98 Va. 431 | Va. | 1900
delivered the opinion of the court.
Smith’s executor filed his bill in the Hustings Court of the city of Roanoke in June, 1890, stating that one Edmund Didier, the owner of three lots of land in said city, had entered into an agreement to sell the same to L. L. Powell, trustee for a number of beneficiaries, who were named, who were to take unequal interests in the said lot ranging from one-eighth to three-eightieths of the whole, as shown by the deed from Didier. The purchase price was $6,000, of which sum $2,833.33 was paid in cash, and for $2,566.66 Powell, trustee, executed his two negotiable notes, each for the sum of $1,283.33, payable at one and two years from date, and as to the residue, he assumed two other negotiable notes drawn by Didier, payable to the order of "Webb and others. A vendor’s lien was reserved to secure the two notes of $1,283.33, and before the maturity thereof the first of these notes to fall due was for value received transferred to the plaintiff’s intestate. This note not having-been paid at maturity, Smith’s executor filed his bill, praying that the lots upon which it constituted a lien might be sold for its satisfaction, and that, if the fund thus produced proved insufficient to pay off 'the said note in full, the beneficiaries in the deed from Didier, who are named parties defendant in the bill, may be required to make good any deficiency. Powell, trustee, and all those interested in the trust were made parties defendant, and as to all of them the bill was taken for confessed. In January, 1892, this cause was referred to a commissioner to report an account of the liens upon the property. The commissioner reported, and there being- no exception filed, his report
The only controversy in the suit thus far had been as to the measure of liability upon the defendants; their contention being that a personal decree should have gone against them only for their ratable proportion of the sum to be raised, to be ascertained by reference to their interests under the deed to them from Didier.
Ppon the part of the plaintiff, it was claimed that they were jointly and severally liable for the whole amount, and this view was sustained by the court. There was some talk about 'an appeal from this decree, and thereupon Didier, who was anxious to get tlie money coming to him, undertook to bring about a settlement, as a result of which a Mr. Preston, who had purchased some of the interests in the suit, approached Mr. Scott, who was counsel of record for Smith’s executor, and told him that he would pay upon the decree in the case to Smith’s executor $608.15. This proposition was communicated by Mr. Scott to Didier in a note of April 24, 1893, the day upon which the decree under consideration was entered. On the following day (April 25, 1893), Didier and Preston went to Scott with a note drawn by Preston payable to Smith’s executor, at the First Rational Bank of Roanoke, for $608. This note was endorsed by M. T. O. Jordan. Scott declined to receive this note, because,
That Scott’s action in agreeing to accept the note ivas predicated upon the statement that it met with the approval of liis client is proved by himself and Didier, while Preston’s account of the interview is far less clear and definite. He says that he does not recollect what conversation he had with Mr. Scott upon the subject. In this condition of the proof, we must accept the positive statements of Didier and Scott. There is no evidence whatever that Booth knew of the transaction on or before the 24th of April. On the contrary, he himself says in his deposition that he was wholly ignorant of it at the time, and repudiated it as soon as it came to his knowledge, and that the note was never at any time in his possession. '
There is a check in the record drawn by L. C. Buckner to the order of B. E. Scott for $121.64. Buckner, who was one of the defendants against whom the decree had gone, of which we have spoken, had always earnestly insisted that he should only be bound for his ratable proportion, which he would pay after crediting the decree by the Preston note. The Preston note, however, was not paid. On the 4th of June, 1894, an order was entered in the case of Smith’s Executor v. Powell, Trustee, directing a' commissioner to report “whether or not the amount remaining due to the complainants, after applying the proceeds <of sale of the land in the hill mentioned, has been paid to the
Tlie decree of April, 1893, having been a final decree, no other decree could 'regularly have been entered in the cause. Battaile v. Maryland Hospital for the Insane, 76 Va. 63. Xo such objection to the proceeding, however, is made, because, as was stated at the bar, it was done by agreement among counsel. In execution of this decree, the commissioner took the evidence from which we have gathered the facts hereinbefore stated, and he reports that the note of $608.00 was received by Mr. Scott as a payment “under a mistake and misajiprehension of the facts as they existed, and that, therefore, it should not be regarded as a payment. The commissioner is further of opinion that, had there been no mistake or misapprehension in regard to the facts, said attorney had no right to receive anything other than money in payment of said decree, unless expressly authorized so to do by the complainants in this cause, and that no such authority is shown by the evidence produced before him. The commissioner is further of the opinion that no act or words of said complainants, after the execution of the said note, amount to a ratification of the act of the said attorney in receiving said note.” He then credits the decree with $48.17, which he considers as having been proved to be a proper credit, and reports that, subject to this credit, the amount of the decree of April 24, 1893, was still due and unpaid. To this report exceptions were filed, and the cause coining on to be heard before the Hustings Court, a decree was entered from which this appeal is taken, in which it is declared “that the note of M. P. Preston was so dealt with by complainants, after they had full knowledge of all the facts relating to its delivery, as to preclude them from refusing to allow it as a credit upon the decree entered on the 24th of April, 1893, and that defendants made payments to complainants upon the understanding that such pay
That Scott had no authority as attorney to receive anything' other than money in satisfaction of his client’s demands is not controverted, and, that being the case, we do- not .perceive how Scott’s conduct, assuming, that the evidence established all for which defendants contend, could operate by way of estoppel to the prejudice of his client. It is plain from the evidence that he gave Scott no previous authority to act otherwise than as his attorney at law. It is equally plain from the evidence that he never, by word or deed, consented to or ratified the acceptance of Preston’s note as a part satisfaction of the decree in his favor. But there can be no estoppel here in any view, or against any one. It is of the essence of estoppel that the act relied upon as such should have been injurious, and to the prejudice of him who relies upon it 'as an estoppel. The defendants have not been injured by anything said or done; by the plaintiff or his testator. The note which was received was not due for a year, and within that period every one 'interested was informed of the truth of the matter; that it had been taken under a misapprehension of facts, and that Booth and Scott, his attorney, had declared that the Preston note would not be accepted, while they would be glad if he would pay the money which it was intended to represent. The Buckner check injured nobody. It was not collected, and if it had been,, it represented only the amount for which Buckner was in any event liable.
But it is said that the defendants were prevented from taking an appeal. Booth, we reiterate, did nothing that estops him. He was not in any way responsible for the failure to appeal,- and after appellees were informed of his position there was yet ample time to move in the Hustings Court to have the
YTe are of opinion that the Hustings Court erred in crediting the decree of April 23, 1893, by the amount of the Preston note.
Appellees seek under Pule IX. to assign as error-the ruling of the court against them in that decree, 'by which they were held liable as partners or joint obligors. The decree, as we have seen, wras taken against them by default, and, by virtue of section 3452 of the Code, this court had no jurisdiction to entertain a petition for appeal until relief had been sought under section 3451 by a motion to the court in which the decree was rendered. That motion was never made. The time within which it could be made has expired, and the decree has long since become final and irreversible.
It is to be observed that the proceeding upon which the controversy is now in this court does not involve any question at issue in the litigation which resulted in the final decree of April, 1893. It is wholly with respect to what has occurred since the rendition of that decree, so that no relief could, in any aspect of the case, be afforded under the rule which appellees invoke. This consideration is also a "sufficient answer to the objection, presented by counsel in his oral argument, to the bill, which is copied into the record. There is no dispute before us which involves the pleadings in the original case, and whether the bill accepted by the court as a copy of the original bill be a true copy or not, is a matter of no moment.
Upon the whole case, we are of opinion that the decree complained of should be reversed.
Reversed.