He ness and desolation through the nights and days and months and years of the aging period of her life? Could she even make a living upon the farm? Though she might get a tenant, he would be a stranger to her, and not give the comfort arising from acquaintance and relationship. Under these trying circumstances, this lady tried to effect an arrangement with a nephew, McCallister, to get him to come and live upon the farm, exactly on what terms does not clearly appear; and, failing in this, she applied to another nephew, the defendant, Noffsinger, for relief. He was the railroad and express agent at Red House, where he owned his own home, and earned a certain living of $550 a year as agent. had a wife and two children. His aunt certainly importuned him to make some arrangement with her. It is by no means proven that he importuned or even first suggested any arrangement with her, or pursued the object after she suggested it. She says she called several times at his railroad office to see him about it. She says, now, that he told her that she was to have all the personal property, and that there was an article which would render the deed void if he did not live up to it. But there was the deed to speak for itself, telling a different tale. She must have gone by it. Noffsinger says he handed it to her, and that she had it two weeks, before she acknowledged it, for examination and advice. She admits that he handed it to her in the yard, while moving, and that she had it several days before she executed it. She complains that he told her that, if it was not executed, he would not finish moving. This is the only item of undue influence she states. This is no undue influence; for, as their agreement was for such deed, he had a perfect right to say that he would not complete his removal unless his rights under the contract were secured. The fact, as she admits, that she had the deed two or three days before she executed it, shows that he did not stop his removal and compel her to make the deed. Thus she had the paper some days for inspection. She says she can read, and that she did read the deed, but did not understand it. When she went to Dr. Thomas to acknowledge it, he read and explained it, and she told him that she had been to a lawyer, and that he had explained it to her; and can a court then say that she did not know the plain provision conveying the stock on the farm and other personalty just as well as she knew that it conveyed the land? If she had not business judgment, that would not set aside the deed; for, as stated in Buckey v. Buckey, 38 W. Va. 173, 18 S. E. 383, the principle is sound that, in the absence of fraud, undue influence, or imposition, mere weakness or feebleness of understanding is not sufficient to overthrow a party's deed. Mrs. Farnsworth's understanding was not weak or feeble. She does not specify or show any other ground for the charge of fraud. When a witness on the stand, after saying that she never claimed to be insane or crazy, she was definitely asked the question whether, at the various times she visited the office of Noffsinger to contract with him before the deed, he practiced any fraud upon her, she answered, "I don't know; I don't remember." When again asked, "Did he use any fraud or undue influence in regard to the original contract or deed of 31st of October, 1889? and, if so, state fully what it was,”her answer was, "I don't remember anything." Under all the evidence, the charge of fraud and undue influence is not sustained; but other circumstances (or, rather, considerations) repel the idea of these wrongs, and tell us that this arrangement, whether then wise and prudent, or not, or turning out badly afterwards, was the reflex of her best judgment for her future comfort and happiness. This nephew had been an especial favorite of hers. Why might she not reasonably let him have the farm after her death? She was childless. If it gave her maintenance and support for life, and took from her the burden of management, and gave her home and family companionship, what better should she want? If that deed had provided for her clothing and medical attention, it would be a very prudent arrangement for her, under the circumstances, however dangerous such arrangements usually are, as experience shows; but people do make them. The charge that, while this deed was in full force, Noffsinger did not execute it, is unsustained. Mrs. Farnsworth herself does not prove it. There is a little evidence of disagreement between her and Mrs. Noffsinger, but of very trifling import, and manifested upon one occasion only, in the slight matter of the ownership of a washtub. So, the charge of bad treatment is not sustained. Thus mattersstand as to the said deed. Now we come to the written agreement of the 3d of August, 1891. From some cause