of the court below on the ground that the court erred in not ordering a new trial of the issue which had* been directed and tried in the case, on the ground of the improper exclusion of evidence offered on the said trial. Eut in that case the evidence introduced on the trial was not certified in the record, and it was impossible for this court to say that the party complaining was not injured by the exclusion of evidence aforesaid.
Ve are therefore of opinion that the court below did *706not err, at least to the prejudice of the appellant, in respect to the matter of the fourth assignment of error; and now as to the fifth.
“ 5. The court erred in overruling the motion of your petitioner for a new trial, for the reason assigned in the fourth assignment of error; and further, because the verdict was not responsive to the issue, being too general and indefinite, and because the damages were excessive. All the evidence as to damages was of so general and indefinite a nature that the jury could arrive at no sum but by guessing it, except as to damage arising from defects in the property, and the complainant himself does not claim in his bill on this account more than $350, nor is it anywhere proven to have been over $500; and moreover the issue by its terms confines the enquiry to damages arising from defects of the property.”
"We are of opinion that the court below did not err in this respect. The certificate is of evidence only, and not the facts proved. If the evidence in favor of the appellee when in conflict with that in favor of the appellant be credited in deciding the case in the appellate court, which is the true rule on the -subject, we think there can be no room for doubt on the question, and that though the evidence objected to on the issue be excluded, is as shown in considering the fourth assignment of error. We think the verdict was responsive to the issue, and was not too general or indefinite, and that according to the evidence, especially that in favor of Pollard, the damages were not excessive. And now in regard to the last assignment of error.
“ 6. It was error to allow the sum found by the jury to be set off against the demand of your petitioner, for the reason that it was admitted by the complainant and proven by other witnesses, that before he executed the bonds and deed he was told by said Brosius that he had not done all he promised as to repairing the said steam *707•saw-mill, but that he would do whatever might be neees • sary to put it in good running order; and relying upon this promise, complainant afterwards executed his to your petitioner and promised to pay them as they became due, said complainant well knowing at the time that your petitioner by receiving said bonds released said Brosius from his indebtedness to him to the full amount of said bonds.”
"We have already fully shown that this assignment of error is groundless, by what we have said in regard to the other assignments of error, and therefore think the court below did not err in this respect. And upon the ■whole, we think there is no. error in any of the orders and decrees complained of, and that they ought to be affirmed.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482062/ | Moncure, P.,
delivered the opinion of the court. After stating the case he proceeded:
There is but a single assignment of error in the petition for an appeal in this case, which is .in these words :
“ The single error complained of is in overruling the demurrer to the bill of tbe complainants, and thereby permitting the complainants to proceed in one bill against *737■several persons in regard to matters entirely distinct and independent, and as to which the defendants had no common or related interest.”
And the petitioners proceed as follows in their said petition :
“The bill charges (page 5) that Abraham Nulton, by deed of 24th June, Í869, conveyed to Joseph A. Nulton, one of the petitioners, certain real estate in trust for Sarah Nulton. And that this deed was wholly without consideration, and was illegal and void; that on the 10th of November, 1869, and on the 23d February, 1870, the said Abraham Nulton conveyed to Joseph A. Nulton certain other pieces of i’eal property 6 for which no adequate consideration hath been given him; ’ and the said Joseph A. Nulton is required to make discovery of the settlement referred to in the deeds to him, and to exhibit a full settlement of his partnership accounts with his father, the said Abraham Nulton.
“ And the prayer of the bill is, that the deed to Sarah Nulton and the two deeds to Joseph A. Nulton may be set aside, and that he be required to settle his accounts as partner of his father.
“ Petitioners are advised that this bill is decidedly multifarious—Joseph A. Nulton protesting that he has nothing to do with the property conveyed to Sarah Nulton, and by her devised to his co-petitioners, and the other petitioners protesting that they have no interest or concern in the two deeds to Joseph A. Nulton, or in the settlement of his partnership account with his father. 1 Daniel, Ch’y Pr. p. 334; Story’s Eq. Pl. § 271; Dunn v. Dunn & als., 26 Gratt. 291; Sawyer v. Noble, 55 Maine, 227.”
The court is of opinion that the circuit court did not err in overruling the demurrer to the bill, and that the same is not multifarious. This, we think, plainly appears from *738the authorities referred to in the petition and the notes of argument. Story’s Eq. Pl. §§ 271, 285-6; Segar, &c., v. Parish, &c., 20 Gratt. 672; Jones’ ex’ors v. Clarke & als., 25 Id. 662, 676; Dunn v. Dunn & als., 26 Id. 291; Brenkerhoff v. Brown, 6 Johns. Ch. R. 139; Fellows v. Fellows, 4 Cow. R. 682. It is true, as was said by Lord Cottenham in Campbell v. Mackey, 1 My. & Cr. 603, in the passage quoted from his opinion in that case by the counsel for the appellants: “ To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition is, upon the authorities, utterly impossible. The cases upon the subject are extremely various, and the court in deciding them, seems to have considered what was convenient in particular circumstances, rather than to have attempted to lay down any absolute rule.” Tet, in most cases there is little or no difficulty in deciding the question whether or not multifariousness exists in the particular case, and such, in our opinion, is this case.
The complainants, William B. Isaacs & Co., claimed to be creditors of Abraham Fulton, under assignments to them of several of his notes by the J3ank of the Valley in Virginia and the Farmers Bank of Virginia; and they brought their suit to enforce the payment of their claim out of the estate of their debtor. He had little or no personal estate, and all his real estate he had conveyed to and for the use of his wife, Sarah Fulton, and his son, Joseph A. Fulton, which conveyances were charged by the said creditors to be voluntary and fraudulent and void as to his creditors, and especially the complainants. They, therefore, sought by their said suit to remove these obstructions out of their way, without which they could not possibly obtain satisfaction of their claims, and for that purpose they had, necessarily, to make not only the administrator of Abraham Fulton, but also the claimants under the said alleged fraudulent convey*739anees, defendants to the bill; and as Joseph A. Shilton claimed to have become the purchaser of the property conveyed to him by his father, the said Abraham Shilton, by means of a balance alleged to have been due to him on a settlement of a partnership account between them, the complainants prayed in their bill that the defendant, Joseph A. ITulton, might “ make a complete discovery of the consideration upon which the two deeds to him were based, and if essential to the proper understanding of the sam.e, that his account as late partner of the decedent may be settled.” We think that all the persons made defendants to the suit were proper and necessary parties, and that the conditional prayer for a settlement of the partnership account was proper and unobjectionable, if not necessary. ' We have said so much on this subject, not because we had any difficulty about it, but because the learned counsel for the appellants made it the chief, if not the only ground of complaint, at least in the petition for an appeal. We will now proceed to consider wffiether there be any error in any other portion- of the decree, which was complained of as being erroneous, though in different respects, in the arguments of the counsel, both of the appellants and appellees.
The court is further of opinion, that the circuit court did not err in decreeing that the property conveyed by Abraham JMulton to Joseph A. bfulton, in his own right by the two deeds, of which copies marked U and O, áre filed as exhibits with the bill, is not liable for the payment of the complainants’ claims.
If the orders of the circuit court of the United States in the record mentioned for the payment of three out of the four claims of the complainants had been valid judgments, and liens as such on the real estate of the debtor, Abraham Aulton, notwithstanding they were never registered, then the said property would have been liable *740for the payment, at least of the said three claims, whether the said two deeds were voluntary and fradulent or not.
But the court is of opinion, that the said orders of the circuit court of the United States were not valid judgments against the said Abraham Uulton. The said court would have had no jurisdiction to render such judgments, even if actions of debt had been brought in the said court by the Bank of the Valley in Virginia against the said Ahraham Uulton for the recovery of the_said claims, as both parties, .plaintiff's and defendants, resided in the state. "We do not mean to say that judgments rendered in such actions would have been regarded as void in any collateral proceeding. But we are of opinion that where, as in this case, the creditors, instead of proceeding by the common law action of debt to recover their claims, obtain an order for their payment on a mere summary rule to show cause—such order, though no defence be made to the rule, has not the force and effect of a judgment, and is not a lien on real estate, whether registered or not. The order is void on its face as a judgment. The defendant is entitled to the benefit of a common law action in which he can regularly make his defence, and have the benefit of a trial by jury; and he is entitled to be sued in the courts of his own state, and is not suable in the federal courts, even in an action brought against him alone. Much less can he be proceeded against by a mere summary rule and order in a suit brought in one of the federal courts against his creditor by another person or corporation. An order might, no doubt, have been made in that suit for the collection of debts due the defendant and liable to the claim of the plaintiff. But such collection, if it could not be made without legal proceedings, would have to be made by action at common law in a court.of competent jurisdiction, just as if such debts had not beén assigned or were still *741due to the original creditor. The debtor would lose none of his rights of defence by the assignment.
The true doctrine of the law on this subject is, in our opinion, correctly laid down in the opinion of the supreme court of the United States, delivered by Mr. Justice Field in Windsor v. McVeigh, 3 Otto R. 274. “The doctrine invoked by counsel,” said the court in that case, page 282, “that where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is- undoubtedly correct as a general proposition; but like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as civil or criminal, or to particular modes of administering relief, such as legal or equitable,” &c. “Though the court may possess jurisdiction of a cause, of the subject matter and of the parties, it is still limited in its mode of procedure, and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be for a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in that case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous, they would be absolutely void, because the court in rendering them would transcend the limits of its authority in those *742cases.” “ So a departure from established modes of pi’Ocednre will oftfen render the judgment void; thus the of ajperson charged with felony, upon conviction by the court, without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act of no force beyond that of an advisory proceeding of the chancellor; and the reason is, that the courts are not authorized to exert their power in that way.”
According to the principles thus laid down, the orders in question have not the force and effect of judgments. There is nothing in those principles at all in conflict with the opinion of this court, delivered by Judge Christian, in the case of Lancaster v. Wilson, 27 Gratt. 624. The ' distinction between the two is sufficiently obvious without any comment upon them here.
If the orders aforesaid were judgments, a very interesting question would arise, whether registration of those orders would have been necessary to make them liens on the real estate of the debtor; but as they are not judgments, it is unnecessary to consider that question.
It follows, therefore, from what has been said, that the property conveyed to the said Joseph A. Hulton, as aforesaid, is not liable for the payment of the complainants’ claims. His answer in response to an allegation of the bill positively denied that the deeds were executed with fraudulent intent, and set out the valuable consideration on which he alleged that they were founded, and there is no proof on the other side. The court, therefore, rightly considered that there was no fraud in the said deeds, and decreed accordingly.
The court is further of opinion that the circuit court did not err in the opinion that from the evidence the conveyance from Abraham Hulton to Joseph A. Hulton, as trustee for Sarah Hulton, which is filed as exhibit H *743with the complainants’ bill, was voluntary and without consideration, and in, therefore, decreeing that the said conveyance be set aside so far as the claims of the complainants are concerned, and that the property thereby conveyed he subjected to the payment of said claims. Blow v. Maynard, 2 Leigh, 29.
The court is further of opinion that there is no error in the said decree, and that the same ought therefore to be affirmed, which is ordered accordingly.
Decree aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482063/ | Christian, J.
This case is brought up by appeal from a decree of the circuit court of Rockingham.
The originial bill was filed by the executor of J. W. Blose, who sued for himself and all other creditors of Jacob Miller who might make themselves parties to the suit.
Its object was to subject the real estate in the hands of the heirs of Jacob Miller to the payment of his debts. The bill sets out certain judgments recovered against his administrator after his death, and the executions issued thereon, returned by the sheriff, “ no assets in the hands of administrator ”; and after alleging that the said Jacob Miller died seized of considerable real estate, now in the hands of his heirs, and that the rents and profits of the real estate for five years will not pay these judgments, asks that the same may be sold and the proceeds applied to the payment of these judgments. The bill further charges-that the administrators have never settled any account of their administration on the estate of said Jacob Miller, and asks for a decree compelling a settlement of such account, and that an account may also be taken of the debts of the decedent. The heirs and administrators are made parties to this suit.
The heirs of Jacob Miller were his son, "William H. Miller, and his daughter, Mary, who intermarried with-John O. Walker. William H. Miller and Walker had *747qualified as administrators of Jacob Miller. They answered the bill. They allege in their answers that they had settled up the personal estate of their intestate, and that there was not enough of the personal estate to pay his debts; that the personal effects which came into their hands were sold in October, 1863, for Confederate currency, and that in many instances the creditors refused to receive that currency. They admit that Jacob Miller left a tract of land containing 732 acres, but affirm that the rents and profits would be sufficient to pay his debts in five years. This was the only issue made by the original bill and answers thereto. The circuit court, at its September term, 1870, rendered a decree directing one of its commissioners to “ take an account of the outstanding liabilities of the estate of Jacob Miller, deceased, and their priorities, if any, and also to settle the administration accounts of the defendants, Walker and Miller, as administrators aforesaid, and to ascertain the real and personal assets belonging to said estate.”
A commissioner of the court duly proceeded to execute this decree, and upon the return of this report, it was excepted to by the defendants, Miller and Walker, by various exceptions filed by them. The only one now necessary to notice, is that which relates to the report as to the real estate of the decedent. This is excepted to upon the ground that the tract of 732 acres was not, in whole, the property of the said Jacob Miller; but that he was the owner of only one-half thereof. The defendants filed with their exceptions a deed from Stevens and wife, conveying the said tract of land to Jacob Miller and one William Kite, jointly, bearing date August, 1831. Upon this report and exceptions thereto, the circuit court,, at its May term, 1871, directed a partition of said land, and appointed commissioners to make division and allotment of said land—one-half to the heirs of Sarah Miller (who was the daughter of William Kite, and wife of Jacob *748Miller), and the other to the creditors of Jacob Miller. But before the action of these commissioners had been - confirmed, the cause, “for reasons appearing to the court,” was remanded to rules, and leave given to complainant to file an amended and supplemental bill.
The amended and supplemental bill was accordingly filed at December rules, 1871. In this bill it was alleged by way of supplement and amendment, that in the yeai” 1843, the heirs of William Kite (of whom Sarah Miller, the wife of Jacob Miller, was one), made partition of all of the real estate of said William Kite among themselves, and executed and delivered to each other various deeds to carry out this partition. These several deeds are all made exhibits with this amended bill. Among them is a deed executed by all the heirs of Kite (six in number), except Mrs. Sarah Miller, conveying the 732 acre tract in fee to Jacob Miller for the consideration expressed on the face of the deed, of $8,000. The bill charges that the whole of this tract, instead of one-half thereof, as charged in the original bill, is subject to the debts of said Jacob Miller, and that the rents and profits of the same for five years will not be sufficient to pay the debts. This amended bill is answered by the heirs and administrators of Jacob Miller. The respondents, although they had admitted in their answer to the original bill that the’732 acre tract was the property of Jacob Miller, and in their amended answer to said original, they admit that one-half of said land was owned in fee by said Jacob Miller, they now, in answer to the amended bill,, deny that he was ever.seized in fee of any part of the 782 acre tract; they deny that he ever paid any part of the purchase money of said land during the lifetime of William Kite or afterwards; they aver that the greater part of the purchase money was paid by William Kite in his lifetime, and the residue thereof by his administrators after his death; they allege that the equitable *749title to said land never was vested in said Miller, and that the legal title which vested in him, was a trust for the benefit of his wife and children; they insist that as Jacob Miller paid no part (as they allege) of the purchase money, the 782 acre tract was a part of the real estate of "William Kite, and was so treated in the partition of that estate among his heirs; they admit the execution of the deeds exhibited with the amended bill by the heirs of William Kite, but insist that Mrs. Miller still held an equitable estate in the 732 acre tract; and that although the deeds of the Kites conveyed to Jacob Miller the legal title, he held the land subject to a trust in favor of his wife and her .heirs, and that therefore the land is not subject to his debts.
Depositions were taken by the defendants to sustain these averments of the answer to the amended bill; and the cause coming on to be heard at the October temí, 1873, the court held “that the children of Sarah Miller, wife of Jacob Miller, deceased, are entitled by descent from their mother, Sarah Miller, deceased, to a one-fourteenth interest in the said 732 acre tract of land in the bill and proceedings mentioned, and that the remainder thereof is subject to be sold to pay the debts of said Jacob Miller, deceased; that he died seized and possessed of the remainder (thirteen-fourteenths) of said land in fee simple, and that there was no resulting trust in said land for the benefit of said children of Sarah Miller.” • And the decree then directs commissioners appointed for that purpose to make partition of said land, assigning one-fourteenth thereof to the heirs of said Sarah Miller, as and for their inheritance in said land, free from all demands of whatever nature against Jacob Miller, deceased, and the residue thereof to said children of Sarah Miller as and for their inheritance and interest in said lands through their father, the said Jacob Miller, subject to be sold to meet and pay off all just demands against his *750estate. The commissioners were directed to report their proceedings under this 'decree to the court for its further order.
From this decree an appeal was allowed by one of the judges of this court on petition of the heirs of Mrs. Sarah Miller.
T am of opinion that there is no error in the decree of the circuit court.
Jacob Miller and his heirs had been in possession of the tract of land now claimed as the trust property of Mrs. Miller'¡for forty years and upwards. That possession was held under two deeds, one recorded in 1831, and the other in 1843. By both deeds the title is conveyed to Jacob Miller. Upon the face of these deeds no trust is created in favor of Mi’s. Miller or any one else. They are absolute,’ and convey the property to Miller without condition or reservation. The deed executed and recorded in the year 1831, is a deed from Stevens and wife, conveying 732 acres of land to 'William Kite and Jacob Miller, jointly, “in consideration of the sum of seven thousand eight hundred and eighty-four dollars, to them in hand paid by the said William Kite and Jacob Miller.” The deed executed and recorded in 1843, was executed by the heirs of William Kite, by which they conveyed their interest in said land “for the consideration of eight thousand dollars, to them in hand paid by said Jacob Miller,” “to the only proper use and behoof of him the said Jacob Miller, his heirs and assigns forever.”
Uow, after the lapse of nearly forty-five years, it is claimed that this land, though held by Jacob Miller for this great length of time, under deeds absolute on their face, and which have been on record nearly half a cemtury, informing his creditors and the world who chose to deal with him that the property was absolutely his, it is now claimed that he simply held the naked legal title, and that he w.as but a trustee for his wife and children, *751and that his creditors cannot subject it to the payment of their debts.
The evidence to establish such a claim in the face of absolute deeds so long of record, must be very clear and explicit, and such as to leave no doubt as to the character of the transaction. The basis of the claim of the appellants, that Miller held the land in trust for his wife and her heirs, is that the whole of the purchase money was paid by Kite in his lifetime, and by his administrators after his death.
Where the trust does not arise upon the face of the deed, but is raised upon the payment of the purchase money, which creates a trust which is to override the deed, the proof must be very clear, and.mere parol evidence ought to be received with great caution. Bank of U. S. v. Carrington, 7 Leigh, 581.
A resulting trust must arise at the time of the execution of the conveyance. Payment or advance of the purchase money before or at the time of the purchase, is indispensable; a subsequent payment will not by relation attach a trust to the original purchase, for the trust arises out of the circumstances that the moneys of the real and not the nominal purchaser formed at the time the consideration of that purchase, and became converted into land. See 1 Lead. Cases in Eq. p. 177, and cases there cited. In Botsford v. Burr, 2 John. Ch. R. 405,414, Chancellor Kent said: “ The trust must have been coeval with the deeds, or it cannot exist at all. * * * The trust results from the original transaction at the time it takes place, and at no other time; and it is founded on the actual payment of money, and on no other ground. It cannot be mingled or confounded with any subsequent ■dealing whatever.” Kow, the ground of a resulting trust is, that payment of the purchase money is an equity to have the land. But the mere fact of payment will not always be sufficient to raise a clear presumption of a *752trust. But evidence of intention must often enter into the fact whether that payment is such an equity under circumstances. The payment by the father of purchase money of land conveyed to his son, or to his nephew, or to his son-in-law, or to any one else towards whom the party stands in loco parentis, would not, of itself, create a resulting trust. See 1 Lead. Cas. Eq. 179, and cases there cited. So that if “William Kite had paid the whole of the purchase money for the whole tract of 732 acres, and the whole tract had been conveyed in fee to Jacob Miller, who had married his daughter, this would not of itself have created a trust in favor of William Kite and his heirs. It would have been regarded only as a gift to one towards whom the grantor stood in loco parentis.
But there is nó proof in the record to show either that the whole of the purchase money was paid by Kite, or that if so paid, it was under such circumstances as would create a resulting trust at the time of the execution of the conveyance. Indeed, the only evidence as to how or by whom the purchase money was paid, (except the deed itself, which acknowledges payment of the whole of the purchase money in cash by Kite and Miller), is a receipt endorsed on the back of a $600 bond showing that a balance of $200 on that bond was paid by the administrators. How, when, or by whom, the balance of the purchase money was paid, there is literally no evidence to contradict the receipt set out in the deed.
It is true there are in the record the depositions of two witnesses taken more than forty years after the execution of the deed, but they utterly fail to prove anything as to the payment of the purchase money. Neither of these witnesses knew anything, nor do they say anything, about the payment of the purchase money by Kite. One of them expresses the opinion that he did not think that from Miller’s pecuniary condition he could *753have paid for any considerable amount of real estate; though he said he made considerable money, and he knew of his borrowing money about that time from witness’ father. He says of Kite that he was a punctual man, and competent to pay such contracts as he made; and he estimates his property as worth $60,000. He does not pretend to say that Kite paid the whole of the purchase money, or what part he paid, or what part Miller paid; he knew nothing about it. The other witness does not even speak of the pecuniary condition of Miller, and is totally ignorant of any facts tending to show how and by whom the purchase money was paid. Surety upon this vague testimony, taken forty years after the transaction, this court will not assume without proof, and in the face of the deed of the parties, that Kite paid all the purchase money, and raise upon such evidence as this a resulting trust in favor of the heirs of Kite, to the exclusion of the creditors of Jacob Miller, who held this land for forty years under a deed of record ever since October, 1831. If a resulting trust can be set up under these circumstances, there would be no security of title to' any lands in this commonwealth.
But it is insisted that whatever may have been the interest of Jacob Miller, under the deed of 1831, from Stevens and wife to Kite and Miller, in the 732 acre tract, yet that in a partition of the real estate of William Kite, made among his heirs in 1843, one moiety of this tract was- regarded by Jacob Miller and his wife and the other heirs of William Kite, as an advancement by said Kite in his lifetime to his daughter Sarah Miller; and that the same was surrendered and thrown into hotchpot with the rest of the estate of said William Kite, and the said Sarah Miller thereby came in for equal distribution of said estate with the other heirs of said Kite; and it is argued that although the deed executed by the heirs of *754"William Kite conveys this land in fee to Jacob Miller for a consideration paid by him, as expressed by the deed, that he in fact held it under the deed of 1843 in trust for Ms wife, it being her land descended from her father, and of which she never divested herself.
Now, all this is mere theory and conjecture, not supported by any reliable or certain testimony, but contradicted by the terms of the deed under which for forty years Jacob Miller has held this land. Much stress is laid by the learned counsel for the appellants upon the answers of the defendants. These answers, as to the transactions alleged with reference to the partition of the real estate of William Kite, are not responsive to the hill, but in this respect are merely affirmative allegations, which they must prove.
It must be remembered that these answers are the answers of the personal representatives of Jacob Miller, the one a son-in-law, who, at the time of the transaction in 1843, was a stranger to the family, the other a son, who was then an infant, if, indeed, he was then in being at all. Their averments were of matters of which they could have no possible pensonal knowledge, and to which they were not called upon to answer or make discovery; hut were affirmative, not responsive, and must be regarded only as making up issues, but not as evidence in themselves. Lyons v. Miller, 6 Gratt. 427. Now, looking to the record,- we find that.the deed of 1843 is a.deed of bargain and sale between the heirs of Kite and Jacob Miller, by which the said heirs convey the land therein described to Jacob Miller for and “in consideration of the sum of $8,000 lawful money in hand paid them by the said Jacob Miller, to the only proper use and behoof of him, the said Jacob Miller, his heirs and assigns forever.” The answers allege that the expressed consideration was not the true consideration, and that this conveyance was intended to convey the land to Jacob Miller in trust for *755Mrs. Sarah Miller. This allegation is not sustained by any sufficient proof in-the cause. There is only one witness who speaks at all upon the subject. After stating that there was a partition and allotment of the real estate of William Kite, shortly after his death, and that Jacob Miller and all the heirs treated the 732 acre tract as part of the real estate of William Kite, he makes the following answer to the following leading questions put to him by counsel:
Question. “At said partition and division did Jacob Miller set up a claim to any other interest in said lands, except through his wife, as one of the heirs of said Kite, and did not he receive and accept said 732 acre tract of land as his wife’s interest in William Kite’s estate ? ”
Answer. “He did not claim any more than that; that Avas allotted to him at that time. He claimed this piece of land; wheD they divided they agreed that he should take this piece of land; he received and accepted it as his wife’s interest in William Kite’s estate;' he had it in his possession until his death.”
How, this is all the evidence on the subject. If this evidence was in direct contradiction of the terms of the deed, it would certainly not be sufficient to prove a different consideration from that stated in the deed, or to create a trust estate in favor of Mrs. Miller, and divert the title from Jacob Miller and his heirs, which the plain terms of the deed convey to him absolutely. But in point of fact this evidence is perfectly consistent with the deed. Miller, no doubt, did not claim any more land than the-witness says was allotted to him. Ho doubt he was satisfied to receive the moiety of the 732 acres as the full share of his wife in Kite’s estate, but the deed was made to him by the heirs because he had relinquished to them his life estate in four tracts of land, and it may be his whole interest in the personalty, which Avas larger. Taking every word of this witness, spoken upwards of thirty *756years after the transaction took place, as true, his evidence is not inconsistent with the deeds exhibited by the plaintiff. The consideration named in the deed is $8,000. This $8,000, it may be, consisted of the estimated value of the life estate of Miller in the seventh of the balance of the real estate, and the right to have assigned to him in fee one-seventh of the personal estate. The personal estate must have been very large. Kite’s whole estate is estimated by appellants’ witness at sixty thousand dollars, and the appellants estimate in their answer the real estate at $35,000. This would leave $25,000 of personalty to one-seventh of which Miller was entitled. Mrs. Miller was entitled to one-seventh of each of the four tracts in which she united in deeds of her husband to the other heirs. The estimated value of all these interests might have well made up the sum of $8,000. But the appellants claim that this 732 acre tract was the inheritance of Mrs. Miller, derived from her father, and that she never divested herself of her title therein by any act of hers, and that the title conveyed to her husband was intended for her benefit, and that though in form it conveyed the fee, it was intended by the parties to the partition that it should be held by Jacob Miller in trust for his wife. This claim of the appellants is founded on a total misconception of the record evidence in the case, as well as of the effect of the decree of the court below. That decree does secure to the heirs of Mrs. Miller all of the real estate which she inherited from her father, and which she had not conveyed in her lifetime in the mode prescribed by law, to-wit: by deed and privy examination.
Mrs. Miller was entitled to one-seventh of the real estate of her father, William Kite. This consisted of four tracts of land, besides a moiety of the 732 acre tract. She surrendered her interest in all these lands, and united with her husband in deeds to the other heirs. These deeds are all in the record, and in each there is certified, *757in regular form, her privy examination. There is no proof, nor even charge, that any fraud or misrepresentation was practiced upon her by her husband or hér coheirs, who were her brothers and sisters. We cannot presume that she did not understand the legal effect of her uniting in these deeds. On the contrary, we must presume, in the absence of all evidence to the contrary, that these deeds were fully explained to her, and that she executed them with a full knowledge of their legal effect. Ho doubt she would have united with the other heirs in the deed to Jacob Miller, but that Jacob Miller was her husband, and she could make no conveyance to him. She, no doubt, was perfectly willing that the legal title to the whole 782 acre tract should be conveyed to her husband instead of to herself. There might have been the strongest considerations why this should be done. For aught we know, he might have promised, or did actually settle upon her the personal estate, or other real estate. After thirty years have elapsed, and the records destroyed, it is impossible to say what were the motives or considerations which induced her to enter into this arrangement It is all left now to mere conjecture. There might have been cogent reasons and the best consideration why she should have consented that her coheirs should convey their interest to her husband instead of to her sole use and benefit. But however this may be, she did divest herself, in the mode prescribed by the statute, of her title to all the real estate she inherited from her father, except her interest in the 732 acre tract. She made no objection, so far as this record shows, to-the conveyance of the land to her husband. These deeds have been of record for upwards of thirty years, and no question in all these years has been made as to the title or possession under them. It is too late now to assail them. Whatever may be our sympathies, in a controversy between creditors and the heirs of a married woman *758who has permitted her inheritance to be conveyed to her husband, it would be dangerous to the last degree to-establish a principle, upon which, on the vague and uncertain testimony of witnesses, taken thirty years after the transaction, the recorded titles of over a quarter of a century are to be overthrown.
The decree of the court below carefully secures to Mrs. Miller so much of the land as she did not convey away in the mode prescribed by law. In doing this it has done-all that can be legitimately asked for her and her heirs.
It is a noteworthy fact, and one of great significance, that the claim now asserted by her heirs, was neveiasserted by Mrs. M.ller in her lifetime, though she lived years after the death of her husband. ' It was not even asserted by the heirs in their answer, to the original bill. It is now asserted to defeat- the just demands of creditors.
Upon the whole case, I am of opinion that there is no-error in the decree of the circuit court, and that the same should be affirmed.
Anderson, J. The appellee, Jacob Blose’s executor, in 1870, brought a creditor’s bill against John O. Walker and "William II. Miller, administrators of Jacpb Miller, deceased, and John C. Walker and Mary 0., his wife, and William II. Miller, the said Mary O. and William H. being the children and heirs of Jacob Miller, deceased, for the settlement of the administration accounts and an account of the intestate’s' debts, and to subject the personal estate, if anj^, and also the tract of seven hundred and thirty-two acres of land in controversy, to the-payment of said debts.
Jacob C. Walker first answered the bill. Then J. O. Walker and William H. Miller filed an amended answer.. The plaintiff then filed an amended bill. And J. 0.. Walker and Mary 0., his wife, and William H. Miller, *759in their own right, and J. C. Walker and W. H. Miller, as administrators of Jacob Miller, filed an- answer to the original and amended bills. This last answer, which is the only one in which Mary O. Walker joined, sets forth clearly, and I think the evidence shows, with substantial correctness, the true history and material facts of the case; and it seems to me that the said Mary O. nor her brother should be held responsible for any statements which are made in the previous answers in conflict with it, which were evidently made by J. C. Walker in ignorance of what was the true state of the case.
The tract of seven hundred and thirty-two acres of land in controversy wTas conveyed by Edward Stevens jointly to William Kite and Jacob Miller, his son-in-law, for the consideration of $7,884. There is no evidence that any part of it was intended by William Kite as an advancement to his son-in-law. On the contrary, the idea of an advancement to him is inconsistent with the transaction itself. It was their joint purchase, and Jacob Miller was equally bound with William Kite • for the purchase money. William Kite may. have intended to give his daughter, Mrs. Miller, his moiety of the land as an advancement, which is most probable, but expected Jacob Miller to pay for the other moiety, as he bound himself to do. lie was entitled to the other moiety, not as a gift or advancement from his father-in-law, but by purchase from Stevens, if he paid for it, which he did not do.
The evidence, direct and circumstantial, shows satisfactorily and conclusively to my mind, that Miller failed to pay his part of the purchase'money, and that all that had been paid in the lifetime of William Kite, or at least nearly all, was paid by him, and the residue after his death was paid by his personal representatives, as is evidenced in part by the bonds which fell due after the death of William Kite, and were paid by his administra*760tors. Miller’s undivided moiety of the land was bound f°r his part °f the purchase money, so that in the par-of the land and negroes belonging to the estate of William Kite, in 1839, soon after his death, he and S. B. Jennings, who had intermarried with Annie Kite, another daughter of William Kite, and to whom other lands (five hundred and fifty-nine acres) had been conveyed jointly with William Kite, about a year before his death, and for which he paid no part of the purchase money, agreed that said lands in their entirety might be treated as lands belonging to the estate of William Kite, and be taken into the partition. And if any amount had been paid by Jacob Miller on the purchase in the lifetime of William Kite, which it wTould seem must have been very inconsiderable, if any, it evidently was accounted for to him out of the estate of which he was one of the administrators..
The real estate of William Kite as valued by his heirs for partition, was worth a little over $85,000, and his whole estate, real and personal, at least $60,000, which would give to each of his seven children a fraction over $8,571, after the death of the widow. She died on the 1st of January, 1843, and shortly after her death a final partition of the real and personal estate was made, and deeds were mutually executed by the heirs to each other of the lands which had been allotted to them respectively, in the parol partition of 1839, except that the lands allotted to Mrs. Miller were conveyed by the heirs to her husband, in which neither she nor Joseph H. Kite, who was a minor, united; and the lands which were allotted to Mrs. Jennings were conveyed to her husband, in which she and the said minor did not join. As will be seen the share of each heir in the real estate, if it had been equally divided amongst them, would have been of the value of $5,000. But it was a partition and division of real and personal estate together, as is *761authorized by the statute, and the lands allotted to Mrs. Miller being valued at $8,000, it exceeded her aliquot portion of the real estate $3,000, and was a charge on her interest in the personal estate to that amount, which left, however, a balance due her of over $500 in the personal estate.
The personal as well as the real estate is the property of the wife, but the personal estate of the wife becomes the absolute property of the husband after he has reduced it to actual possession. The only doubt I have, is whether the sum of $3,000, which was charged upon her interest in the personal estate to be used in equalizing the other heirs with her, who had received no land, or less land, was a reduction pro tanto of so much of her personal estate by her husband into possession. The conclusion least favorable to Mrs. Miller and her heirs which I have reached is, that she was entitled to at least five-eighths of the seven hundred and thirty-two acres of land in question.
Has she ever parted with that right ? It is true that she might have done so. She might have united with her husband in a deed, and conveyed it to a trustee for his benefit. We held in a recent case, Sayers & als. v. Wall & als., 26 Gratt. 354, that a direct bona fide conveyance from a husband to a wife might be supported in favor of the heirs of the wife against subsequent creditors of the husband.
But there is no evidence that she ever parted with her right to the said land, or any part of it. Her uniting with her husband and her co-heirs in deeds of conveyance of other portions of the land which descended to the heirs of William Kite, really in consideration of their allotment to her of the land in question, could not divest her of her title thereto. Kor could the conveyance of it to her husband by the other heirs after it had been *762allotted to her in the parol partition, and thereby giving her a right to it in severalty, divest her title. It is said that we may presume that she consented to the conveyance; hut the statute has prescribed the mode, and the only mode, by which a married woman can convey her freehold estate, or consent to be divested of it. Much has been said about security of titles: what security is there to the title of a married woman, if it can be taken from her upon a mere presumption of her consent to it ?
But all the foregoing positions are vindicated, in my opinion, in Jennings v. Shacklett, post p. 765, to which I beg leave to refer. I will only add a few remarks; in relation to the. staleness of the demand, and the the effect of maintaining it upon the rights of creditors, and the argument that Mrs. Miller and her heirs have lost their rights, because of the long lapse of time since Jacob Miller took possession and held it till his death. - '
The possession - of Jacob Miller was lawful, and not inconsistent with the title asserted by the heirs of his wife. The wife being the owner in fee, he was entitled to possession by the marital right; and having had issue by hér, he was tenant by the curtesy initiate. And if he had survived her, tenant by the curtesy, and invested with an estate for life, and with the right to the possession of the whole. He died in 1863. Up to that time his possession was lawful and perfectly consistent with an estate in his wife in fee. And immediately upon his death, his wife surviving, she was in possession of the' whole as her fee, if she was entitled to a fee in' the whole; if only to five-eighths, she was in possession, thereof as of her fee, and of the residue as dower until her dower therein was assigned her. She lived until 1868, and it was not until after her death that her children, the appellants, became invested with her title.
What laches are they chargeable with ? They have *763been in the quiet and undisturbed possession of their property. It is true under an ancient title, but that I imagine is not to its disparagement. What more could ■ they do than they have done to assert and protect their title, which was unassailed ? If there has been any laches it has been by the assailants, who have lain by and made no attempt to overturn this ancient title of Mrs. Miller, which she has enjoyed uninterruptedly and peacefully through her husband while he lived, and after his decease, through her own direct agency, as her own property, until her death in 1868, and which she transmitted to her children aud heirs at law. This suit to subject the lands to the plaintiffs’ debt, though it had accrued in 1860, was not brought until after the death of Jacob Miller in 1863, and not until after the death of Mrs. Miller in 1868. During that long period in the lifetime of Jacob Miller and of his wife, we hear of no claim of right by creditors to subject this land to the payment of their debts, and not until 'most of those who were familiar with these transactions had gone down to their graves.
It is true, there were two deeds of record which vested title in these lands in Jacob Miller—one of them as far back as in 1831, which conveyed to him the lands jointly with William Kite, his father-in-law, and the other in 1843, which conveyed the whole to him, but in which his wife did not unite. If notice to creditors were necessary that those lands were not held by Jacob Miller in absolute right, there was enough on the face of the deeds themselves and the known facts to have awakened enquiry, and to have charged creditors with constructive notice. But such notice was not necessary. With as much reason could a mortgage be resisted upon the ground that the deed was absolute on its face. Yet every day are parties permitted to prove, even by parol evidence, that a deed, though absolute on its face, was intended to *764be a mortgage. And in the recent case of Snavely v. Pickle, 29 Gratt. 27, this court established a deed to be a mortgage by parol evidence, though the party in whom the legal title was vested on the face of the deed had been in possession since 1845. From the best considerations I have been able to give this case, I cannot concur in the opinion of the majority, and am constrained to dissent.
Moncure, P., and Staples, J., concurred in the opinion of Christian, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482064/ | Christian, J.
The principles affirmed in the case of Miller als. v. Blose’s ex’or & als., in which a motion for a rehearing has to-day been overruled, must govern the case before us. It arose out of the same transactions, and the nature of the evidence is almost precisely the same. In both cases an effort is made by the defendants to set up a resulting trust, by parol testimony, against a deed absolute on its face. In both cases the evidence is of so vague, uncertain and unsatisfactory a character as cannot, after so long a lapse of time, upon the principles which govern courts of equity, convert deeds absolute on their face into mere trusts, depriving the grantees, and those who claim under them, of all beneficial interest in the estates conveyed, and transferring it to others not named in the conveyances.
It is not necessary to repeat, in this case, a discussion and application of these principles and the authorities upon which they are founded. It is sufficient to refer to the *767■opinion in the case of Miller & als. v. Blose's ex'or, delivered at the September term, 1876, of this court, and reaffirmed to-day by overruling the motion for a rehearing.
A bi’ief reference to the facts of this ease before us will show that it must be determined upon the principles declared in the former case.
"William Kite died intestate in the year 1839, possessed of a large real and personal estate. 'He left surviving him a widow (who died in 1813,) and seven children—■ four sons and three daughters. Among several tracts of land of which the said William Kite died seized, was one which was conveyed to William Kite and Jacob Miller, jointly, by Stevens and wife in 1831, and one conveyed by Jacob Conrad to William Kite and S. B. Jennings, jointly, in the year 1837. The consideration expressed on the face of the deeds was in the one case $7,000, and in the other $8,000.
These deeds were duly recorded shortly after their ■execution, and copies of the same are filed with the record. Sarah, daughter of William Kite, intermarried with Jacob Miller, and Ann, another of his daughters (and the mother of the appellants in this case), intermarried with S. B. Jennings.
It is admitted by the'heirs of Mrs. Jennings in their •answer that 'after the death of William Kite’s widow, to-wit: in 1843, there was a partition of his real estate among his heirs—whether made by the heirs, or by commissioners appointed by the court, does not appear. It must be taken, however, as a conceded fact, proved if not admitted, that in 1843 an arrangement was made by which Jacob Miller was to have assigned to him in the division of the said real estate, that portion which had been conveyed to him and William Kite jointly by Stevens and wife in 1831, and that S. B. Jennings was to have assigned to him' that portion of the real estate *768which had been conveyed to him and William Kite jointly by Jacob Conrad, in 1837. In pursuance of this and to cany out the partition then agreed upon, deeds were executed by Jacob Miller and wife and the other heirs at law of William Kite (except Joseph, who was a minor), conveying all their interest in the tract of land of which Kite and Jennings were the joint owners to S. B. Jennings, and a similar deed was executed by Jennings and wife and the other heirs of William Kite (except Joseph Kite, who was a minor), conveying all their interest in the lands of which William Kite and Miller were the joint owners to Jacob Miller. In these deeds both Mrs. Miller and Mrs. Jennings united. There was a privy examination of both duly made and certified, and the deeds duly recorded. Under these deeds Jacob Miller and S. B. Jennings took possession of said lands and held the same under this recorded title for more than forty years.
It is now claimed, after the lapse of forty years, that these deeds thus executed and recorded did not convey an absolute title to Miller and Jennings, but that they took the title in the same as trustees for their wives, and that though the real estate so conveyed by said deeds was conveyed to them absolutely, yet being the real estate descended to their wives from their father, it was held by their husbands in trust for the benefit of their wives and their heirs. How, the evidence mainly relied on in the case before us to establish this trust is that of S. B. Jennings, the father of appellants, given in a suit in which his creditors are seeking to assert the lien of their judgments against land which he has held under a recorded title and possession for forty years. It must be noted here that the answers of his children, the defendants, to the bill of his creditors, are not responsive to the bill, but set up, by affirmative allegations, the defence upon which they rely. These answers are entitled to no *769weight, and their allegations, unless sustained by proof clear and certain, can have no effect in determining the existence of the trust which they now assert.
The whole evidence relied upon by the appellants to establish a resulting trust in the face of deeds absolute upon their face, are the depositions of their father, S. JB. Jennings, and their mother’s brother, Hiram A. Kite.
As to the deposition of the former, leaving out of view and without comment the interest which an insolvent father would have in securing his estate to his children instead of his creditors, it is to be noted that it is the deposition of an old man in feeble health, who says his “ memory is not clear,” testifying as to transactions which occurred more than thirty years before. His deposition shows, not only that his memory is not clear, but totally defective when tested as to very recent and important events. He does not remember statements made in his answer filed in a suit in the county court just three years before he was examined, nor does he remember the fact that he ever signed or swore to such an answer. He has no recollection of having ever seen an important paper which he filed as an exhibit whith his answer, and which shows the basis of the division of the real estate of William Kite among his heirs, and which paper, itself, shows that the theory now advanced after thirty years, that Miller and Jennings were to hold the land conveyed to them in such division, in trust for their wives and children, had no existence at that time. So much for the evidence of Jennings, the father. The only remaining evidence to support this so-called resulting trust, is that of Hiram Kite, a brother of Mrs. Jennings. He proves literally nothing in support of this claim. On the contrary, his evidence is in favor of the claim of the appellees. He proves that there was a partition of the real estate among the heirs after assigning dower to his mother, and that *770the deed's executed by the heirs to Jennings and to Miller were made after that partition,' and to carry it out. He says, whether this partition was made by commissioners of the court or the adult heirs, he does not remember.
In answer to a question very suggestive and leading in its character, to-wit: “ W"ere these tracts of land valued and allotted to S. B. Jennings and Jacob Miller on account of the interest tohich their toives held in the estoie of William, Kite ? ” he says, “ in part, I suppose.” In answer to another question, to-wit: “You say that S. B. Jennings got the land mentioned in the deed to him (Exhibit A); how did he get these lands?” he says: “ There -was a price set upon all the lands at the time, and all over what was coming to him on the divide he bought from the heirs.”
These are the depositions upon which the defendants alone rely to maintain the claims set up in their answer. I think they fall very far short of proving a resulting trust. Indeed, the evidence of Hiram Kite, taken in connection with the admissions in the answers of the defendants, strongly supports the claim of the appellants, that the lands they seek to subject to their liens were held, as they purport on the face of the deed to be held, as the absolute property of S. B. Jennings. It is admitted that the real estate of “William Kite was sufficient to give to each of his heirs between four and five thousand dollars,- and that the personal estate was large enough to give each between two thousand five hundred and three thousand dollars. They were each entitled, after the death of their mother, to real estate valued at $6,800. How, when they came to divide the real estate, it was natural that they should pursue that mode indicated by the old paper writing marked X, produced and filed by Jennings, and no doubt written as a memorandum of that partition, and assign to Jacob Miller that portion of the real estate *771upon which he resided, and which was conveyed to him and William Kite, jointly, in 1831, and to S. B. Jennings that portion of the land on which he resided, which had been conveyed to him and William Kite, jointly,'by Conrad, in 1837.
Ko doubt these parties made up out of the personal estate coming to their wives, and cf which this appropriation was a reduction into possession, the shares of the other heirs equal. This is indicated by the fact that in this very suit is filed a bond of J ennings to Malinda Kite, which he admits was given to equalize the division of Kite’s estate. At any rate, these all united (except ■one who was not of age) in conveying their interests in these two tracts of land respectively, to Jacob Miller and S. B. Jennings. In the deed to Miller Mrs. Jennings united with her husband, and in the deed to Jennings Mrs. Miller united with her husband. Both deeds are duly recorded with certificates, in due form, of the privy •examination of the wife in each case.
These deeds, absolute on their face, will not be converted into trusts in favor of the wife, except upon the most clear, positive and satisfactory proof. Ko such proof-is furnished in this case, but on the contrary, the evidence is, in my opinion, as above shown, so vague, contradictory and uncertain, as to furnish no foundation upon which a court of equity can erect a resulting trust.
In Phelps v. Seely, 22 Gratt. 578, Judge Bouldin delivering the opinion of the court, said: “A resulting trust may be set up by parol testimonj' against the letter of a deed, and 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. Yague and indefinite declarations, made long after the fact, have always been regarded, with good reason, as unsatisfactory and insufficient.” The same principles, enforced by numerous *772authorities, were reaffirmed in Blose’s ex’or v. Miller, decided upon facts growing out of the same transaction., almost entirely similar (certainly no stronger) with those in this case.
It would be grossly inequitable and subversive of all security of rights, if upon the vague and uncertain testimony of witnesses taken thirty years after the transaction, the recorded titles of over a quarter of a century are to be overthrown.
The court below has confirmed to Mrs. Jennings’ heirs all the real estate to which she was entitled. She was one of seven children of , William Kite, and entitled to one-seventh of the tract of land which the other heirs conveyed to her husband by the deed filed with the record. That has been secured to them by the decree appealed from.
Upon the whole, I am of opinion that there is no error in said decree, and that the same ought to be affirmed.
Anderson, J. This record throws-light upon the case of Miller v. Blose’s ex’ or, and the twTo causes ought to have been heard together. I had not looked into it until after that case was decided; and I find much in it to strengthen and confirm the views I had taken of that case.
William Kite was the owner of a very considerable estate in land and slaves and other personal property, in the county of Rockingham. He died in the year 1838, intestate, and Oonrad, his son, and Jacob Miller, his son-in-law, qualified as administrators of his estate. He left a widow, Elizabeth Kite, and seven children; Sarah, wife of Jacob Miller; Malinda Kite; Anne Jennings, wife of Ur. Simeon Jennings; William G. Kite, Oonrad H. Kite, Hiram A. Kite, and Joseph H. Kite, the latter a minor.
The appellants, the heirs of Mrs. Jennings, aver that *773soon after the death of "William Kite, a partition was made of his estate. In proof thereof, Hiram A. Kite testifies that soon after the death of William Kite the heirs made a division of the land and negroes amongst themselves. He thinks it was in January, 1839. He says another partition was made in 1843, after the death of the widow, when they executed deeds to each other severally, for the lands which had been allotted to them in the partition. The heirs of Mrs. Anne Jennings allege that the real estate of William Kite was composed of a number of different tracts, and was valued by his children and heirs at law preparatory to a partition of the same; and they set out specifically the valuation which was put on each tract, amounting in the aggregate to thirty-five thousand and sixteen dollars. His personal estate they say was valuable, and his whole estate was said to he worth not less than $60,000. He was not indebted (if at all, very inconsiderably), beyond what he was still owing for lands purchased from one Stephens in 1831, and conveyed jointly to him and his son-in-law, Jacob Miller; and for lands purchased in 1837, and conveyed jointly to himself and his. son-in-law, Simeon B. Jennings. According to this valuation, Mrs. Jennings and each of his children were entitled to a share in the same, of not less value than $5,000.
In the first partition all the lands were parcelled out and disposed of. Seven hundred and thirty-two acres were allotted to Mrs. Miller, valued at $8,000 ; four hundred and- fifty-eight acres to Conrad Kite, valued at $8,000; five hundred and fifty-nine acres allotted to Mrs. Jennings, and valued at $7,000 ; two tracts to William C. Kite, the value not expressed in the deed, but proved by Hiram Kite to he $800; and two tracts to Hiram Kite, for which a deed was doubtless executed, but which I do not find in the record, which he testifies were valued together at about $3,720 ; and the residue of the lands *774were assigned to the widow as dower, and were valued at $7,666, and after her death were sold to Conrad and Hiram Kite at that price, doubtless to raise a fund to be used with the personal estate in equalizing the heirs in partition—the whole real estate aggregating $35,186.
This evidence conclusively shows that the lands were valued by the heirs, as alleged in the appellants’ answer, at $35,016, at least, and there is no ground for the imputation that it was manufactured for the occasion. It is then an established fact in this cause that the real estate of William Kite, of which he died seized, and which descended to his heirs subject to the widow’s dower, was. estimated by the heirs, amongst themselves, to be worth $35,000, which would give to each of them in severalty lands to the value of $5,000. Whether they were worth so much or not, is immaterial, if, in the partition, the heirs agreed to this valuation. But they do not appear to have been over-estimated, for Conrad sold to Price the lot which had been allotted to him for $8,000, the price at which it bad been allotted to him; and the price at which Conrad and Hiram, after the death of the widow, purchased the land which had been assigned for dower, was, as is proved, the price fixed by the heirs.
Mrs. Elizabeth Kite, the widow of William Kite, deceased, died on the 1st of January, 1843, and a deed from the heirs of William Kite, except Sarah Miller, and Joseph Kite, a minor, conveying to Jacob Miller seven hundred and thirty-two acres, was acknowledged before William B. Yancey and Jacob Rush, justices of the peace for the county of Rockingham. A similar deed was executed by the heirs of William Kite, deceased, except Anne Jennings and Joseph Kite, a minor, conveying three tracts of land, containing together five hundred and fifty-nine acres, to Simeon B. Jennings, for the consideration expressed on the face of the deed of $7,000, which bears date on the 21st of January, 1843, and is *775acknowledged the same day. A similar conveyance is made by deed bearing date 18th of January, 1843, by all the other heirs, except Joseph, conveying lands "William O. Kite. And on the 18th of January, 1843— the same day—a deed of conveyance was made by the other heirs, except Joseph, to Conrad II. Kite and Hiram A. Kite, of the lands which had been assigned to the widow, now deceased, for her dower, which deed was acknowledged before the same justices on the 21st of January, 1843, before whom, on the same day, all the foregoing deeds were acknowledged.
"Were the lands conveyed by the foregoing deeds allotted to the parties respectively to whom they are conveyed in the partition of the estate, real and personal, of William Kite, deceased, or were they acquired by purchase ? Were the deeds executed as the result of a partition of the decedent’s lands and personal estate amongst his heirs, or were they executed to the grantees as purchasers ? To narrow the enquiry and to bring it home to the case in hand, did Jennings acquire the land conveyed to him by virtue of a contract of sale and purchase, the consideration moving from him, or was there a parol partition of the lands and negroes of the decedent amongst his heirs and distributees ? And in such partition were the lands which were subsequently conveyed to Jennings allotted to his wife? I propose briefly to pursue these enquiries.
And first, there was a parol petition made of the lands and negroes, and probably a partial division of other personal property, in 1839, which was not completed until after the death of the widow, on the 1st of January, 1843. Such a parol partition was valid. Heeds of partition between parceners are not absolutely necessary. They may mark and establish the dividing line between them, and prove it by other competent evidence, and will, from the time of establishing the line, be seized *776in severalty. Coles v. Wooding, 2 Pat. & Heath, 189; Lomax Digest, 134; 2 Min. Inst. 2d ed. 707; Va. Code, 112, § 1; Jones’ devisees v. Carter, 4 Hen. & Munf. 184; Bryan v. Stump, 8 Gratt. 241; 2 Min. Inst. 488; 2 Bl. Com. 188-9; see 9 Gratt. 1; 4 Kent’s Com. 4th ed. 366-7. And where there are several tracts, as in this case, each heir is not entitled to have his share laid off in each tract. Litt. § 251; Earl of Clarendon & als. v. Hornby, 1 P. Wms. 446; Hagar v. Wiswall, 10 Pick. R. 152. Put the real estate at $35,000, and Mrs. Jennings’ share would he $5,000, and the lands allotted to her were consequently valued at $2,000 above her aliquot share of the real estate.
Rut was there a partition ? Hiram Kite, who has no interest in this controversy, testifies that they made a division soon after his father’s death of the land and negroes, there having been a sale of the personal estate. He is asked if the division was made at the time the deeds were made, January 21st, 1843 ? He answers: “They made a division of the land and negroes soon after my father’s death, I think in January, 1839.”
There are several other witnesses who testify to the same effect, but there is other evidence which does not depend on slippery memory, which it seems to me ought to he conclusive of this question. It is the deed of all the heirs of William Kite, except the minor, to George W. Price, which purports to bear date on the 1st of January, 1843, hut is acknowledged on the same day (the 21st of January) the other deeds are acknowledged, and before the same justices. The certificate of acknowledgment describes it as bearing date the 18th of January, and either that, or the date of the deed as it appears in the copy in the printed record, must be a mistake. Be that as it may, it is not material to the purpose for which I refer to it. The deed is a conveyance by all the heirs of William Kite, deceased, to the said George *777W. Price, in the following language: “A certain tract or parcel of land' containing four hundred and fifty-eight and a half acres, be the same more or- less, lying, &c., * * it being the tract that zoas allotted to the said Conrad H. Kite by the legatees of William Kite, deceased, and bounded as folíolos,” &c. The consideration is “the sum of $8,000, current money of Virginia, to them in hand paid by the said George W. Price,” &e.; also the interest, fifteen- (sixteenths, it is presumed to be, the last syllable having been obliterated by the burning,) which all the heirs of William Rite held in “ Swift Run turnpike, it being also allotted to him, the said Conrad H. Rite (evidently the words ‘said Conrad’ being obliterated by the burning), by the legatees of William Rite, deceased.” It appears then, that previous to the date of this deed, there had been a partition of. the lands of William Rite, deceased, and that lands to the value of $8,000 had been allotted to Conrad Rite, and that in addition to the lands, fifteen-sixteenths of his interest in the Swift Run turnpike, the value of which does not appear, had also been allotted to him. The deed does not state when the partition and allotment was made, but it was evidently anterior to the deeds, and it is corroboratory of the parol proof, that it was made in January, 1839, soon after the death of William Rite. This was a partition in fact, though incomplete, of the real and personal estate, estimated to have been worth not less than $60,000, making each share worth $8,571 and a fraction. It was not completed until January, 1843, after the death of the widow.
It is true that the lands conveyed to Jacob Miller were conveyed in 1831 by one Stevens, from whom they were purchased, to William Rite and Jacob Miller jointly, and possession was given to Miller and wife, and the lands conveyed by the heirs to S. B. Jennings had been *778conveyed by one Conrad, from whom they were purchased in 1837, the year before the death of William to William Kite and Jennings jointly, and possession was given to Jennings and his wife. Yet the proof is that in the partition, Miller and Jennings both being-present, those lands were treated as lands belonging to the estate of William Kite. Jennings, in answer to an interrogatory propounded to him by the plaintiffs in that suit (appellees here), testifies with regard tq the lands conveyed to him and William Kite jointly, that all the purchase money was paid by William Kite, and by his administrators since his death; and in the division of William Kite’s estate, which occurred in 1839, the said lands being held and considered as a part and parcel of his real estate, were allotted (he says) “ to my wife, the daughter of said Kite, as her interest in the real estate of her father. And the deed from Jacob Miller, &c., as legatees of William Kite, was made to me in consideration of my wife’s said interest—-all of the legatees making-deeds of exchange to those to whom lands were allotted in said division.” I have not a doubt that this is a truthful representation of the case. It is in perfect harmony with the whole transaction, and with the testimony in this case, and in the case of Blose v. Miller. Why would Miller be charged in the partition with $8,000, the value of the entire tract, if the half of it was his? And why would Jennings be charged with $7,000, the value of the entire tract allotted to him in the partition of William Kite’s estate, if the half of it was his, whilst Conrad was charged with just the lands he got from the estate, valued at $8,000 ? That it was a partition of William Kite’s estate is shown by the deed from the heirs to George W. Price, and Miller and Jennings were charged with the value of the entire lands conveyed to them severally, just as Conrad Kite was charged with the value of the entire lands which were conveyed by the heirs to George *779W. Price, Ms vendee. The lands conveyed to the two former, in their entirety, were treated as parcels of the estate of the decedent, just as the lands were which allotted to Conrad Kite. And why would the heirs háve undertaken to convey lands in their entirety, and Miller and Jennings have consented to take a conveyance from them, if half the lands were theirs truly and justly and beneficially, by the conveyances of 1831 and 1837 respectively ?
The conveyances made by the heirs to them is an assertion by the deeds, that the lands were, in their entirety, a part of the estate of William Kite, and their acceptance of the conveyances is an acknowledgment by deed on their part, that they were, and more especially as they are not charged with only a moiety of the price of them respectively, but with the entire price. I am of opinion, therefore, that the transaction, as evidenced by the deeds, fully sustains the testimony of Dr. Jennings, which is also in harmony with the testimony of Hiram Kite, a disinterested witness. But 'there is nothing in this record to impeach Dr. Jennings’ veracity, if it were competent for the appellees to impeach their own witness, and upon whose testimony they rely for another purpose, to-wit: to prove the consideration of Malinda Kite’s bond. He is not even an interested witness. If he has any pecuniary interest it is with the appellees, for it is the interest of a debtor to pay his debts. Hnless it is right to hold that a man is not to be credited because his testimony will benefit his children, there is no ground to discredit this witness. There is not a particle of testimony in this cause tending to impeach the character of Dr. Jennings. It is Ms misfortune to be unable to pay his debts—a misfortune, I regret to say, that has befallen many of our most upright citizens. He seems to be desirous that whatever property is rightly and lawfully his, shall be subject to *780the payment of his debts, but is unwilling to appropriate the property of his children, which they justly and law-derived from their deceased mother and not from him, to the payment of his debts. I do not hesitate to say that I can perceive no cause in that to discredit him.
^ Sa^ ^at ^eP0Sitk>n taken by the plaintiffs (the appellees here), on the 29th of August, 1873, nearly four months after his answer to the plaintiffs’ interrogatories, shows such a failure of memory as to divest his testimony of moral weight. The defendants’ counsel objected to the plaintiffs retaking this -witness’ deposition ■ without leave of the court, on the ground that his deposition had been taken on two previous occasions. J3ut the plaintiffs persisted in retaking his deposition, and I am free to admit that it exhibits a melancholy failure, if not wreck of memory, since his previous depositions were taken, and I do not rely upon it at all in the investigations w'hich I have made of the cause, and in the opinion I have formed.
The plaintiffs, in the examination of their witness, call his attention to a paper which he exhibited with his an-’ swer to the bill of Annie E. Jennings and others against him, designated by the letter X, and ask him if it is in his handwriting, and when it was made. He answers that he thinks it is in his handwriting, but is not positive, but has no idea when it -was made. He seems to have no recollection of it, and to know nothing in relation to it now. In his answer to the appellants’ bill against him in the county court, hied on the 4th day of September, 1871, nearly two years before,’he refers to this paper as an old memorandum in his hand-writing, which he exhibits as a part of his answer for a pretty correct setting forth of the matter. This paper is in these words: “Jacob Miller, Jr., and S. B. Jennings, have this day-had the following propositions made to them (it relates to the time of the partition “ this day ”): Jacob Miller is *781to take the land on which he now lives at $8,000, the half he now holds at $4,000, and he (and all the rest of the legatees who shall have received $4,000 in either in land or other effects,) shall pay to the rest of the legatees, who shall be deficient, the lawful interest on the deficiency until all are made equal in the sum of $4,000. Then he shall, twelve months thereafter, pay $800 down, and $800 annually to the estate, until the sum of $4,000 is paid. S. B. Jennings is to take the land on which he lives at $7,000, and paid in the same manner of Jacob Miller’s, with this difference, that he is to pay $600 annually.”
This paper seems to be greatly relied on by the appellees, but it is no evidence against the appellants. It is exhibited with the answer of the defendant, S. B. Jennings, to the plaintiffs’ bill, with the -affirmative allegation that it is an old memorandum in his handwriting, and he exhibits it as “ a pretty .correct setting forth of the matter.” It was no evidence against the plaintiffs in that suit, and was entitled to no weight against them, unless proved; and the plaintiffs in this suit could not make it evidence against them by transferring the record of that case to this suit, and making it a part of their bill. But if said paper had been signed by Dr. Jennings, or had been proved to have been a proposition made to Jacob Miller himself by the other heirs and accepted by them, it falls far short of sustaining the appellees’ pretensions. I beg to make the following comments on it:
Hirst. It implies in the offer by the heirs that he may take the land on which he lives at $8,000, that no part of it rightfully belongs to him, but that it all belongs to the estate, although half he holds.
Second. But that half which he holds he is to take at $4,000, as so much of the real estate of William Kite as is then apportioned to him, but shall pay interest, as all the other legatees who shall have received $4,000 in *782hand, either in land or other effects, shall be required to do, to the legatees who have not received $4,000, on the they are deficient, until all are made equal in the sum of $4,000.
Third. And for the other half of the land which is aPPord°ued to him, he shall, after twelve months, pay to the estate $800 down and $800 annually until the sum of $4,000 is paid, which covers the value put upon the entire tract—$8,000, the exact value of lands Conrad received.
Fourth. The payment of interest to the heirs who have not received $4,000, on what they are deficient, until all are made equal in the sum of $4,000, is an assertion that the moiety of the land which he holds is an apportionment from the estate of $4,000, and that he holds it, not by virtue of the deed from Stevens to the decedent and himself jointly, but in right of his wife’s interest in the real estate of her father; and
Fifth. The payment by him of $800 annually to the estate until he has paid $4,000 for the remaining moiety of the land, is to raise a fund for further distribution or partition, it being required to be paid to the estate. And his wife’s interest in the whole estate, real and personal, being'at least $8,000, there need be no actual transfer of money, as it would be to pay it to the estate just to be paid back to him. The whole paper shows, as to Miller, that he had no beneficial interest in the seven hundred and thirty-two acres of land on which he lived, in his own right, but that he got it in the right of his wife, for. her interest in her father’s estate. And the provision made for Jennings is liable to' exactly the same construction and the same results. And this paper, which is introduced by the plaintiffs in this suit, and relied upon by them, and consequently may be accepted by the appellants as evidence, in my opinion fully sustains the testimony of J enniugs and the pretensions of the appellants.
*783But it is contended that the deeds show upon their face (except, I presume, the deed to Price) that it was a sale and purchase, by which the grantees became erally invested with these lands, and not a partition, because, first, they purport to be deeds of bargain and sale, and do not purport to be deeds of partition, and secondly, because they purport expressly to be for a monied consideration. It must be considered that these deeds were evidently not prepared by a lawyer, for they designate the heirs' as legatees, which no lawyer would have done. But to ascertain what was the intention of the parties to them, they should be read together, and in the light of the surrounding circumstances. They are all made by heirs of 'William Kite, and dispose of all the real estate which they inhei’ited from him by conveying it in parcels to heirs and to the husbands of two of his heirs. Ko part of it is conveyed to a stranger, except in one instance, and all the heirs except the one who was in his minority, unite in a deed conveying to him, George W. Price, not lands then belonging to the estate, but the lot which had been allotted to Conrad Kite, and which had become his property in severalty by virtue of the parol partition which is proved to have been made in 1839, doubtless because he had sold the lot to Price and desired the heirs to convey directly to his grantee, instead of to himself, and these facts appear on the face of the deed, and cannot, I think, be reconciled with any hypothesis which negatives the fact of a partition. It was not only a partition of real estate, but also of the valuable personal estate, together, which our statute authorizes ; and not only no stranger gets land in the disposition of it by the heirs, but no grantee gets more land than the value of each heir’s share in the real and personal estate. If it had been intended to be a sale, and not a partition, it is fair to presume that some parcels of the land would have been sold to strangers outside of the *784family, and that the grantees would not have been limited not to exceed in any instance the’ value of each share in the real and personal estate. It being a partition of real and personal estate, it is very natural that some of the heirs would willing to take their w^°^e Merest in real estate, spme of them part in real and part in personal, and others altogether in personal; and it is not important for us to know how or when they were equalized. The presumption is that the partition was completed at the time these deeds were executed, which was more than five years after the death of the intestate, and his administrators were present and participated in the partition. But how or when that was done it is not material for us to enquire. That it toas done, and to the satisfaction of all, we may well presume,-for we hear of no complaint; all have acquiesced in what was done, even Joseph Kite, who was then in his minority, as appears from his answer in this cause.
