George W. Hoylman on October 20,1860 being indebted to his father-in-law, Michael Fleshman, then over seventy years of age, in the sum of $1,000.00 executed to him his note therefor payable on October 20,1865, with interest from that date, and on the same day executed a deed of trust to his brother-in-law B. F. Fleshman as trustee to secure the payment thereof, with power to sell in case of default of payment, which deed of trust was duly acknowledged and recorded in the proper county.
On June 1, 1871, the interest on the $1,000.00 debt was calculated and added to the principal, and said George W. Hoylman executed to said Michael Fleshman another note for $1,637.00 the aggregate of principal and interest, due on the former note with interest from that date, and payable on June 1, 1876, in renewal thereof, and to secure the payment of this second note h£ executed a second deed of trust upon the same lands to the same trustee, with power of sale in case of default in the payment of the $1,637.00 note, in all respects similar to the first. On April 26, 1878, without anything having been paid thereon, or claimed by George W. Hoylman to have been paid thereon, the interest was again calculated on the $1,637.00 note, and added to the principal and being then interrogated by Michael Fleshman whether he had anything else (referring to a claim of about $800.00 for which he claimed credit before and at the time he executed the second note for $1,637.00 which was then repudiated and disallowed, which will be referred to hereafter) “he 'replied, I have not.” Michael Fleshman then called his attention specifically to some articles of clothing furnished him by Hoylman, and also to the fact that he had boarded in the family of Hoylman — at one time for the period,' of ten years, but Hoylman declared that he made no charge and claimed no credit on the debt for any of these matters. To this MiehaelFleshman replied, “if you have not 1 have,” and drew from his pocket a paper containing a list of the articles which had been so furnished him by George W. Hoylman, “which he had never paid for, but which he intended to pay for.” He required the witness who was making the calculation to put down the items as he gave them
This deed of trust conveyed to the trustee the same lands, aud also twenty head of stock cattle, six mileli cows, two yoke of oxen, two wagons and one buggy, to secure the debt of $1,131.16 and contained a power to sell, in all respects similar to that in the former deeds of trust save only that the power to sell, was postponed for the period of one year after the bond should become payable.
The last named deed of trust was acknowledged on the day of its date, and recorded in the proper county on October 25, 1878.
On March 7, 1879, Michael Fleshman by formal deed of that date assigned and transferred to B. F. Fleshman, as trustee, for the benefit of certain of his children and grand children therein named, in definite amounts and proportions, all the debts due to him, including the bond of George W. Iloylman for $1,131.16, which with all other evidences of the debts so assigned were delivered to the trustee, of which assignment George W. Hoylman, as early as May 10, 1880, had actual notice.
On May 25, 1880, George W. Iloylman obtained from Michael Fleshman the following receipt:
“Received of Geoi’ge W. Iloylman $400.00,to. be credited on a bond I hold against him, now in the bauds of B. F. Fleshman, and for which there is a lien on record in the clerk’s office of Greenbrier county, State of West Virginia, on the real and personal estate of said George W. Iloylman, exe-*731 :uted to B. F. Fleshman, as trustee, for my benefit. The :aid $400.00 is due the said George W. Hoylman on settlement made with him this day, and it is to be credited on the ¡aid bond of about $1,100.00, and is to bear no interest until ny said bond oí about $1,100.00 is due.
“Given under my hand and seal this May 25, 1880.
his
“Michael X Fleshman. [seal.]
mark.
“Wittess : — ManeRva S. Mathews.”
And on November .29, 1881, he obtained from Michael fleshman the following release :
“I, Michael Fleshman, do hereby release a deed of trust nade by George W. Hoylman to Benjamin Fleshman, my rustee, dated April 26, 1878, and recorded in the clerk’s tftice of the Greenbrier county court, West Virginia, in deed->ook No. 30, p. 505, of the records of said office.
“Given under my hand this November 29, 1881.
“Michael Fleshhan.”
This release was duly acknowledged, and on the day after ts date, was recorded in Greenbrier county. Michael Flesh-nau died in a little more than a year afterwards at the ad-•auced age of about ninety-two years, and B. F. Fleshman vas appointed his administrator.
