Goode v. Bryant , 118 Va. 314 ( 1915 )

Kelly, J.,

(after making tbe foregoing statement) delivered tbe opinion of tbe court.

The first question to be disposed of in this case arises upon tbe appellant’s contention that tbe circuit court erred in bolding that Goode is not tbe owner of tbe farm by virtue of tbe sale under tbe Jones’ deed of trust. This unquestionably is tbe effect of tbe decree appealed from, and we are of opinion that this was error.

It is shown by uncontradicted evidence, and it is further to be inferred from tbe circumstances, that Bryant for himself and wife verbally agreed to assume and pay tbe debt secured by tbe Jones deed of trust. This verbal agreement was just as effective and binding as if it bad been recited in tbe contract and conveyance. Devlin on Real Estate, secs. 1052, 1073; Gayle v. Wilson, 30 Gratt. (71 Va.) 173; 1 Jones on Mortgages, sec. 750; Bolles v. Beach, 22 N. J. L. 680, 53 Am. Dec. 263; Klapworth v. Dressler, 13 N. J. Eg. 62, 78 Am. Dec. 69, note, p. 84.

The debt, therefore, became the primary obligation of G. G. and M. Lula Bryant. Willard v. Worsham, 76 Va. 395; 2 Jones on Mortgages, see. 740. The sale was regularly and fairly made, so far as the record shows, with full knowledge on the part of the Bryants after an order of the court tantamount to its approval. Tinder those circumstances the sale under the Jones’ deed of trust did not, of course, operate as a breach of Goode’s warranty to Bryant, and Goode was not estopped by his warranty from acquiring the title by virtue of the trustee’s sale. There is no foundation for the doctrine of estoppel in such a case, and the rule does not apply. See 16 Cyc. 697; 11 Am. & Eng. Ency. L. 412; 5 Mich. Dig. 216, for reference to numerous authorities to this effect.

It may be observed in this connection that the acquisition of this title by Goode, although now complained of by the Bryants, was not to their prejudice. Their own default brought about the sale, and yet Goode for many months left open to them the right to redeem the property. If a stranger to the transaction had been the purchaser, there can be no doubt that he would have acquired a good title as against the Bryants, with no other obligation upon him than to pay the amount of his bid, which would have gone first to the discharge of the Jones’ debt and the costs of the sale, and next, as to any residue, to the credit of the Bryants on their indebtedness to Goode. This is exactly what happened under the sale to Harner, and we are unable to see that the Bryants have any right to complain on account of the fact that Goode himself became the owner of the property. On the contrary, they received from him, as they could not have expected to receive from a stranger to the transaction, an opportunity to repurchase the property without any increased cost to them over and above the purchase price which they originally agreed to pay.

Before taking up the next formal assignment of error, it will be in order, and will clear up a good deal of the confusion in the record, to dispose of a question discussed in the briefs on both sides, but not in itself made the ground of a specific and separate assignment. This question involves the character— whether final or interlocutory—of the decree of December 19, 1911. The appellees contend that it was not final because it “was based upon a report called for by decree of September 11, 1911, which was never entered.” If the latter decree affected this question, the fact that it was not entered would make no difference. It was understood at the time and acted upon afterwards by the parties and by the court. The decree of December 19, 1911, itself expressly recognized it and continued the reference provided for in it as to the issues under the cross bill. Subsequently there was a report under it and a decree upon the report. The failure to enter it was never .made the subject of objection by complainant. Under these circumstances, the irregularity was of no consequence. Hess v. Voss, 52 Ill. 472, 477; Dewing v. Hutton, 48 W. Va. 576, 37 S. E. 670. But as a matter of fact the decree of September 11, 1911, was not essential to either the validity or the finality of the decree of December 19, 1911, and we are of opinion that the latter was final as to any issues .arising upon the original bill. Indeed, the original bill might have then been dismissed without in any way affecting the subsequent proceedings upon the cross bill. Equitable Life Soc. v. Wilson, 110 Va. 573, 66 S. E. 836. The decree regularly and finally determined that the complainant had failed to sustain the allegations of the bill, and thus in legal contemplation ended the question of G. G. Bryant’s capacity to make a contract, as well as the question of duress raised by M. Lula Bryant in her answer to the cross bill. It is true that the answer to the cross bill was not filed until a much later date, but there was no good reason for this delay, and the defense which she set up in her answer could just as well have been set up by her on or before December 19, 1911, as at the time of the filing of her answer. It was her legal duty to have set the defense up on or before December 19, 1911, the date of the decree in question, because she had already been served with process on the cross bill, ample time had elapsed for the filing of her answer and the taking of her proof, and the cause was heard on that day by consent of her counsel upon the bill and answer and cross bill and disposed of on its merits. This being true, the decree of December 19, 1911, was a final' adjudication upon the question of the contractual capacity of Gr. Gr. Bryant and the duress of M. Lula Bryant by her husband. That decree finally disposed of all issues arising or that could properly arise upon the original bill and the answer thereto, as well as upon the answer to the cross bill, except as to such new issues as arose upon the cross bill with reference to the exact amount due upon the bond.

