48 W. Va. 652 | W. Va. | 1900
Samuel Y. Woods, trustee, filed his bill in the nature of a creditor’s bill, in the circuit court of Barbour County against Ira Ward, Alberta Ward, Taylor Ward, Squire Cronso and others, to enforce the collections of certain trust and other liens against the lands of said Ira Ward. Among the debts so secured by one of the deeds of trust which was dated December 21, 1894, was a debt of six thousand dollars, being a note executed by Ira Ward and Taylor Ward to T. <7. Farnsworth for borrowed money, also a debt of one thousand eight hundred and nine dollars and eighty-six cents to Taylor Ward and one of four thousand dollars to Squire Cronso and Taylor Ward jointly, which deed of trust conveyed two tracts of land of said Ira Ward, one containing seven hundred and twelve acres, the other three hundred and twenty-eight acres, both in Barbour County. Taylor Ward answered the bill, averring that on the six thousand dollar note is a credit of one thousand three hundred and sixty dollars as of August 28, 1893, and that said note is in fact the note and debt of Ira Ward and respondent only security of said
“First. Because the said commissioner has not reported that one-half of the trust debt due to T. J. Farnsworth, originally of six hundred dollars, with interest thereon from October 28, 1890, as the debt of Taylor Ward, and because said commissioner failed to report the said debt originally of six thousand dollars as the joint debt of Taylor and Ira Ward, and because he has not reported that in the event that the land of exceptor is made liable and sold for the payment of the whole of said Farnsworth debt, that then and in that event exceptor is entitled to contribution from said Taylor Ward for one-half of said original debt, or three thousand dollars, with interest thereon from the said 28th day of October, 1890, which should be properly applied in extin-guishment of exceptor’s indebtedness to said Taylor Ward' so far as necessary, and the residue decreed to exceptor against said Taylor Ward.
“Second. Because the commissioner has failed to make a settlement of the partnership accounts of exceptor and Taylor Ward, and has failed to allow to exceptor in payment of his indebtedness to Taylor Ward and as a right of recovery against Taylor Ward one-half of the recovery had by Taylor Ward and exceptor in the chancery cause of Aquilla Ward against Taylor Ward in the Supreme Court of Appeals of this State, to-wit, four thousand sixty-four dollars and seven cents, being one-half of the value of the “A1 Ward farm,” recovered in said suit, less the life estate of Acquilla Ward therein, as ascertained by said commissioner.
“Third. Because said commissioner has ascertained the value of said “A1 Ward farm” to be twenty-five dollars per acre, when the evidence shows that the same is in fact worth from -thirty dollars to thirty-five dollars per acre.
“Fourth. Because said commissioner has failed to credit the two debts of S. Y. Woods, as reported, of two thousand three hundred and eighty-four dollars and thirty-six cents and three hundred and five dollars and seventy-one cents against exceptor and Wm. Hall with the sum of one thousand eight dollars and*658 twenty-nine cents as of the 5th day of March, 1898, of the Christ-lip money, collected by said Woods for exceptor, and applied by said Woods upon indebtedness of J. A. Williamson, late sheriff of the county, to said Woods, as follows: seven hundred and ninety-six dollars and ninety-six cents upon the judgment of said Williamson against T. P. R. Brown, J. N. B. Crim; sixty-three dollars and ninety-five cents, the J. F. Robinson debt, and one hundred and forty-eight dollars and twenty-eight cents, the W. P. Scott judgment, which said application was made without authority of law and without the authority of exceptor and against his instructions, and because, as is shown by the evidence, at least five hundred dollars of the Crim and Brown money was paid to said Woods on the first day of January, 1894, by H. J. Thompson for said Williamson.”
And Taylor Ward excepted as follows:
“The defendant, Taylor Ward, excepts to the report of commissioner G. M. Kittle filed herein at this term of the court, because said commissioner finds that there is still due from the defendant, Taylor Ward, to his co-defendant; Ira Ward, the sum of two hundred and sixty dollars and seventy-two cents on his one-half of the four thousand dollar note executed to said Taylor Ward, and Squire Cronso, December 21, 1894, and secured in the deed of trust executed to said Woods, trustee, on that date, when in truth and in fact, as fully appears by the evidence in' the cause, defendant, Taylor Ward, fully paid his two thousand dollars being his half of the consideration money on said four thousand dollar note and all that was due from him to said Ira Ward.”
