Bailey v. Stroud

26 W. Va. 614, 1885 W. Va. LEXIS 98

• Court: West Virginia Supreme Court
• Decided: October 2, 1885
• Status: Published

Opinion

Woods, Jud&e :

The appellant has assigned the following errors :

First. — In not referring the cause to one of its commissioners to settle the accounts between the parties and ascertain the value of the Confederate $500.00 that were unpaid.

Second. — The court erred in fixing the value of the $500.00 at $850.00. There was no proof of the value of the land. The Confederate money was, according to the proof, not less than eighteen for one.

The Summers circuit court erred :

Third. — In permitting the amended hill of 1879 to be filed.

Fourth. — It was error to refer the cause to commissioner ’Peck.

Fifth. — If the cause had been referred, the reference should have been a full one. The commissioner should have been directed to take an account between the parties.

Sixth. — The statute of limitations barred the claim.

Seventh. — W. D. Stroud proves the debt fully paid.

Eighth. — Bailey and wife released Stroud from the payment of the debt, and the release enured to the benefit of Trail, his vendee.

Hinth. — It was error not to dismiss the amended bill.

The last seven errors assigned are easily disposed of. The supposed necessity for the amended bill filed in 1879, grew out of a misapprehension by the court in its decree of October 13,1873, that the description of the land, in the original bill, alleged to have been sold by Bolton to Stroud, included all of the tract of 200 acres of land owned jointly by the plaintiff and her sister, Máry W. Bolton, instead of only so much thereof as had been sold by Stroud to the defendant Jacob Trail. The original bill described the land sold by Bolton to Stroud as a “ tract of land in Mercer county on Davis’ fork of Brush creek, adjoining lands of Jacob Lawman and others containing about 200 acres, and is the same land now occupied by said Jacob Trail.” Whatever land was then occupied by Trail lying in said county on Davis’ fork of Brush creek, adjoining the lands of Jacob Lawman and others, was the land sold by Bolton to Stroud, and it was wholly immaterial •what number of acres it was supposed to contain. Trail expressly states in his answer that he purchased from Stroud, and only claims 100 acres, and Stroud testified that be sold to Trail the same land which he had purchased from Bolton, for which he paid down $500.00, and executed said $500.00 bond for residue of the unpaid purchase-money. The joint answer of Bolton and wife, as well as the amended bill, rejected by the decree of May 5, 1874, attempted to correct this supposed mis-description, and the amended bill of 1879, did nothing more, and the court did not err in permitting the same to be filed, although there was no necessity for filing the same as the whole matter was fairly in issue upon the original bill. Neither did the circuit court err in referring the cause to commissioner Peck to hear evidence and make report at its next term whether said Bolton sold to said Stroud the land in the bill and proceedings mentioned, lying on both sides of the Bed Sulphur turnpike, or only the land on the south side of said turnpike on which the defendant (Trail) now'lives; and to require the title-bond given by Bolton to Stroud to be produced before him, or else accounted for and its contents proved for, this was a proper mode of ascertaining the true boundaries of the land sold by Bolton to Stroud, as well as of the parcel sold by Stroud to Trail.

Neither was the plaintiff’s demand barred by the statute of limitations, as it was evidenced by a single bill payable on December 15, 1863, while the plaintiff’s bill was filed in February, 1871, but little more than seven years thereafter; neither was there sufficient, or any credible evidence showing that the debt had been- paid, but on the contrary it is clear that it has not been paid; nor does the defendant Trail either in his answer, or amended answer to the original bill, or in his answer to the amended bill of 1879, pretend that the debt had been paid, but on the contrary as already stated, he tacitly admits that it had not been paid, and that he was liable to pay whatever amount might be ascertained to be justly due thereon. The pretended release, made by the plaintiffs to Stroud dated August 27,1881, and filed with the deposition of the witness Kitts is neither mentioned nor referred to, in the answers of Trail, nor in any of the pleadings, and was never in issue between the parties; and if it had been, it amounts only to an agreement that if the plaintiffs shall succeed in obtaining the relief prayed for, they would in case of a sale thereof make the said land lying on the south side of the Bed ¡Sulphur turnpike road, bring enough to discharge the amounts decreed to the plaintiffs. For the reasons above stated we are of opiuion that the circuit court did not err in regard to the matters referred to in the appellant’s last seven assignments of error.

