Record No. 2685

Record No. 2685 In the

Supreme Court of Appeals of Virginia at Richmond

FRANK P. WHITEHURST, ET AL., v.

MARIE CORE DUFFY

FllO'.\r ('nl'HT OF r,., \ \ .' .. X:' ('lT,\:"\f' 1,BY OJ,' C'ITY OF XORFOLK

RULl~ 14. if3. K un-IO EH. OF Coprns TO BE Fn.Eo AN n D ELTVF,n En TO OPPosrno CotiNs;.;r.. rr wcnt y copies of each brief shall be filed with the clerk of the court, and nt lcnst two <·opics mailed or deliver r.d to opposin~ counsel 011 or l10fore the clay on wliich the hrief is filed. 1fli. 8 1:m AXO 'r rPr.. BriC'fs s1rn11 be 111'inic<l in type not less i11 s i7e tlHm small pica, and sha ll k · n ine inches in lt-ngtb and six i11chcs in \\·irlih, so as to con l'o r m 111 dimc11sinns to thP p r inted reenrc1s. The r cc-onl nnmher of the case f"h[11l he p r in! cd on n11 briefs.

'rhe fon•g i11 !.!.' is p1·i11focl i11 srnnl1 pi<'.:1 i.:,·pc fo r foe info rrnn.tion of counsel.

1T. B. '\\'.ATTS, Clerk.

Court opens at 9 :30 a. m. ; Adjourns nt 1 :00 p. m.

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INDEX TO PETITION

(Record No. 2685)

Pa.ge Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2e .Assignments ·of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6• Argtime:rit and Citation of Authorities. . . . . . . . . . . . . . . . 7,r;. Conclusion . . . ..................................... 17•

Table of Cases

Arents v. Commonwealth, 18 Gratt. 750 ............... 15e .Atchison, Topeka <t Sarn,,ta Fe R. R. Co. v. Burlingame

Township, 36 Kan. 538, 59 Am. Rep. 578 ............ 11 ~ Auchampaugh v. Schmidt, 27 N. W. 805, 59 Am. Rep. 459 15«Barnes v. Glide, 117 Cal. 1, 48 Pac. 804, 59 Am. St. Rep.

153 . . . ........................................ 12* Bass v. Hunter, 205 Cal. 284. . . . . . . . . . . . . . . . . . . . . . . . . . 15• Bennett v. Thorne, 68 L. R. A. 113, 78 Pac. 936 ........ 10• Caperton v. Gregory, 11 Gratt. 505. . . . . . . . . . . . . . . . . . . 15• Fidelity and Casualty Cmnpany of New York v. Lack-

land, 175 Va. 178 ................................ 16f: First Nat'l Bank v. Drake. 171 N. W. 115 .............. 159

1n Re McHenry (1894), 3 '011. 290 ..................... 13* J.l!lorrison's Admr. v. Miller, 34 Pa. St. 120 ............ 15'll Norwood Trust Co. v. Twenty-Four Federal St. Corpora-

tion (Mass.), 3 N. E. (2d) 826 .................... 144e Palrr,,er v. Palmer, 36 Mich. 487, 24 Am. Rep. 605. . . . . . 8* Parson v. McCracken, 9 Leigh 495. . . . . . . . . . . . . . . . . . . . 15° R. R. Co. v. Byers, 32 Pa. St. 22. . . . . . . . . . . . . . . . . . . . . . 15e: ReizP-nstein v. Marquardt, 75 Iowa 294, 9 Am. St. Rep.

477 .................. · ......................... 15,s, Sanford v. Lancaster, 81 Me. 434, 17 Atl. 402 .......... 15 ... Slin.qerla1nd v. Norton (Minn.), 61 N. W. 458 .......... 11 e Spokane Caitnty v. Prescott (Wash.), 53 Pac. 661, 67 Am.

St. Rep. 733 ....•.............................. 10-¥: Ware v. Hervey, 57 Me. 391. ......................... 141.1s

II INDEX TO PETITION

Page Winchester .& Lexington Tiirnpike Co. v. Wickliffe, 100

Ky. 531, 66 Am. St. Rep. 356 ...................... 14*

Code Sections and Miscellaneons Citations

Code of Virginia, Sec.tion 5810. . . . . . . . . . . . . . . . . . . . . . . . 7f, Code of Virginia, Section 577 4 ........ ,. . . . . . . . . . . . . . . . 16• 17 R. C. L., -Sec. 121, p. 756. . . . . . . . . . . . . . . . . . . . . . . . . . 7•

IN THE

Supreme Court of Appeals of Virginia AT RICHMOND.

Record No. 2685

FRANK P. WIDTEHURST AND GRAYSON M. "WHITE· HURST, EXECUTORS OF THE EST ... t\.TE OF W. L.

WHITEHURST, DECEASED, Plaintiffs in Error,

versus

MARIE CORE DUFFY, Defendant in Error.

PETITION FOR A WRIT OF ERROR.

To the Honorable Justices. of the Supreme Court of Appeals of TT frgini.a:

Petitioners respectfully represent that they are aggrieved by a final judgment entered in the Court of Law and Chancery of the City of Norfolk, Virginia, on the 29th day of July, 1942, by which they are required to pay the sum of $2.000.00, with interest thereon from February 15, 1935, at six per centum per annum, and the costs of this proceeding, to Ma.rie Core Duffy out of the estate of their testator, W.

L. Whitehurst, deceased. For convenience the parties 2e will be ref erred to here in accordance with '"'their posi

tion before the court below, and the incidents in this action at law will be set forth under the statement of facts.

STATEMENT OF FACTS.

James C. Core died prior to the year 1922, and by the terms of his will, a copy of which is plaintiff's Exhibit One,

2 Supreme Court of Appeals of· Virginia

a legacy of $2,000.00 was bequeathed to his great niece, Marie Core Duffy. In 1922 she was two years of age (Tr. Rec., p. 53). W. W. Old, Jr., and H. H. Pegues qualified as Administrators c. t. a. under the will of James C. Core, and under date of November 24, 192,2, they loaned one C. R.· White $2,000.00 from the funds of said estate, taking· his real estate trust deed note of that date as evidence of the debt, the said note maturing August 15, 19.23, and being secured on certain real property of whi~h C. R. White held title of record, as a third. lien on ·a part tliereof and .a second lien on the remainder thert3of (Tr. Rec., p. 23). C. R. White was a sonin-law of W. L. Whitehurst, and W.W. Old, ,Jr., testifies that this loan was made to him · at the instance of Mr. Whitehurst. Accor.ding to the testimony of said Old, offered ~s a witness for the plaintiff, W. L. Whitehurst signed an instrument oi guaranty of like date with the note made by C. R. White and delivered said instrument to him on the same day or the following day after White signed the note (Tr. Rec., p. 7). As the language contained in the supposed instrument of g·uaranty is of primary importance, the same is here quoted for the convenience .of the Court. ·

3i' *''WHEREAS, the· estate of James C. Core, deceased, has loaned to C.R. White, the sum of two thousand dol

lars ($2.,0oo~oo) represented by note dated November 24th, 1.922, payable on August 15, 19·23, with interest;

"Now Therefore, for value received I do hereby guarantee to the Estate of James C. Core, deceased, the payment of sn.id note with interest thereon, or so much thereof as may be due after the sale of the property upon which same is a lien, it being understood and a.greed that before. my liability is determined the respective trustees shall have advertised and sold the property under and by virtue of the terms of the said deed of trust or of prior deeds of trust.

'' Given under my hand and seal this 24t4 day of N ovem-ber 1922.'' ·

(Signed) W. L. WHITEHURST, (,Seal)

The .note made by C. R. ·white. whfoh was the primary obligation, matured August 15, 1923. It wa.s not paid, nor w~s there any extension or renewal for a fixed term, but, accord: ing to the witness Old, the obligation was allowed to remain past due, White paying t11e interest as it became due. Old says that this was at the request of W. L. ,,Thitehurst, the guaranfor, althougl1 he further says that White never knew that his father-in-law, Whitehurst, had guaranteed the note

Frank P. w·hitehurst, et al., v. Marie Core Duffy 3

or executed the instrument upon which this action is brought. The .Administrators of ,J nml'S C. Core could have brought action on the note on and after .August 15, 1923, or, as holders of the note, they could have foreelosed the deed of trust and brought action on the instrument of g·uaranty at any time after that date, but they did not do so. Under date of N<;>vember 16, 1926, three years and three months after the maturity of the ·white note and while it was past due and in de-

fault, Old and Pegues, as A.dministrators of James C. 4.* Core, filed what purported to be *a final account of their

transactions, reciting· therein that the White note for $2,000.00 had been transferred to Marie Core Duffy in payment of the legacy, althoug·h she was then only six years of age and no guardian had been appointed for her. Actually the note was placed in an envelope marked '' Property of l\tiarie Core Duffy" and left in the safe deposit box of Old and Brockcnbrough (Tr. Rec., p. 25). On .April 5, .1931, nearly eig·ht years after the maturity of the White note, W. L. Whitehurst died testate, naming his sons, Frank P. vVhitehurst and Grayson L. Whitehurst, and W. W. Old, Jr., as Exccntors of his estate. He had never mentioned the existence of the instrument of g·uaranty to either of his sons or to any other person save ·w. 1.;v. Old, so far as the record discloses.. '11hese three parties qualified as Executors of his estate, but Old resi.gned nfter about one ye~r. On or about .. April 15, 1931, Old actin~ for the Core interests obtained a renewal note from C. H. vVhite, the original note being then barred bv the statute of limitations. The renewal note is defendant's Exhibit One, and same was payable one year after date. Old testifief.:t that he placed this with the original note, which was still actually in his possession, a.nd retained the same until 1933. Dr. William C. Duffy qualified in the State of Massachustt.s ns Guardian of Marie Core Duffv on February 11, 1'933. Thereafter Old sent him the original White note and the renewal note (Tr. Ree., p. 48). The renewal note was past clne when delivered to the Guardian, but he did nothing to enforce the, obligation. Two or three years after receiving· the orig-innl note and the renewal note made

by C. R. "\"\7hite the Guardian received the supposed in-5* strument of guaranty *from H. H. Pegues, it having

supposedly been in the possession of Old in the interim (Tr. Rec., p. 50). No claim against the Executors of W. L. vVhitehurst on this instrument of 2'Uarantv was made during· all of this time nor until the institution of this action. The instrument of guaranty was never exhibited to them, and they knew nothing of it except through Old, who, after he had resigned as Executor of W. L. Whitehurst, mentioned

4 Supreme Court of ApJleals of Virginia

the existence of such an instrument (Tr. Rec., p. 62). Marie Core Duffy became twenty-one! years of age on June 25, 1941, and thereafter on the advice of her counsel wrote C. R. White disaffirming the action of W. W. Old, Jr., in taking the renew,al note dated April 15, 1931. The disaffirmance was foi· the purpose of avoicling· the legal principle that the extension of the primary obligation for a, definite time without the consent of the party secondarily liable releases such party. 'l,hereupon this action wa.s instituted by Miss Duffy returnable to the 6th day of Oc.tober, 1941, approximately eighteen years and two months after the maturity of the primary obligation, ten years and sL""r months after the death of the supposed guarantor, and ten years and five months after the qualification of his personal representatives. The. liability of C. R. White on both the original note ( the primary obligation) and the renewal note were barred by the statute of limitations at the time when Miss Duffy became twenty-one years of age, because the statute had begun to run on the original obligation when it was in the hands of the Administrators of James C. Core, that is, at its maturity date on: August 15, 1923. Foreclosure of prior deeds of trust

on the property described in the instrument securing the 6* C. R. ·white- note was ha.d on February *14, 19411 and

August 16, 1941, prior to the institution of this action (Tr. Rec., p. 44). Such foreclosures returned no overage for application to the deed of trust securing the White note ..

ASSIGNMEN'TIS OF ERROR.

Petitioners assert that the 'trial court erred in the following particulars ~

(1.) In failing to hold that the liability of the estate of vV. L. Whitehurst on the supposed instrument of guaranty was barred by the statute of limitations; and

(2.) In failing to hold that the extinguishment of the right to enforce payment of the primary obligation released the guarantor's estate.

These assignments of error will be discussed in order untfor tI1e following division of this petition.

7* * ARGUMENT AND CITAT!ION OF AUTHORITIES~

First Assignment of Error

With respect to the issue raised by the· first assignment of

Frank P. Whitehurst, et al., v. Marie Core Duffy 5-

error, the applicable Virginia statute to be considered is Section 5810 of the Code, and the pa.rt thereof particularly per-tinent is the following: .

'' Provided that the right of action against the estate of any person hereafter dying, or upon any such award or <!ontract, which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding, shall not in any case continue longer than five years from the qualification of his personal representative, or if the right of action shall not have accrued at the time of the dreedent's death, it shall not continue longer than five years af tcr the same shall have so ace rued;''

The question then is when the cause of action on ·the instrument of guaranty accrued. The trial court took the position that the language in said instrument '' it bein~ understood and agreed that before my liability is determmed the respective trustees shall have advertised and sold the property under and by virtue of the terms of the said deed of trust or of prior deeds of trust'' incorporated a condition in the guaranty which postponed the accrual of the cause of action until a. foreclosure had been had in performance or the condition, and over the objection of the defendants gTantecl plaintiff's Instruction No. 1 (Tr. Rec., p. 64), which was equivalent to the clirection of a verdict, refusing defendants' Instructions Nos. 2 ancl 3 (Tr. Rec., pp. 64 and 65).

