9 S.E. 1008 | Va. | 1889
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of Wythe county, rendered at the September term thereof,
(1) In November, 1883, Isaac J. Leftwich filed his bill in the circuit court of Wythe county against E. E. Moore, to enforce against the real estate of said Moore the lien of a judgment recovered against him by said Leftwich at the September term of said court, 1883, for §4,000, with interest at the rate of 12 per cent, per annum from the 11th day of September, 1871, till paid, and costs, which judgment was subject to certain credits therein specified. The bill charged that said Moore was seized in fee simple of several tracts of land in said county, all of which were liable to the lien of said judgment, and that the plaintiff had the right to enforce the same by a sale or renting of said real estate. With his bill the plaintiff filed copies of three deeds, marked, respectively, ££B,” “C,” and ££D,” evidencing the title in fee held by said Moore to the lands therein described, and above referred to as subject to the lien of the plaintiff’s said judgment; and the bill alleged that the rents and profits of defendant’s said land would not pay off said debt in five years ; and prayed for a sale of said land to satisfy said judgment, and for general relief. The defendant, E. E. Moore, answered the bill, admitting the recovery by the plaintiff of the judgment mentioned in said bill; admitting that he is seized in fee of several tracts or parcels of land in
Commissioner Peirce having reported the rental of the land as required by the previous decree of December, 1883, at the December term, 1884, the following decree was entered in the cause : ‘ ‘This cause coming on to be heard upon the papers formerly read therein, and upon the report of Commissioner D. S. Peirce, and it appearing from said report that the said commissioner has rented the land of the defendant for the period of five years, from the 10th day of March, 1884, and that he has taken 5 promissory notes, payable 1, 2, 3, 4, and 5 years, respectively, from that date, without interest, and that said R. R. Moore became the renter of his said lands, and that the notes were signed by said Móore, S. R. Sayers, Henry Simmerman, and Graham & Robinson, as sureties, and were for the sum of $1,400 each, and that they are sufficient to discharge and pay off the decree of the complainant against the defendant, it is adj udged, ordered, and decreed that said rental be confirmed, and .that the said D. S. Peirce shall proceed as receiver to collect said notes when they mature, and pay over the proceeds of the same to the complainant, and report his proceeding to this court from time to time, and he is hereby required to execute his bond in the penalty of $15,000 for the faithful discharge of his duties as such receiver ; and the cause is continued.”
R. R. Moore paid the first two notes, but made default in
The rule having been answered at the same term (March, 1887), this cause of Leftwich v. Moore was brought on to be
D. S. Peirce, commissioner, answered, explaining his connection as counsel for Leftwich, and as commissioner of the court, with the $4,000, 12 per cent, debt due by Moore
On the 10th day of June, 1887, the following decree in vacation was entered : “This cause came on to be heard in vacation upon motion of defendants to dissolve the injunction awarded in this cause on the 18th day of May, 1886 ; upon the bill of complaint; the copy of the record of the chancery cause of I. J. Leftwich v. R. R. Moore, filed as an exhibit therewith ; the several 'answers of I. J. Leftwich and D. S. Peirce to said bill, with general replications thereto ; the notice of the motion to dissolve, which appears to have been duly executed ; and the arguments of counsel for the complainant and the defendant, — on consideration of all which it is adjudged, ordered, and decreed that said injunction be, and the same is hereby dissolved.”
Prom this decree, and that of the March term, 1887, in said suit of Leftwich v. Moore, the two causes are here on appeal. Thus arose, in this court, the case of Moore v. Leftwich, which has been submitted, but not yet decided. See post, 1013.