The first and second grounds of error assigned present for our consideration the following questions: What was the true understanding and agreemeent between said Bolton and Stroud in respect to the kind of currency in which their contract for the sale of said land was to be fulfilled or performed, or with reference to which as a standard of value the contract between them was made; and if the same was made with reference to Confederate treasury-notes as a standard of value, and was to be discharged on the part of Stroud by the payment of the value of such currency, how is the value thereof to be ascertained ? Is it the actual value in gold of the property sold at the time of the sale; or is it the actual value in gold of Confederate “ dollars ” mentioned in the said bond of $500.00, at the time the same became payable ; or is it the average purchasing power of gold in Mercer county, of all kinds of property real and personal, just before the civil war'commenced, as compared with the average purchasing power of Confederate treasury-notes in that county on December 15, 1862, the date of the bond ?

The right to show by parol or other relevant testimony the true understanding and agreement of the parties in respect to the kind of currency in which the same was to be fulfilled, has been secured by ch. 116 of the Acts of the Legislature passed on April 7, 1873, by which it is enacted, first: “That in any action, suit or other proceeding for the enforcement of any contract express or implied, where such contract was for the sale or purchase of any real or personal property made, or entered into between May 1, 1861, and May 1, 1865, it shall be lawful for either party to show by parol or relevant testimony what was the true understanding and agreement of the parties thereto either express or to be implied in respect to the kind of currency in which the same was to be fulfilled or performed, or with reference to which as a satndard of value it was made or entered into ; and in an action at law or suit in equity it shall be unnecessary to plead the agreement specially in order to admit such evidence.” Second : “ Whenever it shall appear that any such contract was, according to the true understanding and agreement of the parties, to be fulfilled or performed in Confederate States treasury-notes, or Virginia treasury-notes, or was entered into with reference to said notes as a standard of value, the same shall be liquidated and settled by reducing the nominal amount due, or payable under such contract in Confederate States treasury-notes, or Virginia treasury-notes to its true value at the time they were respectively made and entered into, or at such other time as may to the court or if it be a jury case, to the jury seem right in the particular case, and upon the payment of the value as ascertained the party bound by such contract shall be forever discharged of and from the same,” with a proviso, that if any part of such demand has been paid in such treasury-notes, the party making such payment shall have credit for the full amount so paid.

Although neither the bond for $500.00, nor so far as the testimony shows, the title-bond nor contract for the sale of the land, made between Bolton and Stroud expressly provided that the bond was to be discharged in Confederate States treasury-notes, yet as the contract was made in December, 1862, in Mercer county in Virginia, wherein the civil war between the governments of the United States and of the Confederate States, was flagrant, this Court will take judicial notice of the fact that the county of Mercer, in which the land lay, and in which the contracting parties resided was within the jurisdiction of the Confederate States, at the time the contract was entered into, and where the same was to be performed; the natural aud reasonable presumption in the absence of all other evidence would be, that the contract was entered into with reference to Confederate States treasury-notes as a standard of value, and was to be performed and fulfilled by payment in such currency. Simmons v. Trumbo, 9 W. Va. 358; Gilkeson v. Smith, 15 W. Va. 44. Although the answer of Trail expressly alleged that the land was sold tor Confederate States treasury-notes, and that the down-payment of $500.00 was paid in such notes, and the deferred payment of $500.00 was to be so paid, yet none of these statements are denied, in the answers of Bolton and his wife, or in the original or amended bills, nor in any other manner than by the plaintiffs general replication to the answer of Trail; and when Bolton was examined as a witness he did not deny any of these allegations, but only said, ‘‘ that neither when the contract was made nor afterwards was anything ever said about its being paid in Confederate money,” while it is in proof that Bolton asked the advice of the witness about selling his land, telling him that he was going to sell it to Stroud for $1,000.00 in Confederate money, and afterwards told the wntness he had closed the trade, while Stroud testified that he bought the land for $1,000.00 to be paid in Confederate money; that he paid $500.00 of it down and executed his note for $500.00, payable some time afterwards, and sold the same land to Jabob Trail. From these facts and circumstances the circuit court held that said Bolton sold the land to Stroud with reference to Confederate treasury-notes as a currency, and fixed the value of the $500.00 bond at the value of $350.00, as of December 15, 1863, when the same became payable, and this valuation is carried into the decree ■of'the circuit court of Summers county rendered herein on February 17, 1883. It is not very clear from the proofs in this cause, by what mode of calculation the circuit court of Mercer county ascertained the value of the $500.00 bond. The testimony tended to show that when the land was sold on December 15,1862, it was worth as mnch as from $800.00 to $1,000.00 in good money, and that Stroud sold it to Trail for $1,500.00 in Confederate money; that in December, 1863, there was no fixed standard of value of Confederate money in Mercer county, but it was very low in value and was constantly falling, while other testimony tended to show that it was worth only about one-eighteenth as much as gold. There was but little evidence to show what was the actual value of Confederate treasury-notes in gold in that connty in December, 1862, or what at that time was their purchasing power, of all kinds of property, compared with that of gold just before the commencement of the civil war. It is probable that the circuit court considered the land at the time of the sale as of the value of $850.00, and giving the purchaser full credit for the $500.00 paid down, according to the said act of the Legislature, treated the $500.00 of unpaid purchase-money, as of the value of the residue of the $850.00, assumed as the value of the land. Such was probably the mode adopted by the court, for we are not at liberty to presume that it disregarded the evidence in the cause upon this subject, and fixed a mere arbitrary valuation upon the Confederate States treasury-notes necessary to the -discharge of said $500.00 bond.