In so deciding the trial court was applying the general rule concisely stated in 17 R. C. L., Sec. 121, p. 756, and everywhere affrmed, as follows:

8* *' 'v\7bere some condition precedent to the right of ac-tion exists, whether it be a demand and refusal, or some

other act or contingency, the cause of action does not accrue nor the statute begin to run, until that condition is performed.''

This general rule is, however, subject to an exception whieh is as well gro1mded and as fully recognized as the rule itself, which exception the trial court refused to apply. It will be remembered that from the maturity of the original White note ( Aug,ist 15, 1923), until at least November, 1926, and probably longer, the "\Vhite note (the primary obligation) and the supposed instrument of guaranty were both owned by and in the possession of the Administrators of James C. Core, and said Administrators throughout that period were in a position to enforce the liability against both

6 Supreme Court of· Appeals of Virginia

the party primarily liable and the party secondarily liable. The exception is that where the creditor (here the holder of the g·naranty, i e., the _Administrators) can by his own act, in spite of the debtor, make the demand payable, then the cause of action accrues from the moment when the creditor ·can c.ause the performance of the conditions precedent to liabillty, .. and the statute of limitations is at once set in motion.·

The following early and leading cases on this subject have been generally followed by the courts throughout the United States, so far as we are advised, and there is no respectable authority to the contrary:

In Palmer v. Palmer, 36 Mich. 487, 24 Am. Rep. 605 at 609, the instrument was a non-negotiable note made in 1867

9::; and payable in thirty days •after demand. The demand was made in 187 4, six years and seven months after da.te.

The applic.able statute of limitations was six years after the cause of action accrued.· The trial court found that the cause of action did not accrue until the demand was made. 011 appeal the holding was reversed, the court saying-:

'' If the judgment ( of the trial court) is correct, it can only be so because, by the terms of the contract, the holder had a right to pm;tpone the maturity of the debt as long as he chose to do so. For if the debt did not become payable until fixed by demand, and the demand was optional with the creditor, no tender could be made which would bind him, and he could keep the debt alive in spite of the debtor, for an indefinite period. If there was any infirmity in the consideration, or any defect in the binding character of the obligation, he might retain it until all testimony was lost, and defeat the defense. This is the mischief which the statutes of limitation were intended to remedv. If this case is not within them, it is not because it ought not to be c.overed by them.* • •

''If this question depends upon any reasonable principle it is impossible to find any g-round for holding· notes payable on demand as settin~ the sfatnte running· at once which would not make the note in the present case barred in six years after the expiration of thirty days. The payee could have presented it at any time, and it is· not the design of the statute to put it in the power of the creditor to postpone its a.pnlication a.t his own pleasure. * · • *

"We cannot but think this to be sound doctrine; whatever mav have been the ancient prejudice against statutes of limitation they are now regarded as just and entitled to be fairly

Frank P. ·Whitehurst, ct al., v. l\fo.l'ie Core Duffy 7

construed. If a cred,itor has the means at all times of making his cause of actfon verf cct; it would be unjitst and oppressive to hold that he r.oulrl vostvone indcffrtitely the time for enforcing his clairn by failin,q to present it. He is really. and in fact able at any time to bring- an action, when he can by his own act :fix the time of payment. It is no stretch of langual}e to hold that a cause of action accrues for the pur"'" pose of setting the stat1tte in tnotfon as soon. as the creditor by his own act, and in spite of the debtor, can made the dern.at1d payable." (Italics ours.)

10'"' *In Bennett v. Thorne ('Vash.), 78 Pac. 936, 68 L. R. A. 113, a similar question arose. The action was

by the receiver of a defunct state bank against its stockholders, to enforce a eoustitutional liability to the extent of their stock holdings, for the benefit of creditors. The stockholders were onlv liable if the assets of the insolvent bank were insufficient to pay creditors, and only to the extent of such insufficiency. The question was whether the cause of action ace.med from the n.pnoint~ent of the receiver: or from the time of the determination that the assets in· his hand6 were insufficient. It was held that it accrued from the in. soh1ency and appointment of the receiver, the court saying:

'' Stockholders sta11cl as rm reties for the debts of the corporation. and the defau1t of the princip:11 is the default of the surety. It is invariably held that the cause of action against a surety accrues upon the default of the principal.. ~ e * The liability for the payment is not made to depend upon the application of as~ets, as these are but the· conditions that accurately fix the extent of the liability; not the deJict that creates it. * * * Again, it has been manv times heldand this is another impr,rtant reason why the action should be held to be barrec1-t7,at it is not the policy· of the law to put it within the power of a party to toll th.e statute of limitations. And this court bas at lea.st twice held that the failure of a partv to take tl1e necessary steps to perfect his right of action althoug·h such steps were conditions precedent to the right, would not prolorni; the statute. Spokane Cou,ntv v. Prescott, 19 Wash. 418; 67 Am. St. Rep. 733, 53 Pac. 661; Spinning v. Pierce County, 20 Wash. 126, 54 Pac. 1006."

In Spokane C ountJ1 v. Prescott (Wash.), 53 Pae. 661, 67 .Am. St. Rep. 733; action :was brought against the sureties 011 a ccmntv treasurer's bond. Against the defense of the statute of limitations, replication was that leave of court was a

8 Supreme Court of Appeals of Virginia

condition precedent to tbc existence of a cause of a.ction 11 * and the *right to maintain sueh cause, and that the ac

tion had been brought witl1in the statutory period after such leave was obtained. But the court said:

''The weight of authority and reason seem to be that when the respondent had the option at any time to obtain leave of court to bring· its action, and did not ask for such leave, it cannot enlarge the statute of limitations by its own delinquency.''

In Slingerla'l1,d v. Norton (Minn.), 61 N. W. 458, the situation was that Minnesota law provided that the purchaser at ac tax sale should have his money refunded '' when the sale is declared void by the judgment of court.'' Such a purchaser brought action against the county auditor to recover a refund. The county pleaded the statute of limitations upon the theory that tl1e cause of action accrued from the time of the tax sale, whereas the plaintiff asserted that it only accrued from the time of the court judgment declaring such sale void. · Held, when there is a condition precedent to the accrning of a cause of action, and it is in the power of the plaintiff to perform that condition, the statute of limitations will commence to run as soon as the proper time to perform the condition arrives. The court said:

"But it does not necessarily follow that the realtor has an unlimited time in which to have his rig·hts determined by the entry of that -judgment ( that the tax sale is void). He mav himself commence the action which will determine those 1·ig·hts and result in the entry of that judgment.''

In Atchison, Topeka ~ Santa Fe R. R. Co. v. Burlingame Township, 36 Kan. 538, 59 Am. Rep. 578, the Township

12* brought action against the *railroad to r.ecover dam-ages for the location of a railroad crossing. This cause

of action was authorized by statute which provided as a condition precedent that the amount be first ascertained by three disinterested viewers appointed by the county commissioners. The action was brought fifteen years after the location of the crossing but within three yea.rs of the appointment of viewers and their report. The railroad companv pleadecl the three-year statute of limitations. In holding the action barred bv the statute of limitations the court quoted the full excerpt from Palmer v. Palmer set forth on ·Page 9 of this petition, and additionally said:

Frank P. v\Tbitehurst, et al., v. Marie Core Duffy 9

"The township, by its own act, could have J)erfected its cause of action regardless of the wish or action of the other party, and within the foregoing principles and the allegations for the answer, the action was barred.''

In Barnes. v. Glide, 117 Cal. 1, 48 Pac. 804, 59 Am. St. Rep. 153, it is held. that though. a demand is necessary to perfect a cause of action, a party mterested cannot prevent or postpone the running of the statute of limita.tions by his failure to make a demand. The court said:

''Whether such demand be necessary in a case like the present, it is not ne0essary to determine; for the demand itself was an act within the power of the plaintiff. In Prescott v. Gonser, 34 Iowa, 179, the court says. That the action of mandamus cannot be maintained until there has been a refusal to perform the official duty sought to be enforced is true, but to hold that a plaintiff who has a right to demand performance- at any time may delay such demand indefinitely would enable him to defeat the object and purpose of the statute. It is certainly not the policy of the law to permit a

party against whom the statute runs to defeat its op-13* eration by neglecting to do an act *which devolves upon

him in order to perfect his remedy ag·ainst another. If this were so, a party would have it in his own power to defeat the purpose of the statute in all cases of this character. He could neglect to claim that to which he is entitled for even fifty years unaffected by the statute of limitations, thereby re¥dering· it a. dead letter. In such a construction of the statute we cannot concur."

'l~he English case of In Re McHenry (1894), 3 Ch. 290, is in point. In AugList 1882, MeHenry borrowed from Barker 13,365 pounds, giving him the following written instrument:

''In consideration of your advancing to me the sum of 13,365 pounds at 6% per c.ent per annum, repayable with interest on the 3oth of Novc:µiber, 1882, I hand yon herewith tl1c• under-mentioned securities of the nominal value of 13,-500 pounds to be held by you as collateral security for the due repayment of the said loan and the interest thereon.

"In the event of the loan remaining ,unpaid after it becomes clue, I hereby authorize you to realize the securities as you may deem fit, for the purpose of repaying yourself the amount due to you, and I undertake to pay you any difference between the net proceeds of the securities and the

10 Supreme Court of Appeals of Virgifiia

amount due to you as well on account of the sum advanced as for interest thereon and all charges and expenses of realization.

''Below the testator's signature was written: . "List of secnrities.-Pounds 13,500 8 per cent, scrip ( com

mittee 'a ~rti:ficates) Western Extension Bonds' of the Atlaµtic and. Great Western Railway. On payment of the interest du~ the 30th of November; 1882, I engage to renew the above loan for three months further."

The advance or loan was not repaid at maturity (in 1883) and the creditor did not sell the security until 1889. It wa3

-then found that the proceeds of this sale w~s not suffi-14* · cient to pay the advance in full. Debtor *died in 1891

and a.c.tion for the difference was broug·ht against ·his personal representative in 1893, an<;l plea of statute of limi.a. tations made in defense~ In sustaining the plea Herschell~ L. 0. saicl:

'' But it is said that the claim is not barred bv reason of the second paragraph of the document I have read; that, as_ the semtrities were not realized until September, 1889, until realization the actual amount due could not be ascertained, and that therefore the statute could only begin to run fro'l1i the date of realization,. This view found favor with the learned judge in the court below; but, with all deference, I am unable to agree with him.''

In Norwood Trust Co. v. Twenty-Four Federal St. Corporation (Mass.), 3 N. E. (2.d) 826, it is held:

"Limitation. of Actions-When an act of plaintiff, like tender or demand, is necessary to perfect cause of action so as to enable action to be brought upon it, plaintiff by failing to act, cannot preserve his c.ause of action indefinitely, but must act within reasonable time (G. L. (Ter. Eel.), c. 260, .Sec. 2).

"L·imitation of .Actions--Ordinarily; period fixed by statute of limitations, although not in terms applicable to perfection or completion of an inchoate cause of action, is taken by analogy to be limit of reasonableness, and plaintiff must perfect his right within such period; or lose it (G. L. Ter. Ed.), c. 260, Sec. 2)."

See also the following additional. authorities :

Frank P. Whitehurst, et at, v. Marie Core Duffy 11

·'' Limitations of Actions-:When the Statute begins to rnn.-T,he statute of limitations begins to run from the time that the debtor is subject to be sued, or from the time that the creditor can, by his own act, or of his own volition, become entitled to maintain an action.'' }Vin.chester db Lexington Titrnpike Co. v. Wicklif!e, 100 Ky. 531, ·66 Am. St. Rep. 356.

'' The cause of action accrues. for the purpose of setting the statute in motion a.s soon as the creditor, by his own a.ct

in spite of the debtor, can make the demand payable.'' 15* Ware v~ Hervey, *57 Me, 391; Sanford v. Lanca._r;ter,

81 Me. 434, 17 Atl. 402; R. R. Co. v. Byers, 32 P~. St. 22; Morrison's Admr. v. Miller, 34 Pa. St. 120.

'' A party cannot prevent the running of the statute by omitting to do some act which he. might have done.'' Reizenstein v. Marquardt, 75 Iowa 294; 9 Am. St. Rep. 477.

"Parties could not prevent statute from running against note by not givin.g notice fi.xing maturity.'' Bass v. Hunter, 205 Cal. 284.

We respectfully submit that this doctrine is the foundation of the Virginia rule that as to a note payable on demand, the statute of limitations begins to run from the date of the note, and not from the time the demand is made. Upon no other principle could the court have arrived at such a rule.

It is of course well settled that if the statute onee commences to rul)., no transfer of the instrument to a person under disability will toll or stop its running. Parson v. M'Cracken, 9 ~eigh 495; Caperton v. Gregory, 11 Gratt. 505.

Second .Assignment of Error

It is the general rule in states other than Virginia that when action on the primary instrument is barred by the statute of limitations then enforcement of the guaranty is likewise barred-

A 'llchampaugh v. Schrn.idt, 27 N. W. 805, 59 Am. Rep. 459. First Nat'l Bank v. Drakf., 171 N. W. 115.


16* *Formerly this appeared to be the rule in Virginia under Arents v. Commonwealth, 18 Gratt. 750, where

it was held-

. '· The right to enforce the guaranty, unless lost by laches or otherwise, must be held to be coextensive with the right to enforce payment of the bond or coupon. The guaranty, as an accessory to the bond., or coupon, follows it and adheres to it in equity, and the right to enforce the guaranty must be determined by the right to demand payment of the bond or coupon.''