Mrs. Farnsworth became dissatisfied. As isfrequently the case, one house became too small for two families. Discontent sprang up. At her request this subsequent agreement was signed by both. It is said to work injustice and hardship upon Mrs. Farnsworth, because it leases the farm to her for her life, releases her nephew from the obligations imposed upon him by the deed, makes her pay him rent, and leaves him the personal property conveyed by the deed and the remainder in fee in the land. At first blush it does seem a hard bargain. The deed I do not regard to be a hard, unequal bargain; but I cannot say the same as to this agreement. A hard bargain it may be; but here we encounter solid legal principles, essential to the capacity to make contracts and of the rights of parties under them. "Where the legal capacity of a grantor to make a deed is shown, and there is no fraud or undue influence established, he has the legal right to make an unjust, unnatural, or unreasonable conveyance of his property." Hale v. Cole, 31 W. Va. 576, 9 S. E. 516. If there is no fraud or undue influence, and the party has sufficient understanding to comprehend the business and consents freely to the special matter, the act cannot be impeached, "however unreasonable, imprudent, or unaccountable it may seem to others." Jarrett v. Jarrett, 11 W. Va. 584. But before we brand this contract as hard upon Mrs. Farnsworth, we must look at Noffsinger's side of it. Having the advantage of the deed, having a home on the land, having commenced operations there, having given up his home at Red House, and his position, which would likely have been permanent, as railroad agent, with its salary of $500 or $600, he is asked by his aunt to give up his home during her life, and hunt a new one, and hunt a new occupation. He yielded up the land to her for her life by this new contract. He had to move off. When would he get back to it as a home? How long would she live? If he intended to look to the farm as a home at her death, how uncertain and irregular would be his arrangements in the meantime. He only got the fee after her death, and that was all she wanted, as she told Taylor Shiltz, when he was talking to her, when the negotiations for this new contract were going on. She said she did not care who got the farm after her death. It seemed to be somewhat embroiled in title, under a claim by her husband's children by a former wife. To whom could she more properly give the remainder after her death than to this nephew, for whom she had before entertained peculiar affection? Likely her affection had not entirely faded away. As she made this arrangement, we are authorized to say it had not. We may say that her affection gave her nephew this home when she should no longer need it; and, as pertinent to the subject of undue influence, as applicable to both the deed and the contract, the law says that confidence in a grantee, influence acquired by him over a grantor by reason of acts of kindness and attention, and love and affection do not constitute fraud or undue influence, and the fact that the grantee possessed such confidence and influence will not alone vitiate a conveyance. Hale v. Cole, 31 W. Va. 576, 8 S. E. 516; Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201. We must remember, when charging this as a hard bargain, the sacrifices of Noffsinger, and that the arrangement with his aunt may have changed and worsted the plan of his life. I will add that the charge against Noffsinger that he retained the fee and made his aunt pay rent for life is not true, because the true construction of the contract is that it does not release Noffsinger from the annual payment of $50, required of him by the deed, and that the rent of $50 to be paid by his aunt is a set-off against the other $50 in law, and was so intended by the parties, and Noffsinger so interpreted the contract in his pleadings and evidence, and has barred and estopped himself effectually from claiming both exemption from payment by him of the $50 payable under the deed to Mrs. Farnsworth, and also payment of $50 rent by her. I will add that, of the personal property mentioned in the deed, the fat cattle never went to Noffsinger, and he yielded two of the horses to her, and, I think, also, a cow The farm is estimated to be worth $5,000, and the personalty was charged to be worth from $800 to $1,000, but was not. I will close this opinion by saying that there is a considerable amount of evidence on both sides, and that it is in material points conflicting, and the circuit court has passed upon it all, and for that reason alone, besides others above given, this court is justified in refusing to reverse the decree. The parties must stand where their contracts have placed them, though now Mrs. Farnsworth has changed her mind. I cite the case of