John M. Hendry et al., Appellants, vs. Samuel Benlisa, Administrator de bonis non of Moses E. Levy, deceased, Appellee, 37 Fla. 609

Mabry, C. J.: David L. Yulee, as administrator of the estate of' Moses E. Levy, deceased, filed a bill against appellants, John M. Hendry, Archibald and Norman Campbell, for the purpose of cancelling a written agreement for the sale-of several sections of land situated in Alachua county, entered into by and between the decedent, Levy, and appellants.

The written contract to convey the land was made in March, 1854, and Levy agreed thereby to sell the sections of land described for seven thousand dollars in three installments, evidenced by promissory notes executed by the purchasers, and due respectively January first-, 1855, January first, 1856, and January first, 1857. The agreement was to convey the lands by warranty deed when the last payment of the notes was made. The material parts of the bill, as amended, allege the contract of sale from Moses E. Levy to the purchasers, Hendry and the Campbells, the death of the former, and the appointment of David L.

Yulee as his administrator; that the defendants wholly failed to pay their said notes when they became due, and that Yulee as administrator brought suit in Columbia county on the notes and obtained judgment against the Campbells. The date of the judgment was in the year 1863, during the late Civil War.

It is further alleged that the judgment record and the notes were burned in the court house of Co lumbia county in the year 1866, and that no part of the judgment or notes had ever been paid either to .Levy in his life-time, or his adminstrator since, and that said defendants were insolvent, without means out of which to collect the purchase money agreed to be paid by them for the lands.

That on account of the failure of defendants to pay the purchase money for the lands, they had forfeited all rights or claim under the contract of purchase, and that complainant was willing and offered to cancel the said judgment obtained if the court should so direct; that defendants had never been in possession of the lands under the contract, but Levy and his representatives had, at all times since the sale, been in possession, paid taxes and exercised ownership, and that the lands since the contract of sale had greatly increased in value, and were then worth greatly more than when the agreement to sell was made; that all the other lands belonging to the estate had been sold under order of court for division among the heirs and the lands in question were held by the administrator under an order of court to pay a balance due certain of the heirs on account of their distributive portions, and it was important that the estate be closed up at an early day.

It is also alleged on information that defendant Hendry claimed to have paid certain paper bills or notes, known as Confederate currency on the the said judgment to the Clerk of the Circuit Court of Columbia county, which, if true, was not authorized or consented to by complainant, or any person for him, and such pretended payment, if made, was never received or recognized by him; and further, that said Confederate currency was not such, money as he was authorized to receive, or could legally and properly receive, as administrator in the payment of said debt.

The answer of defendant admits the death of Levy and grant of letters of administration on his estate to David L. Yulee, and also the written agreement of sale of certain lands as alleged in the bill, except as to the description of the lands given, and as to this the answer sets out what is alleged to be the correct description of the lands agreed to be conveyed by Levy upon the judgment of the notes given for the purchase money of the same.- It is alleged that upon the execution of the contract defendants went into possession of the lands, and have held possession ever since.

It is admitted that suit was instituted on the notes and judgment obtained thereon in Columbia county in the year 1863, but it is alleged that defendants paid the judgment in full on the 2fith day of Jan.uary, 1864, and had the same fully discharged and satisfied. Defendants further answered that Moses E. Levy died before either note became due, and when they became due defendants were informed that Levy left a will, and there existed at the time grave doubts as to whether David L.

Yulee was authorized to receive payment of the notes and execute a deed, and for that reason tender of payment was not made; that when the judgment was obtained on the notes, the currency of the country was Confederate money, and when levy was about to be made, defendants offered to turn over the lands for the judgment, or pay the same in Confederate money, and that complainant refused to take the lands, but agreed to accept Confederate money; that defendants sold a stock of cattle for Confederate money, and with it paid the judgment in full to James Banks, the attorney of record of complainant, and the money was deposited in the clei’k’s office in the registry of the court by order of said attorney, after taking out his fees and costs.

Defendants allege that they had paid the taxes on the lands, and complainant had not, and that in the year 1864, after the judgment was paid, they were informed that complainant refused to pay the taxes on the lands, and referred the tax collector to the defendants for payment. It is admitted that the court house and records in Columbia county were destroyed by fire, but it is alleged that the judgment was paid prior to that time.

Defendants also filed a cross-bill, in which they allege fully all the material facts set up in their answer, and pray for the affirmative relief of the specific execution of the written agreement to convey the lands. The answer to the cross-bill admits the allegations as to the agreement to sell the lands, and the judgment rendered in Columbia county in 1863.

The allegation as to possession of the lands by complainants in the cross-bill is denied, as well as all the other material allegations as to the agreement to accept Confederate money in payment of the judgment, or the authority of any one to accept the same for defendant. It is alleged that defendant could not, in the execution of his trust, accept Confederate money in payment of the purchase money for the lands, and that he did not insist on, or press the payment of the said judgment.

