Criss v. Criss. et ah

Decision Date18 September 1880
Citation28 W.Va. 388
CourtWest Virginia Supreme Court
PartiesCriss v. Criss. et ah

The statute of limitations to a suit to enforce a debt bars the remedy but does not extinguish the debt; and therefore, if the debt be secured by a deed of trust, though the action for its recovery be barred, the enforcement of the lien by deed of trust is not affected by any lapse of time short of a period sufficient to raise a presumption of payment, (p. 396.)

2. The presumption of payment arising from mere lapse of time is

the same, whether the debt is evidenced by a bond or by a note, and whether it be or be not secured by a deed of trust, (p. 397.)

3. The presumption of payment of such a debt so evidenced in the

absence of all proof arises after a lapse of twenty years and not before, though a period somewhat short of twenty years will raise such presumption, if it is aided by surrounding circumstances rendering it probable, that such debt has been paid, (p. 400.)

4. The fact, that the time, in which a right of entry on land is barred, or the right to bring an action of ejectment, has been reduced to less than twenty years by statute, does not operate to reduce the time, in which a presumption of the payment of such a debt arises, and therefore does not affect the time, in which real estate may be sold to pay such debt, when it is secured by a deed of trust on such real estate, (p, 401.)

5. In calculating whether the twenty years necessary to raise the

presumption of the payment of such a debt has elapsed, such time must be excluded, if any, in which for any reason the creditor has no legal right or power to bring a suit for the debt, (p. 403.)

6. But though more than twenty years have elapsed, the presumption of payment may be rebutted by satisfactory proof, that the debt has not been paid. (p. 403.)

./. J. Duels lor appellant. No appearance for appellee.

Statement of the case by Green, Judge:

This was an action for the partition ot a tract of land near Clarksburg in Harrison county, W. Va., containing about forty-three acres, which descended from Michael Criss on his death among his heirs and among others, who had purchased the interests of several of the heirs therein. The bill, which was tiled in the circuit court of Harrison in 1875, prayed for a partition ot this land in kind among those entitled thereto, or, if partition can not be so made, that a sale thereof be decreed, and a partition of the proceeds of this sale be made between the plaintiff, Mary V. Criss, and the defendants according to their several interests. There were some controversies and disputes between the plaintiff ami certain of the defendants in this cause, which not being involved in the appeal to this Court I deem it unnecessary to state: It will suffice to say, that on June 12, 1876, the circuit court of Harrison decided, that the interest of the heirs ot Michael Criss would be promoted by a sale of this forty-three acres as well as ot two lots owned by him at the time of his decease, located in Clarksburg, and John Bassel was appointed a commissioner to make said sale, and said decree decided also, who would be entitled to the proceeds of the said forty three acres, and what proportion of said proceeds was coming to each of the parties respectively, several ot which shares in the proceeds of such sale were liable to the payment of certain liens upon them, all of which licus are specified in said decree having been previously as certained by a commissioner's report. John Bassel, the commissioner of sale, sold said forty three acres on July 11, 1876, tor the sum of $3,225.00. The plaintiff, Mary V. Criss, being the purchaser. On July 11, 1876, the court confirmed this sale; and after allowing to the commissioner certain compensation and directing, that a certain sum be paid to the widow of one of the heirs of Michael Criss as the value of her dower, the court decreed, that the said commissioner, John Bassel, do pay to the plaintiff and the several heirs of Michael Criss, deceased, out of the proceeds of said sale, when collected, the respective amounts due them according to their respective interests therein as ascertained in a former decree, except as it was otherwise ordered by this decree of July 11, 1876, or by this former decree. This decree then proceeds as follows:

" And the delendant, Aaron Criss, this day files his separate answer to the plaintiff's bill; and it appearing therefrom, that the defendant, A. 8. Criss, executed to said Aaron Criss a deed of trust upon the interest of said Andrew S. Criss in said land and lots on September 22, 1845, and the defendant, Aaron, claiming the interest of said Andrew S. Criss in said land and lots, it is ordered, that said Bassel do retain the interest of said Andrew S. Criss in said lands and lots subject to the further order of this court.''

