Linn v. Collins
| Decision Date | 08 February 1916 |
| Citation | 87 S.E. 934,77 W.Va. 592 |
| Parties | LINN v. COLLINS ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 25, 1916.
Syllabus by the Court.
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.
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.
It not appearing whether the note was negotiable or not, the presumption is that it was not negotiable.
Where the maker of such note pleads payment, he bears the burden of proving it, as in other cases.
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.
Failure to appoint a guardian ad litem for an infant defendant, who has been duly served with process, is reversible, but not jurisdictional, error, and renders the decree pronounced against such infant voidable, but not absolutely void.
An erroneous decree, not void for want of jurisdiction, is not subject to collateral impeachment.
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.
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 court, 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.
Such transaction does not, in the absence of other evidence import fraud upon the creditors of such pendente lite purchaser.
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.
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; 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 does deny that he signed it, and they both aver that it was paid shortly after it was executed. The important matters to be established, in order to maintain a suit on a lost instrument, are its due execution and contents. Although not denied by Mrs. Collins, those matters are established as to both of the makers by the recitals in the deed of trust, which is signed and acknowledged by both Collins and his wife. These important matters being clearly proven, the subsequent loss of the note may be established by slight evidence. That is not so vital a matter as its execution and contents, as the court has the power to protect the makers by requiring plaintiff to indemnify them, in case the note is negotiable and should subsequently turn up in the hands of an innocent holder. C. W. Lynch, who was first curator for the Camden estate, pending the contest about his will, and thereafter administrator with the will annexed, which office he held until the spring of 1896, testified that G. D. Camden died on the 21st or 22d of April, 1891; that he came into possession of the books and papers belonging to his testator's estate; that he did not find the note among said papers and never saw it; and that he found no memorandum or statement among Camden's paper or on his books, showing payment of the note. Appellant's testimony is to the same effect. This, we think, is sufficient evidence to establish the loss of the note. It will not be presumed that it was negotiable, and...
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