Bank of Chatham v. Arendall
| Decision Date | 10 September 1941 |
| Docket Number | Record No. 2404. |
| Citation | 178 Va. 183 |
| Parties | THE BANK OF CHATHAM v. O. H. ARENDALL. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Holt, Gregory, Eggleston and Spratley, JJ.
1. CONFESSION OF JUDGMENTS — Form — Substantial Compliance with Statute Sufficient — Case at Bar. — In the instant case, an action on a note confessed in judgment, the judgment debtor contended that the judgment was not confessed and executed in the form prescribed by subsection (d) of section 6130a of the Code of 1936. The confession in question contained the following essentials prescribed by the statute: There was a confession of judgment in favor of the designated plaintiff; such confession was for an exact sum of money with interest thereon at a specified rate from a specified date until paid, and the costs of the proceeding; there was a statement that it was based upon an instrument waiving the homestead exemption; the date and time of the confession was stated; and it was signed on behalf of the judgment debtors by the attorney in fact named in the note. The form of the confession in question failed to comply with the statutory form in the following particulars: (1) The name of the clerk's office wherein the confession was made was not stated; (2) it failed to "acknowledge" that the debtors were "justly indebted to" the named creditors; and (3) the seals following the debtors' signatures were omitted.
Held: That the form of confession was substantially the same as that set out in the statute and the variations therefrom did not invalidate such confession.
2. WORDS AND PHRASES — "Substantial." — Substantial means "important"; "essential"; "material."
3. CONFESSION OF JUDGMENTS — Power of Attorney to Confess — Presumption that Agent Performed Duty as Authorized. — Where a power of attorney authorizes the attorney in fact to confess judgment in the clerk's office, while such authority must be strictly pursued, in absence of proof to the contrary the presumption is that the agent performed his duty in the authorized manner.
4. CONFESSION OF JUDGMENTS — General Consideration — Acknowledgment that Debt Is Justly Due. — A confession of judgment is substantially an acknowledgment that the debt is justly due.
5. SEALS AND SEALED INSTRUMENTS — Effect of Sealing — Gives Solemnity to the Act. — Affixing a seal to a signature to a deed gives solemnity to the act.
6. SEALS AND SEALED INSTRUMENTS — Effect of Sealing — Imports Consideration for Promise Embodied in Instrument. — At law a seal imports a consideration for the promise embodied in the instrument.
7. CONFESSION OF JUDGMENTS — Power of Attorney to Confess — Need Not Be under Seal in Absence of Statute. — In the absence of statutory requirement a power of attorney to confess judgment need not be under seal.
8. CONFESSION OF JUDGMENTS — General Consideration — Need Not Be under Seal in Absence of Statute. — In the absence of statutory requirement a confession of judgment need not be under seal.
9. CONFESSION OF JUDGMENTS — Form — Effect of Failure of Debtors to Affix Seals to Signatures — Case at Bar. — In the instant case, an action on a note confessed in judgment, the judgment debtors contended that the judgment was not confessed and executed in the form prescribed by subsection (d) of section 6130a of the Code of 1936, and in particular that such confession was invalid because the judgment debtors had not affixed their seals thereto. The debt was due and the note was executed under seal and the confession was signed by the attorney in fact of the judgment debtors in the presence of the clerk of court.
Held: That there was no merit in the contention of the judgment debtors since authentication of their signatures was not necessary and the note executed under seal furnished the necessary consideration. Therefore, since the addition of seals to the debtors' signatures would have added nothing to the confession of the judgment, their omission in no way detracted therefrom.
10. CONFESSION OF JUDGMENTS — Form — Failure of Clerk to Sign Certificate of Confession — Case at Bar. — In the instant case, an action on a note confessed in judgment, it was contended that the clerk's certificate of confession was defective because it was not signed by the clerk as required by subsection (e) of section 6130a of the Code of 1936. The endorsement of the clerk immediately following the confession contained all of the other essential requirements of the statute.
Held: That the failure of the clerk to sign the certificate did not invalidate the judgment, since his duties in connection with the entry and recordation of a confessed judgment are directory only and not mandatory.
Error to a judgment of the Circuit Court of Pittsylvania county. Hon. J. T. Clement, judge presiding.
The opinion states the case.
W. G. Vansant and Carrington Thompson, for the plaintiff in error.
H. T. Clement, for the defendant in error.
This writ of error presents for review a final judgment sustaining the motion of O. H. Arendall to quash an execution issued upon a judgment purporting to have been confessed by him and T. S. Arendall in the clerk's office of the Circuit Court of Pittsylvania county on September 7, 1926, in favor of Gammon Grocery Company, Inc., and by it assigned to The Bank of Chatham. The lower court upheld the contention that the confessed judgment failed to comply with the statute (Acts 1922, ch. 440, p. 765, Acts 1923, Ex. Sess., ch. 162, p. 201, and as further amended by Acts 1926, ch. 448, p. 744,1 was therefore void, and that no execution could be issued thereon.
The pertinent provisions of the governing statute are copied in the margin.2
On September 6, 1926, O. H. Arendall and T. S. Arendall signed and sealed a homestead waiver note in the sum of $1,857.65, payable on demand to the order of Gammon Grocery Company, Inc. Embodied in the note was a statement or declaration to the clerk of the Circuit Court of Pittsylvania county that the makers were "justly indebted to Gammon Grocery Co., in the sum of $1,857.65, with interest thereon from date, as to which debt we hereby waive the benefit of the homestead and all other exemptions; and do hereby constitute and appoint Frank Marshall true and lawful attorney in fact, and with full power and authority hereby given to appear before you in your said office and for us to confess judgment before you therein against us in favor of the payee of this note, or assigns, for said sum of money with interest thereon from date until paid, together with the cost of confessing and entering up said judgment."
On September 7, 1926, the clerk of the court issued process in proper form against the makers of the note summoning them to appear at the first October 1926 rules to answer an action of debt instituted against them by the payee in the note for the said sum of money.
The following endorsement was then made on the back of the process:
There was also endorsed on the back of the process in the handwriting of the clerk the following unsigned memorandum "Gammon Grocery Co. Inc. "Arendall, O.H. &c.
To 1 Oct. Rules, 1926 "1926 Sept. 7 at 2 o'clock P.M. Judgment Confessed.
The clerk then entered in a book designated as "Clerk's Order Book of Judgments Confessed No. 1, at page 163," the following order: "Virginia:
Original execution was issued on the judgment on September 7, 1926, and was returned "No effects." Subsequently the Gammon Grocery Company, Inc., assigned the judgment to The Bank of Chatham, which had an alias execution issued thereon August 19, 1940, returnable to the second Monday in November, 1940. It is the final judgment quashing this execution which is now before us.
The first contention of the judgment debtor is that the judgment is not confessed and executed in the form prescribed by section (d) of the statute.
1, 2 It will be observed that this section provides that the clerk shall require the debtor or his attorney in fact to "sign a confession of judgment, which shall be in form substantially as follows". (Italics supplied.) Then follows the prescribed form. The question is, whether the form of confession...
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