McConaughy v. Camden

Moore, PRESIDENT, announced the opinion of the Court. Before treating of the assignment of errors made by the appellant, it is proper to consider, whether the court erred to the prejudice of the defendants, J. N. Camden & Co., by overruling their demurrer. The objection to the bill as raised by the demurrer is, that it was multifarious. It must be borne — 168 — in mind that the gravamen of the bill is fraud and mistake, of which subjects equity always takes jurisdiction ; and as the bill shows upon its face, that it is seeking relief against certain fraudulent acts, affecting all the parties, by having interwoven the individual and partnership affairs of McConaiighy, with the partnership affairs of J. N. Camden & Co., McCon-aughy, Jones & Camden, and the bank, and Camden individually, it is plain that no proper and full settlement or disentanglement could be had without the presence of all of them before the court, and for that purpose a court of equity afforded a proper forum; and the bill in thus presenting such a state of facts, is not demurrable on the ground of multifariousness. Even if it should occur upon the merits of the case, that the bill did in fact include individual matters not pertinent to the true issues in the cause, I apprehend such impertinent matters might be stricken therefrom, or totally ignored by the court, without debarring equitable cognizance of the other matters pertinent to the case.—Brinkerhoff v. Brown, 6 Johns. Ch. 139; Code 1868, ch. 125, §29. It is true that, “though a bill be multifarious, and but vaguely states the matter on which relief is sought, consent by the parties to an interlocutory decree that the cause be referred to a commissioner ,to audit, state and settle an account of the amount due each of the plaintiffs, is a waiver of any' objection to such irregularity, and a demurrer thereafter for such cause is properly disallowed,” as decided in Bittenhouse v. Harman, 7 W. Va. 380, yet, I do not think, that where a party consents that his demurrer may be acted upon at a future time, and permits the court, before it acts upon the demurrer, without objection, to render a decree of reference of the cause to a commissioner, acting upon the other papers and pleadings in the cause, that thereby he has waived the benefit of his demurrer. The case in that respect is very different from the case of Bittenhouse v. Harman; there the demurrer was not tendered until after the verdict, but here it was tendered and filed before the order of reference, but having been lost, time was given to restore it, but not permitted to delay the case. Whilst the practice is not a desirable one, and is irregular, yet I cannot consider it equivalent to a waiver. The first, second and third assignments of error, made by — 169 — the appellant, are in reference to the filing of the plea of the statute of limitations, by J. N. Camden. Chapter 125 § 53, Code, 1868, says: “At anytime before final judgment or decree, a defendant may file a plea or answer, but if the same be not filed in due time, an action or suit shall not be thereby continued, unless the court shall for good cause so order.” The plea was filed at a court held December 17, 1874; the interlocutory decree referring the cause to the commissioner had been made July 14,1874; the report of the commissioner bears date November 12, 1874, and was filed in the cause December 5, 1874, and the defendants filed their exceptions to the report, December 17, 1874, at the same time that Camden filed said plea. The final decree was not entered until January 8, 1877. The plea was filed in ample time to be considered by the court in connection with the commissioner’s report, and to have the force it was entitled to, in case fraud should not be established by the proofs. It was filed long anterior to the final judgment, and could not have tended to a continuance or delay of the cause; nor does it belong to that class of cases to which the doctrine laid down in Elliott v. Hutchinson, 8 W. Va. 452, is applicable. Although the gravamen of the bill’s allegations be fraud, yet as it prays a settlement of the partnership accounts and the defendant in his answer denies the charge of fraud, putting the complainant to proof, it is proper for him to meet a stale demand, if such it be, with the plea of the statute of limitations, if he wishes to do so; and it is sometimes just and proper to do so, because a complainant may by his own laches suffer such a lapse of time as to prevent the defendant from disproving the