Henning v. Fisher

Syllabus. 1. The recordation of a deed by a Clerk of a County Court, -who continued to exercise his office after the State had passed the ordinance of secession, but while the County was under the Military power of the Confederates, was a valid recordation, and must be so recognized in all judicial proceedings. 2. K. conveyed F., by deed, a house and lot, which deed was duly recorded on the 16th day of March, 1863, subsequent to^the docketing of two judgments by a judgment creditor of H — s. F. after-wards sold the house and lot to H. At the request of F., H. executed two bonds in favor of M. for $1,000 of the money, and delivered them to M. who, in consideration thereof, surrendered to F. a bond held on F. by’him, (M.) and released the security thereon. M. obtained judgment on the bonds against H. H. then filed a bill in equity against K. F. and M. enjoining the collection of the judgment, on the ground of judgment liens existing on the property. Held, 'That as to M. the bonds were good, and enforceable against H.

An appeal from tbe Circuit Court of Greenbrier County. Tlie opinion of the Court sufficiently states the facts. The Circuit Court should have dismissed the Plaintiff's bill. 1st. The Plaintiff having voluntarily executed his ¡bond to the Defendant, Moss, who was not a party to the sale of the house and lot, a Court of Equity can afford him no relief. • 2nd. The hill fails to aver any foot tending to show that the deed from Kincaid to Fisher was not duly recorded in 1863. 3rd. The recitals of the*bill do not show the existance of any specified judgments, or liens upon the house and lot; and, 4th. The bill does not aver that Kincaid had not other real estate sufficient to pay any and all judgments against him at the date of the sale, to Fisher. First. The Plaintiff's bill alleges that the consideration of the bonds, upon which the judgment enj oined was recovered, was, “in part, for a house and lot,,” sold by the Defendant, Fisher, to the Plaintiff. The Defendant, Moss, was no party to this sale, and it is not pretended that the house and lot had anything to do with the consideration which passed from Moss for these bonds; Fisher was indebted to Moss, and the Plaintiff, by executing his bonds to him, undertook -to pay this indebtedness. So far as the bill shows, Moss did not even know the nature of the consideration which passed from Fisher to the Plaintiff as an inducement to execute his bonds in payment of Fisher's debt. Nor was it material for him to enquire. Had no consideration, whatever, passed from Fisher to the Plaintiff, still the Plaintiff, having voluntarily assumed the debt of Fisher to Moss, and executed his bonds therefor, he is bound to pay them. The Plaintiff certainly stands in no better position than if he had executed his bonds to Fisher, and Fisher had assigned them to Moss; and, upon their being presented to him, he promised to pay them, and executed his own *bond in lieu thereof to Moss, the assignee. In such an event, he would destroy all the equities which he might have had against the original bonds, for he would therby release Fisher as assignor. And, by so doing, would necessarily assume bis liability, and could make no defence against Moss tbat could not have been made by Fisher. Haden vs Garden. 7 Leigh, 151-163. The mere promise of an obligator, that he will pay his bond, made to a third party, who, on the faith of that promise, and with the assent of such obligor, purchases [¡the bond, binds the obligor to pay it, although it may have been void between the original parties. In Cleaton vs. Chambliss, the general rule is' stated to be, “that any damage, or any suspension or forbearance of his right,, or any possibility of a loss occasioned by the promise of the obligator, is sufficient consideration for such promise and will make it binding although no 'actual benefit accrues to the party undertaking.” — 6 Hand. 90. If the promise is made by the obligor, and the assignor has acted upon such promise, it can make no difference whether the facts which induced the promise existed or not, it being the fact that it has been acted upon that renders it conclusive. — Davis vs. Thomas, 5 Leigh, 1; Smith vs. Stone, 17 B. Monroe 168, and Dutchess, of Kingston’s case, 2 Smith Lead, case (6th Am. Ed.) 750-1. . The case at bar, if possible, is yet more obligatory than the cases above referred to, for, in this case, the Plaintiff induced Moss to surrender his claim to Fisher by executing his own bond directly to him. This act imposed upon the plaintiff two distinct and independent obligations ; one that he would pay the bond ; and the other that he would discharge the liability of Fisher to Moss. That the Plaintiff was ignorant of the fact that the consideration from Fisher to him, which moved him to execute the bonds to Moss, was invalid, can make no difference. It was his duty to inform himself, and, having failed, he will not be permitted to throw the responsibility of his ignorance and neglect upon Moss, who was' not bound to know, and had no interesan ascertaiinng what arrangement was made between the Plaintiff and Fisher. — 1 Greenl. on Ev. §207-6. Second. The bill contains no averment of any fact to show that the deed from Kincaid to Fisher was not duly recorded in 1863. It admits that “the deed was spread upon record by an. officer professing to act as Clerk, &c., on the day of its date.” It then says, “he was not such officer; he ceased to he such