
    *Shugart’s Adm’r v. Thompson’s Adm’r.
    July, 1839,
    Lewisburg.
    (Absent Brooke and Cabell, J.)
    Settled Accounts — Bill to Impeach — Practice in Chancery. — A bill alleges matters as grounds for impeaching or setting aside a settled account, and all of those matters are denied by the answer ; but an order of account being made, proofs are adduced, which, though they do not sustain the specific obj ections taken in the bill, ascertain that the settlement may be justly surcharged in other respects. Held, although, according to the strictest and most formal practice, the plaintiff may be required to amend his bill and urge therein the objections to the settlement shewn by the evidence, yet it is competent to the court to dispense with this proceeding, and permit the plaintiff to proceed in respect to the objections shewn by the evidence, in like manner as if they had been noticed by the bill.
    Same — Same—Same.*—In such case, if the defendant object that he is surprised by the new objections to the accoun t, the court may and ought to give him time to combat them: and if he urge the privilege he would have by answer to an’amended bill, to explain and defend the account in these respects, that privilege may and ought tó be secured to him, by allowing him to file his affidavit containing such explanation and defence, and by giving to such affidavit the like credit and effect, as his answer con taming- the nice matter would "be entitled to. Per Stanakd, J.
    Same — Same—Heasure of Relief. — -On a bill impeaching a settled account, the title <>£ the complainant to relief depends on his success in shewing errors against him in the settlement, and when the court directs an account to be taken, the commissioner, in executing the order of account, should confine himself to a statement of those errors, the sum of which is the proper measure of relief.
    Vendor and Vendee — Compromise—Case at Bar —Articles of agreement are. several times made between the same parties, each for the sale of a separate parcel of the same tract of land. The articles, on most occasions, import that a good and sufficient title Is to be made by a specified time, and that the vendee is to pay when such title free of all Incumbrance is made. In some of the articles it is slated, that the vendee Is to pay in one month after such title is made ; and on one occasion the articles, after mentioning that the money Is to be paid so soon as such title is made, and after specifying the time when the title is to be made, proceed to state that if the vendee pay *socner, he is to have interest for the amount paid, and peaceable possession of the land until the obligation is complied with. By virtne of these stipulations and agreements, the vendee (although in possession and receiving the profits) claims interest on all sums paid by him beiore a title is made him free of incumbrance. This claim is afterwards compromised. The commissioner, and the court below, disregard the compromise as well as the articles of sale, and allow the vendee interest on his payments, only until he obtains possession. Home the compromise ought not to be disturbed, unless on specific allegation and proof of fraud, imposition-or mistake.
    On the 5th of February 1815, Evan S. Thompson executed to Zachariah Shugart his bond for ^218. 6. 7}~j. payable on the 1st of March following.
    This bond remaining unpaid on the 11th of February 1816, a sale was made on that day by Thompson to Shugart, of part of the tract of land on which Thompson lived. In the articles of agreement, the number of acres is not stated, but "the boundaries are prescribed, and it is stated that, for the land sold, “the said Shugart is to pay Evan S. Thompson 20 dollars per acre, whenever a good and sufficient title is made, clear of all incumbrance, or sooner if said Shu'gart thinks proper, in the following manner, to wit: one bay horse, 100 dollars, the price agreed on by E. Thompson and %. Shugart (the said Shugart is to keep said horse till first of October next at his expense, and no longer, if not taken away sooner) and bonds and notes for the balance of the land. The land to be run and surveyed, and a good and sufficient title to be made to said Zachariah Shugart, his heirs or assigns, at.or before the 10th day of October next. The said Shugart is to have one third of the ground as soon as it is pulled this fall, and if Callahans seeds it, said Shugart is to have one third of the small grain.”
    On each of the following days, to wit, the 27th of May 1817, the 25th of June 1817, the-day of-1817, the 28th of July 1817, and the first of '’‘'December' 1817, other articles of agreement were made between Thompson and Shugart, witnessing the sale on each of those days, by Thompson to Shugart, of one or more parcels of the tract of land on which Shugart lived.
    In the articles of the 27th of May 1817, it is stated that the two parcels therein mentioned ^are sold “for the sum of 7. dollars per acre, to be paid by said Shugart as fol-loweth, to wit: to pay William Eove about 28 dollars, and the balance in bonds or notes on other persons, with said Shugart’s in-dorsement, as soon as a good and sufficient right and title is made to said Shugart, clear of all incumbrance, to said land; the title to be made at June court next. If said Shugart pay any sooner, he is to have interest for the amount paid, and peaceable possession of the above mentioned land until the above obligation is complied with.”
    In the articles of the 25th of June 1817, it is stated that, for the parcel thereby sold, Shugart is to pay Thompson “30 dollars in notes on other people, with his indorsement, as soon as he the said Thompson makes said Shugart a good and sufficient right or title, clear of all incumbrances; the title to be made at the July court next.’,’
