103 Va. 158 | Va. | 1904
delivered the opinion of the court.
The appellants or those under whom they claim, on the 23rd day of August, 1887, entered into a written contract with one of the appellees, K. S. Craig, hy which they agreed to sell to Craig, and he agreed to purchase, 720 acres of mountain land, lying and being in the county of Augusta, near Craigsville, for the sum of fifty cents, per acre, the parties of the first part to the agreement, to make a deed with special warranty to Craig, reserving a vendor’s lien on the land for the payment of the purchase money; and twelve months after the execution of the deed Craig was to pay the purchase money in full, to be evidenced by his bond to be executed to the parties of the first part upon the making of the deed to him. On the 20th of March, 1892, the parties of the first part, having tendered to Craig the deed for the land, and Craig having refused to receive the same
Craig not having paid his bond when it fell due, the bill in this cause was filed at the May term-, 1894, in the Circuit Court of Augusta county, against the appellees, in which the fore-., going facts were set forth, and the further facts charged, that, on the 5th day of October, 1892, R. S. Craig, not having paid: the debt evidenced by his bond, made over all his personal property by deed of gift to his two sons, Edward M. and Harry B. Craig, in consideration of love and affection, and the further-consideration of one.dollar in hand paid by said Harry B. Craig;, and by a similar deed of even date and for life consideration, conveyed all his real estate, including the 720 acre- tract, upom which the compainants held a vendor’s lien, to William Patrick,, trustee, for the benefit of grantor’s children, Harry B., Edward' M., Charles G\, Albert S. J., and Cora U. Craig; that the debt, due from R. S. Craig upon his said bond was still due and unpaid ; and the prayer of the bill was that the court enter a decree setting aside the deed to William Patrick, trustee, and direct: a sale of the said 720 acres of land upon which the complainants-claim a vendor’s lien, for the payment of said debt, and if it fail to sell for enough to pay the same that a decree might be-entered against R. S. Craig for the balance, and for generah relief.
Responding to said decree, Commissioner Holt reported to the May term, 1902, in substance, that at the time when R. S. Craig entered into the contract for the purchase of the 120 acre tract of land, he was seized of his home farm of 500 acres, etc.; of a tract of 191 acres, known as the Sulphur Springs tract; a store-house and lot in the village of Craigsville; and a lot of about one acre, known as the Wallace Mill, all in Augusta county, Virginia; that by deed dated October 5, 1892, R. S. Craig conveyed all this property to William Patrick, trustee,
To this report the complainants excepted on several grounds, chief of which was because the master reported that the bill was defective in not sufficiently charging that said conveyance was fraudulent and made for the purpose of defeating the payment of complainants’ debt; and at the May term, 1902, the defendants demurred to said bill on the ground that it did not set forth any fact that would warrant the court in setting aside said conveyance. By decree of June 11, 1902, the court overruled complainants’ exceptions to the commissioner’s report, sustained the defendant’s demurrer to the bill, but allowed the complainants to file an amended and, supplemental bill, alleging fraud upon their rights in the execution of the deed to Patrick, trustee, and referred the cause back to .the master for report upon •the same subjects of inquiry that had been referred to him before, said inquiry to be made when process should have •matured on the amended and supplemental bill which was at •that time filed.
In the amended and supplemental bill, complainants set out the filing of their original bill and its allegations, and charge and allege that through mistake and inadvertence in drawing the same it failed to charge in terms that the conveyance to Patrick, trustee, was executed with intent to hinder, delay and defraud thorn; and then charge that said conveyance was ex
At the jSTovember term, 1902, the defendants demurred to the amended and supplemental' bill on the grounds, (1) that it makes out a new case, and (2) that it does not appear on its face or otherwise that the facts therein stated, upon which the charge of fraud was based, were discovered after the filing of the original bill. By decree entered in the cause on December 22, 1902, the court sustained the demurrer and dismissed the amended and supplemental bill with costs. From this decree the case is before us on appeal.
