Hevener v. McClung

Green, Judge: From the evidence in this case, which consists of depositions taken by the plaintiff, I understand the facts to be substantially these: Hevener, the plaintiff, was on very friendly and confidential terms with Lockridge, who was engaged [90] in buying and .selling cattle. He was in tlie babit of endorsing for Lockridge', when the latter wanted money to buy cattle or pay debts, which he had contracted; and sometimes Lockridge bought cattle for Hevener. Being in need of money on the 7th of April, 1875, Lockridge informs Iiev-ener that Seig would loudliim'four hundred dollars, if he would sign a bond as his security, payable to Seig for this amount. There is no distinct evidence to show precisely what Lockridge wanted with this money, but from the relations of the parties there can be no doubt but that it was fully explained to Hevener. He as was his custom signed this bond as security for Lockridge. In the-meantime Seig had expended the money, which he expected to let Lockridge have, but told him, that he thought in a few weeks he would let him have it on this bond. Lockridge informed ITcvener by letter of this fact, and subsequently he arranged with Seig to draw drafts on him to the amount of this four lmudred dollars, which drafts Seig met, it being understood when this four hundred dollars was thus advanced, that Lockridge would deliver this bond to Seig. But after this four hundred dollars had been advanced and before Lockridge saw Seig, he died, and Lockridge handed the bond to the attorney for Scig’s administrator, having been asked' for it by the attorney, who was informed, that it was in the hands of Lockridge for Seig by a letter written to him by Seig before his death. The moneys paid by Seig on these orders of Lockridge were paid to persons, in all probability, whom Lockridge had told Hevener he intended to pay with this money. There is no satisfactory proof, that this money was used in a maimer different from what Hevener expected it to he used, though it is but fair to presume from the relations of Lockridge and Hevener, that Hevener when he signed this bond, was willing that Lockridge should use the money in any manner he pleased, and that there was no understanding that it must he used in any particular manner. This bond of four hundred dollars made payable to Seig not having been paid, suit was brought on it. Hevener, who appears to be a litigious man, threatened to defend the suit, though on what grounds does not appear, but as the facts show no other ground legal or equitable, on which he could [91] dispute it, the inference is, that he proposed to dispute his liability on the ground that the bond had never been delivered to Seig in his lifetime, but that it was delivered to his administrator after his death. This inference is corroborated by what Lockridge says. In his deposition he says, that his recollection is, though he is not positive, that ho and ITevener and the attorney for Seig’s administrator, talked together about this bond never having been delivered to Seig in his lifetime; and alter this conversation it was agreed, that if Scig’s administrator would not issue any execution on the judgment for a year, TIevener would not defend the suit. Accordingly we find, that a judgment for the full amount was rendered bjr default against Lockridge and TIevener, and that no execution was placed in the hands of the sheriff to enforce the payment of this judgment for more than a year. And when it was placed in the hands of the sheriff he levied on twenty head of cattle belonging to Iíevener, and that he brought this suit to enjoin the enforcement against him of execution and this judgment. It is true ITevener denies, that he ever made such an agreement, and complains, that no execution was issued and levied for more than a year, and he shows, that if an execution had been issued promptly the nionoy could have been made out of Lockridge, the principal. But the very letter he produces to prove this shows, that there was such an understanding, and that ITevener complained when an execution by mistake liad been promptly issued, and on his making this complaint it was withdrawn. Heveuer also' positively denies, that he ever knew till the 2d day of July, 1878, that this bond was never delivered to Seig in his lifetime. This was sivorn to, and it is reiterated in his amended bill also sworn to, and again in his deposition. He asserts, that Lockridge, who knew this fact, would never talk to him fully in regard to it, and but for the fact of his having talked to outsiders, lie would still have been ignorant of this fact; he avoided telling him, that the bond was never delivered in Seig’s lifetime, but he says he knew from the beginning, but was unable to prove it sufficiently, that there was some fraud practiced on him in some way in this transaction.' These statements could not be received as correct, if' there was no evi92 donee in this ease other than the sworn statements of the plaintiff. The letters he produced show, that there were between him and Lockridge the most friendly and confidential •relations, rendering it highly improbable, that Lockridge would have avoided telling him, that this bond had been delivered alter the death of Seig, it he had been really anxious to ascertain all the facts in reference to this transaction. Again, if it was true that on the 2d day of July, 1878, the day he got this injunction, he first ^earned this important fact thus studiously kept hid from him from some outsider, why was not the name of this outsider stated, and why was not his deposition taken to corroborate this statement of the plaintiff? For the plaintiff well knew that unless he thus learned this fact after the judgment against him he could not now resist this claim. That there was no such outsider upon whom he could call to prove this is shown by Ms having called on an outsider, Hannah, to prove, not this important matter, but some comparatively