There were a large number of depositions taken and filed in the cause, both for Ira Ward and Taylor Ward, and on the 8th day of June the cause was heard among other things upon the report of the commissioner and the four exceptions thereto of Ira. Ward and the one exception of Taylor' Ward, when the court overruled the the exceptions of Taylor Ward, and sustained the first exception of Ira Ward in respect to the T. J. Farnsworth debt of six thousand dollars, and overruled the second, third and fourth exceptions of said Ira Ward and confirmed the report of the commissioner as modified by said rulings of the court and decreed accordingly that the Farnsworth debt was a joint debt of Ira and Taylor Ward, and based the decree upon the said re
“First. The court erred in holding that your petitioner and the said Ira Ward, as between themselves, were joint makers of the debt decreed to the defendant, Thomas J. Farnsworth.
Second. It was error to decree that your petitioner should be held liable to the said Ira Ward for one-half of the said Farns-worth debt, in the event that the said Ira Ward’s real estate was taken for the payment of said debt.
Third. The court erred in not holding that the debt ascertained to be due to said Farnsworth was the individual liability and debt of the said Ira Ward, and that your petitioner was only the security therein.
Fourth. It was error for the court to overrule the exception of your petitioner to said commissioner’s report and decree as a credit on the liens ascertained to oe due to your petitioner the sum of three hundred and fourteen dollars and twenty-one cents, as ascertained and reported in said commissioner’s report.
' Fifth. It was error for the court in its decree to substitute the said Ira Ward to one-half of the Farnsworth debt as against your petitioner.”
And appellee Ira Ward assigns a cross error in that the court by its decree failed to set off, pay and discharge the amount of money owing from Ira Ward to Taylor Ward by the amount from Tyalor Ward to Ira Ward, arising from the agreement about the appeal of the chancery cause of Aquila Ward against Taylor Ward involving the Al. Ward farm, which cross assignment rests upon the overruling of the second exception of Ira Ward to the commissioner’s report. The first, second, third and fifth assignments of appellant will be treated together, as they all relate to the transaction with T. J. Farnsworth in borrowing from him the six thousand dollars, and is purely a question of fact as to whether the money was borrowed by both and the note a joint note or whether Taylor Ward stands only in the relation of surety to Ira Ward. There is a great deal of testimony taken on this point, and very conflicting. The two Wards contradict each other flatly, Ira testifying that they borrowed it together, were equally liable for its payment, that each received one-half of it for his own use, while Taylor testifies that he got none' of it, except’that he borrowed from Ira one thousand dollars of the money, gave his note to Ira for it, and afterward paid the note
As to appellant’s fourth assignment, based upon the exception of Taylor Ward to the commissioner’s report, touching the payment by Taylor to Ira Ward of balance of two hundred and sixty dollars and seventy-two cents balance of four thousand dollars, Ira had given his note to Taylor Ward and Squire Cronso for that amount and secured its payment in the deed of trust of December 21, 1894. The payees in said note were to settle the liability of said Ira as surety on J. A. Williamson’s bond as sheriff, estimated to be about four thousand dollars. Squire Cronso paid such liability which amounted to three thousand seven hundred and thirty-nine- dollars and twenty-eight cents, leaving a balance of two hundred and sixty dollars and seventy-two cents, which Taylor Ward was to pay to Ira Ward as the residue of the four thousand dollars for which he had given his note. Taylor contends it was paiu to Ira, and the latter contends it was never paid. At the time Ira executed the note for four thousand dollars, December 21, 1894, Taylor Ward and Squire Cronso gave him a receipt for the note showing that in consideration of the note to them they were to pay that amount on Ira’s liability as surety for Williamson. An endorsement on tne back of said receipt showed the payment of the three thousand seven hundred and thirty-nine dollars and twenty-eight cents on account of it, and with Taylor’s testimony he filed the receipt with the endorsement, with the additional endorsement, “Received in cattle one hundred and ninety-three dollars and sixty-eight cents balance on check, seventy-one dollars and sixty-six cents — two hundred and sixty-five dollars and thirty-four cents,” which added to the payment of Cronso makes four thousand and four dollars and sixty-two cents, an overpayment of four dollars and sixty-two cents. The endorsement of the two
Appellee’s cross-assignment of error is based on his second exception to commissioner’s report, that the commissioner failed to make a settlement of the partnership accounts between Ira and Taylor Ward, and to allow Ira in payment of his indebtedness to Taylor and a right of recovery against Taylor one-half of the recovery had by Taylor Ward and the exceptor in the chancery
Affirmed.