Bowman v. Diskey
| Decision Date | 19 November 1908 |
| Citation | 108 Va. 678,62 S.E. 942 |
| Parties | BOWMAN. v. DISKEY. |
| Court | Virginia Supreme Court |
1. Appeal and Error (§ 1035*)—Harmless Error—Form of Remedy.
Proceedings having been instituted to enforce a vendor's lien to secure purchase money bonds, a special receiver was appointed with petitioner as his surety, and the land was sold and bonds were executed in part payment, and the receiver was authorized to assign the bonds for cash, which he purported to do, and thereafter, the receiver being in default, his surety petitioned to have the purchaser of the bonds from the receiver account for the purchase price, alleging that they were assigned without payment in full, the purchaser and receiver being made parties, and the former was adjudged liable for a certain sum on the bonds. Held, that the granting of the relief against the purchaser, on petition in the vendor's lien proceedings, instead of on an original bill, even if error, was not prejudicial to the purchaser under the circumstances; he having had an opportunity to meet the issues as to his liability as fully as upon an original bill.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4031; Dec. Dig. § 1035.*]
2. Receivers (§ 217*) — Sale — Payment by Purchaser—Evidence.
On a petition by a surety of a special receiver appointed in vendor's lien proceedings to compel an accounting by the purchaser of bonds from such receiver which he was authorized by the court to sell, the evidence held to show that the purchaser paid a part of the purchase money of the bonds to the receiver on the understanding that he was to receive it back in payment of a personal indebtedness of the receiver.
[Ed. Note.—For other cases, see Receivers. Dec. Dig. § 217.*]
3. Receivers (§ 2172-*)—Sale—Liabilities of Purchaser.
In a suit by the surety of a special receiver appointed in vendor's lien proceedings and authorized by the court to sell a purchase money bond for cash against the purchaser of the bond to compel an accounting for the purchase price, the receiver being in default, and the surety claiming that the purchaser did not in fact pay cash for the bond, the purchaser from the receiver was entitled to credit for checks given the receiver and actually paid, but was liable for a purported payment thereon, which was applied to a personal debt due him from the receiver.
[Ed. Note.—For other cases, see Receivers, Dee. Dig. § 217.*]
4. Receivers (§ 212*)—Liabilities on Bond.
A surety of a special receiver appointed in vendor's lien proceedings, and authorized by the court to sell purchase-money bonds, became responsible for a proper accounting of the money received therefor by such receiver.
[Ed. Note.—For other cases, see Receivers. Dec. Dig. § 212.*]
Appeal from Circuit Court, Rockingham County.
Action to foreclose a vendor's lien by Robert Liskey against the Harrisonburg Mineral & Development Company, in which Robert Liskey, as surety for a special receiver appointed therein, intervened and filed a petition against Joseph M. Bowman to compel him to account for certain funds which were payable to the special receiver. From a judgment for intervener, Bowman appealed. Affirmed.
O. B. Roller, Mr. Martz, and Conrad & Conrad, for appellant.
Sipe & Harris, for appellee.
The question in this case involves the liability of a special receiver of the court and those dealing with him for the devastavit of funds under the control of the court.
It appears that in 1891 Andrew Bazzle sold a tract of land to the Harrisonburg Mineral & Development Company at the price of $10,000, receiving in payment $500 cash; the residue being evidenced by deferred purchase-money bonds secured by a vendor's lien on the land. Default being made by the company, Robert Liskey, the assignee of one of the deferred bonds for $1,000 due October 2, 1892, instituted a suit in chancery to enforce the vendor's lien securing the payment of the deferred purchase-money bonds mentioned, and thereafter such proceedings were had that on the 23d day of October, 1894, a decree was entered wherein Winfield Liggett and E. S. Conrad were appointed special commissioners to sell the land.
Granville Eastham, who was counsel for Liskey in the chancery suit, having died, he was succeeded by Liggett prior to the decree last mentioned, who on the 5th day of April, 1895, executed bond as special receiver in the sum of $8,000, in which the said Robert Liskey became his surety. Thereafter payments were made to Liggett as receiver, and subsequently the decree of sale was executed and Andrew Bazzle became the purchaser of the land on the 10th day of March, 1901, at a sum sufficient to cover the then outstanding liens, paying $200 cash to the receiver, and executing three bonds, each in the sum of $1,400.
This sale was confirmed by decree entered in May, 1901, and the case was referred to a commissioner to settle the accounts of Liggett as special receiver, and to report to whom the funds were payable. The commissioner, acting under this decree, on the 30th of October, 1901, filed his report, and on that day a decree was entered reciting:
On the 10th of April, 1903, the cause was again referred to a commissioner, with direction to ascertain and report what funds there were in the cause, and how the same should be disbursed; and Liggett being in default as receiver, as appears by a subsequent decree of May 25, 1904, he was directed to turn over to the general receiver of the circuit court the Bazzle bonds not assigned by him, and to settle his accounts as such special receiver; Liggett at the same time resigning as receiver.
On August 1, 1904, Robert Liskey filed his petition in the cause, reciting, among other things, that portion of the decree of October 30, 1901, which authorized the assignment of the Bazzle bonds "to any person who will cash the same for its face value and interest to the date of said assignment, " and charging that what purported to be an assignment of one of the bonds to one Jos. M. Bowman was made without Bowman having paid to Liggett the amount due in cash on the bond at the date of the assignment, and that thebond was delivered to him without receiving the amount due thereon in cash, as Liggett was alone authorized to do under the decree. The petition further recited that the petitioner Liskey, was not fully advised as to the details of the transaction between Bowman and Liggett, but charged that Bowman did not pay the cash on the assignment and delivery of the bond, etc. Reference was also made to the decree of April 10, 1903, which directed Liggett to settle his accounts as receiver before commissioner Bryan, and that this account had not been reported; and the charge of the petition is that, under the circumstances of the transaction and the facts connected with the alleged transfer of the bond to Bowman, Bowman is bound to account for and pay to such persons as the court may direct the amount due on the bond at the date of the assignment, with interest on the principal sum of $1,400 to date of payment, to the end that the fund in the cause might be properly received and applied to the parties entitled thereto; it being further alleged that Liggett was insolvent, and that whatever liability there was upon him would doubtless have to be made good by the petitioner, Liskey. Bowman, Liggett, Ed. S. Conrad, and Andrew Bazzle were made parties defendant to the petition, and the prayer is "that all proper accounts may be ordered and taken on this petition; that your petitioner may have a decree requiring the said Joseph M. Bowman to account for and pay to such person as this court may direct the amount due on said bond for $1,400, with interest thereon from its date."
While Liggett never answered the petition or settled his account as receiver, he turned over to the general receiver, Sipe, the two unassigned bonds which had been in his hands, and therefore the controversy here relates only to the bond which he assigned to Bowman.
Liggett died on the 16th day of February, 1905, without making the settlement of his accounts required by the decree of court referred to, but his personal representative, J. Frank Blackburn, appeared before Commissioner Bryan, and the account of Liggett was then settled, from which it appears that he was indebted to the fund as of the 10th of June, 1905, in the sum of $1,810.15, of which $1,484 purported to have been received on March 10, 1902, from Bowman as the assignee of the first deferred purchase-money bond of Andrew Bazzle. Out of this balance due by Liggett, there was payable to Reuben Armentrout $781.16, to Robert Liskey $773.36. and to Mrs. Miller a certain named sum.
The cause coming on again to be heard on the 18th day of May, 1905, upon Commissioner Bryan's report and the settlement of the accounts of Liggett made by Blackburn, his personal representative, the report was...
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