The propriety of the ruling of the Circuit Court in sustaining the demurrer to appellants’ amended and supplemental bill, is the sole question that requires our consideration.
The subject matter of the suit was the bond held by the complainants against the defendant, B. S. Craig, for the purchase price of the 720 acres of land, and the original bill filed sets out that claim of complainants; that they held a vendor’s lien against the 720 acre tract, as security for the payment of the debt; that the debt was still due and unpaid; that the defendant, B. S. Craig, soon after the suit against .him for specific performance of his contract of purchase of the 720 acre tract of land from complainants was begun, had made over all of his personal property, by deed of gift to his children, and by similar deed (deed of gift) of same date had conveyed all his real estate, including the 720 acre tract, to William Patrick, trustee for the sons and daughter of grantor, naming them, and copies of which deeds were filed with the bill as parts thereof; and the prayer of the bill is that “the court will enter a decree setting aside the deed from B. S. Craig, defendant, to William Patrick, trustee, for the benefit of his sons and daughter, which includes the tract of 720 acres; that a sale of the 720 acre tract be made, and if
To the original and to the amended and supplemental bills the parties defendant are the same, viz: R. S. Craig, William Patrick, trustee; and the children of R. S. Craig, the beneficiaries, in the deed sought to be avoided. The subject matter of both bills is the same, and their object is the same, viz: to recover the debt of complainants out of the property of R. S. Craig liable therefor.
It is unquestionably true and well settled that amendments, will not be allowed which bring into the case a new and substantive cause of action different from that declared on, and different from that which plaintiff intended to assert when he instituted his action. Tidball v. Bank, 100 Va. 744, 42 S. E. 867. But does this amended and supplemental bill violate that rule? We think not. In the case just cited the original bill filed was for the purpose of collecting certain negotiable notes held by the complainant, which had been protested for non-payment, and notice of protest given to the endorsers; but the bill-failed to allege that the endorser, whose estate was sought to be held liable for the notes, had notice of their dishonor^ and failed to make the original debtors, the makers of the notes, parties to the suit. By the amended and supplemental bill the defects of the original bill, were supplied, and upon the demurrer to the-amended and supplemental bill it was held that the amendments were proper, and that the demurrer should have been overruled. The opinion quotes from New River Min. Co. v. Painter, 100 Va. 507, 42 S. E. 300, as follows: “The rule generally prevailing seems to be, that such amendments will be permitted as have for their object the trial and determination of the subject
It will be observed that in the case at bar the original bill set out facts sufficient to show that the conveyance from the debtor, B. S. Graig, to William Patrick, trustee, was fraudulent in law, as to the complainants in that bill, and the only omission made in the original bill was that it did not charge in terms that the conveyance was made for the purpose of hindering, delaying and defrauding the complainants.
A conveyance, assignment, or transfer of the property of a debtor cannot be avoided by his creditors solely on the ground that it was made without a consideration deemed valuable in law, unless the suit for that purpose be brought within five years after the right to avoid the same has accrued (Code, Sec. 2929), but this limitation does not apply where a deed is attacked on the ground of actual fraud. When the amended and supplemental bill in this case was filed, the complainants still had the
It is well said by Barton, in his Chancery Practice, p. 346, that “the general rule as to amendment has been so often departed from that it is now scarcely possible to give any definite definition of what may be included in an amended bill,” and he states the general rule to be that “amendments can only be granted where the bill is defective in parties, or in the prayer for relief, or in the omission or mistake of a fact or circumstance connected with the substance of the bill but not forming the substance itself nor repugnant thereto.” At page 345, the same author says that the tendency of the decided cases is to relax the ancient rules, and to allow amendment whenever it best serves the ends of justice so to do.
