11 W. Va. 307 | W. Va. | 1877
delivered the opinion of the Court:
On the 13th day of March 1876, the plaintiff sued out of the clerk’s office of • the circuit court, of the
Immediately after executing the deed of trust your orator, as he had intended without the deed of trust, proceeded as rapidly as he could to pay off these debts; and has long ago paid off every one of them.
Among the debts provided for in the deed, it 'will be seen, is one payable to one P. A. Prindle of $777.00; this debt has long ago been paid off and satisfied; and this fact, your orator believes, is known to Joel McPherson the trustee; he has certainly so stated, both to your orator and to others in your orator’s presence; but whether known to him or not, it is certainly known to your orator.
The debt was evidenced by bond or note, which was
The said Prindle has departed this life, and Alexander F. Mathews has very recently qualified as his administrator, who has, as it would seem, required the trustee, Joel McPherson, to advertise the sale of the trust property for the payment of the Prindle debt — the sale to be made for cash ; the advertisement has accordingly been •inserted in the Greenbrier Independent, the sale to take place on the 20th day of May 1876, a copy whereof is herewith filed as part of this bill marked No. 2; and unless your honor interposes your authority, and restrains the said administrator and trustee by injunction, the sale will be made notwithstanding the payment of the debt and bar of the statute aforesaid. In tender consideration of the premises, your orator prays, that the said Alexander F. Mathews, administrator of P. A. Prindle, deceased, and Joel McPherson be made defendants to this bill and be required to answer the same iully upon oath; that the sale of the trust property aforesaid be enjoined and inhibited, and the debt aforesaid be declared satisfied and paid off; let the said administrator produce the bond or note if'he can, and if he cannot, say why he cannot, and account for its absence. Your orator insists, that before any sale shall be made, the administrator and trustee or one of them, be required to file their bill, and then prove their debt as plaintiffs, making all the parties in interest defendants. Your orator prays for such other and further relief as comports with equity,” &c. The bill is verified by the affidavit of the plaintiff. The injunction prayed in the bill was granted- by a Judge of
Exhibit No. 1, filed with the bill as an exhibit is as follows, to-wit:
Whereas, Edmund S. Calwell is justly indebted to Seldon & Miller, of the city of Richmond, in the sum of $1,607.35; Dunn & White, of the county of Green-brier, in the sum of $824.00; P. A. Prindle, of Washington city, in the sum of $777.00; Stuart & Son, of Baltimore city, in the sum of $593.50; Wm. H. Shank-lin, of Greenbrier county, in the sum of $560.00; Samuel C. Ludington, of Greenbrier county, in the sum of $405.60; Norris & Calwell, of the city of Baltimore, in the sum of $461.86; Sloane & Calwell in the sum of $129.00; John A. Nickell, of Monroe county, in the sum of $246.98; Eli Rodgers, of Greenbrier county, in the sum of $226.87 ; Edmund Leach, of the county of Monroe, in the sum of $163.35; Samuel Hamilton, of the county of Monroe, in the sum of $265.00; Ghael & Co., of the city of Baltimore, in the sum of $175.00; David Tuckwiller, in the sum of $222.00; W. A. Walton, in the sum of $210.00; Yates & Co., of the city of Richmond, in the sum of $160.00; Andrew Antoni, of the city of Richmond, in the sum of $79.00; David Watts, of Greenbrier county, in the sum of $65.00; Henry Miller, in the sum of $150.00; Miller & Wead, in the sum of $216.72; B. F. Wead, in the sum of $1,131.25; Kline & Carroll, in the sum of $85.00; Jacob Hayney, in the sum of $233.00 ; John Withrow, in the sum of $50.00; Wm. B. Calwell, in the sum of $245.00; and Estell &Eakle, in the sum of $78.00 — the payment of which he is desirous and wishes to secure; that each and every of his the above named creditors, shall have full satisfaction of the amount of their debts, each respectively without preference to either over the other, and for which the Raid Edmund S. Calwell executes the an
Witness the following signatures and seals.
