Mynes v. Mynes
| Decision Date | 31 March 1900 |
| Citation | 35 S.E. 935,47 W.Va. 681 |
| Parties | MYNES v. MYNES et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. On the 29th day of March, 1877, J. W. M. executed his three bonds or notes, of $1,000 each, to S., who on the 11th day of February, 1882, assigned and delivered same to M., the wife of J. W. M., who kept said notes and the deed of trust securing them in a trunk at the common home of J. W. M. and M., to which trunk M. kept the key until her death, in December, 1887. After the death of J. W. M., in July, 1894 the notes and deed of trust were found in the same trunk with some other papers of M., and some papers, also, of J. W. M by his administrators, and by them delivered to the administrator of M. Held, that the possession of J W. M. of said notes and trust deed, under the circumstances does not raise the presumption of the payment or extinguishment of said notes.
2. After the statute of limitations has commenced to run, no subsequent disability will interrupt it.
Appeal from circuit court, Putnam county, F. A. Guthrie, Judge.
Suit by Phoæbe Mynes against James M. Mynes and others. From the decree, Phæbe Mynes and Freda Mynes appeal. Affirmed.
Brown Jackson & Knight, for appellants.
Bowyer & Green, for appellees.
McWHORTER, P.
On the 29th of March, 1877, James W. Mynes executed a deed of trust on his home place, in Putnam county, containing about 511 acres, and all the personal estate then in his possession consisting of horses, cattle, sheep, hogs, wagons, farming utensils, and grain, and everything on the said real estate, as set out in said deed of trust; conveying the same to John S. Smith in trust to secure to George H. Smith the payment of three bonds bearing the same date, for the sum of $1,000 each, payable to said George H. Smith or order, respectively, in one, two, and three years, with interest from date. It was provided that said Mynes should hold possession of all said property until the same should be required of him for sale in pursuance of said deed; that no sale of said property or of any part of it was to be made under the deed until after the expiration of said time of three years, without the consent of said Mynes first had thereto in writing. Margaret J. Mynes, the wife of James W. Mynes, died in December, 1887. In 1889 James married again. In 1894 he died, leaving his widow, Phæbe A. Mynes, and a daughter by the last marriage, Freda Mynes, about 2 years of age, and eight children by his first marriage. After his death his son James M. Mynes and his son-in-law W. P. McAboy were appointed his administrators, who found in an old leather trunk (which he had kept in his bed room for many years, and the key to which was delivered to the administrators by the widow, Phæbe A. Mynes), among the papers therein, the said deed of trust and the three $1,000 bonds secured therein, which bonds were on one piece of paper, and had the following indorsement thereon: After the finding of the deed of trust and notes or bonds, Oscar B. McAboy, a son-in-law of said James W. Mynes, was at the instance of some of the children of Margaret J. and James W. Mynes, in the month of March, 1895, appointed administrator of the estate of Margaret J. Mynes, to whom the administrators of James W. Mynes delivered the deed of trust and notes, when the administrator of Margaret required the trustee, John S. Smith, to make sale of the property under the trust. He accordingly advertised the same to be sold on the 13th of April, 1895. Phæbe A. Mynes filed her bill in the circuit court of Putnam county against the trustee, the administrators of James W. Mynes, and the eight children of James W. and Margaret J. Mynes, George H. Smith, and Freda Mynes, the infant, alleging that her husband died seised of the said 511 acres of land, in which she was entitled to dower; that she was married to Mynes in 1889; that before their marriage, in 1877, he had executed the said trust deed to John S. Smith, trustee, to secure an apparent indebtedness of $3,000, which was due by the terms thereof many years before her husband's death; that she was informed by him prior to his death that there were no liens or debts against the said home; that since his death George H. Smith had had the trustee to advertise to sell the same; that, if said alleged indebtedness ever had any legal validity, it was paid off and discharged or extinguished during her husband's lifetime; that Smith had made no effort to collect it from the administrators of said intestate, out of the large personal estate which came to their hands, while the debts were very small and inconsiderable; that said administrators and children of decedent by his first marriage were, or some one or more of them were, acting with said Smith in the attempt to sell