90 W. Va. 547 | W. Va. | 1922
From a decree of the Circuit Court of Wirt' County, entered November 29, 1920, an appeal and supersedeas is prosecuted by H. P. Bode.
This decree divests Bode of his legal title to and equitable interest in a house and lot in the City of Huntington in Cabell County, and vests the title in the estate of Harry Sayre; divests him of title to and possession of a certificate of 5 shares of stock of the Wirt County Bank, delivered to him by Sayre and in Bode’s possession at the time of the institution of this suit; renders a personal judgment against him for $168.00 in favor of said estate; disallows certain
Plaintiff, as administrator of Sayre’s estate, filed his bill for the purpose of marshaling assets, converting the real estate into money, ascertaining and paying the indebtedness, and distributing the remainder, if any there should be, to the heirs. The bill charged that Bode held title to the house and lot in Huntington in trust, the exact nature of which was unknown to plaintiff, and asked for full discovery from Bode of the terms, conditions and provisions of the trust, and propounded interrogatories for that purpose. It also averred the possession of the certificate of shares of bank stock by Bode, alleging that the latter claimed to hold the same as collateral security for a debt owing by Sayre to him, and that he was demanding-payment of his debts against the estate, and refused to surrender possession of the certificate until payment was made to him. Bode answered the bill, stating specifically and fully his transactions with Sayre, the amount of the debts he claimed, how and when contracted, when due, when and for what purpose the house and lot was deeded to him and how and for what purpose he held the certificate of stock. The interrogatories propounded were fully and unequivocally answered, both with reference to the Huntington property and the hank stock. The cause was referred to a commissioner in chancery, before whom Bode appeared, unaccompanied by counsel, and presented his evidence of indebtedness against the estate, consisting of a protested check in his favor signed by Sayre for the sum of $1,956.00, dated November 18, 1918, which was a few days before the maker’s death; a note of $850.00 signed by Sayre, dated June 15, 1916, payable at 4 months to order of Bode at.the First National Bank of Marietta, Ohio; and a like note for $853.33, dated the same day and payable in 4 months at said bank, less $57.67 interest paid June 15, 1917. He exhibited the certificate of bank stock with a memorandum attached, made by him at the time of the delivery of the stock to him, showing that he had loaned at that time
The commissioner reported that Bode claimed the stock
The deed, notes, check and possession of the stock establish a prima facie case of indebtedness against the estate, and that the properties were held, at least, as security for the payment; and this prima facie case has not been successfully overthrown by the evidence, on the contrary, it has been strengthened.
There is another cogent reason why the deed to the Huntington house and lot should have been adjudged to be. held in trust to secure appellant’s debts, and why the certificate of bank stock should have been decreed as collateral security for the payment of the loan of $500.00. The bill charges that the deed to the house and lot was not an absolute deed, but was a trust, the exact nature of which was unknown to plaintiff, and it asked for a full discovery from Bode, un
Now, since all parties are allowed to be witnesses, discovery is less needed than formerly, and less frequently asked by technical bills of discovery, which in practice have been largely superseded by other methods of ascertaining the facts from the parties. But there are, instances where a party has some important knowledge of a material fact and remains silent, thus requiring discovery. Section 48 provides for such cases. In the case at bar the rule of evidence prescribed by section 23, chap. 130, Code, prevented
We think the sections of chapter 125 of the Code above referred to¡ were not intended to, and do not, take from answers to interrogatories propounded in bills for discovery all value as evidence. On the contrary we think such answers in so far as they are responsive to the interrogatories are prima facie evidence of the matters therein contained. They may be rebutted and overthrown by evidence satisfactory to the chancellor. The answers of Bode to plaintiff’s interrogatories áre responsive, full, complete and unequivocal, are evidence in his favor, and have not been overcome by plaintiff.
The court erred in not sustaining the exceptions of appellant to the commissioner’s report. The decree will be reversed and annulled in so far as it divests appellant of his equitable interest in the house and lot in Huntington, Cabell County, West Virginia; divests him of his equitable title to the 5 shares of capital stock of the Wirt County Bank, as security for the payment to him of his debt of $500.00, secured thereby; disallows the two notes, one for $850.00 and the other for $853.33, both dated June 16, 1916; decrees the $1956.00 protested check as an unsecured debt; and renders judgment against appellant for $168.00, rents collected by him from the Huntington property since Sayre’s death. In all other respects the decree is not disturbed.
Reversed and remanded.