48 W. Va. 666 | W. Va. | 1900
This is a suit to set aside as fraudulent and void as to plaintiff's claim a deed from George C. Loomis and wife to the defendant Daniel Gould, conveying to him certain real estate on Seventh street in the city of Parkersburg, dated October 30, 1894, and to subject the said property to sale for the payment of said claim. In July, 1892, said Loomis made his note to plaintiff Blubaugh endorsed by C. S. Pewsmith and L. N. Tavenner, for five hundred and twenty dollars for borrowed money. The note was not paid, but renewed once or twice, the endorsers waiving protest on it when it would fall due. In November, 1894, a payment of seventy-five dollars was made on the note. In April, 1897, the note was renewed for the amount then due including interest, amounting to five hundred and thirty-four dollars and eighty-two cents, with said L. N. Tavenner alone as endorser, and when the same fell due on the 23d day of May, 1897, the same not being paid when presented, said Tavenner, the endorser, waived protest thereof in writing. On the 19th day of October, 1892, Daniel R. Neal conveyed to George C. Loomis in consideration of four thousand dollars of which three thousand dollars was paid in cash, five hundred dollars in five annual notes of one hundred dollars each, with interest, and the possession and use of an office building on said premises reserved by the vendor for five years, which was treated as part of the purchase money at five hundred dollars, the said Seventh street property first mentioned. . After this conveyance to Loomis, he made improvements on said property in the way of building some cheap frame buildings thereon costing about one thousand three hundred dollars. On the 30th of October, 1894, Loomis
The judge of the circuit court being a party defendant to the bill, Smith D. Turner, Esq., was duly elected special judge to' hear and determine this cause. September 1, 1897, the defendant Daniel Gould tendered his demurrer to plaintiff’s bill which on his motion was set down for argument. Said defendant also tendered his answer, which was filed and to which general replication was entered.- On the 2d of September the demurrer being argued was overruled, said defendant then moved the court to require plaintiff to elect which of the two properties mentioned in the bill he proposed to pursue for his alleged debt, viz: the Seventh street property or the funds in the hands of defendant Crane, and if the latter, to require plaintiff to enter a release of all said funds in the hands of said Crane except enough to cover the plaintiff’s debt, and on motion of defendant said motion was set down for argument. The answer of Gould denies all material allegations of the bill, denies all fraud and avers that all the transactions complained of as fraudulent between Loomis and his wife and himself, were fair and honest, bona fide and in no way tainted with fraud and denies his insolvency at the time of said transactions and each of them, and denies all charges and intimations of fraud and collusion between him and said Loomis in relation to any of the transactions mentioned in the bill; avers that the Seventh street property which he purchased from George C. Loomis has not netted him an income of exceeding six per cent, on valuation of four thousand dollars; that when Loomis first asked him to purchase it he declined to buy it, but finally when said Loomis failed to make sale of the property to others at any price, and respondent says that he reported to him that he had fried to get four thousand five hundred dollars for it and failed, respondent in order to aid said Loomis agreed to buy the property at four thousand dollars, and did. in good faith do so, and had fully paid therefor, and at the time of the purchase he had no knowledge whatever of plaintiff’s claim; that in answer to the insinuations in the bill that he did not pay the two thousand five hundred dollars cash balance recited in the
On the 4th of September, 1897, the cause came on to be heard
The requirements of an affidavit as to the material facts to be set out to be sufficient grounds for an attachment are very fully discussed by Judge Snydeb in the case of Delaplain v. Armstrong, 21 W. Va. 211. The defendants Daniel Gould and George C. Loomis having filed their several answers denying under oath all the material allegations of the bill, denying all fraud or fraudulent intent and said Gould having further denied any and all knowledge or notice of fraud or fraudulent intent, has the plaintiff sufficiently proved fraud? and especially notice and knowledge of fraud in the defendant Daniel Gould ? Loomis bought the Seventh street property from D. B. Neal in October, 1892, at the price of four thousand dollars. He made some improvements, grading and building a cheap tenement house upon it in 1894, needing some money both to meet debts and to put into the firm business of Loomis and Young, he tried tt> sell this Seventh street property. He went to Mr. Gould, his father-in-law, wanting him to buy it. Gould at first refused, and told hi-m to sell it to some one else. Loomis state's that he tried to get five thousand dollars for it and fell in price from time to time until he got the price down to four thousand five hundred dollars, and failing to get that price, again applied to Gould who purchased it at four thousand dollars. Plaintiff alleges in his bill that this is a very inadequate price. “Mere proof of inadequacy of price by itself has been considered insufficient to implicate the vendee in the fraudulent intent, and inadequacy of price, unless extremely gross, does not per se prove fraud. It must appear that the price was so manifestly inadequate as to shock the moral sense, and create at once upon its being men
W. F. Nolan, connected several years with Traders’ Building Association, had been on committee to value real estate for loans, knew the Seventh street property. In his opinion it was worth in 1894, subject to the life lease of D. B. Neal on the brick office, anywhere from three thousand dollars to three thousand five hundred dollars. E. L. Davidson owns property corner-Market and Eighth streets, knew the Seventh street property, “should say it was worth four thousand dollars” in 1894, and subject to the lease on' the brick office would make it three thousand five hundred dollars instead of four thousand dollars. E. L. Davidson owned real estate in city of Parkersburg, had but little experience, but a great deal of observation about buying and selling real estate, knew the property in question in 1894. “I should say it was worth four thousand dollars.” W. N. Chancellor had lived in Parkersburg over fifty years, had bought
Mr. Gould underpinned and painted the house, putting on it about one hundred and fifty dollars improvement, and was trying to sell it at four thousand dollars, offered it to witness Dotson at that price, and was offering it at four thousand two hundred dollars in 1898. He testifies that he had made efforts to sell the property, had had it in the hands of an agent, that he had endeavored to get the best offer for it and the highest price he had offered was a little over four thousand one hundred dollars. Whatever may have been the intent of George C. Loomis in relation to putting his property beyond the reach of his creditors} and there is some evidence tending to show that he had some design of that sort. And yet it seems that he used none of the consideration for his-personal benefit, except to pay on his debts, and to build up the business of Loomis and Young, and if Loomis had such fraudulent' purpose and intent, has it been shown that Mr. Gould had knowledge of such thing? It is alleged that Gould was not in such financial circumstances as to enable him to have made the purchase, making a down payment of two thousand five hundred dollars, or to have given his daughter property of the value of four thousand five hundred dollars, that such dealings would not be fair to his other three children, or to his creditors. It is shown that he had already provided for his other three children, and that he had provided them with property of about an equal amount, and it nowhere
My associates, however, are of the opinion that the circumstances of the parties, the known and continued financial distress of the defendant George C. Loomis, the relationship existing between the defendants Gould, the father, Mrs. Nannie G. Loomis, the daughter of Gould, and George C. Loomis, the husband of Nannie and son-in-law of Gould, all living together in the same house as one family, raise a presumption of the certain knowledge of said Gould of the fraudulent intent of the defendant George C. Loomis to get his property out of the reach of his créditos, that can be overcome only by clear and convincing proof, which, coupled with the further fact of the positive recital in the deed of October 30, 1894, of the payment on the purchase money of two thousand five hundred dollars, in cash, when it is not only proved but admitted that it was not all paid at the time, and the proof is not considered sufficiently clear as to the certain payment of all the said two thousand five hundred dollars, even afterwards, and being a case of doubt, in their view, the circuit court should not be overruled. They are therefore of the opinion that the decree should be affirmed.
Affirmed,