Mosby's Ex'or v. Johnson's Adm'r , 86 Va. 429 ( 1889 )

Lewis, P.,

delivered the opinion of the court.

This case is as follows; On the 17th of February, 1854, George T. Johnson, beingindebted to Charles IT. Moorman in the sum of $5,620 70, evidenced by bond, executed a deed of trust,in which his wife united, whereby he conveyed to Charles L. Mosby and John M. Speed, trustees, five lots in the city of Lynchburg, and a tract of land in Campbell county, to secure the payment of the said bond. On the 15tli of December, 1862, Johnson having in the meantime died, the trustees sold at public auction one of the lots, designated in the record as the Main street lot, to Solomon Levi, for $9,840. The purchase money was paid in Confederate currency, ánd the trustees conveyed the lot to the purchaser. Moorman, however, refused to take Confederate money from the trustees, and thereupon they deposited the proceeds of sale in one of the Lynchburg banks for Moorman, if he would take the Confederate money—if not, for the widow and heirs of Johnson. The money so deposited remained in the bank until the close of the late war, when the bank went into liquidation. A dividend on the deposit, amounting to $572 49, was subsequently paid through Mosby to Moorman.

In May, 1878, Moorman filed his bill in the court below against the administrator and heirs-at-law of Johnson, Solomon Levi and Charles L. Mosby, surviving trustee, and the administrator of John M. Speed, deceased, alleging that a large balance on the debt due by Johnson’s estate remained unpaid, and praying a decree for its payment. When the cause came on to be heard, the circuit court held that the sale by the trustees of the Main street lot was made without authority, and ordered an account to be taken to ascertain its “true intrinsic value in good money, on the 15th of December, 1862.” The commissioner who made the inquiry reported that its value at that time, in a sound currency, was $7,000. And thereupon it was decreed that the executor of Mosby, who in the meantime had died, and the administrator of Speed, pay to the credit of the cause, from the assets of the estates of their decedents, the sum of $7,000, with interest thereon from the 15th of December, 1862, until paid, subject to a credit of $572 49, the amount of the dividend above mentioned. Dpon appeal to this court, this decree was affirmed by an equally divided court, on the 16th of April, 1885.

After the case went back to the circuit court, the Moorman debt was fully paid out of the proceeds of the sales of lands belonging to Mosby’s estate, but the amount of the debt so paid was $720 75 less than the ascertained value of the Main street lot, with interest, and accordingly that sum—namely, $720 75—the executor of Mosby was ordered to bring into court (it being admitted by all parties that the estate of Speed is insolvent) by the decree now complained of.

We are of opinion that there is no error in the decree. The principles of the cause were settled by the decree which was affirmed on the former appeal, and the subsequent action of the court below was in conformity with those principles. By the decree first appealed from, it was decided that the sale of the Main street lot by the trustees was without authority, and, consequently, that the trustees, or their representatives, were liable for the value of the lot, which was ascertained to be $7,000, and that sum to bear interest from the 15th of December, 1862, subject to a credit of $572 49, as aforesaid. In other words, it was held, in effect, that the representatives must restore to the fund that amount of money, to represent or take the place of the lot just mentioned—and this decree wns in all respects affirmed.

Whether that decision was right or wrong, is a question not now open for consideration. It is enough to say that the decree was affirmed, and although affirmed by an equally divided court, the effect of the decree of affirmance is the same, so far as the present appeal is concerned, as if the voice of the court had been unanimous for the same result. Campbell v. Campbell, 22 Gratt., 649; Woodson’s Ex’or v. Leyburn, 83 Va., 843.

It is true nothing was said in the decree about the representatives of the deceased trustees paying anything to the Johnson heirs, nor is there any allegation in the pleadings of any liability on the part of the former to the latter. But that does not affect the case. The liability of the trustees, as declared and ascertained by the decree which was affirmed, was, as between them and the Johnson heirs, intended, as we have said, to stand in the place of the Main street lot; so that, as between those parties, the case stood, when it was remanded to the lower court, as though the lot had been regularly sold and the proceeds of sale brought into court. This, we think, is clear, and viewing the case in this light, the solution of the question presented by this appeal is free from difficulty.

If, then, there had been no sale by the trustees, and if the lot had been sold under a decree of the court, and the purchase money brought under the control of the court, what would have been the rights of the parties? Clearly the Moor-man debt would have been first payable out of the proceeds, and the surplus, if any, would have gone to the representatives of Johnson, the grantor in the deed of trust. Then if the representatives of the trustees must bring into court the equivalient in money of the lot, as of the 15th of December, 1862, with interest from that date, as they have been decreed to do, and the fund so brought in is more than sufficient to pay the Moorman debt, to whom ought the excess to be paid ? Clearly to Johnson’s representatives, because that excess represents the interest left in the grantor after the debt is paid.

It is true the full amount ordered to be brought in has not yet been paid into court, but only so much as was necessary to pay the Moorman debt. But this only shows that the decree which was affirmed has not yet been fully carried into execution, and that it was therefore proper for the court below to order, as by the decrees now complained of, it did order, that the residue of the fund—namely, $720 75—should be paid into court. What is to be the ultimate disposition of the money, after it shall have been paid into court, is only • inferentially indicated in the decree, but as the order was made on the motion of the Johnson heirs, the case has been argued as if the money had been ordered.to be paid to them, and accordingly much was said in the argument at the bar as to their right to a decree, inasmuch as no such issue is specifically raised in the pleadings.

Assuming, as there is no other claimant to the money ordered to be paid into court, that they'are entitled to it, the point made by the appellant as to the pleadings, is without merit, for when the money is paid into court it will belong to those persons to whom it would be payable if it were in fact a surplus of the proceeds of an actual sale of the lot after payment of the Moorman debt, and may, therefore, be summarily disposed of on motion.

The decree is clearly right, and must be affirmed.