83 W. Va. 485 | W. Va. | 1919
This appeal is from a decree setting aside and canceling the title' papers of the appellants, as to the undivided two-fifths of 2,503 acres of land claimed by them, as constituting clouds upon the title of the appellees, and awarding partition of the land, upon the theory that the latter acquired the title by means of a covenant of warranty in a deed which was set aside and annulled and the covenantor’s partial re-acquisition of the title warranted by him.
By a deed dated, September 9, 1877 and recorded August 30, 1883, Daniel Donehoo and wife conveyed tlm land to Clara J. Briggs and Mary King, two of his children, in trust for his six minor children, with a covenant of general warranty as to all of it but three acres. In November 1883, T. M. White, a creditor of Donehoo, filed his bill to set aside the deed, for want of consideration and intent on the part of the grantor, in the making thereof, to hinder, delay and defraud his creditors and particularly the said White. Upon that bill, the deed ivas set aside and the land sold to satisfy the plaintiff’s debt and he became the purchaser. By a deed dated, October 9, 1897, White reconveyed to Donehoo, two-fifths of the land, for a recited consideration of $2,012.00. By a deed dated Aug. 21, 1890, Donehoo and wife conveyed said two-fifths to John Moo.res, who on the next day acquired the other three-fifths from White, by deed. From Moores, such title as he acquired by these conveyances, purporting tó be entire and complete, has passed by numerous deeds to the appellants
The sole ground of alleged title in the appellees is inurement to them of the title to the two-fifths reeonveyed to Donehoo, by reason of his covenant of general warranty in
Ordinarily, if a person grants land with a covenant of general warranty any title thereto he subsequently acquires from a third person virtually passes by force of his warranty, to his grantee, for he is estonped to claim it against his own covenant. Clark v. Sayers, 55 W. Va. 512; Yock v. Mann, 57 W. Va. 187; Summerfield v. White, 54 W. Va. 311. An'A the estoppel binds his heirs, grantees and all persons claiming under him. Clark v. Sayers, cited; Custer v. Hall, 71 W. Va. 119: Raines v. Walker, 77 Va. 92; Carver v. Jackson, 4 Pet. (U. S.) 86; Myers v. Croft, 13 Wall. (U. S.) 219; Irvine v. Irvine, 9 Wall. (U. S.) 618. '
The theory of the appellees is that the covenant of warranty between Donehoo and his grantees, embodied in the deed, was not destroyed by the decree or the sale made under it, and that it still has force and' efficacy binding him and all persons claiming under his subsequent deed to Moores. It seems to be admitted, however, that, if the deed of 1877 was actually fraudulent, the grantees therein are estopped to claim the benefit of the warranty against Moores, a purchaser for value from Donehoo, after' he re-acquired title. That, they are, if such is the case, is most emphatically asserted by well considered decisions. Gilliland v. Fenn, 90
This record discloses none of the proceedings in the suit brought by "White, except the bill, the decree of sale and confirmation and the deed made by the special commissioner. The bill alleged indebtedness both prior and subsequent to the date of the deed it assailed, and charged both want of consideration and fraud, in a single paragraph, and, in addition thereto, false representations of ownership of the land, after the conveyance; by way of inducement to loans made to the grantor by the plaintiff, as well as a withholding of the deed from record. It also alleged failing circumstances on the part of Donehoo since the year 1876 and total insolvency at the date of the filing thereof. What defense he set up in his answer does not appear. The decree did not adjudge the existence of fraud in terms. Its language is that the deed "be set aside and held for naught so far as the same in any way affects the plaintiff’s debt.” However, it subjected the land to sale for all of the indebtedness claimed, ■$2,000.00, largely, if not entirely, contracted before the date of the deed and $1,123.95 contracted afterwards.
Considered as au entiretjq the bill cannot be fairly construed otherwise than as one attacking the deed on the ground of actual fraud. Lack of consideration was charged as a circumstance tending to prove fraudulent intent. In addition thereto, it charged a conveyance by a man in failing financial circumstances, to avoid payment of existing indebtedness, and fraudulent contraction of subsequent indebtedness. Nor is the decree fairly susceptible of any interpretation other than that of one setting aside the deed for actual fraud, since it set it aside as to indebtedness subsequently incurred; for it could not have been set aside for lack of consideration alone, as to a debt subsequently incurred. Code, ch. 74, sec. 2; Edwards Manufacturing Co. v. Carr, 65 W. Va. 673; Greer v. O’Brien, 36 W. Va. 277; McCue v. McCue, 41 W. Va. 151; Graham Grocery Co. v. Chase, 75 W. Va. 775.
Inability of the infant beneficiaries of the deed of 1877, to participate actively in the fraud of the grantor, may be admitted, but that does not absolve them from the effect of
From these principles and conclusions, it results that the decree complained of is erroneous and that there is no merit in the bill; wherefore the decree will be reversed and the bill dismissed, with costs to the appellants in this court and in the court below.
Decree reversed and hill dismissed.