Donahue v. Fackler

Snyder, Judge, announced the opinion of the Court: The essential enquiry in the case is, whether the payments made by, James M. Gray to Parks and Hoge are valid payments ? The appellant admits that the sale until confirmed was an incomplete contract, a mere offer to purchase, but she claims, and cites authorities which fully sustain the position, that when a judicial sale is confirmed by the court such confirmation relates to and vests the title of the land in the purchaser from the date of the sale — Taylor v. Cooper, 10 Leigh 317; Evans v. Spurgin, 6 Gratt. 107; Hyman, Moses & Co. v. Smith, 13 W. Va. 744, 767. And as a conclusion from this, the appellaut insists that, in contemplation of law, any payment made by the purchaser between the day of sale and the day of confirmation, which would have been valid when made, if the sale had been confirmed, is made just as valid by the subsequent confirmation. This conclusion is also sustained by the authorities above cited, but in my view it has — 130 — no application to the facts in the case before us. The difficulty here is, that the commissioners who made the sale had no authority to collect the bonds taken for the deferred installments of the purchase-money. Their acts in this regard would have been just as much unauthorized if the sale had been confirmed as they were when it was not confirmed. The said commissioners, it is clearly shown never gave the bond required by the decree. The giving of the bond was a condition precedent to their right to receive any part of said purchase-money. And the purchaser was bound to see that the bond was given and if he paid the purchase-money without such bond having been given the payment was unauthorized and he was still liable for the debt. Tyler v. Toms, 75 Va. 116; Hess v. Rader, 26 Gratt. 746; Lloyd v. Erwin, 29 Gratt. 598. The said case of Tyler v. Toms, is very similar in its facts and character to the one before us and for the reasons assigned in the opinion in that case we are satisfied and decide that the payments made by James M. Gray in this case to Parks and Hogo special commissioners were unauthorized and constituted no discharge of the said Gray’s bonds — Blair, Com’r. v. Core, 20 W. Va. 265. It was proven in this cause that Andrew Parks and James W. Hoge were partners in the practice of the law under the firm name of Parks & Hoge, and that as such partners and attorneys they instituted and prosecuted this -suit for all the parties interested in the land sold and in the proceeds derived from the sale; and it is, therefore, claimed by the appellant that, inasmuch as the said Parks and Iloge were the attorneys for the parties as well as the commissioners of the court, and having no authority to collect the sale bonds as commissioners, they must be treated as having received payment of said bonds as such attorneys and that they were authorized as such to receive such payment and discharge the debt and the debtor. The authority of an attorney to receive payment of a debt, which he is employed to recover by suit or collect is well settled, and has been sustained by repeated decisions of this Court — Wiley v. Mahood, 10 W. Va. 206; Yoakum v. Tilden, 3 W. Va. 167. — 131 — In the case at bar, however, it is not shown that Parks and Hoge pretended to receive the payments made to them by Gray as attorneys for the parties, and the circumstances tend very much to show that they did not in fact so receive them. The bonds were executed to them as special commissioners. They were payable to them as agents or officers of the court. The fund was coming to and subject to the order of the court. The parties themselves to whom it might be ultimately payable had no right to demand it except through the orders of the court. The orders given by Thomas M. Donahue and P. S. Austin, both of which, Hoge states he prepared and which were hold and filed in this cause by Gray, were evidently drawn upon the theory that neither the parties nor their counsel were authorized to receive payment from Gray. The said orders are directed to said Parks and Hoge and authorize them to credit the amounts therein mentioned and charge the same to the said Donahue and Austin. If it had been believed, then, that either the parties or their counsel were authorized to receive payment from Gray, it is very improbable that these transactions would have taken this circuitous form. The attorneys would undoubtedly have had' authority to receive the portions ascertained to be due their clients from the commissioners of the court, but until there had been an order made ascertaining the portion or sum due their clients neither they nor the clients themselves by receiving the money from the purchaser could have discbm’ged the debtor. In this case the portion coming to the several owners of the land had not been ascertained. The fund belonged to them all jointly, in different proportions and no one of them had a right to any- particular part in severalty. If, therefore, the parties had no right to demand or receive payment, a fortiori, their counsel could have no such power. It is true, that, if payment had been made to a party and it was subsequently determined byr the court, that sxich party was in fact entitled to a sum equal to that thus paid, the court w’ould not require such party to refund the sum so paid in order that a sum equal to it might be repaid him. But such action does not rest upon the ground that the original payment was authorized, but upon the ground that the payment reached its — 132 — propei’ destination. The debtor by making