Opinion
03-11-1880
TAYLOR & al. v. LANCASTER & als.
Sands, Leake & Carter, for the appellants. W. W. Henry, L. R. Page, Ould & Carrington, and Kean & Davis, for the appellees.
Money in court in a pending cause is in 1860 lent out under an order of the court. In 1863 M, the borrower, without notice to the parties claiming the funds, petitions the court to be permitted to repay the money; and under an order of the court authorizing it, he pays the money into court, and by a subsequent order this is approved, and his bond and deed of trust is delivered up and released. HELD: That the money being in possession of the court, and lent out under its order, and the payment by M having been authorized by the court, it was a valid payment, though made in Confederate money when that money was at a discount of four for one of gold.
By deed dated the 1st day of November, 1852, Warner L. Waring and wife sold and conveyed to William H. Ellis and Thomas W. Peers a tract of land in the county of Henrico, containing 198 1/2 acres, in consideration of $9,000, nearly all of which was payable in deferred instalments secured by deed of trust on the same land bearing the same date, to Ro. A. Lancaster and Wm. D. Colquitt as trustees. The said Ellis & Peers were partners. The conveyance was not to them as partners on its face, though it was probably so intended, and by some if not all of the parties concerned was so considered.
By deed dated the 27th day of April, 1857, the said Thomas W. Peers in his own right and as survivor of the late firm of William H. Ellis and Thomas W. Peers, late partners under the style of Ellis & Peers, and the widow and heirs of said William H. Ellis, (though the brother of said Ellis did not unite,) sold and conveyed to William Mitchell the said tract of land, in consideration of the sum of $5,739.16 in cash paid to said Thomas W. Peers surviving partner as aforesaid, and of the further sum of $11,478.32, secured to be paid to him, with interest from the date thereof. The said purchase money, or the credit portion thereof with interest, was secured by a deed of trust dated on the same day, whereby the same tract of land was conveyed by the said Mitchell to James M. Taylor and A. D. Williams in trust for that purpose.
The legal title to the said tract of land being still in the said Lancaster and Colquitt, under the deed of trust executed to them by Ellis and Peers as aforesaid, to secure the payment of the notes given by the latter for the purchase money therefor, and default being made in the payment of some of said notes, and they being required to sell the same under said deed of trust, they accordingly, on the 6th of August, 1858, made sale thereof under the said deed of trust, for the gross sum of $11,114.62, the net proceeds of which sale amounted to the sum of $10,748.30, out of which the said trustees satisfied the sum remaining due and secured by said deed of trust to them, which left in their hands the sum of $7,334.11, in the disposition of which they wished to be governed by the direction of the circuit court of chancery of the city of Richmond, which had jurisdiction of the matter. They were requested to pay over the said surplus in their hands, or so much thereof as was sufficient, in satisfaction pro tanto of what was alleged to be due under the deed of trust from said Mitchell, but inasmuch as the brother of Ellis, and who was one of his heirs-at-law, did not unite in the conveyance to Mitchell, the said trustees, Lancaster and Colquitt, were advised that they could not with safety thus dispose of said fund; and having held the same in their hands ever since it was received by them, awaiting the action of some party interested in the disposition of the said fund, to institute proceedings against them for a rightful disposition thereof, without any such proceedings having been instituted, they were advised to file a bill in said court against the parties interested in the question of distribution, so far as they were known to said trustees, and to ask that the rightful disposition and proper distribution of said fund should be settled and adjudged by the decree of the said court.
The said trustees Lancaster and Colquitt therefore instituted a suit in chancery for that purpose in the said court to which suit they made Peers in his own right and as surviving partner of the said late firm of Ellis & Peers and as late administrator of said William H. Ellis, and all the other heirs-at-law and representatives of said William H. Ellis, who were numerous, and the said Mitchell, and said James M. Taylor and A. D. Williams trustees as aforesaid, defendants to the bill. The said suit was instituted in August, 1859.
On the 21st of December, 1859, on the motion of the plaintiffs, they were authorized to deposit the amount of the trust fund alleged to be in their hands, after retaining a sum sufficient to pay certain clerks' fees and costs, & c., in the Farmers bank of Virginia to the credit of the said cause, subject to the order or decree of the said court, and were required to file a certificate of such deposit.
