Merch.s Nat'l Bank v. Good

• Decision Date: 14 April 1883
• Citation: 21 W.Va. 455
• Parties: Merchants National Bank v. Good, Avm'k., et al.
• Court: West Virginia Supreme Court

21 W.Va. 455

Merchants National Bank

v.Good, Avm'k., et al.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1882

Decided April 14, 1883.

(Woods, Judge, Absent.)

1. A judgment againt the personal representative of an estate is not even prima facie much less conclusive evidence against the devisee or heir of such estate; and the fact that the same person may be both personal representative and heir or devisee does not constitute an exception to the rule. (p. 461.)

2. In a suit to subject real estate, conveyed by a debtor in his lifetime without valuable consideration, to the payment of a simple contract debt, it is error for the court to take the amount of a judgment for such debt recovered against the administrator of such debtor as the foundation for its decree and to give interest on the amount of such judgment said amount being for the principal and interest on the original debt at the date of said judgment. The decree in such case should be for the original debt with the interest aggregated thereon to the date of the decree, and then interest on such aggregate until paid. (p. 461.)

3. The giving of a new note for an old one which had become due the amount and makers of the two notes being the same will not be treated as a payment or extinguishment of the old note or the pre-existing debt, unless the parties so expressly agree but it will be regarded merely as an extension of credit, (p. 463.)

4. In such case the surrender of the old note will not of itself raise a presumption of such agreement to extinguish the old note by ' the giving of the new one, it being considered as a conditional surrender and that its obligation is restored and revived, if the new note is not paid. (p. 464.)

5. And the new note will not be regarded as a payment of the old, even when it is so expressly agreed, if such agreement was procured by the concealment of any material fact affecting the security of the debt. (p. 465.)

6 Nor will the presumption apply where the creditor, when he takes the new note, abandons some security which.he holds, (p. 466.)

7. Where one of two or more makers of a joint and several promissory note is surety, he is liable to the payee as principal; and, except in special cased provided by statute, the holder of such note has the same legal rights against such surety as he has against the principal maker. (467.)

Appeal from and supersedeas to a decree of the circuit court of the county of Ohio, rendered on the 23d day of May, 1881, in a cause in said court then pending, wherein the Merchants National Bank of West Virginia was plaintiff, and J. Hanson Good, administrator, and others were defendants, allowed upon the petition of said Good.

iron. Thayer Melvin, judge of the first judicial circuit, rendered the judgment appealed from.

Snyder, Judge, furnishes the following statement of the case:

On the 14th day ol October, 1872, and for many years prior thereto, Benoni S. Good was the owner in fee ot' valuble real estate in the county of Ohio, which he he deed dated on that day and recorded in said county on the day following conveyed to Robert B. Woods, trustee, without any valuable consideration, for the use of his wife-lane T. Good for life with remainder in ice to his son,.1. Hanson Good: that on the said 14th day of October, 1872, and for several years before that time, Moses 0. Good, Benoni S. Good and A. Bedillion were indebted to the Merchants National Bank of West Virginia, Wheeling, upon a joint and several note executed hy them to said bank for one thousand four hundred dollars. The consideration lor said deht was money borrowed by said Mosvs C. Good upon the note of himeslf with the said Benoni S. Good and A. Bedillion as his sureties thereon: that notes for said debt had been renewed every ninety days for the same sum ami hy the same parties from the date of the loan, the interest lor the current ninety days having been paid at each renewal, until November 25, 1S72, when it was finally renewed hy giving the following note and paying the interest thereon till its maturity

"$1,400. Ninety days afterdate, we, or either ot us. promise to pay to the Merchants National Bank of West Virginia (at Whteeling) fourteen hundred dollars, for value reeeived. Witness our hands this 25th (lav of Xovemher,

1872, "(Signed)

"M. C. Good,

"B. S. Good,

"A. Bedillion."

