Gtnter v. Breeden 1

• Decision Date: 08 March 1894
• Parties: GTNTER v. BREEDEN et al.1
• Court: Virginia Supreme Court

19 S.E. 656

90 Va. 565

GTNTER

v.BREEDEN et al.¹

Supreme Court of Appeals of Virginia.

March 8, 1894.

Sale op Land—Bond for Price—Enforcement bt Assignee—Evidence—Declarations bt Assignee—Competency op Witness.

1. B. and H. exchanged land in 1859, bonds being given by B. to make up the difference in value between the tracts, which exchange was evidenced by a written contract. H. sold the tract he received to G. and M., taking bonds of the latter in payment. No deeds were ever given by any of said parties. H. assigned a portion of said bonds before maturity to plaintiff. Two years after said exchange, H., G., M., and B.'s widow, as was alleged, undertook to rescind said exchange and sale, and cancel the bonds given therefor. H. received his former land back, and put L. in possession upon condition that he pay or assume B.'s bonds, and B.'s widow took possession of his former tract, but in neither case did H., B.'s widow, G., or M. take care of the interest of the assignee of said bonds. Held, that said assignee could subject H.'s former property to the lien of the bonds given by B., and the tract originally belonging to B. to the bonds of G. and M.

2. The acknowledgment of an assignor of a chose in action, either verbally or in writing, that he had been paid his debt, Is no evidence against the assignee, unless it was made before the assignment, and the burden of showing the priority of such an acknowledgment rests on the debtor; the date of the receipt not being of itself sufficient evidence to discharge this burden.

3. The obligor and obligee of a bond being dead, their declarations concerning it cannot be proved by the assignee of said bond, and his incompetence disqualifies opposing parties in interest from similar proof.

4. A woman whose husband Is tenant by curtesy initiate of her property cannot testify in a suit in which his interest in said property is involved.

Appeal from circuit court, Rockingham county.

Bill by John E. Roller and others against George W. Breeden and others. Bill by same complainants against William Breeden's administrator, and others. Decree for defendants, and complainant Ginter appeals. Reversed.

John E. Roller, for appellant.

Sipe & Harris, for appellees.

PAUNTLEROY, J. This Is an appeal from a final decree of the circuit court of Rockingham county, rendered on the 28th day of October, 1890, in two chancery causes therein pending, and heard together, of John E. Roller and others, complainants, against George W. Breeden and others, defendants, and John E. Roller and others, complainants, against William Breeden's administrator and others, defendants. It appears from the record that on the 16th day of March, 1859, William Breeden was the owner of 500 acres of mountain land in Page county, Va., and on the same day Simeon I. Harnsberger was the owner of a tract of 244 1/2 acres of land in Rockingham county, Va. On the said 16th day of March, 1859, the said William Breeden and Simeon I. Harnsberger made a trade or exchange ol the said tracts of land, by the operation of which exchange William Breeden became the owner of the 244%-acre tract in Rockingham county, and Simeon I. Harnsberger became the owner of the 500-acre tract in Page county. The 244 1/2-acre tract, which had belonged to Simeon I. Harnsberger, being far more valuable than the 500-acre tract which had belonged to William Breeden, the said William Breeden agreed to pay boot money, and duly executed and delivered his several bonds to Simeon I. Harnsberger for installments of said boot money, reciting in said bonds the consideration as being for land purchased by him of the said S. I. Harnsberger. These bonds were as follows: One for $110, due April 14, 1860, with interest from date; one for $146.60 1/2. due April 14, 1861, without interest till due; one for $73.33%, due April 14, 1861, without interest till due; one for $220, due April 14, 1862, without interest till due; one for $220, due April 14, 1863, with interest from April 14, 1862; and one for $120, due April 14, 18(14, without interest till due. In addition to these writings obligatory from William Breeden to Simeon I. Harnsberger, the said contracting parties entered into a contract in writing, which recited the exchange of the two tracts aforesaid, describing each of them, and stipulating that the said Simeon I. Harnsberger was, at the time of signing, entitled to a deed for the 500-acre tract of land in Page county; and that, as soon as Breeden had paid the first one of his said bonds, he would be entitled to a deed for the 244 1/2-acre tract in Rockingham county, with retention of vendor's lien for the further payments. This contract in writing was signed and sealed by the said parties on the 16th day of March, 1859. On the 25th day of September, 1860, the said Simeon I. Harnsberger sold the 500-acre tract of land in Page county to George W. Breeden and I. M. Breeden, and took from them four bouds of $66.66 1/2, payable in one, two, three, andfour years, with interest from date, said bonds reciting that they are for land. No formal deeds were executed by either William Breeden to S. I. Harnsberger or S. I. Harnsberger to William Breeden, or from S. I. Harnsberger to George W. Breeden and I. M. Breeden. Of the aforesaid six bonds executed by William Breeden to Simeon I. Harnsberger for boot money, the first three have been paid; of the last three bonds, two, for $220 each, were assigned by S. I. Harnsberger to M. M. Sibert, and by Sibert to petitioner, Ginter; and upon these said first two bonds judgment was rendered in the county court of Rockingham county at the May term, 1868. The remaining bond, for $120, was assigned by S. I. Harnsberger to M. M. Sibert and by Sibert to John E. Roller, and this also remained unpaid. Of the four bonds executed by George W. Breeden and I. M. Breeden to S. I. Harnsberger for the purchase of the 500-acre tract of land in Page county, none have been paid, but were assigned by S. I. Harnsberger to M. M. Sibert, and by Sibert two of these bonds were assigned to petitioner, Ginter, who obtained judgment upon them at. the April term, 1868, of the county court of Rockingham county. The remaining two of the said four purchase-money bonds were assigned by M. M. Sibert to John E. Roller.

Upon the commencement of the late Civil War, the said William Breeden entered the Confederate army, and in the early part of the war he died. Thereupon his widow, who was his second wife, and the heirs, undertook (as the defendants alleged and tried to prove by what the petitioner claims was an incompetent witness, and by illegal and inadmissible testimony) to cancel and rescind the aforesaid contract of exchange of lands between William Breeden, then deceased, and S. I. Harnsberger, the said S. I. Harnsberger consenting to the said annulment and rescission of the said contract of exchange; and upon the payment by John K. Long, or the assumption by him, of the Breeden bonds, the said S. I. Harnsberger placed the said John K. Long in possession of the 244 1/2-acre tract of land in Rockingham county; and at the same time the contract of sale between the said S. I. Harnsberger and George W. and I. M. Breeden for the purchase by them of...