75 Va. 466 | Va. | 1881
delivered the opinion of the court.
The charge is denied by Abraham in his answer. To the extent of the denial, the answer is responsive and is so far evidence for the respondent. This is so, although the bill does not call for an answer, but expressly waives it; for, where a bill is filed for relief, the complainant, according to the equity practice, cannot, by disclaiming the benefit of a discovery, deprive the defendant of the right to answer on oath and have the advantage of such answer as evidence in his favor,- so far as it is responsive. Such is the settled rule in this State. Thornton v. Gordon, 2 Rob. R. 719; Fant v. Miller & Mayhew, 17 Gratt. 187, 206.
The case, provided for by statute (Code of 1873, ch. 137, § 12) is exceptional.
The answer of Bonduranfs representatives is not evidence in their behalf. It can be treated only as a plea of denial, for they do not profess to answer upon their own knowledge. On the contrary, they say that the transactions as to which they are called upon to respond took place, if at all, in the lifetime of their father and testator,
“ The general rule,” says Chief Justice Marshall, “ that either two witnesses or one witness with probable circumstances will be required to outweigh an answer asserting a fact responsively to a bill, is admitted. The reason upon which the rule stands is this: The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness; and.as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single witness, in order to turn the balance. But,” he adds, “ certainly there may be evidence arising from circumstances stronger than the testimony of any single witness.” Clark’s Ex’ors v. Van Riemsdyk, 9 Cranch. 158, 160. This case, among numerous others, is cited by the editor (1 Dan. Ch. Prac. 843, note 7, 4 Amer. Ed.) in support of the proposition, that “where a replication is put in and the parties proceed to a hearing, all the allegations of the answer which are responsive to the bill shall be taken as true, unless they are disproved by evidence of greater weight than the testimony of a single witness”—and that “this may result from the testimony of two witnesses; or of one with corroborating circumstances; or from corroborating circumstances alone; or from documentary evidence alone.”
Upon a careful examination of the record, we are of opinion that the statements of the answers, so far as they can be treated as evidence, are outweighed by the other evidence in the cause, and that Bondurant was an active participant in the breach of trust committed by Abraham, the trustee. The participation is established, we think, by the receipts and other papers in the record, and the facts and circumstances in proof.
There can be no doubt that this payment was by means of the judgment on Morris,, which had been transferred by by Bondurant to Abraham. Thus Abraham became debtor to Bondurant for the amount of the judgment. Now, how did Abraham repay to Bondurant the amount of the judgment thus transferred and thus used ? The receipts from Bondurant to the sheriff (Forbes) and from Abraham to Moseley show most clearly, we think, that Bondurant was reimbursed out of the trust funds in Moseley’s hands. He took an order from Abraham on Moseley for the exact amount of the judgment, and Abraham gave his receipt to Moseley for precisely the same sum, bearing the same date with the receipt of Morris to Abraham, and stating that payment was received through the bonds of Bondurant.
The inference to be drawn from these receipts in connection with the proof of the transfer of the judgment to Abra
Abraham had been pecuniarily embarrased for several years, and was probably insolvent. Bondurant knew this; for there was a deed of trust on everything that Abraham owned to secure a large debt, some $13,000, due to Bondurant, and other debts, the Morris debt among them, in which Bondurant was bound as surety—the aggregate amount of indebtedness approximating $20,000, exclusive of interest.. Abraham, Bondurant, and Moseley all lived in the same neighborhood; the latter two being kinsmen, were in the habit of endorsing and otherwise binding themselves for each other, and it cannot be reasonably doubted that Bondurant knew that the money thus appropriated was money of the trust estate. He had a strong motive to co-operate with the trustee in the matter, for he was thereby relieved pro tanto as surety for the Morris debt.
We look on the last payment on the Morris debt as of the same character with the first. It was but a consummation of the original purpose to discharge the entire debt from the trust funds in Moseley’s hands. There was but a short interval of time between the payments. The last was made by the negotiable note of Moseley (the debtor of the trust estate), payable four months after date to the order of Bondurant, and endorsed by him. This is shown by the receipt of Morris to Abraham, dated December 6, 1860. On the same day Abraham gave his receipt as trustee to Moseley for an amount corresponding with the amount secured by the negotiable note, less the interest discounted for the time the note had to run. There can be no doubt that Moseley paid this note, for he was the debtor in it. Neither this note, nor the Morris bond, nor the order on Moseley for the money first paid by him, was produced in evidence. They
AVe are of opinion, for the reasons stated, that the decree in that respect is erroneous, and should' be reversed and the cause remanded to the circuit court for further proceedings to be had in conformity with the views hereinbefore expressed.
The decree was as follows:
This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decrees aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the appellee A. D. Abraham committed a breach of trust in appropriating the sum of four thousand one hundred and eighty-four dollars and thirty-one cents of the money in his hands or under his control as trustee of the appellant Ella J. Jones to the payment and satisfaction of his own debt to John Morris, for which debt Thomas M. Bondurant was bound as surety, and that the said Thomas M. Bondurant participated in said breach of
Decree reversed.