allegations of the bill in conseqence of the death of witneses, loss of papers, defect of memory, &c. He who seeks equity must do equity, and nothing should be more obnoxious to a court, of equity than laches of the complainants. If he has had ample opportunity to know the truth of the case, and that the defendant has made a mistake, or made, what seems to him, an unfair settlement, it is his boundenduty to declare it within a reasonable time, and if he does not declare it in due time, so as to enable the defendant to explain and correct it, but rests upon his oars for years, keeping it a secret within his own breast, it seems to me but right that equity should interpose the bar, which a — 170 — wise rule of law gives for the prevention of frauds and for repose from vexatious litigation. Therefore, where parties have made a final settlement of all matters between them, it will not be opened by a court of equity, unless one of the parties was guilty of fraud, or a mutual mistake was made by them, and a suit for its correction brought promptly by one of the parties on the discovery of the mistake. To meet the other assignments of error, it is not necessary to take up time in the consideration of each separately, because as the gravamen of the bill is fraud and mistake, a consideration of the case upon its merits satisfies my mind that the decree complained of was in the main correct, and that the assignment of errors was ill-advised. Wm. McConaughy introduced himself as a witness, and substantially testified, in chief, in the language of the allegations of his bill, but upon cross-examination and re-examination he is indefinite, confused and uncertain, to such an extent, indeed, as to so weaken his case in the eye of the court as to justify it in dissolving the injunction and dismissing the bill, if his testimony alone was taken. Camden answered the bill, positively denying or explaining the material allegations of the bill, and by his own testimony at least neutralizes the testimony of the complainant and substantiates by vouchers and exhibits his own. Jones’s testimony is of similar intent and effect as McConaughy’s, but is more of the argumentative style than is generally sanctioned in depositions. N. T. McConaughy, son of complainant testified, at great length twice, the last time without an order of the court for re-taking his deposition, and to a great extent gives oral evidence to prove the contents of books that are in his possession and of writings, without producing them, as the rule of evidence requires, as the best evidence, or accounting for their non-production. The defendants properly excepted to his deposition in that respect. But all that is immaterial in the view that I take of this case. Camden claims that all of the stipulations' and understandings of the partnership were embraced in the written agreement of June 4,1866, filed as exhibit “Q,” with Van Winkle’s deposition; which, together with the assignment, &c. thereon, dated January 10, 1867, is as follows. — 171 — “This contract, made this 4th June, 1866, between Vm, Mc-Conaughy and John Jones, of the first part, and J. N. Camden, of the second part, witnesseth: “That the said McConaughy & Jones have this day sold to said Camden the one undivided sixth part of all 'their oil property at Burning Springs, except as hereinafter stated, the said interest consisting of nine leases obtained from the Baltimore and Burning Springs Oil Co., viz : Lot No. 208, upon which is situated the largest Jones flowing well; also lots Nos. 130, 178, 190, 214, 220, 194, 76 and also the half of 224, and the whole of No. —, known as the White leases; also 204 obtained from Conley; also 119 and No. —, known as the Folsom lease; also one sixth interest in No. 52, with engines and appurtenances. It being the object and intention of the parties to this contract to transfer to said Camden a clear one sixth interest in all their oil leases and oil business at Burning Springs, to date from the time the flowiug well was struck on said lot 208, the said Camden to have his interest free from all expense and liabilities up to that time, and also to be entitled to one sixth interest in all engines, fixtures, tanks, tools, and their appurtenances on hand belonging to the oil business, as well as all the product from said flowing well, but if is understood that the said Camden is to pay one sixth of all the expenses incurred or purchases of material made since the date at which said flowing well was struck. And it is further understood that the flowing