Shield v. Brown

Hudgins, J.,

dissenting.

My views of this case are so different from those expressed in the majority opinion, I deem it necessary to restate the facts.

The action of the trial court in overruling the demurrer to the bill can be sustained, if at all, only on the theory that during a period of more than 20 years there had been numerous transactions between the parties, and that the accounts had been so confused and complex, that the aid of a court of equity was necessary to ascertain the true status of affairs. The prayer is efthat a true statement of accounts be had between your complainants and the defendants ; that should said accounting show that defendant is indebted to complainants in any amount, that judgment be given for said amount.”

In view of these allegations and prayer, we would expect to find in the commissioner’s report a statement of debits and credits. While the commissioner’s report in this case refers to several transactions between the parties, the findings are restricted to only one item; namely, the alleged failure of the Browns to receive full consideration for a note bearing date August 13,1919, payable to Edward Shield in the sum of $4,128. Mary Brown testified that she received $900 of this amount, and that she had been incorrectly charged with the difference, or $3,228. The commissioner, on Mary’s Brown’s uncorroborated testimony, found that she was correct in this statement, and the trial judge entered judgment for her and her husband, against Shield, for $6,590.30, which included interest from August 13,1919, until the date of judgment.

*603I cannot concur in this conclusion for the following reasons : (1) Mary Brown is contradicted by the note and deed of trust executed by her, and her husband, at the time. (2) By the positive testimony of J. M. Turner, who acted as her attorney, and the attorney for Shield at the time the note and deed of trust were prepared. (3) By the testimony of Shield.

While Shield could not recall the full consideration that he had given the Browns for the $4,128 note, and deeds of trust, he did state that-it included the $900 which Mary Brown admitted she received, and the purchase price of a truck, the exact amount he could not remember. He did not keep an accurate set of books, and his books didn’t show any consideration for this note. Mary Brown produced a printed form of a negotiable note, with the amount, date, and payee blank, but signed by her and Benjamin Brown. She stated positively that this was the note signed by her and her husband in August, 1919, and which she had left with1 Shield for him to fill in' the exact sum which he was to advance her in the purchase of some cord wood; that upon her request in 1932, Shield had returned this note, with some other papers, to her. It was convincingly established that this form of note was not printed until 1920. The exhibit, instead of corroborating Mary Brown, thus clearly showed that she was mistaken.

Even if we disregard the written evidence which contradicts Mary Brown, the positive testimony of Mr. Turner, that he prepared the $4,128 note, as well as the deed of trust securing it, and that Mary Brown and her husband executed the same in his presence, and accept Mary Brown’s testimony on the subject as true; still she is not entitled to recover on this item, for the following reasons. She admitted that in 1921, she and her husband owed Shield $4,400 made up of the following items: The $900 obtained from Shield on August 13, 1919, and $3,500 evidenced by several other notes, with interest on $3,000 from August 4, 1915, and on $500 from January 9, 1917, payments of which were secured by three deeds of trust, in *604which she and her husband conveyed to J. M. Turner, as trustee, 11.9 acres of land located on the RichmondPetersburg turnpike, Chesterfield County, Virginia.

In April of that year, that is 1921, she, her husband, and Mr. Shield, went to Mr. Turner’s office, and there she informed him that she could not pay the indebtedness, and joined in Shields’ request, to Mr. Turner, to sell the land under the deed of trust. Acting on this request Mr. Turner sold the property at public auction, at which sale Shield became the purchaser for $5,000, which sum was not sufficient to pay the principal and interest at that time due and owing to Mr. Shield. Turner testified, and it is not denied, that Mary Brown had decided to go into bankruptcy, as she was not able to pay the judgments which had been obtained against her, and other obligations she was owing. The property stood in Shields’ name from 1921 to 1923. What happened during the intervening two years, no one stated.

There is filed as an exhibit, a contract bearing date December 24, 1923, which is signed by S. P. B. Stewart, J. H. Blackwell, Mary Brown and Benjamin Brown, In this contract Stewart and Blackwell agreed to consummate the purchase from Shield of the 11.9 acres, for the sum of (about) $12,500. Stewart and Blackwell were to divide the property into streets and lots, and offer it for sale as a subdivision. They were to receive one-half the profits, and to pay the other one-half to Mary and Benjamin Brown. This contract was performed. Mary and Benjamin Brown received as their share of the profits $3,325.77, and in addition 20 lots subject to liens totaling $2,264.22.

In October, 1925, Stewart and Blackwell made a complete report of their transaction in the sale of this property. The report shows that Mary Brown had objected to the amount paid Shield, and that upon this being called to Shield’s attention, he had adjusted the matter by returning to Mary Brown $218.

