29 W. Va. 617 | W. Va. | 1887
This is a suit in chancery brought in the Circuit Court of Wood county to set aside a deed for fraud and subject the land conveyed to the payment of the plaintiff’s claim. The bill was filed in the Circuit Court of said county at September rules, 1885. The bill alleges, that the plaintiff is a corporation created and existing under the laws of ISTew York; that on the 19th day of March, 1884, it entered into a contract with the defendant, T. J. Dunbar, whereby said corporation contracted to sell sewing machines to said Dunbar on certain terms, according to which they were to be paid for. The contract is exhibited with the bill and is in substance as follows : — First—that machines and other property would be
The bill further alleges, that on the same day, the 19th of March, 1884, John V. Dunbar, now deceased, by his writing under seal guaranteed to the plaintiff the payment by T. J. Dunbar of all the indebtedness then existing, or that should thereafter be incurred by said T. J. Dunbar under said contract. The guarantee is also exhibited. The bill also alleges, that on the 6th day of June, 1884, said T. J. Dunbar being indebted to the plaintiff under said contract in the sum of $250.19 executed to the plaintiff his negotiable promissory note, dated at Pomeroy, Ohio, whereby six months after the date thereof, he promised to pay the plaintiff the sum aforesaid; and on the 21st day of June, 1884, being indebted under said contract in the further sum of $245.50 executed another note for that sum payable to the plaintiff six months after date; — 'that neither of said notes nor any part of either has ever been paid by said T. J. Dunbar or J. V. Dunbar or either of them; — that T. J. Dunbar has no property real or personal, out of which the debt can be made; — that before accepting said J. V. Dunbar as guarantor said Dunbar represented himself to him to be the owner of ninety four acres of land in Olay district, and that there was no incumbrance upon the landthat not till then did the plaintiff consent to enter into the contract with T. J. Dunbar, whereby he was made agent to sell tl}e plaintiff’s ma
The bill charges, that this deed was really not- made till after the contract of suretyship, and that it was ante-dated, in order that said John Y. Dunbar’s estate might not be charged with any debt or debts to the plaintiff, which might arise or might have arisen out of the contract with T. J-Dunbar, and was made to hinder, delay and defraud the creditors of said John V. Dunbar; — that even if said deed was made on the 11th day of July, 1881, said J. T. Dunbar has committed a fraud by secreting the same from that day to the 2d of June, 1884, and thus giving J. Y. Dunbar an opportunity to obtain credit on the reputed ownership of said land, and that the land.is therefore liable to J. Y. Dunbar’s 'obligations; — that besides the ninety four acres of land J. Y. Dunbar, now deceased, owned no property at the. time of his death ; — that said T. J. Dunbar and J. T. Dunbar, and the other heirs of J. Y. Dunbar, deceased, as well as the administrator of the estate of the said Dunbar are made defendants. The prayer of the bill is, that said deed may be held fraudulent, and the said land subjected to the payment •of the plaintiff’s claim.
James T. Dunbar answered the bill denying, that he had any knowledge of the contract alleged to have been made between the plaintiff and T. J. Dunbar or of the alleged guarantee of J. Y. Dunbar; — that there was any conversation with T. J. Dunbar or J. Y. Dunbar or either of them as stated in the bill; — that he made any statement, as set out in the bill; — that the deed recorded June 2,1884, was either execu
T. J. Dunbar answered the bill, and in his answer does not deny his insolvency, admits the indebtedness charged in the bill, and that the notes have not been paid, avers, that he told Handley, the agent of the plaintiff, that the land did not belong to John V. Dunbar nor to himself, and explained to him, that there was an agreement between J. T. Dunbar and J. Y. Dunbar, whereby said J. Y. was to convey the land to J. T. Dunbar; but that, if that would do, he would get the said J. Y. Dunbar to join in the bond, and denies, that he ever represented said J. Y. to be the owner of the land, or that plaintiff or any of his agents ever had an interview with said J. Y. Dunbar to ascertain, if he was willing to become surety, or that said J. Y. Dunbar ever represented himself to be the owner of said land, and that there were no incumbrances on it. As to the execution of the deed of June 2,1884, he knew nothing except the fact, that “ about the 1st of July, 1881, the said J. Y. Dunbar had verbally agreed with this respondent and said James T. Dunbar, to both of whom he was indebted in about the sum of $300.00 each, that, if they would accept said ninety four acres of land in payment of said indebtedness and would also furnish said John Y. with a comfortable support, with food, clothing, comfortable lodging and shelter and all needed medical attendance, and whatever might be necessary to a comfortable and respectable living during his life, he would sell and convey to them the said land. He avers, that in 1883 Handley first spoke to respondent in regard to the venture in the business of selling machines, and that at that time said Handley, agent as aforesaid, was duly informed as to the title to said land and the agreement, under which the
A number of other defendants answered disclaiming any interest in the land sought to be subjected; depositions were taken; and on the 6th day of March, 1886, the case was fi- • nally heard, and the bill was dismissed with costs. From this decree the plaintiff appealed.
