Morrison v. Leach
| Decision Date | 12 January 1915 |
| Parties | MORRISON ET AL. v. LEACH ET AL. |
| Court | West Virginia Supreme Court |
Submitted November 10, 1914.
Syllabus by the Court.
An appeal in a cause, though within time as to some decrees cannot bring up for review any appealable decree as to which the time fixed by law for appeal has expired.
Where a petition is by leave filed in a cause as between co-defendants, for the assertion of an equitable right arising from former proceedings and decrees therein, the preceding record may be looked to in support of the petition.
On the hearing of an issue in chancery between co-defendants to a cause, made by pleadings allowed subsequent to a final determination of the main issues, the answer of either of the parties on the former issues may be read as an admission against him.
Appeal from Circuit Court, Ritchie County.
Suit by C. P. Morrison and others, partners, etc., against Minerva Leach, executrix, etc., and others. From the decrees defendant Parkersburg National Bank appeals. Appeal dismissed as to one decree, and other decrees affirmed.
See also, 55 W.Va. 126, 47 S.E. 237.
Van Winkle & Ambler, of Parkersburg, for appellant.
Wm Beard, of Parkersburg, for appellees.
By this appeal the Parkersburg National Bank complains of a decree whereby it was restrained from collecting a certain note through the enforcement of a vendor's lien and was ordered to surrender the note to Minerva Leach, the owner of the property on which the lien existed.
The note was one executed by Anna Leach to Minerva Leach as executrix under the will of Thompson Leach, deceased. It represented a part of the consideration for real estate sold by the executrix to Anna Leach in the administration of the estate. This same real estate, the Home Place, was afterwards conveyed by Anna Leach to Minerva Leach individually, and the latter assumed to pay the note.
Thompson Leach at the time of his death was indebted to the Parkersburg National Bank. Johnson and Buckley were endorsers for him on the paper representing the indebtedness. They and the executrix estimated that the estate would pay seventy-five per cent. of the decedent's debts. To arrange the indebtedness due to the bank, the executrix turned over to Johnson and Buckley a number of land notes in her hands as assets of the estate, among them the Anna Leach note. Seventy-five per cent. of the indebtedness, which it was supposed the estate was sufficient to pay, was apportioned to the estate, and the executrix executed a note covering the same. The remaining twenty-five per cent. was apportioned to Johnson and Buckley, who were endorsers on the original notes, and as such liable for the remaining twenty-five per cent. They executed notes covering this remaining twenty-five per cent. As to this liability on them, they were of course creditors of the estate. The notes, assets of the estate, which the executrix had turned over to Johnson and Buckley, were deposited by them with the bank as collaterals to all this indebtedness in its new shape. Collections were made by the bank on these notes, and the proceeds applied to the indebtedness. It will be observed later, however, that the bank claims that the Anna Leach note, which remains uncollected, passed to Buckley from the executrix as a payment on a judgment lien debt which he held against the estate, and as to which he was entitled to priority, and that this particular note was taken over by the bank from Buckley on his part of the indebtedness in its new form.
After these transactions, in 1897, Morrison and others, creditors of Thompson Leach, brought suit charging the executrix with a devastavit, and seeking a proper settlement of the estate. The Parkersburg National Bank, Johnson, and Buckley were made parties to this suit, and it was charged that the executrix had paid to them sums largely in excess of their proper pro rata shares as creditors of the estate. The cause proceeded to a decree, entered on February 23, 1899, adjudging that the executrix was liable to the creditors in the sum of $3,878.72 with interest; that the Parkersburg National Bank had received $1,668.36 more than its pro rata share, which, with interest, should be refunded by it, in the amount of $2,122.38, as a credit on the amount found due from the executrix; and that Johnson and Buckley jointly should pay the sum of $843.04, and Johnson individually the sum of $788.02, as a further credit on the amount decreed against the executrix. The decree was based on the report of a commissioner, made in the cause, wherein it had been ascertained that the estate would pay only sixty per cent. of the indebtedness instead of seventy-five per cent. The decree, therefore, in effect held that the bank, Johnson and Buckley jointly, and Johnson individually should account for the excess of fifteen per cent. which they had received as creditors from the assets of the estate.
The decree of February 23, 1899, contained the following provision:
"Leave is given to the defendant Minerva Leach to apply to this court in this cause for such relief as may be proper upon her claim for an equitable set off against the note of Anna Leach for purchase money assumed by said Minerva Leach, upon the Home Place."
Minerva Leach had been charged, in the settlement of the estate made by the commissioner, with the Anna Leach note as assets. The same was therefore embraced in the finding of the amount against her as due to the creditors. When the amount found due from the executrix should be paid to the creditors, as it afterwards was, the Anna Leach note would be paid to the estate. Minerva Leach having individually assumed the obligation to pay the Anna Leach note to the estate, in equity she was entitled to set off her individual obligation to pay this note with the amount of the same charged against her as assets, whenever those assets were duly accounted for by payments to the creditors of the estate. The chancellor noticed that this right to Minerva Leach would arise when the amount decreed against her as executrix was duly paid. It was a right contingent upon compliance with the decree. Necessarily, therefore, it could not be vindicated and enforced in the decree itself, and the assertion of the right was properly postponed by the leave granted until Minerva Leach should show that the equity matured to her by full compliance with the terms of the decree.
The decree being one against the Parkersburg National Bank as on a bill taken for confessed, the bank moved to set aside the same under chapter 134 of the Code (secs. 4975-4980). In July, 1900, the motion was sustained and the decree set aside. The bank then demurred, answered, and filed exceptions to the report of the commissioner, and the cause proceeded to a decree in October, 1901, denying the plaintiffs in the cause, creditors of the estate, any such relief against the bank as had been given by the decree which was set aside.
From the decree setting aside the decree of February 23, 1899 Minerva Leach appealed, assigning that she had been given no notice of the motion to set aside the decree. This court reversed the decree which set aside the former decree. 55 W.Va. 126, 47 S.E. 237. The decree of February 23, 1899, was thus reinstated. Later the bank was compelled to comply with the terms of that decree. It paid back to the estate the amount in the decree adjudged against it. It may be that the decree was wrong. Though the decree recites that the bank was served with process, the bank insists that it was never so served, and that the bill could not be...
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