18 W. Va. 258 | W. Va. | 1881
announced the opinion of the Court:
The only question in this case is, whether the order made by the judge of the circuit court of Jefferson county in vacation on the 16th day of June, 1879, upon the motion of the executors of John W. Stewart to dissolve the injunction awarded by the circuit court of Jefferson county on the 2d day of May, 1879, enjoining the trustee, G. M. De L. Smith, from selling the land conveyed by Nicholas S. Shaull to Thomas M. Shaull
The deposition of Thomas M. Shaull was taken to prove, that this deed and deed of trust were executed with the fraudulent purpose of hindering, delaying and defrauding the creditors of Nicholas S. Shaull. This deposition is objected to, on the ground that he cannot testify as to transactions had between him and John W. Stewart in his lifetime, he being then dead. Our statute, see Code W. Va. eh. 130 § 23, II., prohibits him from testifying in his own behalf; but there can be no legal objection to his testifying against his own interest. McMechen v. McMechen, 17 W. Va. 683. By his testimony it was shown, that the deed by his father, Nicholas S. Shaull,' made to hi'm on September 3, 1875, was made to hinder, delay and defraud the creditors of said Nicholas S. Shaull; and that the deed of trust of the same date to G. M. De L. Smith, trustee, executed by him, was a part and parcel of the same fraudulent transaction. This evidence is obviously against his own interest. If true, it will deprive him of this land, and still leave him liable to pay the $3,500.00 bond held against him by the executors of John W. Stewart. The deed to him being proven to be fraudulent, it seems clear to me, that the plaintiff, a creditor.of Nicholas S. Shaull at the time this fraudulant deed was made, had a right to enjoin the sale by the trustee under the deed of trust, made at the same'time and a part of the same fraudulent transaction, whether the oestui que trustj John W. Stewart, the assignee of Nicholas S. Shaull, was or was not party to this fraud ; and therefore the injunction ought not to have been dissolved on the said motion made in vacation. If the deed from Nicholas S. Shaull to his son, Thomas M. Shaull, was, as he says, fraudulent, this land is still the property of Nicholas S. Shaull and should be subject to the payment of the plaintiffs debt.
It would not be proper for this court at this time to express any opinion, as to whether this land should also be held liable to the payment of the $3,500.00 bond, now held by the executors of said Stewart, or whether its liability to the payment of this bond would or would not depend upon the .question, whether the said John W. Stewart was or was not a party to the fraud, or had notice thereof: or whether, if such liability
I am therefore of opinion, that the order of the judge of the circuit' court of Jefferson county, made June 16, 1879, in vacation, should be set aside, reversed and annulled, and that the appellant, Thomas B. Beall, should recover óf the ap-pellees; W. T. Stewart and Robt. H. Stewart, executors of John W. Stewart, deceased, his costs incurred in this Court, to be paid out of the assets of their testator in their hands to be administered; and that this cause be remanded to the circuit court of Jefferson county to be further proceeded in according to the principles governing courts of equity.
Order Reyersed. Cause RemaNded.