It is also alleged that complainants were barred by lapse of time and the staleness of their claim, as well as by the statute of limitations, from attempting a specific performance of the contract after so long a time. After the issues were made up, but before proof taken, David L. Yulee died, and Samuel Benlisa was appointed administrator de bonis non on the estate of Moses E. Levy, deceased, and was admitted as a party in the proceedings in the place of deceased administrator.

On final hearing the cross-bill was dismissed, and the contract for the sale of the lands was cancelled, on the allegations and proofs under the original bill. A material and controlling question on the appeal in this case relates to the alleged payment with Confederate money of the judgment obtained in Columbia county. If this payment was ineffective to discharge the debt, appellants were in great laches in not paying, or offering to pay, for the lands, as it is not shown, or attempted to be shown, that any other payment was made, or offered to be made, on the land notes.

It is alleged, and not denied, that appellants were insolvent, and had no effects out of which the purchase money could be made, and we think it is clear from the evidence that they were not in possession of the lands before the bill was filed against them. The lands were wild and unimproved, and there is no evidence of any actual possession on the part of appellants before suit was brought. Subsequent to the war some of the lands were sold for taxes, and parties other than appellants obtained possession under tax deeds, and the administrator sued for and recovered possession of the lands held under such deeds.

It is also shown that he paid taxes on the lands and had an agent to protect them from depredations. Appellants, it appears, paid ■some taxes on the lands and looked after them to some extent, but there was no possession or improvement of the lands on their part, and they have no status on this, account, as was the case in Tate vs. Pensacola, Gulf, Land & Development Co., decided at this term. The contract for the sale of the lands was made in. 1854, and it is alleged, and not denied, that the prop-, erty had greatly increased in value at the time the bill was filed.

On account of the long period of time since-the making of the contract of purchase, and the-changed condition of the property as to value, there-can be no abasis of any equity for a specific performance of the contract, unless the judgment on the notes- and the alleged payment with Confederate money changes the case. Knox vs. Spratt, 23 Fla. 64, 6 South. Rep. 924. In proof of the payment of the-judgment, appellants put in evidence a receipt as follows: “Lake City, Florida, Jan’y 25th, 1864.

State of Florida, ]_ Columbia Couuty. 1 Be it remembered that on this day, received into the-registry of this court the full amount of principal, interest and costs in a suit pending in said court, to-wit: David L. Yulee, administrator of Moses E. Levy, vs. John M. Hendry, Archibald Campbell and Norman Campbell, at the hands of John M. HeDdry. Witness my name and seal of office day and date above written. (Signed) Samuel R. Mattaie, Clerk C. C. C.

C.” It appears, both from the pleadings and proof, and. is conceded by counsel for appellants that the amount received by the clerk, and referred to in the receipt,, was in Confederate money, and the first contention is, that the payment of the amount due on the judgment to the clerk whs of itself a valid payment and satisfaction of the same. It is not contended that the administrator ever received the money from the clerk. The proof is clear that he never received it, and that he informed Hendry within three months after the payment to the clerk that he could not and would not accept it.

There is no showing that the administrator himself gave any directions to the clerk to receive the money. The authorities cited by counsel in support of the contention, that payment of itself to the clerk was a discharge of the judgment, sustain the view that the receipt of money due on a-judgment by an officer, having authority in his official capacity to accept it, will satisfy the debt. In the case of Governor vs. Read, 38 Ala. 252, where a payment to a clerk was held to be a discharge, he was authorized by statute to receive payment in money after the judgment was rendered; and so in the cases of Harvey vs.

Walden, 23 La. Ann. 162; Boyd vs. Sales, 39 Ga. 72, and Henly vs. Franklin, 3 Coldwell, 472, S. C. 91 Am. Dec. 296, where payments were made to sheriffs, they were authorized officers to receive payment. In the present case it is left in doubt whether any execution ever issued on the judgment in question, but however that may be, there was no payment to the sheriff, and we need not consider the effect of such a payment, if it had been made.

We find no statute existing at the time authorizing the clerk to receive payment of judgments, or to accept money as paid into the registry of the court on judgments, without a judicial order for that purpose, and our conclusion is that the clerk had no authority by virtue of his capacity as clerk to acoept the money and discharge the judgment. The allegation in both the cross-bill and answer of appellant is that the Confederate money was paid to the attorney of record of Levy’s administrator and deposited in • the clerk’s office in the registry of the court by order of said attorney.

It is now further-contended that the Confederate money was paid to the clerk under the direction of the attorney of record of the administrator, and that such attorney was authorized to satisfy the judgment. In reference 'to the right of an agent to receive paper currency issued by the Confederate government, the decisions have not- been harmonious.

No court since the war has held, so far as we know, that Confederate treasury notes were issued by lawful authority, but money has been recognized generally by the courts as a generic term, covering anything that by consent is made to represent property and pass as such in current business transactions, and that when a judgment or debt has been paid in Confederate money and accepted, the transaction must be regarded as settled, and can not be opened.

