Ex&x v. Adm&x

• Decision Date: 27 January 1887
• Citation: 1 S.E. 67,82 Va. 832
• Court: Virginia Supreme Court
• Parties: Smith's Ex'x and others v. Pisofitt's Adm'x, etc., and others.

1 S.E. 67

(82 Va. 832)

Smith's Ex'x and others

v.Pisofitt's Adm'x, etc., and others.

Supreme Court of Appeals of Virginia.

January 27, 1887

1. Deposition—Admissibility—Competency of Witness.

Objection to the admissibility of a deposition on the ground of the incompetency of the witness will not avail if the incompetency existed at the time the deposition was given, and the witness was then cross-examined without objection to his competency, or if he was in fact competent when the deposition was taken, and only became incompetent afterwards.

2. Equity—Evidence under Cross-Bill—Deposition.

A deposition admissible in the original suit is also admissible upon the hearing of a cross-bill filed after it was taken, under an order afterwards entered that all depositions taken in the original suit should be read in evidence in the cross-suit also, with the same effect, and subject to the same exceptions.

8. Deposition—Absence of Certificate—Master's Report.

The omission of the usual certificate to a deposition is cured by a reference in the master's report of the taking of the deposition.

4. Vendor and Purchaser—Time—When of Essence.

In a contract for the sale of land, time is not ordinarily of the essence unless it is so expressed.

5. Contract—Abandonment—Waiver.

An abandonment or forfeiture of an agreement by which a purchase of land is to be made by A. for the benefit of B. will not be declared because of B.'s failure to meet the deferred payments due upon the purchase, as agreed, if A. afterwards accepts large amounts from B. on account of the purchase.

6. Trust—Property Bought for Another — Right to Proceeds upon Sale.

In such case, B. is entitled, upon a sale of the property by A., to the proceeds of such sale, deducting the balance remaining due to A

7. Vendor and Purchaser—Notice—Possession—Evidence.

In a proceeding in which it was sought to compel A. and B., who had bought property from C. and D., who held the legal title to it, to pay E. amounts already paid upon the purchase price to C. and D., on the ground that E. was the beneficial owner of the property, and that A. and B. had notice of that fact, held, upon the question of notice, that as A. and B. carried on a grocery business near the property, which was a hotel, and E., upon the purchase of the property by C. and D., took possession, and made extensive improvements, A. and B. were put upon inquiry as to the real slate of the title, and that the other evidence, although conflicting, sustained the master's finding of notice.

8. Equity—Decree not Settling All Rights.

In such case a decree may be made ordering a sale under a trust deed given by A. and B. to secure the purchase price, upon the failure of A. and B. to pay E. that part of the purchase price equitably due to him, without making any decree against C. and D. either in favor of A. and B. or of E.

9. Same—Passing upon Demurrer.

A decree is not erroneous for failing to pass upon a demurrer if it in effect disposes of it, although not in terms mentioning it.

10. Same—Filing of Pleadings.

Where certain pleadings appeared in the record, with no file-marks thereon, but other pleadings contained uncontradicted allegations of such filing, and the parties whose pleadings they purported to be were represented at the taking of testimony by counsel, held, that the pleadings would be considered as properly in the case.

11. Bankruptcy—What Passes to Assignee—Proceeds of Trust Property.

An assignee of a bankrupt is entitled to the proceeds of property held and sold by third parties as trustees for the bankrupt, and he can assert such right in a suit brought by the purchasers to determine how the money shall be paid.

12. Same—Limitations.

The assignee's claim is not barred by the two-years limitation provided by the bankrupt act if such suit is brought within two years from the maturity of the claim for the purchase money, although not within two years from the assignment in bankruptcy.

Appeal from Albemarle county. In equity.

Duke d Duke, for appellants.

S. V. Southall and Blakey d Blakey, for appellees.

Richardson, J. This is an appeal from a decree of the circuit court of Albemarle county, rendered on the twenty-sixth of May, 1885, in the suit brought by James M. Smith and T. T. Norman against B. C. Flanagan, S. G. White, 0. Rierson, trustee, N. M. Page, T. L. Michie, and L. D. Hanckel, as assignees in bankruptcy of B. C. Flana-gan, J. A. Profitt, and his assignee in bankruptcy, J. L. Cochran, and Putney & Watts, and other judgment creditors of J. A. Profitt, and in the cross-suit brought by J. L. Cochran, as such assignee, against J. M. Smith and all of the other parties in the original suit and Mary J. Profitt, wife of J. A. Profitt.

