Avis v. Lee

77 Va. 553, 1883 Va. LEXIS 90

• Court: Supreme Court of Virginia
• Decided: May 10, 1883
• Status: Published

Opinions

Lacy, J.,

delivered the opinion of the court.

On the 26th day of January, 1866, the appellant, Sophia V. Mitchell, since intermarried with the appellant, James L. Avis, filed her bill in the circuit court of Lancaster county, to set aside as fraudulent a deed from the appellee, William K. Lee and wife, to the appellees, Duval and Iglehart, which deed was made on the 7th day of December, 1865. The land sold under the said deed, having been leased by the vendee to the vendor. The depositions of seventeen witnesses were taken pro and core, and the circuit court decreed on the 5th day of November, 1867, the deed to be fraudulent, and ordered the land to be sold to pay the plaintiffs’ debt. From this decree the defendants appealed to the district court of appeals at Fredericksburg, Virginia, a tribunal then existing under the laws of this state. On the 18th day of July, 1868, the district court of appeals reversed the circuit court, and remanded the cause. From this order reversing the circuit court, the plaintiffs were entitled to an appeal to this court as a matter of right, but no appeal was taken, and that decree, so far as it goes, is final in this cause. That court said the circuit court erred in decreeing that the fraud charged in the bill had been established by the evidence, and instead of doing so, ought to have directed a commissioner of the court to take an account of all the dealings between the vendor and vendees, before the execution of the deed complained of, and ascertain the amount due by the former to the latter, and inquire into and state all the circumstances connected with the execution of the said deed and the consideration thereof, &c.; and ought to have directed the vendees to produce before a commissioner, when required by him, all their mercantile books containing an'account of any of the said dealings, and submit to be examined, on oath by him. In pursuance of this decree of the said district court, the circuit court of Lancaster, on the 27th day of May, 1870, decreed accordingly.

The vendees gave notice to the plaintiffs that on the 1st day of November, 1870, at a place designated in the city of Baltimore (the place of their residence), they would exhibit all their books and accounts bearing on the subject before a commissioner of Virginia in the said city of Baltimore, and submit themselves to be examined, on oath. On the day named, and at the place designated, the said books were exhibited before the said commissioner, and the vendees did submit themselves to be examined on oath, and were cross-examined at length by counsel for some of the creditors of' the vendor in the deed complained of, and the said books were copied and certified by the said commissioner, the certificate declaring the copies to be accurate and full; and these copies and certified abstracts were laid before the commissioner of the circuit court of Lancaster. The said commissioner refused to consider the said certified copies, but made special statement of same, as required by the appellees. Upon the coming in of this report the circuit court, upon inspection of the same, decreed in favor of the defendant, declaring that the plaintiffs had entirely failed to make out the charge of fraud, and dismissed their bill. From this decree the appellants appealed to this court.

We are of opinion that the circuit court did not err in thus dismissing the plaintiff’s bill.

Upon inspection of the books so copied, the transactions, running back for many years anterior to the beginning of the late war, appear to be usual, and such as might be reasonable and possible, and indeed probable, between the parties, and they are proved to be accurate and genuine.

The sole question in this case then, is, whether the circuit court should not have compelled the original books to be brought to this state for an inspection by its commissioner. How could this be at all necessary, or indeed, proper ? The books were all exhibited in the city of Baltimore before a commissioner of Virginia there, exhibited to the parties themselves and their counsel, and copied in full and certified, and the parties examined on oath and cross-examined. What more could have been done in this state than was done in that state ? What good could come on the one hand by bringing the original books, or what harm did come on the other hand by not bringing them ?

It is, however, contended that the district court so ordered. We do not so understand the decree of that court. The obvious intention and aim of the decree of that court was to get at the truth between the parties, upon an examination of the mercantile books of these vendees. These books have been examined, copied and certified, and exhibited to the court thus copied and certified, and to the parties and their counsel in the original; and it would have been altogether useless and fruitless to have demanded more. The circuit court did not err in so deciding, and we are of opinion to affirm the said decree of the circuit court.