47 W. Va. 155 | W. Va. | 1899
At April rules', 1897, N. J. Carr filed his bill in the circuit court clerk’s office of Randolph county against A. H. ' Summerfield, John W. Heltzel, C. Ed. Lukins, Columbus Kerens, John W. Teter and Martha Teter, his wife, A. J. Bennett, Hannah Arbogast, Sampson Snyder, J. F. Harding, trustee, Charles Hedrick, Ellen Teter, J. M. Harper, D. S. Cunningham, trustee, and A. H. Harper, Sr., alleging that on the 10th day of August, 1896, defendants Summer-field and John W. Heltzel, executed to plaintiff two notes, —one for one hundred and ninety-two dollars and fifty cents payable fifty days after date, with interest, and the other for one hundred and ninety-two dollars and forty-nine cents, at one hundred and ten. days, with interest; that the aggregate amount of said notes was due plaintiff at the date thereof from Summerfield, who procured Helt-zel to become his surety in order to procure from plaintiff the time which was given in said notes; that no part of said notes was paid except two small payments of four dollars and fifty cents and twenty dollars, paid, respectively, November 2, 1896, and February 9, 1897; and that defendant Summerfield was also indebted to plaintiff in the further sum of fifteen dollars and twenty-six cents on account of saw logs sold him,' — and filed said notes and account as exhibits; alleging that defendant Summerfield was, until a short time before the institution of his suit, the owner of considerable real and personal property, and was considered by his neighbors generally to be solvent, and able to pay his debts; and a very few days after he commenced disposing of his property, as thereinafter stated, the said Summerfield represented to his creditors, and especially those to whom he did not sell property, that he was broke
Defendant - Summerfield filed his answer, admitting the claim of plaintiff as set up in the bill; that he made the conveyances to Charles Ed. Lukins and John W. Heltzel as charged, and the execution of the trust deed to D. S. Cunningham to secure the payment of six hundred and thirty-eight dollars and fortv-five cents to A. Ii. Harper, .Sr., but averring that said debt had been discharged by an absolute conveyance of said laud in fee to said Harper, admitting that he sold to defendant Kerens certain saw logs and sawed lumber about the time it was alleged to have been done, but denies said lumber amounted to near five hundred dollars; that he sold to A. J. Bennett the personal property mentioned in the bill, and that he assigned to him an order on William Whitmer & Sons for five hundred and eighty-five dollars and sixty-eight cents mentioned in the bill as five hundred dollars, and that he sold to John Teter and Martha, his wife, the property as alleged; that defendant Heltzel agreed to pay off the debt to plaintiff, and release plaintiff from all liability, in consideration whereof, and the further consideration of the payment of the J. M. Harper judgment by said Heltzel for respondent he in good faith conveying to Heltzel the real estate mentioned in the bill, — one hundred and fourteen acres and one-sixth of three hundred and twenty-five acres; that, while said deed inadvertently recites a consideration of five hundred dollars, no other consideration than aforesaid passed between Heltzel and respondent in the conveyance, and that said real estate was amply worth the aggregate amounts of said debts, with accrued interest and costs, and that Heltzel was wholly solvent, as respondent was advised and believed; that the conveyance to Lukins was made in good faith, for valuable consideration; that re
Defendant Charles Ed. Lukins filed his answer, admitting the purchase of the land conveyed to him by Summer-field. That he paid one thousand nine hundred and seventy-two dollars, as follows: “By amount of debt due from A. H. Summerfield to respondent for the sum of six hundred and' sixty-three dollars and fifty-five cents, including interest, the same being secured by a deed of trust executed May 23, 1896, and of record in the clerks’ office of the county court of Pendleton County; by the further sum of three hundred and eighty-four' dollars and eighty-six cents, including interest, amount of A. H. Summerfield’s note to respondent, executed August 11, 1896; by the further sum of six hundred and one dollars and eighty-four cents, including interest, amount of A. H. Summerfield’s note to respondent, executed November 10, 1896, and by the further sum of three hundred and twenty-one dollars and seventy-five cents, cash in hand paid by respondent to A. H. Summerfield on date of deeds. That all of the aforesaid debts had been contracted by said A. Ii. Summerfield to respondent in good faith, and for valuable consideration, and at the date of making said deeds were due and paya
Defendant A. J. Bennett answered, and admitted the assignment to him of the claim ou William Whitmer & Sons for five hundred and eighty-five dollars and sixty-eight cents, and the purchase of the personal property from Summerfield, altogether aggregating nine hundred and eighty-nine dollars and sixty-eight cents, which assignment and transfer of property was in full of Summerfield’s indebtedness to him; that the transaction was done in good faith on his part; and denies that at the time or before the transaction and the fifing of plaintiff’s bill he had any knowledge of the alleg-ed insolvency of Summerfield, the preferment of any of his creditors to others, or of any intention on the part of Summerfield to hinder, delay, and defraud plaintiff in the collection of his debt; and denies any' intention on his part to so hinder, delay, and defraud pliantiff; and denies generally each and every allegation of the bill with reference to him not admitted, and calls for ' strict proof of same on part of plaintiff, — all of which answers are sworn to.
