Opinion
10-04-1877
PRETLOW v. BAILEY'S ex'x & als.
Watson & Perkins, for the appellant. William J. Robertson, for the appellee.
Absent, Anderson, J.
1. The act of April 2, 1873, Code of 1873, ch. 173, § 14, p. 1120, which authorizes the abatement of war interest upon debts contracted before the 10th of April, 1865, is unconstitutional and void; and a creditor residing in Virginia during the war is entitled to have interest upon his debt.
2. Though the amount of interest disallowed is less than $500, yet the case, involving the constitutionality of a statute, the court of appeals has jurisdiction of it.
This was a bill filed in the circuit court of Albemarle county by Ann Eliza Bailey in her own right and as executrix of Thomas R. Bailey, deceased, for her dower, and the settlement of his estate. The only question involved in the appeal was the propriety of disallowing the interest during the war upon the debt due to Thomas H. Pretlow. It appears that in 1860 Pretlow sold and conveyed to Bailey three pieces of ground near Charlottesville, for the purchase of which Bailey executed to Pretlow his eight bonds, payable on the 1st of January, 1862, and so on annually to the 1st of January, 1869; and conveyed the land in trust to secure them. This deed provides that as soon as default is made in the payment of any one of these bonds, or the interest thereon, the trustee, upon request, should sell, & c. Upon the last account reported by the commissioner, interest upon the debt of Pretlow during the war, amounting to $419.19, was disallowed; and to this Pretlow excepted. The cause came on to be heard on the 27th of October, 1874, when the court overruled the exception of Pretlow; and he thereupon applied to this court for an appeal; which was allowed.
Watson & Perkins, for the appellant.
William J. Robertson, for the appellee.
OPINION
MONCURE, P.
This is a case involving the right of a creditor to recover what is called war interest, notwithstanding the act approved April 2, 1873, which is the same with the provision on that subject contained in the 14th section of chapter 173 of the Code, page 1120. The same question was involved in several cases recently decided by this court, but not yet reported--at least in the regular report of the decisions of the court--having all been decided too late for publication in the last volume of Grattan's Reports. In those cases the question was solved in favor of such right, and it was held that in its application to such a case the act is unconstitutional and void. Therefore it is unnecessary to repeat here the reasons for such a conclusion, which are fully set out in those cases, and it is sufficient in this case merely to refer to them. They are Roberts' adm'r v. Cocke & c.; Murphy v. Gaskins' adm'r; Cecil v. Deyerle & c.; Linkous & c. v. Shafer & c.; Garnand v. Childress & c.; and Kent's adm'r v. Kent's adm'r: the first two and last of which cases are reported in the Virginia Law Journal --28 Gratt. 207, 840; the former in the last March number, page 168, and the latter in the last September number, page 556, of that publication--28 Gratt. 775. The jurisdiction of this court in those cases and this, is independent of any question as to the value or amount of the matter in controversy, and rests upon one of the exceptions enumerated in the constitution of the state (article VI, section 2), to-wit: the one which relates to controversies concerning or involving the constitutionality of a law.
The court is therefore of opinion that the circuit court erred in overruling, instead of sustaining, the exception taken by the defendant Pretlow to the report of Commissioner Gordon, dated 28th September and filed 2d October, 1872; and that so much of the decree appealed from as is in conflict with the foregoing opinion, ought to be reversed and annulled with costs, and a decree rendered in conformity therewith.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that it has jurisdiction of this appeal, and that the circuit court erred in overruling, instead of sustaining, the exception taken by the appellant Pretlow to the report of Commissioner Gordon, dated 28th September and filed 2d October, 1872. Therefore it is decreed and ordered, that so much of the decree appealed from as is in conflict with the foregoing opinion and erroneous as aforesaid, be reversed and annulled, and that the appellee, Ann Eliza Bailey, out of her own estate, and the appellee, Ann Eliza Bailey, executrix of Thomas R. Bailey, deceased, out of the estate of her said testator in her hands to be administered, do pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court, proceeding to render such decree as the said circuit court ought to have rendered, in lieu of so much of the said decree as is erroneous and reversed and annulled as aforesaid, it is further decreed and ordered that the said exception taken by the said defendant Pretlow to the said report of Commissioner Gordon, be and the same is hereby sustained. And it is ordered that this cause be remanded to the said circuit court of Albemarle county for further proceedings to be had therein to a final decree; which is ordered to be forthwith certified to the said circuit court of Albemarle county.
DECREE REVERSED.