Wayt v. Carwithen

• Decision Date: 21 April 1883
• Citation: 21 W.Va. 516
• Parties: WAYT v. CARWITHEN et al.
• Court: West Virginia Supreme Court

21 W.Va. 516

WAYT v. CARWITHEN et al.

Supreme Court of West Virginia.

April 21, 1883

Submitted Jan. 25, 1883.

1. A case in which a demurrer to the plaintiff's bill was erroneously sustained. (p. 517.)

2. Any deed or written contract used by the parties for the purpose of pledging real property, or some interest therein, as security for a debt or obligation, which is informal and insufficient as a common law mortgage, but which by its terms shows that the parties intended that it should operate as a lien or charge upon specific property, will constitute an equitable mortgage and may be enforced in a court of equity. (p. 520.)

3. The right to enforce the lien of an equitable mortgage is not lost by the lapse of time, or barred by the statute of limitations, until such time has elapsed as would bar relief upon the instrument creating such lien--the dignity and character of the lien depending upon the nature of the instrument creating it, and not upon the antecedent debt or lien intended to be revived or preserved. (p. 521.)

Appeal from and supersedeas to a decree of the circuit court of the county of Kanawha, rendered on the 7th day of April, 1882, in a cause in said court then pending, wherein George Wayt was plaintiff, and N. Carwithen and others were defendants, allowed upon the petition of said Wayt.

Hon. F A. Guthrie, judge of the seventh judicial circuit, rendered the decree appealed from.

The facts of the case are stated in the opinion of the Court.

J. H & J. F. Brown and Joseph Ruffner for appellant cited the following authorities: Code, Va. (1849) ch. 48 sec. 12; 3 Leigh 365; 2 Min. Inst. 882; Perry Trusts, secs. 920, 921; 19 Ia. 538; Ad. Eq. 55; 14 W.Va. 211; 2 Leigh 6; Ang. Lim-312; 6 Munf. 352; 13 W.Va. 718.

George S Couch for appellee John T. Halliday cited Code Va. (1849) ch. 186 sec. 12; Id. ch. 119 sec. 1; Freem. Jdgmts sec. 468; 20 W.Va. 351.

OPINION

SNYDER, JUDGE.

This suit was instituted in the circuit court of Kanawha county on November 2, 1881, by George Wayt against Nancy Carwithen and others. The bill was demurred to, the demurrer sustained and the bill dismissed with costs, and the plaintiff appealed to this Court.

The material allegations of the plaintiff's bill are, that in 1851, James Carwithen by executory contract purchased from Jesse Mills one hundred acres of land on Davis creek in Kanawha county; that the purchase money for said land remaining unpaid, the said Mills by an action in the circuit court of said county obtained a judgment on June 20, 1856, against said Carwithen for four hundred dollars, the amount of said purchase-money, with interest thereon from March 22, 1851, and costs; that, subsequently, by deed, dated November 13, 1857, the said Mills conveyed said land to said Carwithen which deed was duly recorded in said county the day after its date; that at the request of said Carwithen the plaintiff paid to said Mills four hundred and twenty-four dollars and thirty-four cents, the amount due him from said Carwithen on the aforesaid judgment, and thereupon the said Carwithen, by written agreement, dated February 15, 1858, and duly acknowledged and recorded in said county, subrogated the plaintiff to the rights of said Mills in reference to the said land and the lien which said Mills held thereon as vendor, which agreement was made in consideration of the payment of said four hundred and twenty-four dollars and thirty-four cents by plaintiff to said Mills and for other moneys mentioned therein, but said lien was not to be enforced by plaintiff for four years from the date of said agreement; that afterwards said Carwithen died leaving a widow, the defendant Nancy Carwithen, and two children, John H. and Ellen Carwithen as his heirs at law, and John Slack, Jr., became the administrator of his estate; that neither the said James Carwithen nor his representatives have ever paid the plaintiff the said four hundred and twenty-four dollars and thirty-four cents or any part thereof.

The bill further alleges, that on June 2, 1852, before the said James Carwithen acquired the legal title to said one hundred acres of land, he executed to J. L. Carr and Isaac Read trustees a trust deed upon his equitable right thereto, and also upon the legal title of another tract of one hundred and fifty acres which had been conveyed to him by John D. Mays in 1851, to secure the payment of two debts, one to E. Baines and the other to Abram Wright; that this trust deed was acknowledged and copied upon the records of said county on the day of its date, but the plaintiff at the time the aforesaid agreement of February 15, 1858, was executed to him, had no actual notice of said trust deed; that, on July 3, 1860, the said trustees sold said one hundred and fifty acres of land under said trust deed of June 2, 1852, and satisfied the debts therein secured; that, on July 1, 1872, after the satisfaction of the trust aforesaid, the defendant, Nancy Carwithen, widow as aforesaid, claiming that a deed of release had been made to her by one of said trustees and she having a dower interest therein, conveyed her interest in said one hundred acres of land, by deed with special warranty of that date, to Greenbery Slack; that the said Slack, by deed dated July 12, 1872, conveyed the said one hundred acres with general warranty, to John T. Halliday and William Y. Miles jointly; and that said Miles and wife, by deed dated January 31, 1876, sold, quit-claimed and conveyed, their interest in said land to the said John T. Halliday. The bill charges, that no such deed of release as claimed by her was ever executed to said Nancy Carwithen by either of the aforesaid trustees, but if such release was executed it was void; that the legal title to said one hundred acres is vested in the heirs of said James Carwithen, deceased, subject to the plaintiff's lien aforesaid; that, if it shall be shown that the said Nancy Carwithen acquired the legal title to said land by release from said trustee or otherwise, which is denied, still the conveyance by her of such legal title, and all subsequent conveyances thereof, were subject to the plaintiff's said lien, and that in any event the plaintiff is entitled to have his said lien enforced in a court of equity. The plaintiff, therefore, prays that his said lien may be enforced against said one hundred acres of land and that he may have other and general relief.

The administrator, widow and heirs of said James Carwithen, deceased, and John T. Halliday were made defendants, and the plaintiff exhibited with his bill the aforesaid agreement of February 15, 1858, and made the same a part of his bill. The parts of said agreement necessary to be referred to here are as follows:

" Whereas, the said James Carwithen is indebted to the said George Wayt in the following amounts of money, to-wit In the sum of four hundred and twenty-four dollars and thirty-four cents, which he has paid to Jesse Mills in discharge of a judgment rendered at the spring term of the circuit court of Kanawha county in favor of said Mills against said Carwithen, and which judgment was for the purchase-money of a tract of land sold by said Mills to said Carwithen, lying upon Davis Creek, in the county aforesaid; and also in the further sum of two hundred and sixty-nine dollars and one cent due said Wayt on an open account; " * * * " and the said James Carwithen being desirous

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