Norris v. Norris

• Decision Date: 17 July 1873
• Citation: 6 W.Va. 477
• Court: West Virginia Supreme Court
• Parties: Norris v. Beaty et als. S. Henry Norris, plaintiff in the action, defendant in error against Cornelius Baker, Felix Beaty and Austin Beaty, defendants in the action, plaintiffs in error.

6 W.Va. 477

Norris

v.

Beaty et als.S. Henry Norris, plaintiff in the action, defendant in error against Cornelius Baker, Felix Beaty and Austin Beaty, defendantsin the action, plaintiffs in error.

Supreme Court of Appeals of West Virginia.

Decided July 17th, 1873.

Syllabus.

After a controversy has arisen between the parties, and a fortiori at the time of the trial, it is too late for a creditor to claim a right to make an appropriation of a credit or payment to any particular debt.

2. When no appropriation has been made by either debtor or creditor of a payment, the court will apply the same according to the principles of justice and equity in the particular case.

The case is stated in the opinion of the Court. Fleming for Appellants. Clark for Appellee.

Paull, Judge.

In the year 1868, the Plaintiff, S. Henry Norris, sold, and by deed, dated on the 7th day of September in that year, conveyed to Cornelius Baker, one of the Defendants, a certain tract of land lying in Wetzel county, for the consideration of four thousand four hundred and twenty-five dollars. For this amount the said Cornelius Baker made and delivered to said Norris his six promissory notes as follows, to-wit: three for $500 each, with Jeremiah Beaty, John Snodgrass and Felix Beaty as his sureties; twro for $1,000 each, and one for $925; the first three of said notes were payable respectively on the 1st day of April 1869, 1st day of October 1869 and 1st day of April 1870; and the last three on the 1st day of April 1871, 1st day of April 1872 and 1st day of April 1873 all bearing date on the 7th day of September 1868.

By deed, dated on the 23rd day of September 1868, the said Cornelius Beaty conveyed the aforesaid tract of land to George E. Boyd, in trust to secure the payment of the foregoing specified promissory notes so made by the said Beaty to said Plaintiff. The first two of said promissory notes were paid, and when the third one for $500 became due, the Plaintiff instituted suit thereon, and recovered judgment in the Circuit Court of Wetzel county against Cornelius Baker and Felix Beaty, and upon execution being issued, the said Felix Beaty and Austin Beaty gave their undertaking according to law. On this undertaking a motion was made for judgment in the Circuit Court on the 15th day of November 1871, and on the 17th, the Defendant filed a plea of payment with specifications, by which the said Felix Beaty claimed that the sum of $1,009.75, the net amount realized from the sale of said tract of land under the deed of trust aforesaid, should be applied (so far as necessary) to discharge the said claim or debt of the Plaintiff, named in said undertaking, and for which he was the surety on the $500 note on which judgment was obtained.

In July 1871, the trustee sold said land at the instance of the creditor, and paid over to his attorney the net proceeds of sale, to-wit: the sum of $1,009.75, during the same month. About four months after this money was received by the Plaintiffs attorney, and after the motion was made for judgment on the undertaking aforesaid, said attorney, without the knowledge or consent of said Cornelius Beaty or his sureties, applied said sum of money as a credit upon the note of said C. Beaty for $1,000 due April 1st, 1871. A case agreed, including the foregoing facts, (with some others not material to mention) was submitted to the Court, with leave "to decide, determine and give judgment in the above named cause upon the issue joined on the facts, as agreed above, according to law." On the 20th of July 1872, the Court rendered judgment against the Defendants in the undertaking for the whole amount of the debt or claim for which it was given and from this judgment an appeal has been taken to this Court.

The sole question arising for settlement upon this record, is the proper application of the sum of $1,009.75, the net proceeds of sale of the land conveyed by the deed of trust. The Plaintiff, Norris, claims that the same was properly made by his attorney to the $1,000 note falling due on the 1st of April 1871; while on the other hand, the defendant Felix Beaty claims that that money should have been applied to the $500 note on which he was surety, and which fell due on the 1st of April 1870, one year previous to the maturity of the note on which it was applied.

It was conceded by the counsel on both sides, in their arguments, that the debtor himself has the right in the first instance, and this is unquestionably the law, to indicate how, or to what debts or notes or claims due from himself to the Plaintiff, the payments shall be applied. If the debtor fails to exercise this right, the application of the credit is then determined by other rules and principles.

Has the debtor, Cornelius Beaty, done so in the present case? Not unless he did it by the language employed in the deed of trust, under the execution of which, and by the sale of the trust property, this money was realized. The maker of that deed has said that the land therein described was conveyed "in trust to secure the plaintiff Norris, the true and punctual payment of the six several promissory notes," hereinbefore specified. It is claimed that this language is a direction by the debtor as to the mode in which the money, arising from the sale of the trust property, shall be applied; and this Court is now required to construe these words as they are employed in this deed. The word true, in this connection, means faithful, and the meaning of the word punctual is exact, and, as applied to payment, means the exact time at which the payment is to be made. The language paraphrased, would be, "in order to secure the faithful payment of said promissory notes at the exact time of their maturity respectively." But it may be well said perhaps, that when these words are wanting in a deed, they are nevertheless implied; for the law always supposes that an individual intends to be faithful and punctual in his promises or pecuniary engagements. But after a failure has occurred in the payment of these notes, and some or all of them have become due, I am not prepared to give to these words the force and effect of an express direction on the part of the debtor, the maker of the deed, as to how the money arising from the trust sale shall be applied; as, for the reason stated, these words are virtually implied in every deed of the kind, though not found in it. Nor am I prepared to say that the 6th sec. of Chap. 72 of the Code controls the distribution of the trust fund, where, as in the present case, there seems...