Biography of

Abram McNeel Beard


Born 16 Jan 1827, WV
Died 1915
Married Martha Blair Clark, 1861.  b 1835; d 1879
Married (2) Charlotte Law, 1860; b 1841; d 1895
Abram McNeel Beard resided on the original John Beard farm north of Lewisburg, West Virginia in Renick's Valley.







Martha A. BLAIR
Born: 23 Jan 1835 - Pocahontas Co., West Virginia
Died: 6 May 1879 - Renick's Valley, Greenbrier, West Virginia
Father: William BLAIR, Major
Mother: Jane JORDAN
Other Spouses: Abram BEARD

Beard vs. Beard - Reports of Cases Argued and Determined in the Supreme Court of Appeals, by West Virginia Supreme Court.

(Ed. note - the following is a dispute regarding $200 paid after the death of Abram's first wife, Martha Blair Clark, to other Beard claimants; and the final settlement of the claims).

March, 1885.] BEARD r. BEARD. 487


Abram Beard in February, 1884, filed his bill of injunction in the circuit court of Pocahontas county against John J. Beard and others, in which he alleged, that the defendants other than the sheriff of the county in 1883 recovered a judgment against him for $197.10 with interest and $64.00 costs; that in 1881 the defendants (except said sheriff) filed their bill against him in the circuit court of Greenbrier county, the object of which was to compel him as administrator of his deceased wife, Martha A. Beard, to settle his accounts as such, and to obtain a decree against him in their favor as distributees and next of kin of said Martha A. Beard for any sum that might be in plaintiffs hands as such administrator; that in said cause on November 25, 1881, a final decree was entered against him in favor of the plaintiffs as such distributees for $3617; that from such decree he appealed, and the Supreme Court of Appeals reversed the said decree, holding that the personal funds in his hands as administrator of his deceased wife belonged to him as her husband and not to the plaintiffs in said suit; that while said last named cause was pending in the circuit court of Greenbrier county, the said court entered a decree referring the cause to a commissioner for an account ,thereby deciding, as plaintiff was advised and believes, that he as administrator of his deceased wife was liable to the plaintiffs in said cause, and after said decree was entered, he on August 17, 1881, paid to Alex. F. Mathews, attorney for said distributees, the sum of $200.00 on account of what might be due from him to said distributees ; that all said defendants except the said sheriff are insolvent; that he has a right to have credited on said execution the said sum and also his costs in the said suit in Greenbrier county and in the appellate court; and prayed that said execution then in the hands of said sheriff might be enjoined to the extent of the sums of money aforesaid. The injunction was granted.

To the bill the defendants demurred; and on March 13, 1884, in chambers the judge of the circuit court heard a motion to dissolve the injunction. The decree recites that the cause came on to be heard upon the bill and exhibits, the demurrer by all the defendants except the sheriff, the motion the money was not paid under such a judgment or decree, as is there described. Is he protected under the third class ?

Did he pay his money under the operation of a decree, which has been reversed? If he did, then he did not pay it under a mistake of law and can recover it. It is clear, that he did not pay it under an appealable decree. He paid it after the decree of reference and before his appearance in the suit. There was no decree rendered against him, under which payment of money could be enforced. In fact it had not yet been ascertained by the court, how much he owed, or whether he owed anything. The decree of reference settled nothing: it could not be said to have settled the principles of the cause. Such a reference under our statute could have been made in vacation. The order of reference does not pretend to decide, that the defendant was liable to pay anything to the plaintiff. The court had not yet determined, to whom the personal estate of Martha A. Beard should be distributed.

The order directed the creditors to be convened, and it might be that the whole estate would be required to satisfy their demands, and that there would be nothing left to distribute.

The order required the commissioner to state an account "showing what estate or funds belonging to the said estate have come or should have come to his hands, what disbursements have been by him properly made, and what balance, if any, remains in his hands, or for which he is liable, still due to the estate of said intestate,"

There is certainly nothing here, which decides, that he was liable to pay any money to the plaintiffs. If the report showed it would require all the funds to pay the creditors, the plaintiffs would have received nothing. The bill, it is true, claims that there were funds in his hands, to which the plaintiffs were entitled as the distributees of defendant's intestate. But the bill was not taken for confessed, and the court did not decide, that the plaintiffs were entitled to receive anything. Such an order could afterwards be properly disregarded by the court without bill of review or motion for rehearing. In none of the cases, which we have examined, has it been held, that, where money has been paid after suit brought, it could be recovered, except in cases where it was paid after a decree or judgment requiring it to be paid had been entered by the court, and had been reversed on appeal or writ of error. We have found no case, in which it has been held, that, where after suit brought the money had been voluntarily paid, before a judgment was rendered requiring it to be paid, it could be recovered, even if the judgment were afterwards reversed on writ of error. It seems to us, that it

makes no difference, whether he paid the money before suit brought or after, if he pays it under his own decision of the law, and not under the decision of the court. In either case he pays it under a mistake ot the law.

