87 W. Va. 300 | W. Va. | 1920
This suit in equity was instituted for the purpose of enjoining the defendants from executing a deed of trust by making sale of the property therein conveyed, in satisfaction of the debt thereby secured to the defendant J. H. Moore, upon the ground that upon a settlement of the affairs between the plaintiff Mc-Dermitt and the defendant Moore it would be found that said deed of trust was satisfied and discharged. From a decree ascertaining that the said plaintiff was indebted to the said Moore in the sum of $925.86, with interest thereon from the 31st day of October, 1918, until paid, and directing the trustee to execute the deed of trust by sale of the property conveyed thereby
The deed of trust in question was given to secure the payment of two notes, one for the sum of $500.00, and one for the sum of $700.92. The validity and amount of these notes are not questioned, but the plaintiff contends that after their execution, because of transactions between him and the defendant Moore, the notes were satisfied and discharged. These transactions involve the interest of the plaintiff in profits upon a sale of timber upon a tract of land in Putnam county, and the sale of a farm in Mason county. The defendant Moore denied in his answer the claims of the plaintiff, and set up in addition to the notes secured by the deed of trust aforesaid an account due him by the plaintiff amounting to about two hundred dollars. This account is likewise unquestioned by the plaintiff, and the only questions involved here are whether or not the plaintiff is entitled to any credits upon these debts because of the timber sold in Putnam county, and the sale of the farm in Mason county, and if he is, the amount of such credits. The cause was referred to a commissioner in chancery to take the evidence upon these questions, and find the facts in regard thereto. This commissioner found the amount due the defendant Moore on a settlement of the affairs between the parties to be as decreed by the court. Upon the request of the plaintiff, concurred in by the defendant, the case was recommitted to another commissioner, who took further evidence, and upon consideration of the evidence formerly taken, as well as the additional evidence, he made the same findings of fact as the first commissioner. The circuit court then upon exceptions to the commissioner’s report, confirmed the same,, and decreed in favor of the defendant Moore, as above stated.
It appears that the Plymouth Coal Company owned a tract of timber in Putnam county, and that the plaintiff was authorized to make sale of the same at the price of $32,500.00. He approached the defendant Moore for the purpose of making a sale thereof to him. Moore, it appears, advised him that he was not able to make the purchase, it requiring $12,500.00 in cash therefor. According to Moore, plaintiff told him that he
In regard to the Mason county farm transaction, it appears that McDermitt secured an offer from the owner to sell a tract of four hundred and some acres of land in Mason county for the price of $15,000:00, $3000.00 to be paid in cash, and the
It is assigned as error that the commissioner refused to require Moore to submit himself for further' cross-examination after he had been upon the witness stand on two occasions and cross-examined at length. The matter upon which it is said the plaintiff desired to further cross-examine him-was as to the cost of raising the crop upon the farm during-the season, of 1915. Even if it be admitted that the. commissioner could properly require him to submit himself to further cross-examination, after the plaintiff had had ample opportunty to cross-examine him, and had done so, the mater upon which this further cross-examination was desired was entirely immaterial to the issues involved in this case. McDermitt had no interest in the. farm, his only interest being a share in the profits when the same should be re-sold. There is no intimation that Moore and. Swisher did not endeavor to sell the farm, and that Moore did not sel] his interest for as much money as he could get.
• We are clearly of the opinion that the findings of the commissioners, approved by the circuit court, are justified by the evidence, and the decree appealed from will be affirmed.
Affirmed.