Feamster v. Withrow

• Decision Date: 09 September 1876
• Citation: 9 W.Va. 296
• Court: West Virginia Supreme Court

9 W.Va. 296

Feamster v. Withrow

Supreme Court of Appeals of West Virginia.

September 9, 1876.

1. B. and D., by a writing signed with their names, acknowledge themusolves to be due S. $969.87, which they promised to pay as soon as the money can be made on a judgment in the hands of the sheriff of Greenbrier county, in favor of D. against F. et al., with interest from date. Held:

That the said writing does not by any of its provisions, have the effect to transfer, or assign, the said judgment debt to S., either at law or in equity.

2. A surety is not entitled to recover from his principal, a greater amount than he has paid for him, but be is entitled to interest on that amount from the date of payment, and necessary costs. If the suret}T has paid the debt of his principal in depreciated currency, whether confederate States treasury notes, or bank paper, or checks, the general rule is, that he can demand from his principal only the value of that currency, &c, at the time of tbe payment, and the criterion of thatvalu?, is the market value.

3. The second section of chapter 116, of the acts of the legislature of 1872 and 1878, so far as it relates to money paid by any security or accommodation endorser, for his principal debtor, does not apply to, and cannot be applied to money paid by such security, or endorser, for his principal, prior to the time said one hundred and sixteenth chapter took effect, in any suit, or proceeding ot sucb surety, or endorser, against his principal, to recover from the principal for such payment. To apply such part of said second section of said one hundred and sixteenth chapter of said acts of 1872 and 1873, to such case or cases, would violate the constitution of the United States, and the State of West Virginia.

4. A paper writing, purporting to be a statement of the amount paid by one of the parties to a note, who claims that he was in fact but a security therein, and a receipt purporting to bo signed by the cashier of the bank holding said note, appended to said state-

men!, to the party making the payment in full of the debt, which is filed in a chancery cause, as evidence, by one of the plaintiffs. therein, and objected to being read as evidence by defendants in the cause, whose interests may be affected thereby, cannot be read as evidence in the cause, unless properly proved. But if said paper writing contains material evidence on its face if read, and there is other evidence in the cause, which proves substantially the same as said paper, the hearing of the cause by the court, upon said paper, is not error for which the decree of the court should be reversed.

5. When a bill is filed by the grantor, in a deed of trust, and one of the cestui que trusts therein, against the trustee, and the other cestui que trusts and others, and a reference is made by the court to ascertain and report the amount of the trust debts, due and unpaid to each of the trust creditors, each trust creditor, interested in the subject, and who is a party, should be allowed to appear before the commissioner and be permitted there, if he chooses, to contest the claim of any other creditors, interested in the trust subject, in whole or part, and such creditor may except to the report of the commissioner, fir error therein, in reporting the debt, of such other creditor, and have the ruling or judgment of the court upon such exception, and is entitled to appeal therefrom, where there is error in such ruling or judgment.

6. Wrhere there is an exception filed to the reading of a deposition of a witness, retaken without leave of the court first obtained, and for that cause, if the court, on considering the question, and the circumstances, is of opinion from the character of the deposition excepted to, and the circumstances of the case appearing, that it would have given leave to retake the deposition, if it had been asked so to do, prior to the retaking of the deposition, it should overrule the exception.

7. Any creditor having an interest in the trust subject, and who is a party to the suit, should be allowed to appear before the commissioner to whom the cause is referred, to ascertain the debts, &c, and be permitted there, if he so desires, to contest the claim of any other creditor, in whole or part, to except to the report of the commissioner, as to such debt, in whole or part; to have the ruling of the court thereon, and to appeal from the ruling or judgment of the court thereon, if there be error therein.

Appeal from, and supersedeas to, a decree of the circuit court of Greenbrier county, rendered on the thirtieth day of November, 1872, in a suit then pending in said CJrciut court in which Thomas L. Feamster and others "were plaintiffs, and James Withrow Trustee, and others were defendants.

The appeal was granted on the petition of Samuel C. Ludington and William H. Dickson, two of said defendants.

The facts of the case are fully set forth in the opinion of this Court.

Hon. J. M. MeWhorter, judge of said circuit court presided at the hearing below.

