Ashworth v. Tramwell

Keith, P.,

delivered the opinion of the court.

This is the sequel to the case of Tramwell v. Ashworth, et als., *856 which was decided hy this court in June, 1901, and is reported in 99 Va., p. 646, 39 S. E. 593 . The cause was remanded to the Corporation Court of the city of Bristol to ascertain the liens upon certain real estate, and to its decree upon that subject this appeal was allowed.

The first error assigned is to the lien reported in favor of the administratrix of Rives Walter for the sum of $316.00. This debt had its origin in a note given for the purchase of property by Mrs. M. J. Ashworth to Rives Walker, who assigned one-half of it to William H. Tramwell, to pay a debt due him of $350.00. There was an arrangement between Tramwell and M. J. Ashworth, the debtor, with respect to one-half of this note, but there is no evidence that the balance due Walker, after the payment of his note to Tramwell had ever been paid by any one, and the commissioner was fully justified in finding it to be a valid and subsisting obligation.

The circumstances relied upon by M. J. Ashworth as creating an estoppel with respect to the collection of that half of this demand which was not actually paid by her is wholly without merit, as she has been in no degree misled to her prejudice.

Eor is there any merit in the contention that there is no pleading by Walker, or his administratrix, upon which relief can be given them with respect to this debt. Rives Walker offered to file an amended and supplemental answer and cross bill, but the court very properly declined to allow him to do so, because under the pleadings and decrees in the cause as it stood, all the rights of Walker or his administratrix could be settled and reported upon by the commissioner.

Eor is there any merit in the contention of M. J. Ashworth with respect to the imposition of costs. She was the losing party, and was properly required to pay the cost of the litigation.

It is assigned as error that certain judgments against Rives Walker, which had been assigned to M. J. Ashworth, were not *857 allowed her as set-offs against the judgment in favor of Rives Walker reported in this cause.

When a party relies upon this plea the set-off must be in such a condition and of such a character as that the court may appropriate it to the demand. Row, when these judgments were assigned, Rives Walker was dead, and his estate had passed into the hands of his administratrix. His creditors were only entitled to be paid upon a settlement of the estate, and that could not be done in this suit. Hor would it be reasonable or just to delay the parties to this litigation, to await the termination of an independent suit brought for the administration of Rives Walker’s estate, and for the ascertainment of the amount which his creditors, upon a settlement, would be entitled to recover against his administratrix. The idea of having such a settlement in this suit cannot for a moment be entertained. The inconvenience and delay would be intolerable.

In Robinett’s Admr. v. Mitchell and others, 101 Va. 762 , 45 S. E. 287 , it was held that where a creditor comes in under an order for an account of debts against a decedent’s estate, and proves a debt upon which a third person is jointly bound with the decedent, such third person is not a necessary party to the suit, as no relief is there sought against him, and it is not the practice of the courts, nor is it the policy of the law, to encumber suits for the administration of assets of decedents’ estates with collateral issues affecting the adjustment of equities between persons having no privity with many of the other creditors. In that case the court refused to require a joint debtor to be made a party, because of the delay and inconvenience which would result from that practice.

In Wytheville Crystal Ice, &c. Co. v. Frick Co., 96 Va. 141 , 30 S. E. 491 , quoted with approval in the case just cited, it is said: “If these persons were made defendants any liens on their lands would have to be ascertained, which, upon the same principle, would compel the making of any other persons parties *858 defendants who were defendants to judgments constituting liens on their lands, thereby adding new parties from time to time without end, at the expense and delay of the creditor, and to the great prejudice of his rights.”

These decisions are cited as being in some degree analogous to the case under consideration, and as illustrating the inconvenience, delay and injustice which would inevitably result if this court were to require the parties to wait for a settlement of the estate of Eives Walker, in order to furnish appellant the proof of set-off. There was no error in refusing to permit the judgments against Eives Walker’s estate to be'set-off against the demand in this cause made by his administratrix.

