12 W. Va. 611 | W. Va. | 1878
delivered the opinion of the Court:
This is a cause in equity. It has heretofore been before this Court, and is reported in 9th W. Va. R. 296. Reference to. the case as heretofore reported is here made for a full statement up to its decision by this Court as heretofore made. When the case was formerly before this Court, on its decision this Court made and entered the following decree, viz:
“ The Court having maturely considered the transcript of the record aforesaid, and the arguments of counsel thereon, is of opinion, for reasons stated in writing and filed with the record, that there is error in said decree. It is therefore adjudged, ordered and decreed, that the decree rendered in this cause by the circuit court of the*619 county of Greenbrier, on tbe 30tb day of November, 1872, be reversed and annulled, and that tbe appellees, S. W. N. Feamster and Thomas L. Feamster, do pay to tbe appellants tbeir costs about tbe prosecution of their appeal in this court in this behalf expended. And this court proceeding to render such decree in this cause as tbe said circuit court of tbe county of Greenbrier should have rendered, it is adj udged, ordered and decreed, that this cause be remanded to tbe circuit court of said county of Greenbrier, with instructions to recommit so much of the supplemental report of commissioner Walker as is embraced by tbe second statement thereof, of tbe accounts between S. W. N. Feamster and Tbomas L. Feamster, for further inquiry and report as to certain matters of said account therein in tbe written opinion of this Court mentioned, according to tbe principles settled and directions and privileges given in said opinion, and in doing so such commissioner shall also ascertain and report for tbe action of tbe court whether the said S. W. N. Feamster, on tbe 19th day of January, 1861, or thereabouts, paid and discharged the debt due the Bank of Virginia, at Union, in the proceedings in this cause, and the deed of trust in the bill mentioned, and if so, how he paid and discharged the same, with''a view to a final proper decree as to the same; and as to the Dickson judgment in the proceedings in said decree mentioned, whether the same has been paid, and if not, to whom it is due; and also the legal priorities of the debts as judgment or trust liens against the lands in the deed of trust made by Thomas L. Feamster to James Withrow on the 2d day of October, 1860, filed with the plaintiffs’ bill, mentioned; and for such further proceedings in said circuit court therein to be had as may be in accordance with the principles and rules governing courts of equity, which is ordered to be certified to the circuit court of Greenbrier county.”
This decree or mandate being certified according to law to the circuit court of Greenbrier county, where the
“ This day came James H. Renick and S. C. Beard, by their counsel, and by leave of the court filed their petition ; and on their motion, the plaintiffs amended their bill by making said petitioners and James Knight, administrator of A. Beard, deceased, and John Snyder defendants in this cause, and process is awarded against said administrator and Snyder. And this cause came on this, the 8th day of November, 1876, to'be again heard upon the papers formerly read, the mandate of the Court of Appeals of this State remanding this cause to this court for further proceedings to be had therein, and was argued by counsel. Upon consideration whereof, it is adjudged, ordered and decreed, that so much of the supplemental report of commissioner Walker as is embraced in the second statement thereof of the accounts between S. W. N. Feamster and Thomas L. Feamster be recommitted to J. M. McWhorter, one of the commissioners of this court, for further inquiry and report as to certain matters of said account in the written opinion of the Court of Appeals mentioned, according to the principles settled and directions and privileges given in said opinion, and in doing so said commissioner shall also ascertain and report for the action of this court whether the said S. W. N. Feamster, on the 19th day of January, 1861, or thereabouts, paid and discharged the debt due the Bank of Virginia, at Union, in the proceedings and in the deed of trust in this cause mentioned, and if so, how he paid aud discharged the same; and the said commissioner, as to the Dickson judgment in the proceedings in' this cause mentioned, is directed to ascertain and report whether the same has been paid, and if- not, to whom it is due; and also to report the legal priorities of the debts as judgment or trust liens against the lands in the deed of trust made by Thomas L. Feamster*621 'to James "Withrow, on the 2d day of October, 1860; and the said commissioner is also directed to inquire into, ascertain and report any and all matters called for and required by said opinion, and to report any matter to be specially stated by himself, deemed pertinent or required by any party to this cause, to make said report in conformity with said opinion, and return the same to the next term of this court. But before executing this decree, the said comniissioner shall give notice for at least ten days, to all the parties to this suit, 'or to their attorneys of record, of the time and place, when and where he will do so.”
The petition and answer of James H. Renick and Samuel C. Beard, referred to in the last named decree, is as follows, viz:
“The petition and answer of, James H. RenicJcand Samuel C. Beard to a bill filed in the Circuit Court of Greenbrier County by Thomas L. Feamster and others v. James With-row, trustee, and others:
“ Petitioners respectfully show—
“1st. That they and others were the sureties of Andrew Beard, late sheriff of Greenbrier county, upon his official bond as such sheriff, for the term of two years, commencing on the 1st day of January, 1859, as will more fully appear from an authenticated copy of said bond herewith filed as an exhibit, marked No. Id
“ 2d. That said Beard, as such sheriff during the term aforesaid, by negligence and inefficiency, became liable for large sums of money to sundry persons, and without discharging the same, became wholly insolvent, in consequence of which your petitioners, his sureties as aforesaid, were compelled to pay and did pay as such sureties: to one Graham about $2,000.00, and to various other persons large sums amounting to about $3,000.00; that at the October term, 1875, of this court, in a suit in which Estill & Eakle et al. are plaintiffs, and said Beard as administrator of Thomas M. McClintic, deceased, your*622 petitioners and others are defendants, a decree was rendered against your petitioners and others, as the sureties of said Beard, who, as sheriff, was administrator of said ]y[0Q]int¡0j for the sura of $3,365.88, with interest from the 1st day of November, 1875, until paid, and the costs of said suit, which sum still remains as a liability against petitioners, as will more fully appear from a copy of said decree herewith filed as an, exhibit marked ‘No. 2.’
“3d. That said Beard, to repay your petitioners for the money paid by them for him as aforesaid, and to indemnify them as far as he could for such sums they might thereafter be compelled to pay for him as sureties on his official bond as aforesaid, on the 2d day of September, 1873, executed and delivered to petitioners a written assignment of all the bonds, executions and other evidences of debt owned by or due to said Beard; that said written assignment has been lost or mislaid, and cannot be found, but a substantial copy thereof, dated on the 2d day of September, 1873, is herewith filed as an exhibit marked ‘ No. 3.’
“4th. That among the evidences of debt then held by said Beard and assigned to petitioners as aforesaid was an execution from the county court of Greenbrier county, dated November 30th, 1860, in the name of William H. Dickson v. Thomas L. Feamster, S. C. Ludington, D. H. Stalnaker and C. A. Stuart, for the sum of $1,960.00, to be discharged by the payment of $980.00, with interest thereon from the 27th day of May, 1860, till paid, and $3.83 costs, as shown by said execution herewith filed as an exhibit, marked ‘No. 4.’
“ 5th. That at the March term, 1860, of said county court, a judgment was rendered by said court in favor of said Dickson v. said Thomas L. Feamster, S. C. Lud-ington and D. H. Stalnaker for $904.56, with interest thereon from September 27th, 1859, till paid, and costs, $10.64, which was duly docketed as a judgment lien in the clerk’s office of the said county, on the — day' of — 1860, as is fully shown by a copy thereof filed with the answer of said Dickson in this suit.
