Vanscoy v. Stinchcomb

GREEN, JUDGKE : The counsel for the appellees asks, that the supersedeas granted to the judgment on the forthcoming bond may be — 269 — quashed as improvidently awarded, insisting, that the judgment on the forthcoming bond is an original record, a proceeding at law and not in equity, as the previous proceedings were, out of which the proceedings on the forthcoming bond had arisen ; and that the proceedings on the forthcoming bond were the equivalent to an action of debt upon it, and, as the recovery was only $67.14, this Court has no jurisdiction to supervise, our jurisdiction being limited in such actions to those cases, where the matter in controversy exclusive of costs is of greater value or amount than one hundred dollars. It is admitted, that we have jurisdiction to review the decree in the chancery cause appealed from, which refused to dissolve the injunction theretofore awarded to two judgments theretofore rendered (chap. 135,' sec. 1,' Warth’s Am. Code 744-5). This Court as well as the Court of Appeals of Virginia holds, that a judgment on a forthcoming bond and a decree or previous judgment, on which the execution issued, on which the forthcoming bond was given, constitute but one proceeding, so far as the supersedeas is concerned. On this subject I said in Laidley v. Bright, 17 W. Va. 788-9 : — “The defendants in error by their counsel insist, that the writ of error in this case should be dismissed, because it is*a writ of error and supersedeas to two separate judgments rendered in separate and distinct causes. There is nothing in this position. The judgment on a forthcoming bond is not considered as brought up by a supersedeas to. the first judgment (see Mors et al. v. Morses Admr., 4 H. & M. 303); but the two judgments constitute one proceeding, so far as granting a supersedeas is concerned; and if the judgment on the forthcoming bond has been rendered before the supersedeas is issued, and the error exists in the first judgment, the petition ought to pray a supersedeas to both judgments, and they should be both embraced in the supersedeas. (Monroe v. Webb's Ex’rs, 4 Munf. 73; McCormick v. Webb, 17 W. Va. 594.) So far have the courts gone in holding, that it is proper for the appellate courts to try the whole matter in one case, that an appellate court may extend the superse-deas first awarded to the judgment subsequently obtained on the forthcoming bond (See Bell v. Bogg, 4 Munf. 260.) We — 270 — must therefore consider this case on its merits.” — Upon these views this Court acted in that case; and upon them this Court and the Court of Appeals of Virginia has always acted. In this case the appellant with his first petition to this Court should have presented not only the record of the chancery cause but also the record of the proceedings, in which the judgment was rendered on the forthcoming bond; and this Court would have awarded him an ajjpeal to the chancery decree and a supersedeas to both the decree and the judgment on the forthcoming bond. But having failed to present the record of the judgment on the forthcoming bond, as he should have done, he was, after the appeal and supersedeas were allowed, very properly allowed to present the record of the proceedings on the judgment on the forthcoming bond, and a super-sedeas was properly allowed him, though the amount of the judgment was less than one hundred dollars; for, as we have seen, it was an appendage to the record of the decree and constituted one proceeding with it, and it is admitted, we had under our statute properly taken jurisdiction of the chancery cause to review the decree. The appellant’s counsel also insists, that no case has been made out by the plaintiff below, because he excepted to each and all of the depositions taken by the plaintiff for different reasons ; and when these exceptions are considered by this Court, it will be found, that not one of the depositions canbe read. So that the case really .stands before this Court on the bill and answers; and as the answers deny all the material allegations of the bill, it follows of course, that the injunction should have been dissolved and the bill dismissed. If it were true, as claimed, that the objections to the reading of the depositions were valid, they have all been waived by the appellant except those objections, if there be any, based on the incompetency of the witness in the court below to testify as to certain matters testified to by him. The exceptions taken to these depositions noticed in the statement of this case were, so far as the record shows, never called to the attention of the court below nor noticed by any decree rendered by the court; and with the exception of those based on the incompetency of the witness to testify to — 271 — the matter objected to all these exceptions of the appellant must in this Court be considered as having been waived by the appellant and the other defendants in the court below and can not now be raised or relied on in this Court. This is the well settled law both in Virginia and in this State (Fant v. Miller, 17 Gratt. 