4 W. Va. 407 | W. Va. | 1870
In disposing of the questions arising in this case, I propose to consider them in the order in which they were made and argued by the counsel for the appellees. The first question discussed by them was the power and authority of the trustee and cestui qui trust, under the deed of marriage settlement, to make the sale to Clarkson. This objection was made here for the first time, and it was earnestly insisted that by the terms of this instrument, a sale is prohibited, unless for special purposes of reinvestment in the mode therein specified; that as it appeared that the rents and profits of the estate conveyed in the deed of settlement, were sufficient in five years to discharge the decree of Meem v. Cabell and others, it was not competent for the court in that case to have decreed a sale of the land so conveyed, or any part thereof, and consequently the sale to Clarkson was in direct violation of the deed of settlement under which the grantors held; that Clarkson was bound
In considering this question it is necessary to advert to. the conditions of the estate conveyed, and the rights and power of the grantor in the deed of settlement at the time it was executed. It appears that this estate descended to-the grantor and cestui que trust, Henri Ann Early, from her father, Dr. John J. Cabell, who, it appears, was largely indebted at the time of his death, (the debts, including interest, amounting to upwards of forty thousand dollars, after exhausting the personalty,) and that a suit by the creditors was pending in the circuit court of Lynchburg to subject the said estate to the payment of said debts at the time of the execution of the deed of settlement; and that subsequently a decree was rendered separately against the four sets of heirs of the said Cabell for their respective portions of the debts amounting to the sum of 8,237 dollars and 52 cents each, to be paid in three several installments, due respectively on the first of January, 1856,1857, and 1858, and the lien previously existing on the real estate of said Cabell for said debts was expressly reserved in said decree.
After the rendition of this decree, the deed from Jubal A. Early, the trustee, Ilenri Ann Early, the cestui que trust and her husband Samuel H. Early, was made to Clark-son for the land in controvei’sy. This deed recites the fact of the deed of marriage settlement under which the grantors claimed, and after referring to the decree of the circuit, court of Lynchburg which constituted a lien on the whole estate conveyed in the deed of settlement, it is further recited-'.that, “ In the opinion of the trustee and cestui que trust, it is advisable to sell a portion of said real estate in order to remove the lien aforesaid; the said Jubal A. Early and the said Henri Ann Early, with the approbation -and consent of the said Samuel II. Early have sold,” &c.
It is clear, therefore, that, as the lien, resting on the es
The next question in the order is the payment made by Clarkson on the purchase of the land in controversy. In considering this question, it is proper, in the first place, to dispose ©f the exceptions taken to the depositions of I). J. ~W. Clarkson, and James M. Laidly. These depositions were regularly taken and filed in the cause before the passage of the act of February 7th, 1868. The only objection taken to them was the incompetency of the witnesses on account of their interest in the result of the suit, at the
I am of opinion, therefore, that depositions regularly taken and filed in a suit before the passage of the act before cited, if there be no other objection than the interest of the witnesses in the subject matter of the suit, fall directly within the spirit and policy of the act, and may be read on the hearing of a cause after its passage.
From the evidence in the record it clearly appears that Clarkson, at sundry times, made payments by deposit in the Citizens’ Savings Bank at Lynchburg, to the credit of the decree of Meem v. Cabell and others, to the amount of 11,847 dollars and 16 cents. The three last payments of 2,500 dollars, 1,500 dollars, and 300 dollars, it appears were made to Charles K. Slaughter, who, it is stated in the answer of Jubal A. Early, was the receiver in the case of Meem v. Cabell and other's, and by whom it seems the money was deposited'in said bank. These payments, it also appears, were made to said Slaughter with the knowledge and consent of the trustee Jubal A. Early. The remaining question is the proper application of the money so paid by Clarkson into the bank at Lynchburg. It was earnestly and ably insisted here that these payments, if allowed at all, should be applied, first, to the payment of the debt of 4,600 dollars due from Clarkson to Samuel IT. Early for the personal property purchased of him by Clarkson, mentioned in the contract between him and Samuel IT. Early for the sale of said real estate and personal property of the 9th of April, 1855. Second, to the payment of the 1,400 dollars, being the first installment of the purchase money for the land in controversy, which was not included in the deed of trust on said land executed by Clarkson to secure
First, as to the debt of 4,600 dollars: There is no evidence in the record showing or tending to show that Clark-son had any authority to pay it, by depositing it in the bank to the credit of the Meem decree; and it would be, I think, a violent presumption to assume, in the absence of all evidence of authority, that he did do so. But on the other hand, the deed under which Clarkson claimed distinctly admonished him of the existence of the lien on the land conveyed to him and for the extinguishment of which it is therein expressly recited the sale and conveyance were made; and it was therefore his plain duty to apply the purchase money to the discharge of the said decree with or without the consent of his vendors; and the reasonable presumption is that he did apply it accordingly.
Second, as to the 1,400 dollars: In the contract between Samuel H. Early and Clarkson, and in the deed to the latter for the land in controversy, the consideration is stated to be 11,000 dollars, and a lien is expressly reserved in the deed for the whole amount of purchase money. ' This deed bears date on the 10th of April, 1855, and on the same day a deed of trust was executed by Clarkson on the lands so conveyed to him, to secure 9,600 dollars of the purchase money (being the residue after deducting the 1,400 dollars) due in three equal installments, payable as before stated, on the 1st day of January, 1856, 1st day of January, 1857, and first day of January, 1858, with interest from date, thus corresponding with the installments of the Meem decree. But no reference is made in the trust to the 1,400 dollars which, by the contract, was to be paid in thirty days. The trust deed, however, bearing the same date of the deed to Clarkson, it appears, was not admitted to record until the 3d of July following.
' But, it is not perceived upon what principle of law the 'unsworn written communication of a defendant who had failed to answer, to a third party, after the" institution of the suit, could be received as evidence against any party to the suit, and in my judgment this letter is clearly iuadmissable as evidence in this case.
The result of the foregoing views is that, in my judgment, Clarkson should be charged with the whole amount of the purchase money for the real estate (11,000 dollars,) and have a credit for the 11,847 dollars and 16 cents, the amount paid at sundry times into the bank at Lynchburg to the credit of the decree of Meem v. Cabell and others, and that-the residue of the purchase money for the real estate should be paid to Samuel H. Early, as trustee for said Henri Ann Early, to be held for her sole and separate use according to the provisions of the deed of marriage settlement. I am of opinion to reverse the decree and remand the cause to the circuit court for further proceedings to be had therein in accordance with the principles above indicated.
Decree reversed.