Among the debts reported is one in favor of the National Mutual Building & Loan Association for $372.31, with interest from May 10, 1898. It appears there was a bill pending in the Circuit Court of Washington county, brought by the Building & Loan Association against M. J. Ashworth to enforce the lien of a deed of trust. The property covered by this deed was sold, and the proceeds applied to the payment of the° debt secured, leaving a balance over and above due by M. J. Ashworth of $372.31. The Circuit Court of Washington county confirmed the sale to the trust creditor, decreed that the cash payment should be paid to the prior lienors, and after providing for costs credited the balance of the purchase price on the debt of the purchaser, and gave a decree against M. J. Ashworth for the residue, appointed a commissioner to convey the land to the purchaser, and directed a writ of possession to issue, with the privilege extended to M. J. Ashworth to file an upset bid within thirty days. That decree was final. It disposed of all matters in controversy and left nothing to be decided by the court. As a matter of grace to M. J. Ashworth, it gave her thirty days within which to file an upset bid. Had she availed herself of that privilege, the case would have been reopened and the decree wotdd have been inoperative, but this she did not do, and *859 the decree against her speaks from the date of its rendition on the 10th of May, 1898. It therefore has priority over the judgment in the name of Kendrick against Ashworth, which was rendered on the 10th day of June, 1898.

Among the judgments reported is one in favor of the Kational Mutual Building & Loan Association against M. J. Ashworth for $210.91, with interest from July 18, 1895. The exception with respect to this judgment is to the allowance of interest upon it. The principal of the judgment is for the costs adjudged against M. J. Ashworth in this court, and we are of opinion that it was error to allow interest upon it.

Said Judge Boane in McRea v. Brown, 2 Munf. 46 : “The general principle is that costs are considered as an appendage to the judgment, rather than a part of the judgment itself; that they are considered, in some sense, as damages, and are always entered, in effect, as an increase of damages by the court. This doctrine is to be found in 3 Blackstone’s Com., 399. I presume it was on the ground of this general principle that this court reversed the judgment in the case of Hudson v. Johnson, which gave damages on the costs; for as costs are in the nature of damages, and damages and interest are considered, in some sense, as the same, it might seem that the judgment gave, in effect, interest upon interest, or compound interest, which has been always highly discountenanced by the courts and the Legislature.”

In Baum v. Reed, 74 Penna. St. Rep. 322, Justice Agnew, of the Supreme Court of Pennsylvania, said: “It is certainly the settled general rule in this State that costs do not bear interest. The best evidence of this is the universal practice of endorsing executions. On the fi. fa. or other writ the debt is stated, followed by the date from which interest is to be computed, and then come the costs without date of interest. Such is the mode of endorsement, no matter how many years have elapsed from the entry of the judgment. Even after a revival *860 of the judgment, the same practice is pursued, the first costs being marked as on the original, and the second as on the scire facias/’’

There are cases in which interest will be allowed upon costs. An instance of this kind will be found in Chapman v. Fletcher, 95 Va. 585 , 29 S. E. 825 , but under the circumstances of this case we are of opinion that interest should not have been computed.

The decree appealed from does not, in terms, give the defendant a day in which to pay the sums decreed against her, but directs the property to be sold. At the instance of the defendants, however, the operation of this decree was suspended for sixty days to allow them time to present a petition for an appeal. Doubtless if they had asked for a suspension in order that they might have opportunity to raise the money and pay the debts, it would have been gladly afforded the defendants, and would have obviated the necessity for the suspension granted them in order to make application to this court. The court might well have thought that having suspended the operation of the decree for sixty days, it was unnecessary to say that the defendant might, within the sixty days, pay the debt. The effect was the same. The decree during the time of its suspension remained a dead letter, and whether given in the one form or the other gave to the defendant the same benefit and afforded her the same opportunity to satisfy the demands of her creditors, and to obviate the necessity for a sale. To reverse the decree upon this ground would indeed be to stick in the bark.

As we have discovered no error in the decree appealed from except with respect to the allowance of interest upon the judgment for costs, we shall amend it in that respect, and, it appearing that the appellees have substantially prevailed in this court, the decree will be affirmed, with costs.

Amended and affirmed.