50 W. Va. 349 | W. Va. | 1901
Daniel Edgell and others, as heirs of Pinkney Edgell, exhib
This decree is based solely upon the amended bill, because there is not in the original bill a word of allegation that the deed from Pinkney Edgell to L. L. Smith was only as security for a loan. This inevitably presents the question whether that decree can stand upon the amended bill. It cannot for two reasons. The first reason is that it is a departure from the original bill, presenting a theory of relief different from, distinct from, not germane to, the allegations of the original. The original bill calls for relief upon the theory that the conveyance was made to shield the property from creditors with the prom-' ise from the Smiths that it would he re-conveyed to Edgell after settlement with creditors, and it averred that Smiths paid no money whatever, and it did not hint that they were to furnish any money as a loan; it set up that it was a conveyance upon a secret trust of re-conveyance, made solely to save the land from creditors, utterly denying that it was upon any money consideration or loan from Smiths. The amended bill states that it was-made simply to secure a loan, a silent mortgage. The two bills arc inconsistent with each other. In Bird v. Stout, 40 W. Va. 43, this Court held: “An amended bill must not introduce another and different cause of suit from that of the original bill; but an amended bill is no departure from the original if it tend to promote a fair hearing of the matter of controversy on which the suit was originally really based, provided it do not introduce a new substantive cause of suit different from that stated, and different from that intended to be stated, in-the original bill. An amended bill cannot be allowed containing statements inconsistent with the nature of the original bill or changing the cause of suit. By it allegations may be changed and modified, and
The second, reason why the decree cannot rest on the amended bill is that it was filed long after the depositions to sustain the theory presented by it had been taken — all the depositions in the case. Goldsmith v. Goldsmith, 46 W. Va. 426, holds that, “Depositions proving a matter not in the pleadings when taken cannot be read to support an answer afterwards filed setting up such matter, if objected to.” ' I do not see how, after all depositions have been taken, an amended bill setting up a different case can be filed to suit the proof already taken. Even where the amendment is proper, if it introduce new facts necessary to be proven, I do not see how they can be decreed upon on proof taken when those facts, substantive facts, were not in the pleadings. Our statute does allow an amended bill, without the leave, of court, at any time after appearance; but surely this was not meant to allow a party to prove matter not in the pleadings, and which the other party was not called upon to meet, or controvert at the time when his adversary took his proof. There must be allegations before proof, and this is a cardinal rule which no statute has dispensed with. The adverse party has no notice, and when the proof is taken of matters not in the plead
From the character of the original bill, as will appear from the statement, it is plain that it admitted that Edgell made the deed to Smiths with intent to delay or hinder his creditors, if not with ultimate intent to wholly defraud them out of their debts. In Goldsmith v. Goldsmith, 46 W. Va. 431, the very common principle is stated that “the plaintiff cannot sustain a suit in equity to cancel a deed made to defraud creditors, as the law is, that both grantor and grantee are equally guilty, yet equity will take no step to help either, but leave them where they placed themselves, under the maxim, ‘In pari delicto potior est conditio defendantis.” Horn v. Foundry Co., 23 W. Va. 522; Cain v. Cox, Id. 594; McClintock v. Loisseau, 31 W. Va. 865, (8 S. E. 612); Stout v. Mercantile Co., 41 W. Va. 339, (23 S. E. 571).” Corrothers v. Harris, 23 W. Va. 177, puts the short proposition, held everywhere in equity courts, “Equity will not interfere between parties to the relief of one against the other in a fraudulent transaction.” It may be said that the bill states that the conveyance was not made with design to utterly defraud EdgelTs creditors, but only to convey the land to Smith until Edgell could arrange with his creditors, and that he might have designed ultimate pajunent. This will not save the bill from an admission under which the law brands that deed as fraudulent. The statute against fraudulent conveyances, Code 1899, chapter 74, section 1, says that any conveyance made with intent “to delay, hinder, or defraud creditors” shall be void, that is, either to delay, hinder, or defraud. Any act tending to hinder, delay