It seems that one of them, and only one, Malinda, has not received all that was due to her. It seems that she chose to take the bond of Dr. Jennings for what she was entitled to receive from his wife’s share of the personal estate with which it was chargeable ($540.47), to equalize her with the rest of the heirs, instead of receiving it in money from the personal representatives. Great stress has been laid upon this circumstance to show that Dr. Jennings was the purchaser of the lands allotted to his wife, valued at $7,000. I think the conclusion is not a logical one. The bond wTas executed on the 19th of March, 1839, long before the deed was executed, and being a charge upon the land which Mrs. Jennings got, as the amount she was to contribute for the equalization of Malinda with the rest of the heirs, the partition must have been made prior to the date of the bond; and it strongly confirms the testimony of Jennings and Hiram Kite that it was made in January, 1839, and the logical *785inference is, not that Dr. Jennings purchased the whole of his wife’s interest, worth $7,000, but that he had used $540.47 of his wife’s personal estate, and had reduced that much of it to possession, and gave his bond ’for it to Malinda Kite, which he never paid.
But now to return. In the light of all the circumstances surrounding the execution of these deeds, can we say that they show upon their face that they were executed to carry into effect contracts of sale and purchase, and not in pursuance of a partition made between the heirs themselves, because they are not written as a lawyer would have prepared them, setting out the partition in terms, but are written as deeds of bargain and sale are ordinarily written ? It is probable the draftsman would not have known how to draft a formal deed of partition. The object of the deeds was to vest in each of the grantees in severalty, title to a specific parcel of all the lands which they had before held in common, or coparcenary. And this was as effectually done by the deeds as they were framed, as if they had been most formally worded as deeds of partition. These deeds are as effectual to carry into effect the partition as they would be to carry into effect a sale and purchase. We cannot logically or reasonably conclude, therefore, that they are incompatible with the fact of a partition, especially when all the surroundings show that ir was a partition and not a sale and purchase.
Kor, secondly, is the circumstance that they express the value in money in each ease except one, as the consideration of the conveyance that the heirs had agreed should be the valuation of the land conveyed, incompatible with the fact that they were executed to carry into effect the parol partition. It is no contradiction of the face of the deed to say, that the consideration which passed from Dr. Jennings to the heirs, his grantors, *786was five thousand dollars, the value of his wife’s undivided interest in the real estate of her father, which she contemporaneously conveyed to other heirs, and two thousand dollars of her interest in the personal estate, which the administrators, being present and parties to the partition, were authorized to pay over to such of the heirs as it was determined and agreed should be entitled to receive it. And the bond to Malinda for $540.47, is a very strong circumstance to show that the definite amount which each one was to pay, and who was to receive it,, was determined. And the administrators were bound to pay these several sums to the heirs and distributees, who were entitled, respectively, to receive them, as was determined in the settlement and partition amongst the heirs themselves. And the fact that Malinda chose to take Dr. Jennings’ bond for the amount that was coming to her from his -wife, would operate as a release to the administrators from their obligation to pay it to her, and would authorize them to pay it to Dr. Jennings, and so would be a reduction to his possession, or rather a purchase of that much of his wife’s personal estate. It would be a very slight circumstance from which to infer that he had purchased and paid $7,000 for the five hundred and fifty-nine acres allotted to his wife. Such an hypothesis also involves other insuperable difficulties. His wife was entitled to $5,000 of the $7,000 in real estate. He might become the absolute owner of her personal estate by reducing it to possession, but could not of her real estate. "Well, she ha'd, by uniting in the deeds, conveyed her undivided interest in the real estate worth $5,000, in part consideration for the five hundred and fifty-nine acres which had been allotted to her, and for the balance of the consideration had surrendered $2,000 of her interest in the personal estate. How, suppose hér husband, by reducing to possession her personal estate, could pay two thousand dollars of the considera*787tion for the land conveyed to him, how did he pay the $-5,000, the residue, if he did not pay it in his wife’s land ? He would hardly have paid it out of his own pocket he had had the money, which it seems he had not, when his wife was entitled to it in land. And if he had, to whom would it have been due but to his wife ? It 'is not pretended that he paid $5,000 to her. But if he could have lawfully made a contract with her for the purchase of her land which she inherited from her father, where is the evidence of such contract of purchase ? I have always been under the impression that a married woman could only part with her real estate in the mode prescribed by the statute, upon a privy examination ; and that her consent to its transfer could not be shown by her declarations in any other mode, much less be inferred or presumed from her acquiescence in the claim of her husband, for however long a period. Here there is no evidence that she ever parted with her inheritance to her husband in the only mode under the statute by which she could have parted with it; or, in fact, that she in anyway consented to or acquiesced in the claim to her land now set up by her husband’s creditors.
She united, it is true, in the deeds conveying to her co-heirs the parcels of the real estate set apart to them respectively, which had descended from her father; and that she did, in consideration of the parcels of land which had been allotted to her. The consideration of the deed made of her land to her husband, is stated in the deed to be $7,000. It does not say in money, and the-heirs—the grantors—acknowledge the receipt of it. That is not inconsistent with the fact. They had received it in Mrs. Jennings’ undivided interest in the lands, valued at $5,000, which, by contemporaneous deeds she had conveyed to her co-heirs, and in $2,000 of her interest in the personal estate which she had surrendered for equalizing the heirs with her who had received less land *788and those who had received no land. The consideration for the land which was allotted to her, and which was conveyed to her husband, was her interest in the real estate of her father’ and so much of her interest in the personal estate as would make it $7,000. I don’t think there ought to be a doubt of that.
The evidence in this record, documentary and oral, I think, plainly shows that Mrs. Jennings was entitled to at least five-sevenths of the land which was conveyed to her husband, and to the whole of it, unless her husband had reduced to his possession her interest in the personal estate, which was the consideration of the remaining two-sevenths. The evidence does not establish satisfactorily that Jennings ever reduced to possession his wife’s interest in the personal estate with which he paid partly for the land conveyed to him. There is some ground for the assumption in the deposition of Hiram Kite in answer to the question how S. 13. Jennings got the lands conveyed to him. He says, “there was a price set upon the lands at the time, and all over w'hat was coming to him in the divide he bought from the heirs.” Well, five-sevenths was coming to him, or rather to his wife, in the divisions of the real estate. It could not be coming to Mm in any sense, except in the right of his wife, and the excess, which was two-sevenths, he bought, according to this witness ; and as it was doubtless paid for out of his wife’s personal estate, it may be considered as evidence •of the reduction of his wife’s personal estate to his possession. But whether-so or not, if he bought it and paid for it, two-sevenths would be liable to the debts of Ms creditors. And upon this theory, that he bought the two-sevenths, we may conclude that he gave his bond to Malinda in part payment of it. The most, I think, that can be claimed for the creditors of Dr. Jennings is the two-.sevenths of the five hundred and fifty-nine acres of land, .and his life estate, by the curtesy, in the five-sevenths and *789the fifty acres which are no part of the aforesaid tracts, and are not claimed by the heirs of Mrs. Jennings. This, I think, is a most liberal disposition of the case for creditors of Dr. Jennings. I have not a doubt as to the right of the heirs of Mrs. Jennings to five-sevenths of the lands in controversy, subject to their father’s life estate by the curtesy. Upon what just principle it is reduced by the decree to an undivided fourteenth interest in the five hundred and fifty-nine acres, I cannot comprehend. Mrs. Jennings was undoubtedly entitled to one-seventh of the whole real estate of which her father died seized. She has been induced to unite in deeds, with the other heirs, in conveying her interest, which was an undivided one-seventh in all the other lands, to the heirs to whom they were parcelled out in the partition or settlement, in consideration that five-sevenths of the lands in question, which would be her proportion according to the value of her undivided interest in the real .estate,should be allotted to her in severalty; andto holdnow, that she is entitled to only one-seventh in the five-hundred and fifty-nine acres, valued at $8,000, would be to give her only one-seventh in the five hundred and fifty-nine acres for the one-seventh which she was clearly entitled to by inheritance in all the lands which descended from her father, estimated to have been worth at least thirty-five thousand dollars. She has parted with all her interest in the other lands to other heirs, upon consideration that she was to have her whole interest concentrated and vested in the lands in question. And the decree holds her to the conveyances of her undivided interest in the lands worth $5,000, but takes from her or her heirs the consideration on which alone she united in those conveyances. The decree makes it one-fourteenth instead of one-seventh, of course upon the idea that her husband was a joint owner with her father in the said land, a claim which her husband had not the conscience *790to make for himself when the lands were partitioned, when it would have been made, one would think, if it could have honestly been made, the joint conveyance having been made to him and his father-in-law not two years before this partition, and when the whole transaction was known to all the heirs and fresh in their recollection. Ho such claim was then made by Dr. Jennings, but absolutely renounced by him and disclaimed to this day, and yet this decree gives it to him.
It was contended that a moiety of the lands was an advancement by the father to the husband of his daughter. Dut I do not think that can be maintained. He did not take it as an advancement from his wife’s father; but he took it as a joint purchaser with him from Jacob Conrad, the grantor. There is nothing in the transaction or the proofs to show an intention of the father to advance him with a moiety of the land. On the contrary, there is everything to repel such a presumption; it was his intention that Dr. Jennings should pay for a moiety of the land, which he admits and testifies that he failed to pay any part of it. And the same having been paid by "William Kite, or his representatives, it was a charge upon his moiety of the land. And being so, it is very reasonable, as he and Hiram Kite both testify is the fact, that when the lands were partitioned he consented that the entire lands so conveyed to him and William Kite jointly, should be valued and partitioned as lands of William Kite’s estate.
If these transactions had occurred shortly before the death of Mrs. Jennings, which occurred in 1865, the rights of her heirs could hardly have been questioned. And yet, she being a married woman, the lapse of time cannot affect the rights of her heirs, they having instituted suit in a reasonable time after her death. Lapse of time will not be laches, if the party was under disability. (Perry on Trusts, 1st ed. § 230). The husband has been *791in possession, but his possession was not inconsistent with liis wife’s claim of right, set up by her heirs; and if it was, acquiescence cannot be imputed to a married Her husband had possession under the deed from the heirs of William Kite, which was of record, and not under the joint deed to decedent and himself of 1837, which was renounced by him when he consented that the entire tract so conveyed should be valued and taken into the partition as a part of the decedent’s lands, and actually accepted it at the price put on the entire tract, not upon a moiety, as and for a part of his wife’s share of her father’s estate. For the decree after this, and when Dr. Jennings to this day disclaims any right or title under the joint deed, and has never claimed any since the death of William Kite, hutas we have seen disclaimed it when the lands were partitioned amongst the heirs, I confess is incomprehensible to my mind. This deed made to Dr. Jennings by jthe heirs of William Kite, except the minor and his wife, who- did not unite in it, was sufficient to charge even a subsequent purchaser with constructive notice of the wife’s right.
The fact of the deed being of record for thirty or forty years cannot affect the rights of Mrs. Jennings, she being under disability during that whole period, nor her children, they having instituted suit against S. B. Jennings to assert their rights within the time limited by law after .the death of their mother, when their rights became vested.
Unless Mrs. Jennings or her heirs are barred by the •execution of the deed to her husband by her co-heirs, I cannot apprehend the shadow of a doubt as to the right -of her heirs to at least five-sevenths of the land in question, subject to their father’s life estate by the curtesy. As we have seen, she is not a party to the deed that conveys the land to him, and has never acknowledged on privy examination the conveyance of her title, which was clear *792and unquestionable, if not to the whole, to at least five-sevenths of these lands. It is true that she united in the other conveyances, and it is very probable she would have united in this too if she had been told to do so. -^6 aq know how readily a dutiful and trustful wife is disposed to confide all business matters to the disposal of her husband, and to do whatever he and the men wh& have it in charge direct. And if she had been joined in the deed to her husband she would doubtless have considered it all right, and would have acknowledged that too. JBut she did not do it. She wás clearly entitled to at least five-sevenths of the land, which had been four or five years before allotted to her in the partition. But the deed was made by the other heirs to her husband, for five-sevenths of which he had not even a pretext of title. It was evidently done without knowledge as to its effect upon the rights of the wife, or without due consideration. I have no idea that there was any intention of any of the parties to defraud Mrs. Jennings of her rights. But if it was not a conveyance to the husband as to at least five-sevenths, in trust for his wife, it was an actual fraud upon her rights, and a court of equity would hold the husband a trustee for his wife. Brown v. Lynch, 1 Paige Ch. R. 147; Barnesly v. Powell, 1 Ves. Sr. R. 283; Young v. Peachy, 2 Atk. R. 254; Thymn v. Thymn, 1 Vern. R. 296. Constructive trusts arise (says Professor Minor) independently of the intention of the parties by'eonstruction of law, being fastened on the conscience of him who has the legal estate, in order to prevent what otherwise toould he a fraud. They occur not only when property has been acquired by fraud or improper means, but also where it has been fairly and properly acquired; but it is contrary to the principles of equity that it should be retained, at least for the acquirer’s own benefit. 2 Min. Inst. (1st ed.) 206, 207, citing 1 Lom. Dig. 233; 1 Spence’s Eq. Jur. 511-12
*793A court of equity will construe a deed so made to the husband, the consideration moving exclusively from her, as made in trust for her, and will regard the husband as trustee for the wife. We set up a trust in Snavely v. Pickle, 29 Gratt. 27, though the grantee had been in possession under the deed since 1845. And a court of equity will be vigilant to secure to the wife her rights. Even if Mrs. Jennings had been divested of her inheritance, in the mode by which a married woman may under the statute part with her real estate, a court of equity will closely scrutinize the act. Judge Moncure, in Statham v. Ferguson’s adm’r & als., 25 Gratt. 28, 43. When land is sold for the purpose of partition, the share of the proceeds belonging to a feme covert will be treated as land, and cannot be paid to the husband except with her assent upon a privy examination. Hughes ex parte, 1 Dev. Ch. 118; Snell v. Jamison, 2 Dev. & Bat. Ch. 2 Hill Ch. 646; 5 Iredell Eq. 396. There is nothing in the case of Phelps v. Seely which is in conflict with the foregoing. From my recollection of that case it was an attempt to raise a resulting or implied trust against the purchaser of the property in favor of the party claiming the trust, although the consideration did not move from him, but from the purchaser; whilst in this case thq consideration of the deed vesting the legal title in the husband, moved unquestionably from the wife.
From every view I have been able to take of this case, my mind has been brought to a clear conviction that the appellants, the heirs of Mrs. Jennings, are entitled to at least five-sevenths of the lands in controversy. The only doubt I have is, whether they are not entitled to the whole. My brethren think otherwise, which is the only circumstance that could cause a doubt as to the correctness of my conclusion. But it has not changed my conviction as to the right of the case. I must therefore *794adhere to my opinion, though with diffidence and regret that I have to dissent.
Üoncure, P., and Staples, J., concurred in the opinion of Christian, J.
Decree arrirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482065/ | Anderson, J.
By an act of the general assembly approved March 6,1874, the plaintiff in error, David A. Plecker, was authorized to erect a toll-bridge across North river at Mount Crawford, m the county of Rockingham, at or near the site of the former bridge; and for that purpose he is expressly authorized “ to purchase or condemn, in the mode ■ prescribed by law, a lot of ground not exceeding one acre for the erection of a toll-house, and so much land as may be necessary for the abutments and the construction of said bridge, and a convenient pass-way over the same.” The land on the west side of the river, where he proposed to erect the bridge, was owned by the defendant in error, Jackson Rhodes, and being unable to purchase from him the land necessary for the purpose, he says he instituted proceedings in the county court of Rocldngham to have so much as was necessary condemned in pursuance of the said act, which were resisted by the- said Rhodes, but resulted in the judgment of the court in his favor, and in the condemnation of so much of the said defendant’s land as had been laid off and set apart by the commissioners of the court for the purpose. And he says that he thereupon proceeded with the work of constructing and erecting the bridge, and had it nearly completed when the said defendant in error obtained a writ of error and supersedeas to the judgment of the county court from the “circuit court of Rockingham county, and the reversal of the same. And he comes to this court by writ of error and supersedeas to the judgment of the said circuit court for relief.
■ At the very threshold of the case we are confronted with the declaration that the legislature had not the *797power to subject private property to such a purpose. The police of a state embraces in its system of internal regulations, among others, interior communication. Chief Justice Shaw said in Commonwealth v. Alger, 7 Cush. R. 53, 84 : “"We'think it a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of 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.” Anri Redfield, Chief Justice, another eminent judge, says in Thorpe v. Rutland & Burlington R. R. Co., 27 Verm. R. 140, 149, by this “general police power of the state, persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the state ; of the perfect right in the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.” These eminent authorities are cited by Cooley in his work on Constitutional Limitations, p. 572-3, in support of this well-established doctrine, and he cites other numerous authorities, to which I need onty refer.
On page 592, after sayin'g that the state may authorize the construction of bridges over navigable waters, notwithstanding they may, to some extent, interfere with the right of navigation, he observes: “The legislature must always have power to determine what public ways are needed,” &c. This power of granting authority to individuals to erect toll-bridges has been exercised by the legislature of the state from a period perhaps coeval with the foundation of the government. We have instances of it in the construction of Mayo’s bridge over James river at Richmond, the bridge at Fredericksburg, over the Rappahannock, the bridge over James river at *798Lynchburg, and over the same stream at Buchanan in Botetourt county. The first of the bridges I remember have heard of at or near Buchanan, was Beale’s bridge, which was erected, I suppose, before I was born.
But it is assumed by defendant’s counsel that the act authorizing the erection of the bridge in question is for private benefit, and that section 14, article 5, of the constitution of this state, by implication, prohibits the taking the private property of one individual for the private use or benefit of another. In general that may be sound in principle, but we do not think it is implied by the clause of the constitution referred to, or that it is a constitutional prescription. There are certainly exceptions to it, and when it comes in conflict with the maxim sic uiere tuo ut alienum non laedas, it is not true. One citizen is entitled to a right of way through his neighbor’s land, if it is the only way by which he can have access to his mill or to his court-house, &c. Hor is it sound if the conferring the privilege or benefit upon the individual, will be for the public benefit and convenience. The charter of companies for making turnpike roads and railroads, with special privileges, is for the benefit of the private individuals who undertake the enterprise, else they would not undertake it. But they are works which will be for the benefit of the community, or the state, or supposed to be, otherwise the legislature would not grant the chai’ter. And so the establishment of ferries is for the benefit of the individuals, to whom the franchise is granted. And in like manner the authority given to an individual for the construction of a toll-bridge across a river, is a franchise which is to benefit the individual to whom it is granted, else he would not undertake it; but it is granted to the individual in consideration of the convenience and benefit it will be to the public. All these exercises of the functions of sovereignty by the legislature, and the be*799stowment of franchises upon individuals, are designed to be for the public benefit, and rest upon the same principle. Whether they will be beneficial to the public, when the application is made to the legislature to grant them, is a question addressed to that body, and unless they are satisfied that the public will be benefited by their construction, the franchise will not be granted. When the application is made to the courts, it is for the courts to determine whether the work will be beneficial to the public, as in the establishment of roads and landings, the power to do which is vested in the courts by statute, chapter 52, Code of 1873-,• and the mode of procedure is prescribed by which the courts may determine whether the proposed road or landing, will be of public benefit, and also the advantage and disadvantage to individuals, and by which individuals and private parties may be compensated for their property which it may be necessary to appropriate to the attainment of the projected improvement. But when the franchise, as the construction of toll-bridges, is granted as in this case directly by the legislature, the benefit it will be to the state or the public is the basis upon which the franchise is granted; and if granted, it is upon the ground that the legislature is satisfied that it will be of public benefit, and hence in such cases the law requires no enquiry to be made by the courts with regard to the benefit it will be to the public. But if in the construction of the work it is necessary to take private property, or private parties are damaged, then it is necessary that the enquiry should be made by the courts as to the value of the property, or the amount of damage sustained, and to award compensation. That has to be done in the case of railroad companies. When a charter is granted to a company or an individual to construct a rail or turnpike road, no action or enquiry is required to be made by the courts as to whether the work will be *800beneficial to the public or not; that question has been decided by the legislature itself, when it granted the charter. And just so when the legislature grants to an individual or company a franchise to construct a toll-bridge, there is no law requiring the question to be submitted to the courts whether it will be beneficial to the public or not; that question has already been decided by the legislature.
In accordance with this principle, the act of March 6th, 1874, was enacted, granting to D. A. Plecker authority to erect the toll-bridge in question, and investing him with franchises therein. Whilst the act authorizes him to “ purchase, or condemn in the mode prescribed by law, a lot of ground, not exceeding one acre, for the erection of a toll-house, and so much land as may be necessary for the abutments and the construction of the said bridge and a convenient pass-way over the same,” it directs no enquiry to be made by the courts as to the public benefits which would accrue from the erection of said bridge. There is no proof in the cause, if it would have been competent for the defendant to have offered such proof, that it would not be beneficial to the public. But if it were proper to go into such an enquiry, there is very strong presumptive evidence that it would be a very great convenience and benefit to the public. The bridge is to be erected over North river, a very considerable stream near the town of Mount Crawford, to furnish a pass-way over said river upon a public highway, near the site of a former bridge upon said highway, which is not now standing, and a slight change to be made in the old road so as to pass over the proposed new bridge. These facts tend strongly to show that it would be a great public convenience and benefit, and it must have been so regarded by Plecker or he would not have undertaken to construct it; for in proportion to the use and benefit to the public, it would be beneficial to him. *801"We do not think that there'is any ground of error in the assignment that the commissioners made no report as to the public benefits, and that no such enquiry was directed by the court.
But it is objected that the plaintiff proceeded under chapter 56 of the Code, and not under chapter 52. The act of March, 1874, which authorizes him to condemn the land, does not require him to proceed under chapter 52 or 56, but to condemn it in the mode prescribed by law. Chapter 56 does prescribe the mode whereby the lands of private parties may be condemned for such purposes, and that mode was pursued in this case. But that act only authorizes a company incorporated for a work of internal improvement, the court of a county or the council of a town to condemn the land. It may with much force be argued that the plaintiff by the act of 1874 is chartered as a sole corporation for a work of internal improvement. He is invested with important chartered privileges as a sole corporation. He and his legal representatives are invested with power to collect tolls on all travel and transportation over sáid bridge, and the rate of the tolls is regulated by the act. And it is expressly reserved to the legislature to change and regulate hereafter the rate of tolls “prescribed by this charter.” The act calls it a “charter.” And it moreover provides that “all laws in force regulating toll-bridges shall apply to this act.” Those laws may be found in Code of 1878, ch. 64, §§ 25, 26, 27, 28, 29, 30; and they show that the proprietor of the toll-bridge is in some sense a public character, and that he holds the franchise under responsibilities to the state and under the regulations of law, and that the erection of a toll-bridge is not a matter exclusively of private interest, but that it is a work in which the public has an interest, and which is subject "to state'control.- • •
*802But this view is not necessary to warrant this proceediug- Although chapter 56 of the Code does not give to A. Plecker authority to proceed in this prescribed mode, but gives such authority only to a company, &c., as before recited, we think the act of 1874 is cumulative in this respect, and gives like authority to I). A. Plecker so to proceed. It expressly gives him authority to condemn, which chapter 56 of the Code does not, if he is not a sole corporation, and to condemn in the mode prescribed by law. And this is the mode prescribed by law to condemn land for such purposes. We are of opinion, therefore, that the proceedings in this case under chapter 56 of the Code, and by authority of the act of March, 1874, were warranted.
There are other assignments of error, which we are of ■ppinion are unsustained. We need only notice one of them—that the act of March 6, 1874, required D. A. Plecker to begin the bridge within six months from its date, and the time had expired before he gave notice to Rhodes of the motion in .this proceeding. The said notice was not necessary to the commencement of the bridge. That may have been commenced within six months. The getting of timbers or other material, we think, would have been a commencement within the meaning of the act. And before the twelve months had expired, within which time the bridge was required to be completed, the act was amended and re-enacted, to-wút: on the 15th of January, 1875, requiring the bridge to be completed within two years. If it was not entirely completed within that time, which is not shown by the evidence certified, the work was most probably retarded by the obstruction interposed by the defendant in error. The progress of the work was probably obstructed by him until the judgment of the county court against him and in favor of the plaintiff, on the 20th of May, 1875. He seems from thence to have made no opposition, and *803from anything that appears to have acquiesced and remained silent, whilst he saw the plaintiff prosecuting the work, and probably at great expense, until the 3d March, 1877, when he applies for and obtains from the circuit court a supersedeas to any further prosecution of the work—not two years from the time the plaintiff was released from his obstructions by the 'judgment of the county court. We think under the circumstances he ought not to be allowed to insist upon a forfeiture by the plaintiff of his franchise, because of his not completing the bridge within two years. If it be a delinquency on the part of the plaintiff, he is in all probability more to blame for it than anybody else, and it is not for him to derive a benefit from it. It is a matter between the plain tiff and the commonwealth, or the legislature, whether the latter would under the circumstances subject the former to a forfeiture of his franchise because he had failed to comply with the strict terms of the proviso, to complete the bridge within two years. The plaintiff says the bridge was nearly completed, when he was arrested again in the work by the defendant obtaining from the circuit court a supersedeas.
Upon the whole, we are of opinion to reverse the judgment of the circuit court, and to affirm the judgment of the county court of Rockingham county.
Moncure, P., and Christian, J., concurred in the opinion of Anderson, J.
Staples and Burks, J’s, concurred in the conclusion, but not in all the views set forth in the opinion of Anderson, J.
The judgment was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of *804the 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 circuit court reversing the judgment of the county court of said county is erroneous, and that there is no error in the said judgment of the said county court. It is therefore considered that the said judgment of the circuit court be reversed and annulled, and that the plaintifF in error, David A. Pleeker, recover against the defendant in error, Jackson Rhodes, his costs by him expended in the prosecution of his writ of error aforesaid here. And this court proceeding to render such judgment as the said circuit court ought to have rendered, it is considered that the judgment of the said county court be affirmed, and that the said David A. Pleeker, the defendant in error in the said circuit court, do recover against the said Jackson Rhodes his costs by him in the said court expended ; which is ordered to be certified to the said circuit court of Rockingham county.
Judgment of the circuit court reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482066/ | Staples, J.,
delivered the opinion of the court.
The court is of opinion that the circuit court did not err in overruling the demurrers to the first and third counts of the plaintiff’s declaration. Ilu an action for damages occasioned by the negligence or misconduct of the defendant, it is not necessary for the plaintiff to allege and prove the existence of due care and caution on his part to entitle him to recover.. If the defendant relies upon contributory negligence of the plaintiff to defeat the action he must prove it, unless indeed the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the circumstances. As proof of due care is not a part of plaintiff’s ease, it is of - course not necessary he should aver it in his declaration. Railroad Company v. Gladmon, 15 Wall. U. S. R. 401; Shearman & Redf. on Negligence, § 43, and cases cited.
The court is further of opinion that the circuit court erred in overruling the demurrer to the second count in the declaration. Substantially, the allegation is that the defendants were possessed of certain engines and cars used and employed in carrying passengers and freight along the line of their railway in Frederick county, Ya., and that on the 23d of June, 1874, the defendants conducted themselves so negligently aud unskilfully in the operation of their said business as to inflict upon the plaintiff’s intestate severe bodily injuries, by reason *810whereof he died. How, whether the plaintiff’s intestate was at the time a passenger on the train and received his injuries as such, or whether he was an employee of the company and was injured while engaged in their service, or whether he was a stranger crossing the track of the company’s road, or whether he was on the track at all, or in the cars, or at a station, or in what maimer he was injured, the declaration does not inform us. Tt was impossible for the defendants to learn from this declaration the ground upon which plaintiff was proceeding. The declaration amounted to an averment simply, that the plaintiff’s intestate was injured by the negligence of the defendants in the operation of their business in using /and employing their engines and cars on their railway. ^The object of a declaration is to set forth the facts.which Constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment! 1 Chitty Plead. 256; Barton’s Law Prac. p. 103. It is very true that in actions for torts it is frequently sufficient to describe the-injury generally, without setting out the particulars of the defendants misconduct. In such cases great latitude of statement is allowed. But this rule does not justify a general and indefinite mode of declaring, admitting of almost any proof. 1 Chitty Plead. 406, note; Jones v. Stephens, 11 Price’s R. 235; 1 Saunders on Plead, and Evidence, 510.
The learned counsel for the plaintiff' insists that if greater particularity is required in stating the cause of action, the plaintiff is liable to he defeated on the trial by, a variance between the allegations and the proofs. A declaration can, however, subserve no good purpose unless it be sufficiently specific to inform the adverse party of the ground of the complaint. If it is deficient in that particular it may as well be dispensed with alto*811gether. The' plaintiff is presumed to have some knowledge of the facts upon which his action is founded. If he is in doubt as to the precise nature of the evidence, he may frame his declaration with different counts, varying his statements to meet every possible phase of the testimony.
The second count being defective in the particulars already mentioned, the demurrer to it ought to have been sustained.
The court is further of opinion that the circuit court did not err in rejecting the special pleas tendered by the defendants and set out in their first bill of exceptions. The facts stated in their pleas were covered by the general issue joined at a previous term. It was announced by the court and conceded by the counsel for the plaintiff, that the matters set forth in the pleas could be shown under the issue joined, and they wore in fact relied on before the jury. Under such circumstances it is clear the defendants could not have been in the least prejudiced by the rejection of the pleas. The circuit court very properly exercised its discretion in refusing to allow them to be filed. 1 Rob. Prac. 2-33.
The court is further of opinion that the circuit court erred in not setting aside the verdict and granting the defendants a now trial. The certificate of facts given by the presiding judge, shows that the plaintiff’s intestate was in the service of the defendants as manager or foreman of the hands employed in making repairs on a section or sections of the road near Newtown station; that he had been thus employed for several years, and that while standing near the track of the road he was struck by one of the passenger trains. In what manner this occurred does not very clearly appear. The theory of the plaintiff’s counsel is, that the deceased being at work in repairing the track of the road, upon the approach of the train, withdrew from the track a sufficient *812distance to be entirely safe, if the train had been running at its usual speed and with its usual cars. But on that day the train was running on a new schedule with greatly accelerated speed, and with a Pulman or sleeping car attached, which is much wider than the ordinary car, and that the deceased was not notified of either of these facts; that at the point where the injury occurred, there is a curve in the bed of the road, and as the train was passing around this curve the increased speed of travel imparted to it a vibratory or oscillatory motion, and by reason of this motion e ' the greater width of the Pulman car, the decease.. was struck by the iron step attached to that car.
These are mere inferences of the learned counsel, for the record contains no proof of the supposed curve in the road, or that the Pulman car was for the first time attached to the train that day, or of the alleged vibratory motion, or the extent of it, or of the important fact that the deceased was at a sufficient distance to be secure if the train was running upon the previous schedule. This whole theory of the learned counsel is based upon the proposition that a railroad employee may nicely calculate or estimate the exact distance at which a man may stand from the railroad track when a train is approaching, supposing the train to travel at its usual speed, and that he has the right to assume that this speed will not be increased without notice to him, and if without such notice it is increased, and the employee is thereby injured, it is such negligence in the company as entitles the party to damages, although it is manifest that the employee might avoid every injury simply by placing himself a few feet further from the track of the road.
This, it must be admitted, is reducing the calculation of escape and accident to a fractional point. When it is considered that upon many of the railroads there are hundreds and even thousands of laborers daily and hourly *813employed all along the line, and not unfrequently twenty and even fifty trains a day, this proposition that a company is under obligation to give notice to each of its employees of every change of schedule, and of every alteration in the width of its coaches, involves consequences of the greatest magnitude. It is not denied that a company may be liable to an employee for an injury occasioned by a change of schedule of which the employee has no notice, provided he is without fault or negligeuce himself. But it is obvious to every mind, that a man who stands near enough to a railroad track to be struck by a train, if perchance there should be an increase of speed, or a change of cars, is simply guilty of the greatest imprudence and negligence.
Ho man is justified in placing himself near a passing train upon any such idea or presumption. It is inexcusable rashness and folly to do so. The instincts of self-preservation, the dictates of the most ordinary prudence, would suggest, and even require, that every person upon the approach of a train shall retire far enough to avoid injury, whatever may be the speed of the train or the width of the cars. He must at his peril place himself where he cannot be struck by the train so long as it continues upon its track. Of course the result might be-very different where the employee in remaining on or near the track is acting under the instructions of the company.
In the present case the deceased both saw and heard the train long before it reached him. It is not denied he had ample time to get out of the way. He knew, or ought to have known, the train was considerably behind its usual time that day, and was, therefore, necessarily running at an increased speed.
O’Heil, a subordinate of the deceased, was on the same side of the road with the deceased, but separated from him by a bridge; he, upon the approach of the train, stepped five or six feet down the side of the em*814bankment from the track, and thus placed himself in a position of security. Cross, another employee, saw -the train coming and stepped out upon an abutment of the bridge, and was unhurt. Rogers, another laborer under the deceased, bad been working on the side of the track immediately opposite the place the deceased ivas working, Lad passed to the deceased’s side of the track just before the train came, and assisted him in raising and ramming a loose joint in the rails; he heard the train whistle at Newtown station, saw it coming and stepped immediately across the track to the side on which he had previously stood, and escaped all danger. The deceased, who was a superintendent, a foreman, and presumably possessed of more intelligence than the others, could have done the same thing, or he might have gone down the embankment as was done by O’Neil. The only witness who saw him at all while the train was passing, states that at the rear platform of the rear car ho saw a man apparently within a foot of the train, with his face to the train, in the act of spiraling dr whirling around, tumbling down the embankment.
If this he so, and it is certified as a fact-in the cause, it would of itself go very far to show the grossest negligence on the part of the deceased in remaining so near the road as to incur all the risks of injury from the passing train. Under such circumstances it is clear there can he no recovery. The rules of law governing in cases of contributory negligence are well settled. They have been very recently the subject of consideration in the case of the Baltimore & Ohio R. R. Company v. Sherman, decided at the present term. The principle of the eases is, that if the wrongful or negligcut act of the plaintiff co-operated with the misconduct of the defendant to produce the damage, the action cannot be maintained. In other words, if the plaintiff through want of ordinary -care has materially contributed to the injury he has sus*815tained, he is precluded from a recovery, although the defendant may be chargeable with negligence also. If, therefore, it should be conceded in this case that defendants were guilty of negligence in not apprising the deceased of the change of schedule time and of the addition of the Pulman car, and that the deceased was . . , , „ , . ,. , mjured by reason of the operation of these two causes, still it is plain the deceased, by the exercise of ordinary care and prudence, such as was shown by his associates, would have sustained no injury whatever. 2 Redf. on the Law of Railways, 244; Peirce on Amer. R. R. Law, 272.
These principles of law apply with peculiar force to employees of a railroad company, who are in a relation of privity with their principals, have every opportunity of becoming well acquainted with the business, and are presumed to know and understand something of the risks and dangers incident to that business. Prom spell persons a greater degree of caution in avoiding dangers ought to be required than from passengers and others having no privity with the company and no especial acquaintance with the operations of the road. And this distinction is not only sustained by the authorities, but is founded in reason and sound policy.
For these reasons the court is opinion that the verdict is contrary to the law and the evidence, and the circuit court erred in not setting it aside and granting the defendants a new trial. This renders unnecessary any special consideration of the several instructions asked for by the defendants, and set'out in their hills of exceptions Los. 4 and 5. Besides, it is apparent the questions presented by these instructions are not likely to arise upon any future trial.
Plaintiff’s instruction set out in defendants’ third bill of exceptions is as follows:
“If the jury believe from the evidence that the death of Whittington was the result of a change of the usual *816train from an accommodation train of moderate rate of travel to what is known as a lightning express train of a rate of travel from twenty-five to thirty-five miles per hour, and of a change of schedule of the time of running the train passing the point at which "Whittington was killed, that said changes were by the chief authority of the Baltimore and Ohio Railroad Company, and that the death of said "Whittington was without fault on his part, and that said company had not given notice of said changes to its employees—Whittington being one of them—so as to enable them to avoid danger, they are instructed that it was the duty of said railroad company to give such notice; and their failure to do so is the negligence of the said company, for which said company is responsible in damages.”
This instruction, in itself, is not objectionable. From what has been already said, however, upon the subject of the motion for a new trial, it has been seen that the evidence shows that the death of the plaintiff’s intestate “ was not without fault on his part.” In this view it may he a question whether the facts justified an instruction of the kind; but in the language of this court in Early v. Garland's lessee, 18 Gratt. 1, 14: “To withdraw a case from a jury by first passing upon a question of fact and then refusing the instructions because in the opinion of the court the evidence failed to prove the ease assumed, would necessarily involve a confusion of the boundaries separating the province of the court from that which properly belongs to the jury. Where there is any evidence tending to make out the case supposed in an instruction, it is safest and best to give the instruction, if it propound the law correctly.” Early v. Garland's lessee, 13 Gratt. 1, 2.
In this view it cannot he affirmed that the circuit court erred in giving the instruction, more especially as the question of negligence was peculiarly one for the consideration of the jury. But for the reasons already *817stated, the court is of opinion that the judgment of the circuit court is erroneous and must be reversed and annulled, the verdict set aside, and a new awarded the defendants, with liberty to the plaintiff .to amend his declaration if he so desires.
The j udgment 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 second count in the plaintiff’s declaration is not sufficiently certain in setting forth the facts upon which the cause of action is founded, and the court therefore erred in overruling the demurrer to that count, but the said circuit court did net err in overruling the demurrer to the other counts of the declaration.
The court is further of opinion that the circuit court did not err in giving to the jury the instruction set out in the defendants’ third bill of exceptions. The court deems it unnecessary to express any opinion upon the two instructions asked for by defendants and refused by the court, as it is obvious the questions presented by said instructions are not likely to arise upon any future trial.
The court is further of opinion that the said circuit court did not err in rejecting the special pleas tendered by the defendants, as the matter of said pleas was covered by the general issue, and under that issue were relied on before the jury.
The court is further of opinion that the circuit'court erred in refusing to set aside the verdict .and grant the defendants a new trial, for the reason that the verdict was contrary to the law and the evidence.
*818It is therefore considered by the court that, for the reasons aforesaid, the judgment of the circuit court be reversed and annulled, the verdict set aside, and a new trial awarded the defendants in conformity with the views herein expressed; and that the plaintiffs in error recover against the defendant in error their costs by them expended in the prosecution of their writ of error and supersedeas aforesaid here; and the cause is remanded to the said circuit court and leave given the plaintiff to amend his declaration, if he desires to do so; all 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/8482068/ | Anderson, J.,
delivered the opinion of the court.
This is an action of debt by the holder against the maker and endorsers of a negotiable note for $2,000, *829and $2.61 costs of protest, with interest thereon from the 24th of June, 1875, till payment. .The defendants severally pleaded nil debit and usury, upon which issues were joined; and neither party desiring a jury, the cause was submitted to the decision of the court. And the court being of opinion that the contract sued on was usurious, and that the sum of money actually loaned by the plaintiff, was the sum of $1,745, gave judgment for the plaintiff' for that amount, without interest on said sum or on said judgment, and also for the sum of $2.61, the costs of protest, with interest thereon. The plaintiff excepted to the said ruling and judgment of the court, and the case is brought hei’e upon a writ of error and supersedeas to said judgment.
The errors assigned are—first, that the court by its judgment extended the plaintiff’s forfeiture of interest beyond the maturity of the note; secondly, that it extended the forfeiture after judgment, and indefinitely until payment.
Section 5, of chapter 122, Acts of 1874, declares that “all contracts and assurances made, directly or indirectly, for the loan or forbearance of money or other thing at a greater rate of interest than is allowed by the preceding section, shall be deemed to be for an illegal consideration as to the excess beyond' the principal amount so loaned or forborne.”
The question for the court was: "What is lawfully due and owing to the plaintiff? For so much he was entitled to a judgment. The principal amount loaned by him was unquestionably owing to him. For that there was a valuable and lawful consideration—the amount actually loaned to the borrower—and for that he was entitled to a judgment. But for the interest which had accrued on that sum, being an excess beyond the principal, whieh by the terms of the statute shall be deemed to be for an illegal consideration, the plaintiff was not entitled to a *830judgment. The court is of opinion, therefore, that it was not error to disallow interest to the date of the judg- ■ meat.
Was it error to disallow interest upon the judgment itself? The amount for which the judgment was rendered was not by the statute tainted with usury. According to the statute, the usury did not affect the principal sum loaned. The consideration for that (the amount loaned) was not illegal. The illegality of the consideration extended only to the excess beyond the principal sum loaned.
This section of the act of 1874, makes a radical change in the law of usury, as it existed prior to the Code of 1878. At common law the whole contract was tainted with the usury, principal and interest. And prior to the statute, as it is in the Code of 1873, when the contract was for a greater rate of interest than was lawful, the contract was declared to be void by statute. The revisors in their report of 1846, page 714, proposed, in accordance with the English statute of 5 and 6 Will. IV, ch. 41, § 1, instead of making the contract void, to declare that it shall, as to the excess, be deemed to be for an illegal consideration. This recommendation was not adopted at the revisal of 1849, and the contract continued to be void until the Code of 1873, when it is made void only for the interest in excess of six per centum per annum. By the act of 1874, supra, the law-was amended so as to repeal the provision which makes the contract or assurance void, and to declare only that it shall be deemed to he for an illegal consideration, as to the excess beyond the principal amount loaned or forborne. And when the judgment gives the plaintiff the principal sum loaned, without interest to the date of the judgment, it fully meets and satisfies the requirements of this section; and it is an adjudication of what is due the plaintiff at the date of the judgment. The contract *831becomes merged in the judgment, and the plaintiff holds his debt by a higher security, a security which charges the whole real estate of his debtor. The judgment is a debt which is neither tainted with usury nor founded upon an illegal consideration.
As the law now is, it is eliminated from all usurious taint, and from all that was founded on any illegal consideration, and stands upon the same footing of any other debt for which there is a judgment, and is in like manner entitled to bear interest from the date of the judgment. By the 14th section of chapter 173 of Code of 1873/4 verdict which does not allow interest, shall bear interest from its date, and judgment shall be rendered accordingly. The court is of opinion, therefore, that the judgment in this cause is erroneous in disallowing interest upon the debt found to be due the plaintiff' from the date of the judgment. And it being an error in the judgment of the.court, and not a mistake, miscalculation, or such error as could have been corrected by motion to the court which rendered the judgment under-section 5 of chapter 177 of the Code, the plaintiff’s remedy was by w'rit of error and supersedeas from this court. The court is of opinion, therefore, that there is error for this cause, for which the judgment of the circuit court should be reversed. And the court here proceeding to render such judgment as the court below should have rendered, makes the following order:
The court being of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in rendering judgment for the plaintiff for the debt found to be due, without interest upon the said judgment, it is considered that the said judgment be reversed and annulled, and that the plaintiff’ in error recover his costs of the defendants in error, expended in the prosecution of his writ of error here. And this court proceeding to render such judgment as ought to have been rendered by the *832court below, it is considered that the plaintiff’ recover from the defendants the sum of $1,745, with interest from the 10th day of May, 1877, the date of the judgment, till payment; and the further sum of $2.61, the costs of protest, with interest thereon from the 24th day of June, 1875, till payment, and his costs expended in the prosecution of his suit in the circuit court.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482069/ | Christian, J.,
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of Washington county, affirming a judgment of the *834county court of said county, convicting the prisoner of arson, .and fixing the term of his imprisonment in the penitentiary at six years.
Several bills of exception were taken during the trial, hut they raise only two points which this court is called upon to decide. For while there was a motion to set aside the verdict and grant a new trial, which was overruled, it does not appear that this judgment of the court was excepted to by the prisoner, nor is there any certificate of all the facts proved, or of all the evidence hoard on the trial. The bills of exceptions state only so much of the evidence as was objected to as inadmissible.
The first question we.have to determine is, whether the court erred in overruling the demurrer to the indictment.
The prisoner was indicted under the 6th section of chapter 188, Code 1873, which provides that “if a person maliciously burn any building, the burning whereof is not punishable under any other section of this chapter, he shall, if the building with the property therein be of the value of one hundred dollars or more, be confined in the penitentiary not less than three nor more than ten years, and if it be of less value, be so confined not less than one nor more than three years; or, in the discretion of the jury, in jail not more than one year, and be fined not exceeding five hundred dollars.”
The indictment in this case charges that the prisoner “did feloniously and maliciously burn a certain barn and tjie property therein, said barn and the property therein being the property of one IT. TL Dulaney, and situated in said county, which said barn, with the property .therein, was then and there of the value of .$1,500.”
The ground alleged for the demurrer, as stated by the ■counsel for the petitioner, is, that “ the offence is not ■charged with sufficient certainty, there being no allega*835tion that there was actually any property in said barn, .and the said property in said barn is not specified, or in .any way stated so as to give the petitioner any notice of what he was called upon to answer.”
The court is opinion that this objection is not well taken, and the court did not err in overruling the demurrer.
The indictment was framed nearly in the very language of the statute. The charge was that the accused did “ maliciously burn a barn, which, with the property therein, was of the value of $1,500.” The statute does not prescribe that the property in the barn shall be specified, nor its value, independent of that of the barn, shall he proved.
It only fixes the term of imprisonment according to the value of the building and property therein that is burned. All this is a matter of proof. If the building ■and property therein contained is of the value of one hundred dollars, then the punishment is by confinement in the penitentiaiy not less than three nor more than ten years; if both building and contents are of less value than one hundred dollars, then the punishment is for a term of not less than one nor more than three years, &c. The prisoner was not taken by surprise in any sense when he was called upon to answer the charge of having burned a barn of H. H. Dulaney, which barn, with the property contained therein, was of the value of $1,500. It was still his privilege to show, if he could, in order to reduce the punishment, that the value of the barn and •contents was less than $100, and it was legitimate for the Commonwealth to show that it was of a greater value than $100. All this was matter of evidence, and did not affect the sufficiency or validity of the indictment.
The next question we have to determine is, whether the court erred in admitting the confessions of the pri*836soner offered by the Commonwealth in evidence. These confessions and the circumstances under which they were made are set out in two bills of exceptions, marked Ho. 2 and 3. In the first-named, as follows:
“The Commonwealth, to further maintain the issue on her part, asked the witness, H. H. Dulaney, if the defendant had told him anything about the burning of the bam above referred to, and the witness replied that he had stated in December after said burning, in the town of Goodson,--; the defendant approached witness and told witness that he had been wanting to talk to witness and defendant’s father, and the -, thinking he wanted to talk to him about the barn-burning, said to defendant to be certain not to implicate himself or apy one else that was not guilty, and that he (witness), without waiting to hear what defendant then had to say, procured one Hamlett, the sergeant of said town, to take prisoner in charge until he (witness) could procure a warrant for his arrest; that after witness returned the defendant,' in presence of witness, and a man whom said Hamlett had procured to guard the prisoner, told the witness that he (the defendant) and Jack Eoss went to the barn on the night of the burning, and that said Eoss struck a match and threw it on some straw and set the barn on fire; and that no notice or warning was given to the defendant at or before the making of said statement by witness or said guard. And the counsel for the prisoner thereupon objected to the introduction of said statement in evidence; and pending the ai’gument thereof ■ by defendant’s attorney, the witness, in answer to a question from the court to re-state his testimony, testified as follows: That Wolf told him that he and Jack Eoss went there on the night the barn was burnt to burn it, and that Eoss struck a match and threw it on the straw. And the defendant’s attorney insisted on his motion to exclude the whole of said statement; -which motion the *837court overruled, and the defendant excepted. And to further maintain the issue, the attorney for the Commonwealth asked the said witness if defendant had at any time made any statement to him in regard to said burning, and if so, to state the time and circumstances under which said statements were made; and the said witness stated that after the finding of this indictment, and when the prisoner -was arrested, after having escaped from -, the witness accosted prisoner and said to him that he had been at liberty, had been loose, and that he had once told witness that he had taken paid in burning the barn (referring to conversation at Goodson, referred 'to above), and asked him if he yet said that he had helped to burn the barn. In answer to which the defendant said, Jack Eoss set fire to the barn, and that he (defendant) did not, but that he was there with him, and that he had denied setting the match to the barn, and that he would not own what he was not guilty of. After the said witness had detailed the said facts above, and before he gave the answer of defendant, the defendant, by attorney, objected to witness answering the question asked by the attorney for the Commonwealth as to what defendant then said; which objection the court overruled, and permitted the witness to answer the question as stated, and the defendant excepted.”
The court is of opinion that the confession contained in this bill of exceptions, under the circumstances under which it was given, was clearly admissible evidence, and that the court did not err in permitting it to go to the jury.
The confession in this case was riot made to one in authority, nor was it made in consequence of any threat made or promise held out to the prisoner. On the contrary, it was made to one not in authority, and so far from being made under threat or promise of reward, was voluntarily made to one who had a short time before said *838to prisoner “ to be certain not to implicate himself or any one else that was not guilty.”
The rule upon this subject was laid down by this court in the case of Smith v. Commonwealth, 10 Gratt. 734. Judge Lee, in a very able and elaborate opinion, in which he reviewed many of the English and American authorities, says (page 739): “The rule which may be fairly deduced from authoritative decisions on the subject is, that a confession may be given in evidence unless it appear that it wms obtained from the party by some-inducement of a worldly or temporal character, in the nature of a threat or promise of benefit, held out to him in respect of his escape from the consequences of the offence or the mitigation of the punishment by a person; in authority, or with the apparent sanction of such a person.”
The doctrines of this case were reaffirmed and approved in the case of Thompson v. Commonwealth, 20 Gratt. 724.
The court is therefore of opinion, that the court did not err in admitting the confession of the prisoner as set forth in the second bill of exceptions.
"We come now to consider the third and last bill of exceptions. The confession set out in that is as follows:
“ The Commonwealth, further to maintain the issue on her part, introduced one W. M. Rutherford, and asked the said Rutherford if he wras present at the examination, of the defendant and Jack Ross before one Esquire Campbell; to which the witness replied that he was; and then asked the said witness if the defendant made any confession to or before said Magistrate Campbell; and upon objection being made by defendant’s counsel to the ansivering of said question, the court asked the witness to state the facts surrounding the said transaction, and the witness answered that he was unable to do so, and could not state anything that occurred, except that the *839saicl magistrate asked a question, and tjie defendant answered it, and the court directed said Rutherford to stand aside, and called H. H. Dulaney to the stand, and told him to state the facts occurring at the time, and said witness stated that he was present at the trial until the time that Esquire Campbell was reading the warrant to the prisoners, and then went out of the room and was absent about three minutes, and when he returned the prisoners were just in the act of sitting dowm ; that previous to leaving the room, nothing had been said to the prisoners in relation to the charge against them, and that he did hear the prisoners asked if they were guilty or not guilty, and did not hear them reply; and thereupon the witness Rutherford was recalled, and stated that he was standing very close to the prisoners, and heard nothing said to them except the question of Esquire Campbell and their reply, and that said prisoners were standing up w'hen they replied to the question of Esquire Campbell, and that there was a large crowd in the room, and he was unable to state what occurred; and then the court, on consideration, overruled the objection of the defendant, and permitted said witness to answer said question, in ' answer to which the witness said that the said magistrate (Campbell) asked the said prisoners if they were guilty or not guilty, and that the defendant (Wolf) answered, ‘We are guilty;’ to which ruling of the court the defendant objected, and, to save the benefit thereof, filed this his bill of exceptions, which is signed, sealed, and made a part of the record.”
The question raised by this bill of exceptions differs from the one we have just been considering only in this : Here the confession was made to a person in authority; indeed, to the magistrate before whom the prisoner, together with one jointly charged with the same offence, was being examined. Hut in order to exclude a confession it is not sufficient, according to the rule laid down *840in Smith’s case, supra, that the confession should be simply one made to a person in authority, it must also appear that the confession was made under inducement of a threat or promise of benefit. If made voluntarily to a person in authority, or even to one having the prisoner in custody, it is still admissible.
In 1 Whart. Am. Cr. Law, §§ 689, 690, where a large number of cases, English and American, are collected, it is said: “A confession made to an officer who has the prisoner in custody is admissible, provided it was not induced by improper means.” And a confession is admissible although it is elicited by questions put to a prisoner by a magistrate, constable or other person; provided, of course, it is not induced by any threat or promise of benefit. The cases referred to by Mr. "Wharton fully sustain the propositions laid down by him, and are settled by the great weight of authoritative decisions on the subject. See also Joy on Confessions, page 59 (marg.), section 7, and authorities cited in notes.
The evidence set forth in this bill of exception shows that the confession was induced by no improper means. The magistrate simply asks the prisoners, after reading the warrant to them: “Are you guilty or not guilty?” and Wolf, the prisoner whose case is now before us, answers, “We are guilty.” We think this evidence was properly admitted.
We are therefore of opinion upon the whole case, that there was no error in the judgment of the circuit court, and that the same be affirmed.
Judgment aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481354/ | [Cite as Crandall v. Crandall, 2022-Ohio-3956.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
CHRISTOPHER L. CRANDALL C.A. No. 21CA0078-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ELIZANNA M. CRANDALL COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 16 DR 0423
DECISION AND JOURNAL ENTRY
Dated: November 7, 2022
CARR, Judge.
{¶1} Appellant, Elizanna Crandall, appeals the judgment of the Medina County Court of
Common Pleas, Domestic Relations Division. This Court reveres and remands.
I.
{¶2} This Court set forth many of the pertinent procedural facts in this matter in the
parties’ prior appeal:
The Crandalls were married in 2004 and have no children together. Before the
wedding, they entered into a prenuptial agreement. In 2016, Husband filed for
divorce and Wife counterclaimed for divorce. The trial court scheduled the final
hearing for June 2017. Two weeks before the hearing, Wife obtained new counsel.
Wife’s new counsel moved for a continuance, but the trial court denied the motion.
The trial court issued its judgment in May 2018, and Wife [] appealed, assigning
twelve errors. Husband [] cross-appealed, assigning two errors.
Crandall v. Crandall, 9th Dist. Medina Nos. 18CA0044-M, 18CA0046-M, 20CA0013-M, 2021-
Ohio-3276, ¶ 2.
{¶3} This Court determined that the trial court’s order did not constitute a final,
appealable order because the trial court failed to determine how Husband’s individual retirement
2
account should be divided and it further failed to determine how much of the appreciation of the
value of the marital home was attributable to active appreciation and how much was attributable
to passive appreciation. Id. at ¶ 7, 10.
{¶4} On remand, the trial court held a hearing via Zoom where the parties agreed there
was no need for the trial court to take additional evidence in order to issue a final, appealable order.
The trial court subsequently issued a revised judgment entry of divorce.
{¶5} Wife has appealed and raises ten assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING
WIFE’S MOTION FOR CONTINUANCE OF THE TRIAL DATE.
{¶6} In her first assignment of error, Wife contends that the trial court abused its
discretion when it denied her motion for continuance prior to trial. Wife emphasizes she requested
only a short continuance, and she informed the trial court why she would be prejudiced if her new
attorney was not given additional time to prepare for trial. Wife further asserts she had done
nothing to cause the trial date to be delayed prior to requesting a continuance.
{¶7} An appellate court reviews a trial court’s ruling on a motion for a continuance for
an abuse of discretion. State v. Acoria, 129 Ohio App.3d 376, 378 (9th Dist.1998); Swedlow v.
Reigler, 9th Dist. Summit No. 26710, 2013-Ohio-5562, ¶ 9. An abuse of discretion means more
than an error of judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶8} “In determining whether the trial court abused its discretion by denying a motion
for a continuance, this Court must ‘apply a balancing test, weighing the trial court’s interest in
controlling its own docket, including facilitating the efficient dispensation of justice, versus the
3
potential prejudice to the moving party.’” State v. Dawalt, 9th Dist. Medina No. 06CA0059-M,
2007-Ohio-2438, ¶ 10, quoting Burton v. Burton, 132 Ohio App.3d 473, 476 (3d. Dist.1999). The
Supreme Court of Ohio has observed that
[i]n evaluating a motion for a continuance, a court should [consider] the length of
the delay requested; whether other continuances have been requested and received;
the inconvenience to litigants, witnesses, opposing counsel and the court; whether
the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or
contrived; whether the [movant] contributed to the circumstance which gives rise
to the request for a continuance; and other relevant factors, depending on the unique
facts of each case.
State v. Unger, 67 Ohio St.2d 65, 67-68 (1981). “There are no mechanical tests for deciding when
a denial of a continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the reasons presented to the trial judge at
the time the request is denied.” Unger, 67 Ohio St.2d at 67, quoting Ungar v. Sarafite, 376 U.S.
575, 589 (1964).
{¶9} This matter was scheduled for trial on June 13, 2017. Five days prior to trial, Wife
filed a motion notifying the trial court that she had retained new counsel and requesting a short
continuance of the trial date of between 30 to 60 days. Wife noted there had been a breakdown in
communication with former counsel and it had become apparent that former counsel was not
prepared for trial. Wife raised several specific concerns, including that she had recently learned
Husband was in possession of several assets that were not previously disclosed and that former
counsel had not had time to investigate the value of those assets. Wife also noted new counsel
needed time to secure subpoenas for several witnesses. Wife stressed new counsel would begin
reviewing the file immediately but would not be prepared to go forward on the scheduled trial date.
{¶10} The day after Wife filed her motion for a continuance, the trial court issued a journal
entry finding that Wife’s motion was not in compliance with the local rules because former counsel
4
had not filed a timely written motion requesting permission to withdraw. While the trial court
instructed the parties to be prepared for trial, it indicated that it would hear arguments on the motion
for a continuance on the scheduled trial date. Former counsel filed a motion requesting permission
to withdraw just hours after the trial court issued its journal entry.
{¶11} The parties appeared before the trial court on June 13, 2017, at which time new
counsel renewed his motion for a continuance. New counsel explained that Wife felt compelled
to retain a new attorney because former counsel was not returning her calls and it became apparent
that he was not prepared for trial. In addition to the fact that former counsel had not prepared a
trial brief, Wife was concerned that former counsel had yet to subpoena key witnesses and bank
records. When former counsel transferred the case file to new counsel, former counsel indicated
that he was in the process of serving over 20 subpoenas. New counsel stated that as of the trial
date only three subpoenas had been returned and only one witness appeared for trial. New counsel
further stressed that the case involved a number of complex financial issues and that former
counsel failed to obtain valuations for certain assets that would be pertinent to the proceedings.
New counsel asserted that only one trial date had been scheduled to that point and Wife was only
asking for a short continuance.
{¶12} When asked to respond, Husband’s counsel stated that he would defer to the trial
court.
{¶13} The trial court then stated as follows:
[] I have to say that this case has been pending for nine months. Both counsel
appeared to be prepared at the pretrial. I don’t see any reason not to go forward
today. It’s been indicated to me that this is going to be a multi-day trial, so you
would certainly have the ability to subpoena whatever people are necessary, so the
motion to continue is denied.
5
{¶14} Thereafter, new counsel waived opening statement on the basis that he was not
prepared to offer one. The trial court noted for the record that it had accommodated new counsel
by allowing new counsel and former counsel to spend the morning together. New counsel
acknowledged that approximately seven days earlier, former counsel had transferred two office
boxes to new counsel’s office. On the morning of trial, the trial court allowed new counsel and
former counsel to speak for three hours, at which time former counsel represented that the two
office boxes consisted of the entire case file. New counsel had the opportunity to ask questions
during that time and when the trial court granted former counsel’s motion to withdraw, former
counsel left the courthouse.
{¶15} Under the specific circumstances of this case, the trial court abused its discretion in
denying Wife’s motion for a continuance. In support of her motion, Wife articulated her basis for
obtaining new counsel as well as a number of reasons why she would be prejudiced if she did not
receive a continuance. Most notably, new counsel had been working on the case for only a week
and he needed additional time to secure valuations for certain assets and clarify the availability of
witnesses. Husband did not oppose the motion for a continuance. In denying the motion, the trial
court noted that the case had been pending for nine months but largely declined to address the
substantive concerns raised by Wife, other than to say that Wife would have the opportunity to
subpoena witnesses over the course of the multi-day trial. The denial of the continuance
undermined Wife’s ability to fairly litigate this matter. The trial transcript reveals that there were
multiple occasions where Wife was limited in her ability to either present evidence or contest
Husband’s evidence due to the trial court’s denial of the continuance.1 The fact that the trial court
1
There were multiple occasions throughout the course of the trial where Wife informed
the trial court that she would be unable to present certain pieces of evidence unless she received a
continuance. The trial court denied her motions.
6
gave new counsel and former counsel several hours to discuss the case is immaterial given that the
purpose of moving for a continuance was that former counsel had failed to adequately prepare for
trial. It follows that the trial court abused its discretion in denying Wife’s motion for a continuance.
{¶16} The first assignment of error is sustained.
ASSIGNMENTS OF ERROR II – X
{¶17} Wife raises nine additional assignments of error. In light of this Court’s resolution
of Wife’s first assignment of error, this Court declines to address the remaining assignments of
error as they have been rendered moot. App.R. 12(A)(1)(c).
III.
{¶18} The first assignment of error is sustained. This Court declines to address the
remaining assignments of error as they have been rendered moot. The judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded
for further proceedings consistent with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
7
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
ADAM MORRIS, Attorney at Law, for Appellant.
DAVID MCARTOR, Attorney at Law, for Appellee. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481347/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal No. 20-24 (JEB)
SALUSTHIAN LUTAMILA,
Defendant.
MEMORANDUM OPINION
This past May, a jury convicted Defendant Salusthian Lutamila on 21 counts of bank
fraud, theft by credit-union employee, wire fraud, and money laundering, in violation of 18
U.S.C. §§ 657, 1343, 1344, and 1957. Each of these counts originated from his decision to
orchestrate an embezzlement scheme lasting over two and a half months. During that time, he
stole a total of $610,000 from his employer, the Inter-American Development Bank – IIC Federal
Credit Union. Having recently been sentenced to 44 months of incarceration, Defendant now
moves this Court pro se to grant him release pending appeal. As there is no legitimate basis for
his request, the Court will deny his Motion.
I. Legal Standard
Under 18 U.S.C. § 3143(b)(1), a Court must detain a defendant pending appeal unless it
finds:
(A) by clear and convincing evidence that the person is not likely to
flee or pose a danger to the safety of any other person or the
community if released . . . and (B) that the appeal is not for the
purpose of delay and raises a substantial question of law or fact
likely to result in — (i) a reversal, (ii) an order for a new trial, (iii) a
sentence that does not include a term of imprisonment, or (iv) a
1
reduced sentence to a term of imprisonment less than the total of the
time already served plus the expected duration of the appeal process.
Because the Government does not dispute that Lutamila has satisfied subsection (A) and
the first part of (B), the sole question here is related to the second part of (B). Such analysis is
generally construed as a dual inquiry: (1) Does the appeal raise a substantial question of law or
fact? (2) If so, would the resolution of that question in Defendant’s favor be likely to lead to any
of the results listed above? See United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987).
In determining whether Defendant has raised a substantial question, the Court keeps in
mind that there is a presumption of a valid conviction when assessing motions for release
pending direct appeal. Id. at 556. Defendant bears the burden of rebutting this presumption.
United States v. Libby, 498 F. Supp. 2d 1, 3 (D.D.C. 2007); see also United States v. Shoffner,
791 F.2d 586, 589 (7th Cir. 1986) (holding that defendant must “demonstrate that he has a
substantial question to present [on appeal] before he may be admitted to bail”). To determine
whether a substantial question exists, a court must inquire whether a defendant has raised an
issue that is “a close question or one that very well could be decided the other way.” Perholtz,
836 F.2d at 556; see id. at 555 (stating that “close question” standard is “more demanding” than
one that requires inquiry to be “fairly debatable,” “fairly doubtful,” or simply “not frivolous”);
see also United States v. Adams, 200 F. Supp. 3d 141, 144 (D.D.C. 2016) (setting out standard).
II. Analysis
In seeking his release, Lutamila asseverates that his appeal will indeed raise substantial
questions. See ECF No. 114 (Mot. for Release) at 15–16. These are: (1) whether he suffered
constructive denial of counsel; (2) whether the Government engaged in misconduct; and (3)
whether this Court sufficiently considered his extraordinary family circumstances when it
imposed his sentence. Id. at 2, 7, 11. The Court examines each of these issues in turn.
2
A. Constructive Denial of Counsel
Lutamila first contends that his counsel were deficient at trial because they failed to
obtain evidence that could have helped him disprove the Government’s charges. Id. at 2.
To prevail on a claim for ineffective assistance of counsel, a defendant “must show (1)
‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment’ and (2) that the error prejudiced his defense.” United
States v. Tucker, 12 F.4th 804, 816 (D.C. Cir. 2021) (quoting Harrington v. Richter, 562 U.S. 86,
104 (2011)). Furthermore, there is a “strong presumption that counsel’s representation was
within the wide range of reasonable professional assistance.” Harrington, 562 U.S. at 104.
