Mitchell v. Cox
| Decision Date | 07 March 1949 |
| Citation | 189 Va. 236,52 S.E.2d 105 |
| Parties | MITCHELL et al. v. COX et al. |
| Court | Virginia Supreme Court |
Appeal from Circuit Court, Carroll County; John S. Draper, Judge.
Suit by R. E. Cox against Alice C. Mitchell, Edgar J. Mitchell, and others, to ascertain the rights of the parties litigant in a tract of land with improvements thereon, and to determine what liens and encumbrances are upon the real estate and to whose interest chargeable. From final decree entered, Alice C. Mitchell and Edgar J. Mitchell appeal.
Affirmed in part, reversed in part and remanded.
Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
A. E. Cooley, of Hillsville, for appellants.
Jack M. Matthews and S. F. Landreth, both of Galax, for appellees.
This is a chancery suit to ascertain the rights of the parties litigant in a tract of land with improvements thereon, in Carroll county, and to determine what liens and encumbrances are upon the real estate and to whose interest chargeable.
From a final decree entered on January 28, 1948, Alice C. Mitchell and Edgar J. Mitchell obtained this appeal. They will be designated appellants. R. E. Cox, complainant in the lower court, Mountain Loan Corporation and First National Bank of Galax are the appellees.
Judgments of $176.95 and $861.02, with accumulated interests and costs, in favor of Mountain Loan Corporation and First National Bank of Galax, respectively, were adjudged to be liens upon the interest of Edgar J. Mitchell in the real estate. That decree also determined that Alice C. Mitchell was indebted to R. E. Cox in the sum of $3,000, with interest from April 5, 1947, which was ordered to be paid upon receipt of deed from him conveying his interest in the land to her.
Appellants contend that both judgments are barred by the statute of limitations and that if R. E. Cox is entitled to recover anything from Alice C. Mitchell, it is considerably less than $3,000. Specifically they say:
A. That after the rendition on September 18, 1926, of the judgment for $176.95, which was upon a note, another note for $216.34, executed by Edgar J. Mitchell and R. E. Cox, was given and accepted in payment of that judgment, interest and costs, which constituted a novation and thus a cancellation of the judgment. A judgment was secured on February 11, 1929, against Edgar J. Mitchell and R. E. Cox on this second note, but no execution ever issued thereon. They, therefore, now say that the entire debt is so extinguished and barred;
B. The judgment for $861.02 was obtained on March 12, 1928, and as no return was ever made on the execution issued on January 17, 1930, it is now unenforceable; and
C. That the pleadings were not sufficient upon which to base the judgment of $3,000 in favor of appellee, R. E. Cox. However, if he were entitled to recover anything from Alice C. Mitchell, she should be allowed acredit or deduction of approximately $779.92, on the $3,000 to be paid for the interest of R. E. Cox in the real estate.
A recital of the transactions between the parties concerning the acquisition of this land and their respective actions incident thereto is necessary for an understanding of their contentions and a determination of the questions presented.
On September 2, 1944, H. P. Burnett, special commissioner in a chancery cause, sold 106 acres of land, more or less, with improvements thereon to Edgar J. Mitchell and R. E. Cox for $6,485. The sale was upon terms of one-fourth cash, with the balance payable on time and evidenced by three notes, each executed by the two purchasers. The cash payment of $1621.-25 was made by R. E. Cox. The three notes were afterwards acquired by H. P. Burnett in his individual capacity. As special commissioner, he conveyed the land to Edgar J. Mitchell and R. E. Cox, but reserved a vendor's lien thereon to secure payment of the notes. These notes, totaling $4,863.75, held by Burnett were not paid at maturity and he instituted a chancery suit against Edgar J. Mitchell and R. E. Cox to enforce the vendor's lien upon the land. During pendency of the suit, Mitchell and Cox, with the consent of Burnett, sold 14 acres of the land to Dean Cox for $2,300.03, which sum was credited upon the notes held by Burnett. Nothing further was paid upon the notes until October 18, 1946, when Alice C. Mitchell paid to Burnett the balance due thereon, which, with accumulated interest, amounted to $3142.13, and the notes were assigned, without recourse, to her. She also paid to Burnett $150 to cover the costs of the suit he had instituted to enforce the vendor's lien and that proceedings was dismissed.
