26 Gratt. 36 | Va. | 1875
delivered the opinion of the court.
The first question which this case presents for our decision is, whether the decree of the Circuit court of Fauquier county, made on the 13th day of September 1867, has ever been reversed or annulled by any valid proceeding, and does not therefore still remain in full force ?
In the first place, it is contended that after the date of the said final decree, and after the act of March 15th, 1867, reducing the period of limitation of appeals to two years, there elapsed two years before the record was delivered to the clerk of the appellate ■court, and before process issued upon the appeal, and before such bond was given as was required to be given before the appeal could take effect. The date of the order made by W. Willoughby, as a judge of the
To this objection the answer made by the counsel of the appellee is sufficient; that the act of March 15th, 1867, which amended the third section of chapter 182 of the Code of 1860, changing the limitation of time for presenting a petition for an appeal from, or writ of error or supersedeas to any final judgment decree or order, from five years to two years after it was rendered or made, did not amend the twenty-sixth section of that chapter, which allowed five years within which to perfect the appeal by giving bond, &c.; and this stood unaltered until it was amended by act of' June 23, 1870 (Acts of 1869-’70, p. 224, § 17); so that the petition was presented, and all other acts performed within the time allowed by law. But see Callaway v. Harding, 23 Gratt. 542, which will suffice.
If, however, the appeal had not been perfected within the period limited by law; still, as no objection was made on that ground until after the judgment was. affirmed by the appellate court, it was certainly too late to make the objection then for the first time.
In the next place, it is contended that even supposing the appeal which was allowed, to have been perfected in due time, yet the appeal was invalid; and therefore the decree of the appellate court founded, thereon, is also invalid, and the said decree of the Circuit court still remains in full force.
If it be conceded that this would have been a good objection if made in due time, it might well be argued, as indeed was argued by the counsel for the appellee, that the objection came too late. It was not made in the district Court of Appeals, while the case was pending there, nor in this court, while the case was pending here, nor in the special Court of Appeals, while the case was pending there, until after that court had reversed the judgment of the Circuit court, and then it was made for the first time.
But without deciding that question (because unnecessary to do so), we are of opinion that the said appeal was a valid appeal, according to the law of this state, as it has been settled by this court in the cases of Griffin’s ex’or v. Cunningham, 20 Gratt. 31, and Quinn &c. v. The Commonwealth, Id. 138. To that extent the judges were unanimous, although they differed upon an important question arising in the first named case. All of the five judges were presantwhen that case was argued and decided, and it was argued with great ability, and very deliberately considered and decided. We all still think that that decision was right, to the extent to which the whole court was then agreed, and we are of opinion that it ought not now to be disturbed, We therefore confirm it. In Teel &c. v. Yancey &c., 23 Gratt. 691, it was held that the act of March 5th, 1870, commonly called the enabling act, is a valid act, except the proviso, which authorizes the Court of Appeals to review the decisions of the Court of Appeals-
In the next place, it is contended that even if there was a valid appeal from the said decree of the Circuit court of Fauquier county, that appeal has never been lawfully disposed of, but is yet pending in this court.
If it has been lawfully disposed of at all, it has been so disposed of by the late special Court of Appeals in reviewing the said decree of the Circuit court.
But it is contended that the decree of reversal of the Circuit court is invalid: 1st, because the special court was not organized according to the constitution of the state; and if it was, 2dly, because the case was not legally transferred from this court to the special court, to be disposed of by the latter. And,
1st. Was the special court organized according to the constitution ?
It is said that it was not, because it was made by law to consist of not more than three judges; whereas, by the constitution, it is required to consist of not less than three nor more than five judges.
