White v. Stuart

• Decision Date: 27 July 1882
• Citation: 76 Va. 546
• Court: Virginia Supreme Court
• Parties: N. K. WHITE AND ALS. v. STUART, BUCHANAN & CO.

76 Va. 546

N. K. WHITE AND ALS. v. STUART, BUCHANAN & CO.

Supreme Court of Appeals of Virginia.

July 27, 1882

Appeal from decrees of the circuit court of Washington county pronounced 18th October, 1877, and 17th February, 1879 respectively, in the two cases heard together of Stuart Buchanan & Co., plaintiffs, against N. K. White and als., defendants, and John D. Mitchell and als., plaintiffs, against Alexander McCall and als., defendants. The defendants in the first styled cause, to-wit: Newton K. White, Milton White, Addison White Thomas W. White, Ann Eliza Pope, William Y. C. White, executor of Miss Eleanor White, deceased, James L. White, Ellen S. Campbell, Sue P. Trigg, James W. Ogden, J. G. Ogden, Lonny W. Humes and Newton McK. Humes, obtained an appeal to this court.

The facts and proceedings are indicated in the syllabus and fully stated in the opinion of the court. This is the sequel to the cause of Stuart, Buchanan & Co. v. White and als., and Mitchell and als. v. McCall and als., reported in 25 Gratt?? 300.

A. C. Cummings and John A. Campbell, for the appellants.

John W. Johnston and Terry & Pierce, for appellees.

OPINION

STAPLES, J.

The first appeal in this case was taken by White's heirs from the decree of the 18th October, 1877, and from th?? decree of the 17th February, 1879. The second, a cross?? appeal, was taken by Stuart and Palmer from the decree o?? the 17th February, 1879, and the third by Wyndham Robert?? son from the decree of January, 1880.

The questions arising under these appeals will now b?? considered in their regular order.

It may be proper to premise that there are two large coterminous estates, each containing valuable salt wells, lyin?? in Smyth and Washington counties. One of these estates, that in Smyth, formerly belonged to Thomas L. Preston, and by his trustee was sold and conveyed to Stuart, Buchanan & Co. The other estate, known as " King's Salt Works," was owned by a number of tenants in common among them, the heirs of James White, who were entitled to an interest of seven forty-eights acquired by purchase. Thomas L. Preston was also entitled to an interest of one-seventh in the same property. It seems that many years ago the two estates were sometimes worked by a single tenant under separate leases from the different properties, sometimes separately by different tenants, and not unfrequently any of the owners of the King estate who were inclined so to do entered therein and exercised the privilege of making salt, as their inclination or necessities suggested. This condition of things proving extremely detrimental to all concerned, a bill was filed in the circuit court of Washington for the purpose or having the " King estate" rented out by a receiver. This was finally done, and the property was leased to Wyndham Robertson for five years, commencing the 1st of January, 1851, at an annual rent of $16,000. Upon the termination of this lease Thomas L. Preston became the lessee for five years, commencing the 1st of January, 1856, at an annual rent of $22,000. Preston being thus the owner of the Preston Salt Works, the lessee of the King Salt Works, and having also an interest of one-seventh in the latter, in the year 1858 executed to Spencer, Ackerman & Co. a lease of both estates, at an annual rent of $30,000 for the Preston estate and $20,000 for the King estate. This lease was made with the approbation of a portion of the heirs and representatives of James White, deceased. It was, of course, invalid as to those who had not given their consent to it, so far as it extended beyond the 1st January, 1861. Stuart, Buchanan & Co., who had become the owners of the Ackerman lease, continued in the exclusive possession of the King Salt Works, operating the same in connection with the Preston estate from the year 1861 to 1868, inclusive. After the termination of the Ackerman lease, a protracted controversy arose between them and the appellants, White's heirs, who had not united in the Ackerman lease, touching the liability of Stuart, Buchanan & Co. for a just share or proportion of the rent for the years mentioned.

