Shepherdstown register. [volume] (Shepherdstown, Va. [W. Va.]) 1849-1955, 1921-01-06
Decision in Interesting Case.

'eAt OF tne opinion OF the West
virginia Court of Appeals, reversing
me JEFFERSON Circuit Court in the case
vi D. ID. Gibson and II. c. Getzenian-
mer' administrators of w. A. Morgan
VS.: John o. Aglionby, has been re.
seived by members of the local bar
because of Its general interest, saws the
AoVoca.e, We append portions Of the
opinion.
Al the time OF the death Of plain
un intestate, William A. Morgan, in
feoruary. 1899, the. defendant Aglion-
by was indebted tQthe said Morgan in
the sum OF Sl,0S5.O0, and on the first
gay OF March of that year, in settle
ment of said Indebtedness, executed
10 the plaintiffs his three notes, one for
SSoO.OO, payable November |, 1899.
another for $500, payable November
Isoo, and the other for S435.OO, payable
october |, 1901, all bearing interest
from date. To secure the payment
OF these notes, on the 10th of May.
iS9e, he executed, acknowledged ani
dehvered a deed Of trust conveying to
the defendant A. S. Morgan, trustee.
TWO tracts OF land situate in Jefferson
county, one of which tracts was made
up OF two adjoining tracts, for which
reason they are sometimes referred to as
three farms. The deed of trust furth-
er transfers, sets over and assigns
unto the trustee the rents TO become
due and payable from the tenants OF
SAID Aglionby upon said farms, and
further authorizes and empowers the
SAID trustee, il he deems il necessary.
TO take possession Of the said farms
and lease the same out for the benefit
of the trust At the time OF the execu-
ton OF this paper there were upon the
farms three tenants to whom the de-
PENDANT Aglionby had heretofore rent
ed them, and Aglionby executed and
delivered direction in writing to two
OF these tenants TO pay over the rents
to the plaintiffs. AS to the third. il
appears that he subsequently made a
settlement with him himself, and re-
ceived his bond for the rent due, and
turned this bond over to the plaintiffs
The leases of these tenants expired on
the first OF April, 1900 The plaintiffs
collected from one of the tenants, who
was directed to pay the rent to them
the sum Of fifty dollars, and from the
other the sum Of twenty-five dollars
which was duly credited upon Aglion-
by's obligations. Aglionby made a
settlement with the third tenant and
took from him his bond for two hun
dred and seventy-five dollars, which
he turned over to the plaintiffs. Upon
this bond one hundred and fly dol
lars was collected and credited upon
said obligations. The obligator then
made an assignment for the benefit of
his creditors, and only the sum of |
about twenty-five dollars was realized |
upon the remainder of the bond, which |
was duly credited upon the indebted
ness. This was all of the money
actually received by the plaintiffs from |
the lease Of the farms. Aglonby |
however, from other sources, paid or
account of the Indebtedness represent
ed by said notes, on December IL,
1901, the sum of S229.65, and on April |
%, 1908, the further sum of $4,000 |
In 1908 Aglionby raised a contention |
as to the credit to which he was en-
titled because of the rents collected, or
which should have been collected, as |
he contended, from the farms, and the |
parties being unable to agree, SUBJ
nitted the matter to arbitration, but |
the agreement was not Carried out
Agile by's contention IS tina. the |
plaintiffs are liable for the rents which |
should have been collected from his
farms for three years. The deed of
trust does not place any such limita-
tion upon the powers of the trustee, but
he argues that because the last of the |
notes would be due within that time the
inference is that the power of the trus-
tee to take possession of the farms and
rent them would then end He insists
that the plaintiffs should credit him
with the amount of rents due from his
tenants nor the year ending April, 1900
and should be charged with the rental
value OF the farms for the two years
ri
done not only will the Indebtedness be
discharged, but he will have very much
overpaid the same. The plaintiffs in
sist upon the other hand that they are
not properly chargeable with any
moneys other than those actually re-
celved by them as above indicated; that
while the deed of trust assigned 10
he trustee for their benefit the rents
due, or 10 become due, from Aglion-
bys tenants, they were unable TO collect
more than they did collect because of
Aglionby's defaults or failures TO
properly assist them in the collection:
and that they are not liable for the
rental value of the farms for the 9th
er two years, for the reason that neith-
er they nor the trustee ever exercised
the power given by the deed of trus,
to take possession of them and lease
them, and their liability in this regard
would only exist in case they exer-
cised this power. The court below
sustained Aglionby's contention, and
cancelled the notes and directed the
execution of a release of the deed of
trust.
The Supreme Court entered a de-
cree finding that there is still due on
the debt secured by the deed of trust
the sum Of Sl,199.44, with interest
thereon from the 1st day OF March
1919, and that the deed of trust is