Lipscomb v. Love, 38 W. Va. 546, 18 S. E. 732, and Judge Dent's opinion on page 548, 38 W. Va., and page 732, 18 S. E., to sustain this holding, and to show the binding force of the party's own deeds and writings, and that this court has no power to release Mrs. Farnsworth therefrom. I might add, under principles stated in Whittaker v. Improvement Co., 34 W. Va. 217, 12 S. E. 507, that, even if there were fraud and undue influence, the delay of Mrs. Farnsworth from October 31, 1889, to February 24, 1897, would defeat this suit under the doctrine of laches, and I think that second agreement ratified the deed, and estopped her from attacking it. If any fraud, she condoned it. Dewing v. Hutton, 40 W. Va. 521, 21 S. E. 780. Decree affirmed. (46 W. Va. 469) WILSON et al. v. CARTER OIL CO. (Supreme Court of Appeals of West Virginia. April 15, 1899.) PARTNERSHIP-RIGHTS OF Partners-ACTION. 1. Where a corporation and an individual have assumed to enter into a partnership, and jointly transacted business together, they may recover, by reason of their joint interest, upon obligations made to them in their partnership name, irrespective of their partnership rights and duties as between themselves, or the power of such corporation to execute the powers incident to a partnership. 2. In an action of assumpsit, where the plaintiffs are described as partners, but have a joint right of action, the description of them as partners may be regarded as surplusage. (Syllabus by the Court.) Error to circuit court, Tyler county; R. H. Freer, Judge. Action by L. C. Wilson and others against the Carter Oil Company. Judgment for deReversed. fendant, and plaintiffs bring error. S. Bruce Hall, for plaintiffs in error. T. P. Jacobs, C. G. Carter, and George L. Roberts, for defendant in error. ENGLISH, J. This was an action of trespass on the case, in assumpsit, instituted in the circuit court of Tyler county by L. C. Wilson and the Devonian Oil Company, a corporation, partners doing business under the firm name of L. C. Wilson & Co., against the Carter Oil Company, a corporation under the laws of the state of West Virginia, for work and labor performed and material furnished to the defendant amounting to $512. The defendant tendered a special plea, averring that the plaintiff ought not to maintain its action against the defendant for the reason that the Devonian Oil Company, one of the plaintiffs, and a member of the partnership which brings this suit, is a corporation of the state of Pennsylvania, and, under the laws of that state and its charters, it had no power to enter into this or any other partnership, and therefore the plaintiff ought not to maintain this suit; and of this the defendant put itself upon the country. The defendant further pleaded nonassumpsit and payment, with leave to file special matter in evidence. The plaintiffs demurred to the defendant's special plea, in which demurrer the defendant joined. The court overruled the demurrer, sustained the defendant's plea, and found for the defendant, and the plaintiffs obtained this writ of error. The sole question, then, presented for consideration by this record, is whether the circuit court erred in sustaining said plea and dismissing plaintiffs' action. As to the question whether a corporation can form a partnership with an individual, the authorities are conflicting. It is believed that the weight of authority is to the effect that a corporation cannot form a partnership with an individual. In 7 Am. & Eng. Enc. Law (2d Ed.) 794, the law is stated thus: "A corporation has no power to form a partnership with an individual, unless authorized to do so by its charter." And in Morawetz on Corporations (section 421) thus: "It seems clear that corporations are not impliedly authorized to enter into partnership with other companies or with individuals." And Beach, Priv. Corp. § 842, says: "One firm may be a partner with another firm, and there is no general principle of law which prevents a corporation from being a partner with another corporation or with ordinary individuals, except the principle that a corporation cannot lawfully employ its funds for purposes not authorized by its constitution. Having regard, however, to this principle, it may be considered as prima facie ultra vires for an incorporated company to enter into a partnership with other persons." Also, in 7 Am. & Eng. Enc. Law (New Ed.) 794, it is said: "By the decided weight of authority, a corporation has no power to enter into an ordinary contract of partnership with another corporation, or an individual or individuals, unless such power is expressly conferred upon it by its charter." The question presented by the record in this case is not limited to the mere inquiry whether a corporation can form a partnership with an individual, but whether the defendant's