Hudson v. Dismukes

• Decision Date: 15 March 1883
• Citation: 77 Va. 242
• Court: Virginia Supreme Court
• Parties: HUDSON v. DISMUKES & ALS.

77 Va. 242

HUDSON v. DISMUKES & ALS.

Supreme Court of Appeals of Virginia.

March 15, 1883

Appeal of H. C. Hudson fro decrees of circuit court of Mecklenburg county, rendered 5th December, 1879, and 28th May, 1880, in the suit of E. L. Dismukes, suing for herself and other lien creditors of George C. Venable, against said Venable and others. By deed recorded November, 1871, in Halifax county said Venable conveyed land in that county in trust to secure a debt to A. G. Jeffress. By deed recorded in Halifax and in Mecklenburg in February, 1872, Venable conveyed said Halifax land and a tract in Mecklenburg in trust to secure a debt of $8,000, payable with twelve per cent. interest in five years to D. S. Marrow, guardian of T. N. and J. W. Jones. And by deed recorded in Halifax, January, 1877, Venable conveyed the Halifax land to secure a debt to Emily C. and Anna P Venable. Several judgments against G. C. Venable were rendered in Mecklenburg between May, 1875, and 1st June 1877, when he confessed judgment in that county to E. L. Dismukes, the appellee, for $486.01 as of 1st March, 1879.

By contract of June, 1873, Marrow, guardian, had allowed Venable to sell the trust lands and pay off the trust debt coming to him as guardian, but not then due, and for that privilege, when sales were made, Venable paid him $1,500; and afterwards, on 1st June, 1877, Venable sold and conveyed to the appellant, H. C. Hudson, four hundred acres of the Halifax land for $2,400, whereof one-half was paid cash, and $500 of it went to Marrow; and for the other half Hudson gave bond to Marrow, who collected them when mature. On 27th June, 1877, this suit was instituted to subject Venable's land to the liens thereon. By decree the unsold lands were rented for 1878 for $500. An account of liens and lands taken and reported exhibited a total of $4,917.18, whereof the three first aggregated $3,406.18, to-wit: No. 1, A. G. Jeffress, $689.14; No. 2, D. S. Marrow, guardian, $1,584.70; No. 3, E. C. and A. P. Venable, $1,135.34; whilst of lands unsold, it showed nine hundred and two and one-half acres in Halifax, and one hundred and seventeen acres in Mecklenburg. Subsequently under a decree in this suit the lands were sold, and the sales confirmed, that in Halifax bringing $2,890, and that in Mecklenburg $234.

By decree of 5th December, 1879, the court decided that the proceeds of the Halifax land theretofore sold were liable to pay first A. G. Jeffress, then D. S. Marrow, guardian; then E. C. and A. P. Venable; and for any deficiency on the debt to E. C. and A. P. Venable, after exhausting the proceeds of the Halifax land sold by the commissioner, the four hundred acres purchased by H. C. Hudson should be held liable without any credit for $1,700, part of the purchase money paid by him and applied to the prior lien of Morrow, guardian.

The court also decided that the one hundred and seventeen acres in Mecklenburg, as well as the $500 rent bond for 1878, were liable to discharge the judgments in the order of their priority, in preference to the debts secured to Marrow, guardian, and to E. C. and A. P. Venable by the deed of trust aforementioned.

The rent bond was then uncollected. In May, 1880, the court decreed that the rent bond be applied to the judgment of E. L. Dismukes, and ascertaining the balance due E. C. and A. P. Venable to be $925 as of 20th May, 1880, decreed that unless within sixty days H. C. Hudson should pay that balance, his tract of four hundred acres should be sold, and the proceeds thereunto applied.

From these decrees H. C. Hudson obtained an appeal from one of the judges of this court.

W. W. Henry, for the appellant.

T. N. Jones, W. E. Homes, J. A. Coke, and Jos. Christian, for the appellees.

OPINION

LEWIS P.

In 1877, the appellant, H. C. Hudson, purchased of G. C. Venable 400 acres of land, a portion of a tract containing about 1,250 acres, lying in the county of Halifax. At the time of the purchase the tract was encumbered by a deed of trust to secure the payment of a debt of $8,000 due by the said Venable to D. S. Marrow, guardian, and by a mortgage to secure the payment of a debt due by the said Venable to E. C. and A. P. Venable. The first was executed in 1871, the last in 1875, and both were duly recorded. The consideration of the purchase was $2,400, of that sum the appellant paid to Venable, the vendor, $1,200 in cash, who, in turn, paid $500 of it to Marrow. The deferred payments, amounting to $1,200, were paid by the appellant directly to Marrow, making in all $1,700 of the purchase money paid to Marrow.

During the same year, Marrow and the trustee in the deed for his benefit released to Venable all their right, title and interest by virtue of the said trust deed in and to the land purchased by the appellant. In the deed of release it was recited that its object was to give to the appellant, Hudson, a good title to the land, and that Venable had given to Marrow other security satisfactory to him. On the same day Venable conveyed to Winn, trustee, certain crops to secure payment of the balance of the debt due by him to Marrow, which in the deed was stated to be $600. It does not appear that Marrow knew at the time of the execution of this deed, or that he realized anything on account of it. In his deposition taken in the cause, he testifies that he did not hear of it until nearly two years after its execution, and that the security referred to in his deed of release to Venable was understood by him to embrace the balance of Venable's real estate, after the sale to Hudson, which was subject to his trust deed.

At the time of Hudson's purchase, Venable owned a tract of land in Mecklenburg county, which was included in the trust deed to secure Marrow, and which was also subject to the lien of two judgments obtained against Venable in the circuit court of that county in 1875, and duly docketed in that county, one in favor of Deane & Carrington, upon which a balance of $20.53 was reported as due, the other for $38.48, in favor of R. W. Powers & Co.

Subsequently other judgments were obtained against Venable in the same court.

This suit was brought by a judgment creditor to subject the real estate of Venable to the satisfaction of the liens thereon. In the progress of the cause, an amended bill was filed, to which Hudson, the appellant, was made a party de...