64 W. Va. 172 | W. Va. | 1908
Horner brought a chancery suit against Elizabeth Amick .and others, the bills charging that Stevenson had conveyed to J. R. Amick a lot in Henry, Clay county, by deed and delivered it, and that sometime afterwards, said deed not having been recorded, J. R. Amick surrendered to Stevenson the deed and caused Stevenson to convey part of the lot to Elizabeth Amick, his wife. The bills state that J. R. Amick and Legg made a promissory note to Whelan for $110, and that Whelan had assigned the note to Horner. J. R. Amick died. Horner’s suit sought to subject the part of said lot so
Horner must lose the case because both said answers deny the fact of the assignment of said note by Whelan to Horner. Horner must have- and prove title to obtain a decree. The bills simply say that WKelan for valuable consideration assigned the note to Horner, not saying that the assignment was in writing. The approved forms usually state, where the assignment- is written, that the party by a writing indorsed on the note signed by him for valuable consideration assigned the note. Though no formal assignment is made,, but the assignor writes only his name on the note, still the allegation ought to be that the assignor by a writing signed, by him for valuable consideration assigned the note, because-the law is that the assignee may write over the name a formal assignment, if he wishes. The name so endorsed is an assignment, and is so pleaded. The note in this case contains. Whelan’s name endorsed; but the bill makes no averment that the assignment was in writing. I think that section 40, chapter 125, Code, saying that where a pleading alleges that any person made, endorsed or accepted any writing no proof of hand writing shall be required unless the fact be denied by affidavit, only applies where such pleading avers that the party subscribed his name to the note, assignment or acceptance. It was pointedly so held under the original act of 1828, from which our section proceeded. Kelly v. Paul, 3, Grat. 191; Shepherd v. Fry, Id. 442. That old statute said
The answer of W. N. Amick, as above stated, "denies the
Complaint is made that W. Y. Amick was allowed to file his answer very late in the progress of the case and after the expiration of sixty days allowed for him to do so. This was some days before the decree. The answer simply denied the allegation. Amick took no proof. Plaintiff was entitled to a contintuance to take more proof, but did not ask it. The statute allows an .answer before final decree, with the provision that it shall not delay except for good cause. A court
Therefore, we reverse the decree of the circuit court solar-as it decrees the debt against the estate of J. E. Amick and subjects to it the real estate conveyed by E. L. Stevenson to Elizabeth Amick by deed dated 1st day of November, 1895, and dismiss the plaintiff’s suit as to the administrator of J. R. Amick and as to Elizabeth Amick and.W. N. Amick.
Reversed.