Dime Deposit & Discount Bank v. Wescott

75 S.E. 179, 113 Va. 567, 1912 Va. LEXIS 71

• Court: Supreme Court of Virginia
• Decided: June 13, 1912
• Status: Published

Opinion

Buchanan, J.

(after making the foregoing statement), delivered the opinion of the court.

If it be true, as contended by the appellant, that the property on which the distress warrant and attachment were levied was not on the premises for which the rent was claimed to be due, and had been removed therefrom for more than thirty days prior to the levy, then it is wholly immaterial whether the relation of landlord and tenant existed between the appellees and the debtor company, for, even if such relation did exist, the appellant’s claim would be superior to that of the appellees.

It is clear, we think, that the agreements of May, 1906, and February, 1907, cannot be considered as constituting one contract. While the latter recites, in substance, the provisions of the former writing, and states that the brick company desires to erect its factory and build its wharf on property owned by Custis and wife, and that it is deemed desirable to have a modification or extension of the terms of the agreement of May, 1906, “so far as concerns the landing necessary for wharves, piers, factories, buildings, and plans” of the brick company, the parties to the two agreements are different and the subject matter is not the same. There were five persons parties of the first part to the agreement of May, 1906. Of these only two were parties to the agreement of February, 1907. The four acres of land which the brick company acquired the right to use and occupy for the construction of its plant by the latter agreement were not within the boundaries described in the agreement of May, 1906. The consideration paid for it was stock in the brick company, issued to the two parties of the first part in the February agreement, and not to the five persons who were parties of the first part in the May agreement.

Where two papers are executed at the same time, or simultaneously, between the same parties, in reference to the same subject matter, they must be regarded as parts of the same transaction, and receive the same construction as if their several provisions were in one and the same instrument. Portsmouth Refining Co. v. Oliver Refining Co., 109 Va. 513, 520, 64 S. E. 56, 132 Am. St. Rep. 924, and authorities cited; Nye v. Lovitt, 92 Va. 710, 714, 24 S. E. 345. But we know of no rule of law that would authorize or justify the court in construing as one instrument two writings executed under the circumstances disclosed by this record.

The rent or royalty, for the collection of which the distress warrant and attachment were sued out, was due or to become due under the agreement of May, 1906, was payable jointly to all five of the persons who were parties of the first part to that agreement, and the said proceedings for its collection were in the name of and for the benefit of all of them. The property levied on under the distress warrant and attachment not being on the premises described in that agreement (the leased premises, if the agreement were a lease—as to which we express no opinion), and none of it having been on said premises for more than thirty days prior to the levy, it was not subject to such levy; for there is no authority for levying either a distress warrant or an attachment for rent upon property which has been removed from the leased premises more than thirty days. Code, sec. 2791, 2962.

It follows from what has been said that we are of opinion that the circuit court erred in holding that the lien of the appellant was inferior to the claim of the appellees, and that its decree so-holding must be reversed, and this court will remand the cause to the circuit court for further proceedings in accord with the views expressed in this opinion.

Reversed.