Edmund S. Calwell, [Seal.]
-, [Seal.]
The foregoing deed was acknowledged by plaintiff before a justice of the peace for said county of Green-brier, on the 10th day of February 1860, and was on the same day admitted to record in the clerk’s office of Greenbrier county court
Exhibit No. 2, in the bill mentioned, is in the following words, viz:
“ Trust Sale of Valuable Froperty.
Pursuant to the terms of a deed of trust, executed by Edmund S. Calwell to me, as trustee, dated February 10, 1860, and recorded in deed book 23, page 134, in the office of the clerk of the county court of Greenbrier county, and being required so to do by the personal representative of P. A. Prindle, deceased, one of the beneficiaries in said deed, I will sell at public auction, to the highest bidder, in front ,of the hotel of W. W. Moore, in the town of Lewisburg, on Saturday, the 20lh day of May 1876, such and so much of the property conveyed by said deed, as may be required to pay the costs and expenses of executing and recording said deed, the expenses of sale, and the debt secured as aforesaid to the said P. A. Prindle. The property conveyed by said deed, and which will be sold in whole or in part, consists of the ‘ Dry Creek’ hotel, with all its appurtenances, including two hundred and fifty acres, more or less, of land; the ‘Boothe place,’ containing nine acres, and a*315 large amount of personal property, viz": furniture, horses, mules, farming utensils, &c. Terms of sale, cash.
Joiiij McPhersoN, Trustee.”
The defendant, Alexander F. Mathews, filed his answer to the plaintiff’s bill, in which he responds and alleges as follows, viz: “ This respondent, saving and reserving to himself the benefit of all just exceptions and reservations to plaintiff’s bill for answer thereto, or to so much thereof as he is advised it is necessary or material for him to answer, answers and says, that as to the debt of $777.00, secured to his intestate, P. A. Prindle, as of the 10th day of February 1860, he personally knows little or nothing, but is informed and alleges that the amount of said debt, viz: $777.00 was the balance found due to his said intestate upon settlement with the said plaintiff of their unsettled matters, on the 10th day of February 1860; and he is further inform,ed and alleges, that the said plaintiff, as stated and admitted in his said bill, executed his bond to said Prindle for said debt, and that said bond was dated February 10,1860, the date of said deed, due two years after date, with .interest from date; that said bond has never come into his possession as administrator or otherwise; that he has made,diligent but unsuccessful inquiry for it; that he has had diligent search made therefor among the papers and effects left by the said Prindle; that it has not been arid cannot be found, and that he is informed and alleges that it has been lost or destroyed; and he here refers to the affidavit as to the existence and loss or destruction of said bond, herewith filed marked Exhibit A, and prayed to be taken and read as part of this answer. And this respondent is willing and hereby offers to indemnify the said plaintiff against any loss or damage-in consequence of the destruction or loss of said bond, should it hereafter at any time be produced or found.
Further answering, this respondent says, that the said plaintiff, on the 10th day of February 1860 executed
This respondent for proof of said debt, relies upon the said bond, lost or destroyed as aforesaid, upon the said deed of trust, and the statements and admissions therein contained; and the said plaintiff in his bill, while seeking to obstruct and enjoin the collection of the said debt, admits that it had an existence and was valid, but alleges, and it is for him now to prove this if it be true, that it has been paid. And this respondent, the said debt being admitted fully both in the said deed and bill, protests against being required, as the plaintiff is seeking to shift the burden of proof - from his own shoulders where it properly belongs — insists that he shall not be required to file his bill in this honorable court, and prove his said debt, which under the circumstances would be to require him to prove negatively that it has not
Eshibit A. filed with the answer of Mathews is in these words, viz:
State oe West Virginia :
Greenbrier County, to-wit :
Alex. F. Mathews, being duly sworn, says that he is the administrator of P. A. Prindle, deceased; that he is-informed and believes that the said P. A. Prindle, at the time of his death, held a bond executed to him by E. S. Calwell for $777.00, dated February 10, 1860, due two years after date, with interest from date, which is the same debt secured to said P. A. Prindle by the said E. S. Calwell by a deed of trust to Joel McPherson, trustee, dated February 10, 1860; that as- such administrator said bond has never come to his hands; that he has made diligent inquiry, and has had diligent search made among the papers and effects of the said Prindle for said bond ; that it cannot ’ be found ; and that he is informed and believes that it has been lost or destroyed.
