Goshorn's Ex'r v. Snodgrass

| W. Va. | Apr 30, 1881

HaymoND, Judge,

announced the opinion of the Court:

Under the view I take of this case I deem it proper to first consider the question of fraud involved in the sale eonveyanoe from David Snodgrass to James L. Del-aplain. The 2d section of ch. 179, p. 736 of the Code of 1860, which was in force in this State at the commencement of this suit provides, that “a creditor before obtaining a judgment or decree for his claim may institute any suit to avoid a gift, conveyance, assignment or transfer of, or charge upon, the estate of his debtor, which he might institute after obtaining such judgment or decree ; and he may in such suit have all the relief in respect to said estate, which he would be entitled to after obtaining a judgment or decree for the claim, which he may be entitled to recover.” This same provision was carried into the Code of this State of 1868, which took effect on the 1st day of April, 1869. See Code of this State of 1868, § 2, ch. 133, p. 631.

The 1st section of ch. 118 of the Code of 1860, p. 565 provides, that “every gift, conveyance, assignment or transfer of, or charge upon any estate, real or personal, every suit commenced, or decree, judgment or execution suffered or obtained, and every bond or other writing given with interest to delay, hinder or defraud creditors, purchasers or other persons, of or from what they are or may be lawfully entitled to, shall, as to such creditors, purchasers or other persons their representatives or assigns, be void. This section shall not affect the title of a purchaser for valuable consideration, unless it appear, that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.” This section is also carried into the Code of this State of 1868. See 1st section of ch. 74, p. 473, Code of 1868.

The 11th section of chapter 118 of the said Code of 1860 provides, that “ the words ‘ creditors ’ and ‘ purchasers’ where used in any previous section of this chapter, or in chapter 119, shall not be restricted to the protection of creditors of and purchasers from the grantor, but shall extend to and embrace all creditors and purchasers, who, but for the deed or writing, would have had title to the property conveyed, or a right to it to their debts.” This section is also carried into to the Code of this State and constitutes the 9th section of chapter 74 thereof, except that it omits the words “or in chapter 119.”

In 1st vol. Story’s work on Eq. Jur., § 409, p. 437, it is stated, that “ the doctrine, which has been already stated in regard to the effect of notice, is strictly applicable to every purchaser, whose title comes into his hand affected with such notice. Butin no manner affects any such title, derived from another person, in whose hands it stood free from any such taint. Thus a purchaser with notice may protect himself by purchasing the title of another bona fide purchaser for valuable consideration without notice; for, otherwise, such bona fide purchaser would not enjoy the full benefit of his own unexceptionable title. Indeed, he would be deprived of the marketable value of such a title ; since it would be necessary to have public notoriety given to a prior encumbrance, and no buyer could be found, or none except at a depreciation to the value of the encumbrance. For a similar reason, if a person, who has notice, sells to another, who has no notice, and is a bona fide purchaser for a valuable consideration, the latter may protect his title, although it was affected with equity, arising from notice, in the hands of the person from whom he derived it ; for otherwise, no man would be safe in any purchase, but would be liable to have his own title defeated by secret equities, of which he could have no possible means of making a discovery.”

In section 410 of the same book the author further says: “ This doctrine, in both of its branches has been settled for nearly a century and a half in England; and it arose in a case, in which A. purchased an estate with notice of an encumbrance, and then sold it to B., who had no notice; and B. afterwards sold it to C., who had notice ; and the question was, whether the encumbrance bound the estate in the hands of C. The then Master of the Rolls thought, that, although the equity of the encumbrance was gone, while the estate was in the hands of B., yet it was revived upon the sale to C. But the Lord Keeper reversed the decision, and held, that the estate in the hands of C. was discharged of the encumbrance, notwithstanding the notice of A. to C. This doctrine has ever since been adhered to, as an indispensable muniment of title. And it is wholly immaterial of what nature the equity is, whether it is a lien, or an encumbrance or a trust, or any other claim; for a bona fide purchase of an estate, fora valuable consideration, purges away the equity from the estate in the hands of all persons who may derive title under it, with the exception of the original party, whose conscience stands bound by the violation of his trust and meditated fraud. But if the estate becomes revested in him, the original equity will re-attach to it in his hands.”

