41 W. Va. 234 | W. Va. | 1895
On the second Monday in September, 1865, Fontaine Smith, commissioner, sold, under a decree of the Circuit Court of Marion county, a tract of land situated in said county, containing seventy five acres and a fraction; at which sale Zackwell Clelland became the purchaser for the sum of one thousand one hundred and sixty two dollars and fifty cents—paying in cash ninety five dollars and thirty six cents, and executing to said commissioner his three several bonds, with security, for three hundred and eighty seven dollars each, bearing interest in accordance with the terms of the decree of sale; and on the 29th day of May, 1867, said purchaser having complied with the terms of sale, the said Fontaine Smith, commissioner, executed and delivered a deed for said tract of land to said Zackwell Clelland.
On the 6th day of January, 1891, Thomas Clelland, a son of said Zackwell Clelland, who was then twenty six years of age, was arrested upon a charge of bastardy, upon the affidavit of Isabella Morlcy, which accused him of being the father of a female bastard child, of which she was delivered on the 23d of February, 1890; and on the 6th day of January aforesaid the said Thomas Clelland entered into a recognizance before a justice of Monongalia county in the penalty of three hundred dollars, with said Zackwell Clelland as his surety, for 1ns appearance before the circuit court of Marion county, W. Va., on the first day of the next term thereof.
On the 8th day of June, 1891, the said Zackwell Clelland went to said Isabella Morley, and compromised said bastardy case by executing’ to her three notes for eighty three dollars and thirty three and one-third cents each, which she afterwards assigned to one Morgan Billingsley, who, after obtaining a judgment upon one of said notes, hied a bill in said circuit court to set aside said deeds from Zack-well Clelland to Charles E. Clelland, and from Charles E. to Mary E. Clelland, the wife of said Zackwell Clelland, as fraudulent and void.
Said Morgan Billingsley, in his bill, alleged the foregoing facts as to the manner in which title to said property was acquired by said Zackwell Clelland, and how and when the same was transferred to Mary E. Clelland, and also alleged that at the time the said Zackwell Clelland went to said Isabella Morley to induce her to compromise said bastardy case, on the 8th day of June, 1891, he represented to her that his notes would he perfectly good for the amount therein mentioned, for the reason that he was the owner of said seventy five acre-tract of land, and that, confiding in his honesty and the truth of his representations, she was induced to make said compromise, and that neither lie nor the said Isabella Morley had any notice of said conveyance to said Charles E. and Mary E. Clelland; that no consideration passed for said conveyance; and that the said Charles E., the nephew of said Zackwell Clelland and Mary E., his wife, conspired with said Zackwell Clelland in making said conveyance with the intent to cheat and defraud the said Isabella Morley in making said compromise of the bastardy proceedings against Thomas Clelland, the son of said Zack-well and Mary E. Clelland.
The defendants demurred to said original bill, and the
Thomas Clelland also answered said bill, denying that lie ever authorized his father, Z. Clelland, to compromise said proceeding for him at any time, and alleging that said three notes were obtained by said Belle Morley by false and fraudulent representations; that said Belle Morley falsely, fraudulently, and corruptly charged him with being the father of a bastard child of which she claimed to have been delivered, and fraudulently induced said Zackwell Clelland to execute to her said three notes. And he alleges that said charge brought against him is false and fraudulent, and that said notes were wholly without any
Depositions were taken by both plaintiff and defendant. The defendant Thomas Clelland, in his deposition, states that he never authorized his father to compromise said bastardy proceeding with said Belle Morley, and to execute to her his three notes for eighty three dollars and thirty three and one-third cents each, for he did not owe her anything; that he never talked to her about compromising said case, and when asked, “Did you ever have carnal connection with Belle Morley, the girl who charged you with being the father of her bastard child?” replied, “No, sir; I never did.” And this is the only testimony upon this point, as the said Belle Morley was not put upon the stand to contradict him; and, if this testimony of Thomas Clelland is to be credited, the said Belle Morley perpetrated a fraud in instituting said proceedings, and could not recover upon said notes if they had never been assigned by her. Again, there is another reason why she could not recover upon said notes, and that is because the evidence shows that she promised to do what she had no power to carry out, as a consideration therefor, to wit, to dismiss said prosecution and release said Thomas Clelland from all claims on account of said bastardy proceeding, which she never has done, and has no power to do, without the consent of the county court. The testimony of the clerk of the circuit court showing that there never had been but one order made in said bastardy case, and that was an order of continuance, the case then, is still pending in the circuit court
The plaintiff, Morgan Billingsley, filed a special replication to the answer of Mary E. Clelland, in which he alleged that, if said Mary E. Clelland ever advanced or furnished any of the money in said answer mentioned and set out, said money ivas furnished to her husband prior to the enactment of the married woman’s statute of this state, and it became and was the property of her said husband, and that said money, if furnished at all, was so furnished more than five years next before the bringing of this suit or the tiling of said answer.