such, unauthorized payment takes upon himself the risk of its ultimately coming to the person entitled thereto. lie thereby becomes an insurer and remains responsible for any loss or miscarriage before the fund reaches the person to whom the court ultimately determines it is payable. If the fund is found in such person’s hands when the order is made by the court for its distribution, the payment will be ratified by the court and the debtor discharged, otherwise he will still be liable for the debt. In Tyler v. Toms, supra, the commissioners were, also, counsel for the parties, yet the court held the payment to them tmauthorized and gave a decree against, the purchaser for the amount so paid to them, because the money was lost. The money, or other things, paid to Parks and Hoge by Gray in this case, having been lost, or, at least, failed to reach the persons ultimately ascertained to be entitled to it, the bonds given by Gray for the purchase-money were not discharged by such payment, and the circuit court properly held that the land and said Gray’s estate were still liable therefor. It is, also, claimed that the said circuit court erred in allowing interest on-the said sum of one thousand three hundred and seventy-two dollars, directed to be paid by James W. Hoge to J. M. Gray’s administrator, only from December 15, 1869, instead of from September 15, 1860. IToge admits in his answer that Gray paid to him, on December 15, 1860, the said sum and that it was credited on said Gray’s first bond for the land sold in this suit as of that date. In the case of Tyler v. Toms, supra., it was distinctly decided that when a party receives money under color of his office although he was in fact unauthorized, to receive it, he cannot escape responsibility by relying upon his illegal exercise of authority. A person who having assumed to himself, but improperly neglects, the duties of commissioner or receiver, whilst the parties interested consider him to be acting as such, makes himself responsible for any loss occurring through his neglect. Kerr on Rec’rs, 211-12. The said Gray having failed to receive credit for said one thousaid three hundred and seventy-two dollars, he is entitled to receive back the same with interest from the date — 133 — it was paid to said Iioge. The failure of the circuit court to require the payment of the said sum with such interest was clearly erroneous. The said decree of November 7, 1879, is erroneous in another respect. It decrees against the estate of J. MDGray the sum of said three bonds executed by Gray to Parks and Hoge as commissioners for two thousand and eighty-nine dollars and twenty cents each, with interest thereon from the 10th day of September, 1859, subject to certain credits therein mentioned. It should have been for the aggregate of principal and interest due at the date of the decree, with interest thereon from that date. Chap. 131 sec. 16 Code p. 627. It is, also, alleged by the appellant that the said decree is erroneous, because the proper parties were not before the court; that the plaintiff, Thomas M. Donahue, claims as assignee of H. R. Austin, Alexander M. Austin and Washington Austin as devisees of Letitia Austin, deceased, and that the only evidence in support of the claim is certain deeds from said devisees to said Donahue, all of which are dated before the death of said Letitia Austin and before the date of her will. These deeds do not purport to convey any lands derived from said testatrix, but simply convey the interest of the grantors in the estate of Morris Austin, deceased, mentioning therein about seven hundred and fifty acres or land in Kanawha county, adjoining the lands of Henson, Morris and others, as a part of the land belonging to said Morris Austin’s estate. One of the said deeds conveys the interest of the grantors therein with covenants of general warranty and the others do not. It seems to me that these grantors H. K., Alexander M. and Washington Austin, and especially the two latter, who are not bound by any covenant of general warranty, should have been made parties to this suit; because if they have not in fact conveyed their interests in the land purchased by said James M. Gray, then unless they are made parties and become bound by said sale, the said Gray would acquire no title to their interests. And he and his estate having been compelled to pay more than once already for said land, it would seem to be right and proper that he should be protected as far as can now be done. In the absence of said — 134 — parties it would not be proper for this Court to express an opinion as to whether said deeds from them to said Donahue are sufficient to pass their title to the said land in controversy-in this suit or not, but it was error to have made the original sale to Gray without having them before the court and it was also error for the court by its said decree of November 7, 1879, to direct a re-sale of said laud in the absence ot said parties. For the reasons stated, I am of opinion that said decree of November 7, 1879, is erroneous, in the particulars mentioned, and that it must be, therefore, set aside and reversed with costs to the appellant. And the cause is remanded to the said circuit court with leave to the plaintiffs to amend their bill by making the said grantors parties and when their bill is so amended the said circuit court-is directed to proceed in the cause according to the principles announced in this opinion and further according to the rules, principles and practice of courts of equity. The Other Judges Concurred. Decree Reversed.