Scott's Ex's v. Scott

• Citation: 59 Va. 150
• Parties: SCOTT'S ex'ix v. SCOTT.
• Decision Date: 27 January 1868
• Court: Supreme Court of Virginia

59 Va. 150

SCOTT'S ex'ix v. SCOTT.

Supreme Court of Appeals of Virginia.

January 27, 1868

E owns an estate for her life in property, both real and personal including slaves; and S owns the remainder in fee therein and E and her trustee enter into a contract called by the parties a lease, by which they convey to S the life estate of E in the whole of the property, and S, in consideration thereof, undertakes to pay E annually for her life seven hundred dollars as rent, and to pay all taxes and legal charges on the estate; and the usual remedies for the recovery of these annual sums were reserved. S was put into possession of the property, and held and treated it as his own. HELD:

1. Though the instrument was called a lease, and the sums reserved was called a rent, the contract was a surrender and the life estate of E was merged in the estate of S.

2. The instrument not being under seal, it was not as to the land, an express surrender; but it was a contract for a surrender, which was carried out by the parties, by the delivery of possession and the payment of money under it and it, therefore, has all the legal effect of an express surrender by deed. As to the personal property, no deed was necessary.

3. The slaves having been emancipated by the proclamation of the President of the United States, this does not entitle S to any abatement from the amount of the annual payments which he contracted to make.

In June, 1865, Eliza D. Scott filed her bill in the County court of Stafford county, which was afterwards removed to the Circuit court of the county. In it she stated--That some time previous to the year 1849, Richard M. Scott, of Bush Hill Stafford county, Va., by a will made by him, devised and bequeathed his St. Marysville estate, in said county, being a large landed property, twenty-five or more negroes, and a large amount of other personal property, in trust to William H. Fitzhugh and Edwin C. Fitzhugh, for the benefit of Richard M. Scott, Jr., during his life, and after his death, the profits of said property was to be paid to the plaintiff for her life; the whole of said estate to be subject by way of rent to the annual payment of $200 on the 1st of January of each year, to his heirs. That this will was admitted to record in the court of the county of Stafford, previous to the year 1849; and that previous to that year Richard M Scott, Jr. 1st, the first beneficiary under the will, died; and by the will the profits of the estate were then to be paid to the plaintiff. That William H. Fitzhugh alone qualified as trustee under the will. That in August, 1850, Fitzhugh and the plaintiff executed a lease to Richard M. Scott, Jr. 2d, of the said property, for and during the life of the plaintiff; which lease was signed by them, and by the said R. M. Scott, Jr. 2, as lessee, and was under seal dated about August 30th, 1850, and recorded in the clerk's office of Stafford county: by the terms of which lease the lessors agreed that the lessee should have possession of said property and the profits thereof from the 1st of January, 1850, and should hold the same during the life of the plaintiff; and the lessee covenanted and agreed to pay to the lessors the sum of $900 per annum, as rent of the said premises and property, on the 1st of January, 1851, and each succeeding January, during the life of the plaintiff; and to pay all taxes and legal charges against the said estate; subject to the deduction of $200 per annum, the rent charge upon the estate. That the lessee thereupon took possession of the said property; and he and his representatives have held it ever since. She charged that no rent had been paid since the 1st of January, 1861, and that the rent for the years 1861,-'62,-'63 and '64 were then due; that Wm. M. Fitzhugh was dead; that the records of Stafford county court were destroyed; that Richard M. Scott, Jr. 2d, was dead, and Virginia Scott was his executrix; and making her a party, the plaintiff asked for a decree against her for the amount then due, with interest, and for any sums that might thereafter become due on said lease; and for general relief.

Virginia Scott answered the bill. She admitted the facts of the will and the lease as stated in the bill; except that she said the will was not lost, but was recorded in Fairfax county; and that the lease, of which she exhibited what she said was a copy of the original in her possession, was not under seal. She admitted the rent due in 1861 and subsequently had not been paid; and alleges that in the years 1861 and 1862 the slaves, which constituted the most remunerative portion of the estate, left her, and on the 1st of January, 1863, they became free under the proclamation of the President of the United States. She insists, therefore that there should be an apportionment of the rent.