well on lot No. 118, together with its appurtenances, and the product therefrom is excepted from and not included in this contract. In consideration whereof, the said Camden pays the sum of two thousand dollars in cash, and binds himself to have transferred to the said McConaughy & Jones two hundred and fifty shares of stock in the Parkers-burg Gas Company, the capital stock of the said company being in shares of fifty dollars each, making in the aggregate the sum of fourteen thousand dollars as aforesaid. “Witness the following signatures and seals. “Vm. McCÓNaughy, [seal.] “JOHN JONES, [SEAL.] “J. N. CamdeN. [seal.] “Know all men by these presents,. That I, J. N. Camden, of the city of Parkersburg, State of West Virginia, in considera — 172 — tion of the premises and the sum of five dollars in hand paid, the receipt whereof is hereby acknowledged, have assigned and by these presents do assign unto William McConaughy and John Jones, of the same place, all my right, title and interest in ánd to the within instrument of writing, and every clause, article or thing therein contained; and I hereby constitute the said McConaughy & Jones my attorneys, but to their own use, to take all legal measures which may be proper for the complete recovery and enjoyment of the assigned premises, with power of substitution : and the said consideration agreed to be paid to the said McConaughy & Jones by the within contract is hereby acknowledged in full. “Witness the following signatures and seals this 10th day of January, A, D. 1867. “J. N. Camden, [seal.] “Wm. McConaughy, [seal.] “John Jones. [seal.] “State oe West Virginia, “ Wood county, ss.: “I, W. W. Van Winkle, a notary public for the county of Wood, State of West Virginia, do certify that J. N. Camden, Wm. McConaughy and John Jones, whose names are signed to the above writing, bearing date on the 10th day of January, A. D. 1867, have severally acknowledged the same before me in my county aforesaid. “Given under my hand this 11th day of January, 1867. “W. W. Van Winkle, “Notary Public The deposition of Van Winkle, referred to, being right to the point, as I understand this case, I give it in full: “ 1st. Question — State whether you were present at the dissolution of the firm of McConaughy, Jones & Camden, and whether you drew the agreement of which exhibit “ H” purports’to be a copy ; and if so, where is the original? And state all you know about the terms of the dissolution. “Answer — I was present at the dissolution on the 10th day of January, 1867, when the contract, of which exhibit “ H ” is a copy, was drawn. I drew the agreement and made the copy filed as exhibit “ H.” The original is in my possession and was left with me by the parties to the contract to be kept. — 173 — I have compared the copy filed with the original, and find it to be correct. We were employed one whole day and part of the night and part of next day in the negotiations relating to the dissolution. And I think the contract, a copy of which is marked “ H,” embodies the terms that were then and there agreed upon. It was intended by the parties to be a full and final settlement of all things pertaining to the partnership, except as to the oil which is excepted in the agreement. ' “2d Question — Was that contract read over and its terms canvassed and understood by all the parties at the time it was executed, and was anything said about any specific debts mentioned and referred to in that paper ? “Answer — My recollection is that it was read over, its terms canvassed, and I think, understood by the parties. I don’t recollect anything being said about any of the debts except the draft drawn on Bowen & Mercer. In making up the specific debts to be paid by Mr. Camden it was claimed by either Jones or McConaughy, or both, that the Bowen & Mercer debt had been paid, or that it was a private debt of Mr. Camden’s and should not go into this contract. It was finally understood and agreed to be a debt of the firm and was put in this contract to be paid by Mr. Camden. “3d Question — Was there á deed of trust executed by Mc-Conaughy & Jones to secure J. N. Camden in the payment of the firm debts ? “ Answer — There was a deed of trust executed to me as trustee. “4th Question — The debts named in exhibit “H” to be paid by J. N. Camden, amounted to $22,500.00: the amount secured.by the deed of trust was only $18,500.00. Can you explain why the amount agreed to be paid J. N. Camden was less than he agreed to pay? “ Answer — I don’t remember the reason of making the deduction ; but I