Dunlap's Ex'rs. v. Shanklin

• Decision Date: 02 May 1877
• Citation: Dunlap's Ex'rs. v. Shanklin, 10 W.Va. 662 (W. Va. 1877)
• Court: West Virginia Supreme Court
• Parties: Dunlap's Ex'rs et al. v. Shanklin, Ex'r, et ah
• Writing for the Court: JOHNSON.

10 W.Va. 662

Dunlap's Ex'rs et al.

v.Shanklin, Ex'r, et ah

Supreme Court of Appeals of West Virginia.

Decided May 2, 1877.

1. Giving a receipt or taking a note, with security, from the pur-

chaser, or taking the note of a third party, specifying in either case that it is for the purchase money, will not, while the title remains in the vendor, he an extinguishment of the vendor's lien, unless the purchase money has been actually paid.

2. Taking a note from the debtor, or a note of a third party, is no

discharge of the debt, unless it is expressly agreed between the creditor and debtor that it is in absolute payment thereof.

3. A receipt may be explained or contradicted by parol evidence.

4. S., as executor of D., having power to sell and convey lands of

his testator, sells a tract of land as such executor to C:, and executes to C, the following receipt:

" Received of Thomas S. and Isaac H. Campbell, bonds on the Messrs. Crumps to the amount of $12,000, as a payment for purchase of Eed Sulphur Springs.

"February 3, 1858. "Richard V. Shanklin, Ex'r."

The bonds proved to be worthless, and the vendor retained the legal title. Held:

I. That the receipt of the bonds was no extinguishment of

the lien for the purchase money.

II. That said receipt was not prima facie an absolute payment of the purchase money on said land.

Appeal and supersedeas allowed upon the petition of Chailes H. and James Dunlap, executors of Addison Dunlap, deceased, and Wm, Adair administrator of L H. Campbell, deceased, to a decree of the circuit court of Monroe county, rendered at its May term, 1873, in a cause in chancery in said court then pending, in which said executors of Addison Dunlap and others, were plaintiffs, and Richard V. Shanklin, ex'or, and others, were defendants.

Hon. Homer A. Holt, Judge of the eighth judicial circuit, rendered the decree complained of.

Johnson Judge, who delivered the opinion of the Court, furnishes the following statement of the case.

R. V. Shanklin, executor of Alexander Dunlap, deceased, on the 3d day of February, 1858, sold to Thomas S. Campbell a one-third interest in the Red Sulphur Springs property, in Monroe county, and bound himself to make title to all his claim, as such executor, he having the power under the will of said Alexander Dunlap, to make such title; and said Campbell agreed "to pay said R. V. Shanklin, executor of Alexander Dunlap, on or before the 1st day of March next thereafter, the sum of $12,502.49, to be paid in bonds bearing legal interest, and executed by Messrs. William and William B. Crump, of the county of Mercer, Virginia, to said Thomas S. and Isaac H. Campbell, for purchase money of land known as Culbertson's Bottom, lying on New River, in the county of Mercer, Virginia, the payment of said bonds being secured by lien on said lands; said bonds to be duly assigned by said Thomas S. and Isaac Campbell, and when the foregoing agreement is complete within all its parts by each party, then the foregoing obligation to be void, otherwise to remain in full force and virtue against the party not complying."

The agreement, of which the foregoing is the only part material to the consideration of this cause, was "duly signed and sealed by the parties thereto."

On the same day there were assigned to Shanklin, in pursuance of this contract, four bonds, by the said Campbells, executed by Crumps, for which Shanklin executed the following receipt:

" Received of Thomas S. Campbell and Isaac H. Campbell, bonds on the Messrs. Crumps to the amount of $12,000, as a payment for purchase of Red Sulphur

Springs, February 3, 1858. Richard V. Shanklin, Executor."

Subsequently it was developed that Thomas S. Campbell had purchased the Culbertson Bottom lands from the heirs of Andrew Reed, and that there was due from him to them about $14,000 of purchase money for which the said lands were liable, in the hands of the Crumps. A chancery suit was brought against Campbell by Reed's heirs, and a decree obtained for that amount, and the lands were directed to be sold to pay the same. The Crumps became entitled to an abatement on their bonds to that amount, which was more than sufficient to absorb the amount of the bonds held by Shanklin.

