Reynolds v. Reynolds' Ex'or

Fauntleroy, J., delivered the opinion of the court. A transcript of the record of the said bill of review, and a transcript of the record of the original cause in which the said bill of review was filed, show the following case : In September, 1882, Stephen Watts, as executor of Charles B. Reynolds, deceased, and in his own right, filed his original bill in the circuit court of Floyd county, against Iiarvey A. Reynolds, charging that the said Harvey A. Reynolds was indebted to C. B. Reynolds, deceased, in the sum of $1,600, due by four bonds filed with the bill, of $400 each, for unpaid purchase-money for land sold and conveyed by said Charles B. Reynolds, in 1869, to the said Harvey A. Reynolds, for which a vendor’s lien vras reserved in the deed filed with the bill, which he prayed to enforce. Harvey A. Reynolds answered the bill, setting out that he had bought of Charles B. Reynolds in 1869, thirty or forty acres of a-tract of “ Wiley” land and one-half of the “ Guerrant” land, owned by the said C. B. Reynolds, for $5,000; and had paid all of the said purchase-money except the four bonds filed with the bill; that no lines or boundaries for the division of the Guerrant land were pointed out, mentioned, fixed or agreed to at the time of the said sale in 1869; and that it was not divided, and no division was- marked across it, until 1872, when Charles B. Reynolds instructed a surveyor, Stephen Guerrant, to lay oft' to Harvey A; Reynolds, one-half of the Guerrant land, telling him that he had sold to him one-half of — 151 — the said tract of Guerrant land; that the said surveyor, Stephen Guerrant reported to the said 0.33. Reynolds that he had laid off by boundaries in a deed which he had prepared, one-half of the said land to the said Harvey A. Reynolds, and that the said boundaries in the said deed mentioned did embrace one-half of the said Guerrant tract of land; that this deed, prepared by the said Stephen Guerrant; was executed and delivered by Charles 33. Reynolds, and accepted by the said Harvey A. Reynolds, in absolute and undoubted faith in the integrity and competency of the said Stephen Guerrant, entertained at that time by both the said grantor and grantee in the said deed. That the truth was only revealed by a survey ordered and made in the original cause in 1884; that the boundaries specified in the said deed did not embrace and did not convey to the said Harvey A. Reynolds one-half of the Guerrant land, by a deficiency of 102 acres, for which large deficiency the said defendant prayed for an erpiitable abatement of the purclia'se-money. The court below, by its decree of May, 1884, was of opinion that the contract between C. 33. Reynolds and Harvey A. Reynolds was a contract of hazard according to the boundaries in the deed, and refused to allow any abatement of the purchase-money on account of the loss of 102 acres less than one-lialf of the Guerrant land. From this decree of the circuit court of Floyd county, an appeal was allowed to this court; and this court, by its decree of June 25th, 1885, affirmed the said decree of the circuit court of Floyd. After the cause went back to the court below for further proceedings, and the land of appellant was sold under the decree of May, 1884, but the purchase-money not collected, the defendant, Harvey A. Reynolds, at the Uovember term, 1886, by leave of the said circuit court of Floyd county, filed his bill of review in the cause, founded upon after-discovered evidence, material and sufficient to change the decrees of the circuit court and of this court, and which he never knew of before, and could not have known — 152 — of by clue diligence. Watts answered this hill, and evidence was taken on both sides; whereupon, the circuit court, by its decree of September 19th, 1887, refused to correct its decree of May, 1884, and the decree of this court of June 25th, 1885, and dismissed the bill of review. The case is here upon appeal from this decree, and the question presented for the decision of this court now is, Did the circuit court err in denying the relief prayed for in the bill of review, and in dismissing- the bill ? In the case of Connolly v. Connolly and others, 32 Gratt., Judge Burks delivered the opinion of this court, in which, after stating the requisites of a bill of review based upon the ground of after-discovered evidence, it is decided that “ a bill founded on after-discovered evidence, with the requisites just stated, may be filed to review a decree even after it has been affirmed by an appellate court.” Citing J. B. Campbell’s Executors v. A. C. Campbell’s Executors, 22 Gratt., and cases cited; Singleton v. Singleton and others, 8 B. Monroe. In the case of Campbell’s Executors v. Campbell’s Executors, supra, Moncure, P., delivered the opinion of this court, in which it is said, on page 673, “ That a decree of the Court of Appeals, which has been certified to and entered as the decree of the court below, may be reviewed and, corrected, or reversed, on a bill of review filed in the latter court, founded on new matter, seems to be true.” * * “ But while it is no doubt true that a bill of review may be allowed in such a case, * * * the new matter, to be sufficient ground for the reversal of the decree, ought to be very material and newly-discovered and unknown to the party seeking relief at the time the decree was rendered, and such as he could not then have discovered by the use of reasonable diligence. This is necessary even in an ordinary case of a bill of