do remember thatthere was a claim made, and Camden consented to allow it, making a remark that be would take the $18,500.00 in order to have it settled. “'5th Question — In exhibit “H” it was provided that J. N. Camden was to render a statement of oil within ten days. What understanding was there had at the time to refer the — 174 — books to'Col. Atkinson to make the statement instead of having it made by Camden? “ Answer: — Either at the time, or shortly afterwards, prefer-erence was expressed to have the statement made by an accountant; and Hoffman Atkinson was selected to make the statement. “6th Question — Examine exhibit ‘No. 5/ filed with J. N* Camden’s answer, and say whether it is in Hoffman Atkinson’s hand-write and where he now is? “Answer — It is in his hand-writing, except memorandum across the face; and the signature, I take to be his. He has been in Japan the part of two or three years. His father informed me about ten days ago that he was still there. “7th Question — Have you the contract of purchase of June 4, 1866, by J. N. Camden of his interest from McConaughy & Jones, and the assignment of Camden’s interest back to them ? If so, please produce it. “Answer — I have a contract in my possession which I here produce and file marked exhibit “Q.” “W. W. VAN WINKLE.” Exhibit “H,” referred to in Yan Winkle’s deposition and filed with the bill of complainant, is as follows: “This agreement, made this tenth day of January, 1867, between William McConaughy and John Jones, of the first part, and Johnson N. Camden, of the second part: “ Whereas, by .the terms and conditions of a certain contract, bearing date on the - fourth day of June, 1866, wherein the said McConaughy and Jones sold to said Camden an interest in certain leases on lots therein numbered and ■ specified, amounting to one sixth part thereof, and reference being had thereto will more fully appear; and “ Whereas, it. was. the object and intention to transfér to the said Camden an interest, amounting to one-sixth in all of the leases therein mentioned, and in all their business at Burning Springs, and also entitle him to the like interest in all engines, fixtures, tanks, tools and other appurtenances; and “ Whereas, it has been mutually agreed between ihe said William McConaughy and John Jones and J. N. Cajmden to dissolve the connection existing by force of the said Contract; and l — 175 — “Whereas, it appears that the co-partnership created by the said contract stands indebted to sundry persons in the sum of twenty-two thousand five hundred dollars, in the manner folr lowing, viz: a debt to Solomon Prager for the sum of $5,500.00; a draft drawn on Bowen and Mercer of Baltimore for the sum of $5,500.00; a note in the Exchange Bank, at Weston, W. Va., tor the sum of $4,000.00; one other note in the Merchants’National Bank of Wheeling for the sum of $5,000.00; a balance due the First National Bank of Parkersburg, for overdrawn account, after deducting the cost of oil-yard and its appurtenances, and seven hundred barrels of oil sold to J. N. Camden & Co., amounting to the sum of $1,500.00; and a note to James Montgomery, superintendent, for the sum of $.1,000.00 : Now these presents, witnesses, and it is truly covenanted and agreed, in consideration of the premises, that the said co-partnership and all dealings and transactions relative thereto, shall, from the day of the date thereof, cease and determine, and that the terms and conditions of the said contract shall from thenceforth be absolutelynull and void ; and in consideration that the said William McConaughy and John Jones will furnish the said J.N. Camden three thousand barrels of petroleum or rock oil of forty gallons each, in the manner following, to-wit: one thousand barrels in sixty days from the date hereof; one other lot of one thousand barrels within four months from the date hereof; anda third lot of one thousand barrels within six months from the date hereof, for all of which the said Camden agrees to pay ten cents per gallon when delivered by the said McConaughy and Jones to him at Parkersburg, but it is-understood that in the event more than the specified number of barrels is delivered on the appointed day, then the said Camden is to pay cash at the then market price per gallon, for all the oil in excess of said quantity delivered to him ; and if the said McConaughy and Jones shall further deliver to the said Camden at Parkersburg a certain other number of barrels of oil of forty gallons each, in quantities of six hundred and fifty barrels