187; Hill v. Proctor, 10 W. Va. 78). The law as laid down and followed both in Virginia and West Virginia is as follows: — “An exception to a deposition, whether endorsed on it or taken and entered on its face in the process of taking it or written on a separate paper and filed in the cause (except upon the ground of incompetency, in which case no exception is necessary) not having been brought to the notice of the court below or passed upon by the court ought to be considered as having been waived and can not be noticed by the appellate court. And a general judgment or decree of the court below against the party making the objection can not be considered as invoking a decision upon the exceptions.” In this case there is really no proper evidence, that any exceptions were ever filed to any of the depositions. The record contains nowhere any reference to any such exceptions as filed and nothing to indicate, that they were ever filed, except the 1'act, that the clerk in making out the record copies these various exceptions as endorsed on the different depositions. None of these exceptions have any date to them; and all of them may have been endorsed on these depositions, since the court finally decided the cause. But, as we have seen, it would have made no difference, .if they had been taken and inserted in the body of the depositions, when the depositions were taken. If the record fails to show, that the attention of the court was called to the exception, or unless the court below acted upon it, the appellate court will consider the cause, as though such exception had never been filed. The depositions of Proudfoot and McClasky are objected to, because the witnesses are incompetent to testify, each of them being interested in the event of the suit. I can not see, that McClasky is interested; but Proudfoot is, being a security in one of the forthcoming bonds. But this makes no sort of difference ; for, though he was directly interested and — 272 — for that reason incompetent to testify in 1855, when his deposition was taken, his deposition could be read and consúR ered, when the case was heard and decided on the 22d of October, 1883, he being at that time competent to testify by our then existing statute-law. (Parker v. Clarkson, 4 W. Va. 408, pt. 2 of Syll.; Zane v. Fink, 18 W. Va. 693.) The depositions therefore of Proudfoot and McClaskey as well as all (she other depositions taken in this cause may properly be read and considered by the Court. They satisfactorily prove the case of the plaintiff below, as stated in his bill. But Proudfoot at the close of his deposition says, that he received the above statements from Stinchcomb and Yanscoy and a part of then he had personal knowledge of. As we can not distinguish what portion of his statements he had personal knowledge of and what portion he learned from Stinchcomb and Yanscoy,and more especially as we cannot tell, when he received this information from these parties, and as the weight and even the competency of the evidence might depend on the time, when he received the information from these parties, we will on that account disregard what he says. But, it seems to me, the decree of the court below, so far as it perpetuates the injunction to these judgments against Yanscoy is concerned, was justified by the deposition of McOlasky, who had no interest in or care for the decision of this cause. His evidence is, that he made a contract for the exchange of lands with Stinchcomb conditionally about the 1st of January, 1850. He says: — “I was to make a deed for the land in Barbour, when he cleared off the incumbrances from his land in Ritchie and made me a general warranty deed for it. The contract is not in force and was rescinded about eighteen months or two years after it was made. * * * * I learned from Stinchcomb, that he could not clear it of the incumbrance upon it, at the time and subsequently, that he had no deed for it, and I never did learn, that he had any legal title to said land whatever. It was my understanding with Stinchcomb, that he had no claim on my land in Barbour belonging to me and could not have, until he cleared all the encumbrances on his land in Ritchie and made me a general warranty deed-for the same. No deeds were evep — 273 — made.” — This being all the evidence in the record, by wbicb -Stinchcomb could claim any title legal or equitable to the fifty-eight acres -of land in Barbour county, and it appearing by fair inference from this, that he never had any possession of this land, and it not appearing, that the conditional contract, of which the witness speaks, was ever reduced to writing, it follows necessarily without regard to the title, which Stinchcomb had to the one hundred and fifty acres of land in Ritchie county, that he had no title or claim legal or equitable to this fifty-eight acres in Barbour. He seems to have had nothing but a verbal contract with McOlaskey, that McOlasky would make him a deed for the fifty-eight acres, ■whenever he should make to McOlasky a deed with general warranty for the one hundred and fifty acres, which he claimed to own in Ritchie county, and should free that tract from all incumbrances. This verbal contract was void by the statute of frauds; and the purchaser under it never having been put in possession, a court of equity, as universally admitted, will not enforce it. It is void and inoperative both at law and in equity. Yet having no other claim to this land Stinchcomb sold it to Yanscoy and assigned the purchase-money-bonds given ■to him by Yanscoy to Bennett and Hall, it is to be presumed, for a valuable consideration; and they recovered judgment on-the notes, the collection of which Yanscoy enjoined; and the decree appealed from in this case perpetuates the injunction. Of course the awarding of such injunction and the perpetuating of it was perfectly right, if the consideration of these two bonds wholly failed, and on the evidence of McOlasky it appears, that the