Certainly, if the constitution requires it to consist of not less than three nor more than five judges, the law which made it consist of not more than three was unconstitutional. And certainly also we may say it was competent for the convention in framing the constitu
How the constitution seems to speak a plain language on the subject. “Special courts of appeals, to consist of not less than three nor more than five judges, may be formed of the judges of the Supreme Court of Appeals and of the Circuit courts, or any of them, to try any cases on the docket of said court, in respect to which a majority of the judges thereof may be so situated as to make it improper for them to sit on the hearing of the same; and also to try any cases on the said docket which cannot be otherwise disposed of with convenient dispatch.” A choice of the number of the judges of a special Court of Appeals was here plainly given by the constitution to the legislature, so that such number should be between the extreme limits of three and five inclusive. If there were any doubt about this upon section 3 of article vi. of the constitution just quoted, taken by itself, there can surely be none when we take it in connection with section two of the same article. “The Supreme Court of Appeals shall consist of five judges, any three of whom may hold a court.” If the convention had in
The legislature so construed the constitution, and accordingly passed the act approved February 28, 1872, entitled “an act to provide a special Court of Appeals.” Acts of 1871-72, p. 98, chap. 124. That act unmistakably creates a court to consist of three judges, and not more, and no person ever doubted, so far as we know, that the act was constitutional, until it was recently doubted by counsel in this case. Nothing is better settled than that, prima facie, every act of the legislature is constitutional, and the burden of clearly showing the contrary devolves on him who asserts it. If the question be doubtful, it will be solved in favor of the validity of the act. If this act be not plainly in accordance with the constitution, it certainly cannot be said that the contrary plainly appears.
We do not see the force of the objection to the constitutionality of the act, arising from the provision in section 2 of article vi. of the constitution, concerning the Supreme Court of Appeals, which declares “that the assent of the majority of the judges elected to the court shall be required in order to declare any law null and void by reason of its repugnance to the Federal constitution or to the “ constitution of this state.” It was not contemplated nor intended that cases involving a question of constitutionality of a law should be referred for decision to a special Court of Appeals,
Hor do we see the force of the objection made to the constitutionality of the act, upon the ground that, it authorized the Court of Appeals to designate annually three judges of the Circuit courts, to constitute-a special Court of Appeals. We do not consider this as a legislative power, which the Court of Appeals had no constitutional power to perform. . This was, no doubt, deemed by the legislature to be the best and most convenient mode of mere designation of three of the circuit judges to hold the special Court of Appeals. A similar mode has been authorized by law to be pursued in other like cases, without objection. In the act providing for special Courts of Appeals, passed March 15th, 1832, Sup. to R. C. p. 123, chap. 95, the duty of designating the judges to constitute a special Court of Appeals was devolved on the General court. Certainly the General court had no more capacity to perform such a function than had the Court of Appeals. In the act passed February 25, 1854, Acts of 1853-4, p. 18, ch. 17, sec. 5, power was given to the Court of Appeals to designate judges of the Circuit courts to hold a special Court of Appeals ; precisely such a power as was conferred by the act of 1872.
2ndly. Was this case legally transferred from this court to the said special court, to be disposed of by that court ?
Under this head we understand two objections to be made; first, that this is not such a case as ought to have been transferred to the special court; and, secondly, that no opportunity was afforded the appellant to object to such transfer, or show cause against it. We now proceed to consider these two objections; and,
[First, that this is not such a ease as ought to have been transferred to the special court.
To determine this question, we must look at the words of the first section of the act, and of the third section of the sixth article of the constitution; and we need only look to a few of those words. By the first section of the act, the special court is constituted for the trial of such causes “as the Court of Appeals cannot dispose of with convenient dispatch, and shall certify to it, as provided in article sixth, section three, of the constitution of the state, not exceeding fifty at a time.” And by the third section of the sixth article of the constitution, special courts are authorized to be formed “ to try any cases on the docket of the Supreme Court of Appeals, which cannot be otherwise disposed of with convenient dispatch.” This is all that is said, either in the constitution or the act, in regard to the nature of the cases to be tried by the special court, in the exercise of the branch of its jurisdiction we are now considering.
The only limitation, if limitation that can be called, upon the cases on the docket which the special court
The act provided that it should continue in force for two years, unless this court should enter an order of record that the existence of said special court was no longer necessary. Thus showing that during that period of two years it was expected that all the cases on
The act of assembly made no provision for affording such an opportunity. It only provided for the. transfer to the special court, of such causes as this court could not dispose of with convenient dispatch, not exceeding fifty at a time. There could be no occasion for such an opportunity in regard to the question of convenient dispatch with which a cause might be disposed of. That was a question which the court could decide without the aid of parties or their counsel. It could not have been contemplated by the framers, either of the constitution or the law, that all or any of the suitors in the court might raise an issue on that question. There might be peculiar reasons for not certifying a particular case to the special court; such as the fact, that a constitutional question existed in the case, or the fact that one of the “judges of the special court decided the case as a circuit judge. But such facts, which would be cases of rare exception, might be brought to the notice of either court at any time, and the case, whenever proper, would be restored to the docket of this court. If there was any advantage to be derived from
It follows, from what we have said, that the decree of the 27th of January 1873 is a valid and conclusive decree; that there can be no complaint of any error either in it or behind it; and that if there be any error in this case, for which relief can be afforded, it must be in the proceedings which occurred in the case after it was remanded by the special Court of Appeals to the Circuit court. The appellant complains of such errors, and we now proceed to consider that complaint.