insignificant facts, which he had not. told the plaintiff till after this suit was brought. But what is a conclusive refutation of these statements of the plaintiff is his own original bill, which he swore to as true. This affidavit was made on July 2, 1878, the very day on which he says he first learned, that this bond was not delivered till after Seig’s death. But on July 2, 1878, in his bill he says: “The evidence of the fact, that this bond was not delivered to James M. Seig in his lifetime, the plaintiff’ never knew until within the last few weeks.” So that the positive aucl emphatic declaration so repeatedly made, that he never knew of this fact till July 2,1878, is certainly not true. And what is still more remarkable, on the 19th day of June, 1878, just about two weeks before this bill was filed, the plaintiff, Hevener, wrote a letter to the Virginia administrator of Seig promising to pay this judgment in the fall of 1878. This promise must have been made after he was informed, if his bill states the truth, that this bond on which this judgment was based had been delivered after the death of Seig. The inference is, that Hevener when he filed this bill had forgotten the writing of this letter. But after it was produced he changed the date of his obtaining this information to July 2, 1878, which was after the date of this letter. [93] I judge from tlie somewhat vague maimer, in which he speaks of this subject in his original bill, that all that could have been truthfully said was that he had reason to suspect, when he permitted said judgment to be entered against him by default, this bond had not been delivered to James M. Seig in his lifetime. Yet he had not then nor had he when he filed his bill any positive evidence thereof, never having catechized Loekridge or Jones, either of whom would have known the fact in reference to the details of its delivery. From the whole, evidence I draw the conclusion, that Hovener knew, when he permitted this judgment to go against him by default, exactly what he knew when he filed this bill on J uly 2, 1879, and that he obtained this information from Lock-ridge before the judgment, and that he never heard after-wards anything about the matter from any one else. The appellant’s counsel refers to McPherson v. Meek, 30 Mo. 345, and Commonwealth v. Kendig, 2 Pa. St. 448 to show, that till delivery to the obligee a bond can not bind the obligors, as delivery is essential to the validity of a bond. The appellees’ counsel insists, that this common law rule is overthrown by the Code of W. Ya. ch. 99 § 12. We have not examined these authorities or considered this question, for if this were a good defence it is obvious, that it is a legal and not an equitable defence; and a court of equity can not hear a party asking to enforce a legal judgment and have a new trial, on the ground of after-discovered evidence,'when it is made to appear as it docs in this case, that he had an intimation of his legal defence before the judgment was rendered against him, and that he knew by what witnesses he could establish such defence, if it could be established at all, and not only failed to have them summoned, but actually compromised the suit and permitted judgment to go against him. I say compromised the suit for it is obvious, that at ITeveneTs instance and his agreementwhen the judgment was entered, the execution was not pressed for one year, though he has the effrontery to complain of this in 'his amended bill as an injury to him, and to ask for this reason, that the enforcement of the judgment may be enjoined. His letter to the Virginia administrator, and his failure to make any complaint of. this extension of time in his original bill the [94] deposition of Lockridge, and even the deposition of Iievener show, that this withholding of the execution was done at Iievener’s instance, and in accordance with an agreement made with him before the judgment was rendered. The only other ground, on which it is sought to reinstate this judgment is, that the money obtained by Lockridge on this bond was perverted from the use to which it was to be applied, according to the understanding of the parties. It is sufficient to say, that the evidence fails to prove, that this money was used by Lockridge in violation of .any undei’-standing with ITevener, and there is no pretence, that when Seig made the advance of the money on the orders of Lock-ridge, he had any idea, that there was any misappropriation being made of this money. In fact there was nono. I deem it unnecessary to comment on the allegation, that the Virginia administrator had no right to sue- a West Virginia debtor for a debt due the estate. The appellant’s counsel refers to Whichard v. Jordan, 6 Jones L. 54, and Respass v. Latham, Busb. L. 138, North Carolina, as cases, in which there is some similarity in some of the points decided to those involved in this case. I have examined these cases, and fail to discover, any similarity. The first simply decided, that by the common law a delivery 'was essential to the validity of a bond, and-that a delivery of a bond to a stranger is no delivery of the bond, unless it was delivered to the stranger for the use of the obligee. In the second case it was held, that the acceptance by the obligee is as necessary as the delivery by the obligor. These cases might have been good authority for the appellant in the common law court had he defended this suit there, but they are foreign to the questions raised in this case, according to 1he views we take of the evidence. Our conclusion is, that the court below committed no error fqr which its judgment should be reversed, and that its order or that of the judge in vacation made on June 4,1881, should be approved and affirmed, and that the appellee, the administrator of James M. Seig, must recover of the appellant his costs in this Court expended and damages according to law. Judges JOHNSON AND Woods Concurred. Judgment Aeeirmed.