Hatcher v. Fayette County Court

• Decision Date: 22 May 1934
• Docket Number: 7894.
• Citation: 174 S.E. 690,115 W.Va. 95
• Parties: HATCHER v. COUNTY COURT OF FAYETTE COUNTY.
• Court: West Virginia Supreme Court

174 S.E. 690

115 W.Va. 95

HATCHER v. COUNTY COURT OF FAYETTE COUNTY.

No. 7894.

Supreme Court of Appeals of West Virginia.

May 22, 1934

Submitted April 24, 1934.

Syllabus by the Court.

The finding of a trial court upon a special plea of payment, the issue upon which was submitted to the court upon an agreed statement of facts not made a part of the record on writ of error, must be presumed to have been justified.

Error to Circuit Court, Fayette County.

Action by J. H. Hatcher against the County Court of Fayette County. To review an adverse judgment, defendant brings error.

Affirmed.

H. E Dillon, Jr., and T. A. Myles, both of Fayetteville, for plaintiff in error.

Love & Love, of Fayetteville, for defendant in error.

KENNA Judge.

J. H Hatcher sued the county court of Fayette county in trespass on the case, and from a verdict and judgment in his favor the county court prosecutes this writ of error.

Prior to January 21, 1929, E. N. Kessler was the owner of a tract of 28 acres situate in Mountain Cove district of Fayette county. On that day, he and his wife conveyed the land to T. V. Cavendish. The deed was duly recorded. On March 18, 1930, J. H. Hatcher secured a judgment in the circuit court of Fayette county against E. N. Kessler in the amount of $2,100. Shortly after this judgment was procured and properly docketed, Hatcher brought suit to set aside the deed from Kessler to Cavendish as a fraud upon himself and the other creditors of Kessler and to subject the 28 acres to the lien of his judgment and to any other liens that might be duly proven. On October 21, 1930, a decree was entered in this cause setting aside the conveyance as fraudulent ascertaining the liens upon the 28 acres, and ordering it to be sold. J. H. Hatcher became the purchaser, and a deed was executed to him by the special commissioner dated February 19, 1931, and was promptly recorded.

Pending the creditors' suit, the county court of Fayette county paid to Kessler on October 24, 1930, the sum of $250 for a right of way for a state route through the 28 acres. This action is brought for damages caused to Hatcher and to the security for his debt by the wrongful taking by the county court of the land for the right of way, and for damages by reason of cuts, fills, and excavations and injury to the residue of the tract by the cutting of trees, destruction of private roadways, etc.

The county court appeared and filed a plea of payment setting up the $250 paid to Kessler, and also pleaded the general issue. A demurrer to the declaration was interposed and overruled.

The matter alleged in the plea of payment was submitted to the court under an agreed statement of facts, and decision was in favor of the plaintiff, J. H. Hatcher. The plea alleged that at the time of the payment in November, 1930, the legal title to the land was in T. V. Cavendish and the equitable title in E. N. Kessler. Since the agreed statement of facts, upon which the issue raised on this plea was submitted for decision, does not appear in the record, there is nothing on which we can find that the trial court's decision of that issue was wrong. Neither can we tell on what basis the trial court found against the defendant on the special plea. It alleges that the entire equitable title was in Kessler at the time of the payment to him and that at the same time the legal title was entirely in Cavendish. The theory that this matter would bar plaintiff's recovery necessarily is based upon the position that Kessler could give the county court a complete release for all damages. The...