44 W. Va. 390 | W. Va. | 1898
On the 13th day of June, 1889, one Aden Thompson executed his note to Emily Halstead, his mothei*-in-law, for the sum of six hundred dollars, which note stated on its face that it was for a loan received of her in borrowed money, which note was also signed by Celia A. Thompson and Alex Halstead. On the 15th of June, 1889, said Thompson executed to one D. W. McClaugherty, as trustee, a deed of trust on a tract of land containing two hundred and fifty acres, to secure the payment of said note, which deed of trust was duly recorded. Thompson having failed to pay said note, said trustee, on February 6, 1896, advertised said tract of land for sale, and the said Aden Thompson filed his bill in the circuit court of Mercer county, praying an injunction to restrain said trustee from selling said land, alleging in his bill the above facts, and claiming he did not owe Emily Halstead the said six hundred dollars evidenced and secured as aforesaid, or any part there
The errors relied on by the appellant are as follows: (1) That the court erred in denying the relief prayed for in his bill upon the pleadings and proofs in the cause. (2) The court erred in dissolving the injunction awarded in the cause and in dismissing the plaintiff’s bill, upon the pleadings and proofs in the cause. (3) The court erred in dissolving sa.id injunction and dismissing said bill without requiring the trustee in said deed of trust to enter into bond as required by law. (4) The court erred upon all questions properly involved in the cause which fully appear of record therein.
The first, second and fourth of said assignments may be considered together, for the reason that in determining either of said assignments it is incumbent upon us to pass upon the correctness of the decree complained of after an examination of the case upon its merits. There is no controversy as to the fact that appellant borrowed the six hundred dollars in the bill mentioned from his mother-in-law, Emily Halstead, on the 13th day of June, 1889; that he executed his note therefor at the time he obtained the money,
Emily X Halstead. [Seal.]
Witness: W. P. LayNE.”
There are other circumstances developed by the testimony in the case which cannot be reconciled with the claim of the plaintiff that this six hundred dollar debt was settled and released by the paper he seeks to prove by establishing the bandwriting of W. P. Layne, who purports to have been a subscribing witness thereto. The trustee, Mc-Claugherty, testifies that a short time after the advertisement was made the plaintiff, Aden Thompson, told him he was going to make defense to the sale, and stated he had some claims against Emily Halstead for board for herself and Alex Halstead, and for keeping her horse, and asked him if he thought there would be anything- wrong in making these charges against her. This conversation remains uncontradicted by the appellant, and yet it is singular that he should have be'en advising- with the trustee as to the propriety of setting up this defense if he already held the release in writing, signed by Emily Halstead, in which these very claims were recited as a consideration for the release of the six hundred dollars debt. Again, some time after the date of the supposed writing, and after Emily Halstead left his house, he told Mrs. Annie Hedrick that he owed Emily Halstead six hundred dollars and would pay it back if she would knock off the interest; that it was just money, and he was willing- to pay it all but the interest. He also told Harry E. Fink, after the date of this paper (as appears from the -exhibit\ that he owed Mrs. Halstead the money, and would pay it every dollar if she would give him time enough; that he was at her mercy, and, if she wanted to ruin him, she could do it. In a subsequent conversation he asked this witness if he did not think he was doing- right in making a bill against the old
Now, as to the charge made by plaintiff for keeping said Alex Halstead, the evidence shows that the defendant Emily Halstead was in no manner chargeable with keeping her grandson; that the plaintiff and his wife took him when a small boy, and he worked on the farm, making his home with them until he left. Mrs. Halstead also lived there as one of the family, assisting in the housework ; and there not only was no contract that she should pay her board, but the evidence shows that when she was leaving the appellant’s house he told her he charged her nothing for board. Could he recover on the quantum valebat? In the case of Mariner v. Collins, 5 Har. (Del.) 390, it was held that: “A son-in-law could not recover for board and attendance during- the sickness of his mother-in-law, who lived with him as a member of his family. ” Also, in Harsh-bergcr v. Alger, 31 Grat. 53, that, “as between parent and an adult child, whenever compensation is claimed in any case by either against the other for services rendered, or the like, it inust be determined from the particular circumstances of that case whether the claim should be allowed or not. In the absence of direct proof of any express contract, the question always is, can it be reasonably inferred that pecuniary compensation was in view of the parties at the time the services were rendered ? And that depends upon all the circumstances of the case, the relation of the parties being one. ” In the case at bar the appellant, in his deposition, says, when his mother-in-law was leaving his house she asked what her bill was, “and I told her I had made no bill against her.” In the case of Stansbury v. Stansbury's Adm’rs, 20 W. Va., 31, Snydior, Judge, in delivering the opinion of the court, says, “We think the correct rule is laid down in Harshberger v. Alger, 31 Grat. 53,” and quotes with approval the syllabus in that case. It is also assigned as error'that the trustee advertised the
Affirmed.