32 W. Va. 507 | W. Va. | 1889
On the 1st day of October, 1867, Dr. Thom executed his note under seal payable twelve months after date, to. Miles A. Iiiman, or order, for the sum of $1,500.00 with interest thereon from date, for value received, being the last payment for the purchase-money of said Himan’s house and lot in Grafton and one vacant lot in South Grafton ; and on the 22d day of September, 1879, Mary L. V. W. Iiiman, executrix of the last will and testament of said Miles A. Iiiman, deceased, obtained a decree in the Circuit Court of Taylor county against said Dr. A. T. D. Thorn for the amount of said note and the interest thereon accrued, under which decree certain property belonging to said Thorn was sold not sufficient however to satisfy said decree, but leaving a balance due on said decree of $1,165.54; and at the November rules, 1880, said executrix filed her bill in said court against Thorn and others for the purpose of enforcing said decree, which had been docketed against other lands of Thorn, which she alleged were liable to the lien created thereby. In her bill she alleged, that, at the time the debt wrns contracted, upon ■which said decree was predicated, Thorn was the owner of a large and valuable estate in the county of Taylor, which he continued to hold, until he disposed of the same by dividing it out among all his children, conveying' it all away, until at the time of filing said bill he had nothing left but a very small portion of said estate and was hopelessly insolvent.
Plaintiff also alleges, that on the 13th day of April, 1880, she caused said decree to be docketed on the judgment-lien-docket of the county, and that on the 11th day of April, 1870, three years after the said indebtedness was contracted, Thorn executed a conveyance to his son Abraham Thorn for 1231-acres of land lying in said county, for the nominal consideration of $600.00, which she alleged never was paid, and never was intended should be paid, and, if paid, was far below the real value of said land; that on the 9th day of September, 1872, five years after said indebtedness was contracted. Thorn executed a deed of conveyance to his daughter Louisiana Houser for 68| acres of land, worth in reality $2,000.00 for the nominal consideration of $500.00 and the natural love and affection of said Thorn for his
James H. Turnley was made a defendant and answered said bill admitting, that he purchased said tract of land from Dr. A. Y. D. Thorn on the 13th day of September, 1879, at the price of $625.00, and claiming that he paid the entire purchase-money ; that said Thorn owed him a large portion of said purchase-money, and had owed him for years, and that said Thorn proposed to sell him said property at the above-named price, which he then and now believes to have been a fair price, and that his principal object in buying said land was to collect what said Thorn owed him; that he had no purpose whatever of perpetrating or assisting said Thorn in perpetrating any fraud upon plaintiff or any one else; that the price-paid was its full value, considering the fact, that the wife of said Thorn did not join in the conveyance, Thorn being about seventy five years of age, and his wife about fifty five. He denied all fraud or intention to hinder or delaj7 plaintiff in the collection of her debt against said Thorn. He admitted that Thorn was his father-in-law and had continued to live on said property since he (respondent) bought it.
Geoi’ge M. D. Thorn was also made defendant and answered said hill claiming, that it was not true, that the conveyance of seventy five acres of land by deed dated December 81, 187.9, was upon consideration not deemed valuable in
Hiram G-. Larew also filed an answer, in which he claimed, that the lot of ground near Irontown in said county now owned by him and mentioned in the bill was sold by Thorn to Joseph W. Davis and Isaac N. Davis on the 23d day of June, 1873, and by said Davis to him on the 31st day of January, 1880, and that Thorn had never owned it since the 23d day of June, 1873; that no deed from Thorn was ever admitted to record for the lot in Taylor county until the 9th day of April, 1880, and that the defendant Bernhold’s judgments were docketed in the judgment-lien-docket .of the county on the 25th day of October, 1879, and are liens upon said lot, unless they have been paid off, but claimed, that they had been paid off in full; that the plaintiff’s decree and 'said Bernhold’s judgments were both rendered at the same term of court and are of equal priority and should be paid pro rala out of any real estate owned by Thorn, and that therefor plaintiff has not a first lien upon the lot in South Grafton; that Thorn assigned the $100.00, which he owed him for the lot to John W. Mason on the 9th day of April, 1880, and that on that day Mason notified him of the assignment, and that Mason still claims the same, and denied that plaintiff has any lien upon said lot or said money.
