#### *Kyle’s Ex’or v. Kyle.

September, 1844,

Lewisburg'.

(Absent Allen and Baldwin, J.*)

1. Appellate Practice—Bill in Equity†—Double Function *214of‡—Case at Bar.—An Interlocutory decree is made in a cause, which afiects the interest of a person not regularly a party. This person then files his hill against the plaintiff in the first suit, stating his case and asking that the execution of the decree may he injoined. The plaintiff in the first suit files his answer in the second, hut the plaintiff in the second suit, is not made a party in the first, nor does he file an answer, hut the pleadings in the two suits present the ground of claim and defence on the part of hoth, and the two causes come on to he heard together, and a decree is made settling the rights of the parties. On appeal to this court—Held, That the hill in the second cause will he considered as serving the double purpose of an answer and cross hill in the first, and the court will proceed to consider and decide the cause upon its merits.

2. Same—Evidence—Partnership Books—Copy of Account from.—The hooks of a partnership being evidence in a controversy between partners and those claiming under them, an accountpurporting to be a copy from the books, exhibited with the answer of the executor of one of the partners, and not objected to, will be considered in this court as evidence.

In the year 1812, David and William Kyle were merchants and partners doing business in the town of Fincastle in the county of Botetourt. In that year, John M’lver executed to them his bond for 551 dollars 74J¿ cents, payable on demand, and conveyed to Andrew Hamilton a tract of land in that county, in trust, to secure the payment thereof.

The same firm also carried on business in the town of Bynchburg, and M’lver and Morris became indebted to them in 1388 dollars, and the partnership being dissolved in January 1825, M’lver and Morris, on the 3d of February, executed to the parties their bond for the amount of their debt, and in May 1825, they paid to *David Kyle in part discharge thereof the two sums of 88 dollars and 1000 dollars.

. Immediately on the dissolution of the partnership of David & William Kyle, David & Robert Kyle formed another partnership and carried on business in Bynchburg, and M’lver and Morris became indebted to them and executed to them a bond for 2876 dollars 17 cents, which fell due on the 5th of August 1825, and M’lver also became indebted to them and executed to them his bond for 2129 dollars 63 cents, payable on the 7th day of May 1826. To secure the amount due on these three last mentioned bonds, M’lver, on the 7th of November 1825, conveyed to Jesse B. Harrison the tract of land conveyed in the deed of 1812, to secure the first mentioned debt to David & William Kyle, besides other property in the county of Scott and in the state of Kentucky.

In 1827, Harrison the trustee proceeded to sell the property conveyed to him, when David & Robert Kyle became the purchasers of the whole thereof, and the Botetourt land was conveyed to them by deed dated the 22d of May 1827. By a deed dated the --day of December 1827, though not admitted to record till the 7th of April 1838, David Kyle conveyed his interest in this land to Robert Kyle, and in 1834, he took the oath for the relief of insolvent debtors.

In January 1837, William Kyle being dead, Hugh Campbell his executor instituted a suit in the superior court for the county of Botetourt, against M’lver and David Kyle, stating in his bill the execution of the bond to David & William Kyle in 1812, and the deed of trust to secure it, alleging that the debt was still due, and on the dissolution of the partnership of David & William Kyle, had been allotted to the latter, who had held the bond till his death, "when it came into complainant’s possession ; that Hamilton the trustee was dead; and calling upon M’lver to answer as to these facts, asked the court to appoint a commissioner to make sale of the trust property.

*M’Iver answered the bill, admitting that the debt was still due and unpaid, and concurring in the prayer for the appointment of a commissioner to sell the trust property. David Kyle did not answer, but was proceeded against as an absent defendant.

This bill was subsequently amended, and Hamilton’s heirs were made parties, and an order of publication was made against David Kyle, and also against Robert Kyle, though he was not made a party by the bill. The cause came on for hearing in September 1837, when the court made a decree appointing a commissioner to sell the trust property *215on a credit of six, twelve and eighteen months.

