Matney v. Yates

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:.

The chief question presented for our decision by the assignments of error is the following:

[1] 1. Did the appellants have the right to claim that the appellee held the conveyance from the Yates heirs in trust for appellants after appellee offered to convey the interests in the 241-acre tract thus acquired, and also his own interest in such land derived by descent, if appellants would refund to him his actual outlay of $200 and pay him $200 for his services?

This question must be answered in the negative.

The law of the case was determined by the opinion and decision of this court on the former appeal, as appears from the report of the case above referred to (121 Va. 506, 93 S. E. 694), and that holding need not be set forth here, except to say that it was based on the assumption of the correctness of the allegations of the pleadings of appellants, among which was the allegation that they had offered to pay appellant for his services and to reimburse him in full for all cost and expense which he had incurred in connection with the matter.

We are, therefore, now concerned solely with the facts of the case. 'wi

There is no controversy about the fact that at some time, over three months before appellee thought of or undertook to obtain the conveyance from the Yates heirs to himself,, the appellee did undertake to act as agent for appellants in getting the Yates heirs to execute the deed to appellants. And while there is some controversy as to what compensa* tion the appellant, Matney, first agreed to pay the appellee for his services, the preponderance of the evidence clearly shows that before appellee undertook to act as agent in the matter both of appellants agreed to pay him a reasonable compensation for his services. Nor can there be any doubt, as we think, that the sum of $200 was but a reasonable compensation for appellant’s services under the circumstances disclosed by the evidence.

The circumstances last referred to, as established, as we think, by the preponderance of the evidence, are as fellows: By the terms of the agency agreement entered into between appellee and appellants, in the appellant, Stinson’s office, the purchase price to be paid to the respective Yates heirs was strictly limited to certain specific sums. Appellee was not authorized to obligate the appellants for anything more. Indeed, it was not then anticipated that any of the Yates heirs would demand any greater payment. It clearly appears that at that time the appellee did not agree to advance for appellants any of this purchase money. Both Matney and Yates in substance concede this in their testimony. The agency of the appellee was a mere ministerial one, not coupled with any interest. He could not go on with the contemplated purchase from the Yates heirs any longer than the appellants wished him to do so. The whole matter was executory. They had the right to abandon the undertaking at any time by not consenting to be bound for, or by not putting up the purchase money when called upon to do so. Stinson does testify that on a subsequent occasion, when the appellee "said something or other about some money,” that he (Stinson) requested appellee to put up the money and that appellee agreed to do it. Appellee in his testimony positively denies that he made such an agreement, and says, in substance, that he affirmatively stated to Stinson when the latter made that proposition, that he (the appellee) would not go on with the agency undertaking any further. At this time appellee had found that it would cost more money to obtain the conveyance from the Tates heirs than had been anticipated as aforesaid. Therefore, the money Stinson says appellee mentioned as aforesaid must have been the greater prices which appellee had found would have to be paid. Now, if it had been then agreed between appellee, and Stinson, as Stinson says was the case, that appellee undertook to go ahead and put up the money upon Stinson’s authorization that he should do so, and upon Stinson’s personal promise to repay him the loan, there was no occasion for appellee to have had the correspondence with Matney on the subject, shown in the evidence, which, in effect, asked that appellants put up the purchase money. Matney admits in his testimony that this correspondence occurred. This is conduct ante motam litem, which is a most convincing character of evidence; and, as we think, turns the scale in weighing the conflicting evidence, consisting of the statements of appellee and Stinson aforesaid, so that there is a preponderance of evidence in favor of the correctness of the testimony of appellee on this subject. We therefore conclude that the testimony of Stinson, aforesaid, on this subject, must be discarded, and that the established fact is that appellee at no time agreed to supply any of the purchase money. The testimony of Stinson on the subject being discarded, we must and do also conclude the fact to be that, after appellee informed appellants that it would take more money than, had been anticipated to acquire the Yates heirs deed, neither Stinson nor Matney authorized appellee to pay such enhanced price. Matney admits in his testimony that he was noncommittal on the subject, to say the least. As the matter stood thereafter, following the letter of Matney to appellee, asking the latter “to delay the matter or stop until I (Matney) came up,” neither Stinson nor Matney were obligated to refund to appellee one cent of the price necessary to be paid if he went on with the purchase of the Yates heirs. As aforesaid, appellee had no authority t< go on with the purchase, or make appellants debtors to him without the authority from them to do so. In this situation the appellee found that some one else was contemplating making this purchase if he did not. In that emergency he decided to act and take the risk of having the appellants fail to ratify his action in going on with the purchase. This he did when he furnished the purchase money and took the deed to himself. He thus risked the loss both of the money paid out and the value of his time occupied about the matter, if his agency should be repudiated by appellants and the Yates heirs’ title should prove to be inferior to the Elder title under the lost deed claimed by appellants.

