Barbour v. Duncanson's Adm'r

Citations

• 77 Va. 76
• 1883 Va. LEXIS 38

Syllabus

<p>1. Evidence.&emdash;Declarations of .assignor after assignment are inadmissible in evidence against his assignee.</p> <p>2. Payment.&emdash;B. bought land.of D. in November, 1857; assumed lien of 11,644.20, and gave three bonds for $1,118.60 each, payable in one, two and three years. D. was poor, and the land encumbered. D. assigned second bond to K., in payment of debt, and third to M., as collateral for land, and retained the first. It is conceded that the second was paid to K., and the evidence tends strongly to the conclusion that the first was paid in money to D. The contest was as to the payment of the third. Of its assignment, B. had no notice till December, i860, when he wrote M. that it could not be paid until the land was cleared of liens, of which he had paid many. Nothing occurred until gth May, 1866, when M. notified B. that he had assigned third to H., with receipt given B. by M., when B. endorsed note of $400 for M., which receipt recited that M. held said bond, that B. claimed it had been satisfied by paying off liens, and that M. agreed to make up to B., if he paid said note, whatever the amount still due on the bond failed to pay of the note, and spoke of M.’s destitution. Suit was brought on the third bond in May, 1868. During the war B.’s papers were lost. He plead payment and set-offs; suit dragged until 1877, when it was referred to an auditor to pass on the payments and set-offs, and determine what was due. He reported credits to B. for liens discharged in excess of third bond, but doubted if they should not be applied to first. Before this reference, D. and M. had both died, and B. became incapable of testifying. Court below gave judgment for the amount of the third bond against B. On error;</p> <p>Held:</p> <p>The facts established by the evidence warrant the conclusion that the third bond was fully satisfied by B. by the payment of liens on the land, and that such would have been the testimony of D., had he lived until the trial.</p>