Rutherford v. Rutherford.*

• Decision Date: 16 February 1904
• Citation: 47 S.E. 240,55 W.Va. 56
• Court: West Virginia Supreme Court
• Parties: RUTHERFORD et al. v. RUTHERFORD.*

47 S.E. 240

55 W.Va. 56

RUTHERFORD et al.

v.RUTHERFORD.^*

Supreme Court of Appeals of West Virginia.

Feb. 16, 1904.

RELEASE—JOINT CONTRACTORS — COMPROMISE-CONSIDERATION—IMPEACHMENT—INSTRUMENT—PROOF OF EXECUTION.

1. A release of one of two joint contractors releases both.

¶ 1. See Release, vol. 42, Cent Dig.§ 57.

2. A compromise of a controversy is a valuable consideration to sustain a contract.

3. Consideration of a contract. What is valuable.

4. A person who at the time of the execution of a release knows, or by inquiry might know, the exact nature of the writing, cannot invoke his own neglect to ascertain its nature to impeach it, unless imposed on and misled by fraud.

5. A release of a mere personal obligation is not required to be recorded.

6. The certificate of acknowledgment of a writing not required by law to be recorded is no evidence of its execution, and is not admissible as such.

(Syllabus by the Court.)

Appeal from Circuit Court, Randolph County; John Homer Holt, Judge.

Bill by John E. Rutherford against Wade H. Rutherford and others. Decree for plaintiff, and defendants appeal. Reversed.

W. B. Maxwell, for appellants.

Harding & Harding, for appellee.

BRANNON, J. John E. Rutherford, by two separate deeds, 15th March, 1887, conveyed two tracts of land in Randolph county, one of 75 acres and one of 95 acres, to his two sons, Samuel W. Rutherford and Wade Hampton Rutherford, in consideration, as provided in the deeds, that the sons would support and bury John E. Rutherford and his wife. The wife of John E. Rutherford did not join in the deeds. She died in 1897.

It Is said by counsel on both sides that John E. Rutherford was killed by a train of cars near Grafton since the decree in this case. At the date of said deeds, Samuel W. Rutherford was 19, and Wade H. Rutherford ft, years of age. Samuel W. Rutherford married, and brought his wife to the home. Trouble, in ways not necessary to be detailed, here arose between the father and the son's wife, which engendered bad feeling between father and son. Samuel lent little or no help to his parents. Wade H. Rutherford still lived with his father and lent him help for some years, when he left home—driven away, as he says, by his father. Amid these troubles, on 5th January, 1894, a writing was made, which is so very badly drawn as to be almost unconstruable. John E. Rutherford says in his bill that, finding it impossible to get along with Samuel W. Rutherford, he (the father) "attempted to enter into" this contract. So he moved it as a compromise. His bill says so. It names S. W. and W. H. Rutherford as its formal parties, but they and their father and mother all signed it. It imports that Samuel W. Rutherford was to deed W. H. Rutherford 40 out of the 95 acres, and keep the balance, and he was to relinquish to W. H. Rutherford the 75 acres. It declares that it was a final settlement, and released al' responsibilities between the parties. The parties never conveyed under this contract. Samuel W. Rutherford and his father still differed. Later, April 3, 1895, a written contract appears, signed by John E. Rutherford and Samuel Rutherford, acknowledged before a notary and recorded, which recites that J. E. Rutherford had before that bound S. W. Rutherford to care for him and see him decently buried; and it released S. W. Rutherford from "all said incumbrance and maintenance, " and S. W. Rutherford was to turn over to W. H. Rutherford one black mare; and the writing declared, "and this is a final settlement to this date between said parties of J. E. Rutherford, W. H. Rutherford & S. W. Rutherford." On the date of this contract, Samuel W. Rutherford and wife made a deed to Wade H. Rutherford releasing his interest in the 75 acres, retaining a lien to require Wade H. Rutherford to convey to Samuel the 95 acres; Wade H. being then an infant and unable to convey. On 16th December, 1896, Samuel W. Rutherford conveyed the 95 acres to R. V. Shreve, and by deed 12th January, 1897, Sbreve conveyed to David C. Simmons. On 27th March, 1897, John E. Rutherford brought an equity suit in Randolph against Wade H. Rutherford, Samuel W. Rutherford, Shreve, and Simmons, alleging that his two sons had wholly failed to support him and his wife as stipulated in the conveyances of said two tracts by him to his sons, and charging that the conveyances by Samuel W. Rutherford to Shreve, and by Shreve to Simmons, were made with fraudulent intent to defeat his rights, and asking the cancellation of the two deeds from himself to his sons, and the deed from Samuel W. Rutherford to Shreve, and that from Shreve to Simmons, and that said land be restored to him. In October, 1901, an amended bill was filed. The original charged default of support and abuse by Samuel W. Rutherford, but did not as to Wade H. Rutherford, but, on the contrary, admitted that Wade H. Rutherford had, to some extent, complied with his obligation. The amended bill charges that both sons had failed to support their father or mother, and had cruelly neglected both. This bill states the death of the mother. John E. Rutherford, in his bill, introduces the contract of release into the case, but denies that he signed, agreed to, or acknowledged it. The answer of Samuel W. Rutherford relies upon it as a release. Wade H. Rutherford, being an infant, filed an answer by guardian ad litem. Shreve and Simmons filed answers denying all fraud on their part, and denying any right in John E. Rutherford as still subsisting in the lands. Depo sitions were taken. The 95 acres was in woods. Samuel cleared 5 acres. The other tract poor. The rental value only $15 or $20. On the hearing a decree was made cancelirg the two deeds from John E. Rutherford tc his sons, and the deed from Samuel W. Rutherford to Sbreve, and the deed from Shreve to Simmons. Samuel W. Rutherford appealed, and Wade H. Rutherford, having reach ed majority after the appeal, unites in it.