Defendant Colujnbus Kerens answered, admitting that he purchased certain lumber from Summerfield, which was afterwards to be scaled and measured, which amounted to the stim of two hundred and eighty-three dollars and sixteen cents by actual measurement; that said purchase was made in g'ood faith, and for valuable consideration, which had been paid by respondent to Summerfield before the institution of plaintiff’s suit; that respondent had no knowledge of the alleged insolvency of said Summerfield at the time of the transaction or the filing of plaintiff’s bill; that he had no intention, in the purchase of said lumber, to in
Depositions were taken, and the cause heard on October 14, 1897, and was referred to Commissioner W. E. Baker to ascertain and report the real estate owned by defendant Summerfield on the 11th of January 1897; the date of the deeds made to defendant Lukins, the value of the said real estate, including that so conveyed; the debts owing by said Summerfield, the amounts thereof, to whom owing; whether any liens existed upon said real estate, or any part thereof; and whether said Summerfield was insolvent at the date of said deeds of conveyance, or whether he was insolvent prior thereto; and what personal property he had disposed of, as well as real estate, since the date of his insolvency, and what he was the owner of at the time of the decree, and the-value of same. The commissioner filed his report, showing the value of all real estate belonging to Summer-field on the 11th day of January, 1897, to be three thousand one hundred dollars, and the personal propertjT owned by him on the 1st day of January, 1897, one thousand three hundred and thirty-nine dollars and sixty-eight cents,— making a total of assets of four thousand four hundred and thirty-nine dollars and sixty-eight cents, — all of which was disposed of by said Summerfield after his insolvency, which he found to exist on the 1st day of January, 1897. The commissioner also ascertained the debts owing by said Summerfield on the said 1st day of January to ag-gregate the sum of four thousand nine hundred and forty dollars and forty-nine cents. To this report the defendants Sum-merfield, Bennett, Lukins, Kerens, and John and Martha Teter indorsed seven exceptions: Because he erroneously reports that, in his opinion, Summerfield was insolvent on the 1st day of January, 1897; because he erroneously reports the valu'e of the one hundred and fourteen acre tract and the one-sixth of three hundred and twenty-five acres, conveyed by Summerfield to Heltzel by deed of February 22, 1897, to be only five hundred dollars; because he er
On the 1st day'of February, 1898, the cause was again heard, when the said several exceptions to the report were overruled, as was also a demurrer to the bill. It was ascertained that defendant Summerfield was insolvent on the 1st day of January, 1897, and that all sales made by him, after that date, of his real estate and personal property, to creditors, by which he attempted to prefer creditors, were fraudulent as to such preference, and that such sales should be treated as having been made for the benefit of all creditors;-and decreeing that, said sales appearing to be for an adequate price, the same should be confirmed at the prices for which the property was sold by him, except the sale and conveyance to Heltzel of one hundred and fourteen acres and one-sixth of three hundred and twenty-five acres, which sale should be set aside, and accordingly confirmed the sales to Lukins, — the one at one thousand four hundred and seventy-two dollars, the other at five hundred dollars, — and the sale of personal property to A. J. Bennett, aggregating nine hundred and eighty-nine dollars
The answers just referred to as filed raised the same qfiestions raised by the exceptions to Commissioner Baker’s reports. That of defendant Lukins, relying upon the denials and allegations of his former answer says, that, even in the case of the insolvency of said Summerfield at the date of the deeds to respondent, he is entitled to the following priorities in favor of himself out of the one thous- and nine hundred and seventy-two dollars, the purchase price of the real estate purchased by him over the plaintiff and other creditors of said Summerfield, to wit: One note for six hundred and thirty-eight dollars and forty-five cents, with interest from May 23, 1896, which was secured
From said several decrees the defendants C. Ed. Lukins and A. J. Bennett appealed to this court, and assigned seven errors. The first is that Commissioner Baker found that defendant A. H. Summerfield was insolvent on the 1st day of January, 1897, which finding vyas confirmed by the decree of February 1,1898, while appellants claim that the evidence returned by the commissioner was so indefinite and inadequate as clearly to fail to warrant the finding. Summerfield became involved, and in 1896 executed several deeds of trust on parts of his real estate, and in the last of that year began to be sued; J. M. Harper recovering a judgment in January, 1897, for over three hundred dollars, an execution issued on which was returned “No property found” before the bringing of this suit. He began in January to dispose of his property to his creditors on account of their debts, and in a very short time had disposed of all of it. The first so conveyed was that to defendant Luk-ins by two deeds of date January 11th and acknowledged on the 19th of the same month; He sold and transferred to defendant Kerens his lumber toa greater amount than he owed him, requesting him to pay the excess after paying himself to other creditors. And to another creditor, the defendant A. J. Bennett, he gave an order on a firm who owed him for lumber in the sum of five hundred and eighty-five dollars and sixty-eight cents, and sold him stock sufficient to pay him the residue of what he owed him (in all, the sum of nine hundred and eighty-nine dollars and sixty cents), and sold and transferred personal property to his relatives, John W. Teter and wife, and conveyed real estate to John W. Heltzel, the price of which was to apply on a debt to himself after paying the Hannah Arbogast and
