81 Va. 222 | Va. | 1885
delivered the opinion of the court.
At the May 'term, 1857, of the county court of Augusta county, Samuel H. Bell, Henry Eidson, and Jacob Baylor recovered a judgment against Henry Bare, John M. Heflin, and John W. Haughawont for $500, with interest from May 30th, 1855, and costs. Henry Bare, the principal debtor, and John M. Heflin resided in the county of Augusta, and John W. Haughawont, in the county of Rockbridge. On this judgment execution issued in the county of Augusta, and was returned unsatisfied; and another execution issued and sent to the county of Rockbridge, and was also returned unsatisfied.
On the 20th of May, 1876, an account was ordered. In obedience to the order of reference, the master reported (at what date does not appear), setting forth the complainants’judgment as amounting to $1,150.74 as of the 1st of October, 1876, and other judgments, amounting in the aggregate to $1,757.47 as of same date, and reporting, also a list of certain lands and town lots belonging to the defendant Haughawont, valued at about $5,000, which were supposed to be subject to the lien of said judgments. At the May term, 1877, when no decree had been entered touching the said lands of Iiaughawont, and when the appellants here were not parties to the suit, a decree was entered therein, directing one of the court’s master commissioners to ascertain and report whether there was any property in Augusta county subject to the lien of complainants’ judgment, and if so, to report the fee-simple and annual value thereof, by whom claimed or held, the state of the title and existing liens. The master returned his report on the 20th of September, 1877, setting forth that he found in the clerk’s office of Augusta county, a deed from William Kinney and wife to Nicholas K. Trout, trustee for Mary Ann Bare, wfife of Henry Bare, one of the judgment debtors aforesaid, bearing date August 1st,“1856, conveyed, in consideration of $433.33, one-third of which had been paid, a certain lot of land situated near Staunton, * * * containing one and one-fourth acres; that from an endorsement on said deed it appeared that John M. Heflin, one of .the said judgment debt
Thus, for the first time, was it suggested that the property, the subject of controversy here, was liable to the judgment of the complainants, the inquiry having been instituted when they were not parties to the suit. On the 17th of May, 1878, some eight months after the coming in of Commissioner Edmondson’s said second report, an order was entered in the ■cause, referring to said report as without exceptions, and directing the complainants in the original bill to file an amended bill, making defendants thereto the heirs-at-law of Mary Ann Bare, deceased, and the administrator of Nicholas K. Trout, deceased, trustee for Mrs. Bare. The amended bill, after much delay, was filed, and in it the complainants asserted the lien of their said judgment on the house and lot in Staunton belonging to the appellants here, the heirs-at-law of said Mary Ann Bare.
In this state of the case, on the 27th day of October, 1879, the said circuit court entered a decree in 1he cause approving
Said commissioner, in obedience to the order of re-committal, on the 21st of August, 1884, returned his third report, stating that there were no liens on said real estate by judgment paramount to or pari passu with the complainants’ judgment; but that the vendor’s lien retained by Willian Kinney was a subsisting lien, which, as of September 1st, 1884, amounted to $788.64, and was held by John W. Bare, one of the heirs of Mary Ann Bare.
The heirs of Mary Ann Bare answered the amended bill. They say that they cannot deny the recovery of the judgment of complainants against Henry Bare, John W. Haughawont and John M. Heflin as set out in the bill, but deny that said judgment is a lien on the house and lot in Staunton. They further say that the title to the lot on which said house is built was acquired by a legal conveyance, in fee, from Wm. Kinney and wife to Nicholas K. Trout, trustee for their ancestress, Mary Ann Bare, deceased, for the consideration of $433; said conveyance being dated on the 1st day of August, 1856, and was duly acknowledged and delivered to said Nicholas K. Trout, trustee, on the 23d day of August, 1856, and that said lot was greatly improved by the errection of valuable improvements thereon by said Nicholas K. Trout, trustee, with funds and means belonging to said Mary Ann Bare, deceased; and that upon the death of said Mary Ann Bare, the said house and lot descended to the female respondents and their co-defendant, John W. Bare. They deny that John M. Heflin ever had any legal title to said lot, or any title of any kind capable of record
In addition to what is said in this answer of the said heirs, it clearly appears from the record that Mrs. Bare was the owner and holder, through her said trustee, of a separate fund, which went to the erection of the valuable improvements on said lot, which, when purchased from Kinney by Heflin, and also when sold by the latter to Trout, trustee for Mrs. Bare, was entirely unimproved, it not even being fenced.
The cause was again brought on and finally heard, as to the defendants, the heirs of Mrs. Bare, on the 18th day of March, 1885, when the court decreed that said heirs pay—1st. To John W. Bare the amount of vendor’s lien due him, as reported by the master in his said third report, being $788.64, with interest on $288.88, part thereof, from the 1st day of September, 1884; and (2), to the plaintiffs in the original and amended bill the sum of $575.37, with interest on $250.00, part thereof, from the first day of - October, 1876, that being the one-half of the plaintiffs’ judgment, the one-half of the plaintiffs’ costs in the original suit, and the costs of the amended bill; which costs, so decreed against the heirs of Mary Ann Bare, were ordered to be credited by the plaintiffs’ costs in the proceedings for a rehearing of the decree of October
From that decree an appeal was allowed on the application of the heirs-at-law of Mary Ann Bare, the appellants here.