when the State of Virginia seceded, or attemptd to secede, from the Union, in the year 1861, so the deed was void, &c.” This is all that is stated to make the deed void. By what act did the Clerk cease to be an officer ? Did he adhere to the Confederates, resign his office, fail to take the proper oaths, or what ? There is no averment of anything of the kind. Then, can the Court, upon the mere allegation that “the State of Virginia seceded, or attempted to secede from the Union in the year 1861,” hold that the Clerk thereby,' or for that reason, ceased to be an officer? But let us assume, what we presume was intended, but which was certainly not alleged by the Plaintiff, that the Clerk, at the time he recorded the deed, adhered to the Confederate cause, and was acting under, and within, the control of the seceded Government of Virginia. Would that make his acts void? If the Government under which he was acting was, in any sense, a Government, his acts were not void, although he may not have been an officer de jure.— Griffin vs. Oun-ningham, 20 Grat. 31, 41 and 87; Wilcox vs. Smith, 5 Wend. 231. In Sherfy vs. Arganbright, the Supreme Court of Tennessee decided that, during the war, that State “was a government defacto in the highest degree. So closely resembling the lawful government that the mass of the people, looking to the possession, were, by.every law, linrnan and divine, bound to yield to it their obedience in both civil and military matters, and are excused and justified in doing so.” — 1 Hieskill, 128, see, also, Griffin vs. Cunningham, 20 Grat. 31. In the case of Texas vs. White, the Supreme Court in determining tbe validity of certain Acts passed by the Confederate Legislature of Texas, Leld “that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and persnoal, providing -remedies for injuries to person and estate, and other similar acts, which would bo valid if eminating from a lawful Government, must be regarded, in general, as valid, token proceeding from an actual, though unlawful, ■ Government.” — 7 Wallace, 733. In Thorington vs. Smith, the same doctrine is held and recognized. — 8 Wallace 1. These decisions are based upon natural justice, and should be sustained notwithstanding some of the rulings of the Courts of this State seem to be at variance with the principles they enunciate. The deed in this case was duly acknowledged and recorded, in conformity to the lavrs of the Government under which the parties lived at the time. Everything was done, that it was possible to do, to make the conveyance complete. Whether the Government under which the Clerk acted, was a Government de facto, of “paramount force/’ or “an actual, though unlawful Government,” the acts of its officers, when not directly in aid of the war power, must be regarded as valid. In view of the surrounding circumstances, the peculiar situation of the parties, the decisions of the Suprerde National Court, and of nearly, or quite all, our sister States, and the great principles of right and justice involved, it would be a mattef of sincere regret, and a calamity from which the people of our State hoped to be relieved, if this Court could not feel itself justified in recognizing the validity of the acts of officers acting under the late State Government of Virginia. Third. The bill simply refers to a detached list of judgments. These judgments are in no way described or identified upon tlie face of tbe bill. They might be changed and others substituted, as often as the necessities for the success of the Plaintiff might require, without any alteration of his bill. The rules of pleading should, and do require the plaintiff to set forth the legal effect of, and describe, every paper which is made an exhibit of his bill, both for purpose of making his aver-ments certain, and for the identification of the paper exhibited. — 1 Dan. Chy. (3 Am. Ed.) 372-3. Fourth. The Code, p. 666, Ch. 139, §9, among different alienees for value, requires the judgment creditor to subject the land last aliened first to the payment of his debt. The Plaintiff should, at least, present a prima fade case in his bill. This was not done in this case, because there is no allegation that the Defendant Kin-caid, did not have, at the date of his sale to Fisher, other real estate sufficient to satisfy all judgments against him. If an injunction can be sustained without such an allegation, no vendor, whatever may be the value of his estate, is safe from its operation. If either of the foregoing grounds are sustained, the Plaintiff’s bill should be dismissed. “A. deed improperly admitted to record, either from want of acknowledgment, or want of proof by the requisite number of witnesses, or from any other cause is not a recorded deed within the recording acts, and is not notice.” — 1 Matthews Digest, 559 note 8. Turner vs. Step, 1 Wash. 319. Currie vs. Donald 2, Wash. 64. Moore vs. Auditor, 3 Hen. & Munf. 232. Maxwell vs. Light, 1 Call, 117. Carr, Judge in Doswell vs Buchannan, 3 Leigh, 378. Glazebook vs Eagland, 8 Gratt. 332, « An unrecorded deed void as to creditors, Chap. 74 section 5, page 474, of Code. McClure vs. Thistle, 2 Gratt.. 182. Withers vs. Carter, 4 Gratt. 407. Gurrant vs Anderson, 4 Rand. 208. Code of Ya. chap. 118 section 5, page 566. Code of W. Ya. sec. 5 p. 414. The officers who took the acknowledgment of, and recorded this deed were not recognized as officers. Wylie vs. Brown, 2 West Ya. R. 502. Hawver vs. Seldenridge, 2 W. Ya. R. 274