*623 “ 6tb. That upon said judgment an execution issued, was placed in the hands of the sheriff for collection, and a forthcoming bond was taken by him, with said C. A. Stuart as surety, for the amount thereof, and duly returned to the clerk’s office of said court, and on the 27th day of November, 1860, said court awarded execution on said bond for the aforesaid sum of $1,960.00 and costs, to be discharged as aforesaid, as fully shown by a certified copy of said judgment and award of execution herewith filed as exhibit marked ‘ No. 5 and that upon this order the aforesaid execution marked exhibit ‘ No. 4 ’ was issued and placed in the hands of said Andrew Beard, then sheriff as aforesaid, on the 3d day of December, 1860, for collection, as shown by an endorsement thereon in the handwriting of said Beard.
“7th. That the defendant, John Snyder, sold to the said Dickson a tract of land for which the said Dickson was indebted to him for a large sum, to-wit: $5,000.00; that on or about the 1st day of October, 1860, the said Dickson, in part payment of said debt, transferred and sold to said Snyder the benefit of said judgment, then amounting to the sum of $969.87, and the said Snyder then and there gave the said Dickson credit on said debt for said sum of $969.87, the full amount of the judgment aforesaid as of the 1st October, 1860; that about the same time and perhaps at the time of the transfer aforesaid, the said Dickson and one G. A. Rader, executed and delivered to said Snyder their due bill or note dated October 1, 1860, for $969.87, to be paid when the money could be made on the aforesaid judgment, with interest from date, a copy of said due bill is filed with the deposition of said Snyder taken in this suit, marked Exhibit 1A’ of said deposition.
“ 8th. That the said Andrew Beard, as sheriff as aforesaid had in his hands for collection a number of executions against said Snyder for a large amount of money and that some time after the 3d day of December, I860? and while the said execution of Dickson v. Eeamster*624 and others, was in his hands, the said Beard agreed to ' take said execution in part payment of the execution due from said Snyder as aforesaid, and thereupon the said Snyder transferred to said Beard the benefit of said execution on Feamster and others, and at the same time delivered to him, the said Beard, the aforesaid due bill of said Dickson and Bader; the said due bill and.execution being evidence of one and the same debt. Thus the said Beard became and was-the legal and proper owner of the judgment and execution aforesaid.
“9th. That the aforesaid C. A. Stuart is a non-resident of this State, and the said G. A. Bader and D. H. Stalnaker, each died many years since; that on the-day of April, 1875, the said Andrew Beard departed this life intestate and insolvent, and his estate by an order of the clerk of the county court of Greenbrier county,, has been committed to James Knight, sheriff of said county, for administration.
“10th. That no part of said judgment and execution has ever been paid by either of the debtors therein to the said Dickson, the said Snyder, the said Beard, as sheriff or otherwise, nor has any part of it been paid to the administrator of said Beard or to petitioners, and the whole thereof now remains due to petitioners, and it is a lien upon the lands of said Thomas L. Feamster in the bill mentioned, having priority over all other liens on said lands.
“Petitioners therefore pray that the plaintiffs may be required to amend their bill and make them, the said Snyder and said James Knight, as administrator of said Andrew Beard, deceased, parties defendants thereto ; that this petition may be filed in said suit, and when filed may be taken and treated as the answer, and, if deemed proper, also the cross-bill of petitioners to said bill; that the judgment aforesaid may be enforced against the land of the plaintiff, F. L. Feamster, in the bill mentioned; and that they may have such other and general relief as they may be entitled to in the premises.”
*625 Exhibit “Wo. 3” of Petition.
“In addition to tbe claims assigned by me to Jas. H. Renick and Dr. Beard against Mrs. Thomas McClintic and the Misses Estte, now in the hand of Mathews & Mathews for collection, I have on several former occasions assigned to said parties as my sheriff-securities all my bonds, executions and other evidences of debt, to be and have collected and applied through Mr. Jas. With-row for their benefit.
“A. Beard,
“September 2d, 1873: “Per Jas. H. Eeniek”
By exhibit No. 5 mentioned in said petition and answer, it appears that at a circuit court held for the county of Greenbrier, on the 27 th day of November, 1860 William H. Dickson obtained a judgment on a delivery bond against the said Thomas L. Feamster, Samuel C. Lud-ington, Daniel H. Stalnaker and C. A. ' Stuart, for $1,960.00 to be discharged by the payment of $980.00 with legal interest thereon from the 27th day of May, 1860, until paid and the costs.
By exhibit No. 4 filed with said petition, it appears that on the 30th day of November, 1860, a writ of fi. fa. directed to the sheriff of Greenbrier county, was duly issued from the clerk’s office of said circuit court upon said last named judgment, in favor of said Dickson against said Thomas L. Feamster, Samuel C. Ludington, D. H. Stalnaker and C. A. Stuart, for the said sum of $1,960.00 and $3.83 costs, upon which execution the clerk endorsed “ this execution to be discharged by the payment of $980.00 with interest thereon to be computed at the rate of six per cent, per annum from the 27th day of May, 1860, till paid and within mentioned costs • “no security to be taken.” It seems this execution was received by Andrew Beard, sheriff of said county of Greenbrier, on the 3d day of December, 1860.
William H. Dickson filed his answer to said petition and answer of Renick and others in which he
“To the TIon. Homer A. Holt, Judge of the scdd Court :
“The separate answer of William H. Dickson to the cross-bill filed in the above entitled cause by James H. Renick and S. C. Beard:
“This respondent, for answer to said cross-bill, says that it is not true as therein stated that he ever assigned or transferred to John Snyder at any time or in any way the benefit of an execution or of the judgment on which said execution issued in his favor against Thomas L. Feamster, S. C. Ludington and D. H. Stal-naker for $904.56, with interest thereon from September 27, 1859, till paid, arid $10.64 costs, in part payment of land bought by him of said Snyder, or for any other cause or consideration whatever; that it is not true that the said Snyder ever gave him credit on a purchase of land or on any other debt for said execution or judgment; and that it is not true that the said Snyder ever did or could tranfer to Andrew Beard the benefit of said judgment for $904.56, for he never owned it or had any title to it.
“Further this respondent denies that the said Beard ever was the owner, or that he ever in his lifetime claimed or pretended to be the owner, of said judgment, or that he ever assigned or pretended or attempted to assign it to his said sureties.
“And he denies further that the written assignment, a pretended copy of which is filed with said cross-bill, was every executed by said Beard, and if it were, he denies that it was or could have been intended to apply to and embrace said judgment; on the contrary, this respondent avers that the said Beard when living knew all about the assertion and prosecution- of this respondent’s claim to said judgment made in this suit; that he was present when nearly all the evidence bearing upon said claim was taken; that he not only did not then or at any time set up any right or claim on his own part, but on the con*627 trary, while admitting that the said execution came into his hands as sheriff, expressly stated that he 1 knew noth-' ing about it/ and the claim now asserted in said cross-bill is but an after-thought trumped up on the part of said sureties, who appear to be on a raid to all what they can capture, and has no foundation, in tact, except that the said execution was received by said Beard as sheriff; that he failed to enforce and collect as it was his duty to have done, and thereby made himself and his securities liable therefor. This respondent here refers to his petition and answer already filed in this cause, and asks that the same be taken and read in connection with and as a part of this answer; and having fully answered, he prays hence to be dismissed, &c.„ '
The answer of John Snyder is in these words, viz:
“The answer of John Snyder to a hill exhibited against him and others in the Circuit Cowrt of Greenbrier County, by Thomas L. Teamster and others.
