Taylor v. Spurr.
| Decision Date | 02 May 1944 |
| Docket Number | (CC 679) |
| Citation | 126 W.Va. 773 |
| Parties | O. R. Taylor v. Marie J. Spurr et al. |
| Court | West Virginia Supreme Court |
Gifts
A promissory note may be the subject of a gift from the payee to the maker thereof, and when such a gift is executed by delivery, deprives the payee of title thereto, and entitles the donee or maker to a release of a mortgage executed by the maker of such note to secure its payment.
Certified from Circuit Court, Ritchie County.
Suit on a note and mortgage by O. R. Taylor against Marie J. Spurr and others, wherein the named defendant filed a cross bill. The court sustained a demurrer to the answer and certified its ruling for review.
Reversed and remanded. Harry E. Moats, for plaintiff. Fox, Judge:
This is a certified case from the Circuit Court of Ritchie County, and the questions presented involve the sufficiency of an answer and cross bill, which attempts to set up a defense to the claim of the plaintiff, and prays for affirmative relief.
At April Rules, 1943, the plaintiff filed his bill against Marie J. Spurr, Wallace Spurr, and Beatrice F. Mallory, or her unknown heirs, in which he avers that on October 2, 1937, the defendant, Marie J. Spurr, then known by the name of Marie J. Westfall, was indebted to the plaintiff in the sum of $800.00, for which she made and delivered to him her certain promissory note, bearing that date, and payable on or before five years thereafter, with interest payable annually, and to secure the payment of which the said Marie J. Westfall, who was then a widow, on the same date, conveyed to the plaintiff a fee simple estate in a certain tract or parcel of land containing one-fourth acre, situate in the Town of Ellenboro, in Ritchie County, subject, however, to a provision that if the principal sum, and interest on said note, should be paid, as provided by its terms, the said mortgage should be void. This mortgage was recorded on November 16, 1937, and the original of the note, and mortgage securing the same, are filed as exhibits with the plaintiff's bill. The bill then alleges the non-payment of the principal of said note and interest thereon accruing subsequent to October 2, 1941, and prays for a decree for the amount due on said note, and for the sale of the property conveyed by the mortgage aforesaid. The defendant's demurrer to the bill was overruled, and Beatrice F. Mallory and her unknown heirs were dismissed from the suit, and no question as to the action of the court on said demurrer or said dismissal is now presented.
On the overruling of the demurrer to plaintiff's bill, the defendant was given a day to answer, and within the time stipulated she filed her answer to the plaintiff's bill, and in connection therewith, and as a part thereof, filed her cross bill seeking affirmative relief. In her answer she admits the execution of the note and mortgage, and her failure to pay any part of the principal of said note or the interest accruing thereon subsequent to October 2, 1941, but she denies that she is indebted to the plaintiff in any sum whatever, and justifies her denial by making certain allegations in her cross bill, in substance and effect as follows: That in the month of September, 1937, she returned to her home in Ellenboro from a sanitarium, where she had been receiving treatment for a nervous breakdown, and then discovered that, in her absence from home, her Committee, appointed by the County Court of Ritchie County, had disposed of all of her household and kitchen furniture, some of which had been purchased by O. R. Taylor, the plaintiff herein. That she entered into negotiations with said Taylor to repurchase said personal property, and went to Taylor's home, located in a rural section of the county, in order to identify the property which she desired to purchase; that she remained at plaintiff's home that night, at which time plaintiff stated that he had long desired to become acquainted with her, and then represented to her that he was a married man, and resided on said farm, and was separated from his wife, who resided in the Village of Toll Gate, in said county; that on their return to Ellenboro, the plaintiff proposed marriage and that they finally became engaged to marry; that thereafter they spent a great deal of time in each other's company, made trips to various places together, and the plaintiff was accustomed to spend much time at the home of the defendant; that soon after the date when the defendant spent the night at plaintiff's farm, as aforesaid, he made to her a present and gift of the sum of $100.00, and sometime thereafter an additional gift of $300.00, and still later a further sum of money, the amount of which is not stated, and that out of the money given to her she returned to the plaintiff the sum of $100.00; that sometime after that the plaintiff advised her that the money he had given her had been withdrawn from a joint bank account, in the name of himself and his wife, and in order to cover up this withdrawal, and keep the matter a secret from his wife, plaintiff requested her to execute the note and mortgage aforesaid, which she did, implicitly believing and trusting the plaintiff, and accepting as true his representation that this transaction was solely for the purpose stated by him, and not intended to be enforced; that at such time the plaintiff told her that the said mortgage was invalid and would never be enforced; that she later paid the interest on said note, the defendant representing to her that it was necessary in order to relieve him from his embarrassments aforesaid, and that when he was relieved thereof he would refund to her the amount of interest so paid; that subsequent to the time when the gifts of money were made, as aforesaid, the plaintiff informed her that he was endeavoring to obtain a property settlement with his wife, preliminary to obtaining a divorce, in order that she and the plaintiff could be married to each other,...
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... ... Evans v. Charles, W.Va., 56 S.E.2d 880; Ross v. Midelburg, 129 W.Va. 851, 42 S.E.2d 185; Taylor v. Spurr, 126 W.Va. 773, 30 S.E.2d 84; Browning v. Browning, 85 W.Va. 46, 100 S.E. 860. In an action for slander, when the occasion on which the ... ...
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