Alex. F. Mathews.
Taken, subscribed and sworn to, before me, this the 30th day of March 1876.
J. Alex. MoNtg-omery,
Notary Public.
The deposition of David Watts was taken and filed by the plaintiff; but it was excepted to by the defendant Mathews, as being incompetent and irrelevant; and the court sustained the exception, I think properly. As
1st Question by plaintiff’s attorney — State what connection you have with this case ? Answer — I am the plaintiff.
2d Question by same — State whether or not you ever paidthe debt of $777.00, due to P. A/Prindle, provided for among others in the deed executed by you to Joel McPherson as trustee, on the 10th day of February 1860? If you ever paid said debt, or any part thereof, state when and how and to whom you paid it?
(N. B. — The defendant, P. A. Prindle’s administrator, excepts to the foregoing question, because the witness, a party to the suit and the party in interest, is not competent to testify as to any transaction with the said P. A. Prindle, he being now deceased. — M. & M., Ait’ys.)
-1 paid the debt in 1861, in Washington city, D. C., to P. A. Prindle; I paid it with an order drawn on him by his partner, which I have and herewith file with this deposition, marked A.
(N. B. — The defendant, P. A. Prindle’s administrator, excepts to the above answer, upon the ground that it is not competent testimony, because it details a transaction had with said Prindle, who is dead, by the plaintiff.— M. & M., Att’ys.)
3d Question by same. — State as near as you can the month that you paid Prindle, and all that occured between you and Prindle on that occasion ; state fully? Answer — I paid Prindle in the month of March 1861. I was in Pichmond, Va.; my brother, .Wm. B. Calwell, said that he owed Prindle, and was going over to Washington to pay him; I said that I owed him and would go along with him. We went to Washington; I stayed
(N. B. — The defendant, P. A. Prindle’s administrator, excepts to the foregoing question and answer. So far as it states a conversation between the witness and Wm. B. Calwell, it is irrelevant and incompetent, and so far as it states a transaction between the witness and Prindle, it is incompetent for the same reason that the former answers and questions are excepted to. — M. & M. Att’ys.)
4th Question by same — The order you filed, and which you say you paid the note to Prindle with, is drawn on Prindle by Jno. P. Thomas. Please state how Thomas happened to draw said order on P. A. Prindle'? Answer — Prindle had been renting a room and boarding two men with me for several years, for which he paid me five hundred dollars a year for rents, and paid me for board in addition. The last year Taliaferro and Thomas were the men that occupied the room, and when they came to settle up Prindle was absent, and they gave me this order on Prindle for what was due me by Prindle at the time of the settlement. This order, though given in 1859, was not paid until 1861, as I did not have a settlement with Prindle, after 1 got the order, until the spring of 1861, in Washington.
(N. B. — The defendant, P. A. Prindle’s administrator, excepts to the foregoing answer as irrelevant and incompetent.)'
Cross-Examination.
1st Question by defendant — At the time spoken of, when you paid Prindle, and took up the note with said order in March 1861, did you have said order with you at the settlement ? Answer — T did not have it with me ;■ but Prindle knew all about the order.
Question 2 — Did you have no memorandum of the
Question 3 — If Prindle paid the order by giving up the note, why did you not send and return'the order to 'him? Answer — Because I was expecting him to come up to visit me every day, until I heard of his death; in fact he was on his way to my house when he died.
The following is Exhibit A., referred to in the foregoing deposition, viz:
Dry Creek, August 30, 1857.