Neither bill will support the decree holding void the reservation of minerals for reasons stated above as to those bills. But as the original bill assails that reservation, I will consider, though not compelled to do so, owing to the obnoxiousness of that bill above stated, the question of th#e validity of that reservation tested by the evidence. The evidence to sustain the charge that that mineral reservation was inserted fraudulently hangs, I may say almost exclusively, upon Daniel Edgell and Irwin Edgell, two sons of Pinkney Edgell, and Samuel Edgell, his son-in-law, all prejudiced by interest in the result of this suit, as both our knowledge of human nature, and the reading, of their depositions will attest. And their evidence at best is very short and inconclusive to establish the grave charge'of fraud consisting in the insertion of a clause in a deed solemnly signed, sealed and acknowledged, and spread on the records. It takes a great deal of evidence to overthrow solemn writings. They are the highest evidence of man’s transactions, and should not fail at the bidding of oral evidence of more conversations such as those spoken of by those witnesses. Neither of these witnesses was present at tho execution of this deed. They do not speak of it as a matter of their personal knowledge. They detail declarations of Pinkney Edgell in the absence of the Smiths, and those declarations constitute nine-tenths of their evidence. Those declarations made in the absence of the Smiths are utterly inadmissible, because they were made by a man in his own interest, not against his own interest; they are self-serving dec-clarations, not self-disserving. “A partjr’s self-serving declarations can not be put in evidence in his own favor, whether he be living or dead at the trial.” 2 Wharton, Ev., s. 1101. See High v. Pancake, 42 W. Va. 602. Edgell could not by declarations made after this deed destroy Smiths’ right. Casto v. Fry, 33 W. Va. 449. How it is expected that a court should overthrow a doed almost exclusively upon the strength of declarations made by one of the parties afterwards in his own interest and in the absence of the other parties, I do not understand. And as to all these declarations of H. L. Smith, or Edgell, I will add that
Irvin and Daniel Edgell, as to their evidence of II. D. Smith’s declarations, are contradicted' flatly by H. L. Smith, and they having gone on the stand as to those declarations, H. L. Smith is thereby rendered competent. The evidence of the plaintiffs’
As to the charge that Smith put the deed on record without knowledge of Edgell. It is clearly proven by disinterested evidence that H. L. Smith paid five dollars to Pinkney Edgell in settlement as'1 additional money to record three deeds, and that Pinkney Edgell sent the deed in question with two others to the clerk’s office for recordation. Therefore, the decree setting aside that reservation was without sufficient evidence to establish the fraud and against the great weight of the evidence, decidedly against it. It may be said that the fact that Selecta Edgell, in her deed to II. L. Smith, reserved oil, gas and coal shows inconsistently with the claim of Mrs. Smith that the reservation was honest, as it may be asked if that reservation in the deed from Mrs. Smith and husband was bona ficHe, why would II. L. Smith accept a deed from Selecta Edgell reserving minerals. The answer is that Selecta EdgclPs conveyance was not to Mrs. L. L. Smith. Can the court take the acceptance by II. L. Smith of the deed from Selecta Edgell as a destruction of the pre-existing estate of Mrs. L. L. Smith? Could he thus destroy her right? Is the act of acceptance of such deed even evidence against her ? But let us suppose that deed had been made to Mrs. Smith herself. Selecta Edgell’s reservation would be right, because the minerals had been reserved from her in the deed to her from her father, and in her deed she simply repeated the language of reservation employed in the deed from her father to her, and also in the deed from the Smiths to her father. As she did not own- the minerals, she could not convey them, and thus break her warrantjq and afford Smith a defense against payment of the deferred purchase money. Smith protested against the reservation, but she insisted upon it, saying that its omission would breed trouble. She was right. True, that clause might have been inserted more properly as a limitation upon the warranty, and she could not, technically speaking, reserve what she had not; but she simply intended to convey the land excepting the minerals, afid simply repeated the language of the prior deeds.
Another reason against the decree declaring said reservation void is laches. Upwards of three years elapsed between the date of the deed from Smiths to Edgell and the commencement of
Reversed.