76 Va. 537 | Va. | 1882
delivered the opinion of the court.
The purchase money for the tract of land sold and conveyed by Fulton to Rawley and Davis jointly was $5,000, for the payment of which they executed their joint bonds. In the subsequent division of the land between the purchasers, Rawley's parcel was rated at $2,600 and Davis’ at $2,400, and in this proportion they were to discharge their joint indebtedness to Fulton.
The legal effect of the arrangement was, that as between the two purchasers and in relation to each other, .they were principal debtors for their respective portions of the pur
It is understood to be admitted, if not, it is proved, that Rawley and Davis paid all the purchase money in equal portions to Fulton, except the last instalment of $1,500. As Rawley, under the arrangement with Davis, was bound to pay $200 more than Davis on the whole Fulton purchase, he was chargeable to Davis with this sum on the last instalment, which sum deducted would leave the residue to be paid equally between them—that is, he was bound to pay $850 and Davis $650. Two payments, one of $200 and the other of $250, were made on this instalment and credited thereon. It is admitted that Rawley paid the $200, and he claims that he also paid the $250. Davis disputes the payment of the latter sum, but we think the weight of the proof is that it was made by Rawley. When Derting subsequently acquired the bond for this instalment from Fulton, he at the same time acquired, as an incident of the debt and a security for its payment, the lien which had been reserved by Fulton on the whole tract of land sold to Rawley and Davis and afterwards divided between them. He had the right to stand in Fulton’s shoes, and at his instance equity would have enforced against the land ac
The court having all the parties in interest before it, by its decree credited the whole of the balance of the Fulton debt on the purchase money due from Derting to Eawley,. the effect of which was a payment of the whole by Eawley,. and then charged in favor of Eawley against Davis what should have been paid by the latter, and ordered a sale of' his portion of the Fulton land for the payment of the sum so charged. The equities of the parties inter sese were thus worked out with convenience, and the costs of several suits prevented. Assuming (for the present) that Davis is not entitled to the set-off he claims, he certainly has no right to complain of the enforcement of the lien for the balance due from him on the Fulton purchase; but it is insisted on behalf of Dobyns, the purchaser from Davis, that the lien cannot be enforced as against him, because he is a bonafide purchaser for valuable consideration without notice of the lien. In our opinion, he is by no means such a purchaser. In the first place, it does not appear that he has paid the purchase-money. It seems, he was to pay ¡¡>3,000.. On this sum he was credited with $1,750, the amount of a. debt said to be due him from Davis, and for the residue ($1,300) Davis, in one of his depositions says, he still holds Dobyns’ notes.
And, first, it is said that because in the deed from Rawley to Davis for the land which was assigned to the latter in the division the Fulton lien is not referred to as retained, Dobyns had the right to presume that the lien was satisfied. We do not perceive the force of this argument. The deed was in terms and in fact merely a deed of partition, or one •of two deeds of partition, of the land between the parties, and does not purport to be anything else. It expressly refers to the joint purchase from Fulton, and thus directly to the source of the joint title, which was evidenced by Fulton’s deed on record showing on its face the reservation of the lien. But it is further urged that at the time Dobyns purchased, Davis had in his possession the first two •of the Fulton bonds or notes—one for $1,800, and the other for $1,500—and that Davis assured him that he had paid off his portion of the purchase money, and his possession -of the bonds induced reliance on the truth of the assurance.
But the learned counsel further contends that even if the amount decreed against Davis was correct and constituted a lien on the land sold by him to Dobyns, yet the-court erred in not allowing the setoffs claimed by Davis-in his answers.
