PlTZER, ADMR., v. BURNS.

• Decision Date: 22 August 1873
• Citation: 7 W.Va. 63
• Court: West Virginia Supreme Court
• Parties: PlTZER, ADMR., v. BURNS.

7 W.Va. 63

PlTZER, ADMR.,

v.BURNS.

Supreme Court of Appeals of West Virginia.

August 22, 1873.

1. The limitation in equity, as against mortgages and deeds of trust conveying property to a trustee, to secure the payment of debts, when the statute of limitations does not govern, is twenty years; and, under circumstances, a greater period. Such limitation is barred upon presumption of payment, and not upon analogy to the statute of limitations, as applicable to the action of ejectment or any other real action; but by analogy to the limitation from presumption of payment in actions at law, upon a single bill, if it is not a mere rule of equity.

2. In a suit in equity to enforce a deed of trust given upon land to secure the payment of money, the fact that the grantor remained in possession of the land for 17 years, after the right to sell the property to pay the debt accrued, does not operate a bar to the suit.

3. In a suit commenced in 1807, and pending on the 1st day of April, 1869, and at no time barred, in 'computing the limitation to the action, the time from the seventeenth day of April, 1861 to the 1st day of March, 1869, must be excluded from the computation.

4. B., on the 26th day of September, 1845, executed a deed of trust conveying to C. land in trust, to secure the payment of a debt of $300 with interest from the date aforesaid, to F., and other debts toother persons. The deed of trust provides that if the debts therein named are not paid within one year, that the trustee shall sell the land at public auction to pay the debt. On the same day the deed of trust wms executed, F. executed to B. a writing, in these words: "It is hereby understood and agreed that if I do not succeed in clearing B. of either of the suits now pending in the circuit court of law of Berkeley county by H., assignee of W. G. B., then the note embraced in a trust deed of this date, to be void and of no ac- count: if I succeed in clearing him of but one of the two cases, it is void as to all but one hundred and fifty dollars, or the one half.

September 26, 1845. F."

F. was at the time the counsel and attorney of B., to defend said pending suits, in the writing mentioned. Held:

That to read said writing with the^acknowledgement of debt to F. contained in the deed of trust and give it the most liberal construction, it can only have the effect to make the debt of F. conditional, and a substantial compliance with the condition, by F., is sufficient, in equity, and the debt then became payable and F. entitled to enforce the deed of trust, in equity, for the payment of his debt and interest.

This was an appeal, by John Burns, from a decree of the circuit court of Berkeley county, rendered on the fourth day of November, 1870, in a suit therein pending, between John W. Pitzer, administrator of John H. Likens, deceased, Dennis Murphy and Charles James Faulkner, complainants, and John Burns, John P. Kearfott, administrator of Samuel D. Campbell, deceased, John S. Light, Bartley Pitts and Ruth his wife late Ruth Burns, John W. Pitzer, administrator of Meverell Locke, deceased, Jacob Vandoren, Jr., survivor of the late partnership of Robert C. Briarly & Co, John \Y. Pitzer, administrator of Robert Campbell, deceased, Joseph Hoffman and John P. Kearfott, executor of Joseph Gorrell, were respondents.

The Hon. Ephraim B. Hall, judge of the said circuit court, as organized under the Constitution of 1863, presided at the decision of the suit below.

The facts sufficiently appear in the opinion of the court.

C. W. B. Allison, for the appellant, William L. Wilson, for the appellees.

Haymond, President:

The plaintiffs filed their bill in equity in the circuit court of Berkeley county, in a cause commenced on the the seventh day of September, 1867. The bill was filed at October rules, 1867; and it alleges that on the twen-ty-sixth day of September, 1845, the defendant, John Burns, Jr., of Berkeley county, executed a deed of trust making Samuel D. Campbell the trustee, and conveying his undivided moiety of a tract of two hundred and seventy-one acres of land to secure debts named in the deed of trust, among others, a debt due to plaintiff Faulkner for $300, with interest from the date of the deed of trust, and that the debts due to John H. Likens and Dennis Murphy, are not ascertained, in amount, in the trust deed: That by the terms of the deed of trust, the grantor therein, was, allowed until the twenty-sixth day of September, 1846, to pay the debts, before any sale should be made, under the terms of the deed of trust. The bill also alleges that the plaintiff Faulkner has more than once written to defendant Burns, requesting payment of interest upon his debt, but he has paid no attention to the letters: That he felt reluctant to enforce the trust against him, as at the time of its execution the grantor was considerably involved in debt, &c.: That Campbell the trustee, is dead, and that there are several other creditors named in the trust deed who may, or may not, have been satisfied. The bill makes Burns, and the administrator of the trustee, and all the other creditors named in the deed of trust, defendants, and prays that the true amount of the debts of the trust creditors be ascertained by a commissioner; that another trustee be appointed in place of Campbell, 'deceased; that the interest of Burns in the tract of land be sold, if necessary, for the payment of the trust debts unpaid, &c.