“This respondent, for answer to said bill, says that he knows very little about the matters in said bill contained except so far as they involve the judgment and execution in the name of W. H. Dickson, which are particularly described and exhibited in the petition of J. H. Kenick and others filed in this suit. Prior to October, 1860, respondent sold to the defendant, W. H. Dickson, a tract of land for the sum of $9,000.00. It had been ascertained thac said Dickson would be unable to pay for said land, and a suit had been instituted against him for the balance of purchase money; but before the hearing of said suit, Mrs. E. McClung, the mother of the wife of said Dickson, agreed to aid said Dickson in paying for said land, and with this view she sent her son, J. Griffin Bader, to settle the balance due on said land. On or about the 1st of October, 1860, the said Bader acting for the said Mrs. McClung and said Dickson, made a settlement with respondent in the presence of said Dickson, and as part payment of said balance the said judgment, then*628 amounting to about $969.87, was transferred to this respondent, and as security and a guaranty for the payment of said judgment Green A. Rader and the 'said j)¡cpson at the same time delivered to respondent the note or bond found on page — of the printed record in this suit. Sometime after this transfer of said judgment, respondent, in order to satisfy Andrew Beard, who as sheriff then held in his hands a number of executions against him in favor of different persons, agreed that said Beard (who then had an execution in his hands on a delivery bond which had been taken on said Dickson judgment), should apply the proceeds thereof when collected to the payment of said executions against respondent. Among said executions are the following which were found in the papers of said Beard after his death and shown to respondent: One in favor of "Wood, Weisergre & Co. for $221.29, with interest from January 24, 1859, and $2.99 costs; one in favor of John Dooley for $73.95, with interest from May 14, 1857, and $7.31 costs; one in favor of Wilson & Burns for $272.84, with interest from November 30, 1857, and $8.64 costs; one in favor of Wordibaugh, Smith & Co. for $88.70, with interest from January 24,. 1859,and $2.83 costs; one in favor of Goodhowe, Tucker & Smith, for $362.56, with interest from January 24, 1859, and $2.83 costs; one in favor of Pare & Wanen, for $7.37 costs; one in favor of Putney & Watts, for $281,43, with interest thereon from August 13, 1859, until paid, and $3.41 costs; one in favor of Thomas Pare, for $123.72, with interest from March 23, 1857, and $11.67 costs; one in favor of George Livesay for $128.50, with interest from January 15, 1859, and $4.07 costs; one in favor of Wilson & Burns, for $177.43, with interest from July 26, 1,858, and $2.83 costs; one in favor of Bell & Bright, for $185.92, with interest from January 22, 1859, and $2.99 costs; and one in favor of James Jarrett, Jr., for $581.54, with interest from July 1, I860, and $4.57.
*629 “In compliance with the agreement aforesaid, respondent, at the time or subsequently thereto, delivered to' said Beard the note or bond aforesaid, and took his receipt for the same which receipt is filed as exhibit — with the deposition of S. W. N. Feamster; the receipt referred to here is filed with the deposition of John Snyder in this case. Respondent and said Beard had partial settlements at different times, but respondent does not recollect that said Dickson execution was ever settled, and he can find no evidence of such settlement among his memoranda and papers although he finds memoranda of other settlements. He verily believes that said execution was' never settled or accounted for by Beard to him. Said Beard claimed that he had never collected the same, and held said executions above mentioned against respondent until he could collect this one, when as he said a settlement could be made, and if after giving him, Beard, credit for the amount of the balance on the executions above mentioned there should remain anything over, it should be settled. Respondent has heretofore been and still is of opinion that the executions held by Beard, against him as aforesaid, will be sufficient to cover said Dickson’s execution, and hence he has given the matter no consideration, and does not now believe that any part of it will be coming to him on a full settlement, but if it should appear on such settlement.that he is entitled to anything he desires that it shall be paid him. Certain it is that neither Dickson, T. L. Feamster or Beard ever accounted to or paid him any part of said execution or note, except as herein stated.
A number of depositions were taken before the commissioner, and papers and copies of papers filed before him as evidence by the parties, and the commissioner made his report, which is as follows, viz:
“To Hon. Homer A. Holt, Judge of the Circuit Court of Greenbrier County:
“On the 8th day of November, 1876, a decree was en-*630 *ered in the cause of Thomas L. Feamster, et al., v. James Withrow, trustee, et[al., recommitting the said cause to your commissioner for further inquiry; and re-p0r(. ag certajn matters in the account heretofore taken in said cause, according to the principles settled and directions and privileges given in the opinion of the Court of Appeals. Your commissioner is required to report whether S. W. N. Feamster, on the 19th day of January, 1861, or thereabouts, paid and discharged the debt dne the Bank of Virginia, at Union, in the proceedings and in the deed of trust in this case mentioned, and if so, how he paid and discharged the same. Your commissioner is directed to ascertain and report whether the Dickson debt has been paid or not, and if not, to whom it is due. He is also directed to report the legal priorities of the debts as judgments or trust liens against the lands in the deed of trust made by Thos. L. Feamster to James Withrow on the 2d day of October, I860; and further to inquire into, ascertain and report any and all matters called for and required by the said opinion of the court, and to report any matter deemed pertinent by himself to be stated, or that might be required by any party to this cause. A certified copy of the decree is returned herewith marked '20/ (See decree of 8th November, 1876). Your commissioner gave the parties, or their attorneys, notice that he had fixed upon the 22d day of February last, at his office, as the time and place for taking evidence, stating and reporting upon the matters required in the said decree. On the day fixed, the parties appeared and commenced taking depositions, and the taking thereof was adjourned from time to time to suit the convenience of the parties, up to the 14th of May, 1877, when they were closed.