Further, while the evidence for appellee would not perhaps be considered as sufficiently specific to establish that his outlay in cost and expenses incurred in obtaining the conveyance from the Yates heirs aggregated the sum of $200, making up the sum of $400, if that had been made an issue in the case, this should be said: The appellants did not base their refusal to accept appellee’s offer presently to be mentioned on the ground that such outlay did not amount to $200, and, hence, did not make that an issue in the case.

And aside from the question of whether the agency aforesaid was or was not terminated by the failure of appellants to put up the purchase money found necessary to acquire the Yates heirs’ deed, or to authorize appellee to pay that price, the following is the fact admitted by both of appellants in their testimony, namely: After appellee had obtained the deed from the Yates heirs to himself, he informed appellants of this and offered to convey the Yates heirs’ interests thus acquired over to the appellants, if the latter would reimburse the appellee his expenditures, aforesaid, which he claimed aggregated $200, and would pay him the additional sum of $200 for his services aforesaid' in procuring the deed, which services consisted not alone' of personal services about the matter, but also of the service of putting up and risking, as aforesaid, the loss of the purchase money paid out by him. This the appellants posi-' tively declined to do, not because they denied that the expenditures aggregated the amount of $200, but because ' they were unwilling to pay appellee $200 for his services. '

The decision of the question under consideration turns then upon the decision of whether the sum of $200 was a reasonable compensation to appellee or an unreasonable' sum. We have no hesitancy in holding that it was no more than a reasonable compensation under the circumstances, and that when appellants refused to pay it they released the appellee from his trust relationship to them growing out of his former agency, and that appellee, thereafter, and'at the time the suit was instituted and the decree was entered, had the right to hold as his own the conveyance aforesaid from the Yates heirs.

The remaining questions presented to us for decision by, the assignments of error will be disposed of in their order as stated below.

[2] 2. Did the court below err in taking no action with respect to the alleged Stuart title, and in not requiring the appellee to convey to appellants a half interest in the Stuart title sought to be set up by appellee in his answer as the superior title, on payment by appellants to appellee of half of the purchase money paid by the latter for the Stuart title':

This question must be answered in the negative.

There were various positions on the subject of the Stuart title taken in the cause by appellants. First, they denied that there was any evidence in the cause that the alleged Elder patent on which this claim of title by appellee is based had any existence. Secondly, they claimed that if the first position was untenable there was a broken link in the chain of this title from the patent to appellee by reason of a certain tax deed being void for certain reasons which need not be here set out. And thirdly, they claimed that if both the first and second, positions were untenable, the appellee should be held to have purchased the Stuart title for the joint benefit of himself and appellants and be compelled to convey a half interest in such title to appellants on payment by them to appellee of half the purchase money the latter paid for the Stuart title.

