Smith's Ex'r v. Powell

• Decision Date: 05 July 1900
• Citation: 36 S.E. 522,98 Va. 431
• Parties: SMITH'S EX'R. v. POWELL.
• Court: Virginia Supreme Court

98 Va. 431

36 S.E. 522

SMITH'S EX'R.

v.POWELL.

Supreme Court of Appeals of Virginia.

July 5, 1900.

ESTOPPEL — NOTES — ACCEPTANCE — APPEAL —ASSIGNMENT OF ERROR—MOTION IN TRIAL COURT—NECESSITY—SUBSEQUENT DECREE— APPEAL—ERRORS IN ORIGINAL DECREE.

1. Plaintiff obtained a decree against several defendants, and a note was tendered to his attorney in satisfaction of it. which he received on the representation of defendants that plaintiff had agreed to its acceptance, but plaintiff had never made such agreement, and repudiated the act of the attorney as soon as it came to his knowledge, and before the time to appeal had expired. Held, that plaintiff was not estopped from enforcing payment of the decree on the ground that defendants, by the attorney's acceptance, were prevented from taking an appeal.

2. Under Code, § 3451, providing that a judgment by default may be vacated by the trial court on motion; and section 3452, declaring that no appeal shall be allowed by the appellate court or judge for any matter for which the judgment may be reversed on motion in the trial court, — where defendants, who were held as joint obligors in a decree taken by default, made no motion in the trial court to vacate it, error in holding them so liable will not be considered on appeal.

3. Where, several years after a decree in favor of plaintiff, the respective attorneys consented to the appointment of a commission by the trial court to determine whether a note given in satisfaction of such decree had been accepted or not, and an appeal was taken from a decree that it had been accepted, errors in the rendition of the original decree will not be considered on such appeal.

Appeal from hustings court of Roanoke.

Action by Smith's executor against L. L. Powell, trustee. From a decree in favor of defendant, plaintiff appeals. Reversed.

Scott & Staples, for appellant.

Thomas W. Miller, for appellee.

KEITH, P. Smith's executor filed his bill in the hustings court of the city of Roanoke in June, 1890, stating that one Edmund Didier, the owner of three lots of land in said city, had entered into an agreement to sell the same to L. L. Powell, trustee for a number of beneficiaries, who were named, who were to take unequal interests in the said lot, ranging from 1/8 to 3/80 of the whole, as shown by the deed from Didier. The purchase price was $6,000, of which sum $2,833.33 was paid in cash, and for $2,566.6G Powell, trustee, executed his two negotiable notes, each for the sum of $1,283.33, payable at one and two years from date, and as to the residue he assumed two other negotiable notes drawn by Didier, payable to the order of Webb and others. A vendor's lien was reserved to secure the two notes of $1,283.33, and before the maturity thereof the first of these notes to fall due was, for value received, transferred to the plaintiff's intestate. This note not having been paid at maturity, Smith's executor filed his bill praying that the lots upon which it constituted a lien might be sold for its satisfaction, and that, if the fund thus produced proved insufficient to pay off the said note in full, the beneficiaries in the deed from Didier who are named parties defendant in the bill may be required to make good any deficiency. Powell, trustee, and all those interested in the trust, were made parties defendant, and as to all of them the bill was taken for confessed. In January, 1892, this cause was referred to a commissioner to report an account of the liens upon the property. The commissioner reported, and, there being no exception filed, his report was confirmed, and a decree of sale was entered. A sale was made and confirmed, which proved inadequate to satisfy the liens, and the court thereupon disposed of the purchase money to satisfy charges superior to the lien of Smith's executor, and applied the residue to his debt, which left due to him as of the 1st of April, 1893, the sum of $8G7.23, and to Edmund Didier the sum of $1,833.33, with interest from June 24, 1890, until paid, and for these sums a decree was entered against the defendants jointly. This decree disposed of the whole subject. It sold the land; it distributed the proceeds; it ascertained the balance due; it gave a decree against those who were, in the opinion of the court, liable for the sums ascertained to be due.

The only controversy in the suit thus far had been as to the measure of liability upon the defendants, their contention being that a personal decree should have gone against them only for their ratable proportion of the sum to be raised, to be ascertained by reference to their interests under the deed to them from Didier.

Upon the part of the plaintiff, it was claimed that they were jointly and severally liable for the whole amount, and this view was sustained by the court. There was some talk about an appeal from this decree, and thereupon Didier, who was anxious to get the money coming to him, undertook to bring about a settlement, as a result of which a Mr. Preston, who had purchased some of the interests in the suit, approached Mr. Scott, who was counsel of record for Smith's executor, and told him that he would pay upon the decree in the case to Smith's executor $608.15. This proposition was communicated by Mr. Scott to Didier in a note of April 24, 1893, the day upon which the decree under consideration was entered. On the following day, April 25, 1893, Didier and Preston went to Scott with a note drawn by Preston, payable to Booth's executor at the First National Bank of Roanoke, for $608. This note was indorsed by M. T. C. Jordan. Scott declined to receive this note because, as he said, he had no authority from Booth to take...