Peters v. Neville's Trustee

• Decision Date: 30 September 1875
• Citation: 67 Va. 549
• Court: Virginia Supreme Court
• Parties: PETERS v. NEVILLE'S trustee & als.

67 Va. 549

PETERS v. NEVILLE'S trustee & als.

Supreme Court of Appeals of Virginia.

September 30, 1875

1. Bonds well secured are given by purchasers at a judicial sale made in 1860, and they fall due in 1861, 1862 and 1863. In 1860 P is appointed a receiver to collect the purchase money and he collects that due in 1862 and 1863 in Confederate money, and makes no report to the court, but retains it in his own hands. He was not authorized or justified in receiving Confederate money, and it is not to be scaled.

2. Where an exception is not taken to a commissioner's report, on a question which might be affected by extrinsic evidence, and the question is not made in the court below the appellate court will not consider it.

3. After an appeal has been allowed in a cause, by consent of parties a decree is made, modifying, in one respect, the decree appealed from. The appellate court may amend the decree appealed from in that respect, and affirm it.

4. A decree directing a receiver to pay certain sums to parties which should bear interest from a certain day, will be amended, and so amended will be affirmed.

This was a suit in equity in the Circuit court of Nelson county brought by Frederick G. Peters, to subject the real estate of LaFayette Neville to satisfy the plaintiff's judgments. Other creditors of Neville came in by petition; the land was sold by commissioners in 1860, upon a credit of one, two and three years; and in that year Peters was appointed a receiver to collect the purchase money. The only material question in the case is, whether moneys collected during the war by Peters should be scaled? The court below refused to scale them, and Peters applied to a judge of this court for an appeal; which was allowed. The case is stated by Judge Moncure in his opinion.

Coghill and Fitzpatrick, for the appellant.

Thompson, Wm. M. Cabell, Whitehead & Wm. J. Robertson, for the appellees.

OPINION

MONCURE, P.

The main and almost the only question arising in this case is, whether the amounts collected by the appellant, F. G. Peters, as receiver in this case, in Confederate money, ought to have been scaled?

The following is a statement of the facts and history of the case, so far as material to be stated.

This suit was brought in March 1859 by the appellant, the said F. G. Peters, to enforce his judgment liens against the real estate of LaFayette Neville, deceased, consisting of a tract of land in the county of Nelson known as " " Locust Grove," containing six hundred and fifty-five acres. Other creditors of said Neville, by judgment and otherwise, afterwards came in, on petition or motion, and joined in the prosecution of the suit. On the 1st of October 1859, it appearing to the court that the sale of the said tract of land must necessarily be made, the court without deciding any other question in the case, and reserving for future decision the question how the proceeds of sale should be distributed, decreed that the said tract of land should be sold by commissioners appointed by the court for the purpose, for cash as to so much of the purchase money as was necessary to defray the expenses of sale, and on a credit of one, two and three years as to the residue, to be paid in three equal annual instalments, to be secured by bonds with good security, bearing interest from the day of sale, and the title to be retained until the purchase money should be fully paid. In August 1860 the said tract of land was accordingly sold by the said commissioners, who shortly thereafter made their report to the court.

On the 29th of September 1860 the cause came on to be heard on the papers formerly read and the said report of sale, to which report and sale there was no exception; and on consideration thereof the court approved and confirmed the sale. The decree then proceeds in these words: " And it appearing from the deeds filed in the cause, that F. G. Peters (the plaintiff and appellant) is now the owner of the dower right of Mary J. Neville in the " Locust Grove" tract of land sold as aforesaid, which dower right the said F. G. Peters elects to commute and receive the value thereof in money; and all the parties in interest in this cause consenting to said election, the court doth adjudge, order and decree that the commissioner in chancery, who may take the accounts herein before directed, (by a decree made on the 8th of May 1860,) do ascertain the money value of the dower right of Mary J. Neville in the purchase money of " Locust Grove," as of the 27th of August 1860, the day of its sale, and make report to the court; and it being suggested that the purchaser of said land desires to pay off and retire one or more of his bonds before they mature, the court doth adjudge, order and decree that F. G. Peters, who is hereby appointed a receiver for the purpose, be at liberty to withdraw the bonds of Stevens, Fulks & Harvey, for the purchase money of " Locust Grove," (upon leaving attested copies thereof,) and proceed to collect the same." But the said Peters was required first to give bond with good security for the faithful discharge of the duties of his office of receiver.