    In the articles of the - day of-1817, it is stated that the parcel therein mentioned is sold for ten dollars per acre. “Said Shugart is to pay the above sum in one month after said Thompson makes him a good and sufficient deed, clear of all in-cumbrance ; the deed to be made at the first court held in Abingdon.”
    In the articles of the 28th of July 1817, it is stated that, for the land thereby sold, payment is to be made in the following manner: “200 dollars to Charles Tate; the balance in good bonds and notes on other people, in one month after said Evan S. Thompson makes said Shugart a good and sufficient title, clear of all incum-brance ^whatsoever; title to be made at August court next.”
    And in the articles of the 1st of December 1817, it is stated that, for the two parcels thereby sold, payment is to be made by Shugart, in one month after said Evan S. Thompson makes him a good and sufficient right and title, clear of all incumbrance whatsoever, in notes on other people, with his indorsement.”
    Surveys were made, on the 4th of April 1818, of the parcels of land embraced in these various articles of agreement, and the whole quantity according to those surveys was 193 acres. A deed was thereupon made conveying the same to Shugart; the consideration expressed in which conveyance is the sum of 2740 dollars. The deed bears date the 18th of April 1818, and on its face purports to be the deed, of that date, of both Thompson and wife. But the privy examination of mrs. Thompson was not taken till the 17th of August 1819, and the certificate thereof was not returned to the clerk’s office till the 20th of October 1819.
    In April 1822, the parties applied to Benjamin Bstill to assist them in adjusting the principles upon which a settlement contemplated between them was to be made. In the suit in equity of Thompson herein after mentioned, the deposition of Bstill was taken for Shugart on the 24th of March 1824. Estill deposed that the parties differed principally about the interest which Shugart charged upon the payments made for the land. Thompson contended, that as ^Shugart had the land in possession and was receiving the profits, he Thompson ought not to pay7 interest; that if he paid interest, Shugart ought to pay rent. _ This, Estill considered to be natural justice. But Shugart contended, that by various contracts he was to have interest on all payments, till he got his title, clear of all incumbrance; and that being the contract, he claimed it as a right. The mother of Thompson, Shugart said, had a life estate in all *the lands sold, this part of the land having been assigned her for her dower in a larger tract. He antici--pated difficulty and expense in extinguishing her title, and was moreover liable to her for rents and profits. He therefore conceived it fair and reasonable that he should have interest on his money. Estill proposed a compromise, to which the parties consented; Shugart with apparent reluctance. On the same day, he prepared the writing containing the compromise; which was executed, and attested by him. This writing bears date the 20th of April 1822. It is under the hands and seals of Shugart and Thompson, and witnesses “that the said Thompson and Shugart have agreed to settle their accounts relating to the purchase and payment of Thompson’s land by Shugart, on the following terms: said Thompson will immediately procure to be conveyed to Shugart his mother’s right of dower in those lands, and will allow said Shugart interest on all payments made therefor before the lands were conveyed by Thompson and wife to Shugart, or within one month after the conveyance was made, excepting such sums as Shugart was bound by his various articles of agreement to pay immediately, or before a title was made to him; such as the 28 dollars to William Eove, the 100 dollar horse, the 200 dollars to colo. Tate, &c. on all which class of payments no interest is to be allowed to Shugart. Said Shugart is also to be allowed interest on all bonds, notes &c. held by him on Thompson until one month after the said conveyance was made by’ Thompson and wife. » Said settlement to be made on these principles, within two weeks from this date.’’
    On the 3d of May 1822, the parties met at the house of William Eove in order to have a settlement, and an account was then drawn up by Love, by direction of Shugart: but Thompson claiming credit for more land than was allowed for by Shugart, and objecting to some items claimed by Shugart, the disagreement between the parties prevented any settlement being made.
    ^Shortly afterwards, Shugart brought an action at law in the county court of Washington, against Thompson, upon his bond of the 5th of February 1815, and at November term 1822 obtained judgment for the amount thereof. Execution was issued immediately, and levied on Thompson’s slaves.
    On the 14th of December 1822, Thompson’s mother relinquished her right to the lands sold Shugart, and her deed was admitted to record.
    Upon this relinquishment being made, the sale of the slaves was suspended.
    On the 2Sth of January 1823, the sheriff who had levied the execution, Charles Tate, met Thompson and Shugart, at the request of Thompson and at his house, for the purpose of assisting in making a settlement between them. Thompson produced no vouchers, but a settlement was made by the account and vouchers of Shugart. At this settlement, credits were given to Thompson for the land bought of him by Shugart, amounting to 2563 dollars 934 cents; credits were given to Shugart for payments, interest and setoffs (exclusive of the bond on which judgment had been obtained) to the amount of 2441 dollars 22 cents; and for the difference, amounting to 121 dollars 8734 cents, Shugart gave Thompson a due bill, or rather a memorandum, stating that he would account for that amount, subject to a deduction for the costs of a chancery suit which Shugart had brought against Thompson and his mother. At the same time, Shugart wrote an order to his attorney to 'dismiss that suit, and Thompson signed a receipt for 2563 dollars 934 cents, in full for the. land conveyed to Shugart.