“$757.35. Mr. P. A. Prindle will please pay E. S. Calwell seven hundred and fifty-seven dollars and thrrty-five cents ($757.35), being balance due on bill of Taliaferro and Thomas.
JohN F. Thomas.”
The deposition of James Cox was also taken and filed by the plaintiff; and the defendant, Mathews, filed exceptions to it, as being hearsay, incompetent and irrelevant testimony. The court sustained the exception rightly, I think, as the witness only deposed to what other persons had told him; his evidence is simply hearsay, and inadmissible. The plaintiff also took and filed the deposition of Joel McPherson, the trustee, in which he testified that he is fully persuaded that the debt referred to was adjusted by E. S. Calwell with P. A. Prindle;. but that he has no personal knowledge of said adjustment. He also says that his impression was derived from hearsay, but that Prindle never admitted to him that said debt was paid, and he never saw Prindle after -1861. No exceptions were filed to the deposition of said McPherson. This is all the evidence filed in the cause by the plaintiff. The defendant, Mathews, filed no depositions. The trustee, McPherson, failed to answer the bill. On the "25th day of May 1876, the defendant, Mathews, administrator, &c., filed his answer by leave of the court, to which the plaintiff replied generally; and the said Mathews then moved the court to
“This cause having been regularly set down for hearing, came on this — day of June 1876, to be heard upon the subpoena returned executed, the biil taken for confessed as to the defendant, Joel McPherson, answer of the defendant, the administrator of P. A. Prindle, replication thereto, exhibits, depositions taken and offered by the plaintiff, exceptions thereto, and exceptions to particular questions and answers propounded to and given by the witnesses, upon the motion of the defendant made on a previous day of the term to dissolve the injunction heretofore awarded the plaintiff, which was set down to be argued and heard, and upon the arguments of counsel. Upon consideration whereof, the court being of opinion that said exceptions to said depositions endorsed thereon are well taken, the said exceptions are sustained, and the said depositions so tar as excepted to are suppressed. And the court is further of opinion, that in connection with the time elapsed there is enough in the record — in the absence of the bond or note given for the debt in the deed of trust mentioned, both parties admitting that there was such bond or note, and the absence thereof, in the opinion of the court not being satisfactorily accounted for, unless it be as a paper lost out of the possession of plaintiff Cal well — to show that the debt now claimed by the defendant Mathews, as administrator of P. A. Prindle deceased, is not a subsisting debt. And the court being further of the opinion, that all the creditors mentioned in the said deed of trust ought to be parties to this cause, but the parties now before the court desiring the court to pronounce a decree upon the merits of the case, as they now appear between the said parties, it is therefore adjudged, ordered and decreed, that the aforesaid motion to dissolve the injunction be and the same is hereby overruled, and instead thereof that the*322 same be made perpetual as to payment of said Prindle debt, and that the plaintiff recover of the defendant, A. E. Mathews, administrator of P. A. Prindle, deceased, his costs about his suit in this behalf expended, to be levied of the goods and chattels of his intestate in his hands to be administered; but this decree to be without prejudice to the other creditors, secured by said deed of trust.”
It must be observed, that none of the creditors mentioned in said deed of trust were parties to the suit except plaintiff. It does not appear when Prindle died, or when the defendant Mathews qualified as his administrator ; but the plaintiff alleges in his bill that defendant Mathews recently qualified as administrator, &c.
