Tyler v. Toms , 1880 Va. LEXIS 11 ( 1880 )

Staples, J.,

delivered the opinion of the court.

The decree of the circuit court of Hanover, in the case of Toms v. Archer et als., directed the land which is the subject of controversy to be sold on a credit of four, eight and twelve months, except so much as was necessary to pay costs and charges of sale. The sale was accordingly made on the 18th of May, 1858, by Messrs. Newton and Richardson, the commissioners appointed. At that sale the appellant became the purchaser—he made a cash payment which was more than sufficient to satisfy the costs and charges of sale, and he executed his three bonds for the deferred installments of the purchase money—the title being also retained as further security for their payment.

The decree in question did not authorize the commissioners to collect these installments, nor does it appear that any decree was ever entered in the canse empowering them to make such collection. It is also conceded, and if not conceded it plainly appears, that the commissioners did not execute the bond required by the statute of special commissioners or receivers, before collecting money under a decree of any court. (Code of 1873, chap. 174, § 1.) The appellant, however, believing the commissioners-authorized to collect the purchase money, paid to Col. Richardson the full amount of each of his bonds as they arrived at maturity.

There is no reason to attribute bad faith to the appellant in making, or to Col. Richardson in receiving, these payments. The latter now claims that as the fund was not then ready for distribution he deposited it in the Savings Bank of the City of Richmond, where it perished by the insolvency of the bank at the close of the war. It does not appear, however, that the court or any of the parties were ever informed of the collection of the money, or its deposit in bank, until the year 1870, when a report was made by Col. Richardson stating the facts.

From what has already been said it is perfectly clear that the payments by the appellant to Col. Richardson were unauthorized, and that the land in his hands is still bound for the deferred installments of the purchase money as fully as though no such payments had been made. Upon this point the cases of Hess et als. v. Rader and Wife, 26 Gratt. 746, Lloyd v. Erwin Adm’r, 29 Gratt. 598, are express authorities. Indeed the latter case in most of its features is identical with the present.

The appellant alleges, however, that since his purchase he has made permanent improvements on the land, for which he claims compensation. This demand is asserted under the statute which authorizes a defendant against whom a decree or judgment is rendered to claim compensation for valuable improvements made under a title believed to be good. The statute, however, has no application to the case of a purchaser at a judicial sale, against whom a claim for the purchase money is asserted, and in whose favor there has been no decree of confirmation. Such a purchaser is a mere preferred bidder without vested rights in the property, and whatever improvements he may make upon the land are made subject to all the conditions attaching to a purchaser before confirmation. If in any case a vendee can claim against his own vendor compensation for improvements as set off against a demand for purchase money, a purchaser at a judicial sale which has not been confirmed cannot do so; for in the nature of things he has no just cause to believe that his title is good. We are therefore of opinion that the chancery court did not err in holding the land still bound for the purchase money, or in rejecting the claim for improvements.

The next matter to be considered is the decree against 'Colonel Richardson. The chancery court having decreed against the appellant for the unpaid purchase money, rendered a decree in his favor against Colonel Richardson for the amount paid him by the appellant. It is this decree we are now to consider. As already stated, the appellant paid the money to Colonel Richardson believing he was authorized to receive it as commissioner, and the latter received the money honestly but erroneously, believing the ■same thing. The appellant being compelled to pay the money over again may very properly require Colonel Richardson to refund the amount so illegally received by him. What the latter did with the money, whether he appropriated it to his own use or deposited it in bank where it was lost, does not at all concern the appellant. Colonel Richardson was not the agent or bailee of the appellant; he did not profess to act as such in depositing the money in bank, but rather as the agent or commissioner of the court. Having illegally assumed authority to collect the money, he cannot escape liability to restore it to the owner upon the ground it was lost without his fault or negligence.

The question arises, however, how is that liability to be enforced ? Is a separate suit necessary, or may the object be effected by a rule ? The latter course was pursued by the chancery court, and a rule was awarded against Col. Eichardson to show cause why a decree should not be rendered against him in favor of the appellant for the sum of money erroneously and improperly paid him on account of the purchase made by the appellant.

We are of opinion' that there was nothing irregular or improper in this mode of proceeding. A commissioner or receiver is an officer of the court, subject to its supervision and control. Whenever complaint is made against him for loss or injury sustained by reason of negligence or improper conduct, the court which appointed the receiver may take cognizance of the complaint, or it may permit the person aggrieved to bring an action against him. When a party to a cause, or even a third person, is interested in a fund in a receiver’s hands, he may apply to the court for relief; and the court may make whatever order is necessary for the restitution or proper appropriation of the fund, and if disobeyed, the order may be enforced by process of contempt. Kerr on Receivers, p. 203-212; High on Eeceivers, §§ 255-286. Whether according to the English practice an order made against a receiver upon a rule for the payment of money is enforceable by execution, as well as by process of contempt, the books do not clearly show. Foster v. Morton, In re Bell’s Estate, 9 Eq. Cas. (Law Rep.) 171, it was held that where a receiver makes default in payment of a balance due by him, payment may be enforced by committal. It was made a- question, however, whether an attachment might be had, because it was said an attachment could not issue against a person not a party to the suit; but it was held that a writ of fieri facias might issue by the special leave of the court. Our statutes have removed all difficulties on this point; for with us every order for the payment of money has tbe force of a judgment, and may be enforced by execution. Code of 1873, chap. 182, §1, 2.

. It has been said, however, that Col. Richardson, in receiving the appellant’s money, was not acting as a receiver of the court, but as an individual; for so the chancery court held, and so this court decides in declaring the payment to him to be illegal. To this it is a sufficient answer that Col. Richardson certainly acted as commissioner, and collected the money under color of his office. He, of course, cannot escape responsibility by relying upon his illegal exercise of authority. The rule laid down in Kerr on Receivers, p. 211-212, is very applicable to the case. A person who having assumed to himself, but improperly neglects the duties of a receiver, whilst the parties interested consider him to be acting as receiver, makes himself responsible for any of the property lost through his neglect.

In what has been said in this opinion it is not intended to reflect in the slightest degree upon Col. Richardson. There is nothing in the record which raises even a suspicion of bad faith on his part. He collected the money under the honest but erroneous impression he was authorized to do so. The parties entitled to the fund are not bound by his act and the appellant is entitled to receive back his money. The form of proceeding against Col. Richardson has done him no injustice. In his response to the rule he has made a full defence, and has had all the advantage which he might have derived from an answer to a bill in chancery. ¥e are therefore of opinion the decree of the chancery court is right and should be affirmed.

In thus passing upon the question of Col. Richardson’s liability, it has been assumed that he is properly before ■ this court. The appeal in this case was taken not hy him, •however, hut hy the purchaser, and it may he a question whether Col. Eichardson is, an appellee in the cause in which the appeal is taken, and therefore entitled to complain of alleged errors to his prejudice. ■ Instead of deciding that question we have considered it would he more satisfactory to pass upon the merits, and thus end the controversy hy an .affirmance of the decree.

Decree affirmed.