Hale. v. Ex'orb

• Decision Date: 28 April 1877
• Citation: 10 W.Va. 145
• Parties: Elias Hale et al. v. Anderson Pack's Ex'orb.
• Court: West Virginia Supreme Court

10 W.Va. 145

Elias Hale et al.

v.Anderson Pack's Ex'orb.

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

1. The presumption that a bond has been paid, which arises after

a lapse of twenty years, has not been changed or abolished by ' the passage of the act of limitation to suits or bonds.

2. Such presumption is not a legal bar; it is a presumption of

fact which must be held to be conclusive, unless rebutted by evidence showing satisfactorily that the bond has not been paid, or furnishing good and sufficient reasons why longer forbearance has been given.

3. If the parties to the bond reside in a county whose condition

was such, during the war, as to render it highly improbable that debts could or would be collected the time luring which the war continued, should not be considered as forming a part of the time whose lapse gives rise to such presumptions of payment.

4. It' it be shown that by the understanding of the parties by

whom the bond was executed it was not to be paid till a future time, the time which elapsed from the giving of the bond to such future time, should not be considered as forming any part of the time whose lapse gives rise to such presumption, though the bond on its face be payable on demand.

5. A rehearing of a chancery cause should not be allowed on the

ground of newly discovered evidence, when it appears that the affidavit of the witness could readily be had, setting out the new testimony, but, instead of its being taken, the party asking a rehearing; merely tiles his own affidavit that he believes the evidence of such witness is material.

This was an appeal and supersedeas from two decrees of the circuit court of the county of Mercer, rendered in two causes, in one of which Elias Hale was plaintiff and John R. Dunlap and James Roles, executors of Anderson Pack, were defendants, and in the other of which Lorendo D. Martin was plaintiff, and said executors were defendants.

A decree of reference was had in the causes on the 9th of October, 1868, and the commissioner reported as one of the debts against the estate of said Pack, a claim in favor of John H. Vawter.

The report of the commissioner, allowing this claim, was excepted to by the defendants, but the exceptions were overruled by the court below, and the decrees appealed from were rendered.

J. M. Davis, for appellants, referred to the following authorities:

Stevenson v. Tavener, 9 Graft., 398; Watson v. Haul,

6 Gratt., 633; Towner v. Lucas, 10 Graft.,; 1 Selw.

N. P., 136; Cutter v. Hinton, 6 Rand.,. 509; Waggonet v. Gran, 2 H. & M., 603; 1 Smith L. C 213, 214, and the following acts of the Legislature.

A. Mahood, for appellees:

Code Va., 1849, ch. 149, §5; Acts 1873, p. 286; Code W. Va. ch. 104, § 18, 19; 2 Mumf., 305; Nuckles v. Jones, 8 Gratt. 267; Thompson's case, 8 Graft., 637; 20 Graft., 296.

A. N. Campbell, for appellees:

Tazewell's exec'r v. Whittles' adm., 13 Graft., 344; Hudson v. Hudson, 6 Mumf, 352: Colleson, adm. v. Huffman, 6 W. Va. 308; Code W. Va., ch. 125.

The appeal was granted upon the petition the of defendant.

A sufficient statement of the case is given by Green, President, who delivered the opinion of the Court.

The Hon. Evermont Ward, Judge of the ninth judicial circuit, rendered the decrees appealed from.

Green, President:

In 1867 two chancery suits were brought in the circuit court of Mercer county, to audit the debts of Anderson Pack, deceased, and to charge his real estate with their payment, his personal estate being insufficient. A decree was rendered in these causes on October 9,

1868, directing a commissioner to audit these debts. In January, 1869, the commissioner made his report auditing those debts. In February, 1869, this report was recommitted generally by a consent decree, and in May,

1869, the commissioner made his second report of the auditing of debts. In this report he audits a debt in favor of John H. Vawter of $644.70 principal, and $363.-23 interest. The auditing of this debt was excepted to, and it constitutes the whole subject of controversy in these causes. The exception was based on two distinct grounds. The first was that the debt was insufficiently proven, and the second was that it was barred by the statute of limitations. In September, 1870, this exception, so far as it was based on this first ground, was overruled, and in May, 1875, it was overruled so far as it was based on the second ground.