The lease is signed by Fitzhugh and Richard M. Scott, Jr. 2d, and after reciting the will of Richard M. Scott, Sr., as stated in the bill, proceeds: and whereas the said Richard M. Scott, (Jr. 2d,) who at the death of the said Elizabeth B. Scott will be entitled in reversion, and the said Wm. H. Fitzhugh, trustee as aforesaid, have agreed that it will promote the interest of the said Richard M. Scott, and render secure and certain the interest of Elizabeth D. Scott, that the said Richard M. Scott should obtain possession of the estate, both real and personal: Now this agreement witnesseth that the said Wm. H. Fitzhugh has contracted with, and doth hereby lease the estate aforesaid, consisting of the landed estate, including two fisheries, and the following slaves, (naming them,) in number twenty-five, and all other property of every description belonging to said estate, for and during the natural life of the said Elizabeth D. Scott, to the said Richard M. Scott; the property to be delivered on the 1st of January, 1851. And the said Richard M. Scott does hereby contract to pay, & c., as stated in the bill. The said Wm. H. Fitzhugh, trustee, to be entitled to the usual remedies for the recovery of the rent in case the tenant shall at any time be in default. In testimony whereof, the parties to these presents have hereunto subscribed their names on the day and year in these articles written.

The only witness examined as to the value of the estate was a son of the plaintiff, who seems to have acted as her agent before the lease to Scott. He states there were seven hundred and fifty acres of land. That the use of the estate was worth from $2500 to $2700 per annum. That he had been offered $500 for the farm and $1200 for the fisheries, provided he could get Fitzhugh removed from the trusteeship, for five years; and that the slaves were worth about $1000 per annum.

The deposition of the plaintiff was taken, and was not excepted to. She says that she had been informed, but does not know of her own knowledge, that the defendant had sold some of the slaves; and she filed with her bill a copy of a letter from Scott to herself, written in 1852, in which he says: In reply to your interrogatory, as to whether Lizzie is well and living, and what I will take for her, I have only to say that none of my servants are for sale.

The cause came on to be heard on the 15th day of June, 1866, when the court held that the contract between Fitzhugh and Richard M. Scott was an executed contract; and that there should be no abatement or apportionment of the annual amount payable to the plaintiff by the terms of said contract; and made a decree in her favor for $3500, with interest from the dates when the annual sums became due until paid; and her costs. This decree included the amount payable on the 1st January, 1866.

From this decree the executrix of Richard M. Scott, Jr. 2d, obtained an appeal to the District Court of Appeals at Fredericksburg; where it was affirmed; and from that decree there was an appeal to this court.

Beach, for the appellant.

The only question in this case is, whether there should be an abatement of the rent. This is a demise of real and personal estate. Where such is the case, and there is an eviction of the personalty, then there shall be an abatement of the rent. This was so decided in Newton v. Wilson, 3 Hen. & Mun. 470. This case is referred to in 1 Tuck. Com. Book 2, ch. 3. Then was there an eviction of the personalty? I insist that there was in this case a technical eviction; but if not a technical eviction, there was what is equivalent to it.

In the case of a slave there may be an eviction in two modes: 1st. If he is recovered by a third person by a better title. 2d. If he recovers his freedom, the effect must be the same. The essence of the eviction consists in the loss of the right to the service of the slave. There can be no difference in its effect, whether the slave recovers his freedom by action of law, or being entitled to his freedom he gets it without suit. When a state of facts occur, which by recognized principles of law, gives him freedom, this is a technical eviction.

But let us suppose that this is not a technical eviction. The foundation of the doctrine of apportionment is the failure of consideration. If A demises B ten acres of land, and B is evicted of five acres by better title, he is entitled to an abatement of rent, for the failure of the consideration in which the rent was contracted to be given. And in the case of slaves, whenever the lessee loses the slave without wrong on his part, he is entitled to an abatement. The slave may die or run away. In the first case, the hire ceases on his death if he runs away, the lessee still has the right to his services. In the case of real estate there is no apportionment, because the lessee has the consideration for which he was to pay. But a court of equity will apportion the rent even when a court of law will...