47 W. Va. 139 | W. Va. | 1899
J. W. Lynch and his wife, Agnes V., on the 27th day of October, 1879, conveyed, by deed of that date, to Sarah Boggess a tract of two hundred and thirty-five acres of land in Harrison County, in consideration of ten thousand six hundred and eighteen dollars and forty-seven cents, of which two thousand dollars was to be paid on the 1st day of December, 1879, and the residue payable in six equal annual installments of one thousand four hundred and thirty-six dollars and forty-one cents, from the said 1st day of December, 1879, and to draw interest from that day, said interest to be paid annually, and for all of which seven payments, the said Sarah Boggess made her notes under seal, also signed by D. W. Boggess, dated October 28,1879, and retained the vendor’s lien upon the land conveyed to secure the payment thereof. The first two of said notes were paid. The five remaining notes are all precisely .alike, and read as follows: “One thousand four hundred and thirty-six dollars and forty-one cents. On or’ before the 1st day of December, 188 — , for value received, I promise and bind myself, my heirs and assigns, to pay to Josiah W. Lynch the just and full sum. of one thousand four hundred and thirty-six'dollars and forty-one cents (one thous- and four hundred and thirty-six dollars and forty-one cents), with interest from the 1st day of December, 1879, said interest to be paid annually; it being a partial payment for land bought of him. Witness my hand and seal on this 28th day of October, 1879. Sarah Boggess. [Seal.] D. W. Boggess. [Seal.] Teste: C. E. Stonestreet.” The said five notes were assigned by Lynch, the payee, to Nathan Goff, and by the executor of said assignee to Mary R. Goff. Payments were made thereon by the makers of said notes from time to time,-when on a final settlement on the 15th day of September, 1896, between the said D. W. Boggess, acting for his wife, Sarah Boggess and Mary R. Goff, said Boggess paid said Goff two thousand dollars, and made his note payable to said Mary R. Goff for the sum of seven hundred and nineteen dollars and eighty, cents, as the balance due on account of said transaction. At the November rules, 1896, Sarah Boggess and D. W. Boggess filed their bill in the clerk’s office of the circuit
On the 5th of February, 1897, the defendant tendered her answer, to the filing of which plaintiffs objected, but stated no ground of objection or exception to the answer. The objection was overruled, and the answer filed, to which plaintiffs replied generally, which answer admitted the transaction with Lynch, the assignment of the five notes, and avers that all payments made upon the said land, except the cash payment of two thousand dollars, which were made prior to January 4, 1896, were made either to Nathan Goff, Sr., or to his executor, and as to all payments made before respondent became the owner of said obligations by assignment, and as to all payments made thereafter to her, the payments were made, and the calculations or computations were made, with reference to the payment of interest annually, and not for the payment of money from time to time, and the application thereof according to the rules of partial payments upon debts when the interest and principle were payable at the maturity of the debt, and not payable annually, as upon the notes in question; that the payments were not made at stated or regular intervals, but just as the plaintiffs could pay or felt disposed to make payments, but the pa> ments were always made with the distinct understanding that the interest was to be annually computed; that unpaid interest was to bear interest; denies that the payments made overpaid the notes, denies that the plaintiffs were coerced on the 15th of September, 1896, to pay the two thousand dollars, or to give the note for seven hundred and twenty dollars as a further payment; and avers that said two thous- and dollars was paid, and the note for seven hundred and twenty dollars (not seven hundred and nineteen dollars and eighty cents as they state) was given, by plaintiffs voluntarily, without any constraint or coercion on the part of respondent, and with full knowledge on their part of all the facts, after statements had been sent them from time to time by respondent showing that interest was computed on the basis fixed by the obligations them
The deposition of D. W. Boggess was taken on behalf of plaintiffs, who stated that he transacted all the business for his co-plaintiff, his wife, as her agent, and that she knew nothing personally about the transaction. 'On behalf of defendant, her own deposition and that of Lee Haymond were taken and filed in the cause.
On the 9th day of October, 1897, the cause came on to be heard; “whereupon, it appearing to the court that the first one to fall due of the notes in controversy in this cause is not entitled to consideration by the court, and it further appearing that the calculations concerning the remaining next three notes are long and tedious and somewhat involved, it is therefore adjudged, ordered, and decreed that this cause be referred to Harvey W. Harmer, a master commisioner of this court, to make a calculation of said three last-named potes, falling due on the 1st day of December, 1882, 1883, and 1884, respectively, by calculating these three notes and interest thereon according to the face of said notes, subject to the credits thereon indorsed, and that he calculate the note falling due December 1,1885, according to the annual method, without any interest on accrued interest, and to calculate any or all of said four notes, or all the notes in this cause, by any method which either party of this suit may require, and report the same to the court.”