The debt was supported by the bond of Elliot Vawter, James Vawter and Anderson Pack, payable on demand to John H. Vawter, for $1,000, and dated April 18, 1843. The consideration stated on the face of this bond was the loan of $1,000 made by John H. Vawter and Robert Campbell for the obligors, and the bond further obliged the obligors to indemnify James H. Vawter, the obligee, against all costs to which he might be subjected in case he was sued by Campbell for the amount borrowed. This bond was reduced to the amount audited by the commissioner by credits which were set out in a paper filed with the bond, the first item of these credits being interest paid to Wm. Dunlap, December 19, 1851, and all of these credits were payments made Wm. Dunlap. The evidence shows that the obligors in this bond were merchants and partners under the name of Pack & Vawter, and they applied to Campbell to lend them $1,000, to be used in their business. He agreed to do so, provided John H. Vawter, who was a brother of one of the partners of Pack & Vawter, would execute to him his individual note. He declined to take the note of the partnership or any of its members. But said he would lend the money on John H. Vawtcr's note alone. Thereupon, John H. Vawter gave to Campbell his individual note, and the partnership of Pack & Vawter got the $1,000, and John H. Vawter took from them the $1,000 bond, the basis of his claim audited by the commissioner. Sometime afterwards, Campbell wanted his money, and the $1,000 was borrowed of Mrs. Dunlap and paid to Campbell, John H. Vawter executing his bond, probably with security, to Mrs. Dunlap. The firm of Pack & Vawter, it is presumed, paid the interest on this $1,000 for years to Mrs. Dunlap, and a portion of the principal, as the credits given on the $1,000 bond to John H. Vawter are of payments made to Mrs. Dunlap. There is, however, no evidence of this except the paper filed with the bond by John PI. Vawter. The court was unquestionably right in holding that this evidence fully established the justice of John PI. Vawtcr's claim originally. There are some frivolous exceptions to depositions which the court properly disregarded, only one of these exceptions has been urged before this Court. Allen T. Caperton proved all the facts above stated positively, but on cross-examination he stated he was not sure that he was present when John H. Vawter got the money of Campbell or when the money was got of Mrs. Dunlap, but he thought it highly probable that he was present when the money was ob- tained from Campbell, and also when the debt to him was paid, as he transacted a great deal of his business. And he added that his information was chiefly derived from John IT. Vawter and Elliott Vawter, the partner of Mr. Pack, and one of the obligors. From this I infer that the material facts above stated were personally known to Mr. Caperton, and that they were further confirmed by the statements of the Messrs. Vawter, probably made when together and at the time these transactions took place. The most material part of his statement is also confirmed by the face of the $1,000 bond to John H. Vawter. The court, therefore, did not err in disregarding this exception to Mr. Caperton's deposition. There was no evidence that John H. Vawter had paid off his bond to Mrs. Dunlap, but this was entirely immaterial, as she gets up no claim against Pack's estate, and the evidence shows that she had no claim against Pack & Vawter, though they got the $1,000 loaned by Campbell, and it was repaid by the money borrowed of her..

It is obvious that John H. Vawter's claim against Pack's estate was not barred by the statute of limitations. Prior to the Code of Virginia of 1849, there was no limitation to a suit on the bond given to him dated April 18, 1848. By that Code, ch.. 149, §5 and 19, this bond, then due and on which no suit had been brought, would not become barred till twenty years after July 1st, 1850. That is till July 1st, 1870, even had no war intervened. The only question worthy of serious consideration is, was this bond to John H. Vawter paid by the obligors? And it is insisted that as more than twenty years elapsed since the bond became due before the decree directing debts against the estate of Pack to be audited, that this bond ought to be presumed to have been paid. As bearing on this question, it was proven that the parties to this bond resided in Mercer county, West Virginia; that this county was held during the war by Confederate troops, except in the spring and summer of 1862, and the fall of 1864, but it was subject to raids of Federal troops during the entire war; that many citizens of the countv, on account of the disturbed condition of the country, absented themselves from the county till after the close of the war: that the court house was burned in the spring of 1862 by Federal troops, and the record books of the county were removed to Wytheville till after the close of the war for safe keeping; that courts were held during the war in different parts of the county where it was not occupied by Federal troops, the minutes of their proceedings being entered on loose sheets of paper, in the absence of the record book.

It has been insisted that since the passage of a statute of limitations to suits on bonds, that no presumption of payment of a bond from lapse of time can arise. This position does not seem to me to be sound. Though doubtless the presumption of payment had its origin in the absence of any statute of limitation, nevertheless it is held that though a...