Opinion
10-28-1872
AMBROUSE'S heirs v. KELLER.
Conrad & Son, for the appellants. Barton & Boyd, for the appellee.
1. Though a decree denies to the plaintiffs the specific execution of the contract they seek to enforce, yet if it authorizes them to amend their bill, if they shall so elect, and ask for other relief, and continues the cause to give them time to so amend their bill, it is not a final decree.
2. If the plaintiffs present their bill of review verified by oath, and ask leave to file it, if the decree was interlocutory, the court should treat the bill as a petition for a rehearing of the cause, and if the decree was erroneous, should rehear and reverse it.
3. An appeal from the decree of the court refusing to allow the bill of review to be filed, if the decree was final brings up for consideration the correctness of the first decree; and if the first decree was interlocutory, brings up the whole case.
4. A contract for the sale and purchase of land made in January 1864, for Confederate money, both parties being sui juris, and the price being fair at the time, and then paid, and possession delivered, will be enforced at the suit of the heirs of the vendee.
5. If the petition for an appeal is presented within the period for the limitation of appeals, it is sufficient.
In September 1867, the widow and heirs of William Ambrouse filed their bill in the Circuit court of Frederick county, against George W. Keller, to enforce the specific execution of a contract entered into between the said Keller and Ambrouse for the sale by Keller to Ambrouse of a tract of land lying in the county of Frederick.
On the 29th of January 1864, the parties entered into a contract under seal, by which Keller sold to Ambrouse a tract of land in the county of Frederick, containing one hundred and twenty-four acres, in consideration of the sum of four thousand dollars, the price asked by Keller, which was paid at the time; and Keller contracted to make a deed to Ambrouse as soon as possible, and possession was to be given on or before the 1st day of the next March. The sale was made for Confederate money, and possession was delivered, and continued from that time by said Ambrouse during his life, and since his death by his widow and heirs. There is proof that the parties met for the purpose of making the deed, and the writing of it was commenced; but it could not be concluded because of the absence of papers which were necessary to furnish a description of the land. There is also proof that after the war Keller spoke to a lawyer to write the deed, who prepared it; but Keller afterwards declined to execute it.
Keller, in his answer, objected to the execution of the contract, on the ground that the contract, being for Confederate treasury notes, was illegal and void; that the consideration was wholly inadequate, the Confederate money being at the time of the contract worth but $200, and that Ambrouse had committed a fraud upon him by assuring him that the money was equal to gold; of which there was no proof. He said he was willing to return the value of the money he received with interest from January 1864, upon being put in possession of his land, if the plaintiffs will account to him for the rents and profits of it for the same time.
The cause came on to be heard on the 23d of July 1868, when the court held that the contract ought not, upon the principles of a court of equity, to be specifically executed; and that the only relief to which the plaintiffs were entitled in this court is to have the value of the Confederate States treasury notes paid by Ambrouse to Keller for the lands, repaid to the personal representative of said Ambrouse, said value to be ascertained as of the day of payment, either with interest thereon from that time until repaid, deducting a reasonable rent for the land, or setting off said interest against said rent. It was therefore decreed that the plaintiffs, if they elect so to do, may amend their bill by making the personal representative of William Ambrouse, deceased, a party to the same, which being done the court will proceed to ascertain, through its commissioner, the value of the said treasury notes at their day of payment, & c. If on the other hand the plaintiffs elect to proceed at law, then the bill will be dismissed. And the cause is now continued to give the plaintiffs reasonable time to make the said election between this and the next term.
On the 28th of January 1869, the plaintiffs presented their petition to the court to be permitted to file a bill of review to the decree. The petition was accompanied by a bill sworn to by one of the plaintiffs. But the court denied the petition, and ordered that unless the plaintiffs should, within sixty days from the end of this term, amend their bill by making the personal representative of William Ambrouse, deceased, a party thereto, and elect to proceed in this court according to the principles set forth in said decree, their said bill shall be dismissed, & c., such dismissal to be without prejudice to any action at law, & c.
On the 12th day of June 1869, the cause came on again, when the plaintiffs, not having amended their bill, and the time allowed them to do so having expired, it was decreed that the bill be dismissed upon the terms of each party paying their own costs; and without prejudice. From these decrees the plaintiffs applied to a judge of this court for an appeal, which was allowed. This appeal was allowed on the 26th of October 1871.
Conrad & Son, for the appellants.
Barton & Boyd, for the appellee.
OPINION
BOULDIN, J.
The decrees complained of in the petition for appeal were rendered, one of them on the 23d day of July 1868, and the other on the 28th of January 1869. A subsequent decree finally disposing of the cause and dismissing the bill was rendered on the 12th day of June 1869. The appeal was not allowed until the 26th day of October 1871; but it is conceded by the parties, by counsel, as a fact in the cause to be considered by the court, that the petition was presented to one of the judges of this court at Staunton during the August term of the court, 1871, which commenced August 10th and closed September 20th, 1871.
On this state of facts it has been earnestly and ably contended by the counsel for the appellee that the petition was not presented within the time prescribed by law, and that the appeal should, therefore, be dismissed as improvidently awarded.