However, upon the authority of Fidelity and Casu,alty Company of New York v. Lackland, 175 Va. 178, the Trial Court refused to so hold. vYe have no quarrel with the decision in the Lackland case, upon the facts there presented, but the Court's holding· was predicated upon the surety's right to require the creditor to act because of Section 5774 of the Virginia Code, while here the situation is that during the ten years and five months which elapsed after these defendants qualified as executors, before any action was brought on the guaranty, no claim was ever made against the estate on the instrument, and these defendants had no knowledge of a potential liability sufficient to obligate them to require the ·core estate, its personal representatives or its beneficiaries to act. The statute of limitations had barred the prosecution of claim against C. R. "White by these executors long before they were chargeable with any knowledge of the potential liability of their estate, even if any claim against

him ever· exiRted in favor of their estate. 17* *Under such a state of facts we submit that the Court

should apply the rule generally prevailing and should holcl the right of action on the instrument of guaranty to be barred.

CONCLUSION.

We respectfully submit that the questions presented in this petition merit the award of a writ of error, and while we do not pretend to ur~:e that the second assignment of error is as meritorious aSi the first, :we earnestly contend that the question presented by the first assignment has been erroneouslv decided bv the Court below and Rhould result in the reversal of this . case.

An opportunity for oral presentation of this petition is

Fra,nk P. Whitehurst, et al., v.: Marie Core Duffy 1-3

requested. If a writ of error is awarded, petitioners will :adopt this petition as their opening brief. A copy hereof has been delivered to opposing counsel on the -13th day -of October, 1942.

FRANK P. WIITTEHURST and GRAYSON M. WHITEHURST,

Executors of the Estate of W. L. Whitehurst, deceased.

By W. R. ASHBURN, Their Attorney.

I, W. R. Ashburn, an attorney practicing in the Supreme Court of Appeals in Virginia, do hereby certify that in

18* my opinion this case .,should be reviewed by the Supreme Court of Appeals of Virginia.

Oct. 13, 1942 ..

Norfolk, Virginia.

Copy of above received.

Oct. 13, 1942.

Received October 14th, 1942.

W. R. ASHBURN.

J'. HU1\IE TAYLOR, Atty. for Plft..

M. B. WATTS, Clerk.

December 1, 1942. Writ of error awarded by the courl No bond required ..

M. R W.


RECORD

VIRGINIA:

Pleas before the Court of Law and Chancery of the ,City of Norfolk, at the Courthouse of said City, on Friday the 7th day of August, 1942.

Be It Remembered, that heretofore, to-wit: on the 25th day of August, 1941, came Marie Core Duffy, plaintiff, by ber attorneys, and filed in the Clerk's Office of said Court, her notice of motion for judgment against Frank P. Whitehurst, and Grayson M. Whitehurst, Executors of the Estate of Vl. L. Whitehurst, deceased, defendants in the words and figures following: · · ,

To Frank P. Whitehurst and Grayson M. Whitehurst, Executors of the Estate of W. L. Whitehurst, deceased:

Take notice that on the 6th day of October, 1941, at 10 o'clock A. M., or as soon thereafter as she can be heard, the undersigned, Marie Core Duffy, will move the Court of Law and Chancery of the City of Norfolk, Virginia, for a judgment against you in the sum of Two Thousand ($2,000.00) dollars, with interest thereon from the 15th day of February, 1935, until paid, and· the costs of these proceedings for this, to-wit:

That under date of November 24th, 1922, the said W. L. Whitehurst executed a certain written agreement of guaranty in the words and figures as follows :

''WHEREAS, the estate of James C. Core, deceased, has loaned to C. R. White, the sum of two thousand

page 2 ~ dollars ($2,000.00) · represented by note d·ated November 24th, 1922, payable on August 15, 1923, with

interest; "Now Therefore, for value received I do hereby guaran

tee to the Estate of James C. Core, deceased, the payment of said note with interest thereon, or so much thereof as may be due after the sale of the property upon which same is a lien, it being understood and agreed that before mv liability is determined the respective trustees shall have advertised and sold the property- under and by virtue of the terms of the said deed of trust or of prior deeds of trust.

Frank P. ·wbitehurst, et al., v. Marie Core Duffy 15

"Given under my hand and seal this 24th day o~ November, 1922. ,,

(Sig1ied) vV. L. WHITEHURST, (Seal)

That said note of C.R. White, dated November 24th, 1922, together with the said written ag1reement of guaranty, was delivered to the undersigned by the Administrators of the estate of James C. Core, deceased, in payment of a bequest made by James C. ·Core to the undersigned, and are still held by the undersigned.

That all of the property conveyed by C. R. White and wife to '\V. W. Old, Jr., Trustee, by a deed of trust of November 24th, 1922, g·iven to secure the payment of the note .aforesaid, has been advertised and sold under and by virtue of the terms of deeds of trust, duly executed and recorded by C.R. White and wife, prior to the said deed of trust of November 24th, 1922, to W. W. Old, ,Tr., Trustee. As said sales under said

prior deeds of trust were .for amounts less than the page 3 ~ indebtedness secured thereby, the undersigned re

ceived no part of the purchase price of said sales. There is now due the undersigned under and by virtue of

the said note of November 24th, 1922, the sum of two thousand ($2,000.00) dollars, with interest at six· (6) per cent per annum from February 15th, 1.935, until paid.

The undersigned is a non-resident of the State of Virginia, and the said note of November 24th, 1922, and the said written guaranty of same date are not and have not been taxable in her hands by the State of Virginia. .

Where£ ore, the undersig11ed requests judgment ag·ainst the said Frank P. Whitehurst and Grayson M. Whitehurst, Executors of the estate of 1V. L. Whitehurst, deceased, in the sum of Two Thousand ($2,000.00) dollars, with interest thereon at the rate of six (6) per cent per annum from the 15th day of February, 1935, until paid and costs of these proceedings.

MARIE CORE DUFFY, By vVILLIA:MS, LOYALL & TAYLOR,

Her Attorneys.

RETURNS.

Not finding Frank P. ·whitehurst nor any member of his/her family above the age of 16 years at his/her usual place of abode, I executed the within process in the City of Norfolk,

16 Supreme Conrt of .Appeals of Vii;ginia

Va., this the 22 day of Aug., 1941, by leaving a Copy hereof posted at the front door of his;her said place of abode.

LEEF. LAWLER, Sergt. City of Norfolk, Va.

By C. B. LESNE·R, Deputy.

page 4 t Not finding Grayson M. Whitehurst nor any mem-ber of his/her family above the age of 16 years at

his/her usual place of abode I executed the within process in the City of .Norfolk, Va., this the 22 day of Aug., 1941, by leaving a Copy hereof posted at the front door of his/her said place of abode.

LEEF .. LAvVLER, Sergt. City of Norfolk, Va.

By C. B. LES.NER, Deputy.

And afterwards: In the ,Court of Law and Chancery of 9ie City of Norfolk, on the 1st day of October, 1941.

This day came the parties by their attorneys, and thereupon the defendants filed herein their plea of not guilty to which the plaintiff :replied generally, and also filed herein Special Pleas numbered 1, 2, 3, 4, 5 and 6.

The following are the pleas mentioned in the foregoing order:

PLEA OF THE GENERAL ISSUE.

Now come the defendants Frank P .. ,vhitehurst and Grayson M. W'hitehurst, Executors of the Estate of W. L. Whitehurst, deceased, and say that they are the duly qualified personal representatives of the said vV. L. Whitehurst, and the· plaintiff is not entitled to have or recover anything against the estate of W. L. Whitehurst, by virtue of the instrument of guaranty described in the notice of motion for judgment filed in this cause. And of this they put themselves upon the country ..

W. R. ASHBURN, p. d ..

•

Frank P. Whitehurst, et at, v. Marie Core Duffy 1-7

page 5} SPECIAL PL~A NO. 1.

The defendants Frank P. Whitehurst and Grayson M. Whitehurst, Executors of the estate of W. L. Whitehurst, for their special Plea No. 1, to the above styled cause of action say that W. L. Whitehurst died in the calendar year 1931, and they duly qualified in said year as Executors; that according to the notice of motion for judgment filed against them in said cause the guaranty therein described and declared on is a conditional guaranty and not an absolute guaranty; that these defendants had no knowledge of the existence of said instrument of guaranty and know nothing with respect to same of their own knowledge at this time; that under the laws of the State of Virginia it is their duty to interpose the plea of the statute of limitations if applicable, and accordingly they say that the right of action herein asserted, if it accrued prior to the death of the said W. L. Whitehurst, was not asserted within :fiv.e years from the qualification of his personal representatives, or if same accrued after the death of said W. L. Whitehurst, was not asserted within five years after said right of action accrued, by reason whereof these defendants say that plaintiff is precluded from any re-covery in this cause. ·

And this they are ready to verify.

W. R. ASHBURN, p. d.

page 6} SPECIAL PLEA NO. 2.

The defendants Frank P. Whitehurst and Grayson M. Whitehurst, E-xecutors of the estate of W. L. Whitehurst, for their Special Plea No. 2, to the above styled cause of action, say that W. L. Whitehurst died in the calendar year 1931, and they dulr. qualified in said year as executors; that this action is instituted upon a so-called conditional guar-

- anty, and not on an absolute guaranty; that on the allegations in the notice of motion for judgment filed in this cause and on information and belief, the cause of action, if any exists on said instrument of guaranty, accrued to tbe bolder thereof in the calendar year 1923, and prior to the 31st day of December, 1923, and said cause of action against W. L. Whitehurst or his estate, did not ac~rue within ten years next preceding- the institution of this action, by reason whereof these defendants say that the plaintiff is precluded from any recoverv in this cause.



~8 Supreme Court of Appeals of Virginia

SPECIAL PLEA NO. 3.

The defendants Frank P. Whitehurst and Grayson M. Whitehurst, Executors of the estate of W. L. "Whitehurst, for their Special Plea No. 3, to the notice of motion for judgment ·filed ag·ainst them in the above styled cause of action, say that W. L. Whitehurst died in the calendar year 1931, and they duly qualified in said year as executors; that they have

no personal knowledge as to the instrument of ~arpage 7 } ·anty upon which this action at law is brought but

from the description of said instrument as set forth in the notice of motion for judgment filed in this cause, the said guaranty and obligation of W. L. ·Whitehurst as therein expressed, is a conditional guaranty and not an absolute guaranty; that the instrument guaranteed became due and payable on the 15th day of August, 1923; that on information and belief the said W. L. Whitehurst received no notice 9f any default in the payment of said instrument by the maker thereof; that on information and belief notice of such def a ult would have enabled the said W. L. Whitehurst to protect himself by requbing payment of said obligation by C. R. White, the party primarily liable thereon; and these defendants say that the estate of W. L. Whitehurst is discharged from liability on the instrurpent of guaranty by reason of the failure of the holder of said instrument to notify said W. L. Whitehurst of the default of the maker when said default occurred, or within a reasonable time thereafter.



SPECIAL PLEA NO. 4.

The defendants Frank P. Whitehurst and Grayson M. Whitehurst, executors of the estate of W. L. Whitehurst, ceased, for their special plea No. 4, to the notice of motion for judgment filed against them in the above styled cause of action, say that W. L. Whitehurst died in the calendar year 1931, and they duly qualified in said year as executors of his estate; that they have no personal knowledge as to the instrument of guaranty upon which this action is brought; that

said instrument as described in tl1e notice of mopage 8 ~ tion for judgment filed in this cause constitutes a

conditional guaranty and not an absolute guaranty; that the primary obligation is made by C. R. White, on information and belief, became due and payable on the 15th day of August, 1923; on information and belief these defendants

Frank P. Whitehurst, et al., v. :Marie Core Duffy 19

say that said primary obligation was by the holder thereof. renewed and extended to the said C. R. ~V'hite, without notice to or knowledge of said renewal or extension on the part of the said W. L. Whitehurst; therefore, these defendants say that said renewal and extension constituted a novation of the primary contract upon which said C. R. White was liable as between the holder of said instrument and the said C. R. White, and the effect thereof was in law to discharge the said W. L. Whitehurst from liability on the instrument of

· guaranty upon which this action is brought. ' And this the said defendants are ready to verify.


SPECIAL PL:EJ.A NO. 5.

The defendants Frank P. Whitehurst and Grayson M. "\Vhitehurst, executors of the estate of W. L. Whitehurst, deceased, for their special plea No. 5, to the notice of motion for judgment exhibited against .. them in the above styled cause of action, say that W. L. Whitehurst died in the calendar year 1931, and they duly qualified in said calendar year as executors of his estate; that they have no personal know 1-

. edge as to the instrument of guaranty upon which this action is brought, but on information and belief the right to enforce the primary obligation, that is, the obligation of e. R. White;

which according to the notice of motion for judgpage 9 ~ ment filed herein, was conditionally guaranteed by

W. L. Whitehurst, has become extinguished and ceased to exist, and accordingly these defendants say that in law the right to enforce the guaranty has become extinguished and ceased to exist, by reason whereof the plain-· tiff is precluded from any recovery against them in this cause.



SPECIAL PLEA NO. 6.