Defendant here meets neither prong of the Tucker test. As to the first, the Government
preliminarily notes that he was “represented by a team of five attorneys, including two
experienced attorneys from the Federal Public Defender office” and three private, pro bono
attorneys. See ECF No. 115 (Gov’t Opp.) at 7. Defendant’s counsel vigorously and zealously
represented him — as is made evident by the motions they filed, including one to stay trial in
order to investigate issues regarding the “systematic exclusion of [B]lack citizens from jury
service” in the District of Columbia. See ECF No. 70 (Mot. to Stay) at 13; see also Opp. at 7
(outlining skillful motions practice by Defendant’s team of five attorneys). As to Defendant’s
specific claim that a certain physical binder “containing records of [the] CEO’s reviews of draft
monthly financial statements[,] . . . approvals of transactions . . . , [and] notes of weekly one-on-
one meetings” was never obtained by his lawyers, he fails to explain how such a binder
contained exculpatory evidence or that it was ever in the Government’s possession to begin with.
See Mot. at 4. The record thus contradicts any allegation suggesting that Defendant received
ineffective assistance.
3
Lutamila also does not show that any purported attorney error prejudiced his defense.
His Motion consists of a series of complaints that are “not probative of the ultimate issue at trial
— whether the Defendant stole $610,000.” Opp. at 7. Nothing that he raises would have had
any likelihood of changing the outcome here; indeed, as he offered essentially no defense on the
merits at trial, he is a long way from demonstrating prejudice.
B. Government Misconduct
In next contending that the Government engaged in conduct by failing to adequately
investigate the case, permitting perjury by its witnesses, and making improper arguments in
opening and closing remarks, Defendant again offers only self-serving, conclusory statements.
None of the issues he raises regarding such alleged Government misconduct would undermine
the evidence adduced at trial and the crux of the case: that he stole $610,000 from his employer.
Begin with the legal standards for each claim. To the extent that Lutamila’s challenge to
the Government’s investigation invokes due process, then “the defendant bears the burden of
proving that the government failed in bad faith to preserve material and potentially exculpatory
evidence.” United States v. McKie, 951 F.2d 399, 403 (D.C. Cir. 1991) (citing Arizona v.
Youngblood, 488 U.S. 51 (1988)); see also Brady v. Maryland, 373 U.S. 83, 83 (1963) (holding
that “suppression by the prosecution of evidence favorable to an accused upon request violates
due process”). As to failure to correct a witness’s misrepresentations, courts have held that such
conduct is indeed “improper and warrants a new trial” when such testimony leads the jury to an
“erroneous conclusion.” United States v. Iverson, 637 F.2d 799, 802–03 (D.C. Cir. 1980).
Finally, parties must confine their “remarks in summation to facts which are in evidence and the
reasonable inferences therefrom.” United States v. Jones, 482 F.2d 747, 753 (D.C. Cir. 1973).
4
Lutamila’s arguments on these points hold no water. First, there is no due-process
violation because Defendant never contends that the Government had information that it refused
to turn over. To the extent that he argues that the Government failed to preserve such evidence
(e.g., the binder), he has not shown that it was in the possession of his employer. See Opp. at 10
(“[T]here was never any evidence produced in trial, before trial, or since, that such a binder even
exists — despite a lot of effort by [Defendant’s] counsel to seek it out and extensive questioning
of the witnesses in trial about whether it existed.”). Finally, even if a binder like the one
Defendant describes did exist, he has not explained how it would be exculpatory.
Second, as to Defendant’s allegation that the Government’s witnesses perjured
themselves, he only identifies Marianne Quinn’s testimony as problematic. See Mot. at 10. Yet,
there was nothing false in Marianne Quinn’s testimony that needed to be corrected in order to
ensure that the jury was not led to an erroneous conclusion. See Opp. at 11.
Third, while the Court acknowledges that “the line between permissible and
impermissible arguments will not always be clear,” United States v. Moore, 651 F.3d 30, 53
(D.C. Cir. 2011), closing arguments in this case were appropriately “confined to ‘facts which
[were] in evidence and the reasonable inferences therefrom.’” United States v. McGill, 815 F.3d
846, 916 (D.C. Cir. 2016) (quoting Jones, 482 F.2d at 753); see also Moore, 651 F.3d at 53
(explaining that prosecutor may draw inferences that support Government’s theory of case “so
long as the prosecutor does not intentionally misrepresent the evidence”). In this case, there was
sufficient evidence presented at trial for the reasonable inference, offered by the Government in
its closing argument, that Lutamila’s failure to become CFO was the motive for his crime. See
Mot. at 10; Opp. at 11.
5
Because Defendant’s claims regarding alleged Government misconduct are baseless, the
Court finds that he does not raise a substantial question of law or fact.
C. Family Circumstances
Finally, Defendant asserts that this Court at sentencing “didn’t give sufficient
consideration to [his] extraordinary family circumstances.” Mot. at 11. The Court is unclear as
to what relief he is seeking in taking such a position. If he thinks that an appellate court would
thus find his sentence substantively unreasonable, that is exceedingly unlikely, as the 44 months
imposed was below the Guidelines range. As the Government rightly notes, the Court took his
circumstances into consideration “in varying downward from the applicable Guideline[] range.”
Opp. at 12 (emphasis added). As a result, the Court finds that this claim, too, raises no
substantial question.
III. Conclusion
Because the Court concludes that none of the issues presented by Defendant constitutes a
substantial question of law or fact, it will deny his Motion for Release Pending Appeal. An
accompanying Order so stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 7, 2022
6 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350141/ | Filed 12/23/22 P. v. Stanford CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B318464
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA096338)
v.
JOHNNY STANFORD,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Affirmed in part and
remanded in part with directions.
Debbie Yen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Johnny Stanford was
convicted of inflicting corporal injury on a cohabitant (Pen. Code,
§ 273.5, subd. (a); count 1),1 making criminal threats (§ 422,
subd. (a); count 2), and false imprisonment by violence (§ 236;
count 3). At his sentencing, defendant admitted to two prior
serious felony convictions under the Three Strikes law (§§ 667,
subds. (b)-(i), 1170.12). The trial court sentenced defendant to
state prison for a term of 25 years to life on the criminal threats
charge and lesser concurrent sentences on the remaining two
counts.
On appeal, defendant contends we should reverse his
corporal injury and criminal threats convictions for the trial
court’s failure to sua sponte give a unanimity instruction.
Defendant separately challenges his sentence by arguing the trial
court erred in denying his Romero2 motion and by refusing to
stay his concurrent sentences, and that his sentence amounts to
cruel or unusual punishment. We find no merit in any of these
contentions.
We do agree with defendant that the trial court erred by
adding multiple five-year enhancements to his sentences on the
corporal injury and false imprisonment counts. Accordingly, we
modify defendant’s sentence by striking those enhancements, and
affirm the judgment in all other respects.
1Unless otherwise stated, all statutory references are to
the Penal Code.
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
2
FACTUAL BACKGROUND
On the morning of April 2, 2021, Angela S. ran into a
recycling yard in Sun Valley, California.3 Angela was barefoot
and appeared to have urinated on herself. The supervisor at the
recycling yard observed bruises on Angela’s neck and face.
Angela, crying hysterically, informed the supervisor that her
boyfriend was trying to kill her and asked the supervisor to call
the police. Both Angela and the supervisor spoke to the 911
dispatcher. The supervisor reported that Angela stated her
boyfriend was going to kill her, and described Angela as “bruised
up.” When asked by the dispatcher whether Angela was awake,
the supervisor responded that she was “really hysterical right
now. She’s crying. She’s yelling. She’s very scared that her
boyfriend’s gonna come over and see her and try to beat her up.”
Angela also spoke to the dispatcher, reporting that she had been
trying to escape the recreational vehicle (RV) where she lived
with defendant, but could not. She stated that she had climbed
out a window when her boyfriend was momentarily at the back of
the RV. She stated that her boyfriend wanted to kill her and
asked for an ambulance. Security camera footage played at the
trial showed Angela climbing out a window of the RV and
running across the street toward the recycling yard.
Los Angeles Police Department Officers Zaman and Foster
answered the 911 call and met Angela at the recycling yard. At
that time, Angela repeated much of what she had told the 911
dispatcher: that her boyfriend would not let her leave the RV,
and that she “threw [her]self out of that window” in order to
3We use the victim’s first name to protect her privacy (see
Cal. Rules of Court, rule 8.90(b)(4)), and not out of any disrespect.
3
escape. She added that her boyfriend had choked her the night
before, and that he had threatened to “grab [Angela] from behind
and rip [her] face off.” She had been unable to call for help
because he would not allow her to have a phone. Angela told the
officers that her neck hurt where her boyfriend had choked her,
and her ankles hurt from climbing out of the RV when she made
her escape. While Officers Zaman and Foster interviewed
Angela, other officers approached the RV and demanded that
defendant come out of the vehicle. After repeated requests,
defendant exited the RV and was arrested. Paramedics
transported Angela to a hospital.
At the hospital, Angela was interviewed again by Officers
Zaman and Foster. She reported that on April 1, she had bought
a birthday card and cookies as a gift for defendant, although it
was not his birthday. At first defendant thanked her for the card
and cookies, but then he questioned why she had given him a
birthday card when it was not his birthday. He accused Angela
of lying and of infidelity. Defendant struck Angela, lifted her by
the neck and threw her on the bed, where he jumped on her and
choked her. He threatened Angela, telling her “I’m gonna fuckin’
kill you.” Angela begged defendant to stop; he did, and started
crying. Eventually defendant “calmed . . . down” and apologized
to Angela, and defendant and Angela left the RV to take a walk.
They returned to the RV between 4:00 and 5:00 p.m.
After Angela and defendant returned to the RV, defendant
asked her for her phone. While examining the contacts stored on
the phone, defendant asked Angela “This person’s new. Who is
he?” Angela responded that it was her doctor. Late that night,
after Angela had gone to sleep, defendant awakened her to
question her about a letter he had found. Angela had written it
4
to her daughter’s father. Defendant accused Angela of planning
to leave him and return to her daughter’s father. He “socked”
Angela in the jaw and choked her while telling her “Bitch, I’m
gonna fuckin’ kill you now. You’re dead.” He continued to
threaten Angela, saying for example “Bitch, just fuckin’ tell me
the truth because no matter what you say, I’m dead, you’re dead.”
Angela was unable to call the police that night because defendant
had taken her phone. Not until the morning, when defendant
was alone in the bedroom at the rear of the RV, was Angela able
to open the kitchen window and climb out.
While at the hospital, Angela was interviewed by medical
staff. Her medical records, introduced into evidence, stated as
follows: “Patient was reportedly assaulted by her boyfriend who
reported [sic] choked, kicked, punched and scratched her earlier
today. Patient with complaint of neck pain, chest pain,
abdominal pain. She has multiple scratches on her face, neck
and a bite mark on her right chest.” Another entry in her
medical records read, “Patient stated her boyfriend was ‘beating
her up and she jumped out of the window to get away.’ Patient
appears scared, crying, but glad she was able to ‘escape.’ ”
Angela was reluctant to testify. After defendant’s arrest,
she had gone to Utah to stay with her mother, and she did not
immediately respond when Salt Lake City and Los Angeles
district attorneys’ investigators tried to reach her about
returning to Los Angeles to testify at defendant’s trial. On the
stand, Angela recanted all of her previous statements. She
testified that she and defendant were in a loving relationship,
and that defendant had never struck her, choked her or
threatened her. She testified that defendant did not cause her
injuries, and they resulted from an unknown woman who was in
5
the RV with defendant, and who Angela fought in a jealous rage.
She explained that her previous statements were lies that she
told in an attempt to hurt defendant after finding him in the
company of this unknown woman. According to her trial
testimony, Angela climbed out the RV window not to escape, but
because she wanted to confront the woman again and did not
want defendant to know. She also testified that she had used
drugs on the day in question, and that her memories of the day
were confused at best.
Defense counsel rested without calling any witnesses.
Defense counsel’s closing argument focused on the two different
versions of events provided by Angela, and contended Angela’s
prior statements did not prove beyond a reasonable doubt that
defendant committed any crime. After a short period of
deliberation, the jury reached guilty verdicts on all three counts.
Outside the presence of the jury, defendant admitted to two
prior strikes, one for shooting into an occupied dwelling or vehicle
and one for armed robbery. Defendant was sentenced on
February 3, 2022, but the trial court recalled the sentence to
correct an error and resentenced defendant on February 8, 2022
as follows: 25 years to life on the criminal threats count; three
years in state prison, doubled to six years pursuant to sections
667 and 1170.12, plus two five-year enhancements for
defendant’s prior strikes, for a total of 16 years on the corporal
injury count; and two years in state prison, doubled to four years
and with two five-year enhancements for the prior strikes, for a
total of 14 years, on the false imprisonment count. The court
ordered the sentences on the corporal injury and false
imprisonment counts served concurrently with the sentence on
the criminal threats count.
6
Defendant filed a timely notice of appeal.
DISCUSSION
A. The Trial Court’s Failure to Give a Unanimity
Instruction Was Not Reversible Error
Defendant first contends the trial court erred by failing to
give a unanimity instruction on the corporal injury and criminal
threats counts. Defense counsel did not request such a jury
instruction, but that failure does not waive a claim of error.
(People v. Riel (2000) 22 Cal.4th 1153, 1199.) That is because
“[e]ven absent a request, the court should give the instruction
‘where the circumstances of the case so dictate.’ ” (Ibid., quoting
People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.) We review de
novo a claim that the trial court failed to properly instruct the
jury. (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.)
1. A Unanimity Instruction Was Not Required on the
Corporal Injury Count
Defendant asserts a unanimity instruction was required on
the corporal injury count because the prosecution introduced
evidence of two separate assaults on Angela—one in the morning,
in connection with the birthday card, and the other in the
evening, in connection with the letter Angela wrote to her
daughter’s father. Defendant argues that in the absence of a
unanimity instruction, some jurors might have based their guilty
verdict on the morning incident and others on the later one, or
jurors may have based their verdict on different injuries suffered
during these events, without all 12 jurors agreeing on what acts
and injuries constituted the crime at issue.
“[O]ur Constitution requires that each individual juror be
convinced, beyond a reasonable doubt, that the defendant
7
committed the specific offense he is charged with.” (People v.
Hernandez (2013) 217 Cal.App.4th 559, 569.) “A unanimity
instruction is given to thwart the possibility that jurors convict a
defendant based on different instances of conduct.” (Ibid.) Such
an instruction “ ‘ “eliminate[s] the danger that the defendant will
be convicted even though there is no single offense which all the
jurors agree the defendant committed” ’ ” and “ ‘ “prevent[s] the
jury from amalgamating evidence of multiple offenses, no one of
which has been proved beyond a reasonable doubt, in order to
conclude beyond a reasonable doubt that a defendant must have
done something sufficient to convict on one count.” ’ ” (Ibid., fn.
omitted.)
Courts have recognized, however, that a unanimity
instruction “is not required if ‘the defendant offered the same
defense to both acts constituting the charged crime, so no juror
could have believed defendant committed one act but disbelieved
that he committed the other.” (People v. Covarrubias (2016) 1
Cal.5th 838, 879, quoting People v. Davis (2005) 36 Cal.4th 510,
562.) Some courts have described this as an exception to any
need for a unanimity instruction. (Covarrubias, supra, at p. 879;
Davis, supra, at p. 562). Other courts have suggested a harmless
error analysis—that any error in failing to give a unanimity
instruction is harmless “[w]here the record provides no rational
basis, by way of argument or evidence, for the jury to distinguish
between the various acts, and the jury must have believed beyond
a reasonable doubt that [the] defendant committed all acts if he
committed any . . . .” (People v. Thompson (1995) 36 Cal.App.4th
843, 853; accord, People v. Diedrich (1982) 31 Cal.3d 263, 283;
People v. Hernandez, supra, 217 Cal.App.4th at p. 577.)
8
Here, there was no need for a unanimity instruction given
that defendant offered the same defense to the alleged incidents
and any failure to give the instruction was harmless. In People v.
Thompson (1984) 160 Cal.App.3d 220, for example, the defendant
was convicted of corporal injury in violation of section 273.5 after
the jury heard “evidence of numerous sexual and physical
assaults” committed against his wife. (Thompson, supra, at
p. 223.) On appeal, the defendant contended the trial court had
erred by failing to give a unanimity instruction, because the
jurors did not necessarily all convict him for the same assault.
The Court of Appeal rejected this argument, citing the unitary
defense exception. “[T]he defendant here offered only one
defense: that he did not hit [his wife]. The essence of the jury’s
task was to decide who was telling the truth, the [defendant] or
his wife. There was no possibility of some jurors believing one
defense, and some another.” (Id. at p. 226.)
The unitary defense exception applies here for the same
reasons. While defendant asserts he offered multiple defenses at
trial, our review of the closing argument shows no such thing.
Defendant did not dispute the injuries Angela suffered, but
claimed he did not cause them. He offered the same defense in
connection with the injuries related to the birthday card and the
injuries related to the letter Angela wrote to her daughter’s
father. That defense was that Angela’s description of what
occurred inside the RV shortly after the event to third parties
was not credible in light of her contradictory testimony under
oath at the trial. Defense counsel argued that Angela was the
only witness who knew what happened inside the RV, that
Angela told two different versions of what had happened, and the
9
version to which Angela testified at trial “is what happened that
day. And as a result, you should return a verdict of not guilty.”
We see no possibility that any juror, given this defense and
the jury’s binary choice between Angela’s two versions of what
occurred, could conclude that defendant had (or had not) struck
and choked Angela on the morning of April 1, 2021, while
reaching the opposite conclusion as to the assault occurring later
that night. We accordingly find the trial court did not err in
failing sua sponte to give a unanimity instruction. (See, e.g.,
People v. Covarrubias, supra, 1 Cal.5th at p. 880 [unanimity
instruction was not required when defense’s main argument was
that key witness had been untruthful about alleged crimes, and
verdict implied jury did not believe that defense]; People v.
Thompson, supra, 160 Cal.App.3d at p. 226 [any error in failing
to give a unanimity instruction was harmless because juror had
to decide between two competing factual recitations, so “[t]here
was no possibility of some jurors believing one defense, and some
another”].)4
4 A further exception provides that “no unanimity
instruction is required if the case falls within the continuous-
course-of-conduct exception, which arises ‘when the acts are so
closely connected in time as to form part of one transaction’
[citation], or ‘when . . . the statute contemplates a continuous
course of conduct of a series of acts over a period of time’
[citation].” (People v. Jennings (2010) 50 Cal.4th 616, 679.)
Because the unitary defense exception applies here, we do not
address the parties’ arguments concerning whether the
continuous-course-of-conduct exception is also applicable.
10
2. A Unanimity Instruction Was Not Required on the
Criminal Threats Count
Defendant’s argument that a unanimity instruction was
required on the criminal threats count is similarly unpersuasive.
Defendant asserts the instruction was required because the
prosecution presented two discrete instances of defendant
threatening Angela—once in the morning when he threatened to
kill her for lying about her reasons for giving him a birthday
card, and an incident at night when he threatened to kill her over
his belief that Angela was planning to leave defendant and move
to Utah. But a unanimity instruction was not required (and
alternatively, any failure to give it harmless) because defendant
offered the same defense to both events—that Angela’s trial
testimony showed there was no proof beyond a reasonable doubt
he threatened her, and her statements to the contrary on April 2,
2021, were not credible. As is the case with the corporal injury
count, given this defense no juror could believe that defendant
threatened (or did not threaten) Angela in the morning of April 1,
while reaching a different conclusion as to whether he did so later
that night. (See, e.g., People v. Covarrubias, supra, 1 Cal.5th at
p. 880; People v. Thompson, supra, 160 Cal.App.3d 220 at p. 226.)
B. The Trial Court Did Not Impose Multiple Sentences
for the Same Conduct in Violation of Section 654
Defendant argues the trial court improperly sentenced him
to concurrent terms on the corporal injury and false
imprisonment counts because those convictions resulted from a
single indivisible course of conduct. Section 654 provides that
“[a]n act or omission that is punishable in different ways by
different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
11
under more than one provision. . . .” (Id., subd. (a).) Section 654
therefore “precludes multiple punishments for a single act or
indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th
290, 294.)
“ ‘ “ ‘Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor.’ ” ’ ”
(People v. Jackson (2016) 1 Cal.5th 269, 354.) “If [the] defendant
harbored ‘multiple criminal objectives,’ which were independent
of and not merely incidental to each other, he may be punished
for each statutory violation committed in pursuit of each
objective, ‘even though the violations shared common acts or were
parts of an otherwise indivisible course of conduct.’ [Citation.]”
(People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether a defendant harbored multiple objectives is a
question of fact for the trial court. (People v. Coleman (1989) 48
Cal.3d 112, 162; see also People v. Hutchins (2001) 90
Cal.App.4th 1308, 1312 [“the law gives the trial court broad
latitude” in determining “whether section 654 is factually
applicable to a given series of offenses”].) “When a trial court
sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives,
the trial court is deemed to have made an implied finding each
offense had a separate objective.” (People v. Islas (2012) 210
Cal.App.4th 116, 129.) We review that implied finding for
substantial evidence. (People v. Brents (2012) 53 Cal.4th 599,
618.) “We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every
fact the trial court could reasonably deduce from the evidence.”
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
12
We assume for purposes of argument that defendant’s
violations shared common acts or were parts of an otherwise
indivisible course of conduct. The question then is whether
defendant harbored multiple criminal objectives. Defendant
argues all of the charged crimes had a single objective, but fails
to identify specifically what it was. He instead offers two
possibilities—that the objective was either to force Angela to tell
the truth about the birthday card or to force her to tell him she
was going to leave him. Reviewing the trial court’s determination
in the light most favorable to respondent and presuming the
existence of every fact the trial court could reasonably deduce
from the evidence, we disagree there was a single objective.
Substantial evidence supports a finding of multiple objectives,
namely to injure Angela through a physical assault (corporal
injury, count 1), to frighten her for alleged past infidelity as well
as to keep her under his coercive control by threatening harm
(criminal threats, count 2), and to prevent Angela from leaving
him by keeping her in the RV and taking her phone away so she
could not call for help (false imprisonment, count 3). Accordingly,
we find no error in the trial court’s decision to impose concurrent
terms of imprisonment in this matter.
C. The Trial Court Did Not Abuse its Discretion by
Denying Defendant’s Romero Motion
Defendant next contends the trial court abused its
discretion when it refused to dismiss prior strikes based on his
1994 conviction for shooting at an occupied dwelling or vehicle
and his 2006 conviction for armed robbery. The trial court has
discretion to dismiss strikes based on prior offenses. (Romero,
supra, 13 Cal.4th at pp. 529-530.) In ruling on a Romero motion,
the sentencing court “must consider whether, in light of the
13
nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.) The defendant bears the
burden to show that the decision not to strike was irrational or
arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th
822, 831.) As our Supreme Court observed in People v. Carmony
(2004) 33 Cal.4th 367, “a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.) “ ‘[I]t is not enough to
show that reasonable people might disagree about whether to
strike one or more’ prior conviction allegations.” (Id. at p. 378.)
In ruling on the Romero motion, the trial court
acknowledged the factors it needed to consider under People v.
Williams, supra, 17 Cal.4th at p. 161. The court summarized
defendant’s criminal history, which included the following
convictions prior to the second strike 2006 robbery conviction: a
1989 conviction for transportation or sale of a controlled
substance, for which defendant received probation and 240 days
in jail; a 1991 arrest for participation in a criminal street gang
that led to defendant’s probation being revoked and a sentence of
three years in state prison; a 1991 conviction for felony evading of
a peace officer, for which defendant was sentenced to two years in
state prison; the 1994 first strike conviction for shooting at an
inhabited dwelling or vehicle, for which defendant was sentenced
to three year years in state prison; and a 1996 federal conviction
for armed bank robbery for which he was sentenced to 115
14
months in prison (and for which he later served an additional
nine months when his federal supervised release was revoked).
Defendant was on parole at the time he assaulted Angela.
Given these facts, the court found it could not “say that
[defendant] is outside the spirit of the [T]hree [S]trikes law. He
is a recidivist who kept repeating his criminal conduct. As I said
before, even after serving lengthy prison sentences, he did re-
offend. I think that if I were to strike a strike in this case, that
would be an abuse of my discretion based on the state of the law.
So I’m going to deny the Romero motion.”
A trial court abuses its discretion in refusing to dismiss a
prior strike when it was not aware of its discretion to dismiss,
where it considered impermissible factors in refusing to dismiss,
or where the resulting sentence leads to an arbitrary, capricious
or patently absurd result. (People v. Carmony, supra, 33 Cal.4th
at p. 375.) None of that occurred here, and we find no reversible
error in the trial court’s ruling. The court was aware that it had
the power to dismiss a strike, and considered only permissible
factors when exercising its discretion. The factor that the court
did emphasize—defendant’s lengthy criminal history—was
entirely proper. (See, e.g., People v. Brugman (2021) 62
Cal.App.5th 608, 640 [no abuse of discretion, citing the
defendant’s “continuous history of criminal conduct”]; People v.
Humphrey (1997) 58 Cal.App.4th 809, 813 [reversing dismissal of
prior strike where the defendant “led a continuous life of crime
after the prior”].) Nor is the sentence here an arbitrary or
patently absurd result.
Defendant’s suggestion that his prior strikes were remote
in time ignores the periods defendant was incarcerated for those
offenses. The 1994 conviction resulted in a three-year prison
15
sentence, and by 1996 defendant was serving approximately nine
years in federal prison for armed bank robbery. In 2006, soon
after his release from federal prison, defendant reoffended, was
convicted of armed robbery and was sentenced to 15 years in
state prison. He was released in 2019, and shortly thereafter was
returned to federal prison for nine months for violating his
supervised release from his bank robbery conviction. After
release from federal custody, he then committed his offenses
against Angela in early 2021. Defendant’s record shows a
recurrent pattern of serious and often violent crime, followed by a
prison sentence, followed by a new offense soon after release. Nor
do we agree with defendant that the trial court abused its
discretion because this was defendant’s first domestic violence
offense. A trial court does not abuse its discretion in denying a
request to dismiss a prior strike because that strike was for a
different violent crime than the one for which the defendant is
now being sentenced.
Defendant finally claims the court abused its discretion by
failing to accord proper weight to his age and his history of drug
use. A defendant’s age is not one of the mitigating factors listed
in rule 4.423(b) of the California Rules of Court, and in any event
“middle age, considered alone, cannot take a defendant outside
the spirit of the [Three Strikes] law.” (People v. Strong (2001) 87
Cal.App.4th 328, 332.) The court did consider that defendant was
under the influence of drugs at the time he assaulted Angela, but
did not identify that as a mitigating or aggravating factor in its
decision. Particularly given defendant’s prior narcotics related
convictions, as well as the other information before the court, it
was within the court’s discretion to find the Romero motion was
not justified by defendant’s drug use.
16
D. Defendant’s Sentence is Not Cruel or Unusual
Punishment
Defendant contends that his 25 years to life sentence “is so
grossly disproportionate to his offense that it violates the Eighth
and Fourteenth Amendments of the United States Constitution
as well as the California Constitution.” The People contend
defendant waived this argument by failing to raise it at the
sentencing hearing. While a constitutional challenge to the
length of sentence may be waived if not made at sentencing, we
believe it prudent to address this claim given defendant’s related
claim of ineffective assistance of counsel.5 (See, e.g., People v.
Martin (1995) 32 Cal.App.4th 656, 661, disapproved on another
ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
“ ‘Whether a punishment is cruel and/or unusual is a
question of law subject to our independent review . . . .’ ” (People
v. Wilson (2020) 56 Cal.App.5th 128, 166-167.) We must give
appropriate deference to the Legislature’s power to determine
what punishment is appropriate for crimes. (Solem v. Helm
(1983) 463 U.S. 277, 290 [100 S.Ct. 3001, 77 L.Ed.2d 637]
[“Reviewing courts . . . should grant substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as
5 Defendant asserts that should we find he waived his
constitutional challenge to his sentence, the failure to make that
argument means he received ineffective assistance of counsel.
Our election to address defendant’s constitutional claim on the
merits, and our conclusion that the claim is without merit,
renders moot defendant’s ineffective assistance claim. (See
People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise
a meritless objection is not ineffective assistance of counsel”].)
17
well as to the discretion that trial courts possess in sentencing
convicted criminals”].) As our Supreme Court has observed, “the
three strikes law not only establishes a sentencing norm, it
carefully circumscribes the trial court’s power to depart from this
norm . . . . In doing so, the law creates a strong presumption that
any sentence that confirms to these sentencing norms is both
rational and proper.” (People v. Carmony, supra, 33 Cal.4th at
p. 378.) Thus, reducing a sentence “is a solemn power to be
exercised sparingly only when, as a matter of law, the
Constitution forbids what the sentencing law compels.” (People v.
Mora (1995) 39 Cal.App.4th 607, 616.)
In deciding whether a sentence is cruel or unusual, we
must determine whether the punishment “is so disproportionate
to the crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.” (In re Lynch
(1972) 8 Cal.3d 410, 424, fn. omitted.) Lynch established a three-
prong test to determine constitutionality, but defendant expressly
limits his challenge to the first of the three prongs: the nature of
the offense and/or the offender with particular regard to the
degree of danger both present to society.
Defendant argues that “[a] 25 [years] to life sentence is
disproportionate when this was [his] first domestic violence
offense. At trial, there [was] no evidence of any other domestic
violence incidents against other victims. It is undisputed that
drugs likely fueled the toxic events of that day. . . . All of these
factors constitute the ‘totality of the circumstances’ that is
relevant to a disproportionality analysis.”
The sentence here is undoubtedly severe, but it is
authorized by California law and not unconstitutionally cruel or
unusual. Our Legislature has classified “criminal threats, in
18
violation of [s]ection 422” as a “ ‘serious felony’ ” (§ 1192.7, subd.
(c)(38)). The seriousness of that felony is demonstrated by
defendant’s protracted physical assault and terrorizing of Angela
that resulted in multiple injuries and filled her with such fear
that she urinated on herself before fleeing for her life. Defendant
is a habitual offender with a lengthy criminal career involving
repeated crimes of violence. While this may be his first
conviction for domestic violence, his prior crimes include bank
robbery and armed robbery, both of which are “serious felonies”
under section 1192.7, subdivision (d), as well as “violent felonies”
under section 667.5, subdivision (c)(9). As the trial court
observed, prior to his offenses in this case, “since 1988,
[defendant] has been sentenced to a total of 36 years in state [and
federal] prison. . . . He is a recidivist who kept repeating his
criminal conduct. As I said before, even after serving lengthy
prison sentences, he did re-offend.”
Under the Three Strikes law, defendant’s sentence is based
not only on his current offense but also his prior offenses. Given
the totality of defendant’s criminal history up to and including
the current offenses as recited earlier in this opinion, we see no
merit to his claim that his sentence was so disproportionate to his
crimes as to be unconstitutional. (Compare People v. Avila (2020)
57 Cal.App.5th 1134 [life sentence unconstitutional where the
defendant was convicted of attempting to collect “rent” from
roadside fruit vendors, did not commit violence or threatened it,
the crime caused $20 worth of damage, and prior convictions
remote in time].)
19
E. The Serious Felony Enhancements Were Incorrect
and Should be Stricken
The trial court sentenced defendant to 16 years on the
corporal injury charge (count 1) and 14 years on the false
imprisonment charge (count 3), with both terms to be served
concurrently to his sentence on the criminal threats charge
(count 2). Both the sentences on counts 1 and 3 included two
five-year serious felony enhancements imposed pursuant to
section 667, subdivision (a). That statute provides that the
enhancements are to be imposed on “[a] person convicted of a
serious felony who previously has been convicted of a serious
felony.” (Ibid.) Defendant argues, the People agree, and we
concur that neither count 1 nor count 3 involved a “serious
felony,” as defined in section 1192.7, subdivision (c). Accordingly,
we direct the trial court to modify defendant’s sentence by
striking the two five-year enhancements added to his sentences
on both counts 1 and 3, which will reduce the sentences on those
counts to six years and four years, respectively.
20
DISPOSITION
The matter is remanded with directions to strike the two
enhancements imposed under section 667, subdivision (a) on
count 1, as well as the two similar enhancements imposed on
count 3. In all other respects, the judgment is affirmed. The trial
court is directed to prepare an amended abstract of judgment
reflecting the stricken enhancements and to forward a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
21 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350148/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-1016
In re: AMERICAN CENTER FOR CIVIL JUSTICE, INC.,
Debtor
LAW OFFICES OF WILLIAM S. KATCHEN, LLC.
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 3-20-cv-06333)
U.S. District Judge: Honorable Freda L. Wolfson
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
On December 8, 2022
Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges
(Filed: December 23, 2023)
_______________
OPINION*
_______________
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
FUENTES, Circuit Judge.
Creditors who participate in a bankruptcy proceeding must ordinarily bear their own
expenses and attorney fees.1 The Bankruptcy Code provides a limited exception to this
rule: a creditor who makes a “substantial contribution” to a debtor’s bankruptcy case may
recover reasonable fees from the estate as an administrative expense.2 Appellant The Law
Offices of William S. Katchen LLC (“Appellant”) seeks attorney fees for its representation
of a creditor in connection with the chapter 11 bankruptcy of American Center for Civil
Justice, Inc. (“ACCJ”). The Bankruptcy Court found that Appellant did not substantially
contribute to ACCJ’s case and rejected its fee application without an evidentiary hearing.
Appellant claims this was error. For the reasons set forth below, we disagree.
I. Factual Background
ACCJ and its creditor, American Center for Civil Justice, Religious Liberty &
Tolerance (“RLT”), are affiliated not-for-profit entities with similar missions. In March
2018, ACCJ filed a voluntary petition for chapter 11 bankruptcy that listed an undisputed
$14.8 million claim by RLT (the “RLT Claim”). The RLT Claim arose from a 2007
agreement between ACCJ and RLT. The Bankruptcy Court found that ACCJ and RLT had
a shared interest in defending the continued validity of that agreement. However, several
other creditors of ACCJ objected to the RLT Claim and moved to disallow it.
1
See Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 126 (2015).
2
See 11 U.S.C. § 503(b)(3)(D), (b)(4).
2
RLT hired Appellant to represent it in connection with ACCJ’s bankruptcy. The
resulting engagement letter stated that Appellant would represent RLT as a “non-priority,
Unsecured Creditor” in ACCJ’s bankruptcy and mentioned no other services.3 Appellant
and ACCJ’s bankruptcy counsel, Timothy P. Neumann, thereafter engaged in a joint
defense strategy to defend the RLT Claim and the 2007 agreement against allegations of
fraud, breach of fiduciary duty, and alter ego. Ultimately, Appellant provided $97,734.00
in legal services to RLT in this capacity.
RLT itself later filed for bankruptcy and applied, pursuant to 11 U.S.C. § 327(a), to
hire Appellant to represent it in connection with its own bankruptcy case. The United
States Trustee opposed RLT’s § 327(a) application because Appellant was a pre-petition
creditor of RLT and therefore not a disinterested person. To resolve this dispute, Appellant
agreed to “waive any and all pre-petition claims against [RLT]” and return $97,734.00 held
in Appellant’s trust account to RLT.4 The Bankruptcy Court ordered that Appellant,
“[n]otwithstanding any such waiver,” would “retain the right to file an 11 U.S.C. §
503(b)(4) claim against [ACCJ].”5
Appellant then filed the present motion to receive fees paid out of ACCJ’s
bankruptcy estate pursuant to 11 U.S.C. § 503(b), arguing that through its representation
3
JA594.
4
SA003.
5
SA003.
3
of RLT, it substantially contributed to ACCJ’s bankruptcy case.6 The United States
Trustee, ACCJ, and RLT all opposed Appellant’s fee application. After oral argument on
May 12, 2020, the Bankruptcy Court held that Appellant did not substantially contribute to
ACCJ’s case and denied its motion. Specifically, the Bankruptcy Court made a factual
determination that Appellant provided only an “incidental” benefit to ACCJ through its
defense of the 2007 agreement, which is insufficient to justify a fee award.7
The District Court affirmed the Bankruptcy Court’s denial of Appellant’s fee
application and rejected Appellant’s alternative argument that remand was required for a
“full evidentiary hearing” on the substantial contribution issue.8 The District Court also
denied Appellant’s subsequent motion for reconsideration. Appellant now appeals to this
Court.
II. Jurisdiction and Standard of Review
The Bankruptcy Court had jurisdiction over this core bankruptcy proceeding under
28 U.S.C. §§ 157(a)–(b), 1334. The District Court had jurisdiction under 28 U.S.C.
§ 158(a)(1). We have jurisdiction under 28 U.S.C. § 158(d)(1).
Our review of a bankruptcy court’s decision “duplicates that of the district court and
we view the bankruptcy court decision unfettered by the district court’s determinations.”9
6
Appellant attached his time records from the relevant time period in support of this
motion.
7
JA627–30.
8
JA14.
9
In re Imerys Talc Am., Inc., 38 F.4th 361, 370 (3d Cir. 2022) (citation omitted).
4
“[W]e review the bankruptcy court’s legal determinations de novo, its factual findings for
clear error, and its discretionary decisions for abuse of discretion.”10
III. Analysis
Appellant does not directly challenge the Bankruptcy Court’s factual determination
that it made no “substantial contribution” to ACCJ’s bankruptcy but instead argues that the
Bankruptcy Court was obligated to conduct an evidentiary hearing before making that
decision.11 We disagree.
Under limited circumstances, the Bankruptcy Code allows a creditor’s attorney fees
to be paid out of the debtor’s estate as an administrative expense. 12 In relevant part, 11
U.S.C. § 503(b)(3)(D) permits a creditor to recover the “actual, necessary expenses” that
it incurred “in making a substantial contribution in a case under chapter . . . 11 of this title.”
Section 503(b)(4) then permits the recovery of “reasonable compensation for professional
services rendered by an attorney . . . of an entity whose expense is allowable under [11
U.S.C. § 503(b)(3)(D)]”. Appellant argues that it substantially contributed to ACCJ’s
10
Id. (citing In re Somerset Reg’l Water Res., LLC, 949 F.3d 837, 844 (3d Cir. 2020)).
11
Appellant argues in passing that “the District Court improperly rejected Katchen’s
arguments showing how his work for RLT substantially contributed to ACCJ’s bankruptcy
petition,” but Appellant does not further elaborate on this point. Appellant’s Br. at 11. “As
this argument was vaguely presented without factual or legal support, it is forfeited for lack
of development.” N.J. Dep’t of Env’t Prot. v. Am. Thermoplastics Corp., 974 F.3d 486,
492 n.2 (3d Cir. 2020) (citing John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d
1070, 1076 n.6 (3d Cir. 1997)).
12
See 11 U.S.C. § 503(b)(3)(D), (b)(4).
5
bankruptcy through its representation of RLT and is therefore entitled to compensation
from the estate.13
Creditors are presumed to act in their own self-interest until they demonstrate
otherwise.14 To rebut this presumption and establish a “substantial contribution,” the
applicant must show that his efforts (1) “resulted in an actual and demonstrable benefit to
the debtor’s estate and the creditors;” and (2) the benefit to the estate was not simply
“incidental” to self-interested pursuits.15 Put differently, the applicant must show that his
“actions were designed to benefit others who would foreseeably be interested in the
estate.”16 The existence of a “substantial contribution” is ultimately a question of fact, and
“the bankruptcy court . . . is in the best position to perform the necessary fact finding
task.”17 We review the Bankruptcy Court’s findings in this regard for clear error, “in other
words, with a serious thumb on the scale for the bankruptcy court.”18
13
Appellees argue that as a threshold matter, Appellant lacks statutory standing to seek
fees under § 503(b) because its client, RLT, suffered no out-of-pocket expenses. The
Bankruptcy Court did not directly consider this issue, and we need not do so to resolve the
present case because it does not implicate Appellant’s Article III standing. Even assuming
that Appellant had the right to seek fees under § 503(b)(4), we affirm the Bankruptcy
Court’s determination that Appellant’s legal services for RLT did not substantially
contribute to ACCJ’s bankruptcy.
14
Lebron v. Mechem Fin. Inc., 27 F.3d 937, 946 (3d Cir. 1994).
15
Id. at 944 (emphasis added).
16
Id. at 946 (emphasis added).
17
Id.
18
U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
138 S. Ct. 960, 966 (2018).
6
Here, Appellant’s application to the Bankruptcy Court primarily relied on ACCJ’s
and RLT’s shared interest in the continued validity of their 2007 agreement. Appellant’s
principal averred that he engaged in a joint defense strategy with ACCJ’s counsel to defend
ACCJ and RLT against allegations of “fraud, breach of fiduciary duties, [and] alter ego as
a basis to disallow the RLT Claim.”19 As the District Court observed, however, nothing in
the record suggests that Appellant consulted with other creditors of ACCJ or otherwise
acted for the benefit of creditors as a whole.
The Bankruptcy Court found instead that Appellant worked for the benefit of RLT,
which had a significant self-interest in the validity of its $14.8 million proof of claim. It
further determined that any concomitant benefit to ACCJ—which had its own attorney to
defend the validity of the 2007 agreement—was “incidental.”20 Indeed, RLT’s director
averred that Appellant performed work solely “in defense of the RLT Claim” and provided
“no benefit to ACCJ.”21
Appellant does not directly challenge any of the Bankruptcy Court’s findings but
merely argues that it should have been granted an evidentiary hearing and the opportunity
to submit further evidence. Specifically, it argues that our opinion in In re Busy Beaver
19
JA533 ¶¶ 3, 5.
20
JA627–30.
21
JA590 ¶ 9.
7
Building Centers, Inc.22 required the Bankruptcy Court to conduct an evidentiary hearing,
even though it never actually requested one.23 Appellant misreads Busy Beaver.
Busy Beaver held only that before a bankruptcy court can sua sponte reject a fee
application, it must first give the “applicant an opportunity, should it be requested, to
present evidence or argument.”24 We stressed that this was necessary in sua sponte
proceedings to simulate the role of an adversary and expressly noted that even then, a
bankruptcy court may resolve an application solely based on documentary evidence and
oral argument.25 As in any legal proceeding, the applicant must simply be afforded
“a meaningful opportunity to be heard.”26
Appellant never requested an evidentiary hearing here, and several litigants—
ACCJ, RLT, and the United States Trustee—stepped in to oppose Appellant’s application
and fulfill the role of “adversary.” The Bankruptcy Court then held oral argument and
decided the motion based on the arguments of counsel and record evidence; in other words,
exactly what Busy Beaver would have permitted even in a sua sponte proceeding. It is also
22
19 F.3d 833 (3d Cir. 1994).
23
Appellant claims that it twice requested an evidentiary hearing, pointing to two vague
statements it made to the Bankruptcy Court expressing a desire to submit undisclosed
additional evidence at an indeterminate future time. See JA607 ¶ 10 (“Applicant will seek
to proffer additional evidence based on the Court Docket and judicial notice to support the
facts necessary for a determination as may be allowed by the Court.”); JA627 (“I would
undertake to submit a detailed benefit contention that both the U.S. Trustee and Mr.
Neumann say I have not yet done.”). These statements neither signaled Appellant’s desire
for an evidentiary hearing nor explained why such a hearing was necessary.
24
19 F.3d at 846.
25
Id. at 846–47 & n.16.
26
Id. at 846 n.16.
8
notable that the sole piece of additional evidence Appellant asserts that it would have
introduced at an evidentiary hearing is an email that Appellant’s principal himself drafted
nearly two years before the Bankruptcy Court’s decision. Appellant therefore had ample
opportunity to present this evidence and failed to do so. In short, nothing in Busy Beaver
requires remand for further proceedings.
Appellant’s argument that a hearing is necessary to resolve an alleged “ambiguity”
in the Bankruptcy Court’s factual findings also misses the mark. Appellant complains that
the Court acknowledged that RLT and ACCJ were working together and yet still ruled
against its fee application. But a mere cooperative interest between ACCJ and RLT does
nothing to show that RLT or Appellant acted to the benefit of other creditors or provided
something more than an “incidental” benefit to the estate. Appellant provides no reason to
disturb the Bankruptcy Court’s finding that Appellant’s actions were designed only to
protect RLT’s substantial self-interest in preserving a $14.8 million proof of claim.
Appellant’s remaining arguments merit little discussion. First, Appellant claims
that the Bankruptcy Court erred by orally reading its factual findings into the record instead
of issuing written findings of fact. Appellant is mistaken. The Federal Rules expressly
permit a court to state its factual findings “on the record,” and Appellant has cited no
authority to the contrary.27 Second, Appellant contends that the Bankruptcy Court should
have held an evidentiary hearing or granted additional time to present evidence “as a matter
of fairness given Mr. Katchen’s medical history [and] the ongoing COVID-19
27
Fed. R. Civ. P. 52(a)(1); see also Fed. R. Bankr. P. 7052, 9014(c).
9
pandemic.”28 Appellant never raised these concerns to the Bankruptcy Court and, again,
they do not explain why Appellant was unable to timely present a two-year-old email
before the Court denied its application.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
28
Appellant’s Br. at 20.
10 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482079/ | LittletoN, Judge,
delivered the opinion:
It is obvious from the facts that during the period May 18, 1920, to July 1, 1923, plaintiff responded “to a needy family condition ” within the meaning of the act of May 26, 1926, 44 Stat. 654. The payments to his mother were in excess of the allowances drawn by him. He drew $2,282.34 and during the same period he paid to his mother $3,440. The sums in question were all paid prior to July 1, 1923. The payments had been made by the disbursing officer in good faith.
Under the decision of this court in Ealloran v. United States, 69 C. Cls. 59, plaintiff is entitled to recover allowances for this period. From July 1, 1923, forward plaintiff’s mother was clearly dependent upon him for her chief support, and under the decisions of this court in Freeland v. United States, 64 C. Cls. 364, Tomlinson v. United States, 66 C. Cls. 697, Haas v. United States, 66 C. Cls. 718, and other decisions of similar import, plaintiff is entitled to recover the allowances for the month of July, 1923.
Judgment in his favor for $2,282.34 will be entered. It is so ordered.
Whaley, Judge; Williams, Judge; GeeeN, Judge; and Booth, Ghief Justice, concur. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481355/ | Opinion issued November 3, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00375-CV
———————————
IN THE INTEREST OF I.F., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2021-00359J
MEMORANDUM OPINION
In this appeal, D.F. (Mother) challenges the trial court’s final decree
terminating her parental rights to her minor child, I.F. (Ivy), based on findings that
she endangered Ivy, she constructively abandoned Ivy, she failed to comply with
the provisions of a court order specifying the actions necessary to obtain the return
of Ivy, and termination of her parental rights was in Ivy’s best interest. See TEX.
FAM. CODE § 161.001(b)(1)(D), (E), (N), (O); id. § 161.001(b)(2). In five issues,
Mother argues that the evidence was legally and factually insufficient to support
the trial court’s findings made pursuant to Texas Family Code subsections
161.001(b)(1)(D), (E), (N), (O) and that the evidence was legally and factually
insufficient to support the trial court’s finding that termination of Mother’s parental
rights was in Ivy’s best interest.
We affirm.
Background
Mother gave birth to Ivy on April 9, 2013.1 Ivy came into DFPS’s care on
March 3, 2021. Law enforcement personnel found Ivy, who was seven years old at
the time, and her younger brother, who was five years old at the time, alone in a
hotel room. Law enforcement detained a man referred to as “C.B.” who had rented
five hotel rooms in his name. Ivy was in one of the rooms without adult
supervision, and she had no way to contact Mother. The children reported at the
time law enforcement found them that Mother had brought them food and had been
gone for approximately 40 minutes. Mother was eventually located sleeping in
another of C.B.’s rooms, where law enforcement found methamphetamine, crack
1
The trial court also terminated the parental rights of Ivy’s unknown father. Mother
testified that she did not know the name of Ivy’s biological father. Mother was in a
relationship with another man, D.K., who was determined not to be Ivy’s
biological father but who acted as a father figure. Mother is the only parent who is
party to this appeal.
2
pipes, and other drug paraphernalia. C.B. did not identify the nature of his
relationship with Mother.
When the DFPS investigator returned several hours later to interview the
children, they were again alone in the hotel room. Ivy told the investigator that she
was not scared to be alone in the room and that her Mother was coming right back.
Mother did return several minutes later. Mother acknowledged to the investigator
that she was living in the hotel. Mother was not working at that time, and she told
the investigator that a friend of her boyfriend was paying for the hotel rooms. Ivy
was taken into emergency custody by DFPS.2 DFPS petitioned for termination of
Mother’s parental rights to Ivy and for managing conservatorship, and the trial
court named DFPS as Ivy’s temporary managing conservator.
Ivy was placed with a foster family upon removal. Subsequently, Mother
identified a relative—her maternal great aunt—who could care for Ivy. Ivy was
placed with the aunt for several months, and her foster family maintained contact
with her and continued to visit Ivy. The maternal great aunt then died, and Ivy
returned to live with the foster family with whom she had originally been placed,
and where she has remained.
2
DFPS’s case file indicated that Ivy’s brother, T.F., had been reported missing by
his father, who had been unable to find Mother in order to exercise his period of
custody under a standard possession order. T.F. was returned to his biological
father and is not a subject to this suit.
3
The trial of this case commenced on March 8, 2022. The trial court admitted
DFPS’s records from the case including the removal affidavit, emergency orders,
Mother’s family service plan, and drug test orders. The trial court also admitted
evidence of Mother’s criminal history. Mother was charged in June 2019 with
assault against a family member. The DFPS investigator’s affidavit, which was
admitted into evidence at trial, indicated that Mother had assaulted her father.
Mother told the caseworker that she suspected her father had dementia, and he
“charged” at her for no reason while she was mopping the floor. When he started
attacking her, Mother “forgot who he was and defended herself which is how she
got charged with family violence.”
Mother was also charged in September 2020 with burglary with intent to
commit theft. Both charges were later dismissed. Mother was also charged with
burglary of a building in December 2020, but that charge was reduced to a
conviction for criminal trespass and resulted in Mother spending approximately 90
days in jail during the summer of 2021.
The DFPS caseworker, K. Lewis, testified that Ivy was currently placed in
an adoptive foster placement. Ivy was very bonded to her foster family. Mother
had not had Ivy enrolled in school for more than a year, but the foster placement
had gotten her enrolled and worked hard to help her catch up on the schooling she
had missed. The child advocate assigned to Ivy’s case likewise testified that Ivy
4
adapted “extremely well” to being in the foster home: “She’s very comfortable,
she’s thriving, doing activities, doing well in school.”
Lewis further testified regarding the events that brought Ivy into DFPS’s
care and other instances of Mother’s neglectful supervision. Lewis testified that
Mother was staying in a hotel room that was raided by law enforcement. The room
Mother was found in had drugs and a gun that belonged to the man staying in
Mother’s room. Law enforcement found Ivy, who was seven years old at the time,
and her younger brother, who was five years old at the time, unattended in a
different hotel room.
Lewis related another incident of neglectful supervision that occurred in
2019, when Ivy and a sibling were left in the care of woman Mother had known
“less than six months” who was “supposedly watching the children overnight for a
few hours.” The care giver left to go get pizza, and Ivy’s younger sibling “was able
to get his hands on a lighter and set . . . a bed sheet on fire, which ignited the entire
motel.” In November 2020, Ivy’s brother was found wandering alone in his
underwear in the hotel parking lot, looking for his mother. Mother told the
investigator in that case that she was moving something from her car and told the
child to stay in his room. She contended that she was gone less than ten minutes
when she returned to find the police with her child.
5
Lewis also testified that Mother had multiple drug tests in which she tested
positive for methamphetamine and amphetamine use, including in March 2021,
September 2021, and October 2021. Lewis testified that these positive drug tests
were a violation of Mother’s family plan of service, which also required Mother,
among other things, to maintain stable housing and income, attend parenting
classes and substance abuse assessment, and refrain from criminal activity. Lewis
testified that Mother had completed no services. Lewis further testified that Mother
visited Ivy approximately 10 times during the year that the case was pending, but
Mother missed some opportunities to visit Ivy while she was incarcerated for
approximately two months during the time that Ivy was in DFPS custody.
Lewis testified that DFPS believed it was in Ivy’s best interest to terminate
Mother’s parental rights because Mother continued to test positive for drug use
throughout the case, Mother did not comply with the family plan of service, and
Mother had a history with DFPS of neglectful supervision for leaving her children
unsupervised.
Mother also testified at trial. She acknowledged that Ivy was removed from
her care when the child was found in a hotel room without another adult present.
She testified, however, that the child was not alone because she was asleep in
another room belonging to “[a]n associate at the time.” Mother further admitted
that the room she was staying in “had drugs and guns [but one of the guns] was a
6
paintball gun[.]” Mother admitted she used methamphetamine while she was in the
hotel where Ivy was found and removed from her care. Mother also admitted that
she used methamphetamine in November 2021.
Mother testified that she had been incarcerated from June 2, 2021, until the
“end of August or right at the beginning of September.” Mother further testified
that she completed her substance abuse assessment. She stated that the counselor
who did the assessment recommended counseling and anger management due to
the altercation with her father, but the follow-up appointment was canceled, and
Mother was unable to coordinate with her caseworker to get them rescheduled.
Lewis, however, was unsure where Mother had completed this assessment, stating,
“If [Mother’s] referring to the Best Group, . . . I did reach out to them, and they
stated that no services were performed. So if she completed a substance abuse
assessment, I do not have that on file.”
Mother further testified that, at the time of trial, she was living in her great
aunt’s home and working for her brother, so she was able to maintain stable
housing and pay her bills. Furthermore, at the time of trial, Mother did not have
any pending criminal charges, nor was she on probation. Mother acknowledged
that she had not provided proof of her employment or housing to DFPS.
The trial court found that Mother engaged in conduct supporting termination
of her parental rights pursuant to Family Code subsections 161.001(b)(1)(D), (E),
7
(N), and (O). The trial court further found that termination of Mother’s parental
rights to Ivy was in the child’s best interest. Accordingly, the trial court rendered
its final order terminating Mother’s parental rights, and this appeal followed.
Sufficiency of Endangerment Findings
In her first and second issues, Mother argues that the evidence was legally
and factually insufficient to support the trial court’s findings that Mother
endangered Ivy pursuant to subsections (D) and (E).
A. Standard of Review
A trial court may order termination of the parent-child relationship if it finds
one of the statutorily enumerated predicate grounds for termination and that
termination of parental rights is in the best interest of the children. TEX. FAM. CODE
§ 161.001(b); see In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). DFPS must
prove both elements—a statutorily prescribed predicate finding and that
termination is in the child’s best interest—by clear and convincing evidence. In re
E.N.C., 384 S.W.3d at 802 (stating that federal due process clause and Texas
Family Code both mandate “heightened” standard of review of clear and
convincing evidence in parental-rights termination cases). The Family Code
defines “clear and convincing evidence” as “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the
8
truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007; In re
E.N.C., 384 S.W.3d at 802.
“Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was
true.” In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We assume that any disputed
facts were resolved in favor of the finding if a reasonable factfinder could have
done so. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In reviewing the evidence’s
factual sufficiency, we consider the entire record, including disputed evidence. In
re A.C., 560 S.W.3d at 631. “Evidence is factually insufficient if, in light of the
entire record, the disputed evidence a reasonable factfinder could not have credited
in favor of a finding is so significant that the factfinder could not have formed a
firm belief or conviction that the finding was true.” Id.
B. Analysis
In her first two issues, Mother argues that the evidence was insufficient to
support the trial court’s endangerment findings pursuant to subsections
161.001(b)(1)(D) and (E).
Section 161.001(b)(1)(D) provides that a court may order termination of the
parent-child relationship if it finds by clear and convincing evidence that the parent
has “knowingly placed or knowingly allowed the child to remain in conditions or
9
surroundings which endanger the physical or emotional well-being of the child.”
TEX. FAM. CODE § 161.001(b)(1)(D). Section 161.001(b)(1)(E) provides that a
court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has “engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” Id. § 161.001(b)(1)(E).
The word “endanger” as used in section 161.001 “means more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal family
environment.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). In this context, endanger means to expose to loss or injury or to jeopardize.
Id.; In re A.J.H., No. 01-18-00245-CV, 2019 WL 190050, at *7 (Tex. App.—
Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem. op.); Jordan v. Dossey, 325
S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
(endangerment includes jeopardizing child’s emotional or physical health)..
Endangerment under subsection (D) arises from a child’s environment and a
parent’s disregard for the potential for danger created by the environment. In re
A.J.H., 2019 WL 190050, at *7; Jordan, 325 S.W.3d at 721. Although “the focus
of subsection (D) is on the child’s living environment and not on the parent’s
conduct, parental conduct may produce an endangering environment.” In re
M.T.W., No. 01-11-00162-CV, 2011 WL 6938542, at *12 (Tex. App.—Houston
10
[1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) (citing Jordan, 325 S.W.3d at 721);
see V.P. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-19-00531-CV, 2020
WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.) (holding
that “environment” refers to both child’s living conditions and environment
produced by parent’s conduct in child’s home). For example, abusive or violent
conduct or illegal drug use by a parent or other resident of the child’s home may
produce an endangering environment. In re M.T.W., 2011 WL 6938542, at *12.
Endangerment under subsection (E) arises when a parent’s course of conduct
jeopardizes the child’s physical or emotional well-being. See In re A.J.H., 2019
WL 190050, at *8. This course of conduct includes acts, omissions, and failures to
act, but it “must be based on more than a single act or omission—the evidence
must demonstrate a voluntary, deliberate, and conscious course of conduct by the
parent.” In re M.T.W., 2011 WL 6938542, at *12 (citing Jordan, 325 S.W.3d at
723). Because the evidence concerning these two statutory grounds for termination
is often interrelated, we may consolidate our examination of the evidence to
support both grounds. See In re A.J.H., 2019 WL 190050, at *8.
Mother argues that the record was “silent as to any inherently dangerous
conditions of the child’s living environment,” as required to support findings under
subsection (D). She asserts that Ivy was not in immediate danger when law
enforcement personnel found her and her younger brother alone in their hotel
11
room. She further asserts that she had not been gone for more than an hour and was
in another room in the same hotel, and, thus, her conduct did not rise to the level of
endangerment. Mother’s arguments do not address the entirety of the evidence
regarding the conditions of Ivy’s environment.
The record shows that, prior to removal, Ivy’s living conditions were
unstable, and she had not been enrolled in school for more than a year. Mother and
Ivy lived with Mother’s father for a time, and Mother had an altercation with her
father that resulted in her arrest for assault against a family member. See In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) (holding that
“abusive or violent conduct by a parent or other resident of a child’s home may
produce an environment that endangers the [child’s] physical or emotional well-
being”). Mother engaged in other criminal behavior, resulting in her pleading
guilty to criminal trespass and serving time in jail during the pendency of the case,
resulting in further instability in her living arrangements.
Mother lived in various motels with Ivy, failing to supervise Ivy and her
younger brother on several occasions. This included one incident in which Mother
left Ivy and her brother with a woman mother did not know very well, and Ivy’s
brother burned down a motel. Ivy came into DFPS’s care after law enforcement
raided a group of hotel rooms and found Ivy alone with her brother, while Mother
was sleeping in a different hotel room. The room where Mother was found also had
12
illegal drugs and guns. Mother stated at the time of this incident that she could not
pay for the hotel room. A friend of her boyfriend had paid for it, but she and her
children would be moving soon to another location. Both the DFPS caseworker
and Court Appointed Special Advocates volunteer reported difficulty in contacting
Mother.
While the case was pending, Mother was incarcerated from June 2021 until
late August or early September 2021. Mother also continued to use drugs. She
admitted that she used methamphetamines at the time Ivy was removed and again
in November 2021, a couple of months after she got out of jail. See id. (holding
that parent’s illegal drug use and drug-related criminal activity support conclusion
that child’s surroundings endanger her physical or emotional well-being); A.C. v.
Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 705 (Tex. App.—
Austin 2019, pet. denied) (holding that factfinder “is entitled to give ‘great weight’
to a parent’s drug-related conduct, as it is considered a ‘significant factor’
supporting termination.”).
The trial court, acting as the factfinder, could have reasonably concluded
that Mother’s failure to supervise Ivy during the hotel incident exposed her to a
dangerous environment that jeopardized her physical well-being. This evidence,
considered alone or coupled with the unstable home environment created by
Mother’s drug use and criminal acts, was legally and factually sufficient to support
13
the trial court’s finding under subsection (D). See TEX. FAM. CODE
§ 161.001(b)(1)(D); see A.C., 560 S.W.3d at 630–31 (stating standard of review for
legal and factual sufficiency); see also In re D.J.H., 381 S.W.3d 606, 613–14 (Tex.
App.—San Antonio 2012, no pet.) (affirming factual sufficiency of finding under
subsection (D) based on single dangerous incident combined with parent’s “pattern
of criminal activity [that] subjected him to the possibility of incarceration”).
And the same evidence also demonstrated a course of endangering conduct.
Mother’s failure to supervise Ivy, her drug use and criminal behavior, and her
corresponding instability were legally and factually sufficient to allow a reasonable
factfinder to conclude that her course of conduct jeopardized Ivy’s physical and
emotional well-being. See TEX. FAM. CODE § 161.001(b)(1)(E); In re A.C., 560
S.W.3d at 630–31.
Mother argues that there was no clear and convincing evidence that she
engaged in an endangering course of conduct that would support findings under
subsection (E). She asserts that the evidence indicated that she had left Ivy alone
only for approximately 45 minutes while Mother was in another room down the
hall. During that period, however, police raided the hotel rooms and found Ivy and
her brother were staying alone. Mother was found sleeping in another room. And
this was not the first time the children had been found without appropriate
supervision.
14
Mother also argues that DFPS did not admit copies of drug test results.
Lewis’s testimony relating details of three positive drug test results is some
evidence of positive drug tests. Mother did not object to Lewis’s testimony
regarding the positive drug test results. Mother herself admitted that she used
methamphetamine the night of the hotel incident that resulted in Ivy’s removal
from her care. She also admitted using drugs in November 2021, while this case
was pending and just months after she was released from jail. Official copies of her
drug test results are not required to prove her use of illegal drugs or the effect on
her ability to parent. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“[A]
parent’s use of narcotics and its effect on his or her ability to parent may qualify as
an endangering course of conduct.”). Furthermore, continued illegal drug use after
a child’s removal is conduct that jeopardizes parental rights and may be considered
as establishing an endangering course of conduct under subsection (E). In re
C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied). “And where
the record contains evidence that a parent engages in drug use during the pendency
of a termination suit, when he knows he is at risk of losing his children,” such
evidence has been found legally sufficient to support a finding of endangerment
under subsection (E). Id.
Mother also argues that her criminal history should not be considered,
because her family assault and burglary charges were dismissed, and her second
15
burglary charge was reduced to misdemeanor criminal trespass. However, as
Mother’s own testimony indicated, the trespass offense resulted in Mother being
jailed from June 2021 until later August or early September 2021. This criminal
activity and its resulting jail time, in addition to her drug use, her failure to
adequately supervise Ivy, and her failure to keep Ivy enrolled in school, is evidence
of conduct that would subject Ivy to instability. See In re M.D.M., 579 S.W.3d 744,
765 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding that “[c]onduct that
subjects a child to life of uncertainty and instability endangers the child’s physical
and emotional well-being,” and stating that such conduct includes drug use,
violence, and criminal conduct); In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—
Texarkana 2007, no pet.) (stating that while imprisonment, standing alone, is
insufficient to constitute endangering course of conduct, it is factor to be
considered on issue of endangerment). The evidence also indicated that Mother
missed multiple visits with Ivy, and only some of those missed visitations were due
to her imprisonment.
Given this evidence, we hold that the trial court could have reasonably
concluded that Mother engaged in an endangering course of conduct and is legally
and factually sufficient to support the trial court’s finding under subsection (E). See
TEX. FAM. CODE § 161.001(b)(1)(E); In re A.C., 560 S.W.3d at 630–31 (stating
standard of review for legal and factual sufficiency).
16
We overrule Mother’s first and second issues.
Because we have concluded that the evidence was sufficient to support the
trial court’s endangerment findings pursuant to subsections (D) and (E), we need
not address the other grounds for termination pursuant to subsections (N) and (O).
See In re N.G., 577 S.W.3d 230, 231, 236–37 (Tex. 2019) (per curiam) (holding
that “[t]o affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—
even if the trial court based the termination on more than one ground”; explaining
that due process and due course of law considerations require appellate court to
review sufficiency of evidence supporting (D) or (E) grounds “when the parent has
presented the issue to the court” because endangerment findings in prior
termination proceedings can be used as basis for termination in subsequent
proceedings involving other children).
Best Interest
In her fifth issue, Mother argues that the evidence was insufficient to support
the trial court’s finding that terminating her parental rights to Ivy was in the child’s
best interest.
The Texas Legislature has set out several factors that courts should consider
in determining whether a child’s parent is willing and able to provide the child
with a safe environment, including: (1) the child’s age and physical and mental
17
vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the
magnitude and frequency of harm to the child; (4) whether the child has been the
victim of repeated harm after the initial intervention by DFPS; (5) whether there is
a history of abusive or assaultive conduct or substance abuse by the child’s family
or others who have access to the child’s home; (6) the willingness of the child’s
family to seek out, accept, and complete counseling services; (7) the willingness
and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time; and (8) whether the child’s family
demonstrates adequate parenting skills, including providing minimally adequate
care for the child’s health and nutritional needs, care consistent with the child’s
physical and psychological development, guidance and supervision consistent with
the child’s safety, a safe physical home environment, and an understanding of the
child’s needs and capabilities. TEX. FAM. CODE § 263.307(b).
