Paxton v. Paxton
| Citation | 18 S.E. 765,38 W.Va. 616 |
| Parties | PAXTON v. PAXTON et al. |
| Decision Date | 07 December 1893 |
| Court | Supreme Court of West Virginia |
Submitted June 20, 1893.
Syllabus by the Court.
1. A party, grantor and debtor, executing a deed of trust to secure a creditor, is incompetent to testify that it was procured from him by false representation of the trustee both trustee and creditor being dead.
2. Under section 35, 36, c. 125, Code, where an answer contains matter for affirmative relief, and no reply in writing is filed, but a general replication is entered, and the cause has been fully heard on such pleadings and proof, if the record shows that it is not such a case as would, before the passage of said sections, have made a cross bill necessary in order to give the defendant the relief sought by his answer the decree will not be reversed for want of a reply in writing.
3. When, in such a case, defendant has taken depositions, and there has been a full and fair hearing on the merits, and substantial justice has been done, though there may be informality in not filing such reply, the decree will not be reversed for that cause.
4. Laches may be relied upon by a demurrer where the pleading demurred to shows the facts on which the defense of laches rests.
5. A grantor in a deed delivered to the grantee gives evidence after the death of grantee against his heirs that the deed was delivered upon a condition on the nonperformance of which by the grantee it was to be redelivered to grantor. The evidence is incompetent, both because the grantee is a party to the suit and interested.
Appeal from circuit court, Clay county; Virgil A. Armstrong, Judge.
Action by Hays A. Paxton against William Paxton and others for partition. From a decree agreeable to the petition, George W Paxton and Thomas Samples appeal. Affirmed.
Cyrus Hall and Okey Johnson, for appellants.
W. A McCorkle, J. F. Brown, and T. B. Swann, for appellees.
Hays A. Paxton, in his life-time, brought a suit, which was afterwards revived in the names of his representatives, having for its objects the partition among the heirs of his father, Thomas Paxton, of a tract of land in Clay county. The said Thomas Paxton had nine children, so that the land was divisible into nine shares, though several had sold to coheirs. The only persons contesting the partition on the basis of such heirship were George W. Paxton and Thomas Samples, who claimed to be joint owners of the whole, and denied that the land was partible, as belonging to Thomas Paxton's estate, among his heirs. A decree for such partition having been rendered by the Clay county circuit court, George W. Paxton and Samples took this appeal.
The bill alleges that Thomas Paxton had a debt against George W. Paxton and Thomas Samples, made up of 10 bonds for $150 each; and that they executed a deed of trust to John Paxton, trustee, to secure it upon said land; and that, under said deed of trust, the trustee, after the death of Thomas Paxton, sold the land; and that William Paxton, who was administrator of Thomas Paxton, and also a child and heir, purchased it for the benefit of all the heirs, and conveyed it by deed to said heirs. This land was conveyed in 1855 by William Vinyard to George W. Paxton and Thomas Samples. George W. Paxton was a son, and Samples a son-in-law, of Thomas Paxton. It is clear that Thomas Paxton paid for this land by the conveyance to Vinyard of lots in Spencer, and it is claimed that George W. Paxton and Samples held it in trust for Thomas Paxton, and much matter is brought into the case relative to that feature; but I discard it as irrelevant, since later the deed of trust was given, and the parties treated it as the property of George W. Paxton and Samples for the purposes of that deed of trust; and, besides, the case made by the bill is such, and the title to the land is traced to that deed of trust, and the right to partition is based, not on a trust in the original conveyance from Vinyard, but from the deed of trust. The whole case turns on the question whether George W. Paxton and Thomas Samples gave that deed of trust. They deny it. Let us look at some of the circumstances pertinent to this decisive question. The bonds of George W. Paxton and Thomas Samples to Thomas Paxton are produced, bearing the same date with the deed of trust, 21st March, 1855. They are described in the deed of trust. That is a circumstance favoring the genuineness of the deed of trust. The obligors in said bonds admit they made them. George W. Samples says they had no relation to the purchase of the land, intending thereby to repel the idea that he and Samples had purchased of Thomas Paxton, alleged by some as the explanation of the bonds. What if they had no relation to the land, if secured by deed of trust? No matter whether it was for purchase of the land or not. William Paxton states that he saw this deed of trust, had it in his possession, and the signatures were in the handwriting of George W. Paxton and Thomas Samples, and that they both told him at different times that they had signed the deed of trust and bonds. Amanda E. Parks states that she heard a conversation between George W. Paxton and the wife of Samples, in which Paxton asked Mrs. Samples why her husband had signed the deed of trust and bonds, when she asked him why he himself had signed them, and he replied that it did not matter why he had signed them; and also heard Hays Paxton advise him to drop this litigation, as he had signed the deed of trust and bonds for the land, and George W. Paxton said it did not matter about his signing them. Against this evidence showing that George W. Paxton executed the deed of trust, there is none save that of himself, and it is overruled in weight by two witnesses, and, besides, is inadmissible,--Thomas Paxton being dead,--by Code, c. 130, § 23.
