Omohundro's Ex'r v. Omohundro
| Decision Date | 16 November 1876 |
| Citation | 68 Va. 824 |
| Court | Virginia Supreme Court |
| Parties | OMOHUNDRO'S ex'or v. OMOHUNDRO & als. |
1. R, a commissioner selling land in 1860 under a decree, is guilty of a breach of trust in receiving confederate currency from the purchaser in payment of his bonds, in 1863.
2. Such a commissioner who is directed to file the bonds with his report, has no authority to collect them.
3. A commissioner who in April 1860 is appointed to sell lands is guilty of a breach of trust in selling them in 1863, for confederate currency.
4. S, a brother of the commissioner, who is one of the parties entitled to the land and its proceeds, induces R to collect the purchase money of the land sold, and to sell the balance both to be received in confederate currency, and to lend it to him. S is a party to the breach of trust by R, the commissioner, and is responsible for it.
5. Upon a writing under seal given by S for the return of the money R in 1866, brings an action against the executor of S, and recovers a judgment, which upon appeal is reversed, and it is held that the debt should be scaled, and the cause is sent back for a new trial. On a bill by the other parties interested in the lands sold. HELD:
1. If the judgment of the court of appeals was final, these plaintiffs not having been parties to the cause, would not be concluded by it.
2. The cause having been sent back for a new trial, the judgment was not final.
3. Though upon the face of the paper the court might correctly hold that the contract was a confederate contract, and should be scaled, the facts connected with the transaction may, and do show that it should not be so treated: and these facts may be received in evidence and the bond construed by the light of them.
Richard Omohundro, the elder, of the county of Fluvanna, died previous to April 1860, possessed, among other property, of a tract of land of nine hundred and ninety acres, and leaving eight children or their descendants. These children were scattered, some in Texas, and others in different parts of the country, and some of the descendants were infants. Among his children were his son Silas who lived in Richmond, and was extensively engaged in business in that city, and Richard who lived in Fluvanna.
In April 1860, Richard Omohundro instituted a suit in equity in the circuit court of Fluvanna county, against the other heirs of Richard Omohundro, the elder, to have a sale of the land on the ground that it could not be divided among the heirs without injury to all of them; and this suit was so proceeded in, that on the 11th day of April 1860 the court made a decree appointing the plaintiff, Richard Omohundro, a commissioner to sell the land, in one or more parcels for cash as to one-fourth of the purchase money, and on a credit of one, two and three years for the residue, taking bonds with approved security for the deferred payments, and retaining the title as further security, till the whole was paid. And he was directed to report to the next term of the court his proceedings under this decree, and file therewith the bonds taken for the deferred payments.
On the 17th of June 1860, the commissioner sold a part of the tract called Gale Hill, including five hundred and eighty-eight acres, when it was purchased by John H. Burgess, at $20 per acre; and Burgess paid the cash payment of $2,940, and executed his bonds with security for the three deferred payments, each for $2,940; but the commissioner did not report to the court, or file the bonds. The part of the land called Wills' tract was not then sold; but afterwards about the 5th of March 1863, he sold this tract to James M Thomas, at $22.50 per acre cash; and Thomas paid him in March and April $8,900. This sum was paid by Thomas in confederate money. And about the same time the commissioner received from Burgess the payment of his three bonds in the same currency. This sale of the Wills' tract, and receipt of the payment of the bonds of Burgess in confederate currency, was done at the urgent and repeated request of Silas Omohundro, that it should be done, and that Richard Omohundro would lend him the money; he saying he could use the money in payment of his debts, and for real estate which he was then purchasing extensively. And accordingly Richard Omohundro after paying to Silas his share of the fund, and a debt which one of the other heirs owed to him, lent to Silas Omohundro the remainder of it, and took from him the following obligation:
| $12,800. | RICHMOND, May 22d, 1863. |
On demand I promise to pay R. Omohundro, Jr., the just and full sum of twelve thousand eight hundred dollars, for value received, borrowed money, this date, to be paid when called for in confederate money, or whatever money may be current of the state, or our banks pay out to depositors. As witness my hand and seal.
SILAS OMOHUNDRO. [SEAL.]
Silas Omohundro died in 1864; and in June 1866, Richard Omohundro brought an action of covenant upon this paper in the circuit court of the city of Richmond, against his executor Richard Cooper; and in November 1869, recovered a judgment for $12,800, with interest from the 2nd of June 1866. From this judgment the executor applied for and obtained a supersedeas from the court of appeals; and the case coming on to be heard in that court, in January 1872, that court reversed the judgment, on the ground that the bond being payable on demand, the obligor had a right to pay it at any time, and therefore to pay it in confederate treasury notes. And the cause was sent back to the circuit court for a new trial to be had therein; and the case for all that appears in this record, is still on the docket of that court. The case is reported in 21 Grattan 626.
In March 1872 the defendants in the suit in equity, instituted by Richard Omohundro, for the sale of the land, except Silas Omohundro's executor, filed a cross-bill in that suit against Richard Omohundro, Silas Omohundro's executor, and the purchasers of the land, in which they set out the foregoing facts, except as to the action at law, and charged that Richard Omohundro had violated his duty as commissioner in receiving from Burgess payment of his bonds for the purchase money of the land without authority from the court, and in a greatly depreciated currency, and also in selling the Wills' tract and receiving in payment the same depreciated currency. They charge that this was done by the said Richard upon the repeated request of Silas Omohundro, in order that he might get the money, and upon the promise to save Richard harmless, and pay the money after the war was ended, when it was required for distribution, in whatever fund should then constitute the currency of the country.
There were statements in the bill in relation to the timber used and sold from the land, by the purchasers, and a prayer for an account by them; but it is not involved in this appeal. There was also a prayer that all proper accounts be taken, and for general relief.
Richard Omohundro answered, admitting the facts as to his action, and the urgent request of Silas Omohundro, that he should sell the Wills' tract and collect the money from Burgess and let him have it, and that he had complied with his request, upon his promise to save him, the said Richard, and all the parties interested harmless; and that he would be responsible for the money and make it good when the heirs interested should demand it for distribution after the war, in whatever currency was then in use.
Cooper the executor of Silas Omohundro, demurred to the bill. 1. Because of...
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