In the proceedings in this canse, no mention was made of the deed of trust to Harrison, or the sale under it. But in November 1837, before the commissioner had made a sale of the property, Robert Kyle filed his bill in the superior court of Botetourt, against Campbell and the commissioner, in which he stated the proceedings in the case ; and alleged that though there was an order of publication against him, that he had not been made a party to the suit, and living in the state of Missouri, he had heard nothing of the proceedings in the cause until after the decree; that he had been in possession of the property by his tenants ever since his purchase in 1827, of which Campbell the executor was informed; that though it was true the debts due to the firm of David & William Kyle were divided on the dissolution of the firm, the debt secured by the deed of 1812 was not divided, because, previous to the dissolution, it had been paid by M’lver by the application thereto of the proceeds of certain Irish linens which M’lver had sold to them as early as the year 1813, and which would appear by their books; and that there was a fraudulent combination between Campbell and M’lver to cheat and defraud the complainant by means of this pretended debt, which M’lver might have successfully resisted upon the ground of the staleness of the demand, but from hostility to the complainant he had combined with *Campbell to set it up. He asks, both on the ground that he had not been properly made a party to the suit of Kyle’s ex’or v. M’lver &c., and under the right secured to him as an absent defendant, by the act of assembly to come in within seven years and contest the decree, that the proceedings under the decree may be injoined, and that he may be secured in the enjoyment of his property. This bill was sworn to by David Kyle, who acted as the agent of Robert, and the injunction was granted.

Campbell answered the bill, denying the fraud, and insisting that the debt was due and unpaid; and he exhibited with his answer a copy of M’lver’s account, taken from the books of David & William Kyle, to shew that the Irish linens were not applied to the payment of the debt secured by the deed of trust. This account, which commenced in September 1815, and continued to December 1817, was made up of items of cash advanced to M’lver, to the amount of 672 dollars 77 cents, and credits February 4th, 1817, net proceeds of linen sold on commission, 535 dollars 62 cents, and M’lver’s account against Scott & Kyle, of 225 dollars 81 cents, which left a balance in his favour, of 88 dollars 66 cents, put to the credit of the trust deed.

The two causes came on together to be heard in September 1838, when the court set aside the interlocutory decree made in the first, and dismissed the bill, and perpetuated the injunction granted in the second suit, with costs. From this decree, Campbell the executor applied for and obtained an appeal to this court.

J. B. Baldwin and Hudson, for the appellant.

John T. Anderson, for the appellee.

*

Judge Allen decided tbe cause in tbe court below. Judge Baldwin bad been counsel in it.

†

Appellate Practice—Two Suits Heard Together— Identity of Subject=Matter—Appeal by Party to One Suit.—Tbe court, in discussing tbe question in Callaghan v. Circle, 12 W. Va. 568, as to whether identity of tbe subject-matter of controversy is essential to give them the right to review tbe whole decree, when an appeal is taken by a party to only one of the suits, said that the case of Anderson v. De Soer, 6 Gratt. 363, throws much light on this question. “This decision,” they said, “is based on a much broader ground than that of *Kyle v. Kyle, 1 Gratt. 526,*and seems to establish the position that if several suits are brought for the same subj ect-matter or to *214charge the same subj ect-matter with several debts or claims and these suits being in the same court are heard together and a decree is rendered disposing of the subj ect-matter, any of the plaintiffs in the several suits claiming the subject-matter or a right to subject it to the payment of his debt, has a right to take an appeal from such decree, though neither plaintiff was a defendant in the other suit; and that such appeal brings up the whole decree for revision. The case before us falls within this principle.”

Same—Same—Same—Same.—In Callaghan v. Circle, 12 W. Va. 567, it is said: “The cases of *Kyle v. Kyle, 1 Gratt. 526,*and Hill v. Proctor, 10 W. Va. 59, show that there are cases in which an appeal may be taken from a decree entered in two cases which have been heard together, by a party to one of the suits, though he was no party to the other suit, and that on such an appeal in some cases, the whole of the decree is properly before this court for review. But in these cases the subject-matter of controversy was the same in each of the suits.”

The principal case is cited in Hill v. Proctor, 10 W. Va. 75.

See *foot-note*to Anderson v. De Soer, 6 Gratt. 363.

‡

Bill Treated as Cross-Bill and Answer.—The principal case is cited in Gregg v. Sloan, 76 Va. 602; and Campbell v. White, 14 W. Va. 137. See *foot-note*to Mettert v. Hagan, 18 Gratt. 231.

See also, the principal case cited in Reid v. Stuart, 20 W. Va. 393, as to the liberality of the courts in regard to equity pleadings so far as mere forms are concerned.

STANARD, J.,

delivered the opinion of the court.

The first question is, were these cases in a condition to admit the final decree which was rendered by the *court below, by which the bill in the original suit was dismissed, and the injunction awarded in the second made perpetual. As the cases were heard at the instance of, and final decrees sought by, both parties, if there be any construction of the pleadings that could place the cases in the predicament to justify a decision binding on the rights of all, such construction should be made.