Syllabus 1. Syllabus 7.

One who purchases from a fraudulent grantee, with notice of the fraud and of the invalidity of bis title, can acquire no better right than the fraudulent grantee. He cannot be protected as a bona fide purchaser, but must stand in the shoes of his grantor. Garland v. Rives, 4 Rand. 282; Robinson’s (old) Practice 17. The statute of frauds avoids all conveyances made by the grantor with intent to delay, hinder or defraud creditors. Those conveyances only are excepted, in which the. purchaser gives a valuable consideration and acts bona fide. The valuable consideration alone will not bring the purchaser within the exception. He must also act bona fide. If a creditor take from his debtor a conveyance to secure a debt, and mix with this object that of delaying, hindering or defrauding other creditors, the conveyance will be void. Garland v. Rives, 4 Rand. 282" court="Va. Ct. App." date_filed="1826-05-29" href="https://app.midpage.ai/document/garland-v-rives-7387228?utm_source=webapp" opinion_id="7387228">4 Rand. 282; Wright v. Hancock & Co., 3 Munf. 521; Lang v. Lee, &c., 3 Rand. 410.

The statute for the prevention of frauds, which has been universally considered as an exposition of the common law, was intended to avoid deeds contrived and devised fraudulently for the delaying and defrauding of creditors in those cases only, where both parties participated in the fraud. The grantor may intend a fraud, but if the grantee is a fair, bona fide and innocent purchaser, his title is not to be affected by the fraud of his grantor. Spencer, Jndge, in Sands v. Hildreth, 14 Johns. 498; Kent, Chancellor, in Roberts v. Anderson, 3 Johns. Chy. 378; Bean v. Smith et al., 2 Mason C.C. 252" court="None" date_filed="1821-06-15" href="https://app.midpage.ai/document/bean-v-smith-8311998?utm_source=webapp" opinion_id="8311998">2 Mason 252; Rob. (old) Prac. 17.

Syllatas 2.

In the case of Kaine v. Weigley, 22 Pa. St. (10 Harris) 179, the first branch of the syllabus is: “ The proposition, that ‘fraud must be proven and not presumed,’ is to be understood only as affirming, that a contract honest and lawful on its face must be treated as such, until it is' shown to be otherwise by evidence either positive or circumstantial. Fraud may be inferred from facts calculated to establish it.” It seems to me that this syllabus announces a correct principle. Judge Black in delivering the opinion of the court in this case at page 182 says: “One who has a hona fide debt against an insolvent man, may take property at a fair price in payment of it, without danger of having his title afterwards impeached. But when a person in failing circumstances sells land to one who is not a creditor, his motives are suspicious, for he can, if he pleases, put the money out of reach, and defeat those who are entitled to it. If the vendee-knows that such is the vendor’s purpose, he must take the consequences in the loss of his title, though he has paid an outside price for it,” &c.