The . defendants Frank P. Whitehurst and Grayson M. Whitehurst, Executors of the estate of W. L. Whitehurst, deceased4 for their special plea No. 6, to the notice of motion for judgment exhibited aQ;ainst them in the above styled action at law, say that W. L. Whitehurst died in the caleiiclat· year 1931, ~nd they duly qualified in said year a~ executors;

20 Supreme Court of .Appeals of Virginia

that they have no personal knowledg·e as to the instrument of guaranty upon which this action is brought, but according to the description of said instrument as contained in the notice of motion fo:r; judgment filed herein, the contract when executed was one of conditional guaranty and not absolute guaranty; that if said instrument so declared on was in fact made by W. L. Whitehurst, their decedent, then the effect of said instrument was that said vV. L. Whitehurst would pay a certain deed of trust note dated November 24, 1922, and payable on August 15, 1923, if by the exercise of due diligence this primary debt could not be made out of said C. R. White,

the said principal debtor; that under said instrupage 10 r ment of conditional g"Uaranty it became and was

the duty of the holder thereof to exercise due diligence to make the debt out of the principal debtor C. R .. White, and in order ~o determine the exact liability of the said W. L. Whitehurst on said instrument of conditional g"Uaranty it became and was the duty of the holder thereof to foreclose the property referred to within a reasonable time after any default in the payment of the origfoa.1 instrument, and to notify the sajd W. L. ·whitehurst of the extent of his liability within a reasonable time after same was ascertained and determined in order that the said vV. L. ·whitehurst, their decedent, might protect himself by enforcing payment of the primary obligation on the part of said C. R. White, or collecting the amount for which he was liable from said C. R. ·white; yet, nevertheless, these defendants say that the holder of said obligation wholly neg·lected his or her duty in that particular, and wholly failed to foreclose the security within a reasonable time after default for the protection of the· guarantor, as it was his or her duty so to do; and wholly ·failed to exercise due diligence to collect the said claim from the principal debtor, and wholly failed to exercise due diligence to ascertain the amount of the liability of W. L. Whitehurst within a reasonable time after default, and wholly failed to notify the said W. L. Whitehurst of such default or the existence of his liability by reason thereof, and wholly failed to afford the said W. L. Whitehurst or his personal representatives the opportunity to enforce payment of the primary obligation by said C. R. White, the original debtor, or to re-

cover any amount for which the said W. L. Whitepag·e 11 ~ hurst or his estate might be liable on account of

said instrument of guaranty, and by reason of the breach of each and all of t1Iese said duties by the holder of the said instrument· of guaranty these defendants now say that said instrument is unenforceable in the hands of' the

/

Frank P.. Whitehurst, et al., v. Marie Core Duffy 2.1.

plaintiff in this cause, and said. plaintiff can have no recov· ery herein.


W. R. ASHBURN, p .. d.

And afterwards; in said Court, on the 3rd day of April, 1942:

This -0ause came on this day to be heard upon the motion of the plaintiff to strike out .Special Plea No. 5, filed hereby by the defendant, and the Court being of the opinion- that the said motion should granted, it is ordered that the same be, and it is hereby sustained, the Court being of the opinion that the fact that the enforcement of the note made by 0. R. White under date of .November 24, 1922, is now barred by the Statute of limitations does not constitute a defense to this action.

To which action of the Court the plaintiff excepted.

And afterwards : In said Court, on the 3rd day of April, 1942:

This day came the parties by their attorneys, and thereupon the plaintiff filed herein her amended replications to special pleas Nos. 3, 4 and 6.

page 12 ~ The following are the amended replications filed pursuant to the foregoing orders:

AMENDED REPLICATlON TO SPECIAL PLEA NO. 3.

The said plaintiff comes and says that Frank P. Whitelmrst and Grayson M. Whitehurst, Exooutors of the Estate of W. L. Whitehurst, were charg·ed with knowledge of the instrument of guaranty upon which this action at law is brought, for the reason that W. W. Old, Jr., qualified with them as an Executor of the estate of W. L. Whitehurst, that said W. W. Old, Jr., had full knowledge of the instrument of guaranty upon which this action at law is brought, that their testator, the said W. L. Whitehurst, received notice of def a ult in the payment of the note mentioned in the guaranty set forth in the notice of motion for judgment within a reasonable time after the said note became due and payable, towit: within a reasonable time after the 15th day of August, 1923. And this the plaintiff is ready to verify.

J. HUME TAYLOR, p. q.

22 Supreme Court cf Appeals of Virginia

AMENDED REPLICATION TO SPECIAL PLEA NO. 4 ..

The said plaintiff comes and says that Frank P. Whitehur~t ·and Grayson M. Whitehurst, Executors of the estate of W. L. Whitehurst, deceased, had knowledge, or were charged with knowledge as to the instrument of guaranty

upon which this action is brought as is set forth page 13 ~ particularly in the amended replication to ~pecial

Plea No. 3, herein filed. And the said plaintiff further says that the note of November 24, 192.2, and the written guaranty of same, executed by W. L. ·Whitehurst becamener property on April 8, 19,26; that thereafter, and under date of Aug-ust 1, 1931, Messrs. Vv. W. Old, Jr., and Et Brockenbrough, trading as Old and Brockenbrough, presuming· to act for her, but without authority, did accept a note of C. R. White in renewal of said note of August 15, 1923. This plaintiff was on April 8, 1926, an infant and did not become twenty-one years of age until the 25th day of June, 1941 ; that thereafter she elected to disaffirm the act of said W.W. Old, .Jr., and E. Brockenbrough in accepting said note of August 15, 1931, in renewal of said note of November 24, 1922, and under date of September 22, 1941, evidenced that disaffirmance by writing the letter to C. R. White, a copy of which is attached hereto as a part of this plea. And this the said plaintiff is ready ·to verify.


Al\fENDE,D REPLICATION 'TIO SPECIAL PLEA NO. 6.

The said plaintiff comes and says that the said Frank P. Whitehurst and Grayson M. Whitehurst, Executors of the . Estate of W. L. Whitehurst, deceased, had personal knowledge, or were charged with knowledge of the instrument of g-uaranty upon which this action is brought, for the reasons set forth in the amended replication to Special Plea No. 3, filed herein. That the plaintiff herein proceeded with all due dispatch against the estate of W. L. Whitehurst, within a reasonable time after the right to enforce the guaranty men-

tioned in the notice of motion for judgment had page 14 ~ accrued. That under the terms of the guaranty

she was under no obligation to first proceed against C. R. White. That the said W. L. "Whitehurst received due 11nd reasonable notice of the failure of C. R. White to pay the note of November 24, 1922, after said note became due and payable, and wa~ not paid by ~aid C. R. White, to-wit: withm a reasonable time after the 15th day of August, 1923,

Frank P. Whitehurst, et al., v. Marie Core Duffy 23

and the said W. .L. Whitehurst then requested W. W. Old, Jr., Administrator of the estate of James C. Core, to take no action against C. R. White and to allow him to work it out ..

And this the plaintiff. is ready to verify.


And afterwards : In said Court on the 8th day of June, 1942.

This day came the parties by their attorneys, and then came a jury, to-wit: I. F. Truitt, C. S. Boggs, Edw. Spertner, B. P. Eggleston, Jr., R. T. Overstreet, W. B. Picot, and V. T. Alexander, who being sworn the truth to speak upon the issue joined, and having heard the. evidence, returned a verdict in these words: "V\f e the jury find for the plaintiff in the amount of $2,000.00 plus interest at the rate of 6% per annum from February 15, 1935, until paid.''

Whereupon the defendants moved the Court to set aside the verdict of the jury and gTant them a new trial ori the grounds that the said verdict of the jury is contrary to the law and the evidence, which motion being fully heard by the

Court is overruled. page 15 ~ Therefore, it is considered by the Court that

the defendants, F"rank P. Whitehurst and ,Grayson M. Whitehurst, executors of the estate of W. L. Whitehurst, deceased, do out of the estate of their testator, W. L. Whitehurst, deceased, if so much they have pay to the plaintiff, Marie Core Duffy, the sum of $2,000.00, with interest thereon at the rate of six per centum per annum from February 15, 1935, until paid and her costs by her in this behalf expended. , To which ruling and judgment of the ,Court, the defendants duly excepted.

It is alleged that the plaintiff is a non-resident of the State of Virginia, and that the said note of November 24, 1922, and the said written guaranty of same date are not and have not been taxable in her hands by the State of Virginia.

At the instance of the defendants who desire to present to the Supreme Court of Appeals a petition for a writ of error and supersedeas to this judgment, it is ordered that when the defendants or some one for them, shall g·ive bond, with

· surety before the Clerk of this Court, in the penalty of $3,000.00, conditioned according to law, execution of this judgment shall be suspended from that date for a period of sixty days from the expiration of this term of Court, and

24 Supreine Court of Appeals of Virginia

thereafter until such petition is acted on by the Supreme Court of Appeals, if such petition is actually filed with the specified time.

page 16 ~ And afterwards ; in said Court, on the 12th day of June, 1942 :

This day came the defendants and moved the Court to set aside the judgment entered in favor of the plaintiff herein on the 8th day of June, 1942, and to award them a new trial upon the ground that the Court erred in its ruling upon the application of the Statute of limitations to the plaintiff's cause of action, and in the instructions given to the Jury at the instance of the plaintiff and the refusal of the instructions offered by the defendant;

On consideration whereof, it is ordered that the motion be docketed and the hearing thereof be continued.

And afterwards : In said Court, on the 29th day of July, 1942.

This day came again the parties by their attorneys and the motion of the defendants entered herein on the 10th day of June, 1942, moving the Court to set aside the judgment of the Court entered in this case on the 8th day of June, 1942, and grant them a new trial, being fully heard by the Court is overruled. · Therefore, it is considered by the Court that Frank P. Whitehurst and Grayson M. Whitehurst, executors of the estate of W. L. Whitehurst, deceased, do out of the estate of their testator, W. L. Whitehurst, deceased, if so much they have pay to the plaintiff Marie Core Duffy, the sum of two thousand ($2,000.00) dollars, with interest thereon from Feb-

ruary 15, 1935, until paid, at the rate of six per page 17 ~ centum per annum, and her costs by her in this

behalf expended. To which ruling and judgment of the Court, the defendant

duly excepted. It is alleged that the plaintiff is a non-resident of the State

of Virginia, and that the said note of November 24, 1922, and the said written guaranty of the same date are not and have not been taxable in her hands by· the State of Virginia.

At the instance of the defendants, who desire to present. to the Supreme Gourt of Appeals of Virginia, a petition for a writ of error and supersedeas to this judgment, it is ordered that when the defendants, or some one for them, shall give bond, with surety, before the Clierk of this- Court, in the


penalty of $3,000.00, conditioned according to law, execution of this judgment shall be suspended from that date for a period of sixty days from the expiration of this term of Court, and thereafter until such petition is ooted on by the Supreme Court of Appeals, if such petition is actually filed within the specified time.

And now, in said Court., on the 7th day of August, 1942.

This day crune the parties, by their attorneys, and it appearing to the Court that the defendants haye given reasonable notice in writing to the plaintiff of the time and place, that the defendants would ask the Court to sign and make a part of the record herein the stenographic report of the evi-

dence., exhibits and other incidents of the trial in page 18} this case, and the same having been presented to

the Court, on motion of the defendants, the Court doth sign and make the same a part of the record herein, which is done within sixty days from the entry of final judgment.

The following is the stenographic report of the testimony referred to in the foregoing.order:

page 19} In the Court of Law and Chancery of the City of Norfolk, Va.

Marie Core Duffy, Plaintiff, v.

Frank P. Whitehurst, and Grayson M. Whitehurst, Executors of the estate of W. L. Whitehurst, Deceased.

· RECORD.

Stenographic report of all the testimony., together with all the motions, objections and exceptions on the part of the respective parties, exhibits and all other incidents of the trial of the cause of Marie Core Duffy, Plaintiff, v. Frank P. Whitehurst, and Grayson M. Whitehurst, Executors of the es-

, tate of W. L. Whitehurst, Deceased, tried in the Oourt of Law and Chancery of the City of Norfolk, Virginia, on June 8, 1942, before Hon. 0. L. Shackleford, and a jury.

Present: J. Hume Taylor, Esq., Counsel for the Plaintiff. W. R. Ashburn, Esq., Counsel for the Defendants.

26 Supreme Cou:rt of Appeals of Virginia

page 20 } . WILLIAM W .. OLD, JR., called as a witness on behalf of the plaintiff, hav

ing been first duly sworn, testified as follows :

Eoc~ned by Mr. Taylor: Q. State your name, pleasef .A. William W. Old, Jr. Q. What is your occupation, Mr. Oldf A. Attorney at law. Q. Were you one of the executors of the estate of James

C. Core! A. Mr. Pegues and I were administrators of the estate. Q. Is this a copy of the will and qualification of the es

tate of James C. Core! A. Yes.

Mr. Taylor: I wish to introduce this in evidence, and ask that it be marked "Plaintiff's Exhibit No. 1 ".

(The same was received and marked in evidence as ''Plaintiff's Exhibit No. 1 ".)

Q. After yon qualified as one of the administrators of the estate of James C. Core, did Mr. W. L. Whitehurst call upon you?

A. Yes. Q. What was the purpose of that visiU A. He called upon me a few days prior to November 22nd,

1922, and stated that his son-in-law, Mr. 0. R. page 21 } White, had failed in business and needed some

money. He asked me whether my firm had a client who would lend Mr. White $2000. I explained the situation to Mr. Whitehurst as to the mortgages on the property of Mr. C. R. White. Mr. Whitel;mrst then stated, "If yon will lend the money to Mr. White, I will guarantee the payment of the note". He said, "I do not want to lend money to my family, or members of my family. Instead of lending the money, myself, I would rather guarantee the note, and not to say anything about i.t to Mr. C. R. White, or anyone,'' which promise I kept. · 1

Q. Pursuant to that request, did yon lend Mr. C.R. White $2,0007 .

A. Mr. Pegues and I, as administratorf? of the· estate of James C. Core, deceased, loaned Mr. White $2,000.

Q. And that $2,000 was taken from the estate of James C. Core?


William, fV. Old, Jr.