“ Several papers are filed by consent of counsel, endorsed to be used as evidence, but subject to' exceptions for irrelevancy, &c., but are treated as the depositions of the several parties who made the statements. •
<c The depositions taken with the statements filed, are*631 returned herewith. Your commissioner has endeavored to collate the evidence on each subject to be reported' upon, and the subjects are taken up in the order named in the decree referring this cause. The first is whether S. W. N. Feamster, on or about the 19th day of January, 1861, paid and discharged the debt due the Bank of Virginia, at Union, mentioned in the proceedings and in the trust deed from Thomas L. Feamster, and if so, how was it paid. There is an admission endorsed on the statement heretofore filed in this cause, purporting to be a settlement of the debt of the bank at Union, with S. W. N. Feamster, ‘that at the date of said paper, M. McDaniel was cashier of the Bank of Virginia, at Union, and that said paper is in his handwriting.’ (See paper marked ‘M. McD.’) There are also two statements made by Thomas A. Bledsoe, cashier of the National Valley Bank of Staunton, in whose possession the books of the former bank at Union seem to be, which it is agreed by written endorsement thereon may be read as evidence. (See papers ‘A’ and ‘B.’) This is about all the additional evidence, that has been filed as to the payment of said debt. The said debt has been sued on and judgment obtained against the makers and endorsers of the note, and the settlement of S. W. N. Feamster with McDaniel, is in satisfaction ofthe judgment, and evidently would have operated as a bar to its execution. Whether it was such a payment as would entitle S. W. N. Feamster, the surety, to recover the full amount thereof against Thos. L. Feamster, the principal, or whether he should be reimbursed to the extent he was damnified only, is a matter for the court to determine on the evidence. Two statements are made, one for either aspect of the case. The debt or judgment ywas paid by S. W. N. Feamster by his executing his note, with endorsers (after payment $750.00), for the remainder which was renewed from time to time, with occasional small curtailments, until December 18, 1862, when it was fully paid off. As to whether under the decision of the Supreme Court of Ap*632 Peals any other points of controversy than those directed to be referred can be investigated or not, is not for your commissioner to determine, but there are some matters jn cüSpUte, or were, and are still, unless settled by the Supreme Court, that would change the accounts somewhat between the parties. There is a difference as to the amount received by S. W. N. Feamster on the price of slaves of Thomas L. Feamster. In the former account S. W. N. Feamster is charged with $2,500.00, and now he files some further evidence to show that he should be charged with but $2,212.97. (See papers ‘ S. W. N. F.’) Calculation is in both statements made as between Thomas L. Feamster and S. W. N. Feamster, showing what is due, one charging the $2,500.00, and the other charging the $2,212.97. In regard to the Dickson debt, no additional evidence to that in the, original record before the Court of Appeals has been taken on the part of Dickson. Dickson says helias no recollection of ever having assigned or transferred his judgment against T. L. Feamster to any one, nor did he authorize or empower Griffin Eader to dispose of, or transfer it, nor does he know of its having been paid. Wm. H. Dickson married a daughter of Mrs. McClung, and Mrs. Mc-Clung was the mother of J. Griffin and Green A. Eader. In 1859, John Snyder sold to Wm. H. Dickson, a farm for $-, and in 1860 a final settlement for the purchase money was made between J. G. Eader and John Snyder — Wm. H. Dickson being present. J. G. Eader at the time made a memorandum in a little book of the several items that entered into the settlement, among which is ‘ execution on Feamster $969.87.’ At the same time G. A. Eader and Wm. H. Dickson executed to John Snyder their due bill for $969.87, payable as soon as the money could be made on the judgment of Wm. H. Dickson v. Thos. L. Feamster and others, with interest from date of note, October 1, 1860. J. G. Eader says that apart from the memorandum made in his book he has no recollection of the Feamster execution entering*633 into the settlement with Snyder. Snyder says Dickson after the settlement asked him how the settlement was made, and he, Snyder, showed him a memorandum he had taken of the settlement (see paper ‘ 2’) which included ‘ execution of Feamster,’ and he made no objection. Snyder claims no part of the judgment; says that so far as he is concerned it has been paid, and thinks that Andrew Beard; the sheriff, settled it with him by executions that were in his hands against Snyder, which appears probable, as the note executed by G. A. Bader and Vm. H. Dickson to Snyder was given up to A. Beard. (See his receipt marked ‘20.’) "While this note cannot be construed into an assignment of the Feamster judgment, it very much appears as if it were so treated by the parties after its execution. John Snyder filed his answer to the plaintiffs’ bill and petition of J. H. Benick and S. C. Beard, in which he files as exhibits sundry executions which were probably in the hands of A. Beard about the date of the delivery of the note to Beard, which executions against Snyder are largely in excess of the note aforesaid. Further than this Snyder says Beard never paid him a dollar for any claims that he had against Beard whilst sheriff, as all such claims were settled on executions Beard had for collection against Snyder. From all the evidence, it is to your commissioner’s mind pretty clearly shown that Dickson received the benefit of his (Feamster) judgment in the purchase price of land bought of Snyder, and also that Snyder received the benefit of it from Beard, to whom he transferred the note for the amount of the execution as an offset to executions Beard held as sheriff against him. As to whether the said execution was ever paid by Feamster to Beard, is a question not readily solved. Thos. L. Feamster states that his recollection is that it was settled in some way, but cannot state how, but that Andrew Beard did not claim it of him. S. "W. N. Feamster states that Dickson told him it was paid, but as we have already seen, he received it in a settlement with Snyder, and Sny*634 ^er settled it with A. Beard, and that brings us back to the old difficulty again. Beard, the sheriff, levied on a large amount of property of Thos. L. Feamster, which was sop} principally in the fall of 1860, the exact date is not fixed, but most likely in October of that year from the evidence. This sale must have amounted to $3,000.00, or upwards. In March, 1861, it appears a second sale occurred, which amounted as taken from a memoranda found with Beard’s papers to $866.25.
“The execution of Dickson did not go into the hands of A. Beard for collection until December 3. 1860, so that it could not have been one of the executions levied, and upon which the property was sold October, 1860. The petitioners, J. H. Renick and S. C. Beard, filed copies of executions which were in the hands of A. Beard, sheriff, against Thomas L. Feamster with the commissioner, which for convenience of reference are numbered from one to nine inclusive, with a view of showing that at the time of the sale there was sufficient in his hands to cover the proceeds of the sale of Feamster’s property. Since closing this report they have filed another execution which is marked ‘ten,’ which was delivered to the sheriff same date of the delivery of the Dickson execution, and is returned ‘no property found.’ Of these, numbers one, two and eight are the only ones which could have been levied, and the property sold under, and they amount as of October, 1860, to about the sum of $2,050.00; then there is found among Beard’s papers, which were probably in his hands at that date, taxes, fee bills, &e., amounting to $80.49 more. (See paper ‘twelve/ in which is found the memorandum of the sale referred to above, and a note from Feamster to Beard on which was due $200.00 or a little more. No. 3 did not issue until November 30, 1860, and it is the debt paid by S. W. N. Feamster, and for which he has credit, and a corresponding charge against T. L. Feamster’s farm secured by deed of trust. No. 4 went into the sheriff’s hands October 20, 1860, and is returned ‘no property found*635 liable to distress.’ No. 5 went into tbe sheriff's hands also October 20,1860, bnt no return. No. 6 placed in his hands of same date; no return. No. 7 same date, and is the debt settled with bank at Union by S. W. N. Feamster. No. 9 issued November 30, 1860, returned 'not made.’ So that if the executions here filed as being in the hands of Beard at the date of sale were all that were against him, there must have been some $1,500.00 or more of the proceeds of the two sales to have applied to executions that came into his (the sheriffs) hands after the levy was made. Nos. 5 and 6 are, your commissioner thinks, the debts that were paid by M. Arbuckle in 1863. There is no question as to No. 5 being one. (See Thomas Mathews’s deposition). No settlement between Andrew Beard and Thomas L. Feamster appears to have been made after the sales of Feamster’s property. Feamster states no settlement was ever made. (See page — of deposition). The matter is in doubt as to whether Feamster ever paid the Dickson debt to Beard or not, or whether upon a full settlement between them it would not have been paid.
"As to the title of James H. Benick and S. C. Beard, to the judgment of Dickson v. Feamster, it can only arise in case it should be determined that Feamster had not settled it with Beard, and on the grounds that A. Beard had paid Snyder for it, and Snyder had assigned or transferred it to Beard, who had thus been substituted to the rights of the original judgment creditor. They claim it under the provisions of exhibit'No. 3’ filed with their petition, by which they say A. Beard turned over all his claims and debts to secure them as his securities. Mr. Benick says that there were only two written assignments to them from A. Beard. One he calls the Estill assignment, and the assignment 'A. B.’ filed with deposition, and if exhibit ‘No. 3’ is construed to be an assignment, from what he states in his deposition, it is the third written assignment.