An office copy of the deed of trust is filed with the bill and it purports to be an indenture "between John Burns, Jr., of the county of Berkeley and State of Virginia, of the first part j Samuel D. Campbell, of the county and State aforesaid, of the second part; and Ruth Burns, of Platte county, and State of Missouri, Charles James Faulkner, of Berkeley, Virginia," &c: and it recites among other things, that "the said John Burns, Jr., is further in-debted to the said Charles James Faulkner, in the sum of $300, with interest from the twenty-sixth day of September, 1845," and conveys to Samuel D. Campbell one undivided moiety of a tract of land in the county of Berkeley, on the waters of Opequon creek, containing about two hundred and seventy-one acres, devised to John Burns, Jr., by the last will of his father, George Burns, deceased, of record in the county court of Berkeley, together with a moiety of all the improvements on the same, in trust, nevertheless, that is to say, if the said John Burns, Jr., shall not pay to the creditors named in ^ the deed of trust, on, or before the twenty-sixth day of September, 1846, the several sums of money specified as due to them, with interest on the same as before stated, &c, then the trustee shall proceed to sell the land at public auction, &c. and out of the proceeds of sale shall pay the several debts with their accruing interest, &c. There is this clause in the deed of trust, viz: "It is understood and agreed between the parties to this deed that the property hereinbefore conveyed shall remain in the possession and custody of the said Burns until the sale-may become necessary, under the provisions of this deed; and further, that the trustee shall not be responsible for the same, except for loss and injury, after the same may come into his possession as trustee as aforesaid."

The defendant Burns filed his answer, to which a general replication was filed by plaintiff Faulkner. In his answer Burns says that "the debts due by him to the plaintiffs and to the other parties named in the trust deed filed with the plaintiff's bill, have all been fully paid and discharged long since, except the claim stated to be due to Charles James Faulkner;" as to which, the answer states in substance that on the day of the execution of the deed of trust, Faulkner executed a paper to him (Burns) setting forth that if he (Faulkner) should not succeed in clearing him (Burns) from certain suits brought against him by Minor Hurst, assignee of G. W. Burns, then the claim, to-wit: $300, and the same stated August in the trust deed should be void, or if he should succeed in clearing him of, or defeating, only one of said suits the claim should be reduced to $150, and that he (Burns) will exhibit evidence of the payment, and of the paper or agreement executed by Faulkner; and he (Burns) says that Faulkner did not succeed in clearing him of, or defeating, either of the claims, and he pleads that he did not assume to pay any of aaid claims within, five, ten, fifteen, or twenty years prior to the institution of this suit; and therefore he claims the benefit of the plea of the statute of limitations in bar of each of said claims. The paper alluded to in the answer of Burns, as being executed by Faulkner, is filed and proven, and is in these words, viz: "It is hereby understood and agreed, that if I do not succeed, in clearing John Burns of either of the suits now pending in the circuit court of law of Berkeley county, by Minor Hurst, assignee of W. G. Burns, then the note embraced in a trust deed of this date to be void, and of no account; if I succeed in clearing him of but one of the two cases, it is void as to all but one hundred and fifty dollars, or the one-half. September 26, 1845.

Chas. Jas. Faulkner."

Plaintiff Faulkner was at, before and after, these transactions a practicing attorney in the circuit court of Berkeley county, and was also the attorney of Burns in 'said causes. The cause wasin September, 1868, referred by the circuit court to a commissioner with instructions to ascertain and report the debts embraced in the deed of trust which remain due and unpaid, &c. The commissioner, in his report, made in pursuance of the order of reference, reports that all the debts mentioned in the deed of trust have been paid, except the debt of Faulkner, the only evidence of which is the face of the deed of trust, and was at the time of the execution thereof, September 26, 1845, $300; and that the interest on the same to the 26th of April, 1869 is...