Trader v. Jarvis , 1883 W. Va. LEXIS 11 ( 1883 )

Snyder, Judas:

The proof shows that the appellant was under twenty-one years of 'age at the time said title-bond for said lots was assigned to him and Alfred Trader and that he did not become twenty-one years of age until August 22, 1862, after the agreement of February 16, 1860, for the sale of said property to the defendant, Jarvis. The important question then is, ■whether or not the plaintiff by said assignment acquired any beneficial interest in said property of which he could not be divested without a conveyance from him ? For it is conceded that if such was the fact the appellant did not by said agreement of February 16, 1860, divest himself of the title to said property. If his title was unconditional no act of his during his minority could divest or transfer it.

The trust-deed of January 19, 1859, from appellant and Samuel and Alfred Trader to secure the Shields debt expressly states that said assignment was made “to indemnify and save harmless said Alfred and George A. as such sureties,” that is, as sureties of the said Samuel Trader on said Shields note. It is true, the appellant being a minor when he executed said trust-deed, he is not bound by this statement in it, but the said Samuel, who also executed it, is concluded and estopped by said statement and he will not be heard to contradict it. His evidence, then, so far as it attempts to give a different and inconsistent version of the object and effect of said assignment, must be wholly disregarded. Isaac A. Morris, the attesting witness to said assignment, who testifies that he wrote the Shields note, which was signed by Samuel Trader with Alfred and appellant as his sureties, states in his deposition, that immediately after the execution of said note the said Samuel assigned said title-bond to Alfred and appellant in his presence to secure them as his sureties on said note and for no other consideration or purpose, and no mention was made of any sale or debt due from said Samuel to the appellant or Alfred who are the sons of said Samuel. Alfred testifies, that according to his recollection he and his brother never paid any money for said assignment, that they were acting in the matter as friends of their father and he never gave it much attention or felt any interest in it. The appellant testifies that he and his brother worked for their father and the assignment was made “to secure to us what he owed us so we would not lose the debt.” He also says, they gave their father a note for two thousand dollars and specifies some work done at different times for their father which he says satisfied the note, but the work thus specified was all done while appellant was under age and without any contract and therefore could not create any indebtedness against the father. Hall v. Finch, 29 Wis. 278; Stansbury v. Stansbury, 20 W. Va. 28. This is the substance of the direct testimony in respect to the purpose and consideration of said assignment. The evidence of the father, said Samuel, is not materially different from that of his sons, but for the reason before stated it cannot be regarded. It further appears, however, that neither Alfred nor appellant had any means or estate and that in fact no consideration was paid by either of them for said assignment. It is not satisfactorily shown that said title-bond was ever delivered to, or that it was at any time in the possession of, appellant or said Alfred. Appellant says, he thinks his brother took it to the clerk’s office, but tlie latter says lie has no recollection of ever having had it. It is certain, however, that at the time of the sale to Jarvis it was in the possession of the father and he then delivered it to Jarvis. It affirmatively appears that the father up to the time he made the sale to Jarvis had the absolute use and control of the property and neither appellant nor his brother, Alfred, ever had the possession of it or set. up any claim to it; and the said Alfred does not now claim to have any interest in it or the proceeds of the sale.

Viewing the whole transaction in the light of this evidence and the surrounding circumstances, it seems to me, that at the time of the sale to Jarvis, Samuel Trader, the father, was the real and actual owner of the. property, and that neither the appellant nor his brother ever had any title to or interest in it. If either of them had, at any time, any claim to the property it was merely by way óf an equitable mortgage to indemnify them against any loss they might sustain by reason of being sureties of their father on the said Shields note. The appellant, at the time said note was given, being a minor, was not legally bound by it, and so whether the said note was in fact satisfied or not he could never have sustained any loss by reason of his giving it. But in fact said note has been fully discharged. The very agreement which the appellant is now seeking to repudiate and avoid, provided for the payment of said note and the release of the makers. And under said agreement Jarvis has fully paid and discharged said note. The condition upon which said assignment was made to appellant, having been performed, the property at once re-vested in the assignor, the said Samuel Trader, and by his agreement and sale of February 16, 1860, passed to the appellee, Jarvis.

It is immaterial that said assignment is, on its face, unconditional. The law is well settled in this State and elsewhere, that a deed or other written instrument, though absolute on its face, may be shown by the surrounding circumstances and parol evidence, that it was intended by the parties as a mortgage or security. Lawrence v. DuBois, 16 W. Va. 443; Vangilder v. Hoffman, 22 Id. 1.

There is another consideration which tends greatly to confirm the conclusion reached in this cause. The appellant become of full age nearly seven years before he commenced this suit. His deposition was taken and he does not attempt to give any reason or excuse for this long delay. Delay in the assertion of a right, unless satisfactorily explained, even where it does not constitute a positive statutory bar, operates in equity as an evidence of assent, acquiescence or waiver— Pusey v. Gardner, 21 W. Va. 469; and especially is such the rule in suits to set aside transactions on account of fraud or infancy. A court of equity, which is never active in relief against stale demands, will always refuse relief where the party has slept upon his right and acquiesed for a great length of time. Nothing can call into activity this Court but conscience, good faith and reasonable diligence. Where these are wanting the Court is passive and does nothing. Laches and neglect are always discountenanced. Smith v. Clay, 2 Ambler 645; Doggett v. Helm, 17 Gratt. 96.

The said agreement of February 16, 1860, provides that the payments, therein set forth for the property, shall “be made by Jarvis upon the order of Alfred J. Trader and George A. Trader, or either of them, and not otherwise.” This direction, of course, has no reference to the payment of the Shields and JBloehcr debts, because the agreement expressly provided that Jarvis should pay these directly to said creditors. All the other payments seem to have been made by. Jarvis according to said direction except the jewelry in the box deposited with Samuel P. Kemble. This appears to be still on hand and undisposed of. The appellant by this clause of said agreement may have some interest in said box of jewelry, since it is to be paid on his order, though it does not declare that it shall bo paid to him or transfer any part of it • to him. I think, therefore, the circuit court, instead of dismissing the plaintiff’s bill absolutely should have done so without prejudice to the right of the plaintiff by any proper suit or proceeding to sue for and recover any interest he may have in said box of jewelry under said agreement of February 16, 1860. In that respect the said decree of the circuit court is now modified and corrected.

For the foregoing reasons I am of opinion that the decree of the circuit court of July 21, 1879, should be modified and corrected in the manner indicated, and as so modified and corrected should be affirmed with costs and damages to the appellee, Jarvis.

Modified AND Affirmed.