Cranmer v. McSwords. -

• Decision Date: 27 September 1884
• Parties: Cranmer v. McSwords.
• Court: West Virginia Supreme Court

24 W.Va. 594

Cranmer

v.McSwords.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1884

Decided September 27, 1884.

The order, in which the different kinds of property, personal and real, constituting the estate of a testator, and which are liable to the payment of debts, will be subjected to debts, stated in the opinion, (p. 599.)

2. The devisee of real estate not charged with the payment of debts, when such estate has been previously subjected to the debts of the testator by creditors, may resort to a court of equity to have the real estate devised, subject to the payment of debts, to another devisee, sold to reimburse him for the value of the real estate so subjected to debts by creditors (p. 600.)

3. In a suit in equity to enforce a purely equitable demand the defence of the statute of limitations can have no application, of itself, or by analogy to any limitation in courts of law. Such cases must be determined by courts of equity upon rules and principles of their own. (p. 600.)

4. While in such cases laches and lapse of time are elements which cannot be safely disregarded, they are not always the most important considerations. Where the lapse of time is less than twenty years, the most important considerations in support of this defence generally are: First, the death of the parties to the original transaction to be investigated, or the intervention of the rights of third persons; second, the loss of evidence when the transactions are complicated, S3 as to render it difficult if not impossible to do justice; and, third, the character of the evidence; for instance, if important facts rest upon mere parol testimony this will be a consideration of much weight, but if upon written or documentary evidence it will be entitled to very little weight, (p. 601.)

5. While ignorance of law will not prevent the operation of the statute of limitations, the rule is different in equity, a court of conscience; in such court moral as well as legal grounds may be considered, and a satisfactory moral excuse maybe entertained, although it resulted from ignorance of law. (p. 605.)

The facts of the case are stated in the opinion of the Court.

H. M. Russell and IF. P. Hubbard for appellants. I). Lamb and J. 0. Pendleton for appellees. Snyder, Judge:

By deed, dated August 11, 1843, Daniel Zane conveyed to Z. Jacob and John lust, trustees, all the real estate owned by him on Zane Island, opposite to the city of Wheeling, in Ohio county, in trust to secure the payment of a debt of twelve thousand five hundred dollars, due from him to the Northwestern Bank of Virginia by bond of even date with the deed and payable four years after date. In July, 1860, the said Zane made his will and a few days thereafter died leaving a considerable part of said debt unpaid and otherwise largely indebted to various creditors. By the said will, which was probated in Ohio county, July 13, 1860, the testator in the first clause thereof devised to his son C. Leander Zane and his daughter, Oella Z. Cranmer, the wife of Gibson L. Cranmer, jointly, a tract of twenty-three and one fifth acres of land on said Zane Island known as the "Marietta, Cincinnati and Hempfield railroad tract." In the second clause he devised to his wife, in fee, in lieu of dower, the "south undivided one half" of his homestead tract on said island and the "north undivided one-half" of said homestead tract to a trustee for the use of his son, Daniel F. Zane, for life. The third clause is as follows:

"Thirdly. I direct that all my stock of whatever kind and all my lots or other ground not.otherwise disposed of by wall or deed, including all ground or land owned by me and lying within the county of Belmont in the State of Ohio, be sold by my executors, and out of the sales or money thus raised, that all of my just and lawful debts be paid, and the residue, after the payment of my just and lawful debts as aforesaid, I give and devise to my daughter Indiana, wife of Anion McSwords."

By the last clause Gibson L. Cranmer and C. Leander Zane were appointed executors, and they qualified and acted as such.

All the lands thus devised and mentioned in the will, except that described as lying in Belmont county, Ohio, were included in the aforesaid trust-deed of 1843.

It seems that, after the death of the testator, his executors applied to the payment of portions of his indebtedness all of the personal estate left by the testator and, also, all the real estate of which he died seized except that devised as aforesaid to Oella Z. Cranmer and C. Leander Zane, to Daniel F. Zane for life, and the reversion after his death and also some lots in the city of Wheeling of small value. After this had been done, there still remained unpaid of the indebtedness of the testator at the time of his death two thousand four hundred and fifty dollars of the aforesaid trust-debt which had been assigned to and was then owned by Theodore Fink, one thousand dollars due to said Fink as assignee of another creditor of" the testator, eight hundred dollars to John Darrah, six hundred and twenty-five dollars to Anion McSwords, commissioner, one thousand and fifty dollars to D. Z. Phillips, assignee, &c, and various other debts, amounting in the aggregate as alleged to over twelve thousand dollars.

