62 W. Va. 476 | W. Va. | 1907
In the circuit court of Doddridge county, at the October Rules, 1904, Joseph Cheuvront instituted this suit in chancery, presumably under section 2, chapter 133 of the Code, for the purpose of enforcing a claim against William J. Horner, and in pursuance of such object to set aside and cancel, as made in fraud of his rights as a creditor of said Horner, certain transfers of‘real estate and personal property made by said Horner to to his wife, Maggie Horner.
It may be proper to make reference to the opinion of this Court in the case of Cheuvront v. Cheuvront, 54 W. Va. 171, for a statement of the facts explaining the-source of this litigation. It is useless for us to repeat them at length here. To a great extent, in the view we take of this case, they have nothing to do with it.
' It is there shown, as it is shown in this suit, that Joseph Cheuvront on the 30th day of October, 1899, placed in-the hands of William J. Horner the'sum of $750.00 with which to compromise a certain divorce suit then pending1 between said Joseph Cheuvront and his wife, Elizabeth Cheuvront, and took his receipt for such sum, in which receipt there are certain stipulations hereinafter referred to;, that said Horner went to Parkersburg, where the said Eliza-abeth resided, and where his wife then also resided, it. being shown that there was intimacy between these two-women, taking with him a contract which had been prepared by the attorney of Joseph Cheuvront, and which affected materially the rights of the wife in her husband’s-property, and, to use the language then employed by the parties, compromised said divorce suit; and that the said Elizabeth was induced by the said Horner and his wife to-execute the same. This contract expressed a consideration of $750.00, but only $400.00 of such sum so furnished him by Joseph Cheuvront was paid Elizabeth Cheuvront by Horner, and he retained from the $750.00, the residue of $350.00, less $5.00 paid to the notary for taking the acknowledgment, and less the further sum of $18.00 afterwards paid by Horner on certain costs of said divorce suit. Subsequently, at the suit of said Elizabeth, the contract so obtained was set aside and annulled by a decree of the
Thereupon, after the affirmance of said decree, this suit was instituted to recover back the money so placed in the hands of said Horner, and to recover the costs and expenses to which Joseph Cheuvront had been put in the suit to set aside and annul said contract. In that suit, .Joseph Cheuvront maintained, as he does in this suit, that whatever fraud was committed in the procurement of the execution of said contract from the said Elizabeth was the act of the said Horner and wife, and not his, and that Horner was only authorized by him to pay her the full sum entrusted to his hands for the purpose aforesaid, in case she would execute the contract, and was not authorized by him to make any other representations. Certain it is, however, that said1 Horners not only deceived the said Elizabeth as to the amount for which the contract called, but to induce her to sign same represented that her husband would immediately come and reside with her again. In fact, there is a long story connected with all this, enough of which is shown in said former opinion for the purposes of this case, and really little of which pertains to the real questions now before this Court. Joseph Cheuvront was held by the adjudication in the suit to set aside said contract to be bound by the act of Horner, who was held to be his agent in the transactions aforesaid, and further than setting aside said contract, the Court refused to decree to him the return of the $400.00 paid to his wife as aforesaid, or in legal language, to place the parties in stakt quo. The reasons for this are clearly stated by the learned judge of this Court through whom that opinion was handed down.
In the plaintiff’s bill, his claim is founded upon the receipt given him by Horner for the $750.00, in which writing it is expressed that the said sum is to be used in such compromise, and to be paid Elizabeth Cheuvront in case she signed the contract, and in which Horner guaranteed to return to Joseph Cheuvront said sum “in case same should be lost or any accident to same, if not paid to her upon said compromise.” The bill also sets up the fact that
The bill further charges that after the adjournment of the term at which said office judgment was set aside, the said Horner, on the 11th day of August, 1904, with intent to hinder, delay and defraud plaintiff from collecting his debt, by deed' of that date, conveyed to M. K. Horner, trustee, a certain lot or parcel of ground in the town of West Union, on which Horner, his wife and family resided, and a drug store in said town and all fixtures and appurtenances connected therewith and the soda fountain therein, for a pretended consideration, and that in furtherance of his purpose to hinder, delay and defraud plaintiff, the'said M. K. Horner, trustee, on the next day conveyed the whole of said property as described in said deed to Maggie Horner, the wife of the said William J. Horner. The said M. K. Horner, trustee, is shown to be the brother of William J. Horner. The bill is distinct and definite, in its averments of facts constituting a fraud upon the creditors of William J. Horner, by the transfers of the property aforesaid, and after making proper averments relative to a vendor’s lien which rested upon the property, prays for a decree against William J. Horner, requiring him to pay complainant the debt in question, and that the conveyances aforesaid be set aside and declared null and void as to plaintiff’s claim, and the said property sold to satisfy the debt, and for general relief.
There was a general replication to the answer, and testimony taken, the greater part of which relates to the question of whether or not the conveyances from Horner to his wife through the instrumentality of his brother as trustee are fraudulent. Upon the hearing of the cause, the court, entered a decree, on the 18th day of September, 1905, finding that the plaintiff is entitled to recover from the defendant William J. Horner the sum of $350.00, less the $18.00 paid as hereinbefore mentioned, with interest from the 22d day of November, 1899, aggregating the sum of $447.90, and.that the conveyances aforesaid and each of them should be set-
It is assigned that the court erred in hearing and deciding the cause, because of such interest of the judge therein as to disqualify him. It is claimed that one of the depositions in the suit to set aside and cancel said contract between Joseph Cheuvront and Elizabeth Cheuvront discloses that the judge of said court prior to his taking office had been one of a firm of counsel for the said Elizabeth Cheuvront in the divorce suit, which was undertaken to be compromised as hereinbefore stated; and this is the only charge of disqualification made. There is nothing in the record to show that the party there mentioned as such counsel was at the hearing of this cause ' the same person , as the judge of .the circuit court, and such assignment of error is therefore groundless. But assuming such to have been the fact, and the point properly presented, it comes within no rule that would disqualify a judge. 23 Cyc. 586. Works on Courts and their Jurisdiction, page 396. To disqualify, the interest of the judge must be a pecuniary one; it must be in the subject matter of the cause, and not merely in a legal question therein involved. Forest Coal Company v. Doolittle, Judge, 54 W. Va. 210.
