Land v. Town Of West Point

• Decision Date: 17 June 1897
• Citation: 94 Va. 668,27 S.E. 460
• Court: Virginia Supreme Court
• Parties: RICHMOND & W. P. LAND, NAVIGATION & IMPROVEMENT CO. v. TOWN OF WEST POINT.

27 S.E. 460

94 Va. 668

RICHMOND & W. P. LAND, NAVIGATION & IMPROVEMENT CO.

v.TOWN OF WEST POINT.

Supreme Court of Appeals of Virginia.

June 17, 1897.

Municipal Corporations—Powers—Purchasing Land and Executing Contracts for Payment —Action for Price—Pleas—Evidence — Burden of Proof—Appeal — Review — Harmless Error.

1. In an action on nonnegotiable notes given for land purchased by defendant, non est factum is not a proper plea.

2. In an action on nonnegotiable notes given for land purchased by defendant, it was harmless error to overrule a demurrer to and a motion to strike the plea of non est factum, when every defense relied on by defendant could be made under the plea of nil debet, pleaded by it.

3. A municipal corporation may lawfully purchase, on credit or otherwise, and hold, all the real estate necessary to the proper exercise of the powers conferred on it, and may bind itself by the execution of nonnegotiable notes as evidence of indebtedness for such real estate.

4. In an action against a city on nonnegotiable notes given for land purchased from plaintiff by defendant, where defendant pleads nil debet, the burden is on plaintiff to show that such land was reasonably necessary to the exercise by defendant of the powers and duties conferred on it by the legislature in its charter.

5. By demurrer to evidence, the demurrant admits the truth of the adversary's evidence, and waives all his own evidence in conflict therewith.

Error to circuit court, King William county.

Action by the Richmond & West Point Land. Navigation & Improvement Company against the town of West Point, on notes executed by defendant as evidence of indebtedness for land purchased by it from plaintiff. There was a judgment in favor of defendant, and plaintiff brings error. Affirmed.

Pollard & Sands and James H. Dooley, for plaintiff in error.

Isaac Diggs and H. I. Lewis, for defendant in error.

KEITH, P. In the summer of 1887 the town of West Point, Va., purchased certain lots of land situated within its corporate limits from the Richmond & West Point Land, Navigation & Improvement Company, for which it agreed to pay in the aggregate the sum of $4,175. which was divided into three notes of $1,000 each, and a note of $1,175, all dated the 28th of September,. 1887, and falling due, respectively, on the 1st of August, 1888, the 1st of August, 1889, the 1st of August, 1890, and the 1st of August, 1891. Default having been made in the payment of these notes when they severally fell due, the plaintiff in error, in April, 1892, instituted an action in the circuit court of King William county against the town of West Point, for the recovery of the debt evidenced by the notes aforesaid. To the declaration there was a demurrer, which was overruled, and then, by leave of court, the plaintiff, in December, 1892, filed an amended declaration, to which, and to each count thereof, the defendant again demurred, and the demurrer was again overruled.

We are of opinion that the cause of action is properly stated, and there is no error in the judgment of the circuit court in overruling the demurrer.

The defendant thereupon pleaded nil debet, payment, and non est factum. The plaintiff demurred to the plea of non est factum, and also moved to strike it out, which demurrer and motion the court overruled, and the plaintiff excepted, and thereupon issues were joined upon the several pleas.

Non est factum was not a proper plea in this case, but, inasmuch as every defense relied upon by the defendant could be made under the plea of nil debet, the plea of non est factum was wholly unnecessary, and its admission worked no injury whatever to the plaintiff in error, and cannot therefore be regarded as ground for reversal of the judgment. It comes within the class known as "harmless errors."

Neither party requiring a jury, and the whole matter of law and fact being submitted to the court, a judgment was rendered for the defendant, which the plaintiff moved to set aside. This motion the court overruled, and thereupon the plaintiff excepted and tendered its bill of exceptions, which was duly signed; and, upon its petition, a writ of error was awarded by one of the judges of this court.

In the oral argument and in the briefs a good deal was said with respect to the power of municipal corporations to bind themselves by the execution of commercial paper; but the law in regard to this particular form of obligation need not be specially inquired into, because the evidences of debt in the case before us are promissory notes, not negotiable....