On the 27th of December, 1859, such a certificate was accordingly filed, for the sum of $7,476.54.
On the 28th of January, 1860, it appearing to the said court that there was then on deposit in the said bank to the credit of the cause, the sum of $7,476.54, the court ordered that John G. Williams (who was appointed a commissioner for the purpose), have leave to check on said bank for said sum, and after deducting a commission, & c., " lend out the residue, taking from the borrower a bond with personal security approved, & c., payable to the Commonwealth, and in a penalty, & c., conditioned to pay into the said court interest on the sum borrowed, semi-annually, at the rate of six per cent. per annum, and to pay the principal sum and all interest due thereon into the said court in sixty days after he shall have been served with a copy of an order or decree made herein, directing the payment of the same." And said commissioner was also directed to take a trust deed on real estate ample in value to secure the payment of said bond, the title and sufficiency of said real estate to be approved, & c. But said Williams, before acting under said decree, was required to give bond, & c.
On the 3d of March, 1860, the said Williams filed his report under said order, which was confirmed.
In said report, said commissioner stated that, as directed by said decree, he drew out of bank the sum of $7,476.54, retained the sum of $74.76 (a commission of one per cent., ) and loaned to Edward Mayo, the residue, to-wit: the sum of $7,401.78, taking from him his bond with William C. Mayo as security, in the penalty, & c., conditioned as directed by the decree, with a deed of trust upon the tract of land of said Mayo in Henrico county near Richmond, called Belleville. The security to the bond and the deed of trust having been approved by Commissioner Cary, the deed was duly recorded, and the bond and deed were returned with said report to the court.
On the 15th day of February, 1863, the said Edward Mayo presented to the said court his petition, stating that he had borrowed the said fund on the terms aforesaid with which he had complied; but that he was then " desirous to repay the said loan, and thereby discharge his surety from liability, and his real estate from incumbrance." He therefore prayed that an order might be made, directing that the money due on said loan be collected and brought into court. And on the same day, on the said petition of said Mayo, it was " ordered that he pay into the Farmers bank of Virginia to the credit of this cause, the sum of $7,401.18 with interest from the 1st day of February, 1860, being the amount loaned to him on that day by John G. Williams, acting as commissioner of the court in this cause under an order pronounced therein on the 28th of January, 1860, which loan is secured by his bond in the penalty," & c., " with William C. Mayo as security therein, on file in this court, and a deed of trust on the tract of land of said Mayo in Henrico called Bellville, of record," & c.; " and upon his filing with the clerk of said court a certificate of such deposit, it" was " further ordered that he have leave to withdraw his said bond, which" was " to be delivered to him by the clerk, and that the said Williams, commissioner as aforesaid, do execute to the said Mayo a release deed for the said tract of land called Bellville," & c.
On the 11th day of April, 1863, the said Mayo deposited in the said bank to the credit of the said cause, $8,821.67, and on the 16th day of May, 1863, filed in the said cause a certificate of the said deposit.
On the 9th day of May, 1863, it appearing that R. Milton Cary was trustee in the deed of trust from Edward Mayo conveying his tract of land called Bellville to secure the money loaned to him in this cause as aforesaid, instead of John G. Williams, who by mistake had been supposed to have been such trustee, and had therefore been ordered to release the said land from said deed; it was ordered that the said Cary should execute such a release.
On the 17th day of December, 1867, the defendants, James M. Taylor and A. D. Williams, made oath to the truth of the statements contained in an answer made by them to the bill in the said cause, which answer was filed by them on the 24th of February, 1868. In that answer, for the first time, was any objection made by any defendant in the case, to the payment made by the said Mayo in Confederate money, of the debt due by him for the money loaned to him by an order of the court in January, 1860, as aforesaid. It does not appear that, until then, was any answer filed by any defendant in the cause.