At May rules, 1884, B. F. Fleshman, as trustee, in the leed of assignment made by Michael Fleshman, filed his bill n the ¿circuit court of Greenbrier county, against George AN. loylman and the beneficiaries mentioned therein alleging in ubstanee, the execution by Michael Fleshman to him of the leed of assignment dated March 7, 1879, and also the execu-ion by Hoylman to Michael Fleshman the bond of $1,131.16, nd of the deed of trust dated April 26,1878, to secure the pay-lent thereof, that the consideration .was money loaned many ears before by Michael to Hoylman; that the bond had ieen renewed as hereinbefore stated, and at each renewal a leed of trust had been executed to secure the payment hereot, and made copies of the deeds of trust hereinbefore eferred, parts of his bill. He further alleged that on No-ember 29, 1881, George W. Hoylman through fraud and ozen procured Michael Fleshman to execute to him the elease of said deed of trust of April 26, 1878; that Michael
George W. Hoylman answered the bill admitting the exu cution of the bond of $1,131.16, and of the deed of trust t secure the same, and that this bond was in renewal of thj said bonds of $1,687.00 and of $1,000.00, and of the severa deeds of trust to secure the same as hereinbefore stated. H denied that the consideration of either of the first two, or o the last bond was for money loaned, and averred that th consideration was certain paper upon other parties wliic Michael Fleshman had assigned to him, and which, withou default or laches on his part he had failed to collect, and tin this amount, he was entitled to by reason of this fact to hav credited on his bond, had long been a matter of differenc and discussion between them; that on . May 25, 1880, th; matter of difference was adjusted between them, and Micha» Fleshman voluntarily agreed to fix said sum at $400.00, an gave to him the said “receipt” of $400.00 ; that the balanc remaining unpaid upon the bond amounting to $254.46, he the paid to Michael Fleshman,who on November 29,1881 execute and acknowledged said “release,” and that respondent had n
To this answer a general replication was filed.
On July 12, 1884, upon notice to the defendants, the cir-:uit court in vacation made an order referring the cause to a lommissioner to state and report:
On June 17, 1885, the commissioner completed his report, vhereby it appears that he made alternate statements of the iability of the defendant George W. Hoyelman to the plain-.iff, in one of which he allowed him credit for the $400.00 nentioued in said receipt, and thereby extinguished the bond if $1,113.16, and in the other he disallowed the said credit, and Lscertained the balance due on said bond to be $400.00 with nterest thereon from April 26, 1882, amounting on June 16, L885, to the sum of $474.66.
The plaintiff on June 19, 1885, excepted to that aspect of :he report which allowed the creditof the $400.00 mentioned n the receipt, dated May 25, 1880.
On June 30,1885, the cause was regularly heard, upon the lommissioner’s report, the plaintiff’s exceptions thereto, and ;he court upon consideration of the premises by its decree, mnulled and set aside the receipt of $400.00, and also the •elease executed by Michael Fleshman to George W. Hoyl-nan, and adjudged, ordered and decreed that B. F. Flesh-nan trustee, recover of Hoylman $476.40, with interest from hat day and costs, and that unless paid within thirty days, ;o much of the property mentioned in the last deed ot trust is may be necessary to pay the same, be sold by a special iommissioner appointed for that purpose.
From this decree George W. Hoylman has obtained an appeal and supersedeas.
First — There was no prayer in the bill for the enforcement of the trust-deed, and no allegation of facts, on which-such relief could be predicated.
Second. — Because the decree charged the appellant with the sum of $400.00, specified in said “receipt.”
Much testimony was taken by the appellee, to show that oi May 25, 1880, when the receipt of $400.00 was executed, ant on November 29, 1881, when the “ release ” was executec Michael Fleshman, by reason of his great age, and physica and mental weakness, was destitute of the mental capacity t< transact any important business, and that the receipt and tin release were for that reason null and void. To rebut this tes timony, the defendant Iioylman examined the witnesses win were present, when the bond of $1,113.16 and the deed of trus to secure the same, and those present when the receipt fm $400.00 and the release were executed, and of many othe¡ witnesses who for many years and up to the time of his deatl had been intimately acquainted with Michael Fleshman From a careful examination of all this evidence it is perfectly clear to our minds, that Michael Fleshman at the time tin “ receipt” and “ release ” were executed, was in the full pos session of his mental faculties and perfectly understood exact! what he intended to do, what he desired to accomplish b; his act, and what the legal effect of his act would be, if B. F Fleshman did not have the legal right to prevent it; and w may dismiss this branch of the controversy, well assured, tha if Michael Fleshman had the right to execute such receipt an< release, he has effectually done so.