each, respective]y’in eight, ten and twelve months from the date hereof, then the said Camden shall pay, and he hereby agrees to pay, the cash market price per gallon whatever it may be on the day of delivery. It is understood that the said McConaughy and Jones shall have the option of deliv — 176 — ering the oil agreed to be delivered in greater quantities than herein specified on the appointed days, and at any time prior .thereto; the said Camden giving the said McConaughy and Jones cash or a credit for such excess, whichever they may elect. But it is jxrovided^ always, audit is hereby agreed, that all the oil to be delivered to be transported in boats from Burning Springs to Parkersburg, and in case the navigation of the Little Kanawha river shall be impeded or obstructed by ice, or rendered impossible of navigation on account of low water, the said McConaughy and Jones are to be allowed such additional time for the delivery of the specified quantities of oil as is required to render the said river in a navigable and boatable condition. The said J. N. Camden hereby covenants and agrees for himself and personal representatives to assume all liability for the debts hereinbefore specified, and to defray, pay off and cancel the Same whenever they shall respectively become due and payable, and such as are already due and payable; and to secure the said McConaughy and Jones against all loss or damage by reason of the signing or endorsements already made in the co-partnership name to and on any of the notes and drafts mentioned in the foregoing schedule, and to save and keep harmless and indemnified the said McConaughy and Jones, their and each of their executors and administrators, against all and every persons whatsoever to whom they are indebted by reason of the said co-partnership signatures and endorsements above referred to, and of and from all actions, suits, costs, damages, charges, judgments, executions and demands whatsoever which shall arise or come [against them, the said McConaughy and Jones, by reason thereof; and further, that in consideration that the said J.N. Camden gives unto the said McConaughy and Jones all his right, title and interest in and to the leases and co-partnership goods owned by him by virtue of the contract hereinbefore referred to, and the interest he has in the leases and co-partnership goods on the Jones and Dee vers’ farm, including his undivided one fourth interest in lot No. 52, owned jointly with John Jones, and executes to the said McCon-aughy and Jones a sufficient deed of assignment, with relinquishment of dower for all of the property above mentioned, and gives the said McConaughy and Jones all the oil in bar177 reís and tanks and now produced or producing at Burning Springs, then the said MeConaughy and Jones, for themselves, their executors and administrators, agree to pay all the outstanding debts of the said co-partnership not embraced in the foregoing schedule"except the balance due on the cost of oil yard and the two thirds of the cost of the ground occupied by the same ; and for the consideration aforesaid the said J. N, Camden agrees to receive and receipt for all oil when delivered to him at Parkersburg, in whatever quantities and at any time, which the said MeConaughy and Jones may buy at Burning Springs or elsewhere, and to accept all orders for money to pay for the same at its cost price at the wells, when the said oil is delivered at Parkersburg, and all money in excess of the buying and the market price on the day of delivery shall be set by the said Camden as a credit on the account of the said MeConaughy and Jones ; and the said Camden, for the consideration aforesaid, further agrees to furnish the said MeConaughy and Jones a detailed statement of all the oil received on account of the said co-partnership, and how and in what manner the proceeds arising from the sale thereof were applied, accompanied by the vouchers for such applications, and hereby binds himself, his executors and administrators to make good any discrepancy between the said sales and applications to the said MeConaughy and Jones, the said statement to be rendered within ten days from the date hereof; and the said MeConaughy and Jones arc to collect and receipt for and retain in their own right all claims which are now due, and owing to the said co-partnership ; and it is understood that the terms and conditions of this agreement when performed are to be the dual settlement of all of the accounts of the said co-partnership between the parties thereto, without any