In 1864 the said Theodore Fink and wife brought a suit in equity in the circuit court of Ohio county to have the real estate subject to the said trust-deed of 1843, which had not been theretofore sold, including the twenty-three and one half acres devised to Oella Z. Cranmer and C. Leander Zane as aforesaid, sold and the proceeds applied to the payment of the debts of the said Daniel Zane, deceased, then unpaid and due to the said Fink and other creditors: The said Gibson L. Cranmer and C. Leander Zane, as executors and in their own rights, Oella Z. Cranmer and the said Z. Jacob, surviving trustee in said trust-deed, and, perhaps, others were made defendants in said suit; but neither the said Indiana McSwords, her husband having died before that time, nor the said Daniel F. Zane or his trustee were parties to the suit. Under decrees of the court the said Jacob, as surviving trustee and commissioner of the court, sold all the real estate so devised to Oella Z. Cranmer and C. Leander Zane. The sale was made in 1866, and the property brought fourteen thousand four hundred and sixty-six dollars and ninety cents, all of which was by orders of the court paid by said Jacob, commissioner to the creditors of Daniel Zane, deceased, whose claims had been filed and ordered to be paid in said suit, except about nine hundred and sixty-five dollars and fifty-four cents, which was paid over to said Gibson L. Cranmer and C. Leander Zane. The precise time at which the proceeds of said sale was paid over to the creditors does not appear but as the sale was not confirmed until October 26, 1866, and one half of the purchase-money was not due until six months after the sale, it may-be safely assumed that the greater part of the said creditors were not paid until during the year 1867.

In September, 1880, about thirteen years after the payment of the debts aforesaid, the said Oella Z. Cranmer and Gibson L. Cranmer, her husband, and C. Leander Zane brought suit in the circuit court of Ohio county against the said Indiana McSwords and Daniel F. Zane and Isaac Irwin his trustee, to sell the reversion in the "north undivided one half" of the homestead tract of twenty-one and one fourth acres of land devised by the second clause of the will of Daniel Zane, deceased, to his son Daniel F. Zane for life, and to have the proceeds thereof paid to the plaintiffs to reimburse them for the value of the land devised to them by the firs clause of said will and which had been sold as aforesaid to pay the debts of the testator, to the extent that such debts were paid out of the proceeds of their said land.

The defendant, Indiana McSwords, demurred to the plaintiff's bill, which demurrer was, on October 8, 1881, overruled by the court. The said defendant subsequently filed her answer in which she denies that there is any liability on her or on the reversion in the "north undivided one half" of the homestead tract, which passed to her under the third clause of her father's will by reason of the matters alleged in the plaintiff's bill. She says she claims said reversion under the said will and has so claimed it ever since the death of her father, and this fact was.known to the plaintiffs for fully twenty years. She pleads the statute of limitations and relies on the laches of the plaintiffs, the staleness of their alleged claim and the loss of papers and the means of defending herself against the alleged demands of the plaintiffs as a complete bar in equity to this suit.

Depositions were taken by the plaintiffs and exhibits filed and, on January 30, 1884, the cause was heard, when the court entered a decree dismissing the plaintiffs' bill with costs, and they appealed to this Court.

It is stated by the counsel for the appellants in their brief that the circuit court in overruling the demurrer to the bill intended to determine all the questions presented by the bill in favor of the appellants, except with respect to the statute of limitations and laches of the plaintiffs in bringing this suit. As the facts, on which the appellants based their rights to be reimbursed out of the land in controversy, were fully stated in their bill, I think, it may be presumed that this statement of counsel is correct, especially as it is not controverted in the briefs of the appellee's counsel and the only questions argued by them were those bearing on the statute of limitations and the laches of the appellants. In the view thus taken by the circuit court it did not err, in my opinion, in overruling the demurrer to the bill. There was no impropriety in joining the husband as plaintiff with his wife Story's Eq. PI. § 61; Harrison v. Gibson, 23 Gratt. 212.

It is claimed as a...