In Brisbane v. Daeres, 5 Taunt. 152, Gibbs, judge, said : " The party has his option, whether to litigate the question or submit to the demand and pay the money." In Brown v. McKinnally, 1 Esp. 279, a party, who was sued for old iron sold and delivered, paid the sum demanded objecting

at the time, that the iron was not such, as he contracted for, but was ot an inferior quality and less value, and giving notice to the vendor, that payment was made without prejudice, and that a suit would be brought to recover the overplus thus paid. On his bringing such suit Lord Kenyon decided,

that it could not be maintained, and said, that to allow it would be to try every question twice; that the same legal ground, which would entitle the plaintiff to recover in that suit, would have been a good defense to the suit brought against him by the defendant. In Ilombt v. Richardson, 9Bing. 644, the plaintiff had paid a certain sum of money after action brought with knowledge of the facts, on which the demand was founded; and it was held, that he could not recover it. In Milncs v. Duncan, 6 Barn. & Cres. 679, Holroyd, judge, paid that money paid after legal proceedings were instituted could not be recovered, if there were no fraud in the party receiving the money. The same doctrine was recognized in Duke de Cadocal v. Collins, 4 A. & E. 858. In Forbs v. Appleton, 5 Cush. 115, it was held, that a payment of money in order to prevent the obligee in a bottomry bond from enforcing the same by taking possession of the vessel, is not a compulsory but a voluntary payment, which,

if the money demanded is not due, does not give the debtor a right to recover it, although he declares at the time of payment the said Ridiman conveyed it to Sarah Hix, the wife of said

John Hix. The said bill prayed, that said deeds might be held fraudulent as to the plaintiff's debts, and that the lands be subjected to the payment thereof. Sarah Hix did not appear in the suit. She neither demurred nor answered. Sarah Hix made no motion in the court below to have the said decree reversed, but appealed there from to this Court. She not having demurred to nor answered the bill, the appeal is dismissed as improvidently granted.

Submitted January 15,1885.óDecided March 28, 1885.

1. Equity will enjoin the collection of a judgment in favor of uninsolvent plaintiff, who is a judgment-debtor to the defendant, to the extent of such indebtedness, (p. 489.)

2. Money paid voluntarily with full knowledge of the facts under a mistake of law cannot be recovered, (p. 489.)

3. Money paid upon a judgment afterwards reversed may be recovered ; but where a defendant after suit brought and after a decree of reference to a commissioner not settling his liability, with full knowledge of all the facts, voluntarily pays a part of the demand against him, and a decree is afterwards rendered against him for the residue of the demand, which upon appeal is reversed, and the plaintiffs bill dismissed, he cannot recover the part so paid, because it was paid under his own mistake of law voluntarily with full knowledge of all the facts, (p. 49-1.)

The tacts of the case are sufficiently stated in the opinion of the Court. R. F. Dennis for appellant. A. F. Matheics for appellees. 156; Duncan v. Kirkpatrick, 13 S. & R. 292; Sturgis v. Allis,

10 Wend. 354; Duncan v. Ware, 5 Stew. & P. 119; Green v. Stone, 1H. & J 405; Clark v. Pinney, 6 Cow. 297; Dennett v. Nerers, 7 Me. 399; Raun v. Reynolds, 18 Cal. 275 ; McDonaU v. 'Napier 14 Geo. 89 ; Stevens v; Fitch, 11 Met. 248 ; Mayhew v. Kellogg, 24 Wend 32; Bank of the United States v. Bank of Washington, 6 Pet. 8; Paulling v. Watson, 26 Ala 205.)

The reason, on which this well settled law is founded, is, that the money so paid was paid by mistake of law. The mistake of law, which authorizes the recovery of money paid thereunder, is

the mistake of the party paying it. But when paid under a judgment of a competent court, until such judgment is reversed, it must be regarded as paid under the law; but when the judgment is reversed, it is then a nullity, and the matter stands as if no judgment had ever been rendered, and not

having been paid under mistake of law by the party paying it may be recovered. In some of the cases above cited property was levied on under executions; in some real estate was sold; in some the parties paid after judgment and before execution; in some the question was raised, whether the party who actually received the money should be sued or the plaintiff in the action or suit; in some the question arose as to what was the remedy, whether an order of restitution in the same suit

or action, or a scire facias, or whether it could be recovered in an action of assumpsit's; but in none of the cases was it doubted, that the party paying the money under an order, judgment or decree was entitled to recover it in some mode. In none of the cases was it paid under a decree settling the liability of the defendant and referring the cause to a commissioner for an account. In these cases the right to receive the money is not made to depend on the fact, that the party was bound to pay it to prevent his lands or goods from being sacrificed under a forced sale. The principle underlying these decisions is, that, if the money has been paid by order of a court, and that order being reversed is as if it never existed, the party not having therefore paid under a mistake of law may recover his money. To which of the foregoing class does the plaintiff belong?