This is a chancery suit, brought in the circuit court of Monroe County, in July, 1897, by Baldwin Ballard against J. W. Chewning, L. B. Dunn, trustee, and W. S. Chewning, to set aside, as fraudulent and as haring been made without consideration, a deed of trust, dated May 31, 1897; and executed by said J. W. Chewning, conveying practically all of his property, consisting of an undivided one-half of a tract of land, containing one hundred and twenty-five acres; a tract, containing seven acres; a tract, containing twenty-six and one half acres; a tract, containing one hundred and fifteen poles; one mare; one horse; one. mowing machine; and one hay-rake, to the said L. B. Dunn upon the following trust and conditions:
“In trust to secure W. S. Chewning in a debt of the amount ($2,750.00) twenty-seven hundred and fifty dollars. Now if the said debt be paid when due this deed to be then null and void, otherwise to remain in full force and effect, and said trustee, (or if he refuse to serve, the sheriff is to act as said trustee), at the suggestion of said W. S. Chewning made at any time after said debt be due and unpaid, shall proceed as the law directs to satisfy said debt, or any part thereof, that may be unpaid with its secured interest, out of the proceeds of said property hereby conveyed, said property to be sold, as to the personal property for cash in hand on the premises of said J. W. Chewning, as to the real estate it shall be sold on the premises, on equal payments of one, two and three years.”
In his bill the plaintiff sets up a judgment for the sum of two hundred and ninety-four dollars and eighty-eight cents and two dollars and seventy-five cents costs, recovered by him against said J. W. Chewning, June 31, 1897, upon a debt, contracted a long time before the execution of said deed of trust, alleges that said deed was executed for no consideration deemed valuable in
At August rules, 1897, the Geiser Manufacturing Company filed its bill in said court against the .same parties to sot aside said deed of trust as fraudulent, and alleges that the defendant J. W. Chewning is indebted to it in the sum of-dollars, evidenced by two notes for two hundred and twenty dollars each and one for two hundred and ten dollars, dated July 29, 1895, due one day after date, and bearing interest, respectively, from December 1, 1895, December 1, 1896, and December 1, 1897. The notes are filed with the bill as exhibits.
W. S. Chewning answered the bill of Baldwin Ballard and demurred to it also. He denies knowledge of any fraud in the transaction on the part of J. W. Chewning and also that there was any fraud in the transaction, and alleges that on September 21, 1895, J. W. Chewning wrote him a letter requesting a loan of four hundred dollars or five hundred dollars, and offered to secure the .payment of the money by a deed of trust oñ his land; that in response to this application he loaned him four hundred and fifty dollars, October 18, 1895, taking his note therefor; that, upon a like application, he loaned him five hundred and fifty dollars, March 1, 1896, taking his note therefor; and on the 15th day of December, 1896, six hundred and fifty dollars, taking his note therefor; that when the last of said loans was made J. W. Chewning promised to secure the money thus loaned by a deed of trust, but the matter was delayed until May 31, 1897; that then said J. W. Chewning wanted to borrow one thousand dollars more and a settlement was made and said amount loaned him; and that at the time of said last loan and settlement the deed of trust was executed. With this answer there are filed as
J. W. Chewning also answered the'bill, denying that he is indebted to the plaintiff, that he executed the said deed of trust for the purpose of hindering, delaying or defrauding his creditors or any of them, and that he is insolvent, and avering that the debt mentioned in the deed of trust is Iona fide and that he has sufficient property to more than pay all of his indebtedness.
W. S. Chewning demurred to, and answered, the bill of the Geiser Manufacturing Company also, setting up the same defense as that made to the other bill. J. W. Chewning and L. B. Dunn, trustee, also answered the bill in said second suit, and there were general replications to all of said answers.