The conclusion hei'e expressed, as to the finality, scope and effect of the decree of December 19, 1911, is fully sustained by the authorities. See Jones v. Buckingham Slate Co., 116 Va. 120, 81 S. E. 28; Diamond State Iron Co. v. Rarig & Co., 93 Va. 603, 25 S. E. 894.

Entertaining this view of the character and effect of the decree of December 19, 1911, we deem it unnecessary to discuss further the repeated efforts which, in various forms appearing in the record, were made to reopen the question of the liability of Gr. Gr. Bryant and wife under the original contract. It is sufficient to say that the circuit court was very indulgent with them in these efforts, gave them every opportunity to be heard, decided these issues against them each time they were raised, and that the final decision thereon had, by limitation, passed beyond the reach of the court long before the date of the decree from which this appeal was taken.

We come now to a consideration of the alleged error of the circuit court in reopening the decrees of April 6, 1912, and December 7, 1912, fixing the liability of Gr. Gr. Bryant and M. Lula Bryant, respectively. The court is of opinion that this was plainly erroneous.

It is strongly insisted on behalf of the defendant, Goode, that the decree of April 6, 1912, and December 7, 1912, were final decrees, but in the view we take of the case, it is not necessary to go into this question. If the decrees were not final, they were unquestionably valid findings and must be enforced by a final decree unless good cause is shown to the contrary. The latter we think has not been done.

There is nothing in the record upon which to base the action of the circuit court in setting aside as it did, in effect, by its decree of April 11, 1914, the recoveries against G. G. and M. Lula Bryant in favor of Jacob W. Goode, and nothing upon which to base the requirement that upon payment of the amount' of the new recovery allowed in that decree Goode should reconvey the property to the Bryants. The court had already very properly held that there was no error upon the face of the record to warrant a review of the decrees of April 6, 1912, and December 7, 1912, and the only ground upon which it sustained the application of M. Lula Bryant for a review of the latter decree was the alleged newly-discovered facts set out in her petition, as recited in the statement of facts preceding this opinion. The allegations in that petition were wholly insufficient in any view to warrant a reopening or modification of the decree. A part of these allegations pertained solely to the mental capacity of G. G. Bryant, which had been finally adjudicated nearly two years prior thereto, and the allegations, if they had been made in time, would not have been sufficient to change the result of the decree which was sought to be corrected. The remainder of the allegations in that petition which attempted to set up newly discovered facts relating to the alleged abuse of the land by Jacob W. Goode after the sale under the Jones’ deed of trust. With this matter neither of the Bryants were longer concerned. They had persistently declined or failed to avail themselves of the voluntary offer of Goode to permit them to take the land if they would comply with the contract, and the offer was no longer open to them. Their right had expired under this offer when the suspension of the judgment against them expired under the decrees respectively fixing their liability. There was nothing in the allegations to warrant the court in requiring the appellant to renew the offer, and consequently nothing to warrant the petition or so-called bill of review.

We are not insensible to the apparent hardship of a conclusion which must cost the Bryants both the land and a large part of the price which they were to pay for it. This result, however, is one which they have brought upon themselves, and by which, under plain and well-settled rules, they must abide. The only decrees which can now be properly entered in the cause are such as will be necessary in carrying out the recoveries heretofore awarded against the Bryants. It appears from the record that certain assets are now being held by the circuit court to await the final outcome of the suit and also that from these assets the amount of the $500 check to E. Scott Garter has been paid and should be credited upon Goode’s recovery. When the cause goes back to the circuit court, as it must do under the conclusion which we have reached, that court, if so requested, should, pursuant to the provisions of section 3451 of the Code of Virginia, correct the judgments heretofore rendered in this cause against G. G. Bryant so as to make them bear interest from the 10th day of December, 1910. This correction will be manifestly proper and can be safely and properly made by reference to the report of the commissioner as well as by other papers in the record.

We do not think the assignment of error on the part of the appellant with reference to certain credits which were allowed to the Bryants at the time of the respective recoveries against them can now be considered, since, regardless of whether there was ever any merit in them, they are now concluded by the decree in the cause.

The cross errors' assigned on behalf of the appellees relate (1) to the mental capacity of G. G. Bryant; (2) to the binding effect upon M. Lula Bryant of the contract of sale,. (3) to the refusal of the court to award an issue out of chancery to try the mental competency of G. G. Bryant, and (4) to the alleged breach- of Goode’s warranty by virtue of the sale under the Jones deed of trust. All of the grounds of cross error have been sufficiently discussed in what has already been said with reference to the errors assigned by the appellant, except the refusal of the court to award an issue out of chancery.

The first reference in the record to any application for an issue out of chancery appears in certain exceptions to one of the reports of the commissioner filed some time after the decree of December 19, 1911, which determined the question of Bryant’s sanity. In these exceptions it is stated that a motion was made at the time that decree was entered. _ The decree is silent upon that subject, but whether such a motion was made or not, the court did afterwards pass upon the question and was of the opinion that the issue should not be directed. We find nothing in the record to warrant us in holding that this was an abuse of the court’s discretion, even conceding that there was a timely and regular application for the issue.

The decree complained of must be reversed and annulled and the cause remanded to the circuit court for further proceedings to be had not in conflict with the views expressed in this opinion.