The said Mary E. Clelland, in her answer, denied any collusion with her husband and Charles E. Clelland in making the transfers of said seventy live acres of land to her, or that it was done to cheat and defraud said Belle
At the hearing the court rendered a decree setting aside said conve} anees as fraudulent, and directing a sale of said land to satisfy the plaintiff’s claim, which was ascertained to be two hundred and seventy six dollars and thirty nine cents, including interest and costs, and this appeal was obtained.
Did the court err in overruling the demurrer to plaintiff’s bill? In considering this question, our attention is first directed to the fact that said deeds were placed on the public records on the same day on which they were executed, and in this way notice -was given to the world of the fact; and the said Belle Morley, at the time said notes were executed to her by Zackwell Clelland, and the said Morgan Billingsley, at the time they were so placed on record, were bound to take notice of the fact.
As to the consideration paid for said land, it appears in the testimony that several hundred dollars which said Mary E. Clelland derived from her father’s estate went into that purchase. Mary E. Clelland, in her deposition, stated that she inherited from her father an undivided one-fourth interest in what was called the “McElroy Place,” which her brother John bought from her for four hundred dollars and which he paid for her on the purchase money of the land in question; and while the commissioner who sold the land reported that it was purchased by Zackwell Clelland, and he also states it was paid for by him, yet several witnesses state that said Clelland was not present at the sale, and that it was bid in by the brother of said Mary E. The commissioner would rely to some extent upon his report;* and, after so long a time, may have forgotten the facts, but the defendant states that she knows that her money paid for the land. Be that as it may, it was conveyed to her by her husband when he owed no debts. It is alleged that Zackwell Clelland, at the time he effected the compromise with Isabella Morley. on the 8th day of June, 1891, represented to her that he was the owner of said seventy five acres of land, and thereby induced her to
We must therefore regard the contract between Zack-well Clelland and Isabella Morley as an illegal one, as being against public policy and in contravention of law. Under the head of “Illegal Contracts,” 9 Am. & Eng. Enc.
Other cases might be cited from different states, but these are sufficient to indicate the policy of the law in such cases; and from these it is clearly shown that the object of the law in all of these states is to prevent the unfortunate child from becoming a charge upon the public, and the law will allow no agreement with the mother, or payment of money to her, after such proceedings have been initiated, to stifle such proceedings, or cause their dismissal, without proper security from the accused to protect the public interest. And, as before stated, these notes having been executed by said Z Clelland to said Belle Morley in consideration of her agreement to do something which she had no power to do, and which she seems never to have attempted to do, said notes are without any valid consideration, and can not be enforced, and for these reasons the demurrer should have been sustained.
It is further assigned as error that the court should not have decreed a sale of said laud without having first ascertained and fixed the amounts of the debts of said decedent’s estate, and the liens on said lands, and their priorities, and without having referred the cause to a commissioner to ascertain and report what amount of personalty of said decedent's estate was subject to the payment of said notes and judgment; bur, as I am of opinion that the plaintiff had no right to subject said land to sale to pay said claims, it is unnecessary to pass upon these points. The decree complained of should be reversed, and the bill dismissed, with costs.
On the 6th day of January, 1891, Belle Morley having previously made complaint that Thomas Clelland was the father of a female bastard child, of which she was delivered on the 28d day of February, 1890, the said Thomas del-
On the 5th day of June, 1891, shortly before the July term of said court, the said Z. M. Cielland, by two separate deeds, conveyed all his property, both real and personal, through his nephew Charles Cielland, to his wife, Mary E Cielland, and had said conveyances immediately admitted to record.
On the 8th day of June the said Z. M. Cielland went to Eorksburg, in said county, and, taking W. C. Doughterty, a justice of the peace, went to the residence of Mrs. Morley, and the two persuaded Belle Morlcy to compromise her claims against said Thomas Cielland for the sum of two hundred and fifty dollars. She expected payment in cash, and when he offered to give his notes, and she objected because of his financial standing, the justice informed her that his standing was good; that he owned a tract of land, and a large amount of personal property—to all which the said Cielland assented. She then agreed to the compromise, and signed a release “releasing Tom from everything pertaining to the case—all debts, dues and everything.” The justice says that ho was not aware at the time that Cielland had made everything out of his hands, or he would not have had anything to do with the matter.