The Supreme Court of Texas has also set out several non-exclusive factors
that we should consider when determining whether the termination of a parent’s
rights is in the child’s best interest, including (1) the child’s desires; (2) the child’s
current and future physical and emotional needs; (3) the current and future physical
danger to the child; (4) the parental abilities of the person seeking custody;
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the child; (6) the plans for the child by the person
18
seeking custody; (7) the stability of the home; (8) the acts or omissions of the
parent that may indicate the parent-child relationship is not proper; and (9) any
excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976); In re A.C., 394 S.W.3d 633, 641–42 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
These factors are not exhaustive, and it is not necessary that DFPS prove all
these factors “as a condition precedent to parental termination.” In re C.H., 89
S.W.3d 17, 27 (Tex. 2002). The absence of evidence concerning some of the
factors does not preclude a factfinder from forming a firm belief or conviction that
termination is in the children’s best interest. In re A.C., 394 S.W.3d at 642.
The best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence. In re B.R.,
456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). “A trier of fact may
measure a parent’s future conduct by his past conduct and determine whether
termination of parental rights is in the child’s best interest.” Id.; see In re C.H., 89
S.W.3d at 28 (stating that past performance as parent “could certainly have a
bearing on [parent’s] fitness to provide for” child, and courts should consider prior
history of child neglect in best-interest analysis).
The evidence of endangerment outlined above, including Mother’s drug use,
imprisonment, failure to adequately supervise Ivy, and other instability that
19
resulted in Ivy not being enrolled in school, supports the trial court’s best-interest
finding. See In re C.H., 89 S.W.3d at 27–28 (holding that evidence establishing
predicate grounds under section 161.001(b)(1) also may be relevant to determining
child’s best interest); see also TEX. FAM. CODE § 263.307(b) (best-interest factors
include considerations such as frequency and severity of harm to child, parent’s
history of violent behavior, drug use, or criminal activity, among others).
The evidence also demonstrated that Mother did not make any significant
efforts to complete her family plan of service. See TEX. FAM. CODE § 263.307(b)
(best-interest factors include parent’s willingness to seek out services and
demonstrate ability to provide adequate parenting skills). Mother testified at trial
that she had income and stable housing, but she did not provide any pay stubs or
other evidence to support her testimony. Nothing in the record supported Mother’s
conclusory testimony that she could provide a safe and appropriate home for Ivy.
Regarding Ivy’s current placement, the evidence indicated that her foster
family wanted to adopt her, and Ivy was bonded with them. When Ivy was briefly
removed from her foster home to be placed with a family member, the foster
family continued to visit with Ivy. When the family member died, the foster family
made a smooth transition for Ivy to return to their home. The foster family enrolled
Ivy in school and worked with her to catch up on her missed schooling. This
evidence further demonstrates that termination of Mother’s parental rights was in
20
Ivy’s best interest. See TEX. FAM. CODE § 263.307(b); Holley, 544 S.W.2d at 372
(holding that future plans for child are relevant to best-interest determination).
Mother argues that the evidence is legally and factually insufficient.
Regarding the first Holley factor—Ivy’s desires—Mother contends that there was
no evidence of Ivy’s wishes even though she was old enough to make her desires
known. We observe, however, that the absence of evidence concerning some of the
factors does not preclude a factfinder from forming a firm belief or conviction that
termination is in the child’s best interest. In re A.C., 394 S.W.3d at 642.
Furthermore, “[e]vidence that a child is well-cared for by a foster family or a
proposed adoptive placement, is bonded to the proposed placement, and has spent
minimal time in the presence of the child’s parent is relevant to the best interest
determination and, specifically, is relevant to the child’s desires.” In re M.D.M.,
579 S.W.3d at 770.
Mother further argues that there was no evidence of factors such as current
or future danger to Ivy, Mother’s parental abilities, or programs available to help
Mother. These arguments do not account for the fact that the trial court could
consider circumstantial evidence, subjective factors, and the totality of the
evidence as well as the direct evidence in making its best-interest finding. See In re
B.R., 456 S.W.3d at 616. Although no witness testified explicitly about the
physical danger to Ivy, the evidence of Mother’s past negligence and current drug
21
use and criminal activities allowed the trial court to make inferences regarding
Ivy’s safety and well-being while in Mother’s care. Lewis did not testify regarding
Mother’s parental abilities or programs that might help her, but Lewis did state that
DFPS gave Mother a family plan of service and that Mother completed no
services. Mother argues that she completed a substance abuse assessment, but she
also acknowledges that she did not complete any of the follow-up
recommendations. Lewis testified that she did not receive any documentation to
support Mother’s testimony that she completed the substance abuse assessment or
obtained employment and stable housing.
We therefore conclude—considering the evidence in the light most favorable
to the trial court’s finding and considering all of the evidence, including disputed
and conflicting evidence—that a factfinder could have reasonably formed a firm
belief or conviction that termination of Mother’s parental rights to Ivy was in the
child’s best interest. See TEX. FAM. CODE § 161.001(b)(2); In re E.N.C., 384
S.W.3d at 802; In re H.R.M., 209 S.W.3d 105,108 (Tex. 2006). We hold that the
evidence was legally and factually sufficient to support the trial court’s best-
interest finding.
We overrule Mother’s fifth issue.
22
Conclusion
We affirm the trial court’s final decree terminating Mother’s parental rights
to Ivy.
Richard Hightower
Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
23 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482084/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEISHA D. LEWIS,
Plaintiff
v. Civil Action No. 22-0189 (CKK)
ROSLYNN R. MAUSKOPF,
Defendant.
MEMORANDUM OPINION
(November 7, 2022)
Plaintiff Keisha D. Lewis brought this case against Defendant Roslynn R. Mauskopf,
Director, Administrative Office of the U.S. Courts, alleging employment discrimination in
violation of Title VII. Presently before the Court is Defendant’s [7] Motion to Dismiss all of
Plaintiff’s claims. Upon consideration of the pleadings,1 the relevant legal authorities, and the
record for purposes of this motion, the Court GRANTS Defendant’s Motion.
I. BACKGROUND
On January 18, 2022, Plaintiff Keisha D. Lewis, a Black woman, brought this action
against Defendant Roslynn R. Mauskopf, the Director of the Administrative Office of the U.S.
Courts (A.O.). See Compl. Ms. Lewis was formerly employed by the A.O. as a “Data Programs
1
The Court’s consideration has focused on the following documents and their attachments and/or
exhibits:
• Plaintiff’s Complaint for Employment Discrimination, ECF No. 1 (“Compl.”);
• Plaintiff’s Discrimination Complaint Incident Outline, ECF No. 1 (“Pl.’s Out.”)
• Tab A, ECF No. 1 (“Tab A”);
• Defendant’s Motion to Dismiss, ECF No. 7 (“Def.’s Mot.”);
• Declaration of Tiffany Blakey, ECF No. 7-2, (“Blakey Decl.”);
• Plaintiff’s Response in Opposition to the Motion to Dismiss, ECF No. 9 (“Pl.’s Resp.”);
• Reply in Further Support of Defendant’s Motion to Dismiss, ECF No. 10 (“Def.’s
Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
1
and Policy Branch Analyst.” Tab A. She alleges that during her employment, she was subject to
a pattern of discriminatory conduct by her supervisors in violation of Title VII. Compl. at 4.
Among a list of numerous allegedly discriminatory practices, Ms. Lewis mentions an
“inflammatory performance assessment write-up” that she claims was the product of her
manager’s “discrimination and retaliatory actions.” Pl.’s Out. at 2.
Before bringing this action, Ms. Lewis sought redress through the A.O.’s internal
complaint process. Blakey Decl. ¶ 7. In July 2018, she contacted a counselor of the A.O.’s Fair
Employment Practices Office and eventually filed a Formal Complaint of Discrimination with
that office in December 2018. Id. ¶¶ 7, 8. The Office accepted her complaint in February 2019
and generated a lengthy “Report of Investigation” in June 2019. Id. ¶ 9. Finally, in February
2020, the A.O.’s Director dismissed Ms. Lewis’s charges upon the recommendation of a Hearing
Officer. Id. ¶ 10. Ms. Lewis did not appeal this decision to an Appellate Judicial Officer, id. ¶
12, as permitted by A.O.’s complaint policy, Def.’s Ex. 1 at 15–17. Instead, Ms. Lewis filed a
Title VII claim with the EEOC, which was dismissed in December 2021 “due to a lack of
jurisdiction.” Compl. at 5.
Proceeding pro se, Ms. Lewis filed a Complaint before this Court in January 2022
alleging a Title VII violation due to “[u]nequal terms and conditions of [her] employment,”
retaliation, and constructive discharge. Id. at 6. In response, Defendant filed the instant motion
to dismiss for lack of subject matter jurisdiction. Def.’s Mot. at 7. In Ms. Lewis’s response to
Defendant’s motion, she articulated––for the first time––violations of the Fifth, Seventh, and
Ninth Amendments. Pl.’s Resp. at 2–4. Defendant considers Plaintiff’s response to be amending
Plaintiff’s Complaint by adding new causes of action. See Def.’s Reply at 2–3. Ms. Lewis’s
response additionally challenged the integrity of the A.O.’s investigation and complaint process,
2
claiming that it was fraudulent. Pl.’s Resp. at 5–9. Defendant filed their reply in further support
of their motion to dismiss. The Court now addresses the motion to dismiss Plaintiff’s claims.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). To determine whether there is jurisdiction, courts may
“consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal.
for Underground Expansion v. Mineta, 333 F. 3d 193, 198 (D.C. Cir. 2003) (citations omitted);
see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir.
2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to
grant a motion to dismiss for lack of jurisdiction.”).
In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all
factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the
benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole
Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). Despite the favorable inferences afforded to a
plaintiff on a motion to dismiss, it remains the plaintiff’s burden to prove subject matter
jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. U.S. Env’t Prot. Agency,
121 F. Supp. 2d 84, 90 (D.D.C. 2000) (ESH). “Although a court must accept as true all factual
allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1), [a] plaintiff[’s] factual allegations in the complaint ... will bear closer scrutiny in
resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”
Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (JDB) (internal
3
citations and quotation marks omitted) (quoting Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001), aff’d per curiam, No. 07-5328, 2008 WL
4068606 (D.C. Cir. Mar. 17, 2008)). A court need not accept as true “a legal conclusion couched
as a factual allegation” or an inference “unsupported by the facts set out in the complaint.”
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal citation and
quotation marks omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
Defendant filed their motion to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). However, after Plaintiff’s response articulated new claims, Defendant
transitioned to, in part, functionally arguing for dismissal for failure to state a claim under Fed.
R. Civ. P. 12(b)(6). See, e.g., Def.’s Reply at 6 (“Plaintiff has no viable… claim”). Therefore,
this Court will apply the 12(b)(6) standard where appropriate.
Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if
accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. A court does “not accept as true, however, the plaintiff’s legal conclusions or
inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).
4
III. DISCUSSION
A. Scope of Plaintiff’s Pleadings
As a threshold matter, Defendant argues that the Court should not consider the
constitutional claims that Plaintiff articulates for the first time in her response to Defendant’s
motion to dismiss. Def.’s Reply at 2–3. The Court rejects this argument.
To begin, the Court accepts as true the well-pleaded allegations in Plaintiff’s Complaint.
A pro se complaint must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Where some
legitimate claim for relief lies, a court should not grant a motion to dismiss a pro se litigant’s
complaint for failure to state a claim. See Anyanwutaku v. Moore, 151 F.3d 1053, 1059 (D.C.
Cir. 1998) (“Even if [a plaintiff] might lose on the merits,… the district court should… permit[ ]
[a] claim, drafted pro se and based on legitimate factual allegations, to proceed.”); Williams v.
Bank of N.Y. Mellon, 169 F. Supp. 3d 119, 124 (D.D.C. 2016) (RBW).
Furthermore, the Court of Appeals has ruled that a court must consider not only the
allegations in a pro se plaintiff’s complaint, but also those in response to a motion to dismiss.
See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court
errs in failing to consider a pro se litigant's complaint ‘in light of’ all filings, including filings
responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999)); Fillmore v. AT & T Mobility Servs. LLC, 140 F. Supp. 3d 1, 2 (D.D.C. 2015)
(JEB) (“the Court, as it must in a case brought by a pro se plaintiff, considers the facts as alleged
in both the Complaint and Plaintiff's Opposition to Defendant's Motion to Dismiss.”).
Accordingly, the Court is willing to consider Plaintiff’s Fifth, Seventh, and Ninth
Amendment claims as recontextualizing the allegations included in her Complaint. See Pl.’s
5
Resp. at 2 (“It is Ms. Lewis’ belief that her complaint not only covers the provisions outlined in
Title VII, but also the guarantees of personal freedoms and rights outlined in the U.S.
Constitution”).
B. Title VII Claim
Defendant asserts that this Court lacks subject matter jurisdiction over Plaintiff’s Title
VII claims because Plaintiff’s employment position was not covered by Title VII. Def.’s Mot. at
4–5. Defendant is correct that Plaintiff’s position was not covered by Title VII, and Plaintiff
concedes this point. Pl.’s Resp. at 2. Title VII applies to units of the judicial branch of the
federal government having positions in the competitive service. 42 U.S.C. § 2000e-16(a).
Employees of the judicial branch whose positions are not part of the competitive service may not
bring claims under Title VII. See Davis v. Passman, 442 U.S. 228, 247 (1979) (concluding that
Title VII does not apply to congressional employees who are exempt from competitive service);
Lawrence v. Staats, 640 F.2d 427, 431 (D.C. Cir. 1981); Bethel v. Jefferson, 589 F.2d 631, 637 n.
29 (D.C. Cir. 1978). Plaintiff’s position was admittedly not in the competitive service. Pl.’s
Resp. at 2. Therefore, the Court grants Defendant’s motion to dismiss Plaintiff’s Title VII
claims. However, the Court notes that Defendant’s argument would be better characterized as a
motion to dismiss for failure to state claim under 12(b)(6).
C. A.O. Adjudication Process
In their motion to dismiss, Defendant argues that because Plaintiff’s discrimination and
retaliation claims were fully adjudicated pursuant to the A.O. complaint process, the Court does
not have subject matter jurisdiction under the Administrative Procedure Act (APA) to review
them. Def.’s Mot. at 6–7. In response, Plaintiff admits that “[t]he AO did adjudicate Ms. Lewis’
claims.” Pl.’s Resp. at 5. However, she argues that “the AO process was not fair, just, or
6
impartial. Moreover, [Ms. Lewis]… believes that she is entitled for her claims to be heard and
adjudicated by an impartial court and/or jury pursuant to… 60(b)(3)” because the process was
fraudulent. Id. at 5–7. The Court now addresses whether Plaintiff’s claims are reviewable under
either the APA or Rule 60(b)(3).
1. Administrative Procedure Act
The APA grants the federal judiciary the power to review adjudications made by
“agencies.” 5 U.S.C. § 554. The APA specifically exempts “the courts of the United States”
from the definition of “agency.” 5 U.S.C. § 551(1)(B). Courts in this Circuit have understood
this language to exclude the entire judicial branch, including the A.O., from APA review. See
Novell, Inc. v. U.S., 109 F. Supp. 2d 22, 26–27 (D.D.C. 2000) (EGS) (citing Washington Legal
Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994).
Plaintiff’s claims were adjudicated to a final decision pursuant to the A.O.’s complaint
process, which Plaintiff admits. See Pl.’s Resp. at 5; Blakey Decl. ¶¶ 9–12. As the A.O. is
excluded from APA review, the Court does not have subject matter jurisdiction to review the
A.O.’s adjudication of Plaintiff’s claims.
2. Federal Rule of Civil Procedure 60(b)(3)
Rule 60(b)(3) states that “[o]n motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons: fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b)(3). A 60(b)(3) motion is filed by a party seeking to
overturn a final judgment entered by a court of the federal judiciary. See, e.g., Murray v. D.C.,
52 F.3d 353, 354 (D.C. Cir. 1995) (ruling on appeal brought by plaintiffs whose 60(b)(3) motion
for relief from the judgment of a district court was denied by the district court); Summers v.
7
Howard Univ., 374 F.3d 1188, 1192 (D.C. Cir. 2004) (considering appeal brought by plaintiffs
whose 60(b)(3) motion for relief from judgment of a magistrate judge was denied by the judge);
Lindsey v. U.S., 532 F. Supp. 2d 144, 146 (D.D.C. 2008) (RBW) (considering plaintiff’s 60(b)(3)
motion to reconsider the court’s prior dismissal with prejudice). This Court has been unable to
identify any legal authority for the proposition that the rule may also grant a district court
jurisdiction to hear claims it would otherwise lack the subject matter jurisdiction to entertain,
including review of the A.O.’s adjudication decision. Plaintiff misunderstands Rule 60(b)(3).
* * *
The Court grants Defendant’s motion to dismiss Plaintiff’s claims regarding the A.O.’s
adjudication process.
D. Fifth Amendment Due Process Claim
Plaintiff posits that a decision dismissing her claim would violate her Fifth Amendment
right to have her claim heard. Pl.’s Resp. at 2–3. Specifically, Plaintiff states that “if her civil
complaint is dismissed solely based on the fact that her allegations are against employees of the
Judicial Branch, this would constitute a violation” of her right to “due process of the law.” Id. at
3. Insofar as this language can be construed as a claim to a protected property interest in having
her claim heard, Plaintiff’s argument fails.
A due process claim requires a plaintiff to demonstrate “deprivation of a protected liberty
or property interest… by the government… without the process that is ‘due’ under the Fifth
Amendment.” NB ex rel. Peacock v. D.C., 794 F.3d 31, 41 (D.C. Cir. 2015). A protected
property interest is one upon which a person may have legitimate reliance. See Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972).
8
Plaintiff fails to establish that she has a protected property interest in having her case
heard by this Court. When Congress establishes a right through statute, it may limit the
judiciary’s adjudication of that right without violating the Fifth Amendment. Davis, 442 U.S. at
241–42. Congress established the rights under Title VII and clearly circumscribed the ability of
the judiciary to review claims brought under it by employees not in the competitive service. Id.
at 247. Therefore, as an employee not in the competitive service, Plaintiff fails to establish a due
process claim because she could not have legitimately relied upon her Title VII claims being
heard by this Court. The Court grants Defendant’s motion to dismiss Plaintiff’s Fifth
Amendment due process claim.
E. Fifth Amendment Discrimination and Retaliation Claims
Plaintiff also argues that “past, current, and future Judiciary employees are entitled to the
Constitutional guarantee of the right to work in an environment free from discrimination and
retaliation under the U.S. Constitution Bill of Rights, specifically the Fifth… Amendment[].”
Pl.’s Resp. at 1. To the extent this statement may be construed as a Bivens action for
discrimination and retaliation, it too fails.
In Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court recognized what
has become known as a “Bivens action” in which a court identifies an implied civil cause of
action within a Constitutional amendment. Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 397 (1971). Courts considering proposed Bivens actions must address whether the
case “presents ‘a new Bivens context’” and, if so, “if there are ‘special factors’ indicating that the
judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of
allowing a damages action to proceed.’” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting
Ziglar v. Abbasi, 137 S. Ct. 1843, 1859–60, 1880 (2017)). When conducting this analysis, courts
9
should note the Supreme Court’s extreme reticence towards judicially created causes of action
arising under the Constitution. See Egbert, 142 S. Ct. at 1802.
Plaintiff’s case fails this two-step inquiry. First, a new context is one that is
“meaningful[ly]” different from those in which the Court has found an implied damages action,
which it has done only three times. Ziglar, 137 S. Ct at 1859–60. A new context is present
whenever a plaintiff seeks damages from a “new category of defendant,” id. at 1857, and, as
relevant here, a separate branch of government is a new category of defendant, see Meshal v.
Higgenbotham, 804 F.3d 417, 424 (D.C. Cir. 2015) (collecting cases), cert. denied, 137 S. Ct.
2325 (2017). The Supreme Court recognized a Bivens action in Davis v. Passman that bears
most similarity to the case now before this Court. There, the Supreme Court identified a civil
cause of action under the Fifth Amendment for discrimination where the Plaintiff was a non-
competitive service employee of Congress and therefore exempt from Title VII protections.
Davis, 442 U.S. at 248. But while the defendant in Davis was a member of Congress, Davis, 442
U.S. at 230, here the Defendant is part of the judicial branch––a new category of defendant.
Therefore, this case presents a new Bivens context.
Second, the Court must determine whether there are “special factors” present that counsel
against inferring a new Bivens action. The existence of an alternative remedial scheme
established by Congress may alone be sufficient to prevent the judiciary’s recognition of a new
Bivens action. Ziglar, 137 S. Ct. at 1858; see also Schweiker v. Chilicky, 487 U.S. 412, 425
(1988); Bush v. Lucas, 462 U.S. 367, 388 (1983) (refusing to imply a Bivens action where
plaintiffs had access to “an elaborate remedial system”). Here, Plaintiff had access to the A.O.’s
complaint process, which was established pursuant to the Administrative Office of the United
States Courts Personnel Act of 1990. 28 U.S.C. § 602 Note, Act § 3(f). In fact, that process’s
10
final step, which Plaintiff elected to skip, involves review of the complainant’s claim by an
Appellate Judicial Officer, who must be a judge appointed under Article III of the U.S.
Constitution. A.O. Man. § 330.70(f)(1). The Court finds this thorough remedial scheme
established by Congress to constitute a special factor sufficient to preclude recognizing
Plaintiff’s discrimination and retaliation claims as Bivens actions under the Fifth Amendment.
Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s discrimination
and retaliation claims under the Fifth Amendment.
F. Seventh Amendment Claim
Plaintiff asserts that granting Defendant’s motion to dismiss would violate her Seventh
Amendment rights, which she describes as “provid[ing] the constitutional guarantee of having
civil claims tried before a jury, unless this right is waived by the parties involved.” Pl.’s Resp. at
3. However, Plaintiff has already waived her right to a jury trial by checking the “no” box in the
section of the complaint form entitled “Jury Trial.” Compl. at 1. Therefore, dismissal of
Plaintiff’s claims does not violate her right to a jury trial. The Court grants Defendant’s motion
to dismiss Plaintiff’s Seventh Amendment claim.
G. Plaintiff’s Right to a Chosen Trade or Profession
Plaintiff next argues that one of the unenumerated rights under the Ninth Amendment is
her “right to choose and follow a profession.” Pl.’s Resp. at 4. She asserts that this right was
infringed upon because the “discrimination and retaliation she endured forced her from enjoying
and continuing in her chosen position and profession.” Id.
The right to follow a chosen trade or profession is grounded in the due process clause of
the Fifth Amendment, see generally Kartseva v. Dep’t of State, 37 F.3d 1524 (D.C. Cir. 1994),
rather than the Ninth Amendment. Due process may be implicated when government “action
11
formally or automatically excludes [a plaintiff] from work” in their chosen field, or if it “has the
broad effect of largely precluding [a plaintiff] from pursuing [their] chosen career.” Kartseva v.
Dep’t of State, 37 F.3d at 1528–29.
Plaintiff presents no evidence that the government has formally or automatically
excluded her from working in her chosen field. Instead, Plaintiff’s claim seems to largely hinge
on an allegation regarding the performance assessment received while at the A.O.; she states that
having certain negative “language in my written assessment has prohibited me from being able to
apply and be considered to other government positions.” Pl.’s Out. at 2. Accordingly, Plaintiff
must rely on the second argument as described in Kartseva––that the government’s actions have
had the broad effect of largely precluding her from pursuing her chosen career. Kartseva, 37
F.3d at 1528–29; see, e.g., Greene v. McElroy, 360 U.S. 474, 492, 508 (1959) (finding due
process possibly implicated where government revocation of security clearance “seriously
affected, if not destroyed, [plaintiff’s] ability to obtain employment in the aeronautics field”);
Kartseva, 37 F.3d at 1528–30 (recognizing potential due process violation where government
terminated plaintiff after a background check based on unknown “counterintelligence concerns,”
which may “implicate[] [plaintiff’s] general employability in her field”). If a plaintiff has
“merely lost one position in her profession but is not foreclosed from reentering the field, she has
not carried her burden.” Kartseva, 37 F.3d at 1529. A showing of stigmatic or reputational harm
alone cannot suffice to demonstrate a claim of interference with the right to follow a chosen trade
or profession. O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir. 1998) (citing Siegert v.
Gilley, 500 U.S. 226 (1991)). Such a “claim cannot survive a motion to dismiss on the theory
that a government action led to mere difficulty finding a job. The [c]omplaint must allege that
the plaintiff has been effectively ‘foreclosed’ from some category of work.” Lea v. D.C., No. 22-
12
cv-1396, 2022 WL 315828, at *6 (D.D.C. Aug. 8, 2022) (JEB) (citing Campbell v. D.C., 894
F.3d 281, 288–89 (D.C. Cir. 2018)).
Plaintiff has not alleged sufficient facts to suggest that the A.O.’s actions have had the
broad effect of largely precluding her from pursuing her chosen career. Taking Plaintiff’s
allegations as true, discrimination from individuals within the government (i.e., her managers)
forced her to leave her position at the A.O. Pl.’s Resp. at 4. However, that Ms. Lewis “merely
lost one position” does not mean that she has been precluded from working in her chosen field.
Kartseva, 37 F.3d at 1529. Her chosen field appears to have been both the data and policy
analysis fields, or, alternatively, the field of government work. See Tab A (showing title of
“Data Programs and Policy Branch Analyst”). Plaintiff has pled no facts to support the claim
that she has been unable to find work in the fields of data and policy analysis due to the actions
of A.O. employees. She does claim that the negative performance assessment “has prohibited
[her] from being able to apply and be considered to other government positions.” Pl.’s Out. at 2.
However, defeating a motion to dismiss for failure to state a claim requires more than a “bare
assertion that the agency’s actions ‘have prevented [plaintiff] from obtaining employment in his
chosen profession.’” deLeon v. Wilkie, No. 19-1250, 2020 WL 210089 at *6 (D.D.C. Jan. 14,
2020) (JEB). Plaintiff does not plead any additional facts expounding upon her inability to apply
for and be considered for government positions; in fact, her claim is virtually identical to the
conclusory statements found to be insufficient to survive a motion to dismiss in deLeon. Cf. Lea,
2022 WL 315828, at *6 (denying a motion to dismiss where the plaintiff stated in her complaint
that “she was ‘completely foreclosed’ from ‘any real prospect of pursuing employment with the
District of Columbia government,’” and that “she applied to numerous jobs in the government
but was offered no interviews”). Moreover, even were Plaintiff to have pled facts that the
13
performance assessment caused her reputational harm or led to difficulty in securing government
employment, such arguments would fail. See O’Donnell, 148 F.3d at 1141; Campbell, 894 F.3d
at 288–89.
Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s claim regarding
the right to a chosen trade or profession.
H. Ninth Amendment Claim
Finally, Plaintiff argues that dismissal of her claims will violate her rights to “receive
equal protection… from the federal government” and “to use the federal courts and other
government institutions” under the Ninth Amendment. Pl.’s Resp. at 4. As previously
discussed, federal courts may grant a motion to dismiss where no legally viable claim exists or
where they lack subject matter jurisdiction without violating a plaintiff’s constitutional rights.
Therefore, these arguments are unavailing. The Court grants Defendant’s motion to dismiss
Plaintiff’s Ninth Amendment claim.
IV. CONCLUSION
For the foregoing reasons, Defendant’s [7] Motion to Dismiss all of Plaintiff’s claims is
GRANTED. This case is DISMISSED WITHOUT PREJUDICE. An Order accompanies this
Memorandum Opinion.
Dated: November 7, 2022
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
14 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482083/ | USCA11 Case: 22-10410 Date Filed: 11/07/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10410
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DIXON,
a.k.a. Smoke,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:14-cr-20017-KMW-9
USCA11 Case: 22-10410 Date Filed: 11/07/2022 Page: 2 of 3
2 Opinion of the Court 22-10410
____________________
Before WILLIAM PRYOR, Chief Judge, WILSON and LUCK, Cir-
cuit Judges.
PER CURIAM:
James Dixon appeals pro se the denial of his renewed motion
for compassionate release. 18 U.S.C. § 3582(c)(1)(A). The district
court ruled that Dixon failed to establish that an extraordinary and
compelling reason warranted his early release because he failed to
identify a medical condition that increased his risk of complications
from COVID-19, U.S.S.G. § 1B1.13, and that the statutory sentenc-
ing factors weighed against reducing his sentence, 18 U.S.C. § 3553.
We affirm.
We review the denial of a motion for compassionate release
for abuse of discretion. United States v. Harris, 989 F.3d 908, 911
(11th Cir. 2021). “A district court abuses its discretion if it applies
an incorrect legal standard, follows improper procedures in making
the determination, or makes findings of fact that are clearly erro-
neous.” Id. (quoting Cordoba v. DIRECTV, LLC, 942 F.3d 1259,
1267 (11th Cir. 2019)).
A district “court may not modify a term of imprisonment
once it has been imposed” except in specified circumstances. 18
U.S.C. § 3582(c); see United States v. Puentes, 803 F.3d 597, 605–06
(11th Cir. 2015). Section 3582(c), as amended by the First Step Act,
gives the district court discretion to “reduce the term of imprison-
ment . . . after considering the factors set forth in section 3553(a) to
USCA11 Case: 22-10410 Date Filed: 11/07/2022 Page: 3 of 3
22-10410 Opinion of the Court 3
the extent that they are applicable” if a reduction is warranted for
“extraordinary and compelling reasons” and “is consistent with ap-
plicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(1)(A). The district court may deny a motion to
reduce on either ground. United States v. Tinker, 14 F.4th 1234,
1237–38 (11th Cir. 2021).
We need not address Dixon’s argument that his asthma
qualified as an extraordinary and compelling reason to justify his
early release because we can affirm on the alternative ground
stated by the district court. Before we will reverse a “judgment that
is based on multiple, independent grounds, an appellant must con-
vince us that every stated ground for the judgment against him is
incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014). Dixon does not dispute and has abandoned any
challenge that he could have made to the finding by the district
court that the sentencing factors support the denial of his motion.
Because Dixon has failed to challenge the alternative ruling that the
statutory sentencing factors weigh against granting him sentencing
relief, “it follows that the district court’s judgment is due to be af-
firmed.” Id.
We AFFIRM the denial of Dixon’s motion for compassion-
ate release. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482090/ | [Cite as State v. Eddy, 2022-Ohio-3965.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-22-17
PLAINTIFF-APPELLEE,
v.
CALEB EDDY, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 21CRB01452
Judgment Affirmed
Date of Decision: November 7, 2022
APPEARANCES:
Thomas J. Lucente Jr. for Appellant
Joseph C. Snyder for Appellee
Case No. 1-22-17
WILLAMOWSKI, J.
{¶1} Defendant-appellant Caleb Eddy (“Eddy”) appeals the judgment of the
Lima Municipal Court, alleging that his conviction is against the manifest weight of
the evidence and that the trial court erred in stating the law on self-defense at his
bench trial. For the reasons set forth below, the judgment of the trial court is
affirmed.
Facts and Procedural History
{¶2} Eddy and S.P. were in a relationship and resided together. Tr. 5. After
S.P. and Eddy had an argument on July 8, 2021, S.P. removed the house key from
Eddy’s key chain without his knowledge. Tr. 6. S.P. later explained that she took
this house key because Eddy had packed his belongings and because she believed
that he was about to move out of the house. Tr. 22, 24. She further testified that
she wanted him to leave but that he remained at the house that night. Tr. 22.
{¶3} On July 9, 2021, S.P. and Eddy had another argument. Tr. 5-6. At some
point, Eddy removed himself from the argument and went outside. Tr. 17. He then
came back into the house, having decided to leave the premises. Tr. 18. As he
prepared to leave, Eddy realized that the house key was missing. Tr. 18. He then
went into the bedroom to locate the house key and began rummaging through S.P.’s
purse. Tr. 18. S.P. then went into the bedroom after Eddy. Tr. 18.
{¶4} When S.P. entered into the bedroom, Eddy was facing away from her.
Tr. 8. S.P. testified that she came alongside Eddy and attempted to stop him from
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Case No. 1-22-17
getting her house key from her purse. Tr. 7-8. She stated that Eddy pushed her
away but that she then returned to his side and reached again for her house key. Tr.
7-8. S.P. stated that Eddy then pushed her away again and stated that this second
push was more forceful than the first. Tr. 8. In response, S.P. pushed Eddy back.
Tr. 9. Eddy and S.P. then began struggling with each other. Tr. 9.
{¶5} Eddy then managed to pin S.P. down with her back on the bed and her
feet on the floor. Tr. 9. S.P. testified that she went into “defense mode” and started
trying to scratch his face. Tr. 9. She recounted, at this point, grabbing Eddy’s
testicles as “hard as * * * [she] could” because she believed “that [this] would get
him off of [her] * * *.” Tr. 10. She testified that, in response, Eddy lifted her up
off of the bed “and slam[ed her] * * * to the floor.” Tr. 10.
{¶6} S.P. testified that Eddy then “g[o]t on top of [her] * * * and pin[ned her]
* * * down.” Tr. 11. She then stated the following:
He put his knee into my right shoulder and held my left arm down
to the ground with his left hand. And drew his hand back like he
was going to punch me. And at that point, I quit fighting cuz I
couldn’t move.
***
I completely gave up and just told him to get off of me. I just kept
yelling for him to get off of me. Until he finally, after maybe, I
don’t know, maybe forty seconds or so, he finally got off of me.
Tr. 11, 12. S.P. stated that she got up; grabbed her phone; went into a spare
bedroom; called 9-1-1; and reported the altercation to the dispatcher. Tr. 12-13.
-3-
Case No. 1-22-17
{¶7} S.P. then called her friend, Joelene Sibeneck (“Sibeneck”), and
recounted the events of that evening. Tr. 14, 25. On Sibeneck’s recommendation,
S.P. locked herself in the bathroom while Sibeneck and her husband drove to S.P.’s
house. Tr. 14, 26. Sibeneck then took S.P. from her house to a local Urgent Care
for a medical examination. Tr. 14. A police officer met S.P. at the Urgent Care and
took a statement from her about this incident. Tr. 29.
{¶8} On July 30, 2021, complaints were filed that alleged that Eddy had
committed the offense of domestic violence in violation of R.C. 2919.25(A), a
misdemeanor of the first degree, and the offense of assault in violation of R.C.
2903.13(A), a misdemeanor of the first degree. Doc. 1-2. On January 28, 2022,
both S.P. and Sibeneck testified at a bench trial on these charges. Doc. 16. Tr. 5,
25. The Defense then made Crim.R. 29 motions to challenge both charges. Tr. 31.
On January 31, 2022, the trial court issued judgment entries that found Eddy not
guilty of domestic violence under R.C. 2919.25(A) and guilty of assault in violation
of R.C. 2903.13(A). Doc. 16-17.
{¶9} Eddy then filed his notice of appeal on February 24, 2022. Doc. 18. On
appeal, he raises the following two assignments of error:
First Assignment of Error
The trial court erred when it stated the law of self-defense
required defendant to retreat.
-4-
Case No. 1-22-17
Second Assignment of Error
Appellant’s conviction were against the manifest weight of the
evidence and contrary to law.
For the sake of analytical clarity, we will consider Eddy’s second assignment of
error before his first assignment of error.
Second Assignment of Error
{¶10} Eddy argues that the trial court erred in concluding that the State
carried the burden of establishing that Eddy did not act in self-defense. He asserts
that his conviction is, therefore, against the manifest weight of the evidence.
Legal Standard
{¶11} In a manifest weight analysis, “an appellate court determines whether
the state has appropriately carried its burden of persuasion.” State v. Blanton, 121
Ohio App.3d 162, 169, 699 N.E.2d 136 (3d Dist. 1997). “Unlike our review of the
sufficiency of the evidence, an appellate court’s function when reviewing the weight
of the evidence is to determine whether the greater amount of credible evidence
supports the verdict.” State v. Richey, 2021-Ohio-1461, 170 N.E.3d 933, ¶ 29 (3d
Dist.), quoting State v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.).
{¶12} Accordingly, “the appellate court sits as a ‘thirteenth juror’ * * *.”
State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State
v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997).
Appellate courts
-5-
Case No. 1-22-17
must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the
factfinder ‘clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a
new trial ordered.’ State v. Brentlinger, 2017-Ohio-2588, 90
N.E.3d 200, ¶ 36 (3d Dist.), quoting Thompkins at 387.
State v. Schatzinger, 3d Dist. Wyandot No. 16-20-04, 2021-Ohio-167, ¶ 52.
{¶13} “A reviewing court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.),
quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “Only
in exceptional cases, where the evidence ‘weighs heavily against the conviction,’
should an appellate court overturn the trial court’s judgment.” State v. Little, 2016-
Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131 Ohio St.3d
67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶14} Assault in violation of R.C. 2903.13(A) occurs where a person
“knowingly cause[s] or attempt[s] to cause physical harm to another * * *.” R.C.
2903.13(A). However, under Ohio law, “[a] person is allowed to act in self-
defense.” R.C. 2901.05(B)(1). “Self-defense is an affirmative defense.” State v.
Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 43 (8th Dist.). “The elements of self-
defense differ depending on whether the defendant used deadly or non-deadly force
to defend himself.” State v. Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-19-06, and
-6-
Case No. 1-22-17
13-19-07, 2020-Ohio-426, ¶ 39, quoting State v. Bagley, 3d Dist. Allen No. 1-13-
31, 2014-Ohio-1787, ¶ 15.
{¶15} Self-defense through the use of non-deadly force is present where:
(1) the accused was not at fault in creating the situation giving rise
to the affray, (2) the accused (even if mistaken) had a bona fide
belief that he was in imminent danger of any bodily harm; and (3)
the only means to protect himself from such danger was the use
of force not likely to cause death or great bodily harm.
Chavez at ¶ 40, citing State v. Vu, 10th Dist. Franklin No. 09AP-606, 2010-Ohio-
4019, ¶ 10; Ohio Jury Instructions, CR Section 421.19 (Rev. Oct. 11, 2008). See
State v. Barker, 2d Dist. Montgomery No. 29227, 2022-Ohio-3756, ¶ 24; State v.
Elam, 12th Dist. Butler No. CA2021-08-106, 2022-Ohio-1895, ¶ 13.
{¶16} As to the first element of self-defense, “Ohio courts have long
recognized that a person cannot provoke [an] assault or voluntarily enter an
encounter and then claim a right of self-defense.” State v. Woodson, 6th Dist. Lucas
No. L-21-1068, 2022-Ohio-2528, ¶ 82, quoting State v. Nichols, 4th Dist. Scioto
No. 01CA2775, 2002 WL 126973, *3 (Jan. 22, 2002). This means
the defendant must not be at fault in creating the situation that
gave rise to the affray. Nichols at *9-10. This concept is broader
than simply not being the immediate aggressor. Id. at *10. A
person may not provoke an assault or voluntarily enter an
encounter and then claim a right of self-defense. Id.; State v.
Lewis, 12th Dist. Butler No. CA2019-07-128, 156 N.E.3d 281,
2020-Ohio-3762, ¶ 27.
State v. Elam, 12th Dist. Butler No. CA2021-08-106, 2022-Ohio-1895, ¶ 14. The
defendant must not have “engaged in such wrongful conduct toward his assailant
-7-
Case No. 1-22-17
that the assailant was provoked to attack the defendant.” State v. Gillespie, 172
Ohio App.3d 304, 2007-Ohio-3439, 874 N.E.2d 870, ¶ 17 (2d Dist.).
{¶17} R.C. 2901.05 places the burden on the State “to disprove at least one
of the elements of self-defense beyond a reasonable doubt.” State v. Cervantes, 3d
Dist. Henry No. 7-21-06, 2022-Ohio-2536, ¶ 59, quoting State v. Carney, 10th Dist.
Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31.
‘[U]nder the current version of R.C. 2901.05(B), the state is not
required to prove the defendant did not act in self-defense until
the defendant introduces evidence that tends to support they
acted in self-defense.’ State v. Walker, 6th Dist. Lucas No. L-20-
1047, 180 N.E.3d 60, 2021-Ohio-3860, ¶ 61. ‘In other words, the
defendant maintains the burden of production on their self-
defense claim before the state inherits the burden of persuasion.’
Id., citing State v. Petway, 11th Dist. Lake No. 2019-L-124, 156
N.E.3d 467, 2020-Ohio-3848, ¶ 55.
Cervantes at ¶ 60. “The elements of self-defense are cumulative, and a defendant’s
claim of self-defense fails if any one of the elements is not present.” State v. Ridley,
1st Dist. Hamilton No. C-210458, 2022-Ohio-2561, ¶ 15.
Legal Analysis
{¶18} Neither party disputes that the standard for self-defense through non-
deadly force is applicable in this case. On appeal, Eddy argues that the State
“provided no evidence” that disproves an element of self-defense through the use of
non-deadly force. Appellant’s Brief, 9. In response, the State argues that it
disproved the first element of this affirmative defense. This first element requires
-8-
Case No. 1-22-17
that the defendant “not [be] at fault in creating the situation [that] g[ave] rise to the
affray * * *.” Chavez, supra, at ¶ 39, 40.
{¶19} At trial, the State called S.P. as a witness. Tr. 5. She testified that,
immediately preceding the altercation, Eddy had gone into the bedroom and was
trying to get her house key from a key ring that was in her purse. Tr. 6. S.P. stated
that she “walked to the side of him [Eddy] to try to reach around to grab * * * [her]
keys.” Tr. 8. She testified that Eddy then pushed her away. Tr. 8. S.P. testified
that she returned to Eddy’s side and that he then shoved her away. Tr. 8. She stated
that Eddy applied more force the second time that he pushed her. Tr. 8. S.P. said
that she then pushed Eddy back and that the “fight escalated” with the two of them
“throwing punches at each other.” Tr. 9.
{¶20} S.P.’s testimony indicates that Eddy initiated the physical altercation
as he was the first one to use force in this case. Tr. 6, 8. Her testimony also indicates
that Eddy increased the amount of force that he used on her when he shoved her a
second time. Tr. 8. This testimony could persuade a reasonable finder of fact that
Eddy “was at least partially at fault for creating the situation giving rise to the affray
* * *.” Woodson, supra, at ¶ 82. See Chavez, supra, at ¶ 40. See also State v.
Clemmons, 2d Dist. Montgomery No. 23237, 2010-Ohio-3109, ¶ 43; State v.
Garrison, 9th Dist. Summit No. 12676, 12746, 1987 WL 8477, *1; State v. McElroy,
-9-
Case No. 1-22-17
11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 31.1
Since the State only needs to carry the burden of persuasion on one element of self-
defense, we need not consider the other elements of self-defense in this analysis.
{¶21} Accordingly, we find Eddy’s argument—that the State “provided no
evidence” to disprove an element of self-defense through non-deadly force—to be
without merit. Appellant’s Brief, 9. Having examined the record, we conclude that
the evidence presented in this case does not weigh heavily against the trial court’s
determination that the State disproved at least one element of self-defense. Thus,
Eddy has failed to establish that his conviction is against the manifest weight of the
evidence. His second assignment of error is overruled.
First Assignment of Error
{¶22} Eddy argues that the trial court incorrectly applied the legal standard
for self-defense through deadly force instead of the legal standard for self-defense
through non-deadly force.
Legal Standard
{¶23} R.C. 2901.01(A)(2) defines “Deadly Force” as “any force that carries
a substantial risk that it will proximately result in the death of any person.” R.C.
2901.01(A)(2). See State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-
1
We are aware that Garrison and McElroy address the application of self-defense through deadly force.
Garrison, supra, at *1; McElroy, supra, at ¶ 29, 31. However, the first element for self-defense through
deadly force and the first element for self-defense through non-deadly force are the same. Chavez, supra, at
¶ 39, 40. Both require that “the accused was not at fault in creating the situation giving rise to the affray * *
*.” Id. Thus, the examination of fault in these cases shapes our understanding of how fault should be
analyzed where an argument for self-defense is raised.
-10-
Case No. 1-22-17
Ohio-6541, ¶ 21 (“[T]he use of nondeadly force, by definition, presents no risk of
loss of life * * *.”). Self-defense through the use of deadly force is applicable as an
affirmative defense where:
(1) the accused was not at fault in creating the situation giving rise
to the affray; (2) the accused had a bona fide belief that he or she
was in imminent danger of death or great bodily harm and that
the only means of escape from such danger was in the use of force;
and (3) the accused must not have violated any duty to retreat or
to avoid the danger.
Chavez at ¶ 39, quoting State v. Thacker, 3d Dist. Marion No. 9-03-37, 2004-Ohio-
1047, ¶ 14. In contrast, self-defense through the use of non-deadly force is
applicable as an affirmative defense where:
(1) the accused was not at fault in creating the situation giving rise
to the affray, (2) the accused (even if mistaken) had a bona fide
belief that he was in imminent danger of any bodily harm; and (3)
the only means to protect himself from such danger was the use
of force not likely to cause death or great bodily harm.
Chavez at ¶ 40. See also State v. Jordan, 1st Dist. Hamilton No. C-210603, 2022-
Ohio-2566, ¶ 56. Thus, “there is no duty to retreat in cases involving non-deadly
force.” (Emphasis sic.) Id., citing State v. Brown, 2017-Ohio-7424, 96 N.E.3d
1128, ¶ 24 (2d Dist.).
Legal Analysis
{¶24} In this case, after the bench trial had concluded, the trial court analyzed
S.P.’s testimony. The trial court noted that “he [Eddy] did not have to pick her
[S.P.] up and slam her on the floor; that, “[w]hen he [Eddy] was on top of her, he
-11-
Case No. 1-22-17
could’ve let her up and walked away”; that “there were times when the defendant
was in control of the situation and did not walk away”; and that Eddy “knew that *
* * at any point in time, he could walk away.” Tr. 47-48. Eddy argues that these
statements indicate that the trial court believed that he had a duty to retreat in this
case and that the trial court, therefore, incorrectly applied the legal standard for self-
defense through deadly force in this case.
{¶25} However, these identified statements, in fact, represent the application
of the legal standard for self-defense through non-deadly force to the circumstances
of this case. The contents of the Ohio Jury Instructions (“OJI”) show the connection
of these statements to the first element of self-defense through non-deadly force.
Ohio Jury Instructions, CR Section 421.19 (Rev. Dec. 4, 2021). The OJI for self-
defense through non-deadly force reads, in relevant part, as follow:
6. AT FAULT. The defendant did not act in (self-defense) (defense
of his/her residence) if the state proved beyond a reasonable doubt
that the defendant was at fault in creating the (situation)
(incident) (argument) that resulted in the injury. The defendant
was at fault if the defendant was the initial aggressor and
(A) (insert name of victim[s]) did not escalate the (situation)
(incident) (argument) by being the first to use or attempt to use
(non-deadly force) (deadly force);
(B) provoked (insert name of victim[s]) into using force;
(C) did not withdraw from the (situation) (incident) (argument);
***
-12-
Case No. 1-22-17
(Emphasis added.) Id. In support of Section 6(C) of this instruction, OJI cites to
the Ohio Supreme Court’s decision in State v. Melchior, which states the following:
Even though the accused may in the first instance have
intentionally brought on the difficulty and provoked the occasion,
yet his right of self-defense will revive and his actions will be held
justifiable upon the ground of self-defense in all cases where he
has withdrawn from the affray or difficulty in good faith as far as
he possibly can, and clearly and fairly announced his desire for
peace.
State v. Melchior, 56 Ohio St.2d 15, 21, 381 N.E.2d 195, 200 (1978), quoting 1
Wharton’s Criminal Law and Procedure 504-505, Section 232. See State v.
Galluzzo, 2d Dist. Champaign No. 99CA25, 2001 WL 303212, *3 (Mar. 30, 2001);
State v. Ferrell, 2020-Ohio-6879, 165 N.E.3d 743, ¶ 28 (10th Dist.).2 In the case
presently before us, the trial court appears to have been examining this aspect of the
first element for self-defense through non-deadly force.
{¶26} Further, in several of the statements identified above, the trial court
was also considering the extent to which the force used by Eddy was applied in self-
defense. Under R.C. 2901.05(B)(2), “the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force in self-defense.” R.C.
2901.05(B)(2). See Dublin v. Starr, 10th Dist. Franklin No. 21AP-173, 2022-Ohio-
2298, ¶ 38. The State can carry the burden of disproving the third element of self-
defense through non-deadly force and by establishing that “the defendant used more
2
Melchior and Ferrell are cases that address self-defense through deadly force. Melchior, supra, at 21;
Ferrell, supra, at ¶ 25. However, as in the Ohio Jury Instructions in CR 421.19, Galluzzo applies the
reasoning of Melchior in the context of self-defense through non-deadly force. Galluzzo, supra, at *1-3.
-13-
Case No. 1-22-17
force than was reasonably necessary to defend against the imminent danger of
bodily harm.” Jacinto, supra, at ¶ 46. State v. Jordan, 1st Dist. Hamilton No. C-
210603, 2022-Ohio-2566, ¶ 55; State v. Myers, 5th Dist. Ashland No. 21-COA-025,
2022-Ohio-3337, ¶ 28; Ohio Jury Instructions CR Section 421.19 (Rev. Dec. 4,
2021). Thus, the considerations about the amount of force employed by Eddy are
not irrelevant to the third element of a self-defense through non-deadly force
analysis and are not an indication that the incorrect legal standard was applied in
this case.
{¶27} Finally, under the first assignment of error, we concluded that the State
disproved the element that requires a defendant “not [to have] be[en] at fault in
creating the situation giving rise to the affray.” Chavez, supra, at ¶ 39, 40. Because
the first element of self-defense through deadly force and the first element of self-
defense through non-deadly force are identical, the application of either of these two
legal standards would yield the exact same result under the facts of this particular
case. Id. Accordingly, we find this argument to be unpersuasive and ultimately
inconsequential.
{¶28} In conclusion, the trial court nowhere indicated that it believed that the
legal standard for self-defense through deadly force was applicable or that Eddy had
a duty to retreat in this case. The statements identified by Eddy, in fact, represent
the application of the legal standard for self-defense through non-deadly force to the
circumstances of this case. Having examined the record in its entirety, we find no
-14-
Case No. 1-22-17
indication that the trial court applied the incorrect legal standard for self-defense in
this case. Eddy’s first assignment of error is overruled.
Conclusion
{¶29} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Lima Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
-15- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482082/ | Appellate Case: 21-1167 Document: 010110764207 Date Filed: 11/07/2022 FILED
Page: 1
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 7, 2022
FOR THE TENTH CIRCUIT
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 21-1167
v. (D.C. No. 1:19-CR-00409-DDD-1)
(D. Colorado)
JACK V. SMALLEY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, MORITZ, and SEYMOUR, Circuit Judges.
In April of 2021, Mr. Jack V. Smalley was tried on one count of bank fraud
pursuant to 18 U.S.C. § 1344. At the conclusion of voir dire, Mr. Smalley asserted a
claim under Batson v. Kentucky, 476 U.S. 79 (1986), contending that the government had
intentionally discriminated by using three of its six peremptory challenges to strike
Hispanic panelists. The government offered neutral reasons for the strikes and no further
record was made by Mr. Smalley. Thereafter, the district court overruled the challenge
and the jury convicted Mr. Smalley. On appeal, Mr. Smalley argues that the district court
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-1167 Document: 010110764207 Date Filed: 11/07/2022 Page: 2
committed clear error in overruling the Batson challenge. We conclude that Mr. Smalley
failed to meet his burden of proving intentional discrimination by the government in
selecting the jury and we therefore affirm.
Background
In 2015, Mr. Smalley applied for a bank loan to purchase a million-dollar home in
Colorado Springs. On the loan application, he represented that his annual income was
$200,000. He provided a letter from his employer and a paystub reflecting this salary.
The credit union issued a loan based on the documentation. At trial, the government
presented evidence that Mr. Smalley had lied about his income and had provided
fraudulent documents to obtain the loan. He was convicted of one count of bank fraud
pursuant to 18 U.S.C. § 1344 and sentenced to six months in prison and three years of
supervised release.
The Batson Challenge
This appeal concerns the selection of the jurors who decided Mr. Smalley’s fate.
Under the district court’s jury selection procedure, the court conducted an initial round of
voir dire followed by a round of voir dire conducted by the parties. When that process
was complete, the parties exercised their peremptory strikes. The government was
permitted to peremptorily strike six people from the pool of prospective jurors (Jurors
#1–28) and one person from the pool of prospective alternates (Jurors #29–31). Supp.
Rec., vol. I at 5–6.
During the attorney-led voir dire, counsel for Mr. Smalley, Frank Moya, asked the
panel whether anyone thought the federal government had too much power. Rec., vol. V
2
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at 71. Juror #30 was the only person to raise a hand. Id. Mr. Moya asked him why he
felt that way, leading to the following exchange:
[JUROR #30]: Just on a federal level the bureaucratic system with the
alphabet agencies I believe has grown too much.
MR. MOYA: How about the Government size generally? Do you feel
the Government is too big, or do you feel one way or another about it?
[JUROR #30]: I’m inclined to think the Government is getting too
large, but I understand the need for it.
Id. When Mr. Moya asked if anyone agreed or disagreed with Juror #30, Juror #15 said,
“I agree.” Id.
Mr. Moya then turned to Juror #6 and asked, “[W]hat do you think about that?”
Id. He responded, “Simply put, it is a necessary evil. There needs to be checks and
balances. Do I agree with everything? No. Do I disagree with some things? Yes.” Id.
Mr. Moya then asked whether Juror #6 would agree “that one function of a jury, at least
one part of a job of a jury, is to be a check and balance on Government using its power to
prosecute.” Id. at 72. Juror #6 responded, “I’d agree.” Id. With that, Mr. Moya
wrapped up his questioning of the panel, and the parties identified the jurors they wanted
to exclude using their peremptory strikes.
That’s when Mr. Moya approached the bench to raise a Batson challenge. By
now, the three-step process used to evaluate Batson challenges is well known. First, the
party challenging a strike as racially motivated “must make out a prima facie case ‘by
showing that the totality of the relevant facts gives rise to an inference of discriminatory
purpose.’” Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at
3
Appellate Case: 21-1167 Document: 010110764207 Date Filed: 11/07/2022 Page: 4
93–94). Second, if the proponent of the Batson challenge meets its initial burden on the
prima facie case, “the ‘burden shifts to the State to explain adequately the racial
exclusion’ by offering permissible race-neutral justifications for the strikes.” Id. (quoting
Batson, 476 U.S. at 94). “Although the prosecutor must present a comprehensible reason,
‘[t]he second step of this process does not demand an explanation that is persuasive, or
even plausible’; so long as the reason is not inherently discriminatory, it suffices.” Rice
v. Collins, 546 U.S. 333, 338 (2006) (alteration in original) (quoting Purkett v. Elem, 514
U.S. 765, 767–68 (1995) (per curiam)). “Third, the court must then determine whether
the defendant has carried his burden of proving purposeful discrimination.” Id. (citing
Batson, 476 U.S. at 98).
Here, the district court followed this procedure, albeit in an abbreviated fashion.
At step one, Mr. Moya asserted that only three members of the prospective-juror panel—
Jurors #1, #7, and #15—were Hispanic, and that the government had stricken all three. “I
can only think it’s racially based because there’s no other basis I can see that those
witnesses should be dismissed from this panel on a peremptory basis,” he said. Rec., vol.
V at 76. The district court expressed doubts that this was enough to establish a prima
facie case of discrimination but nevertheless advanced to step two, 1 asking the
government to “provide the rationale for those strikes.” Id. The government responded
as follows:
1
“[T]he preliminary issue of whether the defendant had made a prima facie
showing becomes moot” if the district court chooses, as it did here, to move to the
remaining steps of the Batson challenge. Hernandez v. New York, 500 U.S. 352, 359
(1991).
4
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[T]he reason the Government struck [Juror #15] was based on his answer what
[sic] counsel asked him in his questioning regarding the size of Government
and Government being too big.
So his answer to counsel’s question about the Government being too
big . . . . I work for the bureaucracy. I felt that could be held against us for
being over vindictive on a prosecution matter that he might not have interest
in. That’s, basically, why I struck him.
[Juror #7], he’s unemployed. He looks young. He lives with his
mother. Doesn’t have any life experiences. He doesn’t have a job. That’s
why I struck him. I don’t think he would offer much or has the experience
to be on a white collar mortgage fraud case.
Finally, [Juror #1], he’s the last one I struck. The reason I struck him
is his demeanor. He didn’t seem too interested in hearing the case based upon
his answers. Pretty short. And, you know, he answered the questions, no doubt
about it. It was his demeanor that I think his interest wasn’t there to sit on the
jury.
Id. at 76–77. Mr. Smalley admits that the government met the step-two standard by
offering ethnicity-neutral reasons for the strikes. Aplt. Br. at 20.
After the prosecutor proffered his reasons, Mr. Moya stated, “I don’t have an
additional record.” Rec., vol. V at 77–78. The court then denied the challenge but asked,
“[I]s there anything else before we excuse these jurors and get started?” Id. at 78. Mr.
Moya said, “No,” and the challenged jurors were excused. Id.
Standard of Review
The parties dispute whether the plain error or clear error standard applies to our
review. See United States v. Vann, 776 F.3d 746, 755–56 (10th Cir. 2015) (noting that
some courts have found a defendant’s failure to rebut the government’s nondiscriminatory
reasons amounts to forfeiture or waiver but applying “a less deferential standard”). We
5
Appellate Case: 21-1167 Document: 010110764207 Date Filed: 11/07/2022 Page: 6
need not decide which standard applies, however, as Mr. Smalley’s appeal would fail under
either standard.
Discussion
On appeal, Mr. Smalley offers a comparative juror analysis to support his assertion
that the prosecutor’s stated reasons for striking two of the three Hispanic jurors, Juror #15
and Juror #7, were pretextual. With respect to Juror #15, Mr. Smalley argues that the
government’s stated reason for striking him, concern about the size of government,
applied with even more force to prospective Juror #6, who was not Hispanic and was not
stricken. Aplt. Br. at 12. He notes that Juror #15 only agreed with Juror #30, who said
he was “inclined to think” that the federal government had grown too large, while Juror
#6 had described the size of government as a “necessary evil” and agreed that one of the
jury’s roles was to serve as a check on government power. Id. at 12–13. If the
prosecutor were really concerned about anti-government sentiment, Mr. Smalley argues,
he would have struck Juror #6, not Juror #15. Mr. Smalley asserts that the government’s
decision not to do so is compelling evidence that the government’s stated reason for the
strike was a pretext for ethnic discrimination.
As for the Juror #7, Mr. Smalley contends that a comparison with Juror #25 shows
that the government’s stated reason for the strike, a lack of “life experience,” was also
pretextual. Id. at 13–14. Although both were unemployed and living with their mothers,
the government did not strike Juror #25, who was not Hispanic.
Mr. Smalley contends that the comparator evidence, together with the fact that the
government used half of its six peremptory strikes to remove the only Hispanics on the
6
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panel, is sufficient to show that the district court’s rejection of his Batson challenge was
clearly erroneous. We disagree.
Mr. Smalley correctly asserts that we can consider his comparative juror analysis
for the first time on appeal, 2 but his failure to develop this argument below has severely
undermined its probative value. As we explained in United States v. Vann, 776 F.3d 746,
756 (10th Cir. 2015), “a Batson challenge is best handled at the time when the judge and
the attorney’s conduct are at issue.” As the Supreme Court has explained:
[A] retrospective comparison of jurors based on a cold appellate record may
be very misleading when alleged similarities were not raised at trial. In that
situation, an appellate court must be mindful that an exploration of the
alleged similarities at the time of trial might have shown that the jurors in
question were not really comparable.
Snyder v. Louisiana, 552 U.S. 472, 483 (2008). Furthermore, only the trial judge can
evaluate the demeanor of the prosecutor for evidence of discriminatory intent, as well the
demeanor of the stricken juror to determine whether the proffered reasoning is credible.
2
Based on Miller-El v. Dretke, 545 U.S. 231, 241 n.2 (2005), and decisions from
other circuits, we can consider the post-trial juror analysis because all of the facts relied
upon are in the voir dire transcript. As explained by the Sixth Circuit:
Often, district courts will be well positioned to rule on Batson challenges
without resorting to a comparison among venirepersons. But because we can
never be present to observe voir dire, a comparative juror analysis will
usually be the only tool we have at our disposal to fairly evaluate Batson
claims. We therefore think it best to conduct a comparative juror analysis on
appeal whenever the basis for comparison has been sufficiently explored that
the analysis will not be unfair to the government.
United States v. Atkins, 843 F.3d 625, 637 (6th Cir. 2016) (citations omitted).
7
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Id. at 477. Where, as here, the defendant makes no challenge to the government’s
proffered neutral reasoning for the strikes, the district court has no meaningful
opportunity to fully evaluate the credibility of the proffer before the jury is empaneled.
See Vann, 776 F.3d at 756.
Mr. Smalley’s failure to challenge the government’s proffer leaves us precious
little to work with. In the case of Juror #15, Mr. Smalley argues that Juror #6’s
statements betrayed an even stronger anti-government bias than those by Juror #15, but
this is not clearly established by the record. For example, one could just as easily argue
that by describing government as a “necessary evil,” Juror #6 affirmatively recognized
the validity of government power in a way that Juror #15 did not, a factor the prosecutor
could plausibly have interpreted as favorable to the government’s position. We are also
unable to discern from the record whether Juror #15’s demeanor may have informed the
prosecutor’s decision or why the prosecutor believed that Juror #15 may have been
disinterested in the bank fraud case.
Mr. Smalley’s comparison of Jurors #7 and #25 is even more feeble. The
government’s stated concern was a perceived lack of life experience that would be
helpful to the government in a white-collar mortgage fraud case. And while Jurors #7
and #25 were both young and living with their mothers, Juror #25 was a fourth-year
undergraduate student studying history, government, and secondary education, while
Juror #7 was unemployed. This difference in current life circumstances could have
plausibly led the prosecutor to differentiate the two jurors.
8
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In sum, Mr. Smalley’s comparator argument lacks the evidentiary heft necessary
to establish either clear or plain error. Although comparative juror evidence may provide
evidence of discrimination, it is not necessarily conclusive. Grant v. Royal, 886 F.3d
874, 950–51 (10th Cir. 2018). Here, the stricken jurors and the comparators do bear
some similarity, but they also appear to differ in some respects unrelated to their
ethnicities. This leads to more than one plausible interpretation of the voir dire transcript.
Had Mr. Smalley raised the comparisons below, the district court would have had
an opportunity to tease out whether the government decided to strike the Hispanic jurors
because of these or other distinctions rather than invidious discrimination. By raising
them for the first time on appeal, he essentially asks us to presume the latter. We decline
to do so. See Vann, 776 F.3d at 754 (where defendant failed to raise comparators during
voir dire, he failed to carry his burden of persuasion because “no evidence of animus
existed for the district court to consider at the time [the court] made its decision”).
Conclusion
Based on the foregoing, we are not persuaded that the district court erred when it
denied Mr. Smalley’s Batson challenge. Accordingly, we affirm.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
9 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482092/ | J-A14019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CYNTHIA L. POLLICK IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
ANTHONY P. TROZZOLILLO
Appellee No. 991 MDA 2021
Appeal from the Order Entered July 23, 2021
In the Court of Common Pleas of Lackawanna County
Civil Division at No: 20 DR 0205 2020-40119 PACSES 517300200
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: NOVEMBER 7, 2022
Appellant, Cynthia Pollick, appeals pro se from the July 23, 2021 orders
resolving the equitable distribution of the parties’ marital estate, denying her
claim for an award of alimony, and imposing sanctions against her.1 We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The trial court entered a decree in divorce on July 23, 2021, thus rendering
its equitable distribution and alimony order final and appealable. See Busse
v. Busse, 921 A.2d 1248, 1253 n.2 (Pa. Super. 2007) (noting that orders
regarding equitable distribution and alimony become final and appealable
upon entry of a decree in divorce); appeal denied, 934 A.2d 1275 (Pa. 2007).
The trial court’s imposition of sanctions against Appellant (essentially an
award of counsel fees to Appellee also is properly before us. Holz v. Holz,
850 A.2d 751, 760-61 (Pa. Super. 2004), appeal denied, 871 A.2d 192 (Pa.
2005).
J-A14019-22
The parties were married on January 7, 2017. Appellee, Anthony P.
Trozzolillo, commenced this action with a divorce complaint filed on December
30, 2019. Appellant filed her own complaint in divorce on January 24, 2020,
followed by a spousal support complaint on March 6, 2020. Both parties are
practicing attorneys in Lackawanna County. On September 21, 2020, after all
judges of the Lackawanna County Court of Common Pleas recused
themselves, the Lackawanna County Court Administrator assigned Judge
Emanual A. Bertin (hereinafter the trial court) to preside over this case.
In this timely appeal, Appellant presents seven questions:
I. Whether the trial court had jurisdiction while this case was
on appeal to issue substantive orders?
II. Whether the trial court erred in sanctioning a pro se litigant
almost $27,000 for filing a divorce and attempting to gather
evidence on marital assets?
III. Whether the trial court erred when it refused to allow
Appellant to engage in discovery, including the use of
subpoenas to evaluate marital assets when both parties
sought discovery?
IV. Whether the trial court erred when it sealed the entire
judicial record, which included even the names of
documents filed?
