40 W. Va. 122 | W. Va. | 1894
On appeal from a decree of the Circuit Court of Marlon county, rendered against H. R. Linn et al. in favor of Benjamin P. Thomas, on March 17,1893, for one hundred and sixty three dollars and fifty cents and costs. The cause was referred to a commissioner, and from his report, and the pleadings and evidence, the facts, are as follows:
On the 1st day of October, 1885, Valentine Nichols sold and conveyed to A. W. Henderson, for the sum of four thousand dollars, a certain tract of land containing one hundred and fifty five acres, situate in Monongalia county, W. Va., on the Middle Pork of Dunkard creek. Henderson executed to Nichols his eight single bills for five hundred dollars each, all dated October 1, 1885, bearing interest from date and due, respectively, in one, two, three, four, five, six, seven and eight years after date; and to secureithe payment thereof, on the same day, together with his wife, conveyed the land in trust to Wilson Haught, trustee. Being silent as to the terms of sale, they were determined by the statute on the subject then in force, vie. the act of 1882' See Acts 1882, c. 140. On the 29th day of March, 1886, the deed of trust was admitted to record; and on the 26th day of April, 1886, Valentine Nichols assigned and transferred these eight purchase money bonds to Henry Haught, but without
On the 21st day of September, 1887, W. E. Mallory, as attorney at law for plaintiff, Thomas, having the claim of four hundred dollars to collect for his client, B. P. Thomas, went to Monongalia county to see Henderson. He found him to be insolvent, as his farm was covered by the deed of trust, which was for its full value and more. He and Henderson then went to H. R. Linn, and Mallory, for Thomas, paid Linn one hundred and twenty three dollars and fifteen cents, the balance of the first bond, and Linn, according to his testimony, only wrote his name across the back, and delivered it to Mallory, who delivered it to his client, Thomas. The credit of four hundred dollars was erased, and on the bond
The facts in controversy relate to this real or apparent assignment, Mallory and Henderson testifying that the four hundred dollars credit was erased with Linn’s consent, and the assignment, as written by Mallory, was signed by Linn, and all done with the consent of Henderson, who was present; whereas Linn says he did not erase the credit of four hundred dollars, did not consent to it, and does not know who made the erasure, but on the payment of the balance signed his name in blank, so that the note could be shown and delivered to Thomas as paid by him for Henderson. This bond Mallory delivered to Thomas, who notified the trustee, Haught, that he was the holder and assignee. In pursuance of notice given and of the deed of trust, the trustee, Wilson Haught, on the lOt'li day of February, 1891, and in front of the court house of Monongalia county, sold the land at public auction to the highest bidder on the terms that one-third was to be paid in cash, one-third in one year, and one-third in two years,with interest. Of the time and place of this sale plaintiff had actual notice. Defendant Linn became the purchaser, at the price of three thousand, nine hundred dollars, of which sum he paid ninety five dollars and eighty cents, amount of commission and costs of sale, leaving as net proceeds three thousand, eight hundred and four dollars and twenty cents, which was applied in discharge, to that extent, of the trust-deed bonds, seven in number, held by Linn. These bonds, principal and interest, on that day amounted to four thousand, six hundred and twenty five dollars and twenty five cents, and the net proceeds of sale left the sum of eight hundred and twenty one dollars and five cents unpaid. By deed of that date, vis. February 10, 1891, the trustee, Wilson Haught, by apt and proper deed conveyed the land to Linn, the purchaser.
