Tate v. Tate

• Decision Date: 09 August 1888
• Citation: 7 S.E. 352,85 Va. 205
• Parties: Tate et al. v. Tate et al.
• Court: Virginia Supreme Court

7 S.E. 352

(85 Va. 205)

Tate et al.

v.Tate et al.

Supreme Court of Appeals of Virginia.

August 9, 1888.

1. Bond—Title—Presumption.

The bond in suit was originally given by defendant's decedent to one A., and showed no indorsement from him to plaintiff. Many years had elapsed since it was given, most of the parties familiar with the transaction, including A., wore dead, and plaintiff, although he had brought other suits against decedent's estate, had neglected until long thereafter to sue on the bond. On the other hand, it appeared that the bond had come into plaintiff's possession long before A.'s death, and that, although A. lived in the neighborhood, and was in straitened circumstances, he had made no claim to it. Held, that plaintiff's possession was presumptively regular, and that a judgment in his favor would not be disturbed. 2. New Trial—Newly-Discovered Evidence—Cumulative.

Newly-discovered evidence which is merely cumulative, and is contradicted by evidence already in the case, is not ground for new trial.¹

Hinton, J., dissenting.

Appeal from circuit court, Smyth county.

Buchanan & Buchanan and Peirce, Gilmore & Williams, for appellants. B. Trigg and J. P. Sheffey, for appellees.

Fauntleroy, J The petition of Thomas G. Tate, Franklin Grayson, and Nancy, his wife, Charles J Shannon, executor of Thomas M. Tate, deceased, It. S. Bonham, late sheriff of Smyth county, and, as such, administrator de bonis non of John B. Tate, deceased, R. S. Bonham, late sheriff of Smyth county, and, as such, administrator of Susan B. Adcock, deceased, John Lit-trell, and Mary, his wife, and David P Graham, surviving partner in the lirm of D. Graham & Son, and in his own right, and Nancy, his wife, complains of two decrees of the circuit court of Smyth county, rendered, respectively, at the July special term, 1886, and the April term, 1887, of the said court, in the following named causes in said court depending, in which they, the said petitioners, are parties defendant, viz.: Mary C. Tate and others v. Thomas M. Tate's Executors; V. S. Morgan v. John B. Tate's Administrator and others; A. H. Tate and others v. Thomas M. Tate's Executors and others; M. B. Tate v. A. H. Tate, Administrator of L. H. Tate, deceased, and others. Among other things, the object of these suits was to ascertain the indebtedness of the estate of L. H. Tate, deceased, which indebtedness had been assumed by Thomas M. Tate and John B. Tate in their life-time. The appellee, M. B. Tate, asserted a number of claims against the said L. H. Tate's estate; among others, a bond for $3,000, dated March 24, 1860, and due on 24th of November, 1860, with a credit indorsed thereon as of June 29, 1863, for "$1,678.30 Confederate money, " payable to B. F. Aker, and signed and sealed by L. H. Tate. This claim was inquired of by the master commissioner, who allowed it, and reported it favorably to the court; and the court, overruling the exception to the master's report, ordered it to be paid, by its decree of July 19, 1886, special term. The petitioners filed a petition for a rehearing of the said causes, so far as the said bond was concerned, on the ground— First, that the said decree of July 19, 1886, special term, is erroneous on the merits of the case, and that the circuit court should correct it, without the expense of an appeal; and, secondly, because of after-discovered evidence; but the court, at its April term, 1887, refused to rehear the said causes. The errors assigned in the petition for appeal are the decree of July 19, 1886, special term, and the court's refusal, at its April term, 1887, to rehear the said causes.

