26 Gratt. 112 | Va. | 1875
The first question which is presented at the threshold is the objection to the jurisdiction of this court. It is insisted that the only- matter in controversy is in reference to the property in dispute, which is of less value than five hundred dollars. But this is an entire misconception. It is true that the main object of the bill is to recover the property embraced in the deed of trust, and to subject the same to the appellant’s lien; but the claim asserted by him amounts to six hundred and forty dollars. The justice of this claim is controverted by the appellee, and was the subject of adjudication in the Chancery court. That court was of opinion the claim was not sustained
The next ground of objection is, that the appellant has a plain and adequate remedy at law. The bill is filed by a creditor in a deed of trust against the personal representative of the debtor or grantor in the deed. The bill avers that the trustee attempted to take possession of the property with a view to a sale, but was forcibly prevented from so doing by the appellee and others combining with her; that the appellee is insolvent; that her securities upon her official bond are not responsible for the torts of the appellee in illegally detaining the trust property; and that strong reasons exist for believing that she will eloign or so dispose of it as to place it beyond the reach of the process of the court. Hone of these allegations are denied in the answer, though the justice of the debt is strongly controverted. They may, therefore, be taken as true for all the purposes of the question of equity jurisdiction. These facts taken in connection with the loss or absence of the note referred to in the bill, I am inclined to think would have justified the .jurisdiction of equity, if nothing else had occurred.
The next question is as to the correctness of the decree upon its merits. The learned judge of the Chancery court was of opinion, that “as the deed of trust refers to a negotiable note as the direct evidence of the debt, in order to complete that evidence it is incumbent upon the appellant to show that the note was not only executed by Cosby but delivered also; for although the deed of trust was recorded, the transaction was not consummated and complete until the note was-delivered.” The learned judge is certainly correct in stating that delivery is essential to the validity of a negotiable note. But the question of delivery is only important when the action is on the note, or it is sought to charge one who is only liable by reason of being a party to the instrument. When a debt exists independent of the note, the action is often upon the original consideration. If one is indebted to another for goods sold or money loaned, and executes therefor an instrument which is invalid, or which is never delivered, I imagine there can be no question as to the creditor’s right of recovery upon the original cause of
In this case the non-delivery of the note is a material circumstance proper to be considered in determining whether a debt is due. It may more or less tend to throw discredit upon the appellant’s claim; but it cannot invalidate the deed if that claim be a just one. Whether it is or not is the only subject of inquiry. Upon this point the learned judge was of opinion that the deed of trust is not conclusive: that it is not even a direct, distinct affirmation that the sum named in the deed is due. Let this be conceded. It is certainly an acknowledgment of an existing indebtedness. Such an acknowledgment would furnish sufficient evidence of the loan, in the absence of any countervailing or explanatory evidence. It must be admitted that such evidence does exist in this case. Whilst, however, it was not sufficient to justify a dismissal of the bill, it was sufficient to throw upon the appellant the onus of showing the amount of his advancements to or for the appellee’s intestate. The
For these reasons I think the decree of the Chancery court must be reversed, and the cause remanded for further proceedings in conformity with these views. In that court the case must be recommitted to a commissioner, with instructions to state such legal testimony as the parties adduce, to require any discovery, and the production of any books and papers pertinent to the issue which either party may require of the other, and finally to report all the facts and circumstances bearing upon the question of the alleged loan.
Before concluding this opinion it is proper to notice the objection made to the evidence of Jenkins, the trustee. The commissioner was of opinion that he is incompetent, and refused to consider his testimony. The chancellor in his opinion says Jenkins’ evidence is perhaps admissible. I must confess my inability to understand the grounds of this supposed incompetency. The statute declares “that no trustee or executor or other fiduciary shall be incompetent in any case by reason of being a party thereto, or of his being liable to costs in respect thereof, but if liable to costs, he shall not be competent unless some person
In regard to the identity of the property I do not deem it proper or necessary to express any opinion, as the case is to be remanded and the parties may produce additional evidence upon the question.
The other judges concurred in the opinion of Staples J.
The decree was as follows:
The court „is of opinion, for reasons stated in writing and filed with the record, that the decree of the Chancery court is erroneous; wherefore it is adjudged, ordered and decreed, that the same be reversed and annulled, and that the appellee, out of the assetts in
Decree reversed.