The deed of trust in the bill mentioned states substantially, that Prindle resided in Washington city at the date of said deed. McPherson states in his deposi ■ tion, that he never saw Prindle after 1861. McPherson resided, it seems, in Greenbrier county, and so did the plaintiff at the date of said deed ; and I infer from the evidence’ and papers in the cause, that they not only resided in said county at the date of the deed, but that they still continue to reside in said county. The plaintiff in and by the said deed of trust not only acknowl- ■ edges, that he -was justly indebted to said Prindle in the sum of |777.00 at the date of the deed of trust, but he expressly covenants in said deed of trust, that he will pay and fully discharge said debt on or before the expiration of two years from the date of said trust deed. The language of said deed of trust (which is the plaintiff’s language) is (after reciting the several debts, and persons to whom each debt is due, and the amount due to each creditor, &c.): “ which debts each respectively, the said E. S. Cahvell doth hereby covenant and agree, that he will pay and fully discharge on or before the expiration of two years from the date first above named in this indenture.” No reference whatever is made in the deed of trust to any note or bond of plaintiff being given to
The circuit court seems by its decree to have sustained the exceptions of defendant Mathews to said questions and answers. The first question to be considered is, whether any part of said answers of plaintiff can legally be read as evidence in his behalf. The 23d section oí chapter 130 of the Code of this State, declares, that “a party to a civil action, suit or proceeding may be examined as a witness in his own behalf, or in behalf of any other party, in the .manner and subject to the same rules of examination as any other witness, except as follows:
1st. An assignor of a chose in action shall not be examined in favor of his assignee, unless the opposite party be living.
2d. A party shall not be examined in his own behalf in respect to any transaction or communication, had personally with a deceased person, against parties who are the executors, administrators, heirs-at-law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action from or through such deceased person or have been sued as such executors, administrators, heirs-at-law, next of kin, or assignees,” &c.
That the payment of the note or bond by the plaintiff to Prindle with the Thomas order, was a transaction had personally with Prindle is manifest and that the conversation between plaintiff and Prindle then, or before or after, was a communication had personally with Prindle is equally clear. The execution and delivery by plaintiff of a note or bond to Prindle, (if any was ever executed
The plaintiff does prove the Thomas order on Prindle for' $757.35; that is he proves by his evidence, that Thomas gave him the order. This much, I think, it was competent for him to testify to. But it was not competent or proper for him to testify, that the amount of the order was due to him from Prindle under a contract made by him and Prindle, as stated in his testi- ■ mony. Excluding the whole of. plaintiff’s deposition given by himself from the case, except his testimony that Thomas gave him the order, which I think must be
Upon the whole it seems to me, that the circuit court erred in its decree of June 1876 in ascertaining and determining, that the claim of defendant, Mathews, administrator of P. A. Prindle, deceased, from what appears in the cause, is not a subsisting debt, and in perpetuating the injunction theretofore awarded in the cause.. The creditors named in said trust deed, their assigns or personal representatives, as the case may be, should have been made parties to the bill. They, as well as the plaintiff, if their debts secured by said trust deed have not been paid, have the right to contest the debt claimed by Prindle’s administrator in this cause, and to have their debts, if existing, paid. The trustee, McPherson, should not have advertised the property in the said deed of trust mentioned, to be sold to pay the Prindle debt, to the exclusion of the other creditors named in said deed, from anything that now appears in this case. If the trustee entertained any reasonable doubt', as to whether the Prindle debt was paid or not, and did not know certainly that the other debts in said deed of trust
The decree rendered in the cause must be reversed, with costs to the appellant, and against the appellee, Edmund S. Cal well, and the cause remanded to the circuit court of the county of Greenbrier, with instructions. to said court to permit the plaintiff to file an amended bill, making new and additional parties to the cause, in accordance with the opinion ■ of this Court, if he shall ask permission to do so. in such time, as said court shall deem reasonable.; and if the plaintiff shall fail to file such amended bill in such time, as said circuit court may deem reasonable, then the said circuit court to dissolve the injunction awarded in the cause, and dismiss the plaintifPs bill at his costs. And if the plaintiff shall file such amended bill, leave is given him to take and file further depositions of witnesses upon the subject of the payment, and the existence or non-existence of said Priudle debt, that question being- reserved and left open for further inquiry and consideration; and for such other and further proceedings to be had in said cause in said circuit court, as may be in accordance with the rules and principles governing courts of equity.
Decree Neveksed and cause remanded.