said land for a pretended and fictitious debt, to defeat and destroy plaintiff's dower therein, and share of her said infant daughter therein; that, if there is any valid indebtedness secured by said trust deed, the personal estate left by decedent was the primary fund out of which payment should be made to exonerate the home place from liability therefor, and that no sale should be made until an accounting of the personal estate, and the same applied as far as possible in the payment of such indebtedness, if any such there be,--and prayed that George H. Smith be required to answer certain interrogatories set out, as to the consideration moving from him to said Mynes for said alleged indebtedness; as to his efforts to collect it in Mynes' lifetime, or from the administrators after his death; whether any, and, if so, what, payments, credits, set-offs, or counterclaims against the same; if so, the nature, amount, and extent thereof, where and how made or accrued; whether, in proceeding to enforce the trust, he was acting at the instance or request, or upon the wish or advice, of said administrators, or either of them or of any of the children of said Mynes by his first wife; if so, which of them, and the reason or purpose given by any of them; that said Smith be required to file with his answer the deed of trust, and any and all evidence he might have of the existence of said indebtedness, including the note purporting to evidence the same, and that said administrators be required to disclose and set forth all the personal estate of said decedent, and any and all debts against the estate; and for an order of injunction to the sale of the real estate under said trust deed, and, if it should appear that there was any valid indebtedness secured by said trust deed, that the personal estate should be first applied, before selling said real estate to the payment thereof; and for general relief. An injunction was awarded. George H. Smith answered the bill, admitting the execution of the notes and deed of trust by Mynes, dated March 29, 1877; that he was the brother-in-law of James W. Mynes, Margaret J. Mynes being his sister; that no legal consideration passed from him to Mynes for the alleged indebtedness secured by the trust deed; that said James W. Mynes, being desirous of giving, transferring, assigning, and securing to his then wife, said Margaret J. Mynes (respondent's sister) the sum of $3,000 out of his estate, and securing the same thereon, made and executed the bonds and deed of trust to respondent on the express understanding, promise, and agreement that respondent would transfer and assign the same to said Margaret, and that in fulfillment thereof he did on or about the 11th day of February, 1882, so transfer and assign them to Margaret J. Mynes by written agreement, and delivered them to her, and that he had no further interest in the matter; that said bonds were not intended to represent any indebtedness from said Mynes to him, further than the intended gift or settlement upon his said wife, and that at the time of making said bonds and deed of trust, in order to avoid any misunderstanding, complications, or wrong application of said bonds or the proceeds thereof in case of death or otherwise of any of the parties to said transaction before the same was completed by his assignment, respondent made his three several bonds, each for the sum of $1,000, payable to Margaret J. Mynes or order, at one, two, and three years, respectively, with interest from date, each bearing date March 29, 1877, and delivered the same to said Margaret J. Mynes; that he did not owe the said Margaret the said $3,000, or any sum whatever; that said last three bonds were given her as indemnity or security until respondent should transfer and assign to her the said three bonds of James W. Mynes, and, at the time he assigned said last-mentioned bonds to her, Mrs. Mynes returned to him the bonds he gave her, and answered the interrogatories required to be answered. The eight children of James W. Mynes and Margaret J. Mynes filed their joint and separate answers, averring that the bonds and trust were executed by their father without any consideration from said George H. Smith, but upon the express purpose, understanding, and agreement that the same should be a gift, transfer, or settlement of the said sum of $3,000, with interest thereon, by the said James W. Mynes to and upon his then wife, Margaret J. Mynes, the same to be secured upon the property therein embraced, and that at the time of the execution and delivery of said notes to Smith, he expressly promised and agreed to transfer and turn over the same to Margaret J. Mynes, to be held by her as her individual property, and that in pursuance thereof he did on...
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