(2) There is the case of Moore v. Bruce, which arose as follows: In April, 1886, and pending the said suit of Leftwich v. Moore in the circuit court, Gr. S. Bruce filed his bill in the circuit court of Wythe against said E. E. Moore, to enforce against the real estate of the latter two judgments theretofore recovered against him by said Bruce, one of which was recovered in said circuit court at
Thus the complainant, Bruce, alleges in his bill that he is advised that there are no other liens prior to those of his' said judgments, except those already provided for by the renting of said Moore’s lands as aforesaid, and therefore he claims that he is entitled to subject to sale, for the satisfaction of his said two judgments, the life-estate of the said R. R. Moore in the 956-J-acre tract, less the amount con
The defendant, R. R. Moore, demurred to and answered the bill of the complainant, Bruce, and in his answer says “that by a lease dated 8th August, 1885, a copy of which is herewith filed, marked ‘A, ’ and prayed to be considered a part of this answer, your respondent rented all of his lands in the bill mentioned to J. A. Davis, upon the terms set forth in said written lease; that respondent at once delivered possession of all of his lands to said Davis, who has since that time used, occupied, and held the same, and now holds them, under his said lease; that the said contract at first applied to the east end of the pond field, but the privilege was given to said Davis to take all of respondent’s land, and said Davis elected to do so, and by respondent’s consent he took possession of all of the same, paying respondent according to said contract for the lands cultivated, and a fair rental for others.” Por this remarkable averment in the
It is difficult to perceive how this contract about the-exchange of the black spotted oxen for the gray mare, and the recital that the oxen were to continue to do Moore’s hauling until the following spring, and that Davis had rented the east end of “Pond Field,” to go in rye and wheat and corn,, etc., could be tortured into a contract by which Moore leased all his real estate to Davis. There is not a word in the so-called “contract of lease” which even remotely indicates anything of the kind. As to the renting of the east end of “Pond Field,” it would be impossible to tell what .was-referred to but for the words, ‘ ‘to go in rye, wheat, and corn.” And if, therefore, it must be conceded that a portion of Moore’s land was referred to by the words “Pond Field,” we are left in the dark as to whether that field was a. part of the tract aforesaid, in which he owned only a life-estate, or was part of one of the several tracts owned by him in fee. If the latter, then it is a matter wholly immaterial; for these lands had been rented out under a decree in said suit of Leftwich v. Moore, long prior to said pretended contract,
Having thus attempted to set up the spotted oxen and gray mare paper as an impediment to the enforcement of the complainant’s (Bruce’s) judgment, Moore then proceeds to say : “Respondent avers that he considers said contract as valid •and binding on him ; and as it was made and executed 8th August, 1885, before complainant had any judgment lien on said land, it should expire before any sale can be made for the benefit of said Bruce. Respondent says that J. A. Davis, under his said written lease,-expended large sums of money and much labor on said lands, and he has now many contracts' for grazing the grass lands, and he is cultivating all the others. Respondent says said Davis is a proper party to this suit, •and should be so made before any hearing thereof.” The respondent, Moore, then proceeds in his answer to admit his ■ownership for life of the tract of 956],- acres of land conveyed to him and wife by J. F. M. Simmerman, as aforesaid. He •also admits the existence of the deed of trust, and his ownership in fee of the lands embraced therein, but insists that •said lands owned by/ him as aforesaid, are valuable, and that the same, by proper effort, with proceeds of a portion thereof recently sold by consent of said trustee, and other sales contemplated, would in five years pay the debts due; and he insists that- under no circumstances should all of said lands
Such is the answer of the respondent, Moore, to the bill against him by Gr. S. Bruce, and it cannot be said that it suggests any valid defense whatever. The lands owned by Moore in fee having been rented to satisfy the-complainant’s debt in the said suit of Leftwich against Moore, and Moore himself having become the renter thereof for the term of five years, which term had not expired, it became necessary in this suit of Bruce against Moore to take an account of the liens on the lands of Moore and the lands owned by him subject thereto. The report of the commissioner showed that, in
It is now perfectly clear that the alleged contract of lease under which Davis claimed, conferred upon him no such rights as were attempted to be set up by him ; that he was not a necessary or proper party ; that all necessary and proper parties were before the court.
This brings us to the case in hand of R. R. Moore et al. v. D. S. Peirce, Com’r, etc. The case is as follows : To the August rules, 1887, of the circuit court of Wythe county, D. S. Peirce, commissioner in the aforesaid suit in chancery, of Leftwich v. Moore et al., brought an aotion of debt against said R. R. Moore, Henry Simmerman, Samuel R. Sayers, and D. P. Graham and John W. Robinson, partners under the firm and style of Graham & Robinson, upon a rent bond executed in said chancery cause to said Peirce, as commissioner, for $1,100. To this , action the defendants appeared at rules, and filed their plea in abatement, to the effect that this action was superseded by the appeal and supersedeas in the said injunction suit of Moore against Leftwich. At the succeeding term of said court the said plea in abatement was objected to, and the court sustained the objection, rejected the plea, and gave judgment for the plain
Judgment affirmed.