Rowan v. Chenoweth
| Decision Date | 23 March 1901 |
| Citation | 38 S.E. 544,49 W.Va. 287 |
| Parties | ROWAN v. CHENOWETH et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. When a cause of action accrues for or against a party, the statute of limitations does not stop because of his death or until he has a personal representative.
2. When an administrator or executor sues in equity to convene the creditors of the estate and administer its assets for the benefit of all the creditors, the statute of limitations stops running against their debts at the commencement of the suit for the purposes of that case.
3. A deputy sheriff is agent of the sheriff, and the statute of limitations applies between them as between agent and principal.
4. In case of a general or continuous agency, as distinguished from a special or isolated agency, the statute of limitations runs between the parties to it from its close.
5. An entry in a book made by a party is not admissible as evidence in his behalf, though he is since deceased, but it is admissible against him as an admission. If, however, the adverse party calls for and introduces such book in evidence all entries touching the subject are thus made evidence,--the self-serving as well as the self-disserving entries.
6. The statute of limitations runs against a set-off until it is filed.
7. Delivery of a promissory note is indispensable to its efficacy, and, if not delivered in the lifetime of its maker it cannot be delivered after his death. But delivery may be actual or constructive. If it is clear that the maker of the note intended it to be a finished note and binding on him without further act on his part, it will so operate, though not actually delivered in his lifetime.
8 Trusts--limitations.
Appeal from circuit court, Randolph county; John Homer Holt, Judge.
Bill by S. A. Rowan against E. E. B. Chenoweth and others. From the decree, George W. Leonard appeals. Reversed.
L. D. & J. F. Strader and C. Wood Dailey, for appellant.
Harding & Harding, Geo. W. Lewis, and Mollohan, McClintic & Mathews for appellees.
BRANNON, P. S. A.
Rowan, as administrator of Z. T. Chenoweth, filed a bill in chancery in the circuit court of Randolph county to convene the creditors of Chenoweth, fix their debts, settle his accounts and the personal estate, and sell the lands of Chenoweth to pay debts not reached by the personalty. The suit began 31st August, 1894. The case was referred to a commissioner to report the debts against the estate and other matters involved in the suit. George W. Leonard appeared before the commissioner, and filed a demand against Chenoweth's estate, and the estate filed an account of set-offs against him. The commissioner reported a balance against Leonard in favor of the estate, and upon the report the court decreed the sum of $3,113.13 against Leonard, and he appeals.
Chenoweth was sheriff of Randolph county for the years 1885, 1886, 1887, and 1888, and Leonard his deputy. The claim of Leonard is that he was to receive for his services as deputy half the entire emoluments of the office. The commissioner disallowed the claim of Leonard for half the commissions and other fruits of the office for want of proof of what compensation Leonard was to receive, but charged him with the taxes which went into his hands. Strange to say, there was no written agreement between the parties to specify the arrangement between them in this important business; no bond given by Leonard. Still, I think that, in the absence of such writing, it is fairly and reasonably established that Leonard's claim of half the emoluments is true. Omar Conrad, a deputy sheriff and jailer, says that he knew of no agreement between Chenoweth and Leonard, but was by at times when they were settling, and it was "my understanding from the conversation between Chenoweth and Leonard that they were halvers in the business." Charles Chenoweth, brother of Z. T. Chenoweth, was for a time jailer, and says that, though he knew of no agreement, his, understanding was that they were partners. He was in constant intercourse with them. It seems he is not merely conjecturing. The widow of Chenoweth assisted her husband in making out elaborate entries in 1892 in a book of her husband of taxes in the various districts and other items, and made entries at his dictation, which book, so far as it concerned taxes in the various districts chargeable to Leonard, and a settlement made between them for the year 1885 and partly for 1886, was made for the purpose of settlement with Leonard; and she says that she does not remember hearing her husband say how Leonard was to be compensated, "though my impression is he was to receive one-half the emoluments of the office." She must have derived this impression from impartment by her husband. She would not have guessed it. But to make this sure she produced from among her husband's papers two receipts given him by Leonard, dated the 21st of February, 1887, [49 W.Va. 290] --one for payment to Leonard of $87.50, "it being one-half of the allowance of the sheriff for 1886," and for $39.20, "it being one-half jail rent from Omar Conrad and Charlie Chenoweth, 1885 and 1886." The other receipt is for $843.05, "It being one-half of the sheriff's commission on state, county, district, schools, and district schools for the year 1885." Now, these are enough to enable us to say that Leonard was to receive half the emoluments.
