Coles v. Withers

• Decision Date: 15 April 1880
• Citation: 74 Va. 186
• Court: Virginia Supreme Court
• Parties: COLES v. WITHERS & als.

74 Va. 186

COLES v. WITHERS & als.

Supreme Court of Appeals of Virginia.

April 15, 1880

In 1852 C sold to M a tract of land for $3,564, for which she took his bond, and reserved a lien on the face of the deed given M, which was duly recorded. Between the sale in 1852 and December, 1855, there were other transactions between C and M, by which the latter became indebted to the former (inclusive of the purchase money for the land) $10,630.50 and for which he executed his bond, with two personal sureties and the bond for $3,564 was surrendered. M died in 1856 leaving his whole property to his wife L, who was a sister of C. L, the widow, soon married W, and in 1863 W and wife conveyed the land purchased of C, with other lands, to H made him a deed and put him in possession. On the 19th of October, 1866, the balance due on the $10,630.50 bond was $4,123, for which W, who was then the representative, and had married the widow of M, gave his bond, got possession of the $10,630.50 bond, and confessed a judgment for the $4,123 in favor of C, which he, W, alleges was in lieu of the bond which he got possession of. W soon went into bankruptcy, and but a small portion of the judgment was paid. C denies the statement of W about his possession of the bond, and there is nothing in the record certainly to show affirmatively that she ever intended to release the lien reserved in the deed to M. H denies all knowledge of the reserved lien at the time of the purchase, and until a long time thereafter. There was nothing done by C to induce H to believe that she had waived her lien, or to influence his conduct in any way. On a bill filed by C against H and W and wife, in 1871, to enforce the lien for the purchase money then due on the land sold by C to M and afterwards by W and wife to H. HELD:

1. The question of whether a lien reserved is surrendered is one of intention, on the part of the vendor, under the circumstances of each case; and there being nothing in this case to show such intention, the lien is not surrendered, and must be recognized as still existing. The lien was a security not for the bond but for the debt, and therefore the cancellation or surrender of the bond cannot extinguish the debt and the lien given for its payment, without a manifest intention to do so by the vendor, and the burden is on the purchaser to show such intention.

2. A mere change of securities of equal dignity is not a novation of a debt, unless plainly so intended by the parties.

3. As to the payments made on the bond for $10,630.50, H insisted that they should be first applied to extinguish the purchase money bond of $3,564, and that was therefore extinguished. HELD: H not being one of the original parties to the bond has no right to insist on how the payments shall be appropriated, that being a right existing only between those parties; and whilst as a rule, where there are two debts, one secured and the other not, the courts will apply the payments to the unsecured debt, yet, as no general rule, applicable to every case, can be adopted without the greatest hardship, if neither party has made the application, the court will exercise a sound discretion, and make the application according to what it deems right and proper in each case; and in this case, the payments should be applied pro rata to all of the debts due to C.

4. Although an action at law on a note given for the purchase money of land may be barred by the statute of limitations, the right of the vendor to resort to the land for payment is not affected by any lapse of time short of that sufficient to raise a presumption of payment. Hanna v. Wilson, 3 Gratt. 232.

5. QUÆ RE: M being dead, was C a competent witness to any fact with reference to the debt of $3,564, or the lien reserved to secure it?

This was a suit in equity in the circuit court of Pittsylvania brought in August, 1871, by Elizabeth D. Coles against Edward D. Withers and Louisa P. his wife in their own right and as executrix and administrator de bonis with the will annexed of John Rice Miller, the former husband of Mrs. Withers, and John W. Holland, to enforce the vendor's lien for the purchase money upon a tract of two hundred and ninety-seven acres of land which Miss Coles had sold and conveyed to John Rice Miller in 1852, and which Withers and wife had sold and conveyed to John W. Holland in 1862.

Holland in his answer averred, that at the time of his purchase he had no knowledge or suspicion of the lien claimed by the plaintiff, and never heard of any such lien or claim until several years after the close of the war. He does not admit that any part of the purchase money of the land is due, and he has been informed and believes that said purchase money has all been paid to the plaintiff, and the alleged lien waived and extinguished; and he denies that the land in his possession or any part thereof, is liable to the complainant in any manner or to any extent; and he refers to the answer of his co-defendant Withers and relies upon the facts therein stated in his defence to this suit.

