45 W. Va. 18 | W. Va. | 1898
F. N. Mann filed his bill in chancery in the Monroe cir
On the 7th day of June, 1894, on motion of the said Special Commissioner Osborne, the cause was reinstated on the docket as having been prematurely omitted, and a rule awarded against Frank N. Mann, the purchaser, to show cause why the propei'ty should not be resold to pay the sum of three hundred dollars, balance due and unpaid on the purchase money for said house and lot. On the 10th day of October, 1894, said Frank N. Mann answered said rule, stating that, when he first determined to buy the property, he bought the claims of A. J. Jones, which included that of Jesse Jones, at a discount of eight per cent, from their face value, and turned the;n over to Special Commissioner Osborne, which included the three notes of Peck, indorsed to him by A. J. Jones; that the transfer was made with the full knowledge of Jesse Jones, and that Jesse Jones had since said that, if A. J. Jones had gotten the money that respondent had promised him for said debt, it was all right, but that, respondent not having paid the money to A. J. Jones, he wanted the respondent to pay it to him, and filed with his answer said three notes and three checks which he had given to A. J. Jones in payment of the notes, and, having f ulty paid all the purchase money, said Special Commissioner Osborne had made the deed to respondent; and claiming that an acquiescence in this transfer for at least-years upon the part of Jesse Jones estopped him from setting up any claim as against respondent; and asking that the said A. J. Jones and Jesse Jones be brought before the court, and the matter inquired into, and determined whether or not Jesse Jones permitted his son A. J. Jones to make this transfer, and, if made without his knowledge, if he afterwards assented to it. And on the 6th of June, 1895, A. J. Jones and Jesse Jones filed their respective answers. Jesse Jones, in his answer, says he was a party to the suit, and that the sum of one hundred and ninety dollars and forty-five cents, with interest from October 5, 1895, was reported in his favor as the first lien bjr Commissioner Kester in said cause; that Special Commissioner Osborne made the sale of the prop
Depositions of various witnesses were taken on the question of the agency of A. J. Jones 'for his father, Jesse Jones. On the 21st of September, 1895, the deposition of J. L. Rowan was taken, who says: “Some three or four years ago, Mr. Jesse Jones came to me, and my recollection is that he claimed a debt due him from Frank Mann, and that the money was in the hands of Mr. Osborne; and after we talked about it, I went with Mr. Jones to see Mr. Osborne, and get a statement from him as to the status of the case. Mr. Osborne stated that he had paid the money to Mr. Jones’ son, and Mr. Jones denied that his son had ever collected it, — that is my recollection, — but said, if he had, of course he did not desire the money to be paid
It will be seen that the claim of Jesse Jones was reported by the commissioner and allowed in the decree of October 8, 1885, as the first lien upon the property; that the property was sold upon the 31st day of December, 1885, and that eighty-five dollars and thirty cents cash was paid thereon on the day of sale, the balance to be paid in six, twelve and eighteen months; that on the 17th of March, 1886, the sale was confirmed. The costs of suit were paid out of the cash payment, thirty-five dollars and thirty cents, leaving fifty dollars to apply to the first lien, at the ' time of the confirmation of the sale, and the first deferred payment after the application of the fifty dollars to the first lien would have been largely more than sufficient to pay off said first lien, so that it should have been fully paid, off in June, 1886. In the decree confirming the sale, on the 17th of March, 1886, the court ascertains and decrees that all the liens reported by said commissioner, and provided for in said decree of sale, were fully satisfied and d ischarged. This is a complete adjudication of all the principles involved in the suit between the parties, — a satisfaction and discharge of all the liens. Although Jesse Jones was a party to the suit, and owner of the first lien upon the property sold, there is nothing on the record to show that any legal steps were taken to collect his claim until the 7th day of June, 1894, more than eight years after the rendering of said decree declaring the satisfaction and
I think the insistence of the apellee that the said Jesse Jones, by waiting and sleeping on his rights, was guilty of gross laches, is sustained. There is nothing in the record to show that Jesse Jones was in a pecuniary condition to conveniently do without the money which was decreed to him, when the property was sold and the money collected, which should have been paid to him for the asking, and to remain without such dues year after year for six or eight years. The circumstances of the case very strongly corroborate the preponderance of testimony taken in the matter, that he knew that his son had sold this claim, and that he had authority from him to do so, or at least that he acquiesced in the action of his son. “When a man, with full knowledge, or at least with sufficient notice or means of knowledge, of his rights, and of all material circumstances of the case, freely and advisedly does anything which amounts to the recognition of a transaction, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time, * * * or freely and advisedly
A [firmed.