Tazewell's Ex'r v. Saunders' Ex'r

• Decision Date: 23 May 1856
• Citation: 54 Va. 354
• Court: Virginia Supreme Court
• Parties: TAZEWELL'S ex'or v. SAUNDERS' ex'or & al.

54 Va. 354

TAZEWELL'S ex'or v. SAUNDERS' ex'or & al.

Supreme Court of Appeals of Virginia.

May 23, 1856

1. Laches in the assertion or prosecution of a claim is not always enough to defeat it. The laches must be such as to afford a reasonable presumption of the satisfaction or abandonment of the claim; or such as to prevent a proper defense by reason of the death of parties, loss of evidence or otherwise.

2. Courts of equity will decree interest upon a bond or judgment beyond the penalty, against the principal debtor.

3. A commissioner having by mistake omitted a credit in ascertaining the amount due upon a bond, the appellate court will correct the decree in this respect, and affirm it with costs.

On the 20th of July 1795 Littleton Tazewell executed to John Bracken and Robert Saunders, executors of James Carter deceased, a bond in the penalty of one thousand two hundred and fifty-three pounds six shillings and seven and a half pence with condition to pay one-half of that sum on the 1st day of the next January, with interest from the date. Upon this bond there was a credit of two hundred and fifty pounds, under date of October 24th, 1796.

Littleton Tazewell died in 1815; and by his will, which was duly admitted to probat, he authorized his executors to sell any part of his estate real or personal for the payment of his debts; and he directed that his estate should be kept together for the support of his widow and only child until the latter should marry. Mrs. Tazewell and Dr. William Tazewell qualified as executors of the will.

In September 1817 Bracken and Saunders recovered a judgment by default upon the bond aforesaid, against Mrs. Tazewell as executrix of her husband. In April 1818 this judgment was enjoined by Mrs. Tazewell and Dr. Tazewell; and it was not dissolved until August 1836. In the mean time Mrs. Tazewell died, and an order was made in the injunction cause requiring Dr. Tazewell to consent to the revival of the judgment against him as executor; and this was done in April 1832. In August 1836 the injunction was dissolved, but without damages, and with costs to the plaintiff, which were directed to be credited on the judgment; the court being of opinion that the plaintiff was entitled to come into equity against a judgment for the purchase money for land, to a part of which he could not otherwise obtain title. The only part of this injunction cause which is in the present case is the final decree. From that it appears that the land on which the judgment enjoined had been obtained, was given upon the purchase of a tract of land called " Secretaries," the title to a part of which had not been made when the injunction was obtained, but was perfected by a conveyance decreed in the cause. And the final decree directed that the land should be conveyed to the surviving husband and heirs at law of Sarah Tazewell, the only child of Littleton Tazewell and further, that if the judgment was not satisfied within three months after the date of the decree, the land called Secretaries should be sold to satisfy the judgment.

In January 1837 an execution was issued on the judgment, which had been revived against Dr. Tazewell as the executor, and was returned " no effects." In October 1842 Robert Saunders, executor of Robert Saunders deceased, and administrator de bonis non with the will annexed of James Carter, instituted this suit in the Superior court of chancery for the Richmond circuit, for the purpose of obtaining satisfaction of the said judgment out of the estate of Littleton Tazewell deceased. He made Edward S. Gay executor of William Tazewell deceased, and William O. Goode in his own right and as executor of Mrs. Tazewell, defendants. The accounts of the executors of Littleton Tazewell were referred to a commissioner; and his report was twice recommitted. One of the questions of controversy before the commissioner was, as to which of the executors was to be charged with the personal estate of their testator. The executor of Dr. Tazewell insisted, as Dr. Tazewell had insisted in his lifetime, that he had not acted as executor in the time of Mrs. Tazewell; whilst the commissioner held that he was the sole acting executor; and therefore charged him with the whole estate, except a very small portion of it. There were other questions also, and several exceptions to the report of Dr. Tazewell's executor. These questions were, however, only important, with reference to the preceding case of Whittle v. Tazewell; as there was no question that Dr. Tazewell had acted as executor after the death of Mrs. Tazewell, and as such had sold the real estate, the proceeds of which in his hands were more than sufficient to pay the debt of Saunders.

