46 W. Va. 378 | W. Va. | 1899
Lead Opinion
On the 27th day of January, 1888, Susan C. Dent instituted her action at law in Barbour circuit court against Pever Pickens to recover damages against him for an alleged breach of promise of marriage, and laid her damages at twenty-five thousand dollars. On the 14th day of January, 1889. while said' action was pending, and before it was tried, the said defendant, Pickens, executed to John J. Davis and A. G. Dayton, trustees (two of his counsel in said action), a deed of trust upon all the real estate owned by him, consisting in all of about five hundred and seventy-one acres:- First. A tract of eighty-six and a fraction acres, purchased by said Dever from said Dayton, special commissioner; also, a tract >of..eighty-eight and one-balf acres adjoining the eighty-six acres, purchased from S. V. Woods, special commissioner: First, to secure Alston <3-. Dayton, special commissioner, the sum of two thousand and sixteen dollars and sixtyMx and two-third cents with interest from March 8, 1887, balance purchase money on said eighty-six acres; second, to secure S. V. Wood’s, special commissioner, two thousand one hundred and twenty-nine dollars, with interest from March 8,1887, -subject to a credit of five hundred and fifty-six dollars as of April 1, 1888, balance of purchase money on -said tract of eighty-eight acrejs, to be first paid out of the proceeds of said tracts, respectively; then to secure J. W. Greathouse a debt of three hundred dollars; to Edward McDaniel three hundred and thirty-two dollars and sixty-three cents, subjéct to a
On the 24th of January, 1889, the plaintiff, Dent, brought her suit in equity in said court against Dever Pickens (in his own right and as executor of James Pick-ens), John D. Pickens (executo.r of James Pifckens), A. G-. Dayton (trustee), John J. Davis (trustee), S. V. .Woods {special commissioner), A. G. Dayton (special commissioner), J. W. Greathouse, Edward McDaniel, Milton D. Reed, C.
At the September rules, 1889, plaintiff filed her amended bill against the same parties named1, and also against Minnie B. Coburn, M. W. Coburn, Ledrue Coburn, Mollie Pickens, A. S. Pickens, M. S. Cleavenger, A. H. Young, Emma Walker, and John D. Pickens in his own right alleging the judgment rendered on the 23d day of July, 1889, for ten thousand dollars, and assailing the marriage contract made May 10, 1889, between Dever Pick-ens and Minnie B. Coburn, as fraudulent, and made for the purpose of hindering, delaying, and defrauding plaintiff in the collection of her said debt, and charging knowledge of the said fraud upon the said Minnie B. Coburn; further alleging that on the 31st of August, 1889, the caused an execution to be issued upon said judgment and placed in the
Depositions of various witnesses were taken by plaintiff and defendants, and filed in the cause, which came on to be heard' on the 17th o-f'November, 1896, upon plaintiff’s original bill and two amended bills duly matured at rules by process executed thereon, and order of publication duly taken therein, the answers of A. M. Pickens, John D. Pick-ens, executor of James Pickens, Dever Pickens, and R. M. Boring to said original bill, the answers of Dever Pickens and Minnie Pickens to said first amended/ bill, and answers of said Dever and Minnie Pickens to the second amended bill, general replication to all of said answerss, exhibits filed with said bills and answers, depositions of witnesses, and was argued by counsel, whereupon the court was of opinion, and did adjudge, from the pleadings and proofs, that the deed of trust executed on the 14th day of January, 1889, by Dever Pickens to defendants Dayton and Davis, trustees, which was assailed in said original bill, and the marriage contract executed by said Dever Pickens and Minnie B. Coburn on the 10th day of May, 1889, assailed by said amended bills, were not fraudulent, but were in all respects bona fide, conveyance's, free from fraud, and that, therefore, the plaintiff was not entitled to the relief prayed for in the bills, and the same were dismissed, with costs., from which decree this appeal is taken by the plaintiff, and the following errors assigned: “(1) It was -error not to decree the said trust deeds and said marriage contract fraudulent and void as to plaintiff’s claim. (2) It was error not to decree the same as a lien upon the real estate conveyed in said; trust as of the date of the institution of said
Are the grounds sufficient for setting aside the trust deed of January. 14, 1889, as to the claims aggregating about eleven thousand dollars as fraudulent? The record discloses the fact that Dever Pickens was in the years 1886,1887, and! 1888" an active business man, trading largely in stock, and farming with every appearance of success. It is shown that in the fall of 1888 he received between five thousand,dollars and siix thousand dollars in cash for a lot of about one hundred cattle that he had sold the fall before. He was charged on the assessor’s books of his county for the purposes of taxation for the year 1886 with money and personal property in the amount of eight thousand one hundred and five dollars; for the year 1887, with four thou- and two hundred and sixty-five dollars; and for the year 1888, with four thousand six ‘hundred and ten dollars; and for the year 1889, with no assessment for personal property, but one dollar for capitation tax. Dever. Pickens was one of the executors of his father, James Pickens, deceased. On the 1st day of May, 1888, the accounts of the executors of said decedent were laid before the commissioners of accounts, and the settlement completed. March 16, 1889, and confirmed by the county court April 1, 1889, which settlement showed a balance in favor of Dever Pickens against the estate of four hundred and nine dollars and seventeen cents. On the 14th of January, 1889, within a month or two after he had received the sum of about .six thousand dollars of his own money, he executed the deed of trust securing to his sister R. M. Boring the sum of one thousand three hundred and twenty dollars; to his mother, A.M.Pickens,about four thous'andsixhundred dollars; and to. the estate of his father, five thousand dollars. Where shall we look for the cause of this sudden collapse of this active, vigorous, .sharp-