The following is the answer of Aaron Criss referred to in this decree:

"7b the Hon. C. S. Lewis, judge of the circuit court of Harrison county:

"The separate answer of Aaron Criss to a bill exhibited against him and others by Mary V. Criss.

"Respondent for answer says that it is true that he is one of the heirs of Michael Criss, deceased, and that said Michael's heirs at law are the persons named in said bill. Respondent further says that said Michael died seized in fee of the land described in said bill, and two lots in the town of Clarksburg. Respondent further says that the defendant Andrew S. Criss on September 22, 1845, conveyed to Augustine J. Smith, as trustee, his (Andrew S.) undivided interest in and to said land and lots and certain personal property to secure respondent in the sum of $470.00 due him from said Andrew S, Respondent further says that said Andrew S. used, enjoyed, and disposed of all the personal estate embraced in said deed for his own use and benefit without devoting any part thereof to payment ot respondent's said debt, and has never paid said debt or any part thereof to respondent, and respondent asks that the interest or share of said Andrew S. in the proceeds of the sale of said land and lots be applied in payment of respondent's said trust. Copy of said trust is herewith filed marked k < XX"; and having answered respondent prays hence to be dismissed, &c. Aaron Criss.

"John Bassel, Counsel."

The deed of trust filed with this answer states, that Andrew S. Criss the grantor is justly indebted to Aaron Criss $470.88, tor which he that day executed his note on a settlement that day made between the parties. To secure this note Andrew S. Criss conveys to A. J. Smith, trustee, all the grantor's undivided interest in the real and personal estate of Michael Criss, deceased, and also one sorrel horse, one milch cow and his household and kitchen furniture all specified, and which was but small in value, together with apparently all his other property even down to a violin,-which was all obviously ot very little value. The deed of trust was dated and recorded September 22, 1845; and the note, which it was given to secure, was payable September 22, 1846.

On December 1, 1876, the defendant, Andrew S. Criss, filed his answer to the bill, which was replied to generally. The answer was as follows:

" The defendant admits that he is one of the children and heirs at law of Michael Criss, deceased. He also admits that his father, the said Michael, died seized and possessed of the land and lots named in said bill, and that defendant is entitled to an interest therein.

" Since his interest in said estate was ascertained by a former decree in this cause, Aaron Criss, his brother and codefendant, has set up a claim against this defendant and is seeking to subject his interest to the payment of a debt ot $470.88, alleged to be due, and secured by a deed of trust made by this defendant on September 22, 1845.

"Defendant admits that he executed the trust to said Aaron t the time stated, but he utterly denies that he is indebted to said Aaron one cent on said trust, and the said Aaron well knows the fact; as from the time of making said trust to the filing of his said answer, said Aaron has never made a demand for his said debt. More than thirty years have elapsed since the making of said trust deed, and defendant insists that if said debt was originally a valid one, (as it was not), and defendant Aaron ever had cause of action therefor, that the seme is barred by the statute ot limitations. This defendant, therefore, insists that if the said Aaron ever had any cause of action or suit against this defendant for or concerning any of the matters in the said trust mentioned, which the defendant doth in no sort admit, such cause of action accrued above twenty years before the filing ot the answer ot the said Aaron, or before the institution of this suit, nor has this defendant at any time since the making of said trust, or within twenty years before the institution of this suit, or at time before the filing of said Aaron's answer therein, promised and agreed to pay said debt. This defendant, as the only means of protecting himself against the stale demand ot his codefendant Aaron, is compelled to plead the statute of limitations in bar thereof. He therefore insists that his interest or share in the proceeds arising from the sale of the land and lots aforesaid is not and cannot be made liable to the payment of said debt Wherefore he prays that commissioner John Bassel be directed in the distribution of the proceeds of the sale of said land and lots to pay over to the defendant his interest therein.

" Davis for defendant. A. S. Criss."

The following is the deposition ot Aaron Criss taken September 9, 1876, after due notice to Andrew S. Criss:

" Question 1st. State your name, age, present place of residence, and where you resided from 1843 to 1866.

" Answer. Age, sixty-five years; pi act of residence, Baltimore, State of Maryland; I resided in Clarburg, Harrison county, Virginia, from 1843 to 1866.

" Question...

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