Woodyard v. Sayre.

• Decision Date: 21 March 1922
• Citation: 90 W.Va. 547
• Parties: .William Woodyard, Admr. v. Lizzie Sayre et al.
• Court: West Virginia Supreme Court

90 W.Va. 547

.William Woodyard, Admr.

v.Lizzie Sayre et al.

Supreme Court of Appeals of West Virginia.

Submitted March 8, 1922.

Decided March 21, 1922.

1. Mortgages Burden of Proving Payment on Mortgagor.

Where a deed, absolute on its face, conveys real estate for a consideration equal to its value, and the personal representative of the grantor sues to have it declared and treated as a mortgage, and it is admitted by the grantee to be a mortgage to secure payment of indebtedness owing to him, it is error to cancel said deed until it is established that the indebtedness is paid. The burden of proving payment, by a preponderance of evidence, is on the personal representative. (pp. 551-552).

2. Executors and Administrators Decedent's Protested Check and Negotiable Notes in Payee's Hands Prima Facie Evidence of Debt Against the Estate.

A protested check and negotiable notes executed by a decedent a short time before his death, and in the hands of the payee, are prima facie evidence of indebtedness against the estate, and when produced and filed in a proper suit, the burden of proving payment rests upon the administrator, by a preponderance of the evidence. (pp. 551-552).

3. Same Decedent's Creditor's Possession of Bank Stock is Primal Facie Evidence of Creditor's Absolute or Conditional Ownership, and the Burden of Proof is on the Administrator Seeking to Recover it.

Possession of a certificate of shares of bank stock held by a creditor of a decedent at the time of his death is prima facie evidence of the ownership thereof by the creditor, either absolute or conditional, and if the administrator of the decedent seeks to recover the stock, the burden is upon him to successfully rebut such evidence of ownership in the creditor, (pp. 551-522).

4. Witnesses Administrator Relying on Gross-Examination of Party Waives Objection to His Evidence W'hich Otherwise Might be Incomplete.

And in such case, if the administrator relies upon cross examination of the possessor of the stock to disprove such absolute or conditional ownership, he thereby makes him his witness and waives objection to his evidence which otherwise might have been incompetent. (p. 555).

5. Discovery Answers to Interrogatories, in Bill of Discovery Held to Constitute Prima Facie Evidence for Answering Party.

Answers, under oath, to interrogatories propounded in a bill for discovery, which are responsive, full, complete and unequivocal, constitute prima facie evidence in favor of the answering party, of the facts therein contained. (p. 555).

Appeal from Circuit Court, Wirt County.

Suit by William Woodyard, as administrator of the estate of Harry Sayre, deceased, against Lizzie Sayre and others, and, from a decree therein, the defendant H. P. Bode appeals.

Reversed and remanded.

V. B. Archer, for appellant.

T. A. Brown and C. M. Hanna, for appellee.

Lively, Judge:

From a decree of the Circuit Court of Wirt County, entered November 29, 1920, an appeal and supersedeas is prosecuted by H. P. Bode.

This decree divests Bode of his legal title to and equitable

interest in a house and lot in the City of Huntington in

Cabell County, and vests the title in the estate of Harry

Sayre; divests him of title to and possession of a certificate

of 5 shares of stock of the Wirt County Bank, delivered to

him by Sayre and in Bode's possession at the time of the

institution of this suit; renders a personal judgment against

him for $168.00 in favor of said estate; disallows certain notes as indebtedness against it; and decrees a protested check of the decedent in his favor as an unsecured debt.