In the original case, the executor of William Kyle, holding the bond of M’lver, and claiming title thereto as a part of the partnership subject of D. & W. Kyle, that had been allotted to W. Kyle on the dissolution of that firm, and consequently claiming the benefit of the security that the deed of trust from the debtor afforded for the debt, sought the enforcement of that security. By the bill in that suit, Robert Kyle, who had purchased, as he alleges, the land embraced by the deed of trust, at a sale made under a subsequent deed of trust, to secure another debt, and who by his tenant was possessed of that land, was not made a party defendant, though in the progress of it, without amending the bill, he was treated as a defendant, and proceeded against as an absent one. In this predicament the case was, in September 1837, heard, Robert & David Kyle being treated as absent defendants, as to whom the order of publication had been duly executed; and on that hearing, a decree was rendered in favour of W. K. ’s executor against the debtor M’lver, for 561 dollars 74*^ cents, with interest from 12th of December 1812, and that the land should be sold to provide the means of paying this debt. Robert Kyle, thus proceeded against as an absent defendant, and that irregularly, and a decree being rendered injurious to his interests, and, as he contends, invading his rights, might, had he thought proper, have taken the remedy the statute affords to absent defendants against whom decrees may have been rendered, by entering an appearance and filing his answer, or on such appearance sought a correction of the irregularity in treating him, *and decreeing on his interest, as an absent defendant, though not named in the bill as a party. So far as he sought a decision of the case on the merits, his answer would have set forth his objections to the claim of the plaintiff, and his rights in the land, and on such answer, and the proofs that might be offered, a decision could have been made on the merits. He, however, instead of using this form in presenting his objections to the plaintiff’s *216claim, and his rights in the land, presented them in the form of a bill, by which he sought a supersedeas to suspend the execution of the interlocutory decree in the first suit. This second suit being matured, both cases were heard together for a decision on the merits of the pretensions of the parties respectively; and such decision was accordingly made by the decree, from which this appeal was taken. The cases being thus blended by the concurring action ”of the parties, the difficulty of proceeding to a decree in the first suit, in which Robert Kyle was not by the pleadings made a defendant, so as to act on his rights and interests as a defendant, becomes one of mere form. He has made himself a party to the litigation, and can have all the benefit that he could have obtained had he been named a defendant in the original bill, and then appeared and answered, under the privilege reserved to absent defendants by the statute, by giving to his bill the double function of an answer to the original bill, and a cross bill impeaching the title of the plaintiff, and the proceedings in the original suit. By so regarding the bill of R. Kyle, even the formal difficulty is obviated. I see no just objection to prevent the court from so regarding if, especially as it is a means by which the object of both parties, that of having a hearing and decision of the cases on the merits, is attained. Uniting the cases, and treating them substantially as one, in which the pleadings set out all the pretensions of the parties of claim or defence, and assigning to them the ’''function of claim or defence set forth in bill or answer, as they serve one or the other purpose, will attain every object of the most regular and formal pleadings; aifd this, I think, may properly be done.

The questions on the merits are, 1st. Ought the debt claimed as due from M’lver, to be considered as subsisting and unsatisfied? The negative is contended for on two grounds. 1st. That the lapse of time furnishes a presumption that the debt was paid. 2dly. That it was paid by the proceeds of liens that the creditors received from the debtor some 3rears after the date of the bond.

The presumption of payment is repelled by the distinct admission of the debtor that the debt has not been paid, but is still due. As a general proposition, the sufficiency of such admission to repel the presumption of payment is obvious and demonstrable, and would not be questioned if M'Iver alone was interested in the fact. It is objected that it should not avail here, because there are indications of collusion between the executor of W. Kyle and M'Iver, and that M'Iver was influenced by hostility to R. Kyle to make the admission. I do not discern in the record evidence of the alleged collusion. The only indication suggested is the fact, that M'Iver answered, making the admission before he was compelled to do so. That circumstance is too slight to warrant and support such a serious imputation. In answering he has done no more than he might have been compelled to do; and if in his answer he had evaded to state whether or no the debt was unpaid, and relied on the lapse of time as presumptive evidence of pa3rment, he could have been coerced to give a categ'orical answer to the allegation that it had not been paid, and such answer admitting the allegation, would have overruled the defence founded on the lapse of time. Baker v. Morris, 10 Leigh 284. Ostensibly the admission was against the interest of M'Iver; and though Robert *Kyle would not be bound by it, could he prove by other evidence that the payment was in fact made, the surmised hostility of M'Iver to him does not so far discredit the admission as to justify the court in treating it as a perjury, or wholly disregarding it. Discredit, however, is attempted to be cast on it, b3r the fact that it admits the debt remains wholly unpaid, whilst the account from the books of D. & W. Kyle, extracted and filed by Campbell the executor of William Kyle, shew that it is subject to a credit of 88 dollars 66 cents as of the 31st of December 1817. Now, on looking at that account, the credit of 88 dollars 66 cents does not arise from an3’ payment of M'Iver on account of the debt in question, but results from a credit to M'Iver of 225 dollars 81 cents, for a debt due to him from Scott & Kyle. Such a debt was not a payment of M'Iver in part of his bond to D. & W. K. It was not even a set-off, and only becomes a credit by the assent of W. Kyle or his executor, of which it does not appear that M'Iver was apprised. That credit, thus spontaneously allowed, casts a very slight if an3' shade on the credit to be given to M'Iver’s admission in his answer. But furthermore in this case, the reliance of Robert Kyle on the lapse of time as presumption is blended with the- allegation of a specific mode of payment; and in such case, the disproof of the specific mode of payment would much impair if not destroy the efficiency of the presumption from lapse of time, especially if such disproof shews the debt to be a subsisting one within twenty years before suit.