Abraham Thron also answered plaintiff’s bill denying the allegation, that said 123|- acres of land was conveyed to him on the 11th day of April, 1870, for a mere nominal consideration, and claiming, that he paid $600.00 for the same, which was a full and fair consideration ; that he bought said land and took possession of it on the 27th day of February, 1861, and has been in continuous possession of the same ever since; that at the time of the purchase Thorn made and delivered to him a title bond for the land; that he paid Thorn $250.00 before the sale and executed his two notes for $175.00 each for the residue, due in four and six years respectively, which notes have been paid long ago; that Thorn did not make him a deed for said laud until the 11th
William Thorn also answered said bill and claimed, that he bought the ninety five acres mentioned in plaintiff’s bill from Thorn in the year 1870, at the price of $600.00, all of which and more too he paid, and that a deed was made to him on the 3d of February, 1873; and he denies the right of plaintiff' now to inquire into the sufficiency .of said consideration, more than five years having elapsed from the time, when said deed was made to him, to the time'of the institution of this suit; and claims, that, if it had been amere gift, plaintiff could not now have the deed declared void for that cause.
Louisiana Houser and John M. Iiouser also answered said bill and in their answer claim, that the tract of land conveyed to said Louisiana was so couveyedin consideration of $500.00 named in the deed; that the same was a full and valuable consideration, and that said consideration was all paid by her, long before said deed was made; that, she bought the land and took possession of it in the year 1861, and had had possession of it continuously ever since; that the deed therefor was made to her ou the 9th day of September; 1872. They deny, that said land was a gift to said Louisiana, and aver, that, more than five years having elapsed from the time of making said deed before the commencement of plaintiff’s suit, said deed could not now be declared void for that cause, if said land had in fact been a gift, and that no other cause is averred in the bill.
Plaintiff then filed an amended bill alleging, that said Thorn transferred and assigned his purchase-money-lien on the Larew property to defendant John W. Mason, and that said Mason now claims to be the owner of said lien. She also alleged, that said Larew, at the time he purchased the property and took a deed therefor from Thorn, had
On the 2d .of August, 1882, a decree was entered directing Commissioner Bent to ascertain the liens and their priorities against the real estate of Thorn and the real estate liable tp the payment of the same; and in response to the requirements of said decree said commissioner reported the aggregate amount of the liens against the real estate, of, Thorn to be $1,524.21; the amount in favor of plaintiff including interest $1,436.86; and the amount in favor of Bernhold $48.35; and that Thorn was the owner of the following real estate, upon which said judgments are liens, to wit,, a vacant lot in the town of Grafton, worth in fee $50.00 and of no rental value, also one fourth of an acre of land, situated near Irontown in Taylor county, W. Va., represented by deed (Exhibit N) filed with plaintiff’s bill; and he submitted to the court the question, whether the tract of land conveyed to Turnley by Thorn described in Exhibit M with the bill was so conveyed without consideration deemed valuable in law, or whether the same was made to hinder, delay and defraud his creditors, and also whether the conveyance made by Thorn to his son George M. D. Thorn, on the 31st day of December, 1877, was a gift and not for a valuable consideration; and, if these questions were found affirmatively, then the Tuimley tract and the tract sold to his son George M. D. Thorn were liable and should be subjected in the order, in which they are named in said report; and commissioner in support of his report returned the depositions and papers read and upon which the same was made. .
The defendant Hiram Larew excepted to so much of said report as charged the lot sold to him with the judgment of plaintiff against Thorn ; and on the 7th day .of August, 1885, the court by its decree sustained the commissioner’s report, so far as it ascertained, that the Bernhold judgment and plaintiff’s decree were on equal footing in point of priority, overruled the exception of said Larew, confirmed said commissioner’s report and directed, that, unless said judgments be paid in thirty days, the vacant lot in South Grafton and the lot solcl by Thorn to Larew be sold by a commissioner
1 Lid the court below err in holding, that the lands in said bill and proceedings mentioned and described as conveyed to William' Thorn, Abraham Thorn, Louisiana Houser, George M. L. Thorn, and James M. Turnley by A. Y. L. Thorn were not liable for plaintiff’s .decree, and that none of them should be sold therefor, and in dismissing plaintiff’s bill as to said parties? As to the tracts conveyed by Thorn to his children the conveyances are assailed by plaintiff on the sole ground that they are voluntary ; and said defendants plead and rely upon the Code c. 104, s. 14 which limits the time, within which a suit may be brought to set aside a conveyance on. the ground alone that it was voluntary, to five years; and I am of opinion, that said plea is a complete defence to plaintiff’s suit, so far as said conveyances to. Abraham Thorn, Louisiana Houser and William ■Thorn are concerned.