In that answer, the statement made in regard to the said payment is as follows: " Since this suit was instituted, it seems that the money has been deposited in the Farmers bank, and it has been checked out and loaned to Edward Mayo, who gave his bond with William C. Mayo as security, and executed a trust deed conveying a tract of land called Bellville, to secure a compliance with said bond; it further appears that the said Edward Mayo, without notice to these respondents, obtained an order from this court, directing him to pay into the Farmers bank of Virginia to the credit of the court in this cause, $7,401.78, the amount borrowed by him, with interest from 1st of February, 1860, and there is a certificate dated April, 1863, stating that he deposited, as directed by the court, a certain sum, and by a subsequent order, it is directed that the bond he executed be delivered up and the land released. These respondents say that it is a notorious fact, that in April, 1863, neither gold, nor anything equivalent to gold, was paid in discharge of debts due from debtors, and these respondents state that they verily believe that Edward Mayo did not deposit the said sum in gold or other lawful currency of the United States; and they insist that the order made heretofore in this cause, directing the release of the said land called Bellville, and the delivery of the bond with William C. Mayo his surety be set aside, and that said Edward Mayo be required to make a proper deposit or payment of the money so borrowed by him.
About the time of the filing of the said answer, to-wit: in January, 1868, a cross bill was filed in the case by the said Taylor and Williams, stating in substance, among other things, the facts or most of them stated in said answer. The following, in substance, is stated in the said cross bill: " Your orators have heard and believe that during the pendency of the recent war, when Confederate notes had greatly depreciated in value, and when they were commanding in the market only one-fourth of their face, four dollars of Confederate notes being the equivalent of one dollar of gold, to-wit: in January, 1863, the said Edward Mayo made application to the court to allow him to refund and repay the amount loaned to him. That on the 18th February, 1863, when Confederate money was not worth one-fourth of their face, an order was entered that the said Mayo do pay into the Farmers bank of Virginia to the credit of the said cause, the sum of $7,401.78, with interest from the 1st day of February, 1860, being the amount loaned to him on that day by John G. Williams acting as commissioner, & c.; that upon his filing with the clerk of the said court a certificate of deposit, that the said John G. Williams do execute a deed of release of the property conveyed in trust, & c.
Your complainants state, that the said order purports to have been made " on the petition of Edward Mayo'; that no notice was given to them or either of them of such application; that there was no docket of such petition; that at the term at which said application was made, the docket of chancery causes was not (as your complainants believe) called; that as your complainants believe, the said docket was not called during that period, or for a period of, say one year before and one year after that time; that there was nothing to apprise your complainants that any application would be made in the said suit, affecting their interests; that the said petition and application of said Mayo was irregular; and that notice of the same ought to have been given to the parties in the said suit, certainly to your petitioners, before the application was granted.
Your complainants allege that the said application was made when the said Edward Mayo knew the parties interested would not consent to take Confederate notes; application for that purpose having been made at a previous time to Eaton Nance, one of the counsel in the cause; he refused to consent to the same, and positively objected to it. Your complainants further allege that they have been informed, and they believe, that after the said decree was entered, directing John G. Williams to execute the release deed therein provided for, without notice to the parties, the said Mayo applied again to have the decree changed, and R. M. Cary was appointed a commissioner and directed to make the release. Your complainants allege that the action of the said Mayo in obtaining such decrees and orders, was in fraud of your complainant's rights, and was designed to enable him to discharge a debt of $7,401 and upwards, by the deposit of Confederate notes, and without the knowledge of the parties chiefly interested in the same," & c.
On the 9th of February, 1870, the said Edward Mayo filed a demurrer and answer, to the said bill.
In his answer he stated, among other things, as follows, to-wit: " that he did petition the court in the said suit of Lancaster, & c. v. Peers, & c., in which he had borrowed the sum of $7,401, giving his bond with his brother as surety and a deed of trust to secure the same, to be allowed to pay up the loan into court, or into bank to the credit of the court in the said suit, and that the said court made the orders as they appear of record in the said suit, when all the parties in the said suit were before the court and represented by counsel in daily attendance upon the said court; and he denies that there was any impropriety or irregularity whatever, in his said petition and application, or in the granting of the same, so far as he knows or believes, or any objection thereto until after the end of the war, when it became the interest of the complainants to object. And in answer to the complaint that no previous notice was given to the complainants of his intended application before it was made, your respondent says he was and is totally ignorant as to what practice ought to have been pursued in that respect. He employed counsel of long standing in the said court, in whom he confided to represent him in his said petition and application, which was made openly and bona fide to the said court in the said suit, when the complainants were represented by counsel who continued afterwards to represent them in the said suit, and who never made any objection to what was ordered and done in the premises then or afterwards, nor have the complainants themselves ever objected thereto until the filing of their cross bill, when the Confederate States having fallen, and they having taken their chances, objection was, for the first time, made.
