Ashworth v. Cole
| Decision Date | 09 September 1942 |
| Docket Number | Record No. 2561. |
| Citation | 180 Va. 108 |
| Court | Virginia Supreme Court |
| Parties | J. S. ASHWORTH, COMMITTEE FOR CYNTHIA A. POWERS v. A. E. COLE, REED THOMAS, AND LOVE B. ROUSE, TRUSTEE. |
Present, Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.
1. MORTGAGES AND DEEDS OF TRUST — Acceleration Clause — Validity. — The validity of an acceleration clause in a deed of trust is recognized in Virginia.
2. EQUITY — Practice — Hearing on Bill and Answer — Case at Bar. — In the instant case, a suit to set aside a sale made under a deed of trust, appellant asked leave to withdraw the replication, which was granted, and thereupon filed his motion to strike the motion of defendants for insufficiency. The cause was then submitted on the bill, answer, and general replication and the trial court dismissed the bill.
Held: That since no testimony was taken the case must be treated as one heard on bill and answer.
3. ANSWER — As Evidence — Admission of Matters Sufficiently Pleaded. — The effect of treating a case as one heard on bill and answer is to admit the truth of all matters of fact sufficiently pleaded in the answer whether responsive to the bill or whether in confession and avoidance.
4. ANSWER — As Evidence — When Replication Is Filed. — Where a replication is put in and then withdrawn and the parties proceed to a hearing on bill and answer, all the allegations of the answer which are responsive to the bill are to be taken as true unless they are disproved by evidence of greater weight than the testimony of a single witness.
5. MORTGAGES AND DEEDS OF TRUST — Foreclosure — Acceleration — Default in Taxes and Interest — Case at Bar. — In the instant case, a suit to set aside a sale under a deed of trust, appellant contended that the sale was made prior to the maturity of the note secured, while appellees stated that the note had become due under the terms of the deed of trust by reason of the fact that interest and taxes were in default. The deed of trust contained the usual acceleration clause and additional clauses conferring upon the parties the rights, duties and obligations provided by section 5167 of the Code of 1936, which provides for acceleration upon default of payment of interest.
Held: That there was no merit in the contention of appellant.
6. MORTGAGES AND DEEDS OF TRUST — Foreclosure — Sale — Failure of Notice to State Amount of Indebtedness — Case at Bar. — In the instant case, a suit to set aside a sale under a deed of trust, appellant contended that the notice of sale failed to state the amount of indebtedness against the property.
Held: That there was no merit in the contention of the appellant since she knew or was charged with knowledge of the amount of her debt, and it was not necessary for the advertisement to state that amount for the benefit of bidders, and taxes to be assumed were a matter of record and readily ascertainable.
7. MORTGAGES AND DEEDS OF TRUST — Foreclosure — Sale — Effect of Recitals in Deed — Case at Bar. — In the instant case, a suit to set aside a sale made pursuant to a deed of trust, the deed from the trustees to the purchaser contained all of the essential recitals to bring it within the purview of section 6196 of the Code of 1936, providing the effect as evidence of the deed conveying property sold under a deed of trust.
Held: That the recitals constituted prima facie evidence that the sale described therein was regularly made and that the other recitals were true.
8. MORTGAGES AND DEEDS OF TRUST — Foreclosure — Sale — Sale of Lots as a Whole or Separately — Case at Bar. — In the instant case, a suit to set aside a sale of several parcels of land made pursuant to a deed of trust, appellant contended that the parcels should have been offered and sold separately. The description in the deed of trust showed that the parcels adjoined one another with five lots fronting on a street, and that the sixth, an acreage, was at the rear without any right-of-way to a street or public way. The deed of trust did not require that the property be sold in parcels.
Held: That the land was so located that the Supreme Court was not able to say that the trustee violated his discretion in offering it for sale as a whole.
