49 W. Va. 287 | W. Va. | 1901
S. A. Rowan, as administrator of Z. T. Chenoweth, filed a bill in chancery in the circuit court of Randolph County to convene the creditors of Chenoweth, fix their debts, settle his accounts and the personal estate, and sell the lands of Chenoweth to pay debts not reached by the personalty. The suit began 31st August, 1894. The case was referred to a commissioner to report the debts against the estate and other matters involved in the suit.
Chenoweth was sheriff of Randolph County for the years 1885, 1886, 1887 and 1888, and Leonard his deputy. The claim of Leonard is that he was to receive for his services as deputy half the entire emoluments of the office. The- commissioner disallowed the claim of Leonard for half the commissions and other fruits of the office for want of proof of what compensation Leonard was to receive, but charged him with the taxes which went into his hands. Strange to sáy, there was no written agreement •between the parties to specify the arrangement between them in this important business, no bond given by Leonard; still I think that in the absence of such writing, it is fairly and reasonably established that Leonard’s claim of half the emoluments is true. Omar Conrad, a deputy sheriff and jailer, says that he knew of no agreement between Chenoweth and Leonard, but was by at times when they were settling, and it was “my understanding from the conversation between Chenoweth and Leonard that they were halvers in the business.” Charles Chenoweth, brother of Z. T. Chenoweth, was for a time jailer, and says that though he knew of no agreement, his understanding was that they were partners. lie was in constant intercourse with them. It seems he is not merely conjecturing. The widow of Chenoweth assisted her husband in making out elaborate entries in 1892 in a book of her husband of taxes in the various districts and other items, and made entries at his dictation, which book, so far as it concerned taxes in the various districts chargeable to Leonard, and a settlement made between them for the year 1885, and partly for 1886, was made for the purpose of settlement with Leonard,, and she says that she does not remember hearing her husband say how Leonard was to be compensated, “though my impression is he was to receive one-half the emoluments of the office.” She must have derived this impression from impartment by her husband. She would not have guessed it. But to make this sure she produced from among her husband’s papers two receipts given him by Leonard, dated the 21st of February, 1887,
But Leonard’s rejected claims are barred by limitation, in the absence of evidence of actual collection within five years before the suit. Particular collections shown to have been made within five years could be recovered by either side, -and those only. Those items would not save others collected before from the statute. The statute began to run against Leonard in Chenoweth’s lifetime, and his death did not stop it, even though he had no representative. Handy v. Smith, 30 W. Va. 195; Wilson v. Harper, 25 Id. 179; Mynes v. Mynes, 47 Id. 681, (35 S. E. 935). When did the statute stop running against Leonard ? By various decisions it ran on until the court made a reference for the benefit of all creditors to ascertain and .decree their debts. Laidley v. Kline, 23 W. Va. 565; Bank v. Hayes, 37 Id. 475. Those cases were suits by individual creditors against estates. Until reference it could not be known that the suit would go on for all; hence the other creditors might till then sue. But we think that when an administrator brings such a suit as this, as the estate’s representative, to administer the personal estate and apply it and the realty both for all creditors, it is a guaranty of prosecution to the end; the creditors may demand that it go on, and the statute stops running against creditors at its institution. The Code gives the personal representative power to bring such a suit as the vehicle of relief for all creditors, gives him a right to do so to the exclusion of creditors for six months after the qualification of a representative; and this statute would contemplate the cessation of the statute of limitations at the date of such suit. Code 1899, chapter 86, section 7. When one creditor sues expressly for all creditors the statute stops at date of suit. Jackson v. Hull, 21 W. Va. 612; Dunfee v. Childs, 45 Id. 155; Hogg’s Eq. 618. Wien did the statute of limitations commence to run against Leonard’s demand for commissions on taxes and executions, and for jail rent, county allowances and fees? We cannot
When does the statute begin to run between principal and agent? That depends on the character of the-agency. Where there is an isolated or special agency, one for a particular act or acts, one to collect a specific debt or debts, the statute begins from the act or collection in each particular case; but where the agency has currency, is continuous, is general, involving many acts, or a course of business involving many transactions, the statute begins from the termination of the agency. The contract of agency is, a lump, covering several years, covering many items, and the parties reserve them for settlement some day ahead. You cannot start the statute at date of each collection or each item of liability, innumerable items in an account which both sides treated as open, and there is a necessity to fix some day. 1 Rob. Pr. 488; 1 Wood, Lim. 347, 349 n. 2; Angell, Lim. s. 181 n. 2;
How as to Chenoweth’s demands against Leonard P The commissioner charged Leonard with taxes put in his hands for collection upon no other evidence than entries made by Chenoweth and his wife under his dictation in a book in 1892. Counsel claim that this is illegal evidence. Though fully discussed by counsel no authority is furnished by either side, on this point, and I have been compelled to seek it. Leonard called for this book, and the commissioner thought that this fact made it evidence not only for, but against Leonard. The reverse is claimed as true. Entries made by Chenoweth against his own interest would be admissions, and admissible against him, because he would not make self-disserving admissions unless true; but his entries against Leonard would be self-serving declarations, made in his own interest, not admissible to Leonard’s prejudice. “Scriptura pro scribmte nihil probat,” is a fixed maxim. “A party’s self-serving declarations cannot be put in evidence in his own favor whether he be living or dead at the trial.” 2 Whart. Ev. ss. 1100, 1101; 1 Greenl. Ev. (17 Ed.) s. 147; Vinal v. Gilman, 21 W. Va. 301; see High v. Pancake, 42 W. Va. 602; Crothers v. Crothers, 40 W. Va. 169.
The book is not admissible as a book entry made in due course of business, while the business current went, and. thus a part of the res gestae, as it was made out several years after the business closed, not as an itemization as items in business occurred, but in a lump, ás a whole, with á view to settlement as between themselves. 1 Greenl. Ev. ss. 120a, 120b; 1 Whart. Ev. ss. 681, 683.
But, as I understand from the report, Leonard relied upon the statute of limitations. Is the demand 'of Chenoweth’s estate barred ? There is no written contract, no bond given by Leonard as deputy sheriff. The plaintiff did not make Leonard a party to the case or set up any demand against him until after Leonard filed his account before the commissioner, when, on 1st April, 1896, the administrator filed his account of sets-off. When did right of act accrue? At the close of the term, 31 December, 1888, the close of agency. The statute ran from then until said sets-off were filed. Hurst v. Hite, 20 W. Va. 183. So says Code, chapter 126, section 9. The suit did not stop the statute as to Chenoweth’s demand as the bill did not set up a demand against Leonard and make him a party. Woodyard v. Polsley, 14 W. Va. 211. So it seems that the charges made by the commissioner and decree against Leonard for taxes in his hands are erroneous'because they were barred by limitation. This troublesome subject of limitation is presented by counsel for decision, but not a line of law is cited by counsel on either side upon it. It seems that the court suould have the aid of the.research and conclusions of counsel, especially of counsel so well able to give aid as those engaged in this case.
There is another matter calling for decision. Chenoweth’s first wife derived from her father’s estate about two thousand two hundred dollars. Ho one disputes this. It is clearly proven by his many declarations and independent evidence. Chenoweth took charge of it only to invest for her, and did invest it, perhaps in his own name, but in -fact for her. It is beyond any denial, free from denial, proved that he declared it her separate estate, as it was in law, and said that he was increasing it by ten per cent, interest. He never set up the slightest claim to it. By this first wife Chenoweth had two children, Joseph S. and Willie
Reversed.