Further answering, respondent denies that at the time of his said application, he knew that the parties in the said suit would not consent to take Confederate notes. He denies that he ever made application to Eaton Nance, one of the counsel in the said suit, for that purpose, who refused to consent to the same and positively objected to it."
After making various other statements in the answer, which need not be repeated here, the respondent thus proceeds:
" This respondent humbly submits that equity and good conscience will not permit the complainants, or any other party who was before the court in the said suit, and who were sui juris and represented by counsel in the said suit, and living within the immediate jurisdiction of the court, to come forward five years after the said orders were made and said release deed was executed, and ask to cancel the same, unless they shall appear to have been obtained from the said court and from the said trustee who executed the said deed of release by deception and fraud; and he here indignantly denies and repels the charge of fraud made in the bill.
The order of court upon which the said trustee released the said deed of trust, was openly and honestly obtained; was perfectly understood by the said trustee at the time he executed the said deed of release; and the bond which had been given by this respondent with his brother as surety, for the said loan, was delivered up and cancelled in obedience to the said order, and the said deed of release was duly executed in compliance therewith. No fraud or deception was practiced upon the court or its officers in any part of the transaction, nor upon the said trustee, and no mistake or surprise is alleged or suggested; and the said deed of release was duly recorded in the clerk's office of Henrico county court, where it has since remained without objection until the present bill was filed. And in the absence of any allegation denying actual notice of the parties or their counsel in the said suit, of the said judicial orders and proceedings therein, and of the said deed of release, after they were made and recorded, and before it became too late for them to make objection thereto, this respondent insists, that they will be presumed to have acquiesced in the said orders and in the said payment and release, for the whole time when they should have objected thereto, and when it was their duty to have made known their objections, if they meant to object, and that the same ought now to be held valid and binding on the complainants and other parties to said suit, and cannot be impeached or set aside without proof of fraud, which is denied."
" This respondent relies on the defence of the statute of limitations as if specially pleaded, and on the length of time which has elapsed since the said transaction now complained of took place, and the changed condition of affairs as grounds for refusing to entertain the complainants bill."
The following are copies of other papers filed in the cause on the 2d day of November, 1872:
" Statement of L. Nunnally.
I have been requested to state what was the circulation or currency of the State of Virginia during the late war with the United States. In answer thereto I say that as soon as the Confederate government could prepare a sufficient number of their treasury notes, they became, almost exclusively, the circulation of the State. As early as the 22d March, 1862, the legislature passed an act directing said treasury notes to be receivable by sheriffs and other collecting officers, in payment of taxes and other public dues to the State. After this time the said notes were used, not only in payment of taxes, but in all current transactions, and as bankable currency in the city of Richmond, none other being in use, except a few Virginia treasury notes, and they to a very limited extent.
L. NUNNALLY,
Late President of the Bank of the Commonwealth. "
" Statement of Benja. Pollard.
At the request of R. T. Daniel, Esq., I hereby certify that from the commencement of the late war to its conclusion, I had charge of the chancery business of the circuit court of the city of Richmond, first as deputy clerk, and afterwards as clerk, and that during that period, from the time that Confederate money came into general use, the money transactions of the court were in Confederate money, although stated in dollars and cents, and that the fee bills of the clerk were paid in that money. I remember no instance in which any objection was made to the receipt of Confederate money under decree of the court.
BENJA. POLLARD.
June 23, 1871."
Endorsed. --" This paper, it is agreed, shall avail as much as if the testimony had been given by Mr. Pollard in a deposition after due notice, but the testimony is excepted to as illegal and incompetent. It is not admitted that such testimony is evidence in this cause for any purpose.
STEGER & SANDS,
Counsel for Taylor and Williams. "
And by operation of law in such cases made and provided, the said suits were transferred to the docket of the chancery court of the city of Richmond.
