Hess v. Dille

• Decision Date: 08 December 1883
• Citation: 23 W.Va. 90
• Parties: Hess, Adm'r of Cuesney, v. Dille, Trustee, et als.
• Court: West Virginia Supreme Court

23 W.Va. 90

Hess, Adm'r of Cuesney,

v.Dille, Trustee, et als.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1883

Decided December 8, 1883.

L The giving of a new note for a previous one which had become due will not be regarded as a payment of the pre-existing debt, unless the parties so expressly agree. Nor will the surrender of the old note in such case, of itself, raise a presumption of such agreement, especially where the creditor would thereby lose some security which he held for the debt. (p.

2. Where the new note is that of a third person not previously bound for the debt, the taking of such new note and the surrender of the old will be treated prima facie as a discharge of the old note and a release of the maker thereof from personal liability, but where the debt is a lien on land of which the maker of the new note has become the purchaser and as a part of the consideration therefor assumed to pay said debt, such new note given by such purchaser and surrender of theold note will not extinguish the lien on the land or be regarded as a payment of the debt, but will discharge the old note and operate prima facie as a release of the makers of the old note from responsibility for the debt. (p. 97.)

Snyder, Judge, furnishes the following statement ot the case:

Suit in equity brought, November 14, 1879, in the circuit court of Monongalia county by Alex. T. Hess, administrator of William Ohesney, deceased, against John A. Dille, 0. H. Dille, trustee, Joseph us S. Brookover and Mary E., his wife, and Martin V. C. Brookover. The material allegations of the plaintiffs' bill are, that George C. Shafer, being the owner of a tract of forty-five acres of land lying in said county, by deed, dated November 2, 1873, conveyed said land to John If. Hoffman, trustee, to secure the payment or a note executed by him on that day to William Chesney for one thousand and eighty dollars payable one year after date, which deed was duly recorded on the day of its date; that subscepiently, the said Shafer and wife by deed, dated October 3, 1874, and duly recorded October 13, 1875, conveyed said land to Martin V. C. Brookover in consideration ot one thousand seven hundred dollars; and expressly stipulated in said deed that one thousand dollars thereof was to be paid by the vendee to William Chesney in discharge of the debt secured to said Chesney by the said trust-deed of November 2, 1873, given by said Shafer to Hoffman, trustee, and a vendor's lien was retained in said deed to secure the payment of the whole purchase-money including the said one thousand dollars to Chesney; that, after the said Martin V. C. Brookover had purchased said land from Shafer, by an arrangement between him and his brother, the defendant, Josephus S. Brookover, the latter acting for Ins wife, the defendant Mary E., the said Josephus S. went to saw. Chesney and informed him that his wife, the said Mary E., was about to purchase said land from said Martin V. C. and that to effect said purchase the said Mary E. wanted to take up said Shafer note and give her note for one thousand dollars in lieu thereoi at eight per cent, interest, and that said trust and vendor's lien for said debt should still bind the land in her hands; that accordingly, on February 1, 1865, the said Mary E. did execute to said Chesney her note for said c.ebt of one thousand dollars, payable on or before December 1, 1879, with interest at eight per cent, from date, and that it was then and there expressly agreed that said trust and vendor's lien should remain in force as security for said one thousand dollars and a further vendor's lien therefor was to be retained in the deed to be made by said Martin V. C. to said Mary E. for said land; that the said Mary E. did at or before that time purchase said land and was then the owner thereof, but afterwards, without the knowledge of said Clesney, the said Martin V. C, fraudulently colluding with said Mary E., conveyed said land to her by deed, dated September 14, 1875, acknowledging therein the full payment of the consideration of one thousand nine hundred dollars and without retaining any lien for said one thousand dollars due to Chesney; that the said deed was acknowledged October 14, 1875, and recorded January 4, 1877; that the said Mary E. and her husband by deed, dated December 27, 1876, conveyed said land to O. H. Dille, trustee, to secure the payment of a note of same date for nine hundred dollars given by said Mary E. to John A. Dille payable April 1, 1878, which deed was also duly recordeel; that the said Chesney died October 6, 1876, and the plaintiff, on the 21st day of said month qualified as his administrator; that the note to defendant John A. Dille having become due, he caused the trustee in said trust deed of December 27, 1876, to advertise the said land for sale and that the same will be sold unless the sale is enjoined. The plaintiff charges that, with the exception of eighty dollars paid on said Shafer debt which was credited by an endorsement on the note and signed by said Chesney, no part of said debt has ever been paid; that the said one thousand dollars, the remainder of said debt is still due and constitutes a valid and subsisting lien on said forty-five acres of land not only by virtue of said-trust-deed of November 2, 1873, but also by reason of the vendor's lien retained for its payment by said Shafer in the deed of October 8, 1874, to said Martin V. C. Brookover, and that said lien has never, in any manner, been released or discharged, and that said John A. Dille had notice thereof before and at the time the aforesaid trust-deed was given to secure him. He then prays that the sale of said land by said Dille may be enjoined, that the lien for said debt of one thousand dollars to his intestate may be decreed to.have priority over the lien of said Dille, and for general relief.