Second assignment: “That the commissioner’s report, confirmed by decree of February 1st, allows a debt due from A. H. Summerfield _ to John W. Heltzel in the sum of eight hundred dollars, which is inadequately proved, although appellants excepted to said report on this ground, and called for such proof of the claim as would enable them to defend against it.” It seems to me that the exception to this claim as not being adequately proven is well taken. There is no account or statement of any kind showing the nature or character of the claim, except what appears in the testimony of John W. Heltzel; and he fails to give any dates, and very little of the particulars about the claim. In his deposition taken August 25, 1897, he says, “Mr. Summerfield was in debt to me. about eight hundred dollars;” and on being recalled by the commissioner on the 18th of April, 1898, he is asked the question: “State what amount of money was due you on the 1st of January, 1897, from A. H. Summerfield, and for what was the same due. Ans. He was due me eight hundred dollars for lumber
The third assignment is by appellant Lukins, — that the court erred in confirming to him, against his protest, the sale of the two tracts of land, and decreeing against him for the appraised value, instead of reselling the property.. The first part of this assignment is not sustained by the record which does not show a protest by the appellant against the confirmation of the sale, but at the time of the making of said decree confirming the sale to him on February 1, 1898, the case stood upon his answer denying the right of plaintiff to have the sale set aside. The cause, it appears, came on to be heard, among other things,“upon the demurrer of A. H. Summerfield, Chas. Ed. Lukins, A. J. Bennett, and Columbus Kerens to'plaintiff’s bill, and
Fifth assignment: That the court erred in not recognizing the priority of appellant Lukins’ prior deed of trust for six hundred and thirty-eight dollars and forty-five cents on the ninety-nine-acre tract of land included in the transfer. The deed from Summerfield to Lukins, being dated January 11,1897, which was avoided as an illegal preference, included a tract of ninety-nine acres, on which Lukins had a deed of trust, executed by Summei’field, bearing date June 16, 1896, securing to him the payment of the sum of six hundred and thirty-eight dollars and forty-five cents with interest from May 3, 1896, which was duly acknowledged and recorded,'the amount of which, together with two other notes made to Lukins by Summerfield, and the three hundred and twenty-one dollars and seventy-five
Sixth assignment is by A. J. Bennett, — that it was error to invalidate, as an illegal preference, the assignment from A. H. Summerfield to him of an order for five hundred and eighty-five dollars and sixty-eight cents on William Whit-mer & Sons, in part payment of a bonafide debt then due from Summerfield to Bennett, which order was for money due from William Whitmer & Sons to Summerfield for-lumber sold them; that said Bennett acted in good faith, without knowledge of any insolvency on the part of Sum-merfield, and wholly Without intent to hinder, delay., or defraud any creditor of said Summerfield. Defendant Sum-merfield was indebted to Bennett in the sum of nine hundred and eighty-nine dollars and sixty-eight cents. This amount was paid to Bennett by the said order on Whitmer & Sons, and the transfer of stock and other personal property aggregating said amount of nine hundred and eighty-nine dollars and sixty-eight cents. The court set aside the preference given to Bennett as illegal, as to his whole claim, and placed the same on a footing with all simple-contract creditors, to be paid fro rata and decreed against
Seventh: Appellants “join in assigning as error the decree of February 1, 1898, in that it sets aside a sale made by Summerfield to J. W. Heltzel, and the resale of the property conveyed, at a less price, and at the cost of the insolvent estate, although Heltzel fully admits that he knew of the insolvency of Summerfield at the time of the purchase. Sales made by Summerfield to others who were innocent purchasers were, on the other hand, confirmed to them against their protest. ” The bill of plaintiff prayed for the setting aside of the deed to Heltzel, and that the property be sold, and the proceeds applied to the several creditors of the defendant A. H. Summerfield j>ro rata. Defendant Heltzel failed to answer or put in an appearance. The bill was taken for confessed as to him, and on the 1st day of February the decree was rendered setting aside the sale
For the reasons herein stated, the decree of February 1st, 1898, in so far as it overrules the demurrer to plaintiff’s bill, and decides the defendant A. Summerfield to be
Modified.