Afterwards, Belle Morlcy assigned said notes to the plaintiff, who brought suit, and obtained a judgment and execution on one of the notes, but was unable to make the same, as said Z. M. Cielland banteringly claimed he had no property, and he did not intend to pay said notes. The plaintiff then brought this suit to set aside said conveyance of the land to Mary E. Cielland as fraudulent and void as to said notes. During its pendency, and before hearing, Z. M. Cielland died, and the suit was revived in the names of his administrator and heirs. Such proceedings were then had therein that on the 23d day of March, 1893, a decree was entered holding said conveyance void as to said
From this decree certain of the defendants, including Mary E. Clelland, the only party prejudiced thereby, appeal. Numerous errors are assigned, some of which are merely technical and trivial; among others, that the administration account was not settled, when it is clearly shown that Zackwell M. Clelland had conveyed all his personal property lo his wife, and had nothing at his death, and lienee there was nothing to administer and nothing to settle. Another is that the creditors were not convened. This has heretofore been held by this Court to be unnecessary. Core v. Cunningham, 27 W. Va. 206; Duncan v. Custard, 24 W. Va. 730; Murdock v. Wells, 9 W. Va. 552. There are, however, three important questions presented:
1. Was the compromise made by Belle Morley with Z. M. Clelland contrary to public policy and good morals, and the notes sued on by reason thereof invalid? Whenever this question on similar notes has been fairly presented to a court of last resort, the uniform decision has been in favor of their validity, unless the compromise has been procured by fraud, or the notes include an obligation not to testify against the accused in a criminal prosecution. In the case of Martin v. State, 62 Ala. 119, it was held to be the settled law of the state that “the mother of a bastard, after she bas commenced proceedings against the putative father, may compromise the case and dismiss the prosecution, and a bona fide, compromise is a bar to the further maintenance of the prosecution.” It is true the chief justice, while holding this to be the settled law of the state in Wilson v. Judge Co. Court, 18 Ala. 757, expressed a doubt whether the court would so hold if it were a new question, but, being settled by numerous decisions, the court was not at liberty to disturb it. Such expressions as these are usually nothing but meaningless sugar-coats to a bitter pill. See, also, Merritt v. Flemming, 42 Ala. 234. In Jackson v. Finney, 33 Ga. 512, it was held, “Forbearance by the mother to prosecute the putative father of a bastard child under the bastard laws of this state constitutes a sufficient consideration to support a promise by such a father to pay
These authorities establish beyond controversy or ([nibble the right of a mother to compromise a bastardy proceeding, in so far as her rights are concerned; and if such contract of compromise is reasonable in its terms, and fair as to her, the courts will uphold the same, and compel the putative father, or other person obligating himself for him, to pay any note given in such settlement. But if such compromise is effected through fraud on the part of the putative father, or his representative, the mother may avoid it. But no such compromise is binding on the county court or state; unless it assents thereto, but neither the county court or state has any right to interfere therewith as long as the mother is satisfied, and as the natural guar-
The pretense that Belle Morley hound her self to do something she could not legally do is wholly untenable, and not justified by the evidence. She was an unsophisticated, inexperienced, country girl, who had been wickedly duped and wronged, as she claimed, by Thomas Clelland. His father, Z. M. Clelland, for the purpose of keeping him out of jail, went on ids bond for his appearance to answer the charge of bastardy; then, fearing the result of his obligation, proceeded to transfer all his property, both real and personal, out of the reach of the law. Not satisfied with this, but fearful that Thomas would have to go to jail as soon as his duplicity is found out (in getting rid of his property, and thus rendering the bail bond a straw one) he takes a justice of the peace, a representative of the law (one who women and children suppose, at least, is fully acquainted with the law and judicial proceedings) and, by representing the disgrace and scandal of a court trial, persuaded this unfortunate girl (whohad, seemingly, no other adviser than her mother) to compromise all her claims against Thomas for two hundred and fifty dollars. The release is not in evidence, but the Clellands must have it. The justice says, “I then drew up a general release, releasing Tom from everything pertaining to the case—all debts, dues, and everything.” After signing which, she expected the money, but this grey haired schemer, knowing that
Thomas sets up the plea of not guilty. This plea comes too late to avail. His conduct belies his words. If lie is as guileless as he now pretends to be, why was he not prompt., eager, and ready for trial at the first term, instead of obtaining a continuance? He says that.he did not know anything about, the compromise until a month or two after it was made, and then he was informed by a- man by the name of Stanton, now dead; and yet he was living at home at least part, of the time, and the July term of court, to which he was still recognized to appear, intervened. This is certainly an incredible story. That his father would compromise the matter to release him, and yet not inform the beneficiary about, it, is not in accord with ordinary human conduct, especially as it was necessary, in absence of a settlement, to get ready for his trial. If all his evidence is to be judged by this statement, it can he given but little weight. His innocence probably did not occur to him until lie found out his mother ivas in danger of losing her property by reason of the false charge against him. Ills awakening now comes too late, for in the case of Holcomb v. Stimpson, supra, it was held that, “when a promissory note is given to compromise a contingent liability, the note can never be avoided by showing that, the maker of the note was not in fact or law liable.” Nor can a note given in compromise of bastardy proceedings “be avoided by shoving that the person accused could not have been the father, unless fraud or imposition in bringing about the compromise be also shown.*’ The court also says: “The surceasing of a suit, even for a time, is always a good consideration for a promise. So, also, is the compromise of a doubtful claim.” And in the case of Martin v. State, supra, the court says: “A compromise made or offered is not evidence of the justness of the claim agreed or offered to be compromised. Parties sued, or against whom a claim is
Compromises of all civil suits are always encouraged by the law, and if the ends of justice can he effected thereby, it is far better for all parties concerned. And more truly is this the case in bastardy proceedings, as it keeps much scandalous matter from becoming public property, and saves the expense of a useless trial. To hold the notes in controversy invalid for the sole reason that the woman had no authority to hind the county court, and thus let a doubtful Thomas, acting through a scheming lather, escape the duty he owes towards his bastard offspring, would be a perversion of justice, and a permitting of that which the law intends “as a shield for an unfortunate, weak, or foolish woman to he converted into a sword to pierce her.”