Under the statutes existing when these decrees were rendered, and still in force, no appeal can be allowed from any final judgment or decree, unless the petition shall be presented within two years after the date of the decree or judgment; and it is obvious that more than that time elapsed between the date of the latest of the three decrees and the presentation of the petition for an appeal. It does not appear from the concession of the parties on what day of August term 1871, the petition was presented, but as it was presented at Staunton during that term, it could not have been earlier than the 10th day of August 1871, being the 1st day of the term. Assuming that to be the true date, it was two years and fifty-nine days after the last decree, two years six months and thirteen days after the decree of January 28th, 1869, and three years and eighteen days after the decree of July 23d, 1868.
But by the act of the 5th of November 1870, Session Acts 1869-70, chapter 399, pp. 553-4, passed within two years from the dates of the decrees of January and June 1869, and amending the law limiting appeals to two years, it is enacted " that the time from the 26th day of January eighteen hundred and seventy, to the passage of this act, shall be excluded from the computation of said period of two years." The time thus required to be deducted amounts to nine months and ten days, and when the deduction is made in this case, the time between the dates of the decrees of January and June 1869, and the presentation of the petition, will be less than two years; and the case would be the same were the last instead of the first day of Staunton term assumed as the day on which the petition was presented.
The appeal, then, from those decrees was taken in due time, notwithstanding the court should be of opinion that the decree of July 1868, is a final decree and no longer subject to appeal.
At the next term after that decree was rendered the appellants presented to the court their bill of review, duly supported by affidavit, seeking to have the decree reviewed and reversed, and asked leave to file the same; but the court, by decree of January 28th, 1869, refused to allow the bill of review to be filed, decreed adversely thereto, and re-affirmed the decree of July 1868; and not only from the decree of July 1868, but from this decree of January 1869, the appeal to this court was allowed. This appeal from the last decree is, as we have seen, in time, and, of necessity, it presents for our consideration the propriety of the decree of July 1868, sought to be reviewed. If that decree was final and erroneous on its face, the bill of review should have been allowed and the decree reversed. If the decree was interlocutory merely, and erroneous, then the bill of review should have been treated by the court as a petition for a rehearing, and the decree should have been reheard and reversed; and in either event, the refusal of the court below to entertain the application was a proper subject of appeal to this court; and as we have already said, the appeal is in time. See 2 Rob. old practice, p. 418, citing the cases of Lees v. Braxton, 5 Call 459, and Williamson v. Ledbetter, 2 Munf. 521. But as the result of a reversal of the decree of January 1869, were that decree alone to be considered by this court, would probably be to send the case back to the Circuit court, with instructions either to allow the bill of review to be filed, or to rehear the cause, as the case may be, and would thus be attended with additional expense and delay; it is proper to consider and decide the question so ably and elaborately argued at the bar, viz: whether the decree of July 1868, is final or interlocutory. If that decree is not final, but interlocutory merely, then it is properly before us on the appeal in this case, notwithstanding more than two years have elapsed from its rendition.
The court is of opinion, that the decree of July 1868, was not a final decree, but was merely interlocutory.
The distinction between final and interlocutory decrees has been a subject of frequent discussion before this tribunal, and is now well established by the decisions of the court.
In Cocke's adm'r v. Gilpin, 1 Rob. R. 20, 46, Judge Cabell, adopting the language of Judge Carr in Harvey & wife v. Branson, 1 Leigh 108, said: " When a decree makes an end of a case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do, it is certainly a final decree." And in the same case, p. 27-8, Judge Baldwin said: " Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, then the decree is to be regarded not as final but as interlocutory."
Here we have very briefly and clearly presented the characteristic features of a final and an interlocutory decree; and the definitions thus given have been approved and adopted by this court in the subsequent case of Fleming & als. v. Bolling & als., 8 Gratt. 292, Moncure, J. delivering the opinion of the court.
Let us apply the test to the decree of July 1868.
The suit was for the specific performance of a contract in writing, signed and sealed by the parties, for the sale and purchase of land; and performance was resisted mainly on the ground of inadequacy and failure of consideration; the consideration being Confederate States treasury notes. The decree merely set forth, that in the opinion of the court, upon the principles of a court of equity, the contract ought not to be enforced; but it did not dismiss the bill. On the contrary, it goes on to declare, that the only relief to which the plaintiffs were entitled, was to have the value of the Confederate States treasury notes paid by their ancestor for the land, repaid to his personal representative; and that upon his being made a party the court would proceed to ascertain through one of its commissioners, the value of said notes at the date of payment, and would decree accordingly; but should the plaintiffs elect to proceed at law, the bill would be dismissed without costs to either party. And the cause was continued to the next term to give the plaintiffs a reasonable time to make their election. This is the substance of the decree; and it certainly cannot be said of it, that it " makes an end of the case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do; " that no " further action of the court in the cause is necessary to give completely the relief contemplated by the court." On the contrary, the court after settling certain principles as applicable to the case, sedulously avoids rendering a decree in favor of either party, but indicates a form of relief to which the plaintiffs were entitled in the cause ; and continues it with a pledge on the face of the decree, that the relief thus indicated would be ascertained by the court and granted, if elected by the plaintiffs.