review of a decree of the same court in which the bill is filed on the ground of hew matter. A fortiori, it must be necessary when the object is to reverse a decree of the Court of Appeals, in favor of the finality of — 153 — which there are so many reasons founded on. public policy and convenience.” Upon the pleadings and proofs in the original cause the question was whether C. B. Reynolds had sold to Harvey A. Reynolds one-half of the Guerrant. tract of land, or only so much thereof as was embraced in the boundaries of the deed. The circuit court decreed that the boundaries in the deed which was accepted by Harvey A. Reynolds, made it a contract of hazard and a sale in gross, and this construction was affirmed by the decree of this court upon the record then presented. The couusel for the appellees, commenting upon the newly-discovered 'testimony presented by the bill of review, asks, “ Would it have produced a different result on the first trial, or is it. of a different character and kind from that taken on the first trial to overthrow the words of the deed from C. B. Reynolds to Harvey Reynolds ? ” We answer this question with an emphatic affirmative. All the characteristics of after-discovered evidence as a basis of a bill of review, obtain in the evidence presented by the record now under review; it was discovered after the decree was rendered in the circuit, court, and after it was affirmed by this court; it could not have been discovered before by the exercise of reasonable diligence ; it is material, and such as, if true, ought to produce on the trial of the issue, a different, result, and one in consonance with the demands of justice; and it is not merely cumulative. It consists of the full, clear, and positive testimony of the Rev. James M. Price, Captain William P. Thompson, Mr. M. G. Angel, and Mr. Aaron Beckner, all highly respectable white men of Franklin county, the life-long friends and neighbors of C. B. Reynolds, who all swear that the facts within their knowledge were never made known by them to Harvey A. Reynolds until after the decision of the case, in the Supreme Court of Appeals, and the discussion in the neighborhood about, the suit and the sale of Harvey A. Reynolds’ land to — 154 — satisfy the decree against him. And neither of these gentlemen testified in the original cause. The evidence in the record shows that C. B. Reynolds was a wealthy land-owner in Franklin and Floyd counties, who had no wife or children or descendants liviug; that Harvey A. Reynolds, who had been his former slave and, up to his death in 1875, his trusted friend and business manager, was an illiterate but industrious, thrifty, and worthy colored man, between whom and C. B. Reynolds there existed kindness, affection, and perfect confidence. In January, 1869, C. B. Reynolds sold to Harvey A. Reynolds, upon long time and easy terms, one-half of his Peter Guerrant tract of land' in Floyd county, with thirty acres of his Wiley tract adjoining, for $5,000. At the time of the said sale it was not known how many acres were contained in the Guerrant tract, and the evidence is clear and conclusive that the boundaries of the land sold, simply by the designation of one-half of the Guerrant tract, were not then named* referred to or fixed, nor was even any division line indicated or agreed upon. More than two years after, to-wit, in February, 1882, C. B. Reynolds instructed Stephen Guerrant,' a surveyor, to go upon the land and survey and lay' off one-lialf of the Guerrant land to Harvey A. Reynolds, to whom, he told the said Stephen Guerrant, he had sold it. Guerrant reported to C. B. Reynolds that he had surveyed and laid off one-half the Guerrant tract, and that the lines or boundaries indicated and expressed in the deed which he prepared would give to Harvey A. Reynolds one-half of the Guerrant tract. This he expressly said and assured to Harvey A. Reynolds, who, under that information and belief, accepted the deed, which C. B. Reynolds had executed under the same information and belief in the competency and integrity of the said Stephen Guerrant, surveyor. A mutual mistake, into which both the grantor and grantee in the said deed were deceived by the statements and misrepresentations made by the said Stephen Guerrant, who had, as the event and the evi — 155 — deuce fully disclose, designedly so expressed the boundaries in the deed as to convey to the said Harvey A. Reynolds less than one-half of the Guerrant tract, by a deficiency of 102 acres — ■ nearly one-fourth of what he was entitled to. This mistake, or, more accurately speaking, this imposition, upon both O. B. Reynolds and Harvey A. Reynolds, was never known or discovered by either C. B. Reynolds or Harvey A. Reynolds until C. B. Reynolds sold the residue one-half of his Guerrant tract to one ~W. H. PofF, who refused to buy it except by the acre, and C. B. Reynolds had it surveyed by the said Stephen-Guerrant and found that it contained 562 acres. This disclosure of the fact that the deed which he had made to Harvey A. Reynolds, as prepared by Stephen Guerrant, did not convey to him one-half of the Guerrant tract greatly surprised and distressed him; and he expressed, openly and frequently, his purpose to repair the injustice done to Harvey A. Reynolds ; but which he did not do because of extreme ill-health, suffering, and death away from his home, in Lynchburg, whither he had gone for treatment. It will not -be possible to extend in this opinion, without Swelling it to unnecessary length, all the