Before proceeding to examine into the main question involved in this controversy, to-wit: whether in any event the house and lot in Staunton, the property of the heirs-at-law of Mary Ann Bare, deceased, is liable to the judgment of complainants in the court below, it is proper to notice briefly some peculiarities of the decree complained of:
1st. The decree directs the payment within sixty days by the heirs of Mary Ann Bare, to John W. Bare, of the amount of vendor’s lien due to the latter, when John W. Bare is one of those heirs, thus failing to distingush between him, as the holder and owner of the vendor’s lien, and the other heirs. This vendor’s lien was retained by Kinney in the conveyance from him to Mrs. Bare’s trustee; was by Kinney assigned to D. A. Kayser, on the 1st of January, 1858, and by the latter to said John W. Bare on the 10th day of July, 1863, both of which assignments, as shown by the record, were made in good faith and for value. It is an obvious fact, recognized by the decree, that the vendor’s lien thus held by said John W. Bare is paramount to all other claims; yet the decree makes no exception as to John W. Bare, and, in effect, makes him jointly with the others liable for the amount decreed in his favor. Plainly, this is wrong. The decree, in this respect, should
2nd. The master reported the judgment of the complainants a lien on said house and lot, but subordinate to the vendor’s lien aforesaid, and the decree confirmed said report, yet decreed in favor of the complainants for only half of their judgment, and required the defendants, the heirs of Mrs. Bare, and appellants here, to pay half the costs of the original suit, when they were not made parties to the original bill, and when there was no averment or prayer therein in anywise affecting them. This is all wrong. Clearly, if the judgment of complainants was a lien at all, it was a lien for the full amount thereof, there being no proof of nondiability as to the other half, no intimation that any part of the judgment had been paid, nor any reason assigned for decreeing for the satisfaction of only one-half thereof. And, as to the costs of the original suit, there could be no justice in decreeing any part thereof against the heirs of Mrs. Bare, when neither she nor they were parties to the original bill, and were not even referred to therein.
3d. The original bill, to which the heirs of Mrs. Bare were not parties, sought only to subject the lands of the defendant therein, John W. Haughawont; there had been a reference to and report by the master of certain lands belonging to said Haughawont as liable to the complainants’ judgment; and, without ascertaining whether the lands of said Haughawont were primarily or secondarily liable to said judgment, and if so, to what extent, the court below proceeded to enter the decree complained of, subjecting to said judgment the house and lot belonging to the heirs of Mrs. Bare. In this respect the decree was manifestly premature and erroneous, as all of these matters should have been first ascertained.
This brings us to the consideration of the main question, which, stripped of all extraneous and irrelevant matter, may
“To Nicholas K. Trout, trustee, in a deed from Henry Bare, for my benefit, dated May 19th, 1855: You are hereby directed to invest so much of the money due from John M. Heflin, on the land conveyed to you by said trust, as you may collect, in a certain lot, with improvements, near the produce depot of the Central Railroad, purchased of Wm, Kinney; or take a*232 conveyance of said property, subject to the vendor’s lien, or for such interest as the said Heflin may have in it, according to the provisions of said trust; and pay any money due me, under your control, towards the building of the house, etc.; and this shall be your sufficient authority. Witness my hand and seal this 14th day of July, 1856.
“Mary A. Bare, [Seal].”
On the same day John M. Heflin wrote:
“ To Wm. Kinney, Esq.:
“This is to authorize you to convey to Nicholas K. Trout, trustee of Mary Ann Bare, wife of Henry Bare, the lots I purchased of you through your agent, David S. Young, Esq.; and which property is to be held by said Trout agreeably to the provisions of the deed constituting him such trustee, and the price is to be in part consideration of the bond on me conveyed to said Trout, in trust for said Mary Ann Bare.
“Witness my hand and seal this 14th day of July, 1856.
“John M. Heflin, [Seal].”
Accordingly Wm. Kinney and Rebecca F., his wife, on the 1st day of August, 1856, conveyed the lot in question to Nicholas K. Trout, trustee of Mary Ann Bare, the deed reciting on its face that the consideration was $433; that one-third thereof had been paid, and retaining a lien for the two-thirds remaining unpaid. And this deed was acknowledged and delivered on the 23d day of August, 1856, prior to the recovery of the judgment sought to be enforced, though it was not recorded until after the recovery of said judgment.
The evidence in the cause makes it clear beyond all cavil that these transactions between William Kinney and John M. Heflin, and between the latter and Nicholas K. Trout, trustee,
But it is insisted for the appellees that Heflin’s instructions in writing to Kinney to convey to Mrs. Bare’s trustee is a contract in writing such as is contemplated by §§ 4 and 5, ch. 118, Code 1849, and should have been recorded in order to protect Mrs. Bare, the beneficial purchaser, and those claiming under her. Obviously the paper possesses none of the elements of a contract, and was no more capable of recordation under the statute than was the verbal contract between Kinney and Heflin. The writing is not even addressed to Mary Ann Bare, or her trustee, but is by Heflin addressed to his vendor, Kinney, and authorizes him to convey to Mrs. Bare’s trustee ; thus clearly indicating, as is shown to have been the fact, that there was a prior verbal contract (at what precise time does not appear) between Heflin and Nicholas K. Trout, trustee for Mrs. Bare. Being a mere parol verbal contract, it is- not only not required by the statute to be recorded for the protection of creditors and subsequent purchasers, but was incapable of recordation according to the plain meaning of the statute. Besides a deed proper, the statute authorizes nothing to be recorded but “a contract in writing made in respect of real estate or goods and chattels in consideration of marriage or for the conveyance' or sale of real estate, or a term therein of more than five years.”
In Floyd v. Harding, 28 Gratt. 401, after a careful examination into the objects and scope of our registry acts, and review of all the authorities, it was Settled that said acts have no application to parol contracts for land. If the contention for the appellees in this case were upheld, it would be to hold
Decree reversed.