78 Va. 460 | Va. | 1884
delivered the opinion of the court.
The decree complained of sets aside as fraudulent and void a contract dated on the-day of--, 1873, between E. M. Hatcher, of the one part, and M. H. Clark and T. C. Corbin, of the other part, and a deed from the said Corbin and wife to H. C. Hatcher, trustee, dated May 2, 1876, under which the appellants claimed and held certain property situated on Craghead street, in the town of Dan-ville, known in the record as “ the Craghead street property,” as the separate estate of C. J. Hatcher. And it also sets aside and annuls a deed from T. J. Lee and wife to the same E. M. Hatcher, dated September 4, 1875, under which certain other property situated on Grove street in that town, and called in the record “the Grove-street property,” was held as the separate estate of the same C. J. Hatcher upon the same grounds. And it is upon the propriety of this decree that we now proceed to pass, commencing, however, for the sake of convenience, with that part thereof which annuls the contract, or memorandum, and the deed in regard to “the Craghead-street property.”
The main facts in respect to this property, as we learn
Now, upon this state of facts, it being admitted by JE. M. Hatcher, in the joint answer of himself and wife, that the-firm of Simonton, Jones & Hatcher was, on the 8th of November, 1872, “considerably indebted,” and there being not one iota of proof in the record that these debts have been since paid, secured to be paid, or that the members of that firm, singly or collectively, have the ability to pay them, how
If, then, as I am forced to conclude was the case here, this contract, dated on the-day-, 1873, and the deed from Corbin and wife to H. C. Hatcher, trustee, were actually fraudulent as to his then existing creditors, who were the creditors of Simonton, Jones & Hatcher, they were also fraudulent as to his subsequent creditors. And whether the fraud relates to one class or the other class, the effect is the same, and the subsequent creditor may, upon the strength of the fraud, successfully impeach the conveyance. The transaction being a nullity, cannot stand in the way of any creditor. Johnson, Trustee v. Wagner & Sons, 76 Va. 590. It is therefore fraudulent as to the appellee, even if he be regarded as a subsequent creditor. But was he a subsequent creditor ? Does he fall within that category ? I think that he does not. His debt, which after being reduced by the application of a credit of about $2,600, arising from the sale of some property held in trust as security therefor, amounts to about $7,300, and was contracted prior to the month of July, 1874. And the contract entered into in 1873 between E. M. Hatcher and Clark & Corbin was never recorded, and was therefore null and void as to the creditors of E. M. Hatcher, and could not impress the land in the hands of Clark & Corbin with a trust in favor of Mrs. Hatcher. Code 1873, ch. 114, § 5; 2 Minor’s Inst. p. 871; Stokes v. Oliver, 76 Va. 72. And the suggestion that at the time the deed from E. M. Hatcher to Clark & Corbin was executed, there was an agreement also entered into that this property should be conveyed to Mrs. Hatcher, when the debt it was intended to secure should have been extinguished, not being sustained by the proofs (if indeed it would be of any avail if it could, upon which point I express no opinion), Mrs. Hatcher can only claim under the deed of May 2, 1876, and that deed being voluntary was by the
Now, as to the conveyance of the Grove street property, it was a post-nuptial settlement; and under the doctrine laid down by this court in the cases of Blow v. Maynard, 2 Leigh, 30, and Fink v. Denny, 75 Va. 663, it is presumed to be voluntary and void, and it not only rests upon the appellants to show that it was made'for a valuable consideration moving from Mrs. Hatcher, but the answer to the bill charging it to be voluntary is not allowed to shift that presumption, nor is it held to be evidence for the respondents, but on the contrary, the defence set up in the answer must be established by proof. Now, by what means is this sought to be established ? It is stated by Mrs. Hatcher in the joint answer of herself and husband to the original and •amended bill in this case, that this Grove street lot was purchased partly with the proceeds of a house and lot formerly held by her as separate estate in the city of Atlanta, Georgia, amounting to about $525, and partly with money borrowed of, and which she still owes to, her mother-in-law, Mrs. Updegraff; and that the improvements upon said lot were built with the money remaining over of that which she borrowed of Mrs. Updegraff; $1,375 money borrowed of the Building and Loan Association of Danville, for which they have a lien on this and the Craghead street property, and $790 or thereabout derived from rents and •other moneys not very large in amounts,, which could be readily accounted for if necessary.
As to the money alleged to have been borrowed of Mrs. Updegraff, it is only necessary to say that the testimony of Mrs. Updegraff shows that she did give or loan to her son, E. M. Hatcher, about $1,000 in money to pay for timbers which were at the depot at the time of the commencement of the building, but that she never did loan any money to
It is needless to prolong this investigation of the evidence. It is clear that this Grove street property was purchased with the money of E. M. Hatcher after he became indebted to the appellee, and that it was attempted to settle it upon his wife as her separate estate, in order to hinder, delay and defraud his creditors.
It is objected, however, that the deposition of E. M. Hatcher, taken in a suit brought by the firm of Crews, Rodenhizer & Co. v. M. H. Clark & Co., to subject the property of M. H. Clark & Co. to pay the debt still due the a.ppellee in this case, was improperly admitted to be read in this suit to show the admission of E. M. Hatcher that he was concealing his property from his creditors. But we cannot assent to this. For whilst, as a general rule, it is true that the deposition of a witness taken in one suit cannot be read against him when a party to another suit; that rule can have no application here, since that was a suit in regard to
As to the deposition of J. R. Simonton, we are of opinion that it was properly read in evidence upon the hearing of this cause, although taken before the amended and supplemental bill.was filed; but if this were otherwise, we have established by the other testimony in the case that all three of these instruments are fraudulent and void, and that the decree of the corporation court of Danville is substantially right, and it must therefore be affirmed. 4 Min. Inst., Pt. 1, 970.
Decree affirmed.