And at a chancery court of the city of Richmond, held on the 20th day of January, 1876, the two causes aforesaid, of Lancaster and Colquitt, plaintiffs, against Thomas W. Peers and others, defendants; and Taylor and Williams, plaintiffs, against Lancaster and Colquitt and others, defendants, came on to be heard:
Whereupon the court passing upon the whole case on the merits, so far as the said Edward Mayo and William C. Mayo are concerned, and without at this time deciding any other question in these causes except that in which said Edward and William C. Mayo are concerned, for reasons set forth in a written opinion filed in the cause and made part of the record, decreed that said amended bill be dismissed as to said defendants Edward and William C. Mayo, and that they recover of said plaintiffs, Taylor and Williams, their (the said defendants) costs in this behalf expended. From which said decree the said Taylor and Williams applied to a judge of this court for an appeal; which was accordingly allowed.
Sands, Leake & Carter, for the appellants.
W. W. Henry, L. R. Page, Ould & Carrington, and Kean & Davis, for the appellees.
MONCURE, P., delivered the opinion of the court. After stating the case he proceeded:
In this case, the fund in controversy was, in August, 1859, in the hands of Robert A. Lancaster and William D. Colquitt, trustees under a deed of trust to them from William H. Ellis and Thomas W. Peers and wife, bearing date the first day of November, 1852, executed to secure the payment of a large debt due by the said Ellis & Peers for the purchase of a tract of land conveyed by the said deed, which debt, or the greater part of it, was payable in many deferred instalments. After satisfying the purposes of said deed of trust, it was known that there would be quite a large surplus of the trust fund which would be subject to the claims of other creditors, under subsequent deeds of trust or otherwise, which claims, to some extent, appeared to be doubtful and conflicting. And the said trustees, Lancaster & Colquitt, not knowing who, certainly, was entitled to the said fund, and in what proportions; and wishing to dispose of it with safety to themselves and according to the respective rights of all persons concerned, instituted this suit (in August, 1859,) for the purpose of paying the said fund into court, and convening before it all persons concerned, and having the matter settled under the direction of the court. They accordingly made all persons then known to have any claim to the said fund defendants to their suit, who were very numerous, and prayed in their bill, among other things, that an order might be made for the payment of the residue remaining in their hands as aforesaid into " one of the banks in the city of Richmond, to the credit of this cause, subject to the future order or decree of this court in the premises; that such other person or persons as shall be discovered to be interested in the question of the disposition of the said fund, be made defendants to the suit, and required to set forth their interests; that all proper enquiries and accounts shall be decreed to be made and settled; that the plaintiffs shall be protected against costs and risk in the disposition of the said fund; and that all questions arising concerning the rightful disposition of the said fund and the parties entitled thereto, be settled, and the said fund disposed of by the proper decree or order of this court in this suit, and that full and general relief in the premises be granted."
Accordingly, on the 21st of December, 1859, on the motion of the plaintiffs, they were authorized by a decree of the court in the said suit, to deposit the said fund in the Farmers bank of Virginia to the credit of this cause, subject to the order or decree of this court, and were required to file a certificate of such deposit with the clerk of the court.
On the 27th of December, 1859, such deposit was accordingly made, the sum deposited being $7,476.54, and a certificate of the deposit was filed in said suit.
On the 28th of January, 1860, it appearing to the court that the said sum was then on deposit in the said bank to the credit of the said cause, an order was made therein that John G. Williams (who was appointed a commissioner for the purpose) " have leave to check on said bank for said sum, and after deducting therefrom a commission of one per cent. for his services, do lend out the residue of said sum, taking from the borrower a bond with personal security, approved by one of the commissioners of this court, payable," & c., " in a penalty," & c., " and conditioned to pay into this court, interest on the sum borrowed semi-annually," & c., " and to pay the principal sum and all interest due thereon into this court, in sixty days after he shall have been served with a copy of an order or decree made herein directing the payment of the same. And said commissioner is also directed to take a trust deed on real estate, ample in value to secure the payment of said bond, the title and sufficiency of said real estate to be approved also by one of the commissioners of this court. But said John G. Williams shall not act under this decree until he shall have entered into bond with good security," & c.
On the 3d of March, 1860, the said commissioner Williams filed his report under said decree, to which there was no exception, on consideration whereof the same was confirmed by the court.