Again the same judge at the same page and pages 183 and 184 says : “ In the present case it is alleged, that the conveyance was made when both parties knew the vendor to be insolvent; that the grantees were a brother-in-law and a sister of the grantor; that the consideration stated in the deed was less.than the value of the land by twenty or twenty-five per cent; that, of the sum, which was said to be the price, only fifty dollars were paid when the deed was delivered, and that amount was hanc[ed to the grantor by his sister after they had gone together in a private room, from whence she returned with the money in her hand. I say these facts are alleged. I do not say they were fully proved, or that if proved, the jury were bound to infer from them • any actual dishonesty. But if true, they make out a very serious ease, which ought to be submitted with instructions tending to prevent a verdict for the plaintiff, unless the jury should be able to explain the evidence in some way consistently with the fairness of the transaction. It is said that fraud must be proved, and is never to be presumed. This proposition can be admitted only in a qualified and very limited sense. But it is urged at the bar, and sometimes assented to by judges, as if it were a fundamental maxim ofthelaw, universally true, incapable of modification, and open to no exception; whereas it has scarcely extent enough to give it the dignity of a general rule ; and as far as it does go, it is based on a principle which has no more application to frauds than to any other subject of judicial enquiry. It amounts but to this : that a contract, honest and lawful on its face, must be treated as such until it is shown to be otherwise by evidence of some kind, either positive or circumstantial. It is not true that fraud can never be presumed. Presumptions are of two binds legal and natural. Allegations of fraud are sometimes supported by one and sometimes by the other, and are seldom, almost never, sustained by that direct and plenary proof which excludes all presumption. A sale of chattels without delivery, or a conveyance of land without consideration, is conclusively presumed to be fraudulent as against creditors, not only without proof of any dishonest intent, but in opposition to the most convincing evidence that the motives and objects of the parties were fair. This is an example of fraud established by mere presumption of law. A natural presumption is a deduction of one fact from another. For instance: a person deeply indebted, and on the eve of bankruptcy, makes over his property to a near relative, who is known not to have the means of paying for it. From these facts a jury may infer the fact of a fraudulent intent to hinder and delay creditors. A presumption of fraud is thus created which the party, who denies it, must repel by clear evidence, or else stand convicted. When creditors are about to be cheated, it is very uncommon for the perpetrators to proclaim their purpose, and call in witnesses to see it done. A resort to presumptive evidence, therefore, becomes absolutely necessary to protect the rights of honest men from this,"as from other invasions. Upon such evidence the highest criminal punishments are inflicted, and the most important rights of property constantly determined. Fraud in the transfer of goods or lands may be shown by the same amount of proof which would establish any other fact in its own nature as likely to exist. In any case the number and cogency of the circumstances, from which guilt is to be inferred, are proportioned to the original improbability of the offence. The frequency of fraud upon creditors, the supposed difficulty of detection, the powerful motives which tempt an insolvent man to commit it, and the plausible casuistry with which it is sometimes reconciled to the consciences even of persons whose previous lives have been without reproach; these are the considerations which prevent us from classing it among tbe grossly improbable violations of moral duty; and therefore we often presume it from facts which may seem slight. Besides, when a man, who knows himself unable to pay his debts, disposes of his property for a just purpose, he can easily make and produce the clearest evidence of its fairness. If he sells for the benefit of his creditors, he can prove, that he applied the proceeds to their use. It is no hardship upon an honest man to require a reasonable explanation of every suspicious circumstance, and rogues are not entitled to a veto upon the means employed for their detection. We do not propose to say how much evidence |g reqHjre<j to raise a presumption of actual fraud, either this case or any other. The jury must weigh, on one hand, the facts which are adduced to prove it, and on the other, the nature of the accusation and the improbability of its truth arising from reasons a priori, together with the exculpatory facts, and then decide according as they find the preponderance to be. If the reasons pro and con are so evenly balanced that they can come to no conclusion, they must find the transaction honest, not upon the principle of the criminal law, which gives the benefit of every doubt to the party accused, but because the burden of proof w.as on the other party at the start; and if he has done no more than create an equilibrium, he has failed to make out his case.”

Syiiabus 3. Syllabus 4.

It is perhaps proper, that I should here remark, that in this State a sale of chattels without delivery is not conclusive evidence of fraud, but is only prima facie evidence of fraud. If the facts established afford a sufficient and reasonable ground for drawing the inference of fraud, the conclusion, to which the proof tends, must in the absence of explanation or contradiction be adopted. Kerr on Fraud and Mistake, American Notes 384, 385. The motives, with which an act is done, may be, -and often are, ascertained and determined by circumstances connected with the transaction and the parties to it. Various facts and circumstances evince sometimes with unerring certainty the hidden purposes' of the mind.

“A deduction of fraud” says Kent, “maybe made not only from deceptive assertions and false representations, but from facts, incidents, and circumstances, which may be trivial in themselves; but may, in a given case, be often decisive of a fraudulent design.” Kerr on Fraud, &c., 385. “A badge of fraud does not constitute fraud itself, but is simply evidence of fraud, a means of establishing a fraudulent intent. It is not necessary, however, in order to condemn a transaction as fraudulent, tliat two or more of the marks of a collusive design shall be affixed to it, for all presumption becomes conclusive unless explained” Bump on ulent Conveyances, 78. “Though the proof of fraud rests on the party who alleges it, circumstances may exist to shift the burthen of proof from the pai’ty ing a transaction on the party upholding it.” Same book, 385.

syllabus 6 syllabus 5

In the case of Bryant et al. v. Henry Simonean et al., 51 Ill. 324" court="Ill." date_filed="1869-09-15" href="https://app.midpage.ai/document/bryant-v-simoneau-6953607?utm_source=webapp" opinion_id="6953607">51 Ill. 324, it was held, that “ fraud, like all other facts, may be proved by circumstances, not however by circumstances that merely raise a suspicion; and when they are so strong as to produce conviction of the truth of the charge, although some doubt may remain, it will be considered as proved. This is believed to be the extent of the rule, that fraud must be proved.”