evidence, newly-discovered, and presented under the bill of review; but. the testimony of W.' P. Thompson (which is only a sample of the others) will fully expose the action and motive of the fraud and abuse of confidence practiced by Stephen Guerrant upon both the grantor and grantee in the deed which he imposed upon them; and of which he subsequently took his own advantage. W. P. Thompson says : ‘‘ I knew Charles B. Reynolds for many years, in fact from my childhood, until he went to Lynchburg in 1875, where he died. "When I first knew him he lived in Floyd county. About the year 1842 he fixed his residence in Franklin county, in my .immediate neighborhood, where he remained until shortly before his death. Before the war he was a man of large property, consisting mostly of land and slaves; and even after the war he had a good estate. — 156 — After he removed to Franklin I visited and saw him frequently, and he talked with me familiarly. He lived for years before his death by himself, his wife and children having been dead for years. About the year 1869 -or 1870 he told me, in' the course of conversation, that he had sold one-half of a tract of land which he owned in Floyd, called the Guerrant place, estimated to contain about 800- acres, to Harvey Reynolds, a former slave of his. I asked him if he did not think that this was too large a contract for a person in Harvey’s condition to carry out. He replied that he thought not; that Harvey was an industrious, energetic man; and that he had so arranged the payments that he thought he would be able to meet -them. Again, during the year 1875, and but a short time before Mr. Reynolds went to Lynchburg, I fell in company with him, and. we talked for soriie time. In the course of the conversation, Mr. Reynolds adverted to and dwelt at some length on a controversy which he had nearly had with one Stephen Guerrant. He went on to say that not long previously one Poff had proposed to purchase from him the part of his Guerrant tract in Floyd county, left to him after his previous sale of one-half to Harvey Reynolds. That ho had offered to sell it to Poff at 400 acres in the lump, as he had originally purchased the tract at 800 acres, and had sold only one-half to II. 'Reynolds; but that Poff' would only buy by the acre, and required that a survey should bo made to ascertain the number of acres, and that he accordingly made the sale to Poff in this way. He said ho spoke to Stephen Guerrant to make the survey. That he had sometime before got Guerrant to cut off one-half of the said tract to Harvey Reynolds ; and under the belief and assurance that he had done so properly, lie had conveyed the land to Harvey, who was under the same belief. He said he told Guerrant of his attempt to sell the land to Poff at 400 acres, and he was satisfied that it contained that much; but that Poff had refused to take it at that. That Guerrant thereupon offered to guarantee that it would hold out 400 acres, if he — 157 — (Mr. Reynolds) would agree to let him have all over that amount. That he consented to do this; and upon Guerrant’s suggestion this agreement was reduced to writing. That Guerrant thereupon made a survey of the land, and reported that the original tract contained more than 900 acres instead of 800 acres; and that the part left to him contained greatly more than 400 acres; while the part he had conveyed to Harvey Reynolds by deed based upon the reported representations of Guerrant, and which he thought was one-half of the tract, was many acres less than half. ' He said that Guerrant had sued him on his contract for a large amount, the value of the land in excess of 400 acres ; and that he had been compelled to compromise the matter by paying, him $300. He spoke very bitterly about the manner in which Guerrant. had acted; said he had fraudulently misled him and Ilarvev Reynolds into making a deed which conveyed far less than one-half of the land; when it was his intention to convey Harvey, and he thought he had conveyed him the full half which he had contracted to sell him; and that he had only become aware of this mistake and injustice to Harvey after Guerrant made his report of the survey of the land sold to Rolf.” The testimony of the three other after-discovered witnesses is as full and clear, and as positive and direct, on all points, as that of the witness, W. P. Thompson, above detailed; and they all say that C. B. Reynolds expressed his surprise and indignation at the fraud practiced upon both him and Harvey Reynolds by Stephen Guerrant, and asseverate his desire and purpose to redress the injustice done to Harvey Reynolds, by giving him credit for the value of the land he did not get, upon his purchase-money bonds. That having sold the land to Poff, this was the only way in which he could correct the wrong. We are of opinion that the after-discovered evidence, which was before the circuit court under the bill of review, entitled the appellant, Harvey A. Reynolds, to the relief prayed for in his bill; and that the decree of the said court, of the 19th of — 158 — September, 1887, appealed from, is wholly erroneous, and must be reversed and annulled; and the order of this court is to send the cause back to the circuit court of Floyd county, with instructions to re-instate the bill of review, and to enter a decree reversing the decree of that court, entered at the May term, 1884, and the decree of affirmance of that decree by this court at the June term (25tli day), 1885, and granting the relief prayed for in the bill of review.