Opinion
09-05-1851
KELLY v. LINKENHOGER.
F. T. Anderson, for the appellant, and Boyd, for the appellee, submitted the case.
(Absent Cabell, P.)
1. In a proceeding by foreign attachment, the home defendant denies that he has any effects of the absent debtor in his hands. He says that a tract of land which had belonged to the absent debtor, had been purchased by himself and paid for: And he in fact held the receipt of the absent debtor for the amount of the purchase money. As however he did not pretend he had paid the amount in money, and as the accounts which he endeavoured to establish were not proved to the satisfaction of the commissioner and the Court, the land was held liable.
2. In such case, upon an appeal from an interlocutory decree for the sale of the land, the appellate Court will not reverse the decree because the Court did not decree against the absent debtor or direct the giving the security as provided by law in behalf of absent defendants: The final decree may provide for these things.
This was a proceeding by foreign attachment in the Circuit court of Botetourt county, by John Linkenhoger who sued for the benefit of George W. Carper, against George W. Kelly, as an absent debtor, and John Q. A. Kelly, a home defendant. The plaintiff charged that George W. Kelly owed him the sum of 100 dollars, due by bond executed the 28th January 1839, and payable on the first of May 1842. That Kelly had removed from the Commonwealth and resided in Georgia. That he was the owner of an interest in a tract of land in the county of Botetourt and in two slaves, which had been the property of his father; and that he had conveyed his interest in said land and slaves to the defendant John Q. A. Kelly, without consideration, and for the purpose of enabling him to sell and convey it for George W. Kelly.
The home defendant answered denying that he had anything in his hands belonging to George W. Kelly; and insisted that he had bought the land for 500 dollars, which was a full price; the land being sold subject to a debt due from the estate of John Kelly, the father, from whom the land was derived.
The Court below directed a commissioner to enquire and report what was the consideration on which the land in the bill mentioned was conveyed by George W. Kelly to John Q. A. Kelly. In obedience to this order the commissioner reported that although the conveyance purported to be in consideration of 500 dollars, and there was a receipt of George W. Kelly to John Q. A. Kelly for that sum, yet that the services which the latter claimed to have rendered to the former, for which there was due this sum of 500 dollars, were sustained by evidence entirely too indefinite to be the foundation of a statement of an account between the parties; and he therefore reported that the conveyance was without consideration.
This report was excepted to by the defendant, on the ground that the commissioner had not stated the accounts between the parties; and it was insisted that the evidence was sufficient to enable the commissioner to make the statement.
The cause came on to be heard in April 1848, when the Court overruled the exceptions to the commissioner's report, and held that the plaintiff was entitled to have satisfaction of his claim out of the land in the bill and proceedings mentioned. And it was decreed that, unless the defendants should within sixty days from the expiration of the present term of the Court, pay to the plaintiff the sum of 100 dollars, with interest thereon from the 1st of May 1842 till paid, and his costs, a commissioner named, should, after advertising & c., sell the said tract of land at public auction on the premises on a credit of six, twelve and eighteen months, in equal instalments for the residue, after requiring so much of the purchase money to be paid in hand as might be necessary to defray the expenses and charges of sale. From this decree John Q. A. Kelly applied to this Court for an appeal, which was allowed.
F. T. Anderson, for the appellant, and
Boyd, for the appellee, submitted the case.
OPINION
BALDWIN, J.
The Court is of opinion, that the appellant has in his hands of the purchase money of the land in the proceedings mentioned, more than enough to satisfy the debt and interest thereon, due from the absent defendant George W. Kelly to the appellee Linkenhoger; and therefore that the decree of the Circuit court is right upon the merits; and that the said decree being only interlocutory, it will be time enough upon the final hearing of the cause, to decree against said absent defendant and to direct in his behalf the security provided by law in behalf of absent defendants. It is therefore adjudged, ordered and decreed, that the said decree of the Circuit court be affirmed, with costs to the appellee Linkenhoger.