Ware v. Starkey

• Decision Date: 05 February 1885
• Citation: 80 Va. 191
• Parties: WARE v. STARKEY.
• Court: Virginia Supreme Court

80 Va. 191

WARE v. STARKEY.

Supreme Court of Appeals of Virginia.

February 5, 1885

Argued at Staunton, but decided at Richmond.

Appeal from decree of circuit court of Clarke county, entered May 24th, 1884, in the chancery cause of Josiah W. Ware's administrator against Benjamin Starkey, William B. Claggett and others.

Opinion states the case.

M McCormick and Barton & Boyd, for the appellant.

McDonald & Moore and J. J. Williams, for the appellees.

OPINION

RICHARDSON, J.

This is a controversy as to whether the six notes or single bills, hereinafter to be referred to, bear interest from the date of the contract of sale, or only from the maturity of the bonds. Before, however, considering the main question, we must dispose of a preliminary question, raised by counsel for the appellees.

It is insisted that the appellant, the plaintiff below, has no right to prosecute this or any suit in the premises. To properly understand this question, a brief statement is here necessary. On the 26th day of August, 1873, pending a suit in chancery in the circuit court of Clarke, by the style of Dobbin v. Ware, for the sale of the lands of the late Josiah W. Ware, for the satisfaction of certain liens thereon, and where a decree had been rendered in said suit for a sale of same, and commissioners appointed to make the sale, said Ware (who had died since the institution of this suit), entered into a contract in writing with Benjamin Starkey, whereby he agreed to sell and Starkey to buy, a certain tract of land, in the contract described, at the price of $60 per acre, payable in six annual instalments. The contract provides that the number of acres in the tract should be ascertained by survey as soon thereafter as convenient, and that Starkey was to execute his bonds for the purchase-money to bear interest at six per centum from this date, and to be secured by deed of trust on the property. The survey was promptly made, and on the 10th day of September, 1873, Starkey executed to F. W. M. Holliday, S. J. C. Moore, A. McDonald and A. Moore, Jr., the commissioners in the said suit of Dobbin v. Ware, his six " notes, " dated the 10th day of September, 1873, and the following is a copy of one of them, all being in the same form:

" On the 26th day of August, 1879, I bind myself, my heirs, & c., to pay to F. W. M. Holliday, S. J. C. Moore, A. McDonald and A. Moore, Jr., commissioners in chancery in the suit of Dobbin and Ware, the sum of six hundred and sixteen dollars and fifty cents ($616.50), with six per cent. interest, from date above, until paid, homestead exemption waived.

Witness my hand and seal September 10th, 1873.

BENJAMIN STARKEY, [Seal]"

Then, on the same day (September 10th, 1873), Starkey executed his deed of trust to secure said " six notes dated 10th day of September, 1873, with six per cent. interest from 26th August, 1873, and payable respectively 26th August, 1874, '5, '6, '7, '8, '9, for the sum of six hundred and sixteen dollars and fifty cents ($616.50) each, homestead exemption waived." The trust-deed was duly recorded.

In the copy of the contract produced in evidence, the last two lines thereof read: " The bonds for the purchase-money to bear interest at six per cent. from this date, and to be secured by deed of trust on the property." In these two lines the words " from this date" are plainly interlined, and admittedly in the same handwriting of the body of the instrument, that of the vendor, Ware.

The sale thus made by Ware was reported to court and confirmed in the case of Dobbin v. Ware, and the said bonds drawn payable to said special commissioners being at the same time presented in court, were by the court directed to be collected by A. Moore, Jr., as receiver, and the proceeds applied to the payment of the debts of said Ware, ascertained in said suit of Dobbin v. Ware. In that suit the court then proceeded to ascertain the amount of Ware's debts, to be provided for by a further sale of his lands, after applying the proceeds of said Starkey bonds; and in fixing the amount of said bonds so to be applied, the master commissioner, it seems, without reference to the said deed of trust or contract, but looking only to the wording of the bonds, concluded that they did not bear interest until after maturity, and to that extent discounted their face value, which action of the master commissioner was at the succeeding term of the court confirmed, and the receiver afterwards made collections accordingly.