When Stewart and Blackwell became interested in the *605property, title was examined, and it seems that the title examiner reported that Mr. Turner had made some mistake in the deed, by which he, as trustee, had conveyed the property to Shield. Turner testified that he had sold the property under the fourth deed of trust held by Shield dated August 13,1919, securing the payment of the note of $4,128; that when this mistake was called to his attention he explained the matter to Mary and Benjamin Brown, and that they united with him in executing a deed of correction to Shield, and this deed of correction made specific reference to the $4,128 note; another written document inconsistent with the present oral testimony of Mary Brown.

No attempt was made, by either party to the cause, to explain how they arrived at the amount of the purchase price for which Shield had agreed to sell the 11.9 acres to Mary and Benjamin Brown, through Stewart and Blackwell, except that Shield had agreed to let her repurchase the property for the full amount of the indebtedness which she and her husband owed to him. The only part of the consideration, which she now questions is the $3,228 which she claims she has never received from Shield. In the absence of a specific charge of fraud, clearly and satisfactorily proven, is a court of equity going to permit one party to a contract of sale, ten years after a full and complete settlement has been made, to reopen the sale and fix a different and lower price than that stated in the written contract of sale? The evidence shows that Mary Brown is no fool. She seems to have had numerous business transactions, not only with Shield, but with other people, involving comparatively small amounts. Is it probable that a person accustomed to trade in small sums should make a mistake of as large a sum as $3,228, and let that mistake go for fifteen years without discovering it?

From this point on I will assume that the majority opinion is right in accepting the statement of Mary Brown, and that Shield is indebted to her, and her husband, for *606$3,228, with interest from August 13, 1919. Still there should be no recovery in this case for the following reasons, and I will base these reasons on Mary Browns own testimony.

She stated that on June 15, 1929, she had another settlement with Shield. This settlement took in “every little odd and end that we owed him.” On that date, she and her husband were indebted to him in the sum of $4,500, for which she executed a note secured by a deed of trust on a part of the 11.9 acres of land which she had acquired at the time it was subdivided and sold. She further admits that she fáiled to pay this note, or any part of it. At Shield’s request, the trustee, on September 23, 1932, sold the property under the deed of trust, at which sale it was cried out to Shield for the sum of $2,300.

On the date of sale the sum due Shield was $4,500 plus $518 accumulated interest. The trustee found, and paid back taxes on the property totaling $210.15, which including his expenses of sale, amounted to $343.68. The total of these sums, or $5,361.68, represents the total outlay made by Shield in this transaction. Of course he had title to the lots, and a claim against Mary and Benjamin Brown for the deficiency, which amounts to $3,923.36, as of September 23,1932, from which he was entitled to a judgment against Mary and Benjamin Brown. The commissioner entirely ignored this obligation, admittedly due to Shield, and this action is now approved in the majority opinion. Shield testified that Mary and Benjamin Brown owed him $1,900, for which in 1930 they gave him a chattel mortgage on two mules, a cut-off saw, and a truck; that this mortgage was subject to a credit of $525, and that the Browns owed him the difference, or $1,375. Mary Brown testified that the1 balance due on this chattel mortgage was $300. The commissioner disregarded the testimony of Mary Brown and Shield, and allowed Shield nothing on this item.

After the sale, in September, 1932, Shield, under a written contract and lease, permitted Browns to remain *607in possession of the property with an option to purchase it provided the purchase money was paid on or before October 31,1933. The lease provided that they should pay $25 per month rental, in advance, and in the event that the Browns exercised their option, and purchased the property, then the amount paid as rent should be credited on the purchase price. The Browns failed to exercise their option, or pay the monthly rental. Shield notified them to vacate the premises. This they failed to do. He thereupon instituted an action of unlawful detainer. The record is silent as to the outcome of this action. I mention it simply because this seems to be the origin of this whole controversy.

I repeat, the judgment of the trial court is based wholly on the uncorroborated testimony of Mary Brown, and self serving declarations filed therewith, testimony given fifteen years after the transaction in question, contradicted by, and varying terms of four written instruments, executed by her and her husband. Even if her statements be taken as true, the admitted amount of indebtedness which she states is owing by her, and her husband to Shield, is entirely ignored. If they are entitled to recover anything, it is a serious question whether it should be for their benefit, or for the benefit of unpaid creditors.

No one can read the record in this case without reaching the conclusion that Mary and Benjamin Brown are insolvent, and yet the majority opinion approves a judgment for $6,590.30, pronounced in a court of equity against Shield, a solvent person, in favor of Mary and Benjamin Brown, admittedly insolvent, and indebted to Shield, for an amount equal to if not larger than the amount of the judgment.

With due deference to the views of my associates, I am firm in the conviction that the judgment is clearly wrong, and should be reversed.