plea constitutes a good defense to this action; in other words, if the plaintiffs were not partners in the strict sense of the word, can we say their recovery in this action is necessarily defeated? In Courson v. Parker, 39 W. Va. 521, 20 S. E. 583, this court held that: "At common law, partners cannot be sued otherwise than in their individual names, and the allegation of a partnership name is merely for the purpose of identification and description, is immaterial, and need not be proven; and hence the unnecessary use of it may be regarded as mere surplusage." The same rule would apply to plaintiffs as defendants, and in the case at bar the portion of the declaration describing the plaintiffs as partners may be treated as surplusage. We find the law stated in a note on page 424, Green's Brice Ultra Vires, as follows: "There is nothing, however, to prevent a corporation from becoming interested in a transaction jointly with another corporation or with an individual so as to be joint plaintiffs or defendants in an action." In New York & S. Canal Co. v. Fulton Bank, 7 Wend. 412, it is held that "two incorporated companies may unite in an action of assumpsit to recover a sum of money deposited in bank in their joint names." Also, in Bank v. Ogden, 29 Ill. 248, it is held that, "as a general rule, corporations are not capable of forming a partnership, but they may make joint contracts by which both bodies may become liable." What is true of two corporations as stated in this decision is also true of one cor poration and an individual, and if, acting thus, they are capable of rendering themselves liable, other parties may by contract become liable to them. So, in 2 Beach, Priv. Corp. p. 1317, § 842, it is said: "The results of partnership arrangements between corporations and individuals have been subjected to the rules governing partnerships, and their contracts enforced, even where the agreement has not been upheld. Accordingly, where a corporation and an individual have assumed to enter into partnership and jointly transact business together, they may, by reason of their joint interest, recover upon obligations made to them in their partnership name, irrespective of their partnership rights and duties as between themselves, or the capacity of the association to execute the powers incident to a partnership;" citing Cleveland Paper Co. v. Courier Co., 67 Mich. 152, 34 N. W. 556; Manufacturing Co. v. Sears, 45 N. Y. 799; Leggett v. Hyde, 58 N. Y. 272; Raft Co. v. Roach, 97 N. Y. 378. A case directly in point is that of French v. Donahue, 29 Minn. 111, 12 N. W. 354, in which the court holds that "where an association or corporation and another have assumed to enter into a partnership, and jointly transacted business together, they may recover, by reason of their joint interest, upon obligations made to them in their partnership name, irrespective of their part. nership rights and duties as between themselves, or the power of such association to execute the powers incident to a partnership." When the declaration in the case under consideration is relieved of its surplusage, it only claims that the defendant is indebted to L. C. Wilson and the Devonian Oil Company in the sum of $512 for work and labor performed for, and for goods and chattels sold and delivered to, the defendant, for which the defendant promised to pay them; and, after getting the benefit of the labor and receiving the goods and chattels, the law will not allow the defendant, by special plea, to avoid its liability by averring that one of the parties with whom it contracted was a corporation, and incapable of forming a partnership. Whether the plaintiffs were partners or not, the liability was incurred by the defendant assuming the payment of the account to the plaintiffs jointly; and my conclusion is that the court erred in overruling the plaintiffs' objection to said plea, and allowing the same to be filed, and in dismissing the plaintiffs' action. The judgment complained of is therefore reversed, and the cause remanded. (46 W. Va. 374) CRIM v. PRICE et al. (Supreme Court of Appeals of West Virginia. April 15, 1899.) CREDITORS' SUIT-PARTIES-TRIAL. C. brought his bill to enforce judgment liens against the real estate of M. E. P., wife of L. P., and made other lien holders thereon parties defendant. R. & Sons afterwards filed their bill against M. E. P. and L. P., alleging that the deed from the father of L. P. for the real estate sought to be subjected was made to M. E. P. in fraud of the creditors of L. P., and asking to have it set aside, and the real estate subjected to the payment of their judgment against L. P., which existed at the date of the deed, but failed to make the judgment creditors of M. E. P. parties to their bill. The cases were heard together, the deed set aside, and R. & Sons' judgment declared to be the first lien on the property. 