A. J runes C. Core. Q. Is this the note that was· executed by Mr. C. R. White

as of that time Y A. That is the o.riginal note.

(Received and marked in evidence as "Plaintiff's Exhibit. No. 2".)

Q. Is this the deed of trust that was given by Mr. White and Mrs. White at that time Y

.A. Yes. ·

page 22 }- (Received and marked in evidence as "Plain-tiff's Exhibit No. 3".)

Q. This deed of trust was given to secure the payment of that noteY

.A. Yes. Q. At the same time did Mr. W. L. Whitehurst execute

a guaranty! A. Not at the same time. Mr. "Whitehurst came in either

that afternoon or the next afternoon and signed the guaranty.

Q. Pursuant to your original agreement Y A. Yes. Q. Is this the guaranty that he signed Y .A. That is the guaranty signed by l\Ir. Whitehurst in my

presence.

(Received and marked in evidence as "Plaintiff's Exhibit No. 4".)

Q. Mr. Old, this deed of trust of .November 24, 1922, from C. R. White and Annice J., White, his wife, to William W. Old, Jr., Trustee, conveys two separate parcels of property, does it not?

A. Yes. Q. Was there a prior lien as to either of those parcels of

property? A. No.

page 23 }- Q. What did it constitute as a lien on the Omohundro property 1

A. On August 15, 1921, a loan was made of $4,650 on the property · on Ainsworth Street, or now 18th .Street. On August 15, 1921, a deed of trust was executed on nine lots in


Willia.m lV. Old, Jr.

Glenwood Annex, with the residence and, I think, a stable thereon, to secure two notes, one for $2,500 and the other for $3,500, making a total of $6,000. On August 15, 1921, there was also a deed of trust placed on the Ainsworth Street, or 18th Street, property to further secure the note for $2,500, secured by a deed of trust on the Glenwood Park property. In other words, the total loan 011 the property was $10,650.

Q. And this deed of trust constituted a third lien as to one pi~ce of property, and a second lien as to the other piece of property thereby conveyed?

A. Conveyed into a second mortgage on the property in Glenwood Park, and a third mortgage, really, on the property on Ainsworth Street, as one of the notes on the Glenwood Park property of $2,500 was also secured on the .Ainsworth, or 18th Street, property.

Q. Do you recall the approximate date that you and Mr. Pegues filed your final account as administrators of the estate of James C. Core, deceased t

A. November 16, 1926. page 24 ~ Q. Prior thereto, what did you do with the note·

of .November 24, 1922, in the sum of $2,000, signed by C.R. White? .

A. That note was transferred by the administrators to :Marie Core Duffy in payment of a legacy of $2,000 under the will of James C. Core, Deceased.

Mr. Ashburn: I object to that answer. I wish to state the grounds of the objection in the record: Marie Core Duffy,. the present plaintiff here, according to the statement made by her counsel, and substantiated by all of the records, was an inf ant of very tender years. There is no allegation that any guardian was appointed for her. These administrators in law delivered this note to her as an inf ant. They could not acquit themselves of any liability by an attempted delivery to her, and anything they may have done was wholly non-effective for any legal purposes; just as non-effective as if it had never been done. It amounted to nothing·. So I object to Mr. Old's stating· in the presence of the Court and jury that this note was transferred to Marie -Core Duffy. Under the law it could not have been transferred.

The Court: Couldn't she confirm that transaction when she became of ag·e, Mr. Ashburn Y

Mr. Ashburn: No, sir. page 25 ~ l\fr. Taylo,r: She has not disaffirmed it ..

Frank P. Whitehurst, et al., v. Marie Core Duffy 29.

William TV. Old, clr.

By. Mr. Taylor: Q. Mr. Old, suppose you say what you did with that note

and guaranty t · You put it in an envelope, didn't you Y A. That note and guaranty was put in an envelope, and

also on the face of it was '' property of Marie Core Duffy'', and was placed in the safe deposit box of Old & Broekenbrought in the safe deposit. vault of the Seaboard Citizens National Bank.

Q. At that time there were two banks: The Citizens Bank and the Seaboard National Bank. Which was it, Mr. OldY

.A. The Citizens Bank, I think.

The .Court: Do you wish to argue the point Mr. Ashburn raised, Mr. Taylor?

Mr. Taylor: If your Honor please, we are going to show that Miss Duffy did, in fact, confirm this to this extent: .A renewal note was signed by Mr. White and given to Messrs. Old & Brockenbrough. They put that in the same envelope. Within a month or so after Miss Duffy became of age, she wrote a letter disaffirming the act of Messrs. Old & Brockenbrough, and accepted this renewal note, which necessarily affirmed the act of their taking the original note and guaranty. She has affirmed to the extent she has brought this action of

law on this note. The final account of the adminpage 26 ~ istrators, which will be introduced in evidence in

a few moments, shows that this note was- allocated to Miss Duffy in payment of the legacy left her by her greatuncle, James C. Core, and approved by the Court.

Subsequently, in 1933, a guardian was appointed for Miss Duffy, and the note and guaranty were delivered to him.

The Court: I will permit the evidence to stand upon your assurance that it will be connected up by proof of the fact that she did confirm the transaction after she became of age.

Mr. Taylor: My proof of it is what I stated just now, your Honor: That this action was brought.

The Court: I overrule the objection. Mr. Ashburn: I save the point, your Honor. A Juror : How long was the interest paid on this note from

the time of its inception until the property was sold? Was the interest paid up until the time it was sold?

M:r. Taylor: No, sir; ,until February 15, 1935. The Juror: Had the interest been paid at any time? Mr. Taylor: This note is dated November 24, 1922. The

interest has been paid on it up until February 15, page 27 ~ 1935.


W·illiam W. Old, Jr.

The Juror! How long after that was the property sold t Mr. Taylor: The property was sold, to the best of my

recollection, in August, '41. · The Juror: And Mr. White paid the interest-Mr. Taylor: He paid the interest until February I5, 1935. Mr. Ashburn: Your Honor, Mr. Taylor desires to intro-

duce a copy of the account of H. H. Pegues and W. W. Old, Jr., administrators of the estate of James C. Core. I agreed with Mr. Taylor not to require certified copies; but I wish to preserve my objection to the introducton of the accountit would ·be the same objection to a certified account-because I contend it proves nothing, that it is outside of' the issues before the Court and jury, and it is a self-serving statement of this witness as to his transactions with the funds of the estate of Jam.es C. Core.

The ,Court: I think it is proper, because it tends to show the plaintiff here is the owner of the note and guaranty.

By Mr. Taylor: Q. This is a copy of the final account that was filed in the

Circuit ·Court of Northampton County, the accounts of H. H. Pegues and W. W. Old, Jr., as administrators of

page 28 ~ the estate of James C. Core! A. Yes.

(Received and marked in evidence as ''Plaintiff's Exhibit No. 5''.)

Q. Mr. Old, how long have you known Mr. W. L. White-hurst?

A. Since 1890. Q. Did he come in your office frequentlyY A. Yes, very often. Q. I believe you stated that this guaranty was signed in

your presence Y A. In my presence. Q . .And that, is Mr. Whitehurst's signature? .A. Yes. Q. Mr. Old, this note, in the sum of $2,000, dated Novem

ber 24, 1922, came due and payable under the terms thereof on .August 15, 1923. .At, or about that time, did you JrnvP. any conversation with Mr. W. L. Whitehurst?

Mr. Ashburn: If your Honor please, I think the answer

Frank P. Whitehurst, et al., v . .Marie Core Duffy 31

Willia.m W. Olll, Jr.

Mr. Taylor wishes to elicit is admissible, but I do not think he ought to lead the witness.

Mr. Taylor:· I asked him: Did he have any conversation~· That is not a leading question.

The Court: Go ahead.

A.. About the time this note fell due Mr. Whitepage 29 } burst came to the office. He generally came every

Thursday afternoon, and sometimes on Saturdays. I told him about this note ; that the note was past due. tle said, "Let it run on, and don't bother with it".

By Mr. Taylor: Q. What? A. "Let it run on, and don't bother with 'it." Q.- Subsequently Dr. "William C. Duffy qualified as guardian

of Marie Core Duffy. The appointment was made on February 11, 1933. Thereafter, what became of this note and guaranty that were put in that envelope and put in the safe!

A. The note and guaranty were in the same envelope, and were given to Mr. H.. H. Pegues who married the niece of Mr. James C. Core. They were held for Dr. Duffy.

Then a proceeding was brought in the ,Court of Law and Chancery, I think, of Norfolk by me upon the request of Dr. Duffy to have transferred to him in New Haven all the interest on hand; also the note. This was done, and the interest was sent to Dr. Duffy; also the note. ·That was the latter part of April or the first part of May, 1933.

page 30 ~ CROSS EXAMINATION.

By Mr. Ashburn: Q. Mr. Old, you qualified with Mr. Pegues as personal rep

res.entatives of the estate of J runes C. Core Y A. Yes, sir . . Q. And an of the moneys of that estate came into your

hands and the hands of Mr. Pegues! . A. Yes. Q. And it was from those moneys that this original loan,

represented by the note of $2,000, dated November 24, 1922, was made?

A. Yes. Q. And for the· security of that loan you took this deed

of trust by 0. R. White and wife, which was a third lien on


William W. Old, Jr.

some improved property, and a second lien on some unimproved property 7

A. All of it was improved. Q. Was the third lien on one parcel and the second lien

on another? A. In other words, the whole loan on the property amounted

to $10,650. Q. Did you have any appraisal of the value of the security

in making an estate loan, as the law required Y A. Yes, I did. Mr. Joseph R. Ives appraised the prop

erty. Q. Do you have the appraisal?

page 31 ~ A. No. I haven't. Q. Was it apprai~ed by one person or two T

A. By one. Q. The statute required a.ppraisal by two persons, did it

noU A. It does; but Mr. "Whitehurst, who was a. man worth

probably $500,000, guaranteed the note, and I considered the note A-1.

Q. And Mr. Pegues and yourself became both persona.Uy liable for making the loan with the estate funds without complying with the formalities presc.ribed by the statute?

Mr. Taylor: I object to this line of questioning as irrelevant and immaterial to the issues involved in this case.

Mr. Ashburn: Your Honor, I think it is very material. The purpose is to show Mr. Old is an interested partv in the outcome of this proceeding. ·

The Court: I overrule the objection. Mr. Taylor: I wish to note an exception.

By Mr. Ashburn: . Q. Mr. Old, your statement is that you never said to Mr.

White that his loan was guaranteed in any way? A. I did not.

Q. So far as you know, Mr. C.R. White never page 32 ~ knew there was any guarantv executed bv anyone

in connection with this loan"f ., A. I did not tell him. Q. So far as you know, he never heard it from any other

source? A. I don't lmow about that. He will have to testify to

that.

Frank P. Whitehurst, et al., v. }farie Core Duffy 33·

William W. Old, Jr.

Q. When this note for $2,000 came due on August.15, 1923, who was the owner of the note J

A. I did not understand that. Q. When this deed of trust note matured and became due

and payable on Aug11st 15, 1923, wbo was the owner of the note?

Mr. Taylor: That is a question of law.

A. The administrators of the estate of James C. Core, deceased.

Bv Mr. Ashburn: ··Q. The loan had been made. bv the administrators with

the estate's funds, and: the note was an asset of the estate? A. An asset of the estate. . Q. That is, of the whole estate of James c~ Core? A. Yes. Q. The note was not paid at its maturitv? A. No. .,

Q. And it continued in default and past due page 33} after its maturity?

A. Yes. Q. It was in default and three years past due when the

administrators attempted to segregate it to the interest of Marie Core Duffv ¥

A. That is correct. Q. It was still manually in the possession of the adminis-

trators?

Mr. Tavlor: As of what date? Mr. Ashburn: Throughout . the year 1926 .

.A.. It seems to have been transferred to Marie Core Duffy on .JanuarV" 17, 1926.

Q. What you refer to as a transfer on January 17, 1'926, w~ s nothing more or less than placing- the note in an envelope and marking- it "property of Marie Core Duffy"?

A. It was nut in an envelope and marked with her name. O. The will of James C. Core gave to Marie Core Duffy

$2,000 in money, aµd not a note for $2,000 f A. That is correct. Q. And as between Mr. Pegues ancl yourself, as adminjs

trators, and Mis~ Duffy, you could not discharge that habilitv without paying to her, or her duly appointed guardian, $2,000Y


Willia~ W. Old, Jr.

page 34} Mr. Taylor: I object to that. The Court: I think that calls for an opinion.

By Mr. Ashburn: . . Q; What you · did do was to put the note in an envelope and mark it ''property of Marie Core Duffy''Y

A. Yes. Q. And it physically remained where, and for how Iong°l A. It physically remained in the deposit box of Old &

Brockenbrough probably until 1932, or the first part of 1933. Q. When this note matured, Mr. W. L. Whitehurst was

still livingY · A. Yes. Q. And he continued to live until 1931, or eight years af

ter this note became due Y A. Yes .. Q. Did you .ever write to him during that eight years and

say that this obligation was past due, and that there was an existing instrument of· guaranty upon which he was liable?