It is stated in said report, that the said commissioner Williams, " as directed by said decree, drew out of bank said sum of money, retained his commission, and loaned to Edward Mayo the residue, to-wit: the sum of $7,401.78, taking from him his bond with William C. Mayo as security, in the penalty of $14,803.56, conditioned as directed by the decree, with a deed of trust upon the tract of land of said Mayo in Henrico county, near Richmond, called Bellville. The security to the bond and the deed of trust have been approved of by Commissioner R. Milton Cary, the bond is herewith returned," & c.
On the 18th day of February, 1863, the said Edward Mayo presented to the said court his petition, stating that he had borrowed the said fund on the terms aforesaid, with which he complied; and that he was then desirous to repay the said loan, and thereby discharge his surety from liability, and his real estate from encumbrance; and praying that an order be made, directing that the money due on said loan be collected and brought into court.
On the same day, and on the petition then filed by Edward Mayo as aforesaid, it was ordered by the said court, " that he pay into the Farmers bank of Virginia to the credit of this cause the sum of $7,401.18, with interest from the 1st day of February, 1860, being the amount loaned to him on that day by John G. Williams acting as commissioner of the court in this cause," & c., " and upon his filing with the clerk of this court a certificate of such deposit, it" was " further ordered that he have leave to withdraw his said bond, which is to be delivered to him by the clerk; and that the said John G. Williams, commissioner as aforesaid, do execute to the said Mayo a release deed for the said tract of land called Bellville, conveyed by the trust deed aforesaid, to be acknowledged and recorded in the clerk's office of the county of Henrico."
On the 3d of May, 1863, it appearing that R. Milton Cary is the trustee in the deed from Edward Mayo conveying his tract of land called Bellville in the county of Henrico, in trust to secure the sum of money loaned to him in this cause, to-wit: the sum of $7,401.78, with interest from the first day of February, 1860, so much of the order pronounced in this cause on the 18th day of February, 1863, as directs that John G. Williams, the commissioner therein mentioned, shall execute to the said Mayo a release deed for the said tract of land," was ordered to " be set aside; and it further appearing that the said Mayo" had " complied with the said order by paying into the Farmers bank of Virginia to the credit of this cause, said sum of money with interest, as appears by the certificate of the proper officer of said bank filed in this cause, it" was " ordered that the said Cary as trustee as aforesaid, do execute to the said Mayo a release deed of the said tract of land conveyed to him in trust as aforesaid, with special warranty, to be recorded in the clerk's office of the said county court of Henrico."
The loan to Mayo as aforesaid, having been made in what is called good money, though not in specie, to which it may possibly have been equivalent in value, and having been repaid in Confederate currency of the same amount, worth at the time of such repayment not more than one-fourth of the then value of the same amount of specie; and the said amount of Confederate currency having since wholly perished, and been lost to the parties entitled to the fund by reason of the fall of the Confederacy; it is contended by the appellants that the loss must fall, not on them or the said parties entitled to the fund, who, it is contended, never consented to, or acquiesced in, said repayment in Confederate currency, but must fall on said Mayo and his surety, and the tract of land conveyed to him as aforesaid, the liability of whom and which therefor, the said appellants seek to enforce by this appeal, though the court below decided to the contrary by the decree appealed from.
It is true there is no evidence in the case to show that the parties entitled to the fund or any of them expressly assented to the repayment of the debt in Confederate currency as aforesaid. Nor is there any evidence to show that they dissented from such repayment, or that they were ignorant of the fact of such repayment at the time it was made, or even for a reasonable period thereafter, when it might not have been too late to make any objection thereto. There was, certainly, no fraud or secrecy in making such repayment. It was openly made on petition setting out the grounds therefor. It was made on application to the circuit court and by consent of the judge thereof (Meredith). It was followed in due time by a deed of release duly executed, acknowledged, and recorded in the city of Richmond, or county of Henrico, where, no doubt, the parties concerned and their counsel resided. It is extremely improbable that the said parties and their counsel were so ignorant at the time of such repayment and so remained from and after that time during the whole period of the war, and until the time of the filing of the cross bill in this case, in January, 1868; especially as it is not averred in that bill that they had no information on the subject, though it may be therein averred that they did not receive notice of the transaction at or about the time it occurred. The probability of the case is, that the said parties and their counsel were aware of the transaction at the time it occurred, or in a reasonable time thereafter, and early enough to make an objection to it; and that they made none because they considered the currency as good for present use as could be then obtained, and would ultimately be of the value of specie. The repayment was made when the Confederate cause was very promising, as much so, perhaps, as at any time during the war; and when Confederate currency had became almost exclusively the circulation of the State. See what is said on this subject by Nunnally and Pollard in their statements included in the record in this case.