The only question involved in this appeal is the right of, M. B. Tate to collect from the estates of John B. Tate, deceased, and of Thomas M. Tate, deceased, this aforesaid bond for $8,000, with the credit on it of $1,678.30 as of June 29, 1863, under and by virtue of a written contract made October 24, 1865, between L. H. Tate and wife (L. II. Tate being then on his death-bed) and his brothers, John B. Tate and Thomas M. Tate, by which they undertook and covenanted to pay all the debts of the said L. H. Tate. The decree of this court, in a former appeal of Tate v. Tate's Ex'r, 75 Va. 522, has decided that the estates of Thomas M. Tate and John B. Tate, deceased, are bound by the said agreement of October 24, 1865, to pay all the debts of L. H. Tate, deceased; and the personal representatives of the said L. II. Tate, deceased, in their answer to the bill of M. B. Tate, filed in the causes, pray "that those who are bound to pay the debts of L. H. Tate's estate shall be required to pay whatever may be found to be due from the estate of L. II. Tate, deceased, if anything, to M. B. Tate." It appears from the record that the three brothers, Leonidas II. Tate, John B. Tate, and Thomas M. Tate, prior to the 24th day of October, 1865, owned in common, as equal partners, certain lands lying in Smyth county, Va., viz., one tract containing about 300 acres, on which Leonidas 11. Tate resided; and another, containing about 100 acres, near thereto; another, known as the "Poston Place, " containing about 470 acres; another tract containing some 1, 400 or 1, 500 acres, on which Thomas M. Tate resided; and two other tracts, known as the "Patrick" and "Lee" places, on one of which Lee resided, and claimed the right to redeem. They, the said brothers Tate, also owned in common all the personal property held by them, and the debts due to them; and they were jointly bound for the debts they or either of them owed. A short time before the death of Leonidas H. Tate, in the expectation of dying, he was greatly exercised and concerned about the state of his affairs, and he was especially anxious to secure to his family, for a home and shelter, the place on which lie resided, "free from debt and litigation." Accordingly, on the 24th day of October, 1865, Leonidas H. Tate retired from the tenancy in common, or partnership, which subsisted between him and his said two brothers, John B. Tate and Thomas M. Tate; and a deed was executed by the said Leonidas H. Tate and Mary C, his wife, of the first part, and John B. Tate and Thomas M. Tate and Elenor F., his wife, of the second part, reciting the tenancy in common and community of interest, both in all the lands and personalty and debts held by the three said brothers, or owed by them, and saying: "Now, therefore, for a full, complete, and final settlement of all their matters, as well those relating to the lands as those relating to the personal property, and debts to or from them, the said Leonidas H. Tate and Mary Caroline, his wife, do hereby release, relinquish, and forever quitclaim to the said John B. Tate and said Thomas M. Tate all their right, title, and interest of, in, and to the said tract of 470 acres, more or less, known as the 'Poston Place;' the tract of 1, 400 or 1, 500 acres, anore or less, lying on the north fork of Holston, where Thomas M. Tate now lives; also the Patrick place, and the Lee place, or the money arising from the redemption of said Lee place; and also do release all claim to all the debts due to the said parties, except a debt on R. H. Richardson, now in litigation in the circuit court of Smyth, which is to be equally divided between the three parties, L. H. Tate, J. B. Tate, and Thomas M. Tate, if collected; also to all the personal property, stock, etc., on said lands, or in the actual use and possession of said John B. Tate or Thomas M. Tate; and the said John B. Tate and Thomas M. Tate and Elenor P., his wife, on their part do release, relinquish, and forever quitclaim to the said Leonidas H. Tate, all right, title, interest, or claim to the said tract of 300 acres, more or less, on which said Leonidas H. Tate lives; also to the said tract of about 100 acres adjacentthereto; also to all the stock and personal property on both places; and do further bind themselves to pay all the debts due from the said Leonidas H. Tate, John B. Tate, and Thomas M. Tate, together with any sum that may be in arrear towards the purchase money of the Poston place, or may be recovered against them by the widow and heirs of H. D. Poston, so as to leave the said Leonidas H. Tate free from debt and litigation." This deed of October 24, 1865, is duly recorded in the Smyth county court clerk's office. The tenancy in common or community of property continued to exist between John B. Tate and Thomas M. Tate down to the death of John B. Tate, in 1871.

The bill charges, and the record shows, that the bulk of the indebtedness which weighed so heavily upon the dying solicitude of Leonidas H. Tate, and from which he desired and stipulated to be freed, were debts due to the appellee M. B. Tate, and that he owed, comparatively, but little besides and outside of them; and without them it does not appear that there was any adequate consideration moving Leonidas H. Tate to receive a share of the partnership estates utterly disproportioned and inequitable, even taking them into account. He was entitled to one-third of the property of the partnership; and the share assigned to him is very far less in value than one-third, but which he accepted in view of death, and with the assurance of leaving his family in a home "free from debt and litigation." The Poston place and the liiver place, upon which Thomas M.Tate resided, of 1, 400 or 1, 500 acres, are worth more than $38,000; to say nothing of the "Patrick" place and the "Lee" place, and the debts due to the partners, and the large personal property, stock, and appointments which they received with these said farms. And it is incredible that L. H. Tate would have made the unfair and grossly unequal division, by the deed of October 24, 1865, with John B. Tate and Thomas Mi Tate, if he did not owe the $3,000 bond, with the credit indorsed thereon as of June 29, 1863. That the bond in question is the bond of L. H. Tate is not controverted; the signature is proved and admitted....