At this stage of the transactions, the remaining 92 acres of land stood in the names of R. E. Cox and Edgar J. Mitchell. The latter had actually paid nothing on the purchase price though Cox had furnished the entire initial payment of $1,621.25.
Appellee, R. E. Cox, then instituted this suit to second March rules, 1947, against Alice C. Mitchell and Edgar J. Mitchell. He alleged his payment of the initial sum of $1,621.25, and his willingness to pay his part of the balance still due on the notes. He charged that Edgar J. Mitchell had paid nothing and had refused to assume his proportionate part of the obligations. He sought to have the court determine what interest, if any, Edgar J. Mitchell had in the land and to have partition and sale of the property, if necessary, to effect a division and settlement of the rights of the parties. He also offered to accept the whole of the property and pay the obligations thereon, and prayed that an accounting be Had between the interested parties.
The answer of appellants, filed during July, 1947, admits the payment made by R. E. Cox, but charges that he had collected rents from the property and sold timber therefrom. It also set forth that Alice C. Mitchell had acquired the interest of Edgar J. Mitchell in the real estate. The answer further asserts that R. E. Cox has no rights or interest in the real estate or the subject matter of the suit other than to ask for his obligation on the notes to be cancelled because his interest in the land had been acquired by Alice C. Mitchell on April 5, 1947, under a written instrument of that date. It is filed as a part of the answer and reads as follows:
The answer asked for an accounting and credit for all Alice C. Mitchell had paid and that if the land be sold she be declared entitled to all of the proceeds therefrom after payment of what was found to be due R. E. Cox on the written instrument.
The cause was referred to a commissioner, but the decree of reference does not appear in the record. In his report, the rights of the litigants in the land and what liens were chargeable to the respective parties and their interests are set forth. It appears from this report that he was asked by the litigants to construe the contract, of April 5, 1947. Alice C. Mitchell and R. E. Cox made statements setting forth their understanding and interpretation of the instrument. By agreement of counsel for both parties, those statements were given the same effect as if they had been presented in deposition form and no objection was made by anyone to their introduction in evidence.
The commissioner reported that there had been a novation of the judgment for $176.95 in favor of Mountain Loan Corporation against Edgar J. Mitchell and others by the corporation having accepted a note for $216.34, executed by Edgar J. Mitchell and R. E. Cox and the judgment had been thereby cancelled and obliterated. He further reported that there had never been any execution issued on the judgment obtained on the $216.34 note and that it was therefore barred by the statute of limitations. It is not contended by Mountain Loan Corporation that any execution was ever issued on the second judgment, but it denies that there was a novation and extinguishment of the first judgment of $176.95.
The commissioner reported that execution had been issued on the 17th day of January, 1930, on the judgment for $861.-02 obtained on March 12, 1928, by First National Bank against Edgar J. Mitchell, but no return made. He concluded that it was still a lien upon any real estate involved in an old creditor's suit styled Peoples State Bank v. J. S. Mitchell, C B. Worrell, et als, in which suit it had been proved and rendered in the year 1928, but that it did not constitute a lien upon any property not involved in that suit.
The commissioner construed the written instrument of April 5, 1947, and concluded that Alice C. Mitchell should pay R. E. Cox $3,000, with interest from its date, which would be in full settlement of his interest in the land, and upon conveyance thereof to her, he would stand acquitted of all further obligations incident thereto. The payment and conveyance were to settle all obligations and transactions between those two parties.
Upon exceptions to these findings, the court determined that there had been no novation and cancellation of the judgment for $176.95, by the acceptance of the note for $216.34, and decreed that the $176.95, with accumulated interest and cost, was a lien upon the interest of Edgar J. Mitchell in the real estate. It also sustained the exception to the commissioner's finding relative to the judgment of $861.02 and held that it was a lien against the...
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