The original bill was filed October 6, 1876. It alleges that complainants Smith and Norman, on the thirtieth of June, 1873, purchased from defendants Flanagan and White a house and lot in Charlottesville, known as "Point's Property, " and afterwards as "Virginia House, " for $6,250, payable as follows, to-wit, a negotiable note, payable at 60 days, $2,083.33, and three bonds, each for $1,388.89, payable to the vendors in one, two, and three years, with interest at 8 per cent., payable semi-annually; that in this transaction Flanagan acted for himself and White; that, by deed of the date of the sale, the vendors and their wives conveyed the property to complainants, who conveyed same to 0. Rierson in trust to secure the note and bonds; that they paid the note and two of the bonds, and held an account against Flanagan for $66.33 as a set-off against the third bond, which they learned was held by N. M. Page; that, when they purchased they had no intimation that anyone set up any claim to the property; that, since the payment of all the purchase money, they had heard that J. A. Profitt claims some interest therein by virtue of a secret understanding with their vendors; that said Profitt was adjudicated a bankrupt, August 31, 1871, and J. L. Cochran ap. pointed his assignee; that prior thereto several creditors got judgments against him, and claim that they have liens on Profitt's interest in the property; that Page was about selling the property to pay said last bond, and said creditors to litigate their rights; that complainants had always been ready to pay the last bond, less their said set-off, but want the subjection of the property restrained until the rights of the claimants are judicially determined, and all clouds removed from the title, to which end they invoke the aid of equity; and they pray that said defendants be required to answer; that Page and Rierson be restrained as aforesaid; that the conflicting claims of Page and of Profitt's creditors be determined; that complainants be allowed to pay into court the amount of the last bond, less their said set-off; that all the claims of those parties be added to that fund to be disposed of as the court thinks proper; and that they have general relief in the premises.

The injunction was granted as prayed for, and the cause was duly matured. Cochran, assignee, answered, averring that he and D. Wood, as agents, sold this property, March 11, 1869, to Flanagan and White for $4,428.56, payable $150 cash, $1,643.46 September 1, 1869, $1,333.08 January 1, 1870, and $1,302.04 January 1, 1871; that he was informed by J. A. Profitt that Flanagan and White purchased for him; that he was to pay them $500 bonus; and that the rents to accrue, and the payments made by himself, were to go to Flanaganand White till they were fully paid; that on the day of the sale Flanagan drew up, and Profitt signed and left with him, a written memorandum of their agreement; that the $500 bonus was paid at once; that Profitt took possession at once, remodeled the house, and built a large stable, at the cost, in all, of about $2,000; that the property was then rented out, and the notes for the rent turned over to Flanagan and White as payments on the property; that in 1873 Profitt tried to sell the property to Smith, and referred him to respondent as his assignee, who told him how the property was held, that is by Flanagan and White as purchasers, with an equitable title in Profitt, (then in respondent, as assignee,) under his contract with Flanagan and White, and that, by respondent's uniting with Flanagan and White, and Mrs. Profitt's releasing her dower claim, a good title might be made; that the purchase money, over what Profitt owed Flanagan and White, must be paid to respondent as Profitt's assignee in bankruptcy, and that he would see Flanagan about Smith's offer; that, upon Flanagan and respondent meeting Smith, the sale was made to Smith and Norman at the price of $6,250, payable, and the property conveyed and the purchase money secured, as stated in their bill; that, as respondent knew that Profitt owed Flanagan and White as much as the cash payment, he consented that Smith pay that payment to them, but told Smith that his other payments must not be paid until the amount due from Profitt to Flanagan and White was ascertained; that from then till the fall of 1875 he had tried in vain to get Flanagan to settle; that, when the deferred payments were maturing, he warned Smith not to make payment to Flanagan and White, as he claimed the residue; that yet Smith and Norman did make all their payments to Flanagan and White, except the last bond; that, when he last reminded Smith of his warnings, Smith said he remembered them, but thought that, as Flanagan and White were wealthy, he ran no risk in paying them; and respondent prayed that an account be taken as to how much Profitt owed Flanagan and White at the time of the sale by them to Smith and Norman, to-wit, June 30, 1873, and as to the excess of payments by Smith and Norman over that indebtedness, and that such excess be paid to respondent as assignee; and that, if they failed to refund that excess, Smith and Norman be required to pay it; and also that an account be taken as to how much of such excess...