82 Va. 727 | Va. | 1887
delivered the opinion of the court.
The validity of the said bonds was not in dispute; and at the January term, 1878, the cause was referred to a master commissioner of the court to ascertain the liens binding upon the land, who made his report to the June term, 1878, that the only lien upon the said land was the unpaid purchase money evidenced by the bonds aforesaid, claimed in complainant’s bill, amounting, with interest, to the sum of $1,958.07; which said report was confirmed, and the court decreed that unless the defendants, or some one for them, pay, with thirty days from the rising of the said court, the said debt, then the said land should be sold, which sale was afterwards made and confirmed by the said circuit court, to F. L. Kemper, on the 15th day of February, 1879; and, the death of Benjamin Crawford being suggested, the cause was revived in the name of J. C. Cochran, administrator of Benjamin Crawford, deceased. On the 15th of March, 1881, the petitioners, Charles D. Harnsberger and Annette L. Harnsberger, by her nest friend, Charles D. Harnsberger, filed their joint petition and bill of review in the cause, wherein they ask for a rehearing and review of the whole cause, for the following reasons:
First. That since the institution of this suit, about the 16th
“$723. October 11, 1863.
“Received of Stephen M. Harnsberger seven hundred and twenty-three dollars, to be credited on bonds that are not available at present.
“B. Crawford.”
Upon which receipt is the following endorsement: “ Crawford’s receipt for $723 to S. M. Harnsberger, in lieu of land bonds not due. October 11, 1863.”
Petitioners allege that they had just found the said receipt, although they had made diligent search long before, and that they had found it among some worthless papers belonging to their mother, who departed this life in 1871. Petitioners claimed that this sum of $723 should be credited upon the three bonds asserted in complainant’s bill, in accordance with the tenor of the receipt; and that this payment, as well as the payments of interest thereon, were made before the assignment of the said bonds to J. C. Cochran.
Upon the filing of this petition, J. C. Cochran, in his own right and as administrator of Benjamin Crawford, deceased, answered the same under oath, and disputed the genuineness of the alleged receipt for $723, marked “Exhibit O K,” and calling for the strictest proof of its genuineness and validity. The plaintiffs, in the bill of review, accepted the issue, and took the initiative in introducing witnesses to prove its genu
In the case of James River and Kanawha Co. v. Littlejohn, 18 Gratt. 75, this court says: “The answer of James River and Kanawha Company disclaimed all knowlege as to the order of Littlejohn; but did not dispute its genuineness, or expressly call for proof of it. It was treated as genuine by the commissioner and the court; and the proof of it was not insisted on by the company. It was treated as genuine throughout the case. Under these circumstances it was too late to make the objection in this court.” See also Anderson v. De Soer, 6 Gratt. 363.
The second assignment of error is not well taken. It is common practice to refer questions of fact to a master; but the court decided the case upon the pleadings and the depositions, independently of the report of the master. The only real question involved was as to the genuineness of the receipt known in the record as “ Exhibit O K,” and this was decided upon the weight of testimony—preponderating overwhelm
A technical objection is made that Annie L. Harnsberger should have answered the bill in person, and not by guardian
For the foregoing reasons we are of opinion that there is no-error in the decree of the circuit court of Rockingham appealed from, and the same must be affirmed.
Decree affirmed.