"In regard to the Ludington debt. In addition to former*636 evidence in this cause, Mr. Ludington states that he bought the bank notes and checks on the lowest terms he could, on purpose to pay off the judgment the bank pa(j against him and others, and that he paid them as he could an amount sufficient to pay the debt, as the cashier, after the first payment of about $200.00, refused to take further payments until a sufficient sum was raised to pay it off.
“As to the payment in Confederate money on the several debts of Thomas L. Feamster by S. W. N. Feam-ster, the $400.00 paid in 1862, on the Kent, Payne & Co. debt, is shown to have been in Confederate money, by the statement of W. H. Montgomery, admitted as evidence and filed.
“ From the deposition of Thomas Mathews, or statement filed to have the effect and force of a deposition subject to exceptions, it would -npt be a violent presumption to treat all payments made on debts in this county after June, 1862, as having been made in Confederate money, or a like depreciated currency, where there is no evidence to the contrary; and your commissioner so calculated it in the accounts, with the exception of one payment on the bank debt at Union, made January 24, 1862, which is scaled, by which the payment is reduced $51.00 ; and should it be held that the evidence did not justify this scaling, the sum, with its interest to June 1, 1877, can be added to the amount found due S. W. N. Feamster. With the evidence before the Court of Appeals, the conclusion seems to be arrived at by said Court, that the settlement of M. McDaniel and S. W. N. Feamster, was not a payment of the bank debt at Union (see page — of opinion); but as the case was to be referred, further evidence was to be permitted on behalf of S. W. N. Feamster, as to its payment. The additional evidence, is confirming' statement of M. McDaniel to be correct, and other statements of Bledsoe from bank books filed as evidence.
*637 “ All wbicb is respectfully submitted this 18tb day of May, 1877.
“ J. M. McWhorter.
“ Commissioner”
Statement of debt due S. W. N. Feamster, as fixed by decree of November 30, 1872, after modification of commissioner Walker's report,.$6,180 50
-$6,180 50
Items of interest in above amount, as shown by Walker’s report, as follows :
Interest on $3,502.62, balance found due as of June 1,1863, to November 25,1871. . . $1,782 83
Interest on $388.08 naid M. Hungers’ executor. , . 73 34
Interest on $400.00 paid on Kent, P. & Co. debt, September 26; 1868. . . . . 76 00
Interest on $175.00 paid on same debt, September 19, 1867. . . . . . 44 80
Interest on $147.00 paid on same debt, November 8, 1867. 35 84
Interest on $445.66 paid on same debt, June 22, 1870.• 37 88
$2050 69
Deduct principal and interest paid by Thos. L. Feamster. 496 40
-$1,554 29
Leaves as principal. $4,626 27
Interest on $4,626.27, principal in above amount, from November 25,1871, to June 1, 1877.$1,531 29
Add amount found due by decree. . . 6,180 50
Amount found due, with interest on principal to June 1,1877. . • . . . $7,711 79
From this deduct the difference in the amount paid by Arbuckle, reducing amount paid to 'gold value, and interest on difference to June 1, 1877. (See page of report No. 4). $1,807 48
Balance due S. W. N. Feamster. . . $5,904 31
Amount due S. W. N. Feamster as on preceding page.$5,904 31
Should the payments made to the bank at Union after January 1, 1862, be held to have been in Confederate money, taking the difference, with interest from this amount &emdash;(see next page, Nos. 2 and 3). . . $3,435 24
Leaves. $2,469 07
*638 The payment of $400.00 on the Kent, Payne & Co. "debt, April 30,1862, as per statement of Wm. H. Montgomery, was in Confederate money. Deduct the difference, with interest — (see next page, No. 3). $217 17
- $ 217 17
Leaves. 2,251 90
Now, if we deduct the difference in value of money on the balance paid on the $650.00 note in Lewisburgbank, with interest — (see next page, No. 5),. 999 19
- 999 19
Leaves due S. W. N. Feamster. . . . 1,252 71
Should it he held that S. W. N. Feamster should be charged with but $2,212.97 on price of slaves instead of $2,500.00, there will be the further sum of -to be added. 267 03
Interest on same for fourteen years. . . 241 00
- 528 03
Statement showing the value ojf Confederate money at the dates when payments were made by S. W. N. teamster, and the amount of sueh payments on a gold basis, and difference, with interest.
1st. $255.00 paid on debt in bank, at Union, January 24, 1862, (Confederate money, $1.25) $204.00; difference $51.00; interest to June 1,1877, $46.97.$ 97 97
2d. $2,681.02 paid on same debt, December 18, 1862, (Confederate money, $3.00,) $893.67; difference, $1,787.35; interest, $1,649.92. 3,337 27
- 3,435 24
3d. $400.00 paid on Kent, Payne & Co. debt, April 30, 1862, (Confederate money $1.40) $286.00 ; difference, $114.00 ; interest, $103.17.217 17
- 217 17
4th. $1,197.44 paid M. Arbuckle on debt to bank, at Lewisburg, May 7, 1863, (Confederate money, $5.50); difference, $979.73; interest from May 7,1863, to June 1,1877, $827.75. 1,807 48
- 1,807 48
5th. $588.00 paid on note in bank, at Lewis-burg, part of the $650.00 note mentioned, paid as of February 24, 1864, (Confederate money, 22.50) ; $difference, $561.87; interest to June 1, 1877, $437,32. ... 999 19
999 19
*639 Statement stowing account between j3. L. Feamster and S. C. Ludington, taking as a basis tbe decree ol 1872, and adding interest on tbe principal from November 25, 1871, to June 1, 1877, to tbe sum then found due, $2,122.37 principal, and $264.59 interest making; ..... $2,386 86
Interest on principal, $2,122.27, from Novem-
-$3,090 74
3,090 74
At request of counsel for Ludington, the following statement, showing amount due Ludington on 1st June, 1877, allowing him credit for what tbe bank notes and checks cost him, as per supplemental statement of Walker’s report, principal due November 25, 1871, $2,531.70, and $356.31 interest.. 2,888 01
Interest on $2,531.70 principal from November 25,1871 to June 1, 1877. 839 67
- 3,727 68
3,727 68
The following is a statement of the Dickson debt, with interest calculated thereon down to June 1, 1877 :
Judgment of Wm. H. Dickson, Greenbrier county, against Thomas L. Feamster, S. O. Ludington, D. H. Stalnaker and O. A. Stuart, on delivery bond.$ 980 00
Interest from May 27, 1860 to June 1,1877. 1,000 41
Costs. 3 83
- $3,983 24
1,983 24
This judgment has priority over the debts in tbe trust deed.
The following is a statement of the Matthew Mann debt, use J, W. Vance.
Dk.
debt. ..... . $1,800 00
Interest from February 23, 1861 to July 27, 1870. . 1,018 03
$2,818 03
Cb.
March 614 00
“ interest on same 27,1870. 51 37
“ amount paid July 27, 1870. 500 00
1,165 37
1,652 66
Interest on $1,652.66 to June 1,1877. 666 68
2,319 34
The following exceptions were filed to the foregoing report of the commissioner :
“ So much of this report is excepted to as gives S. C. Ludington a larger amount than was allowed by the circuit court before. So much of the decree appealed from as made that allowance was affirmed May 31,1877.
