Linn v. Collins

CourtSupreme Court of West Virginia
Citation87 S.E. 934,77 W.Va. 592
Decision Date08 February 1916
PartiesLINN. v. COLLINS et al.

87 S.E. 934
77 W.Va. 592

COLLINS et al.

Supreme Court of Appeals of West Virginia.

Feb. 8, 1916.

(Syllabus by the Court.)
[87 S.E. 935]

Appeal from Circuit Court, Ritchie County.

Suit by R. G. Linn, administrator, etc., against C. M. Collins and another. From a decree for defendants, plaintiff appeals. Reversed and remanded.

Linn & Byrne and Claude L. Smith, all of Charleston, for appellant.

Adams & Cooper and S. A. Powell, all of Harrisville, for appellees.

WILLIAMS, P. 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 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 30, 1891. The 177 acres was sold on October 26, 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, 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 23d 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 23d 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 G. 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 dismissing the suit as to him, and substituting Charles W. Lynch, administrator, as plaintiff, and allowing the suit to proceed in his name as administrator. He resigned as administrator in 1896, and was succeeded by R. M. Ramsburg, who, at November rules, 1900, filed his bill. Defendants demurred and answered in February, 1905, and the demurrers were overruled. At January rules, 1912, appellant, who in the meantime had succeeded R. M. Ramsburg as administrator of G. D. Camden, deceased, filed an amended and supplemental bill, bringing in additional parties, discovered to be necessary parties after the cause had been referred to a commissioner to ascertain and report certain matters. Between the years 1900 and 1912 the cause was twice dropped from the docket, and as often reinstated. The case was matured, and finally heard on the 27th of October, 1913, when the decree dismissing plaintiff's bill was entered. Such is a brief history of the case.

It is urged by counsel for appellees that the alleged loss of the note is not proven. Unless the execution, contents, and loss-of the note are established, appellant's suit must fail; and, in that event, his assignments of error are not controlling, and need not be considered. The bill alleges loss of the note;

[87 S.E. 936]

that it cannot be found and was never paid. C. M. Collins and his wife do not deny the previous existence of. the note, but C. M. Collins...

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