A. No. I talked to him about it quite a number of times. Q. You have no copy of .any communication exchanged

with him about the matter during that eight-year periodY A. I· have not. He c.ame to my offic.e quite a number of

times. He said, "Willie, how is_ ::M:r. White getting along with his interest?" Mr. White had paid his in

page 35 ~ tercst very regularly, and he paid his taxes on the property. That was up until 1932.

Q. This note in 1932 was nine years past due, and personal liability of C. R. White was then barred by the sta.tute of limitation Y

A. He gave a renewal note. Q. WhenY A. It says there. I don't know the date of it. Q. Is this the ·renewal note Y A. August 15, 1931.

Mr. Ashburn: In response to questions of .opposing counsel, I wish to. tender the note dated April 15, 1931, for $2,000, endorsed by C. R. White.

(The note was received and marked in evidence as "Defendant's Exhibit No. 1. ")

:M:r. Taylor: Your Honor, it will be shown by Miss Duffy


William W. Old, Jr.

when she takes the stand tlmt on arriving at her majority she disaffirmed the act of Old & Brockenbrough in accepting that renewal note. I assume he has the right to go into this disaffirmant, which we cannot prove. until Mi~s Duffy takes the stand.

By Mr. Ashburn: .. Q. "When this note of August 15, 1931, was made, the origi

nal note was barred by the statute of limitation, because more than five years had passed after its maturity?

A. That is correct, but the deed of trust was page 36 ~ still good.

Q. And when Mr. C. R. White made this renewal note, he knew nothing about any instrument of guaranty? '

.A. Because 1\fr. Whitehurst told me not to tell anybody. Q. But the answer to my question is that he knew nothing

about it. ·

Mr. Taylor: Mr. Old cannot say.

A. I don't know whether he knew it; I could not tell.

The Court : I think he has made that plain.

By Mr. Ashburn: Q. Mr. Old, was l\Ir. ,v. L. ViThitehurst living when you

took this renewal note? A. I don't think he was. I think he died on ... l\.pril 5,

1931; that is my recollection. I am not positive about the date.

Q. And you took the renewal note of April 15, presumably -that is its date, at least?

A. August 15th. 1

Q. What securities, originating from the estate of James C. Core, did you then have in your possession Y

Mr. Taylor: I object, if your Honor please. The only question involves the $2,000 note.

Mr. Ashburn: The purpose of the question is to show, if it is a fact, that he was acting for the whole estate just as

he had theretofore acted. I want to see what au.,. page 37 ~ thority he had·with respect to this matter, or what

the fact was as to what he was doing. Mr. Taylor: On what date was this Y


William liV. Old, Jr.

Mr. Ashburn: April 15, 1931. The Court: The plaintiff here was a minor, but she had

the opportunity when she became of age to disaffirm, regardless of whether or not they had authority to do that.

Mr. Ashburn: If your Honor is correct- about that, it involves this additional circumstance: I understand that she disaffirmed the renewal and confirmed tbe original. Patently. the reason for that was that the original had been barred by the statute of limitations, and the acceptance of the renewal, as a matter of law, released the guarantor. So she evidently, upon the advice of counsel, attempts to do as the Supreme Court has condemned in some instances : To approbate and reprobate the authority of the people who did the same actions.

Tlhe Court: I sustain the objection. I do not think that is material.

Mr. Ashburn: I should like to ask him, if your Honor: please, what portion of the estate of James C. Core was in his possession as an attorney, or individual, at that time.

Tbe Court,: I won''t permit you to ask that. page 38 } Mr. -.t\.shburn: I save the point.

I would like to ask him at whose instance he solicited and received this note-that is, what his authority was.

The Court: Do you object to thaO :Mr. Taylor: Yes, sir. The Court: I sustain the objection. Mr. Ashburn: I save the point, sir.

Bv Mr. Ashburn: "'Q. Mr. Old, wbat, if anything, did you have to do with

the appointment of a g11ardian for Miss Duffy? A. The attorney in New Haven, Mr. Paul Webb-

Mr. Taylor: I object to that. I do not see that that fa relevant.

The Court: "What is its relevanev? Mr. Ashburn: Your Honor, I wish to see whether any of

these transactions took place within the period when authority was vested in the guardian, because I think the. guardian coulcl, perhaps, affirm, or disaffirm, or authorize, certain actions.

The Court: I do not think so, without some order of the eonrt.

Frank P. ·Whitehurst, et ·al., v. Marie· Core Duffy .37 .

. William W. Old, .. Tr.

Mr. Ashburn: He may have had such .an order. I do:m.'t know what transpired. I am in the dark about it.

:M:r. Taylor: I cannot put it all in at once, but page 39} I will tell Mr. Ashburn a guardian was appointed

on the 11th day of February, 1933. Mr. Ashburn: From 1933, to 1941, tlte guardian, if your

Honor please, had certain rights, and even certain duties, to perform with respect to the estate of his ward, including, presumably, the right to direct some activity to this obligation in whatever form it was.

Mr\ T1aylor: Suppose, your Honor, the guardian did nothing, either intentionally or unintentionally, or wilfully, that would not be a part of this action by Miss Duffy.

The· Court! I wou]d not think so. I sustain the objection.

Mr. Ashburn! I save the point.

By Mr. Ashburn: Q. Mr. Old, on your direct examination you said that at

some certain period the original note and the instrument of guaranty were g·iven to Mr. H. R. Pegues. When was that done?

A. That was done the latter part of 1932, to the best of my recollection.

Q. In what capacity was it delivered to him 7 pag~ 40 } A. He asked for it. He is the husband of Mrs.

Grace Pegues, who was the niece of l\fr. James C. Core. He took the envelope a.t that time. The firm or Old & Brockenbrough was dissolved, and the note wa.s turned over to him-the envelope.

Q. Did he do that as a representative of Miss Duffy, or because he was related to Miss Duffy, or why would you manually give it to him?

A. I turned it over to liim. When the firm dissolved. all the papers were taken out of the box, and I thought he 'was the logical one to turn it over to, and I turned it over to him.

Q. What he did with it yon don't knowT A. He put it in his lock box, my recollection is. He can

testify to that. Q. Mr. Old, the authority over this note, or the foreclosure

of the security, was continuously in the administrators from its maturitv from August 15, 1923, at least, until the socalled final"' account was filed in 1926 T

A. Yes.


W·illiam W. Old, Jr • .

Q. And. at any time the administrators, Mr. Pegues and yourself, could have foreclosed the security?

·A. \Ve could have, but Mr. Whitehurst asked not to do it. He guaranteed the note, and did not want to involve his

son-in-law. page 41 } Q. You" say the reason the secmrity was not

foreclosed was at the request of Mr. Whitehurst t A. Yes. Q. Who was present at any time when he made snch a

requestf A. I don't know whether anybody was present, or not. Q. Can you recall anybody who ever heard such a request

other than, as you say, yourself? A. When Mr. Wbitehnrst would come in my office on a

private matter, I would shut my door and talk to him privately. There was no need for anybody else to be there. He asked me not to tell ~nybody, so I kept my word.

Q. When Mr. W. L. Whitehurst died, he named you as one· of the executors of his estate Y

A. Yes. Q. And you originally qualified as executor, and then re-

signed Y · · A. That is rig·ht. . Q. During the period in which you were acting as execu

tor. did you ever present this instrument of guaranty to your co-executors f

A. }4:y recollection is that at the time of the appraising of the estate-notes of the estate-I mentioned the fact about this guaranty.

Q. I asked you whether you ever showed them page 42} the guarantyY

A. I don't know whether I did or not.

RE-DIRECT EXAMINATION.

By Mr. Taylor: Q·. Do you recall when you resigned as one of the execu ...

tors of the estate of W. L. Whitehurst, A. ,July, 1932, I think it was. Q. And his death was approximately when Y Do you re-

call? · .A. ·w11at is tha.t? Q. When did Mr. Whitehurst die Y A. I think it was April 5, 1931. Q. Was a receipt taken at the time this note was plac.ed

Frank P~ Whitehurt?t, et al., v. Marie Core Duffy 39

Willia.m W. Ohl, Jr.

in the envelope and marked -with the name of Mis~ D-qffy, and put in the lock box of Old & Brockenbroug·h in the Citizens Bank of Norfolk 7

A. Yes.

(The receipt was received and marked m evidence as ''Plaintiff's Exhibit No. 6/')

Mr. Ashburn: Your Honor, I wish to object to the receipt upon the same gTound as to the trans£ ei· of the note. If one is admissible, a.11 · are admis1Dible, subject to the condition your Honor prescribed. I just want to save the point.

page 43 ~ By Mr. Taylor: Q. Whose signnh1re is that on there, Mr. OlcH.

Is it yours or Mr. Brockenbi~ough's7 A. That is :mine, Q. At that time you were in law partnership with Mr. E<l~

ward Brockenbrough Y A. Yes. Q, When was that partnership cr~ated t Do you recall f A. I could not tell vou that. Q. Was it prior to 'the year 1921? A. Yes. Q. Some time prior thereto 7 A, What is that? Q. Some time prior thereto T A. Oh, yes! Mr, ·walker died, and my father and I were

pa.rtners-William W. Old and =Son. Then we took Mr, B;rockenbrough in partnership with us, and then Mr. Webster was in partnership with us. Then in 1917 Mr. Webster went back into the United States Navy, and the law firm was Old & Brockenbrough. ·

Q. From the time :M:r. ,vebster went back into the United States Navy in 1917, until when wa.s the· firm of Old & Brock.enbrough in existence f.

. A. Until the latter part of '32 or the first pa.rt page 44 ~ of 1933. - · . Q. That w~s a law partnership consisting of you:ni!elf and Edward Brocke:nbrougb?

A. Yes~ sir ... · Q. Which continued from 1917 until 19331 A~ Until the latter part of 1932, I think. Q, Mr. Old, when were you requested to foreclose the de~d


William W. Old, Jr.

of trust, which was senior in lien to the deed of trust of November 24, 1922?

A. The property was sold at public auction by me, as trustee, on February 14, 1941. The property was sold upon the request of the owner of the notes, l\fr. J. R. Legum of the Citv of Baltimore.

Q. How was that request communicated to you? A. Mr. Brockenbrqugb, representing Mr. Legum, advised

me to sell. Q. ·when was the other property foreclosed, Mr. Old? A. The property on Ainswortl1 Street, or 18th Street, was

sold at public auction on August 16, 1941, upon the req11:est of Mollie A. Core, who was the holder of the note.

The Court: Is there any dispute, Mr. Ashburn, that the sale of these properties, under these former deeds of. trust, brought an insufficient amount to pay anything on this note and guaranty Y

Mr. Ashburn: Your Honor, we know )1.0thing page 45 ~ about that. I suppose we have to accept the state

ment made by the trustee. We ar~ not prepared to contest that.

1\fr. r:J;aylor: It is stipulated tha.t the foreclosure of the properties conveyed by the deed of trust of ·November 24, 1922, under deed of senior liens thereof, did not bring sufficient moneys to pay anything on account of the indebtedness secmred by the deed of trust of November 24, 1922, from C. R. Wliite and Annice ,J. White, his wife, to William W. Old, ,Jr., trustee, securing note of $2,000 mentioned in same Qeed of trust, and being· plaintiff's Exl1ibit No. 2 in these proceedings.

A Juror: How much did that property bring with all of the mortgages on it 1

By the Court: Q. How much money was applied to the first and second

mortgages? A. On tl1e sale of the property a.t Glenwood, after pay

ment of delinquent taxes, the- sum of $2,212.,03 was received, as shown by my report duly filed and approved by the Court. . The property on 18th Street, or Ainsworth Street, was sold for $1,500, subject to delinquent taxes amountin~ to

$1,014.27. There was a credit on the principal page 46 ~ of tlle note of $1:413.43, a.s shown by my report

duly filed and a pp roved. -

Frank P. Whitehurst, et al., v. :M:arie Core Duffy 41'

William W. Old, Jr.

RE-CROSS EXAIDNATION.

By Mr. Ashburn : Q. Mr. Old, when you signed this receipt for interest, dated

April 8, 1926, you had no authority from Marie Core Duffy, nor anyone authorized to act for her, to give a receipt for interest? ··

A. _Interest was paid to her. Q. How old was she then? A. It was paid to her gua.rdian upon a proceeding brought

in court afterwards. Q. Then the guardian's receipt was what was n~cessary! A. Yes. Q. You say her guardian got that interest? A. Yes. Q. But you signed the receipt for it! A. I signed the receipt and put it on my book to the credit

of Marie Core Duffy, and after he qualified as such guardian, the monev was sent to him.

Q. Mr."' Old, have you ever received from Miss Duffy an acceptance of that original note for $2,000 made by C; R. White in 1922Y

A. Do you mean from her, personally 7 page 47 } Q. Yes, sir.

A. No, I have not. Q. Did you ever receive any affirmation from anyone au

thorized to act for her since she reached maturity!

· Mr. Tavlor: If your Honor please, I submit this is not material..,·

The Court: It is very material in a case of this kind, I think.

Mr. Taylor: Go ahead. ! , ~ !

A. After she became of age, Mr. Hume Taylor represented her.

Bv Mr. Ashburn: "Q. He represented her f A. Yes. ·

0

•z Supre.we Court of Appeal$ Qf Virginia

DR. WILLIAM C. DUFFY, ealled as a witness on behalf Qf the plaintiff, testified as fol-lo'W's: ·

Examined by Mr. 'l'aylor: Q. What is your :name Y A. William Core Duffy. Q. Are you the father of Marie Core Du~, the plaintiff

hereY A. I am.

