Maslin's Ex'rs v. Hiett

• Decision Date: 19 November 1892
• Citation: 37 W.Va. 15
• Court: West Virginia Supreme Court
• Parties: Maslin's Ex'rs Hiett

37 W.Va. 15

Maslin's Ex'rs

v. Hiett

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1892.

Decided November 19, 1892.

1. Limitations of Actions Promissory Notes War Between the States.

Under the act of limitations of 1882 (Acts 1882, c. 102, § 0) a note given in May, 1861, is barred by the lapse of five years from the date of its maturity, after excluding from the computation the period during which the right of action was obstructed by the civil war and by the subsequent removal of the promisor from the State.

2. Limitations of Actions Construction op Statutes.

Statutes of limitations are never to be construed retrospectively, unless such construction is required by express command or by necessary and unavoidable implication.

3. Residence Intention Animus Revbetenpi.

The question of residence is one of intention, and the old resi- deuce is not considered as lost or abandoned so long as the animus revertendi remains.

4. Laches Waiver Promissory Notes Presumption.

Courts of equity always stimulate and reward promptness and diligence, and discourage laches and stale claims; and in a case where suit was brought on a note payable on demand, and more than twenty six years had elapsed between the maturity of the note and the institution of the suit, and the deceased promisee had lived for more than twenty five years in easy access to and close association with the promisor, and never during the whole of this period had made any demand whatever, a court of equity will readily presume that the testator had waived and abandoned all thought of collecting this note.

5. Promissory Notes Release Contract.

Where a father or other relative pays one half of a joint note on behalf of the promisor in consideration of the fact that the promisee will release such promisor from payment of the other half, and the contract is executed, the money received, and the release indorsed on the note, such a transaction constitutes a valid contract, of which said promisor can avail himself when sued for the remaining half of said note.

6. Promissory Notes Release.

Ths release of one joint or joint and several promisor is, generally speaking, a release of all.

R. W. Monroe for appellant cited 9 W. Va. 633; 29 Gratt. 240; Whar. Ev. § 482; 1 Am. Lead. Cas. 711; 2 Kent (s. p.) 480, n. (f); U S. Digest (1846) 102, Div. 6, 8-10, 18, 14; 1 Shep. Touch. 823.

H B. Gilkeson for appellee cited 9 W. Va. 626-630; 21 W. Va. 324; 15 W. Va. 87-89; 95 II. S. Rep. 633; 76 Am. Dec. 287, 758; 3 Ret, 290; 20 Gratt. 222-226; 4 W. Va. 536; Id. 538; 12 W. Va. 757; 30 Gratt, 718; 4 Muiif. 398; Drake Att. § 65; 33 Gratt. 180; 3 W. Va. 405; 43 Am. Dec. 586; 3 Am. Dec, 444, 445; 1 Patt. & II. 34; 1 Sto. Eq. Juris. §498; 11 Leigh 390.

Lucas, President:

This was a suit of foreign attachment brought by the executors of Thomas Maslin against James Hiett and Eugene Alexander, late partners doing business under the name of Hiett & Alexander. The summons and return thereon are not in the record, audit is impossible, therefore, to ascertain whether the co-partner, Eugene Alexander, was served; nor is there anything in the record to indicate an appearance on his part or an abatement of the suit as to him.

The bill, which was filed on the 27th day of June, 1887, sets out that on the 11th May, 1861, the defendants executed to Thomas Maslin, their testator, a certain promissory note, which being exhibited is as follows:

"Exhibit. One hundred and nine dollars and twenty five cents. On demand, we promise to pay to Thos. Maslin one hundred and nine dollars ami twenty five cents, for value received.

"Witness the signature of our firm, this 11th day of May, 1861.

"Hibtt & Alexander."

The following endorsement is upon the back of said note: "1877, Jan. 14th. Received on this note from S. II. Alexander, one hundred and live dollars and sixty nine cents, being Eugene Alexander's half, and he is hereby released from the payment of Hiett's half of the note. One hundred and five dollars and sixty nine cents.

(Signed.) Thos. Maslin."

It is further averred that said firm was dissolved more than twenty years ago, and that there were no assets for the payment of debts, and both defendants left, the State years ago, to wit, in 1865 or 1866 or 1867, and have resided in other States ever since. The attachment was issued and served upon the real estate of the defendant Hiett in the county of Hampshire. The defendant Hiett appeared and answered. He did not admit or deny the execution of the alleged promissory note, but pleaded in defence against it the benefit of the legal presumption that it had been paid.