Such a decree is plainly interlocutory; and the appeal allowed in the cause, brings properly before this court the entire record.
This brings us to the merits of the case; about which, we think there can be no doubt.
Each party was sui juris, and no advantage was taken on either side. The land was sold for a sum in Confederate States treasury notes, demanded for it by the vendor, and deemed at the time by both parties its fair equivalent. The entire amount of the purchase money was paid in cash to the vendor, and received by him as a sufficient consideration--instructions were given to a person who was present for the purpose, to prepare a deed--officers were in attendance to take and certify the proper acknowledgments--the writing of the deed was commenced, and its completion was only prevented by the absence of certain papers, which were necessary to ascertain the boundaries of the land. The vendor seems to have caused a deed for the land to be prepared by his counsel; and always until, and in fact for sometime after, the fall of the Confederacy, expressed his willingness to execute it; but in some way its execution was delayed.
There was no evidence introduced in the cause showing, or even tending to show, that the price paid for the land was not at the time of payment its full value in Confederate States treasury notes; nor was there any evidence showing that one dollar of the money received perished in the vendor's hands. On the contrary, the vendor said that he would be able to make a satisfactory use of the money.
The ground on which the Circuit court refused to enforce specific performance of the contract, evidently was not that the consideration was inadequate at the date of the contract, nor that there was fraud in the sale, nor undue advantage taken of the vendor; but, that in the state of the law when the cause was heard in the Circuit court, a court of equity could not regard Confederate States treasury notes as a valid consideration. Whatever room there may have been for discussion on that subject at an early period after the close of the war, it is no longer a doubtful or open question. All doubt about it has been removed by repeated decisions as well of the United States Supreme court as of the courts of the several States. Among them will be found a recent decision of this court directly on the point, and in a case in all respects analagous. Hale v. Wilkinson, 21 Gratt. 75.
That was a suit for the specific performance of a contract made during the war for the sale of land for Confederate States treasury notes, and the contract was specifically enforced. Judge Moncure, speaking for the court, says, that in determining the question of the right to specific performance, " we must carry ourselves back to the date of the contract, and the time when the purchase money was paid. If at that time the consideration would have been deemed adequate; if the court would then have decreed a specific execution of the contract, had this suit been then brought, it follows, I think, necessarily, that the consideration must now be deemed adequate, and the court must now decree such execution." P. 87. We approve and re-affirm these principles; and applying them to the facts of this case, we adopt the following language of the same learned judge: " Can there be a doubt, that if this suit had been then brought (that is, when the contract was made, and the price demanded by the vendor for the land was fully paid in cash,) the consideration would have been then considered adequate, and the court would then have decreed specific execution? I think none whatever." Ibid, p. 87.
The reasoning and conclusions of the court, throughout the entire opinion, are referred to as strikingly applicable to the case before us; and the facts are in all material respects alike. If there be a difference in any respect, that difference is in favor of the enforcement of the contract in this case. In Hale v. Wilkerson, there was, as to a portion of the purchase money, both delay and depreciation before the payment thereof was completed; whereas, in this case, there was compliance with the contract by the vendee to the letter, by the payment in cash of the entire price demanded by the vendor for the land. The vendor thus received in hand at the date of the contract, the full consideration demanded by him for the land, leaving nothing more to be done by the vendee, who was not for one moment in default.
Under such circumstances, there cannot be a doubt that the vendee was then, and that his heirs are now, entitled to a specific performance of the contract. The court is, therefore, of opinion, that the decree of July 1868, refusing to enforce the contract, and the subsequent decrees of January and June 1869, are erroneous, and should be reversed with costs to the appellants; and that a decree should be entered, requiring the appellee to convey the land in the contract mentioned to the appellants, with general warranty.
The decree was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the appellants are entitled to a specific performance of the contract in their bill mentioned, and that the decrees of the 23d day of July 1868 and of the 28th of January and 12th of June 1869 are erroneous.
It is therefore ordered and decreed that said decrees be reversed and annulled, and that the appellee, George W. Keller, do pay to the appellants their costs by them expended about the prosecution of their appeal aforesaid here. And this court proceeding to render such decree as should have been rendered by the said Circuit court, doth order and decree that the said George W. Keller do convey to the plaintiffs, in said Circuit court, children and heirs at law of said William Ambrouse, deceased, the tract of land described in the contract of the 29th of January 1864, exhibited with the bill, with general warranty of title; and that said George W. Keller do pay to the plaintiffs their costs by them about the prosecution of their suit in said Circuit court expended. And should the said George W. Keller fail to make said deed within sixty days from this date, the court doth further order and decree that John J. Williams, who is hereby appointed a special commissioner for that purpose, shall in the name and on behalf of said George W. Keller convey the said tract of land to said heirs at law of William Ambrouse with general warranty of title on the part of said Keller and at his costs; and said commissioner shall then report his proceedings to the said Circuit court in order to a final decree. All which is ordered to be certified to the Circuit court of Frederick county.
DECREE REVERSED.