Another strong circumstance against George W. Paxton's claim is that by deed of October 14, 1874, he conveyed to Hays A. Paxton all his right in "one undivided ninth part of 1,400 acres," conveyed to him and Samples by Vinyard. Now, as heir, he would own one undivided ninth; just that. It is a circumstance that he claimed then only that. Several witnesses say that he afterwards said he owned no interest in the land, as he had sold all his interest to his brother Hays. Again, if he owned half, why did he pay just one-ninth of the taxes on the land for the year 1869 and a number of years thereafter, as he did? George W. Paxton, in his first answer, admitting the bonds mentioned in the trust, set up a debt of at least $600 against his father, but in a subsequent answer says it was inserted in the answer without his knowledge, and that his father owed him nothing. His plans had changed. In addition to the above evidence of William Paxton as to the signature of Samples to the deed of trust, and his admission of its execution, there is abundant other evidence to prove it as to Samples. He said in presence of Amanda E. Parks that he had signed and acknowledged the deed of trust. In fact he does not deny, but admits, in his answer, and in his labored evidence, that he did sign it. But he says that he was a soldier, and when at home on furlough, in 1864, John Paxton presented a paper to him to sign, which he did not himself read, Paxton representing that it would "put the land to rights" if anything happened to Samples in the army; and he signed it, as he thought, to secure his wife the land, if he should be killed in the war; that George W. Paxton would cheat him out of his share, and he signed it to save the land. This story is very unlikely. He had a deed on record from Vinyard conferring on him half of the land. How could his wife lose her interest should he be killed? How could George W. Paxton get the whole of the land? Why did he sign a paper without reading it? He then, in the same deposition, says, "I did not see, hear, or know of such a paper being in existence before March 3, 1866." But he knew its contents that day, and why did he on that day appear before the recorder of Clay county, and solemnly acknowledge it? He does not pretend that it was then misrepresented, or that he did not know its contents. He surely had opportunity to know them. Again, John Paxton is dead, and the plaintiff and other heirs claim under him as alienees, and Samples gives this evidence being a party to the suit in his own interest against such alienees. It may be inadmissible, too, because Thomas Paxton is dead, the question being whether Samples made a deed of trust to him. The deed importing that he did, allowing Samples to state that he made it to John Paxton under false representations tends to show he did not execute it to Thomas Paxton, the deed of trust creditor. If Thomas Paxton were alive, he could speak on the question, and deny that Samples made the deed to the trustee; and, as he is dead, the law may exclude Samples. The trust purports to have been made with the creditor as an express party. This evidence tends to show it was not. The test is, does the testimony tend to prove what the transaction was? Owens v. Owens, 14 W.Va. 95; Anderson v. Cranmer, opinion, 11 W.Va. 576; Robinson v. James, 29 W.Va. 224, 11 S.E. 920. But this is not important. In addition, Thomas Samples has done acts utterly inconsistent with any idea that he owned one-half the land, and consistent only with the theory--the true theory--that there was a deed of trust, under which the trustee sold on May 6, 1865, and it was purchased for the benefit of all the nine heirs by William Paxton, and Samples' wife was entitled to one-ninth as an heir.
In this suit Samples and wife filed an answer fully recognizing the common ownership by all the heirs, alleging that Thomas Paxton has in his lifetime set apart to...
To continue reading
Request your trial