    Thompson desiring a new settlement, delivered up that due bill, and asked that the receipt which he had signed should be returned to him. Shugart declined this, but deducted from the amount of the due bill 34 dollars for the costs of the chancery-suit, and 22 dollars *75 cents upon another account; and the balance of 65 dollars 1234 cents he credited upon the forthcoming bond which Thompson had been compelled to give.
    In this state of the accounts, Thompson, on the 9th of May 1823, presented a bill to the judge of the superior court of chancery at Wythe courthouse, alleging, that at the time of the settlement of the 25th of January 1823, he was at the mercy of Shugart and compelled to submit to any terms he might dictate, and had for that reason submitted to the settlement which he now impeached. The bill sets forth credits improperly omitted and charges improperly made, and claims that Shugart is indebted to the complainant more than 1100 dollars.
    An injunction being prayed for by the bill, to restrain Shugart from proceeding farther on the forthcoming bond, the chancellor awarded the same.
    On the 27th of May 1823, Shugart filed his answer, denying all the matters alleged in the bill as grounds for impeaching or setting aside the settlement of the 25th of January 1823, and shewing some of those allegations to be unfounded.
    Two days after the answer was filed, a motion was made to dissolve the injunction ; but the court overruled the motion, and ordered that an account be taken between the parties before commissioner Johnston.
    The commissioner, upon the proofs before him, reported various sums as having been either charged twice by the defendant, or charged for greater amount than was proper; but the surcharges established by these proofs were not those alleged in the bill. The commissioner allowed the defendant interest on his payments until he obtained possession of the lands, but no longer. And the result of his report was, that the bond upon which judgment had been obtained at law was paid, and there was a balance due Thompson, as of the ISth of October 1823, of 534 dollars 2 cents.
    *Onthe motion of the defendant, supported by his affidavit, the court, on the 23d of October 1823, recommitted the report to the commissioner. There being, in the opinion of the commissioner, farther proof establishing an additional overcharge, the result shewn by this second report was, that the bond was paid off, and a balance due Thompson, as of the 15th of October 1823, of 716 dollars 22Y¿, cents.
    To this report the defendant filed ten exceptions. The 8th was in these words: “Because the commissioner did not conform, in stating tlie accounts between the parties, to the agreement entered into on the 20th day of April 1822, which is not pretended to be impeached, either on account of fraud, incapacity, or any other ground, either alleged or supported.” The 9th exception was because the commissioner did not conform his statement of the accounts between the parties to the settlement made between them on the 25th of January 1823.
    The cause coming on to be heard upon the bill, answer, exhibits, examinations of witnesses, and the report of commissioner Johnston with the exceptions thereto, the court, on consideration thereof, decreed that the first and fourth exceptions be sustained, and that all the others be overruled, except the fifth, which was sustained in part. And the report was thereupon recommitted to commissioner Matthews, to be reformed accordingly.
    After the court had made this decree, it is a little remarkable that at the next term, on the motion of the defendant, it was ordered that the report of commissioner Johnston be recommitted to commissioner Matthews, who was directed to consider the same with the exceptions filed thereto, and report thereupon.
    Commissioner Matthews fixed on the first of January 1818, as the date from which interest was to be allowed *the plaintiff on the whole amount of purchase money. On the sums paid by the defendant he allowed interest from the time of payment, with the exception of the 100 dollars for a horse, 28 dollars to William Love, 200 dollars to Charles Tate, and one other payment particularly provided for in the articles. On these sums the commissioner did not allow interest until after the first of January 1818. On some of the other matters which were the subject of exception, the views of commissioner Matthews were different from those of commissioner Johnston. His report resulted in shewing a balance due Shugart’s estate on the 1st of January 1824, of 372 dollars. And exceptions thereto were filed by the plaintiff.
    Before a decision upon these exceptions, both parties died, and the cause was revived in the name of the plaintiff’s administrator against the defendant’s administrator.
    At April term 1838 of the circuit court of Wythe, the administrator of Shugart presented a petition for a rehearing. Besides insisting that there was error in overruling the 5th exception to the report of commissioner Johnston (an exception involving no principle whatever, but depending entirely upon the evidence), the petitioner urged that there was error in overruling the 8th exception.
    On the 23d.of April 1838, the court decreed that the rehearing prayed for be refused, that the exceptions of the complainant to the report of commissioner Matthews be sustained, that the same be recommitted to him, and that he make out his report in conformity with the opinion of the court before given.
    On the petition of Shugart’s administrator, an appeal was allowed.
    M’Comas argued the cause in this court for the appellant. There was no counsel for the appellee.
    