V. Whether the trial court erred in its equitable distribution
since without investigation it found only two marital assets,
which were the parties’ retirement pensions and both
parties owned residences along with husband owning rental
properties?
VI. Whether the trial court should have allowed Appellant to
receive alimony?
VII. Whether the trial court must hold a hearing to determine if
a party is entitled to a fault divorce based on indignities?
-2-
J-A14019-22
Appellant’s Brief at 14.
We have reviewed the extensive record, the applicable law, the parties’
briefs, and the trial court’s opinions of July 20, 2021 (the trial court issued
two opinions that day—one addressing its imposition of sanctions (hereinafter
the “Sanctions Opinion”) and the other addressing the substantive issues
(hereinafter the “Substantive Opinion”)). We conclude that the trial court’s
opinions thoroughly and accurately address Appellants’ arguments. Subject
to the following observations, we reject Appellant’s arguments based on the
accurate recitation of facts and sound reasoning set forth in the trial court’s
opinions.
With her first issue, Appellant claims that the trial court lacked
jurisdiction during much of the underlying proceedings because this matter
was pending on appeal before this court and/or awaiting our Supreme Court’s
disposition of a petition for allowance of appeal. This argument arises from
Appellant’s appeals from various interlocutory orders. On December 2, 2020,
the trial court entered an order expressly titled an “Interlocutory order and
scheduling order for pre-trial conference in-court on the record.” Order
12/2/20. Appellant nonetheless filed a notice of appeal from that order the
next day. This Court granted Appellee’s application to quash by order of
-3-
J-A14019-22
January 7, 2021 (1537 MDA 2020). On February 12, 2021,2 the trial court
entered four interlocutory orders addressing scheduling and other ministerial
matters. Appellant appealed from these orders on February 17, 2021, and
this Court granted Appellee’s application to quash by order of March 22, 2021
(239 MDA 2021).
Rule 1701 of the Pennsylvania Rules of Appellate Procedure governs the
affect of an appeal:
(b) Authority of a trial court or other government unit after
appeal.--After an appeal is taken or review of a quasijudicial
order is sought, the trial court or other government unit may:
[…]
(6) Proceed further in any matter in which a non-appealable
interlocutory order has been entered, notwithstanding the
filing of a notice of appeal or a petition for review of the order.
Pa.R.A.P. 1701(b)(6) (emphasis added). Pursuant to Rule 1701(b)(6), the
trial court had jurisdiction to proceed notwithstanding Appellant’s appeal from
orders that were plainly not final or appealable. For this reason, and for the
reason explained on pages 23-28 of the trial court’s Substantive Opinion,
Appellant’s first argument lacks merit.
____________________________________________
2 The four orders in question were docketed on February 12, 2021. The trial
court dated them February 11, 2021, and the time stamps on the original
documents indicate that they were filed on February 11, 2021.
-4-
J-A14019-22
Appellant’s second argument challenges the trial court’s order of
$26,950.00 in sanctions pursuant to 42 Pa.C.S.A. § 2503(7) and (9).3 We
review to determine whether the trial court abused its discretion. Miller v.
Nelson, 768 A.2d 858, 861-62 (Pa. Super. 2001), appeal denied, 782 A.2d
547 (Pa. 2001). Where the record supports the trial court’s finding that the
conduct of the sanctioned party was obdurate or vexatious, we will not disturb
the trial court’s award. In re Padezanin, 937 A.2d 475, 483-84 (Pa. Super.
2007).
The amount of the sanctions award is based on testimony from
Appellee’s counsel, deemed credible by the trial court, to the effect that
Appellant’s dilatory, obdurate, and vexatious conduct considerably increased
____________________________________________
3 That section provides:
§ 2503. Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable counsel
fee as part of the taxable costs of the matter:
[…]
(7) Any participant who is awarded counsel fees as a sanction
against another participant for dilatory, obdurate or vexatious
conduct during the pendency of a matter.
[…]
(9) Any participant who is awarded counsel fees because the
conduct of another party in commencing the matter or otherwise
was arbitrary, vexatious or in bad faith.
42 Pa.C.S.A. § 2503(7), (9).
-5-
J-A14019-22
Appellee’s counsel fees. In addition to the two frivolous appeals mentioned
above, Appellant filed dozens of subpoenas demanding that Appellee produce
items with no obvious relevance to this proceeding. Also, Appellant
consistently failed to produce tax records and other documentation pertinent
to an equitable distribution. We discern no abuse of discretion in the trial
court’s award, and we affirm the imposition of sanctions on the basis of the
Sanctions Opinion. In addition, the trial court references numerous instances
of Appellant’s misconduct on pages 22 through 33 of the Substantive Opinion.
Appellant’s third argument—regarding the trial court’s denial of various
discovery requests—lacks merit. Appellant correctly notes that Pa.R.C.P.
1930.5(b) provides for discovery without leave of court in alimony and
equitable distribution proceedings. But Appellant’s argument ignores her own
consistent failure to provide pertinent discovery, as referenced on pages 4-5,
8-10, 15-18, and 31-33 of the Substantive Opinion. Appellant further ignores
the detailed list of subpoenas that she served on Appellee—which the trial
court quashed at Appellee’s request—as set forth on pages 4-8 of the trial
court's Sanctions Opinion. The trial court described Appellant’s conduct as
“outrageous” and “disrespectful of, and to, the court system.” Sanctions
Opinion, 7/20/21, at 2. Likewise, the court wrote in a section of its
Substantive Opinion titled “Wife’s Abusive Discovery Requests” that “Wife’s
outrageous discovery requests were meant to harass Husband and to run up
his legal fees, with which she was successful.” Substantive Opinion, 7/20/21,
-6-
J-A14019-22
at 30. Appellant’s third argument lacks merit for the reasons explained in the
portions of the Sanctions and Substantive Opinions referenced above.
Appellant’s fourth argument challenges the trial court’s decision to seal
the record in this matter. She cites no law to support her argument as to why
the trial court should not have sealed the record in this case, in violation of
Pa.R.A.P. 2119(b). She has therefore waived this argument. Estate of Haiko
v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002). At any rate, Rule 223 of
the Pennsylvania Rules of Civil Procedure permits a trial court to exclude the
public from civil proceedings in the interest of “public good, order or morals.”
Pa.R.C.P. 223(4). This Court has held that divorce proceedings can be closed,
pursuant to Rule 223(4) for good cause. Katz v. Katz, 514 A.2d 1374 (Pa.
Super. 1986), appeal denied, 527 A.2d 542 (Pa. 1987). The findings in the
Sanctions Opinion establish that Appellant repeatedly attached Appellee’s
private financial information to her filings without attaching a confidential
information form, per the Public Access Policy of the Unified Judicial System,
thus making that information a matter of public record. Sanctions Opinion,
7/20/21, at 4-5. We discern no error in the trial court’s decision to seal the
record.
Appellant’s fifth argument challenges the trial court’s valuation of the
marital estate for purposes of equitable distribution.
A trial court has broad discretion when fashioning an award
of equitable distribution. Our standard of review when assessing
the propriety of an order effectuating the equitable distribution of
marital property is whether the trial court abused its discretion by
-7-
J-A14019-22
a misapplication of the law or failure to follow proper legal
procedure. We do not lightly find an abuse of discretion, which
requires a showing of clear and convincing evidence. This Court
will not find an “abuse of discretion” unless the law has been
overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record.
In determining the propriety of an equitable distribution award,
courts must consider the distribution scheme as a whole. We
measure the circumstances of the case against the objective of
effectuating economic justice between the parties and achieving a
just determination of their property rights.
Moreover, it is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence.
Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017). The trial court
analyzed the factors set forth in 23 Pa.C.S.A. § 3502(a) at pages three
through 13 of the Substantive Opinion, and explains its conclusion at pages
16 through 20. We reject Appellant’s argument for the reasons given in the
Substantive Opinion.
Next, Appellant argues the trial court erred in denying her an award of
alimony.
Our standard of review regarding questions pertaining to the
award of alimony is whether the trial court abused its discretion.
We previously have explained that [t]he purpose of alimony is not
to reward one party and to punish the other, but rather to ensure
that the reasonable needs of the person who is unable to support
himself or herself through appropriate employment, are met.
Alimony “is based upon reasonable needs in accordance with the
lifestyle and standard of living established by the parties during
the marriage, as well as the payor's ability to pay. Moreover,
[a]limony following a divorce is a secondary remedy and is
available only where economic justice and the reasonable needs
of the parties cannot be achieved by way of an equitable
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J-A14019-22
distribution award and development of an appropriate employable
skill.
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (quotation
marks omitted).
The trial court described Appellant’s alimony claim as a “sham.”
Substantive Opinion, 7/20/21, at 20. She earns six figures, has no children,
and greater future earning capacity than Appellee. Id. Further, Appellant
failed to document her needs by providing a list of expenses. Id. at 15, 20.
The trial court thoroughly and accurately addresses the factors set forth under
23 Pa.C.S.A. § 3701 at pages 14-16 of the Substantive Opinion, and explains
its conclusion on pages 20-21. We reject Appellant’s argument for the reasons
explained in the trial court’s Substantive Opinion.
Finally, Appellant claims the trial court erred in not holding a hearing to
address her allegation that a fault-based divorce was warranted because of
indignities. The trial court did not address this argument. Indignities can be
grounds for a fault-based divorce under 23 Pa.C.S.A. § 3301(a)(6). We
observe, however, that Appellant fails to support her argument with citation
to pertinent authority, resulting in waiver. Pa.R.A.P. 2119(b); Estate of
Haiko. Furthermore, Appellant’s second amended complaint in divorce
included claims for a no-fault divorce under § 3301(c) and (d) (mutual consent
and irretrievable breakdown, respectively). Appellant’s Second Amended
Complaint in Divorce, 2/7/20, at Count I, ¶¶ 12-17. That being the case,
§ 3301(e) provides as follows:
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(e) No hearing required in certain cases.--If grounds for
divorce alleged in the complaint or counterclaim are established
under subsection (c) or (d), the court shall grant a divorce without
requiring a hearing on any other grounds.
23 Pa.C.S.A. § 3301(e). The trial court found an irretrievable breakdown and
therefore granted a divorce without requiring a hearing on indignities, exactly
in accord with § 3301(e).
For the foregoing reasons, and those expressed in the trial court’s
Substantive and Sanctions Opinions, we affirm the order. We direct that a
copy of the trial court’s July 20, 2021 opinions, titled “Memorandum Opinion
Re: Equitable Distribution and Alimony, Issued Simultaneously With Divorce
Decree”, and “Memorandum Opinion and Order Re: Husband’s Omnibus
Petition For Sanctions Pursuant to 42 Pa.C.S.A. § 2503(7) and (9)” be filed
along with this memorandum.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2022
- 10 -
Circulated 10/25/2022 03:06 PM
Circulated 10/25/2022 03:06 PM | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482080/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1314
___________________________
United States of America
Plaintiff - Appellee
v.
Robert Bennett
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
____________
Submitted: September 19, 2022
Filed: November 7, 2022
[Unpublished]
____________
Before LOKEN, ARNOLD, and BENTON, Circuit Judges.
____________
PER CURIAM.
Robert Bennett pled guilty to knowingly violating 18 U.S.C. § 2250(a)(3) for
failing to register as a sex offender. The district court1 sentenced him to 15 months
in prison. He appeals, asserting that the sentence was substantively unreasonable
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for
the Eastern District of Missouri.
for failing to consider relevant mitigating factors. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
I.
Due to a New Jersey conviction, Bennett was subject to the registration
requirements of the Sex Offender Registration and Notification Act (SORNA), 18
U.S.C. § 2250. He absconded from parole to live with his son in Kennett, Missouri.
Bennett lived there for over a year, never registering as a sex offender under
SORNA. Bennett pled guilty to knowingly violating 18 U.S.C. § 2250(a)(3) for
failing to register as a sex offender. The district court adopted a Guidelines range of
15-21 months and imposed a sentence of 15 months in prison. Bennett appeals,
arguing that the sentence was substantively unreasonable because the district court
failed to consider relevant mitigating factors.
This court reviews “the substantive reasonableness of a sentence under a
deferential abuse of discretion standard.” United States v. Werlein, 664 F.3d 1143,
1146 (8th Cir. 2011), citing Gall v. United States, 552 U.S. 38, 51 (2007). But if a
defendant asserts specific claims that were not raised with the district court at
sentencing, this court reviews for plain error. See United States v. Saddler, 538 F.3d
879, 891 (8th Cir. 2008); United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.
2009).
Bennett argues that his 15-month sentence for failure to register under
SORNA is substantively unreasonable because the district court failed to consider
relevant mitigating factors, including his history of childhood abuse, exposure to
violence, lack of parental support, intellectual disability, and congestive heart
failure. Bennett did not raise these issues with the district court. Cf. United States
v. Krzyzaniak, 702 F.3d 1082, 1085 n.3 (8th Cir. 2013) (“Failure to make a timely
objection that gives the district court an opportunity to correct any deficiency should
waive, not merely forfeit, the issue.”).
-2-
The 15-month sentence was the bottom of the Guidelines range of 15-21
months. “If the sentence is within the Guidelines range, the appellate court may, but
is not required to, apply a presumption of reasonableness.” Gall, 552 U.S. at 51.
The district court received the presentence investigation report, which detailed facts
about each mitigating factor that Bennett presents on appeal. The district court “read
very closely” Bennett’s sentencing memorandum, which did not mention any of the
mitigating factors presented on appeal (nor were they mentioned at sentencing).
The district court announced the 15-month sentence after referencing “the
provisions of Title 18, United States Code, § 3553(a) and all the factors thereunder.”
“[W]hen a judge decides simply to apply the Guidelines to a particular case, doing
so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356-57 (2007). “The district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others in
determining an appropriate sentence.” United States v. Stone, 873 F.3d 648, 650
(8th Cir. 2017). “The district court may give some factors less weight than a
defendant prefers or more to other factors, but that alone does not justify reversal.”
United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010).
The district court made no error. See United States v. Harris, 964 F.3d 718,
724 n.3 (8th Cir. 2020) (not reaching the effect of Holguin-Hernandez on the
standard of review of alleged procedural errors that defendant failed to object to in
district court because the “district court made no error, plain or otherwise”). See
generally Holguin-Hernandez v. United States, 140 S. Ct. 762, 767 (2020) (finding
abuse-of-discretion review appropriate where defendant advocated for a shorter
sentence). Cf. id. (Alito, J., concurring) (“[W]e do not decide what is sufficient to
preserve any ‘particular’ substantive-reasonableness argument . . . we do not suggest
that a generalized argument in favor of less imprisonment will insulate all arguments
regarding the length of a sentence from plain error review.”).
The sentence was substantively reasonable.
-3-
*******
The judgment is affirmed.
______________________________
-4- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482094/ | J-A23030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.K.N., JR., FATHER :
:
:
:
: No. 744 MDA 2022
Appeal from the Decree Entered May 17, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0032A
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 7, 2022
J.K.N., Jr. (“Father”) appeals from the May 17, 2022 decree that
terminated involuntarily his parental rights to his child, Je.J.N., born in
October 2021. We affirm.
We provide the following background. Je.J.N. has two older siblings,
Jai.J.N., born in March 2019, and Ja.J.N., born in October 2020; all three
children share the same parents: Father and D.K. (“Mother”).1 The family
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 We note that since all three children have the same initials, we included
enough additional letters from their first names for ease of identification within
this memorandum. Regarding the two older children, CYF sought termination
of Father’s parental rights to them at the same time it filed the initial petition
concerning Je.J.N., discussed infra. The orphans’ court granted the petitions
as to the two older siblings following a termination hearing on March 25, 2022.
CYF also sought termination of Mother’s rights as to all three children and the
orphans’ court ultimately granted all three petitions. Mother has not appealed
(Footnote Continued Next Page)
J-A23030-22
first came to the attention of the York County Office of Children, Youth and
Families (“CYF”) in December 2020, before Je.J.N. was born. The referral
regarded a non-accidental and unexplained parietal skull fracture to Ja.J.N.,
as well as concerns regarding domestic violence between Mother and Father
and stable housing and employment. Jai.J.N. and Ja.J.N. were ultimately
adjudicated dependent and placed into kinship care before Je.J.N. was born.
During the course of the dependency cases concerning the older children and
her pregnancy with Je.J.N., Mother maintained to CYF that she was not in
contact with Father, that she was unaware of his whereabouts, and that she
did not know the identity of the unborn child’s father. Despite this, Father
was present at the hospital when Je.J.N. was born in October 2021, and, as
recognized by Mother and noted hereinabove, is the biological father of Je.J.N.
In anticipation of the birth of Je.J.N., CYF determined that the “concerns
regarding the skull fracture, domestic violence, and stability of housing
persisted.” N.T., 5/17/22, at 19-20. As a result, CYF filed an application for
emergency protective custody after he was born and Je.J.N. was placed into
care.2 Je.J.N. was adjudicated dependent in November 2021; Father was not
____________________________________________
those decrees. Father has appealed from the decrees terminating his parental
rights as to Jai.J.N. and Ja.J.N. at dockets 603 MDA 2022 and 604 MDA 2022.
Father sought to consolidate those appeals with the instant appeal but this
Court denied that motion.
2Je.J.N. remains in the same foster home he was placed in the day after he
was born. Shortly after his placement, Jai.J.N. and Ja.J.N. joined him there.
To this day, all three boys remain in that foster home. The foster parents,
K.L. and D.L., are a pre-adoptive resource for all three children.
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J-A23030-22
present at the adjudicatory hearing. Since Father’s whereabouts remained
unknown throughout the dependency cases of his three children, his only goal
was to contact CYF to determine what services would be needed. On January
27, 2022, the police searched the home where Mother and Father were then
living. As a result, the Commonwealth filed multiple drug charges against
Mother and Father.
Father’s first contact with CYF was when he appeared at the next status
review hearing, which was held on February 7, 2022. At that time, Father
indicated that he was living with Mother and that he wanted to work towards
reunification. The court ordered him to obtain housing and employment,
follow through with the criminal process, contact CYF to develop goals and
services, and have regular visitation with his children. Upon contacting CYF,
the agency advised Father that his goals were to: (1) contact and cooperate
with CYF; (2) maintain stable income and housing; (3) cooperate with an in-
home team for parenting and budgeting; (4) attend consistent visitation with
his children; (5) complete domestic violence treatment; and (6) resolve his
criminal charges.
On February 9, 2022, CYF filed a petition to terminate the parental rights
of Father as to Je.J.N. pursuant to 23 Pa.C.S. § 2511(a)(2) and (4). The
orphans’ court held a hearing on the petition on March 25, 2022.3 CYF
____________________________________________
3 At the hearing, Laura Smith, Esquire, represented all three children as
guardian ad litem (“GAL”) and legal counsel. We note with displeasure that
Attorney Smith did not file a brief with this Court on behalf of Je.J.N.
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J-A23030-22
presented the testimony of CYF caseworker Samuel Richard and K.L., the
foster mother. Father testified on his own behalf. At the conclusion of the
hearing, the orphans’ court denied the petition because it did not find that the
circumstances leading to placement could not or would not be remedied. It
noted, however, that CYF could re-file under a more appropriate subsection.
On March 30, 2022, CYF did just that, filing a petition to terminate
Father’s parental rights as to Je.J.N. pursuant to § 2511(a)(1), (2), and (6).
CYF also filed a petition to terminate Mother’s parental rights. Once Je.J.N.
turned six months old, CYF filed an amended petition to terminate pursuant
to § 2511(a)(1), (2), (5), and (6). The orphans’ court held a hearing on these
petitions on May 17, 2022. CYF presented the testimony of the foster parents,
D.L. and K.L., as well as Mr. Richard. Mother and Father were present at the
hearing but chose not to testify.
Mr. Richards testified that Father’s only contact with Je.J.N. following his
birth was comprised of two supervised, one-hour visits, on April 11 and April
25, 2022. Father failed to attend the next scheduled visit and had not been
in contact with CYF since the April 25 visit. Father’s housing and employment
status remained unknown. During the life of the dependency case, Father did
not engage in any services and, as of the hearing, Father had not made any
progress towards his goals.
At the conclusion of the hearing, the orphans’ court issued a decree
terminating Father’s parental rights pursuant to § 2511(a)(6). The court also
found that CYF had established sufficient grounds for termination pursuant to
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J-A23030-22
§ 2511(a)(1), (2), and (5). Father filed a timely notice of appeal and concise
statement pursuant to Pa.R.A.P. 1925(a)(2). The orphans’ court filed a
responsive Rule 1925(a) opinion directing this Court to its reasoning stated
on the record at the conclusion of the May 17, 2022 termination hearing, as
well as CYF’s amended motion for judicial notice.
Father presents the following question for our consideration: “Did the
Lower Court abuse its discretion and err as a matter of law in finding that the
Agency met its burden to terminate Father’s parental rights under 23
Pa.C.S.A. Section 2511(a)(1), (2), (5), (6) and 2511(b)?” Father’s brief at 5.
We begin with our standard of review for matters involving
involuntary termination of parental rights:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized [the appellate court’s] deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (cleaned up). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the
evidence.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation
-5-
J-A23030-22
omitted). “[I]f competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act and requires a bifurcated analysis of the grounds for termination followed
by the needs and welfare of the child.
Our case law has made clear that under [§] 2511, the court must
engage in a bifurcated process prior to terminating parental rights.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds
for termination delineated in [§] 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to [§] 2511(b): determination of the needs
and welfare of the child under the standard of best interests of the
child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
Father argues that CYF failed to establish by clear and convincing
evidence the statutory grounds for termination of his parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1), (2), (5), (6), and (b). See Father’s brief at 15.
We have defined clear and convincing evidence as that which is so “clear,
direct, weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (cleaned up).
Termination is proper when the moving party proves grounds for
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J-A23030-22
termination under any subsection of § 2511(a), as well as § 2511(b). T.B.B.,
supra at 395. Thus, to affirm, we need only agree with the trial court as to
any one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
Here, the orphans’ court terminated Father’s parental rights pursuant to
§ 2511(a)(1), (2), (5), (6), and (b). Like the orphans’ court, we will focus our
analysis on § 2511(a)(6) and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(6) In the case of a newborn child, the parent knows or has
reason to know of the child’s birth, does not reside with the
child, has not married the child’s other parent, has failed for
a period of four months immediately preceding the filing of
the petition to make reasonable efforts to maintain
substantial and continuing contact with the child and has
failed during the same four-month period to provide
substantial financial support for the child.
....
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511.
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J-A23030-22
To satisfy the requirements of § 2511(a)(6), CYF was required to prove
by clear and convincing evidence that: (1) Je.J.N. was a newborn child at the
time the petition was filed; (2) Father knew of Je.J.N.’s birth; (3) Father did
not reside with Je.J.N.; (4) Father and Mother are not married; and (5) “for a
period of four months prior to the filing of the petition, Father ha[d] failed to
make reasonable efforts to maintain substantial and continuing contact with
[Je.J.N.] and to provide substantial financial support.” In re Adoption of
M.R.B., 25 A.3d 1247, 1252 (Pa.Super. 2011) (citation omitted).
Father concedes that the first four prongs are met. See Father’s brief
at 24. Thus, the only aspect of the statute in dispute is whether Father made
reasonable efforts to maintain significant and consistent contact with Je.J.N.
and whether he provided substantial financial support in the four months
preceding the filing of the petition. In that regard, Father argues as follows:
It is acknowledged that Father did not make an effort to maintain
a substantial and continuing contact until February 7, 2022.
However, at that time, Father began making efforts. It is
understood that 2511(b), which will be addressed in this brief,
states in part that the [c]ourt shall not consider any efforts by the
parent to remedy the conditions which are . . . first initiated
subsequent to the giving of notice of the filing of the petition.
Having said that, Father’s efforts were somewhat limited by being
incarcerated. However, once released, efforts were made. As far
as providing support, Father was incarcerated and immediately
upon release obtained employment.
Father’s brief at 25.
The orphans’ court concluded that Father had not made any effort to
contact Je.J.N. and had not provided any financial support to the foster
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J-A23030-22
parents. See N.T., 5/17/22, at 57-58. The court found Father’s minimal
contact with Je.J.N. compelling:
The child is over 203 days old. In that period of time Father saw
the child at the hospital and two hours, Mother saw the child at
most . . . for 11 hours, which means that the foster parents have
cared for the child for 4,861 hours compared to Mother’s 11 hours
of supervised contact and Father’s two hours of supervised
contact.
Id. at 55 (capitalization altered).
Here, the relevant four-month period was from November 30, 2021 to
March 30, 2022. Father did not have any contact with Je.J.N. during this
period, nor did Father provide any financial support to the foster parents or
contact the foster parents to inquire about Je.J.N. Notably, Father’s two visits
occurred after both the filing of the instant petition and the relevant four-
month period. Therefore, pursuant to § 2511(b), this late attempt to initiate
contact with Je.J.N. cannot be considered.
We recognize Father’s statement that his involvement with Je.J.N. and
ability to provide financial support were hindered by his incarceration. The
certified record is not entirely clear when Father was incarcerated. As far as
we can glean, Father was evading police at the time Je.J.N. was born in
October 2021. It was not until January 27, 2022, three months after Je.J.N.
was born, that Father was incarcerated. He was thereafter released on bail
but was re-incarcerated around February 24. Father remained incarcerated
at the time of the March 25, 2022 hearing, but was no longer incarcerated as
of at least April 22, 2022. We conclude that these sporadic periods of
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incarceration were not insurmountable impediments to Father making
reasonable efforts to have a substantial and consistent relationship with
Je.J.N. or provide financial support.
The certified record demonstrates that during the relevant four-month
period, Father did not make any effort to have a relationship with Je.J.N.,
despite his not being incarcerated for approximately half of that time. Father’s
two visits since then hardly constitute a reasonable effort to have a substantial
and consistent relationship. Moreover, despite Father’s claims that he
retained employment upon release, he never provided documentation of such
to CYF and never provided financial support to CYF or the foster parents for
their care of Je.J.N. The record supports the credibility determinations and
conclusions of the orphans’ court. Accordingly, the orphans’ court did not err
in terminating Father’s parental rights as to Je.J.N. pursuant to § 2511(a)(6).
Finally, we consider whether the orphans’ court committed an error of
law or abuse of discretion pursuant to § 2511(b). As explained
above, § 2511(b) focuses on the needs and welfare of the child, which
includes an analysis of any emotional bond that the child may have with Father
and the effect of severing that bond. L.M., supra at 511. The key questions
when conducting this analysis are whether the bond is necessary and
beneficial and whether severance of the bond will cause the child extreme
emotional consequences. In re Adoption of J.N.M., 177 A.3d 937, 944
(Pa.Super. 2018) (quoting In re E.M., 620 A.2d 481, 484–85 (Pa. 1993)). It
is important to recognize that the existence of a bond, while significant, is only
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one of many factors courts should consider when addressing § 2511(b). In
re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting In
re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)). Other factors include “the
safety needs of the child, and . . . the intangibles, such as the love, comfort,
security, and stability the child might have with the foster parent.” Id.
Father offers the following argument regarding § 2511(b):
[I]t is acknowledged that there has been little evidence of the
relationship and bond between Father and the children. It was
Father’s hope that by taking the necessary steps to address his
issues, which he began to do, this would change. Unfortunately,
he was not given this time by the [c]ourt. [CYF] began seeking
to terminate Father’s rights to this child on February 9, 2022. At
that point the child was about three and a half months old. . . . It
is argued that Father was never given a fair chance to parent this
child. [CYF] failed to offer any assistance as to housing although
. . . Father requested assistance. It is in the best interests of this
child for Father to be given a chance.
Father’s brief at 27-28.
As a general matter, Pennsylvania does not require the orphans’ court
to enlist a formal bonding evaluation or base its needs and welfare analysis
upon expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2011).
“Common sense dictates that courts considering termination must also
consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” In re T.S.M., supra, at 268. In
weighing the bond considerations pursuant to § 2511(b), “courts must keep
the ticking clock of childhood ever in mind.” Id. at 269. “Children are young
for a scant number of years, and we have an obligation to see to their healthy
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development quickly. When courts fail . . . the result, all too often, is
catastrophically maladjusted children.” Id. A court cannot “toll the well-being
and permanency” of a child indefinitely in the hope that a parent “will summon
the ability to handle the responsibilities of parenting.” In re C.L.G., 956 A.2d
999, 1007 (Pa.Super. 2008) (en banc) (citation omitted).
In relation to § 2511(b), the orphans’ court concluded that all the
intangibles were provided by the foster parents. See N.T., 5/17/22, at 58. It
found that a bond existed between Je.J.N. and the foster parents and that no
bond existed between Father and Je.J.N. Id. at 58. The court observed that
there was no evidence that Father had contact with Je.J.N. prior to the filing
of the petition or that Je.J.N. would have any knowledge of Father as a
parental figure. Id. at 58. The court again emphasized that Father’s only
contact with Je.J.N. since he was born was two hours of supervised visitation.
Id. at 58-59. Ultimately, the court concluded that termination was in the best
interests of Je.J.N.:
We found that the child has done well in the foster home. It’s in
his best interest to have stability. No bond has existed with the
parents. Making the child free for adoption will allow him to be
adopted by the only parents he’s ever known and he may remain
in the care of the foster parents who also have custody of the
minor child’s two biological . . . siblings.
Id. at 60.
As noted, K.L. and D.L. are a pre-adoptive resource for Je.J.N. and his
older brothers. D.L. testified that Je.J.N. has adjusted extremely well to their
home and is bonded with D.L., K.L., and Ja.J.N. Id. at 6, 12. Based on
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Father’s lack of contact, Mr. Richards testified that Je.J.N. would not recognize
him as a parental figure. Id. at 28. Instead, it is to D.L. and K.L. that Je.J.N.
reaches as his caregiver. Id. at 46. Finally, Mr. Richards testified that
termination would not negatively affect Je.J.N. Id. at 32-33.
We appreciate that Father now wishes to be a parent to Je.J.N.
However, the certified record demonstrates that he has not made a
meaningful effort to do so during this child’s short life, and we cannot “toll the
well-being and permanency” of Je.J.N. in the hope that Father “will summon
the ability to handle the responsibilities of parenting.” In re C.L.G., supra,
at 1007 (citation omitted). There is no evidence of a bond between Father
and Je.J.N. and, as noted, Father has only spent two hours of supervised
visitation time with Je.J.N. outside the day he was born. Father has not
performed parental duties during any significant period. Rather, it is the foster
parents who have provided a stable, loving environment that satisfies the
developmental, physical, and emotional needs and welfare of Je.J.N.
Moreover, the record bears out that Je.J.N. has formed a healthy bond with
the foster parents and with his brother, Ja.J.N., who also lives with the foster
parents. As such, the record supports the assessment of the orphans’ court
that Je.J.N. is best served by terminating the parental rights of Father in
anticipation of adoption by K.L. and D.L.
Based on the foregoing, we affirm the decree terminating Father’s
parental rights.
- 13 -
J-A23030-22
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2022
- 14 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482109/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1933
__________
CHRISTOPHER L. ALSOP,
Appellant
v.
FEDERAL BUREAU OF PRISONS; UNITED STATES OF AMERICA; MD
LEONARD DANIEL; FNP/BC CATHERINE GORE; HEALTH SERVICES ADMI
BRET BROCIOUS; WARDEN D.K. WHITE; PA-C JOHN STOLTZ; RN LAUREN
HOFFORD; RN S. HAMILTON; DR. MICHAEL D. CARVAJAL; KEVIN
VINCENZES; R. HAYS; D. RUSSELL; DR. JOHN MANENTI, Regional Medical
Director for the Northeast Region; DR. ELIZABETE SANTOS-STAHL, Clinical
Director; HSA JAMES POTOPE
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-17-cv-02307)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
on November 1, 2022
Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges
(Opinion Filed: November 7, 2022)
___________
OPINION*
___________
PER CURIAM
Appellant Christopher Alsop, a prisoner proceeding pro se, appeals from the
District Court’s order granting summary judgment for defendants. We will affirm.
I.
In the operative fifth amended complaint,1 Alsop asserted that medical staff and
corrections officers at USP-Allenwood violated his constitutional rights.2 The gravamen
of his complaint was that prison officials delayed his access to vascular surgery for
varicose veins in his legs in violation of the Eighth Amendment.3 Defendants moved to
dismiss some claims and moved for summary judgment on others. In a report and
recommendation, the Magistrate Judge recommended entering judgment for defendants.
The District Court overruled Alsop’s objections to the report, adopted the report, and
granted summary judgment for defendants. Alsop timely appealed.4
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
We write primarily for the benefit of the parties, who are familiar with the background
of the case. A thorough summary of the background is available in the Magistrate
Judge’s Report and Recommendation.
2
Alsop commenced this civil rights action under Bivens v. Six Unknown Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
3
In his complaint, Alsop sought damages and injunctive relief. He was released from
prison in 2020, mooting his claims for injunctive relief.
4
We have jurisdiction under 28 U.S.C. § 1291. We may affirm on any basis supported
2
II.
The parties agree that Alsop’s varicose veins presented a serious medical need.
The critical issue is whether Alsop demonstrated that the medical defendants acted with
deliberate indifference in treating that condition. See Estelle v. Gamble, 429 U.S. 97,
103-05 (1976). Deliberate indifference can be demonstrated by showing that prison
medical staff intentionally denied or delayed access to medical care, intentionally
interfered with treatment after it was prescribed, or delayed treatment for improper, non-
medical reasons. See id. at 103-05; Pearson v. Prison Health Serv., 850 F.3d 526, 537
(3d Cir. 2017). However, prison authorities are “accorded considerable latitude in the
diagnosis and treatment of prisoners,” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.
1993), and “mere disagreement as to the proper medical treatment” does not give rise to a
constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (citations
omitted).
A. Eighth Amendment Claims Against Medical Defendants
Alsop contends that prison administrator Dr. Santos-Stahl acted with deliberate
indifference in delaying his vascular surgery. The record demonstrates that, in January
by the record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011). We exercise
plenary review over a District Court’s decision to grant a motion to dismiss and over the
grant of summary judgment. See Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021);
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). We accept all
factual allegations in the complaint as true and construe those facts in the light most
favorable to Alsop. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012).
Summary judgment is warranted if defendants show “there is no genuine dispute as to
any material fact and [they are] entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
3
2017, Alsop was seen by non-party physician Dr. Oaks, who was unaffiliated with the
prison. Dr. Oaks observed that Alsop complained of leg pain and swelling, determined
that Alsop’s conservative therapy (use of compression stockings) had failed, and
recommended performing surgery on the varicose veins in both legs. ECF No. 158-1 at
p. 516. Surgery was scheduled to take place in March 2017, but Dr. Santos-Stahl elected
to continue the conservative treatment instead. Health Services Administrator (HSA)
John Potope informed Alsop that the surgery was cancelled because it was an elective
procedure. See ECF No. 138 at p. 13. Thereafter, Alsop did not complain of pain again
until October 2017, when he told medical staff he was experiencing pain in his right
ankle. In November 2017, Alsop’s ankle gave out and he fell in the dining hall. Prison
medical staff observed his ankle was swollen (but not fractured or misaligned) and
prescribed him Duloxetine for pain. On May 12, 2018, Alsop slipped and fell in the rain.
His only injury was an abrasion on the right knee, and he received an Acetaminophen
prescription for pain. On May 17, 2018, he fell again but that fall was neither seen nor
reported.5 In June and July 2018, he received varicose vein surgery on both legs. Alsop
contends that if the surgery had been performed when it was initially scheduled, he would
not have fallen and injured himself. See C.A. No. 7 at p. 2.
Dr. Santos-Stahl’s decision to pursue conservative treatment rather than follow Dr.
Oaks’s recommendation does not, without more, demonstrate that she acted with
deliberate indifference. See Spruill, 372 F.3d at 235. Dr. Oaks described the vascular
5
The next day, Alsop was examined by medical staff for injuries unrelated to the fall.
An x-ray of his right shoulder and upper right arm presented as unremarkable.
4
surgery as a “routine” procedure, ECF No. 158-1 at p. 417, and did not provide a deadline
for the procedure, indicating that the surgery was not urgent. Cf. Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575, 582-83 (3d Cir. 2003) (prison officials’ failure to administer
insulin to a pre-trial detainee despite a physician note stating he “must have insulin”
indicated deliberate indifference). Alsop has not shown that when Dr. Santos-Stahl
elected to pursue the conservative treatment, she had reasons to believe that Alsop faced
substantial harm without the vascular surgery. See Farmer v. Brennan, 511 U.S. 825, 837
(1994) (deliberate indifference is shown when a prison official is aware of facts from
which she can infer that a substantial risk of harm exists, and she also draws such an
inference).6 Nor did Alsop show that Dr. Santos-Stahl canceled the surgery for an
improper non-medical reason. See Pearson, 850 F.3d at 537.
Next, Alsop argues that Nurse Practitioner Gore violated his Eighth Amendment
rights by denying his requests for a wheelchair. See C.A. No. 7 at p. 4. On May 11,
2018, Alsop requested a wheelchair because it was difficult for him to traverse the prison
hills. Gore responded that a wheelchair was not required but a meeting with Alsop’s
primary care physician would be scheduled. On May 14, 2018, Alsop requested a
wheelchair after he fell in the rain the day before. Gore responded he needed to remain
ambulatory to prevent blood clots. And, in June 2018, Alsop requested a wheelchair after
he had received surgery on one of his legs. Gore responded that he had walked to the
6
We note that Alsop’s surgery appeared to be successful despite the delay. Dr. Oaks
opined that there were no complications, and that the lingering leg pain was non-vascular.
See ECF No. 158-1 at pp. 101-03.
5
clinic without difficulty. See ECF No. 158-1 at p. 38, 148, 162-63, 168-69. Alsop has
provided no basis for second-guessing Gore’s decisions, let alone concluding that Gore
violated his Eighth Amendment rights. See U.S. ex rel. Walker v. Fayette Cnty., 599
F.2d 573, 575 n.2 (3d Cir. 1979) (per curiam).7
B. Eighth Amendment Claims Against Non-Medical Defendants
Summary judgment for the non-medical defendants was also proper. Alsop
contends that HSA Potope participated in the delay of his vascular surgery, that health
technician Kevin Vincenzes failed to provide medication to Alsop despite his complaints
of dizziness and headaches,8 and that although Warden White knew Alsop suffered
excruciating pain from traversing the hilly prison, he declined to transfer him to another
prison. Non-medical defendants are not deliberately indifferent for failing to respond to
medical complaints of a prisoner who is already being treated by a prison doctor.
See Durmer, 991 F.2d at 69. Because the record establishes that Alsop regularly received
treatment from prison medical staff, no reasonable trier of fact could find that these
defendants violated his Eighth Amendment rights.
7
We reject Alsop’s argument that the District Court failed to consider his claim that
Physician Assistant John Stoltz violated his Eighth Amendment rights. The Magistrate
Judge indicated that Alsop had raised such a claim against Stoltz, determined there was
no issue of material fact on the deliberate indifference issue, see ECF No. 170 at pp. 45-
48, and the District Court adopted that recommendation, see ECF No. 193. Moreover,
Stoltz’s decision to deny Alsop a cane was grounded in professional judgment. Stolz
observed that there was no clinical indication that Alsop needed a cane to traverse the
prison. See ECF No. 158-1 at p. 390.
8
As with defendant Stoltz, Alsop complains that the District Court failed to consider his
claim against Vincenzes. Again, we disagree, for the same reasons. See supra n.7.
6
C. Retaliation and Excessive Force Claims Against Hays
Finally, Alsop argues that judgment for Correctional Officer Hays was improper.
Alsop alleged that Hays used excessive force against him and confiscated his
(unprescribed) medication in retaliation for complaining about his treatment in solitary
confinement. These allegations are not a basis for relief under Bivens. See Egbert v.
Boule, 142 S. Ct. 1793, 1805-06 (2022); Mack v. Yost, 968 F.3d 311, 317 (3d Cir. 2020).
We will affirm the judgment of the District Court.
7 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482110/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0445n.06
Case No. 21-2742
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 07, 2022
) DEBORAH S. HUNT, Clerk
SYMETRA LIFE INSURANCE COMPANY,
)
Petitioner-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
ADMINISTRATION SYSTEMS RESEARCH ) MICHIGAN
CORPORATION, INTERNATIONAL, )
Respondent-Appellant. ) OPINION
)
Before: SILER, GIBBONS, and STRANCH, Circuit Judges.
SILER, Circuit Judge. Administration Systems Research Corporation, International
(“ASR”) appeals the district court’s grant of Symetra Life Insurance Company’s (“Symetra”)
petition to compel compliance with an arbitration panel’s subpoena.
In an arbitration to which Symetra is a party, the arbitration panel ordered ASR to send a
representative to attend an arbitration hearing in Grand Rapids, Michigan, and to bring specified
documents. ASR refused to comply, so Symetra petitioned the United States District Court for the
Western District of Michigan under 9 U.S.C. § 7 to compel ASR’s compliance. The case was
referred to a magistrate judge, who granted the petition. The district court affirmed the magistrate
judge’s decision, and ASR appealed. For the reasons set forth below, we affirm the district court.
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
BACKGROUND
This dispute began with a 2017 lawsuit. A dialysis provider, RAI Care Centers of
Michigan, sued several employee benefits plans, two of which were insured by Symetra. RAI also
sued ASR, the plans’ third-party administrator. The two plans insured by Symetra settled their
claims with RAI.
Symetra then sought reimbursement from Alliance Health & Life Insurance Company
(“AHL”) under their reinsurance agreement. But AHL denied coverage and thereafter sued
Symetra in the United States District Court for the Western District of Michigan, seeking: (1) a
declaration that it owed no reinsurance coverage to Symetra; (2) damages for Symetra’s alleged
breach of contract, breach of good faith, breach of implied duty of good faith, and conversion; and
(3) injunctive relief.
Symetra filed a motion to dismiss AHL’s lawsuit and to compel arbitration based on an
arbitration clause in its contract with AHL. AHL agreed that arbitration was appropriate, but it
opposed the motion to dismiss. Instead, AHL requested the district court stay the case in the event
assistance might be required with non-party discovery under 9 U.S.C. § 7, which empowers “the
United States district court for the district in which such arbitrators, or a majority of them, are
sitting” to “compel the attendance of such person or persons before said arbitrator or arbitrators.”
Symetra, in turn, responded that the arbitration panel would never sit in the Western
District of Michigan. It argued the arbitration panel would sit only in the Western District of
Washington because the contractual arbitration clause required all proceedings to take place in
Bellevue, Washington. Thus, in urging the court to dismiss the case entirely, Symetra maintained
that any future court action related to the arbitration could be brought only in the Western District
of Washington.
-2-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
The district court granted Symetra’s motion to dismiss, reasoning that “dismissal, as
opposed to a stay, is proper where all claims are referred to arbitration.” In response to AHL’s
concerns about future discovery disputes, the court commented that “any discovery disputes would
have to be transferred to the Western District of Washington” because “the arbitrators are sitting
in Bellevue, Washington.”
And, indeed, such a discovery dispute arose. At arbitration, Symetra alleged that AHL
violated the reinsurance agreement; AHL responded that Symetra’s payments did not constitute
“covered expenses” under Symetra’s policies because the settlements were not paid in accordance
with the employee benefit plans’ terms. Symetra—seeking clarity on AHL’s coverage position—
petitioned the arbitration panel to issue a subpoena to ASR, AHL’s affiliate and the plans’ third-
party administrator. But AHL argued that the subpoena sought irrelevant information and would
impose an undue burden on ASR. The arbitration panel nonetheless issued it. And the next month,
ASR filed a motion to quash the subpoena.
The arbitration panel denied ASR’s motion to quash and issued the subpoena in its present
form. The subpoena required an ASR “custodian of records” to attend as a witness an arbitration
hearing to be held in Grand Rapids, Michigan. It also ordered the custodian of records to bring
specified documents to the hearing. ASR again raised materiality and undue burden objections to
the subpoena, but the arbitration panel found “no need to respond.”
Symetra then filed a petition under 9 U.S.C. § 7 in the United States District Court for the
Western District of Michigan to compel ASR to comply with the subpoena. The petition was
assigned to a magistrate judge, who questioned whether the arbitration panel was “sitting” in that
district. After ordering the parties to submit briefing on that issue, the magistrate judge concluded
that the arbitrators had indeed been “sitting” in the Western District of Michigan.
-3-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
Thus, the magistrate judge ordered ASR to comply with the arbitration panel’s subpoena.
In its order, the magistrate judge held that neither collateral nor judicial estoppel barred Symetra’s
petition, even though Symetra had previously represented in its litigation with AHL that the
arbitration panel would only ever sit in Bellevue, Washington. The magistrate judge reasoned that
the court was “faced with a wholly different set of circumstances.” Indeed, after arbitration had
commenced, a dispute arose as to the appropriate location for the arbitration proceedings, and the
arbitration panel ultimately chose Houston, Texas, as the location for the final hearing. And later,
the arbitration panel issued the subpoena at issue and scheduled a hearing to receive the
subpoenaed documents in Grand Rapids, Michigan. The magistrate judge also determined that the
subpoena complied with 9 U.S.C. § 7 and declined to rule on ASR’s materiality and burden
arguments, finding that the arbitration panel had sufficiently considered them.
The district court denied ASR’s objections, finding no error in the magistrate judge’s
decision. The district court then entered a final judgment and closed the case.
DISCUSSION
Our jurisdiction to hear this appeal arises under 9 U.S.C. § 16. See Managed Care Advisory
Grp., LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145, 1155 (11th Cir. 2019); Dynegy Midstream
Servs. v. Trammochem, 451 F.3d 89, 92-94 (2d Cir. 2006) (superseded by statute on other
grounds).
ASR raises various issues concerning section 7 of the Federal Arbitration Act (“FAA”),
which provides:
The arbitrators selected either as prescribed in this title or otherwise, or a majority
of them, may summon in writing any person to attend before them or any of them
as a witness and in a proper case to bring with him or them any book, record,
document, or paper which may be deemed material as evidence in the case. . . . [I]f
any person or persons so summoned to testify shall refuse or neglect to obey said
-4-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
summons, upon petition the United States district court for the district in which
such arbitrators, or a majority of them, are sitting may compel the attendance of
such person or persons before said arbitrator or arbitrators, or punish said person or
persons for contempt in the same manner provided by law for securing the
attendance of witnesses or their punishment for neglect or refusal to attend in the
courts of the United States.
9 U.S.C. § 7 (emphasis added). First, ASR contests the district court’s subject matter jurisdiction.
Second, it argues the district court applied the wrong standard of review to the magistrate judge’s
decision. Third, it contends that Symetra could not bring the enforcement action in the District
Court in the Western District of Michigan because, says ASR, the arbitration panel was not
“sitting” in Grand Rapids, Michigan, for purposes of the FAA. Fourth, ASR argues that Symetra
is, in any event, estopped from asserting that the arbitration panel is “sitting” in Grand Rapids,
Michigan, given its previous assertion that the panel could only sit in Bellevue, Washington. Fifth,
ASR argues that the arbitration panel’s subpoena fails to comply with the FAA’s requirements.
And finally, ASR maintains that remand is necessary because, in its view, neither the arbitration
panel nor the district court addressed its objections to the panel’s subpoena.
We, however, conclude that ASR’s arguments are without merit and thus affirm the district
court’s judgment.
A. District Court’s Subject Matter Jurisdiction
We first turn to whether the district court had subject matter jurisdiction in this case.
Because the FAA does not itself create federal jurisdiction, a party invoking Section 7 must
establish an independent basis for subject matter jurisdiction. Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983). Here, Symetra asserted diversity jurisdiction
under 28 U.S.C. § 1332. But ASR argues that Symetra failed to plead adequately the requisite
amount in controversy (more than $75,000, “exclusive of interests and costs,” 28 U.S.C. § 1332).
-5-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
We review subject matter jurisdiction de novo. United States v. Bacon, 884 F.3d 605, 608 (6th
Cir. 2018). So it is with fresh eyes that we turn to the question whether the amount-in-controversy
requirement was satisfied here.
As an initial matter, ASR mistakes the burden that Symetra bears with respect to alleging
the requisite amount in controversy. ASR asserts that Symetra failed to bear its “burden of proving
subject matter jurisdiction by a preponderance of evidence.” But such a burden does not exist at
the pleadings stage. Instead, we accept the amount alleged in the complaint so long as the claim
is made in good faith. Kovacs v. Chesley, 406 F.3d 393, 395 (6th Cir. 2005) (citing St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90 (1938)). Dismissal for lack of
jurisdiction is appropriate only if, from the face of the complaint, it appears to a legal certainty that
the party cannot recover the amount claimed. Id. In other words, as long as “there is a probability
that the value of the matter in controversy exceeds the jurisdictional amount,” we consider the
amount-in-controversy requirement satisfied. Id. at 397.
Next, we consider how a section 7 enforcement action’s value may be measured. Although
this issue is of first impression in our court, we agree with our sister circuits that the amount in
controversy may be established by a good faith allegation of the subpoenaed information’s value
to the plaintiff in the underlying arbitration dispute. See Maine Cmty. Health Options v. Albertson
Cos., 993 F.3d 720, 723 (9th Cir. 2021); Wash. Nat’l Ins. Co. v. OBEX Grp. LLC, 958 F.3d 126,
135 (2d Cir. 2020). It is well-settled that the amount in controversy in an action seeking injunctive
relief is measured by the “value of the object of the litigation.” See Cleveland Hous. Renewal
Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 560 (6th Cir. 2010) (quoting Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 347 (1977)). The question is how to measure that value:
only from the plaintiff’s viewpoint, i.e., as the benefit the plaintiff stands to gain from the litigation,
-6-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
or also from the defendant’s viewpoint, i.e., as the detriment to the defendant that would result
from the injunction. We have noted that circuits are split “as to whether a court may determine
the amount in controversy from the perspective of either party (the ‘either viewpoint rule’) or
whether a court may only consider the plaintiff’s viewpoint.” Olden LaFarge Corp., 383 F.3d
495, 502 n.1 (6th Cir. 2004). But we have thus far steered clear of this “jurisdictional morass.”
Id.; see also Siding and Insulation Co., Inc. v. Acuity Mut. Ins. Co., 754 F.3d 367, 372 (6th Cir.
2014) (collecting cases in which our court has been presented with and subsequently avoided the
question). Today we continue in that path, as we need only consider Symetra’s viewpoint to find
that the amount-in-controversy requirement has been met.
The amount at issue in Symetra’s arbitration with Alliance Health is at least three million
dollars. Thus, the documents sought in the subpoena need only pertain to a small fraction of the
arbitral award for the amount-in-controversy requirement to be satisfied. Cf. Wash. Nat’l Ins. Co.,
958 F.3d at 135 (finding that even if the subpoenaed information supported only a “small fraction
of the award sought,” the value would exceed the jurisdictional amount); Maine Cmty. Health
Options, 993 F.3d at 723 (same). Because it does not appear to “a legal certainty” that the
subpoenaed documents’ value is $75,000 or less, we find that the district court had subject matter
jurisdiction.
B. District Court’s Standard of Review of the Magistrate Judge’s Decision
Next, ASR argues that the district court should have reviewed the magistrate judge’s
decision de novo, rather than for clear error. The proper standard of review a district court applies
to a magistrate judge’s order compelling compliance with an arbitration subpoena turns on whether
that decision is “dispositive” within the meaning of 28 U.S.C. § 636. When a magistrate judge
rules on a non-dispositive matter, a district judge may reconsider that ruling only if it is “clearly
-7-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). But when a
magistrate judge issues a report and recommendation on a dispositive matter, a district judge must
“make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. at § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
We have not yet determined whether a section 7 enforcement action is “dispositive,” but
we need not resolve the issue here. That is because the distinction between the standards of review
collapses where the district court reviews only the magistrate judge’s legal conclusions. Indeed,
we have explained that a “contrary to law” determination is tantamount to de novo review where
only pure legal issues are involved. Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir.
2019). And, here, the district court, reviewing only the magistrate judge’s legal conclusions,
perceived no error. Because this analysis would be proper under either the “clearly erroneous or
contrary to law” standard or the de novo standard, we see no reason to remand the case.
C. Where the Arbitration Panel “Sits”
Thus, we turn to ASR’s next argument—that Symetra was not permitted to bring the action
in the District Court for the Western District of Michigan.
Section 7 provides, in relevant part:
[I]f any person or persons so summoned to testify shall refuse or neglect to obey
said summons, upon petition the United States district court for the district in which
such arbitrators, or a majority of them, are sitting may compel the attendance of
such person or persons before said arbitrator or arbitrators…
9 U.S.C. § 7 (emphasis added). ASR submits that the arbitration panel may “sit” only in one
location: where the final hearing is to be conducted. Here, that would be Houston, Texas. But the
FAA’s text contains no such restriction, and we decline ASR’s invitation to read additional terms
into the statute. Gen. Med., P.C. v. Azar, 963 F.3d 516, 521 (6th Cir. 2020) (“[C]ourts . . . should
-8-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
not add language that Congress has not included.”). The arbitration panel declared that it was
sitting in Grand Rapids, Michigan, for the hearing related to the subpoena at issue. Under the
circumstances of this case, we thus hold it was not improper for Symetra to bring this action in the
Western District of Michigan.
D. Judicial and Collateral Estoppel
Next, we reject ASR’s argument that judicial and collateral estoppel preclude Symetra from
claiming that the arbitration panel is sitting in Grand Rapids, Michigan. Judicial estoppel prevents
“intentional inconsistency” and “applies to a party who has successfully and unequivocally
asserted a position in a prior proceeding; he is estopped from asserting an inconsistent position in
a subsequent proceeding.” Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598-99 (6th Cir. 1982).
This doctrine “addresses the incongruity of allowing a party to assert a position in one tribunal and
the opposite in another tribunal,” lest “the second tribunal adopt[] the party’s inconsistent
position,” indicating that “at least one court has probably been misled.” Id. at 599.
Here, Symetra neither adopted an intentionally inconsistent position nor one that was
successful. It is true that Symetra previously argued in its litigation with AHL that the arbitration
panel would sit only in Bellevue, Washington—in accordance with the contractual provision
stating that the arbitration proceedings would occur in the city of Symetra’s principal office. But
circumstances changed in the intervening months. During that time, not only did the arbitration
panel decide that the final proceeding would occur in Houston, Texas, but it also issued the
subpoena to ASR, stating its intent to conduct a hearing in Grand Rapids, Michigan. As Symetra
articulates, its position is simply “a necessary consequence of the Panel’s venue orders, and any
other position would be nonsensical.” Moreover, the district court based its decision on the
principle that dismissal is the proper outcome when all claims are subject to arbitration—not on
-9-
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
Symetra’s argument about future discovery disputes. Thus, its position was not successful, and
judicial estoppel does not apply.
Nor does collateral estoppel apply here—even though the district court in the earlier
litigation had agreed with Symetra that the arbitration panel was sitting in Washington. We apply
a four-part test to determine whether collateral estoppel applies:
1) the precise issue raised in the present case must have been raised and actually
litigated in the prior proceeding;
2) determination of the issue must have been necessary to the prior proceeding’s
outcome;
3) the prior proceeding must have resulted in a final judgment on the merits; and
4) the party against whom estoppel is sought must have had a full and fair
opportunity to litigate the issue in the prior proceeding.
Aircraft Braking Sys. Corp. v. Local 856, Int’l Union United Auto., Aerospace & Agric. Implement
Workers, 97 F.3d 155, 161 (6th Cir. 1996). Even were we to assume that ASR could meet the
first, third, and fourth prongs, its objection would still fail at the second prong because the issue
where the panel was “sitting” was not necessary to the prior proceeding’s outcome. Indeed, the
lower court explicitly based its dismissal on the fact that all claims had been referred to
arbitration—not on its conclusion that the panel was sitting in Washington.
E. Compliance with Section 7 Requirements
ASR also argues that the arbitration panel’s subpoena is a “pre-hearing discovery
subpoena,” which, according to ASR, is not permitted by the FAA. Section 7 empowers an
arbitrator to “summon in writing any person to attend before them or any of them as a witness and
in a proper case to bring with him or them any book, record, document, or paper which may be
deemed material as evidence in the case.” 9 U.S.C. § 7. Here, the arbitration panel summoned an
ASR custodian of records to attend an arbitration hearing as a witness and to bring the identified
documents. Under a straightforward reading of the statute’s text, the subpoena was a proper
- 10 -
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
exercise of the panel’s section 7 powers. We thus decline to address whether pre-hearing discovery
is otherwise permitted under the statute.
F. Ruling on Materiality, Breadth, Burden, Confidentiality, and Privilege
Finally, ASR maintains that the arbitration panel failed to address its numerous objections
and that the district court thus had an obligation, under 9 U.S.C. § 7, to assess the subpoenaed
documents’ materiality and, under Federal Rule of Civil Procedure 45, to rule on ASR’s remaining
objections. We conclude the district court was not required to make a ruling on ASR’s materiality,
breadth, burden, confidentiality, and privilege objections to the arbitrators’ subpoena.
As a preliminary matter, we find that the arbitration panel sufficiently considered ASR’s
objections: the panel determined that the documents responsive to the subpoena “may be relevant
to the instant dispute” and decided, over ASR’s objections, to proceed with the hearing.
To the extent ASR insists that the district court was nevertheless obligated to make an
independent ruling on ASR’s objections to the subpoena, ASR is mistaken. We have reasoned in
an analogous setting that “the relevance of the information and the appropriateness of the subpoena
should be determined in the first instance by the arbitrator.” Am. Fed’n of Television & Radio
Artists v. WJBK-TV, 164 F.3d 1004, 1010 (6th Cir. 1998) (discussing enforcement of an
administrative subpoena issued under Labor Management Relations Act § 301). And at least two
district courts have since applied that conclusion to section 7 proceedings. See Westlake Vinyls,
Inc. v. Resolute Mgmt., Inc., No. 3:18-MC-00013-CHB-LLK, 2018 WL 4515997, at *6 (W.D. Ky.
Aug. 21, 2018) (citing the Sixth Circuit decision in support of the general rule that “when
individuals . . . have objected to enforcement of an arbitrators’ subpoena on grounds of
immateriality of the evidence sought, attorney-client privilege, or confidentiality, courts have
‘denied these motions or objections on the basis that the determination of these matters in the first
- 11 -
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
instance is left to the arbitrators’”); Festus & Helen Stacy Found. v. Merrill Lynch, Pierce Fenner
& Smith, Inc., 432 F. Supp. 2d 1375, 1379-80 (N.D. Ga. 2006) (observing in a Section 7 proceeding
that “the Sixth Circuit Court of Appeals held that it was error for the district court to determine the
subpoenaed materials’ relevance in the first instance because that matter should be left to the
arbitration panel” and referring materiality questions to the arbitration panel).
We further note that two of our sister circuits have rejected similar invitations to impose
such an obligation on district courts. The Eighth Circuit reasoned that requiring district courts to
independently assess the materiality of an arbitration panel’s subpoenaed information would be
“antithetical to the well-recognized federal policy favoring arbitration[] and compromises the
panel’s presumed expertise in the matter at hand.” In re Sec. Life Ins. Co. of Am., 228 F.3d 865,
871 (8th Cir. 2000). The Second Circuit rejected the argument that section 7 “impose[s] Rule 45’s
obligations on district courts in proceedings to enforce arbitration summonses under section 7 of
the FAA,” finding no support in either 9 U.S.C. § 7 or Federal Rule of Civil Procedure 45.
Washington Nat’l Ins. Co, 958 F.3d at 138. The court added that such an interpretation “does not
square with the ‘strong federal policy favoring arbitration as an alternative means of dispute
resolution’ that is embedded in and furthered by the FAA.” Id. We agree.
G. Attorneys’ Fees
Finally, Symetra requests that this court award it reasonable attorneys’ fees under Federal
Rule of Appellate Procedure 38, which allows a court of appeals to award appellees “just damages
and single or double costs” in a frivolous appeal. Although it maintains that all ASR’s claims are
without merit, Symetra asserts that three arguments raised by ASR before this court are especially
frivolous: (1) ASR’s objection to the District Court’s subject matter jurisdiction, (2) ASR’s
insistence that the subpoena is an “impermissible discovery subpoena,” and (3) ASR’s continued
- 12 -
Case No. 21-2742, Symetra Life Ins. Co. v. Admin. Sys. Research Corp.
assertion that judicial or collateral estoppel bars Symetra from arguing that venue was proper in
the Western District of Michigan.
In determining whether an appeal is frivolous, we look to the dictionary definition—i.e.,
“one in which no justiciable question has been presented and appeal is readily recognizable as
devoid of merit in that there is little prospect that it can ever succeed.” See Wilton Corp. v. Ashland
Castings Corp., 188 F.3d 670, 676 (6th Cir. 1999) (citing BLACK’S LAW DICTIONARY (6th ed.
1990)). Accordingly, we have previously held that sanctions may be imposed where the issues on
appeal were “already clearly resolved,” Martin v. Comm’r of Internal Revenue, 756 F.2d 38, 41
(6th Cir. 1985); where the appeal was pursued with an appearance or motivation of “delay,
harassment, or other improper purposes,” Dallo v. INS, 765 F.2d 581, 589 (6th Cir. 1985)
(quotations omitted); where the appeal was “obviously without merit,” id.; and where “the appeal
was prosecuted with no reasonable expectation of altering the district court’s judgment and for
purposes of delay or harassment or out of sheer obstinacy,” Allinder v. Inter-City Prods. Corp.
(USA), 152 F.3d 544, 552 (6th Cir. 1998), cert. denied, 525 U.S. 1178 (1999) (quoting Reid v.
United States, 715 F.2d 1148, 1155 (7th Cir. 1983)).
Although ASR appears to have employed a “kitchen sink” strategy in this appeal, nothing
suggests an improper purpose underlies its rigorous pursuit of review and relief. Nor are its
arguments—though ultimately unpersuasive—so frivolous as to warrant sanctions.
Thus, we DENY Symetra’s motion for attorneys’ fees, and we AFFIRM the district court.
- 13 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482107/ | BLD-155 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1345
___________
JAMES A. MAPP, JR., a/k/a James A. Thomas,
Appellant
v.
JEFFREY W. BULLOCK, Secretary of State of Delaware; DELAWARE BOARD OF
PARDONS MEMBERS
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D. Del. Civil Action No. 1-20-cv-01181)
District Judge: Honorable Maryellen Noreika
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 19, 2022
1
Before: MCKEE , GREENAWAY, JR. and PORTER, Circuit Judges
(Opinion filed: November 7, 2022)
_________
OPINION*
_________
PER CURIAM
1
Judge McKee assumed senior status on October 21, 2022.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
James Mapp, Jr., proceeding pro se, appeals orders of the United States District
Court for the District of Delaware dismissing his civil rights action and denying his
motions for reconsideration and recusal. For the reasons that follow, we will summarily
affirm the judgment of the District Court.
In 1993, Mapp pleaded guilty in Delaware state court to charges of first and
second degree unlawful sexual intercourse. He was sentenced to life plus twenty years in
prison. In 2016, the Delaware Board of Pardons denied Mapp’s application for a
commutation of his sentence. It stated that his crime was extremely violent and heinous
and that he should serve substantially more years in prison. The Board also noted, among
other things, that Mapp needed more programming because he had no insight as to how
an armed robbery turned into the extremely violent kidnapping and rape of a young man.
The Board denied another application by Mapp for a commutation in 2020. It
stated that Mapp should serve more of his sentence and continue to show that he is
capable of maintaining good behavior. Similar to its prior decision, the Board urged
Mapp to continue to comply with the prison’s rules and to utilize programming and work
opportunities. It noted that cooperation and furthering his personal growth would
improve his chances of showing that he should be considered for a commutation. Mapp
was eligible to reapply in 15 months.
constitute binding precedent.
2
Mapp filed a complaint in the District Court against the Secretary of the State of
Delaware and other defendants pursuant to 42 U.S.C. § 1983 and § 1985. He alleged that
he had completed sex offender treatment eight times, that he had been the inmate
facilitator in rehabilitation programs for 15 years, and that he had helped other inmates
accept responsibility for their crimes. Mapp averred that since 2010 the Board had
commuted the sentences of more than 20 sex offenders who had charges similar to his
and who had completed fewer programs. He claimed a violation of his Fourteenth
Amendment right to equal protection and sought damages and other relief.
The District Court dismissed Mapp’s complaint as legally frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(i) because he had not identified any similarly
situated inmates who were treated differently from him. It ruled that amendment of the
complaint would be futile. Thereafter, the District Court denied Mapp’s motion pursuant
to Federal Rule of Civil Procedure 60(b)(3), his revised motion to reopen his case, and
his request for recusal.2 This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the dismissal of a complaint pursuant to § 1915(e)(2) and § 1915A. Dooley v.
Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). We review the denial of Mapp’s motions for
2
Mapp’s first motion cited Rule 60(b)(3), which affords relief for fraud. Mapp, however,
did not seek relief on this basis. We treat this filing as a timely motion for
reconsideration. See Ahmed v. Dragovich, 297 F.3d 201, 208 (3d Cir. 2002) (noting a
court may recharacterize a post-judgment motion to match the substance of the requested
relief).
3
abuse of discretion. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per
curiam) (motion for reconsideration); Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir.
2006) (per curiam) (recusal motion).
