1 Gratt. 526 | Va. | 1844
delivered the opinion of the court.
The first question is, were these cases in a condition to admit the final decree which was rendered by the
In the original case, the executor of William Kyle, holding the bond of M’lver, and claiming title thereto as a part of the partnership subject of D. Sf W. Kyle, that had been allotted to W. Kyle on the dissolution of that firm, and consequently claiming the benefit of the security that the deed of trust from the debtor afforded for the debt, sought the enforcement of that security. By the bill in that suit, Robert Kyle, who had purchased, as he alleges, the land embraced by the deed of trust, at a sale made under a subsequent deed of trust, to secure another debt, and who by his tenant was possessed of that land, was not made a party defendant, though in the progress of it, without amending the bill, he was treated as a defendant, and proceeded against as an absent one. In this predicament the case was, in September 1837, heal’d, Robert David Kyle being treated as absent defendants, as to whom the order of publication had been duly executed; and on that hearing, a decree was rendered in favour of W. K.’s executor against the debtor M’lver, for 561 dollars 744 cents, with interest from 12th of December 1812, and that the land should be sold to provide the means of paying this debt. Robert Kyle, thus proceeded against as an absent defendant, and that irregularly, and a decree being rendered injurious to his interests, and, as he contends, invading his rights, might, had he thought proper, have taken the remedy the statute affords to absent defendants against whom decrees may have been rendered, by entering an appearance and filing his answer, or on such appearance sought a correction of the irregularity in treating him,
The questions on the merits are, 1st. Ought the debt claimed as due from M’lver, to be considered as subsisting and unsatisfied ? The negative is contended for on two grounds. 1st. That the lapse of time furnishes a presumption that the debt was paid. 2clly. That it was paid by the proceeds of linens that the creditors received from the debtor some years after the date of the bond.
The presumption of payment is repelled by the distinct admission of the debtor that the debt has not been paid, but is still due. As a general proposition, the sufficiency of such admission to repel the presumption of payment is obvious and demonstrable, and would not be questioned if M’lver alone was interested in the fact. It is objected that it should not avail here, because there are indications of collusion between the executor of W. Kyle and M’lver, and that M’lver was influenced by hostility to R. Kyle to make the admission. I do not discern in the record evidence of the alleged collusion. The only indication suggested is the fact, that M’lver answered, making the admission before he was compelled to do so. That circumstance is too slight to warrant and support such a serious imputation. In answering he has done no more than he might have been compelled to do; and if in his answer he had evaded to state whether or no the debt was unpaid, and relied on the lapse of time as presumptive evidence of payment, he could have been coerced to give a categorical answer to the allegation that it had not been paid, and such answer admitting the allegation, would have overruled the defence founded on the lapse of time. Baker v. Morris, 10 Leigh 284. Ostensibly the admission was against the interest of M’lver; and though Robert
The specific mode of payment as alleged by Robert Kyle, is by the receipt of a parcel of linens from M’lver; and this payment, he alleges, is shewn by the books of D. W. Kyle. The executor of William Kyle exhibits with his answer an account as a fair transcript from the books of D. &f W. K. in respect to these linens; and that shews, that the linens were received and sold
This account being evidence, it, as before remarked, disproves the suggestion that the debt in question was in whole or in part paid by the proceeds of the linens. It corrects, and disproves other suggestions made by Robert Kyle in his bill, and by David Kyle his agent, by whom the affidavit of the truth of the bill was made. These suggestions are that the linens were received about the year 1813, and formed a credit against the debt in question, at the dissolution of the firm of D. Sf W. Kyle on the 1st of January 1825, and consequently refutes the pretension that at the dissolution the debt of M’lver, secured by the deed of trust, had been paid by the linens. The suggestion that the 88 dollars 66 cents by which that account is balanced, and that sum passed
On the whole, I think it satisfactorily appears that the debt in question is unpaid, and is subject to no credit but that of 88 dollars 66 cents spontaneously given in the account from the books of D. Sf TV. K. exhibited with the answer of William Kyle’s executor.
The only question remaining is, ought this debt to be regarded as the property of William Kyle, or the property of D. Kyle, or the social and undivided property of D. & W. Kyle 1
It is admitted by the bill of R. Kyle, which is verified by the oath of D. Kyle, that on the dissolution of the firm of I). Sf W. Kyle on the 1st of January 1825, the outstanding debts were divided between the partners, and the ground on which it is denied that W. Kyle did become entitled to the debt of M’lver is, that that debt was shewn by the books to be paid. The
The decree of the court was as follows :
This day came the parties by their counsel, and the court having maturely considered the transcripts of the
The court is further of opinion, that William Kyle was, and his executor is, entitled to the said debt of M’lver, to the exclusion of David Kyle, claiming it either as surviving partner of David Sf William Kyle, or as the social property of David Sp William Kyle, and that the decree of the court below on the original and amended bills of William Kyle’s executor, in the first suit, and perpetuating the injunction awarded to Robert Kyle in the second suit, to the execution of the interlocutory decree in the first suit, is erroneous. It is, therefore, adjudged, ordered and decreed, that the said decree be reversed and annulled, and that the appellee Robert Kyle pay to the appellant the costs by him expended in the prosecution of his appeal in this court; and this court, proceeding to render such decree as the court below ought to have rendered, and considering the bill in the second suit as serving the functions of an answer of Robert Kyle in the first suit, and as a cross bill, doth adjudge, order and decree, that the injunction awarded in the second suit be discharged, as no longer of any use or effect. That the interlocutory decree in the first suit of the 13th of September 1837, be set aside and annulled ; and as a decree in both suits, (regarding the second as aforesaid as a cross bill,) the court doth