OPINION
HAYMOND, JUDGE
This
is a cause in equity. It was heretofore before this Court
before the defendant, O. C. Martin, was made a party
defendant. 7 W.Va. 678. Judge PAULL delivered the opinion of
the Court; and on pages 679 and 680 he states substantially
the evidence then appearing in the record, being the
depositions of three witnesses taken by the plaintiff. On
pages 680 and 681 Judge PAULL in delivering the opinion of
the Court, after stating the substance of the evidence, says:
" In the absence of all evidence to the contrary, or of
any evidence whatever in support of the answers, we think the
assignment to the plaintiff is sufficiently established, as
also notice of this assignment to the maker thereof, to wit,
defendant Noel, by the depositions found in the record. As
before stated, there is no evidence on the part of the
defendants, and they claim no affirmative relief. The
defendant, Noel, proves his knowledge of the assignment of
the bond of 1861; that he had notice thereof at that time,
and that said bond was not paid until after this suit was
brought. With this statement of the case and the evidence, we
think the decree of the circuit court made on the 15th day of
December, 1871, dismissing the plaintiff's bill, is
erroneous. It seems, however, from a decree entered in this
cause, on the 12th day of April, 1872, that there is a
judgment on the law side of the circuit court of Greenbrier
county, in favor of O. C. Martin, assignee, & c. v. N.W.
Noel, and that by consent of parties the money to satisfy the
same should be paid by the sheriff to J. W. Davis, to be held
subject to the order of the court in this suit; and the
plaintiff's bill having been dismissed, it was adjudged
and ordered that said judgment be absolute, and said O. C.
Martin be permitted to receive the money collected on the
same directly to his own use and benefit. We have seen that
it was error to dismiss the bill, and it was consequently
error to make the foregoing order without first making the
said O. C. Martin a party in this cause, he now appearing to
be a party directly interested in the subject-matter of this
controversy. The decree of the circuit court, made on the
15th day of December, 1871, and the decree of said court made
on the 12th day of April, 1872, are reversed and annulled
with costs against the appellees, P. B. Harrah and N.W. Noel,
and this cause is remanded to the circuit court of Greenbrier
county, with leave to the plaintiff to amend his bill, and
make additional parties, and for further proceedings,"
& c.
The
decree of this court reversing the said decrees of the court
below, and remanding the cause, was made and entered by this
court substantially in accordance with the conclusion of the
opinion of Judge PAULL in relation to reversing and remanding
with leave to plaintiff to make new parties.
On the
12th day of October, 1874, the mandate of this court was
received by the clerk of the circuit court of Greenbrier
county, and entered of record according to law. And
afterwards, on the 31st day of October, 1874, the cause was
again docketed in said circuit court, and the plaintiff by
leave of the court filed his amended bill in the cause making
said O. C. Martin a party thereto, in which he charged that
since the institution of this suit the said O. C. Martin
procured the bond set up and described in the original bill
to be assigned to him, and that he took the assignment of
said bond mala fide; that he knew before and at the
time of the assignment that the bond had been assigned to
plaintiff, and of right belonged to him, & c.
Afterwards, on the first Monday in May, 1875, the defendant,
O. C. Martin, filed at rules his answer to said amended bill,
which is substantially as follows:
" This respondent, for answer to so much of said bills
as it is material for him to answer, says that some three or
four years since he purchased from his co-defendant, P. B.
Harrah, a bond executed by N.W. Noel to G. Knapp for $128.14,
dated February 28, 1861, and due on demand; that at the time
of said purchase he paid said Harrah for said bond, and the
said Harrah assigned the same to respondent. A copy of said
bond is herewith filed as a part of this answer marked
Exhibit " X," that after he purchased said bond as
aforesaid, he instituted suit thereon in this court,
recovered a judgment at the October term, 1871, against said
Noel, and sometime in the year 1872, subsequent to the month
of May in that year he collected said judgment from said Noel
as he was directed by an order of the court in this suit.
Respondent avers that he purchased said bond from said Hurrah
for value and in good faith, and that he paid said Harrah for
the same at the time of the purchase and assignment
aforesaid; that he had no notice at that time that the
plaintiff, Brown, had or pretended to have any claim to said
bond; that there was no assignment from the obligee, Knapp,
to the plaintiff on said bond; that said Knapp received no
part of the consideration for said assignment to respondent,
but the entire transaction was between respondent and said
Harrah and the whole consideration was paid by respondent to
said Harrah for said bond. Respondent positively denies that
he had any knowledge of any claim of the plaintiff to said
bond at the time of said assignment to him. He denies that
the defendant, Knapp, owed him at that time, or that said
bond was taken in discharge of a debt due to him from said
Knapp; he denies that he bought said bond either directly or
indirectly from said Knapp; he denies that at the time of
said purchase he knew that plaintiff, Brown, had sued Knapp
and Harrah for said bond or its proceeds. And respondent
denies each and all of the allegations and charges in the
plaintiff's bill which are not expressly admitted in this
answer," & c.
The
Exhibit " X" filed with the answer is as follows:
" $128.14. On demand, I promise to pay G. Knapp the just
and full sum of one hundred and twenty-eight dollars and
fourteen cents, for value received of him, as witness my hand
and seal this 28th day of February, 1861.
(Signed)
|
N.W. NOEL. [Seal.]"
|
The
following are the endorsements appearing thereon:
" I. G. Knapp, have assigned the within to P. B.
Harrah."
" I assign the within to O. C. Martin without recourse
PHARES
B. HARRAH.
December 1, 1870."
Additional depositions were taken and filed in the cause; and
afterwards, on the 13th day of October, 1877, the said
circuit court made and entered the following final decree in
the cause, to-wit:
" This cause came on further to be heard this 31st day
of October, 1877, upon the papers formerly read, upon the
mandate and opinion of the Supreme Court of Appeals, upon the
amended bill of the plaintiff, upon the process thereon
regularly executed upon all the defendants; upon the answer
of Obadiah C. Martin, and general replication thereto; upon
the amended bill taken for confessed as to the defendants,
except O. C. Martin; upon depositions of witnesses; upon
exceptions thereto by the plaintiff; and was argued by
counsel. Upon consideration whereof, it is ordered, adjudged
and decreed that the bond executed by the defendant, N.W.
Noel, on the 28th day of February, 1861, to Gamaliel Knapp
for the sum of $128.14, payable on demand, be for the
purposes of this suit set up as a lost bond, the right
whereof is in the plaintiff, and the principal and interest
thereon now amounting to the sum of two hundred and fifty-six
dollars and twenty-eight cents ($256.28). And it appearing
that a decree was taken against defendant Noel in favor of O.
C. Martin for the said debt, and that after the rendition of
the decree, and before the same was suspended by appeal or
otherwise, the said Noel paid the same to defendant, O. C.
Martin, no decree can be rendered against Noel, but it is
ordered, adjudged and decreed that the plaintiff, Tinsley
Brown, recover against the defendant, Obadiah C. Martin, the
sum of two hundred and fifty-six dollars and twenty-eight
cents, the amount of said bond, with interest from this day,
and his costs of this suit herein by him expended and
incurred since the filing of
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