Linn, Admr. v. Collins et als.

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS, P.
• Citation: 77 W.Va. 592
• Parties: Linn, Admr. v. Collins et als.
• Decision Date: 08 February 1916

77 W.Va. 592

Linn, Admr.
v.
Collins et als.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1916.
Decided February 8, 1916.

[77 W.Va. 592]

1. Lost Instruments Burden of Proof.

In a suit by an executor to collect a note, alleged to be payable to his testator, lost and unpaid, the burden is on him to prove its due execution, contents and loss. (p. 596).

2. Same Proof of Loss Sufficiency.

The due execution and contents of such note being clearly proven, the testimony of the executor that he searched for it among the papers of his testator's estate and was not able to find it, is sufficient proof of its loss. (p. 596).

3. Same Negotiability Presumption.

It not appearing whether the note was negotiable or not, the presumption is that it was not negotiable, (p. 596).

4. Same Payment Burden of Proof.

Where the maker of such note pleads payment, he bears the burden of proving it, as in other cases, (p. 596).

5. Husband and Wife Conveyance by Wife Joinder by Husband.

The deed of a married woman, signed and acknowledged by herself and husband, although the latter is not named as a grantor, evidences the husband's joinder in the deed and passes the wife's title to her separate real estate, (p. 596).

6. Infants Infant Defendant Guardian Ad Litem Failure to Ap-

point Validity of Decree.

Failure to appoint a guardian ad litem for an infant defendant, who has been duly served with process, is reversible, but not juris

[77 W.Va. 593]

dictional error, and renders the decree pronounced against such infant voidable but not absolutely void. (p. 597).

7. Judgement Erroneous Decree Collateral Attack.

An erroneous decree, not void for want of jurisdiction, is not subject to collateral impeachment, (p. 597).

8. Lis Pendens Property Purchased Pending Suit.

Where the purchaser of land from a party to a pending suit involving the title thereto, executes a mortgage or trust deed thereon, without warranty of title, and the title of his grantor is thereafter decreed in such suit to be void, such purchaser's title and the lien created by him fail also, whether he was a party to the suit or not. (p. 597).

9. Mortgages Property CoveredAfter-Acquired Title.

If the same land is later sold and confirmed by decree in such pending suit, to a bona fide purchaser, who receives a deed from a commissioner of count, he may then sell to, and invest good title in the person who previously purchased pending the suit, and if his purchase is made in good faith, he takes the land discharged of the lien which he theretofore attempted to create, (p. 599).

10. Fraudulent Conveyances Fraud of Creditors What Constitutes

Pendente Lite Purchaser,

Such transaction does not, in the absence of other evidence, import fraud upon the creditors of such pendente lite purchaser, (p. 599).

11. Mortgages Action Personal Decree Dismissal.

Where, in a suit to collect a debt secured by an alleged lien on land, the existence of the debt is established, but the lien is not, it is error to dismiss plaintiff's suit without a personal decree against the debtor, (p. 600).

(Lynch, Judge, absent.)

Appeal from Circuit Court, Ritchie County. Suit by R. G. Linn, adminstrator, etc., against C. M. Collins and another. From a decree for defendants, plaintiff appeals.

Reversed and remanded.

Linn & Byrne and Claude L. Smith, for appellant. Adams & Cooper and S. A. Powell, for appellees.

Williams, President:

R. G. Linn, as administrator de bonis non, with the will annexed, of G. D. Camden, deceased, is prosecuting this suit in equity to collect the money claimed to be due on a lost

[77 W.Va. 594]

note, executed to his testator by Sarah E. Collins and C. M. Collins, her husband, and alleged to have been secured by trust deed upon certain lands, formerly owned by said Collinses, situate in Ritchie county. The circuit court dismissed his suit, and he has appealed.

A brief history of the origin of the debt, the manner in which it was secured, and of this proceeding is essential to a correct understanding of the matters in dispute and the questions presented for decision. In the year 1881 William Collins conveyed 262 acres of land to his wife Talitha, so long as she remained his widow, with remainder, upon her death or marriage, to his two sons Hiram W. and Draper C. Collins. William Collins died in February, 1882, intestate, leaving his widow and the two sons above-named. In December, 1886, J. T. Ellifritz brought a creditors suit against the administrator, widow and heirs at law of William Collins, deceased, for the purpose of annulling the aforesaid deed and subjecting the real estate to the payment of decedent's debts. The result was, that by decree made on 25th of October, 1889, the deed was declared to be fraudulent and was set aside as to the creditors. Seventy and one-half acres was assigned to the widow as dower, and the remainder of the tract, 177 acres, was decreed to be sold. The cause was twice referred to a commissioner, to ascertain the debts due by Collins' estate, and the final report, ascertaining the debts to amount to more than $1,800, was confirmed on October 30th, 1891. The 177 acres was sold on October 26th, 1892, to A. J. Hickman, one of the defendants to this suit, at the price of $1,050, and three days later the sale was confirmed. The remainder in the dower tract was also sold and confirmed to Creed Collins at the price of $500. It thus appears that all the lands of the estate did not bring enough to pay the debts. Priorities, if any, among the creditors do not appear. Although an infant at the time that suit was instituted, Hiram W. Collins was proceeded against, and duly served with process, as if he were an adult, and no guardian ad litem was appointed for him and no answer was filed for, or by him. He attained his majority on the 17th of November, 1887, and before the final decree was made annulling the conveyance to him by his father. On the 14th of March, 1889, pending the suit,

[77 W.Va. 595]

he conveyed his undivided half interest in the 262 acres to Sarah E. Collins; and she and her husband then, in December, 1890, executed to F. Y. Horner, trustee, a deed of trust upon said half interest, to secure a note executed by Sarah E. Collins as principal, and C. M. Collins, her husband, as surety, payable to Gideon D. Camden, on or before the 23rd of December, 1893, with interest, for the sum of $465.81. The consideration for the note was an assignment by said Camden to Sarah E. Collins of claims, which he held against the estate of William Collins, aggregating $727.87. On receiving those claims, Sarah E. Collins came into the suit by petition, as a creditor, and procured a decree against the estate. It does not appear what sum she realized.

On the 23rd of December, 1893, A. J. Hickman, purchaser of the 177 acres, sold to C. M. Collins, the balance thereof, at the price of $925, after deducting 30 acres, retained by him. Collins apparently not being able to raise the money to pay for it, Hickman, with his consent, sold 40 1/2 acres to Fannie R. Wells, and applied the proceeds thereof on the purchase price due him. The money which Mrs. Collins derived from the estate was likewise applied. This left a balance due Hickman of $126.87, and, to secure its payment, he retained a vendor's lien in his deed to C. M. Collins. Collins failing to discharge the lien, Hickman brought a suit to enforce it, making Charles W. Lynch, who was then administrator of 6-. D. Camden, deceased, and F. Y. Horner, trustee, parties thereto. Pending that suit, Hickman was paid, and, on the 27th of February, 1895, a decree was made...