9. MORTGAGES AND DEEDS OF TRUST — Foreclosure — Sale — Setting Aside for Mental Incompetency — Case at Bar. — In the instant case, a suit to set aside a sale of land made pursuant to a deed of trust, appellant contended that the maker of the deed of trust and the note thereby secured was mentally incompetent and unable to protect herself at the time of the sale, but the bill did not claim that she was incompetent at the time she executed the deed of trust.
Held: That the sale should not have been set aside for the reason assigned by the appellant.
10. MORTGAGES AND DEEDS OF TRUST — Foreclosure — Sale — Clerical Error in Notice of Date — Case at Bar. — In the instant case, a suit to set aside a sale of land made pursuant to a deed of trust appellant contended that the notice of sale was misleading because of a clerical error in reciting the date of the deed of trust as February 26, 1929, instead of 1939. The notice contained direct reference to the deed of trust and the book and page where it was recorded. There was no allegation of injury as a result of the mistake.
Held: That there was no merit in the contention of the appellant since the error was immaterial.
11. APPEAL AND ERROR — Scope of Review — Questions Not Raised or Passed in Lower Court — Case at Bar. — In the instant case, a suit to set aside a sale of land made pursuant to a deed of trust, appellant contended that the advertisement improperly required the purchaser to assume payment of unpaid taxes, but the record did not show that the question was either raised or passed upon in the lower court.
Held: That the question could not be considered in the Supreme Court of Appeals.
Appeal from a decree of the Corporation Court of the city of Bristol. Hon. Jos. L. Cantwell, Jr., judge presiding.
The opinion states the case.
J. S. Ashworth, for the appellant.
George M. Warren, for the appellees.
On October 7, 1941, Cynthia A. Powers filed her bill in chancery alleging that until 1939, she was the owner of six tracts or parcels of land in Bristol, Virginia; that on February 22, 1939, she conveyed the property to Love B. Rouse, trustee, to secure a $2,000 note payable to Reed Thomas three years after date; that on August 9, 1941, although the said note was not due, the trustee had improperly advertised and sold the property under the deed of trust; that it had been purchased by A. E. Cole, to whom a deed had been made by the trustee; and that Cole, although he had acquired no valid title to the property at the pretended sale had instituted an action of ejectment to put her out of the property.
She further alleged that the notice of sale failed to state the amount of the indebtedness against the property, and that the several parcels should have been offered and sold separately, at which sale they would have produced a price in excess of $5,000. She expressly disclaimed any charge of fraud against the trustee, but alleged that he failed to make an advantageous sale and that such failure was taken advantage of by the purchaser. She also alleged that by reason of her advanced age and mental incompetency, she was unable to refinance her loan. She prayed that the sale made by the trustee be set aside; that the amount due upon the deed of trust be ascertained; that she be allowed an opportunity to pay off the said indebtedness; that in the event of her default in such payment, a resale be ordered; and that Cole be restrained from prosecuting his action of ejectment against her.
The defendants filed their joint and separate answers denying that the $2,000 note was not due at the time of the sale of the property, stating that the note had become due under the terms of the deed of trust by reason of default in the payment of interest amounting to $240 and taxes amounting to $110. They averred that the sale was properly advertised by due notice as required under the deed of trust; that the trustee had complied with his duty in all respects; and that, in addition, the trustee had, by writing, notified Mrs. Powers on July 8, 1941, that on account of default in the payment of her debt, the beneficiary had requested him to make sale of the property; and that unless she made prior arrangements to satisfy the debt, sale would be made on Saturday, August 9, 1941. A copy of the advertisement of sale was enclosed with the notification.
The answer averred that Mrs. Powers was mentally competent when she executed the deed of trust. It denied that the defendants connived in any way to sell the property at less than its value. It further averred that after the sale and before suit was brought, Mrs. Powers permitted the purchaser to expend a considerable sum of money in improving the property and promised him that she would promptly vacate the premises.
The answer concluded with a denial of all the allegations of the bill of complaint not otherwise...
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