Mickie v. Lawrence

• Decision Date: 21 August 1827
• Citation: 26 Va. 571
• Parties: Mickie v. Lawrence, Executor of Wood
• Court: Virginia Supreme Court

26 Va. 571

Mickie v. Lawrence, Executor of Wood

Supreme Court of Virginia

August 21, 1827

Appeal from the Superior Court of Louisa county; where Lawrence executor of Sarah Wood, deceased, brought an action of covenant against Mickie, on a contract in writing, sealed with the seals of the said Wood and the said Mickie, by which the said Mickie covenanted to give the said Wood 1001. each year, as long as the said Wood lived, for which he, the said Mickie, was to have her, the said Wood's, land and Negroes, & c. The breach assigned was the non-payment of the said 1001. annually.

Issue was joined on the pleas of covenants performed, and covenants not broken. The jury rendered a verdict for the plaintiff for $ 2,610 62 cts. with interest on $ 2,187 71 cts. from the 15th of March, 1815, till paid, and interest on $ 286 98 cts from the 15th of October, 1815, till paid.

At the trial, the defendant filed two bills of exceptions; the first of which, not being noticed by the Judges, in their opinions need not be further mentioned.

The second states that the defendant, by his counsel, moved the Court to instruct the jury, that unless they should be of opinion, from the evidence in the cause, that there were some special circumstances in this case, to take it out of the general rule of law that interest is not recoverable for rent due, they should not allow interest in this case; but the Court refused to give the instruction, because the demand of the plaintiff in this case, as it is considered by the Court is not subject to any such rule, but is a contract to pay a certain sum in gross, as appears by the covenant on which this suit was brought. To this opinion, the defendant excepted, and appealed.

Wickham, for the appellant.

Stanard, for the appellee.

JUDGE CARR. JUDGE GREEN. JUDGE CABELL concurred, and the judgment was reversed, and the cause sent back. ^[*]

OPINION

JUDGE CARR. JUDGE GREEN.

By contract under seal, it was agreed between Mrs. Wood and the appellant Mickie, that he should have, during her life, her land, Negroes, & c. he paying her therefor a stipulated annual sum. After her death, suit was brought on the contract by her executor against Mickie. On the trial of that suit, the Court instructed the jury, that this was a contract to pay a sum in gross, and not a rent: that, therefore, the rule did not apply, which refuses interest or rent in arrear. Under this instruction, the jury gave interest on the sum due. The appellant excepted to the opinion of the Court, and appealed from the judgment.

There can be no question, I think, that this is substantially a lease, and not a sale. Such was clearly the intention of the parties; and no set form of words is necessary to constitute a lease. It is equally well settled, that the sum stipulated to be paid, is to be taken as rent issuing out of the land; though there were slaves and other personal property included in the lease. This is decided in Newton v. Wilson, 3 Hen. & Munf. 470, and other cases in this Court, and by many English cases. The simple question then is, whether interest be of course recoverable on rent in arrear?

I have felt the full force of the remarks of the counsel for the appellee, shewing the different course of decision on the subject of interest, between the Courts of Westminster Hall, and ours; that there, interest is denied in all actions for money lent, goods sold and delivered, an account stated, money had and received, & c. & c.; and that it is the same spirit which withholds it there, in the case of rent arrear: that with us, interest in all these cases, and indeed in almost all cases of a liquidated demand for money, is constantly allowed; and that, in conformity with this course, on rent arrear ought also to be allowed, where it is a monied rent, and fixed in amount.

I confess, I think this the substantial justice of the case and if it were res integra, I should not feel much hesitation on the subject. But, every day's experience impresses me more deeply with the importance of the maxim stare decisis. When this Court has had a question elaborately and repeatedly discussed before them, and have, upon consideration and re-consideration, decided in the same way, the circumstances must be strong indeed, and of rare occurrence, which, in my mind, would justify us in disturbing and unsettling the point. It is better for the community, that being once settled, it should remain, than that every Judge should feel himself at liberty to depart from it, in order to arrive at what he may consider more exact justice. Few questions have been more elaborately discussed by counsel, or more carefully considered by the Court, than this of interest upon rent arrear. Skipwith v. ClinchCall 253; Newton v. Wilson, and Cook v. Wise, 3 Hen. & Munf. 483, re-considered, 500; Dow v. Adams' adm'r, 5 Munf. 21, and several other cases. In this last case, (which, though briefly reported, we are told by the experienced counsel for the appellant, was elaborately argued,) the decision is, " that although interest ought not to be given as of course, in actions for...