28 Gratt. 775 | Va. | 1877
delivered the opinion of the court. .
The first of these cases, Cecil v. Deyerle &c., is a writ • of error to a judgment of the circuit court of Montgomery county, rendered on the 14th day of May
The second of them, Linkous &c. v. Shafer &c., is a writ of error to a judgment of the same court, ren
The third and last of them, Garnand &c. v. Childress &c., is an appeal from a decree of the same court, rendered on the 24th day of September 1874, in the case of George Garnand &c. v. Thomas D. Childress &c. It appears from the record in the ease that the petitioner» for the said appeal, as set out by them in their petition, “are the judgment creditors of Thomas D. Childress, Stephen Childress and William M. Childress, some of which judgments are against them jointly, and others, separately, the same being fully set forth in the record*
“ Istly. That in so far as it alters, or attempts to alter, the contracts of the parties in the several judgments named in commissioner Hagan’s report, or undertakes to alter, review or annul the judgments which had been rendered by the circuit and county court between
“2dly. The courts having adjudicated the rights of these parties, and determined what amount of principal and interest should be recovered by the creditors as against the debtors before the passage of the act of 2d April 1873, the general assembly had no power to pass an act authorizing the courts which had rendered the judgments, or any other court to review said judgments, with the view and for the purpose of taking from the plaintiffs a part of their claims, and giving the same to the defendants.”
“ 3dly. By the decree herein complained of, it will be perceived that the petitioners and the other judg- . ment creditors named in the report have been deprived of $4,442.54 of money justly due them, and this large sum has been by the chancellor given to the debtors without the creditors’ consent, and against their solemn protest.”
When the judgments and decree sought to be reversed in these three cases were rendered, there had been no decision of this court on the question of the constitutionality of the provision before mentioned of the act passed April 2, 1873', as aforesaid. But such a decision has since, and recently, been made in two cases not yet reported in a regular volume of the reports of the decisions of this court, because nó volume of such decisions, coming down to so late a period as that at which those cases were decided, has yet been.
In the former, Roberts’ adm’r v. Cocke &c., the plaintiff brought an action of debt in the court below upon a bond dated on the 12th day of December 1860 for “$762, with interest from date, payable nine months after date.” The defendants filed three pleas: 1st, payment;- 2d, a plea averring that the bond sued on was entered into prior to the 10th day of April 1865, and praying judgment that the interest on the bond from the 17th day of April 1861, till the 10th of April 1865, be remitted, in accordance with the act aforesaid (to wit: the act passed April 2, 1873); and 3d, a plea of the like tenor and with the like prayer as the 2d, with the further averment, that “the confusion of the business relations of the country, incident upon the secession of the state of Virginia from the United States, and the war consequent thereupon between the Confederate States and the United States was so great and disorganizing, that the principal money in said writing obligatory specified, was not worth any interest between the periods aforesaid to the defendants, who were citizens of the county of Fauquier, which was occupied from time to time by the Federal troops.” The plaintiff took issue on the plea of payment, and demurred severally to the other two pleas. The demurrer was overruled, and neither party demanding a jury, the whole matter of law and fact was submitted to the court; and the bond sued on being given in evi
“ Received NovT 26th, 1860, of Frances A. Murphy $500, to bear interest from date. I also agree to, and put a negro boy, Abraham, in pond (meaning in pawn) to secure the payment of the same. Whenever the $500 is paid to Mrs. Murphy, with legal interest, the said boy no longer belongs to the said Mrs. Murphy, but the title returns back to me. Given under my hand and seal this the 26th day of November 1860.
John Gaskins, [Seal].”
The defendant pleaded to this action “covenants performed,” and “covenants not broken,” upon which pleas issues were made up, and neither party demanding a jury, the issues were tried by the court on the 4th day of April 1872, and judgment was rendered for the plaintiff for the $500 in the covenant specified, with interest from the date thereof, and for costs. On the 12th day of April 1878, the personal representative of John Gaskins, pursuant to notice, made a motion in the circuit court of Fauquier county for a review of the judgment aforesaid, and an abatement of the interest included therein between the 17th day of April 1861, and the 10th day of April 1865, and the court rendered judgment accordingly, abating said interest.
The judgments of the court below in these two cases were brought up to this court by writs of error for revision and review, and upon such revision and review were considered and adjudged by this court to be ei’roneous, based as they are solely on the said act of the general assembly, passed on the 2nd day of April, 1873, and were accordingly reversed and annulled. The unanimous, opinion of the court, consisting of three judges, was delivered by Judge Burks; from whose opinion we have taken the statement of the cases.
The head notes to the report of these cases in the Virginia Law Journal, seem to be a correct synopsis of the opinion delivered therein. They are as follows:
1. “ Where, during the late war, a creditor resided within the territoi’y of one of the belligerent powers, and his debtor within that of the other of said powers, •such debtor would, under the rules of public law, be entitled to an abatement of interest during the time the war lasted.
2. “But where the debtor and creditor resided within the same territoi’y, the mere existence of war does ’ not, alone, furnish any legal ground for the abatement of interest upon contracts during the time such war lasted.
3. “In contracts for the payment of a certain sum •of money, interest on the principal sum is a legal incident of the debt, and the right to it is founded upon the presumed intention of the parties.
4. “ Wherever there is a contract express or implied for the payment of legal interest, the obligation of the •contract extends as well to the payment of the inter
5. “The laws which subsist at the time and place of the making of a contract and where it is to be performed, enter into and form a part of the contract, and that, whether such laws affect its validity, construction, discharge, or enforcement.
6. “ While it is competent for the state to alter or change the remedy on a contract, this can only be done where the change does not impair substantial rights. *
6. “The act of the general assembly, approved April 2, 1873, entitled ‘ an act to amend and reenact sec. 14, eh. 187, of the ,Code of 1860, in relation to interest,’ so far as said act confers upon courts and juries, in the suits therein mentioned, power to remit interest as therein provided, on- contracts entered into prior to April 10, 1865, which said courts and juries did not have under the laws in force at the time such contracts were entered into, is repugnant to the constitution-of the United States and of this state, and is so far null and void.
8. “And so much of the said act as empowers the courts to review judgments and decrees upon motion, and to abate interest as in said act provided, is repugnant to the constitution of the United States and of this state, and therefore void.”
Tbe decision of the court in these two cases is conclusive of the three cases now under consideration, and requires the reversal of the judgments in the first two and the decree in the third, with costs to the plaintiffs in error and appellant both in this court and in the court below.
There is a passage in the opinion of the court in the two cases heretofore decided as aforesaid in these words: “We do not mean to say, however, that there may not be special cases attended with circumstances connected with, or growing out of the war, which would furnish legal cause for the abatement of interest. When such cases arise, they must be decided according to the law applicable to the peculiar facts and circumstances of each case. We can only lay down the general rule.” It is sufficient here to say on that subject, that if there may be such special cases, neither of the three cases now under consideration is one of them, but all of the said three cases fall within
We have, in the foregoing opinion referred to, no other authorities than the recent decision of this court in the two cases aforesaid, that being a binding authority, and perfectly conclusive of all these cases. In the opinion of the court, delivered by Judge Burks in those two cases, all the material authorities are cited, and many of them commented on, which renders any citation of them in this opinion unnecessary.
Judgments and decree reversed.