On the 21st day of November, 1859, the said Shanklin, and Thomas S. and Isaac H. Campbell, made another agreement, which after reciting the above stated facts, proceeds," Now, therefore, the said Thomas S. and Isaac H. Campbell, have further assigned to said Richard V. Shanklin, as executor as aforesaid, the said 5th and 6th bonds hereinbefore described, with the understanding that these bonds are all assigned for the purpose of having therefrom the said sum of $12,440, with interest thereon from the 3d day of February, 1858, and that said Richard V. Shanklin, executor, &c, is only entitled to receive from said Crumps, or from said Thomas S. and Isaac H. Campbell, the said sum of $12,440, with interest thereon from the 3d day of February, 1858, on account of said assignments. And it is understood that if, after allowing to said Crumps all the credits to which they may be entitled on said bonds on account of the payment of what is due Reed's heirs, there should be enough of said bonds to pay the amount due to said Richard V. Shanklin, executor, &c., as it is evident there will not be, the said Thomas S. and Isaac H. Campbell, are bound to pay the balance, and the said interest in the said Red Sulphur Springs property is to remain bound for the same, until the whole amount is paid to said.Richard V. Shanklin."

On the 3d day of February, 1858, the same day said Shanklin, executor, made the sale to Thomas S. Campbell, Addison Dunlap, Thomas S. Campbell and Isaac H. Campbell, entered into a partnership for the purpose of carrying on business at the Red Sulphur Springs; they conducted said property, or rather they and the survivors of the partneship did until 1866, when this suit was brought, the plaintiffs alleging in their bill that the property could not be properly divided, that it was a watering place, and ought to be sold as a whole, and pray that a sale might be had, and after paying the debts, the residue should be divided among the parties plaintiff and defendants who were entitled to receive the same.

To this bill, R. V. Shanklin, executor of Alexander Dunlap, was made a defendant, and filed his answer averring that as the executor of Alexander Dunlap, he had never made a deed to Thomas S. Campbell, for the one-third interest he had sold him, and asserting a lien on said property for the unpaid purchase money. There was a reference to a commissioner to ascertain the liens and their priorities, and he reported as the first lier. on the onethird of said property, $8,783.33, as of the 15th of November, 1870 of unpaid purchase money, due R. V. Shanklin, executor of Alexander Dunlap. To which report the plaintiffs excepted as follows:

" The plaintiffs except to Commissioner Calloway's account taken in this case, because he has reported a primary lien on one-third of the Red Sulphur Springs property in favor of Richard V. Shanklin, executor of Alexander Dunlap, deceased, for a debt of $8,783.33as of the 15th of November, 1870, balance of purchase money due for said property by Thomas Campbell. The vendor's lien had been extinguished by an assignment to him (Shanklin) of bonds on William and William B. Crump, a receipt given in discharge of the purchase money, and a new company formed, upon the faith that,

84 these bonds on the Messrs Crump were in discharge of the purchase money. All that Mr. Shanklin can claim is to stand as a creditor upon the assignment, which would ' place him upon a common footing with the other creditors at large."

On the 23d day of May, 1873, the circuit court of Monroe county, rendered a decree in the cause, overruling the said exceptions to the commissioner's report, and confirmed the said report, and ordered that the commissioner, theretofore, appointed to make sale of the property mentioned in the cause, report to the court the amount arising from said sale when made, in order that the court might distribute the fund, according to the report of Calloway and the supplemental report of Kester, which last report was not excepted to.

From this decree the appeal was taken to this Court.

Samuel Price, for appellants, relied upon the following authorities:

Moore's adm'r v. Fitz Randolph, et al., 6 Leigh, 175; Watt et al. v. Kinney et ux., 3 Leigh, 272; Cox &c, v. Romine, 9 Gratt., 27.

Frank Hereford, for appellees, referred to the following authorities:

Yancy v. Mauck, et el., 15 Gratt., 311; Watts v. Kinney, 3 Leigh, 272; Hanover v. Backwell, 6 B. Mon., 67; Appleton v. Kesman, 9 Mo., 637; McMurray v. Taylor, 30 Mo., 263; Hurley v. Hall, 35 Md.; 459; Brush v. Kinsley & Adams & Stillwell, 14 Ohio, 20; Burns' ex'r v. Campbell, 4 Gratt., 125; Knisley v. Williams, 3 Gratt., 265; Woods v. Sullivan, 44 Ala., 686.

James F. Patton, for appellees, referred to the following authorities:

Code W. Va., 474, §5; Tompkinson v. Mitchell, 2 Rand., 428; Wilson v. Davidson, 2 Rob. R., 384; Redford v. Gibson, 12 Leigh, 332; Lewis v. Caperton, 8 Gratt., 148; Yancey v. Mauck, 15 Gratt., 300; 1 L. Ca., Eq., 340,; 366.

Johnson. Judge, delivered the opinion of the Court.

The question presented is, was the decree overruling the exceptions to the commissioner's report, and conferring the same, right?

There is no dispute as to the balance of the purchase money due, nor of the fact that R. V. Shanklin, executor, never received that balance from any person.

The errors assigned by the petitioners are:

1. Because any vendor's lien was enforced as against any of the creditors of Campbell, and

2. Because this lien was preserved to the prejudice of the partners of Campbell, who became interested in this fund, upon an assurance that the purchase money was all paid, and thus they became bound for the partnership debts, notwithstanding this fund was withdrawn from the partnership...