Did the court err in dismissing the plaintiff’s bill ? The law in this State, as to how fraud may be proved, and as to the quantity of proof necessary to sustain the charge of fraud, is well, settled. It may be proved, as anything else is proved, by facts and circumstances. The evidence may be either positive or circumstantial; and it often occurs, that the circumstantial evidence to sustain the charge will sweep away the positive testimony of many witnesses swearing, that no-fraud was intended. The rules of law, as laid down in our Court from Lockhard v. Beckley, 10 W. Va. 87, and Hunter v. Hunter, Id. 321, to Burt v. Timmons (decided at this term) supra, p. 441, are set forth in the syllabus of the last named case.
It is here insisted, that, though one witness swears to facts, which, if true, prove the fraud, the case fails, because two or three witnesses depose to a contrary state of facts. Which is to be believed depends upon the other facts and circumstances in the case. David Handley, the agent of the plain
Handley says, he made the contract for his company with T. J. Dunbar; that his company required security from every agent, then he would account to the company for all money received by him from the sale of machines placed in his hands; that John Y. Dunbar was proffered as security ; that said John Y. Dunbar rejiresented to him, that he owned the ninety four acres of land, on which he lived with his two sons, T. J. and J. T. Dunbar, and that there were no incum-brances on it; and that he took him as security for his son, T. J. Dunbar, with whom the contract was made. He also says, that the defendants, T. J. Dunbar and J. T. Dunbar, both represented to him, that their father owned the land, and that they never told him the contrary; that a short time afterwards he employed the clerk of the County Court of Wood county to examine the title to said land and found the title to be in John Y. Dunbar. All this is denied by both Thomas and James Dunbar, who both testify, that they told him, the title was not in their father, and notified him, that they owned the land.
Now let us see, how, they say, they owned the land, and what they told Handley, if their statements are to be believed. J. T. Dunbar, who now claims the land, says in his answer, John Y. Dunbar “ agreed to sell and convey to said
T. J. Dunbar in his answer says, that Handley “ was duly informed of the title to the said land and the agreement, under which the same was held.” — He says concerning said agreement: — “About the 1st of July, 1881, the said John V. had verbally agreed with this-respondent and said James T. Dunbar ’’ — for certain considerations, — “ that he would sell and convey to them the said ninety four acres of land. ” He further says, that “ no memorandum in loriting had ever been made of said agreement in 1881, or signed by the party to be bound thereby; and it was understood, it was not neees-sary for respondent to join i/n said deed of June £, 1884. ”
This is what these two witnesses say about their title to the land, notice of which, they say, they brought home to the agent of the plaintiff.
The whole defence has the appearance of being an afterthought.. It turns out on the cross-examination of James T. Dunbar after he had said, that the deed was never acknowl•edged or delivered, that he had it in his possession, and on being pressed he exhibits it; and it is found to bear date the 11th day of July, 1881, and to be signed by John Y. and also by James and Thomas. In it is the following language :— <c The further consideration for the property herein conveyed is that the parties of the second part agree to pay off and discharge all debts and liabilities now existing against and ■owing by the said John Y. Dunbar, and they further agree to furnish the said John Y. Dunbar with a comfortable support, with food and clothing, comfortable lodging and shelter and all needed medical attendance, and whatever may be necessary to a comfortable and respectable living during his life.” In the answer of James T. Dunbar, speaking of the verbal contract, he says it was agreed, they should “ furnish the said John Y. Dunbar with a comfortable support, with food and clothing, comfortable lodging and shelter and all needed medical attendance, and whatever might be necessary to a comfortable living during his life.” In T. J. Dunbar’s answer the same thing is thus stated : — “ furnish said John Y. Dunbar with a comfortable support, with food and clothing, comfortable lodging and shelter and all needed medical attendance, and whatever might be necessary to a comfortable and respectable living during his life.” This same Thomas says in his answer, that no memorandum in writing had ever been made of said agreement of 1881 or signed by the ’
This stamps these two witnesses as false; and if ever the maxim — ■íífalsus in tono falstos in omnibus,” can apply, it seems to me, it must apply here. The scheme is apparent. They would by their false defence avoid the assertion of any reason, Why J. T. Dunbar might not through the deed of June 2,1884, acquire a perfect legal title to the lands and then by swearing that Handley, the agent of the plaintiff, had full notice of a contract, which showed, that the father did not own the land, thus prove that no fraud was practiced. These defendants must have deceived their counsel. They must have had access to the deed and committed to memory the words quoted and given them to their counsel when the answers were written. Their evident object was to show, that there was no impediment in the way of the execution of the deed of June 2,1884, and thus to try to show, that the plaintiff had been fairly and honorably dealt with, when by the whole record it is irresistibly forced upon my mind, that their scheme had been to make the agent believe, thatthe land belonged to their father, get him on the bond and keep the land themselves. The deed of June 2,1882, is clearly fraudulent and void as to plaintiff. The fixing up of this deed under the circumstances, the grantee J. T. Dunbar, trying by his testimony to show, that it was made before the contract and recorded before any machines were delivered to his brother, and recorded the very day before his brother went to Pomeroy to engage in business under his contract with the plaintiff — all shows to my mind, that the clear intent of John Y., J. T., and T. J. Dunbar -iyas to defraud the
The decree of the Circuit Court of Wood county is reversed, and the cause remanded with instructions to enter a •decree declaring said deed fraudulent as to plaintiff’s demand for the amount of its claim against T. J. Dunbar and the estate of John Y. Dunbar, deceased, and giving a day 'for the payment thereof, and in default of payment to sell said land for the payment of said claim.
Revebseb. Remanded.