80 Va. 191 | Va. | 1885
Lead Opinion
delivered the opinion of the court.
This is a controversy as to whether the six notes or single bills, hereinafter to be referred to, bear interest from the date of the contract of sale, or only from the maturity of the bonds. Before, however, considering the main question, we must dispose of' a preliminary question, raised by counsel for the ap-pellees.
It is insisted that the appellant, the plaintiff below, has no
“On the 26th day of August, 1879, I bind myself, my heirs, &c., to pay to F. W. M. Holliday, S. J. C. Moore, A. McDonald and A. Moore, Jr., commissioners in chancery in the suit of Dobbin and 'Ware, the sum of six hundred and sixteen dollai’s and fifty cents (§616.50), with six per cent, interest, from date above, until paid, homestead exemption waived.
“Witness my hand and seal September 10th, 1873.
“BeNjamiN Starkey, [Seal]”
Then, on the same day (September 10th, 1873), Starkey executed his deed of trust to secure said “six notes dated
In the copy of the contract produced in evidence, the last two lines thereof read: “The bonds for the purchase-money to bear interest at six per cent, from this date, and to be secured by deed of trust on the property.” In these two lines the words “from this date” are plainly interlined, and admittedly in the same handwriting of the body of the instrument, that of the vendor, Ware.
The sale thus made by Ware was reported to court and confirmed in the case of Dobbin v. Ware, and the said bonds drawn payable to said special commissioners being at the same time presented in court, were by the court directed to be collected by A. Moore, Ji\, as receiver, and the proceeds applied to the payment of the debts of said Ware, ascertained in said suit of Dobbin v. Ware. In that suit the court then proceeded to ascertain the amount of Ware’s debts, to be provided for by a further sale of his lands, after applying the proceeds of said Starkey bonds; and in fixing the amount of said bonds so to be applied, the master commissioner, it. seems, without reference to the said-deed of trust or contract, but looking only to the wording of the bonds, concluded that they did not bear interest until after maturity, and to that extent discounted their face value, which action of the master commissioner was at the succeeding term of the court confirmed, and the receiver after-wards made collections accordingly.
Starkey paid the first bond, but finding he would not be able to make the other payments, and having been put in possession, and having seeded a crop of wheat in the fall of 1873, in 1875 sold the land to Wm. B. Claggett, one of the appellees, who paid off the said five bonds assumed to be paid by him in
When the last Starkey bond had become due and was paid, Ware discovered that the receiver had not collected the interest on the bonds, except from maturity; and thereupon Ware filed his bill, to enforce the contract according to its terms, and insisting that, according to the true construction thereof, said bonds bore interest from their dates. At the hearing the court below dismissed Ware’s bill, and the case is here on appeal from the decree of dismissal.
Preliminary to the main question, it is contended by the ap-pellees (1) that this is a suit simply to correct- an alleged mistake in the execution of said bonds by Starkey; and (2) that the sale of the land to Starkey was a judicial and not a private sale, and therefore nobody, except the court or its officers, has any right to sue in respect to its enforcement.
A glance at the bill filed by Ware will show that, whilst it asks for alternative relief by way of treating the bonds as mistakenly executed in respect to the time from which they should bear interest, the leading feature of the bill is to enforce the contract'for the alleged unpaid balance of purchase-money— the complainant insisting in his bill that the true intent and meaning, looking to all the instruments executed in connection with the sale of the land, was that the entire purchase price bore interest from the clay of sale, as provided in the contract of sale. The prayer for alternative relief in the event the court should not adopt the main view and purpose of the bill by no means gave to the suit the character of one simply to correct a mistake.
