Mann v. El Al.
| Decision Date | 31 January 1869 |
| Citation | 3 W.Va. 215 |
| Court | West Virginia Supreme Court |
| Parties | William T. Mann v. Andrew Lewis el al. |
1. In the year 1864, in the county of Greenbrier, whose citizens had been declared to be in insurrection and rebellion by the proclamation of the President of the United States, and where the authority, both civil and military, of the so-called Confederate States Government was in domination, payment of a bond in the treasury notes of the so-called Confederate Government, where the creditor was urged by the debtor (who had not demanded the debt and who was a loyal man) to take said treasury notes but who refused to do so, and was then told that he was "obliged to take them under the laws of the Confederate Government," was a payment made and received under duress per minas, and therefore void.
2. M. brought a bill to enforce a vendor's lien alleged to be due to himself.
On the hearing of the cause the fcourt decided that he had no lien or right in the premises and decreed costs against him; a:.d being of opinion that it was a proper case for a decree between co-defendants, for settling rights and equities, decreed a deed from one defendant to another. Held:
That the decree for the deed between the defendants was not matter of which M. could complain.
William T. Mann filed a bill in the circuit court of Greenbrier county, in March, 1867, against Andrew Lewis and John Argabright. It was alleged in the bill that in October, 1856, one John Butler sold to Lewis a tract of land, and bound himself in a title bond to make a deed by the 25th day of December, 1856. No purchase money was paid at the time of the sale. Butler died in 1859, and Ar-gabrite was his executor. The bill further alleged that Lewis applied to complainant to become his surety for the unpaid purchase money to the executor, which he consented to do upon condition that Lewis gave him the title bond to indemnify him for any payment he might have to make by reason of his suretyship. The bonds thus given amounted to 247 dollars and 35 cents on the 18th of October, 1859.
That on the 1st day of February, 1864, the balance due was 301 dollars and 59 cents, which was paid by the complainant to the executor and that he took up the bonds. He charged a lien on the land in his behalf and asked a sale of the land to refund the money and interest thus paid.
The answer of Argabrite stated that about the 1st of February, 1864, Mann came to his house and offered to pay the bonds in so-called Confederate money, and that he refused to take the same, because he had no confidence in it and did not wish to have any connection with the Confederate government even by taking its currency; and for the further reason that the heirs and legatees of his testator were loyal citizens of a loyal State to whom the said notes could be of no value; that the complainant importuned him to take it, and that he refused to do so until the complainant told him that the so-called Confederate notes were a legal tender and ho was required by law to take them, and that it would not be safe for him to refuse to receive them. That upon these false representations, menaces and fraud he was induced and coerced to take the notes and deliver up the bonds sigued by Lewis and the complainant. He denied any lien or right in the complainant.
Lewis answered, stating that the complainant came to him a short time before the bonds were given and falsely stated that Argabrite required additional security, and proposed to become his surety; but denied that it was then proposed that respondent should transfer the title bond to the complainant. That afterwards, in 1866, the complainant came to his house and stated to him that it was time the deed was made, and requested respondent to give him the title bond; that he would take it to Argabrite and have the deed executed to respondent, whereupon he gave him the bond believing that he would act in good faith; that afterwards, when asked if the deed had been executed, he replied that he intended to hold on to the title bond until ho received the money he had paid. That in 1867, Argabrite notified him that he had received nothing that he regarded of any valuo from the complainant, but had only received worthless Confederate treasury notes under menace and threats, and that if he would pay the balance still due upon the land he would make him a good deed, and save him harmless; and that he did shortly thereafter pay the amount due to Argabrite, and that no deed had yet been made and he was entitled to one.
There was a deposition in the cause which went to show that the complainant had said that Argabrite did not want to take the money, but he told him that he was obliged to take it under the laws of the Confederate government; another deposition stated that, the complainant had told Argabrite at the time of payment that Lewis had gone off. There were other proofs iu the cause but they were not pertinent to the question decided by the court.
The court below decreed that Argabrite, having been paid off by Lewis, should convey the land to him, and decreed costs to the defendants against the complainant, stating that the circumstances under which he paid Argabrite the Confederate money amounted to fraud, if not to duress.
Mann appealed to this court. C. S. Sperry for the appellant.
The court is referred to tho petition for an appeal for the general features of the case and for the points of error relied on. There can be no doubt about the fact that such bonds as are filed with the bill were executed by Andrew Lewis as principal and the appellant William T. Mann as security; nor that those bonds were given for the purchase money of land for which there existed the vendor's lien. They were given to Argabrite, executor of Butler; who, in his lifetime, had sold the land to Lewis, and these bonds were a renewal of the old bonds with Mann as security, Butler's executor still holding tho legal title until the whole of the purchase money should be paid.
Did Mann pay these bonds so as to substitute himself to the rights of Argabrite, tho executor? He affirms in hi& bill that he did pay them, and produces them in court with his bill with a receipt endorsed on them in these words: Thus the possession of these bonds, with the receipt endorsed thereon, would at least afford prima facie evidence that Mr. Mann had paid them.
Has Col. Argabrite overcome the prima facie evidence? We think not.
In his answer Col. Argabrite says, after saying that he did not want to receive Confederate notes in payment, that These are the words of the answer. Then follow certain conclusions from the premises which may or may not be legitimate. We are now dealing with the facts. Is this statement proved? There is not a word of proof upon the subject in the record except what is furnished by the deposition of Robert McVcy. He says that Mann came to his house and said he "had been to Col. Argabrite's aud paid him 200 dollars in Confederate money." Let us pause here a moment and see if Mr. McVey's memory can be relied on. Ho says that Mann said he had paid Argabrite 200 dollars, the receipt on the bonds says 301 dollars and 59 cents. Is it probable that Mann said 200 dollars when the sum exceeded 300? This discrepancy shows the necessity of receiving this testimony with caution. Human memory ia very frail at best, as we all know, but its errors can not always be dotectod, here, however, it is detected, and must necessarily dilute the moral force of the other testimony which the witness gives.
The witness proceeds, "that Mr. Argabrite did not want to take it, but he (Mann) told him that he was obliged to take it under the laws of the Confederate government." This is every word of proof upon tho subject. Does it sustain the answer? Does it say that it would not be safe for him longer to refuse to receive the money? Is there menace of any kind in this declaration. It was an opinion expressed upon the law of the case, and nothing more. Col. Argabrite had as much right, and as full an opportunity, to know what the laws of the Confederacy were, as a private man like Mr. Mann.
A mistaken affirmation of what tho law is, is not fraud. Russell vs. Bnmham, 8 Blackf., 277; Chitty on Cont., side pages 591-2; Story on Cont., sec. 507. The misrepresentation must be of an important fact. There was no fraud practiced and no fraud proved.
The answer says what the witness does not say, "that it would not be safe for respondent longer to refuse to receive said notes." Tho witness says no such thing. "We think we may therefore conclude that Mr. Mann's prima facie evidence of payment and ownership of the bonds has not been overcome by the answers and proof, and we may further affirm that the bonds were certainly paid by Mann, if payment could be made and received in Confederate money. The transaction between them was final and complete.
We are not aware of any decision of any court, high or low, in which payment made and received in such money accompanied with a surrender of the bond to the debtor was not held to be a good payment a closing of tho...
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