Piercy v. Beckett

• Decision Date: 23 August 1879
• Citation: 15 W.Va. 444
• Court: West Virginia Supreme Court
• Parties: Piercy, Ex'k, &c. v. Beckett et al

15 W.Va. 444

Piercy, Ex'k, &c.

v.Beckett et al

Supreme Court of Appeals of West Virginia.

Decided August 23, 1879.

1.A party under the privilege of amending is not to introduce new matter which would constitute a new bill.

2.Amendments can only be granted, when the bill is defective in parties, or in prayer for relief j or in the omission of ormistake as to a fact or circumstance connected with the substance but not forming the substance itself, or for putting in issue new matter to to meet proper allegations in the answer.

3.Under the prayer for general relief the plaintiff could not recover a claim distinct from that demanded or put in issue by his bill.

Appeal from and supersedeas to a decree of the circuit court of the county of Greenbrier, rendened on the 22d day of June, 1876, in a cause in said court then pending, wherein George Piercy, executor, was plaintiff, and James M. Beckett and others were defendants, allowed upon petition of said Piercy.

Hon. Homer A. Holt, judge of the eight judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the ease:

In August, 1868, George Piercy, executor of the last will and testament of John Piercy, Sr., deceased, filed his bill in the circuit court of Greenbrier county, for the purpose of enforcing the lien of a trust-deed.The debt secured by the deed of trust was payable to said John Piercy, Sr., and George Piercy, who was the trustee named in said deed, being afterwards appointed by the last will and testament of the said John Piercy, Sr., the cestui que trust, it became necessary for the said executor and trustee, being the same person, to resort to a court of equity to enforce the said lien.In his billhe sets up the trustdeed by the proper allegations.The bill alleges that "at the time the deed of trust was executed the mill property aforesaid was jointly owned by said Beckett, (the grantor in the deed of trust) and John Piercy, Jr., the said Beckett having purchased the interest of Andrew J. Piercy in the same, and the said Andrew J. and John Piercy, Jr., having obtained a deed therefor from the said John Piercy, Sr.Some time after the deed of trust was executed, the said Beckett sold his interest in the said property 1o said John Piercy, Jr., and he, the latter, became paymaster to the said John Piercy, Sr., of the debt aforesaid; at least he promised said Beckett to pay said debt, or to take the property subject to said debt, and settle it with his father as part of the purchase money.He agreed, in other words, to procure for said Beckett his bond aforesaid.He did accordingly procure the bond, and deliver it to said Beckett, saving that he told his father to let him have the bond, and as soon as he got the thing arranged with Beckett, he would arrange the debt with him.The bond in a mutilated state is herewith filed as a part of this bill, marked number two.

Your orator charges that the bond was never paid, or any part of it; and it is rather a mystery with him as to the manner whereby he got the bond, whether by contract or otherwise.One thing however is certain, that it ivas never paid or released in any form or part.

The said John Piercy, Jr., after the death of his father, and after your orator qualified as his executor, admitted that he had never paid the debt, as he had agreed to do with his father.He claimed however, that he had paid a part on the 2d of March, 1857, in less than a year from the, date of the bond, very improbable, leaving on that day a balance of $1,963.82 to lie paid.Of this he gave your orator a written statement, herewith filed as part of this bill marked number three.And no part even of this latter sum lias been paid."The bill alleges the death of John Piercy, Jr., and makes his widow and heirs, Wallace Robinson, administrator, of John Piercy, deceased, as well as the said Beckett, defendants to the bill.The prayer of the bill is, "thatsaid land maybe decreed to be sold by a commissioner of the court, and the debt and interest aforesaid made; and that your orator may have such other and further relief in the premises as is suitable to his case, and can be afforded by the principles of equity."