As to the conveyance made to the defendant George M. L. Thorn it is attacked, on the ground that it was voluntary and- was made not only after the incurring of the indebtedness, but after the suit was brought by plaintiff' to enforce the collection of the same; and George M. L. Thorn merely denies, that the conveyance was voluntary, and claims, that he bought the land in good faith and paid therefor the sum of $1,500.00, which is a full price for the land; that -all of said, money was paid prior to the institution of plaintiff’s suit; and that his deed was recorded before plaintiff’s judgment was rendered. In the case of Cohn v. Ward, supra, p. 34 the Court uses the following language : “ It is the settled law of this state that the recital in a deed of the payment of a consideration for the conveyance is not evidence as against a stranger, or a creditor of the grantor, assailing
As to the conveyance made by said Dr. Thorn to- his son-in-law, William A. Turnley, its validity is assailed on two grounds: first, that it was voluntary; and, secondly, that said deed was made with intent to hinder, delay and defraud the plaintiff and to avoid the effects of her'decree. The burden of showing, that this deed was fraudulent in fact rests upon the plaintiff. In the case of Livesay v. Beard, 22 W. Va. 585, this court held : “ Fraud may be legally inferred from the facts and circumstances of the case, when the facts and circumstances are of such a character as to reasonably lead to the conclusion that the conveyance was made with the intent to hinder, delay, and defraud creditors;” and, although no depositions were taken by the plaintiff to support the al
It will be seen, that the debt due the plaintiff was a large one and doubtless by far the largest debt owed by Thorn. It originated as early as October, 1867, at which time it was $1,500.00 ; and the interest was allowed to accumulate until the 22d of September, 1879, when a decree was taken for the claim then amounting to $2,216.91; and under that decree some property of defendant Thorn was sold, sufficient to reduce the debt to $1,165.57, upon which balance this suit is predicated. How, is it possible that Turnley, the son-in-law of Thorn, was ignorant of the existence of this debt, to enforce the collection of which suit was pending at the time, when said conveyance was made to him, and had been so pending some time previous thereto ? And yet Turnley in his deposition makes the following answers to the questions propounded to him :
Question. “How did you happen tobe at Dr. Thorn’s at that time?” Answer. “Dr. Thorn sent for me.” Q. “What did he say he wanted with you ?” A. “lie said he could not pay me what he owed me, and he wanted me,to buy the place, so that I could make my money?” §. “ Wliy did he say he wanted to sell it ?” A. “He told me he could not pay me, and wanted to sell the place to me.” Q. “Did he say anything about owing anybody else ? “A. “Yes, he spoke of these executions against the place, and that he owed some bills at Wheeling. I do not remember whether he mentioned owing any one else or not.” Q. “Did he not tell you at that time that he owed the debt due the plaintiff in this case?” A. “No, sir; he did not.” Q. “Did he not tell you that there was a suit pending against him to enforce the collection of this debt out of some property he owned in Grafton ?” A. “Dr. Thorn told me he had a suit in Grafton, but he did not tell me it was against the property I bought, or against any other property that I know of.”
It is, to say the least of it, somewhat remarkable that Dr.
In the ease of Livesay v. Beard, supra, this Court further held in the Syllabus Pts. 5, 6, 8, 9: — “5.—-Where the facts and circumstances in any case are such as to make a prima facie case of such fraudulent intent, they are to be taken as
Applying these principles, and the principles laid down in the case of Lockhard v. Beckley, 10 W. Va. 87, to the facts and circumstances developed in this cause with reference to the conveyance made by Thorn to Turnley we must conclude, that said conveyance was made with intent to hinder, delay and defraud the plaintiff, and is void’ as to the claim asserted by her, as executrix in this cause, and also as to the other creditors of said Thorn.
As to the lot near Irontown now held by Hiram G. Larew, which was sold by Thorn to Joseph W. Davis and Isaac H. Davis on the 23d of June, 1873, and by said Davis to Larew on the 31st of January, 1880, it appearing: that saidBern-hold’s judgments were rendered at the same term of court, that the plaintiff’s decree was rendered, any'amounts remaining unpaid on said judgements would be entitled to a fro rata satisfaction out of property liable thereto belonging to defendant Thorn; and in subjecting said property the plaintiff'should resort to and exhaust the other property belonging to Thorn including the tracts, which he attempted to convey to George M. D. Thorn and James Turnley, before resorting to tbe said lot now held by said Hiram G. Larew.
The decree complained of must be. reversed, and the cause is remanded to the Circuit Court of Taylor county for further proceedings tobe had therein in accordance with the rules of equity and the principles herein announced, with costs to the appellant.
RevbRsbd — Remanded.