83 W. Va. 246 | W. Va. | 1919
In 1886 the plaintiff purchased from one Jasper M. Porter certain real estate in the county of Hancock, and for the
The case was heard by the circuit court, and the plaintiff’s
Some question is made as to the sufficiency of the proof to establish certain debts claimed by Marshall, or rather to establish the amount of them as they were found by the commissioner. Upon this question it suffices to say that there is evidence in the case fully supporting the commissioner’s' findings as to the amount of these particular debts, even though it may be in some instances controverted, and this court will not reverse the decree of the circuit court approving the findings of a commissioner upon controverted facts, unless such finding is clearly against the weight of the evidence. Such is not the ease here. One of these items was for the interest of the. plaintiff in an oil well, the legal title to which was in the defendant' James 'M. Porter. It is shown that James M. Porter sold this well and took the money himself, and never accounted to the plaintiff for one cent, although it is admitted that the plaintiff had a considerable ..interest, therein. The defendant James M. Porter has always refused, and even when he testified in this case refuse^. to say how much he got for this well, or to' whom he sold it. • The commissioner could do nothing but take the best evidence he could get as to this, and we think his findings are as advantageous to the defendant James M. Porter
In the circuit court, when the report of the commissioner came up for consideration, the defendant James M. Porter for the first time by exceptions set up the Statute of Limitations as a bar to any of the claims asserted by the plaintiff. Insofar as these claims were applied to the discharge of the notes set up and referred to in the bill there is nothing in this contention. The agreement, which this court by its former decree found existed between the parties, was to apply this indebtedness of James M. Porter to Marshall to the extinguishment of these notes. Having found that that agreement existed, a court of equity looks upon that as done which ought to be done. We will treat the notes executed by the plaintiff, and which are sought to be cancelled here, as satisfied and discharged as of the time James M. Porter and the plaintiff agreed that it should be done. Story’s Equity Jurisprudence, § 81; Felch v. Hooper, 119 Mass. 52; Craig v. Leslie, 3 Wheat. 563. But does the Statute of Limitations apply to the decree in favor of the plaintiff for the excess of his indebtedness above the notes held at the time by the defendant James M. Porter? As before stated, these claims were set up by the plaintiff in his bill filed in this case, and while they were not particularized in that bill, they were gone into by particular items in testimony taken in support of it. The defendant James M. Porter at that time denied their validity, and denied that the plaintiff had the right to discharge the notes referred to in this case in that way, or to recover any of said claims. The parties, after full opportunity to offer all of the matters they had in support of their respective contentions, submitted the case for a decision,'and this court on appeal held that the plaintiff was entitled to recover, his claims in this suit. That decree established the validity of them, and the only thing left for determination was the amount thereof and their application to the notes in controversy. The defendant James M. Porter could not reserve one of his defenses. He had full opportunity to make all defenses at that time, and not having made his defense of the Statute of Limitations then the finding of this court
It follows from what we have said that the decree of the circuit court of Hancock county complained of will be affirmed.
Affirmed.