Meyers v. Wash. Heights Land Co.
| Decision Date | 02 October 1929 |
| Docket Number | ( No. 6324-A),( No. 6324 |
| Citation | 107 W.Va. 632 |
| Court | West Virginia Supreme Court |
| Parties | Samuel H. Meyers v. Washington Heights Land Company,a corporation, and othersand Alex. Meyers v. Washington Heights Land Company,a corporation, and others |
1. Appeal and Error Chancellor's Fact Finding Will Not Ordinarily be Disturbed on Appeal; Chancellor's Fact Finding Will be Reversed, When Contrary to Plain Preponderance of Evidence, or Where in Favor of Party Who
Has Not Sustained Burden of Carrying Affirmative of Controlling Issue.
While a finding of fact of a trial chancellor will not, ordinarily, be disturbed on appeal, Kincaid v. Evans, 107 W. Va.
________, S. E. 620, such finding will be reversed when contrary
to the plain preponderance of the whole evidence, or where the finding is in favor of a party who carries the affirmative of a controlling issue and has not sustained the burden. (p. 634).
2. Principal and Agent Proof That Assignee Orally Authorized Assignor of Vendor's Lien Notes to Release Vendor's Lien Must he Clear and Convincing.
Where the assignor of notes secured by a vendor's lien executes a release of such lien and undertakes to justify the said release on the ground that the assignee gave verbal authority to the assignor to make such release, the proof to sustain such alleged authority must be clear and convincing. (p. 637).
3. Courts What is Not Disclosed by Records of Courts of Record Does Not Legally Exist (Code, c. 114, § 4). Courts of record must speak by their records. What is not thereby made to appear does not exist in law. (p. 643).
4. Statutory Provisions.
An order of injunction is of no legal effect under section 10, chapter 133, Code, unless the court requires a bond, or recites in the order that no bond is required for good cause, or unless the movant is a personal representative. (p. 643).
5. Receivers Appointment of Receiver Merely to Conserve and Protect Debtor's Assets Does Not Preclude Judgment Creditor Perfecting Execution Lien Against Debtor's Personal Assets.
Where the assets of a debtor are placed under the control of a receiver who is authorized merely to conserve and protect the said assets, and is not authorized to administer them, a judgment creditor of said debtor is not precluded by the fact of such receivership from perfecting an execution lien against the personal assets of said debtor. (p. 644).
Appeal from Circuit Court, Kanawha County.
Separate suits by Samuel H. Meyers and by Alex Meyers against the Washington Heights Land Company and others, which suits were consolidated. From the decree, Alex Meyers and the Daily Gazette Company appeal.
Reversed and remanded.
McKee & Luckey, for appellant Daily Gazette Co. Jo N. Kenna, for appellant Meyers.
W. G. Brown and A. J. Horan and H. W. Bowers, for appellee bondholders.
Graham C. Painter, Joe L. Silverstein, and Davis, Painter & Silverstein, for appellee Atlas Mortgage & Finance Co.
These two suits involve the affairs of the Washington Heights Land Company, a corporation. The first suit is for the winding up of the business of the company. The second suit is for the cancellation of a release of a vendor's lien and of asserting said lien for the benefit of certain notes held by the plaintiff in the second suit. The two causes were consolidated and referred to a commissioner in chancery to make and state a report covering various matters specified in the order of reference. Among other things, the commissioner found that Alex Meyers, plaintiff in the second suit, was not entitled to cancellation of the release of the vendor's lien asserted by him, nor to enjoy the benefit of such lien, and disallowed a certain execution lien asserted by Daily Gazette Company, a corporation. Both the Daily Gazette Company and Alex Meyers appealed.