In an answer to interrogatories, J. W. Chewning shows what disposition he made of the money he claims to have borrowed from W. S. Chewning and files receipts and vouchers for most of the items. In this answer he places the value of his property at three thousand dollars, although he admits that he paid only three hundred and fifty dollars for his interest in the one hundred and twenty-five acre tract, ninety-three dollars for the seven acre tract, three hundred and sixty dollars for the twenty-six acre tract, and twenty-three dollars for the one hundred and fifteen pole tract. He thinks, however, he “got a bargain in his land purchases.-” Only seventy-two dollars has been paid on the twenty-six acre tract and nothing on the one hundred and fifteen poles tract. There are references in the record to the building of a. house on the property, but its value does not appear. Depositions were taken and filed for both plaintiffs and defendants.
On the 23rd day of March, 1899, both causes were heard together. The decree entered is in part as follows: “The causes came on this 23d day of March, 1899, to be heard upon the plaintiff’s bill, and exhibits filed therewith. The separate demurrer and answers of W. S. Chewning to said bills, the joinder of the plaintiff in said demurrer and general replication to said answers, the separate answers of J. W.
From this decree, the defendant W. S. Chewning appealed. In taking his transcript of the record, he omitted the depositions, but they, with all the original papers in the two causes, have been brought up to this Court by certiorari.
The only question extensively argued is whether or not the deed of trust is fraudulent per se, the court below having recited in its decree that in the rendition thereof the depositions of the witnesses were not considered and said deed was held to be fraudulent on its face. The appellant insists that, as the court below did not inquire whether said deed of trust is fraudulent in fact, it would be improper for this Court to do so upon appeal from that decree. In this connection, he contends that the decree, though settling the principles of the cause and, therefore, appealable, is so far interlocutory that this Court can only consider such parts of the record as the chancellor has acted upon, citing Madden v. Madden's Ex’r., 2 Leigh. 380.
In determining whether the deed is fraudulent on its face, we
It remains now to say whether, upon this record, the question of fraud in fact can be considered, and, if so, whether it exists and the deed of trust is, for that reason, void. The record -shows that, when the decree appealed from was entered, the cause was ready for hearing and actually came on to be heard upon all the pleadings, evidence and papers filed in the case, as shown by the quotation herein made from the decree. By the decree; the deed of trust is declared void, and annulled and set aside. The effect of the decree is general, covering the whole issue as to the lona fides of the deed, and granting the relief asked for in the bill. It can have but one effect upon the rights of the parties litigant, however the lower court may have reached its decision. When it declared the trust deed fraudulent, deprived W. S. Chewning of the rights he claimed under it, and declared the existence of liens in favor of the plaintiffs upon the prpoerty, the court had before it the entire record. As to the valadity of the deed, its decree is co-extensive with the entire record in legal effect. It must bo deemed to have passed upon the whole record, therefore, whether, in fact, it did so or not. It was not necessary to assign in the decree any reason for the decision and it is well settled that, if a decree is substantially right, 'it ought to be affirmed, although the inferior court may have given an erro-
The Chewnings are brothers. J. W. Chewning evidently came to Monroe County from Giles County, Virginia, but just when does not appear. One witness testifies that he came to his present place of residence in 1896. In January, 1898, he exempted his personal property from execution at a valuation of sixty-three dollars and fifty cents. A witness familiar with his real estate values it at five hundred and fifty dollars. W. S. Chewn-ing is a close, saving and enterprising batchelor, forty years old, living with his mother and sister at Harrows, Giles County, Virginia, in rented property, consisting of a house and two acres of land, the rental value of which is placed at from twenty-five to forty dollars per year, has worked for himself more or less since he was eighteen years old, raising melons, wheat and other farm products on rented land, was railroad watchman for four years and eight months at one dollar and one dollar and twenty-five cents per day, worked at station awhile at eighteen dollars per month, has made some money trading, especially in watches and jewelry, keeps some horses and had two hired out for several months at one dollar per day each; liverymen often sends men to him to hire horses at that rate; had team hauling logs for two years, always kept from three to six cows, sold milk and butter and raised calves which ranged on mountain without cost, keeps two brood mares and raises colts and turns them into money, never gave in any money for taxation because advised that it was not taxable unless loaned at interest to a bank or individual in Virginia, and, after making first three loans to his brother, went to Monroe County at his brother’s request and figured up his indebtedness to him at one thousand seven hundred and fifty-four dollars and twenty-three cents,