As to' the marriage contract 'of May 10, X889, the facts and circumstances clearly proved show that Minnie B. Co-burn lived in the neighborhood where the courtship of De-ver Pickens and appellant was carried on, and knew of his attentions to her. She had met them together, and he had taken- appellant to Coburn’s to see Miss Minnie Coburn in May, 1887; and! Miss Coburn had remained in the neighborhood until the 13th of November, 1888, ten months after appellant’s child was bolrn, andl about that long after the action was brought by appellant, right in the midst of the gossip that was constantly going on in all that section about it, and it was kept before! the public by the local newspapers of some two or three counties, and the fact of the birth of the child was very improperly and immodestly called to her personal attention, so that the subject was constantly kept before her, nolens -nolens. And she does not deny, in her answer, the allegation of the bill that she had notice of the pendency of the suit at law. In the face of ail these facts, Dever enters into this contract with her, transferring to her not only all his personal effects, including, specifically, Ms cko,ses in action and evidences of debt in amounts even down to twenty dollars, but including a mere equity of redemption in other plainly fraudulent transfers made jby him and mentioned and set out in, the contract with her. And while she denied in her answer to ■ the allegations of the bill that she had knowledge of the fraudulent intent (of Dever in thus transferring his property and reducing himself to utter insolvency so suddenly, and so soon after-a prosperous career of active business ¡in large transactions, she fails to testify in the case to 'make her position clear, if she might, and, by subjecting herself
/v 'Much stress is laid upon the-sanctity of thé-marriage contract by the appellee,-that - the-' consideration Of mar-1 riage, in an antenuptiai contract,’is of the very highest, to which I most readily and heartily assent; and the p'ropos®tion is abundantly supported by the highest authority, including this Court, which holds that such contract cannot be impeached as fraudulently existing creditors unless it-be shown that both parties thereto participated therein, or had notice of fraudulént intent. Boggess v. Richards, Adm'r, 39 W. Va. 567, (20 S. E. 599.) We are told" that: “The" common" law, though it abhors every sort of cheating, loves matrimony.' Its principles all point towards it, when the circumstances of a case exposé them to this attractive force.” We must remember' that'in this- case we have two antenuptial contracts to contend with, and to adjust the complications which bad faith, at least on the part of the double contractor, has brought about.! While it is true that
In appellant’s first amended bill, she assails the assignment of a certain .claim of one thousánd dollars to Mollie Pickens, sister of Dever, and the assignment of notes and other claims against other persons, his debtors, and makes such other debtors parties to this suit, and asks thlat they be inhibited from paying such debts to any person but the appellant. I find in the record the following admission iinadd before a commissioner by the parties to this suit by their counsel: “It is admitted before the commissioner by the parties to this suit, by their said counsel, that of the debt of $2,050.89 decreed to Dever Pickens in the chancery cause of Franklin Maxwell agadlnst M. W. Coburn, etc., and J. N. B. Crim against M. W. Coburn, etc., mentioned In the foregoing deposition of Melville Peck, that in addition to the sum of $1,721.21 paid by him, as commissioner, on the 22d day of April, 1892, to: Alston G. Dayton, attorney, as per a copy of his receipt exhibited in said deposition, parcel of said $2,050.89, the residue thereof, to wit, $886.84 with interest there'on from thie 22d day of May, 1893, is now in the 'hands of Squire Crouse, the general receiver of fhel circuit court of Barbour county, paid to him under1 a decree entered in said court in the chancery causes of Franklin Maxwell against Arthur W. Martáln, etc., and is now subject to the order of said court therein.” And it is claimed! by the appellant that the debt of two thousand fifty dollars and pighty-nine ceints mentioned in said agreed statement is, by virtue of the lien of the plaintiff’s bill, and the docketed execution therein mentioned, liable to her judgment, and the same should be charged against the person paying .the same, or receiving payment thereof, with notice of plaintiff’s rights* and against the fund in the hand's of said' general receiver, to wit, the sum of eight hundred and eighty-six dollars and eighty-four cents, with interest, as stated in said agreement. This proposition is correct, as applying to the debtors mentioned in ¡said assignment from the date of the1 filing of said first amended bill.