First, as to the note for $600. That is a note of Eawley to Davis, guardian of Mary J. and Frances E. Davis, for money lent as such guardian, and Davis, in his answer to the amended bill, avers, and in his deposition testifies, that-this money was lent by.him as guardian under an agreement with Eawley, that it was to be applied- by him towards the payment of his part of the purchase money due Fulton, and was to be repaid to Davis by Eawley’s discharging an equivalent portion of the purchase money due-by Davis to Fulton. Eawley denies this agreement. But, if established, it is such an agreement as, if executed by the parties, no court of equity would allow to stand as-against the wards; and if not executed, the court a fortiori would not carry into effect. The court will not allow, much, less aid, a guardian to apply the estate of his wards to the-discharge of his individual indebtedness. See Hunter v. Lawrence’s Adm’r and others, 11 Gratt. 111, 131; Asberry’s Adm’r v. Asberry’s Adm’r and others, 33 Gratt. 463.
But it is further insisted that this note has become the individual property of Davis. This cannot be, unless he has paid the debt represented by it to his wards, or he has.
It is not shown that he has either made payment or been released in any way. It is true, he says, that the amount of the note is included in a judgment confessed by him in behalf of his wards, and that the judgment is secured by lien on lands sufficient to satisfy it. If this were so, still the security is not payment, nor equivalent to payment unless accepted by the wards as such, and there is no pretence of proof to that effect. But upon examination of the record, we find that conceding that the amount of the note is embraced in the judgment, the lands of Davis, on which the judgment is a lien, are not sufficient to pay it in full. After the proceeds of the lands (all of which have been sold), including rents, shall have beén applied to the liens, the judgment will not be wholly satisfied. A considerable part will remain unpaid. Besides, there are other serious difficulties. • The causes in which these liens are being enforced are pending suits, and the decrees directing the application of the rents and proceeds of sales are interlocutory. There has been no final decree, and but little money has as yet been realized in the causes.
It may be that these interlocutory decrees may be entirely changed on rehearing of the causes before final decree. The sales may be set aside for some good cause, or if not set aside, there may be resales upon which the prices at the former sales may not be realized, and if the former purchasers prove insolvent, the funds may be greatly diminished. Then, before the termination of the causes, it may be ascertained that there are other liens, prior in time and superior to the lien of the judgment in question. In fact, it appears that in the causes in which this judgment is being enforced, there is an order of inquiry as to other liens still unexecuted. So that Davis is not the owner in his own right of the note he claims to set off, and, for aught that appears to this court, he may never be.
Second, as to the bond for $1,000 prayed to be set off. This bond was executed by Prather as principal and Pawley as surety, and is payable jointly to Davis in his own right ■and as guardian of the Davis children and to his two sisters, who, it seems, have assigned their interests to him. The ■objections (which have been stated) to the note as a setoff apply with greater force to this bond.
But there is another and more conclusive reason why it should be rejected. It is not the bond of Pawley. Though once his obligation, it was rendered invalid as to him by alteration after it was executed.
A material alteration of a bond or note after its execution, when intentionally made by one having an interest in it, and without the consent of the party bound by it, invalidates the instrument as to such party. This is the general rule to be deduced from the authorities at this day, and the chief reason of the rule is said to be that the “ alteration destroys the identity of the contract; and, therefore, if a party to the contract who has not consented to the alteration, were to be held bound by it, it would be, in effect, imposing upon him against his will a new contract, to whose terms he never agreed.” Pote to Woodworth v. Bank of America, 10 Amer. Decisions, 267, and cases there cited; see also Newell v. Mayberry, 3 Leigh, 250.
That the bond was altered after it was executed and qpassed into the hands of Davis, one of the obligees, is not
A motion was made for the continuance of the cause on the ground that this bond, originally filed, had been lost out of the papers. But there was an exact copy furnished by Davis himself, and as there was no controversy as to the execution of the' original, or as to the credits endorsed, the copy was sufficient for the purposes of the case, and the motion was properly overruled.
It is so clear that it was not necessary or even proper to make the wards of Davis parties to the cause, that the proposition need not be discussed.
We believe that we have noticed, though not in regular order, all the assignments of error by the appellants, and we are of opinion that there is no error in the decree complained of, and it will therefore be affirmed.
Decree affirmed.