Among the errors complained of in these subsequent proceedings, are several which involve the same questions we have already considered and decided, and it
When the decree of the special court was entered as the decree of the Circuit court as aforesaid, to wit: on the 17th of April 1873 the latter court, in conformity with the requirements of the said decree of the former-court, decreed that one of the master commissioners of the court should take an account, crediting the said Bobert B. Bolling with the amount paid by him on the bills held by Caldwell, Shannon & Co., and charging him with the rents and profits of Bollingbrook, and Ben Lomond from the 2d day of May 1866, when possession thereof ought to have been delivered under the terms of the contract of sale in the bill and proceedings mentioned; and also with the value of the personal property which then ought to have been delivered under the terms of the said contract; in
On the 28th of November 1878, the report of the commissioner and papers accompanying the same were filed in the cause. It contained a statement of the account between Bolling and Lersner, as directed in said decree. . “The only fact in the account,” said the commissioner, “about which there was any difficulty was the question of the proper rent to be charged for said two tracts of land. There were seven depositions taken by each of the parties relative to this question; of course these fourteen witnesses differ as to the proper amount that should be charged, or as to what said farms should have rented for; the difference between the estimates of the highest and lowest being as much as that of $1,300. With this conflicting evidence, your commissioner took the mean rent of all these estimates, to-wit, $1,925 per annum for both farms; and what is a little remarkable, the average rent of the two lowest and the two highest is within a few dollars of this sum fixed upon by your commissioner. The said Bolling was credited with all sums paid for taxes, and for ditching and stone fencing; these items were given in the exhibit filed with Townshend S. Bolling’s deposition.” Then follows the account, showing the total amount due by Bolling to Lersner, on rent account, up to 2d May 1873, with interest to 2d December 1873, to be $10,954.17, of which the sum of $9,160.83 is principal.
To this report eight exceptions were taken by Bolling and none by Lersner; and on the 20th of December 1873 the cause came on again to be heard on the papers formerly read, the said report of the commissioner, and exhibits returned therewith, and exceptions
On the 28d of December 1873, a report of the commissioner, made in pursuance of the said decree, was filed in the cause, showing the balance due by Bolling to Lersner, as of the 20th of December, 1873, to be $5,262.43, of which the sum of $4,684.19 is principal.
To this report six exceptions were taken by Bolling- and none by Lersner. The said exceptions are as follows:
1. Because the commissioner charges the defendant with estimated and conjectural rent, &c., instead of the actual profits realized by defendant.
8. Because the rent fixed is in excess of any fair estimate of value of the estate, based upon a proper management of it.
4. Because interest has been allowed upon estimated rents.
5 (called 7). Because the commissioner has not reduced the charge for the rent of 1866-’7 below that of other years, although that was the year when the fencing had to be repaired, and there was no capital to buy stock, and the tenancy began and ended at an unseasonable period for farming operations, to wit, the 2d of May 1866 to 2d May 1867.
6 (called 8). Because the commissioner failed to allow Bolling sufficient credit for his improvements and repairs, over and above the general improvement of the land. See exception 8, of 17th December 1873.
And on the same day, to wit, the 23d day of December 1873, the cause coming on to be further heard on the papers formerly read, the commissioner’s report last mentioned, and the defendant’s exceptions thereto, was argued by counsel. On consideration whereof, the court, overruling the said exceptions and confirming the said report, decreed that the defendant, Bolling, should execute and deliver to the plaintiff, Lersner, a good and sufficient deed in fee simple, with general warranty, conveying to said plaintiff that tract or parcel of land known as Bollingbrook, in the bill and proceedings mentioned; and further decreed that the plaintiff should recover against the defendant the sum of $5,262.43, with interest on $4,684.19, part thereof, from the 20th of December 1873, and the costs by
From that decree an appeal to this court was applied for; which was accordingly allowed.
We have disposed of all the questions arising on this appeal except those which relate to the account taken of rents and profits, and they are presented by the six exceptions of the appellant to the last report of the commissioner, all of which were overruled by the decree appealed from. W e will now proceed to consider them, though not, perhaps, in the precise order of the exceptions.
