73 W. Va. 358 | W. Va. | 1913
The appeal is from a decree which sets aside, as to creditors, a deed conveying real estate, and orders the property sold for the payment of debts.
The deed was made by H. W. Roberts to his four minor children, the eldest of whom was eleven. It was dated November 4th, 1906, but was not recorded until December 30, 1908. During the year 1908, Roberts incurred the debts involved. Within a month after the deed was recorded, he filed a voluntary petition in bankruptcy, and was adjudged a bankrupt. The assets returned by him were small in comparison with the debts. All the debts were simple contract ones. The trustee in bankruptcy' was authorized by an order of the bankruptcy court to bring a suit attacking the deed which Roberts made to his children as having no validity against the claims of his creditors. The suit in which we have this appeal was thereafter instituted by the trustee. The bill alleged that the deed was not delivered to the grantees by Roberts until the recording of the same operated as a delivery, that it was without consideration deemed valuable in law, and that it was made to hinder, delay, and defraud creditors. Roberts by his answer denied all these allegations, to which answer the trustee replied generally. The infant grantees were represented by guardian ad litem, who filed the usual answer for them. Depositions were taken and filed on behalf of the trustee. No evidence was offered by any of the defendants. On a hearing the decree complained of was entered. Roberts and the infants, by their guardian ad litem, join in the appeal.
The evidence warrants the conclusion that there was no
'When the instrument became an operative deed by its delivery, the grantor was unquestionably insolvent. Moreover, as the pleadings and proofs stand, the deed was voluntary and therefore void as to the debts of the grantor, all of which existed when the conveyance was actually made by the delivery of the instrument. The bill having attacked the deed as voluntary, it was incumbent on the defendants to show a consideration deemed valuable in law. Knight v. Nease, 53 W. Va. 50, and cases therein cited. They made no effort to show a bona fide consideration. Therefore the deed stood.as one prima facie void as to the creditors in whose behalf the trustee attacked it, and the decree annulling it as to them was rightly ordered.
The decree, however, goes further. It embraces a personal judgment against Roberts in favor of the trustee in bank
In so far as the decree complained of sets aside and avoids as to creditors the deed made by Roberts to his children the same will be affirmed. In all otber respects the decree will be reversed and wholly set aside. Thus the trustee, as far as the rights of creditors is concerned, is .given title to the property which Roberts sought to set over to his children, so that the same may be taken into the court of bankruptcy and there dealt with as assets of the bankrupt pursuant to the bankruptcy law.
Affirmed, in part. Reversed in part.