Evans v. King

Gamble, Judge,

delivered the opinion of the court.

Evans brought an action against King for money -had and received upon the following ease :

Jesse Evans, the father of the plaintiff, who had served in the revolutionary war, as an officer in the “ Illinois Virginia regiment,” executed a deed of gift, dated the third day of December, 1834, by which he conveyed to his sons, JosephEvans and the plaintiff, three-fourths of his claim for land, to which he was entitled by reason of his services as such officer, and “ all the money due me from the state of Virginia and the government of the United States, as pay, half pay, or in any other way that may be due to me for the said services in the war of the revolution, as an officer, by virtue of any law or *528 laws, resolution or resolutions, either by the legislature of Virginia or tbe congress of the United States.” The consideration stated in this instrument is “love, good will and affection.” After this instrument was made, and after the donees had received some money under it, Jesse Evans died, and the defendant, King, became his administrator. As such administrator, the defendant received from the government of the United States the sum of $2976 66, on account of the half pay of the intestate, from 1836 up to the time of his death. This action is brought to recover the money so received. The case, in the court below, turned upon the necessity of a demand before the commencement of the. action, but the questions discussed here involve the merits of the case, and, so far as it now appears necessary, the merits will be decided.

The present action is designed to enforce against the representative of Evans, the voluntary gift made by the instrument executed in favor of his sons, by a recovery of the money received by his administrator.

The money was received from the government of the United States by the administrator, King, under the act of congress of 5th July, 1832, 4 Stat. U. S. 563, which provided for liquidating and paying certain claims of the state of Virginia. The second section of the act directs payment to be made to the state of Virginia, from the treasury of the United States, of the amount of judgments which had been recovered against that state, in favor of the officers or representatives of officers of certain regiments and corps therein mentioned. The third section provides that the secretary of the treasury shall adjust and settle the claims for half pay of the officers of the same regiments and corps, who had not prosecuted their claims to judgment, but for which the state of Virginia would be bound upon the principles of the half pay cases decided by her court of appeals.

Under this act, Jesse Evans, as a captain, was entitled to receive from the government of the United States, $240 a year, as his half pay for life. There is nothing in the act that pro-. *529 Mbits the transfer of the right to this allowance of half pay, nor any direction as to the persons who shall receive it, in case of the death of the officer. Whether there is any provision in the act of the legislature of Virginia, affecting the question of succession to the rights of a deceased officer, we have' not now the means of ascertaining.

We proposed, at first, deciding the questions discussed at the bar, which involve the merits of this controversy, but subsequent reflection has produced doubts whether those questions are presented upon the present record as fully and fairly as they might be. It is incidentally mentioned, that the assignees of Jesse Evans have received a considerable sum of money from the government, under the deed of their father, but it does not appear whether the government recognized them as assignees and paid the money to them as their own, under the deed of their father, or whether it was received from the government in the name of their .father, Jesse Evans. The fact that the government recognized their right to the money under the deed of their father, and paid it to them, may have great influence in determining the questions now presented by the defendant in opposition to their present claim. If they were treated by the government as entitled to the money under the deed, or if, according to the practice of the department, they could have received the money, claiming it under that deed, it would be difficult to resist the conclusion that the transfer was in itself complete and their right perfect. In the absence of such evidence, the defendant, the legal representative of Jesse Evans, is shown to have received the money.

1. Whatever may be the right of the plaintiff to recover the money from the defendant, we will take the payment to have' been rightly made in the first instance to the administrator by the government, unless the contrary is shown, and then we hold, that before the person who received the money as administrator, was sued by the plaintiff, there should have been a demand made upon him for its payment. The want of a demand appears to have been the ground of decision in the Cir *530 cuit Court, upon which the plaintiff suffered a nonsuit. That decision, upon the state of the evidence, was correct, and the judgment is affirmed.