The bill was sworn to, and on November 11, 1879, the plaintiff obtained from the judge of said circuit court an injunction as prayed for in his bill.

The defendants, Brookover, answered the bill claiming that said Chesney had transferred and assigned said Shafer's note to Mary E., and that she had transferred it to Martin V. C. who is the owner of it and entitled to the benefit of the lien by which it is secured. But as there is no evidence in the cause to support this claim, and the said Martin V. C. having refused to file said note or testify in the cause, it is unnecessary to make any further reference to said answers.

The defendant, John A. Dille, states in his answer that before he took the trust-deed of December 27, 1876, he examined the records of Monongalia county and found there recorded the trust-deed of November 2, 1873, to secure said Shafer debt and also the deed from Shafer to Martin V. C. Brookover, in which the vendor's lien is retained for said debt; that then to satisfy him said debt had been discharged, the defendant Martin V. C. produced to him the origth Shafer note with the endorsements thereon of which he tlierr^ took a copy. Tins copy he exhibits with Ins answer, and it is as follows:

"f 1, 080. "Morgantown, W. Va., Nov. 2, 1873.

"Twelve months after date, I promise to pay William Chesney or order one thousand and eighty dollars for value received. "G-. C. Shafer."

The endorsements thereon are as follows:

"Nov. 20, 1874, eighty dollars paid.

''William Chesney.''

"Received payment in full of said deed of trust this the 16th day of September, 1875.

"J. S. Brookover."

The said Dille further states in his answer, that before he took said trust-deed he had frequent conversations with the plaintiff, Hess, and told him what he was about to do and asked him the value of said land; that finding the original note in the hands of Martin V. C. Brookover who was to pay it off, "everything seemed to be regular except the release of Chesney, and he being dead and being assured by his administrator that he knew of no claim of the estate against said land," he took said trust-deed; that in doing so he acted in entire good faith and did not for a moment suppose that the estate of said Chesney had any claim, secret or otherwise, against said land. He denies that there was any agreement between Chesney and Mrs. Brookover that her said note was to be substituted for said Shafer note, and that it was agreed and intended that the said Chesney should hive a lien therefor under either the Shafer trust or the deed from Shafer to Martin V. C. Brookover, but even if there had been such agreement he denies it would be binding on dm. He prays that the injunction be dissolved and the plaintiff's bill dismissed. To this as well as all the other answers there was a general and also a special replication. The special replications were improperly filed and therefore need not be noticed Jackson v. Bull, 21 W. Va. 601, 611.

The cause was heard on.June 20, 1881, upon the pleadings and proofs, and thereupon the court decreed that there was lien on the said forty-five acres of land for the debt due testate, that the debt of the defendant John A. Dille, secured in the trust-deed of December 27, 1876, was paramount and entitled...