CHARLESTON.

#### Atkinson *v.*Plumb *et al.*

Submitted February 8, 1897.

Decided December 14, 1898.

1. *Equity*— Evidence—False *Evidence.*

The evidence of parties who attempt to impose on a court of equity by false statements, manufactured accounts, or like deceptive practices, should be rejected on the hearing of the cause, (p. 633).

Appeal from Circuit Court, Wood County.

Bill by W. F. Atkinson against D. S. Plumb and others. Decree for defendants, and plaintiff appeals.

*Reversed.*

James A. Hutchinson and W. E. McDougle, for appellant.

R. B. GRAHAM and Casto & Fleming, for appellees.

Dent, Judge :

The history of the case is as follows: Some time in the 79’s, D. S. Plumb, a mechanic, — a house painter and paper hanger, — with little capital, but lots of pluck, as it after-wards turned out, began business as a green grocer in a little old frame building down on Ann street, in the city of Parkersburg; his wife, Mary Jane Plumb, at about the same time running a restaurant, both working together for mutual benefit,. — not an uncommon occurrence for husband and wife; not a thing to arouse unwarranted suspicion or to create alarm. Being good Baptists, they made the *627acquaintance of the plaintiff, W. F. Atkinson, who was also a good Baptist, and regular attendant at church. Brother Atkinson was a notary public, a real estate agent, and money lender, and at one time was engaged with witness Piersol in running a tow show boat along the Mississippi river and its tributaries, — Piersol running the boat, and Atkinson furnishing the means. This latter is cautiously revealed on cross-examination, and is a matter that should have its due weight in this controversy. Church acquaintance ripened into a very warm friendship between the two parties, and through the advice of Brother Atkinson, Brother Plumb purchased a small stock of goods and groceries of one Stagg, who wanted to retire from business, situated on the corner of Market and Third streets. Brother Atkinson moved his safe and desk into Brother Plumb’s store, and the latter wentinto business on a much larger scale. To procure monejr or meet bills, notes were given to the bank, which, as Brother Plumb states, Brother Atkinson indorsed readily without the asking. The buid-ding in which the store was situated belonged to one Mum Jackson, but this probably had little effect on the transactions between the parties. Business was moving along prosperously, at least seemingly, when Brother Atkinson suggested to Brother and Sister Plumb that they should buy a home, and put it in the wife’s name. A suitable property, with the aid of Brother Atkinson, was found and purchased for one thousand one hundred and thirty dollars on credit, and to pay the purchase money, after some intermediate transactions, finally a loani was negotiated with the Traders’ Building Association and a deed of trust executed on the property to secure the same, originally one thousand two hundred dollars, now about equaling the market value of the property, at least exclusive of the improvements afterwards put upon it. This is the property now in controversy. At length Brother Plumb’s notes and bills began to mature rapidly, and he some times imbibed too freely and became prostrated. Brother Atkinson continued to sign notes for discount, until, becoming a little weak in the knees, and sister Plumb being in poor health, he induced her to make a will, giving- her property to Brother Plumb, that in case of her death he could be se*628cured as indorser of notes. Creditors becoming- importunate and threatening suit, Brother Atkinson’s faith gave way entirely and, becoming aroused and alarmed, he figured up Brother Plumb’s liabilities, and found them much larger than had entered into his dreams. He at once insisted on Brother Plumb confessing judgment to him for one thous- and five hundred and sixteen dollars and eighteen cents, as of July 8,1891, and fourteen dollars and ten cents. There being already a judgment in favor of Shattuck & Jackson, this latter straw broke the camel’s back, and the store was taken possession of and closed by a constable. A sale followed, and, although the services of the best auctioneer that could be found were procured, a stock of goods valued by Brother Plumb at two thousand one hundred dollars was sold out at about five hundred dollars. Hats that he had paid twelve dollars a dozen for were sold for twenty-five cents apiece, and fur caps costing fifteen dollars to eighteen dollars per dozen, at thirty-seven cents apiece. In Brother Plumb’s own language: “They were literally thrown away. They piled them up in heaps, and asked a man what he would give for them.” So, after the expenses of sale and prior execution were satisfied, nothing remained for Brother Atkinson, although his claim for rent, for which he was liable, and the judgment, amounting to about two thousand dollars. Brother Atkinson