This precise question was considered by this Court, in the case of Beirnev. Brown’s Adm’r, $e., reported in 10 W. Va. 748. The material circumstances in that, were almost identical with those of this case, except in that the land had been sold on December 26, 1862, in Monroe county for $25.00 per acre. That suit like the one under consideration was also brought to enforce the vendor’s lien by a sale of the land for the unpaid purchase-money. In that case, upon pi’oper de-fence made, the circuit court held, the sale to have been made with reference to Confederate States treasury-notes as a standard of value, andscaled thedebtatthei’ate of $2.72 8-10 Confederate dollars for one in gold, being the value in gold of Confederate notes, in the city of Richmond, at the date of said sale. In that case this Court, after a full axamination of all the cases adjudicated by the court of appeals of Virginia upon a statute of that State, from which our statute before cited was copied, construed the statute of this State, and held: ‘‘ That the value of Confederate currency at the time it became payable, as compared with gold, should be ascertained by the average apparent appreciation' in value of all kinds of property real and personal in the county where the same was sold, at the time when sold for Confederate money as compared with the value of such property just before the war commenced, when gold was the currency of the country; and that in ascertaining the value of Confederate currency, the price at which gold was then selling in Confederate currency in Richmond or elsewhere in the Confederate States, is not to be regarded as fixing the relative value of gold and Confederate notes.” It follows therefore, that neither the actual value in gold of the property sold, at the time it was sold, nor the actual value in gold of the Confederate “ dollars ” mentioned in the $500.00 bond at the time the same became payable, could be properly assumed as the true value of said $500.00, as of the date of December 15, 1862; but. that the true value thereof should be ascertained and measured by the average purchasing power of gold in Mercer county of all kinds of property, real and personal, just before the civil war commenced, as compared with the average purchasing power of Confederate States treasury-notes in said county on December 15, 1862, when said $500.00 bond was executed.

The circuit court should have referred this cause to a commissioner, to ascertain the true value of $500.00 mentioned in said bond, at the time the same was executed, and ought not to have assumed the actual value- of the land at the time of the sale, as in any degree fixing the true value of the Confederate States treasury-notes required to discharge the same.

We are therefore of opinion that there is no error in the decrees of the circuit court of Mercer county rendered herein on May 6, 1873, and on May, 5, 1874, nor in the decrees of the circuit court of Summers county rendered herein on September 9,1881, and on February 16, Í882, and the same are hereby affirmed; but we are further of opinion, for the reasons hereinbefore stated, that the decree of the circuit court of Mercer county rendered herein on October 13, 1873, and the decree of the circuit court of Summers county rendered herein on February 17, 1883, are erroneous and must be reversed with costs to the appellent against the appellees Enos Bailey and his wife Elizabeth Bailey, and this cause must be remanded to the circuit court of Summers county, with instructions to refer the same to a commissioner to ascertain the true value of the $500.00 bond, upon the principles. above stated, and on those settled by this Court in the cause of Bierne v. Brown's administrator, &c. in 10 W. Va. 748, and to be further proceeded in, according to the principles settled in this opinion, and according to the rules and usages in courts of equity.

Revesed. Remanded.