82 Va. 817 | Va. | 1887
delivered the opinion of the court.
At the June rules, 1882, the complainant, Huldah Austin, filed her bill, alleging that on the seventeenth day of March, 1858, her husband, John H. Austin, being largely indebted, with certain judgment liens resting on his real estate, consisting of a farm of 140 acres of land near Port Republic, Rockingham county, -Virginia, and being desirous of paying off the said liens, and relieving himself from debt, and being compelled to sell his said real estate in order to do so, he entered into a contract of sale of the said tract of land with one Jacob B. Nicholas, of Rockingham county, at the price of $40 per acre, amounting to the sum of $5,600; that the said contract of sale was executed, perfected, and completed, on the part of herself and her said husband, at their home, on the said 17th day of March, 1858, by the execution and delivery of a deed conveying to the said Jacob B. Nicholas the said tract of land, she uniting in the said deed; that the said Jacob B. Nicholas, in part execution of the said contract of sale, executed his four purchase-money bonds for $812.50 each, bearing even date with the said deed, and maturing in 1859, 1860, 1861, 1862, without interest, respectively, payable to her said husband, the said John H. Austin; that after the said several bonds had been signed by the said Jacob B. Nicholas,
*820 “$812.50. On or before the first day of March, 1862,1 promise and oblige myself, my heirs, executors, or administrators, to pay John H. Austin eight hundred and twelve dollars and fifty cents, being in part payment of a tract of land purchased of said Austin. This note shall not be transferable to any one until the land is clear from all incumbrances except the dower of Mary Austin.
“Given under my hand and seal this seventeenth day of March, 1858.
“Jacob B. Nicholas. [Seal.]
“Witness: Chakles Lewis.”
Indorsed on the back:
“I assign this bond to Huldah Austin, my wife, for,signing the deed to the land sold to Jacob Nicholas, March 17, 1858.
“John H. Austin.”
After the said bond was assigned to complainant, as aforesaid, she wrapped it up with two other and smaller bonds, and carefully laid it away. When, afterwards, she sought for the bond in the place where she had deposited it, it was gone, and could not be found, though diligent and repeated search was made for it. Complainant formed the suspicion that her husband had obtained the said bond, and had transferred it to some one else; and much crimination and recrimination passed on account of her said suspicion, which was not removed until 1874, when she found the said carefully-wrapped bundle of papers, containing the said bond for $812.50 and the two smaller bonds, among a large quantity of old papers of her husband, who had been a constable. Complainant immedi
After the taking of depositions on both sides, the court, by its decree of February 8, 1884, referred the cause to a master commissioner, who made his report, which was recommitted by an order in the cause rendered April 25th, 1884, which directed the report to be reformed, and that the commissioner should take testimony, and inquire and report when the assignment of the bond for the fourth deferred payment in the bill and proceedings mentioned was made by John H. Austin to the complainant, Huldah Austin, and what was the consideration therefor; whether the assignment of the said bond was made with the knowledge or assent of Jacob B. Nicholas, or, if neither, when said Nicholas first learned of said assignment and transfer to complainant; whether the said bond has been paid by the defendant Nicholas, and, if so, when, where, and to whom paid, and under what circumstances it was paid. In response to this reference the master made his report, in which he says that, after the greatest deliberation, and with all the testimony adduced, he adopts the text of his former report of May 28th, 1883, and the statements thereof, to wit: “That the transfer and assignment of the fourth deferred bond of J. B. Nicholas, payable to John H. Austin, was made by the said Austin to his wife, Huldah Austin, the plaintiff here, on the 17th day of March, 1858, at the house of the said Austin and wife, and the consideration for the said transfer and assignment was that the said Huldah Austin was to sign the deed convey
To this report exceptions were filed by appellant, which the court overruled, and entered a confirmation of the said report, and rendered the decree of October 21, 1884, for the said sum of $812.50, with interest from March 1, 1862, in favor of the said Huldah Austin, and against the said Jacob B. Nicholas.
Appellant admits the execution of the bond, and the evidence in the record clearly and satisfactorily proves that he was present and assenting to the transfer of the bond by John H. Austin to his wife, Huldah Austin, in consideration of her uniting in the deed relinquishing her contingent right of dower in the land, which deed the said Nicholas accepted and used and recorded; and that he knew that Huldah Austin held and claimed the said bond as her separate property before he had paid the purchase money.
Where a parol dispensation, with the performance of an agreement under seal, is supported by a consideration, it will be enforced in equity, as a party cannot take advantage of a default he has sanctioned. U. S. v. Howell, 4 Wash. C. C. 620; Fleming v. Gilbert, 3 Johns. 528.
Silence, where it is so intended, or where it has that effect, to mislead a party, to his disadvantage, and to the other party’s advantage, is an equitable estoppel; and passive acquiescence
The appellant, Nicholas, was silent when he, of all others, should have spoken, and, by his silence, conduct, and permission, caused the appellee, Huldah Austin, to rely and act to his advantage on the representations and assurance made to her, and he cannot now be permitted to prove that that representation was false, and the consequent assignment of the bond is ineffectual. He sanctioned the assignment, and took the benefit, and thereby dispensed with the qualification in the bond. Jewett v. Miller, 10 N. Y. 402; Green v. Green, 14 La. Ann. 39; Graves v. Key, 3 Barn. & Adol. 313; 2 Pars. Cont. 793, and note f; Id. 798, and notes; Weaver v. Lynch, 25 Pa. St. 449; Sloan v. Richmond, T. & M. Co., 6 Blackf. 175; Crout v. De Wolf, 1 R. I. 393; Truscott v. Davis, 4 Barb. 495; Platt v. Squire, 12 Metc. 494; Davis v. Thomas, 5 Leigh, 1.
Appellant insists that it was error to permit appellee to testify in the cause. The record shows that she was sworn and examined in part before the objection was raised; but she was a competent witness, in a court of equity, to establish her right to the bond assigned to her by her husband as her separate estate. He was a mere nominal party, in nowise bound for the costs, and' she was not testifying for or against him. See Hayes v. Mutual, etc., Ass’n, 76 Va. 225. John H. Austin is incompetent as a witness for his wife; yet the court allowed J. B. Nicholas to testify, though his competency was objected to. But the court below heard the testimony of both appellant and appellee, and, upon all the testimony rendered real and substantial justice in the cause by decreeing in favor of the appellee.
Deck.ee aeeikmed.