The Conservative Life Ins. Co. v. Nat'l Exch. Bank Of Wheeling., (No. 8297)

• Decision Date: 01 December 1936
• Docket Number: (No. 8297)
• Citation: 118 W.Va. 44
• Court: West Virginia Supreme Court
• Parties: The Conservative Life Insurance Company v. National Exchange Bank of Wheeling et al.

118 W.Va. 44

The Conservative Life Insurance Company

v.National Exchange Bank of Wheeling et al.

(No. 8297)

Supreme Court of Appeals of West Virginia.

Submitted November 10, 1936.

Decided December 1, 1936.

Assignments

An assignment does not differ in its essential elements from any other contract. Acceptance by the assignee is requisite to constitute a valid assignment. A proposed assignment, not accepted within a reasonable time, and consistently disregarded by both assignor and assignee over a long period of time, ordinarily becomes a nudum pactum.

Appeal from Circuit Court, Ohio County.

Suit by the Conservative Life Insurance Company against the National Exchange Bank of Wheeling and others. From an adverse decree, plaintiff appeals.

Reversed; remanded.

P. D. Morris and Warren F. Morris, for appellant. J. M. Ritz, for appellees.

Hatcher, President:

On certification here, the second amended bill in this cause was held sufficient. See 114 W. Va. 271, 171 S. E. 530. Chaplane Hotel Realty Company (hereinafter called Realty) borrowed $75,000.00 in 1925 from the Conservative Life Insurance Company and secured the loan by a recorded deed of trust on its real estate. Payments of $10,000.00 annually were to be made on this loan. Realty was unable to make the annual payments, whereupon in May, 1929, upon its solicitation to arrange easier payments than those required under the first deed of trust, that security was released by the Insurance Company and a second deed of trust accepted from Realty upon the same property to secure $60,000.00, the remainder of the original loan. Payments of $4,000.00 annually were to be made under this re-adjustment. Only one of those installments was paid and the property was sold under the second deed of trust on February 4, 1932, and bid in by the Insurance Company for $60,000.00. The amount of its debt, then unpaid, was $58,277.32, which, with unpaid taxes on the property and costs of sale, more than consumed the bid.

On November 14, 1927, Realty borrowed $24,000.00 from the National Exchange Bank, with J. M. Ritz as endorser. Realty deposited with the Bank as collateral 995 shares of its stock. It also purported to assign in writing to the Bank for a period of five years, all the rents from its property, then amounting to $1440.00 a month. This litigation involves the claim of the Insurance Company to those rents from February 4, 1982, when it purchased Realty's property from the trustee, to November 14, 1932, when the purported rental assignment to the Bank terminated. That assignment was not recorded until January 16, 1932, and representatives of the Insurance Company deny actual notice of it prior to releasing the first deed of trust (in 1929). Such notice is deposed by witnesses for the Bank. The circuit court found in favor of the Bank.

The question of notice assumed prominence under the pleadings but has become inconsequential under the admitted facts. The writing which the pleadings treat as an assignment did purport to assign all of the rentals accruing to Realty for the recited consideration of "One dollar and other good and valuable consideration." However, it appears that the Bank did not seek the writing, did not consider an assignment of the rents as a part of its deal with Realty, and manifested no interest in the writing prior to this litigation. Even the belated recordation of the writing in 1932 was the work of Realty, not of the Bank. Neither of the parties to the writing ever treated the rentals as assigned money. On the contrary, the Bank credited the checking account of Realty with every dollar of the rentals, amounting in all to $53,002.40; and Realty withdrew every penny of that account, with checks which the Bank honored without let or supervision. True, J. M. Ritz countersigned the checks; but he was representing himself as endorser, and not the Bank. His counter-signature was not mentioned in the purported assignment. His concurrence in Realty's withdrawals may explain the total lack of compliance with that instrument, but does not enliven it. The...