30 W. Va. 200 | W. Va. | 1887
In April, 1883, John Connowav filed his bill in the Circuit Court of Upshur county to enforce judgment-liens against the lands of Samuel McCann and S. B. McCann. He cnarges, that said defendants have no personal property, out of which to satisfy said judgments, one against S. B. McCann and
W. J. McCann answered the original bill and in his answer says: “On the 6th day of September, 1882, the said S. B. McCann and wife in consideration of $200.00 cash in hand paid to him by this defendant, and that this defendant should pay to J. M. Bennett the purchase-money due to him by S. B. McCann, conveyed to him the said land.” He denies all fraud charged. S. B. McCann also answered the original bill and in his answer admits, that Bennett and wife in consideration of $225.00 conveyed to him the 133 acres of land. The purchase-money was to be paid in three years with interest paid annually, and a lien was reserved for the payment of the purchase-money. He says, he paid the interest for the year ending the 30th of September, 1882, but has paid no part of the purchase-money. He further says, that on the 6th of September, 1882, himself and wife in consideration of $200.00 cash in hand paid to him by W. J. McCann, and that the said McCann should pay the purchase-money due to Bennett, conveyed to said W. J. McCann the 133 acres of land. He also denies the fraud charged in the bill. Both the said defendants also answered the amended bill, in their answer setting out their defence more specifically, and more particularly denying every charge of fraud made in the amended bill. Samuel McCann and J. M. Bennett did not answer the bill.
The cause was heard on the 17th day of June, 1886, and the plaintiffs’ bill was dismissed with costs. From this decree John Co uno way appealed.
Depositions were taken on both sides; and one witness for plaintiff fixed the value of the 133 acres at $10.00 per acre or $1,330.00. Another witness thought it was worth $8.00 per acre or $1,061.00. The defendants’ witnesses estimated it as follows: S. B. McCann at $325.00; W. J. McCann “thought it was worth, what he agreed to pay for it.” O. S. Zirlrie valued it at' $1.00 per acre or $532.00. S. B. McCann’s deposition was re-taken; when he said, he thought the land was worth $4.00per acre; and Samuel McCann puts its value at $4.00 ype?* acre. The average of values thus put upon the
. Under the well-settled rule for the discovery of fraud in a conveyance we think there is no doubt, that the deed for the 133 acres of land executed by S. B. McCann and wife to W. J. McCann on the 6th day of September, 1882, is fraudulent and void as to the judgment against S. B. McCann. The charges of fraud in this cause are numerous. The consideration, as we have seen, is inadequate. The conveyance was from father to son. The son was a minor at the time it is pretended that the contract of purchase was made. The deed was made to him on the very day, on which he became twenty one years of age. The consideration expressed in the deed is $200.00 cash in hand and the assumption of the payment of $225.00 due to Bennett, when the cash-payment as shown by the depositions of both the grantors and grantee was only $100.00. This $100.00 was claimed to have been sent from Pennsylvania, where the son, who was then a minor, was working in a pulp-mill, months before the deed was made. There was no contract in writing other than tho deed in reference to said purchase. . The deed was made whilo the suit against the father on the injunction-bond was pending, and about one month before the judgment was rendered. These and other circumstances appearing in the record convince us, that the deed was executed with intent to hinder, delay and defraud the plaintiff in the collection of his judgment. There is no proof of fraud or collusion against Bennett; and in fact the charge in the bill is too vague and indefinite to require any answer from Bennett. The land was sold for the purchase-money, and Bennett bought it, and the sale was confirmied. The title and interest of Samuel McCann was then entirely extinguished, and Bennett had a right to sell it or a part thereof to whom he pleased. He sold 133 acres of it at a very low price to S. B. McCann, who permitted his old father to live on it, which was a praiseworthy action, provided he was not thus interfering with the rights of creditors. There is no proof, that the land was bought by S. B. McCann for his father. He bought it for himself. He then, to put it beyond the reach of his creditors, fraudu
The decree rendered in the cause by the Circuit Court of Upshur on the 17th day of June, 1886, is reversed with costs •against S. B. McOann and W. J. McCann, and this cause is remanded to the Circuit Court of Upshur county with instructions to enter a decree subjecting said 133 acres of land to the payment of the plaintiff’s joint judgment against S. B. McOann and Samuel McCann and for further proceedings.
•REVERSED. REMANDED.