reference whatever to the books of said co-partnership, the object of this contract being to make a settlement in gross, on the terms that the said Camden paying the debts herein enumerated to be paid by him, and the said MeCon-aughy and Jones assuming and paying all other outstanding liabilities against the said co-partnership, with the exceptions herein mentioned. — 178 — “Witness the following signatures and seals: “Wm. McConaughy, [seal.] “John Jokes, [seal.] “J. N. Camden, [seal.] “State of West Virginia, “Wood County; “l, W. W. Van Winkle, a notary public for the county of Wood, and State of West Virginia, do hereby certify that Wm. McConoughy, John Jones and J. N. Camden, whose names are signed to the writing hereto annexed, bearing date on the 10th day of January, A. D. 1867, have severally acknowledged the same before me in my said county. Witness my hand this lltli day of January, 1867. “W. W. Van Winkle, “Notary Public.” Exhibit number “5,” referred to in the aforesaid deposition, as an exhibit with Camden’s answer, is as follows : “Parkersburg, W. Va., Feb. 28, 1867. “Mr. J. N: Camden, “To McConaughy & Jones, Dr. “To net 36,110 gal. oil @ 14c. per gal.$- “I certify that the above bill is correct, as shown by the books (from the oil-yard) of shipments of oil as kept by Mr. D. B. Bernard, and call attention to the attached certificate of Col. W. P. Thompson, under whose directions the transactions involving the amount (36,110 gallons) occurred. “Hoffman Atkinson, “Accountant of McConaughy & Jones. “Parkersburg, Feb’y 28, 1867.” “This will certify that I have shipped from oil-yard for J. N. Camden 36,110 oil net out of McConaughy, Jones & Camden’s oil, which ain’t was not er. McC., J. & C. “ D. B. Bernard, “ Swpt. at Wovhs. “ Col. Atkinson : “Upon an examination of the books, we agree that Mr. Bernard’s report of 38,186 gallons of oil to be charged J. N. Camden on McC., J. & C.’s books is right, except amount of — 179 — 50 bbls. shipped Bowen & Mercer on the 3d October is to be deueted, which was 2,076 gal. net, or 51 36-40 bbls. “ W. P. THOMPSON. “38,186 2,076 36,110” Complainant McConaughy in his testimony deposed : “44th Question — Were not all the books and papers of McConaughy, Jones & Camden transferred to yon at the time of the dissolution, and have they not ever since been in your possession ? “Answer — We got most of the books; I don’t think we got them all. “ 45th Question — Was not an accountant employed to ex-aminethe bpoks and papers of the partnership immediately after thedissolution ; if so, who was it ? “Auswer — Yes sir; we got Col. Hoffman Atkinson. “ 46th Question — Did he report to you the inaccuracy of the 36,110 gallons of oil? “ Answer — Yes, sir. “47th Question — How long was he employed in examining the books and papers ? “ Answer — I could not say ; probably a week. 48th Question — How much money did you draw from the partnership for your individual purposes during its continuance ? “ Answer — I am not able to tell without looking at the books. “ 49th Question — Have you not had another settlement subsequent to that of 1867, in which all these matters were considered ? “ Answer — No, sir; we have settled the amount in the bank, renewing the papers, &c. “50th Question — Was not the 36,110 gallons of oil included in that settlement? “Answer — It was not included. I was compelled to give up the certificates or be sold out; but I received no value for .it except as heretofore stated ; they gave me a little over $100.00 at the time I moved up.” — 180 — Upon the same point W. P. Thompson deposed as follows: “3d Question — State whether or not you know anything of the dissolution of the partnership of McConaughy, Jones & Camden on the 10th of January, 1867, as set forth in exhibit ‘H,’ and of the settlement of the books by Hollinan Atkinson ; and if so, state what you know about it. “Answer — I know that there was a dissolution of the co-partnership, and have read to-day exhibit ‘IF and recognize it as the paper signed by the parties dissolving it. The only matter between them left unsettled was as to some oil. Subsequently the books were turned over to Hoffman Atkinson, Esq., in connection with N. T. McConaughy, son of complainant, who were selected by Messrs. McConaughy & Jones to thoroughly examine all the books and accounts of the concern. Mr. Schilling, wh¿ had been assisting in keeping the books theretofore, Mr. Daniel B. Bernard, who had been superintendent at the oil-yard, and myself gave them all the assistance that he asked, or wc could give, in closing up the books, which was done; and the amount of oil, amounting to about 36,110 gallons, was found to be due from firm of Camden to the firm of McConaughy, Jones & Camden. Everything else was fully and satisfactorily settled. After the examination of the books by Mr. Atkinson and N. T. McConaughy .everything therein, so far as I know, was satisfactory to all parties concerned, and books, papers and accounts belonging to the firm of McConaughy, Jones & Camden were turned over to McConaughy & Jones, after the settlement aforesaid. 