The District Court did not err in dismissing Mapp’s complaint. Our rationale,
however, differs from that of the District Court. See TD Bank N.A. v. Hill, 928 F.3d
259, 270 (3d Cir. 2019) (stating court of appeals may affirm on any basis supported by
the record). Although Mapp did not seek release from prison in his complaint, success on
his equal protection claim would mean that he should be released. As noted above, Mapp
claims that the Board should have commuted his sentence based on the commutations
granted to other sex offenders. He must raise this claim in a habeas proceeding. It is not
cognizable under § 1983. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (stating a
§ 1983 action is barred if success would necessarily establish the invalidity of
confinement).
We also conclude that the District Court did not abuse its discretion in denying
Mapp’s subsequent motions. Because Mapp’s equal protection claim is not cognizable,
his contention that the District Court should have allowed him to amend his complaint as
to this claim is without merit. In his revised motion for reconsideration, Mapp claims a
violation of his due process rights based on the denial of a commutation. To the extent
this claim is cognizable, he did not raise it in his complaint and thus no relief was due.
See Howard Hess Dental Lab’ys., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir.
4
2010) (“‘The purpose of a motion for reconsideration . . . is to correct manifest errors of
law or fact or to present newly discovered evidence.’”) (citations omitted).3 Finally, for
the reasons stated by the District Court, it did not err in denying Mapp’s request for
recusal.
Accordingly, because this appeal does not raise a substantial question, we will
summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; 3d Cir.
I.O.P. 10.6.
3
Even if we were to consider Mapp’s motion as one for relief under Rule 60(b), Mapp
did not show the requisite extraordinary circumstances to satisfy the catch-all provision,
the only potentially applicable ground for relief. See Cox v. Horn, 757 F.3d 113, 122 (3d
Cir. 2014).
5 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485319/ | OPINION OF THE COURT
MORROW, Chief Judge.
Faimalo filed his application with the Registrar of Titles to; have certain land in the Village of Pavaiai registered as *238his individually-owned property. Muagututia Faatamala filed an objection to the proposed registration claiming that the land was the communal family land of the Muagututia Family. Faimalo filed a survey of the property proposed to be registered with his application. The Court viewed the land in the presence of the parties on the day preceding the hearing.
This case arose in this way: There was a church dedication in Pavaiai in 1960. The Faimalo Family had many aiga from various places in both American and Western Samoa who expected to attend the dedication. Under Samoan customs they would be the guests of the Faimalo Family during the dedication. The Faimalo Family did not have the money necessary to provide the entertainment for the guests. Through Faimalo the family made arrangements with Otto Haleek whereby Otto would furnish food and other necessities for the entertainment to the value of $500.00, taking back as security an oral mortgage on the land sought to be registered. There was no expectation that the loan would be paid off with money. Instead, Faimalo was to get the land registered and then convey it to Otto in satisfaction of the debt. If Faimalo could get the land registered as his individually-owned property, it would not be necessary for him to get the consent of the family to the conveyance. On the other hand, if it should be registered as communal family land, not only would the consent of the family be required but the conveyance would have to be submitted to the Land Commission (See Sec. 1281 of the A. S. Code) for its recommendation to the Governor, and the Governor would have to approve the conveyance in order to give it validity. See Sec. 1282 of the A. S. Code. Communal family land is owned by the family, not the matai.
In preparation for the conveyance to Otto, Faimalo had the land surveyed and offered it for registration. Otto wanted the boundary on the Fagatogo side of the land to be *239conveyed to run “straight back” (as the witnesses said) from the Fagatogo-Leone highway adjoining the land on the east. In order to accomplish this desire of Otto, it was necessary to survey in a part of the adjoining land of Leomiti on the north, which was done, apparently, with the approval of the Leomiti.
Faimalo, who is 83 years old, testified that he and his father Alaia cleared the surveyed tract from the virgin bush before the Government was established in 1900; that the Faimalo Family had put in plantations on it, built houses on it, and occupied it until a short time ago when, at the request of the Pavaiai Village Council, Faimalo gave permission to the village to use the land for school purposes. There are several school buildings on the land at the present time which the judges saw when they viewed the land prior to the hearing.
Witnesses for Muagututia Faatamala testified that the land was cleared by Muagututia Tuvale, a brother of Faimalo, and that Muagututia Family members put in plantations on it, put up houses on it, and occupied it for many years, practically up to the time the village began to use it for school purposes. A number of witnesses for Muagututia Faatamala, who were familiar with the land over the years, testified that Faimalo had never had any houses on the surveyed tract and had not occupied it and used it for plantation purposes.
To establish that it was his individually-owned land and not communal land of the Faimalo Family, Faimalo relied upon the decision in the case of Amituanai et al. v. Uo Sopoaga, No. 18-1907, decided on May 13, 1911. In that case, Uo Sopoaga had surveyed a tract of land in the vicinity of Pavaiai which he called Olovalu. The surveyed land, according to the survey filed in the court record of the case, shows that the claimants to the surveyed land were Galoia, Toilolo, Muagututia, and Leatumauga.
*240The Court in Case No. 18-1907 made the following order:
“Let a decree therefore issue vesting the title of the lands in dispute in plaintiffs. The plaintiffs are advised to resurvey the property and present a proper plan showing the lands of each plaintiff to this Court for confirmation.”
Amituanai was one of the plaintiffs. Faimalo claims that the surveyed tract came to him as an individual through a series of conveyances, beginning with Amituanai. However, such testimony means nothing, for there was no showing that there was a resurvey and that the Court in the No. 18-1907 case ever confirmed the title to any particular part of Olovalu in Amituanai. Furthermore, these so-called conveyances, if there were such, were obviously oral. Furthermore, such testimony, if true, would indicate that Alaia and Faimalo did not clear the land from the bush. It would indicate, instead, that it was cleared by Amituanai people.
Faimalo filed a war damage claim on the disputed land. In the claim he described himself as the owner in his capacity as a matai. In other words, he claimed that it was the communal land of the Faimalo Family, and not his individually-owned land. There was no Muagututia from 1935 to 1960, so, of course, Faimalo alone filed the claim.
The testimony in this case convinces the Court that the Faimalo Family and the Muagututia Families are very closely connected; that these two families have a number of common members. At least two of the five Muagututias were brothers of Faimalo, i.e. Muagututia Tuvale and Muagututia Tatupu. We believe from the evidence that members of both families have at various times occupied this land, had houses on it, and had plantations on it.
We believe from the evidence that the land in dispute was mostly cleared by Muagututia Tuvale but that some *241Faimalo people also had a hand in the clearing. Chief Tuanaitau testified that Muagututia and Faimalo are lesser titles in the Tuanaitau Family. We have already said that we are convinced from the evidence that the two families are connected, and the testimony of Tuanaitau bears that out as well as the fact that two Muagututias were brothers of Faimalo. Sa’s husband (she is the daughter of Muagututia Tuvale) was the head carpenter in putting up Faimalo’s guest house. It is not necessary for us to set out all the evidence showing a connection between these two families.
It is our conclusion from the evidence that the surveyed land (excluding the Leomiti communal land surveyed in at the request of Otto) is communal family land and that such communal family land is the jointly-owned property of the Faimalo and Muagututia Families of Pavaiai, and that such land is not the individually-owned land of Faimalo.
However, we cannot order this land to be registered in this proceeding since a part of Leomiti communal family land is included in the survey.
Section 905 of the A. S. Code provides that:
“No title to land shall be registered unless the Registrar of Titles is satisfied that there is no conflicting claim thereto and unless the description clearly identifies the boundaries of the land by metes and bounds (emphasis ours).”
We know from the evidence that some Leomiti communal land was included in the survey on the Fagatogo side. However, when that land is excluded from the survey, as it must be, the true boundaries of the surveyed Muagututia and Faimalo communal land on the Fagatogo side are not described by metes and bounds.
If we were to order the surveyed tract to be registered, we would be conveying some of the Leomiti communal *242family land to the Muagututia and Faimalo titles in violation of Sections 1281 and 1282 of the Code. Section 1282 requires a conveyance of communal family land to be approved by the Governor after (pursuant to Sec. 1281) it has been considered by the Land Commission and the Commission has made a recommendation to the Governor “respecting the approval or disapproval” of the conveyance. This Court cannot, by judicial edict, take a part of the Leomiti communal family land and hand it over to the Muagututia and Faimalo families. The application of Faimalo to register the surveyed land as his individually-owned land should be disapproved.
ORDER
Accordingly, it is ORDERED that the application of Faimalo S. to register the land Laloata in the Village of Pavaiai as his individually-owned land be and the same is hereby disapproved. The Registrar of Titles will be advised of this order.
Costs in the sum of $50.00 are hereby assessed against Faimalo S., the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485321/ | OPINION OF THE COURT
MORROW, Chief Judge.
Tuiafono T. of Afono filed his application with the Registrar of Titles .to be registered as the holder of the matai name Tela attached to the Village of Afono. Tagoai and Panini Tagoai, both of Tula, each filed an objection to the proposed registration, each of them becoming a candidate for the name. Hence, this litigation. See Section 932 of the A. S. Code.
Prior to the hearing, Tagoai withdrew his objection and ceased to be a candidate for the name and a party in the case.
Section 926 of the A. S. Code, as amended, prescribes the qualifications for holding a matai name or title. The evidence established that each of the two remaining candidates, viz., Panini Tagoai and Tuiafono T., possesses those qualifications and is, therefore, eligible for registration as the holder of a matai name or title.
Section 933 of the A. S. Code as amended prescribes the law which the Court shall follow in determining which one of opposing candidates for a matai name or title shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality and capacity for leadership of the candidates;
*254(d) The value of the holder of the matai name to the Government of American Samoa.”
Panini and Tuiafono T. filed their pedigrees with the Court, Panini claiming to be the great-grandson of Tela Salipopo while Tuiafono T. claimed to be the great-grandson of Tela Kuka. Panini testified that, according to the tradition in his family, there never had been a Tela Kuka and that Tuiafono had no Tela blood in his veins. Tuiafono testified that according to family tradition Salipopo was never a Tela and that Panini had no Tela blood in his veins. Sua and Gaono, both old men of Afono, testified that they had seen Salipopo but that he had never held the Tela title. Considering the evidence as a whole, we think the weight of evidence is to the effect that both Panini and Tuiafono have Tela blood in their veins, but that Tuiafono has more Tela blood than Panini. Despite the conflict in the testimony, it is our conclusion that Tuiafono prevails over Panini on the issue of hereditary right.
Panini and Tuiafono each filed a petition with the Court purporting to be signed by those blood members of the Tela Family supporting his candidacy. There were 970 signers on the petition for Panini and 354 on the petition for Tuiafono. Each candidate testified that all of the signers on the petition for him were blood members of the Tela Family.
Tuiafono claimed that a total of 929 of the 970 signers on the petition for Panini were not blood members of the Tela Family. He admitted that 41 were blood members. There were 727 on the petition who claimed descent from a Tela Leo’o and 202 who claimed descent from a Tela Sualevai. Tuiafono testified that according to his family tradition there had never been a Tela Leo’o nor a Tela Sualevai, and that consequently the above 929 (727 + 202) were not blood members. He also claimed that 31 signatures on P.' 13 of the petition for Panini were forged, having been written by the same hand. However, these 31 *255are listed as descended from Tela Sualevai and are included in the above 202. In a few cases the same person had signed twice on Panini’s petition. Also in a number of cases (less than 10 were called to our attention) both husband and wife had signed. Since it is the custom for a Samoan to marry outside his clan, it would follow, as a general proposition, that if the husband was a blood member of the Tela clan his wife (although she may have signed with her husband) would not be a blood member. Of course, a husband might be a descendant of one Tela and the wife a descendant of another Tela who had no blood connection with the first Tela. In rare cases the parties having no common blood might marry and both be blood members of the family. However, we think, from the evidence, that in a number of the instances where both husband and wife signed Panini’s petition that while one may have been a blood member the other was not.
Panini objected to a total of 334 out of the 354 signers on the petition for Tuiafono, admitting that only 20 were blood members of the family. Of the 334 signers objected to by Panini, some claimed descent from a Tela Malosi, some from a Tela Kuka, some from a Tela Malaga, and the remainder from a Tela Veve. Panini testified that according to family tradition there never had been a Tela Malosi, a Tela Kuka, a Tela Malaga or a Tela Veve, and that, therefore, the above 334 were not blood members.
Panini listed 10 former holders of the title Tela in his pedigree in the following order: Tela (the founder of the title Tela in Afono), Tela Siafia, Tela Sualevai, Tela Taeolevai, Tela Leo’o, Tela Salipopo, Tela Moke, Tela Ifoese, Tela Leuea, and Tela Ioka. Tuiafono listed nine former holders of the title in the following order: Tela Malosi, Tela Malaga, Tela Siafia, Tela Moke, Tela Kuka, Tela Veve, Tela Ifoese, Tela Leuea, and Tela Ioka. An examination of these two lists reveals a considerable *256divergence as to who the early holders of the title were. Allowing 20 years, on the average, for each Tela to hold the title, it would follow that the first Tela in Panini’s list lived about 200 years ago, while the first one in Tuiafono’s list would have lived about 180 years ago. Needless to say, tradition handed down by word of mouth (and most family tradition, particularly that antedating 1900 when the Government was established and almost nobody could write) over a period of 100 years or 200 years is subject to great error. If A tells B a story and B tells the same story to C 25 years later and C to D 25 years later and D to E 25 ■years later and E to F 25 years later and F to G 25 years later and G to H 25 years later and A could be brought back to life and H should tell him what he had heard from G, in many cases A would not recognize it as the same story he had told B 125 years before. This simple fact explains why one member of a family who has learned family tradition from one source may testify to an entirely different family tradition from that which will be testified to by another member of the same family who has learned the family tradition from another source. Both may be equally honest but may tell different stories.
In weighing testimony, as we must do in this case, we think positive testimony is entitled to more weight than negative testimony, all other things being equal.
“It is ... a long-recognized general rule of evidence that all other things being equal, positive evidence is stronger than negative evidence. The rule is that where witnesses are of equal credibility and there are no extraneous circumstances affecting the weight of their testimony, testimony that a certain event happened or that the witness saw or heard something at a particular time or place is of more weight and value as evidence than testimony of other witnesses, with the same opportunities, who state that they did not see or hear anything at that time or place.” 20 American Jurisprudence 1037.
We think that the positive testimony of Panini that there was a Tela Leo’o is of more weight than the negative testi*257mony of Tuiafono that there was not. We think both of these witnesses are of equal credibility. And we think that .the positive testimony of Tuiafono that there was a Tela Malosi, a Tela Malaga, a Tela Kuka and a Tela Yeve is of more weight than the negative testimony of Panini that no such Telas ever existed.
r After weighing the testimony carefully, it is our conclusion that there are more blood members of the Tela Family who wish Panini to hold the Tela title than there are who wish Tuiafono to hold it. We, therefore, find that Panini prevails over Tuiafono on the issue of the wish of the majority or plurality of those members of the family related by blood to the title.
Tuiafono is 41 years of age. He completed seven grades in school. He speaks very little English. He served as a Samoan Marine in World War II. After the war, Tuiafono attended the vocational school established by the United States for World War II veterans in Utulei. He graduated from the Agricultural Division of the school. He then returned to Afono and has worked on family plantations ever since. He also served his matai. Since the death of the last Tela, he has furnished the monotaga for the Tela Family in Afono. He has had no regular job since graduating from the vocational school other than working on family plantations in Afono and rendering service to the matai. He is a leading young man in the Tela Family and also in the la Family. He has been a choir leader for 19 years.
■ Tuiafono is a carpenter. Last year he and five helpers built two Samoan houses. They received a cash contribution of $150 for building one house and $280 for building the other one. The six were furnished with food and tobacco while engaged in the construction of the houses. In addition to the cash, they were also given some fine mats. The mats and cash were divided among the six. Tuiafono testified that he sold taro, taamu, bananas, and cocoa from *258his plantations for which he received a total of approximately $370.00 in 1961. He also testified that he sold about $50 worth of fish in 1961. He did not keep track of the figures, and the $370 and $50 are just estimates. He sells a pig occasionally as well as a few chickens. Tuiafono has a small boat which he permits the people of Afono to use. It is also used by representatives of the Department of Medical Services visiting Afono to render medical aid to people in Afono as well as other people visiting Afono by sea. Tuiafono’s two sisters in the United States and his aunt, who is a nurse, give him money to be used by him for the family. His wife, who is also a nurse, gives him money for the same purpose.
Panini is 34 years of age. He graduated from the Samoan High School in 1951. He became a teacher in 1952 and has continued to teach ever since. He has attended teachers’ institutes each year, beginning in 1952. At present Panini is the principal of the Alao-Tula School. He has six teachers who work under his supervision. There are 168 pupils in his school. Panini has plantations in Tula. While he lives in the Tagoai Family in Tula (his uncle is presently the Tagoai), he has nevertheless rendered service to the Tela title. Panini’s salary as a teacher is $1364 a year. He received approximately $40 last year from the sale of mats. He has brothers and sisters, some of whom have jobs in the United States, while others have jobs in American Samoa. They give Panini money to be used for the benefit of the Tagoai Family. Panini speaks English quite well.
During the course of the hearing, which lasted almost two days, the judges had an excellent opportunity to observe the personalities of both candidates.
It is our conclusion from our observation of the candidates and the evidence that Panini prevails over *259Tuiafono on the issue of forcefulness, character, personality, and capacity for leadership, and we so find.
The value of the holder of a matai title to the Government depends to a considerable degree upon his capacity for leadership. In this case, Panini has demonstrated his capacity for leadership by the fact that he has procured an education, become a teacher, and been promoted in the Department of Education to the principalship of the Alao-Tula School, with six teachers and 168 pupils. We think from the evidence that he will be of considerable value to the Government as a member of the Department of Education. He has much more education than Tuiafono. He speaks English well and will be able to represent his family well in any dealings it may have with the Government. It is our conclusion from the evidence that Panini prevails over Tuiafono on the issue of the value of the holder of the matai name to the Government of American Samoa, and we so find.
Since we have found that Panini prevails over Tuiafono on the second, third, and fourth issues, while Tuiafono prevails over Panini on the first issue only, it follows that we must award the title Tela to Panini.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Panini Tagoai shall be registered as the holder of the matai name Tela attached to the Village of Afono.
Costs in the sum of $40.00 are hereby assessed against Tuiafono T., the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485322/ | OPINION OF THE COURT
MORROW, Chief Judge.
Tago filed his application with the Registrar of Titles to have certain land designated as Asofitu in the Village of Nu’uuli registered as the communal family land of the Tago Family. A survey of the land proposed to be registered accompanied the application. The land is. on the mountain side of the main highway going from Fagatogo to Leone. The land offered for registration is in fact only a part of the larger tract of land generally known as Asofitu.
Maluia of Nu’uuli filed an objection to the proposed registration claiming that the land involved was the communal property of the Maluia Family. Prior to the hearing, the Court viewed the property in the presence of both parties.
*261Tago, who is 83 years old, claimed on the witness stand that the land had been cleared from the bush by the Tago people before the Government was established in 1900, and that he had helped with the clearing. He further testified that after the clearing was accomplished the Tago people put in plantations on the land and that the Tago people have been in open, notorious, continuous, exclusive, and peaceable possession of the property from the time of the clearing up to the present time, claiming it as the communal property of the Tago title. lose and Fui live on the land. Both are Tago Family members and render service to Tago. lose has lived on the land since 1941, Fui since about 1954.
Maluia, who is 62 years old, testified that the Maluia people cleared the land from the bush and put in plantations on it, and that about 1906 or 1907 Maluia Akeimo gave the land to Tago Sifaga to serve the Tago title. Maluia further testified that he saw it cleared when he was a small boy. If he is correct as to seeing it cleared, it was necessarily cleared after the Government was established in 1900, since Maluia is only 62 years old. Maluia testified that he was six or seven years old when the gift was made. Maluia also claimed that the land was given to Tago Sifaga for his personal use. Tago Sifaga died in 1951 and was succeeded in that year by Tago Leti, the present Tago.
We think that the testimony of Maluia that the land was given to Tago Sifaga to serve the Tago title is somewhat inconsistent with his testimony that it was given to Tago Sifaga for his personal use. We furthermore think that Maluia was so young in 1906 or 1907 (he was only six or seven years old then) when the gift was made that he would have no knowledge about the nature of the gift, and that his testimony is based purely on hearsay 55 or 56 years after the gift was made, and is, therefore, not very reliable.
*262Regardless of whether the Tago people first cleared the land and became owners of it through first occupancy accompanied by a claim of ownership (see Faoliu Lualemana v. Filo, No. 55-1961, H.C. of Am. Samoa, in which the Court pointed out that “The Samoan people acquired title to their lands through first occupancy coupled with a claim of ownership.”) or whether it was given to Tago Sifaga by Maluia Akeimo in 1906 or 1907, as Maluia testified, we are satisfied from the evidence that it is Tago communal family land. Furthermore, the Tago people have been in the open, notorious, peaceable, exclusive, and continuous possession of the land, claiming it as Tago communal family land for more than 20 years. Under these circumstances, their possession has been adverse to any other claimant and would extinguish the claim of any other claimant. Section 907(2) of the American Samoan Code provides that the “statutory period governing acquisition of title by adverse possession” shall be 20 years. The effect of the running of the statutory period of 20 years is to divest .the owner of his title and to invest the adverse possessor with the title. 2 Corpus Juris Secundum 803. This same principle was approved by the Supreme Court of the United States in Maxwell Land, Grant Co. v. Dawson, 151 U.S. 586, 607.
It is our conclusion from the evidence that this land is Tago communal family land.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that the land Asofitu as shown on the survey accompanying the application to register the same as the communal family land of the Tago Family of Nu’uuli shall be registered as the communal family land of the Tago Family of Nu’uuli.
*263The Registrar of Titles will be advised of this decree. Costs in the sum of $9.00 are hereby assessed against Maluia, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485324/ | OPINION OF THE COURT
MORROW, Chief Judge.
Ene Tofili filed his application with the Registrar of Ti7 ties to be registered as the holder of the matai name Tauiliili, attached to the Village of Fitiuta, Manua.
*275Lagai, Iosia, Failauga and Ale each filed an objection to the proposed registration, each of them becoming a candidate for the name. Hence, this litigation. See Section 932 of the A. S. Code. Each objector claimed that he had the right to be registered as the holder of the name instead of the applicant.
Section 926 of the A. S. Code, as amended, prescribes the qualifications that a person must have in order to be registered as the holder of a matai name. The evidence established that the applicant and each of the objectors possesses these qualifications and is, therefore, eligible to be registered as the holder of a matai name.
Section 933 of the A. S. Code as amended prescribes the law which the Court shall follow in determining which one of the opposing candidates for a matai name shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
Each of the five candidates filed a statement of his pedigree with the Court and testified as to his blood relationship to the Tauiliili name. It is our conclusion from the evidence that Iosia has Vi6 Tauiliili blood, having Vis through his father and 4Ii6 through his mother, that Lagai has Vs blood, Failauga Vs blood, Ale Vi6 and Ene Vi6. It follows, and we so find, that Iosia ranks first on the issue of hereditary right; that Lagai and Failauga each *276rank second and equally, and that Ale and Ene rank third and equally.
Each of the candidates filed a petition with the 'Court purporting to be signed by those blood members of the Tauiliili Family supporting his candidacy for the name. There were 473 signatures on the petition for Ene, 189 on the petition for Failauga, 136 on the petition for Iosia, 135 on the petition for Lagai, and 105 on the petition for Ale. Each of the candidates .testified that all of the signers on his petition were blood members of the Tauiliili Family. Ene objected to 24 names on Lagai’s petition, claiming that most of the 24 were not blood members. Iosia objected to 116 on Lagai’s petition. Failauga objected to all 135 signers on Lagai’s petition. Ale objected to only two on Lagai’s petition, one on the ground that one name was printed, the other on the ground that the signer did not state on the petition the name of the Tauiliili from whom he claimed descent. Ale admitted that 133 of the 135 on Lagai’s petition are blood members.
Ene objected to 45 names on Iosia’s petition, 31 on the ground that they were not blood members and 14 on the ground that their names were written twice; also that included in the 14 were three forgeries. Lagai objected to 31 names on Iosia’s petition, claiming that 14 has [sic] no blood, that two were under-age and that 15 names were written twice. Failauga objected to 31 names on Iosia’s petition on the ground, as we understood it, that they did not sign for him (Failauga), although he said all 136 on losia’s list were blood members. Ale objected to 19 names on Iosia’s petition, claiming that nine had no blood, three were under-age, that six names were forged, and that one alleged signer was in Honolulu and could not have signed Iosia’s petition in American Samoa. Ale admitted that the remaining 117 (136 less 19) on Iosia’s petition were blood members of the Tauiliili Family.
*277Ene objected to 28 names on Failauga’s petition, 26 on the ground that they were not blood members and two on the ground that their names were written twice. Lagai objected to 84 names on Failauga’s petition, 72 on the ground that they were not blood members and 12 on the ground that 12 were written twice. Iosia objected to 70 names on Failauga’s petition, 61 on the ground that they were not blood members, five on the ground that their names were forged and four because their names were printed. He admitted that the remaining 119 names were those of blood members of the family. Ale objected to four names on Failauga’s petition, three on the ground that they were not blood members of the Tauiliili Family and one because it was printed. He testified that the other 185 are blood members.
Ene objected to two names on Ale’s petition on the ground that they were not blood members and eight names on the ground that they were written twice. He had no objection to the other 95 names on Ale’s petition. Lagai objected to 19 names on Ale’s petition, 17 on the ground that they were not blood members and that two names were written twice. Iosia objected to 67 on Ale’s petition, claiming that 50 were not blood members, that 16 names were forged and one printed. Failauga testified that 31 on Ale’s petition had no Tauiliili blood. He admitted that the other 74 were blood members of the family.
Lagai objected to a total of 375 of the 473 names on Ene’s petition, claiming that 305 had no Tauiliili blood, that 12 names were written twice, 28 signers did not indicate the date on which they signed, and that 30 did not name the Tauiliili from whom they claimed descent. Iosia objected to 436 names on Ene’s petition, claiming that 291 had no Tauiliili blood, that 65 signatures were forged, that seven names were printed and that an additional 73 had no blood because the Tauiliili from whom they claimed de*278scent never existed. Iosia admitted that 37 on Ene’s petition had Tauiliili blood. Failauga testified that 405 on Ene’s petition were blood members but that 65 were not. He also claimed that three names on Ene’s petition were written twice. Ale objected to 42 of the 473 names on Ene’s petition claiming that 11 had no Tauiliili blood, that four names were forged and that 21 had signed without indicating the date of signing. Ale admitted that 431 on Ene’s petition were blood members of the family.
It is apparent to us from the foregoing that there is tremendous conflict in the evidence as to who are blood members of the family and who are not. All of the witnesses were blood members of the family and claimed to know its blood membership.
We have considered all of the testimony and examined each of the petitions, all of which were introduced in evidence as exhibits. It is apparent to anyone examining the petitions that there are irregularities in all of them. For example, the ages of six children have been raised to 14 years on Iosia’s petition, and in some instances it is clear that there are groups of names, each group in the same handwriting, thereby showing forgery. In fact, Iosia admitted some forgeries on his petition, but it is clear that there are others which he did not admit. And what we have said about forgeries on Iosia’s petition can be said to a considerable extent about some of the other petitions. And we remark that we have no doubt whatever that every petition contains names of people who are not blood members of the Tauiliili Family.
However, after considering all of the testimony as well as what the petitions themselves show, we conclude that Ene ranks first on the issue of the wish of the majority or plurality of those members of the family related by blood to the title. We note that Ene’s petition with 473 signers has more than twice as many signatures on it as has Fai*279lauga’s with 189, more than three times as many as Iosia’s with 136, more than three times as many as Lagai’s with 135, and more than four times as many as Ale’s with 105. Ale and Failauga are old men, and they ought to know who are blood members and who are not. As before stated, Failauga testified that 405 on Ene’s petition were blood members while Ale testified that 431 were blood members.
While we believe from the evidence that each petition contains signatures of persons who are not blood members and some contain forgeries and some contain names signed twice, nevertheless, we are convinced that Ene prevails over each of the other candidates on the issue of the wish of the majority or plurality of those members of the family related by blood to the title. While there are some irregularities on Ene’s petition, there are also irregularities in the other petitions, too.
Ene graduated from .the 8th grade in the Marist Brothers School at Leone. He speaks English. He attended two teachers’ institutes and taught school in Fitiuta for two years after his graduation from the Marist Brothers School. He is 48 years old. During the war, he worked as a stevedore. After the war he worked for six years in Shipping and Receiving in the Supply Department. He has worked on Family plantations. Ene was a pulenu’u’s policeman for a year. Presently, he has a position at .the Government Farm near Taputimu. Ene earns $32 every two weeks at the Government Farm. He testified that he got about $200 a month from aiga in the States. Ene also sells some produce including copra from his plantation for which he receives about $75 a month.
Lagai is 50 years old. He completed the 8th grade in the Fitiuta school. He speaks almost no English. He has worked on family plantations in Fitiuta most of his adult life. He has been a matai for about 10 years and testified that the Lagai title is a lesser title in the Tauiliili Family. *280During the war, he worked as a stevedore and also worked in the construction of the bomb shelter in Fagatogo. He was the pulenu’u’s policeman for a year in Fitiuta before he got the Lagai title. Lagai has served in the Legislature, having been elected a member of the House of Representatives. However, he did not introduce any resolution in the Legislature. He was the pulenu’u in Fitiuta, 1958 to 1960. He helps the pulenu’u when guests of honor come to Fitiuta. He testified that he receives about $200 a year from the sale of copra and $300 a year from .the sale of taro, bananas, and mats. He also sells pigs and chickens. He told us that he received about $40 a month from his children who are working.
Iosia is 35 years old. He completed the 8th grade in school and speaks very little English. During the war he worked as a stevedore and also as a carpenter. After the war he went back from Tutuila to Manua and worked on plantations. A little over two-and-one-half years ago he was called to be an elder for the L.D.S. Church in Aua. Upon completion of his pastorate in April of this year, he was honorably released from his duties as pastor and returned to Fitiuta where he now resides, looking after family plantations. While a pastor he did not receive financial help from .the members of his church nor did he borrow from church members. During his pastorate, he supported himself and family by selling produce from his plantations and from woodcraft, his annual income from these two sources being about $600 a year. Iosia is still an elder in the L.D.S. Church but inactive.
Failauga is 63 years old. He attended the faifeau’s school, also Atauloma for five years, then Malua for four years, and then Fagalele three years. He graduated from Malua; also from about the 8th grade at Atauloma. He speaks almost no English. After graduating from Malua he held pastorates in various villages until 1940. It appears *281to us from the evidence that he must have been let out as a pastor. Since 1940 he has not held a pastorate and no village has asked for him as its pastor. He lives in the Taua Family in Fitiuta, where he has worked on family plantations for the last 22 years, i.e., since he quit as a minister. Failauga has five children who are working for the Government. Each of them give him $10 every two-week pay period. He also receives help from a daughter in Honolulu and another in New Guinea. These latter two help him to the extent of about $50 a month. He does very little to help himself, receiving only about $25 a month from the sale of produce from his plantations and about $20 a month from the sale of copra.
Ale is 62 years old. He attended the Marist Brothers School in Leone, completing the 7th but not the 8th grade. He speaks almost no English, saying that his English was “very rusty.” He went back to Fitiuta upon leaving school and has lived there ever since, except during the war when he was foreman of a stevedoring gang in Tutuila. Ale has held the Ale title for 30 years. The Ale title is not a title in the Tauiliili Family. Ale works family plantations. He testified that he receives a total of about $770 a year from the sale of pigs, copra and produce of his plantations. He testified that three of his children helped him financially to the extent of $360 a year each, and that his daughter’s husband, who is a teacher in Papatea Jr. High School in Ta’u, gave him $100 a month. We think that Ale exaggerated his income somewhat, since it appears that his son-in-law’s salary at Papatea is less than $100 a month. Ale has a large palagi house in Fitiuta which is used occasionally for village purposes. It has a water tank attached to it from which villagers frequently get water.
The hearing lasted four days. During that time the judges had an excellent opportunity to observe the personality of each of the five candidates for the title. From the *282evidence and our observations during the hearing, we have concluded that Ene ranks first on the issue of personality, character, forcefulness, and capacity for leadership and that he prevails over each of the other four candidates on this issue.
We have said on more than one occasion that the value of the holder of a matai name to the Government depends to a considerable degree upon his capacity for leadership. Toatolu et al. v. Laumea, No. 51-1961 (H.C. of Am. S.); Suega et al. v. Iosefa F. Sunia, No. 4-1962. The fact is that the impact of Western culture upon the Samoan culture will be much greater during the next 15 years than it has during the past 15 years. A Samoan matai who is able to speak English, other things being equal, will be much better prepared to handle the affairs of his Samoan family when dealing with the Government than will the matai who speaks very little or no English. It is our conclusion from the evidence that Ene prevails over the other candidates on the issue of the value of the matai name to the Government, and we so find. As we have said, Ene speaks English; the other candidates speak very, very little. Ene is able, and has been able, to continue his education through reading American magazines and books printed in English. The others have not.
We have found that Ene prevails over each of the other four candidates on the second, third, and fourth issues, while we have found that Iosia, Lagai and Failauga each prevails over Ene on the first issue of hereditary right, and that Ene ranks equally with Ale on this issue.
In view of our findings that Ene prevails over each of the other four candidates on the second, third, and fourth issues, it follows that Ene should be awarded the title Tauiliili attached to the Village of Eitiuta.
*283DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that Ene Tofili shall be registered as the holder of the title Tauiliili attached to the Village of Fitiuta. The Registrar of Titles will be notified of this decree.
Costs in the sum of $100.00 are hereby assessed against Lagai, Failauga, Iosia Nunu, and Ale Alai, each of them to pay $25.00 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485325/ | OPINION OF THE COURT
MORROW, Chief Justice.
Fuga filed his petition praying for an order requiring the defendant to vacate the land Vaovai in Pago Pago, on which land the defendant has had his home for about 11 years. The defendant entered upon the land Vaovai in 1951 with the express permission of the then Taito who died about a year later. Taito is a chief’s title. There has as yet been no successor to the deceased chief. Shortly after Olive’s entry on the land, he put up a house on it. Some four or five years later Olive tore down this house and put up a palagi house on the spot where the first house stood. At the present time Olive has that palagi house, another smaller palagi house, a Samoan house and a Samoan cook house as well as some plantations on Vaovai.
Just prior to the hearing the Court viewed the land in the presence of both parties and saw the four buildings erected by Olive on it.
It appears to us from the evidence that Taito gave his permission to Olive because of the relationship of Olive’s wife to a member of the Taito Family. Olive rendered service in accordance with Samoan customs to Taito from *285the time of his entry on the land up to the time of Taito’s death in 1952.
It appears to us from the evidence that Taito was the chief and Fuga the talking chief in the Taito-Fuga Family. The two titles are related. Fuga claims that Vaovai is the communal land of the two titles. The children of Taito claim that the Fuga title has its own lands and that the Taito title has its own lands.
We do not consider it necessary for the Court to make a decision as to whether Vaovai is Taito land or Taito-Fuga land. In either case we think that Olive has a right to remain on the land subject to certain conditions.
There is no doubt whatever about the old Taito having given his permission to defendant Olive to occupy and live on Vaovai. It appears to us that Fuga has also given his permission to Olive to occupy and live on it. It is established by the evidence that when Olive had his first palagi house part-way up Fuga objected to its further construction and took the matter to the district governor and that Pogai and Lealofi (members of the Taito Family) represented Olive at the conference with the district governor; that apparently the district governor thought that it was a matter within the Taito-Fuga Family and should be settled by the family; that later Pogai had a conference with Fuga about the dispute and Fuga agreed with Pogai that Olive could continue the construction of his house and use the land.
From this we conclude that Olive, having permission of both the old Taito and the Fuga, should not be required to vacate Vaovai. However, there is the matter of service by Olive to consider. As we have stated, Olive rendered service to the Taito up to the time of Taito’s death. Since that time he has not rendered service to the Taito, Taito up to the present time not having had a successor in title. Shortly after Taito’s death Taito’s children informed Olive that he need not render service to them. Despite this he has *286nevertheless cooperated with them in family matters, and we think in effect rendered service to the Taito Family.
Now it is the Samoan custom if there are two matáis in a family and one of them dies the surviving matai represents the entire family in the village council; also, he receives service not as the surviving matai but rather as a representative of the deceased matai so long as the deceased matai has no successor. In view of this custom, Olive should render service to Fuga as the representative of the deceased Taito. We are well aware that, technically speaking, a deceased person cannot have a representative. However, when there is a meeting of the village council it is the duty of Fuga as the surviving matai in the family to speak for the entire family and in that sense he is representing the deceased Taito who could speak if he were living.
Fuga told the court in effect that if there were a Taito and Olive rendered service to him and not the Fuga, he (Fuga) would not object to Olive’s continuing to occupy the land without rendering service to Fuga.
Olive has expended much money and labor in putting up his houses. He had the permission, as we view the evidence, first of Taito and later of the present Fuga, the two matais in the Taito-Fuga Family, to occupy and use Vaovai.
Olive may well have thought since the Taito children claimed that Vaovai was Taito land and not Taito-Fuga land (and we make no decision as to which it is) that he was under no obligation to render service to Fuga as the representative of the Taito branch of .the family after Taito’s death. We think that Olive may honestly have believed since Taito’s children waived service that he was under no obligation to render service to anyone from the time of Taito’s death until after there should be a new Taito. Olive is not a blood member of the Taito-Fuga Fairi*287ily. There was no evidence that he knew of the relationship between the Fuga and Taito families.
We think that we should dismiss Fuga’s petition. However, we think that Olive should now render service to Fuga as the representative of the Taito branch of the Taito-Fuga Family.
ORDER
Accordingly, it is ORDERED that the plaintiff’s petition be and the same is hereby dismissed without prejudice to Fuga’s instituting another action to evict defendant Olive from Vaovai if Olive does not render service in accordance with Samoan customs to Fuga as the representative of the Taito branch of the Taito-Fuga Family, Fuga being the surviving matai, such service to be discontinued if and when there is a new Taito.
Costs in the sum of $9.50 are hereby assessed, one-half to be paid by Fuga and one-half by Olive, all costs to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485326/ | OPINION OF THE COURT
MORROW, Chief Justice.
Mageo filed his application with the Registrar of Titles to have land described as Fusi in Pago Pago registered as the communal family land of the Mageo Family. The application was accompanied by a survey of the land proposed to be registered.
Lago filed an objection to the proposed registration claiming that Fusi was the communal family land of the Yaivao Family of Pago Pago. Lago was a former holder of the Vaivao title. Fuga Selega likewise filed an objection to the proposed registration claiming that Fusi was the communal family land of the Fuga Family, and Pogai and Faafia also filed an objection claiming that Fusi was the communal family land of the Taito Family. The Government of American Samoa, acting by its Attorney General, filed a petition of intervention in which it was claimed that the title to Fusi was in the Government of American Samoa. We have a case, therefore, in which each of five different parties claims to own the same piece of land in its entirety.
Pogai and Faafia are members of the Taito Family. This family has no matai at the present time, its last matai having died some years ago. His successor in title has not yet been chosen.
At the hearing it appeared that Fusi is a tract of land lying at the headwaters of Pago Pago Bay. The paved *291public highway running around the Bay cuts it in two. Only the part of Fusi lying on the seaside of the highway was included in the survey accompanying Mageo’s application to register, and it is that part only that will be considered for registration.
Hereinafter by Fusi we mean that part of it lying seaward of the highway.
Prior to the hearing the Court viewed Fusi in the presence of all parties including the Attorney General representing the Government of American Samoa.
On September 3, 1900, Commander B. F. Tilley, then Commandant of the U.S. Naval Station, Tutuila, issued “An Ordinance Relating to a Public Highway in Pago Pago” by the terms of which land for a public highway from “Blunt’s Point on the southern side of Pago Pago Harbor extending therefrom towards Observatory Point and around .the Harbor to ‘Breaker’s Point’ on the northern side of said Harbor, along the shore at high-water mark, of a uniform width of fifteen feet distant inland from said shore, and the area of land included in said description is hereby condemned and appropriated for public uses.” This ordinance numbered 15 provided for compensation for the land taken by the Government, claims for compensation to be made within three months from September 3, 1900. On the same day (Sept. 3, 1900) the Commandant issued a “Regulation Concerning the Public Road of Pago Pago as Defined in Ordinance No. 15 of the United States Naval Station, Tutuila,” reading as follows:
“1. It shall be unlawful for any person or persons to erect any fence, wharf, boat house, building’ or other structure whatsoever to seaward of the Public Highway or Road running along high-water mark of the Harbor of Pago Pago as described in Section I of the Ordinance relating to a Public Highway in Pago Pago being number 15 of 1900, without special permission from the Commandant of the United States Naval Station, Tutuila; which permission may or may not be granted upon application of any person *292who must lay before Commandant a written application with plans of any wharf, building or other structure intended to be erected.
“2. Any wharf, fence, building or other structure erected in contravention of this regulation must be removed upon the order of the Commandant at the expense of the person erecting or causing to be erected the same.
“3. Any contravention of this regulation will be punished with a fine not exceeding two hundred dollars exclusive of all costs incurred in the removal of any buildings, wharves or other structures erected contrary to the provisions of this Regulation.
“4. This Regulation shall take effect from and after the date of its publication.
“Published and Exhibited at the Public Office of the Commandant on this third day of September in the year 1900 A.D.
“B. F. TILLEY, Commander, U.S.N. Commandant United States Naval Station, Tutuila.”
This regulation was numbered 15. Section 1291 of the Code of American Samoa, 1949, is derived from Ordinance No. 15 and Regulation No. 16.
It will be noted that by Ordinance 15 the road was to be “of a uniform width of fifteen feet” and it was to be “distant inland from” the shore. It will also be noted that the road was to run “along high-water mark of the Harbor of Pago Pago.”
Black’s Law Dictionary, 4th Ed., defines “along” as “Lengthwise of, implying motion at or near, distinguished from across.” And the Supreme Court of Wisconsin in Misolai v. Wisconsin Power & Light Co., 227 Wis. 83, 277 N.W. 674, 678, said that “Where used in connection with highways along streams, it (the word ‘along’) means within reasonable distance of streams.”
In Stahr v. Carter, 116 Iowa 380, 90 N.W. 64, 65, the Supreme Court of Iowa in construing a statute which authorized the board of supervisors on its own motion to establish a highway along a stream, when it could avoid *293bridging such stream, said, “The word ‘along’ has a somewhat elastic meaning, even when used in its most technical sense, 1 Cent. Die. As used in this statute, it is evidently not to be construed as meaning on the immediate bank of a stream; for such a narrow view of the intent of the legislature would in the majority of cases deprive the statute of all validity and make it a dead and useless part of the law. It should be liberally construed, to carry out its clearly expressed purpose of avoiding expensive bridging; and it is evident that if a highway cannot be established close to the stream and avoid this difficulty, it may be established within a reasonable distance thereof (emphasis ours), if in the vicinity of the stream and still be within the spirit and intent of the statute. Railroad Co. v. Mead, 90 Pa. 454; Pratt v. Railroad Co., 42 No. 505.
We think that “along high-water mark of the Harbor of Pago Pago” in Ordinance No. 15 meant and should be construed to mean within a reasonable distance from the high-water mark, and this particularly in view of the fact that the road was to be “distant inland from” the shore.
Webster’s International Dictionary (2nd Ed.) defines “distant” as meaning “separated; having an intervening-space; at a distance; away. Separated by an interval or by intervals of greater or less regularity.” It is very clear that the road was not to adjoin the shore, but that there was to be land between the road and the shore.
It would be highly impractical to build a highway at an equal distance from the shore at all points. To do so would require the road to follow exactly the windings or curves of the shore. We have indicated that “along the high-water mark” in Ordinance No. 15 meant a reasonable distance from the shore. What would be a reasonable distance at one point might not be a reasonable distance at another point. While the width of the road was set at 15 feet in the *294ordinance, doubtless the reason the distance “inland” was not prescribed was because it was realized that the distance would necessarily vary, just as events proved that it did.
What would be a reasonable distance from the high-water mark at any particular point would depend upon the surrounding circumstances at that point at the time the road should be constructed, which time was obviously around 60 years ago and just a short time after the Government was established following the raising of the U.S. Flag on Tutuila on April 17, 1900. Obviously if a little, flat peninsula extended out into the sea, the road would cut across the peninsula and the distance between the shore and the road would be greater at that point than it would be at a point where there was no peninsula. In other words, a reasonable distance would be greater at the peninsula than it would be at a point where there was no peninsula.
As stated before, the Court viewed Fusi in the presence of all parties shortly prior to the hearing. We saw the road beside Fusi and the surrounding area. We saw the present large stream running by Fusi on the southeast side. The evidence clearly established that not so very many years ago and long after the Government was established there was a second stream that crossed a part of Fusi. The average rainfall here in American Samoa is around 200 inches a year. When it rains hard, the present stream running down from the mountain into Pago Pago carries down rock, dirt, and debris which is deposited in the bay, and the second stream did the same. This rock, dirt, and debris when it struck the bay without current, other than tidal, was deposited by the two streams in the bay and Fusi naturally was increased in size somewhat by accretions. There was also evidence that parts of Fusi were swampy at one time. While it was claimed that the word “Fusi” in *295Samoan has other meanings, the fact is that “Fusi” also means “swampy”.
In the olden days before the present highway was constructed, there was a footpath by Fusi which people used in going from villages on the Fagatogo side of the bay to villages on the other side. On the northeast end of Fusi is the Poyer School building. While there was some conflict in the evidence, we believe that the weight of evidence is clearly to the effect that it was built by the military authorities during World War II upon filled-in land. It was used by the U.S. Marines as a mess hall during the war.
The above-mentioned footpath was by the beach, but when the tide was low people using it walked between the high-water mark and the low-water mark a part of the way; also at one point on the north there were logs so pedestrians could keep out of the water. This would indicate that the area was swampy.
The people of the Village of Pago Pago built a village road around the headwaters of Pago Pago Bay. This road was at a distance inland from the shore. The weight of evidence in our opinion clearly establishes that when the present highway was originally built after the promulgation of Ordinance 15 on September 3, 1900, it was built on the Pago Village road. And the weight of evidence is clearly to the effect that the present paved highway follows the original highway; i.e., that the present paved highway is where the original highway constructed in accordance with Ordinance No. 15 and Regulation 16 was located.
We think (and we are the judges of the fact as well as the law), in view of the evidence, that the original highway constructed by the Government adjoining Fusi, in view of the surrounding circumstances, was built within a reasonable distance of the high-water mark. The fact that it followed the village road indicates this.
*296In view of the meaning of the word “along” as used in Ordinance No. 15, we think that not only did the Government condemn the land on which the original highway was actually constructed but that it also condemned the part of Fusi between the highway and the sea. In other words, the Government became the owner of the land on which the original highway was constructed and, in addition, the land lying between the highway and the high-water mark along the shore.
We are confirmed in that view also by the fact that Regulation No. 16 (above quoted) made it “unlawful for any person or persons to erect any fence, wharf, boat house, building or other structure whatsoever to seaward of the public highway or road running along high-water mark of the Harbor of Pago Pago being Number 15 of 1900 without special permission from the Commandant of the United States Naval Station, Tutuila,” and that “Any wharf, fence, building or other structure erected in contravention of this regulation must be removed upon the order of the Commandant at the expense of the person erecting or causing to be erected the same.” While a person may lawfully erect a building on his own land, he cannot lawfully erect a building upon land of the Government without its permission.
Not only do we conclude that that part of Fusi that lay between the road and the high-water mark as it existed about 60 years ago when the road was built became the property of the Government of American Samoa as the result of the condemnation, as provided in Ordinance No. 15, but we also conclude that accretions to Fusi, caused by the stream at its southwest side and the stream that flowed across it for many years after the road was built and another stream slightly northwest of it, became the property of the Government of American Samoa.
*297The Government was a riparian owner and as such riparian owner it became entitled to the additions thereto by accretion.
“The rules of accretion, reliction, erosion, and avulsion as determining boundaries apply to public as well as to private property and rights. Thus, the government, if the owner of riparian land, is entitled to additions thereto by accretion the same as if the land were owned by an individual.” 56 Am.Jur. 902.'
This principle was approved by the Supreme Court of the United States in Missouri v. Nebraska, 195 U.S. 23, 49 L.Ed. 372, 25 S.Ct. 155 and Shively v. Bowlby, 152 U.S. 1, 38 L.Ed. 331, 14 S.Ct. 548.
The Poyer School building stands on the northeast end of Fusi. As before stated, it was originally a mess hall built during the war by the military authorities for the use of the Marines. The weight of evidence was clearly to the effect that all or almost all of the building is located on filled-in land which was a part of Pago Pago Bay below the high-water mark and over which the tide ebbed and flowed.
The filled-in part of Fusi is clearly not the property of the Mageo Family, the Fuga Family, the Vaivao Family, or the Taito Family. Whoever owned Fusi at the time of the cession of Tutuila and Aunu’u to the United States on April 17, 1900 owned only to the high-water mark. We have held many times that Samoans acquired title to their lands through first occupancy coupled with a claim of ownership, and that was true before the establishment of the Government in 1900.
In the condemnation proceedings in In re Tafuna Airport, Claimants to Plots 6 and 7, No. 16-1957 (H.C. of Am. S.), we said that:
“Samoans originally acquired title to their land through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am,. S.), Faataliga v. Fano, No. 80-1948 *298(H.C. of Am. S.). See 2 Blackstone 8; Maine’s Ancient Law (3rd Am. Ed.) 238.”
Samoans ordinarily took possession of land by going out into the virgin bush, cutting down the trees, burning them, or letting them rot, and then putting in plantations and, of course, when they had cleared land from the bush and put in plantations they claimed it as their own. They did not clear below the high-water mark. Furthermore, a landowner owning land by a body of water in which the tide ebbs and flows, as it does in Pago Pago Bay, owns only to the high-water mark. 8 Am. Jur. 759.
The deed of cession of Tutuila, made in 1900 and accepted by the United States on February 20, 1929 as of April 10, 1900 (48 U.S.C. § 1661), did not operate to change the title to private property. After the cession the Samoans owed allegiance to the United States but they retained ownership of their private property. Referring to the cession of Florida to the United States by the King of Spain, Chief Justice Marshall said in United States v. Perchman, 32 U.S. 51, 7 Pet. 51, 8 L.Ed. 604, 617 that:
“It may not be unworthy to remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations which has become law would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?”
Since the Samoans who owned Fusi before the cession owned it afterward, it was necessary that the land for the highway, unless it could be acquired through private negotiation, be condemned as it was.
*299Having been condemned by the Government of American Samoa pursuant to Ordinance No. 15, title to Fusi then became vested in the Government of American Samoa. And title to Fusi (and we exclude the present filled-in part) together with the accretions thereto are still the property of the Government of American Samoa unless it has parted with its title, which it has not.
Now Mageo originally claimed that Fusi was Mageo land, but we understood from the evidence that the Mageo and Taito Families are connected and there was evidence that his final claim was that it was Mageo-Taito land. Fuga originally claimed that Fusi was Fuga property but his final claim was that it was Fuga-Taito property. Lago, formerly a holder of the Vaivao title, claimed that it was Yaivao land. The final claim of Pogai and Faafia was that it was Mageo-Taito land.
All of these claims are without foundation. Some people in some of the various claimants’ families doubtless did have fales on Fusi and occupied parts of it for more than 20 years after the Government acquired title as a result of the condemnation in 1900. However, the statute of limitations does not run against the Government of American Samoa with respect to land.
“Unless it is expressly or by necessary implication provided otherwise by constitution or statute, statutes of limitation do not run against the sovereign or the government, either against a state or. according to the decisions, against the United States, and do not operate to bar suits involving public or governmental rights which are brought by, or on behalf of, the state or government in its sovereign or governmental capacity. This rule is based on considerations of public policy and accords with the maxim, Nullum tempus occurrit regi.” 53 C.J.S. 940.
We think the rule announced here with respect to the United States and the states is applicable to the Government of American Samoa. The sovereignty here is the *300sovereignty of the United States. The Government of American Samoa exists solely by the authority of the United States. American Samoa is an insular possession of the United States. A state in the United States has sovereign powers subject to certain limitations, but
“All territory within the jurisdiction of the United States not included in any state must, necessarily, be governed by or under the authority of Congress.” 49' Am.Jur. 326.
The Government of American Samoa derives all of its powers from the United States. Tit. 48 U.S.C. § 1661.
The opinion of Mr. Justice Marian in Grafton v. United States, 206 U.S. 333, is instructive on the point involved here.
There is nothing in the statute of limitations here to indicate expressly or by implication that it runs against the Government with respect to land. See Tit. 3, Code of Am. Samoa, 1961 Ed. Sec. 3.1101(4). It follows, therefore, that if there was occupancy of Fusi by the applicant Mageo or the three objectors, or any of them, for 20 years or more after the Government acquired title to it through condemnation in 1900 such occupancy could not operate to deprive the Government of its title through adverse possession. And there was no evidence introduced to show that the Government had voluntarily parted with its title to the applicant or to any of the objectors. We can only conclude then that Fusi (we do not include the filled-in part) continues to be the property of the Government of American Samoa.
In the case of Teo and Ropati of Pago Pago v. Totoa of Pago Pago, No. 5-1946 (H.C. of Am. S.) this Court ruled that certain land lying seaward of the highway (the same highway as in the principal case) but not extending all the way to the high-water mark of the bay was the property of the Government of American Samoa, the same having been condemned for public use as appeared by the Sec. 1225 *301(now 1291) of .the Code. This land was at the headwaters of Pago Pago Bay as is the land involved in the present case.
We are satisfied that the filled-in part of Fusi is the property of the United States and not the Government of American Samoa. On the question of Federal or Territorial ownership, the editors of Corpus Juris Secundum say that
“The title to land under navigable waters within the boundaries of a territory of the United States (emphasis ours) is held, not by the territory, but by the United States in trust for the whole people and the future state or states that may be erected out of the territory, subject, however, to disposition by Congress; the control of such lands is in the secretary of the interior, subject to legislation by Congress.” 65 C.J.S. 197.
A bill (H.R. 4660) which passed the House of Representatives on July 2, 1962 would convey, subject to certain limitations, filled-in land which was “formerly, permanently, or periodically covered by tidal waters” in Pago Pago harbor by the United States to the Government of American Samoa. The very fact of the existence of this bill is indicative of an opinion by the Solicitor of the Department of the Interior as well as the legal advisor to the Committee on Interior and Insular Affairs in the House of Representatives that filled-in lands around Pago Pago Har-' bor are United States property, not Government of American Samoa property.
This Court had a somewhat similar, but far from identical, question before it in the case of Mulu et al. v. Taliutafa, No. 17-1953 (H.C. of Am. Samoa) in which we decided that Lalopua, the small piece of land in Manua on which stood the faleula and which was owned by the king in his capacity as king and not as a private individual, became the property of the United States when the Manua *302Islands were ceded to the United States by the Tuimanua and his chiefs in 1904.
The applicant and the objectors all testified that they filed war damage claims on Fusi and that the War Damage Claims Commission recognized their ownership of Fusi by recommending payment of the claims by the United States. The applicant and some of the objectors testified that they had fales on Fusi which they had to take off by order of the Provost Marshal when the war started. We believe from the evidence that there were some fales, the property of possibly two of the parties in this case, which were destroyed upon orders of the Provost Marshal. However, we think that such fales were illegally upon Fusi without the permission of the Governor, as required by Sec. 1291 of the Code of 1949, which is in substance a codification of Ordinance No. 15 and Regulation No. 16 promulgated by Commander Tilley in 1900.
But the fact that the fales were there illegally in violation of Sec. 1291 does not necessarily mean that they were not the property of the people who built them. Samoan fales are movable and some of them are taken down and moved. If Mageo or one of the objectors illegally built his fale on Fusi after Fusi became the property of the Government, it was still the builder’s fale even though it was on land of the Government in violation of Regulation No. 16 and even though the builder could have been evicted by order of the Commandant at any time. If the fale was destroyed by the Marines, the builder would have a war damage claim. And the recognition of a war damage claim by the War Damage Claims Commission would only be a recognition that the builder owned a fale, not that he owned the land on which it was built. If while in the prosecution of his military duty a U.S. Marine had accidentally shot Mageo’s pig while it was illegally running at large in Fuga’s plantation on Fuga land, the War Damage Claims *303Commission would doubtless have recommended payment to Mageo for the pig, but that would not mean that the War Damage Claims Commission would have considered that Fuga’s plantation and the land on which it was when the Marine accidentally shot it became Mageo land the moment his pig unlawfully entered Fuga’s plantation and began tearing up Fuga’s taro.
And if the Attorney General or Commandant of the U.S. Naval Station should have intimated in a letter to Mageo or Taito or some other claimant that the United States or the Government of American Samoa might consider paying rent for the land in Fusi where Warehouse #7 stood, which land belonged to the Government of American Samoa, that would not transfer the title to the land from GAS to Mageo or some other claimant, as the case might be. The fact that Governor Coleman advised Mageo not to build his guest fale on Fusi is evidence that the Governor considered that Fusi was the property of the Government of American Samoa.
Since we are certain that Fusi as shown on the survey accompanying Mageo’s application to register the same as the communal family land of his family is neither his communal family land nor the communal family land of any of the objectors, it follows that we must deny his application.
While we are holding that all of Fusi as shown on the survey not including the filled-in part is the property of the Government of American Samoa, we cannot order Fusi, excluding the filled-in part, to be registered as land of the Government of American Samoa since there was no evidence to identify the boundary between the filled-in part and the remainder of Fusi by metes and bounds. Such boundary was not identified by metes and bounds. Tit. 10, Code of Am. Samoa, 1961 Ed. § 10.0112 obviously requires *304that all the boundaries of land be identified by metes and bounds before it may be registered.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that neither the applicant nor the objectors, nor any of them, are the owners of that part of Fusi seaward of the main East-West highway in the Village of Pago Pago. And it is further ORDERED, ADJUDGED, AND DECREED that Fusi excluding the filled-in part thereof is the property of the Government of American Samoa and that the filled-in part of Fusi is the property of the United States.
And it is hereby ORDERED that the application of Mageo to register the land Fusi (as shown on the survey accompanying his application to register) as the communal family land of the Mageo Family of Pago Pago be and the same is hereby denied. The Registrar of Titles will be informed of this denial.
Costs in the sum of $61.00 are hereby assessed against Mageo, Lago, Fuga, and Pogai and Faafia. Mageo, Lago and Fuga are each to pay $15.25 of the costs and Pogai and Faafia together are to pay $15.25. All costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485327/ | OPINION OF THE COURT
MORROW, Chief Justice.
Luisa filed her petition alleging that defendant Atofau “had interfered with the construction” of a fale by her and her husband upon the land Olosea and also had “threatened” her and members of her immediate family. She prayed for an order restraining Atofau from interfering *306with the construction of her fale. The Court viewed the land Olosea in the presence of the parties prior to the hearing.
Olosea is a part of a larger area named Lepuapua. It lies at the junction of the main east-west highway and the highway going to Taputimu from the main east-west highway. It lies to the south of the main east-west highway and to the west of the highway going to Taputimu. It was registered under the name Puapua as the communal family land of the Atofau Family in the case of Sei and Atofau of Leone v. Aumavae of Leone, No. 82-1948 (H.C. of Am. S.).
The defendant is the matai of the Atofau Family. The plaintiff Luisa is a daughter of Polevia who lived on Olosea (we shall call the land Olosea instead of Puapua, its registered name) during the mataiship of Noaese, the predecessor in title of the defendant, and also during the early part of the mataiship of the defendant. Polevia died in 1947 and was buried on Olosea by the express direction of the defendant who received his title in 1945. His grave is just a few yards from the house of the plaintiff on Olosea. Pole-via was the first man to have his home on Olosea and to put up a house on it. Polevia and Luisa together had four houses on the land.
According to what we consider the weight of the evidence, Polevia’s mother, according to Luisa, was Uula, who was the sister of Esekia who held the Atofau title just prior to Noaese. Noaese was the son of Esekia. While Atofau denied that Uula was a sister of Esekia, we cannot give very much weight to his testimony in that regard, particularly in view of the fact that Atofau first testified in the instant case that he belonged to the male branch of the family when his testimony in the case in which he was awarded the Atofau title (Kelemete v. Leala, No. 14-1945 (H.C. of Am. S.)) shows that he testified then that he belonged to the female branch. When it was pointed out to him that he had testified that he was in the female branch *307in the 1945 case, he changed his testimony. We think that matai Atofau who gives such contradictory testimony as to his own ancestry cannot be very reliable when he testified as to the ancestry of Luisa, particularly when the latter testimony relates to a matter that occurred two or three generations back. We are not suggesting that Atofau knowingly gave false testimony. We think he was honest but very likely mistaken, his testimony relating to a matter far back in the history of the family and at the same time being based on mere hearsay.
Polevia rendered service to the Atofau title. Luisa, Pole-via’s daughter, was born in Olosea about 40 years ago. And she has lived on Olosea all of her 40 years. This is not to say that she has not visited away from Olosea at times. She herself rendered service to Noaese as did her father Polevia. Polevia with other Atofau family members put in plantations on Olosea. Luisa was present when Noaese died and she was present at a family meeting when Kelemete was selected for the Atofau title.
We think that the weight of the evidence is to the effect that Polevia belonged to the Atofau Family. He lived on Atofau land; he is buried on it; he was brought to the land by Atofau Noaese; he rendered service to the title Atofau; he with other members of the Atofau Family put in plantations on Atofau communal family land. Some people of other families wanted him buried in Leone, but defendant Atofau Kelemete while he was the matai had him buried on Atofau land. We are fully aware that Atofau testified that the reason he was buried on Atofau land was because it was getting along toward evening when the burial was to take place. We do not believe, in view of Samoan customs, that if Polevia had not belonged to the Atofau Family that Atofau Kelemete would have had him buried on Atofau land just a few yards from the house he had built and lived in for many years, when at the time of the burial, people in *308Leone, to whom Polevia was related, asked that he be buried there.
There was never any difficulty between Polevia and Noaese, nor between Luisa and Noaese. Luisa’s difficulties with the matai began after Kelemete got the title. We think from the evidence that the present Atofau, the defendant, has used his mataiship to interfere with Luisa in the exercise of her rights.
The land Olosea does not belong to the matai Atofau. It belongs to the Atofau clan (family) of which there are many members. Atofau has no greater interest in communal family lands than any other member of .the family. True, he is the matai, and his mataiship gives him in his capacity as matai the pule (jurisdiction) over family lands. A matai should never try to be a dictator over his family. He should be kind to family members. And they in turn should render him service. Atofau was unkind to Luisa. He uprooted her taamu and was unkind to her in other ways. She testified that Atofau ordered her off Olosea in 1961 and again in 1962. This was after she had lived on Olosea all of her life. It is significant that he did not order her off until 16 years after he got the Atofau title in 1945.
According to his testimony, Atofau is afraid that if this Court permits Luisa to complete her house on the Atofau land Olosea she will bring in strangers from Western Samoa and elsewhere to make their homes on Atofau land and that in the future Atofau Family members will have less land to use for homes and plantations and that that will cause difficulties for the family. We should like to point out that if Luisa should bring strangers to the land to make their homes on it and use it for plantations to .the injury of the Atofau Family, then the matai, in view of his pule, could have them ousted from the land. Atofau does not have to furnish family land for strangers. Furthermore, whether or not Luisa would actually bring in stran*309gers is pure speculation. Atofau does not, and cannot know whether she would or not.
It is our conclusion from the evidence that Luisa should be permitted to continue to construct her fale on the place where she has started to build it without interference by the matai; also that she should render service to her matai in accordance with Samoan customs.
ORDER
Accordingly, defendant Atofau Kelemete is hereby ORDERED not to interfere with plaintiff Luisa Momoe’s construction of her fale at the place on Olosea where she has begun its construction.
Costs in the sum of $18.75 are hereby assessed against Atofau Kelemete, the same to be paid within 30 days.
Plaintiff Luisa Momoe should render service to the Atofau title in accordance with Samoan customs. It is the duty of family members living on communal family land to render service. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485328/ | OPINION OF THE COURT
MORROW, Chief Justice.
Plaintiff Masalosalo filed his petition seeking an order of the Court restraining defendant Isumu from completing the construction of a house on the land Taufusi near the Village of Nu’uuli and also an order evicting Isumu from Taufusi.
Prior to the hearing the Court viewed the land Taufusi in the presence of both parties.
Taufusi is the communal family land of the Masalosalo Family of which the plaintiff is the matai. The defendant is a married man to the Masalosalo Family, his wife Mao being a blood member of that family.
We are satisfied from the evidence that Masalosalo, the matai, assigned this land Taufusi to Nofo and her children. *311Nofo is a blood member of the Masalosalo Family. She is quite elderly, almost blind and almost deaf. She was a witness. Nofo and her children occupied the land Taufusi pursuant to the assignment by Masalosalo. Her son Polo put up a little palagi house on the land for the use of Nofo and her children. We saw the house when we viewed the land. Polo went to Honolulu. Isumu and his wife are now occupying Taufusi but not through an assignment by the matai. And they are occupying it despite a prior assignment of it to Nofo by the matai.