In a case in the United States district court, of Massachusetts, 4 National Bankruptcy Begister, 45, Judge Lowell at page 46 says: “I have often decided, that the conveyance of the whole property of a debtor affords a very violent presumption of a fraudulent intent so far as existing creditors are concerned.”

Although fraud in fact, even as to an existing creditor after five years, must be shown to impeach the conveyance, it is not required, that the actual or express fraudulent intent appear by direct and positive proof; circumstantial evidence is not only sufficient, but in most cases it is the only kind of evidence that can be adduced. Fraud is to be legally inferred from the facts and circumstances of the case, where these facts and circumstances are such, as to lead a reasonable man to the conclusion, that the conveyance was made with intent to hinder, delay or defraud creditors. Hunter’s ex’rs v. Hunter et al., 10 W. Va. 321" court="W. Va." date_filed="1877-05-01" href="https://app.midpage.ai/document/hunters-exrs-v-hunter-6591705?utm_source=webapp" opinion_id="6591705">10 W. Va. 321; Lockhard & Ireland v. Beckley et al., 10 W. Va. 87; Castle v. Bullard, 23 How. 187.

Although a deed be made for a valuable and adequate consideration, yet if the intent, with which it is be dishonest or unlawful, the deed will be deemed fraudulent. Ward, &c. v. Trotter, &c., 3 Mon. 1, 3 and 4; Kerr on Fraud, &c. 200.

Jn cage Garr v. Hill et al., 1 Stock. N. J. 210, it was beld, that “if a debtor is about to abscond from his creditors, and with this knowledge on the part of the purchaser, and with the view of aiding him to convert his property into funds, so that he may the more readily effect his purpose, he takes a conveyance of the debtor’s property, he participates in the fraud the debtor contemplates perpetrating, and such conveyance is void as against creditors.” The Chancellor in delivering the opinion of the court in this case at page 215 says : “It the agreement was made by James for the purpose of defrauding his creditors, and Wakeman entered into the agreement to aid him in such purpose, the agreement is void, no matter whether Wakeman paid him a full consideration or not. A deed executed for the purpose of defeating creditors, in which purpose the grantee participates, is void, even though a full consideration is paid, &c. See also 1 Story Eq. Jur. §369, pp. 397 and 398. In the said case in 1 Stock. —, it was also held : “ But a debtor in failing ‘ circumstances or about to abscond, may legally make a conveyance for the purpose of preferring an honest creditor.” See also 1 Story Eq. Jur. § 370, pp. 398 and 399.

If the evidence establishes a prima facie case of fraud, or shows that an instrument is false in any”material part, the burthen of showing, that the transaction was fair lies upon the party who seeks to uphold it. Kerr on Fraud, &c. 385, 386. In the case of the Assignees of Braugh, a bankrupt v. Farber, 78 Eng. Com. Law 409, it was asked by Maulé, Judge : “Why was not the defendant made a witness?” And Chief Justice Jarvis observed: “I always observe upon the absence of the defendant, where he might, if called, remove an imputation of fraud.” Bump in his work on Fraudulent Conveyances at pages 95 and 96 says: “The omission of the grantee to testify or to produce the debtor or any other impor-taut witness, is the ground for an unfavorable presumption, and frequently exercises an important influence upon the final determination of the question of fraud.”

