17 W. Va. 916 | W. Va. | 1881
announced the opinion o± the Court:
It is apparent from the foregoing statement of the pleadings, that the fee of the real estate in question was prior to the sheriff’s sale in Henry S. Walker, who held it subject to a vendor’s lien in favor of the plaintiffs for $32,270.70. The mooted question, and the only one material in the case, is as to the ownership of the real estate subsequent to the said sheriff’s sale. On the part of the appellants it is claimed, that before the time for redemption under the said sheriff’s sale expired, George W. Beir, by his agent Henry S. Walker, receipted for and thereby released his claim against said property arising from the said sale, and further deny the bona fides of the parties who presumptively acted for Geo. W. Bier, at the sheriff’s sale, and claim that the purchase then made, while be
The evidence taken upon these issues leaves no question as to the following facts: 1st. That a sheriff’s sale did take place, at which the property was sold, and that the purchase-money was subsequently paid. 2d. That the appellants in order to protect their cestui qui trust, urged in the case of A. G. Talliaferro et al. v. Spicer Patrick et al., at a time shortly before the expiration of the privilege of redemption, that a decree be entered for the resale of the property to avoid the title being perfected in G. W. Bier, the purchaser at the sheriff’s sale. 3d. That Henry S. Walker (his answer to the contrary notwithstanding), in order to avoid such a resale, assumed to be an agent of said Bier, and released and acquitted the said land of any claim or lien against it, or any right or title thereto. 4th. That the appellants, acting in good faith, obtained the redemption of the real estate within the time limited by the law for such redemption, and had the receipt of G. W. Bier duly filed and on record. 5th. That the record now and ever since June 30, 1876, has proved such redemption. 6th. That Henry S. Walker held continuous possession of the land in question, and exercised ownership over the same until enjoined in this suit. 7th. That said Walker sold in his own name large quantities of timber. 8th. That G. W. Bier lived fourteen months after his alleged purchase, during nine of which he was entitled to a deed, but never claimed or demanded the same. 9th. That the payment made to the sheriff for the amount of the-tax sale was to the extent of nearly one
There is no evidence to establish the fact th.at Emma E. Walker was the agent of George W. Bier beyond the hearsay testimony of R. P. Warren. Nor is there any paper, writing or memorandum aside from the entry made by the sheriff at the time of the tax-sale, at the request of R. P. Warren or Henry S. Walker, even tending to show that G. W. Bier was the principal in this transaction. Nor is there any attempt to account for the absence of witnesses in possession of facts material to the determination of questions involved in this case.
The answer of EmmaE. Walker, a competent witness and a party in interest, discloses a knowledge of facts which, if proved, would remove what seems to me a well grounded suspicion, that a fraudulent combination was entered into for the purpose of retaining this estate in said Walker without payment of the vendor’s lien.
It is apparent from the foregoing statement, that the real question is, whether a fraud was attempted, and, if so, whether it was of'such a character as to render null and void the rights of the claimant under the sheriff’s sale. I am clearly of the opinion, upon the evidence in the record as now presented, that such is the case. The inadequacy of consideration, the purchase of property on which there was a vendor’s lien of over $30,000.00, for the insignificant sum of $343.60, coupled with the undisputed proofs of actual fraud perpetrated by Henry S. Walker in lulling into fancied security the parties whose rights were about to be cut off by lapse of time, together with the failure of the appellees to prove very import
The purchase in the name of G. W. Bier appears, as the record at present shows, to be an evasive and fraudulent effort by wrongful means to deprive the appellants of their just claim under their vendor’s lien. The case as now presented by the record may be greatly changed by the evidence which may be hereafter taken in the cause, but as the record now stands we are clearly of opinion, that the injunction which had been awarded ought not to have been dissolved by the judge on the motion to dissolve.
The law governing the character and weight of testimony, from which fraud may have been inferred, has been so elaborately and forcibly reviewed at the' present term of the court by Judge Haymond in the case of John Goshorn’s Ex’r v. David Snodgrass et al., that it is only necessary to cite that case as affording principles that warrant the conclusion to which I have arrived.
Therefore I am of opinion, that the court erred by its said order of October 24, 1877, dissolving the injunction granted October 5, 1877, and that said order of October 24,1877, should be reversed and annulled, with costs in this court, and cause remanded for further proceedings.
In the record of this case is copied an order of the said circuit judge, made in vacation, October 24, 1877, on the petition of Emma E. "Walker and Mary A. Bridgman, under chapter 117, Acts 1872-3, appointing E. W. Wilson a commsssioner and directing him to convey the land to said Walker and Bridgman. This order properly constitutes no part of the record in this case, the proceedings in said petition being independent of this suit, and it cannot therefore be acted upon in this case.
Decree Reversed with Costs and Cause Remanded.
