30 W. Va. 186 | W. Va. | 1887
William W. Jackson died testate in June, 1858. Under the provisions of his will his executor, George R. J ackson, was directed to sell his real estate on credit, and make conveyances to the purchasers, reserving liens for the purchase-money until paid. On September 9,1858, said George R. Jackson, as executor, sold to Jacob J. Jackson a lot of about five acres of land, known as the “Jackson mill property,” at the price of $6,550.00. Prior to the death of the testator, William W. Jackson, he had given two trusts deeds upon said mill property to J. M. Bennett, trustee, to secure indebtedness to said J acob J. J ackson — the first dated March 20,1847, to secure three bonds of $1,000.00; and the other, dated December 13,1856, to secure two bonds of $1,525.00 each. It seems to have been understood at the time of said sale to J acob J. J ackson that the sum due on these two trust debts should be credited on the purchase-money, and that the residue should be paid in one or two years thereafter. The purchaser was put in possession of the property; but, before the contract of sale was reduced to writing, and the bonds given for the deferred payment, both the parties died. Jacob J. Jackson died testate on January 16,1859, and by his will he appoint
In September, 1865, Bennett filed his answer in this suit, in which he admits that he, as executor, is liable for the $6,550, which his testator agreed to pay for said mill property, less the two trust debts before mentioned, and that he has in his hands sufficient assets to pay off whatever may be found due on the said property. On March 19,1869, J. M. Bennett, executor as aforesaid, released the lien of the trust-deed taken by him to secure the purchase-money on said mill property to him from Ridgeway, and by deed dated July 10, 1876, Ridgeway conveyed said property, with general war
In October, 1883, on the motion of the defendant, J. M. Bennett, executor, etc., an order was entered by the court, transferring both these causes to the Circuit Court of Lewis count' where they were duly docketed in November, 1883. Thereupon Bennett, as executor, filed an amended answer to the bill in the first cause, and also an answer to the bill in the second cause. In both these answers respondent insists on the staleness of the plaintiff’s demand, and relies on the doctrine of laches as a bar to any relief, and pleads the statute of limitations. In the latter answer he admits that he, as executot of Jacob J. Jackson, sold the mill property to Ridgeway, and collected all the purchase-money therefor, and that in December, 1868, he paid $292.88 of said money to
No portion of the report made by the commissioner, except that part showing an account of the payments made and balance due on the purchase of the mill property, appears in the transcript of the record brought to this Court. The balance found by the court to be due from the estate of Jacob J. Jackson to the estate of William W. Jackson is $3,508.87, as of June 16,1884. The plaintiff Rohrbaugh and the defendant Bennett each excepted to said report. The exceptions of said defendant are merely a general denial of the right of the plaintiff to any relief, and a reliance upon the defence of laches, and the bar of the statute of limitations. These exceptions are too general, vague, and indefinite to be available for any purpose under the repeated decisions of this Court. McCarty v. Chalfant, 14 W. Va. 533; Chapman v. Railroad Co., 18 W. Va. 185.
On October 30,1884, the court entered a decree sustaining one of the plaintiff’s exceptions to the commissioner’s report in regard to a small amount of interest on one of the credits allowed the estate of Jacob J. Jackson, and overruled all the other exceptions of the plaintiff and defendant, and confirmed the report, with the exception of the small amount of interest aforesaid. After correcting the report as just indicated, and adding interest to October 30,1884, the date of the decree, the balance due from the estate of Jacob J. Jackson to the estate of William W. Jackson on the purchase of the mill property was found and decreed to be $3,698.51 as of
The appellants assign four grounds of error as follows; “First, it was error to decree to the plaintiffs in excess of the true amount of their claim, if any there were; second-, it was error to render a decree, without first ascertaining the available amount devised by William W. Jackson to Jacob J-Jackson, that the same might be properly offset; fMrd, it was error to assert a vendor’s lien on real estate, where no lien was retained in the deed conveying it; and, fourth, it was error to decree in favor of M. L. Rohrbaugh, administrator of George R. Jackson, for advances made by him, except as a general creditor.”
The foregoing statement of the facts and proceedings in these causes might be considered a sufficient answer to each and all of these assignments of error. The most of them are irrelevant to any question presented in the record, and the whole of them are plainly without merit and unsustained by the law or the facts. But, as they have been made and relied upon by counsel, it may be excusable to notice each of them specially. It will be observed, however, that they are a departure from any of the objections or defences made by
1. The first assignment merely raises a question of fact to be determined by a simple calculation. I have taken the trouble to make a calculation of the plaintiff’s debt upon the principles and data furnished by the decree and commissioner’s report, and find that the amount of the debt as fixed by the decree is correct according to those principles and data, and therefore this assignment is wholly unsupported by the facts in the record.
