42 W. Va. 774 | W. Va. | 1896
This was a suit in equity brought in the Circuit Court of Cabell county by Levi Kelly against James McQuinn and John Williamson. The bill was filed at the July rules, 1894, and alleges that Levi Kelly, the father of plaintiff, died in Wayne county, W. Va., in the year 1883, and that at the time of his death the plaintiff was an infant under the age of sixteen; that his father, prior to his death, had applied for a pension for disabilities sustained while a soldier in the service of the United States; that at the time of his father’s death the claim had not been acted upon by the courts of the United States, and while his father left five other children, Joseph and James, and Eliza, Melinda, and Tabitha (who married the defendant John Williamson) he (the plaintiff) was the only one under the age of sixteen, and he was on that account entitled, under the laws of the United States, to the full amount of the pension which his father would have drawn had he survived, to the exclusion of his brothers and his sisters. His father left no widow surviving him. Shortly after his father’s death, the pension was allowed by the United States government, upon his father’s application. The defendant James McQuinn was appointed by the county court of Wayne guardian for the plaintiff, who qualified and gave bond in said county for the faithful performance of his trust, and, by virtue thereof, received from the government of the United States, upon the pension claim aforesaid, for the use of the plaintiff, on or about the-day of-, 188-, the sum of eight hundred and fifty seven dollars, of which amount he paid over to this respondent the sum of one hundred and fifty dollars, in two payments — one hundred dollars on the 13th of June, 1888, and fifty dollars, by the hands of John Williamson, his brother-in-law, prior to that time. Defendant has never paid over or accounted for the balance of said money, but invested a portion thereof in a tract of land in Wayne county, in the name of John Williamson, the defendant, on the ground that he had supported his
The exceptions filed by the plaintiff to the answer of James McQuinn read as follows: “The plaintiff excepts to the answer of James McQuinn upon the ground that the same constitutes no defense to the plaintiff’s bill. And, for grounds of his exceptions, the plaintiff says that the allegations in that part of said answer contained on pages 8, 4, and 5, setting up a release by the plaintiff of the seven hundred and thirty dollar note of John Williamson to James McQuinn, guardian for plaintiff; in consideration of one hundred dollars cash paid plaintiff by the defendant on the day of said release, to vñt, June 18, 1888, are insufficient to constitute a defense to the plaintiff’s bill, and do not constitute a discharge of said McQuinn from the payment of the balance due and unpaid on said seven hundred
The errors assigned and relied on by the appellants are: (1) The court erred in overruling the exceptions to the answer of James McQuinn; (2) the court erred in dismissing the plaintiff’s bill, and in refusing to decree in favor of the plaintiff'the sum of nine hundred and thirty seven dollars and seventy cents against James McQuinn, as found by the commissioner.
Now, when we look to the plaintiff’s bill, it is seen that it alleges that said James McQuinn, the plaintiff’s guardian, received from the government of the United States, upon the pension claim of plaintiff’s father, for the use of the plaintiff, the sum of eight hundred and fifty seven dollars, of which amount he paid to plaintiff the sum of one hundred and fifty dollars in two payments — one hundred dollars on the 18th of June, 1888, and fifty dollars by the
Now, it is perceived by this answer that the defendant MeQuinn had nothing whatever to do with the settlement made and entered into between the plaintiff and said Williamson. It was understood and agreed before they went to see MeQuinn that plaintiff was to receive one hundred dollars in full satisfaction for the amount due him, and he did so, and executed his receipt in full of all claims against his guardian. Now, the plaintiff represented that he was over twenty one years of age at the time he made this settlement with Williamson, and executed said receipt to MeQuinn. If these statements be true, why do they not constitute a complete defense to the plaintiff’s bill? There was no contracting between the guardian and his ward, either before or after he attained his majority. The settlement was made between the plaintiff and his brother-in-law, Williamson, and
Again, it will be percieved that the receipt to said Mc-Quinn, guardian, executed by plaintiff, bears date June 13, 1888, and this suit was not instituted until July rules, 1894 —more than six years afterwards. Upon this question, Schouler, in his valuable work on Domestic Delations, on page 630, § 389, says: “But the ward may be barred, by lapse of time alone, or of time in connection with his own acts, from disaffirming in law or equity his own transactions, or his guardian’s unauthorized acts, though to be barred by his own acts, in all such transactions, it should appear that he acted after termination of his disability, with deliberation, aud in full knowledge of the essential facts. In the case of Scott v. Freeland, 7 Smedes & M. 409, it was held that receipt by the wards, upon coming of age, of the value of their property sold to their guardian by himself or his co-trustee, is an affirmance of the sale to him, and constitutes a valid and binding contract, if they received the money with full knowledge of their rights. Such receipt affirms the sale, but the reception of his distributive share by one who has just become of age, ought not to be construed too strongly against him, nor operate to his prejudice, where it is obvious he acted without due precaution, and where immediate steps are taken to correct the matter; but several years l’emaining passive implies acquiescence.” So, in the case of Trader v. Jarvis, 23 W. Va. 101, this Court held that “delay in the assertion of a right, unless satisfactorily explained, even where it does not constitute a positive statutory bar, operates in equity as an evidence of assent, acquiescence, or waiver: and especially is such the case in suits to set aside transactions on account of fraud or infancy. Laches and neglect are always
In the case we are considering, the ward had arrived at full age at the time he made the agreement with the defendant Williamson to receive one hundred dollars in addition to the fifty dollars he had already received in full satisfaction of the amount his guardian had loaned to said Williamson. The evidence shows that the guardian, Mc-Quinn, had nothing to do in making the arrangement with the plaintiff to take one hundred and fifty dollars in full discharge of the amount in the hands of said McQuinn as guardian as aforesaid; that the plaintiff was of age, sober, and competent to make a contract, at the time he made this agreement with Williamson; that he heard the receipt
Decree affirmed with costs, etc.