Brockenbrough v. Ward's Adm'r
| Decision Date | 09 June 1826 |
| Citation | 25 Va. 352 |
| Parties | Brockenbrough v. Ward's Administrator |
| Court | Virginia Supreme Court |
An appeal from the Superior Court of Law for Essex county.
The administrator of Joshua Ward brought an action of assumpsit for money had and received, against Austin Brockenbrough. The defendant pleaded non assumpsit; and issue joined. At the trial, the defendant tendered a demurrer to the plaintiff's evidence, and moved the Court to compel the plaintiff to join therein; but the Court overruled the motion, and the defendant excepted. The evidence set forth in the demurrer is fully stated in the following opinion.
Judgment affirmed.
Stanard for the appellant.
No Counsel, for the appellee.
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OPINION
This was an action on the case, for money had and received by Brockenbrough, the defendant, for the use of Ward's intestate, the plaintiff in the Court below. On the trial the defendant, Brockenbrough, tendered a demurrer to the testimony, and moved the Court to compel the plaintiff to join therein, which motion was overruled by the Court; to which opinion, the defendant excepted. There was a verdict and judgment in favor of the plaintiff for $ 2,698, from which Brockenbrough appealed to this Court.
It was very fairly and properly admitted by the counsel for the appellant, that if the evidence set forth in the demurrer shews that the plaintiff was entitled to recover in this action, the judgment of the Superior Court must be affirmed.
The case made in the demurrer is substantially this: On the 16th of January, 1810, Austin Brockenbrough, the appellant, and Joshua Ward, the intestate of the appellee, entered into articles of agreement, under their hands and seals, by which Brockenbrough agreed to sell to Ward a tract of land to which he was entitled in right of his wife, for the price of 1,2361. which price, Ward agreed to pay, with interest from the date of the agreement, at two installments, the first of which was to become due on the 1st of January, 1811. It was stipulated that Ward should assign to Brockenbrough, on demand, a good bond for 601. and also three other bonds executed by one Cotterell, due in 1816, 1817 and 1818; which bonds were to be assigned to Brockenbrough as a security for the purchase money of the land: that Brockenbrough and wife were to make Ward a deed for the land, in a convenient time, and Ward was to make Brockenbrough a mortgage on the land, to secure the payment of the purchase money, with the interest thereon. Brockenbrough, moreover, agreed to take slaves at valuation, in payment of the purchase money, as it should become due. Ward was to take immediate possession of the land, and hold it under the agreement. He took possession accordingly; but he left the country in 1811, and has not since been heard of. Brockenbrough re-possessed himself of the land, (at what particular time is not stated,) and sold and conveyed in fee simple to one Healey, at the price of five dollars per acre, being the best price which could then be had for the same; and the wife of Brockenbrough, (who was the owner of the fee,) joined in the conveyance, and has since died. Brockenbrough received the money due on Cotterell's bonds, and on being applied to by Ward's representative some time in 1818, to pay the same, said he would pay it after deducting the loss he had sustained in the second sale, which was three dollars per acre.
The question is, whether Ward's representative is entitled to recover, under the...
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