Welty v. County Court of Barbour County
| Decision Date | 15 April 1899 |
| Citation | 33 S.E. 269,46 W.Va. 460 |
| Parties | WELTY v. COUNTY COURT OF BARBOUR COUNTY. |
| Court | West Virginia Supreme Court |
Submitted February 1, 1899
Syllabus by the Court.
Where coupon bonds have been issued by a district in a county to assist in the construction of a railroad, and the coupons falling due in a certain year on said bonds have been levied for by the county court of said county, the holder of such coupons must look to the sheriff of the county for payment and is not entitled by mandamus to compel a second levy upon the people and property of said district to pay the interest represented by such coupons.
Error to circuit court, Barbour county; J. H. Holt, Judge.
Action by Sebastian Welty against the county court of Barbour county. Judgment for plaintiff. Defendant brings error. Reversed.
Melville Peck and C. M. Murphy, for plaintiff in error.
W. T Ice, for defendant in error.
The county court of Barbour county, in pursuance of the provisions of section 24, c. 39, of the Code, caused a vote to be taken upon the question as to whether Valley district should subscribe to the capital stock of the Grafton & Greenbrier Railroad Company; and, it appearing from the returns of the election that more than three-fifths of the votes cast were in favor of said subscription, on April 8 1896, the county court authorized and ordered Luther C Elliott, who was appointed agent on behalf of said district to subscribe for 25 shares of said capital stock, of the par value of $100 each, to be paid at such times and in such installments as the directors of said company should prescribe for the payment of other stockholders in the coupon bonds of said district, payable on the 1st of January, 1920, in sums of $100 and multiples thereof, bearing interest at 6 per cent. per annum, payable annually, and redeemable at the pleasure of the court. These bonds were prepared at the expense of said county, and executed and delivered by the clerk of said court to said railroad company. Sebastian Welty, for value received, became owner and holder of five interest coupons of said district, due July 1, 1893, for $30 each, which coupons, when due and payable, said Welty presented to the sheriff of said county, and demanded payment, which was refused. At the June term, 1895, of the Barbour county court, he presented said coupons to the court, and demanded payment thereof, and requested said court to make an order directing the sheriff to pay said interest coupons, which demand and request were refused. Thereupon Welty presented his petition to the circuit court of Barbour county, praying an alternate writ of mandamus might be awarded him, directed to the county court of Barbour, returnable to the 12th of February, 1896, commanding it to levy a sufficient tax upon the taxable property within the limits of Valley district to pay off and discharge said interest coupons, together with the accrued interest and costs, or show cause why it should not do so, which alternative writ was issued. The county court demurred to the petition of the relator, and by way of return admitted that Valley district of said county subscribed $2,500 to the capital stock of the Grafton & Greenbrier Railroad Company, and caused its bonds to be issued therefor, and with each bond interest coupons in the nature of an order on the treasurer of the district, signed by the president of the county court, claimed that it did not know who was then the owner of said coupon bonds, and demanded full proof of its ownership, and the production of the bonds by him, admitted that the interest on said bonds was to be paid annually on the 1st of July, and the interest which plaintiff seeks to recover in this proceeding was due July 1, 1893, and was payable out of the levy of June, 1892; that said tax was collected by James A. Williamson, deceased, then sheriff of Barbour county, and if plaintiff was the owner of said bonds, and did not collect the interest due thereon July 1, 1893, he alone was in default, and should suffer the loss, if loss there be; that said Grafton & Greenbrier Railroad Company did not build and complete its road according to its charter and agreement, and so said bonds are void, and the holder took them subject to all equities attaching to them in the hands of said company; that the directors fraudulently, and with intent to defeat defendant's stock, made a voluntary gift of $116,000 of stock in said company to the Baltimore & Ohio Railroad Company, thereby rendering said Valley district stock worthless, and preventing it from ever paying a cent of dividend, and for this said bonds are void and interest not collectible, and defendant was informed that said railroad company forfeited its charter, and for that reason said bonds are void. On February 26, 1897, an order was entered overruling the motion of the defendant to quash the alternative writ, and thereupon the plaintiff demurred to the return of the defendant to the alternative writ of mandamus, which demurrer was sustained as to all the...
To continue reading
Request your trial