'Held error to hear the cases together, or to decree upon the bill of R. & Sons until the proper parties were brought in. (Syllabus by the Court.) Appeal from circuit court, Barbour county; John H. Holt, Judge. Bill by J. N. B. Crim against Mary E. Price and by A. Right & Sons against Lewis Price and Mary E. Price. The cases were tried together, and from the decree Crim appeals. Reversed.. Melville Peck, for appellant. Dayton, Dayton & Blue, for appellees. MCWHORTER, J. At the September rules, 1896, J. N. B. Crim filed his bill in the circuit court of Barbour county against Mary E. Price, Lewis Price, Solomon T. Wilson, J. M. Ramsey, administrator of Isaac Price, dereased, and William H. Price, setting up various judgments in favor of himself, some against Mary E. Price alone, and others against Mary E. Price and Lewis Price, and one in favor of Solomon T. Wilson against Mary E. Price and Lewis Prite, and alleging that said Mary E. Price was the owner in fee of a tract of 55 acres of land, described in a deed from Isaac Price to said Mary, dated April 6, 1892, a copy of which was filed with his bill, and that said judgments were liens upon said tract of land; that there was reserved in said deed the vendor's lien to said Isaac Price for certain of the purchase money, which plaintiff was not advised as to whether it had been paid or not; that said defendant Ramsey was the duly appointed and legally qualified administrator of the estate of said Isaac Price,-and prayed that said land be subjected to sale to pay said liens and costs of suit, according to their priority, and for general relief. The cause was matured at rules, bill taken for confessed and set for hearing as to all the defendants, and on the 13th of February, 1897, was referred by the court to Charles Zirkle, one of the court's commissioners, to ascertain and report all the real estate owned by defendant Mary E. Price, the location and description of same, from whom she derived title and when, the state and condition of her title, the annual rental value thereof, the liens thereon, their amounts and priorities, and to whom owing, and all other pertinent matters, etc. The commissioner filed his report, showing that defendant Mary E. Price was the owner of the 55 acres of land, that the title was good, that the vendor's lien of $100 reserved to Isaac Price had been paid off, and reporting the liens and priorities thereof, and that the annual rental value of said land was $50, to which report there were no exceptions. At the June rules, 1897, A. Right, John C. Right, I. F. Right, and G. M. Right, formerly trading as A. Right & Sons, filed a bill in the same court against Mary E. Price and Lewis Price, setting up a judgment obtained by them on December 22, 1888, against Lewis Price, as a lien upon the said 55 acres of land, alleging that the same belonged to Lewis Price, and that their judgment was a lien thereon as his property; that the same was fraudulently conveyed to Mary E. Price, at the procurement of Lewis Price, in order to hinder, delay, and defraud his creditors, among whom were plaintiffs; that the same was without valuable consideration in law,and prayed that said deed of April 6, 1892, from Isaac to Mary Price, be held to be fraudulent as to plaintiffs' debt, and that the same be set aside, and the property subjected to their debt. Plaintiffs failed to make J. N. B. Crim, or any of the other judgment creditors of Mary E. Price or Lewis Price, parties defendant to their bill. Process was duly executed on defendants, the bill taken for confessed and set for hearing at the rules, and on the 18th day of November, 1897, the two causes were heard together, and the report of the commissioner in the first-named case was confirmed, so far as consistent with the decree. The court ascertained from the pleadings in the case of A. Right & Sons that the deed from Isaac Price to Mary E. Price, dated April 6, 1892, was fraudulent and void as to plaintiffs' debt, that the land came to Mary E. Price through her husband, Lewis Price, and that plaintiffs' judgment was the first lien upon the land, and decreed the other judgments to be paid in the order of their priorities as ascertained by said commissioner's report, and decreed a sale of the land to pay the same. From this decree the plaintiff J. N. B. Crim appealed, assigning as errors the setting aside of the deed of April 6, 1892, as fraudulent against the bona fide creditors of Mary E. Price, and charging the said land with the judgment debt of A. Right & Sons against Lewis Price; in charging the said debt against Lewis Price as the first lien on the 55 acres of land as against the bona fide creditors of Mary E. Price; not to decree the liens on the land as reported in Commissioner Zirkle's