Legrand v. Rixey's Adm'r

• Citation: 3 S.E. 864,83 Va. 862
• Parties: Legrand and others v. Rixey's Adm'r and others.
• Decision Date: 10 November 1887
• Court: Supreme Court of Virginia

3 S.E. 864

83 Va. 862

Legrand and others

v.Rixey's Adm'r and others.

Supreme Court of Appeals of Virginia.

November 10, 1887.

1. Principal and Surety—Extension of Time—Release of Surety.

The husband of one of two makers of a bond given to secure money loaned, to prevent the sale of certain land under a deed of trust accompanying the bond, with his wife, assigned to the obligee of the bond their interest in a certain judgment. It was agreed between the husband and the creditor that, in consideration of an extension of time for the payments of the bond, the husband should, at stated times, make payments on it, and if not made the land embraced in the trust deed should be sold. He failed to make the payments, and the creditor advertised the land for sale, and the other maker of the bond and her husband filed a bill to enjoin him. Held, that those whom the husband represented were bound by the terms of the agreement made by him for an extension, and in such a case the extension of the time of the payment of the debt did not release the other principal debtor, nor postpone the liability to sale of her interest under the trust deed.

2. Judgment—Res Adjudioata—Opinion of Trial Judge.

In a bill for injunction, a former decree was pleaded as res judicata. The decree did not show upon which of several points in litigation it was based, but referred to the opinion of the trial judge, filed in the case, to explain what was determined, and the reasons therefor. Held, that such opinion became a part of the record, and must be looked to, to determine what was in issue and what was adjudicated by the decree.

3. Same—Effect of—Res Adjudicata.

The payee of a bond, secured by a trust deed in certain land, filed a bill alleging that the security was insufficient to pay the debt then overdue, and asking to have the separate property of a married woman, one of the makers of the bond, applied to its payment, which was denied. Held, that the only point adjudicated in that suit was the right to have the property, not embraced in the trust deed, applied to the payment of the bond.

Appeal from circuit court, Fauquier county.

J. C. Gibson, for appellants. W. L. Jeffries, J. F. Rixey, and D. A. Grims-ley, for appellees.

Richardson, J. This is an appeal from the decree of the circuit court of Fauquier county, rendered on the seventeenth of April, 1885, in the cause of E. A. Legrand and Lucy B., his wife, complainants, against Samuel Rixey, James Barbour, trustee, J. C. Gibson, and Mary G., his wife, defendants. Mrs. Legrand, then wife of Charles E. Sinclair, and James G. Field, her trustee, and Mrs. Gibson, then Mary G. Shackleford, by trust deed dated October 16, 1867, conveyed their interests in "Elk Spring Farm, " in Culpeper county, to James Barbour, trustee, to secure the bond executed by the female grantors of that date to Samuel Rixey, for $3,180, for borrowed money, and payable, with interest, three years after its date. By decree of the circuit court of Culpeper county, at its November term, 1867, Mrs. Sinclair was divorced a vinculo, from her husband, C. E. Sinclair, and later became the wife of E. A. Le-grand, who died, pending this suit, and in January, 1870, Mary G. Shackleford intermarried with J. C. Gibson. By a writing dated July 27, 1872, Gibson and wife assigned to Rixey their one-third in a decree for $2,500 against George Ross, executor, to be applied, when collected as a credit on said bond; and by an instrument signed and sealed by J. C. Gibson, and dated June 26, 1873, reciting that said bond was then due and collectible, and that J. G. Gibson desired further indulgence, and was unwilling to have said trust deed closed. In consideration that Rixey would not proceed to close said deed, he. J. C. Gibson, agreed to pay down in cash all interest due on the bond, and annually to pay thereafter, on the twenty-sixth of June, the sum of $500, until the bond was fully discharged; but that should default be made in the prompt payment of said installments, as they became due, or any of them, Rixey reserved the right to collect whatever might be due on the bond by sale under the deed of trust. It was further agreed by said instrument that whatever money should be collected under the assignment of said decree against George Ross, executor, should be applied to the installment for the year such collection was made, until one installment was paid, and the balance as a credit on said bond; and that all other notes, bonds, decrees, or judgments assigned, or promised to be assigned, by J. C. Gibson to Rixey, as further security for said bond, were thereby reassigned and released by Rixey to J. C. Gibson, without any recourse whatever upon Rixey. The interest on said bond up to twenty-sixth of June, 1873, was accordingly paid. On the twelfth of April, 1875, J. C. Gibson paid the additional sum of $50, which was all that was paid on said debt up to August, 1875, when Rixey instituted his suit in chancery in the circuit court of Culpeper county, against J. C. Gibson and wife, Lucy B. Shackleford, (formerly Sinclair,) James G. Field, her trustee, and James Harbour, trustee.

