88 Va. 980 | Va. | 1892
delivered the opinion of the court.
On the 8th day of March, 1890, ÍT. Burruss, doing business as Burruss, Son & Co., sued out of the clerk’s office of the court of hustings for the city of Portsmouth, an attachment against George R. Trant and J. B. Trant, doing business as Trant & Bro., which attachment was sued out in
The record presents the sole and simple inquiry. Had Trant & Brother, at the time of the suing out of the attachment, assigned or disposed of, or were they about to assign or dispose of their estate or some part thereof, with intent to hinder, delay or defraud their creditors ? ”
The onus was upon the attaching creditor — the plaintiffs, Burruss, Son & Co., to show the existence and the truth of the alleged ground of their attachment. Wright v. Rambo, 21 Gratt. 158; Sublett & Cary v. Wood, 76 Va. 318.
The entire evidence introduced by Burruss; Son & Co. to sustain the charge of fraud and to support the attachment, was his own testimony, and three deeds of trust to G. Hatton, trustee — the first dated November 14th, 1889, was made by Trant & Brother to secure a note executed by them, to the Bank of Portsmouth for,$4,000, which deed the Bank of Portsmouth, to whom it was delivered and who held it, did not put to record until March 10th, 1890. The other two deeds of trust were dated March lltli, 1890, and were recorded March 22nd and March 27th, 1890, respectively. One was an assignment of all the property and assets of the firm of Trant &
The defendants, Trant & Brother, introduced no evidence, deeming it unnecessary because of the utter insufficiency of the proof offered by the plaintiff, Burruss.
There is nothing in the evidence of Burruss and three deeds of trust aforesaid to warrant the attachment sued out by him in this case. He relies solely up.on the bare fact that the deed of Hovember 14th, 1889, to secure the $4,000 debt to the Bank of Portsmouth, was not recorded- until March 10th, 1890, by the said bank. Ho fraudulent intent was shown, nor was it asserted or implicated that the debts secured -were not actual, bona-fide debts due by Trant & Brother; and Burruss did not even attempt to show any fraudulent intent, by putting upon the witness-stand either Trant, any officer of the bank, or the trustee in the deed. The mere failure or neglect of the bank to record the deed given for its security, without the least evidence or suspicion that Trant & Brother knew of, requested or desired such want of action on the part of the bank, cannot be construed as an attempt by Trant & Brother to hinder; delay or defraud their creditors. The testimony of Burruss shows, that in February, 1890, Trant presented at the banking-house of Burruss, Son & Co. a draft for $600, drawn by Trant & Brother on Brown, Graves & Co., of Baltimore, Maryland, payable fifteen days after date of February 18th, 1890, and accepted by Brotan, Graves Co., which said accepted paper Burruss, Son & Co. discounted at the rate of two and a half per centum for less than fifteen days, and forwarded the same to Baltimore for collection. Burruss does nót testify or claim that any representation was made to him, at that time, either as to the solvency of Trant & Brother or of Brown, Graves & ' Co., of Baltimore. Ho representation of any kind was made
Xo fraud on the part of the bank or of the trustee in the deed of Xovember 14th, 1889, is alleged or shown; and the omission of the bank to record the deed before March 10th, 1890, was simply the result of oversight, and there is nothing in the evidence to warrant the faintest presumption to the contrary. Burruss testifies: “ I never examined the records to ascertain if Trant & Brother had made any deeds, and never made any inquiry of them as to that fact. I never took any steps before cashing the draft to ascertain if Trant & Brother had made any deed. I know of no act of fraud committed by Trant Brother, except this deed.”
Because Trant & Brother became insolvent on March 10th, 1890, and Brown, Graves & Co., of Baltimore, in good commercial standing, failed to pay a draft of Trant & Brother, which they had duly accepted, and which, upon the faith of their said acceptance, had been heavily discounted by Burruss, Son & Co. in the regular course of commerce, does not warrant, the presumption that the belief of Mr. Trant, in December, 1889, that the firm of Trant & Brother was solvent, was false, and that a deed of trust made by them Xovember, 1889, to secure an admittedly honest debt to the Bank of Portsmouth, was so, then, made with intent to hinder, delay or defraud
There is no error in the judgment, complained of, and it is affirmed by the order of this court.
Judgment affirmed.