In January, 1923, The Washington Heights Land Company purchased certain land in the vicinity of Charleston for $75,000, whereof it paid $9,000 cash and executed its several notes for the residue of $66,000. These notes were secured by vendor's lien. Among the notes, were two for $3,600.00 each payable to one of the two grantors, and another note for $7,800.00 payable to the other grantor. These three notes matured for payment December 14, 1923. Some months before their maturity the notes were assigned for value by their respective payees to Atlas Mortgage and Finance Company. The assignments were recorded in the office of the clerk of the county court of Kanawha County under the provisions of a then existing statute. Acts 1921, Chapter 61. This statute was repealed two years later. Acts 1923, Chapter 61. On the maturity date of said notes they were purchased of the Atlas Mortgage and Finance Company by Alex Meyers, who took from said company a formal assignment thereof, but, the aforesaid statute of 1921 requiring such assignments to be recorded having been repealed, the assignment to Meyers was not recorded. The purchase price for said notes was their face value and accrued interest and a bonus of some sort was also included. The aggregate was $16,332.50. In satisfaction of the purchase price Meyers paid the Atlas Company in cash $8,332.50, and executed to said company his note for $8,000.00 and placed with said company as collateral security for his said note the above mentioned three vendor's lien notes.
In January, 1924, The Washington Heights Land Company arranged to issue bonds to the extent of $200,000, and to secure the same executed a deed of trust on the land hereinbefore mentioned. The trustee was Central Trust Company. The first of the bonds to be disposed of were sold and delivered February 11, 1924; the deed of trust securing the bonds was placed of record February 19th. In the same month the money received from initial sale of bonds was employed in the discharge of vendor's lien notes which were held by divers individuals. This service was rendered by Russell G. Quarrier, vice-president of Central Trust Company, trustee under the deed of trust. In pursuance of this program the Central Trust Company on the 25th day of February, 1924, paid to Kanawha National Bank for the Atlas Mortgage and Finance Company the sum of $7,740.00 (being the amount of the Alex Meyers Collateral note aforesaid, less a credit of $260.00 for unearned interest) and received from the said National Bank in accordance with instructions which had been given to it by the Atlas Company, the three vendor's lien notes aforesaid, the Alex Meyers collateral note of $8,000, and a release of the vendor's lien aforesaid, which release had been executed on behalf of the Atlas Company by W. M. Gillie, president. This release was placed of record March 4, 1925. The issue drawn between Alex Meyers and the bondholders is as to whether the said release is binding and effective as to him.
We start with the proposition that Alex Meyers bought the three vendor's lien notes; that he paid valuable consid- eration therefor; and that he took a proper assignment of the vendor's lien protecting the same. He did not release the lien himself. Now, in order for him to he bound by the release which the Atlas Company executed, one of two things must appear, first, that he expressly authorized the execution of such release, or, second, that his conduct in connection with the whole transaction, and particularly with reference to the bond purchasers, was such as to estop him from denying the validity of the release.
First, as to express authorization for execution of the release. Alex Meyers emphatically denies that he gave such authority to anybody. It is nowhere claimed that Colonel Gillie who executed the release as president of the Atlas Company had any instructions from Meyers to execute the release, but J. D). Foster, Jr., secretary-treasurer of the Atlas Company, testified that in a conversation with Meyers the latter instructed him (Foster) to deliver the notes and a release to the Trust Company. His testimony is somewhat confusing as to whether he means to say that Meyers, in that conversation, directed the execution of a release. In his direct examination he seems to say that Meyers did so direct him, but on cross-examination, he says that Meyers directed him to deliver to the Trust Company a release of the vendor's lien. There is no other testimony the question of specific authority. The extreme informality of the situation arrests immediate attention. The fact that a corporate assignor of vendor's lien notes should undertake to execute a release of the lien protecting such notes on the basis of a mere verbal statement to one of the officers of such corporation invites close consideration, and especially is this true when the particular officer in question is not sufficiently clear in his testimony to make it unequivocal as to whether the authority which he claims was given him was for the execution of a release by his company, or merely for the delivery of a release by his company. And then, this situation must be further considered in the light of the inconsistency between paragraph nine of the answer of the Atlas Mortgage and Finance Company, sworn to by J. D. Foster, Jr., as treasurer of the said company, and a substitute for said paragraph which the trial court permitted the Atlas Company to make after some of the testimony now appearing in the record had been taken. The said paragraph nine as it appears in the original answer, reads:
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