Kuhn v. Shreeve, No. 10732

• Court: Supreme Court of West Virginia
• Citation: 89 S.E.2d 685,141 W.Va. 170
• Decision Date: 10 December 1955
• Parties: Anna KUHN and Susan Hoover, v. Holmes SHREEVE et al.
• Docket Number: No. 10732

Page 685

89 S.E.2d 685 141 W.Va. 170 Anna KUHN and Susan Hoover,
v.
Holmes SHREEVE et al. No. 10732. Supreme Court of Appeals of West Virginia. Submitted Sept. 20, 1955.
Decided Oct. 25, 1955.
Rehearing Denied Dec. 10, 1955.

Page 687

Syllabus by the Court

1. Under Section 1, Chapter 67, Acts of the Legislature, 1937, Regular Session, the spouse of an interested party will not be examined as a witness relative to a personal transaction or communication theretofore had with a person deceased, insane or lunatic at the time of his examination.

2. A witness who is incompetent to testify by reason of being the spouse of an interested party is likewise incompetent as a witness for a coparty who is qually interested.

3. The testimony of the payee of a promissory note will not be received in a suit to enforce payment, for the purpose of showing nonpayment of such note when the makers of the note are deceased, insane or lunatic at the time such testimony is offered. Code, 44-2-5, 6 and 8 applies only to the settlement of a decedent's estate before a commissioner of accounts.

4. A statute of limitation enacted after the due date of a note secured by a deed of trust does not operate retroactively to bar the enforcement of the lien created by such deed.

5. The question of whether a note is a novation of a prior note depends on the intention of the creditor and the burden of proving such intention rests on the person asserting it.

6. Presumption of payment is a rebuttable factual presumption and where there is no proof of payment, the possession of a past due promissory note by the rightful payee, such note bearing no indication of payment, rebuts the presumption of payment.

7. Delay in the enforcement of a known right does not always [141 W.Va. 171] give rise to an estoppel where no waiver of the right is otherwise shown and no substantial prejudice results.

William M. Kidd, John H. Fox, Sutton, for appellants.

E. Oldham Berry, Sutton, for appellees.

LOVINS, President.

This suit was instituted in the Circuit Court of Braxton County by Anna Kuhn and Suan Hoover, who are the distributees of F. G. Hoover, against Holmes

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Shreeve, Mary Shreeve Ptomey, Robert D. Shreeve, John Howard Shreeve, Jr., an infant, and Ben Beall, Trustee.

The object of the suit was to enforce the collection of a certain debt in the sum of $700, which allegedly is included in a note in the sum of $1,452, signed by T. N. Shreeve and Minnie Shreeve. The $700 debt is allegedly secured by deed of trust on certain real estate containing .23 acre situate in the town of Burnsville, Braxton County, West Virginia.

T. W. Fletcher executed his negotiable note in the sum of $700, payable to F. G. Hoover bearing date the 11th day of March, 1914, and conveyed the land above mentioned in trust to Ben Beall, Trustee, to secure the payment of such note. T. N. Shreeve purchased the real estate from Fletcher, received a deed of conveyance which did not mention the deed of trust therefore given by Fletcher.

F. G. Hoover died intestate on November 14, 1922, leaving the plaintiffs herein as his distributees and heirs at law. Walter Kuhn, the husband of Anna Kuhn, was appointed administrator of the estate of F. G. Hoover.

[141 W.Va. 172] T. N. Shreeve and Minnie Shreeve made and executed a negotiable promissory note payable to the plaintiffs as the distributees of F. G. Hoover in the sum of $1,452, allegedly including in the note the sum of $700, in addition to another debt of $500 due from Shreeve and wife to Hoover, plus the accrued interest. T. N. Shreeve and Minnie Shreeve, according to the allegations and proof were aware of the debt of $700 and the deed of trust to secure the same at the time the note for $1,452 was made. T. N. Shreeve died on or about the 5th day of February, 1938, leaving surviving him his widow, Minnie Shreeve and the defendants Holmes Shreeve, Mary Shreeve Ptomey, Robert D. Shreeve, his children and heirs at law and John Howard Shreeve, Jr., an infant son of John Howard Shreeve, Sr., who died on the 21st day of June, 1923.