At each renewal the matured note was surrendered to said M. C Good by the bank; that, on the 6th day of January,

1873, the said Benoni S. Good departed this lite, and on the 12th day of April, 1878, his son, the said J. Hanson Good, duly qualified as his administrator; that no part of the said one thousand four hundred dollars having been paid, the said bank by an action on said note of Xovemher 25, 1872, recovered a judgment against said J. Hanson Good as administrator of said Benoni 8. Good, deceased, in the municipal court of Wheeling, on May 2D, 1S74, for one thousand five hundred and eighty-nine dollars; and the said judgment remaining unpaid, the said hank on the 31st day of August,

1874, instituted this suit in the circuit court of Ohio county against said J. Hanson Good in his own right and as administrator of said Benoni 8. Good, deceased, Jane T. Good and Robert B. Woods, trustee. The plaintiff, in its hill, avers the facts hereinbefore stated, and, also, that said deed of October 14, 1S72, was made with intent to delay, hinder and defraud the plaintiff as a creditor of said Benoni 8. Good, and, being without valuable consideration, is void as to the plaintiff's debt which had been contracted before the execution thereof; that the said real estate is of the value of twenty thousand dollars, and it was mainly on account of the ownership ot said real estate that the notes for the debt aforesaid were renewed from time to time and credit given to said Benoni S. Good; and prays, that the said deed, as to the said deht of the plaintiff, he declared void and so much of the real estate therein conveyed as shall he necessary may he sold to pay said deht with interests and costs, and tor general relief.

The defendant 4. II. Good demurred to the plaintiff's bill, which demurrer was overruled by the court, and, subsequently, he in his own right and as administrator of said B. S. Good, deceased, and the defendant, Robert B. Woods trustee, tiled their separate answers to said hill, and the plaintiff replied generally thereto. The said J. H. Good in his answer avers, that said B. S. Good died without any estate; that he is his administrator, and no assets have ever come into his hands. He admits the recovery of the plaintiff's judgment, but denies that said B. S. Good was indebted to the plaintiff on account of the note upon which said judgment was recovered prior to November 25, 1872, the date of said note, and he avers that all the series of notes mentioned in plaintiff's hill of date prior to the 25th of November, 1872, had been paid and surrendered hy the plaintiff. He denies that said conveyance of October 14, 1872, was made with intent to delay, hinder and defraud the plaintiff or that the debt of plaintiff had been contracted at or hefore the date of said conveyance; and he, also, denies that it was the ownership of the real estate conveyed hy said B. 8. Good on which plaintiff mainly relied for the security of its said debt The answer of the said Robert B. Woods trustee, denies that he had any knowledge of any indebtedness hy the said B. S. Good to plaintiff at the date of said conveyance to him; and he denies that the real estate thereby conveyed can be made liable for said debt, or that said conveyance was made with intent to delay, hinder and defraud the plaintiff or any one else.

The record shows that the respective parties admitted the following facts in the cause:

1. That Benoni S, Good was surety for M. C, Good on the notei of November 25, 1872, and also on all other notes of which this was a renewal;

2. That when said note of November 25, 1872, was delivered to the plaintiff in renewal of a note then due, the note then due was surrendered to M. C. Good, and also that at each renewal the old note was surrendered to M. C. Good;

3. That no personal notice was given by Benoni S. Good, nor any of the defendants to the plaintiff of the execution of the deed to R. B. Woods trustee;

4. That the consideration for said deed was the natural love and affection of Benoni S. Good for his wife and son; and

5. That at the time of the institution of this suit Moses C. Good, and A. Bedillion, who with said Benoni S. Good, were joint and several makers of the notes and renewals in these proceedings named, had departed this life, having died totally insolvent; and that this suit may proceed without making their respective personal representatives parties to the same and he decided as though said personal representatives had been made and were parties duly served with process in these proceedings.

These admitted facts and the foregoing statement contain all the material facts presented by the record in this cause.

The defendant Jane T. Good having departed this life, the suit abated as to her, and on May 23, 1881, the said circuit court of Ohio county entered a decree, finding that the defendant, J. Hanson Good, administrator of Benoni S. Good, deceased, is indebted to the plaintiff in the sum ot one thousand five hundred and eighty-nine dollars, with interest thereon from May 29, 1S74, until paid; that said indebtedness was contracted by said B. S. Good prior to the date of said conveyance ot October 14, 1872, to Robert B. Woods trustee; that said conveyance was voluntary and is void as to the debt of plaintiff; and the court, therefore, decreed that, unless said debt, interest and costs of this suit were paid in thirty days, a commissioner, therein named, should sell enough of said real estate so conveyed to pay the plaintiff's debt, &c. From this decree the defendant J. Hanson Good obtained from this Court an appeal and supersedeas.

Robert...