125 Va. 80 | Va. | 1919
delivered the opinion of the court.
This is a suit for divorce on the ground of desertion, brought by Lavonia Ruth Crowder against her husband, W. Scott Crowder, and incidentally to set aside as fraudulent
Section 2458 of the Code (1904) declares that every gift, conveyance, assignment or transfer, etc., made with intent to hinder, deláy or defraud creditors, purchasers or other persons of, or from, what they are or may be lawfully entitled to, shall, as to such creditors, purchasers or other-persons, be void. It further provides that the title of a purchaser for valuable consideration shall not be affected unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. We shall inquire, therefore, whether W. A. Crowder and J. N. Crowder come within the purview of this section. That they are purchasers for value is admitted, but that they are without notice of the fraud of W. Scott Crowder,' from whom they purchased, is denied. The statute in terms applies to transfers of personal as well as real estate.
The complainant, a girl eighteen years of age, 'who had been reared in the country, came to the town of Victoria on a visit to her cousins in July, 1914, and while there was-employed by W. Scott Crowder, a man about thirty-six years of age, as a clerk in his shoe store, and began work September 1, 1914. She continued in this employment till March, 1916, when she was forced to give up her employment because she was about to become a mother. She informed W. Scott Crowder of her condition, and he said they would get married, but requested that she should say nothing about it. Later on, when she again mentioned the subject to him, “he said he was sorry, and if he married, his people would turn him down, ánd he did not know whafr to do.” On Saturday, April 8, 1916, she gave birth to a
While the testimony does not show that either of the brothers counseled or advised W. Scott Crowder to abandon his wife, the circumstances tend strongly to show that lie had no intention of leaving her until after the conversation hereinafter mentioned with W. A. Crowder on Thursday night before he'left, and that W. A. and J. N. Crowder, with full knowledge of his abandonment of his wife and child, did aid and abet him in putting his property beyond ■the reach of any claim the complainant might assert against it.
The marriage took place on Saturday, April 8, 1916. From that time till the following Thursday he appears to have been attentive to his wife, bringing her fruits and flowers, coming to her room immediately upon returning from his mail route, discussing with her-their future location, endeavoring to obtain board for both of them, seeking to rent a house, acknowledging the child to be his and saying to the nurse that “he expected to make a man out of him.” On Thursday night following the marriage, however, about ten or ten-thirty o’clock, after he had retired and gone to sleep at the house where his wife was confined, Iiis brother, W. A. Crowder, called and had him waked up, and they had a conversation of at least an hour. The next day his whole attitude .towards his wife had changed. He declared that he could not stand her, that the child was not his, and he would not stay and take care of it, and announced his firm determination to leave Victoria if he lost every dollar he had. notwithstanding he was advised by his counsel of the danger of being indicted for deserting his wife. He then set about arranging the sale of his stock of 'goods to his two brothers and of his real estate to one of
W. Scott Crowder left Victoria on Saturday morning, April 15, 1916, just one week after his marriage, having first withdrawn all the money he had in bank, to-wit, five hundred dollars. When he received his brothers’ notes, executed under the circumstances hereinbefore stated, he had in his pocket his entire estate. Nothing was left for his wife and child. Upon this state of facts, the conclusion seems irresistible, not only that W. Scott Crowder committed a fraud upon the rights of his wife and child, but that his brothers participated therein and aided and abetted him in the accomplishment of his purpose.
If the notes given by W. A. Crowder and J. N. Crowder had not been negotiable, they might have protected them-' selves against the payment thereof in the event the complainant attached the property sold, and if they have lost that right in their efforts to aid théir brother in his fraudulent scheme, they have no one to blame but-themselves. We are of opinion that W. A. Crowder and J. N. Crowder, each' “had notice of' the fraudulent intent, of his immediate grantor,” and hence is not such a purchaser as is protected by section 2458 of the Code (1904).
This conclusion accords with Goff v. Goff, 60 W. Va. 9, 53 S. E. 769, 9 Ann. Cas. 1083, and with expressions of this court in Waller v. Armstead, 2 Leigh (29 Va.) 11, 21 Am. Dec. 594, and Gregory v. Winston, 23 Gratt. (64 Va.) 102.
In June, 1917, W. A. and J. N. Crowder filed an amended •answer to the complainant’s bill, in which they set up the fact that they had been notified by Jas. J. McFeeley, of
On. October 8, 1917, W. A. and J. N. Crowder filed a supplemental answer, in which, amongst other things, they prayed that no disbursements of the sums already paid into the hands of the receiver in the cause be made until the claims of said McFeeley had been passed upon, or some action had been taken in the premises that would protect them from further liability on said notes. On June 20, 1918, the depositions of W. A. Crowder and wife were taken on behalf of the complainant. On June 26, 1918, the decree appealed from was entered, in which it 'is recited that ample opportunity had been given McFeeley to litigate his rights to the fund in controversy, and it was stated that unless he did come in and litigate his rights in the cause, the court would decree the payment of the money to the complainant. Thereupon he appeared generally, asked that he be admitted as party defendant and permitted to file his petition in the case and to demur and plead to the cross-bill of W. A. and J. N. Crowder. He thereupon filed his petition, and the case was continued to allow him to introduce proof to establish his claim.
W. A. and J. N. Crowder had attempted in a suit which had been brought on one of the notes in the U. S. district
It will be observed from what has already been said that the complainant laid no claim to the notes in controversy or the proceeds thereof unless they were still held and. owned as the property of her husband. What was sought, by the bill was to set aside the sales of real and personal property made by Scott Crowder, and to subject the property of her husband' to the claim asserted in her bill. The notes which had been given for the purchase price of the property represented the agreed value of W. Scott Crowder’s interest therein, and she was entirely willing to-take its value in lieu of pursuing the property itself. At the time that the money was paid into court, it was intended' to protect as far as possible the right not only of the complainant, but of the purchasers themselves, and if this could be done it was entirely proper, but if it could not be done- and the transaction was shown to be fraudulent, there was no reason why she could not subject the property itself to the payment of her claim and to have personal decrees-against W. A. and J. N. Crowder for such part of the shoes-they had purchased as had been disposed of by them. In other words, her claim was against the property, though she was entirely willing to accept the valuation represented by the notes, and if possible to protect the makers of the notes against further payment. The claim of McFeeley, on the other hand, was the personal liability of W. A. and J. N. Crowder on the notes executed by them to W. Scott Crowder. He had no lien of any kind on the property sold, and it was immaterial to him what was the consideration
For the reasons hereinbefore stated, the decree appealed from will be reversed, and as more than three years have elapsed since the desertion alleged in the bill, and the situation of the parties and their rights and interests can probably be better dealt with by the circuit court than by this court,, and as the purchase price of the property sold has been paid into the circuit court and is now under its control and it is unnecessary to set aside said sales, the cause will be remanded to the circuit court with directions to grant to the complainant such, a divorce as she is entitled to, if there has been no reconciliation with her husband, and decreeing to her, out of the funds under the control of the
Reversed and remanded.