77 Va. 548 | Va. | 1883
delivered the opinion of the court.
In September, 1849, the appellee, John B. Phillips, executed a deed of trust, in which he conveyed all of his real estate in the county of Lunenburg and certain slaves in said trust deed mentioned, to secure the payment of a debt of $1,590 to Benjamin E. Smith, since deceased. In November, 1865, the appellee, who was then insolvent, conveyed by an absolute deed of bargain and sale all of his real estate, and the greater portion of his personal estate, to said Smith, in consideration of the sum of $1,235, balance of the debt secured by the deed of trust, and for the further consideration of $5,668, and thereafter leased this property. In July, 1818, Smith died intestate. And in an action of unlawful detainer, the appellants, who are his distributees and heirs-at-law, obtained a judgment in the county court of Lunenburg for the property conveyed by the deed of 1865.
Whereupon Phillips filed his hill in the circuit court of the county of Lunenburg, to enjoin further proceedings on the judgment, and prayed for the specific execution of the promise which he alleged in his bill had been made to him on the 15th of September, 1815, by tire said B. E. Smith, to the effect that if he (Phillips) would pay $1,200 within twelve years, he (Smith)
On the 12th day of November, 1880, the said circuit court, after deciding that the .defendants’ intestate, B. E. Smith, did on the 15th day of September, 1875, “covenant and agree to re-convey to the plaintiff, J. B. Phillips, all the property conveyed to Smith by the deed of November 17th, 1865, upon condition that the said Phillips should pay him the sum of $1,200 within twelve years thereafter,” and that he did, in pursuance of said agreement, permit Phillips to remain in possession of the said property; and that Phillips had paid $600 under this agreement, and was ready to pay the remaining sum of $600, decreed that the said Phillips, upon the payment by him of the said sum of $600, is entitled to a reconveyance of the tract of land in the proceedings mentioned, and appointed a special commissioner to convey the same to Phillips, or to whomsoever he should direct.
From this decree this appeal was allowed.
We are all of opinion this decree was erroneous, and that the bill is without equity. The agreement to take a small part for the whole of this large debt, if any such agreement was ever made, as to which the proof is far from conclusive, without any valuable consideration to support it, is a nudum, pactum,, which will not be enforced in equity. In Keffer and Wife v. Grayson, 1 Hansbrough (76 Va.) page 517, this court said, “a debt barred by limitation * * * * * * * may be revived by a new promise, and the new promise may constitute a valid consideration;: hut a.promise to pay a debt for which the promisor is already legally bound, is a mere nudum
As this case must go off on the ground set forth above, we will only add, in reply to the suggestion that the deed of 1865 was a mortgage for the security of the precedent indebtedness, that the answers of Phillips and Smith to the hill of one Eoch, and which the appellee has made a part of his hill, conclusively show that such is not its character, hut that it is, what on its face it purports to he, an absolute deed of bargain and sale. The decree of the said circuit court must he reversed and the hill dismissed.
The decree is as follows :
This day came again the parties, by their counsel, and the court having maturely considered the transcript of the record of
Which is ordered to he certified to the said circuit court of the county of Lunenburg.
Decree reversed.