consideration did wholly fail, as Stinchcomb at no time ever had any title legal or equitable or any claim of anjr kind to this land which was the consideration for the bonds. If we were to assume, that the contract for the exchange of lands between McOlasky and Stinchcomb was in writing, it would not really better the appellant’s case; for it was not such a contract, as under the circumstances proven in this case, a court of equity will specifically enforce. It satisfactorily appears from the evidence, that, when Stinchcomb entered into this contract to exchange lands with McOlasky,he was and, so — 274 — far as the record shows, has ever since been unable to perform the condition, upon which alone he was entitled to the land belonging to McOlasky. This being the case a court of equity will not compel McOlasky to convey the land to Stinchcomb ; and having -no title legal or equitable to this land at any time he is not entitled, nor are his assigns entitled, to enforce judgments, which they have recovered on the bonds of a purchaser from Stinchcomb. It is universally admitted to be law, that, if the plaintiff in a suit brought to enforce specifically a contract fails to show, that he has performed or been ready and willing to perform all the essential terms of the contract on his part, and also that he is ready and willing to do all matters and things on his part thereafter to be done, he can not obtain a decree requiring the defendant to perform his part of the contract. (Fry on Spec. Perf., chap. 9, sec. 608 and authorities cited). Now it is satisfactorily shown, that Stinchcomb was not, when he made this contract with McOlasky, and never has been since able to convey by a valid deed free from encumbrance the one hundred and fifty acres of land in Ritchie county; and unless he could do so, he never had any .claim on McOlasky for the fifty-eight acres in Barbour county, and never could with the aid of a court of equity acquire title to it. William Collins in his deposition proves that the land in Ritchie county has been in the adversary possession of others for many years, and that Stinchcomb never had been in possession of it. Marsh proves, that a considerable portion of said land has been in the adversary possession of others for twenty-five or thirty years, and that he himself claims more than a hundred acres of it adversely to Stinchcomb and is the owner and has exercised acts of ownership over the same since 1835, and has had a legal title to it since 1839 or 1840. Stinchcomb never had possession of any of it. On cross-examination this witness proved, that he knew, that Stinchcomb claimed the portion of this tract of land, which he had patented, and believed he had a suit pending then, 1885, for the balance of the land, and that this suit had been pending from four to six years. • This evidence, it seems to me, sufficiently shows, that in 1885 Stinchcomb, though he had never cancelled his con — 275 — tract with McOlasky, could, not perform the essential terms of it on his part and therefore had no title, even had the contract been in writing, to have it specifically enforced, and that he had no right to sell the land to Yanscoy or to enforce the payment of the purchase-money-bonds given by Yans-coy, nor had his assignees, Bennett and Hall, any such right. They had in such case only the right of their assignor. This has been the law in Virginia and in this State ever since the decision in Norton v. Ross, 2 Wash. 233. The court therefore did not err in perpetuating the injunction to prevent the enforcement of the judgments upon the assignees against Yanscoy — But the court did commit one error in the decree appealed from to the prejudice of the appellant Bennett as well as to the prejudice of his co-defendant Hall. The plaintiff in making out his claim had to show, that the defendants, Bennett and Hall, were assignees for value of the purchase-money-bonds given by him to Stinehcomb, the assignor; and, when the court perpetually enjoined the collection of these bonds, it should have given a decree in favor of these defendants severally for the amount due to each of them, which was the face of these bonds with interest, it being presumed in the absence of all proof, that they paid Stinehcomb the face value of the bonds. This seems to be a proper case for a decree between co-defendants, which should be entered, only when it is based on the pleadings and proofs between the plaintiff .and defendants. (Burlew v. Quarrier, 16 W. Va. 108; Worthington v. Staunton, — Id. 208.) When as in this case the plaintiff in in his bill alleges and in his proofs shows clearly a state of facts, upon which one defendant has a clear right to a decree against another defendant, it is proper to render a decree in accordance with such right and not turn him over to another suit against such defendant, in which he would recover on the same evidence. The decree of October 22,1883, must be affirmed ; but this ■Court must render such further decree between the co-defendants, as the court below ought to have rendered; and a decree must be entered for J. M. Bennett against Thomas Stinehcomb for the sum of $267.25 with interest thereon from October 22, 1883, and a decree in favor of-William Hall — 276 — against Thomas Stinchcomb for $244.40 with interest from October 23,1883, till paid; and the appellant must recover of Thomas Stinchcomb his costs in this Court expended; and the supersedeas to the judgment on the forthcoming bond must be set aside and held"for naught., • Aeeirmed.