Moore v. Steelman

• Decision Date: 19 March 1885
• Citation: Moore v. Steelman, 80 Va. 331 (1885)
• Parties: MOORE v. STEELMAN.
• Court: Virginia Supreme Court

80 Va. 331

MOORE v. STEELMAN.

Supreme Court of Appeals of Virginia.

March 19, 1885

Appeal from decree of circuit court of Chesterfield county, entered March 3rd, 1883, in the cause of J. S. Moore and J. M Gregory, trustee, against Jeremiah Steelman and others.

In October, 1881, David E. Porter, by writing, sold to Steelman ten thousand cords of wood, to be cut in said county and delivered by a certain time on the Brighthope railroad, and there ricked for measurement and receipt, and to be paid for when so received. Steelman had advanced $5,000 on the contract. Porter became embarrassed and unable to fulfill the contract, and about the last of June, 1882, by parol contract, sold all the wood he had cut and corded in the said county, and particularly on the Brander tract, to Steelman in order to refund the $5,000. But by trust deed, executed June 5th, 1882, but not recorded until August 2nd, 1882, the day after Porter died, the latter conveyed the Brander tract and all the wood cut and corded on it, to Gregory, trustee to secure a debt of $1,500 to Moore. Steelman had no notice of this trust deed until after it was recorded; and had taken possession of the wood cut and corded on that tract, and was removing it to the railroad, when Moore and the trustee obtained an injunction. Steelman answered the bill, denying all the allegations whereon are based the alleged grounds of equity interposition, and the circuit court dissolved the injunction, and Moore and the trustee appealed.

J. M. Gregory, for the appellants.

B. H. Nash, for the appellees.

OPINION

RICHARDSON, J.

The real matter in controversy is in respect to the ownership of a large quantity of cord wood, cut and remaining on the tract of land in Chesterfield county, known as " Brander," and belonging to the estate of the late D. E. Porter, of said county.

The facts, briefly stated, are these: On the 14th day of October, 1881, David E. Porter and L. W. Cheatham, as partners, entered into a contract, under seal, with Jeremiah Steelman, of New York, to saw and deliver on the line of the Brighthope railway, not above Winterpock, to the said Steelman, ten thousand or more cords of first class pine wood, with certain specifications as to size and quality; the wood to be delivered ricked on the line of said railway by the 31st day of December, 1882; and when delivered, ricked as aforesaid, to be measured and received by Steelman or his authorized agent, as stipulated in the contract, and to be paid for as received and removed, at the rate of two dollars and fifty cents per cord, by drafts of said Steelman or his authorized agents, payable thirty days after sight. And the contract sets forth, that: " The party of the second part having made an advance of five thousand dollars on the above wood, it is agreed that the above advance shall constitute a lien on all the wood cut by the parties of the first part until said contract is filled." It was further stipulated, that all of said wood should be sawed before the 10th day of May, 1882. There are other stipulations contained in the contract which are not material to the question in hand, and need not be here referred to.

Under this contract (Cheatham having disclaimed any interest therein, and having been relieved therefrom,) Porter proceeded to cut and put in pens large quantities of wood on the tract of land owned by him, called " Brander," and on an adjacent tract, of which he was part owner, and on other tracts in said county where he purchased the privilege of cutting wood. It does not distinctly appear how much wood in all was cut by Porter under this contract, but the fair inference is, that as late as the last of June, 1882, the quantity was much less than the 10,000 cords stipulated for in the contract. At this period (the last of June, 1882,) Porter found himself financially embarrassed and unable to fulfill his contract with Steelman, so he approached Geo. E. Robertson, the duly authorized agent of Steelman in this and other wood contracts in that section, and admitting that he had no money, and could not deliver the wood according to his contract, but expressing the desire on his part to pay back to Steelman the $5,000 advanced to him by the latter, proposed to sell to Steelman the wood cut on the Brander tract, saying at the time that the wood on the other tracts was encumbered, so that he could not sell and deliver it where it was in the forest, as he proposed to do in respect to that on the Brander tract. Thereupon, as agent, Robertson, at the request of Porter, purchased the wood on the Brander tract for his principal; the agreement being, that Steelman, or Robertson for him, should take possession of the wood as it was, on said Brander tract, haul it to said railway, ship and market it, and apply the net proceeds to the amount due from Porter to Steelman, it appearing that Porter had become indebted to Steelman in a sum considerably in excess of the $5,000 advanced on said original contract. Under this new contract, Robertson, as agent for Steelman, was, by Porter, put in possession of said wood so situated, and at once commenced hauling and shipping, and openly continued to haul and ship said wood without objection or interruption from any source until after the death of Porter, which occurred on the 4th day of August, 1882, when he was enjoined and restrained from so doing until the further order of the circuit court of Chesterfield county.

This proceeding was had under these circumstances:

It seems that on the 5th day of June, 1882, D. E. Porter executed to James M. Gregory, trustee, a deed conveying, with other property, the said Brander tract of land, with all the wood then or thereafter to be cut on same, in trust, to secure to J. S. Moore, of Richmond, a debt of $1,500, due by note of even date with said trust deed, and payable on demand. This trust deed was admitted to record in Chesterfield county, on the 5th day of August, 1882, the day after the death of Porter. Steelman denies any notice of the execution of this deed at the time of his purchase of the wood in question, and there is in the record nothing to show that he had any notice of its existence until the recordation thereof.

On the 2d day of December, 1882, said trustee, J. M. Gregory, and the beneficiary in said trust deed, J. S. Moore, presented to the Hon. Edw. H. Fitzhugh, judge of the chancery court of the city of Richmond, their bill, setting forth their case, and praying for an order to restrain the said Steelman and his agent, the said Robertson, and all other persons acting under their authority, or the authority of either of them, from removing, disposing of, or in any manner interfering with the cord wood on the Brander tract of land, or which has been carried therefrom to the Brighthope railroad since the 5th day of June, 1882.

The injunction was granted by Judge Fitzhugh, according to the prayer of the bill. From the answer of Steelman, in the record, it seems there was a previous injunction granted by the judge of the circuit court of Chesterfield, which on motion had been dissolved prior to the injunction awarded by Judge Fitzhugh. In their bill, the complainants set out said trust deed, and assert their right to the cord-wood on the Brander tract of land at the date of said trust deed, June 5 1882, and allege the due appointment and qualification of Fannie L. Porter, as administratrix of said D. E. Porter, dec'd; that at the time of the execution of said trust deed, there was upon the said Brander tract of land about 3,000 cords of wood belonging to and in the possession of said D. E. Porter, and was part of the wood conveyed by said trust deed, and that there is no cord-wood on said tract other than whet was conveyed by said trust deed; that the said trustee has been called upon to execute said trust, as required by the terms of the deed, and is informed, believes and charges, that Geo. E. Robertson, as agent of said Steelman, is removing said wood from said Brander tract, and shipping same to Steelman, in New York, contrary to the rights of complainants under said trust deed; and that complainants are informed that Steelman and his said agent are pretending that said Steelman purchased said cord-wood from D. E. Porter in his lifetime, and therefore owns the same. The bill further alleges, that the said Steelman acquired no title to or property in said wood, or any part thereof, by reason of said purchase, or any purchase made by him of said Porter during his lifetime, and that the title thereto is in the said trustee; that the cord-wood remaining on the Brander tract at the death of Porter, is far more than sufficient to pay off and discharge the claim of said Steelman; and that he has no right to disturb, remove or appropriate...