Ex&x v. Kenny

• Decision Date: 21 November 1895
• Citation: 92 Va. 245,23 S.E. 742
• Court: Virginia Supreme Court
• Parties: EFFINGER'S EX'X v. KENNY. SAME v. RALSTON.

23 S.E. 742

92 Va. 245

EFFINGER'S EX'X

v.KENNY.

SAME

v.RALSTON.

Supreme Court of Appeals of Virginia.

Nov. 21, 1895.

Judgment — Reversal — Effect — Purchaser at Commissioners' Sale—Eviction—Rents and Profits—Improvements.

1. In an action on a bond given for the balance of the purchase price of land, and to enforce a vendor's lien, the decree fixed the amount plaintiff was entitled to recover from defendant on the bond, appointed commissioners, and directed them to sell the land to satisfy the amount so decreed, unless it was paid within a specified time. Held, that a reversal of that portion of the decree which ascertained the amount of the debt for which the land was directed to be sold reversed the entire decree.

2. The rule that, where a purchaser of land is evicted, "as long as he received to his own use the rents and profits of the land they stood instead of interest, " does not apply where the court finds that the purchase was in good faith under a decree, and he was evicted because of reversal of such decree; but, in such case, he is entitled to be repaid his purchase money, and to be credited for permanent improvements made on the property, and must account for the rents and profits.

3. Commercial fertilizer used on land by a purchaser who is afterwards evicted cannot be regarded as a permanent improvement, for which he is entitled to credit.

4. Where a purchaser of land in good faith removes clay from the land for the purpose of making brick, and is afterwards evicted, it is proper to require him to account for the damage done to the land thereby, and not for the clay as mineral.

5. Where judgment creditors receive part of their judgment out of the funds in the hands of a trustee of the judgment debtor, which are the proceeds of land conveyed by the trust deed and sold by the trustee, and on which the judgment was a lien, they cannot afterwards enforce their lien against the land.

Appeal from circuit court, Rockingham county.

Two actions, —one by James Kenny, trustee of A. C. Bryan, against J. P. Effinger's executrix; and one by Jesse Ralston, administrator, against J. P. Effinger's executrix. From the decree, the executrix appeals. Modified.

John E. Roller and Caskie & Coleman, for appellant.

Wm. B. Compton and Strayer & Liggitt, for appellees.

BUCHANAN, J. The question raised by the first exception made by J. P. Effinger's executrix to the report of Commissioner Jones, dated September 25, 1891, is that the circuit court erred in refusing to give his testator's estate credit for the sum of $424.06, paid August 24, 1867, and for the like sum of $424.06, paid January 1, 1868, on the debt due from his estate to Kenny, trustee.

Kenny, as trustee of A. C. Bryan, sold, on the 30th day of March, 1863, a parcel of land to J. P. Effinger at the price of $21,203.12. The purchaser paid two-thirds of the purchase price in cash, and executed his bond, as of that date, payable in two years, with interest from date for the residue, viz. $7,067.70. In the year 1866, Kenny, trustee, recovered judgment in the county court of Rockingham county for the full amount of that bond, with interest thereon from March 30, 1863. The circuit court of that county affirmed that judgment, but, upon a writ of error to this court, both judgments were reversed, and a new trial awarded. 24 Grat 116. Before the reversal, however, of these judgments, Effinger had been compelled to pay two years' interest upon that judgment under the act of assembly of March 2, 1886, entitled "An act to stay the collection of debts for a limited period." Acts 1865-66, p. 182, §§ 4, 5.

After the case came back from this court to the county court for a new trial, the plaintiff (Kenny, trustee) dismissed his action, and filed his bill in the circuit court for that county for the purpose of subjecting the land sold by him to Effinger for the payment of the residue of its purchase price, evidenced by the bond referred to above. Upon the hearing of that cause, the circuit court was of opinion that the value of the land at the time it was sold was a more equitable measure of recovery than the scaled value of the Confederate money, with reference to which the bond was executed, and entered a decree November 29, 1878, for the sum of $2,692.33, with interest thereon from March 30, 1865, till paid, and appointed commissioners to sell the land therefor, unless the debt was paid within a specified time.

Upon appeal by Effinger that decree was affirmed by this court. A sale was made of the land under that decree, to the confirmation of which Effinger excepted, but his exceptions were overruled, and the sale confirmed. The decree confirming the sale was appealed from, and it was also affirmed by this court. 79 Va. 551.

In the meantime Effinger had taken an ap-peal to the supreme court of the United States from the decree of this court, which affirmed the said decree of the circuit court of November 29, 1878. Upon a hearing, that decree was reversed by the supreme court of the United States upon the ground that the act of assembly of February 28, 1867, in reference to suits on Confederate contracts, was unconstitutional, in so far as it authorized the value of the property sold to be considered by the court or jury in ascertaining the just measure of recovery in suits upon such contracts, and that Kenny, trustee, only had the right to recover the "exchangeable value of Confederate notes, in which the land was payable, estimated at the time and place of its execution in lawful money of the United States." 6 Sup. Ct. 179.

When the mandate of the supreme court was sent to this court, it entered a decree, on September 16, 1886, reversing its decree from which the appeal to the supreme court had been taken, and also the decree of the circuit court of November 28, 1878, from which the appeal to this court had been taken, and remanded the cause to the circuit court, to be proceeded with...