It is also insisted that the demurrer to the bill should have been sustained, but we find this bill to be an ordinary one for the equitable remedy given by section 2, chapter 133, of the Code, and that it is amply sufficient in its averments in the premises. There is no denial of the right of trial b.y jury in a suit of this character, as insisted by appellants, as it is the charge of fraud that gives such suit life.
A marked distinction must be made between this case and the usual ones where'' the- doctrine of in pa/ri delicto arises. The money here is in a situation where the plaintiff may seek to recover it without the invocation of the aid of the illegal contract mentioned and relied upon by appellants in their contention on this point. Whenever a case can be made without invoking the aid of the illegal contract, the plaintiff is entitled to recover. 1 Bigelow on Eraud, page 206; Clark, Harrison & Co. v. Brown, 77 Ga. 606, (4 Am. St. Rep. 98). In this instance Joseph Cheuvront is not compelled to invoke the contract with Elizabeth Cheuvront which has been declared to be illegal to assist him in making out a case for the recovery of the money from Horner which by Horner’s own conduct never left his hands and never had at all to do with the illegal contract. That contract is wholly collateral and immaterial, in fact, to this suit for the recovery of the money from, him, and cannot be invoked by this plaintiff to assist him in a recovery from Horner, since Horner is no party to such contract. The plaintiff may -rely on the receipt alone, as he does. It is a contract iwith Horner. The record discloses no illegality as to it, or suggestion of illegality in connection with it at the time it was given. Were there no receipt, he
But there are other principles, those belonging directly to the law relating to principal and agent, which relationship the former decision found between Cheuvront and Horner in the transactions relative to the said illegal contract, which deny to Horner a right to resist plaintiff’s claim for this money upon the ground that it was placed in his hands to be used for an illegal purpose. “The broad rule has been laid down that when money or property is delivered by a principal to his agent for an illegal purpose or for the purpose of carrying into execution an illegal contract, the agent cannot set up such illegal object to prevent a recovery by the principal from the agent of such money or property, so long as it remains in his hands.” 15 Am. & Eng. Enc. 2 Ed. 1009. In Hertzler v. Geigley, 196 Pa. St. 419, (79 Am. St. Rep. 124), it is held: “The law cannot enforce an illegal contract, but if the servant or agent of another has, in the prosecution of an unlawful enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.” This is supported by the decision in Berkshire v. Enans, 4 Leigh 223. The contract of the agent to pay the money to his principal grows out of the receipt of the money for his principal, and is not immediately connected with the illegal transaction. Story on Agency, section 347. If money has been paid to an agent for the use of his principal, the legality of the action of which it is the fruit or with which it was connected does not affect the right of the principal to recover it. The agent’s liability arises solely from the fact of having received money for another’s use. Dunlap’s Paley’s Agency, 62; Wood on Master and Servant, section 202; Mechem on Agency, section 526; 1 Am. & Eng. Enc., 2 Ed. 1088, Clark & Skyles on Agency, section 428.
And closely related to the foregoing considerations is the doctrine in equity that a court will not go outside of the real subject matter of the controversy and make its interference to depend upon the character or conduct of the moving party in no way affecting the right which he asserts
The doctrine of in pari delicto, as founded on said maxim, is not applicable to this case, since it applies only as between the immediate parties to an illegal contract, and therefore does not govern where the suit is by one of such parties to recover money received by a third party in respect of the illegal contract. Broom Leg. Max. 7th Am. Ed. 723; Kiewert v. Rindskopf, 46 Wis. 481, (32 Am. Rep. 731).
f Whose money is it? Clearly under the terms of said receipt it was Oheuvront’s money until paid to the said Elizabeth Cheuvront pursuant to the stipulations in that writing. Then it narrows down to this: Has Horner shown himself to be entitled, as he claims, to retain it for compensation for his services in securing the illegal contract? This question of fact was one for the circuit court, and its finding that he was not so entitled is not here to be disturbed, since the evidence justified it, and especially since it appears just to deny such an extortionate claim for his services for such a fraudulent transaction as Horner carried out in the absence of Cheuvront and without any defined proof in the record that Cheuvront directed him in relation thereto, had knowledge thereof, or acquiesced therein.
The counter-assignment of error, on the part of the ap-pellee, to the action of the circuit court in not decreeing the repayment of the full $750.00, with interest thereon, is not well taken. We consider the matter of the $400.00, which the Court refused to return plaintiff, in the other cause, to be adjudicated, and for which the plaintiff has no further redress.
The evidence relied upon by Horner and his wife to rebut the i>resumption of fraud in the transfer of the property by the husband to the wife falls short of the rule that the burden is upon the wife to show by clear and satisfactory evidence that the transaction was made in good faith, the consideration adequate and valuable, and that the consideration -was paid out of her separate estate. All the testimony on this line, and in relation to these conveyances of the property from husband to wife, we find to be 'either wholly uncertain as to the amount of money claimed to have been in
There is no error, and the decree of the circuit court is affirmed.
Aifirmed.