asked Brother Plumb to get his wife to give him a deed of trust on her property to secure him, as she had always promised that he should not lose anything. Brother Plumb suggested the matter to sister Plumb, and she was thunderstruck, and did not know what to make of it. After she recovered sufficiently, she said she would not give a deed of trust on her property if it was to her own father. Brother Atkinson thus brought roundly to a standstill, was also thunderstruck, and rushed off to consult James Hutchinson, Esq., a learned attorney at law, since deceased, who, having listened to the tale of woe poured into his listening ears, advise an appeal to the courts, where justice is unerringly administered. A bill was filed, and the Plumbs summoned, and brotherly kindness no longer existed between the parties. The defendants employed another prominent and equally learned, attorney at law, to *629aid them in frustrating- the unconscionable schemes of Atkinson, to deprive Mrs. Plumb of the little home she had so long been in securing. Thus ensued the battle of legal giants. Day after day it was waged with ceaseless vigor and tireless energy. Witness after witness was placed on the witness stand, and examined, cross-examined, reexamined, and re-cross-examined, etc., amid the objections, and cross-objections, criminations and re-criminations, and masterly debates of the learned counsel, duly interpolated in the depositions, and reported by the patient stenographer, until a large volume, consisting of four hundred and eighty pages, at a cost for transcrit of one hundred and sixty-two dollars, and printing, three hundred and sixty-five dollars and thirty-two cents, — about the size of Wat-terson’s History of the Spanish War, — is produced of the story, complete in one volume, of the Plumb family in relation to its dealings with W. F. Atkinson, for the consideration, information, and assistance of the court in determining which of the parties is the true aggressor against the other, that equal justice may be meted out without fear, favor, or affection. Mrs. Plumb, in her deposition, is made to detail her history, beginning way back in the ’50’s, when she was an unwedded maiden, in the sweet ’teens, teaching her first school, in the state of New York, earning forty dollars per month for four months in the year. At this time she first met Plumb, who was in the blush of early manhood, engaged in business as clerk in a grocery store. They were mutually attracted towards each other, — a thing not of rare occurence. An attachment followed, which in 1857, was consummated by marriage. She then immediately began to keep an account against him, and loan him money, to be some time afterwards repaid to her in a home. She kept this up all throughout her married life, and throughout their various changes of location and fortune. The money so loaned was her early school money, and sums she had received from her father and sister, and earnings on her farm. Although her source of income was inconsiderable, according to Plumb’s statement, her pocket book, like the widow’s cruse of oil, was never empty. She always had money ready to loan him, and he was always a willing borrower. *630Sometime after marriage they moved to Indianapolis, then to Chicago, and just before the great fire they moved to Wood County, and resided with her brother, John S. Meade. In 1874 she bought a farm for one thousand dollars, paid the first payment on it, aud in about five years surrendered it for the unpaid purchase money. She continued to rent it until they moved to Parkersburg, when her husband says she saved over one thousand dollars clear out of corn, wheat, butter, eggs, chickens, and cattle, which she loaned to him at various times. She could have paid for the farm, but concluded to give it up, and moved to Par-kersburg, where she had succeed in starting him in business. She exhibited a little book containing this account, with which she continually refreshed her memory, and which she says she began to keep ’way back in 1857. When, however, she was cross-examined about this book rather severely by Mr. Hutchinson, she became quite sick, and her statements became rather wild and wandering. Her counsel insisted that she was too ill to go on with the examination, and that he had a certificate of a physician to that effect that he had not intended to show, and of which opposing counsel was aware. After some further altercation between counsel, the taking of her evidence was adjourned until another day. The witness was finally compelled to admit that the first statements about the book and the account contained therein were untrue, caused by her failure of memory, loss of sight, and ill health. It clearly appears that this account in this book was fixed up by the defendants after the institution of this suit. A part of the early account is as follows, beginninga few days after marriage.