No other decree or order was made in the case, and nothing further appears to have been done in it for six years, and until the 5th of October 1866, when a further order was made in regard to the taking of the accounts before directed, which had not been taken, either in whole or in part; and the said receiver was directed to report his proceedings at the next term. Nothing further appears to have been done in the case until 1870 and 1871, when commissioner Kirby settled the accounts ordered to be taken by decrees made in the cause in 1860; and on the 8th of March 1871 he made his report. From that report, it appears that the dower right of Mary J. Neville, which had been assigned to the receiver, was valued at $1,401.68; which, with interest from August 27, 1860, to January 1871,

making $869.97, amounted to $2,271 65;

and that his two judgments, with interest to the same day and costs, amounted to 1,508 86;

making his whole claim against the fund, including interest, $3,780 51.

It further appears from the report, that the receiver was charged by the commissioner with the following sums of money collected of the purchasers of said land, viz:

1860, October 5--To cash $700; 1862, November 24, ditto $1,500; 1863, January 3, ditto $1,300; 1863, July 27, ditto $1,000; 1868, September 28, ditto $300.95. 1869, January 1, ditto $20; making the amount of principal collected 4,820 95;

on which the interest to 1st January, 1871, amounted to 2,271 67;

making the whole amount of principal and interest $7,092 62.

From the interest the Commissioner deducted $20 paid William Cabell, and $8.47 costs of suit, 28 47;

and the balance remaining due on that account appeared to be $7,064 15,

with interest on the principal, $4,820.95, from January 1, 1871, till paid. The receiver did not appear and make any exception before the commissioner, but made the following exception and affidavit after the return of the commissioner's report, viz:

EXCEPTION.

" The plaintiff, F. G. Peters, receiver in this cause, excepts to so much of commissioner Kirby's report as charges him with the full amount received by him of S. C. Stevens. All of the sums so received, except the sum of $700, as of the 27th of August, 1860, were collections in Confederate money, and liable to scale. See affidavit of F. G. Peters filed herewith, marked ‘ A.’ "

AFFIDAVIT.

" State of Virginia--Nelson county.

This day Frederick G. Peters personally appeared before me, a justice of the peace in and for the county aforesaid, and made oath, that all the collections made by him in the case of Peter's su'g partner v. Neville, & c., were in Confederate notes, save and except the sum of $700 of principal and $21.95 of interest; that he did not appear before said commissioner in said cause, and show said fact, because he was of opinion that said commissioner would, of his own motion, scale all collections made after January 1st, 1862. Given under my hand this 23rd day of March, 1871.

P. H. CABELL, J. P."

On the 15th day of September, 1871, by consent of parties, the cause came on again to be heard upon the papers formerly read, the said report of commissioner Kirby, the said exception of the plaintiff and receiver thereto, and other exceptions thereto by other parties, and was argued by counsel: on consideration whereof the court overruled the plaintiff's exception, and made other rulings in regard to the other exceptions; and recommitted the report to the same commissioner, to restate the accounts according to the said rulings; who was authorized to proceed without any further notice to the parties, except reasonable notice of the time to the respective counsel engaged in the cause. In stating the account the commissioner was directed to report any other judgment claims against Lafayette Neville which might be proved before him.

On the 6th day of March, 1872, commissioner Kirby made his supplemental report in obedience to the last mentioned decree, after reasonable notice to all the counsel of all parties interested; which report he said, he believed was made in conformity with all the rulings of the court in the said decree of the 15th of September, 1871. There was no exception to that report by any party.

On the 27th March, 1872, the cause came on again to be heard on the papers formerly read, with the supplemental report aforesaid to which there was no exception, and was argued by counsel; on...