101 Va. 702 | Va. | 1903
delivered the opinion of the court.
The court is of opinion that -there is no-error in the decree of September 8, 1899. This litigation had its origin in a contract between John G. Watts, J. W. Baker, and J. M. Beavers, of. the first-part,-and C. G: Holland, of the second part, whereby, the parties of the first part-.sold to Holland options upon cer-. tain coal lands. Two thousand dollars -was paid in cash upon, condition that, if the title was unsatisfactory, to Holland, it- was to be refunded. The'title did prove unsatisfactory, and Holland, in an action at law, recovered judgment against the parties of the first part for the $2,000 he had paid.them. This, judgment in favor of Holland was reviewed by this court, and affirmed. See Watts v. Holland, 86 Va. 999, 11 S. E. 1015.
.In 1896 John G. Watts, who had been-compelled to pay the whole of this judgment, filed his bill in the Circuit Court of Tazewell-county; alleging his payment of-the entire judgment; the joint and equal liability of J. W. Baker and J. M. Beavers to share that burden with him ; and asking that he be substituted to all the fights of C. G. Holland, the judgment creditor, and that those equally responsible with him be required to make an equitable contribution toward the • satisfaction of their joint liability.
J. W. Baker and J. M. Beavers, who were made parties defendant to this bill, filed a joint and separate answer in which they admit the payment by John G. Watts of the judgment, but deny his right to contribution from them, upon the following grounds: That some time before the sale of the option to • Holland, respondents, having* secured a number of options upon coal lands, entered into a parol contract or-partnership with the complainant, Watts, by which he undertook and agreed to sell the options they then had, and such as they might thereafter secure, to examine and perfect the titles to the lands covered
Respondents further aver that complainant during the continuance of the contract or partnership with them, without their knowledge' or consent, formed another partnership of the same kind, which directly antagonized and ruined the prospects and success of their contract or partnership; that complainant and his new partners are now the owners of valuable coal lands, which came into- their possession through the labor, options, and information furnished by respondents in pursuance of their contract or partnership; that complainant, by thus: using for the benefit of himself and others options and information furnished by respondents, was much more than reimbursed all sums paid to respondents, or used in the business growing out of the contract or partnership between them; that, soon after the refusal of Holland to take the property sold him, the same could have been sold' to' others at a profit sufficient to refund Holland the $2,000 cash payment, and to have paid respondents for their time and trouble in securing control of the property; but that, instead of managing the affairs of the partnership so as to make a profit, complainant had used the same for the benefit of himself and others, whereby he made a profit for himself, and occasioned a loss to respondents, of a much greater sum than they are indebted to complainant by contribution or by any other means.
Upon the filing of this answer a motion by the plaintiff for
The decree of September 8, 1899, having settled and determined the issue between the parties as to the right of the appellee to be subrogated to the lien of the Holland judgment against the appellants, J. W. Baker and J. M. Beavers, to the •extent of their liability to him, and this court having affirmed that decree by refusing an appeal therefrom upon the ground that it was plainly right, that-question is at rest and cannot be reopened.
The court is further of opinion that there is no error hi the decree of December 12, 1900. After an appeal was refused from the decree of September 8, 1899, the appellants. ,T. W.
It is an established rule that, before allowing a petition for-rehearing or bill of review to be filed on the ground of after-discovered evidence, the court must be satisfied that the evidence relied on is new, and could not by ordinary diligence have-been discovered prior to the date of the decree complained of. Craufurd’s Adm’r v. Smith’s Ex’r, 93 Va. 628, 23 S. E. 235, 25 S. E. 657.
A petition to rehear a chancery suit which does not allege the-discovery of new and important testimony not known or accessible to the petitioner before the former hearing, and which points ont no error npon the face of the former decree, should be dismissed. Woods v. Early, 95 Va. 307, 28 S. E. 374.
In the case at bar the petition undertakes to review the evidence upon' which the decree of September 8, 1899, is based, and closes with this single allegation with respect to after-discovered evidence: “Your petitioners now here state that the element of profit lacking in the evidence in this cause cannot, be supplied, and that, after said cause was submitted to your honor, the complainant, your petitioners are advised, believe,, and charge, sold said properties to one T. E. Houston- at the rate of $15 per acre, and that a large part of the purchase price has been paid to the complainant.”
There is no allegation in the petition that the evidence suggested by the language quoted was not known, and could not,, by the exercise of reasonable diligence, have .been discovered, before the date of the decree sought to be reheard. This was necessary under the authorities, and leave to file the petition was properly denied.
The court is further of opinion that there is no error in the decree of May 27, 1901. That decree is based upon the amended bill and the proceedings thereunder, leave to file which was
There are but two questions arising under these proceedings that we are called upon to notice. The appellant, Fannie E. Baker, wife of defendant, J. W. Baker, complains of the action of the court in decreeing a sale of five shares of stock in the Tazewell Improvement Company which had been transferred to her by her husband, J. W. Baker, and directing the proceeds of such sale to be applied to the debt of the complainant. Transactions between husband and wife must be fair, and honest, and not mere contrivances resorted to for the purpose of placing the husband’s property beyond the reach of his creditors; and in a contest between the creditors of the husband and the wife the burden of proof is upon her to show, by clear and satisfactory evidence, the bona fides of the transaction. In all such cases the presumptions are in favor of the creditors, and not in favor of the wife. Flynn v. Jackson, 93 Va. 341, 25 S. E. 1; Spence v. Repass, 94 Va. 716, 27 S. E. 583. In the case at bar, Mrs. Baker has not sustained the burden the law imposes upon her. The evidence does not establish that the five shares of stock were purchased with her means; on the contrary, it appears to have been an assignment to the wife without consideration, and the stock was properly subjected to the husband’s debt.
There was no error in the action of the court in decreeing a sale of part of the real estate claimed by the defendant, J. W, Baker, as a homestead. This assignment of error has not been
Bor these reasons, the decrees complained of must be affirmed;
Affirmed.