      
      Settled Accounts — Bill to Impeach — Practice in Chancery. — In Chapman v. Shepherd, 24 Gratt. 389, it is said : "The rule that administration accounts settled ex parte, returned and recorded in the proper court, are to be taken as prima facie correct: liable only to be surcharged and falsified by proper averments, has received the sanction of this court in numerous cases. The inconvenience of the rule has been often felt, and in some few instances exceptions and modifications have been allowed when necessary to attain the justice of the case. The case of Shugart’s Adm’r v. Thompson, 10 Leigh 443, is a familiar illustration. There the answer denied all the allegations of the bill intended to impeach the ex parte settlements ; it was not therefore proper to-send the cause to account in the absence of evidence to sustain these allegations. Nevertheless an order of account was made, and the parties proceeded with their proofs before the commissioner. The facts there established did not sustain the specific objections urged in the bill to the settled accounts, but they showed other grounds for surcharging the settlement. Judge Stanard said, the court might have required the plaintiff to amend his bill by inserting the further matters of surcharge and falsification, so as to afford defendants the benefit of an explanation and defence by way of answer ; or dispensing with that circuitous and formal proceeding, the court might have permitted the commissioner to proceed with the investigation in like manner as if the matters had been noticed in the bill. If the defendant should object he was taken by surprise, the court should give him time to combat the new charges. If he urged his privilege of defending himself by answer, that privilege might be secured to him by allowing him to file his affidavit, and giving it'all the effect of an answer.”
      And in Corbin v. Mills, 19 Gratt. 465, it is said : “When an account has been ordered upon a proper bill, an additional obj ection to the settled accounts may be discovered in the progress of the case. It would be attended with inconvenience and delay to require the plaintiff in any such case to amend his bill for the purpose of alleging the additional objections. It will save time and expense, and generally be attended with no inconvenience to allow the plaintiff to raise the objection before the commissioner with a proper specification in writing, and to allow the defendant to meet the objection by an affidavit, giving to the affidavit the same weight which would have been given to an answer if the matter had been alleged in the bill. This is the full extent to which the settled rule of practice can be safely and conveniently relaxed, and this is the extent to which, as I understand it, Judge Stanard meant to go in Shugart’s Adm’r v. Thompson's Adm’r, 10 Leigh 434.”
      See principal case also cited in Rossett v. Fisher, 11 Gratt. 503 ; Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817 ; McGuire v. Wright, 18 W. Va. 511: Varner v. Core, 20 W. Va. 479 ; Seabright v. Seabright, 28 W. Va. 434, 435, 436, 437.
      Same — Prima Facie Correct — Bill to Surcharge. — The principle is well settled that the «uparía settlement of a fiduciary is only jii'inm facie correct, and parties interested may file a bill to surcharge and falsify the accounts so settled. Leach v. Buckner, 19 W. Va. 45, citing the principal case. See the principal case also cited in Boggs v. Johnson, 26 W. Va. 827.
      JPor further authority on this subiect, see foot-note, to Peale v. Hickle, 9 Gratt. 437 ; foot-note to Corbin v. Mills, 19 Gratt. 438,
    
