79 Va. 92 | Va. | 1884
delivered the opinion of the court:
The record shows that on the 18th of March, 1881, the appellees filed their bill against the appellants, asking the said court to set aside in favor of them, as creditors of James D. Clay, the husband of the appellant, Mary F. Clay, a certain deed of settle
The appellant, Giles T. Cardwell, the brother of the intended wife, was made trustee in the deed, and signed the same, as did also Mary F. Cardwell, now Mrs. Clay. The deed settled the bulk of the property of the said James D. Clay on the said Mary F., and the said James D. Clay was at the time largely indebted.
The said appellees claimed that the deed was made for the, purpose of defrauding them of their debts, and charged the fraudulent intent not only on the said grantor, but also on the grantee therein. They charge that the grantee had knowledge of the fraud of the grantor, and participated therein; that before she signed the deed of marriage settlement, they caused a written notice to be left with her by an officer, in which was set forth the property owned by the said grantor, the debts due by him, and their belief that his intention was fraudulent, and their purpose, if she accepted the said settlement, to attack the same and set it aside as fraudulent; that this notice was served before the execution of the deed and before the marriage had taken place; that this was on the 5th of March, 1881, and the marriage took place on the 8th day of the same month.
The appellant, Mary F. Clay, the wife, answered the bill, as did the trustee, Giles T. Cardwell, subsequently. Mrs. Clay says in her answer that she had no knowledge of the fraudulent intent of her husband, if any such existed, and no knowledge that any such charge was made until after her marriage; that she was told by her intended husband that he intended to make a settlement upon her by deed, which she would he expected to sign and acknowledge, and that to that end one G. E. C. Phillips,
The said Giles T. Cardwell, trustee, in his answer also denies all knowledge of any fraudulent purpose on the part of the said
On the hearing in the circuit court, the court held that Mrs. Clay had knowledge of an intended fraud perpetrated by her husband, and set aside the deed aforesaid as null and void, decreeing the money which had been realized under sales under her deed of the 16th of March, 1881, mentioned above, to the plaintiffs just as they were about filing their bill to subject the property. This fund was in the hands of the court in part; also funds from sales made under order of the court by a receiver, which was not realized under her deed of March 16th, 1881.
After the late case of Herring v. Wickham, in this court, 29 Gratt. 628, it may be said, as was contended in argument here in this case by the learned counsel for the appellant, that it is now beyond dispute, that whatever was the design of her husband, the settlement upon his wife in contemplation of marriage and with marriage as the expressed consideration, is valid, as such settlement is upon valuable consideration, unless a knowledge of the intended fraud is proved by clear and satisfactory evidence.
It is not necessary for us to review or to elaborate that question farther than to refer to that case and the authorities therein cited and reviewed in the opinion of Judge Staples. Nothing can be added to that elaborate and complete discussion of that subject.
Does the record show that the intended wife had knowledge
It is contended, on the part of the appellees, that under section 1, chapter 163 of the Code of 1873, the notice in question is conclusive as to knowledge. The statute provides that “a notice, no particular mode of serving which is prescribed, may be served by delivering a copy thereof in writing to the party in person,” &c. That chapter of the Code is the first chapter under title fifty-one entitled proceedings in civil cases, and the chapter is concerning notices and motions in prescribed cases, and in any civil proceeding wherein a notice is required and prescribed, in order to any civil proceeding the statute provides as we have seen above. Can that in anywise apply to a case like this, or is it wholly inapplicable? Ho such notice as this is prescribed in any civil proceeding. What it is necessary to show here is, that the intended wife knew of the guilty purposes of her intended husband, if such existed, and that she participated in the fraudulent intent. Is it not necessary then to bring home to her actual knowledge of the fraud in contemplation? It might turn out that a written notice might be served upon the intended wife, as it did turn out in this case, under such circumstances as might inform her of nothing whatever, and not put her upon inquiry even, and she might have a written notice of the charges against her intended husband in her possession and yet have no knowledge whatever of them. Her answer is responsive to the bill and is sworn to, and is uncontradicted. Upon well established principles it must be taken as true. Then although, she had this written notice in her possession, she actually was, so far as the proofs in this case show
But, on the other hand, if a man wishing to enter into matrimony with a particular woman, should, being insolvent, convey to her all his property, which was accepted by her with full knowledge of the facts, the mutual intent being not to defraud his creditors as a primary object, but to contract marriage, each on such terms as could reasonably he procured from the other, the case would not be within the statute of frauds. Nor, as Mr. Bishop quaintly observes, would it be in violation of any principle of the common law, because the common' law, though it abhors every sort of cheating, loves matrimony—-its principles all point towards it whenever the circumstances of a case expose them to this attractive force.
It is not so extreme and unreasonable a proposition under the circumstances of this case as to be beyond belief that Mrs. Clay, then a young lady about to be married, should not have deemed it necessary to read the paper in question. If it was a copy of the deed, why should she read it? she had, doubtless, read the deed, or confiding in the man to whom she was about to give her hand in marriage, and to whom she had willingly consented to confide her future, she was confident of its contents. It rather tends to show that marriage was her object rather than the contemplated settlement.
Her subsequent conduct goes far to rebut any charge of fraud against her, for it appears that shortly after the marriage and before any suit was brought against her, she conveyed property which she believed sufficient to pay the unsecured debts of her husband to a trustee, to secure the payment of these debts.
We are of opinion that the fraudulent intent of the intended wife is not established by the evidence in the record, and that the circuit court erred in its said decree in so holding and in setting aside the said deed of marriage settlement, and the same must be reversed and annulled.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the argument of counsel is of opinion, for reasons stated in writing and filed with the record, that the circuit court of Halifax county erred in its decree of the 10th day of November, 1882, appealed from, and that the same is wholly erroneous. It is therefore decreed and ordered that the said decree of the said circuit court of Halifax county, of the 10th day of November, 1882, be reversed and annulled, and that the appellees do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And this court now proceeding to enter such decree as the said circuit court ought to have rendered, it is decreed and
And the court doth further decree and order that such money as may he in the hands of the court, or under its control, realized otherwise than under the deed of the 16th of March, 1881, aforesaid, from sales made by order of the court, be paid to Mary F. Clay, or as she may order; and that the appellees do pay to the appellants their costs by them in their defence expended in the said circuit court.
Which is ordered to be certified to the said circuit court of Halifax county.
Fauntleroy, J., dissented.
Decree reversed.