It is in the second place true that there was, in the suit of Dobbin v. Ware, a decree for the sale of Ware’s land, but it is also true that in that situation Ware made sale of a portion of his land to Starkey — land subject to said decree for sale- — -that he took the bonds payable to said commissioners appointed to sell his land, and tendered to the court said contract of sale,
A decree for the sale of his land was hanging over Ware; he was struggling to avoid utter wreck; he doubtless believed he'could sell, either to his neighbors or others, in parcels to better advantage than a sale under the hammer would be; and therefore he sold this parcel to Starkey, advising him at the time of his purpose to put the contract of .sale into the hands of the commissioner of the court to meet to that extent the demands' against him in the suit of Dobbin v. Ware. The bonds and trust-deed were taken, and the latter was duly recorded. The record also Shows that the contract and bonds were presented to the court, and that then it was suggested; at the bar, that the bonds only bore interest from maturity, but that Ware, who was present in coui’t, then asserted and claimed that they bore interest from the date of the contract. The court then, in adopting for the purposes of the suit the sale made by Ware and receiving the bonds aforesaid, received them to be enforced according to the real meaning and effect of the contract. ' The contract and bonds were exhibited in open court, and attention called to the real nature and purport of the contract. The
The sale thus made was inadequate to the discharge of the debts decreed against Ware, and the court directed its commissioner to ascertain how much more of Ware’s land must be sold, after the application of the proceeds of the sale to Starkey, in order to satisfy the debts decreed against Ware in said suit of Dobbin v. Ware. It was.the mistake made by the commissioner under this order of reference and the failure of the court to observe and correct it that has produced this litigation. The commissioner ignored the terms of the contract and deed of trust, and, looking only to the loosely-drawn bonds, came to the conclusion that the bonds only bore interest after maturity, and ascertaining their present value (a matter not referred to him) upon that basis and in that way arrived at, and reported the additional quantity of land necessary to be sold. This unauthorized act of the commissioner, in passing upon a matter not referred to him, could not preclude Ware from the assertion of his rights, if he was injured thereby, even if the court did, at the succeeding term, confirm the report of the commissioner— an act, it may be, of inadvertence on the part of the court, or, it may be, that the matter of interest improperly passed upon by the commissioner and thus involved in his report was not readily discernible, if at all, by an inspection of the report by the court. There is in the record no decree referring to the commissioner the question as to from what time said bonds bear interest. Nor is there in the record any evidence of any decree in terms confirming, or that can be construed as equivalent to a confirmation of the conclusion arrived at by the commissioner, that said bonds only bore interest after maturity.
It is insisted by counsel for the appellees that the action of the commissioner in treating the bonds as not bearing interest
It is apparent that the sale by Ware to Starkey was a private and not a judicial sale. Christian v. Cabell, 22 Gratt. 82. This being so, and neither Starkey nor his vendee, Clagett, being parties to the suit of Dobbin v. Ware, but mere stakeholders in succession, and required to pay the price agreed to he paid by Starkey to the court in the suit aforesaid, it is manifest that the pleadings and parties in that suit were not adapted to the litigation between Ware and Starkey and Clagett of the question about interest, and that Ware was not, by anything that occurred in the suit of Dobbin against him, precluded from the assertion of his rights in this suit, though such rights ought to have been enforced in that suit by collecting the full amount due him — it being to the interest of his creditors, and, therefore, to his interest. And it can make no difference that the suit of Dobbin v. Ware is still pending, and debts to which the
It will be observed that while the bonds (described as notes in tlie deed of trust) provide for “six per cent, interest from date aboce until paid,” there is no date above, except in the body of the instrument, which is “August 26th,” the dates of the maturity of the bonds respectively in the years 1874 to 1879, inclusive, and that the dates below, the date of each of the bonds is September 10th, 1873. It will be observed further that the contract, even if the interlined words “from this date” be omitted, provides that the purchase-money bonds shall “ bear interest at six per cent.,” which necessarily means, in the absence of any provision expressly to the contrary, from the date of the contract. Not only so, but the deed of trust which was necessarily executed after both the contract and the bonds, and which is the additional and independent promise of Starkey to pay “ six notes dated 10th day of September, 1873, with six per cent, interest from 26th August, 1873,” &c., which is not the date of the bonds and trust-deed, but is the date of the contract, which, with or without the interlined words, is a contract for interest from its date. These instruments, all bearing upon
But it is insisted by counsel for the appellees that the provision for the payment of interest has been wrongfully interpolated into the contract; and the whole body of the contract being in the handwriting of Ware, the direct imputation is that Ware interlined the words “from this date” after the contract was signed by the parties; in other words, that he committed
Starkey seeks to avoid this provision in the trust-deed by saying he did not read it carefully. This cannot avail him. He signed both papers, and he cannot be heard to say he did not read the one or the other. So. Mutual Ins. Co. v. Yates, 28 Gratt. 585.
Again: From the facts and circumstances disclosed by the record it was physically impossible for Ware to make any change in the contract after it was signed by the parties, for it is incontestiblv established that the copy of the contract in evidence, with the words interlined, was when signed delivered by Ware to Starkey, and by the latter delivered for safe-keeping to Major S. J. C. Moore, a lawyer of experience and integrity, who says in his deposition that the interlined words “from this Jate” were there when he received it from Starkey; and he accounts for the contract all the time from then until produced in evidence. There was at the time of the contract another copy taken and kept by Ware until left by him with .Mr. McCormick, one of his counsel in this suit. That copy is lost; but Mr. McCormick says, in his deposition in the cause, that it was left with him, that he recollects no interlineation in it, and that he supposes it was lost in several times removing his office and papers from one place to another.
