Hale v. Wilkinson

• Decision Date: 30 June 1871
• Citation: 62 Va. 75
• Parties: HALE v. WILKINSON.
• Court: Virginia Supreme Court

62 Va. 75

HALE v. WILKINSON.

Supreme Court of Appeals of Virginia.

June 30, 1871

1. A contract made in August 1863, for the sale of land to be paid for in Confederate currency is a valid contract.

2. A deed or other writing though not stamped, is admissible in evidence; the act of congress not applying to proceedings in State courts. And it seems it is admissible in evidence in the United States courts, unless the omission to stamp it was with fraudulent intent.

3. Specific performance of a contract for the sale of land will not be refused on the sole ground of inadequacy of price unless it is itself evidence of fraud.

4. The inadequacy of price which will operate to prevent the specific performance of a contract, must be inadequacy at the time of the sale.

5. In August 1863, H sold to S certain real estate for $10,000 payable in Confederate money, at three and six months. S did not pay the money when it fell due, but he paid it in November 1863, and during the year 1864, and January 1865; H accepting the money and giving receipts for it. The land was estimated to be worth at the time and since the war, $6,000 in gold; and the value of the Confederate money when paid was in gold $385. Upon a bill by S for specific performance of the contract filed since the war, the only objection to it being that of inadequacy of price, S is entitled to the specific performance of the contract.

This was a suit in the Circuit court of Carroll county, brought in March 1866, by James Wilkinson, against Fielding L. Hale, to enforce the specific execution of a contract for the sale and purchase of land. It appears that on the 14th of August 1863 by agreement under seal, Hale sold to Wilkinson a house and lot, including about fourteen acres of land, for ten thousand dollars, payable in Confederate money, one half to be paid in three, and the other half in six months, from the date.

Wilkinson did not pay all the purchase money as it fell due, but paid it during the months of November 1863, March, May and December 1864, and in January 1865, Hale receiving it, and giving receipts for the nominal amounts paid as so much paid in part of the purchase money.

In September 1865, Hale put Wilkinson into possession of the property, under a written agreement, by which Wilkinson was to rent it; and if it should be determined that Wilkinson was entitled to have the contract executed, then he was not to pay the rent.

Hale in his answer, filed on the day the bill was filed insisted--That the contract, when it was made, was utterly null and void, and in open and plain defiance of law: That the contract wholly failed for want of consideration, which was Confederate money, and, at the time the contract was made, it was a highly penal crime to pass or receive it, and the circulation of it forbidden by law: That the plaintiff did not perform his contract by paying the purchase money when it fell due, but the payments were made long after it was due, and when the money had greatly depreciated, and was in fact worthless: That the receipts were not intended to express the receipt by the defendant of so much of the purchase money as was stated therein; but only so many dollars of Confederate money, to be estimated at the value when it should have been paid; they all express to be " in part payment," or " towards," & c. That his sole object in selling was to remove to Alabama, which was defeated by the delay of the plaintiff in paying the money; though he had removed since the war. That if he had been paid promptly he could have purchased property then that would have suited him. And that the property he sold was worth, in gold, at the time $6,000, for which he had in fact received not more than $425 at the utmost.

There is proof that at the time of the contract, and since the war, the property was worth $6,000 in gold; and that Hale talked of moving South, and was making arrangements to do so about the time of the sale of the property; and that he complained frequently of Wilkinson's failure to make the payments for it. The value in gold of the money received by Hale, at the time of the receipt, a witness fixed from a table in his possession, at $384.982/3.

On the 22d of March 1866, the cause came on by consent to be heard, when the court decreed that Hale should convey the property to Wilkinson; and by a decree of the 24th of August 1866, Hale having failed to make the deed, a commissioner was appointed to do it. And from this decree Hale applied for and obtained an appeal to the late District court at Abingdon; by which court, on the 18th of July 1868, the decree of the Circuit court of the 24th of August 1866 was affirmed. From this decree Hale applied to this court for an appeal, which was allowed.