It may be that the complainants in the original bill were of opinion that it would be sufficient for their relief to have the 720 acre tract of land, embraced in the deed to Patrick, trustee, subjected to the payment of their debt, but upon finding that this property had been denuded of its timber, which was the only value it had, neither upon reason or authority should they be denied the right to proceed against other property of their debtor liable to them for their debt, and to that end so amend the frame and structure of their bill as to obtain the relief to which they were entitled.
It was held by this court, in Hanby’s admr. v. Henritze’s admr., 85 Va. 177, 7 S. E. 204, citing Belton v. Apperson, 26 Gratt. 207, that a plaintiff may, by his amendments, so alter the frame and structure of his bill as to obtain an entirely different relief from that asked for originally.
In 1 Daniel’s Oh. Prac., 598, the author in discussing the same subject, says: “On hearing the demurrer the court will, where it sees that the defects pointed out by the demurrer can be remedied by amendments, and substantial justice requires it, make a special order at the hearing of the demurrer adapted to the circumstances of the case.”
This is exactly what was done in the case at bar, upon the hearing of the demurrer to the original bill. There is nothing in the case of Belton v. Apperson, supra, and other authorities relied on by counsel for appellees which sustains their contention that the amendments of the original bill in this case were improper in that they make out an entirely new case.
What will constitute an entirely new case made by amendments to an original bill, is discussed in Hurt v. Jones, 75, Va. 341, and the amended and supplemental bill in this case does not, in our judgment, conflict with the views expressed in that case.
In Neale v. Neale, 76 U. S. 1, 19 L. Ed. 590, a suit in equity was instituted to enforce a parol contract concerning real estate, upon the ground that by act of part performance it was taken out of the operation of the statute of frauds. After the cause had been heard, the court of its own motion gave complainants leave to amend their bill upon payment of costs. The reason for this action of the court is not given, but the inference is that it was because of the subsequent proceedings in the case.
“This doctrine would deny to a court of equity the power to grant amendments after the cause was heard and before decree was passed, no matter how manifest it was that the purposes of ■substantial justice required it, and would, if sanctioned, frequently embarrass the court in its efforts to adjust the proper mode and measure of relief. To accomplish the object for which ■a 'court of equity was created, it has the power to adapt its pro•ceedings to the exigency of each particular case, but this power would very often be ineffectual for the purpose unless it also possessed the additional power, after a cause was heard and a •case for relief made out, but not the case disclosed by the bill, to allow an alteration of the pleadings on terms that the party not in fault would have no reasonable ground to object to. That the court has this power and can, upon hearing the cause, if unable to do complete justice by reason of defective pleadings, permit amendments, both of bills and answers, is sustained by the authorities.” Among the authorities cited in support of this view, is Daniel’s Ch. Prac., pp. 463-466.
After remarking, as is well recognized in the decisions of this
The views expressed by the court in that case are similar to those expressed by this court in a number of cases, and by text uniters. Belton v. Apperson, supra; Hurt v. Jones, supra; Pettyjohn v. Burson, 22 S. E. 508; 1 Barton’s Ch. Prac. (2 Ed.), 345; Daniel’s Ch. Prac., supra. See also 1 Ency. Pl. & Pr., 774.
Applying that view to the case at bar, we are of opinion that the Circuit Oourt erred in sustaining the demurrer to the amended and supplemental bill filed by the appellants.
Appellees assign as cross error the action of the Circuit Court in granting leave to appellants to amend their original bill. With reference to this assignment, we deem it only necessary to say, that the rule being well recognized that in the granting of leave to amend a pleading, the matter rests in the sound discretion of the court, and where the defendants have no reasonable ground to object to the proposed amendments an appellate court will not reverse the trial court for allowing pleadings to be amended, unless it appears that the discretion resting in the court has been abused.
When leave was granted the appellants to amend the original bill in the cause, the record showed that they were entitled to recover of the defendant, R. S. Craig, the debt they asserted
It follows that the decree appealed from must be reversed and annulled, and the cause remanded, to be further proceeded with in accordance with the views expressed in this opinion.
Reversed.