Plaintiff, as administrator of Sayre's estate, filed his bill for the purpose of marshaling assets, converting the real estate into money, ascertaining and paying the indebtedness, and distributing the remainder, if any there should be, to the heirs. The bill charged that Bode held title to the house and lot in Huntington in trust, the exact nature of which was unknown to plaintiff, and asked for full discovery from Bode of the terms, conditions and provisions of the trust, and propounded interrogatories for that purpose. It also averred the possession of the certificate of shares of bank stock by Bode, alleging that the latter claimed to hold the same as collateral security for a debt owing by Sayre to him, and that he was demanding payment of his debts against the estate, and refused to surrender possession of the certificate until payment was made to him. Bode answered the bill, stating specifically and fully his transactions with Sayre, the amount of the debts he claimed, how and when contracted, when due, when and for what purpose the house and lot was deeded to him and how and for what purpose he held the certificate of stock. The interrogatories propounded were fully and unequivocally answered, both with reference to the Huntington property and the bank stock. The cause was referred to a commissioner in chancery, before whom Bode appeared, unaccompanied by counsel, and presented his evidence of indebtedness against the estate, consisting of a protested check in his favor signed by Sayre for the sum of $1,956.00, dated November 18, 1918, which was a few days before the maker's death; a note of $850.00 signed by Sayre, dated June 15, 1916, payable at 4 months to order of Bode at the First National Bank of Marietta, Ohio; and a like note for $853.33, dated the same day and payable in 4 months at said bank, less $57.67 interest paid June 15, 1917. He exhibited the certificate of bank stock with a memorandum attached, made by him at the time of the delivery of the stock to him, showing that he had loaned at that time $500.00 to Sayre and that he held this stock for repayment of the loan. He was then examined at great length by counsel for the administrator, by the commissioner and by counsel representing a bonding company which was surety on the decedent's official bond as sheriff of Wirt County. From this examination it was shown that Sayre and Bode had dealt with each other extensively in the purchase and sale of live stock, horses, mules and the like for many years, and up until Sayre's death. In the year 1914 Sayre was indebted to Bode in the sum of $1700, and desired a loan of $300.00, to secure which he made the deed to the Huntington property on March 11, 1914, which deed was duly placed on record. A short time before Sayre's death, on November 18, 1918, they had a settlement, when it was ascertained that Sayre owed, in addition to the notes, the sum of $1956.00, for which he gave this check. Said check was protested for non-payment, and Sayre was notified and stated he would at once deposit a sufficient sum in the bank to meet the check, but unfortunately died a very short time thereafter. It also appeared from this examination that since 1914 Bode had paid the taxes on the Huntington property and had collected, through Davis an agent, the rents which, less taxes, repairs and commissions, were credited on the indebtedness, and accounted for in the settlement; that since Sayre's death he had received $168.00 from rents, which should be credited on the indebtedness; that the property was held by Bode in trust to secure the payment of his said indebtedness, a fact which he had freely admitted both before and after Sayre's death and so told the administrator when he came to see him about the property. In the crossexamination by Mr. Brown, of counsel for the administrator, he also detailed fully the circumstances under which he became the possessor of the bank stock, and for which stock he had loaned to Sayre $200.00 in cash and delivered to him certain live stock in the year 1917. There was no evidence before the commissioner to show release of the trust property, or payment of the various notes, or the check. We find nothing in the record which controverts

the evidence of Bode, or which is not entirely consistent with his claims of indebtedness, except the evidence of G. W. Roberts, a creditor of the estate, wherein he undertakes to detail a conversation with Bode in Robert's store room after Sayre's death and in which he says that Bode said he held title to the Huntington property and wound up the remark by saying that he did not have a dollar against it; and the statement of the administrator that Bode had told him that he, Bode, would make a deed for the property to any one he designated, that he had nothing in the property, and simply held it in trust for Sayre. These alleged conversations are entirely inconsistent with the evidence of Bode, his sworn answer and his conduct, all buttressed by the notes and protested check, given eight days before Sayre's death. The mortgage on the property (admitted to be such), the existence of the notes and check, the possessession of the stock certificate with memorandum attached thereto, were sufficient proof of the indebtedness claimed, and the burden was upon the plaintiff to show payment. He offered nothing to this end. Apparently the administrator had no evidence to offer showing payment, and it seems that the attorney for the bonding company assumed to conduct the cross-examination of Bode for the purpose of showing payments or credits to which the estate was entitled. After he had testified, counsel for the administrator, not finding anything of benefit in the testimony, objected to his evidence as incompetent. It is now insisted that Bode's evidence did not establish his claims. If the lengthy and searching cross-examination of Bode is stricken out in its entirety, we do not think the plaintiff has carried the burden of proof to overcome the prima facie case made by appellant. It will be remembered that Bode's deed was unconditional and on its face conveyed to him absolute title; his possession of the shares of stock created presumptive ownership; and hence it may be that his cross-examination evidence, even if it had been given in chief, being adverse to his absolute interest in the properties, would be admissible under the...