4th Question — Did you sign a certificate in reference to the amount of oil then appearing to be unsettled on the books? If so, state what became of that certificate and how it was settled. “I signed the certificate attached to exhibit No. 5; and left it with Mr. Hoffman Atkinson as the representative of Mc-Conaughy & Jones. It remained in the possession of McCon-aughy & Jones until after a subsequent and final adjustment of all matters between McConaughy & Jones, J. N. Camden and J. N. Camden & Co„ when that oil matter was included in the settlement and the certificates were delivered to Mr. Camden. The final settlement was March 29, 1869, and — 181 — the written agreement of settlement is dated at that time and is marked exhibit ‘W,’ which was a full and satisfactory settlement to all parties in interest at the time.” W. N. ChanokTíLob, deposed: “Question 2 — Were you present when the contract of agreement of the 29th of March, 18G9, exhibit ‘W/ was executed? If so state all you know about it. “Answer — I was present when the settlement was made. There was a full and final settlement between J. N. Camden and McConaughy and Jones, and J. N. Camden and William McConaughy, and J. N. Camden’& Co., and McConaughy and Jones. 3d Question — Was or was not the certificate of Colonel Hoffman Atkinson in regard to the 36,110 gallons of oil spoken of and embraced iu that settlement? “Answer — It was.” CROSS-EXAMINATION. “4th Question — Please to state specifically what your personal knowledge is of said settlement, and what you know in reference to that oil. “Answer — I was present when it was made ; and Mr. McConaughy claimed that there had been a certificate of that oil left out in another settlement. Mr. Camden claimed that the same had been accounted for; and in making this settlement McConaughy had surrendered those certificates.” Exhibit “W,” referred to in the foregoing deposition, is as follows: “This agreement, made this 29th day of March, 1869, between J. N. Camden and J. N. Camden & Co., of the first part, and Wm. McConaughy, for himself and for McConaughy & Jones, of the second part, wituesseth : “That the following general settlement and agreement of all matters by and between the parties is hereby made: First, reference is hereby had to the agreement, bearing equal date herewith, in reference to the Godwin Van Winkle property and the deed of trust upon the same; second, the said J. N. Camden & Co., being the holders of a deed of trust executed by Wm. McConaughy and John Jones and wife to W. W. Van Winkle, for the benefit of J. N. Camden, dated 10th January, 1867, upon which said deed of trust there remains — 182 — unpaid a note — $2,166.66, dated 9th January, 1867, due eight months from date; also a note for $2,166.66, dated 9th January, 1867, due ten months after date ; also a note for $2,166.-66, dated 9th January, 1867, due twelve months after date, and also a further deed of trust executed by said McConaughy & Jones to E. P. Chancellor, trustee, for the benefit of J. N. Camden & Co., &c., dated 2d March, 1868, upon which said last named deed of trust,the following debts are due at this date) viz., a note of McConaughy & Jones, endorsed by Jordan McMillan, for $1,000.00, dated June 21,1868, atsixty days, (now in suit); also a note for $1,200.00, executed by John Jones to the order of said McConaughy, dated the 2d June, 1S68, at sixty days; also a note for $1,000.00, executed by McConaughy & Jones to the order of J. N. Camden, dated 12th June, 1868, at three months from date ; also a note for $2,919,96, dated March 4, 1869, at twenty days, with interest from date, to the order of J. N. Camden & Co. — all of which said notes have been discounted by the First National Bank, Parkersburg, and constitute the indebtedness of said McConaughy & Jones uuder said deed of trust at the date hereof: Now, the said McCon-aughy having purchased the business and obligated himself to pay the debts of said McConaughy and Jones, and in view of an amicable