Brown v. Knapp.

• Decision Date: 15 July 1874
• Citation: 7 W.Va. 678
• Court: West Virginia Supreme Court
• Parties: Brown v. Knapp.

7 W.Va. 678

Brown

v.Knapp.

Supreme Court of Appeals of West Virginia.

July 15, 1874.

1, Allegations in a bill, denied in an answer the bill and answer be ing both under oath appearing to be established by satisfactory proofs in accordance with section fifty-nine of chapter one hundred and twenty-five of the Code; it is error to dismiss the bill.

2. It appearing in the progress of a cause, that a person having such an interest in the subject matter of the suit as to make him a necessary party to the cause, is not before the court, it is error to decree in his favor, without his being first made a party, and ascertaining his rights.

Appeal by the complainant below, Tinsley Brown, from two several decrees rendered by the circuit court of Greenbrier county, one on the 15th day of December, 1871, and the other on the 12th day of April, 1872, in a suit in chancery against Gamaliel Knapp, N. W. Noell and Phares B. Harrah respondents.

The facts and statutes alluded to sufficiently appear in the opinion of the Court.

The Hon. Joseph M. McWhortcr, judge of said circuit court presided at the hearing below.

James W. Davis, for the appellant. Samuel Price, for the appellees. Paull, Judge:

The plaintiff in this case claims under the alleged assignment of a bond made to him by the payee therein, and the payee and maker of said bond are made parties. The bill alleges that after said assignment and delivery of the bond to the plaintiff, the same was returned to the payee or assignor, that he might take measures to secure the collection of the same, and that said assign-ment was made for value.

The assignor Knapp, filed his answer, expressly denying the assignment of said bond, and its delivery to the plaintiff as his absolute property, and that the same Avas subsequently returned to him by the plaintiff and was assigned by said Knapp for value to one Phares B. Harrah.

The plaintiff then filed an amended bill, making said Harrah a party, and charging that the assignment to him was fraudulent, and praying that he might be required to deliver up said bond to the plaintiff.

Harrah filed his answer, denying the allegations of the bill, and alleging that there was no assignment on the bond, when the same came into his possession, which was some years after the alleged assignment to the plaintiff; that the same was assigned to him for value, and by him assigned for value to another party.

The bill and answers were sworn to by the parties.

Under the case, as thus presented, the plaintiff is required to establish his title to the bond by sufficient evidence. The assignment of the bond is denied, and any ownership therein on the part of the plaintiff, and these facts must now be made to appear by satisfactory proofs. The fifty-ninth section of chapter one hundred and twenty-ftve provides, "when a defendant in equity shall in his answer deny any material allegation of the bill, the effect of such denial shall only be to put the plaintiff on satisfactory proof of the truth of such allegation, and any evidence which satisfies the court or jury of the truth thereof, shall be sufficient to establish the same." No evidence whatever is taken by the defendants to establish the allegations in their answers, and the case rests simply on their denials and the depositions taken by the plaintiff in support of his bill. The plaintiff himself proves that the bond was assigned to him...