Several decisions go the extent that, if at the time and place of payment, Confederate money was generally received in business transactions, and was in fact the current money of the country, the agent’s authority to receive such money, in the absence of any directions to the contrary, may be presumed. This rule has- been applied, not only when the creditor and debtor wTere within the same State, but when the creditor resided in a State not a member of the Confederacy, and the debtor was within the Confederate lines. King vs. King, 37 Ga. 205; Westbrook vs. Davis, 48 Ga. 471; Rodgers vs.

Bass, 46 Texas, 505; Burford vs. Memphis Bulletin Co., 9 Heisk. 691; Pidgeon vs. Williams, 21 Gratt. 251; Hale vs. Wall, 22 Gratt. 424; Robinson vs. International Life Assurance Society, 42 N. Y. 54, S. C. 1 Am. Rep. 400; Glasgow vs. Lipse, 117 U. S. 327, 6 Sup. Ct. Rep. 757: Martin’s Admr. vs. United States, 2 T. B. Mon. 89, S. C. 15 Am. Dec. 129. Other decisions hold that the rule should not be applied where ‘the creditor was within the Federal lines, with communication between him and his agent in the Confederacy destroyed.

In such a case it has been held "that no implied authority to receive Confederate money existed, and that a payment to the agent or attorney, did not discharge the debt. Harper vs. Harvey, 4 W. Va. 539; Alley vs. Rogers, 19 Gratt. 366; Waterhouse, Pearl & Co. vs. Citizens’ Bank, 25 La. Ann. 77; Fretz vs. Stover, 22 Wall, 198. In the present case the receipt for the money, the record evidence of the payment made at the time of the transaction, does not disclose any agency of any attorney in connection with it.

The clerk who executed the receipts states as a witness that he received the money under the directions of James Banks as the •attorney, and his recollection was that Banks was the attorney of record, if signing the docket and having the direction and control of the case makes him an attorney of record. The witness had no recollection as to what lawyer or lawyers signed the praecipe for the writs when the suit was commenced.

He repeats that he took the money under the directions ■of Banks, whom he regarded as the attorney of record managing the case, and that after asking if it was right for him to receive the money, Banks said it was, and-that he governed- the case; that he (Banks) dictated the receipt, made the calculation, and after ■costs and fees were paid, the balance was left with the witness, in what Banks. called' the registry of the ■court.

Hendry testified that the money was paid into the registry of the court, as evidenced by the receipt, under the instructions of James Banks, attorney for the administrator, and that the attorney" was present and consented to the payment. On cross-examination, in answer to the question, to whom he paid the money, he said “the clerk was representing the sheriff at the time. He said the sheriff was out ■of town. Col. Banks was present, as I have stated, and the money was left in the clerk’s hands.” The testimony of Gfeorge R.

Fairbanks establishes the fact that he was the attorney of record' who instituted the suit for the administrator against appellants. He produced an original summons in the case, which had been left in his hands, with his name endorsed on it as sole attorney. It is true he did not obtain the judgment, and was absent when it was rendered, but it is evident from his testimoney that he was the attorney who originally commenced the suit.

The ■statute (Thompson’s Digest, p. 359, sec. 9) provides that “all moneys made upon executions in this State, shall be paid to the attorney of the party in who favor execution shall have issued. * * * And in any case when the name of more than one attorney shall appear upon the records of the court, the money shall be paid to the attorney who originally commenced the suit, or to him who made the original défense.” We think the testimony is not sufficient to overcome the answer to' the cross bill, and establish the fact that the money was paid to James Banks, as attorney for the administrator.

If he intended to receive the money it is strange that he did not accept it and execute a receipt for it in his own name. He died before the present suit was instituted, and his testimony could not be produced, but on the showing made, tlie most that can be affirmed is that he consented to, or directed the clerk to, receive the money. Knowing the fact that he was not the attorney who originally instituted the suit, it may have been his purpose not to receive the money himself, but have it deposited with the clerk for the administrator to accept.

If it be conceded that Banks was the attorney for the administrator when the judgment was obtained, we do not see that he had any authority, express or implied, to authorize the clerk to receive the money. The latter stood in no previous relation of agency to either Banks or the administrator, and was not authorized by law to receive the money. Dickson vs. Wright, 52 Miss. 585, S. C. 24 Am. Rep. 677. The decree dismissing the cross-bill must, in our judgment, be affirmed.

The failure of appellants to show any valid payment of the judgment leaves them, as before stated, in great laches in not complying with their contract of purchase. Aside from the fact that judgment was obtained on the notes, the court would not hesitate to cancel the contract. Under the circumstances of the case, and in view of the insolvency of appellants, as shown, we are of the opinion that the court was right in cancelling the contract. Appellants are in no condition to ask for a specific performance of the contract, and, in general, when a specific performance is denied, a rescission will be decreed.

Kirby vs. Harrison, 2 Ohio St. 326, S. C. 59 Am. Dec. 677. The complainant in the original bill offered to cancel the judgment, and the decree should have so directed, and to this extent it will be modified. The judgment record was burned in 1866, and has never been re-established, so far as is shown, but the decree in the present case should provide against any possible claim under the judgment. The decree is affirmed, with the modification indicated, and an order will be entered accordingly.