> Olean, N. York, Oct. 8, 1857.

> M. J. Plumb,

> *In acct. with*D. S. Plumb.

> D. S. Plumb, Du.

> 1857.

> Oct, 8, To cash.$ 75 00

> “ 18 “ . 22 00

> Nov. 1. “ “ SO 00

> Dec. 12. “ “ 5 00

> “ 20. “ “ . 10 00

> *631Deo. 27. To cash . 10 00 1858.

> Jan 12. “ “ . 19 00 1859.

> Aug-. 18 “ “ 95 00

> Jan. 2. “ “ [ XXX XX XXXX ].

> Aug. 6. “ “ [ XXX XX XXXX ].

> Feh. 4. “ “ 44 00

> June 10. “ “ 35 00 1865.

> July 13. “ “ [ XXX XX XXXX ].

> Apr. “ 2 00 “ 5. “ “ 5 00

> Oct. 29. “ [ XXX XX XXXX ].

> Mar. 9. “ “ 28 40

> June 3. “ “ 75 00 1868.

> Jan. 6 “ “ 35 00

> Apr. 8. “ “ 25 00

> $1,010 40

> D. S. Plumb, Ck.

> -1857.

> Dec. 14. By cash.$ 9 00

> 1859.

> Sept. 9. “ “ 55 00

> 1863.

> Aug. *11*“ 100 00

> 1864

> Sept. 5. “ “ 22 SO

> 1865.

> Sept. 6. “ “ 35 00

> 1867.

> Aug 16. “ . 37 00

> 1866.

> Dec. 10. “ “ 85 00

> 1868.

> June 13. “ “ 20 00

> - $ 363 50 - Etc.

The sources from which she received most of her money are detailed as follows :

> Received for teaching school.$ 120 00

> 1856. [ XXX XX XXXX ].

> Jan. From Brother Dorm. 75 00

> *6321859.

> Sept From father.. . 100 00

> Oct. “ “ ■ . 20 00 1860.

> Apr. “ “ . 20 00 1861.

> June. “ “ . 25 00 1862.

> Sept. “ “• . SO 00 1863.

> July. “ “ .'. 5 00 1864.

> Oct. “ “ . 10 00 1865.

> Jan. “ “ . 20 00 1868.

> Dec. 19. Sister Maude . 350 00

> $ 915 00

The account is exhibited as carefully and accurately kept beginning- back in 1857, and ending with the bringing of this suit, and being balanced, shows Plumb, after all his payments on the property, repairs, etc., in debt to Mrs. Plumb, one thousand six hundred and one dollars and seventy-nine cents, — a little in excess of plaintiff’s judgment. This whole account, except.that she may have received the money, was undoubtedly manufactured for the purpose of .this suit by collusion between the defendants, and entirely discredits their testimony. There are many other things detailed by these defendants as to their money dealings with one another, especially the accuracy with which every dollar of account between them was carefully kept and accounted for, so different from the ordinary relations existing between husband and wife, when the wife imposes such implicit trust and confidence in her husband, as represented by them, that render their statements improbable, and deprive them of any weight in the determination of this cause. Casting their evidence aside, the other facts and circumstances show that whatever interest they, or either of them, have in the property in controversy, or in the improvements put thereon, came from the husband’s business. Atkinson was fully aware of what was going on all the time, and connived at it, but, as a brother in the church, he had no idea that those who were in such close communion with him would deceive or *633attempt to defraud one of the chosen band of Gideon, They might despoil the gentiles, but not the elect; and they undoubtedly humored him to this belief, for Sister Plumb was very careful to assure him that he should not suffer, when he was about to start to New Orleans to see about his show boat, But, while it was the hand of Esau, it was the voice of Jacob, and the mess of pottage did the rest. His confidence was abused under the guise of friendship, which blinded his eyes, and he was despoiled by those of his own household; and with the earnest plea for retribution he seeks justice against his despoilers. What we have we freely give unto him.

This case is governed in all respects by the principles settled by this Court in *Miller*v. *Cox,*38 W. Va. 748, (18 S. E. 960); *Brooks*v. *Applegate,*37 W. Va. 373, (16 S. E. 685), and other cases to which reference is made herein. All appellant can subject to his debt, however, is the equity of redemption in the property in controversy. The building association has a prior lien, which, at the commencement of this case, amounted to one thousand forty dollars and seventy-six cents, and the defendants had at that time ceased to pay anything thereon, so at the present time the debt must amount to about the full value of the property. The appellant’s costs, except expenses of sale, must yield in priority to the association lien, and therefore he may have had his troubles for his pains,- and this litigation prove abortive, except the satisfaction of personal triumph over a faithless religious brother, who, under the cloak of piety, won his love, only to shake his confidence in all professions of friendship. The suit appears to be a contest over a bag of wind, and this Court might affirm the decree without, probably, inflicting pecuniary loss or gain to any one; yet as a court of equity it should not hesitate to rebuke those who attempt to impose upon it by false statements, manufactured accounts, or other deceptive practices, for the purpose of deterring future, attempts of like nature. For these reasons, the decree complained of is reversed, and the cause remanded for further proceedings, according to the rules and principles governing courts of eq uity.

*Reversed,*