“ S. Price,
“For Plaintiffs.”
Exceptions.
“1st. The plaintiff, S. W. N. Feamster, excepts to so much of the report of J. M. McWhorter, commissioner of the court, as in any form disallows to him the whole amount of the negotiable note on the Bank of Virginia, at Union, below the actual amount thereof, which was $3,500.00, which was paid by said Feamster, with the costs thereof, after being matured into a judgment.
“ 2d. He also excepts to all of said report as allows to Wm. H. Dickson, or any other person, the amount or any part of the Dickson judgment against Thomas L. Feamster.
“ 3d. He also excepts to the charge of $400.00 against him, on account of moneys paid to W. H. Montgomery as T. L. Feamster. (See S. W. N. Feamster’s deposition). “S. Price,
“June 9, 1877. “For 8. W. N. Feamster.”
On the 23d day of June, 1877, the cause was again heard, &c., upon the report of commissioner J. W. Mc-Whorter made pursuant to the decree entered at the October term, 1876, the exceptions to said report, and the court decreed as follows:
“ Upon consideration whereof, the court is of opinion and decides that the statements of said report which ascertain the amounts due S. W. N. Feamster as $1,252.71,*641 Samuel C. Ludington as $3,090.94, J. W. Vance as $2,319.34, and the amount due in the judgment which' was originally in favor of W. H. Dickson as $1,983.24, all as of June 1, 1877, are correct, and should be allowed; and it is therefore adjudged, ordered and decreed, that said amounts be allowed, the said statements of said report confirmed, and that all exceptions to said report inconsistent with this decree be overruled. And the court is further of opinion and decides that the said judgment of W. H. Dickson as to him has been satisfied, and that he is no longer entitled to the benefit thereof, but that the same now belongs to and is for the benefit of the defendants, James H. Renick and S. C. Beard; and it appearing that the said Renick and Beard hold the due bill of W. H. Dickson and G. A. Rader mentioned and filed in this suit, it is ordered that a payment of said Dickson judgment to them shall be a full satisfaction of said due bill. It is therefore further adjudged, ordered and decreed, that the said S. W. N. Feamster, S. 0. Lud-ington, J. W. Vance, James H. Reniek and S. C. Beard recover from Thomas L. Feamster the said sum of $1,252.71, $3,090.74, $2,319.34 and $1,983.24, respectively, with interest on each of said sums from the 1st day of June, 1877, until paid, and their respective costs in this suit expended. And it appearing further, that the said creditors, by virtue of the said judgment and the sáid trust deed in the bill and proceedings mentioned, have a lien upon the land by the deed conveyed, and that the lien of said judgment is paramount to the lien of the said deed, and is entitled to be first paid in preference to the other said debts, it is"’’further adjudged, ordered and decreed, that the injunction in this cause be dissolved, and that A. C. Snyder, who is hereby appointed a special commissioner for the purpose, proceed at once to sell the said real estate in the manner and upon the terms prescribed in said deed, and report his proceedings under this decree to the next term of this court; and the said commissioner before receiving any money under this de*642 cree give bond in the penalty of $10,000.00, with security to be approved by the clerk of this court, conditioned according to law; and upon the coming in and c0nfirmati0n of the said report of sale, to be made as aforesaid, the said commissioner is directed out of the proceeds of said sale to pay first the expense of executing and recording said deed, if still unpaid, then pay the costs of the said S. W. N. Feamster, S. C. Ludington, J. W. Vance and James H. Renick and S. C. Beard, then pay the amount decreed to James H. Renick and S. C. Beard, and then pay ratably the amounts hereinbefore decreed to S. W. N. Feamster, S. C. Ludington and J. W. Vance, and retain the residue, if any, subject to the future order of the court; and when all the purchase money is paid, then W. C. Woodson, who is hereby appointed a special commissioner for the purpose, shall make to the grantee or grantees a deed or deeds in fee simple with special warranty of title for said lands, for which the grantee in each of said deeds shall pay him a fee of $5.00.
From this decree, the appellants have obtained from this Court an appeal, and also have obtained a superse-deas to so much thereof as appoints commissioners to sell the land, &c. In this way this case is again before this Court for review and determination.
The appellants insist that the court erred in not allowing the appellant, S. W. N. Feamster, the whole amount of the debt of $3,500.00, due the Bank of Virginia, at Union, Monroe county, by Thomas L. Feamster and others, and which it is claimed was paid off and discharged by S. W. N. Feamster, one of the securities of Thomas L. Feamster for said debt on the 19th day of January, 1861.
The paper referred to in the opinion of this Court, on page 320 of 9 W. Va., heretofore pronounced in this case, is now agreed to be genuine, and that M. McDaniel, who signed said paper, was at the date thereof, cashier of the bank at Union. This paper is a statement by the
It now appears by the record, that before said paper was executed by said cashier, the Bank of Virginia aforesaid, had obtained judgment against said principal and his securities for said debt, costs of protest and costs of suit. This fact seems to be indicated by said paper given by the cashier. It also now fully appears that S. W. N. Feamster, on the 19th day of January, 1861, after said judgment was rendered, paid to the cashier of the said bank $750.00, and delivered to said bank his negotiable promisory note, with security, payable at a future day, for the balance of said debt and interest up to that date, including $13.00 for costs of suit, which it seems was supposed to be the full amount of the costs, and the cashier of the bank, on said 19th day of January, 1861, executed his receipt to S. W. N. Feamster, acknowledging that he had received from him $3,652.82, “as above in full of execution in hands of sheriff of Greenbrier county, in favor of Bank of Virginia, at Union, against the said Thomas L. Feamster and others,” being the same parties against whom said judgment was rendered in favor of said bank. (See said paper at page 320, 9 W. Va.) It also appears that said S. W. N. Feamster made some payments on the note made by him and his securities, to the bank, on the 19th day of January, 1862, and had the note renewed from time to time, until the 18th day of December, 1862, he paid,the same; but it further appears that he paid the same or the greater part thereof, in greatly depreciated Confederate notes. The circuit court, in its decree has allowed S. W. N. Feamster the market value of the depreciated notes with which he paid*andj“satisfiedjhis said note to the bank. But S. W. N. Feamster claims that in this the court erred to his prejudice, and that the court ought to have allowed him the full amount of the debt due the bank
‘‘Amount debt due May 26, 1861. . . . $3,500 00
Notarial fees. . , . . . 3 20
__ <j>g gQg 20
Interest to 19th, January, 1861. . . . $136 62
Costs of suit, including sheriff’s costs ($3.00) 13 00
- $149 62
$3,652 82
By cash of Newman Eeainster. . . . $ 750 00
By proceeds of his note due at 116 days $2,962.00, off $50.22. 2,902 82
■-$3,652 82
“Suspended debt, T. L. and S. W. N. Feamster, . . $3,500 00
Interest, T. L. & S. W. N. Feamster, . . . 136 62
L. E. Caperton, notary, costs, T. L. and S. W. N. Feamster, 3 20
Expense account, costs of suit,. 13 00’’
This entry, according to the bank books, was made on the 19th day of January, 1861, and the items in the aggregate amount to the precise sum stated in said receipt. The question here arises, is the foregoing evidence, under the circumstances, sufficient to establish the fact that the said note of S. W. N. Feamster, executed to the said bank on the 19th day of January, 1861, was, by express agreement, received and accepted by the bank in satisfaction and discharge of the balance due on said debt or judgment, after deducting the money paid on that day. It has been held that where a creditor receives a negotiable note for an antecedent debt, and passes the note to a third person, the antecedent debt cannot be recovered unless the plaintiff shows the note to have been lost or produces and cancels it at the trial. In Massachusetts and Maine, when a debtor gives to his creditor a bill of exchange or negotiable note for a debt due on simple contract, the legal presumption is, that the bill or note was received in payment. The rule in these States certainly differs from that adopted in others, and in the Circuit and District Courts of the United States and the Supreme Court thereof. The Supreme Court of the United States considers it, “ generally true that the giving a note for a pre-existing debt, does not discharge the original cause of action unless it is agreed that the
In 1849, Allen, Judge, considered it as settled by the adjudications in New York, that the notes of the debtor of a third person will not be considered as any thing more than the conditional payment of an existing .debt unless it is proved that they were agreed to be taken absolutely as payment of said debt. “ According to these adjudications, taking the note of a third person tor an existing debt is not payment, unless the creditor agrees to receive it as payment; and not even such agreement of the creditor is sufficient when the note received is of the debtor himself.