J. IF. Davis and Mathews & Mathews for appellants. Samuel Price and Robert F. Dennis for appellees.

Haymond, President:

On the twenty-eighth day of October, 1870, Thomas L. Feamster and Louisa, his wife, and S. W. N. Feamster, filed their bill, with an order of injunction thereon granted by a judge of the circuit court, in the circuit court of the county of Greenbrier, against James Withrow, trustee, Samuel C. Ludington, and others, in which it is substantially alleged that said Thomas L. Feamster, to secure certain of his creditors, on the second day of October, 1860, executed to James Withrow, as trustee, a deed for a large amount of properly, both real and personal. An official copy of the deed is filed with the bill, as an exhibit and as part thereof, from which it appears that the said deed is of the date last aforesaid, and was duly admitted to record, in the clerk's office of the county court of Greenbrier, on the sixth day of October, 1860.

By the deed, it appears that said Thomas L. Feamster granted unto the said Withrow the following property, viz.: All the said Feamster's portion of the Arbuckle farm, lying near Lewisburg, which was allotted to him (Feamster) in the division of his father's estate (said portion amounting to one hundred and sixty-two acres), one woman slave, Maria, and her three children, a tract of about fifteen hundred acres of wild land, lying near the White Sulphur Springs; a tract of about six hundred acres of land in Nicholas county, near C. Bright's; a tract of land in Monroe county, worth about $150; all the said Feamster's interest in the old Donnally property, together with all the said Feamster's cattle, horses, mules, and stock of every description, and all his furniture and farming utensils, in trust to secure the following debts, viz.:

A debt of $1800, due to Matthew Mann, and payable on the twenty-third clay of February, 1861, for which he holds a negotiable note, made payable to Samuel C. Ludington, and endorsed by him and D. H. Stalnaker,. and to indemnify, secure, and save harmless the said Ludington and Stalnaker from any loss or liability which may have accrued, or may accrue, to them, or either of them, as securities or endorsers upon said note; to secure a debt of $1,300, due the Farmers Bank of Virginia, by negotiable note, endorsed by Samuel C. Ludington, Daniel H. Stalnaker, and William H. Montgomery, and to indemnify, secure, and save harmless, the said Ludington, Stalnaker, and Montgomery, from any loss or liability which may have accrued, or may accrue, to them, or either of them, as securities or endorsers upon said $l, 300-note; to secure a debt of $3,500, due the Bank of Virginia, by negotiable note, executed by Thomas L. Feamster and S. W. N. Feamster (for the benefit of the former), and endorsed by J. M., Alderson, Samuel C. Ludington, D. H. Stalnaker, and Thomas Creigh, and to indemnify, secure, and save harmless, the said S. W. N. Feamster, J. M. Alderson, Ludington, and Creigh, from any loss or liability which has accrued, or may accrue, to them as securities or endorsers upon this note; to secure a debt of $200, due the Bank of Virginia, by note endorsed by Joseph A. Feamster and William H. Montgomery, and to indemnify, secure, and save harmless, the said Joseph A. Feamster and Montgomery from any loss or liability which has accrued, or may accrue, to them, or either of them, as his securities or endorsers upon this note; to secure a debt of about $2,000, a balance Upon a debt of §4, 500, due the Farmers' Bank of Virginia, by note endorsed by Joseph A. Feamster, S. W. N. Fearnster, Patsy Feamster, and John M. Ahlcrson, and indemnify, secure, and save harmless, the said Joseph A., S. W. N., and Patsy Feamster, and J. M. Alderson, from any loss or liability which may have accrued, or may accrue, to them, or either of them, as securities or endorsers upon this note; to secure a debt of about $904, due William IT. Dickson, for which Samuel C. Lu ding ton and D. II. Stalnaker arc securities and endorsers, to indemnify, secure, and save harmless, the said Ludington and Stalnaker from any loss or liability which may have accrued, or may accrue, to them, or either of them, as securities or endorsers for this debt; and to secure Patsy Feamster whatever may be due her (which sum is not now known), either in her own right, or as guardian for her daughters by said Thomas L. Feamster, for money coming to, or due, her or them, from their father's estate; and to secure to Mrs. Feamster, in her own right, and as guardian of her children, any amount which is justly due her, or them, from said Thomas L. Fearnster; and to secure to Mrs. M. B. White, or to her husband, any amount that may be justly due him, or her (the amount not now being ascertained), from the said Feamster, as trustee, for her interest in her father's estate; and also to indemnify, secure, and save harmless, the said Stalnaker, Ludington, S. W....