22 S.E. 169 | Va. | 1895
delivered the opinion of the court.
By a deed dated May 27, 1890, and recorded in Chesterfield county clerk’s office, J. H. Montague, H. A. Tabb, and W. L. Royall, trustees, conveyed to R. B. Taylor, trustee, a tract of 25-J- acres of land lying in Chesterfield county, adjoining the city of Manchester, in trust, to secure, among a number of other notes, the payment of a note for 1662.50 drawn by W. S. Dashiell to his own order, and by him indorsed in blank, bearing even date with the trust deed, and payable 12 months after its date at the State Bank of Virginia, Richmond, Ya. At the maturity of this note, on May 27, 1891, it was taken up by J. Parker Dashiell, appellant, with the check of Thomas Potts & Co., of which firm he was a member, and held by him until about the 18th of February, 1892, when he, as the holder of the note for value, as he claimed, required R. B. Taylor, the trustee in the deed securing the same, to proceed to advertise and sell the property in accordance with the provisions of the trust, whereupon the Merchants’ & Planters’ Savings Bank of Richmond, Ya., filed its bill of complaint in the chancery court of Richmond against J. Parker Dashiell and R. B. Taylor, trustee, and obtained an injunction to restrain the trustee from advertising and selling the tract of land conveyed to him by the deed from Montague and others till the further order of the court, setting forth in its bill that W. S. Dashiell had, by deed dated on or about the 27th day of July, 1891, in consideration
The complainant in the court below, to support the allegations of its bill, examined but one witness, C. D. M. Cobb, — ■ a former partner of W. S. Dashiell, engaged in the real-estate business in the city of Eichmond under the style or the firm name of Dashiell & Cobb, — and his testimony is to the effect that the check book of the firm of Dashiell & Cobb, as well as the checks returned to the firm as paid at bank, shows that a check was drawn May 27, 1891, on the Citizens’ Bank of Eichmond, to the order of J. P. Dashiell, for $400 ; another on the same bank, May 29, 1891, to the order of “Cash,” for $262.50 ; that both checks were signed by the firm name, in the handwriting of W. S. Dashiell, and both indorsed, “for
Upon a hearing of the cause on the bill and the answers and the depositions of the witnesses referred to, the court below, on December 1, 1892, decreed that the note in question, for $662,50, has been fully paid off and discharged at the cost of said W. S. Dashiell, and that the plaintiff is entitled to possession of same, and further adjudged, ordered, and decreed that the clerk of the court withdraw said note from the papers in the cause, and deliver the same to the plaintiff, and that the injunction awarded the plaintiff on the 18th day of February, 1892, be made perpetual, and that J. Parker Dashiell, defendant, pay to the plaintiff the costs of its suit. From this decree an appeal was allowed J. Parker Dashiell to this court.
After a most careful examination of the record we are unable to concur in the view taken of the case by the learned judge of the court, below. The possession of the note in question, not marked ‘.‘Paid,” was prima .facie proof of its ownership in the holder, J. Parker Dashiell, appellant ; and. the bur
It is contended, however, that the failure of J. Parker Dashiell to credit W. S. Dashiell with the two checks given by him May 27, 1891, in the account on which he obtained judgment in the circuit court of Richmond November 30, 1891, against W. S. Dashiell, for the sum of §1,338.70, is sufficient, together with the other testimony in the case, to justify the decree complained of, but we are unable to see the force of this contention. While, according to the ordinary rules used in stating accounts, these checks should have been credited to W. S. Dashiell, the failure to do so does not, we think,1 affect at all the right of J. Parker Dashiell to the note in question ; and it also appears that the larger portion of the account sued on is made up of payments made by J. Parker Dashiell for account of W. S. Dashiell after the note was taken up, May 27,