Saunders v. Waggoner & Co.

• Decision Date: 15 July 1886
• Citation: 82 Va. 316
• Court: Virginia Supreme Court
• Parties: SAUNDERS, TRUSTEE, v. WAGGONER & CO. SAUNDERS, TRUSTEE, v. PEMBERTON & PENN. SAUNDERS, TRUSTEE, v. THE GLAMORGAN CO.

82 Va. 316

SAUNDERS, TRUSTEE, v. WAGGONER & CO.

SAUNDERS, TRUSTEE, v. PEMBERTON & PENN.

SAUNDERS, TRUSTEE, v. THE GLAMORGAN CO.

Supreme Court of Appeals of Virginia.

July 15, 1886

Error to judgment of circuit court of Franklin county, rendered April 1st, 1885, in three actions at law, tried together (1) Waggoner & Co. v. E. W. Saunders, trustee of M. Waid (2), Pemberton & Penn v. The Same; and (3), The Glamorgan Company v. The Same.

The plaintiffs caused their executions, issued on judgments obtained against Waid since the date of the trust deed executed by Waid to said trustee, to be levied on personal property conveyed thereby. Saunders claimed the property under the trust deed. The plaintiffs indemnified the sheriff. Saunders gave the suspending and forthcoming bonds required by the statute in such case. Proceedings were then had under Code 1873, ch. 149, whereby his claim to the property levied on was tried. The court decided against his claim. Thereupon he obtained a writ of error and supersedeas.

Opinion states the case.

Penn & Cocke and G. E. Dennis, for the plaintiff in error.

R. E Scott and Dillard & Dupuy, for the defendants in error.

OPINION

FAUNTLEROY, J.

The questions of law and of fact being the same in each of these causes, as a matter of convenience, it was agreed that the same judgment should be rendered in each case; and though separate judgments were entered up, the petition in this case brings them all up together, and they have been argued and submitted, as one cause, to the review of this court. From a transcript of the record presented, it appears that: On the 15th day of March, 1884, Marshall Waid and wife executed a deed of trust, conveying a large amount of property, real and personal, to E. W. Saunders, trustee, to secure his creditors, who are named in the said deed in two classes. Subsequent to that time and event, the several plaintiffs in the three common law actions mentioned obtained judgments against the said Waid, and caused executions to be levied upon the personal property conveyed in the aforesaid deed of trust; and the sale thereof being forbidden by Saunders, the trustee, the respective plaintiffs gave indemnifying bonds, and then the trustee gave suspending and forthcoming bonds; whereupon, the said several plaintiffs united in a petition for the trustee to be required to appear before the circuit court of Franklin county and assert his title to the said property levied on. The trustee appeared and claimed the title under the said deed of trust; and, the facts being agreed, the court rendered judgment in favor of the several plaintiffs in the executions, and against the trustee for the property so levied on.

The case presents a contest between execution creditors claiming certain personal property by virtue of their several liens of fieri facias, and a trustee who claims the same property by virtue of a deed of trust of prior date to the liens of the executions. The sole question presented for the decision of this court is, which is the better claim? In determining this question the court will look to the face of the deed of trust, and to the facts agreed upon by the parties to the submission. The contention of the appellees is, that, though the deed of trust is professedly to indemnify creditors of the grantor, yet it reserves to the grantor powers inconsistent with the terms and object of the deed, which are adequate to defeat the purpose of the deed, and that it is, therefore, null and void.

But we are met, at the very threshold, with the question of the jurisdiction of this court to review the judgment of the court below in these cases. The Constitution of Virginia, article VI, section 2, fixes five hundred dollars of value, exclusive of costs, as the minimum amount requisite to give this court jurisdiction to review a judgment or decree of a circuit court. The onus is upon the appellant, or plaintiff in error, to show by the record that the case which he presents is one of which the appellate court has jurisdiction. Harman v. City of Lynchburg, 33 Gratt. 40. Citing 10 Peters 160.

In this case the plaintiffs' debts are separate and distinct, and evidenced by separate and several judgments rendered in independent and respective common law actions. Neither plaintiff has any interest, privity or concern in the judgments of the others, and their several claims could not be united or consolidated to give this court jurisdiction. Umbarger v. Watts, 25 Gratt. 167; opinion of this court by Burks, J., in Pope v. Hale, not reported, referred to in the unanimous opinion of this court in Southern Fertilizing Co. v. Nelson, reported in Virginia Law Journal March, 1882, page 162.

The record shows that, on February 24, 1885, J. J. Waggoner &amp Co. having an execution for $1,095.13 against one Marshall Waid, in the hands of the sheriff of Franklin county, directed it to be levied, and the sheriff did levy it upon " sixteen boxes of manufactured tobacco, one hydraulic press, two sets of plug-shapers, four screws, fourteen hogsheads of tobacco stems, two thousand pounds of leaf tobacco, two show cases, lot of dry goods, hardware, boots, shoes, drugs, groceries, notions, earthenware, clothing, three pair of scales, one iron safe, and sixty-four head of cattle--the property of Marshall Waid." All of which was then...