Brown v. Ford *

• Decision Date: 11 January 1917
• Citation: 91 S.E. 145
• Court: Virginia Supreme Court
• Parties: BROWN v. FORD et al.*

91 S.E. 145

(120 Va. 233)

BROWN

v.FORD et al.^*

Supreme Court of Appeals of Virginia.

Jan. 11, 1917.

Appeal from Chancery Court of Richmond.

Claim by J. Henry Brown against Stewart H. Ford and others, filed in four separate chancery suits relating to the estate of A. J. Ford. From a decree denying relief prayed for, for want of equity, claimant appeals. Reversed and remanded.

Scott & Buchanan, of Richmond, for appellant.

A. B. Dickinson, Abner C. Goode, and W. P. De Saussure, all of Richmond, for appellees.

SIMS, J. The decree of the chancery court complained of was entered on July 2, 1915, in four chancery causes pending therein of short styles: (1) Mary Lucy Ford, Who Sues, etc., v. A. J. Ford et al.; (2) Stewart H. Ford et al. v. A. J. Ford, Trustee, et al.; (3) Estelle Madeline Ford, Who Sues, etc., v. Charles Thompson Herndon et al.; and (4) Mary Lee Benet v. Florence B. Quincey et al.—on the petition of appellant, J. Henry Brown, filed therein on November 14, 1910, on two reports of Commissioner Sheild, one filed June 27, 1912, and the other July 10, 1914, and on the exceptions of Stewart H. Ford and said Herndon to the second of such reports. The material part of that decree was as follows:

" * * * The court being of opinion that the claims of J. Henry Brown asserted in his said petition and reported on in the two above referred to reports of Commissioner Sheild is without equity in the premises, the exception to the report, that the same is without equity, is sustained; and it is adjudged, ordered, and decreed that the said petition be and the same is dismissed, but without prejudice to the right of J. Henry Brown to assert the claim at law"

—followed by a provision decreeing costs against the latter.

There are two assignments of error, namely, that the court below erred:

"(1) In entering the decree aforesaid, dismissing the petition of your petitioner on the above-mentioned exception to the commissioner's report.

"(2) In not entering a decree overruling the exceptions thereto and directing payment of the amounts found to be due to your petitioner by the parties above mentioned, and in default of their so doing directing their payment out of the funds in its charge.

The reports of Commissioner Sheild were made under the following decrees of reference entered in said four causes:

The first of such reports was made under decree of reference entered on February 1,

1912, the substance of which was as follows: "It appearing to the court that the interests

of Mary Lee Benet and Charles Thompson Herndon in the Ford trust estate are incumbered of record, it is adjudged, ordered, and decreed that these causes be referred to one of the commissioners in chancery of this court, who will as soon as possible report to the court the lien debts due by said Mary Lee Benet and Charles Thompson Herndon, or against their interests in the Ford trust estate, in order of their dignity and priority, respectively, and the parties primarily liable, together with any other matters deemed pertinent by the commissioner, or required to be specifically stated by the parties, or any of them. * * * "

The second of such reports was made under decree of reference entered on June 2,

1913, which so far as it related to the claim of appellant recommitted said first report with direction to further inquire and report:

"(1) Whether the debt asserted by said J. Henry Brown in his petition filed herein is payable by any party to this cause, and, if so, by whom and the amount so payable?

"(2) Whether the said claim, or any part thereof, is payable out of any of the funds under the control of this court in this cause, and, if so, what?"

In his second report, which is a very able and exhaustive one, and by which this court is greatly assisted in its consideration of this case, Commissioner Sheild reported, in effect, that appellant had an equitable lien on certain interests in or portions of the said "Ford trust estate, " as follows'.

Item 1. On the interests of Stewart H. Ford, Charles Thompson Herndon, and Mrs. Mary Lee Benet in such estate for the amount of $1,203.50, under the first contract made with appellant, hereinafter more particularly referred to.

Item 2. On the interests of Stewart H. Ford and Mrs. Benet in such estate for the amount of $1,004.00, under the second contract made with appellant, hereinafter more particularly referred to.

Item 3. That as to the other items of his debt, amounting to $291.50, appellant had no lien on any portion of said estate, but that Stewart H. Ford and Mrs. Benet were personally liable to him therefor.

