11 W. Va. 342 | W. Va. | 1877
delivered the opinion of the Court:
This was a suit in chancery, brought in the circuit court of Monongalia county by Addison S. Vance against George H. Evans, William Conway and others. Its object was to obtain for the plaintiff, who, as surety, had satisfied a judgment against him and certain of the defendants, a subrogation to the equity.of the judgment creditor’, and to have the real estate sold, upon which the judgment was a lien, after adjusting the various liens
George D. Evans’s answer was not filed till some twenty-two months after the filing of the bill. In it he
The counsel for the appellant insists that the court below erred in adjudicating upon the matters in contro
But it seems to me, that the case, presented to the Court by the record in this case, is materially different from this supposed case. In the first place, the debt or alleged debt, due from Evans to Conway, was not a bond for any definite amount, as stated in the bill and deed of trust filed with the bill as an exhibit. The bill, on the contrary, states it to be “ a debt of about $3,000.00, alleged to be due William Conway the brother-in-law of Evans.” The bill prays, among other things, that Conway and Evans may be made defendants, and required to answer on oath this allegation, and particularly to say what amount had been paid on this debt; and the prayer for general relief, from the very nature and object of the suit, required the court to ascertain definitely the amount of this debt said in the bill to be alleged in the deed of trust to be about $3,000.C0; and in order to do so the court could rightfully ascertain the condition of the accounts between the parties, when the deed of trust was executed, and also in what manner the balance was affected by their subsequent dealings. The court then did not err in its first decree, entered May 8,1867, in directing the commissioner “ to settle the accounts of the said George D. Evans and William Conway, and ascertain what sum, if any, was still due from the former to the latter.” Though it ought to have gone further and ascertained what sum, if any, was due at the time the deed of trust was given. This decree was not founded on the answer of Evans, but on the allegations in the bill; the answer of Evans not having been filed till eighteen months afterwards. It is presumed, that the pendency of this inquiry before the commissioner suggested the answer of Evans. If in the prosecution of this inquiry it turned out, that at the time the deed of trust was given and
To appreciate properly the statements and conduct of the parties, when this deed of trust was given, it is necessary to understand the situation of affairs so far as it can now be ascertained. The evidence shows, that prior to 1854 for many years Conway had been notoriously insolvent. At that time his brother-in-law, who possessed capital, partly with a view of aiding him entered into business with him in the purchase and sale of cattle ; Evans furnishing all the capital and credit, and Conway doing the principal part of the labor. The parties kept no accounts of their receipts or disbursements. They did a large business, and Evans probably received the larger part of the profits, though there is no means of ascertaining what portion of the profits either received. Conway had a large family whom he supported, and his pecuniary condition during the continuance of their joint business greatly improved. This business continued till the deed of trust was executed by Evans, August 28, 1862, and for a short time afterwards. About the time this business commenced, on February 24, 1854, Conway & Evans jointly purchased of William J. Willey his Plum run farm for $7,000.00, of which $2,000.00 was paid in cash, and the joint bond of the parties was executed- for the balance, $5,000.00. Of this $2,000.00, Evans actually paid over to Willey, $1,960.00 and Conway $40.00 only ; though he now insists that one-half of the entire cash payment was made with his funds. Upon the bond, given for the deferred payment including interest to the time the deed of trust was given, Evans paid about $2,550.00, and Conway had paid nothing except $150.00, in April 1855, if we include a payment of $150.00 interest to April 1, 1855, which though stated by the commissioner to-have been paid by Evans & Conway, ought to be further inquired into, for reasons hereinafter stated. The entire amount then due, of this purchase money was probably about $5,500.00.
The court below should have adjudged, that all the accounts between Evans & Conway of every sort, including the purchase of the Willey farm, were on the 28th day of August 1862 square, and should then have ordered a settlement of the accoixnts between them subsequent to that day. In making this settlement the commissioner should have been, and should now be, instructed to regard Conway & Evans, as each entitled to one-half of the profits on all stock or cattle held by Conway & Evans on August 28, 1862. But should regard Conway as having no interest in t.he cattle and stock themselves, but only in the profits arising from their subsequent sale, the stock and cattle having been purchased out of funds advanced by Evans. All debts of Evans & Conway, paid since August 28, 1862, should be regarded as their joint debts, and one-half of such of them as were paid by Conway, should be charged against Evans as money paid for him; and in like manner Evans is to be charged with one-half of all sums of money, paid by Conway since August 28, 1862 on the purchase of the Willey farm, as so much money paid for Evans. Conway is not to be regarded as entitled to
“ For value received, I assign the within to John S. Ghisler, reserving all interest that may have accrued prior to the 1st day of April 1853.
“ George S. BacoN.”
With reference to this interest the commissioner reports thus: “ Credit paid by Conway to Elizabeth Wil-ley, $150.00. The balance of the interest to said date (April 1, 1855), in the absence of proof as to whom it was paid by, the commissioner presumes to have been paid by Conway-A Evans, $150.00.”
Neither W. J. Willey nor Geo. S. Bacon are parties to this puit. The general rule is, that where it is necessary to adjudicate the rights of an assignee, the assignor, or if he be dead, his personal representative must be made a party to the cause. See Corbin v. Emmerson, 10 Leigh 663. An exception has been made to this general rule, that where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is neither doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party: See Trecothick v. Austin et al., 4 Mas. C. C. R. 44; Ward v. VanBokelen, 2 Paige 289; James River and Kanawha Co. v. Littlejohn, 18 Gratt. 83.
So much therefore of the decree of March 23, 1870 must be set aside and annulled, as approves and confirms that portion of the report of commissioner Moreland, filed January 27,1870, which was made in answer to the inquiry, “what sum, if any, is still due and owing from said Evans & Conway to John J. Chisler as executor of John S. Chisler, assignee of Wm. J. Willey;” and also that portion of said report, which was made in answer to the inquiry, “ what amount, if any, is due from said Evans to Conway on all accounts whatsoever;” and also so much of said decree as directs the commissioner to ascertain the balance of the purchase money on the Plum run farm. And so much of the decree of December 17, 1870 must be set aside and annulled, as approves and confirms that portion of the report of commissioner Moreland, filed August 10, 1870, which was made in an
Cause Remanded.