The specific mode of payment as alleged by Robert Kyle, is by the receipt of a parcel of linens from MTver; and this payment, he alleges, is shewn by the books of D. & W. Kyle. The executor of William Kyle exhibits with his answer an account as a fair transcript from the books of D. & W. K. in respect to these linens; and that shews,. that the linens were received and sold *by D. & W. Kyle for MTver on commission, and the whole proceeds thereof covered by advances made by D. & W. Kyle to MTver, those advances commencing in September 1815. This account, if it to be respected as evidence, entirely disproves the pretension, that the debt in-question was paid in the specific mode suggested by Robert Kyle. My opinion is, that it must be regarded as evidence. The books of D. & W. K. had been referred to *217by R. Kyle, as shewing the payment by the receipt and proceeds of the linens. The answer of W. Kyle’s executor exhibited the account as a copy from the books, and without any exception or objection of either party, the cases were heard on the bill, answers and exhibits. The books were evidence on this subject, and the copy being exhibited, and the cases heard among other things on the exhibits without objection, it was thereby conceded as evidence as far as the books could be so. By necessary implication it was taken as the substitute for the books, or a proved copy from them. It was regarded by the court below as evidence, as is evinced by the remarks of the judge of that court, commenting on this account, in his written opinion in the case.

This account being evidence, it, as before remarked, disproves the suggestion that the debt in question was in whole or in part paid by the proceeds of the linens. It corrects, and disproves other suggestions made by Robert Kyle in his bill, and bjr David Kyle his agent, by whom the affidavit of the truth of the bill was made. These suggestions are that the linens were received about the year 1813, and formed a credit against the debt in question, at the dissolution of the firm of D. & W. Kyle on the 1st of January 1825, and consequently refutes the pretension that at the dissolution the debt of M’lver, secured by the deed of trust, had been paid by the linens. The suggestion that the 88 dollars 66 cents by which that account is balanced, and that sum passed *to the credit of the deed of trust, may be the 88 dollars mentioned as received on account of the debt of M’lver and Morris contracted with D. & W. K. at Lynchburg, seems wholly unfounded. The balance 88 dollars 66 cents is the result of the spontaneous credit to M’lver with D. & W. Kyle for 225 dollars 81 cents due to him from Scott & Kyle, and is credited as of the 31st December 1817. The 88 dollars in part of M’lver and Morris’s debt was received by D. K. on the 25th of Majr in the year 1825, and that not for the debt of M’lver and Morris, secured by the deed of trust of November 1825, under which R. Kyle claims. That payment was made before that deed of trust was given, and further payment was also made to D. K. of 1000 dollars, in part of the debt of M’lver and Morris before the execution of the deed of November 1825, and the debt to D. & W. K. of M’lver and Morris of 362 dollars 6 cents mentioned in that deed, was the balance due D. & W. Kyle, after crediting the pajTments of 88 dollars and 1000 dollars made to D. K. in the year 1825.

On the whole, I think it satisfactorily appears that the debt in question is unpaid, and is subject to no credit but that of 88 dollars 66 cents spontaneously given in the account from the books of D. & W. K. exhibited with the answer of William Kyle’s executor.

The only question remaining is, ought this debt to be regarded as the property of William Kyle, or the property of D. Kyle, or the social and undivided property of D. & W. Kyle?