Q. Doctor Duffy, did you qualify as guardian, in page 48 ~ the State of Oonneetieut, Qf the estate of the in-

fant, Marie Core DuffyY A. Yes. Q. On what date did you qualify! A. February 11, 1933.

Mr. Taylor: I desire to introduce into evidence the certificate, showing the qualification of William C. Duffy as guardian of Marie Core Duffy, and ask that it be marked "Plaintiff's Exhibit No. 7."

(Received and marked as ''Plaintiff's Exhibit No. 7.")

Q. Thereafter was the interest which accrued on the in-debtedness due Miss Duffy by C. L. White paid to you Y

A. Yes. Q. To what date was that interest pafd Y A. To 'W'hat date? Q. Yes. A. To February 15, 1935, I believe. Q. After you qualified, Doctor, were the notes, which have

been introduced in evidence and the guaranty, delivered to youY

A. Yes. Q. As guardian of Marie Core Duffy? A. Yes.

page 49} CROSS EXAMINATION.

Bv Mr. Ashburn: "'Q. Doctor, as I understand it, she "is your daughter, is

she not? A. Yes. • Q. And you qualified as her guardian in 1933 Y A. Yes.

Frank f,. Wliite:Jiur.i:;t, et al!, v. :LVlarie C~n;~ l)uffy 43

Dr . .JVilliarn, C~ l}'lf,ff y.

. Q. ¥4 you !3aY. ypu then :reoetv~cl t}lis origin~J 110t~, which 1s Plamtt:ff's Exhibit No. 2¥

-A. Yes. 1

Q. You. received the instrument of guaranty likewj.seT A. Yes, I received that also. Q. -Pid you ·r~c~ive the re:q.ewal npte 9f $2,000!

. ·_!. Yes.; l clo~ 't think I received ~11 at the sa-w~ time, Qtit l received them.

Q! Tht renewal note wa~ ijpp~re11tly m&de i:q. 193l, or two years .. b~fore you qualifieq.1 . · · A.. Yes.

Q. So, presumably, you would have. receivrg. th~p:i ~ll ~t qn~ ttwe 1 Do you ren)e!llbe.r w}letlwr YOll ~liq. Qf 119t 1 - -- ~- l .dig ·~wt~ ~

Q. In what order did they come to. you! A~ I @n't ~ay ~~~Qtly. lt i~ l}rolm.bly a rp.att~r pf r~cox-d.

I know I receiy~q th~ g11arauty l~~t. of ijll.. · ·, _ . . Q. You recei.vecl th~ gqa:i:a:nty Jast of all? ,. Have pi:J.g~ 5.0 ~ you a,ny record Qf wheii you received th~s~, or the

order in whic4 ygu· ·rec~iv(3d tllem?. . · · · .4. Nq, !_can't ~ay tlmt I hav~. . · .. · . Q. What is your reeoU~p.tjon as "to. hpw long ~fter yQU r@~

e_eived the original note al}_d n~n~w~l note tlmt. th.e gu~i:a:g.ty ca~e tq ypuT. _ .. _. A. I n~ceivea it personally fro;n)\fr. Pegu.es. · l can't t~ll vou the exact-date.· It was a.matter of two or three vea.rs . • ,. Q. It was two or. three ye~rs p~tweep the d~Uve~y 9£ the notes. to you as guardian and_ the .delivery of the instrnID:eµt of guaranty to yo-µ· as guardian 7. _.. . .. .

A. l WQ1Jlcl ·11~t_ like·_ to ·say· PQ!:?itiv~lY~ Mr.. Pegties prQbably has a note. J thh* l. g;ive him Jl reoeipt.

Q. Until this instrument of guarantv came to you l~st in ,;n;qer, did yo-q knqw of its l?xiat~n~e 1 ., - ..

A, y~~. Q~ From wl1om? A~ Jfrom Mr~ Old ancl ¥r. Pegu~i:;, and I thjnl~ from :my

mother originally. · Q. Miss Pt1ffy J)ecarrie tw~ntv-one ye~ir~ of ~ge wben? ~~ A year ag0-=th~ 2Ptll qr J u11e, l9.4i, Q So that ~hese. nqte~· wen~ in yq11r pQ~~~~~jqp. 1:1.nd unclei1

your control for e1g·ht ye~r~ Y A. I am not sure. I would not like to b~ quoted

l)age 51 ~ on those cl11t~!3: 'J'pey w~r~ um:lQtJbtedJy givf3Ii receipts for, and l wo1-1lcl ra.t:J.wi; not trµst ·: piy

memory. i


Dr. ;William C. Duff 11.

Q. Tl1e guaranty was probably in your possession for ap-proximately five years or six years¥

A. From the present date Y Q. Yes ... A. I think probably so.

. Q. During that time did you, as guardian, request the foreclosure of the security?

Mr. Taylor: If your Honor please, I object. Well, I will take it baek; I think it fa material.

Bv Mr. Ashburn: • Q. You may ·answer it, Doctor Duffy: Did you, during

your period as guardian, request the foreclosure of this security¥

.l\ .. Well, I first investigated the security, and we were considering requesting foreclosure, I am sure.

Q. You did not consider it for eig·ht years, did you T A. No, but for several. But, in the meantime, the owners

of the prior notes instituted foreclosure. Q. Did you, as guardian, ever request the trustee in the

deed of trust to foreclose this securitv Y A. I am not sure. I know we discussed it.

Q. Did you, as guardian, ever make demand on page 52 ~ the executors of the W. L. Wl1itehurst estate as

to the guaranty? A. Well, verbally, I ,think yes. Q. To whom? A. Well, Mr. Pegues. Q. You are confused: Doctor. You are thinking of the

administrators of ihe James C. Core estate Y A. I see. Q. My question is: Did you ever make demand on the

executors of the vV. L. Whitehurst estate? W. L. Whitehurst is the man who was supposed to have made the guaranty. Did you file any claim, or make demand in any form during your guardianship,

A. Well, two or three years ago 1\fr. Paul ·webb, the attorney in New Haven, and I came down and saw Mr. Brockenb-rough and presented the matt.er to him.

Q. Yon presented the ma.tter to him? A. Yes. Q. Do yon remember when that. wast A. I I1a ve the date in my pocket. Q .. You may refer to it.


]farie Core Duffy •

.1\.. It was the summer of 1938. Q. The summer of 1938? A. Yes. I am not sure of the month. It may have ooen

September ; it may ha:ve been that late. Q. Did you have the guaranty at that time?

page 53 } A. Did we have it with us? Q. Yes.

A. I am not cert;1..in, from memory. I think Mr .. Webb did have it., and showed it to Mr. Brockenbrough.

Q. You are not pqsitive 7 A. Well, I am pretty certain of it. I am not absolutely

positive.

MARIE CORE DUFFY, the plaintiff, having been first duly sworn, testified as follows:

E·xamined by Mr. Taylor: Q. Your name is Marie Core Duffy, and you are the plain

tiff in this action T .A. Yes. Q. After you became twenty-one years of age, did you au-

thorize this action to be brought 7 .,A... Yes, I did. Q. When did you become twenty-one years of age? A. June 25, 1941. Q. Subsequent to becoming~ twenty-one years of age, did

you, on ·my advice, sign this letter.Y A. Yes.

(The letter was received and marked "Plaintiff's Exhibit No.8.")

page 54} Mr. Taylor: It is stipulated by counsel that the original letter of September 22, 1941, signed by

Marie Core Duffy, and marked ''Plaintiff's Exhibit No. 8," was mailed to C. R. ,Vhite, and received by him on or about the date of the said letter.

CROSS E.XAMINATION ..

Bv Mr. Ashburn: ·Q. Miss Duffy, is Mr. H. H. Pegues, who was co-adminis·

trator with Mr. W. W. Old of your uncle's estate, related to yon by blood or marriage?

fg ~µpr~me Oimrt of Appe~l~ 9f Vifginin

ll(ft,iri~ Gar.e "J)u-Jf '!b

A. By marriage. Q. Be is a member of the family l>y :!D.arri~~~1 A~.·r~~:

By Mr. Taylor: Q. Miss Duffy, have you ~ver receive~ f}:nytping on. ac

epµJlt .of. thi~ $2,~00, Qr apytli~g gp. acequ:q.t 0.f m.te.re~t s1~ce. February 15, l~~fiy' . . .

A. •. No.

· Mr.· Taylor: .'We re.st, your Honor.

(Thereupon, Court fl-M coµmiel ~~tif~iJ to the Judge's of-fic;~, nnd th~ f 0Jl9wiµg og.e-q.rr~fl : ) · ·

.)

page 55. ~ Mr ... A~hb~~rn: lf you!' HQJIOr please, I. wi.sli !o r - ' move to strike the testirno:q.y of {he, pl~111-t1ff · 1q

tpis ca~se, on ~everal qiffer.~µt J~gal ~oypg~, whic4 I ·hacl best state in their order. .. · · · ··

First; I ~ontenq. th~t 't;hiij i~ ?-n. aGti9µ pn a:q. ·instrument 9f guaranty supp9sedly exeo-qt~µ py . 11 person now deceasecl, so that if anv judgment be obtained, it would 'J:>~ ,igai:q.st the estate· of t4;t ·4ec.eas~4, p~rsoIJ,ally, &µd the aption is i:q.stituted against his personal representatives: We co~tend that ~.ectiqµ p209 pf t4e Yirginia On4e ~pplies, wbich SlJ.YS tli~t no judgment can )e ent~r~g P:PP.P. th~ »_n~orrpl;)orateq testi:mony of an adyerse or interested party;· and that :Iv.Ir~ Oki is an interested party within the definition of that section. So tlw questimi of Pis ipter~st gpp~ :r,.«;>t gp.Jy to his crecljl:>ility, .but to the fundamental right to obt.a.in a· judgment 1.1po:q 4ia uncorroborated testimony. There is no testimony here other tli~n bi~ t:hEJ.t ~:JlY in$tF"JIDWnt of gµanmt'Y was aver e~~cnt~d: Tlier~ is no t~stimQI!f. Pt4~f thfl.ll hi~ th~t ther~ was any request by tha g~ijrantor for this very prolongeq. extep.sip11, if J rpay ~H-ll it~~ ~xt~n~iori: l11- r~ality 'it was an indµlgen~~ as to the primary debtor. So th~ pl~hltjff'~ whQle ~$~ is founded upon the testimony of. Mr.· Old, without which she

would have no ease. page 56 ~ The Col1rt =·· i ·w1.11 overrule that motion.

Mr. Ashburn : I wish to note ~!1: exceptip:n. Now, :qiy ~e~p:q<;l. position. is that th~ ~t~tute pf limitations

~liij ru.~ p,g~jn~t t~~ gu.n-ranty, i~salf! R~fei:ene~ to the i:q.~trµ:ment of g·uaranty will disclose to y,:n.1-r ~QPQf llrnt it W~ts ll.

Frank.B. ."\Vnitehurst;,etiitl.,-,v. Ma-rle Core-T~nffy 47'.

T¥1Uia11i'··Wi. -Didi; -Jt: ·

gnaJtanty. for. payment= of a··note:.tlJat ma-tured in· 1923, ·and·" as soon as the note was not paid at maturity, a- ;cause· of ac~ tion existed.

The Court: Does· not the ·guaranty :on its fac~· show\thkt there would be no ·cause of action- in favor 0£ the· plaintiff here until1 after. this property was foreclosed f _ _ ~ . .

Mr. A~hbnrn :- . r: contend it -does not,·vour Honor.- My.\' position.about that is.that the fareelosure of 'the propei·ty·was essentiat ·-oul~- to determine the ·damages· for breach ·of -the.': inst:r..nment of'.guaranty; so, of course;-the·.question presented· is when.the,cause of· action· accrued OIJ. ~he guaranty.' . .

Tlie Court: I am rather inclined to take the view tha.t··· the cause of action would not arise until the deed of trust· has been fore~losed. That is debatable, I think=... _

MJ?.: .Ashlmr.n-:-. Unqor your· Hon_or'~ ·theory, •it ·made no difference how long they postponed sale of the ~security; that

the cause of action·,did .. not taccrue ··until· the 1·sa:le page 57 ~ was actually had 1

Tho I Conrt: . Yes. · · Mr. Ashburn: Your Honor, I believe those are the grounds·'

for the motion. I don't think of any other grounds that ·can be successfully .urged.. . . . . .

The Court: I overrule' the motion to strike the testimony, on:the grounds-statt~d·by.counsel for·the··defendant.·

Mr. .. Ashburn:, . I wish .fo note- an exception.

(Court and counsel returned to the courtroom•in ·the··pres-·· ence of the jury, and the following occurred:)

WILLIAM,,W •. OLii, JR- .. . . ' ' being recalled, testified as-follows·:

Examined bv Mr. Ashburn: Q. Mr~ Oicl,1 were you :-the :rrust~e: of- the·-two ·deed.s qf

trust which were foreclosed in 1941 to determine whether· or not. the ·real J>J;Operty of 'o.( R.~ White would' yield1 any1 sums to apply. as a .credit on this note? .