A number of depositions were taken in thé cause, the result of which is that, with or without them, it is impossible to read the contract, bonds, and trust-deed and come fairly to any other conclusion than that it was truly the agreement between the that should interest on the entire
Nor can Clagett complain. For when he was negotiating for the purchase from Starkey he was informed by the receiver, A, Moore, Jr., of Ware’s claim about interest, but told by Moore that nothing had been heard of Ware’s said claim for then over a year. But Clagett was not satisfied to act on this; but, being informed that the contract was in the keeping of Major S. J. C. Moore, he called on him, and was shown the contract, with the interlined words in it; and now, because Major Moore said to him in response to a question seeking his opinion, that “the interlined words looked a little bad,” Clagett, as the holder of the land which .lie bought subject to a recorded trust-lien, comes and says he is a purchaser for value without notice, when not only were all the avenues of information open to him, but were actually resorted to by him. Upon every principle of justice and right he is a purchaser with notice, and for so much of the debt of Starkey to AWire as remains unpaid, the land in the hands of Clagett is charged and liable.
But after the evidence was closed as to all who had any knovdedge of the transaction, the defendants below, the ap-pellees here, went to Washington city and took the deposition of E. B. Hay, a professed expert, and the contract in question underwent his scrutiny. This witness, when asked his age, occupation, and residence, gave himself a spacious introduction. He says: “I am thirty-four years of age; attorney-at-law; residence, Washington, I). C., for the past fifteen years. Besides the above profession named, I have devoted attention to the science of penmanship in every branch, especially that devoted to the comparison of handwriting, for the purpose of detecting forgery, spurious writings, &c., and have been accepted as an expert in handwriting before the courts in the District of
When asked if he had examined the contract here in question, he says: “I have examined the paper with a view to the handwriting and the priority of certain strokes. The handwriting is the handwriting of Ware, or the handwriting of the person who wrote £ J. W. Ware.’ The greater part of the body of the handwriting appears to have been, at one and the same time, leaving spaces for the name of the party of the second part, or £ Starkey,’ to be inserted afterwards. Wherever the name ‘Starkey5 appears it is written slightly larger, and in nervous handwriting, and with ink that, to the eye, is darker than that used in writing the body of the instrument; after the word ‘repairs,5 on the nineteenth line, all that follows was written after the body of the instrament, and in the same nervous hand in which the word £ Starkey,5 mentioned above, appears to have been written; the ink is darker than the body of the instrument, and the proportion of letters is slightly larger; the seals — that is, the scrolls showing the word ‘seal5 — ■ were made by the person who wrote the body of the instrument, the word seal being in the same handwriting.”
The original paper was produced at the argument, and inspected by this court. Tested by the common experience of persons accustomed to the use of pen, ink and paper, there is absolutely nothing to warrant the main conclusion arrived at by this expert, to-wit — that all of the body of the instrument after the word “repairs” Avas written after — that is, at a period of time subsequent to that at which the contract Avas made and
In Wharton’s Law of Evidence it is said: “When expert testimony was first introduced it was regarded with great respect. An expert, when called as a witness, was viewed as the representative of the science of which he was a professor, giving impartially its conclusions. Two conditions have combined to produce a material change in this relation. In the first place, it has been discovered that no expert, no matter
Certain it is that the above philosophic Anew of the subject is truthfully illustrated in this case. Not only is the main conclusion of the expert absolutely oA'erthroAvn by the clearly as
In any and every view of the case the decree appealed from is cleai’ly erroneous, and must be reversed and annulled, with costs to the appellant, and the cause remanded to the said circuit court, to be proceeded in <o final decree, in accordance with the views expressed in this opinion.
Dissenting Opinion
dissenting, said:
A chancery suit having been instituted in the circuit court of Clarke county for the purpose of subjecting the lands of one Josiah TV". Ware, to sale to satisfy the liens thereon, by Bobbin and others, creditors of the said Ware, on the 26th day of August, 1873, the said Ware made a sale of certain lands belonging to him to Benjamin Starkey, at an agreed price. The sale was to be on a credit of one, two, three, four, five and six years, and the bonds to be made payable to the commissioners of the court alreadj’ appointed in the said suit of Dobbin v. Ware to sell the land in question; the agreement was reduced to writing, and signed by the parties. On the 10th day of September, following, the six bonds were executed by Starkey, for $616.50 each, payable respectively 26th day of August 1874, 1875, 1876, 1877, 1878 and 1879. The following is the first bond:
“ On the 26th day of August, 1874, I bind myself, my heirs, &c., to pay to F. W. M. Holliday, S; J. C. Moore, A. McDonald and A. Moore, Jr., commissioners in chancery in the suit of
“Witness my hand and seal, September 10th, 1873.
“BeNjamiN Starkey. [Seal.]”