    
      
      Same — Bill to Impeach -Measure of Relief. -The principal case was cited in Windon v. Stewart, 43 W. Va. 721, 28 S. E. Rep. 780.
    
   *STANARD, J.

After the answer had come in, denying all the facts on which the bill sought to impeach or set aside the settlement of January 1823, and indeed shewing some of them to be unfounded, it was not regular to send the cause to account, as was done in this case, on a motion to dissolve the injunction, when there was at that time no evidence in the case to sustain the allegations of the bill, or to impeach the settlement in the particulars specified in the bill, or in respect to matters not so specified: nor could the court at that time have properly dismissed the bill, as the cause was not before the court on a hearing. But the order of account having been made, the parties proceeded with their proofs before the commissioner ; and the facts developed there, if they do not sustain the specific objections to the settlement taken in the bill, and in those respects establish a surcharge thereof, ascertain to my satisfaction that the settlement may be justly surcharged in other respects. This being so, one of two courses might have been taken by the court below. If that court had pursued the strictest and most technical rule of practice, it might have declined to proceed to grant the plaintiff relief in respect to the objections to the settlement shewn by the evidence though not noticed by the bill, unless the plaintiff amended his bill in this respect, and urged those objections as further matter of surcharge and falsification of the account, so as to afford the defendant the benefit of the explanation and defence he might make by his answer to such amended bill. Or, dispensing with this circuitous and formal proceeding, the court might permit the commissioner to proceed in respect of the matters embraced by the objections so developed, in like manner as if they had been noticed by the bill. My opinion is, that it was within the competenci' of the court to take the latter course. Such a practice seems to me recommended by many considerations. It is more compendious and *less expensive, and tends to prevent or shorten those delays in. the administration of justice, which are grievances admitted by all, and by many urged, as a reproach to its ministers! Every object of the more formal proceeding, and every privilege of defence it would afford, may be attained under this more summary practice. If the defendant should- object that he is surprised by the new objections to the account, the court may and ought to give him time to combat them; and if he urges the privilege he would have by' answer to an amended bill, to explain and defend the account in these respects, that privilege may and ought to be secured to him, by allowing time to file his affidavit containing such explanation and defence, and giving to such affidavit the like credit and effect as his answer containing the like matter would bé entitled to. Thinking that several errors are shewn ^in the settlement of January 1823, by the proofs in the case and the investigations of the commissioner, my opinion is that the proposition of the appellant, that the' bill ought to be dismissed because those errors had not been specifically noticed therein, cannot be sustained.

Proceeding to the other questions brought before this court by the appeal, the first and most important is that presented by the 8th exception of the appellant to the report of commissioner Johnston. My opinion is that that exception ought to have been sustained. By it the appellant insists, that the charge of interest on his payments should be governed by the agreement of the parties, made the 20th of April 1822; and that the court below, in overruling that exception, in effect not only cancelled that agreement, but also the former agreements made by the parties, under which, if carried into effect, the appellant would have been entitled to a large allowance of interest. Waiving the investigation of the question how far the stipulations in some ot the contracts between the parties, that the purchase money ^should be payable when a complete and unincumbered title should be made, would postpone the accrual of interest on the purchase money until such title should be made, even though the purchaser had possession before that time; and without scrutinizing the particular agreements made by the parties in regard to the interest on some of the payments made intermediately between the contracts of purchase and the conveyance of a complete title, I have no doubt that the claims of the appellant founded on such stipulations and agreements might be compromised by the parties, and that a compromise of them ought not to be disturbed unless on specific allegation and proof of fraud, imposition or mistake. In this case, the agreement in question was a compromise of the claims aforesaid, and so far from being impeached by the bill, there is no allusion to it in the bill, and the only evidence in respect to it (that of B. Estill) instead of fastening on it the stain of fraud or imposition, tends to free it from-that imputation.

