Thompson v. Halstead
| Decision Date | 23 March 1898 |
| Citation | 29 S.E. 991,44 W.Va. 390 |
| Parties | THOMPSON v. HALSTEAD et al. |
| Court | West Virginia Supreme Court |
Submitted January 22, 1898
Syllabus by the Court.
1. Where a paper purports to have been signed by a party, with a subscribing witness thereto, and such subscribing witness is dead, proof of the handwriting of the subscribing witness is prima facie evidence of the execution of the paper; but such evidence may be rebutted by the party denying its execution and by outside circumstances.
2. As between near relatives, such as a mother-in-law and a son-in-law, whenever compensation is claimed in any case by either against the other fo r services rendered or for board, it must be determined from the particular circumstances of that case whether the claim should be allowed or not. There can be no fixed rule governing all cases alike. In the absence of any direct proof of an express contract, the question always is, can it be reasonably inferred that pecuniary compensation was in view of the parties at the time when the service was rendered or board furnished? And that depends upon all the circumstances of the case, the relation of the parties being one of the circumstances.
3. A trustee need not give bond under section 6 of chapter 72 of the Code before advertising and selling the property mentioned in the trust deed unless required to give such bond by the grantor or any cestui que trust.
Appeal from circuit court, Mercer county; A. W. Reynolds, Special Judge.
Suit by Aden Thompson against Emily Halstead and others for an injunction restraining the sale of certain land. From a decree dissolving the injunction granted, plaintiff appeals. Affirmed.
Douglass & McGrath, for appellant.
Johnston & Hale, for appellees.
On the 13th day of June, 1889, one Aden Thompson executed his note to Emily Halstead, his mother-in-law, for the sum of $600 which note stated on its face that it was for a loan received of her in borrowed money, which note was also signed by Celia A. Thompson and Alex Halstead. On the 15th of June, 1889 said Thompson executed to one D. W. McClaugherty, as trustee a deed of trust on a tract of land containing 250 acres, to secure the payment of said note, which deed of trust was duly recorded. Thompson having failed to pay said note, said trustee, on February 6, 1896, advertised said tract of land for sale, and the said Aden Thompson filed his bill in the circuit court of Mercer county, praying an injunction to restrain said trustee from selling said land, alleging in his bill the above facts, and claiming he did not owe Emily Halstead the said $600, evidenced and secured as aforesaid or any part there of; that at the time of the execution of said note and deed of trust it was distinctly understood and agreed by and between the defendant Emily Halstead and himself that he would not be required to pay back the said sum of $600, or any part thereof; that said sum of $600 was given to him in consideration of his having supported, maintained, and taken care of her, her grandson, Alex Halstead, and her horse,--all at her special instance and request; and for the further consideration of his continuing to support and care for them so long as they should remain at his house, or until the said sum of $600 should have been taken up in that way. The plaintiff also alleged that he took care of said Emily Halstead, her horse, and Alex Halstead for about two years prior to the date of the execution of said bond and trust deed, and also maintained them from the time of said execution until about the 1st of March, 1894,--altogether about seven years; and that the service rendered by him in maintaining and caring for her, her horse, and said Alex Halstead was at her special instance and request, and such services were worth $300 per year; that said trustee was proceeding to sell under said trust deed, and would sell said land on the 10th of March, 1896, unless restrained by injunction; that he had long since paid off the $600 in the manner above set forth, and he prayed said trustee be enjoined and prohibited from selling the land in the bill and exhibits mentioned. On February 24th an order of injunction was awarded in vacation in pursuance of the prayer of said bill, and bond executed as therein required. On February 6, 1896, the defendant Emily Halstead appeared at rules, demurred to plaintiff's bill, and filed her answer thereto, in which she denied the material allegations of the bill, and claimed that her work done for the plaintiff while at his house was worth to him at least $175, that the use of her horse was worth $350, and that the services of said Alex Halstead were worth $480; that, if the plaintiff ever had any claim against her for board and matters referred to in his bill, it is long since barred by the statute of limitations, which she pleads, and relies upon; that he has been guilty of laches in enforcing his claim, if he ever had any, and she relies upon laches as a defense to his suit, and denies plaintiff's right to recover against her anything in this suit, and prays that a decree be rendered therein for the amount due her from plaintiff and the said sum of $600, and a sale of the land conveyed in said trust deed be decreed, and general relief be granted her therein; and to that extent she asks that her answer be taken and treated as a cross bill, etc. To this answer the plaintiff replied generally. Numerous depositions were taken by plaintiff and defendants, and on May 25, 1896, the cause was heard. The defendant Emily Halstead moved to dissolve the injunction awarded therein, and the cause, having been regularly matured, was heard upon the pleadings and proofs, and upon the argument of counsel. Upon consideration thereof the court was of opinion that the plaintiff was not entitled to the relief prayed for in his bill, and that the same should be dismissed, and said injunction dissolved, and also decreed that the defendant Emily Halstead recover her costs, etc.; and from this decree the plaintiff obtained this appeal.
The errors relied on by the appellant are as follows: (1) That the court erred in denying the relief prayed for in his bill upon the pleadings and proofs in the cause. (2) The court erred in dissolving the injunction awarded in the cause and in dismissing the plaintiff's bill, upon the pleadings and proofs in the cause. (3) The court erred in dissolving said injunction and dismissing said bill without requiring the trustee in said deed of trust to enter into bond as required by law. (4) The court erred upon all questions properly involved in the cause which fully appear of record therein.
The first, second, and fourth of said assignments may be considered together, for the reason that in determining either of said assignments it is incumbent upon us to pass upon the correctness of the decree complained of after an examination of the case upon its merits. There is no controversy as to the fact that the appellant borrowed the $600 in the bill mentioned from his mother-in-law, Emily Halstead, on the 13th day of June, 1889; that he executed his note therefor at the time he obtained the money, and a few days thereafter executed the deed of trust upon his land to secure the payment thereof. The appellant however, contends that at the time he received the money and executed said note there was an agreement between him and said Emily Halstead that he was not to repay the money. This allegation she denies in her answer, and also denies in her deposition. He further contends that this money was to be retained as compensation for her board, the board of Alex Halstead, and for keeping her horse; which is also denied by Emily Halstead in her answer and deposition. To support this claim of the appellant the burden of proof rests upon him, and the question is, has he sustained it? It is true, the plaintiff makes himself a witness, and states that a few days before he got the money Emily Halstead and himself were coming from Raleigh C. H., and she remarked to him that she wanted to let him and his wife have $600; that she wished to make her home with them, and wished him to give her a deed of trust on the land, and pay the interest for one year, and they would never have it...
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