It is well settled, and not denied in this case, that when a contract is made for the sale of real estate, which a court of equity will specifically execute, from the moment of the contract the estate is to be considered as the property of the purchaser, and the purchase money as the property of the vendor; possession of the former to be delivered, and payment of the latter to be made, according to the terms of the contract. If, wrongfully, such possession be retained by the vendor, or such payment be withheld by the vendee, contrary to the terms of the contract, the obligation hence arises to pay rents and profits in the one case, or interest in the other, as the case may be. In this case no question arises in regard to the obligation to pay interest, the purchase money and interest having been all paid. But there is a question, which is the main, and, in substance and effect, almost the only remaining question in the case, in regard to the obligation to pay rents and profits. The vendor has continually retained possession of the estate, “from the 2d May 1866, when possession thereof ought to have been delivered under the terms of the contract,”
"We are of opinion that the latter is the just and true measure of the appellant’s liability and the mode of ascertaining it, and therefore that the Circuit court did not err in applying such measure and mode to this case, and in decreeing “ that the amount allowed by said commissioner (to wit: nineteen hundred and twenty-five dollars per annum) is more than a fair rent under the circumstances, “and in ascertaining such rent, upon a fair view of the testimony, to be the sum of fifteen hundred dollars per annum.” At all events, we think the appellant has no just cause to complain of the amount of this assessment. There may be, and no doubt are, cases in which the amount of profits actually received, without regard to the actual yearly value of the property, is the just aüd true measure of liability. If a person were in possession of land which he bona fide believed to be his, and did not know was claimed by another, who might be adjudged to be entitled to it, there would seem to be reason in charging
blow how can it be said, under all these circumstances, that Bolling is not chargeable with a fair and reasonable rent for the property from and after the 2d day of May 1866, when, according to the decree of the special Court of Appeals, he ought to have delivered possession to Lersner under the terms of the contract? The fact is, that when we say that the decree of the special Court of Appeals is valid and conclusive, we decide every question of controversy in this case, even that which relates to rents and profits. In that view of the case it stands thus: On the 2d day of May 1866 Bolling was in possession of the land in controversy, and was bound by his contract to deliver it to Lersner, who had paid the whole amount of the purchase money, and was then demanding such possession, and actively prosecuting this suit for its recovery. Bolling has ever since remained, and yet remains, in the full possession and enjoyment of the land, while Lersner has ever since been demanding, and actively prosecuting this suit to recover such possession, with the exception only of about two years, during which his application for an appeal from the decree of the Circuit court of the 18th day of September 1867 was suspended; and even during that period it must have been confidently expected by Bolling that Lersner intended to apply for an appeal, and that if he so applied he would obtain it.
Under these circumstances ought not Bolling to have expected and prepared to pay a reasonable rent for the land in case of its recovery from him? And now that a decree has been rendered against him for it by the court of last resort, is there any principal of law or equity which can exempt him from liability for
The commissioner ascertained that an average of the estimates of all the witnesses on both sides, of which there was an equal number, made the sum of nineteen hundred and twenty-five dollars, and reported that as a reasonable annual rent. But Bolling excepted, and the Circuit court sustained his exception, and reduced the sum to fifteen hundred dollars per annum, which it considered to be a reasonable rent under all the circumstances of the case, and especially looking to the care which had been taken of the land, and of the prudent manner in which it had been managed and cultivated. And from that amount of fifteen hundred dollars was deducted every cent which had been paid by Bolling for taxes on the land, for ditching, fencing, and other improvements, with the single exception of clover seed and plaster used upon the land, which was. considered to be properly chargeable to the tenant, and not to the owner of the land. Is this more than a reasonable rent? and has Bolling any just cause to complain of it? We think not.
And this disposes of all the questions arising upon the exceptions to the commissioner’s last report, except the fourth, “because interest has been allowed upon estimated rents,” which presents the only remaining question to be decided in the case.
In actions for the recovery of rent in arrear, it was a general rule formerly, that interest was not recoverable on the sum due, because the landlord had a summary remedy by distress. 1 Rob. Pr., old ed. 362-8, and cases cited. But although interest was not given, of course it might, nevertheless, be given under circumstances to be judged of by the jury; and in case of a general verdict allowing interest, it was intended
Upon the whole, we are of opinion that there is no error in the decree appealed from, and that it ought to be affirmed.
Decree affirmed.