Besides, if this compromise were disregarded, and the rights of the parties depended on the effect of the stipulations and previous agreements aforesaid, it is at least problematical whether more interest would not be allowed to the appellant, or withheld from the appellee, than is so under the compromise. The result is, that in the settlement of the accounts, that compromise ought to regulate the charge or allowance of interest on the payments that were to bear interest, and on the purchase money. I am further of opinion that the settlement of January 1823 should be the basis of a resettlement, rejecting from that account such items of charges to the appellee as are ascertained to be incorrect or improper, and giving him the proper credits that have been omitted.

[The judge proceeded to express an opinion on such of the details of the case as had been brought under the notice of the court below, and pointed out the credits somitted in the settled account which should be given to the appellee, and the charges against him therein which were improperly made; and concluded as follows:]

One of the results of the view I have taken of the case is, that the reports of both the commissioners are entirely wrong in the frame they have given the accounts. The balance appearing due on the settlement of January 1823 having been paid by the appellant, and his due bill taken in, the extent of the errors of that settlement was ascertainable by adding the errors of the charges to the appellee to the amount of the omissions of credit, and the sum was the measure of relief to which he was entitled. If that sum exceeded the iñjoined judgment, the court should have perpetuated the injunction, and decreed in favour of the ap-pellee for the excess; if it was less than the judgment, it should have been set off against the judgment, the injunction dissolved for the excess of the judgment and perpetuated for the amount set off, and in both cases the costs ought to have been decreed to the appellee, and in the latter case the court should have certified against damages on the sum for which the injunction was dissolved.

The decree of the court of appeals was in conformity with the foregoing opinion. This decree (in which all the judges concurred) declared, that the title of the ap-pellee to the relief he sought in the court below, depended on his success in shewing errors in the settlement of January 1823, either in the charges made against him or the credits allowed him in that settlement; and that, as a consequence of this, when the commissioner proceeded to execute the order of account made by the court below, he should have confined himself to a statement of those errors, Ihe sum of which was the proper measure of relief to which the *appellee was entitled. It further declared, that in executing the order of account, the commissioner should have been governed by the agreement between the parties dated the 20th of April 1822, in relation to the allowance of interest on the payments of the appellant, before the 20th of November 1819, on account of his several purchases of land, and the allowance of interest to the appellee on the purchase money of the lands sold the appellant; interest on that purchase money not accruing, under that agreement, before the said 20th of November 1819.

On the proofs in the record, the settlement of January 1823 was declared to be surchargeable, for omitting to credit the appellee with particular sums, and improperly' charging him with others; all of which were specified in the decree. It was then declared, that the reports of both the commissioners are radically wrong in the manner of stating the accounts, as well as erroneous in many respects; and that they should be entirely set aside, and a new account taken, which should not go at large into the transactions, between the parties, but should simply state the erroneous charges to the appellee, and the credits to which he was entitled but which were omitted, in the settled account of January 1823, the aggregate of which is the proper measure of relief to which he is entitled; and if that aggregate should exceed the amount of the injoined judgment, the injunction should be perpetuated anda decree rendered in favour of the appellee for the excess, and if not equal to the judgment, it should be set off against it, and the injunction should be dissolved for the excess of the judgment; and in either case the costs in the court below should be decreed to the appellee, and in the latter the court should certify against damages on the amount for which the injunction may be dissolved. The court therefore adjudged and decreed, that so much of the interlocutory orders of the circuit superior court of "'law and chancery for the county of Wythe, made in this cause, as may conflict with the foregoing opinions be reversed and annulled, and that the appellant . recover of the appellee the costs by him expended in the prosecution of his appeal in this court, to be levied &c. And the cause was remanded to the said circuit superior court of law and chancery, for further proceedings according to the principles of this decree.  