Under the decree of the district court, it was left to the circuit court of Washington county to determine whether it would confirm the Ackerman lease or treat Stuart, Buchanan & Co. as being in possession of the property under the terms of the Preston lease, or whether it would hold them liable for such other reasonable rent as the court should deem to be right. The circuit court, discarding the first two modes suggested, adopted the third, and determined that S., B. & Co. should be held accountable for a reasonable rent of the premises. This court, upon an appeal taken, affirmed that decree, thus recognizing the correctness of the rule laid down by the court for ascertaining the liability of the occupying tenants. The accounts were accordingly referred to a commissioner, who made two reports, each of which was excepted to by both parties?? Some of these exceptions were sustained and others were overruled by the circuit court, and a decree was there entered in favor of White's heirs, which, however, it seems was not satisfactory to either party. It is conceded by al?? that the case is one of very great difficulty, involving many perplexing and embarrassing questions. The chief difficulty grows out of the want of some reliable data or basi?? for ascertaining what constitutes a reasonable rent for th?? use and occupation of the King Salt Works during the greate?? part of the war.

After the most careful examination, I am satisfied tha?? no conclusion will ever be reached by any court which wil?? be satisfactory to the parties, for it may be safely said that no contestants ever differed more widely with respect to the measure and extent of recovery. All that can be done is to deal with the question as best we may, endeavor as far as we can to approximate the justice of the case, and terminate this protracted and expensive litigation.

We come then in the order of time, first, to the rent for the year 1861. The circuit court held that this rent had been settled, and could not therefore enter into the account before the commissioner. The appellants insist that this decision is in direct conflict with the previous decree of the circuit court, which declared that Stuart, Buchanan & Co. should be accountable for a reasonable rent from the 1st January, 1861, to the 1st January, 1869. It must not be forgotten, however, that it was provided in the same decree that the commissioner should ascertain also what payments, if any, had been made by Stuart, Buchanan & Co. to White's heirs on account of rents for said period. The court, of course, would not in that stage of the controversy undertake to say whether the rent for any year, had or had not been paid.

All it could do was to direct an account of rents for each year of the occupation, and leave the question of payment open for inquiry and future adjudication. If, in taking the account, it appeared that the rent for any one year had been settled, any further inquiry for that year would be superfluous and improper, for then the parties themselves had determined what was a reasonable rent for such year by making and receiving payment. I think, therefore, the appellees were not precluded from showing the settlement of the rents for 1861. The only question then is, Have they succeeded in doing so?

In the original bill of Stuart, Buchanan & Co. filed in 1862, they aver that they had paid the rent of 1861 to White's heirs, and that the latter by the receipt of the money and by other acts, had ratified the Ackerman lease, and were therefore entitled only to a rent of $20,000 per annum during the whole period of the tenancy. The only persons who ever answered this bill were Newton White and William T. C. White. Whilst both these defendants emphatically deny that there had been any ratification of the Ackerman lease, I do not understand that either of them seriously controvert the fact of the payment for the year 1861. There is no doubt that from the beginning William T. C. White, acting for himself and the other heirs of James White, collected the rents from the various lessees of the King's Salt Works. He collected them for five successive years from Col. Cummings, who obviously thought he was authorized to receive them. And when in March, 1862, Mr. Stuart paid Col. White the share of rent for 1861, to which King's representatives were entitled under the Ackerman lease, both parties must have believed that Col. White's authority to receive payment had not been revoked or questioned. The receipt given by Col. White on that occasion was just such a receipt as had been given by him uniformly to Col. Cummings.

That all parties concerned took the same view of the matter, is conclusively shown by the notice of the 12th June, 1862, given by White's heirs to Stuart, Buchanan & Co. That notice is in the following words:

" We hereby give you notice that from and after the 1st January, 1862, we will refuse to take for our respective interests in the King's Salt Works at the rate of $20,000 and taxes per annum, that being the rate of rent stipulated for between Thomas L. Preston and Spencer, Ackerman & Co., but we will demand and insist upon our proportion of the rents and profits derived by the working and using said estate."

It will be perceived that this notice recognizes the existence of the Ackerman lease, the rent of $20,000 to be paid under it, and the unwillingness of the parties to accept rent at the same rate after the 1st January, 1862, and their determination then to claim a different rate of compensation.

What then became of the rent of 1861; upon what terms and at what rate was it to be settled?

The inevitable inference...