105 Va. 613 | Va. | 1906
delivered the opinion of the court.
By deed dated the 4th day of September, 1903, the Porter-field Lumber Company, a corporation, conveyed its entire holdings, real and personal, to P. E. St. Clair, trustee. The consideration for the conveyance, as set out therein, was “Twenty-five hundred dollars, in hand paid by the party of the second part to the party of the first part . . . and the party of the second part and his associates have assumed and do hereby assume the payment of a certain debt due from the party of the first part to the Bank of Giles, which in no event is to exceed five thousand nine hundred dollars ($5,900), and the said party of the second part and his associates have assumed the payment and do hereby assume the payment of a certain debt due from the party of the first part to Lear & McTilly, as set forth and described in a deed of trust of record in the said clerk’s office . . . in no event to exceed twenty-two thous- and five hundred dollars ($22,500) as of this date, and the said debt is assumed by the said party of the second part and his associates upon the same terms and conditions set forth in
To the May term, 1905,..of the Circuit Court of Giles county, J. Gibson Mcllvane and Hugh Mcllvane, partners under the firm style of I. Gibson'Mcllvane and Company, Inc., brought their action by a motion under the statute against the Big Stony Lumber Company, a corporation, P. P. St. Clair, trustee, P. P. St. Clair, M. P. Parrier, D. M. St. Clair and the Porter-field Lumber Company, to recover the sum of two thousand dollars, with interest thereon from the 4th day of September, 1903, basing their right to this recovery upon the contracts, covenants, undertakings and agreements contained in the deed dated the 4th day of September, 1903, above mentioned as executed by the' Porterfield Lumber Company to P. P. St. Clair, trustee; the.-' covenants, contracts, agreements and undertakings contained in the agreement referred to in said deed, dated on the same date therewith, and signed by the Porterfield Lumber Company, P. P. St. Clair, M. P. Parrier, D. M. St. Clair and George W. St. Clair; and the averments, etc., contained in the
At the calling of the case the defendants craved oyer of the deed sued on and mentioned in the notice, and produced in ■court the deeds called for in plaintiffs’ notice, of all which oyer was had and said papers read and considered by the court; whereupon the defendants demurred to the notice and moved to dismiss the same, in which demurrer plaintiffs joined and objected to the dismissal of the notice. After argument of counsel the court sustained the demurrer and dismissed the notice, but without prejudice to the rights of plaintiffs to institute such proceeding in equity as they might be advised. To this judgment sustaining the demurrer and dismissing the notice of the plaintiffs, a writ of error was awarded by one of the judges of this •court.
Plaintiffs in error contend that they may maintain.this action in a court of law on either of sections 2415, 2840 or 2860 of the Code of 1904.
Considering, first, section 2840: This statute is what is commonly known as the statute of frauds, and merely provides that certain actions cannot be maintained unless the contract or ■undertaking be in writing and signed by the parties to be ■charged thereby. The provisions of this statute may be plead by way of defense, but clearly it cannot be invoked as a statute to ■sustain a right of action, its purpose being to prohibit actions in certain cases designated; therefore the benefit of it cannot be claimed by one who is not a party to the contract and not ■sought to be charged thereby. Jefferson v. Asch (Minn.), 55 N. W. 604, 25 L. R. A. 264, 39 Am. St. Rep. 618.
Section 2860 changed the common law rule and authorizes the assignee of a bond, or any other chose in action, to sue in his own name, which he could not theretofore do. By this statute
If it be regarded that St. Clair and his associates and the Big Stony Lumber Company, of whom we speak as covenantors, agreed by their covenants to be primarily liable for the debt due from the Porterfield Lumber Company to plaintiffs in error, so that as between them and the Porterfield Lumber Company they are the principals and the Porterfield Lumber Company is surety, still this action could not be maintained, because plaintiffs in error must go into a court of equity under the principle that they would, by equitable subrogation, be entitled to enforce the covenant of these covenantors with the Porterfield Lumber Company. The right to do this rests expressly on the ground that the covenant sued on is a collateral security obtained by the Porterfield Lumber Company, which, by equitable subrogation, enured to the benefit of plaintiffs in error, and not on the theory of a contract between the plaintiffs in error and the covenantors. Tatum v. Ballard, 94 Va. 374, 26 S. E. 871; Ellett v. McGhee, 94 Va. 377, 26 S. E.
Section 2415 of the Code is as follows: “An immediate estate, or interest in, or the benefit of a condition respecting any estate, may be taken by a person under an instrument, although he be not a party thereto; and if a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain in his own name any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.”
Bo case has been .passed upon by this court similar to the one under consideration since the .enactment of section 2415. The nearest approach to it is Jones v. Thomas, 21 Gratt. 96; but this throws blit little light on the true construction of the section as applied to the case at bar. The plaintiff in that case was the promisee, not a third person, the latter being the case here.
In Stuart v. James River & Kanawha Co., 24 Gratt. 295, Anderson, J., discussing who comes within the purview of this section, says: “In the case coming within its purview it only gives the right of action to the person to whom the promise or covenant is not made, when it is made for the sole benefit of such person.”
The test, therefore, in such a case seems to be whether or not the promise or covenant sued on was made for the sole benefit of the plaintiff.
In Newberry Land Co. v. Newberry, 95 Va. 120, 27 S. E. 899, Riely, J., said: “The statute does not enable one who is not a party to the deed to maintain an action thereon unless he
So our court, in Osborn v. Campbell, 77 Va. 462, held that in a ease where a debtor conveys land to his vendee, the latter assuming as part of the consideration for the conveyance the payment of a debt of the grantor, debtor to a third party, the creditor acquires no right of action against the purchaser, but only the right to be subrogated to the rights of the debtor, subject to all equities between the purchaser and his immediate grantor.
The further contention of plaintiffs in error that sec. 3258a of Va.-Code, 1904, removes all trouble in their way to maintain this action is also untenable. That section merely provides that in a suit brought in a proper forum, whether in equity or at law, where it appears that there has been a misjoinder of parties, plaintiff or defendant, the court may order the action or suit to abate as to any party improperly joined, and proceed by or against the others as if such misjoinder had not been made, etc.; but it does not confer jurisdiction of an action which did not otherwise exist. Here plaintiffs in error are suing in a court of law to avail themselves of the benefit of three instruments in writing containing covenants of indemnity
The demurrer of defendants in error to the notice filed in this case by plaintiffs in error was properly sustained, and the judgment of the Circuit Court must be affirmed.
Affirmed.