It is admitted by the bill of R. Kyle, which is verified by the oath of D. Kyle, that on the dissolution of the firm of D. & W. Kyle on the 1st of January 1825, the outstanding debts were divided between the partners, and the ground on which it is denied that W. Kyle did become entitled to the debt of M’lver is, that that debt was shewn by the books to be paid. The *falsehood of this suggestion has already been shewn. How the outstanding debts were divided, or what was the respective responsibilities of the partners to the firm at the time of the dissolution, is not in proof. We are not informed of the amounts respectively received by the partners, since the dissolution, of the outstanding debts due the firm. It does appear, however, that D. K. received in the year 1825, on account of the debt of M’lver and Morris, contracted at the Lynchburg store, the sums of 88 dollars and 1000 dollars, and it does not appear that W. Kyle received any of the outstanding debts. The significant fact, however, of the possession of M’lver’s bond by W. K. does appear, and if he had received that debt, it would be less than D. K. has received of the outstanding debts. The presumption that this debt became the property of William Kyle on the dissolution, arising from his possession, and, as far as appears, unquestioned possession of the bond, is corroborated by the falsehood of the suggestion of D. Kyle that that debt had been paid, and that the books afforded the proof of that fact, by the absence of anj' proof or even suggestion, that his receipt of that debt would give him an undue share of the partnership effects, by the forbearance of D. K. to set up any claim to that debt during the life of William Kyle, and by the ascertained receipt by D. KjTe of the partnership debts to a larger amount than this debt. Under all the circumstances of this case, the prima facie evidence that the possession of the bond affords, of title in the possessor, so corroborated, justifies the conclusion that as between D. & W. K. the title to this debt was in W. Kyle, and it ought not to be regarded as the propert3r of D. Kyle, or the social property of D. & W. Kyle.

The decree of the court was as follows:

This day came the parties by their counsel, and the court having maturely considered the transcripts of the *records of the said decrees and the arguments of counsel, is of opinion that the debt of M’lver, secured by the deed of trust of the 10th of September 1812, is a subsisting debt unpaid, and subject to no other credit than the credit of 88 dollars 66 cents as of the 31st December 1817, shewn by the extract from the books of David & William Kyle, Richmond, exhibited with the answer of Campbell, executor of William Kyle, to the bill of Robert Kyle, and re-*218suiting from the credit given in that account to M’lver of 225 dollars 81 cents, due to him from Scott & Kyle; and that it is a charge under the said deed of trust on the land therein mentioned and conveyed.

The court is further of opinion, that William Kyle was, and his executor is, entitled to the said debt of M’lver, to the exclusion of David Kyle, claiming it either as surviving partner of David & William Kyle, or as the social property of David & William Kyle, and that the decree of the court below on the original and amended bills of William Kyle’s executor, in the first suit, and perpetuating the injunction awarded to Robert Kyle in the second suit, to the execution of the interlocutory decree in the first suit, is erroneous. It is, therefore, adjudged, ordered and decreed, that the said decree be reversed and annulled, and that the appellee Robert Kyle pay to the appellant the costs by him expended in the prosecution of his appeal in this court; and this court, proceeding to render such decree as the court below ought to have rendered, and considering the bill in the second suit as serving the functions of an answer of Robert Kyle in the first suit, and as a cross bill, doth adjudge, order and decree, that the injunction awarded in the second suit be discharged, as no longer of any use or effect. That the' interlocutory decree in the first suit of the 13th of September 1837, be' set aside and annulled; and as a decree in both suits, (regarding the second as aforesaid as a cross bill,) the court doth ^further adjudge, order and decree, that Hugh Campbell, the executor of William Kyle deceased, (the plaintiff in the first suit,) recover of the defendant M’lver the sum of 561 dollars 74)£ cents, with interest thereon from the 10th of December 1812, till paid, subject, however, to a credit of 88 dollars 66 cents, as of the 31st December 1817, and that if the said sum of money and interest, subject to the said credit, should not be paid before the lapse of sixty days from the entry of this decree in the court below, that the sheriff of the county of Botetourt, or such other commissioner or commissioners as the court below may appoint for that purpose, do expose to sale the land in the said deed of trust of the 10th of September 1812 mentioned, after first advertising the time and place of sale in some newspaper published in the town of Fincastle for four weeks, and posting the advertisement of the sale at the front door of Botetourt courthouse, on some court day previous to the day of sale, upon a credit of six, twelve and eighteen months, taking bonds from the purchaser with one or more sureties, and retaining the title as a security for the purchase money, and that the commissioner or commissioners who may act in the premises, make report of his or their proceedings to the court, in order to a final decree. Which is ordered to be certified to the said circuit superior court of law and chancery for the county of Botetourt.