On the 11th day of August, 1891, plaintiff, Benjamin P. Thomas, brought this suit in chancery against Hugh R. Linn and Wilson Haught, trustee, setting out the facts al
“Where questions purely of fact are referred to a commissioner, his findings, while not as conclusive as the verdict of a jury, will be given great weight, and should be sustained, unless it plainly appears that they are not warranted 'by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, where the findings of the commissioner have been approved and sustained by the decree of the inferior court.” Handy v. Scott, 26 W. Va. 710. Each party in his argument insists on the finding of the commissioner as correct, and as favorable to his view; so that we may infer that his statement as to the one main disputed matter of fact is either not quite full or not quite ■clear. As to this we shall see further on. The instrument in this case set up by plaintiff is a bond, or, more properly, a ■single bill, being under seal — having a scroll affixed thereto by way of a seal which is recognized as such in the body -of the instrument (section 15, chapter 13 page 123, Code); but the sum to be paid is not by way of penalty, and it has no condition; hence it is properly a single bond or single bill. See Clegg v. Lemessurier, 15 Grat. 108. It is a specialty, and ■therefore non-negotiable by our decisions (See Laidley’s Adm’r v. Bright’s Adm'r, 17 W. Va. 779); and also because L is not payable at a particular bank,-etc., as required by section 7, chapter 99, Code, which defines what shall be negotiable paper when payable in this state. Being non-negotiable the legal title can not pass by assignment — death alone can pass the legal title — but the equitable owner by assignment may sue in his own name at law, under our statute (see section 14, chapter 99, Code); and, whether overdue or not, the assignee steps into the shoes of the assignor, taking it -subject to all prior equities between previous parties (see 1 Daniel, Neg. Inst. §§ 1-31) being in no better situation than the assignor; for the holder can only sell and transfer such interest as he has (Stockton v. Cook, 3 Munf. 68) but it seems not subject1 to any equity of a third person not a party to the bond, of which he had no notice (Broadus v. Rosson, 3 Leigh,
After the bonds had been transferred by Henry Haught to defendant Linn, the trust debtor, Henderson, on September 1,1887, made to¡ Linn an absolute and unconditional payment of four hundred dollars, which he caused to be and saw entered by Linn as a credit, as follows: “Benton’s Perry, September 1, 1887. Or., by cash, four hundred dollars (|400.00).” This fact the commissioner reports. It is conceded that this credit was properly entered according to the fact. That much cash was paid by the debtor, and received by the creditor, in extinguishment of that amount of the debt. It was an absolute discharge pro tanto of the obligation. Could it be resuscitated or revived? the commissioner asks. If it could not be revived, the commissioner says there remained due to plaintiff on that bond the balance, to wit, one hundred and twenty three dollars and fifteen cents, with interest from September 1, 1887, till paid, and that to that extent plaintiff, Thomas, had at the time of the sale by the trustee, a lien on the land, and on the proceeds of sale, and defendant Linn had the next lien, amounting, on 10th of February, 1891, to four thousand, six hundred and thirty dollars and sixty six cents.
Next comes that part of the report which seems to be
And this brings us to the first question here involved. Can such extinguished debt be revived, and, if so, how and with what effect on the lien? In this case, looking at it’ from the standpoint claimed by plaintiff to be the correct
Owing to the peculiar circumstances of the case, I have reached this conclusion, but not without great hesitation and ■doubL But, however this may be, this contract as to the lien depends for its one efficient factor upon the mere fact of running a pen through a credit indorsed on the bond; and that is, at least, brought into some doubt and dispute as to reviving and passing the lien for the four hundred dollars. It is an improbable contract, except on the theory that the •one who made such an assignment did not suppose it could have any such legal effect. It would be a hard bargain; taking from defendant Linn, without any but a technical consideration, a substantial part of the only security he has for the rest of his debt — -a security already insufficient. The plaintiff asks what, under some circumstances, would be .akin to the specific performance of a contract in the matter -of the cession of a real estate security. The court would refuse such relief, unless made quite sure of its real merit, as well as of such disputed fact. The Circuit Court gave the plaintiff all he liad any right in conscience at least, to ask— the money he had paid defendant Linn, with its interest; and, if it were a case of recoursing the bond,, the amount paid, when it affirmatively appears, is the true measure of the sum to be recovered.