report; in setting aside deed and decree as to the Right & Sons debt, in a chancery cause instituted more than five years after the deed was executed and recorded. The causes were not consolidated, but heard together. The cause of Right & Sons could not properly be heard at the time for want of parties. The bill sought to subject the land of the defendant Mary E. Price to the payment of a judgment in favor of plaintiffs against Lewis E. Price, and yet the plaintiffs had failed to make the judgment lien creditors of Mary E. Price parties to their suit, although they have suit pending to subject same property to their liens. In Bank v. Watson, 39 W. Va. 342, 19 S. E. 413, it is held: "If a lien creditor, in filing a bill to enforce his lien against real estate, neglects to make necessary parties thereto in accordance with the former decisions of this court, all decrees entered will be reversed, and the proceedings thereunder annulled, and the bill will be remanded to be properly amended." Bilmyer v. Sherman, 23 W. Va. 656; McMillan v. Hickman, 35 W. Va. 705, 14 S. E. 227; Neely v. Jones, 16 W. Va. 625; Norris v. Bean, 17 W. Va. 655. It is insisted by appellant that the land belonged to Isaac Price, and he had a right to give it to Mary E. Price, and the creditors of Lewis Price could not complain. Plaintiffs' bill was without equity, unless it was as to the $100 deferred purchase money due to Isaac Price, which the bill alleges was paid by Lewis Price, thereby investing his money and means in the property in fraud and to the prejudice of his creditors, the plaintiffs. The decree complained of will be reversed, and the cause remanded for further proceedIngs. 46 W. Va. 419) FLAT TOP GROCERY CO. v. McCLAUGHERTY et al. (Supreme Court of Appeals of West Virginia. April 15, 1899.) RES JUDICATA. 1. G. Co. held and owned two notes, made to it by M. & Co., one for $268.74, the other for $244, both overdue and unpaid. G. Co. brought its action before a justice and recovered judgment for the first note, and afterwards brought its action in the circuit court on the second note. M. & Co. pleaded the judgment on the first note in bar of the action, under section 48, c. 50, Code. 'Held error to allow plea filed. 2. Where a party has two separate demands against another, which together exceed the sum of $300, judgment recovered upon one before a justice cannot be pleaded in bar of an action on the other, under section 48, c. 50, Code. (Syllabus by the Court.) Error to circuit court, Mercer county; J. M. Sanders, Judge. Action by the Flat Top Grocery Company against William W. McClaugherty & Co. Judgment for defendants, and plaintiff brings error. Reversed. Johnston & Hale, for plaintiff in error. Hugh G. Woods, for defendants in error. McWHORTER, J. This was an action of debt, brought by the Flat Top Grocery Company, a corporation, in the circuit court of Mercer county, against the firm of William W. McClaugherty & Co., on a note for $244, described in the declaration. Plaintiff filed with its declaration the affidavit of George R. Dabney, the agent, secretary, and treasurer of plaintiff, under section 46, c. 125, Code. Defendants appeared and tendered two pleas in writing, the first, or No. 1, being simply the general issue of nil debet; No. 2, a special plea, accompanied by the affidavit of W. W. McClaugherty, one of the defendants, setting up a former judgment rendered on a part of plaintiff's demand in bar of the action. To the filing of said pleas and affidavit plaintiff objected. The objection was overruled, and the pleas and affidavit were allowed to be filed, to which plaintiff excepted. Plaintiff moved the court to strike out said affidavit and each of said pleas, which motion the court overruled, and plaintiff excepted. sue was joined on plea No. 1, and plaintiff replied generally to plea No. 2. The parties waived a trial by jury, and by consent submitted the issues to the hearing and determination of the court in lieu of a jury, and agreed on the facts as follows: Is "That on the 1st day of January, 1895, the plaintiff was, and ever since that date has been, a corporation, duly chartered by the laws of this state, and that on the date above named was engaged in the wholesale grocery business in the city of Bluefield, Mercer county, W. Va.; that on the date above named, and until the day of January, 1897, the defendants, William W. McClaugherty and Joseph H. McClaugherty, were partners in business, carrying on a general store in the city and county aforesaid, under the firm name and style of William W. McClaugherty & Co.; that from the day of April. 1896, to the 1897, the said defendants, as partners aforesaid, under the firm name aforesaid, made various purchas es of goods of the plaintiff corporation, and made various payments to the plaintiff on day of |