2. If there was anything in the record in the court below to authorize the second assignment, the appellants have omitted to have it embraced in the transcript they have presented to this Court. It is true, the record before us shows that William W. Jackson, by his will, after charging his estate with the payment of his debts, and making a number of specific devises and legacies, provides that the one-half of the residue of his estate shall be equally divided among four named legatees, one of whom is Jacob J. Jackson. But there is nothing in the record before us to show that there is any residue of the estate, or any fact or evidence to show that, under any circumstances, said Jacob J. Jackson is, or ever will be, entitled to anything from said estate. So, if we concede that, under a different state of facts, the objection presented by this assignment would been titled 'to consideration, it cannot be made available, and does not arise upon the record now before us. In order to raise that question, it would be necessary to show a full settlement of the estate of said William W. Jackson, in which it appeared that there was a-residue in which Jacob J. Jackson’s estate is entitled to share. Such a settlement seems to have been directed by the court ; but the report, if any was made, has been omitted in the transcript before us. If there was any such settlement or report, it was the duty of the'appellants to have it included in the transcript of the record, if they desire to raise objections which would involve its consideration. This Court will, in some instances, where it has clear evidence of important omissions in the transcript of the record, on its own motion, award a certiorari to bring before it such omitted parts of the record; but, as a general rule, it will no.t do
3. The third assignment assumes that there was no lien on the Jackson mill property for the debt decreed to the plaintiffs. A brief reference to the fact will show that this assumption is wholly gratuitous. At the time William W. .Jackson died, he was the absolute owner of the property subject to the two trust deeds to secure debts to Jacob J. Jackson. Under the will of William W. Jackson, his executor sold the property to Jacob J. Jackson. By this sale said trust deeds were satisfied, because the debts secured by them were applied as a part of the purchase-money for the property. This left the legal title in the estate of William W. Jackson, and it never has passed from it by any conveyance whatever. After the satisfaction of the trust-debts Bennett had no power or authority as trustee to sell or convey the property, and it does not appear that he attempted to do so. The deed by him to Ridge-way is made as executor of Jacob J. Jackson, and not as trustee. It is plain, therefore, that this deed did not divest the title of William W. Jackson, but left the title in him or his executor, and neither Jacob J. Jackson, his executor or vendee, could demand or compel a conveyance of the legal title until the unpaid balance of the purchase-money due to the estate of William W. Jackson was fully paid. This the decree shows was never done, and it was therefore not error for the court to declare that the lien existed in favor of the estate of William W. Jackson for the unpaid purchase-money.
4. If the proposition contained in the fourth and last assignment of the appellants was admitted to be law, the record does not show that the appellants, or either of them, were injured or prejudiced by the decree on account of it. An appellant cannot complain of error, unless he can also show
In the answers of the appellant, Bennett, much reliance seemed to have been placed upon the laches of the plaintiffs and the statute of limitations as a b-ar to relief in these suits-. But these defences have not been insisted upon in this Court. They were very properly abandoned, as- a mere reference to the facts- will show that the statute of limitations had no application to any matter adjudicated by the decree complained of, and there was no laches of which the appellants can complain. Yancey v. Mauck, 15 Gratt. 300. The debt decreed to1 life plaintiffs was a balance due on the purchase of real estate to secure which the title was retained by the vendor,, and the suit to enforce this lien-, or compehthe payment of this debt, was-brought within-less than- a year after the purchase was made. If there was any unreasonable delay in the-prosecution of the suit, the appellants-made no effort, as they could have done, to expedite it. They seem to have acquiesced in the delay very complacently, if not cheerfully.. They have certainly put nothing upon the record which gives them any right to complain that they have not sooner paid the debt due to the plaintiffs. Upon the whole record,, 1 can discover no error to the prejudice of the appellants-. The appellees contend that the court erred to their prejudice-by allowing the estate of William W. Jackson credit for the-$1,000 secured in the trust deed of 1847 to Jacob J. Jackson. They claim that this debt was merged in and formed a part of the debt secured in the trust deed of 1850. I have carefully examined the evidence relating to this matter, and think it sufficient to warrant the finding of the Circuit Court; at least, the'evidence in favor of the position of the appellees is- not sufficient to justify this- Court in reversing the finding:
AFFIRMED.