55 W. Va. 56 | W. Va. | 1904
John E. Rutherford by two separate deeds, 15th March, 1887, conveyed two tracts of land in Randolph county, one of seventy-five acres, one of ninety-five acres, to his two sons, Samuel W. Rutherford and Wade Hampton Rutherford in consideration, as provided in the deeds, that the sons would support and bury
Concede that the sons did not comply with their obligation to support their father and mother. Did not John E. Buther-ford release their obligation to do so? The parties had contention and difference about it, and they made the contract of compromise of 5th January, 1894. John E. Butherford signed it. For what reason? His elder son was married and living
By it the seventy-five acres was freed from claim by Samuel in favor of Wade, and Wade got forty acres of the other tract, and in consideration thereof the father forewent his demand for support. The release of Samuel operated to release Wade, because the release of one of two joint contractors releases both. 3 Minor’s Inst. 213. Strife went on, and later comes the compromise contract of 3d April, 1895, releasing Samuel from all obligation of support, and its language further released Wade, in addition to the release by operation of law. But John E. Eutherford denies that he ever executed it, or that he thereby agreed to release. This denial is repelled by the fact that he did by this second compromise only what he did by the first, released support. I use that first contract to corroborate the probability that he did make the second compromise,, because it only does, as to him, what the first did. We need not discuss how far the second abrogates the first, because as to John E. Eutherford they both do the same thing, that is, release the obligation of maintenance or support. What are the rights of the two sons under them, as between themselves, is not involved. It is said that this second contract is based on no consideration. In the first place, it was a compromise. That it had this character the bill shows, for it says that amid the difficulty the plaintiff attempted to make it. The evidence plainly shows it to be a compromise. If made, it surely was made, as bill and evidence show, as a compromise. That makes the consideration sufficient
But J ohn E. Rutherford says he did not execute the contract.
Facts above stated render it highly probable that he did. The oral evidence added makes it clear that he did. It greatly preponderates to this conclusion. 'George L. Shreves says that a few clays before the contract was made he met John E. Rutherford on the road and the trouble between him and his son Samuel was talked about, and Rutherford said he would release his life maintenance to Sam if he would give Hampton a certain black mare he had, and that 'he, Shreves, told Rutherford he knew Samuel would do so, if Hampton would take the lower tracts and give Samuel the upper, and Rutherford said he would do that. Shreves said that from this the contract and deed originated. So they did. The contract was but its result. When we know of this conversation, it is unreasonable to say that J ohn E. Rutherford did not sign the contract. But by no means is this all. The parties all met soon after at a store. Ira Shockey drafted contract and deed, and as notary took and
These views render it unnecessary to consider whether the sons did their duty. But it may be said that the father could not expect much when he conveyed the land to mere children. And he was very quarrelsome and hard to please. His son Samuel swears he drove him away by calling his wife vile names. The other son swears his father drove him from home, threw his clothes into the yard, told him to leave, only because jealous of his attention to a woman living with them.
It is proven that Samuel told his father that his door was open to him,’ to come and he would be welcome. So, it reasonably appears that the father was not blameless. But investigation of this is useless. The father originally conveyed the land to his sons to avoid an expected demand against him, according to his own evidence, and this would forbid relief to him in a court of equity. Counsel raises the legal question whether the release is a recordable paper by suggesting that as it is its acknowledgment cannot be denied, on principles given in Pickens v. Knisely, 29 W. Va. 1. The obligation of support is only a personal one. No lien is retained in the deeds for its performance. The release is not a paper required to be acknowledged and recorded by Code, chapter 74, section 5 of chapter 76. No statute is cited to sustain the suggestion. If a paper is not one required to be recorded, or though it is, if it is not so certified as to acknowledgement as to authorize it to be recorded, the recordation has no legal force, and hence the certi-
Decree reversed and suit dismissed.
Reversed.