35 W. Va. 167 | W. Va. | 1891
This was a suit in chancery, instituted by the plaintiff’, Benjamin Hall, against Hannah T. Wilkinson “in her own right” and as administratrix of William I). Wilkinson, deceased, and against the heirs of said Wilkinson, and E. C. Hopkins and Thomas T. Hopkins, in the Circuit Court of Mason county.
The bill alleges that on the 12th day of October. 1864, the defendant Thomas T. Hopkins conveyed to the said William I). Wilkinson a tract of land containing one hundred and thirty acres, three roods, and sixteen perches. It is further alleged that the sale was partly on a credit, and that there was one purchase-money note, which, after being credited with certain payments made by W. D. Wilkinson, was assigned by said Thomas T. Hopkins to the defendant E. C. Hopkins. The original amount of this note is alleged to have been one thousand dollars, and it is averred that the assignee, E. C. Hopkins, purchased from said W. H. Wilkinson a lot of two and three fourths acres of land immediately adjoining the town of Graham Station, and also a lot of one eighth of an acre in said town, making in all two and seven eighths acres of land, for which it is alleged E. C. Hopkins paid by crediting the price upon the one thousand dollar note, of which he was assignee; and he also, as alleged, took a title-bond from said W. I). Wilkinson, but that said W. H. Wilkinson, being cut off by sudden and accidental death, never made any deed for these two and seven eighths acres of land. It is alleged, however, that after said W. I>. Wilkinson’s death E. 0. Hopkins, in the year 1868, brought a chancery suit to obtain a deed from the heirs at law of said Wilkinson, which was pending for several terms in said Circuit Court until the papers were lost, and nothing further was done in the case. It is further averred that said E. C. Hopkins assigned to the plaintiff, said Benjamin Hall, the said title-bond for the consideration of one hundred and twenty five dollars per acre for the two and three fourths acres of land, and fifty dollars for the one half acre lot, which title-bond plaintiff had in his possession for a year or two, but which has been lost or destroyed, and
Plaintiff alleges further that E. C. Hopkins, on the 21st of February, 1868, contracted to sell to him said two and seven eighths acres of land by written agreement, which he files as an exhibit, and that he has paid Hopkins in full. He alleges that he took possession of the two and one half acres and the two and three fourths acres, and held the same until January, 1875, when he agreed to surrender possession thereof to the personal representative and heirs of said W. I). Wilkinson, if said administratrix would return to him the mouey he had paid out for said estate on the original purchase note for said land, then amounting to six hundred and forty three dollars ; and accordingly she sent her son James to examine the condition of the land, and, being satisfied with his report, she agreed to receive it back, and return to the plaintiff his money out of the estate of decedent, and possession was delivered to her, and she and said heirs have enjoyed the possession of the land ever since ; and yet she has not paid one cent, but refuses to return to him either the said purchase-money or the said note of one thousand dollars. Plaintiff claims that as assignee of said one thousand dollar uote he is entitled to have the same returned to him, and said
There is exhibited with the bill an exhibit bearing date September 13, 1869, signed and sealed by Hannah T. Wilkinson and Benjamin Hall. It is very inartificially and illiterately drawn, but appears to be an agreement whereby Hannah T. Wilkinson for the sum of three hundred and forty three dollars binds herself to make him, or cause to be made, a good and sufficient deed for two and one half acres of land of W. D. Wilkinson, deceased. Nothing is said in this agreement about any one thousand dollar note, but the three hundred aud forty three dollars consideration is described as money paid for H. T. Wilkinson for the purchase-money for the said land bought by W. D. Wilkinson, deceased, of Thomas T. Hopkins.
This bill was demurred to by the defendants, but the demurrer was overruled. Thereupon the said Hannah T.. Wilkinson, in her own right and as administratrix of W. D. Wilkinson, filed her answer. In this answer she admits that the' land which her husband bought of Thomas T. Hopkins was bought partly on credit, and that said W. D. Wilkinson executed his notes for the deferred payments; but she denies that the last of said notes was for one thousand dollars, and alleges that it was for the sum of seven hundred and fifty dollars, and was not assigned to plaintiff’; and she files the same as an exhibit with her answer. Every other material allegation of the bill is denied, and the statute of frauds and perjuries, and also the statute of limitations, are relied upon.