The appellee took issue with the appellants upon all of these positions, and these several matters were, argued at length in the petition, in the briefs and orally by counsel for the respective parties, and numerous authorities have been cited on the different questions raised: but in view of the objection made by the appellants themselves, that there is no evidence in the cause of the existence of the Elder patent in question, and of our view that this position is well taken, we cannot in this case enter upon any consideration of these various questions, other than the single one of whether there is any evidence in the cause of the existence of such patent.

Confining ourselves, therefore, to this single matter, as bearing upon the question next above stated and now under consideration, we find the situation to be this:

The only evidence in the record of this cause of the existence of the alleged Elder patent mentioned is what purports to be a copy from a patent book in the clerk’s office of Buchanan county, certified by the deputy clerk of that county in the following form:

“A copy, teste:

“W. L. Dennis, clerk, by J. W. Deskins, D. C.”

The evidence in this cause was introduced, and, indeed, the decree under review was entered, prior to the Code oí 1919, and hence, the subject under consideration is governed by the statute law as it then existed. Sec. 3393, Code 1919, had not then been enacted.

By section 3334, Code 1904, the following is provided: “A copy of any record * * * in any clerk’s office of any court * * * may be admitted as evidence in lieu of the original. * *

[3-4] The question is, was an original grant from the Commonwealth, such as that in question, as the law then stood, authorized to be recorded in the clerk’s office of any court, so as to become a “record” in such clerk’s office?

It is contended for appellee that section 2367, Code 1904, gives such authority; but we think not. An examination of that section discloses that it has reference only to new grants, issued in pursuance of the preceding sections 2365 and 2366 of Code 1904, based on decrees of court in suits to supply lost or destroyed records or papers forming links in titles; which constitute a different character of grants from that of the grant in question before us.

Section 2350, Code 1904, provides that such a grant as that in question before us shall be recorded by the Registrar of the Land Office in his office; and section 2352 provides that he shall keep a separate index for each county of all patents for lands lying in this State.

We are of opinion that in accordance with the statute law as it stood at the time the question under consideration arose, the grant in question was not authorized to be recorded in the clerk’s office of Buchanan county; that it was therefore not a “record” in such office; so that the certified copy aforesaid from such office cannot be regarded as evidence of the original. Hence, there is no evidence in the cause before us of the existence of such a patent.

Therefore, aside from all other questions involved, we are of opinion that there was no error in the action of the court below in taking no action with respect to the alleged Stuart title. The numerous other questions with respect to the Stuart title raised by the parties in this cause were moot questions before the court below and they are moot questions before us. Hence, we do not pass and must not be understood as passing upon any of them.

[5] 3. But one other matter remains to be disposed of. The petition for appeal calls attention to the fact that no answer was filed by the appellee to the third amended bill, and it is contended that the court below erred in not taking that bill for confessed as against the appellee.

We think there was no error in the action of the court in this regard. The third amended bill was filed in the clerk’s office without leave of court. No process issued thereon against the appellee. The cause was brought on for hearing upon it by agreement of parties, subject to the reserved right of appellee to move the court to reject the bill, which motion was afterwards made. The court never passed on that motion, so that the time never arrived where it was incumbent upon appellee to answer such bill. Meanwhile the answer of appellee filed in the cause put in issue all the material allegations of the third amended bill, as they were the same in substance as those of the original and first amended bills, and no objection was made by appellants to the admissibility of the testimony introduced in behalf of appellee bearing on such issues on the ground that such testimony was not within the issues in the cause; and appellants, indeed, introduced proof bearing upon the same issues. •

The decree under review will be affirmed, without prejudice to either the appellants or appellee to. assert and rely upon the existence or nonexistence of the Elder patent aforesaid, and any rights they may claim respectively under or as against the Stuart title, or to take and have hereafter determined any positions they may choose, respectively, on the subject of the alleged right of appellants to require the appellee to convey to appellants a half interest in such title ■ on payment by appellants to appellee of half of the purchase money paid by the latter for such title, as freely as if this case had not been decided as it has.

Affirmed.