Osborne v. Cabell

• Decision Date: 26 April 1883
• Citation: 77 Va. 462
• Parties: OSBORNE v. CABELL AND ALS.
• Court: Virginia Supreme Court

77 Va. 462

OSBORNE v. CABELL AND ALS.

Supreme Court of Appeals of Virginia.

April 26, 1883

Appeal of John J. Osborne to decree of chancery court of the city of Richmond, rendered against him on 14th June, 1879, in a chancery suit therein pending, wherein Henry C. Cabell was plaintiff, and Francis J. Barnes, Edward D. Hitchcock and the said John J. Osborne were defendants.

The facts of the case and the object of the suit are fully indicated in the syllabus and stated in the opinion of the court.

Cannon & Courtney, for the appellant.

Jas. Pleasants, and J. A. Cabell, for the appellees.

OPINION

HINTON J.

The appellee, Henry C. Cabell, on the 30th day of April, 1860 borrowed from James Lyons, special commissioner in the suit of Vaughan and als. v. Goddin and als., then depending in the circuit court of the city of Richmond, the sum of $2,853.08, and executed his bond to said Lyons, commissioner, in the proper penalty, with William Daniel, Jr., as surety, and conditioned for the payment of the principal sum and interest in such time and in such manner as said court should direct; and at the same time he also conveyed, by deed, in which his wife united, a certain lot of land in the city of Richmond to said Lyons in trust to secure the payment of the money so borrowed, with interest according to the condition of said bond.

In January, 1862, the said Cabell and wife conveyed the same lot of land to Francis J. Barnes in consideration of a certain sum of money in cash and his assuming to pay the debt secured by the aforesaid trust deed. This deed was also executed and acknowledged by Barnes.

In November, 1862, Barnes conveyed the same lot of land to E. D. Hitchcock for a certain sum in cash and the assumption by Hitchcock of the debt due to Lyons, commissioner.

On the 4th day of December, 1865, an agreement was executed by and between Hitchcock and the appellant, John J. Osborne, for the purpose of adjusting and settling all unsettled claims between them as individuals and also as partners; and in pursuance of that agreement Hitchcock conveyed the said lot to Osborne in consideration of the sum of $1,000 and the assumption and promise of Osborne to pay the said debt according to the tenor of the bond and trust deed executed by Cabell. Each of these deeds was executed and acknowledged, as well by the respective grantees therein and by the grantors and their respective wives.

Hitchcock having failed to perform his part of the agreement of December 4, 1865, Cabell was called upon by Lyons, commissioner, to pay the principal and interest accrued on his bond, and upon his failing so to do, the lot of land was sold by Lyons as trustee and commissioner, in September, 1867, at public auction, in pursuance of the deed of trust, for the net amount of $1,566.65.

In March, 1869, a judgment was rendered in the circuit court of the city of Richmond, against Cabell and his surety, Daniel, in favor of Lyons, commissioner, for the amount of Cabell's bond, subject to a credit for the aforesaid sum of $1,566.65.

In 1870, Commissioner Lyons sued the appellant, Osborne, in the circuit court of Richmond, on the law side thereof, for the balance due on Cabell's bond. In this suit, judgment upon a case agreed was rendered for Osborne. Whereupon Lyons, commissioner, applied for a supersedeas, which was refused by all the judges of this court.

In February, 1875, the appellee, Cabell, instituted suit in the chancery court of the city of Richmond, against Barnes, Hitchcock and Osborne, and levied an attachment on the real estate of Osborne, who is a non-resident.

On the 20th day of November, 1875, the said Cabell filed in court an amended and supplemental bill. Both bills were taken for confessed as to the defendants, Barnes and Hitchcock, but were answered by Osborne.

The facts were agreed in the action of covenant brought by Lyons, commissioner, against Osborne, and the record of that suit was filed by Osborne with his answer. On the 14th day of June, 1879, the cause was heard, when a decree was rendered in favor of Cabell for the balance due after crediting the debt secured by the deed of trust, by the net proceeds of the sale of the lot. From this decree Osborne has been allowed an appeal to this court.

The sole question to be determined, is whether the chancellor should have decreed against Osborne, or should have dismissed the bill as to him.

As preliminary to this inquiry, let us see what were Hitchcock's rights against Osborne. The circumstance that the deed to the lot in Richmond, the deed of trust on the Lancaster plantation, and the agreement, were all executed in the same city, on the same day, and acknowledged before the same magistrates, when taken in connection with the fact that the agreement contemplates the execution of those deeds, to fully effectuate its objects, clearly shows that these writings are but parts of one transaction, and should be construed as one entire instrument. Anderson v. Harvey's heirs, 10 Gratt. 396; French v. Townes et als., 10 Gratt. 522.

The plain purpose of these parties, fully expressed in the agreement, was to settle and adjust all the various and conflicting claims which they had against each other; to reduce them into certain definite and ascertained demands and to embody them in one contract, in which some of the provisions were to be performed by Osborne on condition that the others should be performed by Hitchcock. By the...