77 Va. 76 | Va. | 1883
delivered the opinion of the court.
This case is before this court upon a rehearing, and is an appeal from a judgment of the circuit court of Fauquier county, rendered on the 19th day of April, 1880, in a suit brought in the name of William Duncanson for the benefit of J. J. Halsey against John S. Barbour, at May rules, 1868, of Culpeper circuit court, to recover of said Barbour the amount of a bond executed by said Barbour on the first .day of January, 1858, for $1,118.60, due the first day of November, 1860, with interest from the first day of November, 185V.
The case as disclosed by the record is as follows:
On the lVth of October, 1858, Duncanson transferred this bond to Jeremiah Morton, to be held by said Morton as collateral security for a debt due by Duncanson to Morton, for the purchase of a tract of land, named in the record “Bushy Park,” at $3,025, and $60 due for guano, evidenced by the two bonds of the said Duncanson, dated November 2, 185V, each for the sum of $1,542.50, and payable respectively December 1st, 1858, and December 1st, 1859.
In December, 1860, Morton notified Barbour that this bond of Barbour to Duncanson for $1,118.60 had been assigned to him, the said Morton. This bond had fallen due November 1st, 1860. Barbour at once replied by letter, which is in the record, filed and relied on by the appellee, in which letter he says:
This letter is largely relied on by appellee to show that no part of this bond, the subject of this suit had been paid. Barbour says further, “There have been several judgments against Duncanson binding this land, some of which I have paid,” and after reference to other liens on the land says: “There was also a deed of trust upon which I had to pay. Of course I must take care of myself in these matters before 1 can assume to pay you or any assignee of Duncanson.” This was strange language to be used by Barbour to Morton, who held his bond of $1,118.60, then due and payable upon its face, if, as the circuit court of Fauquier has decided in this case, every dollar of that bond was due and unpaid at that time. That was in December, 1860, Duncanson was not dead then—Morton was living, and both bonds for the purchase of Bushy Park had then fallen due ; all the liens of every sort upon the lands purchased by Barbour of Duncanson, were of record in the cleric’s office of Culpeper county, whether these liens were docketed judgments or trust deeds. If the cirouit court is right in its judgment in this case, this letter must have been startling to Morton, and it is not a violent presumption, that Morton went with this letter without unnecessary delay to Duncanson, his debtor. If the bond in dispute was entirely unpaid, Duncanson must have been indignant. It represented to Duncanson, a large sum of money, which stood between him and destitution, if it was wholly due and unpaid. Under those circumstances there was a strong motive to impel Duncanson to action, and one equally strong to move Morton to action. We would expect to find suit commenced' without delay—the courts were not closed—but what do we find from the record ?
This refusal of Barbour to acknowledge one dollar of indebtedness under this bond did not cause any suit against him.
Why was this delay ? Duncanson could have explained the true state of the bond to Morton, and doubtless did so in 1860, when Barbour first refused its payment. What was that explanation? We are left to conjecture. But can it he fairly presumed, under these circumstances, that the explanation of Duncanson to Morton was to this effect: “Hot one dollar of that bond has been paid, and not one dollar is necessary to he used to pay judgment liens or trust deeds on my land sold to Barbour. All these liens have been provided for, and more; and Barbour owes me this entire bond, principal and interest?” Such a presumption is absolutely precluded by the history of this case, as we have seen it disclosed by this record; and yet that is the judgment of the circuit court in this case.
If not before, certainly now, when Morton is so hard run, and so pressing upon him, the said Duncanson. If he told Morton that this entire bond was due, Morton would not have used such
If this claim had been set up by Duncanson, Barbour would have been on equal terms—both living—but-as we have seen, it is set up only after Duncanson’s death.
This brings us to consider the history of the other bonds in this case. On the first day of January, 1858, Barbour executed three bonds to Duncanson, each for the sum of $1,118.60, each to bear interest from November 1st, 1851, and payable respectively November 1st, 1858, November 1st, 1859, and November 1st, 1860; they make together $3,355.80, and Barbour assumed the payment of a lien on the land of Duncanson of $1,644.20, which, together with the amount of the three bonds, make the amount of $5,000.00, which was the entire purchase-money for the land bought of Duncanson. The testimony in the case, not exceptionable, shows, that the second bond was assigned to Kelley December 22d, 1858, by Duncanson, which is admitted on both sides, with a credit on it for $140, when assigned.
What is the testimony? The witness, Gray, says that early in the year 1858, in the month of February, Duncanson and Barbour procured his services to state all the claims, which were liens on this land bought by Barbour, in order that Barbour might know whether he could safely pay the first bond in money, that is whether the two second bonds were sufficient to secure the liens on the land; that the result was the conclusion that the two last bonds were ample, and that it was decided that Barbour could, without risk, pay the first bond in money, and it was so agreed between Barbour and Duncanson.
The witness, Gibson, testifies that in June or July, 1858, Duncanson told him that he was going to get the money on the first bond from Barbour, and pay him some of it; that shortly afterwards he told witness that he had gotten the money from Barbour on his first bond, and that Duncanson offered some of this money to him, and that he saw it.
The deposition of Edwin Barbour is objected to, so far as it gives evidence of the declaration of Duncanson after assignment of bond. This objection is well taken, so far as it effects the declaration of Duncanson concerning the bond which he had assig’ned. They are not against interest, and cannot be received, being mere hearsay; but so far as these declarations go to the bond not assigne'd, and so far as they are against interest, and admit the payment of the first bond by Barbour to Duncanson himself, it would seem to be otherwise; and also as
We are of opinion that the said circuit court erred in so deciding, and are of opinion to reverse the said decree of the said circuit court. The following order will be entered :
The court is of opinion, for reasons stated in writing and filed with the record, that the judgment of the said circuit court is erroneous. It is therefore considered that the said judgment be reversed and annulled, and that the appellant recover against the appellee his costs expended in the prosecution of the writ of error and supersedeas here.
And this court now proceeding to render such judgment as the said circuit court should have rendered, it is further considered by this court that the plaintiff takes nothing by his bill, &c.; that the defendant go thereof, without day, and recover his costs by him expended in defence of this suit in the said circuit court.
Decree reversed.