Gaunders v. Huffman Et At

• Decision Date: 08 June 1937
• Docket Number: No. 8466.,8466.
• Citation: 192 S.E. 297
• Court: West Virginia Supreme Court
• Parties: GAUNDERS . v. HUFFMAN et at.

192 S.E. 297

GAUNDERS .

v.HUFFMAN et at.

No. 8466.

Supreme Court of Appeals of West Virginia.

June 8, 1937.

Rehearing Denied July 30, 1937.

Syllabus by the Court.

"The findings of the trial chancellor will not be disturbed on appeal unless clearly wrong or against the preponderance of the evidence." Spradling v. Spradling (W. Va.) 190 S.E. 537.

Appeal from Circuit Court, Wayne County.

Suit by G. T. Saunders against C. J. Huffman and others. From a decree, plaintiff appeals.

Affirmed.

Fisher F. Scaggs, of Wayne, for appellant.

Thomas West, of Huntington, for appellees.

RILEY, Judge.

This is the suit of G. T. Saunders against the defendants, C. J. Huffman, the Edward Oil & Gas Company, a corporation, D. G. Spurlock, and C. H. Saunders, to enforce a vendor's lien. The plaintiff prosecutes this appeal from an order decreeing that he was not entitled to recover the claim set up in his original and amended bills of complaint, and in dismissing the cause.

The plaintiff, G. T. Saunders, alleges that on February 7, 1924, he conveyed a certain tract of land in Wayne county to his son, C. H. Saunders, reserving a vendor's lien on the face of the deed to secure the payment of $250 of the deferred purchase price, such sum being evidenced by three notes, of even date, in amounts of $50, $100, and $100, due and payable in six, twelve, and eighteen months, respectively, after date; that the deed was recorded; that on July 15, 1930, C. H. Saunders deeded the property to the defendant D. G. Spurlock (son-in-law of G. T. Saunders); that Spurlock conveyed to the defendant C. J. Huffman, on July 19, 1934; and that Huffman, who was president of the Edward Oil & Gas Company, transferred the property two days later to said oil company. Plaintiff further alleges that the three notes have not been paid, nor any interest thereon; that he is unable, because of loss, destruction, or misplacement thereof, to produce said notes; that he never sold, negotiated, or transferred the same to any one; and that he has made repeated demands on Huffman and the oil company, but without avail. The bill of complaint concludes with the prayer that the property be sold to satisfy the vendor's lien.

Huffman and the Edward Oil & Gas Company filed a joint and separate answer to the effect that if there was any such lien, it had been paid. C. H. Saunders and D. G. Spurlock filed separate answers. C. H. Saunders denied that anything was due, averring payment by him of the notes about nine years before the filing of his answer; and denies the allegation of the bill of complaint to the effect that none of the notes have been negotiated or assigned.

C. H. Saunders testified, in effect, that he paid off one of said $100 notes, possibly the one due in eighteen months after date, to J. D. Spurlock, father of defendant D. G. Spurlock, at Wayne County Bank, some time in August, 1925; that he was not positive whether he made payment of either of the remaining vendor's lien notes to any holder except the plaintiff; that all three notes had been paid prior to the settlement, which was entered into between witness and the plaintiff at the time (1927 or 1928) the former agreed to let the latter remove the timber from the tract; that in such settlement plaintiff returned to witness the last of another series, made up of three umse-cured notes in amount of $250 each, the last falling due February 7, 1927, given as part payment on the tract in question; and that said note was overdue at the time of its return to its maker. This witness says further that he destroyed the three secured notes after payment, over six years ago; that the first he knew that plaintiff was claiming such notes had not been paid was just after the institution (May 20,...