137 Va. 631 | Va. | 1923
delivered the opinion of the court.
This is an appeal from a decree which dismissed a bill of review by the appellant, Malarkey, against the appellee. The antecedent facts which we regard as material may be thus stated:
In 1916, one Carl Barckhoff, who operated an organ factory at Basic City, Virginia, was adjudicated a bankrupt. His assets, clearly indicated and described by an inventory, were sold and bought by Ballard, the appellee, from the trustee. Thereafter the chattels thus bought, consisting of machinery, lumber, two horses, buggy, materials, supplies and some finished musical instruments, itemized in such inventory, were delivered by Ballard to Barckhoff, the bankrupt, with the understanding that he was to pay from the use and sale thereof the amount which they had cost Ballard at the sale, $2,275.00, plus about $1,400.00 which Barckhoff already owed him; and that the title to the property should remain in Ballard. Some small payments were made on this debt when on April 4, 1917, there was a partnership
Ballard filed his original bill against Malarkey, setting up an equitable lien upon the personal property thus received and appropriated first by Barckhoff and thereafter by the copartnership. This suit was instituted in March, 1919. There was a decree of reference August 12, 1919, depositions were taken, and the commissioner reported favorably as to Ballard’s claim in November, 1921, and this was followed by a decree in his favor against Malarkey January 21, 1922. Malarkey was the only witness sworn in his behalf.
After that final decree, Malarkey filed his bill of review relying chiefly upon after-discovered evidence. In the meantime, execution of fieri facias upon the pecuniary judgment against him for Ballard’s claim had issued, been levied and Malarkey had executed a forthcoming bond. . Upon filing his bill of review the court enjoined the prosecution of the motion for judgment and execution under the forthcoming bond. Issue having been joined on the bill of review, further testimony was taken, and the decree under review which dissolved the injunction and dismissed the bill was entered.
The first point urged is that the demurrer to the
The controlling principle is well stated in Brown v. Ford, 120 Va. 245, 91 S. E. 145, 149, where this language from 2 Pomeroy’s Eq. (2d ed.), sec. 1235, is quoted with reference to such liens: “The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described and identified, security for a debt or other obligation * * * creates an equitable lien upon the property so indicated which is enforceable against the property * * *. Under like circumstances a mere verbal agreement may create a similar lien upon personal property.”
This also is said in Delaney v. Willis, 95 Va. 608, 29 S. E. 324, 64 Am. St. Rep. 815: “Whatever the form of the contract may be, if it is intended thereby to create a security it is an equitable mortgage enforced upon the principle that equity will decree that as done which by agreement is agreed to be done.”
As has been recently said by this court in Armour Fertilizer Works v. Taylor, 129 Va. 7, 105 S. E. 576: “In the nature of the subject, the authorities do not attempt other than general definitions of an equitable lien.”
The circumstances relied upon in the original bill are that Barekhoff agreed to discharge the debt out of the proceeds derived from the use and sale of the personal property delivered to him; to replace all goods and chattels disposed of by him with goods and chattels of like quality and value; that the title of the goods and
Upon the merits, we think it unnecessary to say more than that the evidence introduced by the complainant under the original bill justified the favorable report of the commissioner and the original decree in his favor.
The proposition now chiefly urged upon us in the briefs for the appellant is, that he is entitled to have the original decree reviewed and to a decree in his favor because of the after-discovered evidence, which it is maintained is amply sufficient to demonstrate the final error of the trial court in dismissing the bill of review.
As to this, we cannot express our own view better than to quote from and adopt the opinion of the learned judge of the trial court. He says:
“This cause was unhurriedly and without objection submitted to this court, which, upon a consideration of the record, reached said conclusion. Afterwards, a bill of review was filed on behalf of Malarkey wherein he asked for a rehearing on the grounds that one Brantley, who was present when the partnership was formed, and Mrs. Lena Barckhoff, widow of said Barckhoff, who was present when the partnership was dissolved, would testify that Malarkey had no knowledge of said lien, the language of said petition being in part as follows:
“ ‘Complainant further says that while he hoped and*636 believed tbat said R. A. Brantley and Lena Barckhoff bad beard and would remember tbe facts to which they will now testify and above set out, be did not know tbis to be so until be was able to locate and communicate with them since tbe entry of said decree.’
“From tbis it appears tbat petitioner, when tbis cause was submitted, both ‘hoped and believed’ that these witnesses would testify to matters therein set out. It is, therefore, clear tbat tbis is not after-discovered evidence. In Gordon v. Harvey, 4 Call 450, tbe court said:
“ ‘If there was any real ground to believe tbat other testimony could have been procured, tbe plaintiff should have moved tbe district court for a continuance of tbe cause; and not have waited until a verdict was rendered against him, and then bring it forward as a ground for a new trial, after having taken bis chance with tbe jury.’
“In a note to Payton v. McQuown (Ky.), 31 L. R. A. at p. 38, it is said:.
“ ‘And negligence in not obtaining a continuance in order to procure evidence will prevent an injunction against tbe judgment, Ratliff v. Stretch, 130 Ind. 282; Naylor v. Phillips, 2 Stew. & P. (Ala.) 58; Canada v. Barksdale, 84 Va. 742.’
“And tbis law is not affected by tbe fact that these witnesses might possibly prove unfriendly. In Norfolk & Western R. R. Co. v. Draper, 90 Va. 245, 17 S. E. 883, it is held:
“ ‘New trial on'ground of newly discovered evidence will not be granted for evidence known before tbe trial, but omitted because tbe witnesses were believed to be hostile.’
“Had tbe diligence exercised since tbis cause was submitted been used before then, there would have been no occasion for a rehearing; and as to due diligence see McClung v. Folkes, 126 Va. 259, 101 S. E. 345.”
In the last brief filed by the counsel for the appellee •since the case was submitted, he calls attention to the fact that the printed record does not contain any bill of review setting up the alleged newly discovered evi
Affirmed.