Starkey paid the first bond, but finding he would not be able to make the other payments, and having been put in possession, and having seeded a crop of wheat in the fall of 1873, in 1875 sold the land to Wm. B. Claggett, one of the appellees, who paid off the said five bonds assumed to be paid by him in his purchase from Starkey, as demanded by said receiver, A. Moore, Jr.

When the last Starkey bond had become due and was paid, Ware discovered that the receiver had not collected the interest on the bonds, except from maturity; and thereupon Ware filed his bill, to enforce the contract according to its terms, and insisting that, according to the true construction thereof, said bonds bore interest from their dates. At the hearing the court below dismissed Ware's bill, and the case is here on appeal from the decree of dismissal.

Preliminary to the main question, it is contended by the appellees (1) that this is a suit simply to correct an alleged mistake in the execution of said bonds by Starkey; and (2) that the sale of the land to Starkey was a judicial and not a private sale, and therefore nobody, except the court or its officers, has any right to sue in respect to its enforcement.

A glance at the bill filed by Ware will show that, whilst it asks for alternative relief by way of treating the bonds as mistakenly executed in respect to the time from which they should bear interest, the leading feature of the bill is to enforce the contract for the alleged unpaid balance of purchase-money--the complainant insisting in his bill that the true intent and meaning, looking to all the instruments executed in connection with the sale of the land, was that the entire purchase price bore interest from the day of sale, as provided in the contract of sale. The prayer for alternative relief in the event the court should not adopt the main view and purpose of the bill by no means gave to the suit the character of one simply to correct a mistake.

It is in the second place true that there was, in the suit of Dobbin v. Ware, a decree for the sale of Ware's land, but it is also true that in that situation Ware made sale of a portion of his land to Starkey--land subject to said decree for sale--that he took the bonds payable to said commissioners appointed to sell his land, and tendered to the court said contract of sale, made in his own name, and said bonds executed as aforesaid in satisfaction to that extent, of said decree against him, and the court accepted and confirmed the sale and received the bonds, directing its receiver to collect the same, and apply the proceeds to Ware's debts proven in that suit. Ware, while he made the sale in his own name, and for obvious reasons took the bonds payable to said special commissioners, took a trust-deed securing the bonds so drawn, and then with his wife conveyed the land to Starkey according to the terms of his contract of sale. These terms were for " sufficient title" -- i. e., good title--or, in other words, a deed with the usual covenants of warranty. It is manifest the court had no authority to enter into and did not enter into any such covenant. The courts never undertake, therefore, to warrant title to land sold under its decrees. The court only sells such title as is lodged in it by operation of law, and only warrants specially.

A decree for the sale of his land was hanging over Ware; he was struggling to avoid utter wreck; he doubtless believed he could sell, either to his neighbors or others, in parcels to better advantage than a sale under the hammer would be; and therefore he sold this parcel to Starkey, advising him at the time of his purpose to put the contract of sale into the hands of the commissioner of the court to meet to that extent the demands against him in the suit of Dobbin v. Ware. The bonds and trust-deed were taken, and the latter was duly recorded. The record also shows that the contract and bonds were presented to the court, and that then it was suggested, at the bar, that the bonds only bore interest from maturity, but that Ware, who was present in court, then asserted and claimed that they bore interest from the date of the contract. The court then, in adopting for the purposes of the suit the sale made by Ware and receiving the bonds aforesaid, received them to be enforced according to the real meaning and effect of the contract. The contract and bonds were exhibited in open court, and attention called to the real nature and purport of the contract. The trust-deed was there of record, and whatever doubt there might be as to the question of interest, if only the bonds were looked to (for they are clumsily drawn), both the contract and the trust-deed concur in giving interest from the date of the contract of sale, August 26th, 1873, as contended by Ware.

The sale thus made was inadequate to the discharge of the debts decreed against Ware, and the court directed its commissioner to ascertain how much more of Ware's land must be sold after the application of the proceeds of the sale to Starkey, in order to satisfy the debts decreed against Ware in said suit of Dobbin v. Ware. It was the mistake made by the commissioner under this order of reference and the failure of the court to observe and correct it that has produced this litigation. ...