Cost v. MacGregor

• Decision Date: 20 May 1941
• Docket Number: 9167.
• Citation: 14 S.E.2d 909,123 W.Va. 316
• Parties: COST v. MacGREGOR et al.
• Court: West Virginia Supreme Court

14 S.E.2d 909

123 W.Va. 316

COST v. MacGREGOR et al.

No. 9167.

Supreme Court of Appeals of West Virginia.

May 20, 1941

Columbus Wetzel, of Clarksburg, for appellant.

Kay Casto & Amos, of Charleston, and William Beasley, of Baltimore, Md., for appellees.

FOX Judge.

This is an appeal from what is termed in the petition therefor as a final decree of the Circuit Court of Kanawha County entered on the 16th day of October, 1940, in a suit in which P. R. Cost is plaintiff, and K. C. MacGregor, Maybelle MacGregor, and the Federal Land Bank of Baltimore, a corporation, are defendants. The controversy is one between the plaintiff and the MacGregors, and the point at issue, so far as developed by the record, is the application of the statute of limitations (Code, 55-2-6) to the case presented by the bill, a plea of the statute of limitations thereto and a demurrer to said plea. The trial court overruled the demurrer to the plea and sustained the same, and while the suit was not dismissed, the parties treat the action of the court as a final decree denying relief to the plaintiff. From this decree or order, we awarded an appeal.

On February 1, 1929, Cost-MacGregor Co., Inc., executed its negotiable promissory note for $5,000, payable to P. R. Cost K. C. MacGregor and Maybelle B. MacGregor in one hundred twenty days. This note was indorsed by the payees and discounted at the Union National Bank at Clarksburg. The obligation of the indorsers was equal, the indorsement being joint. The note was not paid by the maker, was duly protested for non-payment, and paid by P. R. Cost on October 31, 1929 the amount paid, including interest, being $5,122.40. At the time of this payment, the bank made the following indorsement on the back of the note: "This note paid and assigned to P. R. Cost without recourse." On May 26, 1939, P. R. Cost instituted this suit in the Circuit Court of Kanawha County, and service of process was obtained on the MacGregors in that county. In the bill the facts above noted are set up, and a claim made by Cost against the MacGregors for two-thirds of the amount paid to the bank, on the theory that the MacGregors were liable for and should be required to contribute their share of the amount so paid on account of said note. The prayer of the bill is "that defendants *** may be required to contribute to the payment of their proper part of the note and interest herein described ***" and "*** further and general relief as to equity may seem meet ***." It should be noted that a writ of attachment was sued out and levied on a tract of land situated in Tyler County, West Virginia, and its sale sought under the lien created thereby.

The MacGregors filed their joint plea of the statute of limitations on the theory that a suit on the claim asserted in the bill could not be maintained if instituted more than five years from the date Cost paid the note in question. To this plea, the plaintiff, Cost, interposed a demurrer on the general ground that the claim set up in the bill was one on which suit could be maintained if instituted at any time within ten years from the maturity of said note, on the principle that when Cost paid the note and took the assignment thereof, he became subrogated to all the rights of the holder. The trial court overruled said demurrer, held the plea good,...