In a case in the United States District Court of Kentucky In re Ernest Husman reported in the 2d Bankruptcy Begister Judge Ballard in delivering his opinion at 140-144 after remarking, that both Landrath and Hus-man, grantor and grantee in an alleged fraudulent sale were competent witnesses, but had not testified, says: “ Certainly the most charitable must concede, that the whole transaction is surrounded by circumstances of extensive suspicion. And I think it a sound rule, sustained by reason as well as by authority, that when it appears that a party to a suit has in his possession evidence, which he can give to clear up any doubt or to resolve any difficulty, and he does. not give it, the presumption is that the evidence, if given, would be in corroboration of that, which has been already given against him. Clifton v. United States, 4 How. 242" court="SCOTUS" date_filed="1846-01-20" href="https://app.midpage.ai/document/clifton-v-united-states-86367?utm_source=webapp" opinion_id="86367">4 How. 242.”

In the case of Glenn v. Glenn, 17 Iowa 498" court="Iowa" date_filed="1864-12-10" href="https://app.midpage.ai/document/glenn-v-glenn-7093135?utm_source=webapp" opinion_id="7093135">17 Ia. 498, Judge Dillon in delivering the opinion of the court at pp. 502 and 503 says: “ Another consideration of much weight is, that notwithstanding the circumstances thus attending the transfers in question seem to require explanation, if any could be given, yet neither the father nor any of the sons or the’ son-in-law have become witnesses. If they could truthfully have testified to facts showing the bona fides of the conveyances in question, the reasonable presumption is, that being competent witnesses they would have done so. Where the circumstancés are so suspicious as those above specified the failure by the plaintiff to offer explanatory or rebutting evidence, thus clearly within their power, had it existed, makes strongly against them. Blatch v. Archer, Cowp. 65, per Lord Mansfield.”

A creditor, who takes a conveyance from his debtor to secure his debt, but at the same time inserts provisions in the deed to delay, hinder or defraud other creditors, comes within the statute of frauds, and the conveyance is voicl. g0 likewise, if the grantee be privy to a fraud u-jenj. in^en(; on the part of the grantor and takes a deed to secure his own debt with provisions to delay, hinder or defraud other creditors, the deed will be void, although his only motive was to secure his own debt, and the other provisions were forced upon him by the grantor, as the only means of having his own debt secured. Such a grantee will not be considered as a bona fide purchaser. Garland v. Rives, 4 Rand. 282" court="Va. Ct. App." date_filed="1826-05-29" href="https://app.midpage.ai/document/garland-v-rives-7387228?utm_source=webapp" opinion_id="7387228">4 Rand. 282. Under our statute of frauds, as well as the English statute of 13 Eliz. a bona fide purchaser for value having no notice of covin, fraud, collusion, &c., will be protected. To vitiate a conveyance there must be a fraudulent design in the grantor and notice of.that design in the grantee. Same report; 10th section of the syllabus in Lockhard & Ireland v. Beckley et al., 10 W. Va. 88; Herring et al. v. Wickham and wife et al., 29 Gratt. 628.

Syllabus 8

In the case of Castle v. Bullard, 23 How. 172" court="SCOTUS" date_filed="1860-01-30" href="https://app.midpage.ai/document/castle-v-bullard-87325?utm_source=webapp" opinion_id="87325">23 How. 172, decided by Supreme Court of the United States, Judge Clifford in delivering the opinion of the court at page 187 says: “ Much of the evidence was of a circumstantial character ; and it is not going too far to say, that some of the circumstances adduced, if taken separately, might well have been excluded. Actions of this description however, where fraud is the essence of the charge, Necessarily 'give rise to a wide range of investigation, for the reason that the intent of the defendant is, more or less, involved in the issue. Experience shows that positive proof of fraudulent acts is not generally to be expected, and for that reason, among others, the law allows a resort to circumstances as the means of ascertaining the truth. Great latitude, says Mr. Starkie, is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly required, not merely for the purpose of remedying the want of direct evidence, but of supplying an invaluable protection against implication. 1 Starkie’s Ev. 58. Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the enquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy aye not favored, for the reason that the force and effect of circumstantial facts usually and almost necessarily depend upon their connection with each other. Circumstances altogether inconclusive, if separately considered, may by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.”

In the case of Glenn v. Glenn, 17 Ia. 498, supra, Judge Dillon at page 501 says: “From the pleadings and evidence the following facts, most of them being badges or signs of fraud, are satisfactorily shown.” He-then proceeds to state them numbering them from one to four inclusive, and number thre.e'as stated by him is as follows : “ 3. The nature and purposes of the transfer are also evinced by the amount of property conveyed. It comprised all of his estate, or substantially all, both real and personal.” See on this point Bump on Fraudulent Conveyances, 79, 80.