Defendant .Mollie Pickens failed to answer, and the amended! bills were taken for confessed as to her. Clark
As to the sufficiency o-f the acknowledgment of the marriage contract by the said Minnie B. Coburn,I deem it immaterial. The marriage contract made between Dever Pickens and Minnie B. Coburn must be set aside, as fraudulent and void as to the judgment of appellant.
For ,the reasons herein given, the decree of the circuit court must be reversed, and the cause remanded, with directions to the circuiticourtto require the general receiver to pay over to the appellant the money in his hands on account of’ her judgment, and that the court take such further proceedings as may be necessary to1 sequester the rents, issues, and profits of the three hundred and ninety-six and one-half acres to the plaintiff’s claim, subject only to the bal- . anee which may be due to A. M. Pickens on her claim of two thousand five hundred dollars, as a prior lien, or toi sell all the right, title, and interest of said Develr Pickens therein, and to sell the tracts of 86 and 88 acres, and after paying the leins thereon created by the deed of trust of January 14, 1889, and not assailed in plaintiff’s bill, the residue to be applied to appellant’s judgment, and to refer the cause to a commissioner to ascertain and report what moneys due on the claims assigned by Dever Pickens from the parties mentioned in the amended bills as debtors to him, if any, have been paid since the filing of the first amended bill, by whom and to whom paid, and whether the one thousand dollars of the debt secured by the trust deed made by M. W. and Ledrue Coburn of October 21, 1885, secured to Dever Pickens, and mentioned in the said •marriage contract as having been assigned to Mollie Pick-ens, has been paid to her since the filing of the first amended bill, and whether any or all of such moneys have been paid or not; that the court take proceedings to collect all such money as may not be shown, upon proper arid sufficient evidence, to have been paid prior to the filing of the said first amended bill, to be collected from the persons who have since received it, or from the debtors who may not yet have paid what they owe; andl that the same, as fast as collected, be applied to the judgment of appellant, until the same is satisfied.
Rehearing
r But little has been added om the rehearing to- what was insisted upon at the original .hearing ol the cause. The arguments then' made haye been emphasized, and somewhat intensified.' ’ A point ,i« raised in the brief otai rehearing as follows: “Second^ what just reason is there for the harsh provisions of this decision against Mollie Pickens?” The brief then goes on to inform the court, dehors the record), that said Mollie was “an afflicted daughter of dames Pickens, and a.sister of Dever Pickens. The world is á silent one to her. She is deaf and dumb. She could not well testify in her own behalf, — in fact, could not ai: all. Her brother did.' Her debt is not denied' to have existed. Dever Pickens owed her the money. But under this decision sheds held to have had knowledge of his fraudtu-lent purpose, and must lose her debt; may even refund part of it paid in the interest of the appellant,, who, no matter how much we may pity her, is neither so innocent aid'this sad business) nór so! helpless in life, as she.” If this is' all true, it does indeed leave the defendant Mollie Pickens in bad condition, and she is to be pitied). But what can be done?-1 She appear® froto, the record to be an adult defendant, and is presumed to be in complete possession of all her faculties, the contrary not being shown, and no intimation of any affliction until it ap-péars in this brief of counsel on rehearing. If there was reason for appointing • a committee or guardian ad' litem to attend to and look after the interests of the defendant Mollie Pickens in the case, a suggestion to the court would have been sufficient to have had her interests protected in the case. The bill charges directly her knowledge of fraud. She stands by after being duly served with process, makes no appearance or answer, the bill is taken for confessed as to her; and it seems that, while Dever Pickens and all the rest of the family had able counsel to assist them in circumventing the plaintiff in her efforts to recover something from Dever on account of her just recovery against him, this poor girl was overlooked, and left to care for herself as best she could.- I think it will hardly be seriously contended that the court can go outside of the record to consider the unfortunate condition that defendants have gotten themselves into' either
I write this note, not for an opinion on the , many points arising in the case, but only to.,say, that-by concurring in the decision I by no means intend to questioln the principles laid down in Boggess v. Richards' Adm’r, 39 W. Va. 567, (20 S. E. 599.) Herring v. Wickham, 29 Grat. 628, and Snyder v. Grandstaff (Va.) 31 S. E. 647; nor, does Judge McWhorter. I think that even if Miss Coburn knew of Dever Pickens’ seduction of Miss Dent, and his
Reversed.