Walter Kuhn, administrator as aforesaid, made a final settlement of his accounts as administrator on or about the 28th day of November, 1924.

In the meanwhile Minnie Shreeve, the widow of T. N. Shreeve, continued to occupy the real estate allegedly conveyed by the deed of trust until her death which occurred on December 31, 1952. It is alleged that Minnie Shreeve was related to the plaintiffs, being their aunt and first cousin. The plaintiffs aver that they did not want to create a hardship on Minnie Shreeve by forcing the sale of the real estate, thus depriving her of a home.

A demurrer to the plaintiffs' bill of complaint having been overruled, the defendants were given until December 28, 1953, to file their answer. They set up several defenses in their answer; principal ones being that the note given by the Shreeves to the plaintiffs did not expressly include the debt secured by the deed of trust. The answer admits the relationship of Minnie Shreeve to the plaintiffs. Defendants aver that they are the owners of the undivided interests in the land sought to be sold.

The infant filed a formal answer committing his interest[141 W.Va. 173] to the care of the court. Ben Beall, the trustee, upon being requested to sell the real estate, refused to do so. The plaintiffs pray for his removal as such trustee and the appointment of another trustee.

Walter Kuhn, the husband of Anna Kuhn, is the principal witness. He testified as to the various transactions relative to the debt of $700 and the giving of the note for $1,452. The note for $1,452 is exhibited with his testimony. The complainants testified that no payment had been made on the $1,452 note. Mary Shreeve Ptomey testified as to her ability to pay and discharge the lien on the real estate had it been called to her attention.

After the filing of the exhibits and hearing of all oral testimony, the trial court entered a decree reciting that the court rejected all inadmissible testimony, and

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held that the near relationship of the parties and the devotion of plaintiffs to respondents' parents, together with other competent admissible testimony rebutted the presumption of payment; that the complainants are entitled to the relief prayed for in their bill of complaint, and decreed that E. O. Berry be appointed trustee instead of Ben Beall, and that such substituted trustee be vested with all powers of the original trustee.

The defendants prosecute an appeal from such decree. Some of the assignments of error go to jurisdiction of a court of equity and the admission of testimony. Other assignments are offered to defeat the suit, all of which may be stated as follows:

(1) That a court of equity does not have jurisdiction of the subject matter of this suit.

(2) That it was error to admit the testimony of Walter Kuhn relative to transactions between Kuhn, T. N. and Minnie Shreeve who were deceased at the time the testimony was given and such testimony should have been stricken from the record.

[141 W.Va. 174] (3) That the deed of trust relied upon by the plaintiffs is barred by the statute of limitation.

(4) That the note of $1,452 having been signed by new makers and payable to a new plaintiff constitutes a novation and abandonment of the note secured by a deed of trust.

(5) That the court erred in finding that the indebtedness of Shreeve to the estate of F. G. Hoover was unpaid.

(6) In refusing to apply the doctrine of presumption of payment.

(7) That the collection of the debt described in the bill of complaint was barred by the doctrine of laches.

Equity has jurisdiction of the enforcement of liens and the substitution of a trustee in a trust instrument. Camden v. Alkire, 24 W.Va. 674. See Atherton v. Hull, 12 W.Va. 170.

This suit was brought to enforce a lien and to substitute a trustee, the original trustee having refused to act. That being true, we are mindful of the well established principle of equity jurisprudence; that equity having jurisdiction of a cause on one ground, complete relief will be given. Downes v. Long Timber & Lumber Co., 99 W.Va. 267, 128 S.E. 385; Given v. United Fuel Gas Co., 84 W.Va. 301, 99 S.E. 476. See Payne, Malcolm & Gallaher v. Fitzwater, 103 W.Va. 12, 14, 136 S.E. 509. We are therefore of the opinion that this suit is properly brought in an equitable forum.

The testimony of Walter Kuhn relative to transactions between him, T. N. Shreeve and Minnie Shreeve was admitted. Undoubtedly, Kuhn testified as to the giving of the note by T. N. Shreeve and Minnie Shreeve, who were deceased at the time the testimony was given. It is provided by statute that: 'No person offered as a witness in any civil action, suit or proceeding,...