Withers answered the bill setting out facts, on which he relied to show that the lien on the land had been waived by the plaintiff, and that she had in 1866 accepted his bond and a confession of judgment thereon in satisfaction of her debt.

The undisputed facts are, that in September, 1852, the plaintiff Elizabeth D. Coles sold to John Rice Miller the land in the bill mentioned, at the price of $3,564, and took his bond for this amount payable in September, 1857, with interest payable annually from the 1st of January, 1853. By deed of the 12th of March, 1853, she conveyed the land to Miller, the amount of the purchase money being stated in the deed; and reserved a vendor's lien in the following terms: The said Elizabeth D. Coles hereby expressly agrees with the said John Rice Miller, that she reserves a lien on said land for the payment of the purchase money thereof, and that may thereon accrue, and the said Miller hereby agrees that the said land be bound for the same.

Miller made other purchases from Miss Coles, and a short time before his death which occurred in 1856, he had a settlement with her, when it was ascertained that including the purchase money of the land and interest upon it, he owed to her $10,630.50, for which he executed to her his bond, with Isaac H. Carrington and N. C. Miller as his sureties. By his will he gave his whole estate to his widow, Louisa P., who was the sister of Miss Coles, and appointed her his executrix. In 1859 Mrs. Miller married Dr. Edward D. Withers; and in 1862 they sold and conveyed to Holland a large tract of land, of which the two hundred and ninety-seven acres was a part, for $45,000.

Payments seem to have been made upon the bond of $10,630.50 up to January, 1861, reducing it to $5,242.51; and in 1866, Dr. Withers seems to have had another settlement with Miss Coles, reducing the amount to $4,123, for which he executed his bond to Miss Coles, and confessed a judgment thereon; and at this time she delivered to him the bond for $10,630.50. The circumstances attending the delivery of this bond of $10,630.50 are doubtful, Miss Coles who gave her testimony in the cause, and Dr. Withers differ in relation to it. Her evidence was excepted to by the defendants, and was not considered by this court. That of Dr. Withers is sufficiently stated by Judge Staples in his opinion.

The cause came on to be heard on the 18th of September, 1874, when the court dismissed the bill with costs. And thereupon Miss Coles applied to a judge of this court for an appeal; which was awarded.

Whilst the foregoing case was pending, Holland filed his bill against the infant children of John Rice Miller and their trustee, to subject certain real estate which had belonged to Miller, and had been conveyed by Mrs. Miller before her marriage with Dr. Withers, to a trustee for them, in the event that his land should be held liable for the claim of Elizabeth D. Coles. This cause came on to be heard with the first case, and it being held that the land of Holland was not liable for that claim, Holland's bill was also dismissed.

Ould & Carrington, for the appellant.

R. Robertson, for the appellees.

STAPLES J.

These two cases were heard together in the court below, and the bill in each case dismissed. A decision in one of them however, will settle the main points of controversy; I shall therefore confine myself exclusively to the matters involved in that case. Preliminary, however, to the main question it is necessary to inquire what are the equities of the parties litigant--Miss Coles on the one hand, and Holland, the purchaser, on the other. The latter, in his answer, avers that at the time of his purchase he had no knowledge or suspicion of the lien, and that he never heard of it until several years after the close of the war. At what precise period he obtained this information he does not tell us. Upon this point he is vague and unsatisfactory. It is, however, not very material, because the lien of Miss Coles being secured on the face of the deed under which Holland claimed, constituted notice to him. That deed was matter of record, which he might have examined. It was gross negligence in him not to do so. The object of the statute in requiring the lien to be reserved on the face of the deed, was to make it matter of record, and thus furnish to all persons dealing with the property the necessary information of all liens and incumbrances thereon. Patton v. Hoge, 22 Gratt. 443. It is the duty of the party to examine the records, say the authorities, and whether he does so or not, he will be affected with notice of every fact, the knowledge of which might there have been obtained. When a person cannot obtain a title but by a deed...