The commissioner filed his report, first showing calculation of note falling due December 1, 1882, calculating interest upon annual interest after it became due until paid, and applying payments thereon from time to time, showing a balance due on this note, November 17, 1891, of fourteen dollars and seventy-six cents. He calculated the next note, falling due December 1, 1883, in the same
Appellants seem to rely very strongly upon the case of Genin v. Tngersoll, 11 W. Va. 549. The notes given in that case by Ingersoll were almost in the exact language of the notes in controversy in case at bar, annual payments run- ■ ning through a series of years, bearing interest from the same date, which interest was to be paid annually. The only difference, if any, is that in the Genin-Ingersoll Case, ' a mortgage was given to. secure the notes, and in said mortgage there was a clause describing the notes as bearing interest “from the 2d day of February, 1854, at the ráte of six per cent, per annum, payable annually; that is to say, on the 2nd day of February in each of the next seven years. The interest on all the principal then unpaid is to be paid; * * * all of which said purchase money and interest the said Josiah hereby agrees and binds himself,his heirs,” etc., “to pay to the said Thomas H. Genin, or his assigns, at the respective times aforesaid.” It is there held that, under the terms of the mortgage, the several notes must be regarded as one debt, on which the interest was payable annually, and the payments should first have been applied to the payment of the interest due on the whole debt, and then to the discharge of the notes in their order. The notes themselves contain a provision that the interest
Plaintiffs’ exceptions to the commissioner’s report should have been sustained, except, perhaps, the third, which related to the calculation of the live notes as a whole debt. While the report contained a small amount of interest on interest, in calculating up to three payments made, —seven hundred dollars paid July 10th, five hundred dollars paid July 26th, and four hundred and fourteen dollars and seventeen cents paid August 12th, all in 1882, — and for that reason and to that extent the report was subject to the plaintiffs’ exception, yet the commissioner’s calculation on the said notes, as a whole, was not to the prejudice of the plaintiffs. If he had calculated strictly according to the rule laid down in Genin v. Ingersoll, that “the payments made should first have been applied to the payment of the interest due on the whole debt, then to the discharge of the notes in their order,” the interest on the interest which was included in the ‘calculation would have been more than overcome by the calculations of interest on the overdue notes to be discharged by the partial payments. The appellee makes a cross assignment of error, in that the court adopted an improper mode of calculation, and claims that calculation as correct which the commissioner made at the instance of the plaintiffs, which was based on all the notes together. The amount ascertained by the commissioner to be due upon the 15th day of September, 1896, according to the calculation, when he groups all the notes as one debt, and applies the usual rules of partial payments, was the sum of four hundred and twenty-one. dollars and forty-seven cents, after the application of the two thousand dollars paid on that day. The court erred in the mode of calculation of interest and should have decreed to the defendant at least the said sum of four hundred and twenty-one dollars and forty-seven cents so ascertained by the commissioner as of September, 15, 1896, upon the cancellation and surrender of the note for seven
Appellee contends that appellants are not entitled to be entertained in this court for the reason that- after the decree was entered they collected and received the costs from the appellee for which they had a decree; that, having accepted the terms, of the decree by receiving the costs, therefore the appeal should be dismissed; and cite Hall v. Hrabrowski, 9 Ala. 278, and U. S. v. Dashiel, 3 Wall. 688, 18 L. Ed. 268. On examination of those authorities, it is found that they cannot apply to case at bar. In the Alabama case, a plaintiff who had received a judgment below with which he was not satisfied, sued out a writ of error, seeking to reverse it, and, while the cause was pending in the appellate court, he sued out execution on his judgment, and collected the money, and, the fact not being brought to the notice of the appellate court until after its judgment had been pronounced, reversing and remanding the cause, an order was made directing that the mandate should not issue until the debt, interest, and costs below were refunded to the defendant. In this case it is conceded that the plaintiffs were entitled to relief, from the fact that a decree was entered canceling the note for seven hundred and nineteen dollars and eighty cents, aud requiring its surrender, and no complaint of the decree on that account is made by appellee, and plaintiffs would be entitled to the costs of this suit in the circuit court. In the said case of U. S. v. Dashiel, plaintiff, previous to taking its writ of error, sued out execution below, and got a partial, but not a complete, satisfaction on its judgment. It was held that the writ of error would notin consequence of such execution merely, be dismissed.
For the reasons herein stated, the decree of the circuit court is reversed and set aside, and, this court proceeding to render such decree as the circuit court should have rendered, it is adjudged, ordered, and decreed that Sarah Boggess, and Harvey H. Boggess, as administrator of the estate of D. W. Boggess, deceased, out of the assets in his hands, do pay to the defendant, Mary R. Goff, the said sum of four hundred and twenty-one dollars and forty-seven cents, with interest thereon from the 15th day of September, 1896, until the 31st day of January, 1898,
Modified.