5 Gratt. 357 | Va. | 1849
delivered the opinion of the Court.
The Court is of opinion, that the Judge of the Circuit Court erred in declaring, in the decree of the 17th October 1846, the bond of 1140 dollars, executed on the 3d of July 1837, by Ransome Sutherland to Burwell Law and Stephen Chandler, to have been founded on an usurious and unlawful agreement, and therefore void. The circumstances leading to and attending the execution of the bond, do not, in the opinion of the Court, disclose any understanding between the parties in violation of the laws against usury. It appears that on the 25th June 1837, Sutherland having an urgent demand for money, wherewith to redeem his property from an execution which had been issued, or was about to be issued, in favour of one Pinkard, against him, amounting to about 1800 dollars, and expecting aid from his mother to the extent of one half of said amount, addressed a letter to Burwell Law, making known his situation, and earnestly soliciting the friendly assistance of Law in raising the other half. In his letter, he assured Law that if he and Stephen Chandler would raise the desired amount for him, they should be fully indemnified ; and as a means of raising the money, he suggested that Law and Chandler should mutually execute their notes each to the other, “and have them shaved off (in the
The Court is further of opinion, that the executor of Burioell Law had no right to tack the claims reported in the special statement of the commissioner, and which were not secured by the deeds of trust in the proceedings mentioned, to those that were; and his demand to have them satisfied out of the trust fund was properly rejected. The Court is further of opinion, that the Court below properly applied the whole of the 605 dollars paid by Sutherland, on the 25th January 1840, as a credit to the amount due on the bond for 1140 dollars, instead of devoting any portion thereof to the discharge of the account of 99 dollars 62 cents, the sum of 16 dollars 44 cents, paid Jordain, Robeiison Co.’s execution, and the 130 dollars paid W. A. Street Co. The right to demand either of these items did not arise till after the payment of the 605 dollars; and in the absence of any agreement or understanding between the parties as to the application of such payment, it is fair to presume that it was intended as part satisfaction of the debt then due.
It is insisted here that inasmuch as the administrator of Sutherland, was before the Court, it would at least have been proper to render a decree against him for the three items of 99 dollars 62 cents, 16 dollars 44 cents, and 130 dollars. This Court does not think so. The state of the assets does not appear. The plaintiff in the suit did not call for any settlement of the administration account; and none was made. This Court
For these reasons the Court is of opinion that the decree adjudging 295 dollars, without interest, (a balance which it seems the Court below arrived at by deducting the payment of 605 dollars from the 900 dollars, the proceeds of the sale of the three bonds before mentioned,) to be the sum due to the executors of Law and Stephen Chandler, is erroneous; the true amount due being the 1140 dollars, with six per cent, interest, subject to a credit of 605 dollars, as of the 25th January 1840, the day on which said last mentioned sum was paid. The Court is further of opinion, that inasmuch as it appears that the whole of the sums due by the three bonds for 125 dollars, 340 dollars and 605 dollars, was paid by Law, the decree for the balance due on the bond of 1140 dollars, should have been in favour of his executors alone, and not in favour of them and Chandler jointly.
The decree is therefore reversed with costs, and the cause is remanded, for further proceedings to be had in accordance with the principles above declared.
Brooke, J. was of opinion that the bond was usurious. On the other points he concurred in the opinion of the Court.