Defendant assigns as cross error that there should not have been a decree against him for costs, but in this there was no error. He admitted his liability to pay the sum of -one hundred and twenty three dollars and fifteen cents and interest, and offered to pay and did pay it into court, but he had not tendered it to plaintiff before suit brought. The decree complained of should be affirmed.
Tbe finding of tbe commissioner is not excepted to. On tbe contrary, each party relies upon it as a finding in bis favor. That part reads as follows: “Your commissioner believes, considering the evidence of W. E. Mallory, which is objected to1, that tbe proof sustains tbe fact that tbe assignment made by tbe defendant H. R. Linn, as claimed to be made under certain circumstances on tbe 21st day of September, 1887,-was actually made, but! is further of opinion from tbe evidence that tbe credit of four hundred dollars on said note paid by tbe maker, A. W. Henderson, was an actual payment by him on said note. As to tbe reviving tbe same in favor of tbe plaintiff, Benjamín P. Thomas, is a question your commissioner refers to your honor for decision.” The fair meaning of it is, considering evidence to which no exception was taken, that the credit of four hundred dollars was. erased, and tbe assignment on tbe bond written and signed in tbe presence of tbe three parties to the agreement —plaintiff, tbe general creditor; Henderson, tbe trust debtor; and Linn, tbe trust creditor by assignment from Haugbt —but it also appears that tbe four hundred dollars was a payment, theretofore independently made, which extinguished tbe lien of tbe trust deed to that extent. Whether the lien could be so revived as to affect Linn’s lien for tbe part still held by him, tbe commissioner submitted to the court as a question of law. There is a certain class of cases in which tbe lien may be revived, or, if not revived, effect may be given to tbe agreement to charge tbe land as an equitable mortgage. As a case of this kind, see Packham v. Haddock, 36 Ill. 38. In Wayt v. Carwithen, 21 W. Va. 516, the | cases are examined, and tbe doctrine discussed by Judge Snyder, and the general principle stated as follows: “Any deed or written contract used by tbe parties for tbe purpose of pledging real property, or some interest therein, as secured for a debt or obligation, which is informal and insufficient as a common-law mortgage, but which by its terms shows that the parties intended that it should operate as a lien or charge upon specific property, will constitute an equitable mortgage, and
In ordinary cases of .assignment, the rule is well settled in this State that, unless there be an agreement to that effect, the assignor will not be permitted to come in competition with his assignee, if1 the proceeds of sale of the trust property are insufficient to pay the whole; and that rule the Circuit Court applied in this case to the extent of that part really owned and assigned as for himself by Linn to wit, the? balance unpaid, one hundred and twenty three dollars and fifteen cents. The four hundred dollars credit was erased at the instance and for the benefit of Henderson and his general creditor, the plaintiff, and the amount then assigned for their benefit and at their instance by Linn to Thomas, in payment or security of Henderson’s general debt to Thomas. Linn was the mere trustee or conduit through whom the parties giving and taking carried out the transaction, and if by implication, and without writing — for Henderson, the owner of the land, signed none — the erasure had the effect to revive the extinguished lien, it was done, in the view of a court of equity, by Henderson and for Thomas, and for their benefit, and not by or for defendant Linn. Plaintiff, in proving his case, proves this; but the case proved is by no means the case alleged in the bill. Linn had no right to the four hundred dollars that had been once paid to him by Henderson in absolute extinguishment pro tanto of the deed of trust. If Henderson had the four hundred dollars by.erasure of the credit brought to life in Linn, it was but for an instant, as a meansi of transferring it to plaintiff, Thomas, in security of his unsecured debt; for all that Linn assigned as owner, all that
The decree not asked for, or any other than the one pronounced and complained of here, would not be justified by either the pleadings or the proof. The pleadings might have been amended, and the missing party brought in, but it was not asked for, and if given, would as far as I can see, have led to the same result. As it stands, it violates no rule of law, and though not free from doubt, does substantial justice between the parties, and ought to be aflSrmed.