In 1841, Cowen, Judge, said : “ It is entirely settled that a promisory note of the debtor in no way affects or impairs the original debt, unless it be paid. The creditor may, notwithstanding, recover on the original consideration, surrendering or cancelling the note at the trial. The note is a mere liquidation of the demand and it being the duty of the debtor thus to liquidate ánd secure the demand, nay, to do more, it follows that an accept-
The Supreme Court of the United States, (in 1810) considered that the note of one of the parties, or of a third person, may by agreement, be received in payment. Since then the subject has been much discussed; and cases have been frequently distinguished. 5 Rob. Prac. 861, and cases there cited in notes. The King’s bench held that if the plaintiffs did expressly agree to take and did take, the separate bill of exchange of one of two partners in satisfaction of the joint debt, their so doing amounted to a discharge of the other. Thompson v. Percival, 5 Barn. & Adol. 934, 27 Eng. C. L.; 5 Rob. 863.
In Pennsylvania, in 1842, Huston, Judge, said “the result seems to be, that although a note given for a precedent debt, is not generally an extinguishment of such precedent debt, yet if agreed and accepted so to be, it shall be what it was agreed and accepted for.” Mason v. Wickersham, 4 W. & S. 100; Oliphant v. Church et al., 19 Penn. (7 Harris) 318.
“Whether or no the unperformed promise, oral or written of one of two already bound for the same debt by a like promise to the same party, can discharge or be pleaded or used in evidence to bar the legal remedy on the original promise, it may be safely affirmed, on principle and authority, that such discharge will not be effected, nor such bar be created, unless the parties making and accepting such new promise intended or stipulated that such discharge or bar to the former assumpsit should be*649 the consequence of the making and acceptance of the new several promise. When a man has the security of the firm and also the security of the separate estates of the individual members of the firm, it is not without some cogent evidence, to be assumed that he to whom the law has given this double advantage should relinquish apart of it. From what has been said in section 5, it will be understood, that taking a bill for and on account of a debt operates not as an absolute discharge of the debt, but only as a conditional payment which is defeated by the subsequent dishonor of the bill. Hence when the instrument given by one of two or more partners, is not accepted in full satisfaction and discharge of the former debt, but merely received for and on account of the debt, it is proper for the plea to show either that such instrument is not due. or is endorsed to a third person. Itisso although there be judgment on the instrument; for judgment without satisfaction is no payment. 5 Rob. 864-5. In the case of Glenn v. Smith, 2 Gill & Johnson (Md.) 493, it was decided that “the acceptance by a creditor from his debtor of his promisory note, for an antecedent simple contract debt, doesnot extinguish the original debt, if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled, or show it to be lost. But the creditor will not be suffered to recover on the original cause of action, unless he can show the note to have been lost, or produces it at the trial, to be cancelled. The acceptance by a creditor of a note or bill of a third person for a pre-existing debt, is no payment, or extin-guishment of such debt, unless the creditor parts with it, or is guilty of laches in not presenting it for payment in due time. ' In either of the above cases, an express agreement by the creditor to receive the note or bill absolutely as payment, and to run the risk of its being paid, is an extinguishment of the previous debt, whether the note or bill be afterwards paid or not. Such agreements are not to be implied from the use of the words, “in payment of the above account” in a receipt for*650 tbe note. To give to the acceptance of a note the effect of an absolute payment or extinguishment of a debt, a contract that it should be so must be shown. The acceptance of a note by a creditor for a precedent debt, is a suspension of his right of action until the note reaches maturity.”
In Kearslake v. Morgan, 5 Tenn. 513, it was conceded, “that a promisory note of a third person accepted and received by a creditor, for and on account of a debt due him,” was not of itself an extinguishment of that debt. In Puckford v. Maxwell, 6 Tenn. 52, where the plaintiff had accepted a bill in part payment of his debt Judge Kenyon said, “ if the bill which is given in payment, does not turn out to be productive, it is not that which it purports to be, and which the party receiving it expects it to be, and therefore we may consider it a nullity, and act as if no such bill has been given.” There the fact of a note being given in payment was held not to be an ex-tinguishment of the debt. The same principle has been followed out in the courts of New York. In Tobey v. Barber, 5 Johns. 68, there was a receipt by a landlord to his tenant, in these words: “ Received of Ralph Barbour, $163.00, on account of the within lease, and in full for the second and third quarters rent.” It turned out in evidence that the sum of $163.00, mentioned in the receipt, was made up in part of money paid by the defendant to the plaintiff, and in part of a note of a third person given to the plaintiff, and it was decided, that there was no evidence that the plaintiff agreed to run the risk of the solvency of the maker of the note, and to take the note in absolute payment, except by inference arising from the receipt which was not enough to establish such a positive agreement. There was receipt in full, purporting to be for cash, which might have afforded some ground for supposing that the plaintiff intended to treat the note as cash, and to put it on the same footing with the money-received, which as far as it went, was a discharge of so much of the rent. In Johnson v.