Concede that the sons did not comply with their obligation to support their father and mother. Did not John E. Rutheiford release their obligation to do so? The parties had contention and difference about it, and they made the contract of compromise of 5th January, 1894. John E. Rutherford signed it. For what reason? His elder son was married and living to himself, but the younger was still with his father. The father now depended on him, and he wanted him to have the 75 acres free from all claims on the part of Samuel W. The father lived on it—did so all the while—and from It he and the younger son could have a living. By this contract the younger son got the sole title to the 75 acres, and 40 acres out of the 95-acre tract. The father and son could look to both for bread. The father assented to this arrangement, because his bill says he moved the contract and he signed it. The writing says that it was a final settlement, and released all responsibilities between both parties. It was drawn by a very illiterate, incompetent hand; but it declares that it is a final settlement of all responsibilities, and, the father signing it, it could allude to nothing else, as to him, but the release of the obligation of Samuel W. Rutherford to support him. By it the 75 acres was freed from claim by Samuel in favor of Wade, and Wade got 40 acres of the other tract, and in consideration thereof the father forewent his demand for support. The release of Samualoperated to release Wade, because the release of one of two joint contractors releases both. 3 Minor's Inst. 213. Strife went on, and later comes the compromise contract of 3d April, 1895, releasing Samuel from all obligation of support; and its language further released Wade, in addition to the release by operation of law. But John E. Rutherford denies that he ever executed it, or that he thereby agreed to release. This denial is repelled by the fact that he did by this second compromise only what he did by the first—released support. I use that first contract to corroborate the probability that he did make the second compromise, because it only does, as to him, what the first did. We need not discuss how far the second abrogates the first, because, as to John E. Rutherford, they both do the same thing; that is, release the obligation of maintenance or support What are the rights of the two sons under them, as between themselves, is not involved. It is said that this second contract is based on no consideration. In the first place, it was a compromise. That it had this character, the bill shows, for it says that amid the difficulty the plaintiff attempted to make it The evidence plainly shows it to be a compromise. If made, it surely was made, as bill...