Mcclintic v. Dunbar Land Co, C. C. No. 695.

• Court: Supreme Court of West Virginia
• Writing for the Court: FOX
• Citation: 33 S.E.2d. 593
• Parties: McCLINTIC. v. DUNBAR LAND CO. et al.
• Docket Number: C. C. No. 695.
• Decision Date: 30 January 1945

33 S.E.2d. 593

McCLINTIC.
v.
DUNBAR LAND CO. et al.

C. C. No. 695.

Supreme Court of Appeals of West Virginia.

Jan. 30, 1945.

[33 S.E.2d. 593]

Rehearing Denied April 23, 1945.

Syllabus by the Court.

Chapter 65, Acts of the Legislature, 1921, as amended by Code, 55-2-5, is unconstitutional and void, so far as the same operates retroactively. The retroactive provision of the statute as it now exists operates to impair the obligation of contracts in violation of Section 10 of Article I of the Constitution of the United States, and Section 4 of Article III of the Constitution of this State.

Certified from Circuit Court of Kanawha County.

Suit by Elizabeth Knight McClintic, executrix of the estate of George W. McClintic, deceased, against the Dunbar Land Company and others, for the sale of land to discharge a note secured by vendor's lien, and for other relief. A demurrer to the bill was filed by Betty Jeane Wiles, an infant, by her guardian ad litem, and by the guardian ad litem in his own name, on the ground that recovery was barred by the statute of limitations. Certified from the circuit court.

Ruling of the circuit court reversed and case remanded.

Campbell, McClintic & James and Lee M. Kenna, all of Charleston, for plaintiff.

Watts, Poffenbarger & Bowles and Roy S. Samms, Jr., all of Charleston, for defendants.

FOX, Judge.

On November 26, 1919, the Dunbar Land Company conveyed to A. G. Skeen a lot in Dunbar, West Virginia, and on the face of its deed reserved a vendor's lien on the property conveyed to secure the payment of $1,750, of purchase money, for which Skeen executed six notes, five for the sum of $300 each, and one for the sum of $250, the five notes aforesaid being payable in one, two, three, four and five years, and the $250 note in six years, all bearing interest from date, and all made negotiable and payable to the Dunbar Land Company, at the Bank of Dunbar, of Dunbar, West Virginia. The notes payable in one, two, three and four years were indorsed and transferred by the Dunbar Land Company to J. G. Farquar, and by him to George W. McClintic. The record does not disclose what became of the notes due in five and six years.

[33 S.E.2d. 594]

The plaintiff, as executrix of the estate of George W. McClintic, instituted this suit late in the year 1943, and filed her bill of complaint at November rules, 1943. In her suit she named as parties defendant the Dunbar Land Company, its receiver, A. G. Skeen, and others to whom the real estate in question was transferred from time to time. In her bill she avers the conveyance aforesaid to Skeen, and the reservation of a vendor's lien on the face thereof, and the nonpayment of the notes owned by her decedent; also that by subsequent deeds the lot covered by the lien was conveyed, first, by A. G. Skeen to C. W. Meadows on April 20, 1920; second, by C. W. Meadows to H. S. Meadows on October 11, 1920; third, by H. S..Meadows to J. K. Wiles and Hazel M. Wiles, his wife, on June 11, 1937; and, fourth, by J. K. Wiles, widower, and Ivan V. Wiles to Betty Jeane Wiles on December 30, 1940. Further, that on November 27, 1925, the Dunbar Land Company executed a release of the vendor's lien retained in its deed to Skeen, dated November 26, 1919, which was one day after the six-year note aforesaid had become due and payable, and stating in said release that "the indebtedness secured thereby having been fully paid and satisfied." Needless to say, this release is not binding on the plaintiff. From the deeds filed as exhibits with the bill, it appears that C. W. Meadows and H. S. Meadows, grantees aforesaid, assumed the payment of the notes secured by the vendor's lien aforesaid; but said lien is not specifically mentioned in any of the subsequent deeds conveying the lot, although in the deed to Betty Jeane Wiles, she assumes, in general terms, the payment of all encumbrances, liens and indebtedness. The bill also avers that on November 26, 1921, H. S. Meadows, who was then the owner of the lot bound by said lien, deposited with the Bank of Dunbar the sum of $336, "To pay note of A. G. Skeen to Dunbar Land Co. for $300.00 and interest 2 years"; that on November 24, 1922, the sum of $354 was deposited by H. S. Meadows to the same account; and that on August 31, 1923, the sum of $372 was deposited to the same account.

There is no allegation in the bill that the deposits so made were to be applied upon the particular notes falling due at the time or subsequent to any such deposit, and it is averred therein that the Dunbar Land Company on November 28, 1921, notified J. G. Farquar, who it evidently understood was then the owner of the one-year note, that it had probably been provided for by a deposit in the Bank of Dunbar at the date of its maturity, but it appears from the bill that the records of the Bank of Dunbar do not disclose any such deposit. It is clear, therefore, that while on the face of the bill it is averred that three deposits were made in the Bank of Dunbar, it is not clear that a fourth deposit, which would have provided for the other of the four notes owned by McClintic, has been made, and in this aspect of the case, and for reasons which will hereinafter appear, it will become highly important to determine, on the development of the case, whether more than three deposits were made in said bank, and, if only three deposits were made, on what notes they should be applied, for the particular reason that it is obvious that if only three deposits were made and those so made should, under legal rules or otherwise, be applied on the notes first becoming due, then the fourth and last note falling due in four years from its date remains unpaid. Of course, we express no opinion on this phase of the case.

Paragraphs 2 and 3 of the prayer of the bill are as follows:

"2. That...