Lynchburg National Bank v. Scott Bros. and Others. Virginia Court of Appeals: At Wytheville. (July 11, 1895)
The Virginia Law Register
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... ntent at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact firstname.lastname@example.org. LYNCHBURG NAT. BANK V. SCOTT BROS. LYNCHBURG NAT. BANK V. SCOTT BROS. in respect to the wife's legal separate estate under chapter 103 of the Code, there may be a personal judgment or decree against her, and the same may be enforced against her, and not only against " any separate estate she has" [at the time the contract was made or liability incurred], but also against " any she may subsequently acquire, in the same manner as if she were unmarried." Sec. 2289. It has been a rule that a contract or engagement of a married woman, in order to make her separate estate, whether statutory or equitable, liable under it, must be made ini respect to that estate or on the faith and credit thereof. She must have intended to make it liable, and the difficulty with the courts has been to determine whether such intention .existed or not, and upon this question there has been no little conflict of decision. The difficulty is now, for the most part, removed in Virginia. If the wife has any statutory separate estate whatever, and makes a contract on her own account (not as agent for her husband), though she is silent as to the intention to charge the estate, she is conclusively presumed to have made the contract on the credit of that estate, and, if she has any equitable separate estate at the time, she is presumed to have intended to charge such equitable estate also, to the extent of her powers over it, " unless the contrary intention is expressed in the contract." Sec. 2295. It must not be overlooked that the term "separate estate" used in section 2289 and, indeed, in all the sections preceding section 2294 of the same chapter, does not embrace equitable separate estates. These latter estates may be created now as heretofore and are not affected by any provisions of Clianter 103 of the Code, except by sec. 2296 and by the rule of construction already adverted to, where at the time the contract is made there is some existing statutory separate estate and also an equitable separate estate which the wife has the power to charge. Compare sections 2294, 2295. Absent: Buchanan, J.t * Reported by M. P. Burks, State Reporter. t Judge Buchanan was counsel in the court below. 357 357 1895.] 1895.] 358 VIRGINIA LAW REGISTER. [Sept., plaintiff in error was the plaintiff and the defendants in error and the Bank of Abingdon were the defendants. Reversed. The opinion states the case. Honaker & Hutton and White & Penn, for the plaintiff in error. Daniel Trigg, for the defendant in error. HARRISON, J., delivered the opinion of the court. This was an action at law instituted in.the Circuit Court of Washington county, in December, 1893, by the Lynchburg National Bank against Scott Brothers, upon a negotiable note for $1,000.00, bearing date June 3, 1893, executed by Scott Bros., and payable four months after date to S. L. Scott, at the Bank of Abingdon, Va., endorsed by S. L. Scott and the Bank of Abingdon, and discounted by the Lynch-1895.] LYNCHBURG SAT. BANK V. SCOTT BROS. 365 without his consent, or with his consent for an innocent purpose, and fraudulently writes a negotiable instrument above it-though the latter is rather an instance of forgery than of non-delivery. In neither of these cases has the maker consented to be bound upon any contract whatsoever, to any person, for any purpose. There is in law, therefore, no contract which can be transferred, But negligence on the part of the maker, proximately and legally producing the result, may estop him from making the defence. What amounts to such negligence will be found discussed in the cases cited below. Cases such as these, of fraud in obtaining possession of the instrument, must be distinguished from those where the fraud is in the consideration only, where the defendant consents to be bound, and actually makes delivery, though induced indeed by a fraudulent representation. The latter case is that of a mere equity, and cannot be set up against a bona fide holder for value. Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Keltogg v. Steiner, 29 Wis. 626; Caulkins v. Whistler, 29 Iowa, 495 (4 Am. Rep. 236); Baxendale v. Bennett, L. R. 3 Q. B. Div. 525; Cline v. Guthrie, 42 Ind. 227 (13 Am. Rep. 357); note to Bedell v. Herring (Cal.) 11 Am. St. Rep. at p. 313, where the authorities are collected, and the few cases contra criticised as of doubtful correctness; Willard v. Nelson (Neb.), 37 Am. St. Rep. 455, and note p. 458-459; Howe v. Ouvd & Carrington, 28 Gratt. 1; Branch v. Commissioners, 80 Va. 427; Chapman v. Rose, 56 N. Y. 137 (15 Am. Rep. 401); Bigelow on Bills, Notes and Ch. (Students' Series) 174-178. It would seem, however, on principle, that where the instrument has once been delivered and has thereby become a subsisting obligation, if the maker should afterwards become repossessed of it by purchase or otherwise before maturity, and it should then be stolen from him, he would be bound to a bonae fide holder for value who purchased before maturity. If so, the case of Branch v. Commissioners, 80 Va. 427, can hardly be sustained on the ground upon which the opinion is based.