In the case of Steamboat Charlotte v. John R. Hammond, 9 Mo., with Heuek’s notes, top page 49, side page 60, it was held, “ that neither a note nor a receipt in full, without a special agreement, will extinguish the original demand.” In the case of Witherby v. Mann & Mann, 11 Johns. 516, it was held, that “when a negotiable note has been received, expressly in satisfaction of a judgment, it is an extinguishment of the judgment debt.” But in this case it was proved by the judgment creditor, that “ he had received from the plaintiff, his promisory note for $52.17, being the amount-of that judgment, which note remained unpaid, and was received by him in full satisfaction of the judgment, and for which he
I will remark here that I do not see in the record before us a copy of the execution which it is claimed by the appellee was issued on the judgment of the bank, or the return of the sheriff of Greenbrier county made thereon, although the counsel for appellants refer to said execution as being on page 57 of the record. I infer however if an execution ever did issue on the judgment that it was never returned to the clerk’s office. It no where appears that the execution, if ever issued, was levied on any property of the judgment debtors. I simply mention these facts without further comment. The appellants further claim that the circuit court erred in ascertaining that the amount due on the judgment which was originally in favor of W. H. D. Dickson, was or is $1,883.24, as of June 1, 1877, and in decreeing that the same now belongs to and is for the benefit of defendants, James Renick and S. C. Beard, and in decreeing that said Renick and Beard recover the same against Thomas L. Feamster, with interest thereon, from the 1st day of June 1877, till paid, and their costs about this suit expended, &c., and that the same constituted a lien on the lands in the deed of trust in the bill and proceedings mentioned. Since this cause was formerly before this Court, material additional evidence has been taken and filed in the cause before the commissioner. This evidence is in the shape of depositions taken and papers filed in the cause before the commissioner. When the cause was here before, I thought that the evidence, then in the record, was not sufficient to authorize me to determine and declare that said Dickson judgment was paid and satisfied, but without analyzing the evidence bearing on the subject-, my conclusion now is after
As before stated, I deem it unnecessary to analyze the evidence, facts and circumstancesappearing in the cause, from which my conclusions are drawn. That would extend this opinion to an unnecessary length. I feel authorized to content myself with stating the law relevant to and bearing upon the case, and my conclusions thereupon. I am satisfied that said Dickson received the full benefit of the amount of his said judgment from John Snyder, and that said Snyder afterwards received full sátisfaction and payment of the same from Andrew Beard, who was sheriff of said county of Greenbrier, and who, on the 3d day of December, 1860, as such sheriff, received an execution against the goods and chattels of Thomas L. Feamster,issued upon the Dickson judgment, and upon which he never made any return. I am further satisfied that said sheriff during his lifetime, and after he had received said execution last named, and after the return day thereof, and after his term of office as sheriff had expired, paid to or settled with the said John Snyder, the full amount'of said Dickson judgment, which said Snyder had paid to said Dickson. But it does not appear that said sheriff paid said amount of said judgment to said Snyder at the request of the judgment debtor, Thomas L. Feam-ster, who was the principal debtor in said judgment,
In the case of Sanford v. McLean, 3 Paige 117, it was held, that “it is only those cases where the person advancing money to pay the debt of a third party, stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity, as a matter of course, and without any agreement to that effect, substitutes him in place of the creditor. In other cases, the debt of a creditor, which is paid with the money of a third person, without any agreement that the security shall be assigned or kept in fact for the benefit of such ' third person, is absolutely extinguished.’'
In the case of Janney’s ex’or v. Stephens’s adm’r, 2 Patton Jr. & Heath (Va.) 11, it was held: “ 1, The voluntary ' payment of a debt by judgment, constituting a lien on land, does not entitle the party paying it, to be substituted to the lien of the judgment creditor; the benefit of the doctrine of subrogation being extended by courts of equity only to those who are bound by law to pay-debts or liens as sureties or otherwise, or are compelled to pay to protect their own rights. 2. When a person has paid oft several executions against another, for some of. which he was bound as surety, and for others not bound at all, and when he has received personal property of the debtor, sufficient to satisfy them in part, the oldest judgments will be presumed to be satisfied out of the proceeds of the judgment debtor’s property, as they constitute a prior lien on the same.”
In the case of Clevinger v. Miller, 27 Gratt. 740, it was held according to the syllabus that: “A sheriff or other officer, who pays an execution in his hands for col
“First question, by S. W. N. Feamster. — Did you, during the life of Andrew Beard, have any conversation or conversations with him in reference to the Dickson debt involved in this suit? If you had, state under what circumstances they were held, and what was the purport of them. State fully all you recollect.
“Answer. — Soon after this suit was instituted, when I represented but before I owned the Ludington debt, I had been looking into the deed of trust, and found the Dickson debt mentioned. I made a further examination, and found there was a judgment for this debt older than said deed. I was anxious and interested to know what amount of debts still unpaid were in the deed or ahead of it, and as I saw that an execution on said judgment had gone into the hands of the sheriff, who was then Andrew Beard, I went to him to learn whether the Dickson debt had been paid. He told me in substance that he knew and recollected nothing whatever about it did not know he had ever heard of it. I then asked him to examine his papers, to see what they showed on the subject, and report to me the result. He said he would do so. The next time I saw him, some ten days or two weeks afterwards, he said he had examined his papers, could find nothing but the execution in favor of Dickson against Feamster; that there was no return nor memorandum on it, and that he knew nothing whatever*661 about it. He made no pretension to having ever paid it, and certainly made no claim to it. Farther, Andrew Beard was present when the depositions of J. G. Bader and John Snyder, and perhaps others, were taken in the cause, by commissioner Alexander Walker, heard their testimony, and he then made no claim to the Dickson debt.
“2d Question, by same. — Were you acquainted with the pecuniary circumstances of Andrew Beard? If you were, state whether they were such that he would have forgotten such a debt as the Dickson debt if he had been entitled to it. State what his circumstances were.
“Answer — I can only say that all of his property was sold under legal process for payment of his debts, and the proceeds failed by a large amount to pay his indebtedness.
Examined by Counsel for JRenicJc and Others.
“1st Question. — Who is now the owner of the debt claimed by W. H. Dickson — that is, to whom will the claim be paid if Dickson’s pretension is sustained ?
“The witness declines to answer this question, because he knows nothing about the subject of the question except what he knows by communications from Dickson to him as attorney and this he claims is privileged. I have no interest in it except to the extent of my fee.”
These conversations of Andrew Beard were long after he should have.paid or settled with said Snyder the amount of said Dickson judgment and it is singular indeed, if he had paid said j udgment out of his own funds, that it should have escaped his memory. These facts and circumstances unexplained are wholy irreconcilable with the pretension now set up in this cause at this late day? that Andrew Beard had paid said Dickson judgment and advanced the money to pay the same for the judgment debtor. Again it does not appear that the said due bill of Dickson and Rader to Snyder was found among
And this Court proceeding to render such decree in the cause as the said circuit court of the county of Greenbrier ought to have rendered, it is adjudged, ordered and decreed, that the statements of the report of commissioner J. M. McWhorter, which ascertain the amount due S. W. N. Feamster as $1,252.71, and Samuel C. Lud--ington $3,090.94, as of the 1st day of June, 1877, are unpaid. And that the statement oí said commissioner which ascertains the amount due J. W. Vance as $2,319.34, as of the said 1st day of J une, 1877, is incorrect on its face in this, that there is an error therein in a matter of interest to the amountof$51.37, which should be corrected by adding the said sum of $51.37 to the said sum of $2,319.34, which in the aggregate amounts to the sum of $2,370.71, as of the 1st day of June, 1877. It is further adjudged, ordered and decreed, that all exceptions filed to said report of commissioner McWhorter, inconsistent with this decree, be overruled. It is further adjudged, ordered and decreed, that Thomas L. Feamster do pay to S. W. N. Feamster, the sum of $1,252.71, with interest thereon from the 1st day of June, 1877, till paid; and to S. C. Ludington the sum of $3,090.74, with a like interest; and to J. W. Vance the sum of $2,370.71, with a like interest, together with their costs respectively, about this cause in the circuit court of the county of Green-brier expended. And it is further adjudged, ordered and decreed, that each of said last named debts, with interest as aforesaid, constitutes a lien of equal priority upon the lands in the deed of trust in the bill and proceedings in this cause mentioned, by virtue of said deed of trust. It is therefore further adjudged, ordered and decreed, that unless the said debts, with interest as aforesaid, are respectively paid within eighty days from the date of this decree, together with the costs aforesaid, A. C. Snyder, who is hereby appointed a special
Cause Remanded.