In 1961, quite some time after Polo went to Honolulu, Isumu’s wife beat up the old lady Nofo and Isumu used very vile language toward her (Isumu says it was only a word battle between Nofo and his wife, but we think that the weight of evidence is to the effect that the old lady was actually beaten up). After the beating the old lady Nofo (to whom with her children the matai had assigned Taufusi) left Taufusi, leaving Isumu and his wife in possession. Nofo complained to the matai about the beating. We think she left because of the beating. Isumu and Mao have continued in possession to the present time over the objection of the old lady. Sometime after she was beaten up she went to the district governor with a complaint against Isumu. The district governor apparently ruled that Isumu should vacate Taufusi, which he (Isumu) did not do. The district governor based his ruling, we suppose, upon the ground that Taufusi had been assigned by the matai to Nofo and her children and not to Isumu and his wife.
In accordance with Samoan customs, the matai has the pule over family lands. It should be stated, however, that the ruling of the district governor is in no way binding upon this court in the decision of this case.
Recently the defendant started to put up a new house on Taufusi, the new house almost adjoining the little palagi house built by Polo. We saw this when we viewed Taufusi *312prior to the hearing. A short time after the house was started the matai filed his petition.
As we have stated, the matai has the pule or jurisdiction over family lands in accordance with Samoan customs. There is no evidence that Masalosalo, the matai, ever expressly assigned Taufusi to Isumu and his wife Mao. The Samoan judges are convinced that any delay on Nofo’s part which there might have been in complaining about the occupation of Taufusi by Isumu after the old lady was beaten up did not constitute an assignment by implication, and the writer of this opinion has come to the same conclusion.
There was evidence to the effect that the Masalosalo Family has six lands. Isumu and his wife are already occupying one of them in the Village of Nu’uuli, in addition to Taufusi.
We are of the opinion in the absence of an assignment of Taufusi to Isumu and his wife by the matai that the matai, in view of Samoan customs, which this Court must recognize (Tit. I, Code of Am. Samoa, 1961 Ed. § 1.0102), is entitled to an order restraining the defendant from continuing the construction of his house on Táufusi and also an order evicting the defendant from Taufusi.
We do not think Isumu can complain of this order since he is only a married man to the Masalosalo Family and he and his wife already have Masalosalo Family land in the village assigned to them. They have a house on this last-mentioned land. We are aware that Isumu claimed that chiefs other than Masalosalo claimed to own this land in the village. However, we think that the weight of evidence is to the effect that it is Masalosalo land. The evidence indicated that there are only six pieces of Masalosalo land. .
*313Nofo wants to go back and occupy Taufusi as she did before she was beaten up, and she should be permitted to do so since that land has been assigned to her by the matai.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED (1) that the defendant Isumu Leapaga shall discontinue the construction of his house on the land Taufusi and (2) that he shall vacate such land within seven days from the date hereof, which is Oct. 10,1962.
Costs in the sum of $10.00 are hereby assessed against defendant Isumu Leapaga, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485329/ | OPINION OF THE COURT
MORROW, Chief Justice.
A. S. Maiava filed his application with the Registrar of Titles to be registered as the holder of the matai title Laulusa attached to the Village of Utulei. Filipo filed an objection to the proposed registration claiming that he had “a better right than the said A. S. Maiava to succeed to said title.” This resulted in the applicant and the objector each becoming a candidate for the name. Hence this litigation. See Section 6.0106 of the Code of American Samoa, 1961 Ed.
Section 6.0101 of the Code prescribes the qualifications which a person must have to be eligible to succeed to a matai title. The evidence established that both candidates possess these qualifications and that each of them is eligible for registration as the holder of a matai title.
Section 6.0107 of the Code prescribes the law which the Court shall follow in determining which one of opposing *315candidates for a matai title shall be registered as its holder. It reads as follows:
“CONSIDERATION GIVEN BY. COURT: In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
“First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
“Second: The wish of the majority or plurality of those clans of the family as customary in that family.
“Third: The forcefulness, character, personality, and knowledge of Samoan customs.
“Fourth: The value of the holder of the matai title to the family, the village, and the country.”
Filipo and Maiava each filed his pedigree with the Court and testified as to his relationship to the title Laulusa. It is undisputed that Filipo is the grandson of Laulusa Siutulei and that he has lk Laulusa blood. Maiava testified that he is the grandson of Maiava Laulusa. While it was argued by counsel for Filipo that there never was a Maiava Laulusa, it is the unanimous opinion of the Court that the testimony of Maiava to the effect that there was a Maiava Laulusa and that he is the grandson of Maiava Laulusa is true and that he has 1k Laulusa blood in his veins. We find that Maiava has xk Laulusa blood and that the two candidates are on an equality with respect to the issue of hereditary right.
We saw and heard the witnesses. Maiava impressed us as an honest witness and as a very stable, responsible, and reliable man. When Filipo was on the stand, a certain chief signalled answers to questions being put to him. As soon as the presiding judge became aware of it, he stopped it. The very fact that Filipo was a participant in such conduct while on the witness stand was damaging to him as a *316witness and a reflection upon his character. It was also an indication of weakness on his part.
It was argued by counsel for Filipo that the testimony of Maiava to the effect that he had served two Laulusas was false upon the theory that he was too young to have served Laulusa Faoato. However, the matai name register shows that Faoato was registered as the Laulusa on September 27, 1906 and that his successor Siutulei was registered on March 16, 1922. Maiava is 57 years old which means that he was born in 1905. He was 17 years old when Siutulei was registered. We think Maiava could very easily have served Faoato, who died in 1926.
Maiava is 57 years old. He attended a faifeau’s school, also the Marist Brothers’ School in Atu’u for two years. He then attended Fagalele School for two years. Later he attended Leulumoega College in Upolu for three years and three months, from which school he graduated. Maiava speaks some English. He is a skilled carpenter, having learned his trade under Ned Ripley with whom he worked in building churches and living houses. He worked for Public Works for two or three years. After working with Ned Ripley and for Public Works, he formed his own organization and built a number of churches and other buildings including the churches in Ta’u and Fagasa. At the present time he is building a church in Fagaitua. During wartime he was the leader of a group of about 100 men engaged in the construction of the original airport at Tafuna.
Maiava has lived in Utulei all of his life, except when attending schools away from his village. He has contributed much to his village, having built the church, the pastor’s house and the school house there. He built the large G. H. C. Reid & Co. store in Fagatogo. Maiava has drawn plans for a number of the churches he has built.
During the South Pacific Conference, Maiava had charge of a police patrol engaged in protecting persons and prop*317erty. He had charge of the last Laulusa’s funeral and made many contributions in connection therewith, in accordance with Samoan customs. Maiava is the secretary of the finance committee of his church; also a deacon.
Maiava has been a matai for three years, and we are convinced that he is well grounded in Samoan customs.
Filipo, who is 32 years old, graduated from junior high school. Later he attended the Samoan High School for four years but did not graduate because he was sick. He took some correspondence courses in English and Bible, securing a certificate of graduation from the Bible School. His counsel stated in his argument that Filipo had graduated from the Teachers’ Training College. Filipo speaks English. After leaving high school he was sick for about a month. He was then out of a job for about six years, apparently recuperating from his illness. He has been a teacher for about nine years and at present is teaching in Poyer Junior High School in Pago Pago. He has never held a matai title. He testified that he was familiar with Samoan customs and that he had been a leading young man in the Laulusa Family. Filipo is an elder in his church and is also on its educational committee.
We believe from the evidence that church and house building is a more profitable occupation than teaching in a junior high school and that Maiava will be in a better position financially to support the Laulusa title than will Filipo.
During the course of the hearing, the judges had an excellent opportunity to observe the personalities of the two candidates. Based upon our observation and the evidence adduced, it is our conclusion that Maiava prevails over Filipo on the issue of “forcefulness, character, personality, and knowledge of Samoan customs,” and we so find.
It is also our conclusion from the evidence that Maiava will be of more value to his family, his village, and his country than will Filipo. Maiava has demonstrated his *318value to his village by building its church, its school house, and its pastor’s house. And he has demonstrated his value to his country by building churches and living houses in villages other than Utulei. We are satisfied from the evidence that Maiava has been of more value to his family than Filipo, and we believe he will continue to be. We find for Maiava on the fourth issue.
We have not made a finding with respect to the “wish of the majority or plurality of those clans of the family as customary in that family.” It is not necessary that we do so, and we shall not, since we have found that the two candidates are on an equality with respect to the issue of hereditary right and that Maiava prevails over Filipo on the third and fourth issues. The third and fourth issues together carry more weight than the single issue of the wish of the majority or plurality of the clans in the family. It follows, therefore, that even if we were to find that Filipo prevails over Maiava on this issue (and we make no finding on it), we would still be required to order that Maiava be registered as the holder of the Laulusa title, since Maiava would prevail on two issues and Filipo would prevail on only one, both candidates being on an equality with respect to the issue of hereditary right.
It may be stated that the basic idea of a clan is that it consists of a group of people who are descended from a common ancestor. Filipo’s counsel claimed that each new matai in the family who has descendants establishes a new clan and that the number of clans in a family is measured by the number of holders of the title who have had descendants. Some Samoan families trace their ancestry back for several hundred years. The writer of this opinion has been told of one family in Manua which claims that it has had 47 holders of the title. If they all have descendants, that would mean that there are 47 clans in this one family. It would also mean if B, the son of C, having five children and *31920 grandchildren, should become the 48th holder of the title, that B would start a new clan and that his 25 descendants would then belong to the new clan and leave the clan of which they were members immediately preceding the date on which B got his title. Otherwise, the 25 would belong to at least two clans in the same family.
Counsel for Maiava contended if the first holder of the title had three sons and one daughter, each of whom had descendants, then there would be four clans in the family regardless of how many holders of the title the family may have had.
Without making any decision on the matter, we will say that it appears to us that this second contention is much more in accordance with Samoan custom than the first contention. If we should adopt this second contention as the true Samoan custom, — and there is much to support it — it would follow from the evidence that Maiava would also prevail over Filipo on the issue of the “wish of the majority or plurality of those clans of the family as customary in that family.”
Maiava already has a matai name. It will be necessary for him to resign from the Maiava title before being registered as the Laulusa. It is not the custom in American Samoa for the same person to hold two matai titles at the same time. See Section 1.0102 of the Code, 1961 Ed.
DECREE
In accordance with the foregoing opinion, it is ORDERED, ADJUDGED AND DECREED that A. S. Maiava shall be registered as the holder of the matai title Laulusa attached to the Village of Utulei, upon his filing his resignation from the title Maiava with the Registrar of Titles. Maiava shall have two weeks within which to file such resignation. The Registrar of Titles will be advised of this decree.
*320Costs in the sum of $37.50 are hereby assessed against Filipo, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485330/ | OPINION OF THE COURT
MORROW, Chief Justice.
Sisipeni made application to the Registrar of Titles to have certain land named Lepipi, which is located near the Village of Iliili, registered as her individually owned property. A survey of the land, 5.42 acres in size, accompanied the application. Fe’a of Iliili filed an objection to the proposed registration claiming that Lepipi was the communal family land of the Fe’a Family of Iliili. This litigation arises out of these conflicting claims. See Sec. *32210.0112 of the Code of American Samoa, 1961 Edition. Prior to the hearing the Court viewed the land in the presence of the parties.
Sisipeni claims to have derived title to the land as follows: About 1902 shortly after the establishment of the Government, her father Peniata, who held a pastorate in Tafuna, went to Iliili to rest for about a year. While he was resting, the then High Chief Letuli, according to Sisipeni’s claim, gave him the land as his individually owned property. At the time of the alleged gift, the land had never been cleared and was virgin bush. Sisipeni claims that her father and mother then went to the land, cleared it, and put in plantations on it. Peniata died about 1930. Sisipeni was his only child. She claims to have inherited the land from her father. She makes her home in Malaeloa in her mother’s family.
The Court saw some scattered long coconut trees growing on the land when it viewed it before the hearing. They are high and obviously quite old. If the land ever was well cleared, it has for all practical purposes (with the exceptions of the few coconuts) reverted to the bush, as the Court could see.
Peniata was a member of the Fe’a Family and was living in the Fe’a Family when Letuli made the alleged gift of the land to him. Peniata was also a member of the Letuli Family. The Fe’a title is a lesser matai title in the Letuli Family.
Both Letuli and Peniata have been dead for many years. Neither could testify as to the supposed gift. All we have is hearsay testimony of Sisipeni and her mother. Sisipeni had not been born when the supposed gift was made. She was born in 1904. Faasapa, the wife of Peniata and mother of Sisipeni, says that she was told of the supposed gift by Peniata. Most hearsay testimony is excluded by courts, not only because of its unreliability, but also be*323cause there is no opportunity to cross examine with respect to the matter related. Furthermore, anybody can testify in Court that a dead person told him so and so privately and there is no practical way to refute it, even though it is false. Here both parties to the supposed transaction, viz.: Peniata and Letuli, the only persons who had first-hand knowledge as to whether or not there was such a gift, have, as we have said, been dead for many years.
However, this supposed gift of the land by Letuli to Peniata was void, even if it did in fact occur. The Native Lands Regulation of 1900 enacted on April 30, 1900 by Commander B. F. Tilley, U.S.N., Commandant, provided that “From and after the coming into force of this Regulation the alienation of native lands within the jurisdiction of the United States Naval Station, Tutuila, is prohibited.” The whole of Tutuila was included in the Naval Station. This regulation was enacted by the Commandant just 13 days after the U.S. Flag was raised at Fagatogo. It was in force in 1902 when Sisipeni claimed Letuli made the gift to Peniata.
“Alienate” means to transfer title or to convey. Black’s Law Dictionary, 4th Ed., defines “Alienate” as “To convey; to transfer the title to property.” Since the April 30,1900 regulation prohibited the alienation of native land, it follows that the gift of Lepipi by Letuli to Peniata, assuming it was made, was absolutely void. The regulation was entitled a “Regulation to prohibit the alienation of native land in Tutuila and Manua.” A gift involves the transfer of title from one person to another.
This Court has held many times that Samoans acquired title to their lands through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faataliga v. Fano, No. 80-1948 (H.C. of Am. S.); Gi v. Te’o, No. 35-1961 (H.C. of Am. S.). This *324doctrine of the acquisition of title through first occupancy coupled with a claim of ownership is approved in Maine’s Ancient Law (3rd Am. Ed.) 238. See also 2 Blackstone 8. There was no satisfactory proof that Letuli owned the virgin bush so that he could make a gift of it. A man cannot give away what he does not own.
Fe’a claims that members of the Fe’a Family together with Peniata, who was unquestionably a member of the Fe’a Family, occupied the land, cleared it from the virgin bush and put in plantations on it, claiming it as the communal land of the Fe’a Family, and that the Fe’a Family thereby became its owner. The testimony for Sisipeni was to the effect that Peniata and Faasapa, her father and mother, alone cleared the land from the virgin bush, occupied it, and put in plantations on it, claiming it as Peniata’s individually owned land. The testimony for Fe’a was to the effect that Fe’a Family members, including Peniata, a Fe’a Family member who was living in the Fe’a Family at the time, cleared the land from the virgin bush, occupied it, and put in the plantations, and claimed it as communal family land of the Fe’a Family.
It is our conclusion that the weight of the evidence, both direct and circumstantial, indicates that the Fe’a Family members, including family member Peniata, cleared the land from the virgin bush, occupied it, put in plantations, and claimed it as the communal family land of the Fe’a Family. The claimed gift of the land by Letuli to Peniata meant nothing, since if there was any such gift, it was void because of the above April 30, 1900 regulation prohibiting alienation of native land; not only that, but it was void also if Letuli did not own the property, and there was no satisfactory proof that he did.
The Fe’a Family have been getting the copra from the coconut trees planted on the land for many years, although it is true that Peniata did get coconuts from the *325land occasionally after he left Iliili in 1908 and that Sisipeni has gotten coconuts at various times from the land. However, this is quite consistent with its being Fe’a Family land since Peniata was a Fe’a man and Sisipeni is a Fe’a woman. Fe’a filed a war damage claim on the land. Sisipeni did not. Query: If Sisipeni claimed to own the land, why didn’t she file a claim as other landowners did? The surveyed land comprises 5.42 acres. That a pastor and his little wife (Faasapa is a small woman) cleared 5.42 acres of virgin bush with big trees on it back in 1902 and shortly thereafter, while he was the village pastor, without other Fe’a Family members participating in the clearing, seems highly improbable since there were a lot of big trees and a lot more smaller trees on the 5.42 acres, an area of considerable size. The custom (and the court knows the custom) was for members of a Samoan Family to clear land together and then claim it as the communal family land of the family. That is why almost all of the cleared land (except government owned land) in Samoa is communal. Individually owned land is a rarity. The way of life of the Samoans is communal.
Despite the conflicting testimony, it is our conclusion that the weight of evidence is to the effect that the land involved is the communal family land of the Fe’a Family. Leituala and Suapilimai are matais in the Fe’a Family, and, as we have said, the Fe’a title is a lesser matai title in the Letuli Family.
However, we wish to point out that Sisipeni being a member of the Fe’a Family has the same rights with respect to the-land that other members of the Fe’a Family have. Fe’a assured the Court that she had the right to live on the land and use it.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED .that the land Lepipi, as shown on.the survey ac*326companying the application to register the land, shall be registered as the family owned communal land of the Fe’a Family of the Village of Iliili.
Costs in the sum of $18.75 are hereby assessed against Fe’a, the same to be paid within 30 days.
Sisipeni paid for the survey. The benefits of the money she paid for it are accruing to the Fe’a Family since the land is being registered in its name. It is considered just, therefore, that Fe’a should pay the costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482086/ | IN THE SUPREME COURT OF THE STATE OF DELAWARE
DARON J. RODGERS, §
§ No. 276, 2022
Defendant Below, §
Appellant, §
§ Court Below–Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, §
§ Cr. ID No. 1708021304 (N)
Appellee. §
Submitted: September 16, 2022
Decided: November 4, 2022
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the appellant’s opening brief, the State’s motion to
affirm, and the record on appeal, we conclude that the judgment below should be
affirmed on the basis of the Superior Court’s July 11, 2022 order summarily
dismissing the appellant’s second, untimely motion for postconviction relief.
NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482096/ | J-A18024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF GEORGE : IN THE SUPERIOR COURT OF
PORUPSKI : PENNSYLVANIA
:
:
APPEAL OF: JOSEPH M. PORUPSKI :
:
:
:
: No. 1201 WDA 2021
Appeal from the Decree Entered September 9, 2021
In the Court of Common Pleas of Fayette County
Orphans' Court at No: 541 OC 1979
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
CONCURRING/DISSENTING MEMORANDUM BY STABILE, J.:
FILED: NOVEMBER 7, 2022
I concur in the Majority’s resolution of Appellant’s first four issues
(regarding subject matter jurisdiction, laches, the orphans’ court failure to
conduct a hearing, and its failure to address unjust enrichment). However, I
disagree with the Majority’s disposition of the issue involving the assessment
of payment of fiduciary fees upon the Appellant who bears no responsibility
for payment of fiduciary fees incurred by the estate. Further, I write
separately to call attention to a legal error in the determination by the
orphans’ court that Margaret Gunnoe (“Margaret”) received a life estate under
the will of her father, George Porupski (“Decedent”).
As the Majority correctly observes, we employ a deferential standard of
review when reviewing an orphans’ court decree. We consider whether the
J-A18024-22
record is free from legal error and whether the court’s factual findings are
supported by the evidence. Majority at 4 (citing In re Fielder, 132 A.3d
1010, 1018 (Pa. Super. 2016) (en banc)). With that standard in mind, I first
note my belief that the court erred when it stated that Decedent’s will devised
a life estate in his residence to Margaret. Decedent’s will did not convey a life
estate. Rather, when he executed his will in January 1975, Decedent merely
gave Margaret “the right to use and occupy the dwelling house” in which
Decedent made his home. Decedent’s Will, Item Second (emphasis added).
Her right to use and occupy the residence was contingent on her upkeep of
the home and her payment of taxes and insurance, and was subject to
termination if her estranged husband occupied the home. Id. As in Estate
of Culig, 134 A.3d 463 (Pa. Super. 2016), where the decedent’s will contained
similar language, Margaret “possess[ed] a right to reside rather than a life
estate in the real estate[.]” Id. at 464. Hers was a mere right of privilege to
occupy the dwelling. See Baldesberger v. Baldesberger, 105 A.2d 713,
716 (Pa. 1954) (interest given to decedent’s unmarried children “was merely
that of a privilege to occupy the property as a home and not the devise of a
life estate; therefore it was a right of privilege which could be abandoned[.]”).1
As the Majority recognizes, in 1983 and 1994, two of Decedent’s children
(Frank and George, Jr.) conveyed their interests in the real estate to
____________________________________________
1 We offer no opinion at this time as to what rights, if any, Margaret continued
to enjoy after destruction of the dwelling.
-2-
J-A18024-22
Appellant’s father, Joseph R. Porupski (“Joseph R.”). Majority Memorandum
at 2 n.1 and n.2. Therefore, as of 1994, Joseph R. and Margaret respectively
maintained three-quarters and one-quarter interests in the residue of
Decedent’s Estate, which purportedly included no assets other than the real
estate. There is no question that, as administrator, Joseph R. was authorized
to sell “any real property not specifically devised.” 20 Pa.C.S.A. § 3351. That
statutory right clearly encompassed the right to sell property for payment of
Decedent’s expenses and debts, as directed in Decedent’s will. See also
20 Pa.C.S.A. § 3311 (authorizing personal representative to sell real estate
occupied by an heir or devisee). Assuming the real estate was the only asset
left in the estate when it was sold to Joseph M., the residuary of the estate
would include only the proceeds from the sale of the real estate from which to
pay expenses.
While I concur in most respects with the Majority’s disposition of
Appellant’s issues—tempered by my observations outlined above, I do not
agree with the Majority’s determination that Appellant should bear one-half of
the fees awarded to the Administrator and therefore dissent. As Appellant
correctly asserts, he was not named in Decedent’s will. His interest in the real
estate came to him by virtue of a deed from his father, Joseph R., in his
capacity as executor. Decedent’s estate, not Appellant, was responsible for
payment of the fiduciary fees owed by the estate.
-3-
J-A18024-22
Again assuming the only asset of Decedent’s estate was the real
property, which the Administrator has identified as comprising the “Principal
for Distribution” in the Account filed with the orphans’ court, then payment of
the debts and expenses of the estate—and in particular here, the expenses
charged by the Administrator, are to be paid out of the residuary. The debts
and expenses are the responsibility of Decedent’s estate, and administrative
expenses are properly paid from the estate. See, e.g., 20 Pa.C.S.A. § 3392.
See also Faust’s Estate, 73 A.2d 369, 270 (Pa. 1950) (recognizing that fees
of legal counsel are a just charge as estate administrative expenses, with the
amount being within the discretion of the court below). The order imposing
an obligation to pay estate fiduciary fees upon Joseph M., who is not personally
liable for estate expenses, was in error.
Therefore, I would remand to the orphans’ court with instructions for
the court to direct payment of the Administrator’s expenses from the
Decedent’s estate. Following payment, the residuary would then be
distributed to Joseph R. and Margaret, who would receive a three-quarter
share and one-quarter share of the residuary, respectively.
For these reasons, I concur in part and dissent in part.
-4- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482103/ | J-S32022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT VANDELE HUNTLEY :
:
Appellant : No. 598 MDA 2022
Appeal from the PCRA Order Entered March 21, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003066-2003
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 7, 2022
Appellant, Vincent Vandele Huntley, appeals pro se from the post-
conviction court’s March 21, 2022 order dismissing, as meritless, his second
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
The PCRA court summarized the background of this matter as follows:
On November 1, 2004, [Appellant] pled guilty to 1st Degree
Murder,1 five (5) counts of Criminal Conspiracy,2 Aggravated
Assault,3 Endangering Welfare of Children,4 and Abuse of Corpse.5
The Honorable Jeannine Turgeon sentenced [Appellant] to an
aggregate term of life imprisonment plus a consecutive twenty-
three and one-half (23½) to forty-seven (47) years in a state
correctional institution. While still represented by counsel,
[Appellant] filed a pro se Motion to Withdraw Guilty Plea on
November 8, 2004, [but] he [later] withdrew [that motion] before
[t]he [c]ourt on January 7, 2005. [Appellant] did not file a direct
appeal from the judgment of sentence.
1 18 Pa.C.S.[] § 2502(a)[.]
2 18 Pa.C.S.[] § 903[.]
J-S32022-22
3 18 Pa.C.S.[] § 2702(a)(1)[.]
4 18 Pa.C.S.[] § 4304[.]
5 18 Pa.C.S.[] § 5510[.]
On October 13, 2005, [Appellant] filed his first timely petition for
relief under the [PCRA,] and counsel was appointed to represent
him. On January 25, 2006, PCRA [c]ounsel filed a [p]etition to
[w]ithdraw as [c]ounsel pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988). On June 30, 2006, PCRA [c]ounsel was
granted leave to withdraw, and [Appellant] was given notice of
[t]he [c]ourt’s intention to dismiss his PCRA [petition without a
hearing] pursuant to Pa.R.Crim.P. 907. On August 22, 2006,
[Appellant’s] PCRA [petition] was dismissed, and he subsequently
filed a [n]otice of [a]ppeal to the Superior Court. On July 11,
2007, the Superior Court affirmed the denial of [Appellant’s] PCRA
[petition]. [Commonwealth v. Huntley, 932 A.2d 254 (Pa.
Super. 2007) (unpublished memorandum).] On December 20,
2007, the Pennsylvania Supreme Court denied [Appellant’s]
[p]etition for [a]llowance of [a]ppeal. [Commonwealth v.
Huntley, 940 A.2d 363 (Pa. 2007).]
On December 20, 2021, [Appellant] filed a second[, pro se]
petition for relief under the PCRA. On December 27, 2021, we
appointed Damian DeStefano, Esquire, as PCRA [c]ounsel. On
February 22, 2022, Attorney DeStefano filed a [p]etition for
[l]eave to [w]ithdraw as [c]ounsel, and an accompanying
[m]emorandum in support thereof, pursuant to Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988)[,] and Turner, supra.
PCRA Court Opinion (PCO), 2/24/22, at 1-2.
On February 24, 2022, the PCRA court issued a notice of its intent to
dismiss Appellant’s PCRA petition without a hearing pursuant to Rule 907.
Therein, the court also granted Attorney DeStefano’s petition to withdraw and
provided Appellant with twenty days to respond to its Rule 907 notice. On
March 7, 2022, Appellant filed a request for an extension of time to file an
objection to the PCRA court’s Rule 907 notice, and for leave to file an amended
pro se PCRA petition to respond to Attorney DeStefano’s no-merit letter and
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petition to withdraw. Thereafter, on March 9, 2022, the PCRA court granted
Appellant’s request for an extension of time but denied his request to file an
amended PCRA petition, instead directing that Appellant could set forth any
arguments he wished to raise in support of his claim for PCRA relief in his
response to the Rule 907 notice.
Despite the PCRA court’s ruling, Appellant filed another motion for leave
to file an amended PCRA petition, along with an amended PCRA petition, on
March 17, 2022. In his amended petition, he claimed that Attorney DeStefano
provided ineffective assistance of counsel in connection with Appellant’s
second PCRA petition by failing to conduct a proper, independent review of
the record, and by misstating material facts. In addition, on March 17, 2022,
Appellant also filed an objection to the PCRA court’s Rule 907 notice.
On March 21, 2022, the PCRA court issued a final order dismissing
Appellant’s PCRA petition. Therein, the court noted that Appellant’s amended
petition attempted to make a claim of ineffectiveness under Commonwealth
v. Bradley, 261 A.3d 381 (Pa. 2021).1 However, it determined that, because
____________________________________________
1 In Bradley, our Supreme Court held that “a PCRA petitioner may, after a
PCRA court denies relief, and after obtaining new counsel or acting pro se,
raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,
even if on appeal.” Id. at 401 (footnote omitted).
-3-
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of the baldness of Appellant’s ineffectiveness allegation and the frivolity of his
claims for relief, it declined to appoint new PCRA counsel.2
Thereafter, on April 15, 2022, Appellant filed a timely, pro se notice of
appeal. The PCRA court subsequently directed Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and he timely
complied. The trial court later issued a Rule 1925(a) opinion, in which it relied
on the reasoning set forth in its Rule 907 notice for dismissing Appellant’s
petition.
Appellant raises the following issues for our review:
1. Did the PCRA court abuse its discretion when it dismissed
[Appellant’s] most recent PCRA [p]etition without an evidentiary
hearing with respect to his [a]fter-[d]iscovered [f]acts claim
related to [c]o-defendant Ann Daw’s letter, where said court held
that [Appellant] met the standard of the [n]ewly-[d]iscovered
[f]acts exception to the PCRA time-bar, thereby entitling him to
a[n] evidentiary hearing on his Brady[3] claim where a possible
miscarriage of justice may have occurred[?]
2. Did the PCRA court abuse its discretion by denying [Appellant’s]
request to file an amended PCRA petition relating to PCRA
counsel[’s] ineffectiveness in accordance with the Pennsylvania
Supreme Court’s decision in … Bradley, and in direct contradiction
of the purpose of the Rule 907 [n]otice, thereby violating
[Appellant’s] [d]ue [p]rocess [r]ights[?]
3. Did … PCRA counsel render ineffective assistance when he failed
to conduct his own independent investigation of the entire record
concerning [Appellant’s] [n]ewly-[d]iscovered [f]acts claim[,]
____________________________________________
2 That same day, Appellant filed a motion to disregard his amended PCRA
petition or, in the alternative, to consider it as an addendum to his objection
to the court’s Rule 907 notice, as he said he prematurely filed it, incorrectly
anticipating that the court would grant him leave to do so.
3 Brady v. Maryland, 373 U.S. 83 (1963).
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which … sounded in a miscarriage of justice based upon a Brady
claim[?]
4. Is [Appellant] entitled to an evidentiary hearing based upon all
of the above claims, where there is a strong showing that the
Commonwealth based its case and the subsequent conviction of
[Appellant] and his [c]o-defendant on [f]raud[?]
Appellant’s Brief at 4 (unnecessary emphasis omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the
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Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, Section 9545(b)(2) requires that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on February 9,
2005, and thus, he had until February 9, 2006, to file a timely petition.4
Consequently, his petition is facially untimely and, for this Court to have
jurisdiction to review the merits thereof, Appellant must prove that he meets
one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §
9545(b).
Instantly, Appellant claims that he meets the newly-discovered-fact
exception pursuant to Section 9545(b)(1)(ii). Specifically, in his petition, he
____________________________________________
4 The trial court entered an order on January 10, 2005, permitting Appellant
to withdraw his post-sentence motion. See Pa.R.Crim.P. 720(A)(2)(c) (“If the
defendant files a timely post-sentence motion, the notice of appeal shall be
filed … within 30 days of the entry of the order memorializing the withdrawal
in cases in which the defendant withdraws the motion.”).
-6-
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averred that his co-defendant — Ann Daw — sent him a letter, in which she
relayed that she
came across this [information] in [her] Defendant’s Supplement
page 6[, which] states that defendants is [sic] innocent of charges
of murder and conspiracy to commit murder because it was
insufficient evidence that the defendants possessed the requisite
specific intent for a first & third degree murder conviction.
Appellant’s Second PCRA Petition, 12/20/21, at Exhibit A at 4.5 Appellant
claimed, verbatim, that he “first learned of this previously undisclosed facts of
the Commonwealth not having sufficient evidence which would have
supported or proved a conviction for murder let a lone murder of the first or
third degree. The Commonwealth’s failure to disclose these facts is/was a
direct violation of Brady….” Id. at 6-7. See also id. at 8 (“[T]he
Commonwealth withheld the fact that its case and the evidence upon which it
was alleged was insufficient to support the charge(s) and/or convictions of
murder of the first or third degree, thus, rendering [Appellant’s] alleged pleas
invalid due to them being based upon a Brady violation and under the
circumstances can only be viewed as [f]raud….”) (emphasis omitted); id. at
10 (“[T]he prosecutors [sic] failure to disclose these facts that the evidence
was insufficient to support or prove the defendants guilty of first or third
degree was prosecutorial misconduct because it was intentionally suppressed
while the prosecutor sought a sentence of death or life imprisonment.”).
____________________________________________
5Based on Appellant’s arguments, it appears that Ms. Daw pled guilty to third-
degree murder. See PCRA Petition at 2 (indicating that Ms. Daw entered a
negotiated plea to third-degree murder).
-7-
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Here, the PCRA court determined that Appellant’s claim did not meet
the newly-discovered-fact exception, reasoning:
[W]e do not find that [Appellant] has satisfied the timeliness
exception under [Section] 9545(b)(1)(ii).[6] While [Appellant]
has blanketly claimed to be without knowledge of the alleged
statement within some document within Ms. Daw’s possession, he
has failed to provide any specific details of his claim. For example,
he has not secured a copy of whatever document Ms. Daw claims
to have containing the statement in question. He clearly assumes
that it is a police report and that it was not provided to his
attorneys. However, other than invoking his Brady claim, he
never actually alleges that the “report” in question was not
provided to his attorneys. Simply because [Appellant] himself was
unaware of something does not mean that it was withheld from
him. Likewise, [Appellant] fails to address how the document
could not have been discovered through the exercise of due
diligence.
Even if we were to consider [Appellant’s] claim timely, it is devoid
of merit. As already stated, we cannot even assume that the
document is, in fact, a police report. The letter references it as
“Defendant’s Supplement.” This seems an odd title for a police
report, but we are left only to wonder and speculate. The
operative opinion of [Appellant’s] innocence could have been
made by a police officer or it could have been made by Ms. Daw’s
attorney in a document prepared for her. If so, there is not even
the pretense of a Brady claim.
If we, once again, presume that the document is a report prepared
by a police officer, [Appellant’s] claim is still without any merit.
The statement upon which [Appellant] relies does not actually
reveal some previously unknown admissible fact. At best, it
reveals a police officer’s conclusory opinion from applying a set of
facts to the applicable law. Such is the role of juries and not
witnesses and would not have been admissible at trial. Therefore,
we cannot find that [Appellant] suffered a constitutional violation
which prevented a reliable adjudication of guilt or innocence from
____________________________________________
6We note that the PCRA court ascertained that Appellant satisfied Section
9545(b)(2), by filing his petition within one year of the date the claim could
have been presented. See PCO at 4. However, we remind Appellant that he
must fulfill the requirements of both Section 9545(b)(1) and (b)(2).
-8-
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taking place, or that the so-called newly[-]discovered evidence
was exculpatory and would have changed the outcome of the trial
if it had been introduced. 42 Pa.C.S.[] § 9545(a)(2)(i) and (vi).
PCO at 4-5.7
We agree with the PCRA court that Appellant’s claim does not meet the
newly-discovered-fact exception of Section 9545(b)(1)(ii). That some
unknown person in some unknown document opined that there was
‘insufficient evidence that the defendants possessed the requisite specific
intent for a first & third degree murder conviction’ does not constitute a new
fact for purposes of Section 9545(b)(1)(ii). As our Supreme Court has pointed
out:
Black’s Law Dictionary explains the distinction [between ‘law’ and
‘fact’] thusly: “Law is a principle; fact is an event. Law is
conceived; fact is actual. Law is a rule of duty; fact is that which
has been according to or in contravention of the rule.” Black’s
Law Dictionary 592 (6th ed.1991). Put another way, “A ‘fact,’ as
distinguished from the ‘law,’ … [is that which] is to be presumed
or proved to be or not to be for the purpose of applying or refusing
to apply a rule of law.” Id. Consistent with these definitions, an
____________________________________________
7 In response to the PCRA court’s observation that it is unclear what kind of
document ‘Defendant’s Supplement’ is, as Appellant had not secured a copy
of it, Appellant asserted in his objection to the court’s Rule 907 notice that:
As to [Appellant’s] not being able to produce a copy of the
document that is in the possession of Ms. Daw, [Appellant] asserts
that [the] Department of Corrections[’] policies prohibited Ms.
Daw from sending [Appellant] that type of mail. Moreover, the
information contained in the … document in the possession of Ms.
Daw is not and cannot be a police report as the court suggest[s].
This information was clearly received by Ms. [D]aw, after she was
seen by the Pennsylvania Board of Probation and Parole.
Objection to Rule 907 Notice, 3/17/22, at ¶ 8. See also Appellant’s Brief at
11 (claiming that Ms. Daw could not send him the ‘Defendant’s Supplement’
because the Department of Corrections does not permit inmates to possess
other inmates’ mail).
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in-court ruling or published judicial opinion is law, for it is simply
the embodiment of abstract principles applied to actual events.
Commonwealth v. Watts, 23 A.3d 980, 986-97 (Pa. 2011).
Someone’s opinion that there was ‘insufficient evidence that the
defendants possessed the requisite specific intent for a first & third degree
murder conviction’ does not constitute an ‘event,’ but instead is more akin to
‘the embodiment of abstract principles applied to actual events.’ Accord PCO
at 5 (“The statement upon which [Appellant] relies does not actually reveal
some previously unknown admissible fact. At best, it reveals a police officer’s
conclusory opinion from applying a set of facts to the applicable law. Such is
the role of juries and not witnesses and would not have been admissible at
trial.”). In other words, the at-issue statement is a legal conclusion reached
by someone, not a new fact. Thus, Appellant has not shown that he meets
the newly-discovered-fact timeliness exception.
Appellant also complains that the PCRA court abused its discretion by
denying his request to file an amended PCRA petition. See Appellant’s Brief
at 13. Despite the PCRA court’s denial of his request, the docket reflects that
Appellant nevertheless filed an amended petition, and that the PCRA court
considered it in issuing its final order dismissing Appellant’s petition. See
Order, 3/21/22, at 1 (unpaginated) (“We also note that [Appellant’s]
[a]mended PCRA [p]etition attempts to make a claim of the ineffectiveness of
PCRA counsel…. This claim is based upon [his] contention that PCRA [c]ounsel
failed to ‘conduct a proper independent review of the entire record.’
Considering the baldness of this allegation and the frivolity of [Appellant’s]
- 10 -
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claims for relief, we decline to appoint new PCRA counsel.”). Thus, as the
PCRA court considered the claims made in Appellant’s amended petition, no
relief is due on this basis.
Finally, Appellant says that Attorney DeStefano “render[ed] ineffective
assistance when he failed to conduct his own independent investigation into
the entire record concerning Appellant’s [n]ewly-discovered[-]facts claim.”
Appellant’s Brief at 18. Specifically, Appellant argues that Attorney DeStefano
should have contacted he or Ms. Daw about the ‘Defendant’s Supplement.’
Id. at 20. We agree with the PCRA court that, given the frivolity of Appellant’s
claim that he learned a ‘new fact’ because some unidentified person opined
that there was insufficient evidence to prove Appellant possessed the requisite
specific intent in his case, Attorney DeStefano did not act ineffectively. See
Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009) (“To
prevail on a claim that counsel was constitutionally ineffective, the [a]ppellant
must overcome the presumption of competence by showing that: (1) his
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceedings would have been
different.”) (cleaned up; emphasis added).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2022
- 12 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482102/ | J-S24009-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD FAHEEM MCDANIELS :
:
Appellant : No. 2369 EDA 2021
Appeal from the Judgment of Sentence Entered June 4, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000062-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 7, 2022
Ronald Faheem McDaniels appeals, nunc pro tunc, from the judgment
of sentence imposed following his convictions for one count each of possession
of a firearm with an altered manufacturer’s number, receiving stolen property,
and possession with intent to deliver cocaine (“PWID”), and three counts of
criminal conspiracy.1 On appeal, McDaniels challenges the sufficiency and
weight of the evidence supporting his convictions and raises a discretionary
aspects of sentencing claim. Following careful review, we affirm.
In October 2018, Pottstown Police officers used two confidential
informants to conduct four controlled drug buys from a home located on
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 6110.2(a), 3925(a), 903; 35 P.S. § 780-113(a)(30).
J-S24009-22
Lincoln Avenue in Pottstown, Montgomery County, Pennsylvania. See N.T.
(Jury Trial), 3/3/20, at 88-90. The confidential informants contacted either
Jean Gross or McDaniels’s brother, Jamar, to arrange the sales. See id. at 90,
98, 100. The confidential informants were searched before and after the buys
and were provided with recorded cash to complete the transaction. See id. at
92-94, 96. Each controlled buy produced crack cocaine. See id. at 94, 99-
102.
Based on information gleaned from their investigation and the series of
controlled buys, police obtained a search warrant for the house. A Montgomery
County SWAT team executed the nighttime search warrant on November 2,
2018. See id. at 25-26. The SWAT team located four individuals in the house—
McDaniels, Jamar, another man named Kysim Gardner, and McDaniels’s minor
son. See id. at 28. Glen Michael Shirey, Jr., the SWAT tactical team leader,
identified McDaniels as one of those individuals during trial. See id. at 28-29.
After the residence was cleared, Sergeant Edward Kropp, Jr. (“Sgt.
Kropp”), and other officers began the search. In the kitchen, police recovered
a small bag containing 0.33 grams of crack cocaine; a gun case; a gun holster;
empty vials; a bottle containing caffeine supplements; a bag containing
packaging materials (Ziploc bags, empty yellow vials, and clear capsules); a
bottle of mannitol; and a black vest, one pocket of which contained cash and
a key. See id. at 39-51. The second pocket of the vest contained a cigarette
box, which held an identification card, an Access card, and an insurance card
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for Jamar,2 as well as vials containing 0.88 grams of cocaine and N-
Ethylpentylone. See id. at 53.
In the dining room, police recovered two Ziploc bags, one of which had
white residue; a black bag containing a gold watch, clear capsules, and empty
yellow vials; plastic containers holding cocaine and N-Ethylpentylone; and a
silver box containing several plastic bags and one vial of cocaine. See id. at
56-62. Additionally, police found two digital scales, both of which tested
positive for cocaine residue, and two gun cases. See id. at 62, 111. Cash,
empty vials, multiple vials containing cocaine, plastic containers with 20.05
grams of cocaine and N-Ethylpentylone, a razor blade, and a straw were
discovered inside one of the gun cases. See id. at 63-65. The second gun
case contained a loaded magazine. See id. at 65-66.
From the living room, police recovered two cell phones; a black mask;
a blue bag containing a Zoraki pistol with an extended magazine; cigarette
packs holding a razor, packaging materials, and a Sprint receipt for the phone
number (XXX) XXX-1135; and a loaded .40 caliber Ruger pistol with a
scratched serial number. See id. at 71-81.
____________________________________________
2 McDaniels was tried jointly with co-defendant Jamar. Jamar was convicted
of one count each of PWID, possession of a firearm with an altered
manufacturer’s number, and criminal use of a communication facility, and
three counts of conspiracy. The trial court sentenced Jamar to 10 to 20 years
in prison. In Jamar’s direct appeal, this Court affirmed Jamar’s judgment of
sentence. See Commonwealth v. McDaniels, 258 A.3d 543 (Pa. Super. filed
June 22, 2021) (unpublished memorandum).
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Pottstown Borough Police Officer Brett Cortis (“Officer Cortis”) was
involved with the search of the second floor of the house. In the south
bedroom, police recovered approximately $2,400.00 in cash and identification
and debit cards for Jamar, hidden in a sock; a plastic bag containing 14.32
grams of cocaine; a duffel bag holding two cell phones, mail addressed to
Jamar at the Lincoln Avenue address, and a box of 0.40 caliber ammunition;
and paperwork indicating Gardner had borrowed $1,600.00 from McDaniels.
See id. at 179-88.
In the north bedroom, police found two loaded handguns (a Taurus .40
caliber and a Glock 27),3 two rounds of 0.40 caliber ammunition, 2.93 grams
of marijuana, and yellow vials, all sitting on top of an ottoman. See id. at
189-96. From inside the ottoman, police recovered a cigar box containing a
sales ledger, clear glassine bags, a razor, a straw, a yellow container with
cocaine, two clear bags filled with 117.84 grams of cocaine, and various
documents. See id. at 197-98, 200-01. Significantly, the documents included
a billing statement from the Social Security Administration addressed to
McDaniels at the Lincoln Avenue address and McDaniels’s birth certificate. See
id. at 198-99. Police also recovered $4,667.00 in cash from a sock stuffed into
the pocket of a pair of jeans found on the floor, and $20.00 matching the pre-
recorded money from the controlled buy. See id. at 202-04. In the second
____________________________________________
3During trial, the parties stipulated that the Glock 27 had been reported stolen
by its owner on October 29, 2018. See N.T. (Jury Trial), 3/5/20, at 77.
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pocket of the jeans, police recovered $667.00 in cash. See id. at 204. Further,
in a nightstand, police found a cell phone, McDaniel’s state-issued
identification card identifying his home address as the location being searched,
boxes of 9-millimeter ammunition, a ledger for narcotics sales, and a pipe
used for smoking marijuana. See id. at 204-07. Two additional boxes of
ammunition were found in the room, one containing .40 caliber rounds and a
second box with an assortment of ammunition. See id. at 208. In the closet
of the north bedroom, police found small, clear plastic bags; glassine bags
commonly used in narcotics packaging; paperwork including traffic citations
for McDaniels and a utility bill, each identifying the Lincoln Avenue address; a
safe; a 9-millimeter magazine; and a Smith & Wesson 9-millimeter handgun
under the bed. See id. at 209-15.
Following a jury trial, McDaniels was convicted of the above-mentioned
offenses. The trial court deferred sentencing for preparation of a pre-sentence
investigation report (“PSI”). On June 4, 2020, the trial court sentenced
McDaniels to 5 to 10 years in prison, with credit for time served, for his PWID
conviction; a consecutive prison term of three to six years for his conviction
for possession of a firearm with an altered manufacturer’s number; and a
consecutive term of one to two years in prison for his criminal conspiracy for
criminal use of a communications facility conviction. For the remaining
convictions, the trial court entered a determination of guilty without further
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penalty. McDaniels filed a notice of appeal on July 16, 2020, and this Court
quashed the appeal as untimely filed. See Order, 4/21/21.
McDaniels subsequently filed a petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”), seeking reinstatement of his rights to file a
post-sentence motion and direct appeal. The PCRA court granted the petition.
McDaniels filed a post-sentence motion challenging the weight of the evidence
and the discretionary aspects of his sentence. The trial court denied
McDaniels’s post-sentence motion, and this nunc pro tunc appeal followed.
McDaniels raises three challenges to the sufficiency of the evidence
presented at trial. We review challenges to the sufficiency of the evidence with
great deference to the credibility determinations of the fact finder:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
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Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc) (citation omitted).
In his first claim, McDaniels asserts there was insufficient evidence
supporting his conviction of criminal conspiracy – PWID. See Appellant’s Brief
at 17. McDaniels concedes the evidence was sufficient to establish PWID under
a theory of constructive possession, based on “testimony that more than 100
grams of cocaine was discovered in a bedroom that also contained his personal
effects … in light of other evidence that packaging materials, a drug sale
ledger, and more than $5,000 was also found among his personal
possessions.” Id. at 20. He argues, however, that the Commonwealth failed
to establish that he conspired with Jamar or Gross to sell drugs. See id. at
20-21. McDaniels claims the evidence indicates the confidential informants
arranged to purchase cocaine by contacting only Jamar or Gross. See id. at
21. Further, McDaniels points out that “when Jamar [] sent [McDaniels] a text
message asking [McDaniels] to call him to arrange a drug sale, [McDaniels]
did not respond to the text message.” Id. at 22 (citation to record omitted).
To define the crime of conspiracy to commit PWID, we must first define
the crime of PWID. The Controlled Substance, Drug, Device and Cosmetic Act
prohibits, inter alia, “possession with intent to manufacture or deliver[] a
controlled substance by a person not registered under this act….” 35 P.S. §
780-113(a)(30). “[P]ossession with intent to deliver can be inferred from the
quantity of the drugs possessed along with the other surrounding
circumstances.” Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super.
-7-
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2005) (citation omitted). In the absence of direct evidence of possession (i.e.,
finding a controlled substance on the defendant’s person), the Commonwealth
may establish constructive possession, which “requires proof of the ability to
exercise conscious dominion over the substance, the power to control the
contraband, and the intent to exercise such control.” Commonwealth v.
Perez, 931 A.2d 703, 708 (Pa. Super. 2007).
Therefore, to prove the crime of conspiracy to commit PWID, the
Commonwealth was required to prove that McDaniels had an agreement with
either Jamar or Gross to commit the crime of PWID and that one of the
conspirators acted to further the commission of PWID:
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
***
(e) Overt act.--No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S.A. § 903. “Simplified, this requires proof of three elements: 1) an
agreement, 2) shared criminal intent, and 3) an overt act.” Commonwealth
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v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018). A defendant may be liable
for overt acts committed by any of the co-conspirators so long as the evidence
establishes the defendant intentionally entered a conspiratorial agreement.
See Commonwealth v. Rosario, 248 A.3d 599, 611 (Pa. Super. 2021).
Further,
[d]irect evidence of the defendant’s criminal intent or the
conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
the relations, conduct or circumstances of the parties or overt acts
on the part of the con-conspirators. Once the trier of fact finds
that there was an agreement and the defendant intentionally
entered into the agreement, the defendant may be liable for the
overt acts committed in furtherance of the conspiracy regardless
of which co-conspirator committed the act.
Id. (citation omitted); see also Perez, 931 A.2d at 708 (circumstances
establishing conspiracy may include “association between alleged
conspirators, knowledge of the commission of the crime, presence at the scene
of the crime, and/or participation in the object of the conspiracy”).
Here, Officer Cortis testified that on October 17, 2018, he observed
McDaniels standing outside the residence with Jamar and Gross before the
confidential informant arrived by vehicle. See N.T. (Jury Trial), 3/3/20, at
175-76. The confidential informant met with Jamar outside then accompanied
him inside the house. See id. at 176. The pair came back outside, and Jamar
stood with McDaniels and Gross after the informant drove away. See id.
Officer Cortis also testified that he applied for and obtained search
warrants for numerous cell phones that were found at the Lincoln Avenue
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address. See N.T. (Jury Trial), 3/5/20, at 27. The iPhone found in the living
room, with the phone number (XXX) XXX-1135 was identified as Jamar’s, due
to the confidential informant using that number to communicate with Jamar
prior to the controlled buys. See id. at 32-33. Messages received on Jamar’s
phone from the phone number associated with Gross relate to arranging drug
sales, and some reference “R.” See, e.g., id. at 47 (“Let R know that Alfred
is coming by for a spot till tomorrow.”), 48 (“Yo, answer the phone or call me
back. R’s phone is off. I need somebody. I’ve got somebody coming by for
60.”). Jamar’s phone also revealed messages to the phone number McDaniels
identified as his own on the vital statistics form he had submitted to the court.
See id. at 51 (“Yo, bro, call me. A white old lady about to pull up for 2 H.”).
A text message from Jamar to an apparent client stated, “Not at the house
right now, but you can see my brother.” Id. at 43.
Additionally, Robert Larkin, the owner of the Lincoln Avenue property,
identified McDaniels as one of the tenants. See id. at 12-13. Larkin testified
that McDaniels, Gross, and Gross’s mother had signed a lease for the property
in 2017. See id. at 13. According to Larkin, Gross asked to rent an apartment
in another one of his properties in late October 2018. See id. at 15-16.
Moreover, drugs, packaging materials, and firearms were found
throughout several common areas in the house. See generally N.T. (Jury
Trial), 3/3/20, at 39-81. Officer Cortis also testified that a pre-recorded $20
bill that had been used during the controlled buys was found amongst the
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significant amount of cash discovered in a pair of jeans on the floor of
McDaniels’s bedroom. See id. at 202-04.
The above evidence, viewed in the light most favorable to the
Commonwealth as the verdict winner, was sufficient to sustain McDaniels’s
conviction for criminal conspiracy – PWID. The evidence reflects that Gross
sent customers to the Lincoln Avenue address, where McDaniels lived (and
where Gross had previously lived with him), to purchase drugs. Messages
between Gross and Jamar, and between Jamar and McDaniels, also implicate
McDaniels’s involvement. Further, as the trial court noted, the presence of
$20.00 of pre-recorded money from a controlled buy, “which was arranged by
Jean Gross, showed that [McDaniels] and his co[-]conspirators shared
proceeds from each other’s drug sales as part of their ongoing conspiracy.”
Trial Court Opinion, 1/6/11, at 15. Even in absence of direct evidence of
McDaniels’s participation in the controlled buys, evidence of McDaniels’s
shared criminal intent while his co-conspirators committed the overt acts
sufficiently establishes his intentional entry into the agreement. See Rosario,
248 A.3d at 611. Accordingly, McDaniels is not entitled to relief on this claim.
In his second claim, McDaniels contends the evidence presented at trial
was insufficient to sustain his convictions for possession of a firearm with an
altered manufacturer’s number and criminal conspiracy to commit same. See
Appellant’s Brief at 27. McDaniels asserts the Commonwealth failed to
establish his constructive possession of the firearm with an altered
manufacturer’s number, a Ruger pistol, “which was secreted away in a drawer
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in an end table in the living room.” Id. at 29. According to McDaniels, there
was no evidence specifically tying him to the weapon. See id. Alternatively,
McDaniels argues he lacked the requisite mens rea to support these
convictions. See id. at 30. In particular, he claims the evidence does not
support a finding that McDaniels had actual knowledge that the serial number
had been obscured. See id. at 32-33.4
The Uniform Firearms Act provides that “[n]o person shall possess a
firearm which has had the manufacturer’s number integral to the frame or
receiver altered, changed, removed or obliterated.” See 18 Pa.C.S.A. §
6110.2(a). The Commonwealth must establish “that a defendant acted
intentionally, knowingly, or recklessly with respect to the obliterated
manufacturer’s number on the firearm.” Commonwealth v. Jones, 172 A.3d
1139, 1145 (Pa. Super. 2017).
Further, the Commonwealth may establish possession under a theory of
constructive possession. See Commonwealth v. Smith, 146 A.3d 257, 263
(Pa. Super. 2016).
Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than not.
Constructive possession may be proven by circumstantial
evidence and the requisite knowledge and intent may be inferred
from examination of the totality of the circumstances. Moreover,
we review circumstantial evidence under the same standard as
____________________________________________
4 McDaniels does not separately address his conviction for criminal conspiracy
to possess a firearm with an altered manufacturer’s number. Rather, he relies
on the arguments made in support of his first claim challenging his conviction
for conspiracy to commit PWID.
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direct evidence, i.e., that a decision by the trial court will be
affirmed so long as the combination of evidence links the accused
to the crime beyond a reasonable doubt.
Id. (internal citations, quotation marks, and paragraph break omitted).
We conclude the evidence presented at trial, viewed in the light most
favorable to the Commonwealth as the verdict winner, was sufficient to
establish McDaniels had knowledge of the firearm’s existence and location in
the house5 and the intention to possess it. Sgt. Kropp testified at trial that the
Ruger pistol with an altered manufacturer’s number was discovered inside an
end table in the living room. See N.T. (Jury Trial), 3/3/20, at 79. Sgt. Kropp
testified the serial number had been “scratched up.” Id. at 80; see also
Exhibits C-57, C-58, C-59, C-60, C-61, C-98 (depicting the Ruger and the
scratching on the serial number). The Commonwealth also introduced into
evidence photographs recovered from Jamar’s cell phone, one of which
showed McDaniels standing in the living room of the house, holding a handgun
in his hand, and carrying another firearm in his belt. See N.T. (Jury Trial),
3/5/20, at 51-55; see also Exhibit C-208. Therefore, the circumstantial
evidence was sufficient to establish McDaniels constructively possessed the
firearm with an altered manufacturer’s number. See Smith, 146 A.3d at 263
(concluding the Commonwealth presented sufficient evidence to establish the
____________________________________________
5 Significantly, McDaniels does not contest that he resided at the Lincoln
Avenue address. In fact, McDaniels signed a vital statistics form, which was
submitted to the court, which confirmed his address. See N.T. (Jury Trial),
3/3/20, at 108.
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appellant’s constructive possession of a firearm with an altered manufacturer’s
number, where other items recovered in the same area belonged to the
appellant and identified his address as the one searched, and the appellant
had fled to the room where the firearm had been recovered). Accordingly, this
claim is without merit.
Next, McDaniels asserts there was insufficient evidence supporting his
conviction for criminal conspiracy – criminal use of a communication facility.
See Appellant’s Brief at 34. McDaniels claims the evidence showed that Jamar
and Gross communicated regularly to arrange drug sales from the Lincoln
Avenue address. See id. at 35. However, McDaniels avers, the analysis of his
cell phone revealed only one incoming text from Jamar referencing drug sales,
and there was no evidence that McDaniels responded to the message. See id.
at 35-36.
We disagree with McDaniels’s legal conclusions as well as his description
of the record. First, we conclude that the single text, by itself, would be
sufficient to allow a fact-finder to infer McDaniels used his phone to facilitate
the conspiracy to sell narcotics. Further, we note that this text message is not
the only evidence capable of supporting a finding that McDaniels utilized his
phone in furtherance of the conspiracy. Gross sent a text message to Jamar
expressing her frustration that McDaniels was not answering her calls because
she needed someone to meet customers at the house. This evidence would
permit a fact-finder to infer that the conspirators coordinate their efforts
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through phone calls to each other. Given these conclusions, McDaniels’s third
claim merits no relief.
In his fourth claim, McDaniels argues the verdict was against the weight
of the evidence. See Appellant’s Brief at 37. McDaniels challenges the
credibility of Officer Cortis’s testimony. See id. at 39-40. In particular,
McDaniels asserts that
[i]t simply defies logic and strains common sense to believe that
[McDaniels], a supposedly sophisticated drug dealer accused of
trafficking significant quantities of cocaine, would keep his birth
certificate and state-issued identification card next to his drugs
and trafficking supplies, especially where this testimony appeared
tailored to remedy a weakness in the Commonwealth’s case by
establishing [McDaniels’s] ownership of the drugs.
Id. at 40.6
A weight of the evidence claim is addressed to the discretion of the trial
court:
The weight of the evidence is a matter exclusively for the finder of
fact, who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. A new trial is not
warranted because of a mere conflict in the testimony and must
have a stronger foundation than a reassessment of the credibility
of witnesses. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice. On appeal, our purview is extremely
limited and is confined to whether the trial court abused its
discretion in finding that the jury verdict did not shock one’s
conscience. Thus, appellate review of a weight claim consists of a
____________________________________________
6 We observe that McDaniels conflates the distinct concepts of weight and
sufficiency of the evidence in parts of his argument by relying on his prior
argument challenging the sufficiency of the evidence supporting his conspiracy
to commit PWID conviction.
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review of the trial court’s exercise of discretion, not a review of the
underlying question of whether the verdict is against the weight of
the evidence. An appellate court may not reverse a verdict unless
it is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Diaz, 152 A.3d 1040, 1046 (Pa. Super. 2016) (citation
and internal quotation marks omitted). “One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence….” Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
McDaniels fails to specify which conviction or convictions he believes is
against the weight of the evidence. However, as the trial court noted,
McDaniels’s argument for this issue suggests a challenge to his PWID
conviction. The trial court concluded McDaniels’s PWID conviction is not
against the weight of the evidence considering the large quantity of cocaine
recovered from his bedroom along with his birth certificate and state
identification, firearms, cash, drug sales ledgers, and cutting and packaging
materials. See Trial Court Opinion, 1/6/22, at 18. The trial court also noted
that drugs and related paraphernalia were discovered throughout the other
rooms of the house. See id. While we agree that it is surprising that
McDaniels’s birth certificate was found with narcotics, this does not necessitate
a conclusion that this evidence shocks the judicial conscience. To the contrary,
people, and especially criminals, often make decisions that look objectively
ludicrous with the benefit of hindsight.
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Upon review, we conclude the evidence adequately supports the trial
court’s determination, and we discern no manifest abuse of discretion by the
trial court in reaching this conclusion. See Diaz, 152 A.3d at 1046. We cannot
state that the trial court abused its discretion in concluding the verdict did not
shock its conscience. See id. Therefore, McDaniels is not entitled to relief on
this claim.
Finally, McDaniels claims the trial court relied too heavily on the severity
of the offense and imposed a manifestly excessive aggregate sentence without
proper consideration of certain mitigating factors. See Appellant’s Brief at 42.
“A challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citation omitted). Rather, an appellant must invoke this Court’s jurisdiction.
See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(citation omitted).
[W]e conduct a four-part analysis to determine: (1) whether
the appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
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that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, McDaniels preserved his claim in a nunc pro tunc post-sentence
motion and filed a nunc pro tunc notice of appeal. McDaniels also included a
separate Rule 2119(f) statement in his appellate brief, asserting the trial court
imposed an unduly harsh sentence based exclusively on the seriousness of
the crime, without consideration of relevant mitigating factors. See
Appellant’s Brief at 41-42. We conclude McDaniels raised a substantial
question for our review, and we proceed to the merits of his sentencing
challenge. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (explaining that “an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.” (citation and quotation marks omitted)).
We review discretionary sentencing challenges with great deference to
the sentencing court:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted).
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“In every case in which the court imposes a sentence for a felony … the
court shall make as a part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,
812 A.2d 617, 620-21 (Pa. 2002) (plurality). “In considering these factors,
the court should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citation omitted). The trial
court must also consider the sentencing guidelines. See 42 Pa.C.S.A. §
9721(b); see also Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.
Super. 2008) (stating that “[w]hen imposing a sentence, the [trial] court is
required to consider the sentence ranges set forth in the Sentencing
Guidelines….”). Moreover, where, as here, the trial court has the benefit of a
PSI, “we can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Moury, 992 A.2d at 171 (internal quotation
marks and citation omitted).
McDaniels argues that his aggregate sentence of nine to eighteen years
of imprisonment is excessive when compared to 48- to 66-month standard
range sentence suggested by the guidelines for his most serious conviction.
See Appellant’s Brief at 42. He contends the court “relied solely on the
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seriousness of appellant’s crime while ignoring substantial evidence that would
have supported the imposition of a mitigated sentence.” See id. at 43.
Initially, each of the sentences imposed are within the standard range
of the sentencing guidelines based upon McDaniels’s prior record score of two
and the applicable offense gravity scores. See 204 Pa. Code § 303.16(a).
Therefore, we may only vacate McDaniels’s sentence if “the case involves
circumstances where the application of the guidelines would be clearly
unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); see also Moury, 992 A.2d at 171.
During the sentencing hearing, McDaniels’s counsel argued that
McDaniels’s criminal history was relatively minimal, with only one prior
offense. See N.T. (Sentencing), 6/4/20, at 7. Counsel also explained that
McDaniels had a difficult childhood and a “rough upbringing.” See id. at 8.
The trial court, prior to imposing the sentence, explained that it had fully
considered the PSI and the sentencing guidelines. See id. at 4, 14. The court
highlighted the significant amount of cocaine (approximately 186 grams in
total) recovered from the Lincoln Avenue address, as well as the number of
firearms, one of which had an altered manufacturer’s number. See id. at 15.
Further, the trial court acknowledged the mitigating factors raised by
McDaniels’s counsel. See id. The record therefore reflects that the trial court
was aware of all relevant sentencing factors, and we cannot conclude that
McDaniels has establish his standard-range sentence was unreasonable under
these circumstances.
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Based upon the foregoing, we affirm McDaniels’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
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https://www.courtlistener.com/api/rest/v3/opinions/8482095/ | J-A18024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF GEORGE : IN THE SUPERIOR COURT OF
PORUPSKI : PENNSYLVANIA
:
:
APPEAL OF: JOSEPH M. PORUPSKI :
:
:
:
: No. 1201 WDA 2021
Appeal from the Decree Entered September 9, 2021
In the Court of Common Pleas of Fayette County
Orphans’ Court at 541 OC 1979
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 7, 2022
Joseph M. Porupski (Appellant) appeals from trial court’s decree of
distribution, awarding to participant Margaret Gunnoe (Gunnoe) a one-quarter
(1/4) interest in the Estate of George Porupski (Decedent), comprised of
certain real property in Fayette County, Pennsylvania. After careful review,
we affirm.
In a prior appeal, this Court summarized the case history as follows:
The pleadings and notes of testimony to the January 14,
2021, hearing indicate the following. … [Decedent] died testate
in 1979. He owned 61 acres of real property in Nicholson
Township, Fayette County, which included a residence.
Decedent’s will devised a life estate in the residence to his
daughter, [Gunnoe], subject to her upkeep of the house and
payment of taxes and insurance. Decedent further bequeathed
the rest and residue of his Estate in equal shares to his four
children: [Gunnoe]; Joseph R. Porupski[, the Estate’s executor
and Appellant’s father] (Executor) … ; and two additional children.
Appellant, who was 57 years old in 2021, is Decedent’s grandson
and Executor’s son. Appellant is also [Gunnoe’s] nephew.
J-A18024-22
In 1992, the house was destroyed by a fire. Subsequently,
[Gunnoe] lived in a mobile home, and then a modular home, on
the property. Appellant alleged that in 1994, [Gunnoe] agreed to
relinquish her one-fourth interest in the residual estate, in
exchange for Executor purchasing the $36,022.50 modular home
for her. N.T., 1/14/21, at 35, 39. [Gunnoe], however, denied
that she ever waived her interest. Id. at 18.
