49 W. Va. 181 | W. Va. | 1901
David Evans, administrator of George W. Fox, deceased, appeals from a decree of the circuit court of Braxton County in a suit wherein he was plaintiff and Teresa E. Campbell et al. were defendants.
“I, J. S. Hyer, assignee of G. W. Fox (who is the assignee of Jacob Carper and Caleb B. Carper) hereby release the right reserved to said Carper in a conveyance executed by the said Carpers and the wife of said Caleb B. Carper to Teresa E. Campbell dated the 18th day of July, 1893,’recorded in the office of the clerk of the county court of Braxton County, West Virginia, in Deed Book No. 38 at page 483, absolutely for the benefit of the*183 Baltimore Building & Loan Association, which has loaned the said Teresa E. Campbell the sum of five hundred dollars so as to give said association priority over said reservation of lien in said conveyance. But this release is only to operate so as to postpone the right reserved in said conveyance to the lien of said association, to secure to it said sum of five hundred dollars, reserving in this release a second or postponed lien to secure the payment on the unpaid balance of one hundred dollars due me as such assignee.
J. S. Hyer.
Acknowledged before the subscribed this 6th day of April, 1895.
T. M. Berry, Notary.
State of West Virginia, Braxton County court clerk’s office, May 14, 1895: The foregoing release deed with the certificate of acknowledgment thereto annexed was this day presented in said office and admitted to record. Testee:
C. K. Newlon, Clerk,
A copy. Teste: C. K. Newlon, Clerk."
At the time of the execution of this release by Hyer he held this note by assignment from Fox for collection, and he testifies that Fox authorized him to execute this release, and that it was intended to cover the balance of purchase money due on the sixty-eight acre tract. Hyer is not a party to the suit, is a disinterested witness, and his evidence certainly ends this controversy. The release undoubtedly extends to the whole lien on the one hundred acre tract owned by Fox at the time of the execution thereof, and cannot be otherwise interpreted. The agreement to postpone the lien on the one hundred acre tract operates as a full satisfaction of the lien on the sixty-eight acres, and if Fox lost his money by such postponement he did so by his own act and it cannot now be recoursed onto the sixty-eight acre tract or upon his assignors. He surrendered his security and must bear the burden occasioned thereby. First National Bank v. Parsons, 45 W. Va. 688.
It is further claimed in argument that the purchase by Berry and Baxter was at an inadequate price for Mrs. Campbell and that she was the real purchaser, and that her interest in the property would still be liable to sale. The proof to some extent tends to establish this argument. The trouble is the allegations of the bill do not justify the proof. The bill does not attack the
As the appellees substantially prevail in this Court, the decree is reversed at the costs of the appellant, and the cause is remanded that the court may grant the relief herein indicated.
Reversed.