23 W. Va. 90 | W. Va. | 1883
George C. Shafer by his trust-deed of November 2, 1873, specificially charged the said forty-five acres of land as security for the debt of one thousand and eighty dollars due from him to William Chesney, and by the subsequent conveyance of the land to Martin V. C. Brookover, the said Martin V. C. was by the terms of the deed to him made liable for one thousand dollars, the unpaid part of said debt and a vendor’s lien expressly retained to pay the said one thousand dollars. By this stipulation in the deed the said Martin V. 0. became primarily responsible to Chesney for said debt and the land in his hands was specifically and expressly charged with its payment. The debt was in fact, as between Shafer and said Martin Y. C. the debt of the latter with the former merely as security for him to Chesney. The debt being thus due from the said Martin Y. C. and its payment charged upon his land, he then entered into an an-augement with Mary E. Brookover to sell her said land and as a part of this arrangement the said MaryE. was to satisfy or assume the payment of said one thousand dollars to Chesney and have a credit for the same on the purchase-money agreed to be paid by her to said Martin Y. 0. for said lai)d. In pursuance of this ar-rangment, on February 1, 1875, she executed to Chesney her note for one thousand dollars and he surrendered to her said Shafer note. If the said Mary E. had not actually purchased said forty-five acres of land at the time she gave Chesney her note, the agreement for the purchase had then been made and the giving of said note and obtaining from Chesney the Shafer note was a part of the agreement made to effect said
In this view, which, we think, is not only conceded by the counsel for the appellee, but fully sustained by the facts, the said Mary E. was, at the time she gave Chesney her note, the equitable owner of said forty-five acres of land and subsequently became the legal owner by a conveyance of the legal title to her from said Martin Y. C., that said note was given for a debt of one thousand dollars due to Chesney, which was an express lien on said land, and she obtained credit on her purchase from the said Martin Y. C. for the full amount of the debt she thus assumed to pay Chesney. She made the Shafer debt, for which her vendor, the said Martin Y. C., had made himself primarily responsible, her own debt. She became the owner of the land on which said debt was charged as an express lien, and the payer of said debt at the same time. It is not claimed that there was any express agreement that Chesney was to release his lien on said land, or that said lien was in fact released. On the contrary, the record show's that the lien -was not in fact released. How, excluding the parol testimony by which it was attempted to prove that it was expressly agreed the lien of Chesney should remain in force to secure the note of said Mary E., let us determine whether or not, as between Chesney and the said Mary E., the more act of substituting the note of said Mary E. for said Shafer note, without the release of the lien or any express agreement to release it, operated in law' as a release of Chesney’s lien on the land for said debt ?
The doctrine is well settled both in Yirginia and this
Nor will the surrender of the old note, of itself, raise a presumption of an agreement to extinguish the debt by the giving of the new note; and especially will no such presumption arise where the creditor would thereby lose some security which he held when he took the new note — Bank v. Good, supra; 2 Dan. on Neg. lust. §§ 1266, 1267.
Where the new note is that of a third person, the surrender of the old note will be held to bq prima facie a discharge of the old note and a release of the maker of such old note from personal liability tor the debt; but where, in a case like the one under consideration, the holder of the old note had a specific lien on land as security for the debt and by an arrangement between the maker of the old and the maker of the new note, the said land becomes the property of the latter, who at the same time agrees to assume said debt as a part of the consideration for the land, the execution of a new note for said debt will not operate an extinguishment of said debt unless it is so expressly agreed. By this arrangement the maker of the new note became the real debtor and was bound to pay it before the new note was given. The giving of the new note was not then in fact the giving of a note by a third party or stranger, but merely the giving of a note by a party already bound for the debt and in no respect, except in form, differs from the'ease of a debtor giving a new note in renewal of a note previously given by him. And, as we have seen, the authorities are uniform that the debt in the latter case would not be extinguished even when the previous note was surrendered unless it was so expressly agreed. Much less would it operate as a release of the security held by the creditor for such debt. I am, therefore, of the opinion that the giving of the new note by Mrs. Brookover and the surrender of the Shafer note by Cheshey to her and her de
Dille admits that he examined the records and found the trust-deed and vendor’s lien on the land to secure the payment of said debt properly recorded. But whether he did so or not is immaterial, because the law conclusively charges him with notice of said recorded liens. After finding these liens recorded and also that a deed had been made by said Martin Y. C. to Mary E. Brookover, he testifies, that he was “informed by said Mary E. or her husband that said trust of Chesney had been paid oft and discharged, and that the note of said Shafer to Chesney was in the hands of said Martin Y. C. Brookover; that afterwards, on December 4, 1876, the said Martin Y. C. exhibited to him what purported to be said Shafer note with certain endorsements thereon of which he then took a copy.” The said copy is the same referred to in the answer of said Dille and has been hereinbefore given. Tie further testifies, that some days after this he informed the plaintiff as administrator of said Chesney that he was about to take a deed of trust upon the forty-five acres of land and that the Brookovers claimed that said Shafer note had been discharged by Mrs. Mary E. Brookover giving her note for the debt, and that the plaintiff replied, “ I expect it is true that Mr. Chesney took Mrs. Brookover’s note in place of the Shafer note for,” he said, “Tfound among the papers of said Chesney Mrs. Brookover’s note to said Chesney for one thousand dollars payable some time in the year 1879.”
From this testimony it is apparent that the plaintiff did nothing to estop him from asserting the Chesney debt and lien on the land against the appellee, Dille. In fact he did nothing that could in any manner have misled Dille. The plaintiff and Dille had the same information about the condition of the Chesney debt, they both knew that Mrs. Brook-over’s note was given for the Shafer debt in part payment for the forty-five acres of land and that neither the Shafer trust-deed nor the Martin V. C. Brookover vendor’s lien had ever been released. The only question then was one of law as to whether the transaction between Chesney and the Brookovers operated in law as a discharge of the Chesney lifen on the, land. Of this Dille was as capable of judging as the plaintiff. Dille no doubt was of opinion that said transaction did operate as a release of said lien and acted accordingly. In this we think he was mistaken. He was informed of all the facts and with that knowledge he took his conveyance from Mrs. Brookover. His erroneous declaration of the legal effect of said facts cannot afford him any protection. Where the facts are known ignorance of the legal consequences which flow from those facts, will not confer the character of a bona fide purchaser without notice. Consequently, the appellee, Dille, having taken his trust-deed with notice of facts, which showed the infirmity of his ven
Reversed and Remanded.