The other two siblings transferred their one-fourth interests
in the Estate to Executor in 19831 and 1993.2 Appellant alleged
that until 2006, Executor solely paid the real estate taxes,
insurance, and maintenance costs for the property. N.T. at 32-
33. Executor eventually borrowed money from his son —
Appellant — to pay these expenditures. Id. at 40. In 2006,
Executor, acting in his individual capacity and as Executor,
transferred the deed to the property to Appellant, as
satisfaction of the loan.3 Id. at 40, 57. Appellant testified that
in 2006, Executor informed [Gunnoe] of this transfer. Id. at 41.
[Gunnoe], on the other hand, testified that she did not learn about
the transfer until 2018, when she consulted an attorney about
transferring her share of the estate to her sons. Id. at 18.
Appellant also averred that since 2006, he has solely paid
the insurance, real estate taxes, and maintenance costs for the
property. N.T. at 30, 33, 44. Meanwhile, [Gunnoe] testified her
modular home was assessed separately from the land, and she
has paid the taxes on the home since 1994. Id. at 48-49.
____________________________________________
1 The 1983 Deed from Frank Porupski to Joseph Porupski states consideration
for the conveyance in the amount of one dollar ($1.00). Record Book (BK)
1324 page 762. However, the Deed later states: “The true and actual
consideration for this conveyance is $4,000. BK 1324, page 763.
2 The 1994 Deed from George Porupski, Jr., to Joseph Porupski states
consideration for the conveyance in the amount of seven thousand, six
hundred fifty dollars ($7,650.00). BK 1178, page 97. No additional
statement of consideration is included in the deed.
3 This conveyance was made by means of a “Corrective Deed” from Joseph
Porupski, Executor, to Joseph Porupski (Appellant), for consideration of one
dollar ($1.00). BK 3002, page 1238. No additional statement of consideration
is included in the deed.
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Executor died in 2010, without having filed any
accounting of the Estate. The two other siblings are also
deceased.
On February 12, 2019, [Gunnoe] filed the underlying
counseled motion to appoint a substitute administrator for the
Estate. Appellant filed an answer. On May 22, 2019, the orphans’
court appointed Simon John, Esquire (Administrator). On January
14, 2021, the court heard oral argument on various issues, as well
as testimony from Appellant, [Gunnoe], and [Gunnoe’s] daughter-
in-law. The court did not enter any rulings on the record at this
time. See N.T. at 77-78.
On February 5, 2021, the orphans’ court issued an order,
which, inter alia: (1) stated [Gunnoe] “did not execute a valid
release to her interest in the [E]state;” (2) rejected Appellant’s
claim of laches because [Gunnoe’s] interest in the residual estate
“vested as of the date of death;” and (3) directed the parties to
provide Administrator with any information necessary to file an
inventory of the Estate. Order, 2/5/21, at 1-2. This order did not
include any discussion of the court’s conclusions.
On August 10, 2021, Administrator filed a first accounting
of the Estate, listing only one asset, the real property. The
accounting did not include any expenses. Administrator also filed
a proposed distribution, recommending that: (1) Appellant receive
a three-fourths interest in the property and [Gunnoe] receive a
one-fourth interest; (2) Appellant transfer a one-fourth interest in
the property to [Gunnoe]; and (3) [Gunnoe] was liable to the
residuary heirs for real estate taxes paid from Decedent’s death
to the fire that destroyed the house.
In Re: Estate of Porupski, 2022 Pa. Super. Unpub. LEXIS 697, at *1-5 (Pa.
Super. Mar. 18, 2022) (emphasis and footnotes added).
In addition to the first accounting, the Administrator filed a proposed
decree of distribution. On August 15, 2021, Appellant filed exceptions to the
first accounting and proposed decree of distribution. On September 9, 2021,
the trial court entered its decree of distribution. Appellant filed both a notice
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J-A18024-22
of appeal and motion for reconsideration on October 7, 2021. Thereafter,
Appellant filed a court ordered Pa.R.A.P. 1925(b) concise statement. The
orphans’ court filed a statement in lieu of opinion on November 3, 2021.
On March 18, 2022, this Court remanded the case for the orphans’ court
to file an opinion addressing Appellant’s issues. In Re: Estate of Porupski,
2022 Pa. Super. Unpub. LEXIS 697, at *6. The orphans’ court filed its opinion
on March 28, 2022. The matter is now before us for review.
Appellant presents five issues for our review:
1. Whether the [orphans’] court had subject matter jurisdiction
and did the [orphans’] court err in awarding an interest in real
estate when the executor transferred the real estate for
valuable consideration?
2. Whether the [orphans’] court erred when it did not rule on the
issue that [Gunnoe] was guilty of laches?
3. Did the [orphans’] court err when it failed to conduct a hearing
on the exceptions filed to the proposed decree?
4. Did the [orphans’] court err in failing to address [the] unjust
enrichment of [Gunnoe]?
5. Whether the [orphans’] court erred in directing [] Appellant to
pay fiduciary fees in an estate that Appellant was not an heir,
legatee or devisee?
Appellant’s Brief at 6 (unnecessary capitalization omitted; number
designations added).
When we review an orphans’ court decree, we employ a deferential
standard of review, and “determine whether the record is free from legal error
and the court’s factual findings are supported by the evidence.” In re
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J-A18024-22
Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016) (en banc) (citation omitted).
Because the orphans’ court sits as the factfinder, we will not reverse credibility
determinations absent an abuse of discretion. Id. “However, we are not
constrained to give the same deference to any resulting legal
conclusions.” Id. (citation omitted).
In his first issue, Appellant purports to challenge the subject matter
jurisdiction of the orphans’ court. See Appellant’s Brief at 14; see also
Pa.R.A.P. 1925(b) Statement of Errors, 10/20/21, at ¶ 1 (challenging
jurisdiction of the court). In the argument section of his brief, Appellant
defines “jurisdiction” but offers no argument supporting his claim that the
orphans’ court lacked subject matter jurisdiction. Instead, Appellant argues
the Executor had the authority to sell real estate that was not specifically
devised by the Decedent. Appellant’s Brief at 16. Appellant asserts: “The
issue now before this Court is whether the Lower Court can invalidate a deed
made in 2006 by the Executor of an Estate when valuable consideration has
been made.” Appellant’s Brief at 15.
Appellant claims that although Decedent devised his residuary estate,
including the real estate, to his four children, “[D]ecedent did not specifically
devise his farm to any of his heirs.” Id. at 17. Appellant maintains the
Executor sold the real estate to satisfy an “outstanding debt for paying real
estate taxes, insurance and maintenance.” Id. at 21. Appellant asserts that
Gunnoe “has not paid anything towards these items for over forty years after
-5-
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the decedent passed on.” Id. According to Appellant, Executor had the
authority to sell the real estate to pay the costs for administration and
maintenance of the real estate. Id. at 21.
Thus, while Appellant baldly challenges the orphans’ court’s subject
matter jurisdiction, he fails to develop a supporting argument. He instead
argues the propriety of the Executor’s actions. “The Pennsylvania Rules of
Appellate Procedure require that each question an appellant raises be
supported by discussion and analysis of pertinent authority, and failure to do
so constitutes waiver of the claim.” Commonwealth v. Buterbaugh, 91
A.3d 1247, 1262 (Pa. Super. 2014). See Pa.R.A.P. 2119(a)-(b). Because
Appellant failed to develop his issue regarding jurisdiction, it is waived.4
Buterbaugh, 91 A.3d at 1262.
In his second issue, Appellant argues the orphans’ court erred “when it
did not rule on the issue that [Gunnoe] was guilty of laches[.]” Appellant’s
Brief at 22. Appellant states,
[Gunnoe] waited from September 2006 until February [] 2019 to
assert a claim of ownership of a one-fourth interest after the real
estate had been transferred for an outstanding debt for payment
of real estate taxes, insurance and maintenance.
____________________________________________
4 Appellant offers no legal authority to support a claim that the orphans’ court
lacks subject matter jurisdiction over the administration of a will where the
former executor failed to administer the estate. See 20 Pa.C.S.A. § 711(1)
(conferring mandatory jurisdiction on the orphans’ court for the
“administration and distribution of real and personal property of decedents’
estates”).
-6-
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Id. at 23-24. Appellant points out that the Executor died on December 16,
2010, and is not available to testify. Id. at 24. Further, Appellant claims
Gunnoe “herself cannot remember details about what happened years ago.”
Id. Appellant emphasizes Gunnoe’s 25-year delay in asserting her claim. Id.
According to Appellant, he has expended substantial funds for the taxes and
improvements on the property. Id. at 24-25.
This Court has summarized the principles applicable to a laches defense
as follows:
The question of whether laches applies is a question of law; thus,
we are not bound by the trial court’s decision on the issue.
Laches bars relief when the complaining party is guilty of
want of due diligence in failing to promptly institute the action
to the prejudice of another. Thus, in order to prevail on an
assertion of laches, respondents must establish: a) a delay
arising from petitioner’s failure to exercise due diligence;
and, b) prejudice to the respondents resulting from the delay.
The question of laches itself, however, is factual and is determined
by examining the circumstances of each case. Laches arises when
a party’s position or rights are so prejudiced by length of time and
inexcusable delay, plus attendant facts and circumstances, that it
would be an injustice to permit presently the assertion of a claim
against him.
Unlike the application of the statute of limitations, exercise of
the doctrine of laches does not depend on a mechanical
passage of time. Indeed, the doctrine of laches may bar a
suit in equity where a comparable suit at law would not be
barred by an analogous statute of limitations. Moreover,
the party asserting laches as a defense must present
evidence demonstrating prejudice from the lapse of
time. Such evidence may include establishing that a
witness has died or become unavailable, that
substantiating records were lost or destroyed, or that
-7-
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the defendant has changed his position in anticipation
that the opposing party has waived his claims.
In the absence of prejudice to the one asserting laches, the
doctrine will not be applied. In other words, prejudice to the
defendant must be shown as a prerequisite to the application
of laches.
In re Estate of Moskowitz, 115 A.3d 372, 380 (Pa. Super. 2015) (citations
and quotation marks omitted).
Our review of the record reveals no error in the orphans’ court’s
determination that laches does not apply. Laches is an equitable doctrine.
See id. “[H]e who seeks equity must do equity.” In re Estate of Aiello,
993 A.2d 283, 288 (Pa. Super. 2010) (citation omitted). That is, a party
seeking equitable relief must come before the court with clean hands. Id. “A
court may deprive a party of equitable relief where, to the detriment of the
other party, the party applying for such relief is guilty of bad conduct relating
to the matter at issue.” Id.
Instantly, the orphans’ court declined to find laches to be applicable,
based in part on the actions of the Executor and Appellant. The court
explained:
In [the court’s] Order dated February 5th, 2021, [the court]
rejected Appellant’s claim of laches, because [Gunnoe’s] interest
in the residual estate vested as of the date of death, meaning that
her one fourth (1/4) interest is secured and does not require her
to institute any other action or prosecute any other claim to be
valid. To even suggest [Gunnoe] failed to exercise due diligence
in a case where the Executor filed no accounting, no inheritance
tax, and transferred real estate from the estate to his family
members who were not beneficiaries set forth in the Will, defies
all notions of logic and common sense. It is the Executor’s duty
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to gather the assets, pay the bills, file the necessary tax returns,
prepare an account and make distribution to the beneficiaries.
None of that was done by this Executor. “An Executor is a
fiduciary no less than is a trustee and as such primarily owes a
duty of loyalty to a beneficiary of his trust.” In Re: Noonan’s
Estate, 361 Pa. 26 (1949). Executors, as well as other fiduciaries,
are under an obligation to make a full disclosure to beneficiaries
respecting their rights and to deal with them with the utmost
fairness. Id. at 29.
… [T]he failure of the Executor to responsibly perform his duties,
as defined by our Supreme Court, is the primary cause for the
delay in administering this estate. Further, we find no credible
evidence that there is any prejudice to Appellant resulting from
this delay, as he and/or the Executor received and have been
dealing with this property as their own to the detriment of
[Gunnoe]. Accordingly, Appellant has failed to establish either of
the two requirements necessary to prevail on a laches claim[.]
Orphans’ Court Opinion, 3/28/22, at 3-4. Upon review, we agree with the
orphans’ court and adopt its reasoning with regard to Appellant’s second issue.
See id.
In his third issue, Appellant challenges the orphans’ court’s failure to
conduct a hearing on his exceptions to the proposed decree. Appellant’s Brief
at 25. Appellant asserts he filed substantial documentation of his
expenditures for maintenance and improvements to the real estate. Id.
Appellant challenges the Administrator’s listing the real estate as an asset on
the Inventory, “although [it] had been in the Appellant’s name since 2006.”
Id. Appellant points out the Administrator listed no values or credit for
Appellant’s expenditures. Id. at 25-26. According to Appellant, the trial court
also erred in directing Appellant to pay one-half of the fiduciary fees, without
reimbursement for his expenditures. Id. at 26-27.
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In his Pa.R.A.P. 1925(b) statement, Appellant preserved the following
claim: “The trial court failed to hold a hearing on the Exceptions filed by
[Appellant].” Pa.R.A.P. 1925(b) Statement of Errors, 10/20/21, ¶ 2. Orphans’
Court Rule 8.1 specifically provides: “Except as provided in Rule 8.2, no
exceptions or post-trial motions may be filed to any order or decree of the
court.” Pa.R.O.C.P. 8.1. Rule 8.2 allows a party to request “reconsideration”
of any order, but does not require a hearing on a motion for reconsideration.
Pa.R.O.C.P. 8.2. Thus, Appellant’s claim based on the lack of hearing on his
“Exceptions” does not warrant relief.5
In his fourth issue, Appellant argues the orphans’ court erred by “failing
to address the unjust enrichment” of Gunnoe. Appellant’s Brief at 27.
Appellant asserts Gunnoe was unjustly enriched by (1) the Executor’s
payment of real estate taxes for the entire property; (2) the Executor’s
purchase of a mobile home for Gunnoe; and (3) the Executor’s advance of
$35,022.00 for the purchase of another mobile home Gunnoe titled in the
name of her sons. Id. at 28. According to Appellant, Gunnoe received an
amount in excess of what was devised to her. Id. at 29.
____________________________________________
5 Notably, the orphans’ court observed Appellant “raised no specific factual
dispute that would require any testimony or evidence, nor any authority which
requires [the court] to conduct a hearing on the exceptions.” Orphans Court
Opinion, 3/28/22, at 4. For the reasons set forth in our discussion of
Appellant’s fourth issue, we agree.
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To succeed on an unjust enrichment claim, a plaintiff must prove: “(1)
benefits [were] conferred on defendant by plaintiff; (2) appreciation of such
benefits by defendant; and (3) acceptance and retention of such benefits
under such circumstances that it would be inequitable for defendant to retain
the benefit without payment of value. Wilson v. Parker, 227 A.3d 343, 353
(Pa. Super. 2020) (citation omitted). “In determining if the doctrine applies,
our focus is not on the intention of the parties, but rather on whether the
defendant has been unjustly enriched.” Id. (citation and emphasis omitted).
“Unjust enrichment is an equitable remedy, defined as ‘the retention of
a benefit conferred by another, without offering compensation, in
circumstances where compensation is reasonably expected, and for which the
beneficiary must make restitution.’” Commonwealth v. Golden Gate Nat’l
Senior Care LLC, 194 A.3d 1010, 1034 (Pa. 2018) (quoting Roethlein v.
Portnoff Law Assocs., Ltd., 81 A.3d 816, 825 n.8 (Pa. 2013)).
The orphans’ court addressed Appellant’s unjust enrichment claim as
follows:
Any payments made were voluntary and we are unable to
ascertain how [Gunnoe] was unjustly enriched when Appellant
and/or Executor had the benefit of the use of one hundred percent
(100%) of the property for the last forty (40) years or more. The
Appellant and the Executor dealt with this property as their own
despite the clear language set forth in the Will, and now want
reimbursement for these voluntary payments. Contrary to the
assertion that [Gunnoe] would be unjustly enriched, this [c]ourt
believes that the real injustice would be if [Gunnoe] was stripped
of her interest in the estate. The Executor and his heir would
benefit from their self-dealing activities over the last forty (40)
- 11 -
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years and they would be unjustly enriched to the detriment of the
named beneficiary in the Will of her one quarter (1/4) interest.
Orphans’ Court Opinion, 3/28/22, at 4-5. Again, we agree with and adopt the
reasoning of the orphans’ court. See id.; In re Estate of Aiello, 993 A.2d
at 288 (recognizing a party seeking equitable relief must come before the
court with clean hands). See also 72 P.S. § 5511.12 (providing a tenant in
common may pay protect his interest in the property by paying his
proportionate share of the taxes owed); Bednar v. Bednar, 688 A.2d 1200,
1204 (Pa. Super. 1997) (“In light of section 5511.12, it becomes eviden[t]
that a cotenant who assumes the tax obligations of his fellow tenant does so
as a volunteer.”); Gallagher, Magner & Solomento, Inc. v. Aetna Cas. &
Sur. Co., 252 A.2d 206, 207 (Pa. Super. 1969) (recognizing “a tenant in
common who paid more than his proportionate share of the real estate taxes
charged against the land held in common, is not entitled to contribution from
his co-tenants in common for his excess tax payments.” (citing Lohr’s Estate,
200 A. 135 (Pa. Super.1938)).
Finally, in Appellant’s fifth issue, he claims the orphans’ court erred in
directing him to pay fiduciary fees to the Administrator “in an estate that
Appellant was not an heir, legatee or devisee.” Appellant’s Brief at 30 (some
capitalization omitted). Appellant asserts the orphans’ court had no legal basis
for charging him fiduciary fees. Id. According to Appellant, the result, where
he has paid the property’s taxes and maintenance, “is unjust and inequitable.”
Id. at 32.
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In his Rule 1925(b) statement of errors, Appellant averred the orphans’
court lacked “jurisdiction over [him] to order him to pay any expenses
involving the decedent’s estate,” because he “was never named in the Will of
George Porupski.” Pa.R.A.P. 1925(b) Statement of Errors, 10/20/21, ¶ 6
(emphasis added). We address this claim, as it is the claim Appellant
preserved for review.
Unlike subject matter jurisdiction, “[p]ersonal jurisdiction can be
established by consent of the parties[.]” Frontier Leasing Corp. v. Shah,
931 A.2d 676, 680 (Pa. Super. 2007). A “party may expressly or impliedly
consent to a court’s personal jurisdiction.” McCullough v. Clark, 784 A.2d
156, 157 (Pa. Super. 2001). A defendant manifests an intent to submit to the
court’s jurisdiction when the defendant takes “some action (beyond merely
entering a written appearance) going to the merits of the case, which
evidences an intent to forego objection to the defective service.” Fleehr v.
Mummert, 857 A.2d 683, 685 (Pa. Super. 2005) (citation omitted).
Our review discloses that Appellant appeared in this case, and on March
8, 2019, filed an “Answer to Motion to Appoint Fiduciary,” in which he
challenged ownership of the real estate. Appellant also filed objections to the
First Account and Proposed Decree of the Administrator. Objections to First
Account, 8/16/21. Thus, the record reflects Appellant consented to the
personal jurisdiction of the orphans’ court. See Frontier Leasing Corp., 931
A.2d at 680.
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Additionally, it is well settled that a fiduciary, in the instant matter the
Administrator, is entitled to “reasonable and just” compensation for the
services he provides. In re Estate of Sonovick, 541 A.2d 374, 376 (Pa.
Super. 1988). “[W]hen reviewing the judgment of the Orphans’ Court
regarding the allowance or disallowance of a fiduciary’s fees and commissions,
we will not interfere with the lower court’s decision absent an abuse of
discretion or a ‘palpable error’.” Id.
Appellant presents no support for his claim that the fees awarded to the
Administrator were unreasonable, or constituted a palpable abuse of the
orphans’ court’s discretion. Further, our review discloses no abuse of
discretion by the orphans’ court in awarding the fees. See Orphans’ Court
Opinion, 3/28/22, at 5-6 (discussing equities of the case and the executor’s
inaction over decades, and determining that division of fees between Appellant
and Gunnoe was proper).
Decree affirmed.
Judge McLaughlin joins the memorandum.
Judge Stabile files a concurring/dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
- 14 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482100/ | J-A20025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS MOORE :
:
Appellant : No. 2495 EDA 2021
Appeal from the PCRA Order Entered November 23, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006751-2016
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 7, 2022
Appellant, Dennis Moore, appeals from the November 23, 2021 order
entered in the Court of Common Pleas of Philadelphia County, dismissing his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant argues that the PCRA court
erred in dismissing his petition in light of trial counsel’s ineffectiveness for,
inter alia, failing to ensure the presence of a witness at Appellant’s trial, and
because PCRA counsel was ineffective for failure to raise trial counsel’s
ineffectiveness. Following review, we affirm.
As the PCRA court explained, 37-year-old Julius Fleming was found shot
to death on August 6, 2013 on Agate Street in Philadelphia. Although the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A20025-22
decedent had alcohol and PCP in his system, the cause of his death was
multiple gunshot wounds, including two to his head. Appellant was arrested
on June 2, 2016 and was charged with Fleming’s murder as well as various
firearms violations. Rule 1925(a) Opinion, 1/25/22, at 1.1
The trial court summarized testimony presented at trial, which this Court
incorporated in its memorandum on direct appeal, as follows:
At trial, Kenyatta Lyons testified that on August 6, 2013, she lived
on the 3300 block of Agate Street. During the night-time hours,
she had gone around the corner from her home to a convenience
store. She returned to Agate Street where she saw [Appellant],
whom she had known for about nine years. They chatted for
about 10 minutes. She walked the distance of four or five houses
toward her home. She turned around and saw [Appellant] shoot
Julius Fleming about five or six times. She said that the final shot
was to Mr. Fleming’s head.
Ms. Lyons stated that she did not report the incident to the police
because she felt that her life could be in danger. On March 18,
2016, the police approached her near her home and took her to
homicide headquarters. She gave a signed statement to the
police. She identified photographs of [Appellant] and Julius
Fleming.
Janice Fioravanti testified that on August 6, 2013, at about 11
p.m., she was inside her home on Agate Street when she heard
what sounded like five firecrackers. She went outside and saw a
man drive away on a bicycle. She found the body of Julius
Fleming. She was taken to homicide headquarters where she
gave a written statement and was shown some photographs. She
thought that she recognized one photograph, but was not 100 per
cent sure that the photograph was that of the man on the bicycle.
____________________________________________
1 While the PCRA court identifies the victim as “Julius Flemming,” we have
adopted the spelling (Fleming) that appears in the trial court’s opinion, which
a panel of this Court quoted on direct appeal.
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Edward Jaje testified that on August 6, 2013, he was inside his
home on the 3300 block of Agate Street, when he heard three
shots, followed after a pause by two or three more shots. He
looked out the window and saw a man stuffing something into his
pants pocket and running to the house next door. He saw the
man get on a bicycle and ride away. Mr. Jaje went outside where
he saw Janice Fiorvante [sic] and the body of his neighbor, Julius
Fleming.
Mr. Jaje gave a statement to police. Because he was afraid of
retaliation, Mr. Jaje did not tell police that he had recognized the
shooter. Sometime after the shooting, Mr. Jaje moved to another
neighborhood. About three years after the shooting, police again
interviewed Mr. Jaje, who then identified [Appellant] in a photo
array. In the course of his testimony, . . . Mr. Jaje identified
[Appellant] as the shooter.
Dr. Albert Chu of the Medical Examiner’s office testified that Julius
Fleming died from multiple gunshot wounds and that the manner
of death was homicide. He said that the decedent had sustained
five gunshot wounds—to the forehead, right lower jaw, head,
chest and right shoulder.
A document from the Pennsylvania State Police was introduced
into evidence certifying that [Appellant] was not licensed to carry
a firearm in Pennsylvania.
[Appellant's] aunt, Charlese Lee, testified that [Appellant] had a
“very good” reputation for being a peaceful, nonviolent individual.
[Appellant] did not testify.
Commonwealth v. Moore, 3119 EDA 2017, unpublished memorandum at 1-
3 (Pa. Super. filed November 21, 2018) (quoting Trial Court Opinion, 1/10/18,
at 2-5) (citations to record omitted).
On August 16, 2017, at the conclusion of Appellant’s trial before the
Honorable Steven R. Geroff, the jury returned a guilty verdict on all charges.
Appellant was sentenced to life without possibility of parole for first-degree
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murder and other concurrent sentences for the firearms violations. Rule
1925(a) Opinion, 1/25/22, at 1-2.
Appellant filed an appeal to this Court after his post-sentence motions
were denied. We affirmed his judgment of sentence on November 21, 2018
and our Supreme Court denied his petition for allowance of appeal on May 7,
2019. See Commonwealth v. Moore, 3119 EDA 2017, unpublished
memorandum (Pa. Super. filed November 21, 2018), appeal denied, 603 EAL
2018 (Pa. 2019). Rule 1925(a) Opinion, 1/25/22, at 2.
Appellant filed a timely pro se PCRA petition on February 14, 2020.
Because Judge Geroff was no longer assigned to the criminal division, the
PCRA case was assigned to the Honorable Tracy Brandeis-Roman. On August
27, 2020, Earl G. Kauffman, Esq., was appointed as counsel and, on
September 27, 2020, filed a Finley2 no-merit letter. Appellant filed a
response and counsel filed another Finley letter on March 2, 2021, in which
he supplemented his earlier letter, addressing the issues raised in Appellant’s
response. Counsel also filed a motion to withdraw. Id.
Appellant filed a response to the supplemented Finley letter, raising
three additional issues he considered meritorious. On July 31, 2021, counsel
responded to Appellant’s filing. Id.
____________________________________________
2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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On September 21, 2021, the PCRA court issued a Rule 907 Notice of its
intent to dismiss Appellant’s petition without a hearing. Although Appellant
filed a pro se request for additional time to respond, he did not file a response
to the Rule 907 Notice before the PCRA court issued its order on November
23, 2021, dismissing the petition and granting counsel’s motion to withdraw.
The order further directed that counsel be appointed for direct appeal.
On November 30, 2021, Stephen T. O’Hanlon, Esq., filed a timely notice
of appeal. On December 2, 2021, the PCRA court ordered a statement of
errors pursuant to Pa.R.A.P. 1925 and counsel complied by filing a Rule
1925(b) statement on December 21, 2021.3 Id. at 2-3.
Appellant presents one issue for our review:
1. Did the PCRA court err in dismissing Appellant’s PCRA petition
without a hearing when the PCRA court’s dismissal was not
supported by the record and free from legal error because
PCRA counsel was ineffective for failing to address or raise trial
counsel’s ineffectiveness for failing to ensure the presence of
Steven Lyons at trial and for failing to obtain and present
evidence that Mr. Lyons received a favorable sentencing
reduction and/or lack of prosecution for initiating cooperation
against Appellant and Mr. Lyons’ relevant docket is sealed,
when Kenyatta Lyons cooperated in order to help her brother
Steven Lyons as above, when other witnesses recanted and/or
did not see the actual shooting of Decedent, and when this
effectively denied Appellant, an individual with good character,
the opportunity to properly confront his accusers at trial?
Appellant’s Brief at 4 (some capitalization omitted).
____________________________________________
3 Despite the pending appeal before this Court filed by counsel for Appellant,
the docket reflects that Appellant filed a pro se Amended PCRA petition on
December 10, 2021.
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On appeal from the dismissal of a PCRA petition, we “examin[e] whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.
With respect to review of ineffectiveness claims:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 596 Pa.
119, 941 A.2d 655, 664 (2007). To overcome this presumption,
a petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on
appeal. See Commonwealth v. Natividad, 595 Pa. 188, 938
A.2d 310, 322 (2007) (explaining that “appellants continue to
bear the burden of pleading and proving each of
the Pierce[4] elements on appeal to this Court”). A petitioner’s
failure to satisfy any prong of this test is fatal to the
claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
____________________________________________
4 Commonwealth v Pierce, 786 A.2d 203, 213 (Pa. 2001) (reiterating the
well-settled elements of the ineffectiveness test, as rephrased in Cooper and
quoted in this excerpt from Wholaver).
-6-
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Appellant’s stated issue reflects a layered claim of ineffective assistance,
calling into question the effectiveness not only of trial counsel but also of PCRA
counsel. We note that in Commonwealth v. Bradley, 261 A.3d 381 (Pa.
2021), our Supreme Court held that “a PCRA petitioner, may after a PCRA
court denies relief, and after obtaining new counsel . . ., raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
Id. at 401 (footnote omitted). Here, the PCRA court denied relief and
Appellant’s new counsel is raising a claim of PCRA counsel ineffectiveness.
Therefore, a claim of PCRA counsel ineffectiveness is properly before this
Court. However, in order to prove that PCRA counsel was ineffective for failing
to assert trial counsel’s ineffectiveness, Appellant must first establish that trial
counsel was ineffective. See, e.g., Commonwealth v. Paddy, 15 A.3d 431,
443 (Pa. 2011) (to prevail on a layered claim of ineffectiveness, “a PCRA
petitioner must present argument as to each of the three prongs of the Pierce
test for each layer of allegedly ineffective representation.”).
Appellant’s assertion of trial counsel ineffectiveness relates to trial
counsel’s alleged failure to secure the presence of Steven Lyons at trial and
counsel’s failure to present evidence that Steven Lyons received a favorable
sentence reduction or avoided prosecution by initiating the cooperation of his
sister, prosecution witness Kenyatta Lyons.
Rejecting this claim as meritless, the PCRA court explained:
First, despite not calling Steven Lyons as a witness, trial counsel
explored the theory that Kenyatta Lyons was providing false
-7-
J-A20025-22
testimony in order to help her brother. This appears to be an
indirect method by which Appellant is trying to attack the
credibility of Kenyatta Lyons. Second, even if Appellant did prove
that Kenyatta Lyons provided false testimony in order to help her
brother, it would not address the testimony provided by witnesses
Janice Fioravanti, Edward Jaje, or Dr. Albert Chu.
Rule 1925(a) Opinion, 1/25/22, at 4.
Further:
“In order to make a claim of ineffectiveness for failure to interview
and/or present a witness, appellant must prove: (1) the existence
and availability of the witness; (2) counsel’s awareness of, or duty
to know of the witness; (3) the witness’ willingness and ability to
cooperate and appear on behalf of appellant; and (4) the necessity
of the proposed testimony in order to avoid prejudice.”
Commonwealth v. Hall, 701 A.2d 190, 201 (Pa. 1997). “A
failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim.” Commonwealth v. Fulton, 830
A.2d 567, 572 (Pa. 2003). . . .
At best, Appellant would only be able to meet the first two prongs
of the Hall test. Steven Lyons could have been brought from
prison to testify at Appellant’s trial, and trial counsel conducted
his cross-examination of Sergeant Wilkins on what information
was provided to police by Kenyatta Lyons and Steven Lyons,
therefore trial counsel would have been aware of the existence of
the witness. However, Appellant failed to meet the third or fourth
prongs of the Hall test. If Steven Lyons truly did lie about
Appellant to his sister in order to obtain relief from his prison
sentence, then Appellant fails to explain why Steven Lyons would
ruin his attempt to obtain relief from his sentence by then
testifying “truthfully” at Appellant’s trial. In fact, Appellant did not
provide an affidavit from Steven Lyons stating that he is willing to
testify that he gave false information to the police against
Appellant in order to obtain relief from his own sentence or an
explanation as to why Appellant was unable to produce Steven
Lyons to testify currently. Considering that Sergeant Wilkins was
cross-examined regarding what information Steven Lyons had
provided, calling Steven Lyons to testify to the same information
at trial was not necessary.
-8-
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Id. at 5-6. The PCRA court then set forth excerpts of Sergeant Wilkins’
testimony at trial in which he discussed his interview of Kenyatta Lyons that
was prompted by a phone call indicating that Steven Lyons had information
about a Philadelphia homicide. PCRA Opinion, 1/25/22, at 6-8. The PCRA
court then observed:
As can be seen, trial counsel used his cross-examination of
Sergeant Wilkins to attack the credibility of Kenyatta Lyons and
Steven Lyons. By having Sergeant Wilkins testify that Steven
Lyons had called Detective Gaul from prison with information
regarding the homicide for which Appellant was charged, trial
counsel cast doubt on the credibility of both Steven Lyons and
Kenyatta Lyons and exposed a major bias both individuals had in
providing this information to police. Finally, even if trial counsel
had managed to undermine the credibility of Steven Lyons and
Kenyatta Lyons, it would not have changed the end result of
Appellant’s trial.
Id. at 8.
The PCRA court proceeded to summarize the testimony of additional
witnesses who identified Appellant as the shooter and noted counsel’s effective
cross-examination challenging the credibility of the witnesses. Id. at 9-13.
The court noted:
Although Appellant addresses issues with other witnesses in his
PCRA petition and his opposition to PCRA counsel’s Finley letter,
Appellant focuses entirely on Kenyatta Lyons and Steven Lyons on
appeal. Due to the fact that other witnesses testified against
Appellant, Appellant’s focus on Steven and Kenyatta is insufficient
to warrant relief. Even if both Steven Lyons and Kenyatta Lyons
were proven to not be credible, Appellant has not managed to
prove that the other witnesses who testified against him did not
testify credibly. As a result, even if Appellant could prove his
allegations against Steven Lyons and Kenyatta Lyons, it would not
warrant relief. Therefore, Appellant’s issue is meritless.
-9-
J-A20025-22
Id. at 13.
We conclude the PCRA court’s findings of fact, viewed in the light most
favorable to the Commonwealth, are supported by the record and that it
reached the correct legal conclusion when it determined that Appellant’s claim
of trial counsel ineffectiveness lacked arguable merit. Because the failure to
satisfy any prong of the Pierce test is fatal to the claim, see Wholaver, 177
A.3d at 144, Appellant’s claim of trial counsel ineffectiveness fails.
With respect to the claim of PCRA counsel ineffectiveness, to prevail on
a layered claim, an appellant must present argument as to each of the three
prongs of the Pierce test for each layer of allegedly ineffective representation.
Paddy, 15 A.3d at 443 (citations omitted). Where, as here, Appellant cannot
prove that his claim of trial counsel ineffectiveness had arguable merit, then
Appellant’s “derivative claim of [PCRA] counsel ineffectiveness of necessity
must fail, and it is not necessary for the court to address the other two prongs
of the Pierce test as applied to [PCRA] counsel.” Id. (citations omitted).
Appellant is not entitled to relief on his claim of PCRA counsel ineffectiveness.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
- 10 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482097/ | J-S18015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON A. WATTS :
:
Appellant : No. 1513 MDA 2021
Appeal from the Judgment of Sentence Entered September 7, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001990-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 7, 2022
Appellant, Jason A. Watts, appeals from the judgment of sentence of 33
to 66 months’ incarceration, imposed after he pled guilty to one count of
delivery of a controlled substance (methamphetamine). On appeal, Appellant
challenges the trial court’s denial of his pre-sentence motion to withdraw his
guilty plea, as well as the discretionary aspects of his sentence. After careful
review, we affirm.
The facts underlying Appellant’s conviction are not pertinent to his
present appeal. The trial court summarized the procedural history of his case,
as follows:
This matter comes before the [c]ourt pursuant to a single count
Criminal Information filed against the above-named [Appellant]
by the District Attorney of Luzerne County on October 14, 2020,
charging him with delivery of methamphetamine in violation of 35
[P.S.] § 780-113(A)(30). On June 14, 2021, represented by
Attorney Girard Mecadon[] of the Luzerne County Public
Defender’s Office, [Appellant] signed a guilty plea agreement and
J-S18015-22
the [c]ourt conducted a colloquy of [Appellant] prior to accepting
his guilty plea. Following the colloquy, the [c]ourt accepted
[Appellant’s] plea, scheduled sentencing for a separate date, and
ordered a presentence investigation (PSI) [report] to be
completed by the Luzerne County Adult Probation and Parole
Department prior to sentencing.
At the August 18, 2021 sentencing hearing, however, [Appellant]
indicated to the [c]ourt that he wanted to withdraw his plea.
[Appellant] was directed to file a written motion, and a hearing
was scheduled for September 7, 2021. Attorney Mecadon filed a
written motion on August 25, 2021, indicating that [Appellant]
“wished to withdraw his guilty plea based on further review of his
discovery.” Motion to Withdraw[,] … 8/25/2021.
At the September 7, 2021 hearing, Attorney Mecadon indicated to
the [c]ourt that [Appellant] wanted to withdraw his plea because
discovery indicated that the suspect in this matter had initially
been identified as Jason White, not Jason Watts. N.T.[,]
9/7/2021[,] at 4. The Commonwealth opposed the request to
withdraw the plea, noting that in making the request, [Appellant]
did not make any assertion of innocence. Id. at 3. The [c]ourt
noted that [Appellant] was in possession of discovery well in
advance of the June 14, 2021 guilty[-]plea hearing, yet [he] did
not raise the issue of identity at any time during the lengthy
guilty[-]plea colloquy conducted at the hearing, or at any point
prior to facing a state sentence at the August 18, 2021 hearing.
Id. at 3-5. Because [Appellant] had not offered adequate reasons
for withdrawing his guilty plea, the [c]ourt exercised its discretion
to deny the request. Id. [Appellant] was subsequently sentenced
to a standard range sentence of 33 to 66 months’ imprisonment
in a state correctional institution. Id. at 7.
On September 17, 2021, [Appellant] filed a post-sentence motion
[challenging] the denial of his motion to withdraw his guilty plea[,]
as well as the imposition of sentence. Motion[,] … 9/17/2021.
With regard to [Appellant’s] guilty plea, the post-sentence motion
asked the [c]ourt to “reconsider that there are discrepancies in
discovery which [Appellant] intends to explore[,] including but not
limited to a warrant initially naming a Jason White then changed
to Jason Watts.” Id. at ¶ 5. With regard to the standard[-]range
sentence imposed, [Appellant’s] post-sentence motion did not
dispute the legality of that sentence, or assert that the sentence
was excessive, but nevertheless asked the [c]ourt to exercise its
discretionary power to “reconsider sentencing [Appellant to] the
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J-S18015-22
lower end of the standard range[,] in that his standard range was
27-40 [months’ incarceration,] but he was sentenced in the
middle of the standard range at 33-66 [months’ incarceration].”
Id. at ¶ 6.
[Appellant’s] post-sentence motion was subsequently denied by
the [c]ourt on October 20, 2021. On November 18, 2021,
Attorney Robert Buttner of the Luzerne County Public Defend[er]’s
Office filed a Notice of Appeal on [Appellant’s] behalf. Before this
appeal was addressed, however, [Appellant] … filed a pro se Post
Conviction Relief Act (PCRA) petition on December 7, 2021, raising
allegations that counsel was ineffective. This prompted the Public
Defender’s Office to seek the appointment of conflict counsel.
[See] Motion[,] … 12/9/2021. On December 10, 2021, the [c]ourt
dismissed [Appellant’s] PCRA petition without prejudice to
[Appellant’s] right to file a future PCRA petition upon resolution of
his direct appeal. [See] Order[,] … 12/10/2021. Additionally, the
[c]ourt directed that conflict counsel be appointed to represent
[Appellant]. [See] Order[,] … 12/14/2021.
Attorney Matthew [P.] Kelly[, Esq.,] has since entered his
appearance on [Appellant’s] behalf, and [he] filed a [Pa.R.A.P.]
1925(b) [concise s]tatement of [e]rrors [c]omplained of on
[a]ppeal on December 23, 2021, indicating that he intends to raise
the following two questions on appeal:
1. Whether the trial court abused its discretion or committed
an error of law in denying [Appellant’s] motion to withdraw
[his] guilty plea upon further review of discovery
discrepancies.
2. Whether the trial court abused its discretion or committed
an error of law in sentencing [Appellant].
Rule 1925(b) Statement[,] … 12/23/2021.
Trial Court Opinion (TCO), 1/26/22, at 1-3. The trial court filed its Rule
1925(a) opinion on January 26, 2022.
On March 22, 2022, Attorney Kelly filed with this Court a petition to
withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
-3-
J-S18015-22
2009). That same day, counsel also filed an Anders brief, stating his belief
that the two issues Appellant seeks to raise herein are frivolous, and that
Appellant has no other, non-frivolous issues he could pursue on appeal.
However, after reviewing counsel’s Anders brief, we concluded that he did
not comply with all the requirements for withdrawal. See Santiago, 978 A.2d
at 362 (directing than the Anders brief “must (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer to anything
in the record that counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s
reasons for concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous”). Accordingly, we
remanded for Attorney Kelly to file either a new Anders brief that comported
with the withdrawal requirements, or an advocate’s brief on Appellant’s behalf.
On August 9, 2022, Attorney Kelly filed an advocate’s brief on
Appellant’s behalf, setting forth the following two issues for our review:
I. Whether the trial court abused its discretion or committed an
error of law in denying Appellant’s motion to withdraw his guilty
plea upon further review of discovery discrepancies.
II. Whether the trial court abused its discretion or committed an
error of law in sentencing the Appellant.
Appellant’s Brief at 1.
Appellant first avers that the trial court abused its discretion by denying
his pre-sentence motion to withdraw his plea. Our Supreme Court has
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J-S18015-22
explained that the decision to allow a defendant to withdraw a pre-sentence
guilty plea is left to the discretion of the trial court, and the appellant bears
the heavy burden on appeal to establish an abuse of that discretion. See
Commonwealth v. Norton, 201 A.3d 112, 116, 120 (Pa. 2019); see also
Pa.R.Crim.P. 591(A) (“At any time before the imposition of sentence, the court
may, in its discretion, permit, upon motion of the defendant, or direct, sua
sponte, the withdrawal of a plea of guilty or nolo contendere and the
substitution of a plea of not guilty.”). It is well-settled that “[a]n abuse of
discretion will not be found based on a mere error of judgment, but rather
exists where the [trial] court has reached a conclusion which overrides or
misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-
will.” Id. at 120 (quoting Commonwealth v. Eichinger, 915 A.2d 1122,
1140 (Pa. 2007)).
Furthermore, in reviewing a request for a pre-sentence withdrawal of a
plea, the trial court should exercise its discretion “liberally in favor of the
accused,” and grant the request if the defendant demonstrates a “fair-and-
just reason[,] … unless withdrawal would work substantial prejudice to the
Commonwealth.” Id. (quoting Commonwealth v. Carrasquillo, 115 A.3d
1284, 1291-92 (Pa. 2015)). However, when a defendant requests to withdraw
his guilty plea because he is innocent, his claim “must be at least plausible to
demonstrate, in and of itself, a fair and just reason for pre[-]sentence
withdrawal of a plea.” Norton, 201 A.3d at 120 (quoting Carrasquillo, 115
-5-
J-S18015-22
A.3d at 1292). Trial courts are charged with “assess[ing] the credibility of
claims of innocence and measur[ing], under the circumstances, whether
defendants have made sincere and colorable claims that permitting withdrawal
of their pleas would promote fairness and justice.” Id. at 121. When
considering the credibility of the defendant’s claim of innocence, the court may
consider the timing of the defendant’s request and his previous knowledge of
his available defenses. Id. at 121-22.
Here, in explaining why it rejected Appellant’s pre-sentence request to
withdraw his plea, the trial court observed that Appellant
had the benefit of counsel at the guilty plea hearing, and
specifically acknowledged during the on[-]the[-]record[,] guilty[-
]plea colloquy that he had discussed and reviewed the matter with
his counsel (including the written plea agreement), that he
understood the elements of the offense to which he was pleading,
and that he had entered into the plea agreement of his own free
will. N.T. Plea, 7/14/2021, at 5-6. Additionally, following a brief
summary of the facts on which the charge against him was based,
[Appellant] specifically admitted that on June 22, 2020, he
knowingly delivered methamphetamine, a Schedule II controlled
substance. Id.
TCO at 4-5. The court further stressed that, when Appellant sought to
withdraw his guilty plea at the sentencing hearing several months later, he
did not clearly assert his innocence in explaining the reasons his plea should
be withdrawn. See id. at 2. Instead, Appellant claimed that his further review
of the discovery in this case revealed that the suspect was initially identified
by a different name and birthdate than Appellant. However, as the court
pointed out, Appellant “was in possession of [the] discovery well in advance
-6-
J-S18015-22
of the June 14, 2021 guilty plea hearing, yet [he] did not raise the issue of
identity at any time during the lengthy guilty plea colloquy conducted at the
hearing, or at any point prior to facing a state sentence at the August 18,
2021 hearing.” Id. (citation to the record omitted). Based on this record, the
court found that Appellant “failed to make a colorable demonstration that
permitting him to withdraw his guilty plea would promote either fairness of
justice.” Id. at 4.
We discern no abuse of the court’s discretion. Appellant voluntarily,
intelligently, and knowingly pled guilty to delivering methamphetamine. He
does not point to where in the record he asserted his innocence when he later
sought to withdraw his plea at the sentencing hearing. Instead, Appellant
acknowledges that his reason for wanting to withdraw his plea was based on
his “more critical review of the Commonwealth’s discovery responses.”
Appellant’s Brief at 8. However, Appellant had that discovery in his possession
well before he pled guilty, yet he raised no issue about his allegedly being
misidentified as a suspect before entering his plea. For these reasons, the
court did not abuse its discretion in refusing to permit Appellant to withdraw
his guilty plea.
Next, Appellant contends that the court erred and abused its discretion
by imposing a sentence in the middle, rather than the low end, of the standard
range of the sentencing guidelines. Appellant contends that his sentence
would have been at the lower end of the standard range had the trial court
properly considered his rehabilitative needs. He avers that, instead, the court
-7-
J-S18015-22
focused only on the seriousness of the offense. Appellant also contends that
the court “offered no acknowledgement of the guidelines[,] except that the
sentence was in the standard range[,]” and that it “provided little reasoning
why it imposed said sentence.” Appellant’s Brief at 12. For these reasons, he
asks that we remand for resentencing.
Appellant’s issue implicates the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)…. Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed. Commonwealth
v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)….
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
-8-
J-S18015-22
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal, and a timely post-
sentence motion. However, in that motion, Appellant only vaguely asked the
court to reconsider sentencing him in the low-end of the standard guideline
range, without any explanation of why the court should do so. See TCO at 6
(citing Post-Sentence Motion, 9/17/21, at ¶ 6). Thus, he waived his
allegations that the court did not adequately consider his rehabilitative needs
or the sentencing guidelines, that it focused only on the seriousness of his
offense, and that the court did not offer sufficient reasons on the record for
the sentence it imposed. See Commonwealth v. Griffin, 65 A.3d 932, 936
(Pa. Super. 2013) (“[I]ssues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the claim
to the trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”) (citation
omitted).
Notwithstanding waiver, we would also conclude that Appellant failed to
demonstrate that his sentencing claim constitutes a substantial question for
our review. Appellant’s entire Rule 2119(f) statement reads, verbatim: “The
trial court in refusing to sentence Appellant to the low end of the standard
range of the sentencing guidelines is a substantial question requiring
discretionary review.” Appellant’s Brief at 3 (citing 42 Pa.C.S. § 9781(b);
Pa.R.A.P. 2119(f)). Appellant does not identify what provision of the
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J-S18015-22
Sentencing Code the sentencing court allegedly violated, or explain how his
sentence is contrary to the fundamental norms underlying the sentencing
process. Thus, even had he preserved his sentencing claim, we would
conclude that he has not presented a substantial question that the court
abused its discretion in fashioning his sentence. See Commonwealth v.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (“Sentencing is a matter
vested in the sound discretion of the sentencing judge, and a sentence will
not be disturbed on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.”).1
Judgment of sentence affirmed.
____________________________________________
1 However, even if Appellant had presented a substantial question for our
review, we would not conclude that relief is due. The trial court had the benefit
of a PSI and sentenced Appellant to a standard-range term of incarceration.
Thus, we assume the court “was aware of relevant information regarding
[Appellant’s] character and weighed those considerations along with
mitigating statutory factors.” Moury, 992 A.2d at 171 (internal citations
omitted). “Further, where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Id. Accordingly, we would conclude that Appellant has
failed to demonstrate that his sentence was an abuse of the court’s discretion,
simply because he hoped to receive a sentence at the low-end of the standard
range.
- 10 -
J-S18015-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2022
- 11 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482081/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1289
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jeffrey Colin Purdy
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: November 2, 2022
Filed: November 7, 2022
[Unpublished]
____________
Before ERICKSON, GRASZ, and STRAS, Circuit Judges.
____________
PER CURIAM.
Jeffrey Purdy received a 60-month prison sentence after he pleaded guilty to
cyberstalking. See 18 U.S.C. §§ 2261(b)(5), 2261A(2). He raises a variety of
challenges to his conviction and sentence. Some center on whether he was the victim
of a conspiracy between investigators and prosecutors to cover up misconduct.
Others focus on whether the district court 1 should have been more receptive to his
motions, including one asking to withdraw his guilty plea. In the end, none have
merit.
Of the issues we can consider on appeal, the district court did not abuse its
discretion in denying Purdy’s numerous motions. See United States v. Andolini, 705
F.3d 335, 337 (8th Cir. 2013) (per curiam); United States v. Jones, 643 F.3d 275,
277 (8th Cir. 2011). Nor are the challenges to the restitution award or the
performance of counsel properly before us. See Manrique v. United States, 137
S. Ct. 1266, 1271 (2017) (holding that “[t]he requirement that a defendant file a
timely notice of appeal from an amended judgment imposing restitution is at least a
mandatory claim-processing rule”); United States v. Ramirez-Hernandez, 449 F.3d
824, 826–27 (8th Cir. 2006) (explaining that this type of claim is “usually best
litigated in collateral proceedings”). Having carefully reviewed these arguments and
others, we accordingly affirm the judgment, dismiss the challenge to the restitution
award, and deny the motion to strike the government’s brief.
______________________________
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
-2- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482099/ | J-S29009-22
J-S29010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAZIE WILLIAM SYPIN, III :
:
Appellant : No. 149 WDA 2022
Appeal from the Judgment of Sentence Entered December 30, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001129-2021,
CP-25-CR-0001185-2021, CP-25-CR-0001967-2020,
CP-25-CR-0002535-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAZIE WILLIAM SYPIN :
:
Appellant : No. 348 WDA 2022
Appeal from the Judgment of Sentence Entered December 30, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001967-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAZIE WILLIAM SYPIN, III :
:
Appellant : No. 349 WDA 2022
Appeal from the Judgment of Sentence Entered December 30, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001129-2021
J-S29009-22
J-S29010-22
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAZIE WILLIAM SYPIN :
:
Appellant : No. 350 WDA 2022
Appeal from the Judgment of Sentence Entered December 30, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001185-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAZE WILLIAM SYPIN III :
:
Appellant : No. 351 WDA 2022
Appeal from the Judgment of Sentence Entered December 30, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002535-2020
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: November 7, 2022
Blaze William Sypin III1 appeals from the judgments of sentence
following his guilty plea in four separate cases to two counts each of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 We note that the various trial court dockets spell Sypin’s name in three
distinct ways (Blazie William Sypin III, Blazie William Sypin, and Blaze William
Sypin). However, counsel spelled the name consistently as “Blazie William
Sypin III” in her filings. We will spell Appellant’s name in accordance with the
spelling consistently utilized by counsel.
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J-S29010-22
possession with intent to deliver and firearms not to be carried without a
license, and one count each of recklessly endangering another person,
possession of drug paraphernalia, disorderly conduct, and criminal use of a
communication facility.2 Additionally, Attorney Fiscus has filed a brief pursuant
Anders v. California, 386 U.S. 738 (1967), and a petition to withdraw from
representation. We grant Attorney Fiscus’s petition to withdraw and affirm the
judgments of sentence.
Here, the Commonwealth charged Sypin with numerous crimes arising
out of four separate cases. Specifically, on August 10, 2020, police officers
found Sypin in a parked vehicle on the street while under the influence of a
____________________________________________
2 We note that Sypin’s counsel, Jessica A. Fiscus, Esquire, initially filed a single
timely notice of appeal—149 WDA 2022—on February 3, 2022, which listed all
four trial court docket numbers in violation of Commonwealth v. Walker,
185 A.3d 969, 977 (Pa. 2018) (holding that separate appeals must be filed at
each docket being appealed). However, on March 2, 2022, Attorney Fiscus
filed a “Petition to File Amended Notices of Appeal.” Specifically, Attorney
Fiscus cited to Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021)
(holding that Pa.R.A.P. 341 “requires that when a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed
from that order at each docket; but, where a timely appeal is erroneously filed
at only one docket, [Pa.R.A.P.] 902 permits the appellate court, in its
discretion, to allow correction of the error, where appropriate.”). This Court
granted Attorney Fiscus’s petition and remanded the matter to the trial court
to allow Attorney Fiscus to file four amended notices of appeal. See
Commonwealth v. Sypin, 149 WDA 2022 (Pa. Super. filed Mar. 14, 2022)
(per curiam). Attorney Fiscus then filed four separate notices of appeal for
each of the dockets. Notably, this Court retained the initial timely appeal at
149 WDA 2022, and thereafter, consolidated the five appeals. Because
Attorney Fiscus complied with Walker and Young, we may proceed to
examine the substance of the appeals.
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controlled substance. Upon searching the vehicle, officers found a large
amount of crystal methamphetamine and a loaded semi-automatic pistol.
Next, on August 19, 2020, Sypin fired a gunshot at another vehicle.
After police stopped Sypin’s vehicle, they found, inter alia, a handgun, two
crack pipes and baggies containing crystal methamphetamine.
Then, on November 16, 2020, Sypin grabbed a woman by the face and
slammed her against a wall. Finally, on January 7, 2021, Sypin sold
methamphetamine to a confidential informant.
On October 4, 2021, Sypin entered a negotiated guilty plea in the four
cases to two counts each of possession of crystal methamphetamine with
intent to deliver and firearms not to be carried without a license, and one
count each of recklessly endangering another person, possession of drug
paraphernalia, disorderly conduct, and criminal use of a communication
facility, in exchange for the Commonwealth dismissing the remaining charges.
Relevantly, Sypin and the Commonwealth did not agree to a sentence as part
of the plea agreement. On December 30, 2021, the trial court sentenced Sypin
to an aggregate prison term of 75 to 150 months. More specifically, the trial
court imposed standard range sentences for each of the convictions and
ordered two of the sentences to be served consecutively to the remaining
sentences, which were to be served concurrently.
Sypin filed a motion for reconsideration of the sentence, seeking a
county-level sentence or a lesser state prison sentence. The trial court denied
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the motion. Attorney Fiscus filed a timely notice of appeal on Sypin’s behalf
and a statement of intent to file an Anders brief in lieu of a statement of
errors complained of on appeal.
On appeal, Attorney Fiscus has filed an Anders brief, asserting the
following questions for our review:
1. Did [Sypin] enter knowing, voluntary, and intelligent guilty
pleas at all four dockets where [Sypin] had viable defenses to
the charged offenses, his counsel talked him into taking the
pleas, he did not agree with the factual basis of some of the
pleas, his counsel was inadequately prepared and refused to
investigate, and his counsel ignored his request to withdraw
the plea?
2. Did the trial court commit an abuse of discretion when it
imposed [Sypin’s] sentence given the many mitigating factors
outlined by counsel at the time of sentencing?
Anders Brief at 12. Attorney Fiscus also filed a petition to withdraw as counsel
with this Court on June 15, 2022. Sypin filed neither a pro se brief, nor
retained alternate counsel.
We must first determine whether Attorney Fiscus has complied with the
dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (stating
that “[w]hen faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” (citation omitted)). Pursuant to Anders, when an
attorney believes that an appeal is frivolous and wishes to withdraw as
counsel, he or she must
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(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous; (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief must
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Fiscus has complied with the requirements set forth in
Anders by indicating that she conscientiously examined the record and
determined that an appeal would be frivolous. Further, Attorney Fiscus’s
Anders Brief meets the standards set forth in Santiago, by setting forth her
conclusions that Sypin’s plea was knowingly entered, the trial court did not
abuse its discretion in imposing Sypin’s sentence, and Sypin’s sentences were
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not illegal, rendering Sypin’s appeal wholly frivolous.3 Finally, Attorney Fiscus
provided a letter to Sypin, informing him of her intention to withdraw as
counsel, and advising Sypin of his rights to retain new counsel, proceed pro
se, and file additional claims. Because Attorney Fiscus has complied with the
procedural requirements for withdrawing from representation, we will
independently review the record to determine whether Sypin’s appeal is, in
fact, wholly frivolous. See Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (stating that once an appellate court determines that
counsel’s petition and brief satisfy Anders, the court must then conduct its
own review of the appeal to determine if it is wholly frivolous).
In his first claim, Sypin argues that his plea was involuntarily entered.
See Anders Brief at 18.4 Specifically, Sypin argues that he did not agree with
the factual basis of the charges at the plea hearing and suggests that he had
viable defenses and that he was innocent. See id. Sypin also claims that
____________________________________________
3 We note Attorney Fiscus points out that when Sypin pled guilty, he waived
his defenses except for lack of jurisdiction, invalid guilty plea, and illegal
sentence. See Anders Brief at 19.
4 We note Sypin did not preserve his challenge to the validity of the guilty plea
during the plea colloquy or in a post-sentence motion. See Commonwealth
v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (stating that “[a]
defendant wishing to challenge the voluntariness of a guilty plea on direct
appeal must either object during the plea colloquy or file a motion to withdraw
the plea within ten days of sentencing” (citation omitted)). Although the mere
filing of an Anders brief and petition to withdraw will not serve to resuscitate
claims that were not properly preserved in the trial court, see
Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020), we will
address the instant claim to determine whether the appeal is wholly frivolous.
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counsel induced him to enter the plea by making certain representations about
the sentence that he would receive, for failing to make certain arguments at
the suppression hearing, failing to properly investigate the cases by obtaining
text messages, videos and talking to witnesses, and ignoring his request to
withdraw after the imposition of a higher than anticipated sentence. See id.
Our law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily[,] and intelligently entered. There is no absolute right
to withdraw a guilty plea, and the decision as to whether to allow
a defendant to do so is a matter within the sound discretion of the
trial court. To withdraw a plea after sentencing, a defendant must
make a showing of prejudice amounting to “manifest injustice.” A
plea rises to the level of manifest injustice when it was entered
into involuntarily, unknowingly, or unintelligently. A defendant’s
disappointment in the sentence imposed does not constitute
“manifest injustice.”
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008) (citation
omitted).
To ensure a voluntary, knowing, and intelligent plea, trial courts are
required to ask the following questions in the guilty plea colloquy:
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the right to
a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible ranges of sentences
and/or fines for the offenses charged?
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6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Id. (citation omitted); see also Pa.R.Crim.P. 590, cmt.
The guilty plea colloquy must affirmatively demonstrate that the
defendant understood what the plea connoted and its
consequences. Once a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. In determining
whether a guilty plea was entered knowingly and voluntarily, a
court is free to consider the totality of the circumstances
surrounding the plea. Furthermore, nothing in the rule precludes
the supplementation of the oral colloquy by a written colloquy that
is read, completed, and signed by the defendant and made a part
of the plea proceedings.
Bedell, 954 A.2d at 1212-13 (citations, quotation marks, and ellipses
omitted).
During his oral and written guilty plea colloquies, Sypin understood the
nature and elements of the charges, and admitted to committing the crimes.
See Written Guilty Plea Colloquy, 10/4/21, at 1; N.T., 10/4/21, at 9-16. Sypin
acknowledged that he was pleading guilty to the above crimes in exchange for
the Commonwealth dismissing the remaining the charges. See Written Guilty
Plea Colloquy, 10/4/21, at 1; N.T., 10/4/21, at 9, 11. Sypin also confirmed
that he understood the plea deal and the rights he was foregoing by pleading
guilty, including the presumption of innocence and the right to a jury trial.
See Written Guilty Plea Colloquy, 10/4/21, at 1; N.T., 10/4/21, at 5.
Moreover, Sypin stated that he understood the permissible range of sentences
and fines and recognized that the judge did not have to accept the plea
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agreement. See Written Guilty Plea Colloquy, 10/4/21, at 1; N.T., 10/4/21,
at 5-6. Additionally, Sypin indicated that no one had forced or threatened him
to plead guilty and that he willingly entered the plea. See Written Guilty Plea
Colloquy, 10/4/21, at 1; N.T., 10/4/21, at 16. Thereafter, the trial court
accepted the plea as knowingly entered. See N.T., 10/4/21, at 16.
Based upon the evidence in the record, Sypin knowingly and voluntarily
entered the guilty plea. See Commonwealth v. Jabbie, 200 A.3d 500, 506
(Pa. Super. 2018) (stating that a defendant is bound by his statements at his
plea colloquy and may not assert grounds for withdrawing the plea that
contradict statements made when he entered the plea). Sypin’s
disappointment in the sentence imposed does not establish the entry of an
unknowing plea. See Bedell, 954 A.2d at 1212. Therefore, Sypin has not
demonstrated prejudice on the order of manifest injustice to justify
withdrawing his guilty plea. Furthermore, to the extent Sypin argues that his
plea counsel was ineffective for inducing the guilty plea, we conclude that such
claims are premature and that Sypin may raise the claims in a timely filed
Post Conviction Relief Act petition. See Commonwealth v. Holmes, 79 A.3d
562, 563 (Pa. 2013).5 Based upon the foregoing, Sypin’s claim is frivolous.
____________________________________________
5 While reaffirming the general rule that ineffectiveness claims may only be
raised on collateral review, our Supreme Court created two recognized
exceptions, which are within the trial court’s discretion: (1) “a discrete claim
(or claims) of trial counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration best serves the
(Footnote Continued Next Page)
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Next, Sypin claims that the trial court abused its discretion in imposing
an excessive sentence without properly considering mitigating factors. See
Anders Brief at 21. Sypin argues that the trial court should have imposed a
county prison sentence or a shorter state prison sentence. See id. at 22. Sypin
highlights that his prior record score of five was due to a juvenile adjudication;
his prior felony conviction occurred in 2014; his prior misdemeanors and
instant offenses primarily stem from drug and alcohol abuse; he does not have
a history of violence; and he attended drug and alcohol groups while in prison.
See id.
Sypin challenges the discretionary aspects of his sentence.6 “Challenges
to the discretionary aspects of sentencing do not entitle an appellant to review
as of right.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010). Prior to reaching the merits of a discretionary sentencing issue, this
Court conducts
a four-part analysis to determine: (1) whether appellant has filed
a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
____________________________________________
interests of justice[,]” and (2) “where the defendant seeks to litigate multiple
or prolix claims of counsel ineffectiveness, including non-record based claims,
on post-verdict motions and direct appeal” but only where good cause is
shown and post-conviction review of the claim has already been waived.
Holmes, 79 A.3d at 563-64. Neither of these exceptions are applicable in the
instant case.
6 We note that when a defendant enters an open guilty plea, he may challenge
the discretionary aspects of the sentence imposed. See Commonwealth v.
Brown, 240 A.3d 970, 972 (Pa. Super. 2020).
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whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation and brackets omitted).
In the instant case, Sypin filed a timely appeal and preserved his claim
in his motion for reconsideration. Although we note the absence of the
requisite Pa.R.A.P. 2119(f) statement in the Anders Brief, “[w]here counsel
files an Anders brief, this Court has reviewed the matter even absent a
separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s
failure to submit a Rule 2119(f) statement as precluding review of whether
[Sypin’s] issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661
(Pa. Super. 2015) (citations omitted).
Sypin’s claim that the trial court erred in imposing an excessive sentence
without properly considering certain mitigating factors raises a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (concluding that “an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.” (citation omitted)).
Our standard of review of a challenge to the discretionary aspects of a
sentence is well settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that
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the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)
(citation omitted).
Here, the trial court was apprised of Sypin’s age and family, his
education level, his employment status, and his long history of drug and
alcohol abuse. See N.T., 12/30/21, at 4-5, 9, 12. Moreover, Sypin’s counsel
informed the trial court that Sypin was in a drug and alcohol program in prison.
See id. at 8. The trial court also had the benefit of the presentence
investigation report. See id. at 12. The trial court then imposed the standard-
range sentences. See id. at 12-14; see also id. at 14 (noting that Sypin was
ineligible for RRRI due to his prior record and his history of violent behavior).
The record demonstrates the trial court considered the presentence
investigation report, which establishes that it was aware of relevant
information regarding Sypin’s character and mitigating factors, as well as
relevant sentencing factors, in imposing the sentence. See Watson, 228 A.3d
at 936 (stating that where the trial court is informed by a presentence
investigation report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed). Furthermore, it was within
the trial court’s discretion to impose some of Sypin’s sentences consecutively.
See Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa. Super. 2018)
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(“Pennsylvania law affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences” (citation
omitted)). Accordingly, the trial court did not abuse its discretion in imposing
the sentence, nor did the trial court arrive at a manifestly unreasonable
decision. See Watson, 228 A.3d at 936. Finally, our independent review
discloses no other sentencing claims, or additional non-frivolous issues, that
Sypin could raise on appeal.7
As we cannot find any additional meritorious issues in the record, and
we agree with Attorney Fiscus that Sypin’s appeal is frivolous, we grant her
petition for leave to withdraw from representation.
Judgments of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
____________________________________________
7 Attorney Fiscus notes that Sypin’s sentences were legal. See Anders Brief
at 23-24. We agree and conclude that Sypin’s sentences were legal. See Trial
Court Opinion, 2/14/22, at 4.
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