It is apparent from the record that the plaintiff consci
Numerous depositions were taken by both plaintiff and defendants, and the Circuit Court on the 19th day of February, 1887, entered a final decree.
The infant defendants likewise answered the bill, but, as the bill was dismissed as to them, it is not necessary further to notice their answer.
The court referrred the cause to a commissioner for the purpose of taking evidence and reporting upon the alleged lost title-bond, and the existence and whereabouts of the one thousaud dollar purchase-bond or note. Both the infant defendants and the administratrix demurred to the bill, but the demurrer was overruled.
The final decree, entered on the' 19th day of February, 1887, exempted the estate of W. D. Wilkinson, deceased, from all liability by reason of the alleged lost title-bond, or by reason of any balance claimed by the plaintiff to be due him as assignee of the purchase-note of one thousand dollars, and dismissed the bill as to the heirs at law. But the court was of opinion that the plaintiff was entitled to a decree against the defendant, Hannah T. Wilkinson, in her own right, for the sum of three hundred and forty three dollars, with legal interest thereon from the 1st day of January, 1875, amounting at the date of the decree to the sum of five hundred and ninety dollars and ninety eight cents, and leave was given to the plaintiff to sue out execution for that amount, with his costs and twenty dollars damages.
The first question to be considered is: — Should the demurrer to the bill have been overruled ? The relief sought by the plaintiff was founded in part upon a title-bond
In the case of Mitchell v. Chancellor, 14 W. Va. 22, it was held: 1. Equity has jurisdiction, wherever a lost instrument is to be set up, notwithstanding- courts of law now exercise jurisdiction in the same case — 2. In such a case a court of chancery, having jurisdiction for one purposes will adjudicate the whole merits of the cause. See, also, Lyttle v. Cozad, 21 W. Va. 183, which was approved, and the same principles re-affirmed, in the case of Handy v. Scott, 26 W. Va. 54. I think, therefore, that upon this ground the court of chancery had jurisdiction, and the demurrer was properly overruled.
It will be observed, moreover, that the bill was in part a bill of discovery, calling upon the defendant, Hannah T. Wilkinson, to discover and produce the one thousand dollar note or bond, with its indorsements and credits. In the case of Neely v. Jones, 16 W. Va. 625, it was said, in substance, that a stranger who pays a debt without the request or authority of the debtor, when the payment is not after-wards ratified, may, if he chooses, bring a suit in equity stating this fact, and praying, that if the payment be not ratified by the debtor, the debt may be enforced in his favor as the equitable owner thereof; or, if the payment be ratified by the debtor, that the court will decree to the stranger repayment of the amount so advanced by him for the use of the debtor; and the court will give the one relief or the other prayed for.
In the case we are considering, the plaintiff claimed in his bill that he had paid to E. C: Hopkins, assignee, a certain debt which vas due said Hopkins by the estate of W. II. Wilkinson, deceased. Taking this claim to be true, we think it constituted a proper subject of equitable interference. I am of opinion, therefore, that there was no error in overruling the demurrer to the bill.
But with regard to Hannah T. Wilkinson, who had been proceeded against “in her own right” as well as in her representative capacity, the court found otherwise, and entered a decree agaiust her personally, as we have seen, for the amount of money which in the agreement of September 13, 1869 (which was executed by her in her individual capacity) she acknowledged to have received with interest from the 1st day of Jauuary, 1875; and we are now to consider whether the Circuit Court erred in its judgment in this respect.
It is objected, in the first place, that the claim against her personally was for a liability which should have been prosecuted in a court of law; but, as we have seen, “if the court of chancery has jurisdiction for one purpose, it will adjudicate the whole merits of the cause,” and will not drive the parties to a new suit, or to another forum. Mitchell v. Chancellor, 14 W. Va. 28.
It is further objected that the claim against her personally is barred by the statute of limitations. The Circuit Court, however, evidently found from the evidence that Mrs. Wilkinson, in the year 1875, found herself unable to carry out the contract which she had entered into on the 13th of September, 1869, and had retaken possession of the land mentioned in said contract, and agreed to return the purchase-money, which in conscience she was bound to do. As a question of fact, that she had retaken possession of the lot of two and one half acres which as administra-
AFFIRMED.
