148 Va. 601 | Va. | 1927
delivered the opinion of the court.
The condition of the record in this case is such that the ends of justice require that there should be a new trial. The proceeding was by notice of motion for a judgment in detinue (under section 6046 of the Code), of which the following is a copy:
“To the McClure Grocery Company (Incorporated).
“Take Notice: That on the 3rd day of November, 1926, that being a day of the next term of the Circuit Court of Dickenson county, Virginia, we, the undersigned, will move said court for judgment against you for the following property or its alternative value, which property belongs to us and which you wrong
“This October 15, 1926.
“E. F. Watson.
“S. Sternberg.”
The plaintiffs claimed as purchasers at a sale under a deed of trust made by L. A. Sutton and Joe M. Burleson. The defendant claimed that the grantors in the deed had conducted a sawmill business in the firm name of Sutton & Burleson, that the alleged sale was a mere sham and a fraud, that there had been no change in the title or ownership of the property, and that the property had been levied on and sold by the sheriff to satisfy executions in his hands in favor of sundry creditors, including the defendant, against L. A. Sutton and Sutton & Burleson, and that at such sale the defendant became the purchaser. The defendant pleaded non detinet.
The plaintiff filed the following bill of particulars:.
“E. F. Watson, et als, Plaintiffs,
v.
“McClure Grocery Corporation, Defendant.
“The plaintiffs claim title to the property in controversy by reason of the deed of trust executed by L. A. Sutton and Joe M. Burleson to Thomas R.
“A. A. & John M. Skeen,
“Counsel for Plaintiffs.”
The defendant filed the following grounds of defense:
“E. F. Watson, Plaintiff,
v.
“McClure Grocery Company, Defendant.
“The defendant at the trial will rely upon purchase from sheriff on following executions against L. A. Sutton, L. A. Burleson and Sutton Lumber Company, Castlewood Grocery Company, Trammel Supply Company, E. H. Whitt, McClure Grocery Company.
“That the defendants are in possession of the property and the plaintiff has no title.”
“McClure Grocery Co.,
“By G. Mark French, counsel.”
It will be observed from the notice that there were two plaintiffs, E..F. Watson and S. Sternberg, and from the bill of particulars that the “plaintiffs claim title” and that the “plaintiffs became the purchasers,” and in the brief for the defendant in error that the plaintiff joined “with him as coplaintiff in said action one S. Sternberg, who had purchased from him an interest in said property,” and yet the verdict of the jury was, “We the jury find for the plaintiff the property described in the within notice and find it to be of the value of $4,000.00,” without saying which plain
Upon the record and the evidence in this case, we cannot disregard the error committed under that provision of section 6331 of the Code, which permits it “where it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.”
If it be said that this objection whs not made in the trial court and hence cannot be considered here under Rule XXII, it is to be observed that there is a saving clause in the rule, “except for good cause shown, or to enable this court to attain the ends of justice.”
In a proceeding under section 6046 of the Code, as this is, the notice takes the place of the writ and declaration, and the legal sufficiency of the notice may be tested by demurrer just as in case of a formal declaration, but the objection that the notice fails to affix a value to each article cannot be raised after verdict. It must be raised by demurrer in the first instance. Bates v. Gordon, 3 Call (7 Va.) 555; 14 Cyc. 268, and cases cited.
There are cases where it is impracticable for the verdict to assess every article separately, for example, a stock of goods, on a large plant consisting of many movable articles—but “as a general rule, a verdict in detinue which does not assess the value of the property is fatally defective, and where more than one article is sued for, and such articles are of different kind and quality, the value of each article must be assessed separately wherever such an assessment is practicable.” 14 Cyc. 273—4; Higginbotham v. Rucher, 2 Call (6 Va.) 313. But where there is a gross assessment, a writ of inquiry may be awarded to ascertain the separate values of the several articles sued for. Cornwell v. Truss, 2 Munf. (16 Va.) 195; Code, section 5802.
It was error, therefore, in any event, to enter a judgment on the verdict for a gross-valuatibn. A writ of inquiry should have been awarded to ascertain the separate values of the several articles found.
Generally, under the provisions of section 6484 of the Code, when the judgment is for personal property, the plaintiff may, at his election, have a writ of ;fieri facias for the alternative value (instead of a writ
In Baker v. Swineford, 97 Va. 112, 33 S. E. 542, a plaintiff in detinue obtained a judgment for certain • worthless bonds, which the jury said were of the value of $1,680.00, and issued a fieri facias for the $1,680.00. The right to issue the writ was not called in question, but the execution was set aside for other reasons.
It is assigned as error that the deed of trust under which the sale was made was not introduced in evidence, and that there was no evidence of the existence of the facts necessary to authorize the sale; and furthermore that the court excluded testimony tending to show that there was no bona fide sale under the trust, and that the alleged sale was mere sham.
“The trustee in a deed of trust takes a legal, though defeasible, title, and a deed from him to the purchaser conveys an absolute estate in a court of law, whether the conditions of the trust deed have been complied with or not, though a different rule prevails in equity.” Sulphur Mines Co. v. Thompson, 93 Va. 293, 315, 25 S. E. 232, 236; Taylor v. King, 6 Munf. (20 Va.) 358, 8 Am. Dec. 746; Harris v. Harris, 6 Munf. (20 Va.) 367; Pownal v. Taylor, 10 Leigh (37 Va.) 172, 34 Am. Dec. 725; Wasserman v. Metzger, 105 Va. 744, 54 S. E. 893, 7 L. R. A. (N. S.) 1019. The deed was treated by the parties and by the trial court as in evidence, and it was not necessary to prove compliance with its terms in a court of law. Fraud, however, vitiates the most solemn instruments and transactions, and if the defendant can show that the
Rule XXII of this court excludes the consideration by this court of several of the assignments of error, including the objection to the instruction of the court given at the instance of the plaintiffs. Instructions 1 and 2, tendered by the defendant, were properly refused for lack of evidence to support them.
Other questions raised by the various assignments of error will probably not arise on a second trial and hence need not be considered.
For the errors hereinbefore pointed out, the judgment of the trial court will be reversed, the verdict set aside and the case remanded for a new trial, to be had in conformity with the views hereinbefore expressed.
Reversed and remanded.