In answer to interrogatories, J. W. Chewning says he used the money he claims to have borrowed from his brother as follows : Of the four hundred and fifty dollars of October 1, 1895, he paid John A. McKenzie three hundred and seevnty-five dollars, for which no receipt is among the papers; C. Broyles, thirty-four dollars and thirty cents, evidenced by note dated December 12, 1895, payable one day after date, and the date has the appearance of having been altered; R. H. Arnot, ten dollar note, due one month after date, date torn off and “1895” written on margin in pencil; T. R. Mitchell, fifty-nine dollars and fifty cents, receipt, dated November 30, 1895, reciting that it is payment on produce bought, October 26, 1894, and date has evidently been altered; J. W. McOreer, eleven dollar note, dated November 12, 1895, and due June 1, 1896, eight months after the money was borrowed; and J. H. Comer, thirty dollars and fifty-four cents, due bill for produce, date torn off, but unsigned endorsement in pencil on back, “Paid November 2, 1895.” Of the five hundred and fifty dollars of March 1, 1896, he claims to have paid W. C. Ballard twenty dollars, due bill, dated November 20,'1896, more than eight months after the money was borrowed; Warder, Buslmell & Glessner Co., twenty-six dollars and fifty cents, note dated July 11, 1895, due October 1, 1896, and paid October 8, 1896, more than seven months after the money was borrowed; J. A. Miller, twenty-eight dollars and twenty-nine cents, receipt, dated June 30, 1896, date apparently altered; Augustus Broyles, five dollars, receipt dated May 1, 1896, date apparently altered; and F. J. Young, four hundred and twenty-five dollars, receipt dated May 10, 1896, over two months after money was borrowed, and reciting that it is the first payment on a four hundred and fifty dollar bond. Of the six hundred and fifty dollars of December 15, 1896, he claims to have paid S. F. Porterfield four hundred and fifty dollars, receipt dated Decern-
While the declarations of the grantor, made subsequent to the conveyance, are not admitted to affect the title of the grantee, Fry v. Casto, 33 W. Va. 449, the inability or failure of the grantor to satisfactorily account for the money he claims to have received in consequence of the conveyance, when put upon oath as to the matter, is a circumstance from which fraud on his part in the transaction may be presumed. Bowen v. Johnson, 107 U. S. 251; Clarke v. Van Riemsdyk, 9 Cranch 153; Clements v. Moore, 6 Wall. 299; Burke v. Burke, 34 Mich. 451.
Proceeding now to consider the situation of W. S. Chewning, it is to be remembered that he is a brother of J. W. Chewning, and “A transaction with a near relative is open to more suspicion than with a stranger, because it is more likely to be intended, not as a real transaction, but as a feigned and collusive arrangement by which it is secretly understood that the donee
The evidence of fraud in the case is circumstantial, but this Court has held that “Where a deed is attacked by the creditors of the grantor as fraudulent, in ascertaining whether the fraudulent intent existed in the minds of the grantor and grantee, the court will look into the circumstances surrounding the transaction, circumstantial evidence being not only sufficient to establish such fraud, but, on account of the secrecy of such transactions, is often the only evidence that can be obtained.” Bartlett v. Cleavinger, 35 W. Va. 719. The rule as to proof of fraud is stated in 8 Am. & Eng. Ency. Law, 654, as follows: “It is not always necessary, however, that direct affirmative or positive proof, of fraud be given. It may be and usually is proved by circumstantial or presumptive evidence. If the evidence is sufficient to satisy the mind and conscience of the existence of the fraud, it will be sufficient, although it does not lead to a conviction of absolute certainty. The fraud need not be proved beyond a reasonable doubt.”
The conclusion upon this state of the law and the facts in the case is that there is no error in the decree of said circuit court in this cause from which the appeal.was taken, and it is, therefore, affirmed.
Affirmed.