agreement and understanding by and between the parties hereto, the said J. N. Camden & Co., have agreed to extend the time upon which the said deeds of trust may be enforced as hereinafter stated, provided and upon the condition that said McConaughy shall make the payments and reductions on said debts as agreed and herein named, viz., that he shall, within sixty days from the date hereof, pay the sum of $1,000.00, to be applied upon said debts, and shall monthly thereafter pay the sum of $799.37, to be applied upon said debts until the said debts shall fully be paid off, with accruing interest; and in order to the convenient carrying out of this purpose, the said McConaughy and Jones have executed for the debts named in the first deed of trust (dated 10th January, 1867), a note for $7,040.80 to the order of J. N. Camden & Co., dated March 29, 1867, at sixty days, at First National Bank, Parkersburg; and for the debts named in the second deed of trust, dated March 2, 1868, excepting the one endorsed by McMillan in suit, the said McConaughy & — 183 — Jones have executed their note to the order of J. N. Camden '& Co. for $3,960.37, payable at First National Bank, Park-ersburg, sixty days after date, and McConaughy & Jones to the the order of ffm, McConaughy for $1,493.78; but it is distinctly understood these do not include the note for $1,000 ■endorsed by Jordan McMillan upon which a judgment has been obtained. The original notes, or the notes described herein above, arc retained as the property and actual evidence of the indebtedness under the said deeds of trust respectively at this date, and the new notes are used as being more convenient for purposes of discount by said bank and for renewal, the said notes having been discounted by said bank heretofore. Now it is' understood that if said McConaughy, or McConau-ghy & Jones, shall, within sixty days from the date hereof, pay upon said indebtedness the sum of one thousand dollars, to be applied to the reduction of said debts, and shall monthly thereafter pay the sum of $779.37, at the expiration of each month, to be likewise applied to the reduction or payment of said debts, that the said deed of trust shall not be executed for the payment of said debts by the said J. N. Camden & Co. so long as the payments herein specified are punctually made as agreed and stipulated for, but it is expressly understood and agreed that the extension of time will be granted only upon the condition that the said payments and reductions shall be made as herein named, and a failure to comply with the conditions of payment will authorize the enforcement of said trust-deeds for cash for the discharge of the indebtedness secured by them as hereinbefore set forth. “And it is further fully understood that all matters between the parties, or between said J. N. Camden and the said Mc-Conaughy & Jones, prior to the date hereof, of every character whatever, have been adjusted, and that there is nothing outstanding which could be made the subject of defense in the enforcement of the said trust deeds under this agreement. “Witness the following signatures this 29th March, 1869. “J. N. Camden, “Wm. McCoNaughy, “McConaughy & Jones. “Mr. McConaughy is to return to said J. N. Camden the certificates of Mr. Bernard, Col. Thompson and Mr. Atkin — 184 — son in regard to disputed amount of oil which is hereby included and settled. “Witness:&emdash;S. P. Weeds.” As said by the appellees, the written agreement of January 10, 1867, is an instrument signed, sealed and acknowledged by the parties before an officer authorized by law to take acknowledgements. It has all the solemnity of a deed, and in view of the force and character of such a writing, as determined by this court in Peytona Cannel Coal Company vs. Western Mining and Manufacturing Company, 8 West Va. 429, such an instrument is regarded as evidence so strong that only other unequivocal evidence, irresistably conclusive, is sufficient to overthrow it. It seems to me that the proof is irresistable, that every claim and demand was considered by the parties and settled understandingly by them in the agreement of January 10, 1867, and again that the agreement of March 29, 1869, conclusively settled all matters between them. Therefore upon the merits of the case the written evidence shows conclusively a full and complete settlement, and the lapse of time should be a bar to opening up such settlements as between partners. The decree should be affirmed with costs and $30 damages. The Other Judges Concurred. Deciíee Aeeirmed.