There is no controversy as to any other amount than th< $400.00 specified in the “receipt,” with interest thereon fron April 26,1882, when the bond for .$1,181.16 became payable as it is admitted by the plaintiff below, that all the residue o the bond had been paid by Hoylman, and the amounts so pah had been received by the plaintiff in his character oí truste under the deed of assignment dated March 7, 1879. It is no preteuded by the appellant, that on May 25, 1880, when th receipt for $400.00 was executed, he paid Michiael Fleshmai $400.00 or any other sum of money on his bond of $1,131.1 The phraseology of the receipt itself is peculiar, if not suspic
“ Michael X Fleshman. [Seal.]
“Witness: — Maneeva S. Matthews.”
The evidence in the record shows beyond doubt, what matters entered into the settlement of May 25, 1880, which resulted in the receipt of $400.00. The testimony of the defendant Hoylman himself and of the witnesses examined on his own behalf, and among them his sons John H. Hoylman and K. B. Hoylman, makes it perfectly clear, that the consideration of the bond of $1,000.00 executed by Hoylman to Michael Fleshman on October 20, 1860, secured by the deed of trust of that date was two bonds assigned to him by said Michal Fleshman, one on Joseph Myles for about $558.00 and one on Crawford Hull for something over $400.00, that Hoylman held this bond on Myles, until about March 10, 1861; that at that time Michael Fleshman held another bond on Myles amounting to $1,148.39; that Myles then on his death bed, had borrowed of John Surbaugh $10,000.00 in paper ; that Michael surrendered to the agent of Myles his bond of $1,148.39 and accepted in payment, bonds upon one Stalnaker assigned without recourse; that Hoylman on the same day, exchanged and surrendered his bond on Myles of' $558.00, and accepted in satisfaction thereof, a bond of said Stalnaker for the same amount which was assigned to him without recourse, and in twenty days thereafter Myles died. Stalnaker having also died, Hoylman on March 28, 1864) collected- from his administrator the sum of $657.26 the
On April 26,1878, before the bond of $1,131.16 and the last deed of trust were executed, another angry discussion over this same demand occurred accompanied with additional threats of bringing suit to recover the same, but finding he could not attain his end in this way, he declared he claimed no other credits than those already allowed him, he executed his boud for the $1,131.16. and the third deed ot trust, which included a large amount of personal property besides the lands included in the former deeds of trust.
From these facts it is perfectly clear that on May 25,1880, Hoylman had no just demand upon Fleshman for any sum whatever for which he could claim credit on his bond, nor did Michael Fleshman owe him the sum ot $400.00 or any other sum whatever, on account of the Stalnaker bond of $558.00. So that the controversy in this case is narrowed down to the simple question, whether Michael Fleshman having executed to B. F. Fleshman trustee the deed of assignment of March 7, 1879, and delivered this bond of $1,131.16 with others to' him as such trustee for the beneficiaries mentioned therein, can afterwards, without their consent deprive them of the benefits thereof?
The terms ot this deed of assignment are absolute and unconditional, no interest in, or control over the bonds assigned is reserved to the assignor; he has disposed of his entire interest to the trustee and directed the manner in which the proceeds thereof shall be distributed and fixed the several portions to which each of his children and grand-children mentioned therein is entitled to receive from the trustee. Although entirely voluntary, it is an absolute gift of the moneys specified in said bonds, and one which he had the
The release, executed in pursuance of this receipt was upon its face a complete extinguishment of the right of the trustee B. F. Fleshman to sell the real or personal property conveyed by the last deed of trust to secure the debt of $1,131.16. He had the right to come into a court of equity and invoke its assistance in removing this obstacle to the execution of his trust, and that court having taken jurisdiction for that purpose, and having all the parties interest before it, will, on well settled principles retain the cause for all purposes, and will grant to the parties the relief to which they are entitled.
We are therefore of opinion that a court of equity had jurisdiction to annul and set aside the receipt and release, and that having taken jurisdiction for that purpose andan-, nulled and set the same aside, it had jurisdiction to afford to the plaintiff complete relief by entering against George W. Hoylman a personal decree for the balance ascertained to
Aeetrmed.