The exceptions to said report by Stewart H. Ford and Charles Thompson Herndon, above referred to, were as follows:

"(1) That said commissioner erred in reporting that a court of equity has, or ever had, jurisdiction of the claim asserted by the petitioner, J. Henry Brown, and should have reported that a court of equity is without jurisdiction of said claim.

"(2) Said commissioner erred in holding that the pleadings are broad enough to include a claim for personal liability against S. H. Ford, when he should have reported that a claim for such personal liability was not within the pleadings.

"(3) Said commissioner erred in holding that there was or is any personal liability on either of the Ford children for petitioner's claim, and should have reported that no such liability existed.

"(4) Said commissioner erred in reporting that any personal liability now exists on said Stewart H. Ford, but should have reported that the liability against him, if any existed, has been fully discharged.

"(5) Said commissioner erred in reporting that the claim asserted by the said petitioner was or is an equitable lien upon the interests of the Ford children, or any of them, and should have reported that said claim was not a lien upon the interests of any of them.

"(0) Said commissioner erred in holding that the alleged promise of Stewart H. Ford to pay the debt of the Ford trust estate was not within the statute of parol agreements, and erred in holding that the paper signed by Stewart H. Ford exhibited in evidence was a sufficient memorandum within the requirements of that statute, and should have reported that said alleged promise was within that statute, and said paper was not sufficient to meet its requirements.

"(7) Said commissioner erred in reporting that said contract set up by petitioner was an entire contract, and should have reported that it was a several (severable) contract, and that such portion thereof as was completed in 1903 was barred by the statute of limitations.

"(8) That said commissioner erred in applying the payment made by Stewart H. Ford in part in the extinguishment of the alleged liability of Mary Lee Benet, when the whole of said payment should have been applied in the discharge of the alleged liability of said Stewart H. Ford.

"(9) Said commissioner erred in making and reporting in the enforcement of a new and different contract from that made by the parties, when he should have reported that the rights of the parties and their liabilities were fixed by the contract as made."

There were two additional exceptions by Stewart H. Ford, in which Mrs. Benet did not join, which were as follows:

"(10) Said commissioner erred in accepting the statement of the petitioner, positively denied by this exceptant, as to the assumption of personal liability for the whole debt, thus ignoring the required burden of proof, and should have reported that said alleged statement and assumption was not sustained by the proof.

"(11) Said commissioner erred in holding S. H. Ford liable to the extent mentioned in said report, when he has already turned over to petitioner $1,200, and should have reported that said sum was a full discharge of his alleged liability."

The petition asserted a debt and an equitable lien as security for the payment of such debt against the corpus of "the Ford estate, " to the amount of $2,559 principal, with interest thereon, for certain material furnished and work done by appellant in and about the Ford family section and A. J. Ford vault in Hollywood cemetery, under contracts or agreements therefor made at different times between appellant and certain of the Ford children entitled in remainder to the corpus of the said estate after the life estate of their mother, Mary Lucy Ford, therein, contingent upon their respectively surviving their said mother.

Of the allegations of this petition it is deemed sufficient to say that it sufficiently alleged in effect:

An express executory agreement, made before the material was furnished or work was commenced contracted for thereby, in March, 1903, between appellant, on the one part, and Stewart H. Ford, B. W. Ford, and Mrs. Mary Lee Benet, on the other part (three of the four Ford children who would be entitled to the whole corpus of said estate in the event they survived their said mother) to make the corpus of said estate a security for "Item 1" of $1,263.50, above mentioned in connection with reference to Commissioner Sheild's second report.

The interests of the Ford children in said estate was then contingent, as aforesaid, and not vested.

(2) An express executory agreement made, before the material was furnished or work was commenced contracted for thereby, in 1908, between appellant, on the one part, and Stewart H. Ford and Mrs. Benet, on the other part (B. W. Ford having meanwhile died), to make the corpus of said estate a security for "Item 2, " of $1,004, above mentioned.

The interests of one-fourth each of three of said Ford children, to wit, Stewart H. Ford, Mrs. Benet, and Mrs. Florence B. Quincey in said estate, being then vested, they having survived their said mother, who died in 1908, prior to this second contract with appellant, of the interest of one-fourth in said estate which would have belonged to B. W. Ford, had he survived his mother, a portion was in 1910 vested in Charles Thompson Herndon under a compromise agreement...