Lunsford v. Smith
| Decision Date | 07 September 1855 |
| Citation | 53 Va. 554 |
| Parties | LUNSFORD v. SMITH. |
| Court | Virginia Supreme Court |
1. Certain legal questions are submitted bye parties to a controversy to an arbitrator, and they agree to be bound by his award. Upon a suit being afterwards instituted by one of the parties against the other in relation to the subject matter of the submission, the award of the arbitrator deciding the questions submitted to him, is the law of the case.
2. Testimony in relation to the correctness of the copy of a paper, is not admissible, unless the absence of the original paper is accounted for.
3. To prove the authority of an agent, the parol directions of the principal to him may be given in evidence.
This was an action of debt on a bond for four hundred and thirty-five dollars, bearing date the 14th of May 1835 brought by James M. Smith against Thomas Lunsford. Issue was made up on the plea of payment, and by consent of parties it was entered of record, that under this plea the defendant might make any defense which he could make under any plea which he could file either under the common law or the act of assembly. Under this state of the record a trial of the cause was had, and there was a verdict and judgment for the plaintiff; which upon appeal was reversed by this court, on the ground that the court had improperly excluded evidence offered by the defendant which went to establish a good defense to the action which might have been set up under the act of April 6th, 1831, Sup. Rev. Code, p. 157.
When the cause went back, it was removed to the Circuit court of Montgomery county, where it came on again to be tried in May 1847: On this trial the defendant took three bills of exception. The first set out the evidence in the cause; and it appeared, that by deed bearing date the 12th of January 1825, Joseph H. Jett conveyed to John F. Sale four slaves described as then in the possession of Jane Harding, in the county of Northumberland, in trust to secure a debt due to William Terry, and for the indemnity of Terry as his surety. This deed was executed in the county of Bedford, and was acknowledged by the parties before the clerk of the County court of Bedford; and on the 24th of January it was produced in court and ordered to be certified to the County court of Northumberland. Upon the certificate of this order by the clerk, it was on the 13th of June 1825, ordered by the latter court to be admitted to record.
On the 14th of April 1825 an execution in the name of James M Smith, executor of James Smith, against William Jett, Thomas Hughlett and Joseph H. Jett, for seven hundred dollars and sixty-nine cents, was put into the hands of the sheriff of Northumberland. This execution was levied on several slaves the property of Joseph H. Jett, and among them two of those embraced in the deed to Sale. In these slaves Jane Harding had an estate for her life, and she lived until 1834. Jett's interest in the slaves was sold, however, and was purchased by James M. Smith. Another of the trust slaves was purchased of Jett in 1830 by G. H. Foushee.
Upon the death of Jane Harding, the trustee, at the instance of Thomas Lunsford, who had acquired Terry's interest under the deed of trust, advertised the slaves embraced in the deed of trust for sale; and the parties having met in Northumberland, they agreed to submit their rights to the award of the late Benjamin Watkins Leigh; and a statement of facts was drawn up by their counsel substantially as herein before stated; and it was added that Smith expected to prove that Jett verbally gave up his interest in the two slaves in which Jane Harding had a life estate, to the sheriff, to be sold under Smith's execution: And they then submitted to Mr. Leigh several questions, the third and fourth of which are as follows: Third. Was the said Jett's interest in said slaves such property as may be seized and sold under an execution of fieri facias? Fourth. Is the said property still liable under the said deed of trust? And if the last question is decided against the said Smith, then if it be proved that the said Jett gave up his interest in the said slaves to be sold under the execution aforesaid, is such sale under such circumstances valid or not?
At the time this agreement for the submission to the award of Mr Leigh was made, Lunsford purchased the slaves of Smith, and executed to him a bond for four hundred and thirty-five dollars, the amount of his claim under the deed of trust upon the agreement that if Mr. Leigh decided in his favor, the bond was not to be paid; but if the decision was in favor of Smith, then it was to be valid, as for so much of the purchase money of the slaves: The balance of the purchase money was paid.
Mr. Leigh made his award, by which he decided that the interest of Jett in the slaves was not such an interest as could be taken on a fi. fa. against Jett. But he further decided that if it could be proved that Jett gave up his interest in the slaves to be sold under the execution, that would give validity to the sale, and perfect the title of the purchaser. That the interest might be sold by Jett, and he might give up his interest to the sheriff to be sold by him, and the sheriff would then act as his agent: that the purchaser at the sheriff's sale would claim as a purchaser under Jett; that the deed of trust not having been properly recorded was not notice to the purchaser; and that actual notice of the deed was necessary to give the party claiming under the deed priority over him. But that the want of due registry would not impair the validity of the deed as against creditors whose debts have not attached upon the subject by force of legal process.
After the award was made Smith instituted this action, and the defendant relied upon his title under the deed of trust and the award of Mr. Leigh. Thereupon the plaintiff introduced evidence to prove that Jett gave up his interest in the slaves to the sheriff to be sold under the execution; and for that purpose introduced the deposition of John H. Jett. The second, fifth and next to the last questions and answers thereto, were objected to by the defendant's counsel. The questions and answers are as follows:
2d. Answer.
5th. Answer.
Answer. " I was not present at the time the said...
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Mcdaniel v. Commonwealth
...cases deal directly with this question. We are cited to these Virginia cases as supporting the defendant's contention. In Lunsford v. Smith, 12 Grat. 554, 53 Va. 554, it appears that a sheriff sold slaves under an execution. Of course that execution was primary evidence of his authority. In......