Ashworth v. Trammbll

• Decision Date: 16 June 1904
• Citation: 102 Va. 852,47 S.E. 1011
• Court: Virginia Supreme Court
• Parties: ASHWORTH et al. v. TRAMMBLL.

47 S.E. 1011

102 Va. 852

ASHWORTH et al.

v.TRAMMBLL.

Supreme Court of Appeals of Virginia.

June 16, 1904.

estoppel—set-off—decree — final — debt-ob's right to satisfy—costs—interest.

1. Circumstances which do not mislead one to his prejudice do not create an estoppel in his favor.

2. A losing party is properly required to pay the costs of the litigation.

3. A purchaser of judgments against a person who died subsequent to the date of their rendition is not entitled to have them allowed against a demand due from the purchaser to the decedent arising out of a purchase of property, and secured by a lien thereon.

4. A decree confirming a sale of property to enforce a lien of a deed of trust to the creditor therein, as purchaser, which adjudged that the cash payment should be paid to prior lienors, which, after providing for costs, credited the balance of the price on the debt of the creditor in the deed, which gave a decree against the debtor for the residue, which appointed a commissioner to convey the land to the purchaser, which directed a writ of possession to issue, and which extended to the debtor the privilege of filing an upset bid in 30 days, is a final decree, speaking from the day of its rendition, subject to become inoperative on the debtor availing himself of the privilege given him.

5. As a general rule, interest will not be allowed on amounts recovered as costs.

¶ 5. See Costs, vol. 13, Cent. Dig. § 578.

6. A decree adjudging that a debtor is indebted to the amount therein stated, and directing a sale of property subject to a lien for that amount, which is suspended for 60 days to allow time for an appeal therefrom, gives the debtor 60 days in which to satisfy the demand of his creditor and thus obviate a sale of the property.

Appeal from Corporation Court of Bristol.

Suit by one Trammell against M. J. Ash-worth and others. From a decree for complainant, defendants appeal. Modified.

John W. Price and A. H. Blanchard, for appellants.

H. G. Peters, W. H. Sutherland, A. B. Whitaker, and Bailey & Byars, for appellee.

KEITH, P. This is a sequel to the case of Trammell v. Ashworth et al., which was decided by this court in June, 1901, and is reported in 99 Va. 646, 39 S. E. 593. The cause was remanded to the corporation courtof the city of Bristol to ascertain the liens upon certain real estate, and to its decree upon that subject this appeal was allowed.

The first error assigned is to the lien reported in favor of the administratrix of Rives Walker for the sum of $316. This debt had its origin in a note given for the purchase of property by Mrs. M. J. Ashworth to Rives Walker, who assigned one-half of it to William H. Trammell to pay a debt due him of $350. There was an arrangement between Trammell and M. J. Ashworth, the debtor, with respect to one-half of this note; but there is no evidence that the balance due Walker after the payment of his note to Trammell had ever been paid by any one, and the commissioner was fully justified in finding it to be a valid and subsisting obligation.

The circumstances relied upon by M. J. Ashworth as creating an estoppel with respect to the collection of that half of this demand which was not actually paid by her is wholly without merit, as she has been in no degree misled to her prejudice.

Nor is there any merit in the contention that there is no pleading by Walker or his administratrix upon which relief can be given them with respect to this debt. Rives Walker offered to file an amended and supplemental answer and cross-bill, but the court very properly declined to allow him' to do so, because under the pleadings and decrees in the cause as it stood, all the rights of Walker or his administratrix could be settled and reported upon by the commissioner.

Nor is there any merit in the contention of M. J. Ashworth with respect to the imposition of costs. She was the losing party, and was properly required to pay the cost of the litigation.

It is assigned as error that certain judgments against Rives Walker which had been assigned to M. J. Ashworth were not allowed her as set-offs against the judgment in favor of Rives Walker reported in this cause.

When a party relies upon this plea, the set-off must be in such a condition and of such a character as that the court may appropriate it to the demand. Now, when these judgments were assigned, Rives Walker was dead, and his estate had passed into the hands of his administratrix. His creditors were only entitled to be paid upon a settlement of the estate, and that could not be done in this suit. Nor would it be reasonable or just to delay the parties to this litigation, to await the termination of an independent suit brought for the administration of Rives Walker's estate, and for the ascertainment of the amount which his creditors, upon a settlement, would be entitled «o recover against his administratrix. The Idea of having such a settlement in this suit •cannot for a moment be entertained. The inconvenience and delay would be intolerable.

In Robinett's Adm'r v. Mitchell et al., 101 Va. 762, 45 S. E. 287, it was held that where a creditor comes In under an order for an account of debts against a decedent's estate, and proves a debt upon which a third person is jointly bound...