Southern Railway Co. v. Glenn's Administrator

Buchanan, J.,

dissenting:

I concur in the opinion of the court, except in so far as it holds that the Southern Railway Company is not entitled to interest on its pro rata share of the moneys improperly retained by Glenn, trustee, on account of commissions for his services. Upon that question I dissent.

It was determined by this court upon the former appeal (Southern Ry. Co. v. Glenn, 98 Va. 309, 36 S. E. 395) that the action of the lower court in allowing commissions to the trustee for his services beyond those provided by the deed of trust was unauthorized and illegal, except as to the creditors who assented to or acquiesced in such allowance. The railway company, or its predecessors in interest, having objected to such allowances when made, and having succeeded in having the decrees making them reversed and annulled, and its right established to its pro rata share thereof, I know of no rule of law by which that company can be denied interest on the principal sum thus declared to be due it. Upon the former appeal it was held that it had not lost its rights by acquiescence, or by not appealing earlier than it did. If the objections made to such allowance in the year 1886 or 1881 and continued from time to time in one form or another until the decrees making them were reversed and annulled were sufficient to preserve its right to the principal sum to which it was entitled, I am unable to see why they were not sufficient to preserve its right to interest thereon.

The courts of this State, with some aid from the Legislature, have established the doctrine that it is natural justice that he who has the use of another’s money should pay interest on it. 4 Minors Inst., 819, and cases cited; Templeman v. Faunt*540leroy, 3 Rand. 436, 446-7; Ross, &c., v. McLauchlin, &c., 7 Gratt. 86.

The fact that the trustee held the money under orders of court made over the railway company’s objection, and in violation of its rights, which were afterwards reversed so far as they affected the railway company, cannot, in my judgment, affect the question of the right of the railway company to interest any more than it can affect its right to the principal. Having succeeded, after long-protracted and hotly-contested litigation, in' establishing its right to its pro rata share of the overpaid commissions, it seems to me that it is entitled to have interest on that sum during the many years the trustee has deprived it of the use thereof by improperly withholding the money and resisting its payment.

Beversed in part.