Davis v. Harman
| Citation | 62 Va. 194 |
| Court | Supreme Court of Virginia |
| Decision Date | 12 July 1871 |
| Parties | DAVIS, comm'r v. HARMAN & als. |
1. A commissioner who, under the direction of the court, collects and disburses Confederate money, and, bye order of the court retains the balance, which is in controversy between disputing lien holders, until the rights of the parties are litigated, can not be held personally liable for any loss that may be incurred in consequence of the fund perishing on his hands, by the result of the late civil war.
2. For the principles upon which trustees and other fiduciaries will be held to account for the trust fund, see the opinion of Christian, J.
In 1859 Mary Harman instituted a suit in equity in the Circuit court of Smythe county, to subject the land of her late husband Jezreel Harman, to satisfy a decree for $2,860 and interest made in April 1858, which she had recovered against him. In her bill, after setting out her lien under the decree, she referred to deeds of trust on the lands which were prior liens to hers. The first of these was to Joseph W. Davis, in trust to secure a debt to Peter G. Snavely of $1,962.77, with interest from September 19th, 1843; the other was to secure to V. S. Morgan a debt of $3,000.
The bill having been answered by Snavely and taken for confessed as to the other parties, the court on the 6th of April 1860, made a decree appointing Joseph W. Davis a commissioner to sell the land, upon the terms of a sum in cash sufficient to pay the expenses, and the balance of the purchase money to be payable in twelve, eighteen and twenty-four months. Davis reported that he had sold the land to V. S. Morgan for $11,600. This report was excepted to by the defendant, Harman, and he asked that the sale might be set aside for inadequacy of price. And at the September term, 1860, the cause was continued.
In April 1861 Davis made another report, stating the facts in relation to the sale; and at the April term of that year, the court overruled the exception of Harman, and confirmed the report and sale; and Davis was directed to proceed to collect the purchase money of the land as it would fall due; and that he report his proceedings to the court from time to time.
At the April term of the court for 1863, Davis made his report. He refers to the fact that this was the first regular court held since the rendition of the last decree in the case. He reports that Morgan had paid all the purchase money; and that he had paid Snavely his debt, amounting principal and interest to $4,163; $3,000 of Morgan's debt, and some small sums for expenses, taxes and commissions; and leaving a balance in his hand of $3,847.04, which was on deposit in the Abingdon bank, subject to such order as the court might make. At this time it appears that there were three persons claiming this fund beside Mrs. Harman, viz: Morgan, for the balance of his debt, $1,246.66; John B. Straw, a creditor by judgment for $1,200.27, which was contested, and Thomas M. Tate, under a deed of trust for $474.39; and these claims not amounting to the sum in the hands of Davis, the commissioner, by $925, the court made a decree directing him to pay to Mrs. Harman, out of the balance in his hands, eight hundred dollars; and by another decree, at the same term, he was directed to pay to Morgan the $1,246.66 still due to him.
At the time the foregoing decrees were made, Tate was not a party in the cause; but at the next September term of the court, he was, upon his petition, made a defendant; and he filed his answer setting up his claim.
At the April term 1864, the court appointed a commissioner to convey the land to Morgan, the purchaser. This was the last term of the court held before March 1866. In March 1866, Davis made another report, showing that after the payments to Mrs. Harman and Morgan, and of taxes and commissions, there was a balance of $1,208.88 in Confederate money. He says he was anxious to pay over the balance in his hands at the time of the last decree, but owing to the contest among the creditors he was not able to do so, it not being ascertained to whom said balance should be paid. He paid the sums mentioned in Confederate money, and had the fund on deposit in the bank of Abingdon, and so reported, subject to such order as the court might make, and he still has the amount on hand in Confederate money, though he had felt it his duty under the then existing laws, to invest the fund on deposit in four per cent. Confederate certificates, which he holds subject to the order of the court. This report was excepted to by Tate, on the ground that Davis was not authorized by any decree or order of the court, to receive Confederate money from the purchaser of the land or to invest it.
At this term of the court, a commissioner was directed to ascertain and report upon the priority and amount of liens between Straw, Tate and the plaintiff, and the consideration of the exception to Davis' report was postponed. In July 1866, the commissioner reported in favor of Tate as first entitled to the amount, up to that time, of $505.26; and next to him that Mrs. Harman was entitled.
On the 22d of November 1870, the cause came on to be heard, when the court sustained the exception of Tate to the report of Davis; and Davis was decreed to pay the sum of $1,208.48, with interest from the date of the decree; " not charging him with interest prior to this time, as he was ordered to hold the fund to await the decision of the court:" Tate's debt to be first paid, and the balance to be paid to Mrs. Harman. And from this decree, Davis obtained an appeal to this court. For other facts in the case, see the opinion of Judge Christian.
James W. Sheffey and John A. Campbell, for the appellants.
Gilmore, for the appellee.
The single question presented for our consideration, is whether, under the circumstances of the case, a commissioner, who, under the direction of the court, collects and disburses Confederate money, and by order of the court retains the balance which is in controversy between disputing lien holders, until the rights of the parties are litigated, can be held personally liable for any loss that may be incurred in consequence of the fund perishing on his hands, by the result of the late civil war.
The appellant, as the commissioner of the court, sold the tract of land in the bill and proceedings mentioned, on the 22nd May 1860, for the sum of $11,500, and took from the purchaser three bonds, payable respectively at twelve, eighteen and twenty-four months. This sale was confirmed by the court at its April term 1861, when the court made an order directing the said commissioner " to collect the purchase money for said land as it falls due, and report his proceedings to this court from time to time for its further order," & c.
After the April term 1861, there were no regular courts held in the county of Smythe until 1863, owing to the disturbed condition of the country consequent upon the breaking out of the late civil war. No Circuit court was held between April term 1861, and April term 1863, the judge of that court being in command of a regiment in the service of the Confederate States, and was killed in battle.
At the April term, 1863, the commissioner made his report, by which it appeared that in accordance with the direction of the court he had proceeded to collect the purchase money, and paid out to the parties entitled thereto the sum of $7,422.00, leaving a balance in his hands of $3,847.04, which last named sum he reported to be " on deposit in the Abingdon bank, subject to such orders as the court may make."
Upon the coming in of this report, to which there was no exception, the court on the 6th of April 1863 entered the following decree: " Jos. W. Davis, trustee and commissioner appointed to sell the land of Jezreel Harman, under decree in this court, filed his report showing a balance in his hands of the proceeds of the sale, of $3,847.04, after paying the amount in full of Peter G. Snavely, deed of trust, and to Vincent S. Morgan the sum of three thousand dollars, the date of which payment is not stated, & c., & c., and it appearing by a statement filed in the case, that there is a balance in the hands of said Commissioner Davis of $925.62, after paying all contested liens asserted against the fund; it is adjudged, ordered, and decreed, that the said Jos. W. Davis pay to the complainant or her attorney, out of said balance, the sum of eight hundred dollars on account of her decree; the court reserving the adjudication hereafter, of said contested liens asserted by V. S. Morgan, John B. Straw, and Thomas M. Tate."
The decree, though not formally confirming the report of...
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