Evans v. Rice

• Decision Date: 09 June 1898
• Citation: 96 Va. 50,30 S.E. 463
• Parties: EVANS. v. RICE et al.
• Court: Virginia Supreme Court

30 S.E. 463

96 Va. 50

EVANS.

v.RICE et al.

Supreme Court of Appeals of Virginia.

June 9, 1898.

Usury—Evidence—Purchase-Money Notes—Interest—Covenants against Incumbrances—Effect.

1. Usury must he proved by a clear and satisfactory preponderance of the evidence; and where a bond reserving 8 per cent. interest was given as evidence of part of the price of lands, secured by deed of trust of them, and the testimony as to whether the face of the bond and interest represented a part of the price was conflicting, a finding that the transaction was not usurious would not be disturbed.

2. A bond for the payment of a sum of money at a future date, which lawfully reserves more than legal interest, hears the same interest after maturity as before.

3. A husband conveyed land to the wife, with covenant that she was to hold it free from liability under a mortgage thereon, and that he would satisfy such mortgage out of the proceeds of another tract that he had previously sold. Held, that the covenant in the deed did not operate as an assignment of, or a lien on, such proceeds.

Appeal from circuit court, Prince Edward

county.

Bill by E. L. Evans against W. D. Rice, trustee, and others, to enjoin a trustee's sale. Decree for defendants, and plaintiff appeals. Affirmed.

A. L. Holladay, for appellant.

J. P. Fitzgerald, for appellees.

KEITH, P. The facts of this case are as follows: In 1875 F. H. Scott and A. J. Davis purchased of C. C. Farley "lot No. 90" in the town of Farmville, Va., at the price of $3,500, and received from him a deed. On September 1, 1875, when the con-veyance to them was made, Scott and Davis paid $500 in cash, and executed their bond for the remaining $3,000 of the purchase money, in the following words:

"$3,000. Farmville, Va., Sept 1, 1875. Three years after date, we promise and bind ourselves, for value received, to pay to 0. C. Parley the just and full sum of three thousand dollars, with interest at the rate of eight per cent. per annum, payable annually. As witness our hands and seals. [Signed] A. J. Davis. [Seal.] [Signed] F. H. Scott. [Seal.]"

The payment of this bond was secured by a deed from Scott and wife and Davis and wife to W. D. Rice, trustee, of date September 1, 1875, upon lot No. 90. In August, 1889, Scott and Davis sold and conveyed the Farmville Mills property to the Farmville Mills, a corporation, for $20,000, of which $8,000 was paid in cash, and for the residue of the purchase price the Farmville Mills executed to Scott and Davis eight notes, of $1,500 each, payable in from one to eight years after August 13, 1889. The record is silent as to the form of these notes. Anna D. Scott, the wife of F. H. Scott, united in the deed to the Farmville Mills Company under an agreement that she should be compensated for the relinquishment of her contingent right of dower. In pursuance of this agreement, on the 24th day of August, 1889, Scott and Davis and Mrs. Davis conveyed to Anna D. Scott lot No. 90, to be held by her as her separate estate. The deed declares upon its face that it was "for and in consideration that the said Anna D. Scott, who is the wife of said F. H. Scott, has, by uniting in a deed with the parties of the first part unto the Farmville Mills, relinquished her rights to dower in the property thereby conveyed, and in consideration, further, that she has, by a deed of even date herewith, along with her said husband, conveyed all of her interest in a certain house and lot, wherein she now resides, and in a portion of another lot, more fully described in said deed."

This deed also contains a covenant In the following terms: That Anna D. Scott is to hold the property conveyed to her "free from liability to be sold under a deed of trust to William D. Rice made to secure a debt to C. C. Farley for the purchase money, which said debt the said F. H. Scott and A. J. Davis covenant and agree shall be fully paid off and satisfied out of the proceeds of the sale to the Farmville Mills, and the said property released unto the said Anna D. Scott from the lien of said debt, and that all other liens on said property shall be paid off and satisfied by them, the said F. H. Scott and A. J. Davis, so that the said Anna D. Scott shall hold the property hereby conveyed free from any and all liens or incumbrances whatsoever."

On the 24th of September, 1889, Anna D. Scott borrowed $2,000 of the Planters' Bank of Farmville, Va., for which she gave a note drawn by John D. Scott, payable to her own order, and by her indorsed, and also indorsed by E. L. Evans, who claims to have been, and doubtless was, an accommodation indorser. This note was secured by a deed from Anna D. Scott and F. H. Scott, conveying lot No. 90 to T. L. Morton as trustee; and E. L. Evans claims that he was induced to become an indorser upon the note, believing that the interest of Mrs. Scott in lot No. 90 constituted an ample security for its payment; relying as he did upon the covenant of Scott and Davis to protect Mrs. Scott's title in lot No. 90 out of the proceeds of sale of the Farmville Mills property. Large payments were from time to time made upon the bond of $3,000 to C. C. Farley, and also upon the note of $2,000 held by the Planters' Bank. In obedience to directions given them by the holders of the bond and note secured in the respective deeds to them, W. D. Rice, trustee, and Morton, trustee, advertised lot No. 90 to be sold on September 26, 1894, to satisfy an alleged balance on the Farley bond of $1,-084.70, with fnterest on $1,061 thereof from March 10, 1890, and an alleged balance on the $2,000 note held by the Planters' Bank of Farmville of $1,491.66, with interest from March 24, 1890.

E. L. Evans, the indorser on the note held by the Planters' Bank, filed his bill In ...