The other bonds are like the first, payable as stated above, and were secured by a trust-deed on the land in question, which was conveyed by Ware to Starkey. This sale was reported to the court and confirmed in the suit of Dobbin v. Ware. The bonds drawn payable to the special commissioners were by the court directed to be collected by A. Moore, Jr., as receiver, and the proceeds were ordered to be applied to the payment of the debts of Ware. The court, in that suit, then proceeded to ascertain the amount of the debts of Ware, to be provided for by further sales of Ware’s lands, after applying the proceeds of the Starkey bonds. In fixing the amount of the bonds to be applied to the debts, the commissioner of the court discounted the bonds upon the ground that they bore no interest until maturity. The receiver of the court collected the bonds as if they bore no interest until maturity. Starkey paid one of the bonds, and in June, 1875, sold the land to the appellee, W. I>. Clagett, subject to the then existing liens thereon. Clagett paid the remaining purchase-money to Starkey on the first day of February, 1880.
In April, 1882, this suit was instituted by AVare against Starkey, Clagett and A. Moore, Jr., general receiver, and Neill, trustee, in the trust-deed, the object of which is to obtain interest on the six bonds cited, and set forth above from their date to their maturity — that is, one year’s interest on one bond, two years’ interest on the second, and so on.
It will be remembered that the bonds were executed on the 10th day of September, 1873, in pursuance of a written agreement executed August 26th, 1873; that the date of maturity of each bond was made to conform to, or refer to, the agree
Whereupon the appellant applied to this court for an appeal, which was allowed July 7th, 1884.
The first question raised by the appellees here, the defendants in the circuit court, is that the bonds having been taken payable to the special commissioners in the suit of Dobbin v. Ware, having béen reported to the court, and the sale approved, and the bonds collected by the court, in accordance with the report of its commissioner, and the proceeds distributed among the
But this is not all. On the 3rd day of November, 1874, Ware, not excepting to the report just mentioned, filed his petition in the cause, seeking to restrain the further sale of his land, alleging, among other things, as follows: “Your petitioner avers that by the true contract and understanding between him, said Starkey, and McClellan, the said bonds were to bear interest from their respective dates, and he prays that the decree of October term, 1874, in so far as it allows interest against him, may be revimed.” To this petition I find no reference in the opinion of the majority, and it is held that Ware is not precluded by anything in that suit. This' petition was rejected, and he did not appeal (this being in. the year 1874), but acquiesced until the bonds were all collected, and the proceeds distributed, and then, in 1882, he institutes this suit, and seeks to have this same relief. His application in this suit comes too late, the matter having been decided against him in the suit of Dobbin v. Ware, in a court of competent jurisdiction, his remedy if any, is in that suit, by appeal to correct any error therein, to his injury. And his bill in this suit was properly dismissed.
As to the expert’s testimony in this case, without any general comment as to expert testimony, except to say 'that, it is often most useful in illuminating the path to truth and justice, and in the hands of discriminating tribunals of justice, is often the only method by which covert criminal acts can be unearthed and exposed, and the undenied fact that experts are sometimes mercenary and sold for a price, is no argument against such testimony in any case where it has been valuable, and not corrupt. But in this case, no expert was required to detect the fact that a bond carried interest from a date expressly set out and declared on its face in plain words.
If one date is at the beginning of the first line of the bond, and the date of its execution at the end of the. last line, and it is expressly declared in the bond that it shall carry interest from the date above, that is plain enough without the aid of any expert, as the circuit court decided in a suit between all these same parties nine years before. The obligee or his as-signee instituted that suit, and as the contract made before the bonds were executed has the words “ to carry interest from date ” interlined, it required no expert to detect the fact that this provision was interlined, when this suit was instituted, to recover the interest on these bonds between the date of their execution and the date of their maturity — nine years after the principal had been paid and disbursed in the circuit coui’t in the suit of Dobbin v. Ware, in which these parties were all before the court, and from
In my opinion the decision of the circuit court of Clarke county is plainly right.
The decree was as follows :
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that said decree of the circuit court of Clarke county, rendered on the 24th day of May, 1884. dismissing the complainant’s bill with costs to the defendants, and ordering the special commissioner appointed by said court, in the case pending therein of George W. Dobbin v. J. W. Ware, to execute a release of the deed of trust on the land referred to in the proceedings in the cause, executed by B. F. Starkey on the 10th day of September, 1873, to S. S. Neill, fa’ustee, is wholly erroneous. Wherefore it is considered that the said decree be reversed and annulled, and that the appellant recover of the-appellees his costs by him expended in the prosecution of his-appeal aforesaid here; and the cause is remanded to said circuit court, to be further proceeded in to final decree, in accordance with said reasons in wilting, filed as aforesaid. Which is-ordered to be certified by the clerk of this court at Richmond to the clerk thereof at Staunton, and by the latter certified to the said circuit court of Clarke county.
DECREE REVERSEB.