Here I deem it proper to remark, that the defendants and each of them have failed to take the deposition of defendants, David Snodgrass or James L. Delaplain, or either of thtm, who were competent witnesses to explain the transaction between themselves and all the circumstances and facts in the case,which need explanation to sustain the sale from said David Snodgrass and to said James L. Delaplain as an honest bona fide sale. It may be remarked also, that the said David Snodgrass and James L. Delaplain are brothers-in-law. Bump says in his said work, that “ wherever this confidential relation exists, the parties are held to a fuller and stricter proof of the consideration.” He also mentions other confidential relations to which the same effect is given. Bump on Fraudulent Conveyances 96, 97 and 98.

Having stated fully the pleadings and evidence in the case I deem it unnecessary here to enter into an analysis ^ie evidence and an argument thereon ; but I feel, j should in this case content myself with stating my eonc]usjons from the pleadings and evidence as to the character and purposes of the sale and conveyance of the land in the bill mentioned by David Snodgrass and wife to James L. Delaplain. Upon careful examination of the pleadings and evidence in the cause my conclusion is, that the said sale and conveyance of said land by David Snodgrass and wife to James' L. Dela-plain was made by the said David Snodgrass with the intent and purpose on his part to delay, hinder or defraud the creditors of the said David Snodgrass, and that the said James L. Delaplain at the time of said sale and conveyance of the said David Snodgrass and wife of said land to him had notice of such fraudulent intent and purpose of the said David Snodgrass.

I will now proceed to enquire if the defendant, Florence V. Delaplain, had notice of said fraud. It will be seen, that the release of David Snodgrass of the trust-deed upon the land to secure the negotiable notes therein mentioned from said James L. Delaplain to said David Snodgrass, (neither of which notes according to the face of said deed of trust were then due) was acknowledged the 30th day of May, 1868, (there is no other date to it) and the said bond of indemnity from James L. Delaplain and his surety James Delaplain to Samuel S. Jacob, trustee for said Florence V. Delaplain, is also dated the 30th day of May, 1868, and said deed of release and bond of indemnity were acknowledged on the day and year last aforesaid before the same notary public in the State of Delaware. The said deed of release, it appears, was admitted to record on the 11th dayof June, 1868. The deed from James L. Delaplain and wife to Samuel S. Jacobs, trustee &c., as we have seen, is dated the 7th day of April, 1868, was acknowledged on the 16th day of April, 1868, and was admitted to record on the 22d day of June, 1868, nine days after this suit was brought and the attachment levied; and the said deed of trust from Feter Delaplain and Florence V., his wife, and said Samuel S. Jacob as trustee, &c., to A. J. Clark, trustee, is also dated the 7th day of April, 1868, and was acknowledged and admitted record on the 11th day of June, 1868, the same day said deed of release was admitted to record, two days before this suit was commenced. The first named deed of conveyance was acknowledged in Delaware, and the deed of trust before the recorder of Ohio county.

It is manifest from the evidence of James L. Dela-plain, that the said deed of conveyance,was not accepted by said Florence V. Delaplain at the date of the said deed of conveyance or at the date of its acknowledgment nor. indeed until after the execution and delivery of said bond of indemnity ; for the said James L. Delaplain says in his deposition, that the said Florence V. Delaplain was not willing to accept the title without this bond. When said bond was received and the deed of conveyance accepted does not distinctly appear. It clearly appears, that it was after the 30th of May, 1868, and may have been after the commencement of this suit, for aught that appears in this case. It will be seen, that the said suit of Snodgrass v. Snodgrass et al., was commenced the 13th day of November, 1867, and the bill therein filed at January rules, 1868, and that one of the principal objects of the suit and bill was to set aside the said deed of conveyance from David Snodgrass and wife to said James L. Delaplain, because it was made, as therein alleged, to defraud the creditors of said David Snodgrass. The bill is very similar in its allegations and charges to the bill in the case at bar. We see, that the suit, bill and attachment of said Samuel Snodgrass was pending in the circuit court of Ohio county on the said 7th day of April, 1.868, the 30th of May of the same year, and the 22d of June of same year and afterwards. The case of Hill, assignee, v. David Snodgrass in the commissioner’s report mentioned, it seems from the said report, was a judgment at law, as I infer from said report. It does not appear, that there were any other cases than the two namec^ pending against David Snodgrass either jaw or equity with or without attachment or other-on 7^ 0f ^ppi^ 1868, or the 30th day oí May of the same year.