But what seems to be conclusive in this case against the appellants, is the fact that the whole matter was in the hands of the court, and was transacted by the court which was perfectly competent to accomplish the transaction. The money from which the subject of controversy was derived was paid into court because it was not certainly known who was entitled to it, and for the purpose of having it ascertained by the court, who was so entitled and in what proportions; and for the purpose of having it taken care of, and made as productive as possible in the meantime. Now the court having the direct charge of the fund, and alone having such charge, it was competent for the court, and indeed for no other party, to loan out the fund, as it did to Mayo; and to receive it back whenever its repayment should be desired by Mayo or be considered proper by the court. If an executor or administrator bona fide received Confederate money at par in payment of a debt due to his testator or intestate in good money, at a time when such money was as valuable or as current as it was when Mayo's debt was paid, he could not be compelled to repay the amount in good money after the war was ended and all Confederate money had perished. A fortiori, the debtor bona fide making such payment, could not be compelled to repay the amount as aforesaid. If such be the law in regard to an executor or administrator a fortiori it is the law in regard to a court authorized, as in this case, to receive such payment. Here the money was paid into court because the parties supposed to be the only parties concerned did not know who was entitled to it, and it was so paid in, expressly on the terms that it should be subject to the future order or decree of the court in the premises. Of course it was not necessary when the loan was first made by the court to Mayo, that the parties beneficially interested should have notice of such loan. Nor was it necessary, when Mayo applied to the court to receive the money loaned and interest due thereon, that the parties beneficially interested should have notice of such application. The court had power by the express terms of the decree under which the deposit was made, to consent to such repayment, and Mayo cannot be liable for the payment of the money over again, in the absence of evidence of fraud on his part.
The money in this case was borrowed by Mayo of the court of chancery, in whose hands it was when loaned, and to which it was payable by the express terms of the loan. It would seem therefore, that the borrower was safe in repaying the money in such currency as the court, the lender, was willing to receive. It was uncertain at that time, who was beneficially entitled to the money, to which there were conflicting claimants, and the court was considered by the borrowers as the legal representative of the party beneficially entitled, whoever he might be. The money was returned early in 1863, when Confederate money was almost the only currency of the country, and was generally considered, in the Confederate States, to be ultimately good. Had repayment therein been refused to be accepted by the court, Mayo might, and probably would, have so used it as to avoid any loss from its future depreciation in value and its ultimate destruction. It might have been used at its par value, in the payment of other debts, or in the purchase of real estate or other property. Instead of affording him an opportunity of so using it, no objection was made by any person to such repayment until several years after the end of the war, and after such currency had become of no value. No doubt the parties beneficially entitled to the money were aware of its repayment in Confederate currency, at or shortly after the time of such repayment. Under all these circumstances, can the purchaser be now required to pay over again the amount of the purchase money and interest? I think not.
The following cases are cited and relied on by the appellants in their petition for an appeal in this case, viz: Bird's committee v. Bird, 21 Gratt. 712; Beery, & c. v. Irick, & c., 22 Id. 614; Campbell's ex'ors v. Campbell, Id., 649; Crickard's ex'or v. Crickard's legatees, 25 Id. 410; and Tosh, & c. v. Robertson, & c., 27 Id. 270. But none of these cases need be stated here in detail, as all of them differ materially from this case, in which the subject of controversy was under the special and peculiar direction and control of the court, and none of the parties are personally responsible in the absence of evidence of fraud on their part, of which evidence there is none in this case. The case of Dickinson's adm'r v. Helms & als., 29 Gratt. 462, in which the unanimous opinion of this court was delivered by Judge Christian, strongly sustains this case.
Upon the whole, the court is of opinion that there is no error in the decree appealed from, and that the same ought to be affirmed.
DECREE AFFIRMED.