Crawford v. Carper

4 W. Va. 56 | W. Va. | 1870

Brown, President.

Abraham Carper being a man of considerable estate, and unembarrassed, whose daughter was married to one Adonijah B. Ward, advanced to his son-in-law money and property at different times, with the understanding that the son-in-law should pay for the same if required. That no entry of account was ever made and kept, or, note taken for the same, though extending from April 1st, 1838, to April 1st, 1848. That subsequently the son-in-law, Ward, becoming largely indebted and insolvent, the father-in-law and son-in-law had a settlement on the 16th of April, 1861, and thereupon the son-in-law executed his note to his father-in-law for the amount he thus acknowledged to be due and owing, viz: for 2,855 dollars, with interest on 335 dollars part thereof, from April 1st, 1838, and on 1,400 dollars, other part thereof, from May 1st, 1844, and on 1.120 dollars, residue thereof, from April 1st, 1848, and then forthwith confessed judgment on said note in favor of his father-in-law, with the view and for the purpose manifestly in both parties to secure to the father-in-law the first lien on the son-in-law’s land, which was subsequently sold under the decree of the court in this case, and did not bring enough to discharge said judgment. These debts thus acknowledged, and for which the said note was given and judgment confessed, (if they ever as such debts existed, which was much controverted in the case, but which question I do not think it necessary to consider in the view I take of the case) were all barred by the statute of limitations. And while it was all very right, if they were just and real, that they should be acknowledged and paid by the debtor as between the parties, yet still, the important question remains whether, under the circumstances of the ease, it could be so done, as above stated, so as to intercept the other bona fide creditors whose debts were not so barred. And I am free to say I think it could not, because it comes clearly within the first section of chapter 118 Code of 1860, and is just such a case as it was the intention of the statute to prohibit.

It is unnecessary, therefore, to notice any of the other questions raised in the argument. The circuit court erred in dismissing the bill so far as it alleged fraud as to the creditors in the transaction. It further erred in appropriating the proceeds of the sale of the land of the debtor Ward to the said judgment of his father-in-law Carper, to the exclusion of the creditors.

I think, therefore, that the said decrees of the circuit coui’t ought to be reversed, and the cause remanded to the circuit court of Randolph county, to be further proceeded with in conformity to the views above stated.

The other judges concurred.

Decree reversed.