Now the condition of said bond of indemnity recites, that whereas the said James L. Delaplain has sold and conveyed certain property in Ohio county, West Virginia, to the said Samuel S. Jacob, trustee for Florence V. Delaplain; and whereas there have been certain attachments at law and in chancery levied upon the said property of certain creditors or alleged creditors of David Snodgrass; and whereas the said suits and actions are now pending and undetermined : Now, therefore, if the said James L. Delaplain shall indemnify and save harmless the said Samuel S. Jacob, trustee for Florence V. Delaplain, against any judgment and decree, that may be rendered against the said real estate in the said suits or actions, and against all loss expense or damages in any manner incurred or to be incurred in defence of the same, or in any manner incidental thereto, then this obligation to be void, otherwise to remain in full force and effect.”

Now to what suits and actions does' or can the said bond of indemnity refer as pending? As before remarked, it does not appear by this record, that there were any other suits than the two last named pending on the 30th of May, 1868, or the 7th day of April, 1868; and the penalty of the bond, which is $2,000.00, is sufficient to cover the recovery in each and both of said cases. If in fact there were suits or actions at law or equity pending at the date of said bond of indemnity other than the two before named, and they were referred to in said bond, and not the two before named nor either of them, the defendants could easily have shown that fact. But, as before stated, no such fact appears or is shown.

Under this state of facts and the whole evidence bearing on the question I feel bound to conclude, that said bond of indemnity was meant and intended to refer to the said suit in chancery of said Samuel Snodgrass v. David Snodgrass et al. and the attachment therein as one of the cases therein referred to ; and for the same reasons* in the absence of explanatory facts and others, which might have been proven, if they existed, I feel bound to conclude, that the defendant, Florence V. Delaplain, at the time she purchased said tract of land and received and accepted the said deed therefor, had notice, that the said conveyance from David Snodgrass and wife to said James L. Delaplain for the land in the bill mentioned was made to hinder, delay or defraud the creditors of the said David Snodgrass, and that therefore the said deed of conveyance from said James L. Delaplain and wife to said Samuel S. Jacob, as trustee for said Florence V. Delaplain, is void, as to the creditors of said David Snodgrass.

Thus far I have said nothing as to the validity of the attachment issued in this cause, and as to whether the circuit court erred in refusing to quash the said attachment or not, because I am of opinion, that the court had jurisdiction of this cause without an attachment, because of the fraud alleged in the bill; that the jurisdiction of the court in the case does not depend solely upon the attachment and levy thereof; that the case as made by the bills shows sufficient equity as to matter of fraud to give jurisdiction to a court of equity to set aside said sales and conveyances of the land in the bills mentioned for fraud as to the creditors of said David Snodgrass. But without now deciding the point I am free to say, that the inclinations of my mind at presentare, that the affidavit is sufficient to authorize the order of attachment under the act of the Legislature of February 27, 1867, and the 11th section of the Code of Virginia of 1860.

I am of opinion, that the appeal prayed and granted in this case does not bring with it for review and determination the decree of the circuit court of Ohio county rendered in the said cause of Samuel Snodgrass against David Snodgrass and others on the 4th day of Septem-5874, The case is wholly unlike the case of Anderson v. De Soer, 6 Gratt. 364. If the appellants had desired this Court to review and pass upon the correctness of the last named decree, they should have petitioned for an appeal therefrom in that case.

For the foregoing reasons there is no error in the said decrees appealed from in this case; and the same must therefore be affirmed • and the appellants must pay to the appellee, William S. Goshorn, executor of John Goshorn, deceased, $30.00 damages and his costs about the defence of the appeal in this cause in this Court expended ; and this cause is remanded to the circuit court of Ohio county for such further proceedings to be had, as are according to the rules and principles governing courts of equity.

The Other Judges CONCURRED.

Decrees Apfirmed. Cause RemaNded.