The cause came on to be finally heard on the 1st day of February 1853, with the case of Whittle's adm'r v. Tazewell's ex'or, when the court, adopting a special statement which made the assets of the estate of Littleton Tazewell in the hands of Dr. Tazewell to amount to fourteen thousand four hundred and fifty-three dollars and fifty-five cents, which was more than sufficient to pay both debts, rendered a decree in favor of the plaintiff Saunders for the sum of five thousand two hundred and ninety-two dollars and twenty-five cents, with interest at five per cent. per annum on the principal sum due him, from January 1st, 1850; to be paid by the executor of Dr. Tazewell out of the assets in his hands, that being the amount of the sum mentioned in the condition of the bond on which the judgment had been recovered, with interest from its date, subject to the credit for two hundred and fifty pounds, paid in October 1796. The amount of the decree exceeded the whole penalty of the bond; and there was an omission to credit the amount of the costs in the injunction suit, as directed by the decree in that case. From this decree Tazewell's executor applied to this court for an appeal, which was allowed.

Grattan, for the appellant, commented on the facts of the case, and insisted that the laches of the plaintiff below forbade the interference of a court of equity in his behalf; and that on that ground the bill should have been dismissed. He then proceeded:

But if the bill is not to be dismissed, then the question arises as to the amount of the plaintiff's recovery. The decree in the cause is for more than the whole penalty of the bond; and that although two hundred and fifty pounds had been paid upon it in October 1796. We insist that, except under special circumstances, a court of equity cannot decree beyond the penalty of a bond, or the amount of the judgment. In an early case in Virginia it was held that a debtor might discharge a judgment by paying the penalty and the costs. Downman v. Downman, 1 Wash. 26. We know that at law interest beyond the penalty of a bond can only be recovered by the verdict of a jury giving the excess of interest in the shape of damages. By the act of 1804, 1 Rev. Code, p. 208, § 58, the court is put in the place of a jury; but that is only in those cases, where the court could before give interest up to the decree; and by the act it may give it to the time of payment. Deanes v. Scriba, 2 Call 415; Snickers v. Dorsey, 2 Munf. 505. And this act was not applicable to judgments. Mercer v. Beale, 4 Leigh 189.

But although interest beyond the penalty of a bond was allowed at law to be recovered in the shape of damages for the detention of the debt, the courts of equity of England have by a long course of decisions refused to follow the common law courts, and have limited the recovery to the amount of the penalty, unless the creditor had been delayed by the improper conduct of the debtor in the recovery of his debt. Nor have they limited the doctrine to cases where the debt was due by bond alone. Thus it will be seen that in cases of judgments the same rule has been followed. Denny v. Ld. Enniskillen, 12 Cond. Eng. Ch. R. 609; Gaunt v. Taylor, 9 Id. 47; Tunstall v. Trappes, 5 Id. 123, 129-30; Booth v. Leycester, 15 Id. 247; Deschamp v. Vanneck, 2 Ves. jr. R. 716. So in the case of annuities. Creuze v. Hunter, 2 Ves. jr. R. 157; Mackworth v. Thomas, 5 Id. 329; Crosse v. Beddingfield, 35 Eng. Ch. R. 31; Anderson v. Dwyer, 1 Sch. & Lef. 301. Among the many cases in which the rule has been applied to bonds, are Tew v. Earl of Winterton, 3 Bro. C. C. 489; Clarke v. Seton, 6 Ves. R. 411; Hughes v. Wynne, 6 Cond. Eng. Ch. R. 477. There are cases, it is true, in which interest has been allowed beyond the penalty in England; but they are cases which come within the exception before stated; as Grant v. Grant, 5 Cond. Eng. Ch. R. 144; or the debt and not the bond has been secured by a mortgage, and satisfaction has been sought out of the mortgage subject; as Clarke v. Ld. Abingdon, 17 Ves. R. 106. In Virginia, interest beyond the penalty was allowed in Beall v. Silver, 2 Rand. 401; a case of gross fraud; and in Baker v. Morris, 10 Leigh 284. This last case was decided by but two judges in a court of three, and is therefore not an authority. The question, too, was obviously not considered, and was decided upon the authority of the case of Tennants v. Gray, 5 Munf. 494, a case at law, without adverting to the difference in the rules prevailing at law and in equity.

It is true that President Pendleton said in an early case that it was natural justice that a man who had the money of another should pay interest upon it. Whether that observation be correct or not as a moral proposition we need not stop to enquire. It is equally true that it is the business of courts to enforce the contracts of parties as made by them, and not to change them according to their own notions of natural justice. And certainly, however just it may be to pay interest on money, there are cases in which the law...