On the 24th day of April, 1871, the court decreed the trust-deed a subsisting lien upon the land in the bill mentioned and that the same should be enforced, and appointed a commissioner to sell the same, to pay the debt secured by said trust.From this decree the defendants appealed.The case was decided by this Court at the January term 1872, and is reported in 5 W.Va. 199.In their opinion the Court say:" The obligee having delivered the bond to John Piercy, Jr., to be surrendered to the obligor and the surrender thereof having been made, as alleged by the plaintiff, with the understanding on the part of the obligee, that the bond was to be delivered to the obligor, and that John Piercy, Jr., was then to become payer of the debt, there being no allegation or proof of fraud, the court must hold that the bond was cancelled, and the trust discharged.* * * The plaintiff admits by the allegations referred to, that the bondjias been delivered up to Beckett, and yet he exhibits the bond with his bill in a mutilated form, without giving any explanation how he came in possession of it, or how it became mutilated.It lies upon a party seeking to enforce a bill or note, to account for any alteration that appears upon the face of the instrument * * * In the case before us the signature and seal have been torn off.The plaintiff has not accounted for the alter- ation; therefore upon the authority the court should have held the bond void, and the deed of trust extinguished.* * * If there is any claim against the estate of Jno.Piercy, Jr., in favor of the plaintiff, it can only be upon the contract between the said John Piercy, Jr., and his father.The defendants rely upon the statute of limitations against that claim, but how far that will avail them this Court cannot discover from the record.Iam therefore of opinion, that the decree should be reversed, with costs, and the cause remanded, to be proceeded in according to the principles herein indicated."

Exhibit number three with the original bill is in substance as follows:" All the debt and interest was counted up and added together, and what I paid was taken from the lien, which leaves $1,963.82; all over and above that I paid off last March, 2d day, 1875."

The reference to this exhibit in the answer of Robert M. Arbaugh, and wife, who was formerly the wife of John Piercy, Jr., is as follows: "They deny that the unintelligible scrap of paper, marked number three and filed with the plaintiff's bill, is any evidence of indebtedness whatever on the part of John Piercy, Jr., deceased, or of any one else.The most that can be claimed for it is that it is an account stated between the plaintiff and the said John Piercy, Jr., deceased; and if this should appear to be the fact, then these respondents plead the statute of limitations, and say that said account stated is barred by time."

After the cause had been remanded, and the mandate of this Court recorded in the court below, the plaintiff filed an amended and supplemental bill, in which he says that he had theretofore "filed his bill in this honorable court against James M. Beckett and others, the object of which was to obtain a decree for the sale of certain trustproperty, given in trust by said Beckett to secure a debt to the said, John Piercy, Sr., of $2,727.08, due the SOth day of April, 1856, and evidenced by bond and deed of trust of thai date."The bill then describes the property included in the trust.The bill proceeds:

"Your orator further represents that some short time after this deed of trust and bond was executed, the said James M. Beckett sold his interest (being one-half) to said John Piercy, Jr., and conveyed the same to the said John Piercy, Jr., by deed bearing date on the day of 185, a copy whereof is herewith filed as part of this bill.The said Andrew J. Piercy had previously conveyed his interest in said land to the said James M. Beckett.Thus the said John Piercy, Jr., became the complete legal owner of this entire lot or tract of land which was known as the 'factory lot Your orator further represents that the said John Piercy, Jr., acquired the title to the lot of said James M. Beckett by an agreement made with the said John Piercy, Sr., and said Beckett, by agreeing to pay the trust-debt aforesaid to said John, Sr., and release the said Beckett from the same; that in pursuance of this agreement, the said John, Jr., executed his own bond to his father for the debt, and took up and surrendered to said Beckett his bond secured in the deed of trust.Thus the said John, Jr., became the owner of the interest of said Beckett in said lot, and became bound for the amount of the trust-debt due from Beckett to his father.This bond, your orator alleges, has been lost or mislaid and cannot be found, but that no part thereof has been paid.The bill makes the same defendants thereto, with the exception of James M. Beckett whom it omits, as were defendants to the original bill, with the addition of Andrew J. Piercy.The prayer of the bill is,"that the estate of John Piercy, Jr., may be settled before a master commissioner, the creditors convened and their debts reported, that your orator may have his debt aforesaid paid out of the personal or real fund; and such other and general relief as he may be entitled to in the premises."

The defendants, Nancy Arbaugh and R. M. Arbaugh, her husband, demurred to said bill, and assigned the following special grounds of demurrer in addition to their general demurrer: "The subject matter of the bill is original, and in no legal sense amendatory or supplemental to the plaintiff's original suit* * "Its averments and prayer are in conflict with the allegations and relief sought in the original bill; the latter sought to subject certain...