The bill, after reciting the execution of the said bond, and of the said trust deed, and of the assignment of the interest of J. C. Gibson and wife in the decree against Ross' executor, and the agreement of J. C. Gibson to pay the debt in annual installments, and his default in paying the installments, which had become due, then set forth that said Lucy B. Shackleford (afterwards Legrand) owned, as her separate estate, one-third of the said decree against Ross' executor, and other separate estate not included in said trust deed, which was in or was coming to the hands of her trustee, Field, which he would pay over to her unless restrained; and which he (Rixey) was entitled in equity, to subject to the payment of the said bond, and that it was necessary for him (Rixey) to subject it to that bond, because the trust property and the other securities held by him were inadequate to discharge said bond, by reason of the depreciation of the property; and prayed that said Field be enjoined from pitying to said Lucy B. Shackleford, (formerly Sinclair,) or to any other person, and that said Lucy B. be enjoined from collecting from said Field, or any other person, her share in said decree; that said Field state what amount he had received on said decree, as the shares of said Lucy B. and of Gibson and wife, and that his debt be paid out of the separate estate of said Lucy B., and out of the estate of Mrs. Gibson in Elk Springs, and the moneys due her under said decree; and that a sale of the several interests of those female debtors in said real estate be decreed, and the proceeds applied to said debt; and for general relief.

The defendants demurred and answered. By her answer, Lucy B. resisted the pretensions of the plaintiff Rixey, upon the ground—First, that by the agreement between Rixey and J. C. Gibson of June 26, 1873, her relation to the $3,180 debt became entirely changed; that Rixey, by changing the mode of payment, recognized it as the debt of J. C. Gibson, etc.; and in consideration of $323.30 (the balance of interest up to the date of said agreement) extended the time of its payment, and thereby (if he did not discharge her from all responsibility for the debt) obligated himself to resort to the Elk Springfarm alone, for any balance that might not be paid by J. C. Gibson; and moreover, that the debt had been paid, by the assignment made by J. C. Gibson to Rixey, of debts, etc., amounting to a greater sum; and, secondly, that while it was true that she was a, feme covert, with a separate estate, when she executed the bond, yet its execution created no lien on her separate estate, or right to interfere with her control or disposition of it, any more than if she had been a. feme sole, and that there was no ground for the injunction.

J. C. Gibson, by his counsel, relied on the ground that the agreement of June 26, 1873, was a subsisting and binding agreement; and insisted that, although the installments of $500 per annum due by it might not have been received by Rixey when his suit was commenced, yet it was his own fault in not collecting promptly, the Ross decree, and that he might have done so by due diligence; and averred that Rixey had collected it since the commencement of his suit; and that he had assigned Rixey several solvent judgments to pay said debt, which he had partly collected, and had never reassigned. It was admitted by Rixey that Field had paid him out of Gibson and wife's interest in the Ross decree $975, as of thirtieth September, 1875.

The injunction had been granted as prayed for, and the cause having been removed to the Amherst circuit court, it was then heard on the thirteenth of October, 1876, upon the bill, answers, and exhibits, and demurrer, and having overruled the demurrer, "for reasons stated in a written opinion filed with the papers, " it was decreed that the injunction be dissolved, and the bill dismissed, with costs to the defendants. In the concluding paragraph of the written opinion, the court proposed to allow an account to be taken of the balance due on the debt, or of the credits J. C. Gibson might be entitled to by reason of alleged assignments, and of sums collected thereon by Rixey or which he might have collected by use of due diligence, if either party desired such account. It does not appear, however, that such account was either taken or desired.

Subsequent to said decree of the Amherst circuit court, and during the next year, James Barbour, trustee in said deed of trust, advertised that he would on the sixteenth of July, 1877, sell the Elk Spring farm at public auction, at the front door of Culpeper court-house, for cash. In the trust deed no place or terms of sale were prescribed. On the day appointed for the sale Lucy B. Legrand, (formerly Sinclair,) and E. A. Legrand, her husband, obtained an injunction to the sale. In...