With regard to his residence, be states that he resided in Hardy county and remained there until the spring of 1866, when he removed to the county of Hampshire and remained until spring of 1870, when his wife and family returned to his father-in-law's, in the town of Moorefield, the place, also, of said testator's residence, aud remained there until the fall of that year; that in the month of April or May, 1870, respondent went to the state of Missouri to look at the country with a view to his removal thither, and remained there during the summer:; that in the fall of the year 1870 he returned to West Virginia and openly removed with his family to Missouri, where he has continued to reside up to this time. He alleges, moreover, that the testator was well acquainted with the movements of respondent knew his place of residence in Missouri because a frequent and continuous friendly correspondence was kept up between their respective families up to the time of the testator's death, yet during all the time aforesaid no demand was ever made by the testator for the payment of the alleged promissory note. The respondent insists on the statute of limitations and asks that the attachment be quashed.

This answer was replied to generally and was followed by two amended bills of complaint, in which the complainants plead, by way of rebuttal, that the collection of the note in question was obstructed by war from the date of the note, May 11, 1861, to the 21st of May, 1866; and, secondly, that the right to bring an action was further obstructed from the 1st of April, 1870, to the date of the institution of this suit by the removal of the defendant Hiett from this State to the State of Missouri. The amended bill further sets out that from the date of the note until April 9, 1865, war was flagrant in the county of Hardy; that Circuit Courts were not held during said period; that the judge and clerk of said court and attorneys were all absent, having enlisted in the Southern army; that the county was occupied sometimes by one and sometimes by the other of the opposing forces; that claims could not be safely lodged in the clerk's office; that military law generally prevailed to the exclusion of the civil law; and that both of the defendants during the whole of said period were absent from said county as soldiers in the army of the Confederate States. The plaintiffs claim that the period from the 9th of April, 1865, to the 21st of May, 1866, should not be computed, nor should the period from the 1st of April, 1870, to the date of the suit be reckoned. They claim, further, that the period of limitation applicable to this case is not five years, but ten.

To the amended bill defendant Hiett filed an amended answer, in which he corrected the statement of the former answer as to his residence in 1865. He now claims that he in fact resided in Hampshire county during the year 1865, after the close of the war. He further alleges that the Circuit Court of Hampshire county was open continuously after the 1st day of July, 1865, and alleges, further, that a Circuit Court was held there in May, 1861; also, in August or September of the same year. He alleges that the Circuit Court of Hardy county was open on the 18th day of March, 1866, and unobstructed thereafter.-Respondent insists on the 15th November, 1870, as the date of bis removal from this State to Missouri.

The plaintiffs filed a second amended bill, in which they take issue as to the obstruction of courts in both Hampshire and Hardy counties, and claim that in the county of Hampshire the prosecution of their right in the Circuit Court was obstructed until the 7th of May, 1866.

The defendant James Hiett likewise tendered to the court a plea to the effect that he was released, as appears by the indorsement on the note, which, as we have seen from the exhibit, was made on the 14th day of January, 1877. It appears from the final decree that this plea was filed and replied to generally by the plaintiffs, but was stricken out by the court.

The first question to be considered in this case is whether the debt sued upon was barred by the statute of limitations either by its direct application or by the staleness of the claim and the presumption of payment or of waiver and abandonment by failure to demand within a reasonable time.

In the case of Van Winkle y Blackford, it was held that, if the equitable title be not sued upon within the time within which a legal title of the same nature ought to be sued upon to prevent the bar created by the statute, the court acting by analogy to the statute will not relieve. If the party be guilty of such laches in prosecuting his equitable title as would bar him, if his title was solely at law, he shall be barred in equity; and where a personal action is barred in the common-law courts, and a bill of relief is prayed in a court of equity, the latter court will decree the party to be barred by the statute of limitations. 33 W. Va. 582 (11 S. E. Rep. 26) and authorities there cited. The statute of limitations runs against a note payable on demand from the date of the note. Wood, Lim. Act. 257; Busw7. Lim. § 157. In actions at law any particular circumstance relied upon to avoid the statute, when the latter would prima facie bar the debt, has to be introduced by special replication, and in equity by an amended bill. In the...