But Leonard's rejected claims are barred by limitation, in the absence of evidence of actual collection within five years before the suit. Particular collections shown to have been made within five years could be recovered by either side, and those only. Those items would not save others collected before from the statute. The statute began to run against Leonard in Chenoweth's lifetime, and his death did not stop it, even though he had no representative. Handy v. Smith, 30 W.Va. 195, 3 S.E. 604; Wilson v. Harper, 25 W.Va. 179; Mynes v. Mynes, 47 W.Va. 681, 35 S.E. 935. When did the statute stop running against Leonard? By various decisions it ran on until the court made a reference for the benefit of all creditors, to ascertain and decree their debts. Laidley v. Kline's Adm'r, 23 W.Va. 565; Camden's Adm'r v Hays, 37 W.Va. 475, 16 S.E. 561. Those cases were suits by individual creditors against estates. Until reference it could not be known that the suit would go on for all; hence the other creditors might, till then, sue. But we think that when an administrator brings such a suit as this, as the estate's representative, to administer the personal estate, and apply it and the realty both for all creditors, it is a guaranty of prosecution to the end; the creditors may demand that it go on, and the statute stops running against creditors at its institution. The Code gives the personal representative power to bring such a suit as the vehicle of relief for all creditors,--gives him a right to do so to the exclusion of creditors for six months after the qualification of a representative; and this statute would contemplate the cessation of the statute of limitations at the date of such suit. Code 1899, c. 86, § 7. When one creditor sues expressly for all creditors, the statute stops at date of suit. Jackson v. Hull, 21 W.Va. 612; Dunfee v. Childs 45 W.Va. 155, 30 S.E. 102. When did the statute of limitations commence to run against Leonard's demand for commissions on taxes and executions, and for jail rent, county allowances, and fees? We cannot solve this question by saying that Chenoweth and Leonard were partners. There can be no partnership in a sheriffalty. It would be against public policy. We cannot apply the statute as between partners. There may be a deputy ship, with services of the deputy to be compensated by a share of the emoluments, without its being contrary to law, or a partnership. Davis v. Baker, 45 W.Va. 455, 32 S.E. 239; Hogg, Eq. Prin. 618. A deputy is simply an agent appointed by the sheriff to perform service for him; it is the relation of principal and agent. Poling v. Maddox, 41 W.Va. 781, 24 S.E. 999, 9 Am. & Eng. Enc. Law (2d Ed.) 369. Hence the statute applies as between man and man, as for money had and received, in this case. We must not regard the relation as one of trust, not subject to the statute. In a sense it is a trust. So is any case where a man intrusts money to another. But it is not that special and peculiar trust cognizable in a court of equity only, where the statute does not apply, for an action of assumpsit lies for money had and received or for services between principal and agent. This subject is discussed, and this principle held, in Thompson v. Iron Co., 41 W.Va. 574, 581, 23 S.E. 795, and Wood v. Stevenson, 43 W.Va. 149, 27 S.E. 309. "The trusts against which the statute does not run are those technical and continuing trusts not cognizable at law, and falling within the proper, peculiar, and exclusive jurisdiction of equity; but such other trusts as may be ground of action at law are subject to the operation of the statute." Landis v. Saxton (Mo. Sup.) 16 S.W. 912, 24 Am. St. Rep. 403. That was the case of the treasurer of an extinct corporation, and the statute was held to begin on the dissolution of the corporation. See Gapen v. Gapen, 41 W.Va. 427, 23 S.E. 579, Hogg, Eq. Prin. 757. When does the statute begin to run between principal and agent? That depends on the character of the agency. Where there is an isolated or special agency, one for a particular act or acts, one to collect a specific debt or debts, the statute begins from the act or collection in each particular case; but where the agency has currency, is continuous, is general, involving many acts, or a course of business involving many transactions, the statute begins from the termination of...
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