Glaize v. Glaize

Lewis, P., delivered the opinion of the court: On the 30th day of September, 1859, John G. Rinker and Rebecca, his wife, conveyed to W. L. Clark, trustee, a certain steam engine and saw mill, together with certain other personalty and a small tract of land, lying in the county of Frederick, to secure the payment to the appellant, John Glaize, of a debt due by Mrs. Rinker, amounting to $2,000. Afterwards, on the 9th day of January, 1861, the Rinkers sold the engine and saw mill to one Martin E. Alexander, and conveyed the same to him by deed of that date, in which John Glaize and Clark, the trustee, united. And by deed of even date Alexander conveyed the engine and mill to Clark, trustee, to secure the payment of the purchase money, evidenced by four bonds executed by himself with one Castle as surety, and payable to Mrs. Rebecca E. Rinker. These bonds amounted in the aggregate to the sum of $1,128.76. On the 17th day of April, 1861, the appellant was indebted to the appellee, George Glaize, in the sum of $3,893, evidenced by note or notes; and on that day, in consideration of the transfer to the latter by the former of certain notes and bonds, and an assignment out of the debt of the Rinkers to the amount of $1,145.84, as of September 16,1860, the note or notes of the appellant were surrendered by the appellee. Added to the notes and bonds thus transferred, the assignment out of the Rinker debt aggregated the sum of $3,969.11, or $76.14 in excess of the appellant’s indebtedness to the appellee, which the latter paid in cash to the appellant. The assignment of April 17, 1861, was in writing, signed by the appellant, and is as follows: “I hereby assign to George Glaize, $1,145.84, as of September 16th, 1860, with interest from that date, out of the debt of John G. Rinker and Rebecca Rinker, his wife, to me, which is secured in their deed of trust to Wm. L. Clark, Jr., trustee, and I hereby authorize him to exercise such control of the said debt and trust as he may find necessary for the purpose of [432] carrying out this assignment, for which value has been received by me. Witness my hand and seal.” (Signed) “John Glaize.” In the year 1879, the real estate conveyed by the trust deed of September 30, 1859, was by the trustee, Clark, advertised for sale by direction of the appellant, John Glaize. Thereupon the appellee, George Glaize, filed his hill in the court below, praying that the trust he administered under the direction of the court, and that the balance due by virtue of the partial assignment of the Einker debt he ascertained and first paid out of the proceeds of sale. John Glaize answered the bill, insisting that by the assignment of April 17th, 1861, only the Alexander bonds were assigned, which, if not collected, it was because of the plaintiff’s delay and carelessness, and that no interest under the trust deed of September 30, 1859, was assigned to the plaintiff. But this defence the circuit court overruled by the decree now complained of. The question we have to determine is, whether by the assignment of April 17, 1861, George Glaize became the assignee of the Alexander bonds. It is admitted that those bonds were not made payable to John Glaize, the beneficiary in the trust deed of September 30th, 1859, hut were payable to Mrs. Rebecca E. Rinker. Nor is it claimed that those bonds were at any time in the possession of John Glaize. It would seem that upon their execution they were delivered to Clark, the trustee, in the deed by Alexander, to secure their payment, and that they remained in his possession until they were delivered by him to Messrs. Barton & Boyd, attorneys, upon the written order of Mrs. Rinker in 1871. George Glaize is very emphatic in his testimony that no assignment of the bonds was made to him, and that he never saw them until after the institution of the present suit. He testifies further, that he declined to take an assignment of them, for reasons stated to John Glaize pending the negotiations between them. We think his version of the case is sustained by the proofs. It would seem strange if the parties had intended [433] an assignment of these bonds, that they were not produced at the settlement between them, and then and there formally assigned and delivered to the appellee, as was done in respect to the other notes and bonds which were then assigned by the appellant in discharge of his indebtedness to the appellee. But no evidence of such assignment appears on the bonds themselves, nor is it claimed by the appellant that they were assigned otherwise than by the written assignment of April 17, 1861. That assignment, as we have seen, does not in terms refer to the Alexander bonds, but purports to assign $1,145.84, with interest, out of the debt of John G. Sinker and Eebecca, his wife, secured by their deed of trust of September 30, 1859. At that date the Alexander bonds with interest amounted to more than the sum assigned by that instrument, and there is no explanation by the appellant for this discrepancy. And the debt then due by John G. Rinker and wife was secured on the real estate of Mrs. Rinker and the personal property conveyed by their trust deed other than the engine and mill. But the course and conduct of the appellant himself, after the assignment of April 17, 1861, goes far towards sustaining the contention of the appellee. It appears by the evidence that after the close of the war he interested himself in the collection of the Alexander bonds through Clark, the trustee, and that at his instance, Clark several times went to Jefferson county, West Virginia, where the obligors resided, for the purpose of collecting the bonds. Clark testifies as follows: “After the close of the war, in July or August, 1865, I was requested by Captain John Glaize to endeavor to collect the bonds for the deferred purchase money from Alexander, referred to in the deed of trust, and I went to Jefferson county, collected some of the money, brought it back and paid it to Mr. Glaize. I made two subsequent trips to Jefferson, collected each time more money on the bonds, and in each case paid the money to Mr. John Glaize. I advised Mr. John Glaize to authorize me to sell the mill in case Alexander failed to pay up, which he did authorize me to do.” [434] The same witness further testified that early in the year 1866, the parties in interest met in his office in Winchester and agreed upon terms of settlement with Castle, Alexander’s agent and surety. He says that at that meeting John Glaize was certainly present and he thinks George was there also. But this the latter denies. It is quite prohable that at that meeting it was agreed by the Rinkers and John Glaize that, in order to save Mrs. Rinker’s land the Alexander bonds which, as we have seen, were payable to her, should be collected and the proceeds applied to the discharge of so much of the Rinker debt assigned by John Glaize to George as remained unpaid. But no formal assignment of the bonds was then made and the subsequent collections by the trustee were, as 'he says, turned over to George Glaize. Subsequently the bonds were, upon the written order of Mrs. Rinker, turned over to Messrs. Barton & Boyd to he collected and applied for George -Glaize’s benefit. It appears from the evidence that due diligence was used by those attorneys to collect them, but without avail. Under these circumstances the circuit court properly held that the loss did not fall on the appellee. The testimony is contradictory and not altogether satisfactory. But, upon the whole case, and recognizing the well established rule which requires an affirmance of the action of the lower court, unless manifestly erroneous (Womack v. Tankersley, 78 Va. 242), we feel constrained to affirm the decree in the present case, with leave, however, to either party, when the case goes hack to the circuit court, to have an inquiry, if desired, to ascertain the true balance due the appellee upon the principles settled hy the foregoing opinion. Richardson and Hinton, Js., concurred in the opinion of Lewis, R.