. 2. The second contention of appellants’ counsel is that the assignment of the notes to the plaintiff did not carry with it the right to attack the fraudulent conveyance from Z. M. Clelland to his wife. On this question I include notes made by Judge Brannon, in which I concur. They are to the effect that an assignment of a note carries with it all the remedies of the assignor, including the right to attack a fraudulent conveyance, and are as follows, to wit:
“When choses in action could not be assigned, because to allow their assignment tended to beget maintenance and champerty, there may have been something in the position, though equity limited the restriction long ago; but many, many years ago the Virginia legislature made debts assignable, and the law is well settled that the as-signee can sue in his own name, or he can sue in the name' of the assignor, without power in the assignor to prevent him. Hogg, Pl. & Forms, 18; Whitaker v. Gas Co., 16 W. Va. 717; Kimmons v. Wilson, 8 W. Va. 584. Being thus lawfully the owner of the debt, and possessing remedies for its recovery in his own or his assignor’s name, why can
“I am not satisfied that the notes given in a compromise of bastardy proceeding are contra bonos mores. The county can disregard the contract, it is true; but if it does not and the party is not able to plead failure of consideration, can he say the contract, is void? Can he be heard to allege the illegality? I hardly think it void as against public policy.”
3. That the deed executed by Z. M. Clelland to Mary Ellen Clelland was not fraudulent as to the notes in controversy, and, if so, the grantee had no notice of the fraud, nnd did not participate therein. The circumstances of this case fully establish the fraudulent intent on the part of grantor, Z. M. Clelland. Prom the time he -went on Thomas’ bond, until he secured by his fraudulent representations, aud those unwittingly made by the justice with his assent and in his presence, a release of all her claims, from Belle Morley, against his son, Thomas, his conduct evinces the fraudulent scheme he was laboring to effect, and which he finally accomplished according to his intention and design; and that was to release Thomas from the prosecution, and himself from his bond, and get the prosecutrix to accept in satisfaction his worthless paper. No deeds were ever more carefully prepared than the four deeds through which ho conveyed all his property, both real and personal, to his wife. Why have deeds made and recorded for the personal property, if he was free from debt? Gifts from husband to wife are upheld, except as to creditors. Did he do this with the intention of becoming indebted before the recordation of these deeds was found out, and then taking advantage of constructive notice to defeat the recovery of such indebtedness? If so, he fully accomplished his purpose, and the law presumes that such was his intention. “What a man does is what he intends to do,” is a
Under the law as it was at the time of the purchase, the husband was entitled to the wife’s personal property, and there could be no resulting trust in her favor, considering the money came through her, as it was legally 1ns, and the land purchased with it would belong to him. And, if he ever intended to deed it to her, he should have done so before he entered upon the perpetration of the fraud he succeeded in accomplishing in this case. If it is her separate estate, both since and prior to the Code of 1868, and she permitted him to invest it in property in his own name, no resulting trust will be raised in her favor, but it will be presumed to be a gift. McGinniss v. Curry, 18 W. Va. 29; Hamilton v. Steele, 22 W. Va. 348; Deck v. Tabler, 41 W. Va. (23 S. E. 721). In the case of Burt v. Timmons, 29 W. Va, 441 (2 S. E. 780) it was held that “a transfer of property, either directly or indirectly, by an insolvent husband, is justly regarded with suspicion; and unless it clearly appears to have boon entirely free from intent to withdraw the property from the husband’s creditors, or the prresumption of fraud be overcome by satisfactory affirmative proof, it will not be sustained.” Miller v. Cox, 38 W. Va. 747 (18 S. E. 960) Bank v. Atkinson, 32 W. Va. 203 (9 S. E. 175) Maxwell v. Hanshaw, 24 W. Va. 405.
In this case the husband rendered himself insolvent by transfers to his wife witli intent to defeat the then pending
Affirmed by an equally divided court.