A. Yes·.. . <i. Can you istate,. or- clo · you have- any- records from ·which

you.ca.n -state, the-date&'.of-those-,deeds -of-·trUs·t··antl·the obligations .secur~d .under- tpem-?-,:

A .. -I ha¥e- iu .my, p0S's0ssion a ·d11plicate · c0:p:t :of·:~ page 58 ~ the deed of trust of November 24, 1922.' That is

the copy recorded in the Clerk's Office of the Cir-


William W. Old, Jr.

cuit Court of Norfolk County, Virginia. Do you want the debts secured T

Q. Yes. A .. The debts secured, a note for $2,000-Q. I am not talking about the deed of trust evidencing

and securing the $2,000 note. I am talking· about the prior deeds of trust ~which you foreclosed last year.

A. Mr. Brockenbrough had t~e original deed of trust on the property of the Glenwood Annex, dated August 15, 1921, securing the sum of $6,000. 1\fr. Pegues had the deed of trust -the first mortgage on the property on 18th Street, or Ainsworth.

By Mr. Taylor: Q. "\Vhat was the date of tha.t one on Ainsworth Street¥ A. August 15, 1921. Q. What date was it foreclosed? A. On August 16, 1941. Q. And when was the note mentioned in there; when was

it payable?

Mr. Ashburn: Mr. Taylor, it says "two notes."

A. This is the deed of trust on the property: Niue lots in Block No. 8 on the plat of Glenwood Avenue, securing two notes, one for $3,500 and the other for $2,500, payable two years after date. ·

page 59 r Ry Mr. Taylor: Q. And two years after is when?

A. Two years after elate was August 15, 1923. Q. And forecfosure was on August 16, 1941? A. '41. · Q. Can you give us those dates as to the other deed of

trustf A. The other deed of trust is da.ted on August 15th, 1921.

That is the property on Ainsworth Street, or 18th Street, to secure notes for $4,650, payable tl1ree years after date.

Q. "\¥hen was the forecolsure on that property? A.. I made a mistake on the other. The one before I made

a miRtake on. The Glenwood Annex propertv was foreclosed on February 14, 1941, and this property on August 16, 1941.

Frank P. Whitehurst, et al., v. :M:arie Core Duffy 49

Frank P. Whitehurst.

By Mr .. Ashburn: Q. l\fr. Old, you drew this instrument of guarantv? A. Yes. .. Q. You were the author of the language here · contained Y A. Yes, I drew it. Q. How much was due after the foreclosure of the deeds

~~~, .

Mr. Taylor: Due on what?

By Mr. Ashburn: Q. How much was due on the instrument which

page 60 }- purports to be the guaranty?

Mr. Taylor: If your Honor please, it has been admitted between us that there is nothing on account of the foreclosures applicable to this note. I objeet to the question.

The Court : vY ould this evidence be admissible m view of the ~ti pula tion between parties to this action Y I understood tho stipulation to be tha.t nothing had been paid on the principal of the $2,000 note, and nothing had been paid on the interest of same since February 15, 1935.

Mr. Ashburn: That was the stipulation, your Honor. The Court: That is a legal question, I think. Mr. Ashburn: Very well, sir. That is all.

· FRANK P. WHITEHURST, one of tho defendants, having been first duly sworn, testified as -follows :

}Jxamined hv Mr. Ashburn: Q. You are Mr. Frank P. Whitehurst? A. Yes, sir. Q. Mr. Whitehurst, are you one of the executors of the

estate of W. L. Whitehurst? page 61 ~ A. I am.

Q. He was your father? A. Yes. Q. 1\'bo is the other executor ·at this time! A. My brother, Grayson M:. Whitehurst. Q. Are you and your brother Grayson the only executors

at this time? A. Yes. Q. ·who were the executors originally named by the will Y

5~ SJl:Pf ~IIJ.!3 Qotgt . of Appe~JE! of_ Vi:rgiwa~i

Prr~ni~ ,~. Tf.hi~~hwrst .. , .

A .. Mr. W.W. Old, myself, and my brother Gr~yson. Q. Mr. Old tesigne~l som~ time. aft.er his qualifi~ationt .. A. Yes. · · · Q. As ~xecutor,

1 was any claiip:, on thi~. inst;r,ument ·of ;guar

anty- 'made against 'the .'estate mthin five, .year~ after. yoµr q~ft~i!fc~ti,qnJ

Mr. Taylor: If your Honor please, is that material under· your rulin,g Y · The Court: Do you object to iU · ·

Mr. Taylor: Yes, sir. The Court: Why would that be material2 M1!. Ashburn¥· :M1.1: Ashhtirn: . Uri.~~r .YQUr .HQiH?r's. ruling it would not,

but if the legal question as to llie statute of limitations should I be reyerseg., it _wpuld .be .. materia1, and ,we ,wotJ].d

page . 62- ~ h~ve to come back and try th~t ·.isst;te agai,n to , · · · show· there w~s no ·demand, m.89e' in five years. The Court: I ·will· ·sustain 1the objection, .. and, .will: ·allo:w·

you to state in the record wb~t his . answer wo.uld be. · Mr~ Ashburn: The answer of the witness would ·be to.·

prove 'that, no claini ,on this' instrument of g~a.r~~ty in, favor. of 'Miss Duffy, or ai;iyon~. in pritj.ty; with. her; was made: against th~: eRtate of Wi L._ Whitehurst either five .years af-· ter his: death, or !"~thin :fiv~. ye~s o~ his qu~f;i.cation as p~~sonal representa~ve ..

By Mr. Ashburn:, . Q~ Mr. Whitehm~st, ·you kn~~ nothi;ng, ~s. to, this in§tru-

ment of guarantyf · A. No, sir. Q. You never heard of the matter prloi: to your father's ..

death, or subsequent, to hif ,d(l~tp exc~pt throt:tgh· the parties asserting· the cause of action 7 · ·

A. I never heard of ;t prior to my father,'s · d~~th~ .. Mr. Old;· in: aii· offhand wavt ha<;l .mai.1tio:µe~ .on some occasions after he had resigned tbat there wa.s such a guaranty in existence. He had intima:ted ,tb~re was such. :a ,guaranty in existence. I have never seen it except today.

Mr. Ashburn : That is ·all,;. Mr. 'Tiaylor

1: No., qtiestio~~- . . . .. .

Frank P ... Whitehurst, et al., v. lv[a-rie Core Duffy 51

page 63} GRAYSON M. vV.HITEHURST, one of the defendants, having been nrst duly sworn,

testified as follows:

Examined by Mr. Ashburn: Q. You are co-executor with your brother Frank of your

father's estate? A. Yes, sir. Q. Mr. Whitehurst, did you prior to your father's death

have any knowledge of this instrument of guaranty 1 A. iNo, sir. Q. And from what source after his death have you received

your only information with respect to it¥ A. Well, Mr. Old informed us that there was such a guar

anty in existence after Ile resigned as an executor of my father's estate. We asked him to produce it, and he never did produce it.

Q. You have no additional knowledge on the subject other than what ·has been produced in court here today Y .

A. No. I have never s~en the document in my life.

Mr. Ashburn: That is all. Mr. Taylor: No questions.

Mr. Ashburn: We hav:e no other testimony, your Honor.

page 64 ~ INSTRUCTIONS.

Mr. Ashburn: I except to the action of the Court in granting any instructions for the plaintiff, upon the grounds stated in the motion to strike the testimony, for the reason that under the facts established in this case the plaintiff is not entitled to a recovery, as a matter of law.

Plaintiff's Instruction No. 1 (granted):

"The Court instructs the jury that if you believe from the evidence that Marie Core Duffy is the holder of the guaranty introduced in evidence, you shall find for the plaintiff in the sum of $2,000, with legal interest from February 15, 1935.''

Defendant's Instruction No.- 1 (refused) :

"The Court instructs the jury that they should not find for the plaintiff in this cause upon the uncorroborated tes-

52 Supreme Court of .Appeals of Virginia·

timony of an adverse or interested party. If the jury believe that all of the witnesses, who have testified for the plaintiff in this cause as to the material facts, are· adverse or interested parties, then they should find for the defendant.''

page 65 ~ Defendant's Instruction No. 2 (refused):

'' The ·Court instructs the jury. that if the cau!;;e of action on the instrument of guaranty accrued more than five years prior to the institution of this action, then the action is barred by the statute of limitations, and they should find for the defendants.''

Defendant's Instruct-ion No. 3 (refu-sed):

''The Court instructs the jury that the plaintiff's right of action could not be indefinitely postponed by failure to foreclose the deeds of trust; if those, in whose custody the note was, were in position to require foreclosure within a reasonable time after maturity of the note, and failed to do so, then their failure is attributable to the plaintiff, and the jury should find for the defendants.''

page 66 ~ JUDGE'S CERTIFICATE.

I, 0. L. Shackleford, Judge of the Court of Law and Chancery of the City of \Norfolk, Virginia, who presided over the foreg·oing trial of Marie Core Duffy v. Frank P. Whitehurst,

' et al., in said court, at Norfolk, Virginia, on June 8, 1942, do certify that the foregoing is a true and correct copy and report of all the evidence, motions, and all other instruments of the said trial of the said cause, with the objections a·nd .exceptions of the respective parties as therein set forth .

.As to the original exhibits introduced in evidence, as shown by the foregoing report, which have been initi~led by me for the purpose of identification, it is agreed by the plaintiff and the defendants that they shall be transmitted to the Supr~me Court of Appeals as a part of the record in this cause in lieu of certifying to the Court copies of said exhibits.

And I further certify that after judgment was entered on the 8th day of June, 1942, the defendants by their attorney on the 12th day of June, 1942, and at the s~,me term of this court, moved the court to set aside the judgment and award them a new trial, upon the grpund that enforcement of the instrument of guaranty upori which thi~ action was bro1..1ght is barred by the statutes of limitation applicable to such ac-

Frank P. WhitehUPst, et al., v. Marie 00P~: Duffy j3

tions, which motion was continued, and was finally overnµed by the court on the 30th day of July, 1942, after consideration of the authorities s"Q.bmitted by counsel for the respective parties.

And I further certify that the attorney for the page 67 }. plaintiff had reasonable no~ice, in writing, given

by c9unsel for the d~f endants, of the time ~nd place when the foregoi.ng report of the testimony, exhibits, exceptions and other- inciqents of t~e trial would be ten<;l.ered and presented to the undersign~d for signature and ~uthenti-: cation. · -

Given under my hand this 7th day of August, 1942, within sixty pays after the ent~y of the final ~1:1-dgm,ent in said cause.

page 68 r

0. L. SHACKLEFORD, Judge of the Court of Law and Chanc~ry

9f the City of Norfolk, Virginia.

A copy teste :

0. L. @HAGKLEFORD, Judge of the ,Court of Law and Chancery

of the Oity of ~ qi:folk, Virginia.

CLERK'S CERTIFICATE.

I, William L. Prieur, Jr., Clerk of the Court of Law and Chancery of the City of Norfolk, Virginia, do certify that' the foregoing report of the testimony, exhibits and other incidents of the trial of the cause of Marie Core Duffy v. Frank P. Whitehurst, et al., together with the original exhibits therein ref erred to, all of which have been duly authenticated by the Judge of said Court, were lodged and filed with me as Clerk of the said Court on the 7th day of August, 1942.

W. L. PRIEUR, JR., Clerk of the Court of Law and Chancery

of the City of Norfolk, Virginia.

By: H. L. BULLOCK, D. C.

page 69 ~ I, W. L. Prieur, Jr., Clerk of the said Court, do hereby certify that a bond has been executed by

the defendants in the penalty of $3,000.00, conditioned as required for a supersedeas in Section 6351 of the Code of Virginia.

S4 Supreme Court cf Appeals of Virginia

Virginia:

In the Clerk's Office of the Court of Law and Chancery of the City of Norfolk.

I, W. L. Prieur, Jr., Clerk of the Court of Law and Chancery of the City of :Norfolk, do hereby certify that the foregoing and annexed is a true transcript of the record in the suit of Marie Core Duffy, plaintiff, v. Frank P. Whitehurst and Grayson M. Whitehurst, Ex.ecutors of the Estate of W. L. Whitehurst, Deceased, defendants, lately pending in said Court.

I further certify that the said copy was not made up and completed until the plaintiff had had due notice of the making of same, and the intention of the defendants to take an appeal therein.

Given under my hand this 12th day of August, 1942.

W. L. PRIEUR, JR., Clerk.

Fee for this record $20.25.

A Copy-Teste :

M. B. WATTS, C. ·C.

INDEX TO RECORD . Page Petition for Writ of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Notice of Motion for Judgment. . . . . . . . . . . . . . . . . . . . . . . . 14 Plea of General Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Spee.ial Pleas Nos. 1 to 6, Inclusive ......... ~ . . . . . . . . . . 17 Amended Replications to Special Pleas Nos. 3, 4 and 6 .. 21 Judgment, June 8, 1942 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Motion to Set A.side Judgment . . . . . . . . . . . . . . . . . . . . . . . . 24 Judgment, July 29, 1942,-Complained of. . . . . . . . . . . . . . 24 Stenographic Report of Testimony, &c. . . . . . . . . . . . . . . . . 25

William W. Old, Jr. . ......................... 26, 47 Dr. William C. Duffy ......................... ~ . . 42 Marie Core Duffy ............................ ~ . . . . 45 Frank P. Whitehurst ............................ 49' Grayson M. Whitehurst .......................... 51

Motion to Strike Plaintiff's Testimony. ~ . . . . . . . . . . . . . . . 46 Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Judge's Certificate . . . ............................... 52 Clerk's Certificates ............................... 53, 54

Record No. 2685

Documents

Transcript of Record No. 2685