Richardson and Jno. T. Campbell, for the appellant.

Gilmore, for the appellee.

OPINION

MONCURE, P.

After stating the case, he proceeded:

One of the objections, made to the specific execution of the contract in this case, and the one which seems to have been most relied on in the answer, and in the petition for an appeal to the District court, was, that the consideration was agreed to be paid in Confederate money, the passing and receiving of which is, and was, at the time the contract was made, (the 14th of August 1863), a highly penal crime, and the contract was therefore illegal and void. In the argument of the case before this court, no reliance was placed on this ground, which was not even alluded to, by the counsel for the appellant; for the very good reason, that since it was taken, the course of adjudication, if not of legislation, also, has shown it to be unsustainable.

In the petition for an appeal to the District court in this case, the learned counsel who drew it, remarked: " It might be curious to think how the Supreme court of the United States would regard this case, if it should, as it may go before them." And yet it has curiously happened, that since that petition was drawn, a case very much like this, involving the question of the legality of such contracts, has gone to the Supreme court, which fully sustained their legality. In Thorington v. Smith, 8 Wall. U. S. R. 1, decided by that court in December 1868, it was held, according to the reporter's marginal abstract of the case, that " a contract for the payment of Confederate States treasury notes, made between parties residing within the so-called Confederate States, can be enforced in the courts of the United States, the contract having been made on a sale of property, in the usual course of business, and not for the purpose of giving currency to the notes, or otherwise aiding the rebellion." If such a contract can be enforced in the courts of the United Siates, a fortiori, it may be enforced in the courts of a State which was one of the Confederate States. After this decision, and without refering to the course of legislation and adjudication in this State, the question as to the legality of such a contract, may be considered as settled.

Another objection was much relied on in the said petition, but not alluded to in the argument of the appellant's counsel in this court; and that is, that the agreements and receipts filed as exhibits with the bill, are null and invalid for want of being properly stamped, and ought not to have been used or considered for any purpose in the cause. All, or nearly all of these instruments appear to have been actually stamped. But the objection seems to be, or rather to have been, that they were not " duly stamped; " that is, not by the proper person and at the proper time. Now it happens, in regard to this question also, that the Supreme court of the United States has recently decided, that " the omission of a stamp does not invalidate an instrument, unless the omission was with fraudulent intent. Such omission, if fraudulent, cannot be taken advantage of on demurrer; it must be set up by a special plea, or urged at the trial." Campbell v. Wilcox, decided at December term 1870, and reported in the " Law Times, U. S. court's reports," vol. 4, p. 67. If there was an omission in this case, it was obviously not with a fraudulent intent. Nor was the objection set up by special plea, or even in the answer, which refers to the bill and exhibits filed therewith for proof that the contract is as stated in the answer. But it appears to have been recently held in several cases, that the provision of the act of congress of 30th June 1864, declaring that no instrument required by law to be stamped shall be admitted or used as evidence in any court without being legally stamped, does not include the State courts; and that congress has no power to establish rules of evidence for the State courts. 2 Brightley's Dig., p. 375, note (a), referring to Carpenter v. Snelling, 97 Mass. 452; Hallock v. Jaudin, 34 Cal. R. 167; Beebe v. Hutton, 47 Barb. R. 187; Howe v. Carpenter, 53 Id. 382, and other cases. This objection in regard to stamps is therefore unfounded.

But the defence mainly, if not now exclusively, relied on in this case is, that the question whether there should be a decree for the specific performance of a contract, is one which addresses itself to the sound discretion of a court of chancery under all the circumstances of the case, and that in the exercise of such a discretion no such decree ought to he made in this case. It is true that the specific performance of coutracts, in a general sense, is, as has been said, not a matter of right in either party, but a matter of discretion in the court; not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge but of that sound and reasonable discretion which governs itself, as far as it may, by general rules and principles; but, at the same time, which withholds...